United States Department of Labor
Office of Administrative Law Judges Law Library

JUDGES' BENCHBOOK:
Longshore and Harbor Workers' Compensation Act


TOPIC 1 JURISDICTION/COVERAGE

[January 1998 Revision]

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CONTENTS
1   GENERALLY
1.2   SUBJECT MATTER JURISDICTION
1.3   NO SECTION 20(a) PRESUMPTION OF COVERAGE
[LHWCA 20(a)]
1.4   LHWCA v. JONES ACT
1.4.1   Generally
1.4.2   Master/member of the Crew (seaman)
1.4.3   "Vessel"
[LHWCA 2(21)
1.4.4   Attachment to Vessel
1.4.5   Function of the Vessel
(mission/purpose/maintenance)
1.4.6   Jurisdictional Estoppel
1.5   DEVELOPMENT OF JURISDICTION/COVERAGE
1.5.1   Generally
1.5.2   Navigable Waters
1.5.3   1972 Amendments
1.6   SITUS
[LHWCA 3]
1.6.1   "Over water"
1.6.2   "Over land"
1.7   STATUS
[LHWCA 3]
1.7.1   "Maritime Worker"
("Maritime Employment")
1.7.2   "Harbor-worker"
1.7.3   Bridge Building
1.8   HISTORIC STATUS TESTS
[LHWCA 2(3)]
1.9   MARITIME EMPLOYER
1.10   OUTER CONTINENTAL SHELF LANDS ACT (OCSLA)
1.10.1   Natural Resources Worker
1.11   EXCLUSIONS TO COVERAGE
1.11.1   "Master or member of a crew"
1.11.2   "Small vessel"
1.11.3   Officers and agents of the federal, state, local, or foreign governments
1.11.4   Intoxication as the sole cause of injury
1.11.5   Willful intention to injure or kill self or another
1.11.6   "Employee" exclusions
1.11.7   Clerical/secretarial/security/data processing employees
1.11.8   Employed by a club, camp, recreational operation, restaurant, museum or retail outlet
1.11.9   Marina workers
1.11.10   Employees of suppliers, transporters or vendors
1.11.11   Aquaculture workers
1.11.12   Recreational vessel construction repair
1.11.13   Small vessel building/repairing/dismantling

1.1 GENERALLY

   When considering the concept of "coverage" under the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. 901 et. seq., it must be kept in mind that employment is best thought of as a linear continuum with three major groupings. First, there will be situations where the employment will not be considered "maritime" at all, and therefore, not covered under the LHWCA. (Such employment would more properly be covered under a state workers' compensation system.) Second, there will be the situation where the claimant is a longshore/harbor worker or other "maritime" worker and, thus, is clearly covered under the LHWCA. Third, there will be situations where the employment is maritime in nature, but the worker is more properly classified as a seaman attached to a vessel and entitled to a recovery under the Jones Act (Merchant Marine Act). 46 U.S.C. 688.

   Sections 2(3) (status) and 3(a) (situs) of the LHWCA set forth the requirements for coverage. "Status" refers to the nature of the work performed; "situs" refers to the place of performance. Prior to the enactment of the 1972 Amendments, the LHWCA contained only a situs test. Nacirema Operating Co. v. Johnson, 396 U.S. 212 (1969) (recovery was limited to those injured on navigable waters, including any dry dock). (For a complete discussion of the development of jurisdiction/coverage under the LHWCA, see Topic 1.4.)

   One of the motivations behind the 1972 Amendments, however, was the recognition that modern cargo-handling techniques had moved much of the longshore worker's duties off of vessels and onto the land. Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 6 BRBS 150 (1977). Accordingly, the covered situs of Section 3(a) was expanded, and a status test was added, extending coverage to "maritime employees," including, but not limited to longshore workers, harbor workers, ship repairmen, shipbuilders, and ship breakers. When the definition of "employee" was changed, the definition of "maritime employer" was changed accordingly.

   Subsequently, the LHWCA was again amended in 1984. These amendments primarily affect the concept of jurisdiction by adding several exclusions to coverage.

1.1.1 Standing to File a Claim

   Only a claimant (injured worker, or LHWCA defined dependent of a deceased worker) has the right to file a claim. Nothing in the LHWCA, nor the regulations (specifically 20 C.F.R. 702.221-702.225) gives an employer or carrier the right to file a claim under the LHWCA for an injured employee. The comprehensive scheme of the LHWCA is the whole source of rights and remedies which affords specific rights and remedies by imposing specific responsibilities. Nation v. Morris, 483 F. 2d 577, 588-589 (1973). If no relief is stated in the LHWCA, then no relief exists. Such is the case when an employer, for strategic purposes, attempts to file a claim. Caruso v. Textion Marine, 96-LHC-400 (unpublished)(1997). In Caruso, the injured worker filed a Louisiana state worker's compensation claim. The Louisiana statute, La R.S. 23:1035.2, dictates that the state worker's compensation scheme may not be applied where there is LHWCA coverage. Smith v. Gretna Machine and Iron Works, 646 So.2d 1096 (La. App. 5 Cir. 1994)("La.R.S. 23:1035.2 now divests the state of concurrent jurisdiction in LHWCA situations; it has removed the choice of law forum."); See also: Fontenot v. AWI, Inc., 923 F.2d 1127 at 1132 (5th Cir. 1991)(injured worker's coverage by LHWCA provided an exclusive remedy and therefore barred recovery under state law.)

   However, the Louisiana statute provides no incite as to how the coverage question is to be determined when the injured worker does not file a LHWCA claim. The employer in Caruso attempted to file a LHWCA claim in order for there to be a determination of coverage. The administrative law judge determined that the employer lacked standing to file a claim and that whether or not the claimant was precluded from filing a state compensation claim was a matter for the state court to decide. In this regard it should be noted that it is axiomatic that federal tribunals "should not render advisory opinions upon issues which are not pressed..., precisely framed and necessary for decision." U.S. Alpine Land and Reservoir Co., 887 F.2d 207, 214 (9th Cir. 1989), citing United States v. Fruehauf, 365 U.S. 146, 157 (1961).

[Editor's Note: The Louisiana legislation/jurisprudence conflicts with most other jurisdictions' rulings on the issue of concurrent jurisdiction. See for example: All South Stevedoring Co. V. Wilson, 469 S.E. 2d 348 (Ga. Ct. App. 1996), 1996 AMC 1874 (Georgia recognizes concurrent jurisdiction).] 1.2 SUBJECT MATTER JURISDICTION

   In Ramos v. Universal Dredging Corp., 10 BRBS 368 (1979), a majority of the Benefits Review Board (hereinafter "the Board") held that questions of status and situs involve the Board's subject matter jurisdiction; therefore, these issues may be raised by the Board sua sponte. See also Mire v. Mayronne Co., 13 BRBS 990 (1981). Similarly, in Erickson v. Crowley Maritime Corp., 14 BRBS 218 (1981), the Board held that parties' stipulations concerning coverage under the LHWCA are not controlling, as subject matter jurisdiction cannot be waived.

   The Ninth Circuit, however, reversed the Board's decision in Ramos. Ramos v. Universal Dredging Corp., 653 F.2d 1353 (9th Cir. 1981). The court held that questions of status and situs involve coverage under the LHWCA, not subject matter jurisdiction. The court held that the Board had jurisdiction in Ramos because the injury occurred on navigable waters.

   In Perkins v. Marine Terminals Corp., 673 F.2d 1097 (9th Cir. 1982), rev'g 12 BRBS 219 (1980), the Ninth Circuit reiterated its ruling in Ramos. The touchstone in determining whether admiralty jurisdiction exists is whether the case "involves a significant relationship to traditional maritime activity." Perkins, 673 F.2d at 1101; Ramos, 653 F.2d at 1359 (discussing Executive Jet Aviation v. City of Cleveland, 409 U.S. 249 (1972)).

   The Fifth Circuit has also distinguished jurisdiction from coverage (status and situs). Munguia v. Chevron U.S.A., Inc., 999 F.2d 808, 810 n.2, 27 BRBS 103, 104 n.2 (CRT) (5th Cir. 1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1839 (1994).

[ED. NOTE: Care must be taken, however, in order not to confuse the concepts of subject matter jurisdiction; coverage (situs and status), or as the Ninth Circuit referred to it, "personal jurisdiction;" and the Section 20(a) presumption (a causation allotting mechanism that presumes that the claim comes within the provisions of the LHWCA). In Munguia, which cites to Section 20(a) and New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031, 1038 (5th Cir. 1981), the Fifth Circuit confuses these concepts. 999 F.2d 808, 810 n.2, 27 BRBS 103, 104 n.2 (CRT). One should keep in mind that there must be subject matter jurisdiction before the issue of coverage (situs and status) can be addressed, and only after it is determined that there is coverage will the Section 20(a) presumption come into play. Since the case law often uses the term "jurisdiction" to mean "coverage," as a matter of policy, these terms will be used interchangeably and subject matter jurisdiction will be referred to as, just that, "subject matter jurisdiction."]

1.3 NO SECTION 20(a) PRESUMPTION OF COVERAGE

   There is no presumption of coverage under the LHWCA. The Board has held consistently that the Section 20(a) presumption (a presumption of causation--see Topic 20 infra) does not apply to coverage under the LHWCA. Sedmak v. Perini N. River Assocs., 9 BRBS 378 (1978), aff'd sub nom. Fusco v. Perini N. River Assocs., 622 F.2d 1111 (2d Cir. 1980), cert. denied, 449 U.S. 1131 (1981). The Board derived its position from Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 35 (2d Cir. 1976), aff'd sub nom. Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 6 BRBS 150 (1977), wherein the Second Circuit stated that the Section 20(a) presumption is inapplicable to "an interpretive question of general import such as ... [coverage under Section 3(a)]." 544 F.2d at 48. Accord Stockman v. John T. Clark & Son, Inc., 539 F.2d 264 (1st Cir. 1976), cert. denied, 433 U.S. 908 (1977); George v. Lucas Marine Construction, 28 BRBS 230, 233 (1994), aff'd mem. sub nom., No. 94-70660 (9th Cir. 1996); Davis v. Doran Co. of California, 20 BRBS 121 (1987), aff'd, mem., 865 F.2d 1257 (4th Cir. 1989). See also, Stockman v. John T. Clark & Son of Boston, Inc., 539 F.2d 264, 4 BRBS 304 (1st Cir. 1976), cert. denied, 433 U.S. 908 (1977).

   In Sedmak, the Board held the Second Circuit's reasoning equally applicable to the issue of status under Section 2(3). The Board distinguished and rejected an earlier contrary holding in Overseas African Construction Corp. v. McMullen, 500 F.2d 1291 (2nd Cir. 1974). The Board determined that in McMullen the Second Circuit had held that a prima facie case of coverage had been made. Thus, the court did not rely totally on the Section 20(a) presumption. Sedmak, 9 BRBS at 383.

   In Boughman v. Boise Cascade Corp., 14 BRBS 173 (1981), the Board further explained that it is the claimant's obligation to prove the facts which form the basis of coverage without the benefit of the Section 20(a) presumption because these facts are within the claimant's control.

   Cases holding the Section 20(a) presumption inapplicable to the coverage elements include: Coyne v. Refined Sugars, Inc., 28 BRBS 372 (1994); Palma v. California Cartage Co., 18 BRBS 119 (1986); Sheridon v. Petro-Drive, Inc., 18 BRBS 57 (1986); Wynn v. Newport News Shipbuilding & Dry Dock Co., 16 BRBS 31 (1983).

   In Munguia v. Chevron U.S.A., Inc., 999 F.2d 808, 810 n. 2 (5th Cir. 1993), however, the Fifth Circuit specifically stated that "it should be noted that jurisdiction is presumed under the Act," citing New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031, 1038 (5th Cir. 1981). Turner, in turn, stated that "[t]he Act itself contains a statutory presumption that in the absence of substantial evidence to the contrary, the claim is within the provisions of the Act. This presumption of coverage was first used in connection with the issue of jurisdiction but has been extended to include the nature and extent of the injury." 661 F.2d at 1038.

[ED. NOTE: The cases cited for this point in Turner, however, all deal with the Section 20(a) presumption (a causation allotting mechanism that presumes that the claim comes within the provisions of the LHWCA). As noted previously, Munguia confuses the concepts of subject matter jurisdiction, coverage (situs and status), and the Section 20(a) presumption as to causation.]

1.4 LHWCA v. JONES ACT

1.4.1 Generally

   Although there are several federally-based, maritime-oriented, personal injury remedies for recovery (i.e., general maritime common law, unseaworthiness doctrine, the Death on the High Seas Act, 46 U.S.C. 761, Admiralty Extension Act of 1948, 46 U.S.C. 740, et. seq.), the LHWCA and the Jones Act, 46 U.S.C. 688, are the most prominent, accounting for the overwhelming number of claims. See generally, Calbeck v. Travelers Ins. Co., 370 U.S. 114, 82 S.Ct. 1196 (1962) (admiralty jurisdiction as applicable to LHWCA); Interstate Steamship Co. V. Nielson, 338 F.2d 879 (6th Cir. 1964); Gilmore and Black, The Law of Admiralty, (1975), Chapter 6, "Rights of a Seamen and Maritime Workers; Recovery for Death and Injury," sec. 6-5 n.12 p. 253.

   Importantly, these two acts are mutually exclusive. Thus, when dealing with a "water-based" (as opposed to "land-based") LHWCA claim, it must be determined if the claim falls within the criteria of LHWCA coverage, or belongs more properly under the Jones Act.

[ED. NOTE: There is always the possibility that the claim belongs under neither jurisdiction and should be decided under a state workers' compensation act. See, e.g,, Brockington v. Certified Elec., 903 F.2d 1523-28 (11th Cir. 1990), cert. denied, 498 U.S. 1026 (1991) (land-based electrician injured while riding in boat in which he had helped to load supplies and equipment for a land-based job on an island did not have status under the LHWCA; there was nothing inherently maritime about his tasks as an electrician and the "marine environment" in which he was injured had no connection to the general nature of his employment). See Fontenot v. AWI, Inc., 923 F.2d 1127, 1129 n.9 (5th Cir. 1991); but cf. Randall v. Chevron U.S.A., Inc., 13 F.3d 888 (5th Cir. 1994); Bienvenu v. Texaco, Inc., 124 F.3d 692 (5th Cir. 1997)("we again repair to our troubled efforts to define maritime employment."). For a thorough discussion on coverage when an employee is injured over water see Topic 1.6.1 infra.]

   The Jones Act, in pertinent part, reads as follows:

Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, ... and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury. ... Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.

46 U.S.C. 688 (underscoring added).

   Admiralty jurisdiction and the coverage of the Jones Act depends only on a finding that the injured was "an employee of the vessel, engaged in the course of his employment" at the time of his injury. The fact that a Jones Act petitioner's injury occurred on land is not material. 46 U.S.C.A. 740; Senko v. La Crosse Dredging Corp., 352 U.S. 370, 373 (1957). See also, Swanson v. Marra Bros., Inc., 328 U.S. 1, 4 (1946).

   The Jones Act was passed in 1920; the LHWCA was enacted in 1927 providing recovery for injury to a broad range of land-based maritime workers (only injured over water when originally enacted), but explicitly excluding from its coverage a master or member of a crew of any vessel.

   The LHWCA, in pertinent part, reads as follows:

   The term employee' means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor worker including a ship repairman, shipbuilder, and ship-breaker, but such terms does not include--(g) a master or member of a crew of any vessel; ... .

33 U.S.C. 902(3)).

   It must be kept in mind that the Jones Act does not define "seaman" just as the LHWCA does not define "master or member of a crew." It must also be kept in mind that the Supreme Court has held that the LHWCA restricts the benefits of the Jones Act to "members of the crew of a vessel." Senko, 352 U.S. at 371 (citing Swanson, 328 U.S. 1).

   The LHWCA and the Jones Act in theory are mutually exclusive, so that a "seaman" under the Jones Act is the same as a "master or member of a crew" of any vessel. McDermott Int'l v. Wilander, 498 U.S. 337, 26 BRBS 75 (CRT) (1991); Swanson v. Marra Bros., Inc., 328 U.S. 1, 7 (1946); Pizzitolo v. Electro-Coal Transfer Corp., 812 F.2d 977 (5th Cir. 1987), cert. denied, 484 U.S. 1059 (1988); See also Smith v. Alter Barge Line, Inc., 30 BRBS 87 (1996) (citing Southwest Marine, Inc. v. Gizoni, 502 U.S. 81 (1991)) ("The terms "member of a crew" under the LHWCA and "seaman" under the Jones Act are synonymous.").

