Edwards v. Stringer

382 N.E.2d 1196, 56 Ohio App. 2d 283, 10 Ohio Op. 3d 288, 1978 Ohio App. LEXIS 7537

• Court: Ohio Court of Appeals
• Decided: April 12, 1978
• Docket: C-77066
• Status: Published

Opinion

Black, J.

The single question raised on this appeal is whether an employee who lost his life while hosing down a barge on the Ohio River, under the employment circumstances found in this case, has a claim which falls within the jurisdiction of the Ohio Bureau of Workers’ Compensation.

The Administrator of the Bureau of Workers’ Compensation held that the claim was beyond its jurisdiction because the death occurred on the navigable waters of the United States. This conclusion was reversed by the Court of Common Pleas, and the decedent’s survivor was held to be entitled to participate in the Workers’ Compensation Fund as provided by law. We affirm the court’s decision.

The appeal was submitted to the trial court and to us on stipulated facts. James Edwards (the decedent) was employed by a supplier of temporary labor (hot an employment agency) which paid all taxes, premiums and contributions with respect to his employment, including contributions to the Ohio Workers’ Compensation Fund. This employer did not, by stipulation, engage in maritime work or employment. On January 5, 1966, Edwards was sent to work for a dry dock company and a marine service company at dry dock facilities on the Ohio River at Ludlow, Kentucky, where unbeknownst to his employer, he was assigned to assist in cleaning (hosing down) a barge. He accidentally fell into the river. Attempts to rescue him were futile, and his body was never found. No claim was made until 1973, after the seven-year period had expired. 1 The precipitating event clearly occurred on the navigable waters of the United States.

We hold that the Bureau has jurisdiction over this claim because the Ohio compensation act does not exclude accidents on the navigable waters and because under the employment circumstances stipulated in this case, Ohio’s jurisdiction is not preempted or prevented by federal law.

We find nothing in the Ohio Workers’ Compensation Act which states that an accidental injury or death incurred on the navigable waters of the United States is excluded from coverage thereunder. Therefore, the state compensation board has jurisdiction unless a death on navigable waters under the circumstances of this case falls exclusively within federal jurisdiction.

Southern Pacific Co. v. Jensen (1917), 244 U. S. 205, held that a state compensation law could not constitutionally extend beyond the water’s edge of navigable waters, thus creating what was essentially a “situs” test of eligibility for state compensation. Prior to the 1972 amendments to the Longshoremen’s and Harbor Workers’ Compensation Act (LHWCA), Title 33, U. S. Code, Section 901 et seq., the courts used the water’s edge (Jensen line) as one component of the test of eligibility for federal compensation. If the work-related injury occurred on navigable waters and if the employer had “any” employee in maritime employment, then the worker was eligible for compensation under LHWCA. 2 Pennsylvania R. R. Co. v. O’Bourke (1953), 344 U. S. 334, 340-342.

But federal jurisdiction was not exclusive in all cases, and the Supreme Court has permitted recovery under state remedies for some injuries that occurred on navigable waters. In Davis v. Dept. of Labor (1942), 317 U. S. 249, the state of Washington was held to have jurisdiction over a claim arising from the death of a worker on a barge in navigable waters who was assisting in the dismantling of a bridge. At page 256, the court set forth the concept of a “twilight zone” between exclusive federal jurisdiction and exclusive state jurisdiction, in the following words:

‘ •' There is, in the light of the cases referred to, clearly a twilight zone in which the employees must have their rights determined case by case, and in which particular facts and circumstances are vital elements. That zone includes persons such as the decedent who are, as a matter of actual administration, in fact protected under the state compensation act.”

The twilight zone created concurrent federal and state jurisdiction so that the claim could he adjudicated in either jurisdiction. See Gilmore and Black, The Law of Admiralty 420, Section 6-49 (2d ed, 1975). Note, The 1972 Amendments to Section 903 of the Longshoremen’s and Harbor Workers’ Act: Has the “Twilight Zone” Moved Onto the Pier? 4 Rutgers-Camden L. J. 404 (1973). The twilight zone was not expressly changed or abrogated by 1972 amendments to LHWCA, and it is considered by the cited authors merely to have been moved shoreward. 3 Edwards’ employment was shore-based as was that of Davis, and he was, “as a matter of actual administration, in fact protected under the state compensation act.” His death fell in the twilight zone, and Ohio has jurisdiction of the claim.

