I. T. O. Corp. of Baltimore v. Benefits Review Board, U. S. Department of Labor , 529 F.2d 1080 ( 1975 )

WINTER, Circuit Judge:

These appeals present the question of first impression of the extent to which the 1972 Amendments to the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq., extend benefits under the Act to persons engaged in necessary steps in the overall process of loading and unloading a vessel, but who, prior to the Amendments, could claim benefits for accidental injury or death only under state law. The Administrative Law Judge and the Benefits Review Board of the Department of Labor held that benefits under the Act had been extended to all persons handling cargo or performing related functions in the terminal area. We disagree, and reverse each of the three awards in these cases.

We conclude that the Act’s benefits extend only to those persons, including checkers, who unload cargo from the ship to the first point of rest at the terminal or load cargo from the last point of rest at the terminal to the ship. While the 1972 Amendments do extend the benefits of the Act to some persons who were not previously eligible, coverage is limited by the concept of “maritime employment,” and not every person handling cargo between ship and point of discharge to the consignee or point of receipt from the shipper is engaged in “maritime employment.” On the facts we conclude that these three claimants were not. The 1972 extension of coverage was intended only to remove inequities and anomalies arising when a person otherwise engaged in “maritime employment” was injured on land.

A subsidiary question in Nos. 75-1051 and 75-1088 is raised by the motion of Benefits Review Board, Department of Labor, to substitute the Director, Office of Workers’ Compensation Programs, Department of Labor, as to which is the proper respondent in a petition to review under 33 U.S.C. § 921(c). We think that neither is a proper party to the proceedings. We therefore deny the Board’s motion to substitute, and dismiss the Board. We will treat the Director as amicus curiae.

I.

The awards presented for review were made to William T. Adkins, who was injured at Dundalk Marine Terminal in the Port of Baltimore, and to Donald D. Brown and Vernie Lee Harris, both of whom were injured at Marine Terminals, Inc., the lessee and operator of Norfolk International Terminals in Norfolk, Virginia.

A.Adkins was a forklift operator and he sustained his injuries while he was moving a load of brass tubing from its storage place in a warehouse to a waiting delivery truck which would transport it to its ultimate destination. He performed a function in the overall unloading of the ship and discharge of its cargo from the terminal. The tubing had arrived at the terminal some seven days earlier aboard the SS American Legend, packed in a container. The container had been removed from the vessel and immediately taken from the ship’s side to a marshaling area one-half to three-quarters of a mile away where it was stored with other containers. The ship sailed on the same day that it had docked. Three days later the container was moved 1,000 — 1,200 feet to a warehouse or transit shed, known as Shed 11, where the container was “stripped,” i. e., unloaded, and the brass tubing stored to await transportation to its destination. The delivery truck did not arrive until four days later, and shortly thereafter Adkins was injured loading the tubing into it with his forklift.

Shed 11 was 685 feet from the water’s edge. It was not connected geographically or functionally with the ships’ berthing area, and ships were neither loaded nor unloaded from it.

B. Brown suffered carbon monoxide poisoning while he was engaged as a forklift operator at Marine Terminals. He performed a function in the overall loading of cargo on board a ship. He operated his forklift in a warehouse where cotton piece goods and barrels of chemicals had been deposited after delivery by truck or rail. His job was to move loads of these items from their storage place to a container which was then “stuffed,” i. e., loaded with the items he had moved.

After a container was fully loaded, it was sealed and moved by another vehicle, called a “hustler,” to a marshaling area adjacent to the pier. The container would then be lifted from the “hustler” and placed in a stack with other containers to await the arrival of a ship. When the ship arrived the container would be loaded aboard. Brown took no part in these latter operations. They were performed by persons other than employees of Marine Terminals. At no time was Brown required to board a ship. The warehouse in which he worked was 850 feet from the water’s edge.

C. Harris was injured when the brakes failed on a “hustler” which he was operating and it collided with a container. He, too, performed a function in the overall loading of a ship; his was the next after that performed by Brown. Harris moved containers from the long-term container storage area to the container marshaling area adjacent to the pier. He had just deposited a container at the container marshaling area and was on the return trip to the long-term container storage area to pick up another container when his brakes failed. No ship was present at the pier at the time, and the containers in the marshaling area were not scheduled to be loaded aboard a vessel until later in the day when one was scheduled to arrive.

II.

