PENNSYLVANIA RAILROAD CO. v. O'ROURKE.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
Argued December 8, 1952.
Decided January 12, 1953.
Respondent was employed by petitioner railroad as a "freight brakeman" in its yards. His duties included work aboard petitioner's car floats moored in navigable waters. He was injured on a car float while releasing allegedly defective hand-brakes on a freight car which was being unloaded from the car float by a switch engine. Held: Respondent's remedy was under the Longshoremen's and Harbor Workers' Compensation Act exclusively, and not under the Federal Employers' Liability Act. Pp. 334-342.
194 F.2d 612, reversed.
Respondent's suit under the Federal Employers' Liability Act was dismissed by the District Court on the ground that the Longshoremen's and Harbor Workers' Compensation Act applied exclusively. 99 F. Supp. 506. The Court of Appeals reversed. 194 F.2d 612. This Court granted certiorari. 344 U.S. 811 . Reversed, p. 342.
John Vance Hewitt argued the cause and filed a brief for petitioner.
Richard C. Machcinski argued the cause for respondent. With him on the brief was Herbert Zelenko.
MR. JUSTICE REED delivered the opinion of the Court.
This certiorari requires us to determine which federal industrial accident statute - the Federal Employers' Liability Act or the Longshoremen's and Harbor Workers' Compensation Act - applies to the circumstances of this case. The petitioning railroad had employed O'Rourke in its Harismus Cove Yard at Jersey City since 1942 as a "freight brakeman." He worked as part of a five-man crew making up trains. Their duties included work on [344 U.S. 334, 335] the petitioner's car floats that moved freight and passenger cars from and to the Yard by water. The accident occurred during the night of January 28, 1948. Having already removed cars from three floats, the crew began to unload one carrying box cars. O'Rourke was required to climb up on each and release the hand-brakes, so that the cars could be pulled off the float by the engine. During the process, he fell from one and sustained the injury which is the basis for this suit. It was brought under the Federal Employers' Liability Act, 35 Stat. 65, 45 U.S.C. 51 et seq., 1 alleging a faulty brake mechanism maintained in violation of the Safety Appliance Acts, 27 Stat. 531, 45 U.S.C. 1 et seq., as the causative factor. The District Court granted the railroad's motion to dismiss on the ground that the Longshoremen's and Harbor Workers' [344 U.S. 334, 336] Compensation Act, 44 Stat. 1424, 33 U.S.C. 901 et seq., applied exclusively, 2 99 F. Supp. 506, but the Court of Appeals reversed on the ground that the Liability Act covered "railroad employees injured while engaged in railroad work on navigable waters." It decided respondent was "not employed in maritime employment . . . within the meaning of the Compensation Act." 194 F.2d 612, 615. We granted certiorari, 344 U.S. 811 , because of an alleged conflict with an earlier decision of this Court, Nogueira v. N. Y., N. H. & H. R. Co., 281 U.S. 128 .
The need for a federal statute of the Harbor Workers' Act type and scope became obvious after Southern Pacific Co. v. Jensen, 244 U.S. 205 , decided in 1917, wherein it was held that neither the Federal Employers' Liability Act nor the state compensation statute applied to a railroad employee engaged in loading a vessel of the company which had no relation to its railroading operations. Specifically, the state act was held inapplicable because the matter fell exclusively within the federal admiralty jurisdiction:
The Federal Employers' Liability Act, 45 U.S.C. 51, note 1, supra, gives a right of recovery due to defects because [344 U.S. 334, 338] of carrier negligence in, among other equipment, "boats." We need not, however, in this case, determine whether the car float is a "boat" that should be regarded as in substance a part of a railroad's extension. See Southern Pacific Co. v. Jensen, supra, at 213. It is clear that whether or not the boat is an extension of the railroad under the Liability Act is immaterial. The later Harbor Workers' Act by 903 (a) and 905 covered such injuries on navigable water and made its coverage exclusive. Nogueira v. N. Y., N. H. & H. R. Co., supra, at 130-131.
