Now entering upon its fifth decade with a tenacity which refuses to acquiesce in occasional contemporary reports of its final rejection, Jensen 1 and *221 its limitless wake 2 is once again the heart of the old, old controversy: is workmen’s compensation coverage under the State (Texas) or Federal (Longshoremen and Harbor Workers’ Compensation) Act? The District Court held that the Texas Act could not apply. Here, as so often, the facts, strikingly simple, neither complex nor conflicting, are not the cause of bewilderment. On them, the picture is clear-cut. What distorts or obscures or befogs the vision is not fact, but law. Strong as is the temptation to undertake to chart a way to dispel it altogether, the task, essayed by others with generally unrewarding results, it too formidable. All we can hope to do, either by a minute and transitory dispersion of the cloud, or an indirect penetration of it by a reading on some juridical radarscope, is to see how this small case is to be decided.
Flowers was injured while performing duties as a welder in making repairs on the S. S. Redstone, a large ocean-going tanker. The vessel was in a floating dry-dock in Todd Shipyard in Galveston Harbor.
The setting was wholly maritime. The ship was the very instrument of ocean commerce. The vessel, if not actually floating
in
navigable waters, was there in law. For she was in a floating drydock which by all tests made the place of injury maritime. Avondale Marine Ways, Inc., v. Henderson, 5 Cir.,
Nor was it, in the special context of this ceaseless, half-century running battle, that kind of a case in which “* * * ■employees * * * occupy that shadowy area within which, at some undefined and undefinable point, state laws can validly provide compensation” or as to which ■“* * * the line separating the scope of the two [State and Federal Compensation Acts] being undefined and undefinable with exact precision, marginal employment may, by reason of the particular facts, fall on either side” which led the ■Court in Davis v. Department of Labor of Washington,
“There is, in the light of the cases referred to, clearly a twilight zone in which the employees must have their rights determined case by case, and in which particular facts and circumstances are vital elements. That zone includes persons such as the decedent who are, as a matter of actual administration, in fact protected under the state compensation act.”317 U.S. at page 256 ,63 S.Ct. at page 229 ,87 L.Ed. at page 250 .
This is so because, both before and since the time of Davis, the doing of repair work on an existing vessel has been treated 5 as so clearly maritime in nature that attempted application of State compensation laws would collide with that essential uniformity which was the very breath of Jensen.
There is thus no undefined or undefinable boundary. There is here no marginal employment. Davis v. Department of Labor, supra. If there is, in our simple case, a twilight, it must have come, if it did, from a solar or lunar-like eclipse, partial or complete, temporary or permanent, occasioned as the unilluminating per curiams in Moore’s 6 and Baskin 7 cast either a shadow or obscured light.
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We speak of them in this figure neither to disparage them nor to avoid their authoritative force if, and to whatever extent, they are applicable. But we, with others,
8
and perhaps the Court
9
itself, see in these actions either uncertainty, if not now, then assuredly in the making, and an accentuated instability in the everyday administration of compensation acts to amphibious employees if these are thought to throw down the bars in complete disregard of the philosophy expressed in Parker v. Motor Boat Sales, Inc., supra, and to this date not repudiated that Congress meant to draw the line where Jensen left it. DeBardeleben Coal Corp. v. Henderson, 5 Cir.,
We think that the Court by subsequent action has made it quite plain that it had no such revolutionary purposes in mind. Pennsylvania Railroad Co. v. O’Rourke,
We are aware, of course, that that case dealt immediately with the contest between two Federal statutes, the Longshoremen’s Act, 33 U.S.C.A. § 901 et seq., and the Jones Act, 46 U.S.C.A. § 688, adopting F.E.L.A., 45 U.S.C.A. § 51 et seq. But both in a negative and affirmative way, the Court inevitably dealt with the Jensen problems of a state act,
vis-a-vis