The awards were made under § 3(a) of the Act, 33 U.S.C. § 903(a) (1975 Supp.), which, in pertinent part and with italics to show the Amendments made in 1972, provides:

Compensation shall be payable . . . in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel).

The meaning of the words “employee” and “employer” is found in § 2(3) and (4), 33 U.S.C. § 902(3) and (4) (1975 Supp.), and these subsections, with italics to show the 1972 Amendments, provide:

(3) The term “employee” means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker, but such term does not include a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net.

(4) The term “employer” means an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel).

Prior to 1972,¹ benefits were payable under the Act to any person (except a master or member of a crew or a person loading or unloading a vessel under eighteen tons net) if he was injured “upon the navigable waters of the United States (including any dry dock) and if recovery for the disability through workmen’s compensation proceedings [could] not validly be provided by State law,” with certain exceptions not material here. The pre-1972 Act thus did not distinguish among employees depending on the function they performed. Instead, the geographical location of the injury was all-important, with coverage stopping at the water’s edge.

Sections 2 and 3 of the present Act establish a dual test for coverage. The situs requirement has been retained, with the definition of “navigable waters” expanded to include certain specified land areas. In addition, a new “status” test has been added: the person injured (“employee”) must have been engaged in “maritime employment,” a concept which is nowhere defined but which includes “longshoring operations.” The net effect of the 1972 Amendments was therefore to broaden the area in which an injury would be covered, and narrow the class of persons eligible according to job function.

Section 4 of the amended Act, 33 U.S.C. § 904, limits liability for compensation to an “employer” as defined in § 2(4), 33 U.S.C. § 902(4). The definition is so drafted that it appears that an employer will always be liable for his “employees’ ” covered injuries. It therefore does not prescribe another, additional test for coverage.

III.

We have no doubt that each of the claimants satisfies the situs test of the post-1972 Act. As a minimum, they were injured at a terminal, adjoining navigable waters, used in the overall process of loading and unloading a vessel. The difficult issue is whether they also satisfy the status test — were they engaged in “maritime employment,” or may they be deemed longshoremen or persons engaged in longshoring operations within the meaning of the Act?

The meaning of the terms “maritime employment,” “longshoreman” and “persons engaged in longshoring operations” is not so fixed and certain that the Act alone provides the answer. “Maritime employment” is a phrase that embodies the concept of a direct relation to a vessel’s navigation and commerce. Atlantic Transport Co. v. Imbrovek, 234 U.S. 52, 61, 34 S.Ct. 733, 735, 58 L.Ed. 1208 (1914) (“The libellant was injured on a ship, lying in navigable waters, and while he was engaged in the performance of a maritime service. We entertain no doubt that the service in. loading and stowing a ship’s cargo is of this character.”) Ordinarily the question of whether a person was engaged in “maritime employment” is to be determined as of “the time of the accident.” Parker v. Motor Boat Sales, 314 U.S. 244, 247, 62 S.Ct. 221, 86 L.Ed. 184 (1941). See Pennsylvania R. R. v. O’Rourke, 344 U.S. 334, 340, 73 S.Ct. 302, 97 L.Ed. 367 (1953). But while the cases establish that loading and unloading a vessel is maritime employment, they all limited recovery to injuries sustained on the seaward side of the water’s edge because such was the limit of admiralty jurisdiction. See discussion and collection of authorities in Victory Carriers, Inc. v. Law, 404 U.S. 202, 204-07, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971). Thus, the cases shed no real light on how far shoreward the maritime nature of loading and unloading extends, particularly where, as here, the shore-based aspects of the overall loading and unloading operations have been split into numerous functions and assigned to different employees.

“Longshoreman” and “longshoring operations” are words of no greater exactness of meaning. It is true that in Intercontinental Container Transport Corp. v. New York Shipping Ass’n, 426 F.2d 884 (2 Cir. 1970), it was said that “[h]is-torically the work of longshoremen included the preparation of cargo for shipment by making up, for example, drafts and pallets and, in connection with unloading cargo, the breaking up of drafts and pallets, sorting the cargo according to its consignees and delivering it to the trucks or other carriers.” Id. at 886. At the same time, however, the opinion recognized that “[t]he work of stevedores is the loading and unloading of ships,” id. at 889. The case dealt with a freight forwarder’s complaint that an agreement between a longshoremen’s union and a steamship carriers’ association, which foreclosed the forwarder’s employees from stuffing and stripping containers, constituted a restraint of trade. The decision is hardly determinative of just what functions a longshoreman performs and at what point in the unloading and loading processes, if any, he ceases to perform longshoring operations.

