ISSUE: 2015

Calendar year 2015 was an unexceptional year for Longshore Act litigation.  There were no cases decided at the U.S. Supreme Court, and no new conflicts were created or exacerbated among the federal courts of appeal.

There were, however, some interesting (to me) cases at the federal courts of appeal and the U.S. Department of Labor’s Benefits Review Board (BRB) which dealt with recurring issues, restated general principles, and added to Longshore Act jurisprudence in an orderly manner.

First, here are some cases from the federal courts of appeal, and I note a principal issue in each that I found interesting.

Federal Circuit Courts of Appeal

Michael Alexander v. Express Energy Services Operating, L.P., Fifth Circuit, 5/7/15

This was an appeal in a Jones Act case in which the United States District Court for the Eastern District of Louisiana granted summary judgment to the employer on the issue of seaman status.

The plaintiff worked in the employer’s plug and abandonment department, plugging decommissioned oil wells on fixed platforms off the coast of Louisiana.  About 35% of the jobs involved adjacent lift boats holding permanent cranes.

The federal district court granted summary judgment, so the issue of seaman status did not go to a jury.  The court found that the plaintiff failed, as a matter of law, to meet the temporal prong of the test for seaman status established by the U.S. Supreme Court in Chandris, Inc.  v. Latsis  (515 U.S.. 347, 1995).

Counting only the time that he actually worked on the barges, the plaintiff failed to meet the requirement that he have a substantial employment relationship with a vessel or fleet of vessels under common ownership or control that was significant in terms of duration.  He spent less than 30% of his work time on vessels.

Although 35% of the jobs he was involved with included lift boats, this did not equate to the plaintiff spending 35% of his time on those lift boats.  The plaintiff asked the court to count all of his jobs that used an adjacent vessel toward the Chandris temporal requirement without regard to how much time he himself spent on the vessel.

The court did not agree.  “It is not sufficient under Chandris that Alexander was merely near a vessel on more than 30% of his jobs or that he performed some incidental work on a vessel on those jobs; to be a seaman, he must show that he actually worked on a vessel at least 30% of the time.”

The appeals court affirmed the district court’s order granting summary judgment and dismissing Alexander’s claims.

There was nothing unique about this case, nor was it a particularly close case, although the plaintiff’s argument was somewhat creative.  I just find most cases dealing with seaman status under the Jones Act to be interesting.  And these Jones Act cases are relevant to Longshore Act coverage issues because of the “uncertainty zone” of coverage between the two Acts.

While we’re on the subject of seaman status and appeals from the Eastern District of Louisiana:

Joseph R. Wilcox; Lisa Wilcox v. Wild Well Control, Incorporated; Superior Energy Services, Incorporated, Fifth Circuit, July 24, 2015

This was another seaman status case.  The plaintiff was employed by Max Welders as a welder on offshore oil platforms.  At the time of his injury he was working on a decommissioning job during which he would be living on a barge owned by Wild Well.  The parties agreed that for this two month contract he was the borrowed employee of Wild Well Control, Inc.

Although he could not meet the Chandris test for crewmember status during his overall employment with Max Welders, the claimant argued that his status as a seaman should be measured by the time he spent as a borrowed employee of Wild Well Control on the theory apparently that his status as a borrowed employee was equivalent to a new job or permanent reassignment to new duties.  The Fifth Circuit affirmed the district court’s dismissal of the Jones Act claims, indicating that it looked at the entirety of the plaintiff’s employment with both the nominal and borrowing employers rather than his duties only for the two month contract where he was a borrowed employee.

Another nice try, but another summary judgment for the employer.

Battelle Memorial Institute et al. v. Dicecca et al., First Circuit, 7/6/15

This was a Defense Base Act case in which the Zone of Special Danger was applied to cover a fatal injury suffered while the employee was traveling by taxi to a grocery store overseas in Tbilisi, Georgia.  The accident arose out of the conditions of employment, i.e. the conditions and obligations of employment in a dangerous locale and foreseeable risks associated with that employment.

