DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, PETITIONER v. PERINI NORTH RIVER ASSOCIATES, ET AL. No. 81-897 In the Supreme Court of the United States October Term, 1981 On Writ of Certiorari to the United States Court of Appeals for the Second Circuit Brief for the Petitioner PARTIES TO THE PROCEEDING In addition to the parties named in the caption, claimant Raymond Churchill and Hartford Accident & Indemnity Company are respondents in this Court. TABLE OF CONTENTS Opinions below Jurisdiction Statute involved Statement Summary of argument Argument A marine construction worker injured upon actual navigable waters, who would have been covered before the 1972 LHWCA amendments, is "engaged in maritime employment" within the meaning of Section 2(3) of the amended Act A. In amending the Act in 1972, Congress intended to extend federal coverage to workers on shore, not to withdraw coverage from workers who are injured while at work on actual navigable waters 1. Maritime jurisdiction before the 1927 Act 2. Coverage under the 1927 Act 3. Coverage under the 1972 amendments B. The "maritime employment" requirement of the amended Act does not incorporate the previously discredited "significant relationship to navigation or commerce" test 1. Retaining LHWCA coverage for all injuries to workers occurring upon actual navigable waters is consistent with the statutory scheme of the 1972 amendments 2. The "navigation or commerce" test is not mandated by this Court's decision in P.C. Pfeiffer Co. v. Ford 3. Adoption of a "navigation or commerce" test would frustrate Congress' intent to provide a sure and effective compensation remedy for all injuries sustained on navigable waters 4. Denial of LHWCA coverage to some workers injured on actual navigable waters would result in unacceptable difficulty in administering the LHWCA Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-6a) is reported at 652 F.2d 255. The opinion of the Benefits Review Board (Pet. App. 9a-28a) is reported at 12 B.R.B.S. 929. The decision of the Administrative Law Judge (Pet. App. 29a-32a) is not reported. JURISDICTION The judgment of the court of appeals (Pet. App. 7a-8a) was entered on June 17, 1981. On September 8, 1981, Justice Marshall extended the time within which to file a petition for a writ of certiorari to and including November 13, 1981. The petition for a writ of certiorari was filed on November 12, 1981, and was granted on February 22, 1982 (A. 21). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTE INVOLVED 1. Section 3(a) of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. 903(a), provides in pertinent part: Compensation shall be payable under this (Act) 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). * * * 2. Section 2(3) of the Act, 33 U.S.C. 902(3), provides in pertinent part: 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 * * *. QUESTION PRESENTED Whether a marine construction worker injured while working on actual navigable waters is "engaged in maritime employment" within the meaning of Section 2(3) of the Longshoremen's and Harbor workers' Compensation Act, 33 U.S.C. 902(3), and is thus covered by the Act. STATEMENT 1. Raymond Churchill, an employee of respondent Perini North River Associates, was injured in a job-related accident at the site of the North River Pollution Control Project, a sewage treatment plant under construction on the Hudson River in New York City (Pet. App. 3a, 29a-30a). Perini had contracted to build the foundation or substructure for the plant, which extends approximately 700 feet over the Hudson River between 135th and 145th Streets in Manhattan (id. at 30a). The construction contract required Perini to "place 2,300 hollow circular pipes, called caissons, in navigable waters down to embedded rock, to fill the caissons with concrete, to connect them together at proper elevations above the water with concrete beams, and to place precast concrete slabs on top of the beams." Fusco v. Perini North River Associates, 601 F.2d 659, 661 (2d Cir. 1979) (Fusco I), vacated and remanded, 444 U.S. 1028, rev'd on remand, 622 F.2d 1111 (1980) (Fusco II), cert. denied, 449 U.S. 1131 (1981). /1/ The caissons were delivered by railroad to the New Jersey side of the Hudson River, where they were loaded onto supply barges and towed across the river to await unloading and installation (A. 7-8, 18-19). Employees on the construction project worked from barges (A. 7-8) and float stages (A. 16-17) or from parts of the uncompleted substructure. Raymond Churchill is a dockbuilder foreman and has been a member of the dockbuilders' union for more than 20 years (Pet. App. 3a). On the North River Project, Churchill was in charge of all work performed on one of the crane barges used to load and unload caissons and other construction materials from supply barges and to set caissons in position for driving into the river bed (id. at 11a-12a, 14a-15a; A. 6-8, 19). Churchill was injured on the deck of his crane barge on October 9, 1974, while giving signals to a crane operator engaged in unloading a caisson from a supply barge (Pet. App. 30a; A. 9-11). As the caisson was being lifted, the "tag line" attached to the bottom of the caisson to keep it from turning suddenly became taut and struck Churchill with enough force to hurl him about 15 feet (Pet. App. 3a; A. 11-12), resulting in injuries to his left leg, thumb, and head (Pet. App. 30a). 2. Churchill filed a claim for compensation under the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. (& Supp. III) 901 et seq. Respondent Perini denied that Churchill was covered by the Act, and the case was referred to an administrative law judge (ALJ) for a formal hearing on the coverage issue, pursuant to 33 U.S.C. (& Supp. III) 919. After an evidentiary hearing, the ALJ held that Churchill's injury was not covered by the Act. The ALJ concluded that Churchill was not "engaged in maritime employment" within the meaning of Section 2(3) of the Act, 33 U.S.C. 902(3), because his job did not have a significant relationship to navigation and commerce over navigable waters (Pet. App. 31a): It is determined here that claimant's employment was not maritime in (the) traditional sense, but was customary construction work. Indeed, it is typical of the support tasks performed for any construction project -- irrespective of location. Mere construction over navigable water here does not magically convert his work, lacking even a remote connection to navigation and commerce, into maritime employment. /2/ Churchill and the Director, Office of Workers' Compensation Programs, appealed to the Benefits Review Board pursuant to 33 U.S.C. 921(b)(3). The Board consolidated the appeals with five other cases involving Perini employees and affirmed the ALJ'S denial of coverage by a 2-1 vote (Pet. App. 11a-16a). Relying on the Second Circuit's second decision in Fusco II, supra, 622 F.2d at 1111, /3/ which involved the same employer and construction of the same project, the Board held that marine construction workers building facilities that are not ultimately used in navigation or commerce on navigable waters are not engaged in "maritime employment" (Pet. App. 13a). The Board also rejected the contention that Churchill's duties, which included unloading construction materials from barges, were alone sufficient to bring him within the Act's coverage as a "person engaged in longshoring operations" within the meaning of Section 2(3) of the Act, 33 U.S.C. 902(3) (Pet. App. 14a-15a). Board Member Miller dissented because, in his view, "all injuries sustained in the course of employment by employees over 'navigable waters,' as that term was defined prior to the 1972 Amendments, are covered under the (amended) Act" (id. at 17a). He also contended that this Court's rationale in Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715 (1980), compelled a finding of coverage under the amended federal Act (Pet. App. 21a-22a). Churchill sought review of the Board's decision in the court of appeals pursuant to 33 U.S.C. 921(c). The Director participated as a respondent and filed a brief in support of Churchill's petition for review. The court denied the petition, relying on its earlier denial of coverage to workers injured on the same construction project in the Fusco litigation. /4/ The court concluded that a marine construction worker who is injured while unloading a barge upon actual navigable waters is not a covered "maritime" employee under the amended Act because his employment lacks a "significant relationship to navigation or to commerce on navigable waters" (Pet. App. 2a n.1). SUMMARY OF ARGUMENT The court of appeals improperly denied coverage under the Longshoremen's and Harbor Workers' Compensation Act to a maritime worker injured on actual navigable waters. The original LHWCA was enacted by Congress in 1927 in response to decisions of this Court that held that state workers' compensation remedies could not constitutionally extend to employees injured upon actual navigable waters if their employment possessed a direct relationship to navigation or commerce. For nearly 35 years following the passage of the original legislation, federal workers struggled under the "maritime-but-local" doctrine to determine which injuries over navigable waters were remediable under state compensation acts and which fell exclusively within the jurisdiction of the LHWCA because the employment at issue was significantly related to navigation or commerce. In Davis v. Department of Labor, 317 U.S. 249 (1942), and Calbeck v. Travelers Insurance Co., 370 U.S. 114 (1962), this Court finally put an end to this "jurisdictional monstrosity" by declaring that federal jurisdiction extended to all injuries occurring on actual navigable waters, regardless of whether the particular employment involved was directly related to traditional concepts of navigation or commerce. Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 720 (1980). The 1972 amendments to the LHWCA do not revive the "jurisdictional dilemma" that prevailed prior to this Court's "clarifying opinions in Davis and Calbeck." Sun Ship, Inc. v. Pennsylvania, supra, 447 U.S. at 720. The undisputed congressional intent behind the 1972 amendments was to extend LHWCA coverage ashore "to permit a uniform compensation system to apply to employees who would otherwise be covered * * * for (only) part of their activit(ies)." S. Rep. No. 92-1125, 92d Cong., 2d Sess. 13 (1972); H.R. Rep. No. 92-1441, 92d Cong., 2d Sess. 10-11 (1972). Congress expressly declared that the amendments did not withdraw coverage from "employees traditionally covered." S. Rep. No. 92-1125, supra, at 16. Thus, the amendments were not designed to withdraw the coverage that previously had been held to exist for employees injured while working on actual navigable waters. Congress, moreover, explicitly repealed a provision of the 1927 Act, that had been interpreted as restricting federal coverage to employment on the water possessing a significant relationship to navigation or commerce. There is therefore no basis for the court of appeals' conclusion that federal jurisdiction under the amended Act extends only to employment possessing a significant relationship to navigation or commerce. Preserving LHWCA coverage for all injuries occurring on actual navigable waters is entirely consistent with the statutory scheme of the amended Act. Coverage under the Act as amended in 1972 hinges upon the "situs" of the injury and the "status" of the injured employee. Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 265 (1977). An injury occurring on actual navigable waters clearly meets the "situs" test. 33 U.S.C. 903(a). A worker injured in the course of his regular employment over navigable waters, furthermore, meets the "status" test of Section 2(3) of the Act, 33 U.S.C. 902(3). Workers injured upon actual navigable waters are perforce engaged in "maritime employment," because they must daily face the difficulties, dangers, and challenges of working in a marine environment. This conclusion does not conflict with this Court's reasoning in P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 79 (1979), that "maritime employment" embodies "an occupational rather than a geographic concept." Nothing in that opinion purports to exclude the location of an employee's work activities from the determination of "maritime employment." Rather, the opinion stresses that "the crucial factor" in making that determination "is the nature of the activity to which a worker may be assigned." 444 U.S. at 82. No factor is more important in evaluating the maritime nature of any employment than the fact that it takes place upon actual navigable waters. Moreover, restricting federal coverage under the LHWCA to employment on the water that meets the technical dictates of the "navigation or commerce" test would undermine the central purpose of the amended Act. The federal compensation remedy embodied in the LHWCA was designed to provide workers with "sure and certain relief" (Davis v. Department of Labor, supra, 317 U.S. at 254) without "uncertainty as to the source, state or federal, of that remedy." Calbeck v. Travelers Insurance Co., supra, 370 U.S. at 124. Confining LHWCA coverage to employment meeting the "navigation or commerce" test would result in the creation of two discrete jurisdictional spheres for injuries occurring upon navigable waters: the LHWCA would apply solely to employment meeting the "navigation or commerce" test, whereas state compensation remedies alone would apply to injuries lacking that elusive requirement. Because "the boundary at which state remedies (give) way to federal remedies (is) far from obvious in individual cases * * * the injured worker (would therefore be) compelled to make a jurisdictional guess before filing a claim," with the price of error being "unnecessary expense and possible foreclosure from the proper forum by statute of limitations." Sun Ship, Inc. v. Pennsylvania, supra, 447 U.S. at 718. This result, which the Court has consistently rejected, should not be permitted to prevail under the 1972 amendments. Unless federal jurisdiction under the amended Act is preserved for all injuries occurring upon actual navigable waters, this and other federal courts will once again become embroiled in the futile search for a definite dividing line between federal and state jurisdiction in individual cases. Injured employees seeking coverage under the Act will be "thrust * * * into the same jurisdictional peril from which they were rescued by Davis and Calbeck v. Travelers Insurance Co." (Sun Ship, Inc. v. Pennsylvania, supra, 447 U.S. at 725), and the administrative tribunals and federal courts administering the Act will confront a rapidly expanding maze of conflicting coverage decisions. "The legislative policy animating the LHWCA'S landward shift was remedial; the amendments' framers acted out of solicitude for the workers." Sun Ship, Inc. v. Pennsylvania, supra, 447 U.S. at 725-726. To affirm the decision below "would blunt the thrust of the 1972 amendments, and frustrate Congress' intent to aid the injured maritime laborers." Id. at 726. ARGUMENT A MARINE CONSTRUCTION WORKER INJURED UPON ACTUAL NAVIGABLE WATERS, WHO WOULD HAVE BEEN COVERED BEFORE THE 1972 LHWCA AMENDMENTS, IS "ENGAGED IN MARITIME EMPLOYMENT" WITHIN THE MEANING OF SECTION 2(3) OF THE AMENDED ACT The court of appeals' decision denies coverage under the Longshoremen's and Harbor Workers' Compensation Act to a marine construction worker who was injured upon actual navigable waters and who would have been covered under the Act before the 1972 amendments. This case thus presents a straightforward issue of statutory construction left unanswered by the Court in Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 265 n.25 (1977): "(W)hether Congress excluded people who would have been covered before the 1972 Amendments; that is, workers who are injured on navigable waters as previously defined." The court of appeals erred in concluding that Section 2(3) of the amended Act necessarily demands that a worker injured on actual navigable waters demonstrate that his work bears a "significant relationship to navigation or to commerce on navigable waters'" (Pet. App. 2a n.1, quoting Fusco II, supra, 622 F.2d at 1113). This requirement, as we show below, is contrary to both the congressional intent in enacting the 1972 amendments and the past decisions of this Court that have rejected such a predicate for federal coverage. As a result of the erroneous application of this "navigation or commerce" test, the court of appeals denied LHWCA coverage to a worker who would have been covered prior to the 1972 amendments, /5/ solely because he was constructing a sewage treatment plant rather than a pier, dock, or some other harbor facility presumably more directly related to traditional navigation or commerce activities. A. In amending the Act in 1972, Congress intended to extend federal coverage to workers on shore, not to withdraw coverage from workers who are injured while at work on actual navigable waters The coverage of the Longshoremen's and Harbor Worker's Compensation Act has been inseparably linked with the troublesome question of delineating the scope of state and federal jurisdiction over maritime injuries. To understand fully the congressional intent behind the 1972 coverage amendments, therefore, it is necessary to trace once again the history of the conflict between federal and state jurisdiction in this area. See, e.g., Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 717-719 (1980); P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 72-74 (1979); Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 256-265 (1977). 1. Maritime jurisdiction before the 1927 Act The LHWCA was enacted in 1927 because of the states' constitutional inability to provide workers' compensation remedies for employment injuries occurring on navigable waters. /6/ In 1917, this Court held that a state could not apply its workers' compensation remedies to an injury sustained on a gangplank between a vessel and a wharf because the federal government has the sole power, under the admiralty clause of the Constitution, to regulate such occurrences on the navigable waters of the United States. Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917). Application of state workers' compensation law to such injuries would "conflict() with the general maritime law, which constitutes an integral part of the federal law under Art. III, Section 2 of the Constitution." Id. at 212. The Court reasoned that allowing state law to apply "would impair the harmony and uniformity which the constitutional grant to the Federal Government of the admiralty power was meant to assure." Calbeck v. Travelers Insurance Co., 370 U.S. 114, 117 (1962). Thus, a boundary was drawn between federal and state jurisdiction that came to be known as the Jensen line: injuries on the seward side of a pier were subject to federal maritime jurisdiction, and injuries shoreward of that line could be protected by state compensation acts. See generally Northeast Marine Terminal Co. v. Caputo, supra, 432 U.S. at 257. This coverage system proved unsatisfactory in practice, because "the amphibious nature of longshoremen's work made it desirable to have 'one law to cover their whole employment, whether directly part of the process of loading or unloading a ship or not'" (Northeast Marine Terminal Co. v. Caputo, supra, 432 U.S. at 257, quoting H.R. Rep. No. 639, 67th Cong., 2d Sess. 2 (1922)). In response to the Jensen decision, Congress twice passed statutes placing injuries upon the water within the reach of state compensation laws. Act of Oct. 6, 1917, ch. 97, 40 Stat. 395; Act of June 10, 1922, ch. 216, 42 Stat. 634. The Jensen line, however, was held to be unyielding. This Court declared both statutes to be unconstitutional delegations of federal admiralty power to the states. Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920); Washington v. W.C. Dawson & Co., 264 U.S. 219 (1924). As a result of Jensen and succeeding cases, thousands of maritime workers were denied the benefits of workers' compensation coverage. The rigors of the Jensen line, however, were somewhat softened during this period by the development of the "maritime-but-local" doctrine. Under that doctrine, state workers' compensation law could constitutionally be applied to some "maritime" employment -- that is, work on navigable waters -- if the particular maritime job was deemed "local in character." The Court's rationale for this seeming break in the Jensen line was that if employment was "local," application of state law would not work "material prejudice to the general maritime law," nor would it interfere with the proper harmony and uniformity of that law in its international and interstate relations. Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 477 (1922), citing Western Fuel Co. v. Garcia, 257 U.S. 233 (1921). Employment seaward of the Jensen line was held to be "maritime-but-local" and thus subject to state regulation if it bore no direct relationship to navigation or commerce. Calbeck v. Travelers Insurance Co., supra, 370 U.S. at 122-123. Compare Grant Smith-Porter Ship Co. v. Rohde, supra, 257 U.S. at 477 (local law could apply because the employment "had no direct relation to navigation"), with Northern Coal & Dock Co. v. Strand, 278 U.S. 142, 144 (1928) (local law could not apply because the job had a "direct relation to commerce and navigation.") The "maritime-but-local" doctrine, predictably, engendered considerable litigation. /7/ But, despite this litigation, "(n)o dependable definition of the area * * * where state laws could apply ever emerged" from the many decisions of this and other courts that attempted to identify direct relationships to navigation or commerce. Calbeck v. Travelers Insurance Co., supra, 370 U.S. at 119. 2. Coverage under the 1927 Act In response to this state of affairs, in which a maritime employee on the water was deprived of any compensation remedy if his work was deemed to have a direct relationship to navigation or commerce, Congress enacted the Longshoremen's and Habor Workers' Compensation Act, ch. 509, 44 Stat. 1424 et seq., in 1927. Under the original Act, coverage depended upon where an injury occurred. The general rule was that all injuries sustained during the course of employment on actual navigable waters were covered under the Act, while those incurred on land were not. Sun Ship, Inc. v. Pennsylvania, supra, 447 U.S. at 718 (piror to 1972 LHWCA comprehended 'all injuries sustained by employees on navigable waters'") (quoting Calbeck v. Travelers Insurance Co., supra, 370 U.S. at 124); G. Gilmore & C. Black, The Law of Admiralty 428 (2d ed. 1975). See also P.C. Pfeiffer Co. v. Ford, supra, 444 U.S. at 72-73; Nacirema Operating Co. v. Johnson, 396 U.S. 212, 218-220 (1969). /8/ Former Section 3(a) of the Act, 44 Stat. 1426 (previously codified at 33 U.S.C. (1970 ed.) 903(a)), provided that compensation was payable to an injured "employee" for any "injury occurring upon the navigable waters of the United States (including any dry dock) * * *." An "employee" was defined only in negative terms: seamen and persons engaged by a master to load, unload, or repair small vessels were excluded from coverage. See former Section 2(3), 44 Stat. 1425 (previously codified at 33 U.S.C. (1970 ed.) 902(3)). More important, Congress specifically rejected an exception to LHWCA coverage for employment "of no direct relation to navigation and commerce" because such an exemption "threatened to perpetuate * * * uncertainties of coverage." Calbeck v. Travelers Insurance Co., supra, 370 U.S. at 122. The Act as adopted used the term "maritime employment" only in a definitional section: an "employer" under the Act was defined as "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 dry dock)." 44 Stat. 1425. The "maritime employment" requirement of the 1927 Act was rarely discussed by the courts, however, because any employee injured while working on the water was assumed to provide the requisite "maritime employment" nexus. G. Gilmore & C. Black, The Law of Admiralty, supra, at 428; see also Pennsylvania R.R. v. O'Rourke, 344 U.S. 334, 339-340 (1953); Nogueira v. New York, N.H. & H.R.R., 281 U.S. 128, 131-132 (1930). As Professors Gilmore and Black note, the question whether a worker was employed by a statutory "employer" meeting the "maritime employment" test did not, "before the 1972 amendments, account() for any litigation." G. Gilmore & C. Black, The Law of Admiralty, supra, at 428. There was some litigation regarding whether particular workers were excluded from the Act as Jones Act seamen, but virtually none regarding whether particular workers were engaged by a statutory "employer." "Workers who are not seamen but who nevertheless suffer injury on navigable waters are no doubt (or so the courts have been willing to assume) engaged in 'maritime employment'. * * * (N)o one seems to have doubted that they could recover under the L(W)HCA, provided only that the proof satisfied the 'navigable waters' test." Ibid. /9/ The clearest pre-1972 analysis of when a particular employment can be considered "maritime" is contained in cases struggling with the "maritime-but-local" doctrine. The federal-state jurisdictional dilemma continued unabated after 1927 for those workers injured on navigable waters whose employment was arguably not directly related to navigation or commerce. Section 3(a) of the original Act provided that employees were covered only "if recovery * * * may not validly be provided by State law." 33 U.S.C. (1970 ed.) 903(a). Many courts construed this proviso as excluding from federal coverage any employment that was previously held to be within the constitutional reach of the states before the federal Act was passed, notwithstanding the fact that Congress had specifically rejected an exemption from LHWCA coverage for "employment of local concern." Calbeck v. Travelers Insurance Co., supra, 370 U.S. at 122 (emphasis deleted). Thus, courts applied with considerable travail the "navigation or commerce" test to determine whether a particular job was "maritime" within the scope of the federal Act, or "maritime-but-local" and therefore outside the coverage of the LHWCA. See, e.g., Travelers Insurance Co. v. Calbeck, 293 F.2d 52, 56 (5th Cir. 1961) ("those on the 'admiralty' side are exclusively covered by the Longshoremen's Act; those on the 'maritime but local' side are state"; footnote omitted), rev'd, 370 U.S. 114 (1962); Motor Boat Sales, Inc. v. Parker, 116 F.2d 789, 792-793 (4th Cir.), rev'd, 314 U.S. 244 (1941); Union Oil Co. v. Pillsbury, 63 F.2d 925 (9th Cir. 1933). After 15 years of struggling with the unpredictable "maritime-but-local" doctrine on a case by case basis, this Court attempted to bring some order to this federal-state jurisdictional quagmire in Davis v. Department of Labor, 317 U.S. 249 (1942). Davis was a maritime construction coverage case much like the instant one, involving a structural steelworker who drowned after falling from a barge while dismantling an abandoned bridge across a navigable river. 317 U.S. at 251. The question was whether a state workers' compensation law could apply in such a situation, even though the state supreme court had concluded that the claimant's employment was unquestionably maritime and beyond the limits of state coverage, because it was not of purely local concern. This Court noted that the claimant's employment occupied a "shadowy area within which, at some undefined and undefinable point, state laws can validly provide compensation." 317 U.S. at 253. Determination of whether a particular employment was "maritime" and strictly federal or "maritime-but-local," furthermore, had become "extremely difficult." Ibid. Notwithstanding the difficulty of the question, however, "employees are asked to determine with certainty before bringing their actions that factual question over which courts regularly divide among themselves and within their own membership. As penalty for error, the injured individual may not only suffer serious financial loss through the delay and expense of litigation, but discover that his claim has been barred by the statute of limitations in the proper forum while he was erroneously pursuing it elsewhere." Id. at 254. Noting that the "horns of the jurisdictional dilemma press as sharply on employers as on employees" (id. at 255), the Court determined that some employment on navigable waters lay within a "twilight zone" that could validly be reached by either state workers' compensation law or the LHWCA. Id. at 256. The Court therefore reversed the decision of the state supreme court and permitted recovery under state law notwithstanding the fact that the technical dictates of the "maritime-but-local" doctrine did not clearly indicate that result. The final blow to the "maritime-but-local" doctrine came 20 years after Davis in Calbeck v. Travelers Insurance Co., 370 U.S. 114 (1962). In Calbeck, federal coverage was sustained for workers injured while constructing new vessels afloat upon navigable waters -- maritime employment that traditionally had been held to be "local" and thus subject to exclusive state jurisdiction. See Grant Smith-Porter Ship Co. v. Rohde, supra. The Court completely abolished the "maritime-but-local" exception to federal coverage for injuries occurring on navigable waters, reasoning that by enacting the LHWCA Congress had intended to establish concurrent jurisdiction over "maritime-but-local" employment: injuries on the water having no direct relationship to navigation or commerce were compensable under both federal and state law. "There emerges from the complete legislative history" of the federal Act, the Court said, "a congressional desire for a statute which would provide federal compensation for all injuries to employees on navigable waters; in every case, that is, where Jensen might have seemed to preclude state compensation." Calbeck v. Travelers Insurance Co., supra, 370 U.S. at 120-121. The Court noted (id. at 122-123) that Congress had deleted from the original version of the Act a "local concern" exception to LHWCA coverage for employment of "no direct relation to navigation and commerce" because of the demonstrable uncertainty of such a test. Although the courts had imported the test back into the Act, after years of litigation "the contours of the 'local concern' concept * * * have remained necessarily vague and uncertain." Id. at 124-125. This confusion negated one of "the chief purposes of the Longshoremen's Act" (id. at 126), because the Act was "designed to ensure that a compensation remedy existed for all injuries sustained by employees on navigable waters, and to avoid uncertainty as to the source, state or federal, of that remedy." Id. at 124. The Court therefore concluded that Congress intended the Act to reach "all those cases of injury to employees on navigable waters as to which Jensen * * * had rendered questionable the availability of a state compensation remedy" (id. at 126; footnote omitted), whether or not the particular maritime employment was directly related to navigation or commerce and thus also "within the constitutional reach of a state workmen's compensation law" (id. at 127; footnote omitted). 