Perhaps more significant is the fact that the Secretary of Labor, in promulgating regulations to foster safe conditions in the longshoring industry, defined “longshoring operations” as the “loading, unloading, moving, or handling of, cargo, ship’s stores, gear, etc., into, in, on, or out of any vessel on the navigable waters of the United States.” 29 C.F.R. § 1918.3(i) (1974) (emphasis added). See 29 C.F.R. § 1910.16(b)(1) (1974). Of course these regulations were adopted prior to enactment of the 1972 Amendments and it may well be, as the government argues, that they will ultimately be redrafted when the scope of the 1972 Amendments has been judicially determined. They are significant evidence, however, of the meaning attached to the words at the time that Congress was considering the 1972 Amendments.

Because we conclude that the terms “maritime employment,” “longshoreman” and “longshoring operations” are not such words of art that we would be justified in deciding the case without resort to the legislative history of the 1972 Amendments and full consideration of the context in which they were enacted, we turn to these secondary sources. See United States v. Oregon, 366 U.S. 643, 648, 81 S.Ct. 1278, 6 L.Ed.2d 575 (1961).

IV.

The Act was initially adopted in 1927 as a congressional response to a series of holdings that the states were without power to afford a workmen’s compensation remedy to workers aboard vessels, and that Congress lacked the authority to validate the application of state remedies to such workers, Southern Pac. Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917); Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 40 S.Ct. 438, 64 L.Ed. 834 (1920); Washington v. W. C. Dawson & Co., 264 U.S. 219, 44 S.Ct. 302, 68 L.Ed. 646 (1924). The rationale of those cases was that under the Constitution only Congress had authority over longshoremen injured on the seaward side of the pier. Congress responded to the broad suggestion in Dawson, 264 U.S. at 227, 44 S.Ct. at 305, that Congress enact “general provisions for compensating injured [maritime] employees . ” by enacting the 1927 Act.²

Continuing problems in the application of the Act arose from the fact that it limited recovery to injuries occurring on navigable waters, i. e., it looked to the situs of the injury rather than to the maritime status of the injured longshoreman. See Nacirema Operating Co. v. Johnson, 396 U.S. 212, 215-16, 90 S.Ct. 347, 24 L.Ed.2d 371 (1969). Specifically, Nacirema held that the Extension of Admiralty Jurisdiction Act, which extended admiralty jurisdiction to certain land structures, did not operate to modify the basic requirement of the Compensation Act that benefits be afforded solely on account of death or injuries not reachable by state workmen’s compensation statutes, i. e., those beyond the pier on the seaward side. Such a holding necessarily resulted in anomalies, e. g., benefits were denied the three longshoremen in Nacirema who were injured or killed when cargo hoisted by the ship’s crane swung back and knocked them to the pier or crushed them against the side of a railroad car, while the widow of a fourth longshoreman whose decedent had a similar accident but was knocked into the water and drowned was able to recover. (Her case was not taken to the Supreme Court.) See Marine Stevedoring Corporation v. Oosting, 398 F.2d 900 (4 Cir. 1968). See also the dissenting opinion of Chief Judge Haynsworth in Oosting commenting on incongruities in application of the Act, 398 F.2d at 911, and our opinion in Snydor v. Villain & Fassio et Compania Int. di Genova, 459 F.2d 365 (4 Cir. 1972), setting forth a number of ship-related but uncompensa-ble injuries. Indeed, the Court in Na-cirema apparently anticipated incongruous results stemming from its holding because it said:

There is much to be said for uniform treatment of longshoremen injured while loading or unloading a ship. . [Cjonstruing the Longshoremen’s Act to coincide with the limits of admiralty jurisdiction — whatever they may be and however they may change- — simply replaces one line with another whose uncertain contours can only perpetuate on the landward side of the Jensen line, the same confusion that previously existed on the seaward side. While we have no doubt that Congress had the power to choose either of these paths in defining the coverage of its compensation remedy, the plain fact is that it chose instead the line in Jensen separating water from land at the edge of the pier. The invitation to move that line landward must be addressed to.Congress, not to this Court. 396 U.S. at 223-24, 90 S.Ct. at 354.

