Handcor, Inc., Petitioner, v. Director, Office of Workers' Compensation Programs, Unitedstates Department of Labor, and John R. Kelley, Respondents, 568 F.2d 143 (9th Cir. 1978)

The scope of coverage of the Longshoremen's and Harbor Workers' Compensation Act (Act), 33 U.S.C. § 901 et seq. (1970 & Supp. V 1975), is the sole issue raised by this appeal. Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 97 S. Ct. 2348, 53 L. Ed. 2d 320 (1977), is dispositive.

At the time of his injury, Kelley, the claimant, was employed by Handcor, Inc. as a member of a "stuffing" gang in a warehouse at the Port of Portland, Oregon. A stuffing gang loads cargo into the containers used in containerized shipping. The warehouse where the injury occurred is located at Berth No. 205 of Terminal No. 2 of the Port of Portland, approximately fifty to sixty feet from the water's edge. Kelley's job was to load sacks into the bin of a forklift truck in the warehouse. When loaded, the truck was driven by another member of the gang onto the wharf and the sacks were mechanically pushed into a container. The containers were then loaded aboard a vessel by workers who were not employees of Handcor. Kelley was injured while loading a 100-pound sack into the bin of a forklift truck.

Kelley filed a claim under the Act. An administrative law judge awarded compensation and the Benefits Review Board affirmed. Handcor petitions for review by this court pursuant to 33 U.S.C. § 921(a) (Supp. V 1975), contending that Kelley was not covered by the Act. We affirm the award.

A claimant is covered by the Act if he is an "employee" whose injury occurred "upon the navigable waters of the United States," as those terms and phrases are defined by the Act.¹  The two requirements are commonly called the status and situs tests, respectively.

Kelley has the requisite status under the Act. The Court in Northeast Marine Terminal held that a stripper, one who unloads containers, meets the status requirement. 432 U.S. at 249, 97 S. Ct. 2348. A stuffer, such as Kelley, as well as a stripper, is a maritime employee since the work of a stuffer is the functional equivalent of loading cargo aboard ship. Id. Handcor is thus also incorrect in its related argument that it was not an "employer any of whose employees are employed in maritime employment," as required by 33 U.S.C. § 902(4) (Supp. V 1975).

Kelley satisfies the situs requirement since his injury occurred at a terminal which adjoins navigable waters of the United States. To the extent that a terminal must be one customarily used in the loading and unloading of vessels in order to satisfy the situs requirement, see Northeast Marine Terminal, 432 U.S. at 276-281, 97 S. Ct. at 2364-66, we agree with the conclusion of the administrative law judge that the terminal involved here was so used.

Handcor's argument that coverage of Kelley is beyond the reach of Congress' power under its admiralty and maritime jurisdiction is without merit in the light of Northeast Marine Terminal.

The order of the Board is AFFIRMED.