   However, from a practical view the limits may not always appear so black and white. See for example Simms v. Valley Line Co., 709 F.2d 409 (5th Cir. 1983) where the Fifth Circuit stated:

   Well recognized are the difficulties faced by injured maritime workers arguably both seaman and harbor workers who must choose whether by what means they will pursue remedies that in substantive theory are perfectly mutually exclusive (the [Longshore] Compensation Act, which for present purposes applies to all but seaman, and the Jones Act, which applies only to seaman, but which seem in practice to frequently overlap each other's borders:
    Thus, despite our continued insistence that a Jones Act "seaman" and a "crew member" excluded from the Longshoreman's Act are one and the same (in other words that the statutes are mutually exclusive) we recognize that in a practical sense, a "zone of uncertainly" inevitably connects the two Acts.

Simms, 709 F.2d at 411-12.

[ED. NOTE: Interestingly, in Simms, the claimant had filed a petition seeking review of an Order of the Board dismissing him as a party from an administrative appeal seeking a determination that the maritime worker was not a seaman. (The employer's worker's comp carrier had appealed the determination of non-seaman status.) Simms had a Jones Act claim pending and did not want to jeopardize his possible determination of seaman status. The Fifth Circuit noted his theory of appealable adverse effects arising out of the unique relationship of the Jones Act and the LHWCA but held that there had not yet been a final Board determination of non-seaman status.]

[ED. NOTE: For the period 1927-1946, the Supreme Court did not recognize the mutual exclusivity of the LHWCA and the Jones Act. Swanson, 328 U.S. 1.]

   "Master or member of a crew" is a refinement of the term "seaman" in the Jones Act; it excludes from LHWCA coverage those properly covered under the Jones Act. Wilander, 498 U.S. 337; White v. Valley Line Co., 736 F.2d 307 (5th Cir. 1984). Thus, the key requirement for Jones Act coverage (seaman status) is indirectly defined by elimination under LHWCA jurisprudence and, vice versa; the key requirement for LHWCA status is the elimination of seaman status (providing of course, the worker is a maritime employee).

   Thus, there is an ever present tension between the LHWCA and the Jones Act. The Jones Act is a maritime negligence statute that gives seamen a right of recovery against a ship or employer. The LHWCA, on the other hand, covers "maritime workers" but excludes members of the crew of a vessel as noted above. The LHWCA fact-finder is the administrative law judge. Recall, that the LHWCA is to be liberally construed with a presumption of coverage.

   There is also jurisprudence noting that the Jones Act is to be liberally construed as well. See Offshore Co. V. Robinson, 266 F.2d 769, 773-774, 1954 AMC 2049, 2054 (5th Cir. 1959); Wilson v. Crowley Maritime, 22 BRBS 459, 460, 462 n. 3(1989)(Jones Act, like the LHWCA is to be liberally construed in the claimant's favor); Cf. Gautreaux v. Scurlock Marine, Inc., 107 F.3d. 331 (5th Cir. 1997)(en banc)(reversing prior longstanding circuit law, held: (1) seamen in Jones Act negligence cases are bound to a standard of ordinary prudence in the exercise of care for their own safety, not to a lesser duty of slight care; (2) Jones Act employers are not held to a higher standard of care than that required under ordinary negligence); Smith v. Tow Boat Serv. & Management Inc., 66 F.3d 336 (9th Cir. 1995)(unpublished)(rejecting "slight care" standard); Karvelis v. Constellation Lines, S.A., 806 F.2d 49, 52-53 and n. 2 (2nd Cir. 1986), cert. denied, 481 U.S. 1015, 107 S.Ct. 1891 (1987)(approving jury instruction informing that both employer and employee, under the Jones Act, are charged with a duty of reasonable care under the circumstances); Robert Force, "Allocation of Risk and Standard of Care Under the Jones Act: Slight Negligence,' Slight Care'?", 25 J.Mar.L.& Comm. 1, 31 (1994). Under the Jones Act, a plaintiff making use of the "saving to suitors" clause, 28 U.S.C.A. 1333, usually requests a jury trial in federal district court. Thus, under the Jones Act, a jury is generally the finder of fact and the issue of seaman status is a mixed question of law and fact.

[ED. NOTE: Article III, 2 of the United States Constitution extends the judicial power of the United States to "all cases of admiralty and maritime jurisdiction. The Judiciary Act of 1789, revised at 28 U.S.C.A. 1333, gave exclusive admiralty jurisdiction to the federal district courts, "saving to suitors, in all cases, the right of a common law remedy where the common law is competent to give it." This clause is the means by which a plaintiff in a Jones Act claim has the right to request a jury trial. For a thorough discussion of the "saving to suitors" clause, see Gilmore and Black, The Law of Admiralty, 2d Ed. (1975).]

   From a practical standpoint, since the Jones Act and LHWCA focus on a worker's employment/duties from two separate viewpoints, the outcome of a case/claim may, to some extent, depend on the forum in which it is adjudicated. But note Figueroa v. Campbell Industries, 45 F.3d 311 (9th Cir. 1995) and see infra There will be occasions when, had the worker instituted an LHWCA claim, an administrative law judge might have found coverage under the LHWCA, but had the same worker, with the same factual situation, instituted a Jones Act claim, a federal district court jury might have found Jones Act coverage and there would not be a Judgment Not On Verdict (JNOV).

[ED. NOTE: For an example of what the Fifth Circuit has described as "a classic instance of the case that could have gone either way," see Abshire v. Seacoast Products, 668 F.2d 832 (5th Cir. 1982). See however the Ninth Circuit where the litigation under the LHWCA and Jones Act went both ways. Ramos v. Universal Dredging Corp., 15 BRBS 140 (1982), remanded from, 653 F.2d 1353 (9th Cir. 1981)(employer could waive situs and status arguments because it only presented issues of "personal coverage"- not subject matter jurisdiction), rev'g 10 BRBS 368, 372 (2(3) and 3(a) presented issues of subject matter jurisdiction that could not be waived by either party). Compare to Ramos v. Universal Dredging Corp., 547 F.Supp. 661 (D. Ha. 1982)(claimant was a seaman as a matter of law).

   And, in fact, at least under present Ninth Circuit case law the LHWCA and Jones Act seem to coexist. Figueroa v. Campbell Industries, 45 F.3d 311 (9th Cir. 1995) See also, Topic 1.4.6 for a discussion on this.]

   In McDermott, Inc. v. Boudreaux, 679 F.2d 452, 459 (5th Cir. 1982), the Fifth Circuit stated:

    Thus, despite our continued insistence that a Jones Act "seaman" and a "crew member" excluded from the Longshoreman's Act are one and the same (in other words that the statutes are mutually exclusive) we recognize that in a practical sense, a "zone of uncertainty" inevitably connects the two Acts. Confronted by conflicting evidence concerning a worker's duties or undisputed evidence concerning an occupation that exhibits the characteristics of both traditional land and sea duties, a fact finder might be able to draw reasonable inferences to justify coverage under either statute. (emphasis added).

   The Fifth Circuit in McDermott, however, went on to note that:

Even the ambiguous employee must elect a remedy, however. Section 5 of the Longshoremen's Act, 33 U.S.C. 905, provides that the employer's liability under the Act is an exclusive remedy. Thus, we have held that the Longshoremen's Act and the Jones Act are "mutually exclusive," Bodden v. Coordinated Caribbean Transport, Inc., 369 F.2d 273, 274 (5th Cir. 1966), and that establishment of an employer's liability under the Longshoremen's Act "effectively abrogates any independent tort liability of the employer to its employees...." Ocean Drilling & Exploration Co. v. Berry Brothers Oilfield Service, Inc., 377 F.2d 511, 514 (5th Cir. 1967), cert. denied, 389 U.S. 849 (1967).

679 F.2d at 459 n.7.

   In Simms, 709 F.2d at 411, the Fifth Circuit went on to state:

...The recognition by this circuit that the Jones Act and the Longshoreman's Act each requires a "liberal application in favor of claimant to effect its purposes," McDermott, supra, 679 F.2d at 458, has further contributed to the zone of uncertainty and to the dilemma of injured workers within it. They, in reaping the rewards of such liberality, may find as Simms asserts is true here, that a formal victory as a harbor worker serves as a practical defect of what is perceived as the greater seaman's remedy, if prevailing under the Compensation Act indeed effectively precludes a subsequent opportunity for relief under the Jones Act. See G. Gilmore & Black, The Law of Admiralty 434-36 (2d ed. 1975)); 4 A. Larson, Workmen's Compensation Law 90.51 (1983); 1 A Benedict on Admiralty 23 (1982); 1 M. Norris, the Law of Maritime Personal Injuries 8-11 (3d ed. 1975).

    While the mere acceptance of Compensation Act benefits without a formal adjudication of seaman status will not preclude a subsequent Jones Act suit, the extent to which collateral estoppel and res judicata will be applied to a Jones Act suit following a formal Board finding of non-seaman status and an award of benefits appears to be a matter of first impression in this circuit (and one about which the commentators suggest there is uncertainty).

709 F.2d 409, 411-12 (footnotes omitted).

   An unsuccessful plaintiff in a Jones Act case (i.e. where there is a finding of no actual Jones Act status) may still be able to bring a claim under the LHWCA since the period for filing a claim is tolled by the filing of the Jones Act claim. 33 U.S.C.A. 913(d). See also Young & Co. v. Shea, 397 F.2d 185 (5th Cir. 1968) (no collateral estoppel in compensation act proceedings following jury findings of no injury in Jones Act suit).

   The Fifth Circuit has held that where an administrative law judge issues a compensation order under the LHWCA ratifying a settlement agreement, a "formal award" is deemed to have been made and the injured party can no longer bring a Jones Act suit for the same injuries. Sharp v. Johnson Bros. Corp., 973 F.2d 423, 26 BRBS 59 (CRT) (5th Cir. 1992), cert. denied, 113 S. Ct. 2333 (1993). The court reasoned that once a final, formal award is made, the parties are no longer free to seek another mutually exclusive remedy.

   In the Fifth Circuit the entry of an order by the administrative law judge constituted a finding that the injuries were compensable under the LHWCA. By seeking and acquiescing to the finding, the plaintiff under the Jones Act case is collaterally estopped from contesting LHWCA coverage. Id.; Fontenot, 923 F.2d at 1133 ("...a finding of LHWCA coverage sought and obtained by the injured worker from the Department should preclude any subsequent action against his employer for the same injury.").

[ED. NOTE: See also Topic 1.4.6, Jurisdictional Estoppel, which includes a discussion of the Ninth Circuit position.]

   In South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251 (1940), overruled by McDermott International v. Wilander, 498 U.S. 377 (1991), an LHWCA case, the Court held that Congress had given to the deputy commissioner (district director), an administrative officer, the authority to determine who is a "member of a crew" under the LHWCA. If there was evidence to support the deputy commissioner's findings, they were conclusive. Id. In Senko v. La Crosse Dredging Corp., 352 U.S. 370 (1957), overruled by McDermott International v. Wilander, 498 U.S. 377 (1991), the Supreme Court applied the same rule to findings by the jury in Jones Act cases. 352 U.S. at 374 ("A jury's decision is final if it has a reasonable basis.").

   The Court in Wilander stated that it was not asked to reconsider this rule, but noted that the question of who is a "member of a crew" and therefore who is a "seaman" is better characterized as a mixed question of law and fact. When the underlying facts are established, and the rule of law is undisputed, the issue is whether the facts meet the statutory standard.

   Significantly, the Court in Wilander summed up the LHWCA/Jones Act clash as follows:

It is for the court to define the statutory standard. "Member of a crew" and "seaman" are statutory terms; their interpretation is a question of law. The jury finds the facts and, in these cases, applies the legal standard, but the court must not abdicate its duty to determine if there is a reasonable basis to support the jury's conclusion. If reasonable persons, applying the proper legal standard, could differ as to whether the employee was a "member of a crew," it is a question for the jury. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-251 (1986). In many cases, this will be true.

Wilander, 498 U.S. at 356, 111 S. Ct. at 818.

   The inquiry into seaman status is of necessity fact-specific; it will depend on the nature of the vessel, and the employee's precise relation to it. See Desper v. Starved Rock Ferry Co., 342 U.S. 187, 190 (1952) ("The many cases turning upon the question whether an individual was a seaman' demonstrate that the matter depends largely on the facts of the particular case and the activity in which he was engaged at the time of injury."). Nonetheless, summary judgment or a directed verdict is mandated where the facts and the law will reasonably support only one conclusion. Anderson, 477 U.S. at 248, 250-51; Texas Co. v. Gianfala, 222 F.2d 382, rev'd per curium, 350 U.S. 879 (1955); Texas Co. v. Savoie, 240 F.2d 674 (5th Cir. 1957); See also Abshire v. Seacoast Products, Inc., 668 F.2d 832 (5th Cir. 1982)(issue of seaman status under Jones Act is to be left to jury even when claim to seaman status appears to be relatively marginal one; "only rarely may a district judge conclude as a matter of law that an injured individual is not a seaman."); Barrios v. Louisiana Const. Materials Co., 465 F.2d 1157 (5th Cir. 1972), citing Senko v. La Cross Dredging Corp., 352 U.S. 370, 77 S.Ct. 415 (1957); rehearing denied 353 U.S. 931, 77 S.Ct. 716 and Grimes v. Raymond Concrete Pile Co., 356 U.S. 252, 78 S.CT. 687 (1958); Producers Drilling Co. v. Gray, 361 F.2d 432 (5th Cir. 1966)(under same circumstances workers are seaman as a matter of law); Soncie v. Trantwein Bros., 275 Cal. App. 2d. 20, 25-26 (1969)(held: bargehand may be summarily adjudged "seaman" as a matter of law); Longmeie v. Sea Drilling Co., 610 F.2d 1342 (5th Cir. 1980).

   However summary judgements on the issue of seaman status:

depend largely on the facts of a particular case, or as stated, or the totality of circumstances. It would be the rare factual situation where the question could be resolved as a matter of law. The Second Circuit put it well in Hawn v, American S.S. Co., 107 F.2d 999 (2d Cir. 1939):
It is impossible to define the phrase, "member of a crew," in general terms; the words are colloquial and their fringe will always be somewhat ragged. Perhaps the best hope is that, as the successive variants appear, they will finally serve rudely to fix the borders."

Bodden v. Coordinated Caribbean Transport, Inc., 369 F.2d 273, 275 (5th Cir. 1966).

   More recently the Supreme Court espoused:

The seaman injury is a mixed question of law and fact, and it often will be inappropriate to take the question from the jury. Nevertheless, "summery judgement or a directed verdict is mandated where the facts and the law will reasonably support only one conclusion."

Harbor Tug and Barge Co. V. Papai, 117 S.Ct. 1535 (1997), citing McDermott International, Inc. v. Wilander, 498 U.S. 337, 356 (1991) and Chandris, Inc. v. Latsis, 515 U.S. 347, 368-369.

   The situation is complicated by the fact that an OALJ case is never routed through the federal district court during its appeal process. (The appeal process is as follows: Office of Administrative Law Judges to the Benefits Review Board to the appropriate circuit court to the U.S. Supreme Court.) As noted in McDermott, Inc. v. Boudreau, 679 F.2d 452 (5th Cir. 1982), this creates a "zone of uncertainty". See, e.g., Fontenot v. AWI, Inc., 923 F.2d 1127 (5th Cir. 1991).

[ED. NOTE: For a well-researched historical treatment of the tension between administrative tribunals (district director/administrative law judge) and the federal courts, see Thorne, "The Impact of the Longshore and Harbor Workers' Compensation Act on Third Party Litigation," Tulane University School of Law Admiralty Law Institute (1993), 68 Tul. L. Rev. 557 (1993).]