the Federal Act. After reviewing the Jensen history and the passage of the Longshoremen’s and Jones Acts, the Court reaffirmed the constitutional implications. “This act and the Jones Act provided means for indemnification for injuries for all maritime employees who were beyond the constitutional reach of state legislation * * Id. Immediately thereafter it made the decisive-statement that “New Jersey could not have enacted statutes granting compensation for respondent’s injury on navigable water. Therefore respondent comes, within the coverage of that portion of § 903(a) that includes those outside the reach of state compensation laws.” Id.,
O’Rourke was treated by the Court as was the employee in Nogueira v. New York, N. H. & H. R. Co.,
It added the further and entirely new concept that where coverage of § 903(a) is applicable, the exclusive liability of § 905 does not depend on the nature or character of the work being done by the injured employee so long as (1) that injury occurs on navigable waters and (2) the employer is such a person
“any
of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any dry-dock.),” § 902(4). Flowers’ rights under the Act for an injury admittedly received on navigable waters while engaged in the performance of his duties depended, not upon his own status (even though it was purely maritime in nature), but rather upon the fact that his employer, Todd Shipyards Corporation, had
“any
* * employees” engaged in maritime employment. The undisputed facts, the stipulation, and the very nature of its business established conclusively that this condition was fully met. The result here, as there, is plainly indicated for “If * * the accident occurs on navigable waters, the Act must apply if the injured longshoreman [ship repairer] was there in furtherance of his employer’s business, irrespective of’ whether he himself can be labeled ‘maritime.’ Such are the admitted facts of this case.” Pennsylvania R. Co. v. O’Rourke, supra,
Several additional factors reinforce this general conclusion that the Court did not mean for Moore’s and Baskin to capsize all that had existed before.
If, as some have thought,
10
the emphasis in Davis on presumptive validity was primarily a reflection of administrative finality by whichever agency, state or federal, first handles the case, then the action here of the District Court in rejecting state, and sustaining federal, coverage has an additional basis. From an administrative point, Texas has categorically rejected jurisdiction, power of control over this case. Texas did it first by the order of the Industrial Accident Board, Tex.Rev.Civ.Stat.Ann. Art. 8307, dismissing the claim because it was subject to the Federal Act. Texas did it next by the action of the Court below since, in the routine handling of the statutory appeal for a trial de novo, Tex.Rev. Civ.Stat.Ann. Art. 8307, § 5, removed to the Federal Court because of diversity of citizenship, the Federal Court was just another Court
11
of Texas. Guaranty Trust Co. v. York,
*225 A consideration of administrative application of these competing remedies has further significance. The desirability of a readily workable scheme with maximum administrative certainty leads inevitably, if two or more interpretations of these cases are open, to the selection of that one which will most nearly achieve this unattainable ideal. 13 If, as some suggest, literal application of Moore’s and Baskin means that all is either twilight or may be made so by the injured employee, the carefully devised machinery for the orderly, routine processing of compensation benefits under the Longshoremen’s Act will either be wrecked by continual tinkering of State agencies or will fall into a state of disrepair from neglect and nonuse.
Unlike some State compensation acts, the Longshoremen’s Act is almost self-executing. 14 Compensation benefits are payable and paid, medical care and attention furnished, generally without even the necessity of filing a formal claim, as such, almost universally without a formal hearing by the Deputy Commissioner, only in a few cases does the matter proceed to formal hearing and award and even more rare is the resort to the limited judicial review. The heart of any such system is the mandatory report of an injury by the employer within 10 days under § 930(a). A failure to file subjects the employer to the sanctions of civil penalties, § 930(e). With this the Act moves swiftly to require affirmative action by the employer. If disability persists for the statutory minimum, payments of compensation must be commenced within 14 days, § 914(b). The only thing which excuses this is a formal con-troversion filed by the employer, § 914 (d). Failure to commence and continue payment of compensation benefits and to furnish requisite medical aid, care and attention where no controversion is filed subjects the employer again to substantial sanctions, §§ 914(e) and (f).
