27 F.3d 985

SPROUSE, Senior Circuit Judge,
dissenting:
I respectfully dissent. I agree with the majority that the sole dispute is whether Prevetire was a “person engaged in maritime employment” within the meaning of 33 U.S.C. § 902(3). In my view, however, a proper reading of Chesapeake & Ohio R. Co. v. Schwalb, 493 U.S. 40, 110 S.Ct. 381, 107 L.Ed.2d 278 (1989), requires a holding that Prevetire was engaged in maritime work.
As the majority points out, the Schwalb Court, in discussing employees who maintained and repaired equipment essential to the loading or unloading process, held that such employees are covered by the Act because they “are engaged in activity that is an integral part of and essential to those overall processes.” Schwalb, 493 U.S. at 47, 110 S.Ct. at 385. In my view, the construction of a power plant at the shipyard is also essential to the shipyard’s maritime operations, for without electricity and steam, no shipbuilding or repair work could be performed. Preve-tire’s construction work on the power plant, therefore, was a link in the shipbuilding and ship repair process that was just as essential as the maintenance and repair of machinery used in that process. For this reason, I believe the majority’s reliance on Herb’s Welding, Inc. v. Gray, 470 U.S. 414, 105 S.Ct. 1421, 84 L.Ed.2d 406 (1985), is misplaced. There, the decision denying coverage turned on the Court’s view that neither the offshore search for oil and gas, nor the oil industry’s use of offshore platforms in that process, had any relation to one of the Act’s primary purposes — the protection of shipyard workers whose activities affect the loading or unloading of ships. Here, however, the furnishing of electrical power is closely related to maritime work performed in the shipyard.
My colleagues recognize, as they must, that § 902(3)’s definition of maritime employees is to be liberally construed. Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 268, 97 S.Ct. 2348, 2359, 53 L.Ed.2d 320 (1977). The rule may very well be one which is often employed by judicial writers, perhaps including the present dissenter, when it matches their already, matured decisions. Nonetheless, I believe that the issue of coverage vel non in this case is at least a close issue where the liberality rule would tilt the balance in favor of coverage.
In a similar vein, contrary to the majority, I would defer to the legal position of the Director, maintained since at least 1977, that construction work of this type is covered maritime employment. See LHWCA Program Memorandum No. 58, United States Dept, of Labor (Aug. 10, 1977). Congress has not spoken directly on the issue we consider, and one must wonder why, if the textual structure of the Act is so clear, the Supreme Court needed to go to such lengths in Schwalb and Gray to interpret Congress’ intent regarding whether employees in divergent circumstances are maritime employees.
In my view, the Supreme Court’s decision in Schwalb is broad enough to support the Director’s view. Furthermore, there have been divergent results in decisions of the circuit courts of appeals on parallel issues. These factors, along with the congressional silence on the meaning of § 902(3) as it relates to construction work on shipyard facilities, make it difficult for me to accept that the Director’s position is unreasonable.

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