3. Coverage under the 1972 amendments Following this Court's decisions in Davis and Calbeck, it was finally clear that federal coverage extended to all injuries occurring over actual navigable waters. Other decisions of the Court, moreover, made it equally clear that coverage stopped at the water's edge. Nacirema Operating Co. v. Johnson, supra, 396 U.S. at 219. See also Sun Ship, Inc. v. Pennsylvania, supra, 447 U.S. at 719 ("(I)njuries suffered beyond navigable waters -- albeit within the range of federal admiralty jurisdiction -- were remediable only under state law"). But, while the jurisdictional reach of the LHWCA was finally settled (injuries occurring on the water were covered under the Act, those occurring on land were not), the coverage provided by the Act was somewhat irrational. Amphibious workers, such as longshoremen, continually walked in and out of federal coverage during the course of their working day, each time they crossed the Jensen line. In 1972, Congress undertook the first major revision of the LHWCA since 1927. The main concern of these amendments, however, "was not with the scope of coverage but with accommodating the desires of three interested groups: (1) shipowners who were discontented with the decisions allowing many maritime workers to use the doctrine of 'seaworthiness' to recover full damages from shipowners regardless of fault; (2) employers of the longshoremen who, under another judicially created doctrine, could be required to indemnify shipowners and thereby lose the benefit of the intended exclusivity of the compensation remedy; and (3) workers who wanted to improve the benefit schedule deemed inadequate by all parties." Northeast Marine Terminal Co. v. Caputo, supra, 432 U.S. at 261 (footnote omitted). Congress resolved these concerns by eliminating "seaworthiness" suits by maritime employees covered under the Act, outlawing indemnification actions by shipowners, and substantially increasing the benefits payable under the Act. Id. at 261-262. While the coverage of the 1927 Act was not a major motivating factor behind the 1972 amendments, the substantially increased benefit schedule of the amended Act heightened the perceived irrationality of the Jensen line's demarcation of federal coverage. Northeast Marine Terminal Co. v. Caputo, supra, 432 U.S. at 262-263. As the Senate report on the amendments stated: "It is apparent that if the Federal benefit structure embodied in (the) 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 * * *." S. Rep. No. 92-1125, 92d Cong., 2d Sess. 13 (1972). The report noted 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." Ibid. Congress, therefore, extended LHWCA coverage ashore for the first time by defining certain areas landward of the Jensen line as "navigable waters" under the Act. Thus, amended Section 3(a) directs that compensation be paid for death or disability resulting 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)." 33 U.S.C. 903(a). This shoreward extension of coverage solved a longstanding problem for longshoremen, shipbuilders, and other amphibious workers who, under the old Act, had walked in and out of coverage during the course of their working day. See S. Rep. No. 92-1125, supra, at 13; H.R. Rep. No. 92-1441, 92d Cong. 2d Sess. 10-11 (1972); Northeast Marine Terminal Co. v. Caputo, supra, 432 U.S. at 273. But, in the course of resolving this problem, Congress created a new one: many employees working in the newly covered shoreside areas were engaged in employment with no maritime connection whatsoever. While such workers had rarely wandered onto the covered situs when the Act was limited to injuries on navigable waters, with the Act's newly expanded situs "it became necessary to describe affirmatively the class of workers Congress desired to compensate." Id. at 264. Congress, therefore, amended the definition of "employee" to cover "person(s) engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker * * *." 33 U.S.C. 902(3). The question presented here is whether the "maritime employment" requirement of Section 2(3) has placed some traditionally covered workers outside the protection of the amended Act. Although the legislative history of the 1972 coverage amendments is not extensive, the indisputable congressional purpose behind those amendments was to expand coverage under the Act "to protect additional workers." S. Rep. No. 92-1125, supra, at 1 (emphasis added). P.C. Pfeiffer Co. v. Ford, supra, 444 U.S. at 73; Northeast Marine Terminal Co. v. Caputo, supra, 432 U.S. at 251. Contrary to the court of appeals' conclusion, Congress clearly did not intend to exclude from coverage any employee who was injured during the course of his regular employment on actual navigable waters and who would have been covered under the original Act. The amendments to Section 2(3) of the Act, defining "employee," and to Section 3(a), the general coverage provision, were discussed in both the Senate and House reports under the heading: "Extension of Coverage to Shoreside Areas." S. Rep. No. 92-1125, supra, at 12-13; H.R. Rep. No. 92-1441, supra, at 10-11. The unmistakable assumption of the reports is that existing coverage for injuries on the water would remain intact; the amendments merely extended LHWCA coverage to shoreside activities not previously covered. /10/ "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." S. Rep. No. 92-1125, supra, at 13; H.R. Rep. No. 92-1441, supra, at 10-11. Churchill, like all amphibious workers, was "covered by this Act for part of (his) activity" before the amendments. Congress meant to extend that coverage to his activities ashore -- not to withdraw it from his work afloat. Indeed, this congressional intent is explicitly stated in the Senate report: (A)mend(ed) section 2(3) * * * specifically includes any longshoreman or other person engaged in longshoring (sic) operations, and any harborworker, including a ship repairman, shipbuilder and shipbreaker. It does not exclude other employees traditionally covered * * *. S. Rep. No. 92-1125, supra, at 16 (emphasis added). There is, furthermore, absolutely no hint in the legislative history of the 1972 amendments that Congress intended to revive the "maritime-but-local" doctrine by requiring that workers injured on actual navigable waters demonstrate a "substantial relationship to navigation or commerce" before becoming eligible for federal benefits. To the contrary, Congress in 1972 eliminated the former requirement that LHWCA coverage be extended only if recovery "may not validly be provided by State law" (former Section 3(a), 44 Stat. 1426 (previously codified at 33 U.S.C. (1970 ed.) 903(a)). Prior to this Court's unravelling of the "maritime-but-local" doctrine in Davis and Calbeck, that provision frequently had been cited as limiting federal coverage on the water to employment possessing a significant, albeit ill-defined, relationship to navigation and commerce. See Calbeck v. Travelers Insurance Co., supra, 370 U.S. at 136 (Stewart, J., dissenting). Far from imposing such a requirement anew, then, the 1972 amendments affirmatively evidence Congress' intent to do away with the troublesome "maritime-but-local" doctrine and its unpleasant baggage -- the "navigation or commerce" test. As this Court noted in Sun Ship, Inc. v. Pennsylvania, supra, 447 U.S. at 721, "(i)t would be a tour de force of statutory misinterpretation" to conclude that congressional amendments that removed phrasing arguably establishing a navigaiton or commerce test also "manifest(ed) the intent to command such (a test)." Finally, withdrawing LHWCA coverage from workers like Churchill who are injured on actual navigable waters thwarts one of the primary congressional objectives behind enactment of the 1972 amendments. As noted earlier, one of the fundamental concerns prompting the amendments was Congress' desire to eliminate strict liability "seaworthiness" suits by maritime workers against vessel owners. The 1972 amendments abolished such suits for all "person(s) covered under this (Act)." 33 U.S.C. 905(b). If marine construction workers like Churchill are not covered by the LHWCA, however, they are also freed from the constraint of 33 U.S.C. 905(b). Aparicio v. Swan Lake, 643 F.2d 1109, 1116 (5th Cir. 1981). Since Churchill, at the time of his injury, was "working on board (a vessel) in navigable waters," he is almost certainly "entitled to the seaman's traditional and statutory protections," including the right to a strict liability tort recovery under the "seaworthiness" doctrine, because he was "doing a seaman's work and incurring a seaman's hazards." Seas Shipping Co. v. Sieracki, 328 U.S. 85, 99 (1946); Aparicio v. Swan Lake, supra, 643 F.2d at 1116-1118. A broad subject area therefore remains for utilization of the seaworthiness remedy Congress intended to abolish. S. Rep. No. 92-1125, supra, at 10. The 1972 amendments should not be construed in a way that conflicts so sharply with expressed congressional intent. Congress did not inadvertently withdraw coverage from some workers by adding the "maritime employment" requirement to Section 2(3) of the amended Act, 33 U.S.C. 902(3). The legislative design to retain the traditional coverage of the 1927 Act is clearly and forcefully expressed in the legislative history of both Sections 2(3) and 3(a) of the amended Act. Nor was Congress blind to the troubled courtroom history of the LHWCA. Instead of mandating that courts undertake a frustrating and perhaps futile search for "substantial relationships to navigation or commerce" under the amended Act, Congress removed language from the Act that had previously been construed to require such an inquiry. See Sun Ship, Inc. v. Pennsylvania, supra, 447 U.S. at 720-721. This evidence is flatly inconsistent with the court of appeals' view that the 1972 amendments somehow stripped workers of pre-existing coverage under the 1927 Act. "If Congress intended a result so drastic, it is not unreasonable to expect that it would have said so expressly." NLRB v. Bell Aerospace Co., 416 U.S. 267, 285 n.13 (1974). See American Tobacco Co. v. Patterson, No. 80-1199 (Apr. 5, 1982), slip op. 8-9 n.6. B. The "maritime employment" requirement of the amended Act does not incorporate the previously discredited "significant relationship to navigation or commerce" test The Second Circuit has not always demanded a "significant relationship to navigation or commerce" before finding coverage under the 1972 amendments for injuries occurring on actual navigable waters. In earlier litigation involving the same employer and construction project involved in the present case, the court concluded that marine construction workers who were injured on the water and who would have been covered under the 1972 Act retained their status as "maritime" employees under the 1972 amendments. See Fusco v. Perini North River Associates, 601 F.2d 659 (2d. Cir. 1979) (Fusco I), vacated and remanded, 444 U.S. 1028, rev'd on remand, 622 F.2d 1111 (1980) (Fusco II), cert. denied, 449 U.S. 1131 (1981). /11/ In Fusco I, after thoroughly analyzing the judicial construction of the LHWCA and the legislative history of the 1972 amendments, the Second Circuit concluded that "Congress took it for granted that injuries occurring upon water were covered and would remain covered. There was no indication that Congress considered withdrawing existing coverage or eligibility" (601 F.2d at 669 (emphasis in original)). The court thus rejected the "significant relationship to navigation or commerce" test, reasoning that when the Senate Committee stated that the amended Act "does not exclude other employees traditionally covered" (S. Rep. No. 92-1125, supra, at 16), it obviously meant all employees previously covered by the Act and not merely those whose work was traditionally deemed directly related to navigation or commerce. 