   At least one commentator, Thorne, supra, acknowledges that a final finding of non-seaman status by an administrative law judge may bar a Jones Act suit. (Credit, in part, for this deference is attributed to the emergence of independent administrative law judges.) See Sharp v. Johnson Bros. Corp., 973 F.2d 423 (5th Cir. 1992), cert. denied, 113 S. Ct. 2333 (1993); Fontenot v. AWI, Inc., 923 F.2d 1127, 1132 (5th Cir. 1991); Richendollar v. Diamond M Drilling Co., 784 F.2d 580, 582 n. 1 (5th Cir. 1986), aff'd in part and rev'd in part, on recon., en banc, 819 F.2d 124 (5th Cir.), cert. denied, 484 U.S. 944 (1987); Simms v. Valley Line Co., 709 F.2d 409 (5th Cir. 1983; Hagens v. United Fruit Co.,135 F.2d 842 (2nd Cir. 1943). See also Harmon v. Baltimore & Ohio R.R., 560 F. Supp. 914 (D. D.C. 1983), aff'd, 741 F.2d 1398 (D.C. Cir. 1984). Cf. Vilanova v. United States, 851 F.2d 1, 4 (1st Cir. 1988), cert. denied, 488 U.S. 1016 (1989); Grijalva v. United States, 781 F.2d 472 (5th Cir.), cert. denied, 479 U.S. 822 (1986).

[ED NOTE: From a practical standpoint, an injured worker may now think twice before choosing to pursue a Jones Act claim in lieu of a LHWCA claim. See Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir. 1997)(en banc)(reversing prior longstanding circuit law, held (1) seaman in Jones Act negligence cases are bound to a standard of ordinary prudence in the exercise of care for their own safety, not to a lesser duty of slight care; (2) Jones Act employers are not held to a higher standard of care than that required under ordinary negligence); See also Smith v. Tow Boat Serv. & Management, Inc., 66 F.3d 336 (9th Cir. 1995)(unpublished)(rejecting "slight care" standard); Karvelis v. Constellation Lines, S.A., 806 F.2d 49, 52-53 and n.2 (2nd Cir 1986), cert. denied 481 U.S. 1015, 107 S.Ct. 1891 (1987)(approving jury instruction informing that both employer and employee under Jones Act are charged with duty of reasonable care under the circumstances).

   Gautreaux concluded that "[t]he reasonable person standard under the Jones Act becomes one of the reasonable seaman in like circumstances. To hold otherwise would unjustly reward unreasonable conduct and would fault seaman only for their gross negligence, which was not the contemplation of Congress." See Robert Force, "Allocation of Risk and Standard of Care Under the Jones Act: Slight Negligence,' Slight Care'?", 25 J.Mar.L. &Comm. 1, 31 (1994). Thus, a worker preferring the security of workers compensation will file under the LHWCA coverage rather than gamble on a Jones Act claim where a finding of unreasonableness on the part of the maritime worker could deny him coverage.

1.4.2 Master/member of the Crew (seaman)

   In order to determine whether an employee is excluded under the LHWCA as a "member of a crew," this term of art must itself be examined.

   The terms "member of a crew" under the LHWCA and "seaman" under the Jones Act are synonymous. Smith v. Alter Barge Line, Inc., 30 BRBS 87 (1996) (citing Southwest Marine, Inc. v. Gizoni, 502 U.S. 81 (1991)). The LHWCA and the Jones Act in theory are mutually exclusive, so that a "seaman" under the Jones Act is the same as a "master or member of a crew" of any vessel. McDermott Int'l v. Wilander, 498 U.S. 337, 26 BRBS 75 (CRT) (1991); Swanson v. Marra Bros., Inc., 328 U.S. 1, 7 (1946); Pizzitolo v. Electro-Coal Transfer Corp., 812 F.2d 977 (5th Cir. 1987), cert. denied, 484 U.S. 1059 (1988)

   In Chandris, Inc. v. Latsis, 115 S.Ct. 2172 (1995), the Court recently revised the test for determining whether an employee is a member of the crew (seaman). The new test is a refinement of the land-based/sea-based dichotomy of workers noted by the Court in McDermott International, Inc. v. Wilander, 498 U.S. 337 (1991). The new test states that in order to be classified as a seaman, the following criteria must be met:

(1) A worker's duties must contribute to the function of the vessel or to the accomplishment of its mission; and

(2) A seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature.

[ED. NOTE: Naturally subsumed within this test is the requirement that there must be a "vessel". For a definition of "vessel" see Topic 1.4.3. Also note that in Papai the Court has now defined what as "identifiable group of vessels" or "fleet" actually is. See infra at Topic 1.4.3]

   A variation of this test was first developed by the Fifth Circuit in Offshore Co. v. Robison, 266 F.2d 769 (5th Cir. 1959), and refined in McDermott, 679 F.2d 452. In Wilander, the Supreme Court adopted this test as defined in McDermott, and recently, and most significantly, this test was revised by the Court in Chandris.

   In Wilander, the Court addressed the type of activities that a seaman must perform and held that under the Jones Act, a seaman's job need not be limited to transportation related functions that directly aid in the vessels navigation. The Court determined that, although "it is not necessary that a seaman aid in navigation or contribute to the transportation of the vessel, a seaman must be doing the ship's work." 498 U.S. at 355. The Court concluded that under both the Jones Act and general maritime law "all those with that peculiar relationship to the vessel' are covered under the Jones Act, regardless of the particular job they perform." Id. at 354.

   Specifically, the Wilander Court stated:

We believe the better rule is to define "master or member of a crew" under the LHWCA, and therefore "seaman" under the Jones Act, solely in terms of the employee's connection to a vessel in navigation. This rule best explains our case law, and is consistent with the pre-Jones Act interpretation of "seaman" and Congress' land-based/sea-based distinction. All who work at sea in the service of a ship face those particular perils to which the protection of maritime law, statutory as well as decisional, is directed. ... It is not the employee's particular job that is determinative, but the employee's connection to a vessel.

498 U.S. at 354, 111 S. Ct. at 817 (emphasis added).

   In Chandris, the Court clarified what employment-related connection to a vessel in navigation is necessary for a maritime worker to qualify as a seaman under the Jones Act. The Chandris Court determined what relationship a worker must have to the vessel in navigation regardless of the specific tasks the worker undertakes, in order to obtain seaman status.

   The Chandris Court articulated two basic principles of seaman status:

(1) " seamen do not include land-based workers'" 115 S. Ct. 2172, 2185 (quoting Wilander, 498 U.S. at 348); and (2) "Jones Act coverage depends not on the place where the injury is inflicted but on the nature of the seaman's service, his status as a member of the vessel, and his relationship as such to the vessel and its operation in navigable waters.'" Id. (quoting Swanson v. Marra Bros., 328 U.S. 1, 4 (1946)). Further, the Chandris Court acknowledged that cases under the LHWCA "recognize the converse: land-based maritime workers injured while on a vessel in navigation remain covered by the LHWCA." Id. at 2186. The Court added: "A maritime worker does not become a member of a crew' as soon as the vessel leaves the dock." Id.

   Thus, the Court, in Chandris, developed a status-based standard, that although it determines Jones Act coverage without regard to the precise activity in which the worker is engaged at the time of the injury, nevertheless best furthers the Jones Act's remedial goals. As set out above, to qualify as a seaman under the Jones Act (and therefore be excluded under the LHWCA), the worker's duties must contribute to the function of the vessel or to the accomplishment of its mission, and the worker must have a connection to a vessel in navigation (or an identifiable group of vessels) that is substantial in both duration and nature. 115 S.Ct. 2172. Thus, the employment connected to a vessel in navigation must be substantial both in terms of the nature of the work done and in terms of duration for there to be seaman status.

   Importantly for LHWCA purposes, the Chandris Court noted the Fifth Circuit's "temporal gloss" of Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067 (5th Cir. 1986) (en banc), wherein a worker whose regular duties require him to divide his time between vessel and land, had to have his crew status determined in the context of his entire employment with his current employer. Citing the rule of thumb used by the Fifth Circuit in ordinary cases, the Court stated: "a worker who spends less than about 30 percent of his time in the service of a vessel in navigation" is not performing a substantial portion of work "on board" and the worker is not a crew member. 115 S.Ct. at 2192; see Barrett, 781 F.2d at 1075; see also id. at 1077 (Rubin, J., dissenting).

   However, the Court cautioned that "seaman status is not merely a temporal concept" but rather is one element to be considered. Chandris, at ___U.S.___, 115 S.Ct. at 2191. The Ninth Circuit has noted that "the duration of time aboard a vessel is not enough, standing alone, to determine status as a seaman under the Jones Act." Boy Scouts of America v. Graham, 76 F.3d 1045 (9th Cir. 1996); See also Heise v. Fishing Co. Of Alaska, Inc., 79 F.3d 903 (9th Cir. 1996) for a Ninth Circuit application of the Chandris formula. See also O'Hara v. Weeks Marine, Inc. 928 F.Supp. 257 (E.D.N.Y. 1996) for an application of Chandris by a district court in the First Circuit. The Chandris Court declared that "[t]he ultimate inquiry is whether the worker in question is a member of the vessel's crew or simply a land-based employee who happens to be working on the vessel at a given time." 115 S.Ct. at 2191.

   In Wilson v. Crowley Maritime, 30 BRBS 199 (1996), the Board followed Chandris in holding that although a claimant spent 75% of his time aboard employer's barges, as a "cargo operations manager," claimant was not a seaman since most of his duties consisted of preparing for and supervising the loading of employer's dock-tied barges and claimant's duties upon completion of this task. Thus, the Board found that claimant's duties with employer were those traditionally associated with longshore work. Moreover, claimant was a land-based employee in that he lived on shore, had a shore-based office, and except for a few occasions, in emergency situations, never went to sea with the barges.

   See also Smith v. Alter Barge Line, Inc., 30 BRBS 87 (1996) (decedent who worked as a welder repairing barges and as a mate trainee/deckhand on tugboat was covered under LHWCA because most of his work was as a welder).

   The Court also rejected the "voyage test" (anyone working on board a vessel for the duration of a "voyage" in furtherance of the vessel's mission has the necessary employment-related connection to qualify as a seaman). The voyage test would have allowed the worker's activities at the time of the injury to be controlling. This voyage test relied on previous Court statements that the Jones Act was designed to protect maritime workers who are exposed to the "special hazards" and "particular perils" characteristics of work on vessels at sea. 115 S. Ct. at 219. ("Seaman status is not coextensive with seaman's risks." Id.)

   Chandris approved the "fleet seaman doctrine" under which a worker who works on several vessels is a seaman only if he works on a fleet of vessels under common control. See e.g., Reeves v. Mobile Dredging & Pumping Co., Inc., 26 F.3d 1247, 1995 AMC 352 (3d Cir. 1994); Vowell v. G & H Towing Co., 870 F.Supp. 162 (S.D.Tex. 1994); Harbor Tug and Barge Co. v. Papai, 117 S.Ct. 1535 (1997), 1997 U.S. LEXIS 2846 (refined fleet doctrine). Prior employments with independent employers can not be considered in making the seaman status inquiry since that would undermine "the interest of employers and maritime workers alike in being able to predict who will be covered by the Jones Act...before a particular work day begins." Papai, 117 S.Ct. 1535. The Court went on to state that there would be no principled basis for limiting which prior employments are considered for determining seaman status. It does not matter that all of the worker's employment was through the same hiring hall or that the union agreement classified claimant as a deckhand. For more on fleeting doctrine, see Topic 1.4.3.

       In Anders v. Ormet Corp., 874 F.Supp. 738 (M.D.La. 1994), a worker who accepted compensation benefits after an Administrative Law Judge found him not to be a seaman was collaterally estopped from claiming seaman status. But see Figueroa v. Campbell Indus., 45 F.3d 311 (9th Cir. 1995) (example of dual coverage where court found that while the LHWCA is the exclusive remedy for a covered "employee," "employee" does not include "crew member/master," and therefore employee was allowed to recover both LHWCA benefits and pain/suffering under the Jones Act because a substantial portion of employment occurred on the tug).

1.4.3 Vessel

[ED. NOTE: One must keep in mind that while there must be a determination that there is a "vessel" for purposes of the Jones Act (and therefore, the exclusion of the right to benefit under the LHWCA), the lack of vessel status does not necessarily preclude LHWCA coverage.]

   As defined by Congress, a "vessel" is "every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water." 1 U.S.C. 3. See also 46 U.S.C. 801. Obviously, this is a very broad definition. In fact, under a literal interpretation, any floating structure that could be used for transportation is a vessel. See John T. Lozier, Comment, 20 Tul.Mar.L.J. 139, 143 (1995). Thus, a barge with no mobility of its own, would fit the description. (See, however, the discussion as to whether a barge's transportation function is primary or has become incidental to its use as a work platform, infra.)

   Congress may have attempted to narrow the definition of "vessel" in the Shipping Act of 1916, where "vessel" is defined as "all water craft and other artificial contrivances of whatever description and at whatever stage of construction, whether on the stocks or launched, which are used or capable of being or are intended to be used as a means of transportation on water." 46 U.S.C. 801 (1988). Unfortunately, this definition only adds to the variety of other ambiguous definitions.

   The statutory definition of vessel that applies to the LHWCA is equally unhelpful. As amended in 1972, Section 2(21) of the LHWCA defines "vessel" as:

any vessel upon which or in connection with any person entitled to benefits under this Act suffers injury or death arising out of or in the course of his employment, and said vessel's owner, owner pro hac vice, agent, operator, charter or bare boat charterer, master, officer, or crew member.

33 U.S.C. 902(21).

   The jurisprudential definition of "vessel" has come to include, but not be limited to ships, barges, drilling barges, jack-up rigs, submersibles, and semi-submersibles. Note, these last three are not fixed platforms, rather they are floating structures, or structures capable of flotation.

[ED. NOTE: Fixed platforms will be addressed infra.]

    A submersible rig has hulls upon which it floats while being towed to the work site. At the site, the hulls are flooded and "submerged" until they come to rest on the bottom. The drilling deck (sometimes called the Texas deck) is built on long steel columns that extend upward from the hulls. Hence, the drilling deck is well above the water. Like jack-up rigs, submersibles are limited to relatively shallow water.

   A jack-up is constructed so that it floats with its "legs" up when being moved to the work site. Once at the site, the legs are cranked down to the ocean floor. Then the hull is "jacked up" on the same legs allowing the work area to be raised about 50 feet above the water level. Jack-up rigs are limited to drilling in water depths of up to 350 feet.

   A drill barge or drill ship is a barge with a drilling derrick that is towed to location and anchored in place. It is essentially shaped like any ocean-going ship. However, drilling equipment (and other modifications) make a drill ship distinctive. Drill ships are the most mobile of rigs and are often used to drill discover, or wildcat, wells in deep, remote offshore waters.

   A semi-submersible is similar to a submersible in that it has two hulls upon which the rig floats as it is being towed to the work site. As semi-submersible is a cross between a submersible and a barge. Once at the site, the hulls are designed so that, when flooded, they do not settle on the bottom. Rather, they submerge about 50 feet after which special anchors are lowered to complete the mooring of the rig. In reality, a semi-submersible floats but not on the water's surface.

[ED. NOTE: For illustrations and a discussion of oil-well drilling, including detailed explanations of the drilling rig and its components, see A Primer of Oil-Well Drilling, by Ron Baker (Petroleum Ext. Service: The Univ. Of Texas at Austin, Fourth Ed. 1979).]

   The basic criterion used to establish whether a structure is a vessel is "the purpose for which [it] is constructed and the business in which it is engaged." The Robert W. Parsons, 191 U.S. 17, 30, 24 S.Ct. 8, 12 (1903). "The fact that it floats on the water does not make it a ship or a vessel " Cope v. Vallette Dry-Dock Co., 119 U.S. 625, 627 (1887). The business or employment of a watercraft is determinative, rather than its size, form, capacity, or means of propulsion. See 119 U.S. at 629-30.

"Fleet of vessels"

   Attachment to a fleet of vessels may be substituted for attachment to a single vessel. Langston v. Schlumberger Offshore Servs., 809 F.2d 1192 (5th Cir. 1987). Working aboard 15 different vessels owned by 10 different owners, however, does not constitute working on vessels that were part of a "fleet." Id. In Harbor Tub and Barge Co. V. Papai, 117 S.Ct. 1535 (1997), the Court narrowed the fleet concept it had developed in Chandris, Inc. v. Latsis, 5115 U.S. 347, 115 S.Ct. 2172 (1995)(substantial connection or control is an important part of the seaman status test). In Papai, the Court further stated that there must be common ownership of the vessels for it to be considered a fleet. The Court explained that considering prior employments with independent employers in making the seaman status inquiry would undermine "the interest of employers and maritime workers alike in being able to predict who will be covered by the Jones Act...before a particular work day begins." 117 S.Ct. 1535 (1997). The Court went on to state that there would be no principled basis for limiting which prior employments are considered for determining seaman status. The use of the same union hiring hall which draws from the same pool of employees is not sufficient. Neither is a union agreement classifying the worker as a deckhand.