Patrick Novak, et al. v. United States of America, Ninth Circuit, 7/30/15

In this case, the Ninth Circuit affirmed the district court’s dismissal of an action challenging the constitutionality of the Jones Act’s cabotage provisions (which prohibit foreign competition in the domestic shipping market).

The plaintiffs, several individuals as well as a corporation, reside in Hawaii and claimed pecuniary damages.  They alleged that the Jones Act impaired interstate trade between Hawaii and the mainland to such an extent that it violated the U.S. Constitution through an unlawful restraint of trade and interstate commerce.

The district court ruled that the plaintiffs failed to establish jurisdictional “standing” to challenge the Jones Act.

The Ninth Circuit, in affirming the district court’s dismissal, noted that even if the plaintiffs were able to establish standing they would still not prevail.  Enactment of the Jones Act was within the authority of Congress to regulate interstate commerce under the Commerce Clause (Article I, Section 8).

Another victory for supporters of the Jones Act.

Bahri Chirag and Dangwal Sandeed v. MT Marida Marguerite Schiffahrts; Marida Tankers, Inc.; and Heidmar Inc.; XYZ Ship Owner and XYZ Ship Employer, Second Circuit, 3/11/15

In this maritime negligence action the Second Circuit reviewed a district court’s dismissal of the case on the basis of forum non conveniens.  The standard of review is abuse of discretion.

In this case, the district court dismissed the action without first establishing personal jurisdiction over the defendants and without addressing maritime choice of law principles.

The plaintiffs were citizens of India suing a German defendant, a Marshall Islands defendant, and a U.S. defendant that the Court noted would most likely turn out not to be a proper party upon additional discovery.

The district court’s ruling was based on the following factors: 1) since the plaintiffs were residents of India and not U.S. citizens, there was less deference to their choice of forum, 2) an alternative forum existed in Germany, where one defendant was a German entity and another had stipulated to jurisdiction, and 3) both private and public interests weigh in favor of litigating the case in an alternate forum.

By “private interests” the court meant that the documentary evidence was in Germany, the ship’s owner and operator were based in Germany, the employment contracts were entered into in India, the crew consisted of 19 Indians, 2 Bangladeshis, and 1 Ukrainian, the plaintiff’s injuries were caused by Somali pirates, witnesses were located all over the globe (not in the U.S.), etc.

By “public interests” the court noted that the case would place a heavy administrative burden on the U.S. court, and the heart of the dispute was essentially foreign.  The U.S. had no real interest in the subject matter of the dispute.

This is not an unusual scenario.  Plaintiffs prefer U.S. courts.

Huntington Ingalls Industries v. Eason, Fourth Circuit.

This is a case involving a scheduled award for a knee injury and a subsequent claim for partial disability benefits during a flare up of the knee symptoms.  I won’t say anything here about the case because I’m going to be discussing this issue when I resume my list of landmark Longshore cases at the U.S. Supreme Court and the decision in Potomac Electric Power Co. (PEPCO) v. Director, Office of Workers’ Compensation Programs, 449 U.S. 268 (1980).

Ceres Marine Terminals, Inc. v. Director, Office of Workers’ Compensation Programs, U.S. Department of Labor, et al. (Wallace), Fourth Circuit, 8/13/15

In this unpublished case we have an illustration of the Aggravation Rule.  There is no requirement that the aggravating second injury fundamentally or permanently alter the claimant’s underlying condition.  A worsening of symptoms due to working conditions is sufficient.

Mark Barto v. Shore Construction,LLC; McDermott, Incorporated, Fifth Circuit, 9/4/15

In this case, the Fifth Circuit affirmed a district court’s damages award, and in the process offered a discussion with regard to the general damages and future lost wages components of a Jones Act damages award, and a determination of whether back surgery was merely palliative or was curative in the context of entitlement to “cure”.