We need not rest our decision solely on that ground. In 1972, Congress not only moved the Jensen line shoreward, but also added the requirement for federal compensation that the injured worker be “engaged in maritime employment,” by amending the definition of “employee” in Title 33, U. S. Code, Section 902(3). This change converted “[the] ‘situs’ test of eligibility for compensation to one looking to both the ‘situs’ of the injury and the ‘status’ of the injured.” (Emphasis added.) Northeast Marine Terminal Co. v. Caputo (1977), 432 U. S. 249 at 265. Federal jurisdiction is invoked when the injury is on the navigable waters (as defined in 1972) and the injured employee is engaged by a maritime employer in maritime employment. Congress defined “maritime employment” in Title 33, U. S. Code, Section 902(3) as including “any longshoreman or other person engaged in longshoreing [sic] operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker * *

We hold that Edwards was not “ engaged in maritime employment.” Obviously he was not engaged in longshor-ing operations (loading or unloading a ship’s cargo), or in building or dismantling ships. Was he doing the work of a “harborworker [,] including a ship repairman”? We conclude he was not. Edwards was an unskilled worker sent to do non-expert work by a supplier of temporary •shoreside labor who had no employees regularly engaged in longshoring or harborside operation. Edwards was not rated as a harborworker of any type, much less a ship repairman. The cleaning of a vessel may well be a part of the repairing thereof, whether it takes place before or after the repairs are made. However, the record before us fails to establish that by reason of the unanticipated happenstance that Edwards was assigned to hose down a barge on the Ohio River, he thereby became a ship repairman or his employer became one. “any of whose employees are employed in maritime employment [as redefined in 1972], in whole or in part, upon the navigable waters of the United States * * Title 33 U. S. Code, Section 902(4). To hold otherwise would ignore both the language selected by Congress and its intent as revealed by the committee reports. 4

Our decision comports with Weyerhaeuser Co. v. Gilmore (C. A. 9, 1976), 528 F. 2d 957, certiorari demed 429 U. S. 868, in which a lumber “pondman” was denied federal compensation. He was injured while on a “pond” located in a salt-water bay on the Pacific Ocean, but his sole task was to feed logs into a sawmill on the shore. The court held that he was not engaged in maritime employment which, it stated, must have a realistically significant relationship to “traditional maritime activity involving navigation and commerce on navigable waters.” He had already recovered benefits from the state compensation fund.

In conclusion, we hold that the Ohio Bureau of Workers’ Compensation has jurisdiction over a claim arising from the death of an unskilled worker while he was hosing down a barge on the Ohio River, when he had been sent to the job by an Ohio supplier of temporary shoreside labor and where that employer contributed to the Ohio compensation fund with respect to the decedent and had no advance knowledge he would be working on the navigable waters, and did not in any other respect engage in maritime work, in whole or in part, on the navigable waters of the United States. Appellant’s single claim that Ohio had no jurisdiction is without merit. As previously stated, we affirm.

Judgment affirmed.

PalmeR, P. J. and Shannon, J., concur.

1 The presumption of death after an unexplained absence of seven years, being in the nature of a procedural device facilitating the determination of the fact of death itself, does not fix the precise day of death. Thompson v. Parrett (1948), 82 Ohio App. 366, holds that in the absence of evidence to the contrary, the presumption is that the person died at the end of the seven-year period. In the instant case, the parties stipulated that the death was at the end of the period, and despite the improbability that Edwards swam in the river for seven years before dying, we are not inclined to disturb that agreed fact. The 1973 date is significant because it focuses attention on the 1972 amendments to the Longshoremen’s and Harbor Workers’ Compensation Act, Title 33, U. S. Code, Section 901 et seq.

While the stipulation reads that his date of death was January S, 1973, we deem the correct date to be January 5, 1973, seven years after his disappearance.

2 The following employees were, and still are, statutorily excluded from LHWCA coverage: a master or member of a crew of any vessel; any person engaged to load or unload or repair any small vessel under eighteen tons net; or an employee of the United States.

The stipulated facts do not reveal the net tonnage of the barge from which Edwards fell. If it was under 18 tons, LHWCA would not apply and all questions of jurisdiction would have been resolved in favor of state coverage. But we cannot rest our decision on this bottom.

3 The shoreward movement was impelled by changing the definition of “employer” in Title 33, U. S. Code, Section 902(4) and restating the extent of coverage in Section 903, so that the “navigable waters” include “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.”

4 ‘The Committee does not intend to cover employees -who are not engaged in loading, unloading, repairing, or building a vessel, just because they are injured in an area adjoining navigable waters used for such activity. * * * Likewise the Committee has no intention of extending coverage under the Act to individuals who are not employed by a person who is an employer, i. e. a person at least some of whose employees are engaged, in whole or in part in some form of maritime employment. Thus, an individual employed by a person none of whose employees work, in whole or in part, on navigable waters, is not covered even if injured on a pier adjoining navigable waters.” H. R. Rep. No. 92-1441, 92d Cong., 2d Sess. 10-11, reprinted in, 3 U. S. Cong. & Ad. News 4698, 4708 (1972).