ON PETITION FOR REVIEW OF ORDER OF THE BENEFITS REVIEW BOARD, UNITED STATES DEPARTMENT OF LABOR.
Van Dusen and Rosenn, Circuit Judges, and Edward N. Cahn, District Judge.*fn*
VAN DUSEN, Circuit Judge.
These are petitions by an employer and its compensation carrier to review orders*fn1 of the Benefits Review Board (Board) affirming two decisions of administrative law judges which found that the injured employees, Seledonio Suarez and Frank Cappelluti, came within the extended coverage of the 1972 Amendments to the Longshoremen's and Harbor Workers' Compensation Act (LHWCA).*fn2 Because these cases involve the same employer, Sea-Land Service, Incorporated (Sea-Land) and similar questions of law in interpreting the 1972 Amendments, and were argued before the same panel during the same week, they are being decided by a single opinion. In Suarez, No. 76-1033, and in Cappelluti, No. 76-1626, the petitions for review will be granted and the cases remanded to the Board (1) with directions to vacate its orders, as well as any related administrative law judge's orders in those cases, and (2) for further proceedings consistent with this opinion.
(1) Sea-Land. Sea-Land is a large intermodal carrier engaging in containerized*fn3 water-borne and overland truck freight operations. Each claimant was injured in the course of his employment while working in different areas of Sea-Land's Port Elizabeth, New Jersey terminal facility (Terminal). This facility and the complexity of the operations conducted there were recently described by Judge Gibbons in Sea-Land Services, Inc. v. Johns, 540 F.2d 629 (3d Cir. 1976) (hereinafter Johns);*fn4 however, this record contains facts showing the complexity of the Terminal and the activities conducted there. The Terminal is located upon a 92 acre site lying in part along the Elizabeth Channel, a navigable waterway. It includes a general office building, marine operations center, truck operations center, garage and maintenance building, refrigerated warehouse, truck terminal, marshalling yard, freight consolidation building and vessel berths. The entire facility is intersected by a number of public streets. Ocean transportation is only one phase of Sea-Land's operations conducted at the Terminal, which is also utilized as the terminus for truck and containerized railway operations.
(2) Suarez. Suarez was injured while "stripping"*fn5 a container which had been brought into Building 1220.*fn6 Although this building is called a warehouse, it is not a storage facility;*fn7 it is bounded on all sides by public streets and lies about 2000 feet from the Elizabeth Channel. The building is an integral part of the Terminal and the transportation operations conducted by Sea-Land there.
At the time of his injury, November 1, 1973, the claimant had been working for Sea-Land for less than a day. On the day of the injury, Suarez first reported to his usual place of work with his usual employer, Maher Terminals, Incorporated (Maher), a stevedore. Because Maher had no work for him, he went to the union hall to ascertain if any work was available for him with another employer*fn7a within the area. At the hall, Suarez was ordered to report to Sea-Land's Building 1220. Such assignments were made on the basis of a man's seniority and employment classification.*fn8 Suarez was classified as an "extra laborer" or "terminal laborer" and when working for Maher he "stripped" containers after they had been off-loaded from ships by longshoremen and he had frequent occasion to go aboard lighters to assist in the lightering of cargo to and from larger vessels. Sea-Land presented no evidence at the hearing conducted by the administrative law judge to indicate the functional organization of the work force and operations within Building 1220,*fn9 nor does the record clearly indicate that the work carried out there was more definitely related to any specific landward or seaward phase of Sea-Land's operations. The administrative law judge made no fact finding concerning the functional relationship of the claimant's work for Sea-Land which might have been inferred from the nature of his prior employment with Maher and the absence of countervailing testimony from Sea-Land, but concluded that:
" [The] Claimant was engaged in maritime employment and was an 'employee' as defined in Section 902(3). . . . Under the Act as amended, the process of loading or unloading a vessel is not confined to depositing cargo into the hold or moving it from the hold, but rather it encompasses all dockside handling of cargo necessary or appropriate to its continued progress in maritime commerce. [Citing Board cases] In the instant case Claimant was 'stripping ' or unloading a container that had come from a ship. Claimant testified that it was the usual practice to bring containers from a ship to his work location. Respondents point out that Claimant did not see the container in question unloaded from a ship, but they offered no evidence to show this was not the case, although they were in the best position to do so. In view of the above, I find that the work being performed by Claimant was maritime employment."
Decision and Order of May 12, 1975, 74-LHCA-260 at 4 (reproduced in Joint Appendix at 8a). Upon subsequent appeal the Board affirmed*fn10 the administrative law judge's decision concluding inter alia :
"At the time of his accident, the claimant was stripping a container which was used to store cargo on board ship. He was doing this in a terminal which was located 1 1/2 miles from the water's edge where such containers are routinely stripped and prepared for delivery to the appropriate consignees. While unloading the container, some cargo fell on the claimant, injuring the middle finger of his right hand.
"The employer argues that inasmuch as the claimant was not engaged directly in the loading and unloading of ships, he was not engaged in maritime employment and therefore not within the coverage of the Act. It is well settled before the Board that an injury suffered by such a person who is engaged in shoreside activity is entitled to compensation under the extended coverage of the 1972 amendments.
'The expansion of coverage to land-based employees by Congress was intended to include all persons engaged in longshoring operations, Avvento v. Hellenic Lines, BRB No. 74-153 (Nov. 12, 1974), when an injury occurs on a pier, wharf, terminal, etc. areas which have been included in the term "navigable waters" by Congress to delineate the geographic areas where employees engaged in the longshoring industry normally perform their functions. The word "employee" as defined in Section 2(3) of the Act, 33 U.S.C. § 902(3), does not require that one be "actually engaged in loading of vessels" as argued by the employer. The term includes "any longshoreman or other persons ...