Following successful back surgery but with permanent restrictions, in reviewing the district court’s damage award for pain and suffering, the Fifth Circuit made the point that the damages measure does not focus on pain only, but on permanent restrictions on the plaintiff’s normal life routines.  The plaintiff had testified in detail about all of the things he liked to do that he would no longer be able to do.

With regard to future lost wages, which are generally based on a seaman’s work life expectancy i.e., the average number of years that a person of a certain age will both live and work, the district court based its finding on a consideration of the testimony of competing expert economists and the court has considerable discretion here.

On the issue of responsibility for payment for back surgery, the court noted that the point of maximum “cure” depended on whether a particular medical procedure is merely palliative in nature, and serves only to relieve pain and suffering, or whether it is curative.

The purpose of the surgery in this case was to remove pressure from the nerve sac, which was causing at least some of the plaintiff’s pain.  The removal of pressure from the nerve sac would thereby better the plaintiff’s physical condition by curing the root cause of his pain rather than merely correcting the symptom (pain).  The surgery was therefore curative rather than merely palliative in nature.  The surgery also corrected a physical abnormality that existed in the plaintiff’s body (pressure on the nerve sac) and thereby bettered his physical condition by restoring it to a normal, healthy condition.

The court noted that in a maintenance and cure dispute, doubts are resolved in favor of the seaman.  “Where there are ambiguities or doubts as to a seaman’s right to receive maintenance and cure they are to be resolved in favor of the seaman”, quoting from Vaughan v. Atkinson, 369 U.S. 527 (1962).

The Fifth Circuit also discussed its “maximum recovery rule”.  It will decline to reduce damages where the amount awarded is not disproportionate to at least one factually similar case from the relevant jurisdiction.  This rule becomes operable if the award exceeds 133% of the highest previous recovery for a factually similar case.

It looks like most of the interesting Longshore Act cases at the federal appeals courts for 2015 were Jones Act or General Maritime Law cases.

For next time, calendar year 2015 cases at the Benefits Review Board.


John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation.  Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of the AEU Longshore Blog.

ISSUE: Landmark Cases, Part Three

Here’s my third nomination for “landmark” case status on our Longshore scale of cases decided at the U.S. Supreme Court.

But first, here’s parts of section 33 of the Longshore Act (33 U.S.C. 933).

“Sec. 33(a) If on account of a disability or death for which compensation is payable under this Act the person entitled to such compensation determines that some person other than the employer or a person or persons in his employ is liable in damages, he need not elect whether to receive such compensation or to recover damages against such third person.

(f) If the person entitled to compensation institutes proceedings within the period prescribed in section 33(b), the employer shall be required to pay as compensation under this Act a sum equal to the excess of the amount which the Secretary determines is payable on account of such injury or death over the net amount recovered against such third person.  Such net amount shall be equal to the actual amount recovered less the expenses reasonably incurred by such person in respect to such proceedings (including reasonable attorneys’ fees).

(g)(1) If the person entitled to compensation (or the person’s representative) enters into a settlement with a third person referred to in subsection (a) for an amount less than the compensation to which the person (or the person’s representative) would be entitled under this Act, the employer shall be liable for compensation as determined under subsection (f) only if written approval of the settlement is obtained from the employer and the employer’s carrier, before the settlement is executed, and by the person entitled to compensation (or the person’s representative).  The approval shall be made on a form provided by the Secretary and shall be filed in the office of the deputy commissioner (district director) within thirty days after the settlement is entered into.

(2) If no written approval of the settlement is obtained and filed as required by paragraph (1), or if the employee fails to notify the employer of any settlement obtained from or judgment rendered against a third person, all rights to compensation and medical benefits under this Act shall be terminated, regardless of whether the employer or the employer’s insurer has made payments or acknowledged entitlement to benefits under this Act.”