   Thus the Supreme Court reversed the Ninth Circuit. The Ninth Circuit had held that "if the type of work a maritime worker customarily performs would entitle him to seaman status if performed for a single employer, the worker should not be deprived of that status simply because the industry operates under a daily assignment rather than a permanent employment system." Harbor Tug and Barge Co. v. Papai, 67 F.3d 203, 206 (1995). The Ninth Circuit also had held that because the worker had worked for Harbor Tug on twelve occasions during the 2.5 months before the injury, this circumstance "may in itself provide a sufficient connection" to Harbor Tug's vessels to establish seaman status.

[ED. NOTE: While the Court in Papai could have simply put a gloss on Chandris' requirement that an employee show "a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both duration and its nature," Chandris, at 368, it chose instead to further differentiate between land-based and sea-based workers by inquiry as to whether the employee's duties take him to sea: "This will give substance to the inquiry both as to the duration and nature and the employee's connection to the vessel and be helpful in distinguishing land-based from sea-based employees." Papai, 117 S.Ct 1535 (1997). The Court could simply have held that there was a "controlling entity" (i.e. that employers who used the hiring hall) in order to have had this employee be successful under the seaman status inquiry. Instead, the Court used this case to continue engineering a major realignment of LHWCA(land based)/ Jones Act (sea based) maritime law.]

   The Court held that:

   "Since the substantial connection standard is often the determinative element of the seaman inquiry, it must be given workable and practical confines. When the inquiry further turns on whether the employee had a substantial connection to an identifiable group of vessels, common ownership or control is essential for this purpose."

117 S.Ct 1535 (1997).

   However a strong dissent by Justice Stevens, with whom Justices Ginsberg and Berger joined, noted that if all of the deckhand's work had been preformed by the worker for one towing company, there "would be no doubt about [his] status as a seaman." 117 S.Ct 1535 (1997). As the dissent stated, "Today, the majority apparently concludes that an employee is not necessarily protected by the Jones Act even if he was injured aboard a vessel in navigation and his work over the proceeding two years was primarily seaman's work." 117 S.CT 1535 (1997)

   In Robison, the Fifth Circuit had listed as an alternative requirement of seaman status "substantial work" instead of being permanently assigned to a vessel. Barrett v. Chevron U.S.A., Inc., 781 F.2d 1067 (5th Cir. 1986) (en banc), went a step further, focusing on the duration of an employee's assignment in relation to his entire employment. See also Reeves v. Mobile Dredging & Pumping Co., 26 F.3d 1247 (3rd Cir. 1994); Johnson v. Continental Grain Co., 58 F.3d 1232 (8th Cir. 1995); but see Fisher v. Nichols, 81 F.3d 319, 323 (2nd Cir. 1996)(rejecting common ownership or control requirement).

[ED. NOTE: There are possibly two instances when a maritime worker might not be attached to either a vessel or technically to a fleet of vessels and yet may still have seaman status under the Jones Act. However, the reader is cautioned that while Papai did not mention "anchor handlers or "river pilots" the same Papai fleet doctrine may, and in the case of pilots, probably does now apply to issues of status involving these types of work (remember Bach II). The result of applying the Papai test is not a per se exclusion of pilots from Jones Act coverage. Blue water pilots do sleep on there boats for days or weeks at a time, and thus are more likely to be found as passing the seaman's status test. This is differentiated from the brown water pilots that tend to sleep ashore at night. The facts must be studied closely in order to determine the strength of the connection to the vessel. Thus the following discussion should be viewed cautiously.]

   In Bertrand v. International Mooring & Marine, 700 F.2d 240 (5th Cir. 1983), cert. denied, 464 U.S. 1069 (1984), anchor handlers who spent all of their time aboard vessels "used" by their employer, met the fleet general exception and would be covered under the Jones Act. This case should be noted with care, however, since it is probably limited to a particular fact situation.

   In Evans v. United Arab Shipping Co., 767 F. Supp. 1284 (D.N.J. 1991), the court found that, based on Wilander, a river pilot is a Jones Act seaman because at the time the Jones Act was passed prevailing general maritime law categorized a river pilot as a seaman. The district court concluded that if a plaintiff's position is indispensable to a vessel even though there is no permanency, the permanency can be overlooked if the person is performing an essential navigation function. The district court concentrated on the river pilot's essential navigational function and substitution for the vessel's captain/master.

   In Harwood v. Partredereit, 944 F.2d 1187 (4th Cir. 1991), cert. denied, 112 S. Ct. 1265 (1992), however, the Fourth Circuit found the river pilot not to be a Jones Act seaman, but rather, covered under the LHWCA. The court found that permanent attachment to a vessel or fleet of vessels was still a requirement under Wilander. The strong and well-written dissent in this case is noteworthy and makes reference to the historic position of the United States Employment Compensation Commission (the federal agency charged with compensation matters when the LHWCA was passed). Pre-1972 amendment jurisprudence held that pilots were not covered by the LHWCA.

   In Bach v. Trident Steamship Co., 920 F.2d 322 (5th Cir.), vacated, 111 S. Ct. 2253 (1991), reinstated on recon., 947 F.2d 1290, cert. denied, 112 S. Ct. 1996 (1992), the Fifth Circuit held that a river pilot is not a Jones Act seaman because he is not permanently attached to a vessel or fleet of vessels. The Supreme Court vacated and remanded Bach for further consideration in light of Wilander, 111 S. Ct. 2253 (1991) (issue of river pilot raised but not decided). The Fifth Circuit on remand again found that a river pilot is not a seaman stating: "We did not base our decision on Bach's seaman status on the relationship of his duties to navigation. Indeed, this issue was never in doubt. Instead, we concluded that Bach was not a seaman because he was not permanently assigned to any particular vessel or fleet of vessels." 947 F.2d at 1291.

   Similarly, in Stoller v. Evergreen, (N.D. Calif. 1992) (unpublished), the northern district of California held that a pilot should not be a Jones Act seaman because no employment relationship existed with the vessel.

[ED. NOTE: Thus, both the Fourth and the Fifth Circuits, have held that a river pilot is not a Jones Act seaman. Since a river pilot performs his duties on navigable water aiding in navigation and maritime commerce, he should be found to be covered under the LHWCA. Ironically, a river pilot possibly may be entitled to an unseaworthiness remedy under the general maritime law as a "Sieracki Seaman." See Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946) (longshoreman injured while working aboard a ship was classified as a "seaman" and therefore entitled to sue under the unseaworthiness doctrine). This "Sieracki Seaman" classification was theoretically supposed to have ended with the enactment of the 1972 amendments to the LHWCA. In return for giving up general maritime law/unseaworthiness remedies for recovery, longshore and harbor workers were to benefit from the landward extension of coverage under the amended LHWCA.]

   In the Fifth Circuit, the Sieracki concept (see note above) is not completely obliterated. See Cormier v. Oceanic Contractors, 696 F.2d 1112 (5th Cir.), cert. denied, 464 U.S. 821 (1983); Aparicio v. Swan Lake, 643 F.2d 1109 (5th Cir. 1981). In Smith v. Harbor Towing & Fleeting, 910 F.2d 312 (5th Cir. 1990), cert. denied, 499 U.S. 906 (1991), however, the Fifth Circuit held that the remedy of unseaworthiness was available only to seamen or members of the crew of a vessel. But see: Blancq v. Hapag-Lloyd, 1997 WL 732421 (E.D.La.); Laakso v. Mitsui & Co. U.S.A., Inc., 1989 WL 149186 at *8-*9 (Dec. 6, 1989 E.D.La)(unpublished but still has precedential value under 5th Circuit Local Rules); Clark v. Solomon Navigation, Ltd., 631 F.Supp. 1275 (S.D.N.Y. 1986).

   The Third, Fourth, and Ninth Circuits have held to the contrary. (Remedy of unseaworthiness is available to non-seamen.) Normile v. Maritime Co. of Philippines, 643 F.2d 1380 (9th Cir. 1981); Lynn v. Heyl & Patterson, Inc., 636 F.2d 1209 (3d Cir. 1980), United States Lines v. United States, 593 F.2d 570 (4th Cir. 1979).

   The Board has held that a claimant is not a Jones Act seaman where the worker's assignment to a vessel was random, sporadic, and transitory; and where the claimant worked not only on the employer's 20 mooring launches, but also aboard tugboats and ocean-going vessels which employer had contracted to moor. Griffin v. T.Smith & Son, Inc., 25 BRBS 196 (1992). The Board reasoned that the claimant was never assigned to nor did he perform a substantial part of his work aboard any vessel; and claimant lacked any permanent connection with a fleet of vessels. Therefore, the claimant was deemed to be a linesman and boat operator who moored vessels at docks as a linesman and who drove boats around ships as a boat operator.

"In Navigation"

   Note also that the vessel must be in navigation, or capable of being in navigation, in order to be considered a vessel under the LHWCA. (This should not be confused with the status of a vessel under construction where a ship fitter is clearly covered under the LHWCA and he cannot possibly be classified as a seaman.)

   The "vessel in navigation" element does not require the vessel to have been in actual operation at the moment of the injury or death in question. McDermott, Inc. v. Boudreaux, 679 F.2d 452 (5th Cir. 1982). A vessel is "in navigation," although moored to a pier, in a repair yard for periodic repairs or while temporarily attached to an object. Griffith v. Wheeling-Pittsburgh Steel Corp., 521 F.2d 31, 37 (3d Cir. 1975), cert. denied, 423 U.S. 1054 (1976) (a non-motive barge utilized on the river to transfer coal from one area to another is considered to be a vessel in navigation for purposes of the Jones Act); Gallop v. Pittsburgh Sand & Gravel, 696 F. Supp. 1061 (W.D. Pa. 1988) (dredging platform operating in the river is a vessel in navigation for purposes of seaman status under the Jones Act).

Fixed Platforms

   A fixed platform is generally constructed as a semi-permanent or permanent structure. Pilings are first driven deep into the seabed and the platform is floated out and either sunk in place and permanently secured or constructed on the site. The process of securing a fixed platform is similar to constructing a building on land. Moving a fixed platform requires dismantling and reconstruction at another location. See e.g., Rhode v. Southeastern Drilling Co., Inc., 667 F.2d 1215 (5th Cir. 1928).

   A fixed platform is not a vessel. In Rodrique v. Aetna Casualty & Surety Co., 395 U.S. 353, 89 S.Ct. 1835 (1969), the Supreme Court interpreted Section 1333(a)(2)(A) of the Lands Act (43 U.S.C. 1333(a)(2)(A)) to "deliberately eschew the application of admiralty principles" to incidents occurring on fixed platforms. The Court found that admiralty "no more applies to these accidents than it would to accidents occurring in an upland federal enclave or on a natural island " 395 U.S. at 366, 89 S.Ct. at 1842. Following Rodrique, courts have regarded fixed platforms as "islands" or extensions of land for admiralty jurisdiction purposes. See e.g. Ellison v. Conoco, Inc., 950 F.2d 1196 (5th Cir. 1992); Ladue v. Chevron U.S.A., Inc., 733 F.Supp. 1075 (E.D.La. 1990), aff'd 920 F.2d 272 (5th Cir. 1991); Smith v. Pan Air Corp., 684 F.2d 1102 (5th Cir. 1982).

   In cases decided by the Fifth Circuit dealing with the "member of a crew" (seaman) exclusion, the court has held that an employee who worked on a fixed platform on the Outer Continental Shelf is not a seaman under the Jones Act because a fixed platform is not a vessel in navigation; thus, the claimant's exclusive remedy was under the LHWCA as extended by the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. 1333 et. seq. (Since the OCSLA incorporates the remedies and not the criteria of the LHWCA, a covered employee under the OCSLA need not be engaged in maritime employment as is required under the LHWCA.) Stansbury v. Sikorski Aircraft, 681 F.2d 948 (5th Cir. 1982), cert. denied, 459 U.S. 1089 (1982).

Floating dry docks

   Whether or not a structure is a vessel frequently arises with regard to a floating structure or platform that has a specialized function in a port, harbor, or shipyard. The paradigm case is the floating dry dock, which is used for the repair and construction of boats, ships, and other craft. While in use, such structures are not in navigation and have virtual permanent attachment to the shore. Based upon a strict interpretation of the purpose test as set out in Cope v. Vallette Dry-Dock Co., 119 U.S. 625, 627 (1887), these structures are normally held not to be vessels. 119 U.S. 625. See also Keller v. Dravo Corp., 441 F.2d 1239, 1244 (5th Cir. 1971), cert. denied, 404 U.S. 1017 (1972) (As a matter of law, a floating dry dock is not a vessel when it is moored and in use as a dry dock). Recently, however, drydocks have been built to be mobile and, often, they are commonly towed long distances. Consequently, a drydock that is mobile and "committed to navigation" may be a vessel even where in mid-voyage, it is temporarily harbored in a fixed location. J.M.L. Trading Corp. v. Marine Salvage Corp., 501 F. Supp. 323 (E.D.N.Y. 1980); see also United States v. Moran Towing & Transp. Co., 374 F.2d 656 (4th Cir. 1967), vacated on other grounds 389 U.S. 575 (1968), on remand 302 F.Supp. 600 (D.Md. 1969)

   It is important to note that Section 903 of the LHWCA specifically enumerates that a worker killed or injured aboard a dry dock is entitled to compensation.

Floating work platforms, barges, rigs, and rafts

   In Herb's Welding v. Gray, 470 U.S. 414 (1985), the Court stated:

[F]loating structures have been treated as vessels by the lower courts.... [W]orkers on them, unlike workers on fixed platforms, enjoy the same remedies as workers on ships. If permanently attached to the vessel as crewmembers, they are regarded as seamen; if not, they are covered by the LHWCA because they are employed on navigable waters.

   Certain structures which are used for the exploration and production of oil and gas have produced a great amount of litigation over vessel status. In Offshore Co. V. Robison, 266 F.2d 769 (5th Cir. 1959), the court held that a floating submersible jack-up oil rig (see supra for definition) is a vessel since its inherent characteristic is the ability to be towed from place to place. Id. Since Robison, many structures designed to be moved on a regular basis have been held to be vessels. See Producers Drilling Co. V. Gray, 361 F.2d (5th Cir. 1966) (submersible drilling barge designed to transport drilling equipment, submerge for drilling operation, and refloat for movement to new site, is a vessel); Hicks v. Ocean Drilling & Exploration Co., 512 F.2d 817 (5th Cir. 1975) (submersible oil storage facility is a vessel); Parks v. Dowell Div. of Dow Chem. Corp., 712 F.2d 154 (5th Cir. 1983) (drilling tender, capable of transporting men and equipment, which is anchored for extended periods of time to fixed offshore platform, is a vessel).

   A "movable drilling unit" which had been moved only twice in 20 years and was attached to the bottom by pilings driven into the sea bed, though designed for navigation, was not "in navigation" at the time of injury and not intended to be moved and thus, was not a vessel. Hemba v. Freeport McMoran Energy Partners, 811 F.2d 276 (5th Cir. 1987); Marathon Pipe Line v. Drilling Rig Rowan/Odessa, 761 F.2d 229, 233 (5th Cir. 1985) (floating, movable jack-up drilling rig is a vessel for purposes of admiralty law); Lewis v. Keyes 303, Inc., 834 F. Supp. 191 (S.D. Tex. 1993) (floating, movable jack-up drilling rig).

   However, several cases illustrate that floating structures are not always what they seem to be, or what they were constructed to be. Although these cases deal primarily with barges that have become work platforms, a case dealing with a small raft has provided the basis for a loose test to determine whether or not a platform is a "vessel." Bernard v. Binnings Constr. Co., 741 F.2d 824 (5th Cir. 1984).

   Floating work platforms which were determined not to be vessels had at least some of the following criteria in common:

(1) The structures were constructed/re-constructed for use primarily as work platforms;

(2) The structures were moored/secured when the injury occurred;

(3) Although "capable" of movement and sometimes moved, the transportation function was merely incidental to the primary purpose of serving as a work platform;

(4) The structure generally had no navigational lights and/or navigational equipment;

(5) The structures had no means of self-propulsion;

(6) The structures were not registered with the Coast Guard;

(7) The structures did not have crew quarters/a galley.