Whether or not the Harbor Workers' Act applies to the exclusion of the Employers' Liability Act, by virtue of the provisions of 33 U.S.C. 905, depends on 903 which defines its "coverage":
We are clear, however, that the emphasis on the nature of respondent's duties here misses the mark. The statute applies, by its own terms, to accidents on navigable waters when the employer has any employees engaged in maritime service. The portions of the Nogueira opinion quoted bring this railroad company within this category, since its car float operations are there held to be maritime, as they obviously are. Whether the injury occurred to an employee loading freight into cars on the float, as in the Nogueira case, or to one like respondent moving [344 U.S. 334, 340] loaded cars from a float could make no difference. Both employments are maritime. See Nogueira v. N. Y., N. H. & H. R. Co., supra, at 134. Besides 902 (4) is directed at the employer when it speaks of maritime employment, not at the work the employee is doing. The exclusive coverage of 903, 905 extends to an employee of an employer, made liable by 904, when he is injured, in the course of his employment, on navigable water. The Court of Appeals, we think, is in error in holding that the statute requires, as to the employee, both injury on navigable water and maritime employment as a ground for coverage by the Compensation Act. An injured worker's particular activity at the time of injury determines of course whether he was injured in the course of his employment within 902 (2), and whether he was a member of the crew of the vessel within the exceptions of 902 (3) and 903 (a) (1). This explains the emphasis on the factor of the individual's job in Parker v. Motor Boat Sales, Inc., 314 U.S. 244, 245 -246, and South Chicago Co. v. Bassett, 309 U.S. 251 . 5
The Court of Appeals thought that this Court's Nogueira opinion left open, as did the Second Circuit's opinion in Nogueira, "that the mere locus of the accident necessarily determines the right." 32 F.2d 179, at 182. We read the Nogueira case differently. There it was said:
[ Footnote 2 ] 33 U.S.C. 905:
[ Footnote 3 ] The portion of the section which we have omitted contains certain other conditions to applicability. None apply here. Respondent was not a member of the crew and the vessel was of more than eighteen tons.
[ Footnote 4 ] The Nogueira case was a unanimous decision. On the same day, Baizley Iron Works v. Span, 281 U.S. 222 , was decided with three dissents. An award of state compensation to Span was reversed because as a painter employed in the repair of a completed ship lying in navigable waters, a state compensation statute could not cover him.
[ Footnote 6 ] See Gussie v. Pennsylvania R. Co., 1 N. J. Super. 293, 64 A. 2d 244; Richardson v. Central R. Co. of N. J., 233 App. Div. 603, 253 N. Y. S. 789; Byrd v. N. Y. Central System, 6 N. J. Super. 568, 70 A. 2d 97. Zientek v. Reading Co., 93 F. Supp. 875, is contrary but as to this see our opinion in Desper v. Starved Rock Ferry Co., 342 U.S. 187, 190 ; Job v. Erie R. Co., 79 F. Supp. 698, and Rist v. Pittsburgh & Conneaut Dock Co., 104 F. Supp. 29.
[ Footnote 7 ] Baizley Iron Works v. Span, 281 U.S. 222 (a painter); De Bardeleben Coal Corp. v. Henderson, 142 F.2d 481 (member of shore gang); Travelers Ins. Co. v. McManigal, 139 F.2d 949 (carpenter); Travelers Ins. Co. v. Branham, 136 F.2d 873 (foreman of a concrete pouring gang); Standard Dredging Corp. v. Henderson, 57 F. Supp. 770 (member of shore gang); Ford v. Parker, 52 F. Supp. 98 (watchman). This list is illustrative but by no means exhaustive.
[ Footnote 8 ] Davis v. Department of Labor, 317 U.S. 249 , is an illustration of the difficulty encountered in applying this standard, happily not present in the case at bar. The Davis case avoided uncertainty in areas where state and federal statutes might overlap. In the present case we have two federal statutes and a line marking their coverage can be drawn.
MR. JUSTICE MINTON, with whom THE CHIEF JUSTICE, MR. JUSTICE BLACK, and MR. JUSTICE CLARK join, dissenting.
There is but one question here, and that is whether this respondent was engaged in "maritime employment" at the time of his injury. If he was, then the Longshoremen's and Harbor Workers' Compensation Act applies and not the Federal Employers' Liability Act. That was decided in Nogueira v. New York, N. H. & H. R. Co., 281 U.S. 128 . In that case, an employee of a railroad company was trucking interstate freight from the dock onto a car float for loading in a car standing on the car float. He was likened to a stevedore. Here this railroad employee was a brakeman engaged in removing freight cars from a car float by the use of an ordinary switch engine. The cars were in interstate commerce. Preparatory to the removal of the cars from the car float, it was this railroad employee's duty to let off the brakes. He alleged that while thus engaged, the railroad's use of a defective brake in violation of the Safety Appliance Act caused him to be thrown from the freight car to the deck of the car float and injured. The car float was upon navigable waters.
Was it maritime employment to get these cars off the car float or was it railroad employment? If this railroad employee had been doing his braking job on land, no one would have thought he was engaged in anything but railroad employment. Does it become maritime employment [344 U.S. 334, 343] because it happened over navigable waters? We think not. The place is the only thing that differentiates the situations. Place is admittedly not enough to make what is braking on land other than braking when done over navigable waters. Not only must we look to the place where the accident happened, but of equal importance is the nature of the employment. The nature of the employment is certainly not maritime. It was an ordinary railroad chore, done by an ordinary railroad brakeman. If this were not so, the train crews on trains being ferried across navigable streams in the United States would be employed in maritime service. With the imagination of the Court's opinion, a train crew, while crossing a bridge with its supports in a navigable stream, would be employed in maritime service.
We would treat this railroad employee as being in law what he was in real life, a railroad brakeman, engaged in interstate commerce and subject to the Federal Employers' Liability Act, and affirm this judgment. [344 U.S. 334, 344]