601 F.2d at 667. The analysis of the Fusco I court is sound, and its approach has been followed by other courts of appeals. The Fifth Circuit recently cited the Fusco I opinion and quoted from it at length in finding LHWCA coverage for a night watchman who fell through an open hatch of a vessel afloat on navigable waters. Holcomb v. Robert W. Kirk & Associates, Inc., 655 F.2d 589, 592-593 (1981), petition for cert. pending, No. 81-1109. See also Boundreaux v. American Workover, Inc., 664 F.2d 463, 467 (5th Cir. 1981), rehearing en banc granted, No. 80-3287 (Jan. 11, 1982). The Fourth Circuit used similar reasoning in declaring that a marine construction worker who was injured while constructing a bridge across the James River was a "maritime employee" within Section 2(3) of the amended Act. LeMelle v. B. F. Diamond Construction Co., No. 81-1559 (4th Cir. Mar. 25, 1982), slip op. 4-5. The court wrote that it "is not necessary to relate again the tortured history of employee coverage under the LHWCA except to note that bridge construction and demolition workers employed over navigable water were covered prior to the 1972 amendments" (slip op. 5). Quoting from its earlier opinion in Brown & Root, Inc. v. Joyner, 607 F.2d 1087, 1090 (4th Cir. 1979), cert. denied, 446 U.S. 981 (1980), the court concluded (slip op. 5): (W)e are confident that employment held to be traditionally maritime under the former Act has not been stripped of its maritime character by the 1972 amendments. The Second Circuit, however, unfortunately abandoned this analysis in Fusco II, supra, 622 F.2d at 1111, and in the present case. /12/ Instead of considering past judicial experience in the construction of the LHWCA and the express congressional intent to retain traditional coverage under the amended Act, the court determined that only activities bearing "a significant relationship to navigation or to commerce on navigable water" are "maritime" under Section 2(3) of the 1972 amendments (Pet. App. 2a n.1). This approach threatens to frustrate the central purpose of the LHWCA, which was designed to provide the nation's maritime workers with sure and speedy access to an effective workers' compensation remedy. The "navigation or commerce" test, furthermore, conflicts with the rationale of this Court's recent opinions construing the amended Act because it threatens to recreate the "jurisdictional monstrosity" that existed prior to Davis v. Department of Labor, supra, and Calbeck v. Travelers Insurance Co., supra. Finally, denial of LHWCA coverage to employees who are injured on actual navigable waters creates substantial practical difficulties in administration of the Act, with various courts reaching divergent conclusions with regard to virtually identical factual situations. The 1972 amendments to the LHWCA are "remedial (legislation) designed to extend (federal) coverage * * *." Northeast Marine Terminal Co. v. Caputo, supra, 432 U.S. at 279. They should not be construed to reach these anomalous results. 1. Retaining LHWCA coverage for all injuries to workers occurring upon actual navigable waters is consistent with the statutory scheme of the 1972 amendments Recent decisions of this Court have established that coverage under the amended LHWCA hinges on "both the 'situs' of the injury and the 'status' of the injured." Northeast Marine Terminal Co. v. Caputo, supra, 432 U.S. at 265. Preservation of LHWCA coverage for workers injured upon actual navigable waters is entirely consistent with this statutory scheme, because such workers unquestionably are injured upon a covered situs while engaged in "maritime employment." Marine construction workers, like respondent Churchill, are engaged in "maritime employment" despite the fact that other land-based workers may perform similar duties. Loading and unloading supply barges and driving large caissons into the bed of a river while operating from a vessel floating on navigable waters differs in substantial degree from similar construction activities taking place solely upon dry land. Marine construction workers, unlike land-based workers, are constantly on, over, and surrounded by water. Their work is necessarily performed aboard barges, floating rafts, and other vessels. The job, furthermore, exposes them to conditions and hazards that are uniquely maritime: they must wear life jackets and use other protective marine equipment; they usually receive their construction materials and equipment by barge; and they must continually adhere to special procedures, both in the unloading of supplies and materials and in the construction process itself, in order to deal with the exigencies of work on the water. The courts have uniformly held that non-maritime skills, when applied to a maritime project, are "maritime" for coverage purposes. See, e.g., P. C. Pfeiffer Co. v. Ford, supra, 444 U.S. at 82-83; Hullinghorst Industries, Inc. v. Carroll, 650 F.2d 750, 756 (5th Cir. 1981), cert. denied, No. 81-693 (Jan. 11, 1982). Maritime construction skills applied to a supposedly non-maritime project -- such as the North River Pollution Control Project -- are, if anything, even more deserving of that label. See LeMelle v. B. F. Diamond Construction Co., supra, slip op. 2, 5-6 ("Although bridge demolition and construction is not classically maritime work under the 'ancient traditions of the sea,' it has long been merged with such work by the exigencies of modern coastal land and sea traffic"). There can be no doubt that a worker injured on actual navigable waters meets the "situs" requirement of the amended LHWCA. 33 U.S.C. 903(a). The practical realities of employment afloat navigable waters should likewise compel the conclusion that such a worker satisfies the "maritime employment" status provision of Section 2(3) of the Act, 33 U.S.C. 902(3). 2. The "navigation or commerce" test is not mandated by this Court's decision in P. C. Pfeiffer Co. v. Ford The court of appeals answered the argument that the 1972 amendments were not intended to remove pre-existing coverage under the LHWCA for workers injured on actual navigable waters by stating that these arguments "are precisely those made in Fusco I and rejected in Fusco II" (Pet. App. 4a). In Fusco II, supra, 622 F.2d at 1112-1113, the Second Circuit concluded that the "navigation or commerce" test for "maritime employment" under Section 2(3) of the Act was mandated by this Court's decision in P. C. Pfeiffer Co. v. Ford, supra. The court reasoned that because "maritime employment" is "an occupational rather than a geographic concept" (444 U.S. at 79), employment cannot be deemed "maritime" by virtue of its performance on the water -- it must possess a significant relationship to navigation or commerce. The Ford decision, however, did not create a "navigation or commerce" test for maritime employment, and nothing in that opinion withdraws from the category of maritime employees those persons who are injured while working on actual navigable waters. Persons who work upon actual navigable waters are precisely the kind of employees Congress had in mind when it enacted the LHWCA. They are the persons who most need the protection of a federal compensation remedy because their injuries occur upon a situs that, under Southern Pacific Co. v. Jensen, supra, might not be reached by state workers' compensation law. Calbeck v. Travelers Insurance Co., supra, 370 U.S. at 125 (LHWCA covers all injuries on navigable waters to prevent possibility that "some injuries to employees on navigable waters might not be compensable under any statute"). The claimants in Ford were not such workers, because their injuries did not occur on actual navigable waters. Indeed, the question before the Court in Ford was whether cargo handlers -- whose work was done entirely on land -- could be "engaged in maritime employment" and therefore covered under the Act even if they were not subject to assignment aboard a vessel in the course of their working day. The question, in short, was whether workers could be engaged in maritime employment even if they never worked on actual navigable waters. In this context, the Court emphasized that the phrase "maritime employment" in Section 2(3) of the Act has an occupational content and does not incorporate an additional requirement that some portion of the worker's duties be performed afloat. 444 U.S. at 78-81. /13/ The Court therefore held that two marine terminal workers who transferred cargo between sea and land transportation were engaged in maritime employment by virtue of the very nature of their work, even though they were never required to perform any tasks on actual navigable waters. The Second Circuit in Fusco II correctly reasoned that work afloat is not a necessary precondition to a finding of "maritime employment" under the amended Act. But it went too far in concluding that the location of a person's work is irrelevant to the resolution of the "maritime employment" issue. There is no intimation in this Court's opinion in Ford that a person who works on actual navigable waters must demonstrate that his work "bear(s) a significant relationship to navigation or to commerce on navigable waters" (Fusco II, supra, 622 F.2d at 1113) before he will be deemed to be "engaged in maritime employment" (33 U.S.C. 902(3)). The Court in Ford had no occasion to address that issue because it was not germane to the claimants whose coverage under the Act was then in dispute. The very concept of "maritime employment" has an innate geographical link to navigable waters. By its nature, the term "maritime employment," which includes (among others) all "harborworkers," has both an occupational and a geographical context. The Court's decision in Ford was not intended to exclude latter in favor of the former. /14/ As the Fifth Circuit recently concluded, "though (Ford) clearly stated that the status requirement 'focuses upon the nature, not the location, of employment,' 100 S.Ct. at 337, (Ford) did not forbid a consideration of location to determine whether an activity is maritime commerce." Pippen v. Shell Oil Corp., 661 F.2d 378, 384 n.9 (1981). Thus, in Pippen, the Fifth Circuit found coverage under the LHWCA for a wireline operator working on a vessel used to drill gas wells. The court explicity noted that "(t)o reach this conclusion, of course, we must to some extent look to location. Whereas onshore drilling and production cannot be considered maritime commerce, offshore drilling and production can be considered maritime commerce because of its location." Ibid. (emphasis added). This Court's decision in Ford established that in setting the scope of maritime employment "the crucial factor is the nature of the activit(ies) to which a worker may be assigned." 