POWELL, J., concurring in judgment

432 U.S.

Michigan v. Payne, supra, at 59 (MARSHALL, J., dissenting). I remain committed to the approach outlined in my opinion in Williams. Since this case is here on direct review, I concur in the Court's holding that the rule announced in Mullaney v. Wilbur, 421 U. S. 684 (1975), must be applied.

I would add, in view of MR. JUSTICE BLACKMUN's concurring statement, ante, p. 245, that irrespective of the applicability of Patterson v. New York, ante, p. 197, the North Carolina Supreme Court remains free to construe its own State Constitution to give individuals the same protection that it afforded them in its original decision in this case. See Manson v. Brathwaite, ante, at 128-129, and n. 9 (MARSHALL, J., dissenting); United States v. Washington, 431 U. S. 181, 193– 194 (1977) (BRENNAN, J., dissenting); Oregon v. Mathiason, 429 U. S. 492, 499, and n. 6 (1977) (MARSHALL, J., dissenting).

MR. JUSTICE POWELL, concurring in the judgment.

Twelve years ago this Court decided Linkletter v. Walker, 381 U. S. 618 (1965). In the intervening years, we have struggled with the question of retroactivity when new constitutional rules affecting the administration of the criminal law have been adopted. See Beytagh, Ten Years of NonRetroactivity: A Critique and a Proposal, 61 Va. L. Rev. 1557, 1558-1596 (1975). The retroactivity doctrine that has emerged is far from satisfactory. Although on several occasions I have joined in its application, I am now persuaded that it would be wiser to adopt the view urged by Mr. Justice Harlan in Mackey v. United States, 401 U. S. 667, 675-702 (1971) (separate opinion). See also Desist v. United States, 394 U. S. 244, 256–269 (1969) (Harlan, J., dissenting); Williams

*As I noted in Williams, I think there are persuasive reasons to use the Court's traditional retroactivity analysis to decide that issue in cases arising on habeas corpus or other collateral-review proceedings. 401 U. S., at 666.

233

POWELL, J., concurring in judgment

v. United States, 401 U. S. 646, 665–666 (1971) (MARSHALL, J., concurring in part and dissenting in part).

When the Court declines to hold a new constitutional rule retroactive, one chance beneficiary-the lucky individual whose case was chosen as the occasion for announcing the new principle enjoys retroactive application, while others similarly situated have their claims adjudicated under the old doctrine. This hardly comports with the ideal of "administration of justice with an even hand." Desist v. United States, supra, at 255 (Douglas, J., dissenting).1

On the other hand, the holding that a new constitutional principle is fully retroactive also may result in serious costs. Convictions long regarded as final must be reconsidered on collateral attack; frequently they must be overturned for reasons unrelated to the guilt or innocence of the prisoner, and in spite of good-faith adherence on the part of police, prosecutors, and courts to what they understood to be acceptable procedures. Society suffers either the burden on judicial and prosecutorial resources entailed in retrial or the miscarriage of justice that occurs when a guilty offender is set free only because effective retrial is impossible years after the offense. Reopening a case also carries disadvantages for those who have been convicted:

"Both the individual criminal defendant and society have an interest in insuring that there will at some point be the certainty that comes with an end to litigation, and that attention will ultimately be focused not on whether a conviction was free from error but rather on whether the prisoner can be restored to a useful place in the community." Sanders v. United States, 373 U. S. 1, 24–25 (1963) (Harlan, J., dissenting).

1 In addition, as Mr. Justice Harlan noted, the typical nonretroactivity decision often places the Court in the role of a legislature rather than that of a judicial tribunal. Mackey v. United States, 401 U. S., at 677-681.

POWELL, J., concurring in judgment

432 U.S.

See Schneckloth v. Bustamonte, 412 U. S. 218, 262 (1973) (POWELL, J., concurring).

A different approach to the retroactivity question is available. Described in detail in Mr. Justice Harlan's separate opinion in Mackey, supra, it contemplates, in rough outline, that courts apply a new rule retroactively in cases still pending on direct review, whereas cases on collateral review ordinarily would be considered in light of the rule as it stood when the conviction became final. Mr. Justice Harlan marshaled compellingly the reasoning supporting this view, 401 U. S., at 675-698, and for me to repeat the arguments here would be pointless. I note simply that this approach is closer to the ideal of principled, evenhanded judicial review than is the traditional retroactivity doctrine. At the same time it is more attuned to the historical limitations on habeas corpus, see Stone v. Powell, 428 U. S. 465 (1976), and to the importance of finality in a rational system of justice. See Blackledge v. Allison, 431 U. S. 63, 83 (1977) (POWELL, J., concurring).