In the case of Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469 (1992), the Supreme Court overturned the U.S. Department of Labor’s Benefits Review Board’s (BRB) longstanding interpretation of the phrase “person entitled to compensation” as used in section 33.

Our starting point is section 33(a) above.  It provides that a person who has a claim under the Longshore Act can pursue his compensation claim and receive his benefits and at the same time sue a negligent third party (other than the employer) who may have caused his injury.

He does not have to make an election of remedies.  But there is no double recovery.

Section 33(f) (above) provides that the net amount of damages recovered from any third party reduces the compensation owed by the employer.

So the employer has a real interest with respect to any settlement that might reduce (but not extinguish) the employer’s compensation liability.

Section 33(g)(1) (above) provides that under certain circumstances, if a third party claim is settled without the written approval of the worker’s employer (and insurance carrier), all future benefits, including medical benefits, are forfeited.  This written approval requirement is designed to protect the employer against his employee’s accepting too little in settlement from a third party.

The issue in Cowart was whether the forfeiture provision, applicable to a “person entitled to compensation,” applied to a worker whose employer, at the time the worker settles with a third party, is neither paying compensation to the worker nor is yet subject to an Order to pay under the Act.

In the Cowart case, the U.S. Department of Labor (DOL) had recommended that the employer pay the claimant a scheduled award in the amount of $35,592.77, which the employer contested and did not pay.

The claimant settled a third party lawsuit for the net amount of $29,350.60 ($45,000 less attorney’s fee and expenses).  The claimant did not obtain the written approval of the settlement from the employer and insurance carrier, although the employer was aware of the settlement.

The employer defended its Longshore Act liability on the basis, among other things, of the section 33(g)(1) and 33(g)(2) notice and forfeiture provisions.

An Administrative Law Judge (ALJ) at the DOL had ruled against the employer, finding that the phrase “person entitled to compensation” referred only to injured employees to whom employers were making compensation payments, whether voluntarily or pursuant to an award.  A person not receiving compensation benefits was not a “person entitled to compensation”.

The DOL’s Benefits Review Board (BRB) affirmed the ALJ’s interpretation of the phrase “person entitled to compensation”, ruling that the forfeiture provision did not apply to Cowart, since he was not receiving compensation at the time of the settlement.

The employer appealed the BRB’s decision to the federal Fifth Circuit Court of Appeals.  A panel of judges at the Fifth Circuit reversed the BRB and the panel’s decision was subsequently confirmed on rehearing en banc.  The Fifth Circuit disagreed with the BRB’s interpretation of the phrase “person entitled to compensation” and found that the plain language of section 33(g) left no room for exception or interpretation.

The Supreme Court subsequently affirmed the decision of the Fifth Circuit.   At the time of the settlement of the third party lawsuit, Cowart was a “person entitled to compensation”.

To the Supreme Court it was a matter of straightforward statutory construction.  “In a statutory construction case the beginning point must be the language of the statute and when a statute speaks with clarity to an issue judicial inquiry into the statute’s meaning, in all but the most extraordinary circumstances, is finished.”

The Court did explain that in normal usage, “entitlement” includes a right or benefit for which a person qualifies; it does not depend upon whether the right has been acknowledged or adjudicated.  It means only that the person satisfies the prerequisites attached to the right.

Cowart became a “person entitled to compensation” at the moment his right to recovery vested, not when his employer admitted liability (an event that still had not happened).

This interpretation meant that the claimant forfeited compensation entitlement.  The Court stated, “We do recognize the stark and troubling possibility that significant numbers of injured workers or their families may be stripped of their LHWCA benefits by this statute and that its forfeiture penalty creates a trap for the unwary.”

Note:  The form referred to in section 33 is Form LS-33.

Note:  Section 33(g) is an affirmative defense.  The employer bears the burden of proving that the claimant entered into fully executed settlements without its prior approval in order to bar the claimant’s receipt of future benefits.  The employer’s knowledge of the settlement or the absence of prejudice will not prevent the bar to compensation.