   This test is a composite based principally on Bernard, 741 F.2d 824, and the following noted cases. Bernard specifically set out the first three criteria. See 741 F.2d at 831.

   See also Green v. C.J. Langenfelder & Sone, Inc.,30 BRBS 77 (May 9, 1996) (dredge, with no engine or navigational capabilities except for pull lines, which was used to excavate oysters and load them onto barges, and moored to virtually the same position during each 6-month work cycle held not to be a vessel).

   See also Burchett v. Cargill, Inc., 48 F.3d 173 (5th Cir. 1995) (midstream bulk cargo transfer barge which was constructed/used primarily as work platform, which had been moored for ten years, and whose transportation function was incidental to its primary purpose, was not a vessel); Sharp v. Wausau Ins. Cos., 917 F.2d 885 (5th Cir. 1990), amended sub nom. Sharp v. Johnson Bros. Corp., 923 F.2d 46 (5th Cir. 1991) (four barge assemblies, including two spud barges and two flat deck barges used in connection with rebuilding a bridge and which were frequently moved during the work could be vessels--case remanded to trial court for a jury determination); Ellender v. Kiva Constr. & Eng'g, 909 F.2d 803 (5th Cir. 1990) (general purpose and spud barges assembled solely to build a platform were transported to a job until its completion; a crane temporarily positioned on the spud barge is not equivalent to a derrick barge); Menard v. Brownie Drilling Co., 1991 U.S. Dist. LEXIS 13531 (E.D. La. 1991) (workover rig placed on barge which was lowered and sunk until the job was finished, then floated to a new location was not a barge).

   See also Gremillion v. Gulf Coast Catering Co., 904 F.2d 290 (5th Cir. 1990) (a quarter boat barge specially equipped with living quarters/work area brought to a shore, and which was spudded down and moored, was not a vessel); Ducrepont v. Baton Rouge Marine Enters., 877 F.2d 393 (5th Cir. 1989) (cargo barge converted to a stationary work platform by permanently mooring to shore and only moved short distances due to water level changes was not a vessel); Davis v. Cargill, Inc., 808 F.2d 361 (5th Cir. 1986) (cargo barge converted to a permanent painting and sandblasting work platform anchored to the river bed and permanently attached to land was not a vessel though moved to accommodate changing river tides).

   See also Waguespack v. Aetna Life & Casualty Co., 795 F.2d 523 (5th Cir. 1986), cert. denied, 479 U.S. 1094 (1987) (small floating work platform permanently located in a slip and used to facilitate removal of grain barge covers is not a vessel); Blanchard v. Engine & Gas Compressor Servs., 575 F.2d 1140 (5th Cir. 1978), question certified, 590 F.2d 594 (5th Cir. 1979) (barges sunk in marsh to use as compressor station and not moved in 15 years, with no intent to move are not vessels); Cook v. Belden Concrete Prods., 472 F.2d 999 (5th Cir.), cert. denied, 414 U.S. 868 (1973) (barge which became a construction platform on which concrete barges were built, served as a stationary platform and was not a vessel).

   See also Ducote v. Keeler & Co., 953 F.2d 1000 (5th Cir. 1992) (for purposes of determining whether floating structure is a "vessel," one objective factor used to determine whether the primary purpose of the structure is that it is used for transportation, is raked bow. Although the mere presence of raked bow does not mean that the floating structure is a "vessel," raked bow is a piece of evidence from which conflicting inferences could be drawn).

   But see Tonnesen v. Yonkers Contracting Co., Inc., 82 F.3d 30 (2d Cir. 1996) (Second Circuit disagreed with regard to the first Bernard factor (namely, the Fifth Circuit's focus on the original purpose of the structure), finding that the first prong of the test should focus on the present purpose of the floating structure).

   In this regard, it is important to note that a floating dry dock may serve as a floating platform. See e.g., Bernard, 741 F.2d at 832. Tonnesen is also noteworthy for the fact that the Second Circuit reversed the district court's summary judgement on seaman status, remanding the matter for further fact-finding as to whether the floating platform was "a vessel in navigation." The Second Circuit noted several Fifth Circuit cases dealing with the factual determination necessary to determine vessel status. The circuit court determined that factual issues prevented summery judgement.

   Construction and Repairs

   A ship under construction on land, not on or in navigable waters and incapable of floating, is not a vessel. Richendollar v. Diamond M Drilling Co., 819 F.2d 124 (5th Cir.), cert. denied, 484 U.S. 944 (1987). (Note, however, that a person working on such a vessel would be covered under the LHWCA as a shipbuilder.)

   A hull under construction, floating on navigable waters, but not itself navigable, which did not yet have navigation equipment installed and had not undergone dock and sea trials, and had no crew assigned to it, did not qualify as a "vessel." Rosetti v. Avondale Shipyards, 821 F.2d 1083 (5th Cir. 1987), cert. denied, 484 U.S. 1008 (1988).

   A vessel being repaired on land does not necessarily lose its vessel status. In Chandris, Inc. v. Latsis, the Court held that a vessel does not cease to be "in navigation" merely because it is taken to a dry dock or shipyard to undergo repairs. __U.S.__, 115 S.Ct. 2172, 2193 (1995). The question of whether repairs are sufficiently significant so that the vessel can no longer be considered to be in navigation is a question of fact for the jury to decide. Id.

<   One must keep in mind that Section 903 provides compensation to workers who die or are injured while repairing or building a vessel. The above cases are included in the materials to remind the reader that the lack of a vessel means there is no Jones Act coverage, not that there is no LHWCA coverage.

   Helicopters, Seaplanes, etc.

   An amphibious military vehicle known as a LARC has been found to be a vessel under the LHWCA. Stevens v. Metal Trades, 22 BRBS 319 (1989).

   Aircraft, helicopters, and even seaplanes are ordinarily not vessels, since their purpose is to fly through the air, not to navigate on water. See Smith v. Pan Air Corp., 684 F.2d 1102 (5th Cir. 1982); Barger v. Petroleum Helicopters, 692 F.2d 337 (5th Cir. 1982), cert. denied, 461 U.S. 958 (1983); Herbert v. Air Logistics, Inc., 720 F.2d 853 (5th Cir. 1983).

   A seaplane that is navigating on the water may be a vessel, however. Reeves v. Offshore Logistics, Inc., 720 F.2d 835 (5th Cir. 1983).

   Airplane/helicopter pilots are not excluded from coverage under the LHWCA on the grounds that they are members of crews. A pilot traveling over water, however, is not automatically covered under the LHWCA as a maritime employee.

   In Ward v. Director, OWCP, 684 F.2d 1114, 15 BRBS 7 (CRT) (5th Cir. 1982), rev'g 14 BRBS 74 (1981), cert. denied, 459 U.S. 1170 (1983), the court cited Smith, 648 F.2d 1102, reiterating that a plane is not a vessel under the Jones Act and, therefore, that the airplane pilot, a fish spotter, was not excluded from LHWCA coverage as a member of a crew. The court found coverage because the claimant was injured on actual navigable waters. Importantly, the fish spotter was found to be engaged in maritime employment over navigable waters. See also Barnard v. Zapata Haynie Corp., 23 BRBS 267 (1990).

   A submerged cleaning and maintenance platform known as a SCAMP has been found to be a vessel. Wenzel v. Seaward Marine Services, Inc., 709 F.2d 1326 (9th Cir. 1983)(Relying on the "Bullis test," Bullis v. Twentieth Century Fox Film Corp., 474 F.2d 392, 393 (9th Cir. 1973) the Ninth Circuit found that a SCAMP - a saucer-shaped unit six feet in diameter and twenty inches deep, which traveled underwater along a ship's hull and could be operated manually by divers - was a vessel.) The Bullis test was reaffirmed by the Ninth Circuit in Gizoni v. Southwest Marine Inc., 909 F.2d 385 (9th Cir. 1990), aff'd, 502 U.S. 81, 112 S.Ct. 486 (1991).

   It has been suggested that "three men in a tub would also fit within our definition [of vessel], and one probably could make a convincing case for Jonah inside whale." Burks v. American River Transp. Co., 679 F.2d 69, 75 (5th Cir. 1982).

1.4.3.1 Floating Dockside Casinos

[ED. NOTE: This newly developing area of potential coverage acutely focuses attention on the pre-existing problems of coverage under the LHWCA. As with typical coverage issue cases, a worker who is able to place himself within the jurisdiction of the Jones Act will, generally, recover the most. (As will be discussed below, securing Jones Act coverage for a casino worker thus far has been an unsurmountable hurdle.) If a Jones Act action in federal district court fails, the worker will next most likely benefit from coverage under the LHWCA as opposed to state compensation coverage This newly developing area of potential coverage acutely focuses attention on the pre-existing problems of coverage under the LHWCA. As with typical coverage issue cases, a worker who is able to place himself within the jurisdiction of the Jones Act will, generally, recover the most. (As will be discussed below, securing Jones Act coverage for a casino worker thus far has been an unsurmountable hurdle.) If a Jones Act action in federal district court fails, the worker will next most likely benefit from coverage under the LHWCA as opposed to state compensation coverage.]

   While the LHWCA specifically denies coverage to workers employed by a "recreational operation" under section 902, there remains no appellate case law defining this phrase. (See infra for discussion on whether an employee of a dockside casino is entitled to LHWCA coverage). Nonetheless, a gambling casino seemingly falls within this exclusion. A determination of whether a floating gambling casino is a vessel necessarily follows.

   The "recreational operation" exclusion to coverage, Section 2(3)(B), is without definition, though it is grouped with several other items which hint at its possible parameters. It is noteworthy that at the time of enactment of this exclusion, there were no floating gaming/gambling casinos and, therefore, no direct Congressional Record comments on point.

   In consolidated appeal of Pavone v. Mississippi Riverboat Amusement Corp., 53 F.3d 560 (5th Cir. 1995); and Ketzel v. Mississippi Riverboat Amusement, Ltd., 867 F. Supp. 1260 (S.D. Miss. 1994); a bartender and a cocktail waitress (respectively) on the Biloxi Belle, a floating dockside casino, sued under the Jones Act and general maritime law to recover for injuries sustained in the course of their employment. The Biloxi Belle was originally constructed on a barge for the purpose of supporting a floating restaurant and bar in Corpus Christi, Texas. It was later moved to Arkansas Pass, Texan where it was moored for two and a half years before being re-outfitted as a dockside floating casino. The structure was then towed to Biloxi, Mississippi. There, the structure was indefinitely moored to shore by lines tied to sunken pylons that were filled with concrete. Its first level was connected to shore by steel ramps, its second level was joined to a shoreside building, and it was connected to shoreside utilities. It contained a faux pilot house and other purely visual effects including a nonfunctional paddle wheel turned by a small motor. The barge was documented by the United States Coast Guard and was towed to sheltered waters when Hurricane Andrew threatened on August 23, 1992. Pavone, 53 F.3d 560.

   The issue presented to the Fifth Circuit in Pavone was whether the Biloxi Belle was a Jones Act vessel so that the plaintiffs could assert claims as Jones Act seaman:

In particular, we examine the status of the Biloxi Belle as of the times pertinent to the alleged injuries in these cases to determine if it was a Jones Act vessel assuming arguendo that the subject craft was built and used for non-vessel purposes, was moored other than temporarily to the bank, and either had been "withdrawn from navigation" or was being used as a "work platform," or both.

Id. at 568.

   After analyzing the withdrawn-from-navigation factors and the work platform attributes, and comparing the characteristics of the Biloxi Belle with the structures which have been held as a matter of law to be non-vessels, the Fifth Circuit concluded that "there can be little doubt that indefinitely moored, shore-side, floating casinos, such as the Biloxi Belle, must be added to that list." Id. at 570. Consequently, the court held that the Biloxi Belle was removed from navigation and was a work platform so that it did not qualify as a vessel. Id.

   The weight of the trial court decisions also establish that a floating dockside casino is not a vessel. Ketzel v. Mississippi Riverboat Amusement, Ltd., 1995 AMC 1385, 867 F. Supp. 1260 (S.D. Miss. 1994) ("Similar to [a] floating factory' and [a] floating dance hall' , the Biloxi Belle is nothing but a floating casino' it is not a vessel'"); In Re: Biloxi Casino Belle Inc., White v. MRA, LTD, d/b/a/ Casino Belle of Tunica, 176 Bankr. 427 (1995).

[ED. NOTE: Ironically, the trial judge in Ketzel went further than simply making a determination that there was no "vessel" for the purposes of the Jones Act coverage. The trial judge improperly ruled on the question of LHWCA coverage: "Ketzel's complaint alleged, alternately, that her claim stated a cause of action under the [LHWCA]. However, Ketzel's job as a cocktail waitress is not included among the occupations intended by Congress to constitute Longshoremen.'" Ironically, the trial judge in Ketzel went further than simply making a determination that there was no "vessel" for the purposes of the Jones Act coverage. The trial judge improperly ruled on the question of LHWCA coverage: "Ketzel's complaint alleged, alternately, that her claim stated a cause of action under the [LHWCA]. However, Ketzel's job as a cocktail waitress is not included among the occupations intended by Congress to constitute Longshoremen.'" 867 F.Supp. 1260, 1262 n.2]

   IIs There LHWCA Jurisdiction for Floating Dockside Casinos?

   The OALJ has had several casino related cases. The fact patterns are very distinguishable. In two decisions, jurisdiction was not found, while in a third, jurisdiction was found. As will become apparent, the determination as to whether or not there is coverage will be significantly affected by: 1) what type of floating casino structure (vessel or non-vessel) is involved, and 2) what the worker's job is and who he/she works for.

   Both Arnest v. Mississippi Riverboat, Ltd., 29 BRBS 423 (ALJ) (1995) and Peters v. Roy Anderson Building Corp., 29 BRBS 437 (ALJ) (1995), administratively affirmed by the Board, BRB No. 95-2098(unpublished), involved Mississippi dockside casinos. Under the Mississippi Gaming Statute, gambling can only take place on a "cruise vessel" on navigable waters. Mississippi casinos situated along the gulf of Mexico are more or less permanently moored barges (attached to pilings) with casino structures built above the structures. See Peters, 29 BRBS at 441. While Mississippi may consider these to be "cruise vessels," under present maritime law, these structures can not be considered vessels. Id. at 441-442 (citing Pavone v. Mississippi Riverboat Amusement, Ltd., 52 F.3d 560 (5th Cir. 1995)).

   However, this does not automatically mean that there is no coverage under the LHWCA. Under the LHWCA, the term employee does not include "individuals employed by a recreational operation, restaurant, museum or retail outlet." 2(3)(B) and 20 CFR 701.301 (12)(i) and (iii). In Arnest, the administrative law judge held that, while the exclusion does not specifically list casinos, when one focuses on Congressional intent, one can readily conclude that this was the type of employment contemplated by Congress.

   While there is some room for argument against this result, such an argument would be on a less than solid foundation. Arnest rests on a very solid footing for several reasons:

(1) there were no dockside casinos in existence in 1984 when the LHWCA amendments were passed which excluded recreational operations;

(2) the 1984 amendments were specifically intended to exclude employees in non-maritime occupations from coverage. ["The legislative history explains that the excluded activities and occupations either lack a substantial nexus to maritime navigation and commerce or do not expose employees to the type of hazards normally associated with longshoring, shipbuilding and harbor work." Cong. Rec. 11622-23 September 20, 1984.];

(3) Since the 1984 amendments specifically excluded restaurants and retail outlets, it would be grossly unfair to find coverage for a blackjack floor supervisor/pit manager on a dockside floating casino while disallowing coverage to the wait person serving cocktails to the blackjack table or for that matter, to the restaurant/snack bar personnel, bartenders and clerks in gift shops of these attached dockside floating casinos.

   Thus, Arnest concludes that an employee of a casino working on a completed, attached, dockside casino is precluded from coverage by the 1984 Section 2(3)(B) amendments. In fact, the Congressional Record indicates that "the common thread running through the changes exempting certain activities...is probably the belief that these activities and occupations either lack a substantial nexus to maritime navigation and commerce or do not expose employees to the type of hazards normally associated with longshore, shipbuilding, and harbor work.."Cong. Rec. S11623 Sep. 20, 1984.