444 U.S. at 82. The Court did not, however, mandate that the location of those activities over navigable waters is irrelevant to a determination of their nature. And there is perhaps no other factor quite as salient in the determination of the maritime nature of any activity as the fact that it actually takes place upon navigable waters. 3. Adoption of a "navigation or commerce" test would frustrate Congress' intent to provide a sure and effective compensation remedy for all injuries sustained on navigable waters As discussed above (see pages 15-18, supra), this Court disposed of the "maritime-but-local" exception to federal coverage under the 1927 Act largely because the vague and uncertain contours of the doctrine hopelessly muddled the jurisdictional reach of the LHWCA for workers injured on actual navigable waters. To ensure that injured workers had a sure and effective compensation remedy, this Court softened the jurisdictional boundary between state and federal remedies by extending federal coverage to all injuries occurring on navigable waters, regardless of whether a particular employment lacked a "significant" or "direct" relationship to navigation or commerce and was therefore within the reach of state law. The decision below, however, ignores the lessons of history by seizing upon the old "navigation or commerce" test utilized under the discredited "maritime-but-local" doctrine, "thereby resurrecting the jurisdictional monstrosity that existed before the clarifying opinions in Davis and Calbeck." Sun Ship, Inc. v. Pennsylvania, supra, 447 U.S. at 720. /15/ The underlying purpose of the LHWCA is to provide maritime workers with sure, certain access to a compensation remedy. See Sun Ship, Inc. v. Pennsylvania, supra, 447 U.S. at 720; Calbeck v. Travelers Insurance Co., supra, 370 U.S. at 124; Davis v. Department of Labor, supra, 317 U.S. at 254. The court of appeals' denial of federal coverage for work afloat unless a worker can show a "significant relationship to navigation or commerce" negates that central mission of the Act by creating two discrete jurisdictional spheres for injuries occurring upon actual navigable waters. If a particular employment on the water lacks a significant relationship to navigation or commerce, it is labelled "not maritime" and placed within the exclusive jurisdiction of state workers' compensation remedies. If, on the other hand, the employment has such a relationship, it falls within the federal domain -- and at some point may not, because of Southern Pacific Co. v. Jensen, supra, 244 U.S. at 216, be reached by state workers' compensation remedies. /16/ Thus, under the court of appeals' approach, workers injured on actual navigable waters are faced with a choice between two discrete remedies, state or federal, and should they stumble in their selection the "price of error (is) unnecessary expense and possible foreclosures from the proper forum by statute of limitations." Sun Ship, Inc. v. Pennsylvania, supra, 447 U.S. at 718, citing Davis v. Department of Labor, supra, 317 U.S. at 254. Workers injured on land do not face the same draconian choice confronting workers afloat. Following this Court's decision in Sun Ship, Inc. v. Pennsylvania, supra, 447 U.S. at 722, all injuries occurring upon the newly enlarged situs of the 1972 Act landward of the Jensen line are presumptively covered by state workers' compensation remedies. /17/ Thus, a land-based worker does not face an "either/or" choice: he is assured of a state remedy and can obtain supplemental federal coverage upon a proper showing of "maritime employment." The "horns of the jurisdictional dilemma" (Davis v. Department of Labor, supra, 317 U.S. at 255) created by the court of appeals' approach therefore press exclusively on workers injured upon actual navigable waters -- the group of workers the LHWCA originally was enacted to benefit. This Court should not construe the 1972 amendments, which were specifically designed by Congress to extend rather than to withdraw federal coverage, as mandating such an implausible and inequitable result. The 1972 Act is remedial legislation, and its "maritime employment requirement" 'must be liberally construed in conformance with its purpose, and in a way which avoids harsh and incongruous results.'" Northeast Marine Terminal Co. v. Caputo, supra, 432 U.S. at 268, quoting Voris v. Eikel, 346 U.S. 328, 333 (1953). Whatever the scope of "maritime employment" when work takes place entirely upon land, the term historically has been construed to include all work performed upon actual navigable waters. See, e.g., Pennsylvania R.R. v. O'Rourke, supra, 344 U.S. at 339-340 (railroad work is "maritime" when done on navigable waters); Sultan Ry. & Timber Co. v. Department of Labor, 277 U.S. 135, 137 (1928) (logging work is "maritime," although also local in character, when it is done on navigable waters). There is every reason to retain this classical construction of "maritime employment" under the 1972 amendments for injuries occurring on actual navigable waters. This construction is faithful to the express congressional intent to retain coverage under the amendments for workers that were "traditionally covered" (S. Rep. No. 92-1125, supra, at 16) and accords with the historic and common sense meaning of "maritime employment." See generally G. Gilmore & C. Black, The Law of Admiralty 428-430 (2d ed. 1975); 1A Benedict on Admiralty 517 (7th ed. 1973) (quoted in Fusco I, supra, 601 F.2d at 663 n.3); Watson, Broadened Coverage Under the LHWCA, 33 La. L. Rev. 683, 694 (1973). Perhaps most important, this approach avoids the hair-splitting distinctions regarding whether a particular activity has a "significant" relationship to navigation or commerce that proliferated under the "maritime-but-local" doctrine. See, e.g., Calbeck v. Travelers Insurance Co., supra, 370 U.S. at 119, 124-125. See also G. Gilmore & C. Black, The Law of Admiralty, supra, at 430. The "navigation or commerce" test for "maritime employment," moreover, is not a principled and rational means of limiting LHWCA coverage to workers who are "truly" maritime. Under the court of appeals' approach, a court resolving a LHWCA coverage question does not look to the conditions of employment or the maritime hazards confronting, for example, a marine construction worker. Rather, the court looks to the ultimate use of purpose of the facility under construction to determine whether it -- not the worker or his activities -- possesses some relationship to traditional maritime concepts. This is hardly a logical method of testing for coverage under the Act. Under the court of appeals' analysis, marine construction workers presumably are covered when building a pier, wharf, or other facility viewed as having some "direct relationship to navigation or commerce. Workers like Churchill, however, who are injured while building a water pollution control project, are denied coverage -- even though they are exposed to the same conditions and hazards of marine employment as their more "directly connected" colleagues. This reasoning leads to the same irrational, doctrinaire results that prevailed under the "maritime-but-local" rule, when workers building new ships were accorded state workers' compensation benefits while workers repairing old ships were denied them. See Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469 (1922). /18/ The LHWCA was designed by Congress to provide a workers' compensation remedy for all injuries "when Jensen might have seemed to preclude state compensation." Calbeck v. Travelers Insurance Co., supra, 370 U.S. at 120-121. The Act was not designed as a general aid to navigation and commerce. It therefore makes little sense to restrict the coverage of the Act solely to employment bearing a substantial relationship to those activities, in derogation of the fundamental congressional purpose to extend a "uniform compensation statute" to "hardworking men, engaged in a somewhat hazardous employment" upon navigable waters. S. Rep. No. 973, 69th Cong., 1st Sess. 16 (1926), quoted in Calbeck v. Traveler's Insurance Co., supra, 370 U.S. at 121. Rather than become embroiled in formalistic inquiries as to whether a particular activity on the water is more or less related to maritime commerce, this Court should embrace the logical and realistic view that employment on the water is by definition "maritime employment." The ultimate use of a facility under construction on navigable waters has no bearing on the basic maritime nature of the construction activities themselves. /19/ The original 1927 Act was "designed to ensure that a compensation remedy existed for all injuries sustained by employees on navigable waters" (Calbeck v. Travelers Insurance Co., supra, 370 U.S. at 124), and the 1972 amendments do not retreat from this fundamental purpose of the Act. A holding that workers injured upon actual navigable waters are necessarily engaged in "maritime employment" is essential "to avoid uncertainty as to the source, state or federal, of that remedy." Ibid. This Court's unwillingness in Sun Ship to impose a regime of mutually exclusive federal and state jurisdiction over land-based injuries should be equally dispositive of the present litigation. To paraphrase the Court's decision in Sun Ship, the jurisdictional dilemma "that results when employees must claim relief under one of two mutually exclusive compensation schemes is as acute when the jurisdictional boundary between schemes is (drawn between two maritime spheres), as when the line is (fixed upon land)." 