The case before us is here on direct review. I therefore agree with the Court that Hankerson is entitled to retroactive application of the Mullaney rule. Accordingly, I concur in the judgment.

2 Mr. Justice Harlan described two exceptions under which a new rule occasionally would be applied retroactively even on collateral review. Id., at 692–695. The case he makes for these exceptions is persuasive, but I save for another day when the question is squarely presented a decision on when such exceptions are appropriate. See also Williams v. United States, 401 U. S., at 666 (MARSHALL, J., concurring in part and dissenting in part).

Syllabus

NORTHEAST MARINE TERMINAL CO., INC., ET AL. v. CAPUTO ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

No. 76-444. Argued April 18, 1977-Decided June 17, 1977* In 1972 Congress amended the Longshoremen's and Harbor Workers' Compensation Act (Act) to extend coverage to additional workers in an attempt to avoid anomalies inherent in a system that drew lines at the water's edge by allowing compensation under the Act only to workers injured on the seaward side of a pier. The relevant sections, as so amended, broadened the definition of "navigable waters of the United States" as the required situs of a compensable injury to include “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," 33 U. S. C. § 903 (a) (1970 ed., Supp. V), and also modified the definition of a covered "employee" to mean "any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker," 33 U. S. C. § 902 (3) (1970 ed., Supp. V). Respondent Blundo, whose job as a "checker" at a pier for petitioner International Terminal Operating Co. was to check and mark cargo being unloaded from a vessel or from a container (a large metal box resembling a truck trailer without wheels) which had been taken off a vessel, was injured when, while marking cargo "stripped" (unloaded) from a container, slipped on some ice on the pier. Respondent Caputo, who, though a member of a regular stevedoring "gang" for another company, had been temporarily hired by petitioner Northeast Marine Terminal Co. as a terminal laborer at a pier to load and unload containers, barges, and trucks, was injured while rolling a dolly loaded with ship's cargo into a consignee's truck. Compensation awards to both respondents under the Act, as amended, were upheld by the Court of Appeals. Held:

he

1. Both respondents satisfied the "status" test of eligibility for compensation, since they were both "engaged in maritime employment" and

*Together with No. 76-454, International Terminal Operating Co., Inc. v. Blundo et al., also on certiorari to the same court.

were therefore "employees" within the meaning of § 902 (3) at the time of their injuries. Pp. 265-279.

(a) Congress' intent to adapt the Act to modern cargo-handling techniques, such as containerization, which have moved much of the longshoreman's work off the vessel and onto land, clearly indicates that such tasks as stripping a container are included in the category of "longshoring operations" under § 902 (3), and hence it is apparent that respondent Blundo, whose task was an integral part of the unloading process as altered by the advent of containers, was a statutory "employee" when he slipped on the ice. Pp. 269-271.

(b) Both the text of the 1972 amendments to the Act, which focuses primarily on occupations (longshoreman, harbor worker, etc.), and their legislative history, which shows that Congress wanted a system that did not depend on the fortuitous circumstance of whether the injury occurred on land or over water, demonstrate that Congress intended to provide continuous coverage to amphibious workers such as longshoremen, who, without the amendments, would be covered for only part of their activity, and that therefore the amendments were meant to cover such a person as respondent Caputo, who as a member of a regular stevedoring gang worked either on the pier or on the ship, and who on the day of his injury in his job as a terminal laborer could have been assigned to a number of tasks, including stripping containers, unloading barges, and loading trucks. Pp. 271-274.

(c) Respondents' coverage as "employees" under the Act cannot be defeated by the so-called "point of rest" theory, whereby longshoremen's "maritime employment" would be considered, in the case of unloading, to be taking cargo out of a vessel's hold, moving it away from the ship's side, and carrying it to its point of rest on a pier or in a terminal shed, since that theory appears nowhere in the Act, was never mentioned by Congress during the legislative process, does not comport with Congress' intent, and restricts coverage of a remedial Act designed to extend coverage. Pp. 274-279.

2. The injuries of both respondents occurred on a "situs" covered by the Act. Pp. 279–281.

(a) The truck that respondent Caputo was helping to load was parked inside the terminal area adjoining "navigable waters of the United States." P. 279.

(b) Although respondent Blundo's injuries occurred on a pier used only for stripping and stuffing containers and for storage, rather than for loading and unloading ships, nevertheless he too satisfied the "situs" test, since the pier was located in a terminal adjoining the water, so that