Note:  A peculiar feature of this case is the fact that the Office of the Associate Solicitor for Employee Benefits, representing the Director, Office of Workers’ Compensation Programs, U.S. Department of Labor, changed its position following the decision at the Fifth Circuit and after certiorari was granted.  The Solicitor’s Office had supported the claimant’s position at the Fifth Circuit, but supported the employer’s argument at the Supreme Court.

Note:  Receipt or entitlement to medical benefits alone does not make the claimant a “person entitled to compensation” for the section 33(g) forfeiture provisions.

Note:  There were issues left unresolved in Cowart.  For example, a later Supreme Court case decided that before an injured worker’s death, the worker’s spouse is not a “person entitled to compensation” for death benefits, so she does not forfeit death benefits if she enters into a third party settlement without the employer’s written approval prior to the worker’s death (Ingalls Shipbuilding, Inc. v. Director, Office of Workers’ Compensation Programs, U.S. Department of Labor (Yates), 519 U.S. 248 (1997)).

Note:   Although the Supreme Court did not address retroactivity of its decision, the BRB subsequently held that the Cowart decision would be applied to pending cases.

Note:  The forfeiture provision of section 33(g)(1) applies when the third party settlement is for an amount less than the claimant’s compensation entitlement.  What about the notice provision of section 33(g)(2) and the case where the third party lawsuit goes to a judgment or the settlement is for an amount greater than the compensation entitlement?  I’ll get into this on another occasion.


John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation.  Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of the AEU Longshore Blog.

ISSUE: Landmark Cases, Part Two

I have a second case to nominate as a “landmark” U.S. Supreme Court Longshore Act case (see the discussion of Northeast Marine Terminals Co., Inc. et al. v. Caputo, et al. from last time).

My second landmark case is Director, Office of Workers’ Compensation Programs v. Greenwich Collieries, 512 U.S. 267 (1994).  This decision actually consolidated two separate appeals from the federal Third Circuit Court of Appeals, one involving a claim for benefits under the Black Lung Benefits Act (Andrew Ondecko) (BLBA) and the other involving a claim under the Longshore Act by the widow of an employee of Maher Terminals (Pasqualina Santoro).

The Third Circuit had reversed the U.S. Department of Labor’s Benefits Review Board’s (BRB) decisions in both cases.  The BRB had affirmed decisions by Administrative Law Judges (ALJ) which awarded benefits and which had relied on the “true doubt” rule.

The true doubt rule was an evidentiary rule governing the weight of the evidence.  “True doubt” arises when there is equally balanced probative but contradictory evidence presented by both sides to a dispute.  Under the true doubt rule, if the evidence is evenly balanced then the benefits claimant wins.  In other words, when true doubt exists in the mind of the fact finder the doubt must be resolved in the claimant’s favor.

As stated by the dissenting opinion at the Supreme Court (Greenwich Collieries was decided by a 6 to 3 vote):

“For more than 50 years, in adjudicating benefit claims under the LHWCA, and for more than 15 years under the BLBA, the Department of Labor has applied the ‘true doubt’ rule, providing that when the evidence submitted by a claimant and by a party opposing the award is equal the claimant wins.  The rule thus places risk of non-persuasion on the opponent of the benefits claim.  Today, the Court strikes the (true doubt) rule down ….”

The problem was section 7(c) of the Administrative Procedures Act (5 U.S.C. 556(d)) (APA), passed by Congress in 1946 in order to impose some uniformity on the regulatory and adjudicatory activities of the expanding government agencies.

Section 7(c) states, “Except as otherwise provided by statute, the proponent of a rule or order has the burden of proof”.

Section 19(d) of the Longshore Act (33 U.S.C. 919(d)) as amended in 1972 states, “Notwithstanding any other provisions of this chapter, any hearings held under this chapter shall be conducted in accordance with (the APA)”.