447 U.S. at 720. The decisions in Davis and Calbeck, which were explicitly reaffirmed in Sun Ship inasmuch as Congress had expressed "no intimation of intent to overrule" them (447 U.S. at 722), settled once and for all that federal coverage under the LHWCA extends to all injuries occurring on actual navigable waters, regardless of whether a particular employment lacks a significant relationship to navigation and commerce and is therefore also within the reach of state workers' compensation laws. The 1972 amendments to the LHWCA should not be construed so as to revive the problematic "maritime-but-local" rule that wrought jurisdictional havoc under the 1927 Act. Here, as in Sun Ship, Inc. v. Pennsylvania, supra, 447 U.S. at 725-726, an "exclusivity rule" that would prohibit concurrent federal and state jurisdiction any time state coverage can be constitutionally extended to injuries on the water would thrust employees into the same jurisdictional peril from which they were rescued by Davis and Calbeck v. Travelers Insurance Co. (Citations and footnote omitted.) The legislative policy animating the LHWCA's landward shift was remedial; the amendment's framers acted out of solicitude for the workers. (Citations omitted.) To adopt (the exclusivity rule), then, would blunt the thrust of the 1972 amendments, and frustrate Congress' intent to aid injured maritime laborers. 4. Denial of LHWCA coverage to some workers injured on actual navigable waters would result in unacceptable difficulty in administering the LHWCA This Court finally rejected the first incarnation of the "navigation or commerce" test in Davis and Calbeck largely because, after years of litigation, the area of "local concern" with no direct relationship to navigation or commerce remained "undefined and undefinable." Davis v. Department of Labor, supra, 317 U.S. at 253. The court of appeals' reincarnation of the "navigation or commerce" test under the 1972 amendments presents the same debilitating ambiguity. The amorphous and elastic nature of the test, if it is approved by this Court, will create substantial uncertainty and difficulty in administering the LHWCA and will inevitably result in a large increase in generally unproductive litigation. Attempts by appellate courts to state the outer limits of the "navigation or commerce" test, moreover, will almost certainly be doomed to failure because, as this Court has already noted, "(t)here has never been any method of staking (those limits) out except in litigation in particular cases." Calbeck v. Travelers Insurance Co., supra, 379 U.S. at 125. The disparity of results possible under the "navigation or commerce" test has already led to numerous conflicts between and within the federal courts and the administrative tribunals of the Department of Labor. For example, the Fifth Circuit has found coverage under the "navigation or commerce" test for a worker performing a job virtually identical to that of respondent Churchill. In Gilliam v. Wiley N. Jackson Co., 659 F.2d 54 (5th Cir. 1981), petition for cert. pending, No. 81-1039, a worker on a bridge construction project was injured while standing on a supply barge supervising the transfer of piling from the barge onto the shore. The court found coverage because the claimant was unloading cargo (the pilings) from a vessel. This, the court said, was longshore work and "it follows a fortiori that (the) work had a realistically significant relationship to maritime activities involving navigation and commerce." Id. at 58. The court below, however, denied coverage to respondent Churchill, even though he also was injured on a barge while unloading caissons from a supply vessel. /20/ Holcomb v. Robert W. Kirk & Associates, Inc., supra, manifests similar confusion. There, the Benefits Review Board applied the "navigation or commerce" test to deny coverage to a vessel watchman, 11 B.R.B.S. 835 (1980), but the Fifth Circuit reversed, using the same test. Holcomb, moreover, dramatically illustrates the "jurisdictional peril" (Sun Ship, Inc. v. Pennsylvania, supra, 447 U.S. at 725) posed by the "navigation or commerce" test. The injured employee in Holcomb first pursued a claim for workers' compensation benefits under Florida law, which was denied by state compensation authorities on the ground that the injury fell within the coverage of the federal Act. 655 F.2d at 590. His subsequent claim under the LHWCA was in turn denied by an ALJ and the Benefits Review Board on the ground that his employment did not meet the "navigation or commerce" test. Only the Fifth Circuit's willingness to find coverage under the "navigation or commerce" test for this particular injury on actual navigable waters prevented Holcomb from being denied both state and federal compensation remedies. Disparate results under the "navigation or commerce" test have arisen not only among different courts, but also in connection with the same construction project -- and even in cases decided by the same judge. The Benefits Review Board and Second Circuit recently distinguished the decision below and found coverage for a marine construction worker injured on the sewage treatment plant project involved here. Matson v. Perini North River Associates, supra. These results followed because, unlike Churchill (who was working on the sewage treatment plant's substructure), the worker in Matson was working on a dock that would be used to load vessels with processed sludge. /21/ The Chief Judge of the Benefits Review Board, who authored the opinion in which the Board first adopted the "navigation or commerce" test, /22/ has also experienced difficulty reaching consistent results with identical factual situations under the "navigation or commerce" test. Although the judge joined in the decision denying coverage to the watchman in Holcomb v. Robert W. Kirk & Associates, Inc., supra, 11 B.R.B.S. at 841, he had earlier found coverage for a similar worker because "it has been established for many years that a watchman aboard a vessel is a maritime employee." McGrath v. E.J. Ring Detective Agency, Inc., No. 74-LHCA-245 (Oct. 4, 1974), slip op. 6. /23/ In sum, the "jurisdictional monstrosity that existed before * * * Davis and Calbeck" has rematerialized. Sun Ship, Inc. v. Pennsylvania, supra, 447 U.S. at 720. The decisions of the courts of appeals and the Benefits Review Board that attempt to apply the "navigation or commerce" test again reflect the confusion and uncertainty originally documented in Davis v. Department of Labor, supra, 317 U.S. at 253 & n.2. Unless the teachings of Davis and Calbeck are reaffirmed and the federal Act is held to encompass all work-related injuries occurring on actual navigable waters, the "navigation or commerce" test will continue to cause an overabundance of LHWCA coverage litigation. Coverage will once again have to be determined on a case by case basis. Calbeck v. Travelers Insurance Co., supra, 370 U.S. at 126. The Court should reject these unpalatable consequences. The 1972 amendments to the LHWCA are remedial and should be liberally construed. Northeast Marine Terminal Co. v. Caputo, supra, 432 U.S. at 268. The "navigation or commerce" test should not be applied so as to withdraw LHWCA coverage of injuries occurring on actual navigable waters. As the Court said of the "point of rest" theory rejected in Caputo (id. at 278-279): "A theory that nowhere appears in the Act, that was never mentioned by Congress during the legislative process, that does not comport with Congress' intent, and that restricts the coverage of a remedial Act designed to extend coverage" may not be used to deny recovery under the LHWCA. CONCLUSION The judgment of the court of appeals should be reversed. Respectfully submitted. REX E. LEE Solicitor General KENNETH S. GELLER Deputy Solicitor General RICHARD G. WILKINS Assistant to the Solicitor General T. TIMOTHY RYAN, JR. Solicitor of Labor DONALD S. SHIRE Associate Solicitor KERRY L. ADAMS Counsel for Appellate Litigation MARK C. WALTERS JOSHUA T. GILLELAN II Attorneys Department of Labor MAY 1982 /1/ This description of the project was adopted by the court below (Pet. App. 3a & n.2). /2/ The ALJ similarly concluded that Churchill was not a "harborworker," one of the specifically enumerated categories of maritime employees listed in Section 2(3), because of the nature of the facility being constructed. He reasoned that Churchill "was not building a dock, pier, wharf, or any other type of harbor facility. He was building a foundation for a sewage disposal plant which happened to extend over navigable water" (Pet. App. 31a-32a). /3/ See pages 24-26, infra. /4/ While admitting that "the question is certainly not free from doubt" (Pet. App. 6a), the court of appeals concluded that this Court's rationale in Sun Ship did not require a reformulation of the standard for coverage adopted in the Fusco litigation (id. at 4a-6a). /5/ Churchill cannot be viewed as a Jones Act seaman -- a "master or member of a crew" excluded from LHWCA coverage by Sections 2(3) and 3(a)(1) of the Act, 33 U.S.C. 902(3) and 903(a)(1) -- because he lacked any permanent connection with either the crane barge aboard which his injury occurred or the supply barge from which caissons were being unloaded. /6/ This early history of the federal law is set forth in Calbeck v. Travelers Insurance Co., 370 U.S. 114 (1962). /7/ See, e.g., Sultan Ry. & Timber Co. v. Department of Labor, 277 U.S. 135, 137 (1928); Millers' Indemnity Underwriters v. Braud, 270 U.S. 59, 65 (1926); Robins Dry Dock & Repair Co. v. Dahl, 266 U.S. 449, 457 (1925). See also 4 A. Larson, The Law of Workmen's Compensation Section 89.22 (1981) (and cases cited therein). /8/ Marine construction workers like respondent Churchill, in particular, were covered as long as they were injured on navigable waters. This was true regardless of whether the project under construction was intended to aid navigation or commerce on navigable waters. Compare Travelers Insurance Co. v. Branham, 136 F.2d 873 (4th Cir. 1943) (labor foreman building a dry dock), with Hardway Contracting Co. v. O'Keeffe, 414 F.2d 657 (5th Cir. 1968) (laborer building a bridge). See also Davis v. Department of Labor 317 U.S. 249 (1942) (concurrent state and federal coverage for a construction worker dismantling an abandoned bridge). /9/ Pennsylvania R.R. v. O'Rourke, supra, 344 U.S. at 339-340, and cases cited therein, make it clear that under the 1927 Act workers injured on actual navigable waters were engaged in "maritime employment" even when their jobs were the type typically performed on land. In O'Rourke, for example, the Court concluded that a railroad brakeman injured on a car float operation was covered under the Act. The Court's implicit assumption that the brakeman supplied the "maritime employment" nexus necessary to impose liability on the railroad as an "employer" under 33 U.S.C. 902(4) was strongly challenged by the dissent, which claimed that there was "but one question" in the case -- "whether (the brakeman) was engaged in 'maritime employment' at the time of his injury." 