See also Victory Carriers v. Law, 404 U.S. 202, 216, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971).

To the extent pertinent here, the 1972 Amendments were a direct response to the invitation in Nacirema. Given that Congress has the power to extend admiralty jurisdiction to the landward side of the Jensen line, we think that the most informative source on how far the line was extended is contained in the virtually identical House and Senate Reports, dealing with “Extension of Coverage to Shoreside Areas.” U.S.Code Cong. & Admin.News 1972, p. 4707. See S.Rep. No. 92-1125, 92 Cong., 2d Sess. (1972); H.R.Rep. No. 92-1441, 92d Cong., 2d Sess. (1972). The pertinent portions of the House Report, 3 U.S.Code Cong, and Admin.News, pp. 4698, 4707-08 (92d Cong., 2d Sess. (1972)), are set forth in the margin.³

The committee’s report starts with frank recognition that the Act, prior to amendment, embodied the Jensen rule: “coverage of the present Act stops at the water’s edge . . . . The result is a disparity in benefits . . . for the same type of injury depending on which side of the water’s edge and in which State the accident occurs.” U.S.Code Cong. & Admin.News 1972, p. 4707.

The committee also recognized that the disparity was worsening, not only because of unrealistic limits on benefits and exemptions from coverage contained in state workmen’s compensation law, but also because modern technology in the industry required “more of the longshoreman’s work ... [to be] performed on land than heretofore.” The committee then stated its belief that “the compensation payable to a longshoreman . . . should not depend on the fortuitous circumstance of whether the injury occurred on land or over water.” U.S.Code Cong. & Admin.News 1972, p. 4708.

With its premise thus established, the committee made a series of significant statements. It said its intent was to provide benefits to employees “who would otherwise be covered by this Act for part of their activity” (emphasis added). As an example, it cited employees who unload cargo from a ship and transport it “immediately . . . to a storage or holding area on the pier, wharf, or terminal adjoining navigable waters.” U.S.Code Cong. & Admin.News 1972, p. 4708. Such employees were to be compensated if they were injured over navigable waters or on the adjoining land area. Conversely, employees not engaged in loading or unloading a vessel were not to be covered even if they were injured on land in an area used for such activity.

The report specifically stated that “employees whose responsibility is only to pick up stored cargo for further transshipment would not be covered” (emphasis added), nor would purely clerical employees who do not participate in the loading and unloading of cargo. However, checkers “directly involved in the loading and unloading functions” (emphasis added) would be eligible for benefits. U.S.Code Cong. & Admin.News 1972, p. 4708.

We especially note that the committee report is explicit in delineating the portion of the overall loading and unloading process during which coverage attaches to longshoremen and persons engaged in longshoring operations: the Act applies between the ship and, in the ease of unloading, the first storage or holding area on the pier, wharf, or terminal adjoining navigable waters. Although the instance of loading a ship was not discussed, we think that the same principle controls in reverse: coverage is afforded from the last storage or holding area on the pier, etc., to the ship. We perceive the landward limit of coverage to be the “point of rest” as that term is generally understood in the industry, Norfolk Marine Terminal Association Tariff, No. 1-C at 18, Item 290, Respondent’s Exhibit 1, Harris v. Marine Terminals, Inc., No. 74-LHCA—108 (Aug. 15, 1974), and defined by the Federal Maritime Commission in its regulations governing terminal operators. 46 C.F.R. § 533.-6(c)(1974). See also American President Lines, Ltd. v. Federal Maritime Bd., 115 U.S.App.D.C. 187, 317 F.2d 887, 888 (1962); DiPaola v. International Terminal Operating Co., 311 F.Supp. 685, 687 (S.D.N.Y.1970).

Applying these principles to the three cases at bar, we think that in Adkins’ case the container marshaling area was the first point of rest in the unloading process, and that in Brown’s and Harris’s cases the marshaling area adjacent to the pier was the last point of rest in the loading process. Since Adkins was injured landward of the first point of rest.⁴ and Brown and Harris were injured landward of the last point of rest, we think it follows that none was afforded coverage under the Act, as amended.

It might be argued that the construction wé place on the statute is inconsistent with the congressional committees’ statements that the 1972 Amendments were intended to make eligible for benefits “employees who would otherwise be covered by this Act [before amendment] for part of their activity” (emphasis added). U.S.Code Cong. & Admin.News 1972, p. 4708. It may well be that there are longshoremen engaged in moving cargo between ship and point of rest who never cross the water’s edge. Such workers would not have been covered by the old Act, but will be eligible for benefits under our interpretation of the Amendments.