Was it the purpose of the Supreme Court to put these mandatory provisions of the law in an abandoned state ? Since what is twilight for one is hardly the brilliance of daytime for another, is the employer entitled to ignore their mandate on the supposition that the employee, looking upon this as candid judicial uncertainty, will or might wend his way toward or accidentally get into State jurisdiction? If the choice is for the employee and it need not be made, or at least articulately asserted with persistence until long 15 after the injury, *226 what is to occur in the interim ? 16 Is the phrase “if recovery for the disability * * * through workmen’s compensation proceedings may not validly be provided by State law * * § 903(a), to be now so loosely applied that, whether for constitutional or statutory construction considerations, both Acts may be and are applicable so far as civil and criminal sanctions against the employer are concerned until such time as the employee exerts his right to choose the State remedy? These are not the artificial, academic apprehensions of theoretical hypotheses. These are real and live and present concerns. Where workable certainty, even at the price of “Theoretic illogic,” (concurring opinion Davis, supra) was the aim, we now see about us in this Circuit, every component of which has substantial maritime interests, the unfortunate sight of conflicts in formerly clear areas. These conflicts arise almost wholly from the accidental absence of diversity of citizenship or requisite amount in controversy with the result that, in questions under the particular State compensation act, it is a State Court, rather than a Federal Court, that must apply Federal constitutional principles and Federal principles for the construction of a Federal statute. In three very recent incidents occurring in Louisiana and Texas, both States with extensive maritime activities, State Courts have adjudged the State Compensation Acts applicable to injuries sustained while doing work of a direct and substantial maritime nature which formerly would have been clearly under the Federal Act without even the slightest suggestion of “local concern” or other modifications on the strict Jensen principle.
In two, Richard v. Lake Charles Stevedores Inc., La.App.,
In the Texas case, Indemnity Insurance Co. v. Marshall, Tex.Civ.App.,
Thus, in the field of the actual making of repairs
21
on an existing vessel, hereto
*228
fore always considered clearly under the Federal Act, John Baizley Iron Works v. Span,
What has happened in Texas and Louisiana may soon occur amongst the " maritime workers of Mississippi, Florida and Georgia. If with no marginal employment, no obscurity concerning the nature and kind of work or its importance to maritime commerce, no undefined or undefinable boundaries to set it apart from land-based activity, it is nonetheless left entirely to the choice of the injured employee to determine which route he will take, then Jensen has indeed lost its vitality, the Jensen line of de-markation, reaffirmed in Parker, has been overruled, and administrative finality, emphasized in Davis is just so much makeweight. When the destructive consequences are so rife, when thirty years' experience in the operation of the Longshoremen’s Act would be disturbed by introducing uncertainty and confusion where, as to these two fields of ship repairmen and longshoremen, there is Federal assurance in the everyday administration of the Act, we decline to hold that the Court had such portentous purposes 22 for Moore’s or Baskin.
The outlines of a case of an injury received on navigable waters while engaged in essential repairs to an existing vessel
have long been clear and distinct. As to them, there was no twilight. Moore’s and Baskin were devised to solve cases-in, not to create, the twilight. The District Judge was right in holding that the Texas Act could not apply and that this was a case for the exclusive application, of the Federal Act.
Affirmed.
Notes
. Southern Pacific Co. v. Jensen,
. A story too often told to warrant relating here, it is well set forth with considerable detail and with the benefit of being up to date in The Law of Admiralty, Gilmore and Black (1957), §§ 6-45 through 6-52, pp. 333 et seq. Belated to it is also § 6-53 through 6-62. It has also been treated extensively in Law Reviews frequently under engaging titles. See, e. g., Bodes, Workmen’s Compensation for Maritime Employees: Obscurity in the Twilight Zone, 68 Harvard L.Rev. 637 et seq.; One If By Land, Two If By Sea: A Comparative Study of Remedies Available to Injured Seamen and Land Workers, 30 Tex.Law Rev. 489 et seq.; many others are listed note 66, p. 127, Sprague and Healey, Cases on Admiralty (.1950).
