did berth and the cargo operations commenced.
Third-party defendant avers, and United does not dispute, that plaintiff has received compensation benefits under the terms and provisions of the LHWCA, and that McCarthy, as the employer of plaintiff, has provided for the payment of these benefits as required by 33 U.S.C. § 904.
II. THE LEGAL CONTENTIONS OF THE PARTIES
In seeking dismissal of the complaint, McCarthy relies upon the language of § 905(b); that section authorizes an injured employee to sue the vessel for negligence, and provides specifically that "the employer shall not be liable to the vessel for such damages directly or indirectly." See note 1, supra. Third-party defendant argues that plaintiff is clearly an employee within the meaning of the LHWCA, and has in fact already received benefits in accordance with its terms. As the employer of plaintiff, McCarthy contends that it is, by the very words of the statute, insulated from liability in any action between the employee and the vessel owner based on negligence.
Before we can address the issue of the prohibitions of § 905(b), we must deal with the initial contention of United that this matter may not be decided under the provisions of the LHWCA; the gist of this argument is that we cannot apply federal maritime law because we lack the jurisdiction to do so under the facts of this case.
A. The Application of Maritime Law to the Third Party Claim
United avers that the third-party complaint is controlled by Pennsylvania law.
As authority for this proposition, original defendant cites Victory Carriers v. Law, supra. In Victory Carriers, the Court was confronted with the issue of the interaction of state and federal law in the context of a longshoreman's pier-based injury caused by the stevedore's pier-based equipment. The Court held that state law controlled, thus ousting maritime jurisdiction. In reaching this result, the Court focused on the "historic view . . . that the maritime tort jurisdiction . . . is determined by the locality of the accident." 404 U.S. at 205. The Court noted that "[no] case in this Court has sustained the application of maritime law to the kind of accident that occurred in this case", and thus "to afford . . . a maritime cause of action would . . . intrude on an area that has heretofore been reserved for state law." Id. at 210, 212.
United contends that the only difference between the facts of Victory Carriers and the facts of the case at bar is the ownership of the injury-causing equipment; in the former case the stevedore was the owner; in the instant action, the vessel owner also owns the trailer frame. This distinction, argues United, cannot be relevant to the issue of jurisdiction, which, according to Victory Carriers, depends on the place of the injury. Original defendant argues accordingly that the holding in Victory Carriers mandates the application of Pennsylvania law to the third party complaint, and accordingly precludes application of the provisions of the LHWCA.
We do not agree that the issue is quite so simple. The holding in Victory Carriers must be read in light of the effect the 1972 amendments to the LHWCA had upon the state of the decisional law which was extant at the time of those amendments.
The holding in Victory Carriers was based quite specifically upon the reluctance of the Court to break with precedent and "extend shoreward the reach of the maritime law further than Congress has approved ". 404 U.S. at 211 (emphasis supplied). Recognizing that "[claims] like these are best presented in the legislative forum," id. at 216, the Court invited Congress to provide a remedy if it so wished:
Congress might well prefer not to extend the jurisdiction of the federal courts. On the other hand, if denying federal remedies to longshoremen injured on land is intolerable, Congress has ample power under Arts I and III of the Constitution to enact a suitable solution.
Id. See also Nacirema Operating Co. v. Johnson, 396 U.S. 212, 24 L. Ed. 2d 371, 90 S. Ct. 347 (1969).
When the LHWCA was amended in 1972, Congress specifically addressed this problem;
Section 902(4), defining an "employer" under the Act, was revised to read:
The term "employer" means 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 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). (emphasis supplied).