Our answer is that we have done no more than the committees. Although the committees said that coverage was being limited to employees who would be otherwise covered “for part of their activity,” the committees clearly recognized that with modern technology “more of the longshoreman’s work is performed on land” U.S.Code Cong. & Admin.News 1972, p. 4708 and they unequivocally stated that they intended to cover employees who unload the ship and immediately transport the cargo to a storage or holding area (point of rest) on the pier, wharf or terminal, excluding coverage only to those who pick up stored cargo for further transshipment. In view of the latter statements and the liberality of construction to be afforded remedial legislation of this type, we do not feel constrained to give an overly limiting interpretation to the phrase “employees who would otherwise be covered by this Act for part of their activity.” U.S.Code Cong. & Admin.News 1972, p. 4708.

In summary, when we examine the amendments in the context of the Act prior to amendment, the case law construing the Act and commenting on the power of Congress to legislate in this area, and the language of the committee reports, we reject the government’s assertion that all persons, excluding clerical employees other than checkers, who play any part in the overall loading and unloading process are covered by the Act as amended. We think that, with respect to longshoremen or other persons engaged in longshoring operations, the Amendments extend only to those employees engaged in loading and unloading activities between the ship and the first (last) point of rest, including checkers “directly involved in [such] loading or unloading functions.” U.S.Code Cong. & Admin.News 1972, p. 4708.

V.

In the posture in which Nos. 75-1051 and 75-1088 came to our court, the Benefits Review Board, Department of Labor, was named as respondent in a petition under § 21(c) of the Act, 33 U.S.C. § 921(c) (1975 Supp.), to review the Board’s order awarding benefits. The claimant, William T. Adkins, was also named as a respondent. In due course the Board moved that it be dismissed from the proceedings and that there be substituted as a respondent the Director, Office of Workers’ Compensation Programs. The claimant did not oppose the motion, but petitioners, I. T. O. Corporation of Baltimore and Liberty Mutual Insurance Company, and the in-tervenors, National Association of Stevedores et al., did oppose it. We deferred decision on the motion until decision of the cases.

In agreement with the holding and reasoning of McCord v. Benefits Review Bd., 168 U.S.App.D.C. 302, 514 F.2d 198 (1975), we do not think that the Benefits Review Board is a respondent to a petition to review its order under either 33 U.S.C. § 921(c) or Rule 15(a), F.R.A.P. The same result has been reached by the Ninth Circuit in two unreported cases. Westfall v. Benefits Review Board (Nos. 73-2578 and 73-2579, 9 Cir. Dec. 5, 1973); Walker v. Benefits Review Board (Nos. 74-1340 and 74-1494, 9 Cir. Aug. 9, 1974). As the District of Columbia Circuit held, “there is sufficient adversity between [employer and employee] to insure proper litigation without participation by the Board,” 514 F.2d at 200, and on this reasoning we do not think that the Director, Office of Workers’ Compensation Programs is a proper respondent either. We dismiss the Board and deny the substitution. This, of course, is not to say that either the Board or a court of appeals may not, in a proper case, permit intervention by others who have an interest at stake and that they may not appear as petitioners or respondents as their interests appear.

Counsel for the government have performed a valuable service in these cases by supplementing the argument of the claimants as to the meaning to be afforded the 1972 Amendments. We treat their participation, however, as amicus curiae.

In Nos. 75-1075 and 75-1196, no point is made of who are named as respondents. We make none, confident in the belief that in this circuit future litigation will be conducted in accordance with what we have stated.

Reversed; Benefits Review Board dismissed in Nos. 75-1051 and 75 — 1088.

1 . The 1972 Amendments to §§ 2 and 3 were only part of a broad overhaul of the Act. Other amendments substantially increased the maximum and minimum benefits which could be awarded; accomplished a legislative overruling of Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946), which permitted a longshoreman to recover damages from a ship resulting from the ship’s unseaworthiness; and effected a legislative overruling of Ryan Stevedoring Co. v. Pan Atlantic S. S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956), under which a ship could recoup from a longshoreman’s employer the damages it was required to pay the longshoreman for injuries he suffered due to the unseaworthiness of the ship, on the theory that the employer breached an express or implied warranty of workmanlike performance.