. Rejecting the contention that O’Rourke’s work was primarily that of railroading, the Court said about nonmaritime duties: “The result in Parker, as well, is totally inconsistent with any ‘duties test’. Armistead, the employee there, was a janitor with the motorboat company. Ho had been ordered to ride in one of the boats during a test trip in order to keep a lookout for hidden objects. * * * Compensation under the Harbor Workers’ Act could not have been paid in connection with his death if we were to test its applicability by the nature of his regular work. A number of lower court cases are in similar vein. Those we collect in the margin deal with various types of construction and service workers, obviously not themselves engaged in traditional ‘maritime employment,’ if one were to look solely to the particular type of job they were engaged for.7”
. The Davis case has sometimes been described as “ ‘the first come first served’ rule,” DeBardeleben Coal Corp. v. Henderson, 5 Cir.,
. With no pretense toward scholarly affectation, we list many of these cases to indicate that as to the (a) actual making of (b) repairs to (e) an existing vessel (d) while afloat, from keel to truck in the judicial hierarchy there has never been any real doubt as to its maritime nature, and hence the exclusive application of the Federal Act to the exclusion of State statutes: John Baizley Iron Works v. Span,
In contrast to this, work on an uncompleted hull before it has become a ship is not under Federal coverage and is, on the contrary, under State jurisdiction: Grant Smith-Porter Ship Company v. Rohde,
. Moore’s Case,
. Baskin v. Industrial Accident Commission,
. See, Has the Jenson case Been Jettisoned?, 2 Stanford L.Kev. 542, 546. The article analyzes the uncertainties and points out that if these holdings are applied literally, the two acts, State and Federal, are no longer ever mutually exclusive, but that in every ease the employee has the choice. Starting with the premise that of all types of activity, work as a longshoreman or a ship repairman is the most clear-cut case of employment of a maritime nature, the article concludes :
“But if the Massachusetts interpretation of the twilight zone theory is adopted, is there any logical stopping place short of giving every maritime worker his choice of remedy? Has the Jensen case been completely overruled, leaving state courts as free to apply local law as they were before 1917?
“It is highly probable that the Supreme Court will be called upon to explain the meaning of the Moore’s and Baskin cases in the near future. Until clarification is made, claimants, employers, lawyers, and the lower courts will be more in the dark than ever.”
These and other perplexing uncertainties, including the Court’s citation of these cases in Avondale Marine Ways, Inc. v. Henderson, note 9, infra, are discussed in Gilmore and Black, The Law of Admiralty, §§ 6-50, 51, pp. 350-354. See also, Bodes, 68 Harvard L.Kev. 637, supra, note 2.
. See the concurring opinions Avondale Marine Ways, Inc. v. Henderson,
. See Western Boat Building Co. v. O’Leary, 9 Cir.,
. Of course the law to be applied is wholly Federal in nature so that, on this, the District Judge, unlike an Erie [Erie B. Co. v. Tompkins,
. The employer presumably made the mandatory statutory report of the injury, 33 U.S.C.A. § 930(a), covering the injury of August 19, 1955. Temporary total disability payments of $35.00 per week were paid for 20 weeks from August 20, 1955 to January 6, 1956, for the total amount of $700.
. Stumberg, Injuries Incurred. in Offshore Drilling Operations, University of Texas, Institute on Offshore Drilling Operations, December 1957, p. 14, “All of us yearn for certainty, yet most of us, as lawyers, recognize that there cannot always be a Plimsoll Line.”
. The Annual Report, Department of Labor 1957, p. 70, describes the operation: ‘‘Under the law, the first payment of compensation must be made within 14 days after the employer has knowledge of the injury or death. Known as the direct payment method, the record of timeliness of payment has been singularly good on the part of the majority of private insurance companies and self-insurers. Formal hearings and court proceedings are the exception. Because of the largo number of injury cases involves, however, the amount of administrative work necessarily involved in the district offices is impressive. During 1957, there were 33,981 personal interviews with claimants and employers or their representatives, 13,848 informal conferences relating to claims, 8,027 independent medical examinations ordered, and 342 formal bearings completed.”