[ED. NOTE: On the other hand, using the Congressional Record cited in Arnest, one could argue that the purpose of the amendment excluding "recreational operations" was an attempt to exclude only purely water-related small enterprises such as water-paddle bicycles, etc. For example, one senator noted that the 1972 amendments had "pushed the Longshore Program beyond reasonable limits. Coverage is now extended to nearly a million workers who, during a workday may come near the water's edge. Even workers in the pleasure boating industry and in summer camps, marina, and maritime museum have been deemed to be covered by the Longshore Act." Cong. Rec. s11627 (Sep. 20, 1984).]

   However, as Peters illustrates, a person working on a dockside casino helping to build and/or repair the casino, would not fall under this exclusion if such person is not employed by the recreational operation itself. Section 2(3)(B). [Also, it should be noted that 2(3)(F) can be interpreted as meaning, if the recreational vessel (casino) is less than 65 feet long, any individual, no matter who he/she is employed by, is not covered under the LHWCA, provided of course, they are covered under a state workers' compensation law. Section 2(3)(F) is written in such a way that one can arguably distinguish between recreational vessel under 65 feet and recreational vessel 65 feet and over.]

   In Peters the claimant was employed as a laborer for the general contractor building the Grand Casino in Biloxi, Mississippi. Most of the labor she performed was in the casino structure being erected on the barges on the water although she sometimes worked on adjoining land projects. On the day of her injury she was assigned to a clean up crew and also assisted in setting up tables, booths and chairs in a restaurant area (involving bolting booths together and putting them in place.)

   In Peters, the ALJ determined that there was coverage. Peters reaches the correct result in the Fifth Circuit. The lead Fifth Circuit case on "status"/"maritime employment" is Randall v. Chevron, 13 F. 3d. 888 (5th Cir. 1994). In Randall, the worker was injured (died) on navigable waters in the course of his employment, he was engaged in maritime employment. Under Randall, coverage is extended "to workers injured while transiently or fortuitously upon actual navigable waters..." The place of injury (death) satisfied "status." Similarly, in Eolema v. Bracken Const. Co., 95-LHL-898(unreported)(June 18, 1996)), the judge relied on Director, OWCP v. Perini North River Associates, 450 U.S. 297, 324 (1983)(worker injured upon navigable waters in the course of employment is covered under 2(3)).

[ED. NOTE: Note, however, that this is the Fifth Circuits' position. Randall took Perini a step further by including as covered those who are transient and injured while functioning over water. The Eleventh Circuit (in a non-casino case) is contra. Brockington v. Certified Elec., 903 F.2d 1523-28 (11th Cir. 1990), cert. denied, 498 U.S. 1026 (1991). For a though discussion of coverage while injured over water see Topic 1.6.1 infra.]

   In Segrave v. M M C Mechanical Contractors, 29 BRBS 222 (ALJ) (1995) the claimant was a lead plumber working on the drainage system for a parking lot at the future cite of the Jubilee Casino in Mississippi at the time of the injury. He was in a ditch in the parking lot installing a pipe to a storm drain when injured, approximately 300 feet from the concrete pier. The administrative law judge held that this worker was clearly beyond the scope of Section 3(a) of the LHWCA, and was thus denied coverage under the LHWCA.

Floating Casino/Riverboat Gambling Jurisdiction Test

(1.) Who is the employer?

a. If the employer is the gambling operation, the majority view is that the LHWCA exclusion applies, and there is no LHWCA coverage. (Claimant must look to state compensation coverage or to the Jones Act if factual situation warrants)

(2.) If the employer is not the gambling enterprise:

a. Was Claimant injured over water during the course of regular employment, though only transiently over water?
  • If yes, and in the Fifth Circuit, or Sixth Circuit there is LHWCA coverage.
  • If yes, and in the Eleventh Circuit, there is no LHWCA coverage.
  • In other circuits, the issue is undecided.

b. Was Claimant injured over water during course of regular employment?
  • If yes, it is probably "maritime employment" and there is probably coverage.
c. Did the injury/accident occur over land ?
  • If yes, regular LHWCA factors come into play and an analysis of situs and status must be performed.

1.4.4 Attachment to Vessel

   To be classified as a seaman, a worker must be permanently assigned to, or perform a substantial part of his work, on board a vessel(s). See, e.g., Barrett v. Chevron U.S.A., Inc., 781 F.2d 1067 (5th Cir. 1986) (en banc) (a welder's helper on a jack-up barge who performed most of his duties on stationary platforms (70 to 80 per cent) and who worked 14 days on/7 days off, was covered under the LHWCA, though he was injured on the barge, because he could not fit on the caisson in this particular instance.)

   The court found that the circumstances of the claimant's injury could not be viewed in isolation but must be considered in relation to the welder's other duties. (Judge Rubin strongly dissented arguing that a moment-of-injury test should have been applied.) See also Miller v. Rowan Cos., 815 F.2d 1021 (5th Cir. 1987). See also the river pilot exception, infra, at "Fleet of Vessels," where an employee is deemed a seaman even though he is not assigned "permanently" to a vessel or fleet of vessels.

[ED. NOTE: It is unclear whether or not Robison's "substantial work" alternative has survived the Wilander "permanent assignment" criteria especially in lieu of Wilander's focus on "sea-based" workers (as opposed to land-based workers) and Wilander's "employment-related connection" to a vessel or fleet. But see Easley v. Southern Shipbuilding Corp., 965 F.2d 1 (5th Cir. 1992) ("substantial part of work on vessel" test used). One commentator has suggested first looking for permanent assignment, and if there is none, then applying Barrett, 781 at 1075 n.13, looking to the duration of the employee's assignment in the context of his "entire employment" with the current employer. Allbritton, "Seaman Status In Wilander's Wake," Tulane Admiralty Law Institute, 68 Tul. L. Rev. 373 (1993).]

   See also Domingue v. Settoon Marine, 959 F.2d 966 (5th Cir.) (unpublished), cert. denied, 113 S. Ct. 77 (1992); Easley v. Southern Shipbuilding Corp., 936 F.2d 839 (5th Cir. 1991), vacated and remanded, ___U.S.___, 112 S. Ct. 1463 (1992), on remand, 965 F.2d 1 (5th Cir. 1992), cert. denied, 113 S.Ct. 969 (1993) (11.5 percent of mechanic's time spent on board a derrick barge as a substitute deckhand does not equate with performing a substantial part of his work on a vessel); Palmer v. Fayard Moving & Transp. Corp., 930 F.2d 437 (5th Cir. 1991) (worker who spent nineteen per cent of her time aboard a vessel was not covered by the Jones Act as a matter of law); Buccellato v. New York, 808 F. Supp. 967 (E.D.N.Y. 1993) (giving lip service to Wilander, the court determined that it was a jury question as to whether a garbage worker who assisted in moving garbage barges but never leaves the dock, is a seaman or not).

   The measure of LHWCA status, as opposed to Jones Act status, is the character of the employee's work taken as a whole, not in piecemeal time increments or in distinct but temporary job assignments. It is not just the work in which he was engaged at the moment of his injury that is examined, but rather, the entirety of his duties. In Gay v. Barge 266, 915 F.2d 1007, 1010 (5th Cir. 1990), the Fifth Circuit stated:

Focusing solely on the employee's activity at the time of injury might bar suits by a whole host of workers in other maritime occupations who are injured while temporarily performing repair work.... [T]o deny [the plaintiff] a cause of action in the morning but to grant him one in the afternoon is to make his rights under the [LHWCA] as random and indiscriminate as the sea herself.

Id. at 1010-11. Only when a worker's permanent job assignment has changed during the course of his employment is the worker entitled to have the substantiality of his vessel-related work evaluated for a period less than the total time employed by his current employer. Lormand v. Superior Oil Co., 845 F.2d 536, 540 (5th Cir. 1987), cert. denied, 484 U.S. 1031 (1988).

[ED. NOTE: As noted previously, admiralty jurisdiction and the coverage of the Jones Act depends only on a finding that the injured was "an employee of the vessel, engaged in the course of his employment" at the time of his injury. The fact that a Jones Act petitioner's injury occurred on land is not material. 46 U.S.C.A. 740; Senko v. La Crosse Dredging Corp., 352 U.S. 370, 373 (1957); Swanson v. Marra Bros., Inc., 328 U.S. 1,4 (1946). See McDermott, Inc. v. Boudreaux, 679 F.2d 452, 462 (5th Cir. 1982); Guidry v. South Louisiana Contractors, 614 F.2d 447 (5th Cir. 1980) (plaintiff was held as a matter of law not to be a seaman employee of his shore based "borrowing" employer; whether he was a seaman employee of his "lending" employer vessel owner was held to be a question of fact); Porche v. Gulf Miss. Marine Corp., 390 F.Supp. 624, 630-31 (E.D. La. 1975). Therefore one must keep in mind that, simply because an employee is injured on land, the employee does not conveniently and automatically fall into a particular classification.]

1.4.5 Function of the Vessel (mission/purpose/maintenance)

    As previously noted, the Court in Wilander adopted the more liberal Fifth Circuit Robison test. Wilander provides an extensive synopsis of jurisprudence dealing with who is a "seaman." The liberal use of this term is apparent when one considers that a fisherman, chambermaid, waiter, and bartender have all been held to be "seamen" because their services were in furtherance of the main object of the enterprise in which the ship was engaged. As Wilander approvingly stated, general maritime law does not require that a "seaman" aid in navigation; it is only necessary that a person be engaged on board a vessel in furtherance of its purpose. Wilander, 498 U.S. at ___, 111 S. Ct. at 817.

1.4.6 Jurisdictional Estoppel

   Judicial estoppel precludes a party from gaining an advantage by taking one position and then seeking a second advantage by taking an incompatible position. Rissetto v. Plumbers & Steamfitters Local 343, 94 F.3d 597 (9th Cir. 1996) citing 18 Charles A Wright, Arthur R. Miller & Edward H. Cooper, Fed. Practice and Proc. 4477 (1981 & Supp. 1995); Yanez v. United States, 989 F.2d 323, 326 (9th Cir. 1993); Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990), cert. denied, 501 U.S. 1260, 111 S.Ct. 2915 (1991).

   This doctrine of judicial estoppel has also been referred to as "a doctrine of preclusion of inconsistent positions." Rissetto at 600; Russell at 1037. See also Axelrod, "Res Judicata and Collateral Estoppel: A Sword And A Shield," Longshore Newsletter, Vol. XIV, Issue 5 (Aug. 1996).

   In Russell, the Ninth Circuit explained:

The policies underlying preclusion of inconsistent positions are general considerations of the orderly administration of justice and regard for the dignity of judicial proceedings.... Judicial estoppel is intended to protect against a litigant playing fast and loose with the courts.... Because it is intended to protect the dignity of the judicial process, it is an equitable doctrine invoked by a court at its discretion.

893 F.2d 1037. In Yanez, the Ninth Circuit noted that the doctrine of judicial estoppel remains unsettled:

The majority of circuits recognizing the doctrine hold that it is inapplicable unless the inconsistent statement was actually adopted by the court in the earlier litigation.... The minority view, in contrast, holds that the doctrine applies even if the Litigant was unsuccessful in asserting the inconsistent position, if by his change of position he is playing "fast and loose" with the court.... In either case, the purpose of the doctrine is to protect the integrity of the judicial process.

989 F.2d at 326 (citations omitted.) (Bold facing added.)

   Despite its name, many cases have applied the doctrine of judicial estoppel where the prior statement was made in an administrative proceeding. Rissetto at 604 ("...[w]e are not aware of any case refusing to apply the doctrine because the prior proceeding was administrative rather than judicial."); see Chaveriat v. Williams Pipe Line Co., 11 F.3d 1420, 1427 (7th Cir. 1993) ("Though called judicial estoppel, the doctrine has been applied, rightly in our view, to proceedings in which a party to an administrative proceeding obtains a favorable order that he seeks to repudiate in a subsequent judicial proceeding.") (collecting cases); Smith v. Montgomery Ward & Co., 388 F.2d 291, 292 (6th Cir. 1968) (position taken in workers' compensation proceedings estopped party in subsequent personal injury action); Simo v. Home Health & Hospice Care, 906 F. Supp. 714, 718 (D.N.H. 1995) (Social Security Administration disability proceeding): Zapata Gulf Marine Corp. v. Puerto Rico Maritime Shipping Auth., 731 F. Supp. 747, 750 (E.D. La. 1990) (Interstate Commerce Commission proceeding).

   The rule of judicial estoppel has been justified on the ground that "[t]he truth is no less important to an administrative body acting in a quasi-judicial capacity than it is to a court of law." Mullner v. Mars, Inc., 714 F.Supp. 351, 357 (N.D. Ill. 1989) (quoting Dept. of Transp. v. Coe, 112 Ill. App.3d 506, 510, 445 N.E.2d 506 (4th Dist. 1983).

   As noted, maritime law permits claimants to pursue both LHWCA and Jones Act remedies for the same injury, based on inconsistent claims as to the employee's status at the time of injury. Ryan v. McKie, 1 BRBS 221, 224-225 (1974). OALJ retains subject matter jurisdiction over the injured worker's longshore claim notwithstanding the pending of a parallel Jones Act claim. See for example, Stubblefield v. Dutra Const. Co., 26 BRBS 774 (ALJ) (1993); Johns v. Davison Sand & Gravel, 26 BRBS 583 (ALJ) (1992); Grossman v. Weeks Marine, Inc., 26 BRBS 530 (ALJ) (1992); Kellerher v. Smith Rice Co., 24 BRBS 72 (ALJ) (1990).

   As has been previously noted, the circuits are split as to whether or not an administrative determination as to jurisdiction bars a subsequent Jones Act claim. Sharp v. Johnson Bros. Corp., 973 F.2d 423 (5th Cir. 1992)(injured maritime worker loses his right to pursue an alternative Jones Act claim once the ALJ enters a formal order granting compensation benefits.); Figueroa v. Campbell Industries, 45 F.3d 311 (9th Cir. 1995) ("...some maritime workers may be Jones Act seamen who are injured while also performing a job specifically enumerated under the LHWCA, and, therefore are entitled to recovery under both statutes, although double recovery of any damage element is precluded."); Papai v. Harbor Tug and Barge Co., 67 F.3d 203 (9th Cir. 1995) rev'd on other grounds at ___ U.S. ___, 117 S.Ct. 1534 (1997)(while accepting the issue of whether or not the litigation of a LHWCA claim bars a subsequent Jones Act claim, the Supreme Court neither reached nor decided this issue.); Hagens v. United Fruit Co., 135 F.2d 842 (2d Cir. 1943)(Jones Act award can not validly be made if Deputy Commissioner had jurisdiction when awarding LHWCA coverage; Deputy Commissioner need not specifically state that plaintiff was not a member of the crew).

[ED. NOTE: Reflected by the split in the circuits, this issue will undoubtedly reach the Supreme Court again. Recall that the Supreme Court in Papai did not make a determination on such issue. Accordingly, some analysis of the three lead circuit court opinions (Sharp, Figueroa and Papai.) is appropriate. This will be done infra.]

   See also Biggs v. Norfolk Dredging Co., 360 F.2d 360 (4th Cir. 1966)(employee injured aboard his employer's ship may, on allegation that he is a seaman, sue his employer for damages under the Jones Act or general maritime law, even after deliberately obtaining compensation under the LHWCA on the allegation that he is not a seaman-- "Compensation statutes are not intended to deprive a seaman...of historic rights."); Vilanova v. United States, 851 F.2d 115 (1st Cir. 1988)(Wisdom, J., sitting by designation), cert. denied, 488 U.S. 1016 (1989)(administrative determination of coverage under LHWCA bars subsequent pursuit of FTCA claim--Congress did not intend to give injured workers two chances to maximize their compensation award).

   Several subsections of the LHWCA are pertinent to the discussion of whether or not an administrative determination as to jurisdiction bars a subsequent Jones Act claim. Specifically:

    13(d) Where recovery is denied to any person, in a suit brought at law or in admiralty to recover damages in respect of injury or death, on the ground that such person was an employee and that the defendant was an employee within the meaning of this Act and that such employer had secured compensation to such employee under this Act, the limitation of time prescribed in subdivision (a) shall begin to run only from the date of termination of such suit. 33 U.S.C. 913(d). (Emphasis added.)

    3(e) Notwithstanding any other provision of law, any amounts paid to an employee for the same injury, disability, or death for which benefits are claimed under the Act pursuant to any other workers; compensation law or section 20 of the Act of March 4, 1915 (38 Stat. 1185, chapter 153; 46 U.S.C. 688) (relating to the recovery for injury to or death of seaman shall be credited against any liability imposed by this Act.) 33 U.S.C. 903(e). (Emphasis added.)