The term “burden of proof” is not defined in the APA.  The Court in Greenwich  Collieries had to “ascertain the ordinary meaning of ‘burden of proof’ in 1946, the year the APA was enacted”. Once the Supreme Court resolved any ambiguity as to the definition of the phrase “burden of proof” in the APA the contradictory relationship between the APA and the true doubt rule was clear.

Note:  The Court resolved the ambiguity by construing “burden of proof” to mean burden of persuasion by a preponderance of the evidence rather than the burden of production, or merely coming forth with evidence (such as the burden of production involved in producing substantial evidence to rebut the Longshore Act’s section 20 presumptions).

The Third Circuit reversed the BRB’s award of benefits in the Longshore case holding that section 7(c) of the APA prohibits application of the true doubt rule to cases involving benefits under the Act because, 1) under the APA the claimant bears the ultimate burden of persuasion by a preponderance of the evidence, and (2) the true doubt rule allows a claimant to prevail despite failure to prove entitlement by a preponderance of the evidence.

Put succinctly by the Third Circuit, “Under the Department’s true doubt rule, when the evidence is evenly balanced the claimant wins.  Under section 7(c) of the APA, however, when the evidence is evenly balanced the benefits claimant must lose.  Accordingly, we hold that the true doubt rule violates section 7(c)”.

On appeal, the Supreme Court stated the issue as follows:  “In adjudicating benefits and claims under the LHWCA and the BLBA the Department of Labor has long applied a ‘true doubt’ rule, under which doubts on factual issues are resolved in favor of a claimant when the evidence is otherwise in equipoise.  The question in these cases is whether use of the ‘true doubt’ rule contravenes the Department’s own regulations or section 7(c) of the APA”.

The holding of the Supreme Court:

  1. Section 7(c)’s burden of proof provision applies to adjudications under the LHWCA and the BLBA, each of which contains a section incorporating the APA;
  2. The true doubt rule is not consistent with section 7(c);
  3. In 1946, the year the APA was enacted, the ordinary meaning of section 7(c)’s ‘burden of proof’ phrase was burden of persuasion (i.e., the obligation to persuade the trier of fact of the truth of a proposition) not simply burden of production (i.e., the obligation to come forward with evidence).

That was the end of the “true doubt” rule.

COMMENT:  I remember when this decision was announced.  The euphoria in some quarters of the employer/carrier/defense community was, I thought, out of proportion.  The true doubt rule, in fact, had decided a relatively very few Longshore cases, but this decision was considered to be a great win for employers.

Post script – Following remand of the Santoro case following the Supreme Court’s decision, the BRB eventually affirmed an ALJ’s decision finding that, at best, the evidence was in equipoise and such a finding was enough to defeat the widow’s claim (Santoro v. Maher Terminals, Inc., 30 BRBS 171 (1996).  When the evidence is evenly balanced, the claimant loses.

Note:  The decision in Greenwich Collieries does not affect application of the Longshore Act’s section 20 presumptions.  The presumptions shift the burden of production of evidence, but they do not shift the ultimate burden of persuasion by a preponderance of the evidence away from the claimant.

So that’s Number Two on my personal list of landmark Longshore Act cases at the U.S. Supreme Court.


John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation.  Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of the AEU Longshore Blog.

ISSUE: Landmark Cases, Part 1

There are decisions of the U.S. Supreme Court that are referred to as “landmarks”.  These landmark decisions are significant events in history in their own right.  They address/resolve/create national issues and controversies in the areas of constitutional and criminal law, politics, economics, and social, cultural, and religious practices and values.

Some of these Court opinions are unanimously decided; some are closely divided with strong dissenting opinions.  They all become the “law of the land”.