. Unless Moore’s and Baskin have altered this too, and two Courts of Appeals have thus far inferentially declined to so hold, Newport News Shipbuilding & Dry Dock Co. v. O’Hearne, 4 Cir.,
. The Annual Report of the administra-don of the Longshoremen’s Act, note 14, supra, demonstrates that large numbers of employees, including those in Flowers’ status, are involved, and that fulfillment of its purpose demands routine, regular, certain, positive administration:
“It is believed that close to 400,000 longshoremen, shipyard repairmen, and other maritime workers are affected. * * * Maritime employment, including shipyard repair operations, showed a 14.4 percent increase in number of injuries reported * *
For 1957 there were 79,820 injury/death eases reported. During the same period 79,212 cases were closed with compensation benefits (excluding medical) totaling $8,780,437. At the year end 15,163 cases were still active.
The average for 1947 — 1949 is even more imposing: 114,296 reported injuries,
116,857 cases disposed of, 11,293 remaining active.
This is in contrast to the few (342) cases disposed of by formal hearings, note 15, supra.
. We did this by sustaining applicability of the Federal Act as opposed to the Louisiana Act in circumstances much more cloudy in Avondale Marine Ways, Inc. v. Henderson, 5 Cir.,
. The Court clearly stated the basis: “Appellee [employee] was injured * * while helping repair a commissioned ship of foreign registry * * *. The vessel had long been engaged in interstate and foreign commerce * * *. It was in a floating drydock, on navigable waters of the United States, *
*
* in Jefferson County. The vessel was being repaired by Bethlehem Steel Corporation under a maritime contract. Appel-lee, a pipefitter, was in the course of his employment with that company when he received his injuries * * *. He claims to have injured himself while lifting into position in the engine room of the ship a valve of some eighty pounds weight.”
. The opinion points out that in the employee’s statutory suit to set aside the award of the Industrial Accident Board dismissing the claim for want of jurisdiction, the plaintiff expressly limited his recovery to the sum of “$2,975 ‘and for no more’ ” for the obvious purpose of preventing removal on diversity. Otherwise this case presumably would have been removed to the Federal District Court, for the Eastern District of Texas, to which Flowers’ suit was removed with subsequent transfer on joint motion, 28 U.S.O.A. § 1404, to the Southern District of Texas.
. The Court stated: “appellant [insurance company] briefs only the jurisdictional question presented by the evidence touching the maritime nature of appel-lee’s employment. We overrule the point, in reliance on Bethlehem Steel Co. v. Moore * * * [also citing Baskin], See, also, Davis v. Department of Labor and Industries of Washington * * *. We are lmable to draw any sound distinction between the facts of this case and those of the Moores case and the Baskin cases, and so feel that those cases must control the disposition of this one. At the same time, we confess difficulty in reconciling the Moores ease and the Bas-kin cases with statements which are contained in the opinion in the later case of Pennsylvania R. Co. v. O’Rourke,
. Another Texas case of doubtful validity, apparently based on the notion rejected in Parker v. Motor Boat Sales, Inc. as well as O’Rourke, supra, that coverage
*228
depends upon the nature of the principal contract of employment as being non-maritime rather than maritime is Em-mons v. Pacific Indemnity Co.,
. Showing that we do not overstate this with an alarmist’s point of view, the last supplemental brief of the Employee in referring to the denial of certiorari in Richard and Marshall, supra, confidently predicts that the bars are now down:
“In disposing of the Lake Charles case, supra, the U. S. Supreme Court evidently swept aside all further considerations of jurisdictional disputes in cases involving either the Federal Longshore Act and the local State Workmen’s Compensation Act. This intended result is. manifest by the fact that Richards was a longshoreman and so alleged himself to. be a longshoreman in his suit brought under the local Louisiana Workmen’s. Compensation Act [LSA-R.S. 23:1021 et seq.].
“Now it must truly be said that the-U. S. Supreme Court unequivocally is on record favoring the injured party’s complete right of choice of forum and local1 or federal remedy, irrespective of maritime considerations at the time of his-injury.”