    5(a) The liability of an employer prescribed in section 4 shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, ... and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this Act, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under the Act, or to maintain an action at law or in admiralty for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, or that the employee assumed the risk of his employment, or that the injury was due to the contributory negligence of the employee. ... 33 U.S.C. 905(a). (Emphasis added.)

   Reading Section 13(d) broadly, a claimant has the choice as to simultaneously filing an LHWCA claim and a Jones Act claim, or filing one or the other. A claimant could pursue his Jones Act claim to its conclusion prior to filing an LHWCA claim. Successful prosecution of the Jones Act claim would likely equate to the non-filing of the LHWCA claim. But see Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir. 1997) (en banc) (reversing prior longstanding circuit law, the court held: (1) seaman in Jones Act negligence cases are bound to a standard of ordinary prudence in the exercise of care for their own safety, not to a lesser duty of slight care; (2) Jones Act employers are not held to a higher standard of care than that required under ordinary negligence); Smith v. Tow Boat Serv. & Management, Inc., 66 F.3d 336 (9th Cir. 1995) (unpublished) (rejecting "slight care" standard); Karvelis v. Constellation Lines, S.A., 806 F.2d 49, 52-53 and n.2 (2nd Cir. 1986), cert. denied, 481 U.S. 1015, 107 S.Ct. 1891 (1987) (approving jury instruction informing that both employer and employee under Jones Act are charged with duty of reasonable care under the circumstances); Robert Force, "Allocation of Risk and Standard of Care Under the Jones Act: "Slight Negligence," "Slight Care"?," 25 J. Mar. L. & Comm. 1, 31 (1994).

   If the claimant lost in the Jones Act forum, filing an LHWCA claim would still remain a viable option.

   The Congressional Record indicates Congress' intent in enacting the Section 3(e) credit provision. In the pertinent part, the Congressional Record provides as follows:

    Sec. 3. Section 3(a) [of the enacting Senate bill] is amended to read as follows:
    (b) Section 3 is amended by adding the following new subsection:
    "(c) Notwithstanding any other provision of law, any amounts paid by any employer for the same injury, disability, or death for which benefits are claimed under this Act pursuant to any other workers' compensation law or section 20 of the Act of March 4, 1915 (38 Stat. 1185, chapter 153; 46 U.S.C. 688) (relating to recovery for injury to or death of seamen) shall be credited against any liability imposed by this Act."

Cong. Rec. S 8656 June 16, 1983

   The Conference Report stated:

    Importantly, as well, the substitute offsets longshore benefits for any other workers' compensation or Jones Act benefits concurrently received for the same injury. The conferees amended section 3(b) by substituting the words to an employee" for "by an employer" in the phrase "any amounts paid by an employer for the same injury, disability, or death ***." This change clarifies the conferees' intent that the scope of this section be read broadly.

    The offset would, therefore, apply not only to instances where the employee received State workers' compensation, but also where he received benefits under the Federal Employees' Compensation Act, and where the employee's non-longshore claim is against an employer other than the one against whom he has filed a longshore claim. Accordingly, the court's decision on this point in Melson v. United Brands Corporation, 594 F.2d 1068 (5th Cir. 1979) [This case is styled "United Brands Company v. Melson" by the Fifth Circuit.] is overruled.
    The offset applies, as well, to cases paid by the special fund for any purpose for which the fund is authorized to make payment under the act.

Cong. Rec. H 9733 September 18, 1984 (Erlenborn). (Bold facing added.)

   The Fifth Circuit in Melson v. United Brands Corporation acknowledged the existence of a "double recovery" loop hole. The Melson court's discussion helps clarify the context under which the 1984 Section 3 credit legislation was enacted. In Melson, the claimant had two jobs--one covered by the LHWCA and one covered by state workers compensation. The evidence indicated that while at his LHWCA employer claimant experienced shortness of breath and chest pains and was unable to climb out of the ship's hold. The evidence further indicated that claimant was totally and permanently disabled as of his last day of work at the LHWCA employer. Claimant left his day job and went to his night job (governed by state compensation legislation) where he proceeded to have a myocardial infarction. The claimant filed both LHWCA and state compensation claims against his respective employers. See Melson at 1070.

   The LHWCA employer argued that the claimant's settlement of his state compensation suit barred a LHWCA recovery under Section 33(g) of the LHWCA and that even if the claim was not barred, that claimant's federal award should be reduced by the amount of his state award. Melson at 1074.

   Agreeing with the Benefits Review Board, the Fifth Circuit held that Section 33(g)was limited to the situation in which the third party is potentially responsible to both the employee and the covered employer. "The instant case is simply not the case of a third party causing injury to an employee arising during the employee's employment for a covered employer...The compensation...is not a shared liability ... and [claimant's] compromise ... does not affect [the LHWCA employer's] duty to [claimant]." Melson at 1074.

   Important for discussion here, the Fifth Circuit acknowledged that in Melson, "This is a theoretical double recovery and for purposes of our analysis we must be content to call Melson's recovery a double recovery." Melson at 1075. The Fifth Circuit found that neither of the LHWCA's two provisions [ 33, 14(k)] that provide for a set-off were applicable here. Nor did the Fifth Circuit find any overriding policy to require that the LHWCA award should be reduced:

To allow United Brands a set-off is to give United Brands a windfall in the amount of Melson's state award. Until Congress is moved by this unusual situation, we think that the solution to this difficult problem is to allow the windfall of double recovery to reside with the injured worker rather than allow the set-off windfall to accrue to [the LHWCA employer].

Melson at 1075. (Bold facing added.)

[ED. NOTE: Obviously Congress was moved and thus created what has become subsection 3(e). Apparently, while taking precautions to make sure a Melson situation did not reoccur, Congress realized the second employer could just as easily have been a Jones Act employer. Furthermore, commentators have previously noted the possibility of an LHWCA action against the employer and a Jones Act action against a shipowner. See, Gilmore & Black, "The Law of Admiralty," 6-57 p. 455 (1975 ed.).]

   As to state compensation election of remedies cases involving one employer, see TOPIC 85. In Industrial Commission v. McCartin, 330 U.S. 622 (1947) and Thomas v. Washington Gas Light Co., 448 U.S. 261, 12 BRBS 828 (1980), the Supreme Court left no doubt that in the absence of some explicit language in a state's statute prohibiting subsequent recoveries, the claimant may seek benefits under the LHWCA subject to credit for benefits paid under the state statute.

    However, in the case of a longshore claim versus Jones Act recovery suit involving one employer, it may be argue that the member of the crew/seaman exclusivity clauses in both LHWCA and Jones Act statutes prevent subsequent or supplementary recovery despite the approach in Figueroa v. Campbell Industries, 45 F.3d 311 (9th Cir. 1995), by the Ninth Circuit.

[ED. NOTE: One must keep in mind that the relationship between the LHWCA and the Jones Act is not analogous to that between the LHWCA and various state compensation acts. The purpose of the LHWCA is to "supplement the state acts." See Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715 (1980). The "supplemental award gives full effect to the facts determined by the first award." Thomas v. Washington Gas Light Co. As to the Jones Act, it and the LHWCA are mutually exclusive. It would be impossible, therefore, for either the Jones Act or LHWCA to supplement or give full effect to the facts determined by the other forum and there to be dual, supplemental recovery.]

   In Figueroa, the Ninth Circuit found that the claimant, "an injured seaman, arguably acting as a person enumerated under the LHWCA at the time of his injury, is entitled to recover for his pain and suffering under the Jones Act, and additionally can recover for unpaid wages and medical expenses either by recovering those damage elements under the Jones Act although not both."

[ED. NOTE: The READER IS CAUTIONED that the "buffet of benefits" approach developed by the Ninth Circuit in Figueroa fails to explain how pain and suffering elements of recovery under the Jones Act can be due from the same employer who may owe workers compensation benefits under the LHWCA. It is submitted that the Ninth Circuit has missed the jurisdictional boat with its interpretation of Southwest Marine, Inc. v. Gizoni, 502 U.S. 81, 112 S.Ct. 486 (1991). Simply because a worker's occupation is one of those enumerated in the LHWCA does not mean he is both a LHWCA claimant as well as a Jones Act seaman. As the Fifth Circuit so aptly stated in 1967, "It is thus apparent that the [LHWCA]'s exclusive liability provision effectively abrogates any independent tort liability of the employer to its employees, thereby eliminating any basis which may have existed for indemnification on a tort theory. ODECO v. Berry Brothers, 377 F.2d 511 (5th Cir. 1967). The Supreme Court in Gizoni simply found that even though a workers' occupation was enumerated in the LHWCA, the worker would not be precluded from entitlement to Jones Act benefits if he/she could successfully pass the seaman test which entails a much higher degree of connexity with the marine environment than is required under the parameters of the LHWCA.]

   In Figueroa, the employer had argued that Gizoni's language supported preclusion in a case such as Figueroa. Particularly relied on was the Gizoni Court's conclusion that "[i]t is by now universally accepted that an employer who receives voluntary payments under the LHWCA without a formal award is not barred from subsequently seeking relief under the Jones Act." The employer in Figueroa argued that the payments to the worker constituted "formal awards." Figueroa at 315.

   However, the Ninth Circuit noted that in Gizoni, the issue of coverage had never been litigated and concluded that without a jurisdictional determination a worker/claimant could pursue as well as receive, the mutually exclusive remedies of both acts in a situation such as Figueroa.

   Since the Ninth Circuit in Figueroa relied substantially on Gizoni, some scrutiny of the Gizoni case is necessary at this point. The Ninth Circuit, in its version of Gizoni, cited to Petersen v. Chesapeake and Ohio Railway Co., 784 F.2d 732 (6th Cir. 1986) as addressing the question as to whether the LHWCA provides the sole remedy for a ship repairman injured as a result of his employer's negligence. The Ninth Circuit stated:

We join the Sixth Circuit in rejecting the notion that any person whose work involves ship repair is necessarily restricted to coverage under the LHWCA. Whether an employee is covered by the LHWCA or the Jones Act should be determined by looking to the nature of the claimant's work and the intent of Congress in enacting these compensation schemes, not by looking to the claimant's job title. Moreover, by its terms, the LHWCA does not cover a master or member of a crew of any vessel." ... Thus [the worker] is covered by the LHWCA only if he is not a seaman.

909 F.2d 385 at 389.

[ED. NOTE: While the statements of the Ninth Circuit noted above are generally correct, the Ninth Circuit was incorrect in applying Petersen's general substantive law to the specific jurisdictional issue at hand in Gizoni. Petersen only involved a Jones Act filing; there was never an LHWCA claim filed in Petersen. (The employer in Petersen had argued that the worker was not a seaman, but rather, was covered by the LHWCA.) Despite the misapplication of Petersen, in Gizoni, the Ninth Circuit reached the proper conclusion for Gizoni's particular factual scenario. The Supreme Court affirmed the judgment of the Ninth Circuit in Gizoni. (Coverage under the LHWCA or the Jones Act does not depend on a claimant's job title, but rather on the nature of the claimant's work; an employer whose work involved ship repair is not necessarily restricted to a remedy under the LHWCA if he qualifies as a seaman within the meaning of the Jones Act.)]

   It must be remembered that, in Gizoni, the claimant had filed an LHWCA claim and was receiving voluntary benefits, there not having been a formal adjudication of coverage under the LHWCA. In Gizoni, the Supreme Court stated:

It is by now "universally accepted" that an employee who receives voluntary payments under the LHWCA without a formal award is not barred from subsequently seeking relief under the Jones Act. ... This is so, quite obviously, because the question of coverage has never actually been litigated. Moreover, the LHWCA clearly does not comprehend such a preclusive effect, as it specifically provides that any amounts paid to an employee for the same injury, disability or death pursuant to the Jones Act shall be credited against any liability imposed by the LHWCA.

502 U.S. at 91; 112 S.Ct. at 494.

   Thus, while the Ninth Circuit reached the proper result in Gizoni, its reliance on Petersen and its analysis in Gizoni should not properly be extended to the factual pattern of Figueroa. Gizoni is distinguishable from Figueroa. Figueroa involved an OWCP approved settlement of an LHWCA claim, whereas Gizoni involved a voluntary payment of LHWCA benefits.

[ED. NOTE: Query: Nevertheless, could Figueroa be the "proper" result since there was not an adjudication of the jurisdictional issue? See Nielsen, "The Jones Act and the LHWCA: What's New in the Galaxy of Crossover Claims," 1995 Longshore Claims Assoc. Seminar. Since adjudication, and fact finding for that matter, begin at the OALJ level, are all OWCP level settlements potentially at risk of not being considered "final" for Jones Act purposes ? Perhaps Figueroa can best be explained as involving an Office of Workers Compensation Programs' settlement of an LHWCA claim and not a formal adjudicatory level settlement order by an ALJ wherein a jurisdictional/factual determination could more formally be made.

   In the wake of Figueroa one must ask whether or not an OWCP settlement compensation order (as opposed to a finding of fact by an ALJ) is sufficient to entitle one to jurisdictional estoppel. See, for example, Anders v. Ormet Corporation, 874 F.Supp. 738 (M.D. La. 1994) (ALJ held a formal hearing with one of the express issues being whether or not the claimant qualified as a seaman at the time of his injury. [Subsequently the U.S. District Court granted the employer's motion for summary judgment in a Jones Act case; the worker had been injured on his employer's towboat.]); Weld v. Elevating Boats, 516 F. Supp. 1245 (E.D. La. 1981) (Summary motion granted; plaintiff is collaterally estopped from claiming seaman status in light of the decision to the contrary by the ALJ); the pre-1972 amendment case (and therefore, pre-OALJ) of Young & Company v. Shea, 397 F.2d 185 (5th Cir. 1968) (collateral estoppel inapplicable because there was substantial variance in standard and proof required to establish facts before commissioner in this longshore proceeding and jury in court action--jury had found no accident had occurred.).]

   The Ninth Circuit's proceedings in Papai also merit some scrutiny. First, the procedural history of Papai should be noted:

1) Jones Act suit filed.
2) Summary Judgment of Jones Act granted on behalf of Employer on grounds Claimant was not a seaman.
3) LHWCA claim filed, hearing held and Decision and Order issued awarding compensation. (This Decision and Order was not appealed and thus became final.)
4) Plaintiff/Claimant in Jones Act appealed Summary Judgment.
5) Ninth Circuit holds error to grant Summary Judgment on Jones Act claim and that Jones Act claim was not rendered moot by reason of Plaintiff' s receipt of compensation benefits under LHWCA.

   Next, one must look to the interpretation of the Supreme Court's Gizoni decision by the Ninth Circuit in Papai. The Ninth Circuit acknowledged the basis of the Gizoni Court's holding was that the LHWCA claim was never actually litigated.

   However, the Ninth Circuit went on to quote additional Gizoni Court language which it found applicable to Papai:

Moreover, the LHWCA clearly does not comprehend such a preclusive effect, as it specifically provides that any amounts paid to an employee for the same injury, disability, or death pursuant to the Jones Act shall be credited against any liability imposed by the LHWCA.

67 F.3d at 207 quoting 112 S.Ct. at 494. By "preclusive effect," the Gizoni Court is clearly referring to the suggestion by Southwest Marine that an employee's receipt of benefits under the LHWCA should preclude subsequent litigation under the Jones Act. As previously noted, the court answered that argument by noting that it is universally accepted that an employee who receives voluntary payments under the LHWCA without a formal award is not barred from subsequently seeking relief under the Jones Act.

   Finally in Papai, the Ninth Circuit noted that the Gizoni Court, in a footnote addressing an equitable estoppel argument made by an amicus brief, stated that " [w]here full compensation credit removes the threat of double recovery, the critical element of detrimental reliance does not appear. Argument by amicus would force injured maritime workers to an election of remedies we do not believe Congress to have intended.'" 67 F.3d at 207 quoting 112 S.Ct. at 494 n.5.

   However, these statements by the Court must be read in context. While the worker in Gizoni filed a preliminary claim under the LHWCA and received voluntary benefits, it was actually the Jones Act claim which was actively pursued. By pursuing the Jones Act claim to its conclusion, the claimant does eventually make a de facto election of remedies. The Jones Act tort remedy in all probability will be substantially greater than the claimant would have recovered under the LHWCA. But see Gautreaux v. Scurloack Marine, Inc., 107 F.3d 331 (5th Cir. 1997) and other cited cases, previously noted in this subsection, noting the standard of care to which seaman are held.