344 U.S. at 342 (Minton, J., dissenting). The majority, however, disregarded the dissent's invitation to look to the "nature of the employment" (344 U.S. at 343) to revoke the coverage of a worker injured on actual navigable waters. /10/ Such an assumption is not inconsistent with the fact that coverage under the amended Act hinges on "both the 'situs' of the injury and the 'status' of the injured." Northeast Marine Terminal Co. v. Caputo, supra, 432 U.S. at 265. A worker, like Churchill, who is injured on actual navigable waters is perforce engaged in maritime employment at the time of injury. Churchill's employment, for example, required the use of barges, float stages, life jackets, and special procedures for construction on water, and exposed him to conditions of employment that were uniquely maritime. See discussion at pages 27-28, infra. /11/ The Second Circuit concluded that both claimants in Fusco II had been injured on the water. 601 F.2d at 663. The record, however, failed to establish definitively that they were injured on actual navigable waters rather than on construction structures already permanently affixed to land. See 80-639 and 80-651 Brief for Federal Respondent in Opposition at 18. /12/ This Court vacated and remanded both Fusco I and Walter Tantzen, Inc. v. Shaughnessy, 601 F.2d 670 (2d Cir. 1979), for reconsideration in light of P. C. Pfeiffer Co. v. Ford, supra. 444 U.S. 1028; 446 U.S. 905. The court of appeals ruled in Fusco I that "any person whose principal duties are performed on navigable waters as that term was understood before 1972" remained covered under the amendments. 601 F.2d at 669. In Shaughnessy, however, the Second Circuit stated that only those persons whose principal duties were performed on actual navigable waters were covered by the 1972 Act. The Shaughnessy court plainly went too far in concluding that maritime employment requires some presence on actual navigable waters, but the Second Circuit's subsequent withdrawal in Fusco II from the proposition that maritime employment necessarily includes employment that is performed on the water is also in error. /13/ The argument advanced by the employer in Ford was that "the 1972 Act covers only workers who are working or who may be assigned to work over the water itself." 444 U.S. at 77 (emphasis added). This construction of "maritime employment" would have resulted in a geographic limitation narrower than the one contained in the Act's situs provision, 33 U.S.C. 903(a), and it was therefore rejected by the Court. 444 U.S. at 78. The mere inclusion of employment on the water within the category of "maritime employment," however, does not create a limitaion on the Act's coverage narrower than that contained in 33 U.S.C. 903(a), but rather furthers the remedial purposes of the 1972 amendments. See Northeast Marine Terminal Co. v. Caputo, supra, 432 U.S. at 268 (Act is to be liberally construed with "an expansive view of (its) extended coverage"). /14/ The Ford opinion itself made indirect use of the fact that the activities in question in that case took place alongside navigable waters. The Court noted that both claimants were engaged in "transferring goods between ship and land transportation." 444 U.S. at 81. /15/ The "significant relationship to navigation or commerce" test adopted by the court below was first used under the amended Act by the Ninth Circuit in Weyerhaeuser Co. v. Gilmore, 528 F.2d 957 (1975), cert. denied, 429 U.S. 868 (1976). See Fusco II, supra, 622 F.2d at 1113. In determining whether the amended Act extended coverage to a worker injured while sorting logs on actual navigable waters, the Ninth Circuit in Gilmore declined to look to Calbeck and other pre-1972 cases in interpreting "maritime employment." The court, instead, chose to "relegate those decisions to limbo because * * * the 1972 amendments radically changed the basis" of federal coverage. 528 F.2d at 960. The Ninth Circuit therefore denied coverage to a worker who would have been covered under this Court's decisions in Davis v. Department of Labor, supra, and Calbeck v. Travelers Insurance Co., supra, because his work lacked a "significant relationship to navigation or commerce." As sole authority for its use of the "navigation or commerce" test, the Ninth Circuit cited (528 F.2d at 961) Executive Jet Aviation, Inc. v. City of Cleveland, 609 U.S. 249 (1972). Executive Jet, however, is totally inapposite to claims under the LHWCA. 1A Benedict on Admirality Section 17, at 2-6 n.6 (7th ed. 1981). That case held that federal admiralty jurisdiction did not extend to tort claims arising from a crash of an airplane into navigable waters on a flight that would have been almost entirely over land, because there was no significant relationship to traditional maritime activity involving navigation and commerce. 409 U.S. at 272. As the Third Circuit has observed, "the language of Justice Stewart's opinion (in Executive Jet) was strictly limited to accidents involving aircraft * * *." Edynak v. Atlantic Shipping Inc., 562 F.2d 215, 220 (1977), cert. denied, 434 U.S. 1034 (1978). See 409 U.S. at 265, 267-268, 271-272, 274. The Court emphasized that the fact that the plane crashed into navigable waters was "wholly fortuitous." 409 U.S. at 266. Moreover, the Court carefully noted that its decision was reached "in the absence of legislation to the contrary" and that any applicable federal statute establishing a contrary principle would control. 409 U.S. at 274 & n.26. Marine construction workers, of course, are not "fortuitously" located on the water, but are required by the nature of their jobs to work on the water. The LHWCA, furthermore, is applicable federal law that controls the resolution of this case. The question here is one of statutory construction: what did Congress intend by the term "maritime employment"? The history of the Act, discussed above, reveals that the term is not limited to matters deemed to have some direct relationship to navigation or commerce. Finally, the concern that the Court expressed in Executive Jet for state authority, which is generally displaced upon appliction of admirality jurisdiction, has no relevance here. See 409 U.S. at 272-273. Coverage under the LHWCA is not exclusive of state law, but rather is concurrent and supplemental to the constitutional reach of local workers' compensation law. See Sun Ship, Inc. v. Pennsylvania, supra, 447 U.S. at 722. /16/ The Jensen decision retains vitality, and it is clear that at some point federal authority over maritime work becomes exclusive. Askew v. American Waterways Operators, 411 U.S. 325, 344 (1973); Hahn v. Ross Island Sand & Gravel Co., 358 U.S. 272, 273 (1959). /17/ In Sun Ship, Inc. v. Pennsylvania, supra, this Court endorsed the continuing validity of the Davis and Calbeck decisions and specifically found concurrent state and federal jurisdiction over land-based injuries occurring on the newly enlarged situs of the amended Act. The Court rejected the claim that the 1972 amendments displaced state jurisdiction of land-based injuries, because a mutually exclusive regime of federal and state jurisdiction over land would present the same "jurisdictional dilemma" that was found to be unacceptable over water under the 1927 Act. 447 U.S. at 720. Absent legislative history to "suggest a congressional decision to exclude state laws from the terrain newly occupied by the post-1972 Longshoremen's Act" (id. at 721), this Court declined to revert to "two mutually exclusive remedial systems" that would "'defeat the purpose of the federal act'" by depriving workers of "'sure and certain relief'" (id. at 720, quoting Davis v. Department of Labor, supra, 317 U.S. at 254). /18/ Indeed, the "navigation or commerce" test has led to differing results in LHWCA claims arising from the same construction project involved in this case. The Benefits Review Board and the Second Circuit found coverage under the amended Act for a worker who was injured while building a dock at the North River Pollution Control Project. Matson v. Perini North River Associates, 9 B.R.B.S. 967 (1979), aff'd mem., 661 F.2d 910 (2d Cir. 1981). Since the dock would be used to load processed sludge aboard vessels for disposal at sea, this construction worker, unlike respondent Churchill, was held to be engaged in maritime commerce. /19/ Inquiries into the ultimate use of a facility are arguably appropriate only when considering whether shoreside construction workers are covered by the Act. Such workers are always at least one step removed from the sea, but may nonetheless be covered as "harborworkers" if their work is linked to the sea by virtue of the intended use of the facility under construction. 33 U.S.C. 902(3). See Hullinghorst Industries, Inc. v. Carroll, 650 F.2d 750 (5th Cir. 1981), cert. denied, No. 81-693 (Jan. 11, 1982), and authorities cited therein. /20/ The Director argued below, in part, that Churchill was covered because his duties included the unloading of caissons and other materials from a supply barge. Although the Second Circuit did not specifically address this issue, it rejected a similar argument in Fusco II: "Longshoremen do not unload barges used in connection with (marine) construction." 622 F.2d at 1113. See also Pet. App. 4a. /21/ Each of the Board's three members filed a separate opinion: one found coverage under the "navigation or commerce" test, one concurred on the basis that all marine construction workers are covered, and one would have denied coverage under the "navigation or commerce" test. 9 B.R.B.S. 967 (1979). The Second Circuit summarily affirmed. 661 F.2d 910 (1981). /22/ Sedmak v. Perini North River Associates, 9 B.R.B.S. 378 (1978), aff'd sub nom. Fusco v. Perini North River Associates, supra. /23/ In another case predating the "navigation or commerce" test, involving a commercial diver being trained to make underwater inspections of various structures, the same judge wrote: It would be an absurdity, without equal, to find that an engineer performing a highly specialized function as a marine diver, which required him to descend 30 to 40 feet beneath the navigable waters of the United States, is not maritime in nature. Sharp v. Pacific Gas & Electric Co., 2 B.R.B.S. (ALJ) 25, 32 (1975), aff'd, 2 B.R.B.S. 381 (1975). Nevertheless, as Chief Judge of the Benefits Review Board, the judge subsequently applied the "navigation or commerce" test to the work of another commercial diver working on an underwater sewer pipeline and held that "claimant's work as a commercial diver constructing a sewage pipeline did not have a realistically significant relationship to maritime activities involving navigation and commerce over navigable waters." Brown v. Hydro-Dredge Corp., 13 B.R.B.S. 788, 791 (1981) (footnote omitted).