William J. Brennan, Jr.

“ In the compensation order entered by Deputy Commissioner Donovan under the Longshoremen's Act the full amount of all payments made by the employer was credited against the award, and no impermissible double recovery is possible. We hold that the acceptance of the payments does not constitute an election of the remedy under state law precluding recovery under the Longshoremen's Act. Nothing in the statute requires a contrary result. And we agree that the circumstances do not support a finding of a binding election to look solely to the state law for recovery. ”

“ The surest that could be said was that any particular injury might be within the area of 'local concern', depending upon its peculiar facts. In numerous situations state acts were considered inapplicable because they were through to work material prejudice to the characteristic features of the general maritime law, particularly in cases of employees engaged in repair work. [6] On the other hand, awards under state compensation acts were sustained in situations wherein the effect on uniformity was often difficult to distinguish from those found to be outside the purview of state laws. ”

“ In the second place, to conclude that federal coverage extends to the limits of navigable waters, except in those cases where a state compensation remedy 'may' constitutionally be provided, would mean that, contrary to the congressional purpose, some injuries to employees on navigable waters might not be compensable under any statute. ”

“ Section 3 (a) of the Longshoremen's and Harbor Workers' Compensation Act provides that compensation shall be paid only for injuries occurring on navigable waters 'and if recovery * * * through workmen's compensation proceedings may not validly be provided by State law.' [1] In each of these cases the petitioner is a Deputy Commissioner who based an award of compensation under the Act on findings that the employee was engaged at the time of his injury in the work of completing the construction of a vessel afloat on navigable waters. ”

“ The statute's framers adopted this scheme in the Act because they meant to assure the existence of a compensation remedy for every such injury, [10] without leaving employees at the mercy of the uncertainty, expense, and delay of fighting out in litigation whether their particular cases fell within or without state acts under the 'local concern' doctrine. ”

“ But it is apparent that the objections went to the possibility that the language 'except employment of local concern and of no direct relation to navigation and commerce' might not accurately define the line beyond which state law could be applied a difficulty which was easily removed by making the statute inapplicable where a remedy could 'validly be provided by State law.'↑ See Gilmore and Black, Admiralty, 346; Robinson, Admiralty, 110; Rodes, Workmen's Compensation for Maritime Employees: Obscurity in the Twilight Zone, 68 Harv.L.Rev. ”

“ But in order to have accomplished this result, the statute would have had to withdraw federal coverage, not wherever a state compensation remedy 'may be' validly provided, but only wherever a state compensation remedy 'is' validly provided. ”

“ The Chairman of the Senate Committee perceived that to create an exemption for 'employment of local concern' threatened to perpetuate the very uncertainties of coverage that Congress wished to avoid. [11] The danger was underlined by objections on behalf of two large employer groups. They not only expressed concern about the practical problems created by the line between new construction and repair, Senate Hearings, at 92-93, but also about the broader implications of the wording: 'This provision is indefinite. ”

“ Similar statements were made by those who spoke during the committee hearings on the proposed legislation. [18] Several witnesses pointed out that the statute applied to but two categories of workers, longshoremen and those involved in ship repair, [19] the classes of employees denied relief under state compensation acts by the Jensen case and the decisions which followed it. [20]
The meaning of 33 U.S.C. § 903 (a) , 33 U.S.C.A. § 903 (a) , can hardly be deemed a question of first impression. In the thirty-five years since its enactment this provision has been before the Court many times. ”

“ No. 1767, 69th Cong., 2d Sess. See also H.R.Rep. No. 1190, 69th Cong., 1st Sess. (accompanying H.R. 12063) ; Hearings before the House Judiciary Committee on H.R. 9498, 69th Cong., 1st Sess.↑ See S.Rep. ”