2 . It was not until the decision in Calbeck v. Travelers Ins. Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962), that the availability of the Act’s remedies for all injuries to employees on navigable waters was firmly established. Pre-1927 cases had tried to afford some protection to injured maritime employees by whittling down the Jensen doctrine with the so-called “maritime but local” exception, which allowed the application of state law to admittedly maritime accidents in areas of “local concern.” See, e. g., Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321 (1922); Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210 (1921). After the passage of the 1927 Act, it was unclear whether these decisions persisted as a limit on the federal law’s scope. Calbeck made it plain that they did not. What did survive was a sphere of concurrent state and federal jurisdiction, the so-called “twilight zone.” This was the area where it was impossible to predict, before litigation, whether the employee’s activities were so local that a state workmen’s compensation act might apply. See, e. g., Hahn v. Ross Island Sand & Gravel Co., 358 U.S. 272, 79 S.Ct. 266, 3 L.Ed.2d 292 (1959); Davis v. Department of Labor and Industries, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246 (1942).

For a description of the genesis of the Act and the principal judicial constructions of it, see dissenting opinion of Haynsworth, C. J., in Marine Stevedoring Corp. v. Oosting, 398 F.2d 900, 910-11 (4 Cir. 1968), rev’d sub nom. Nacirema Operating Co. v. Johnson, 396 U.S. 212, 90 S.Ct. 347, 24 L.Ed.2d 371 (1969).

3 . The present Act, insofar as longshoremen and ship builders and repairmen are concerned, covers only injuries which occur “upon the navigable waters of the United States.” Thus, coverage of the present Act stops at the water’s edge; injuries occurring on land are covered by State Workmen’s Compensation laws. The result is a disparity in benefits payable for death or disability for the same type of injury depending on which side of the water’s edge and in which State the accident occurs.

******

It is apparent that if the Federal benefit structure embodied in Committee bill is enacted, there would be a substantial disparity in benefits payable to a permanently disabled longshoreman, depending on which side of the water’s edge the accident occurred, if State laws are permitted to continue to apply to injuries occurring on land. It is also to be noted that with the advent of modern cargo-handling techniques, such as containerization and the use of LASH-type vessels, more of the longshoreman’s work is performed on land than heretofore.

The Committee believes that the compensation payable to a longshoreman or a ship repairman or builder should not depend on the fortuitous circumstance of whether the injury occurred on land or over water. Accordingly, the bill would amend the Act to provide coverage of longshoremen, harbor workers, ship repairmen, ship builders, shipbreakers, and other employees engaged in maritime employment (excluding masters and members of the crew of a vessel) if the injury occurred either upon the navigable waters of the United States or any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other area adjoining such navigable waters customarily used by an employer in loading, unloading, repairing, or building a vessel.

The intent of the Committee is to permit a uniform compensation system to apply to employees who would otherwise be covered by this Act for part of their activity. To take a typical example, cargo, whether in break bulk or containerized form, is typically unloaded from the ship and immediately transported to a storage or holding area on the pier, wharf, or terminal adjoining navigable waters. The employees who perform this work would be covered under the bill for injuries sustained by them over the navigable waters or on the adjoining land area. The Committee does not intend to cover employees who are not engaged in loading, unloading, repairing, or building a vessel, just because they are injured in an area adjoining navigable waters used for such activity. Thus, employees whose responsibility is only to pick up stored cargo for further trans-shipment would not be covered, nor would purely clerical employees whose jobs do not require them to participate in the loading or unloading of cargo. However, checkers, for example, who are directly involved in the loading or unloading functions are covered by the new amendment. Likewise the Committee has no intention of extending coverage under the Act to individuals who are not employed by a person who is an employer, i. e. a person at least some of whose employees are engaged, in whole or in part in some form of maritime employment. Thus, an individual employed by a person none of whose employees work, in whole or in part, on navigable waters, is not covered even if injured on a pier adjoining navigable waters.

4 . We are aware that Adkins testified that in the past, and sometimes over weekends, he was employed in various capacities “loading and unloading ships” and “on a ship.” We think that the record is clear, however, that Adkins was not so employed at the time that he was injured; rather his duties were confined to operating a forklift in Shed 11. As we have indicated in the text, the status of his employment is to be determined as of the time of the accident—not by what his previous duties may have been or by what his duties are when he accepts sporadic overtime assignments.