There have been many landmark Supreme Court decisions in our nation’s history.  Here are a few examples I would choose:

Marbury v. Madison

Gibbons v. Ogden

Dred Scott v. Sandford

Plessy v. Ferguson

Brown v. Board of Education

Griswold v. Connecticut

Roe v. Wade

Gideon v. Wainwright

Miranda v. Arizona

Schenck v. United States

The Longshore Act has its own landmark cases that are far reaching and enduring on their own relative scale.

My candidate for one of the foremost of these is Northeast Marine Terminal Co., Inc., et al. v. Caputo, et al.

The Caputo case was decided on June 17, 1977.  It was one of a series of cases that reached the Supreme Court seeking its interpretation of the provisions of the extensive 1972 Amendments to the Longshore Act.  Language from the Caputo decision is still regularly quoted in Longshore jurisprudence as authority on key issues.

The facts of the case, consolidating the claims of two New York City longshoremen, are not complicated.  The case involves typical maritime activities on the waterfront, although at the time of the injuries containerization was a brand new cargo handling technique and land side exposure was a brand new concept under the 1972 Amendments.

The coverage issues created by the 1972 Amendments are well known.  The Amendments changed what had simply been a “situs” test for coverage (the injury had to occur over the navigable waters of the U.S. (including any dry dock)) to a test involving not only an expanded landward situs but also a maritime “status” test for workers in the newly expanded landside coverage areas.  It was not at all clear in the immediate aftermath of the Amendments exactly who and what was now covered landside.

The Court had to “determine the reach of the ’72 Amendments.”  In doing so it established principles that are still followed today.

Probably the most often quoted excerpt from the Caputo decision is the following:  “The language of the Amendments is broad and suggests that we should take an expansive view of the extended coverage.  Indeed, such a construction is appropriate for this remedial legislation.”  Furthermore, “The Act ‘must be construed in conformance with its purpose, and in a way which avoids harsh and incongruous results.’” (Quoting in turn from Voris v. Eikel, 346 U.S. 328 (1953))

To make a long story short, longshoreman Ralph Caputo was injured while assigned duties on the day of his injury as a “terminal laborer” loading cargo on to a truck.  Longshoreman Carmelo Blundo was injured while unloading cargo not directly from a vessel but from a container located on a pier used only for stripping and stuffing containers and for storage rather than for loading and unloading vessels.  Neither longshoreman was injured in the act of removing cargo from a vessel and placing it dockside.

In deciding the issues of what today would be obvious examples of maritime employment covered by the Longshore Act, the Court used this early case (the injuries occurred in April 1973; the effective date of the 1972 Amendments was November 26, 1972) to resolve several important early questions.

Note:  Situs was met, since the injuries occurred in a terminal area contiguous with navigable waters.  The issue was the maritime status of the workers.

The Court acknowledged one of the primary purposes of the 1972 Amendments:  Congress intended to provide continuous coverage to amphibious workers such as longshoremen who, without the Amendments, would be covered for only part of their activity (the part over the water).  The problem of workers walking in and out of coverage back and forth over the water during the workday had been a significant contributing factor in producing the ’72 Amendments.

So in the Caputo decision the Court resolved the problem in what today we recognize as the uniform treatment principle that if any part of a worker’s regular duties is indisputably maritime in nature then that worker has 100% maritime status under the Longshore Act.  There is no walking in and out of “status”.

The employer in Caputo raised the “point of rest” theory as a defense.  They argued that the injured workers were handling cargo that had already reached its “point of rest” at dockside and thus were no longer involved in loading/unloading.  The Court rejected this theory in light of the expansive purposes of the Amendments and the realities of the longshoring occupation.

Today we recognize this in the principle that all workers who contribute to or facilitate the loading/unloading process are covered by the Longshore Act.  This includes all intermediate steps between the vessel and land transportation.

There is no “moment of injury” test for maritime employment status.  There is no “point of rest” for cargo at its first stop off the vessel.  The Longshore Act is a remedial statute which is to be liberally interpreted. These are the principles involved when we refer to the Caputo decision.


John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation.  Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of the AEU Longshore Blog.