[ED. NOTE: In any case, it must be realized that the claimant can always control the course of the two prong litigation by where and when he/she actually files claims/suits. Additionally, the regulations provide for the withdrawal of an LHWCA claim for a "proper purpose"--a term not yet addressed by the circuits. For additional discussion on withdrawal of claims see TOPIC 8.11.]

   Thus, one should proceed cautiously before applying the Ninth Circuit's present position beyond the borders of that circuit. In fact, even within the Ninth Circuit one should proceed cautiously. The Ninth Circuit has not been consistent in applying its philosophy. See Risetto v. Plumbers & Steamfitters, Local 343, 94 F.3d 597 (9th Cir. 1996). In this employment law case, based on judicial estoppel, the Ninth Circuit affirmed the dismissal of discrimination claims explaining that the doctrine of judicial estoppel is intended to prevent a litigant from playing fast and loose with the courts. The Ninth Circuit determined that judicial estoppel applies to a prior inconsistent position taken by a litigant in an administrative proceeding, even though that position was not actually previously litigated by the parties. See Axelrod, "Res Judicata and Collateral Estoppel: A Sword And A Shield," Longshore Newsletter, Vol. XIV, Issue 5 (Aug. 1996). While acknowledging the doctrine's application to administrative proceedings and to workers compensation proceedings, the Ninth Circuit has not explained why it has not applied it in a LHWCA/Jones Act context.

   In Sharp v. Johnson Bros. Corp., 973 F.2d 423 (5th Cir. 1992), the Fifth Circuit noted that the district court had reasoned that the entry of an order by the ALJ constituted a finding that the injuries were compensable under the LHWCA and that by seeking, and acquiescing to the finding, collaterally estopped the claimant from contesting LHWCA coverage.

   The claimant in Sharp had unsuccessfully argued as follows:

1) Because there is a "zone of uncertainty" between the Jones Act and the LHWCA, an injured worker should be able to pursue both remedies simultaneously.
2) Several commentators have argued that a worker should be able to accept benefits without losing his Jones Act claim, since the purpose of the compensation and recovery schemes is to protect the worker during his time of need.
3) There is no danger of double recovery, as one recovery is credited against the other.
4) Collateral estoppel should not apply because the issue of whether the worker was a seaman or a harbor worker was not litigated--only a consent judgment was entered in his case with the ALJ reviewing the agreement only for fairness, not jurisdiction.

   In Sharp the Fifth Circuit specifically noted the holding of the Supreme Court in Gizoni and found that Sharp was distinguishable since Gizoni involved voluntary payments. The Fifth Circuit, in reference to Sharp stated:

    It is beyond cavil that merely accepting voluntary payments under the LHWCA without a formal award does not bar a worker from filing a Jones Act suit. [Cite omitted.] Here, though, Sharp obtained a settlement agreement and a compensation order issued by the ALJ. We have treated such an agreement and order as a "formal award." See Newkirk v. Keys Offshore, 782 F.2d 499, 501-02 (5th Cir. 1986); see also Rodriguez v. Compass Shipping Co., 617 F.2d 955, 958-59 (2d Cir. 1980), aff'd 451 U.S. 596, 101 S.Ct. 1945, (1981).

Sharp at 426.

   The Fifth Circuit went on to state:

    It is true that LHWCA coverage was never litigated in an adversarial proceeding. But Sharp availed himself of the statutory machinery to bargain for an award, and he had the full opportunity to argue for (or against) coverage. He filed a claim for LHWCA benefits, invoking the jurisdiction of the DOL. Pursuant to 33 U.S.C. 908(i)(1), the ALJ considered Sharp's testimony, as well as the parties' stipulations and their settlement, before issuing its findings of fact and order extinguishing [Employer's] liability for LHWCA benefits.

    Having obtained the order of the ALJ and the aegis of the DOL to ratify and enforce his settlement, Sharp ensured that his rights were more secure under the agreement than they would have been if the settlement were considered merely a contract between the parties. It follows that where the ALJ issues a compensation order ratifying a settlement agreement, a "formal award" should be deemed to have been made under Gizoni, and the injured party no longer may bring a Jones Act suit for the same injuries.

    Our holding is consistent with the purpose of the LHWCA, as outlined in Fontenot v. AWI, Inc., 923 F.2d 1127 (5th Cir. 1991). The LHWCA was not designed to create a mere safety net, guaranteeing workers a minimum award as they seek greater rewards in court. Rather, it has a benefit to employers, too, giving them limited and predictable liability in exchange for their giving up their ability to defend tort actions. [citations omitted.] Permitting a Jones Act proceeding after a formal compensation award here would defeat the purpose of the LHWCA, as well as work unfairness, because, as here, employers often have different insurance carriers for workers' compensation claims and tort claims, so the compensation insurer, by guaranteeing a minimum award, necessarily would reduce the ability of the tort insurer to effect a settlement.

    Nor is our holding inconsistent with Gizoni. In that case the Court held that an injured maritime worker did not have to choose between pursuing his potential remedies under the LHWCA and the Jones Act. There is a difference, thought, between saying a plaintiff may pursue only one remedy and declaring that he may receive only one award.

    We agree that Congress did not intend that a worker forfeit his right to pursue one remedy when he pursues another. Otherwise, a plaintiff might fail to receive a LHWCA award, because the ALJ considered him a seaman, but be barred from Jones Act relief because he pursued what he believed were his remedies under the LHWCA.

    Nor should an employer be able to avoid Jones Act liability by voluntarily paying LHWCA benefits that a needy worker can not but accept while awaiting trial [citations omitted.] But Congress did not intend that the worker be able to pick and choose his remedy based upon which has conferred upon him a larger award. That is, the LHWCA was not intended to be a "stepping stone on the way to a jury award." [citation omitted.] (Bold facing added.)

Sharp at 426-27. (Bold facing added.)

   The Fifth Circuit has acknowledged that, while there may be occasions that a fact finder might be able to draw reasonable inferences to justify coverage under either the Jones Act or the LHWCA [See, for example, Abshire v. Seacoast Products, Inc., 668 F.2d 832, 835 (5th Cir. 1982)], "[e]ven the ambiguous employee must elect a remedy." McDermott, Inc. v. Boudreaux, 679 F.2d 452, 459 n.7 (5th Cir. 1982). The establishment of an employer's liability under the LHWCA "effectively abrogates any independent tort liability of the employer to its employees...." Ocean Drilling & Exploration Co. v. Berry Brothers Oilfield Services Inc., 377 F.2d 511, 514 (5th Cir. 1967), cert. denied, 389 U.S. 849, 88 S.Ct. 102 (1967).

   Gilmore and Black, in their treatise on Admiralty Law, acknowledge that "the plaintiff who attempts to bring a Jones Act action following a compensation award in a contested proceeding may find himself barred in a court which takes res judicata and collateral estoppel seriously." "The Law of Admiralty," p.435 (1975 ed.). However, these commentators suggest, "[O]n grounds of policy the argument can be plausibly advanced that the injured worker should be entitled to try for his Jones Act recovery no matter how properly his status as a non-seaman may have been adjudicated in a contested compensation proceeding." Id.

[ED. NOTE: While Gilmore and Black go on to argue, for humanitarian reasons, that the worker should be able to pursue both remedies ("The provision of compensation during this period would serve the function of the traditional maritime remedy of maintenance and cure...."), the commentators forget that there is a vast difference between the compensation/tort distinction on the one hand, and the maintenance and cure/damages recovery on the other. While maintenance and cure are "supplemental" recoveries rooted in sea-based maritime law, "compensation," a land-based recovery, has never been treated as supplemental in nature. In fact, compensation has always been viewed as an alternative recovery, not a bonus remedy.]

   Professor Larson, in his The Law of Workmen's Compensation treatise, has indicated that in his opinion an administrative approval of benefits should only be res judicata where the eligibility issue is actually litigated: "[N]o one has a right to demand that the same issue between the same parties be litigated and decided twice. This certainly does not mean that a person cannot demand that the issue be genuinely litigated and decided once." 3 Larson, Workmen's Compensation 90.51.

   In this regard, Kalesnick v. Seacoast Ocean Services, Inc., 866 F. Supp. 36 (D. Maine 1994) merits discussion. Kalesnick is a Maine/Jones Act jurisdictional estoppel case. In Kalesnick, there was a settlement of a Maine worker's compensation claim specifically approved "on the basis of Maine law" as a final adjudication of the claim. Maine's workers' compensation law specifically excludes those "engaged in maritime employment or in interstate or foreign commerce who are within the exclusive jurisdiction of admiralty law or the laws of the United States." 39 A M.R.S.A. 102(11)(A)(1) (mirroring the definition of exclusive federal jurisdiction in Southern Pac. Co. v. Jensen, 244 U.S. 205, 218 (1917).

   In Kalesnick, the U.S. District Court dismissed the Jones Act claim stating that an approved agreement for compensation has the force of a final adjudication to the extent of the facts agreed upon and the conditions considered by the parties as a basis for the compensation to be paid. " Applying this principle, we have held that an approved agreement for compensation conclusively establishes the existence of an initial compensable injury." 866 F.2d Supp. at 38. Kalesnick specifically found that Maine's law of res judicata includes matters that "might have been litigated."

   The district court noted that Kalesnick met the Maine standards/criteria for the application of principles of res judicata: (1) the parties were identical; (2) the state workers' compensation board approval was a final adjudication under the state legal system; and (3) the claimant's status as a non-maritime employee could have been litigated (but was nevertheless implicit) in the earlier determination approving benefits. Importantly, the district court also noted that no approval of benefits was possible unless the parties and board thought that the person was eligible and board approval is implicitly a conclusive determination that the claimant did not come within the maritime exclusion.

[ED. NOTE: Query: How can one determine that there is jurisdiction to approve a settlement without also finding that there is jurisdiction under the LHWCA? In this regard, see TOPIC 1.2 on Subject Matter Jurisdiction.]

   The Board first addressed the broader issue of pursuing both an LHWCA claim and a Jones Act suit in Ryan v. McKie, 1 BRBS 221 (1974) ("The law permits the claimant to pursue both [an LHWCA claim and a Jones Act suit] of these remedies for the same injury, based on inconsistent claims as to his status at the time of the injury.")

   However, as support for its conclusion, the Board stated that: "A seaman employee who is injured aboard his employer's vessel or on a vessel owned by a third party may recover compensation from his employer and still sue his employer and/or the third party for negligence or unseaworthiness." For this the Board cites several cases including Reed v. S.S. Yaka, 373 U.S. 410, 83 S.Ct. 1349 (1963); Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872 (1946). The Board fails to note that it was Sieracki which brought about the 1972 amendments to the LHWCA which took away a non-seaman maritime worker's right of recovery for unseaworthiness. But see, Blancq v. Hapag-Lloyd, 1997 WL 732421 (E.D.La.); Laakso v. Mitsui & Co. U.S.A., Inc., 1989 WL 149186 at *8-*9 (Dec. 6, 1989 E.D.La)(unpublished but still has precedential value under 5th Circuit Local Rules); Clark v. Solomon Navigation, Ltd., 631 F.Supp. 1275 (S.D.N.Y. 1986). One must keep in mind that in the context of the issue at hand, an LHWCA claim (compensation action) and a Jones Act suit (negligence action) involve the same parties and the same cause of action.

   In Ryan, the Board did specifically state that "[i]t is clear that the [ALJ] had jurisdiction of this claim and was entitled to make a determination of whether the claimant was covered by the [LHWCA], notwithstanding the action pending in U.S. District Court. 1 BRBS at 225. (Emphasis added.).

   In Green v. C.J. Langenfelder & Sons, Inc., 30 BRBS 77 (1996), a Jones Act/LHWCA case, the Board failed to mention the issue of judicial estoppel. In Green, the claimant was injured while fixing a conveyor belt on an oyster harvesting dredge. He filed both LHWCA and Jones Act claims but settled the Jones Act claim. The ALJ granted summary judgment in favor of the employer on the issue of status. The employer had argued that the claimant was a member of the crew and, therefore, excluded under subsection 2(3)(G) of the LHWCA. The Board remanded for further factual development before making a legal conclusion on status.

   The employer had alternatively argued that even if the worker did not meet the Jones Act seaman test, claimant would nevertheless be excluded from LHWCA coverage because of the aquaculture exclusion. See Section 2(3)(E) of the LHWCA. The ALJ had limited his decision to the status/Jones Act issue. On remand, the Board instructed the ALJ that, in the event the seaman exclusion was found inapplicable after following the Board's guidelines as to making a determination of Jones Act coverage, the aquaculture issue was to be considered.

[ED. NOTE: Why didn't the Board address the fact that there had been a Jones Act settlement? In this regard, at the least, the Board should have remanded to the ALJ to determine if the Jones Act settlement had followed a formal procedure similar to that done in an LHWCA Section 8(i) claim Why didn't the Board address the fact that there had been a Jones Act settlement? In this regard, at the least, the Board should have remanded to the ALJ to determine if the Jones Act settlement had followed a formal procedure similar to that done in an LHWCA Section 8(i) claim.]

   Attempts by employers to out-maneuver claimants as to choice of forum have thus far been unsuccessful. In General Construction Co., Inc. v. Embry, 1993 W.L. 137413 (N.D. Cal. 1993) an employer attempted to get an "advisory opinion" by filing a motion for a declaratory judgment in federal district court where the worker's widow had filed an LHWCA claim, but had not yet filed a Jones Act claim. The district court reviewed this request for a declaratory judgment as: (1) an attempt at an "end run" around the claimant's choice of hearing; and (2) as fostering piecemeal litigation.

[ED. NOTE: There is no overriding reason why the doctrine of judicial estoppel should not apply to LHWCA/Jones Act situations at least at the ALJ level and where jurisdiction has been specifically determined. Both the parties, as well as the causes of action, are identical. While at first glance, one may argue that the evidentiary standards and levels of proof may appear to be at variance, see Young & Company v. Shea, 397 F.2d 185 (5th Cir. 1968) (collateral estoppel inapplicable because there was substantial variance in standard and proof required to establish facts before commissioner in this longshore proceeding and jury in court action--jury had found no accident had occurred.), one should keep in mind that the choice of forum (as well as the order of forums) remains in control of the claimant.

   While in Young & Company v. Shea, a pre-1972 amendment (and therefore pre-OALJ) case, the Fifth Circuit found there to be "A substantial variance in the burden of proof" between the LHWCA and the Jones Act proceedings, the Fifth Circuit in Sharp v. Johnson Bros. Corp., 973 F.2d 423 (5th Cir. 1992) (post-1972 amendment case), did not have such a concern.] 1.5 DEVELOPMENT OF JURISDICTION/COVERAGE

1.5.1 Generally

   Any history of jurisdiction/coverage must begin prior to the enactment of the LHWCA in 1927. Prior to the enactment of the LHWCA, there was a division between federal and state jurisdiction over maritime injuries. In 1917, a sharp line was drawn at the water's edge. South Pacific Co. v. Jensen, 244 U.S. 205 (1917), held that a state compensation system could not reach longshoremen injured seaward of the water's edge. The Supreme Court opined that the federal government had sole power, under the admiralty clause of the Constitution, to regulate occurrences on the navigable waters of the United States. Application of state workers' compensation law would "conflict with the general maritime law, which constitutes an integral part of the federal law under Article III, 2 of the United States Constitution."

   In turn, a "maritime but local" doctrine emerged in 1921, when the Court modified the Jensen rule. A worker injured on navigable water was then accorded a state remedy if neither his general employment nor his activities at the time of the accident had any direct relationship to navigation or commerce (maritime employment).

   In 1927, the first version of the LHWCA was enacted to compensate for the states' constitutional inability to provide remedies for employment injuries occurring on navigable waters. It stated that:

...[C]ompensation would be payable in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock)...

33 U.S.C. 903(a) (1927). (This is the origin of the concept of "situs" and should be thought of as a geographical concept.)

   Even this first version of the LHWCA stated that an "employee" could not be a member of a crew. It defined an "employer" as "an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States...."

   The "maritime employment" phrase was rarely referred to since the worker injured while working on the water was assumed to be the requisite "maritime" worker. The necessary maritime connection was established even if the particular employment on the water was the kind of job typically performed on land. See Pennsylvania R.R. Co. v. O'Rourke, 344 U.S. 334 (1953); Nogueira v. New York, N.H. & H. R. Co., 281 U.S. 128 (1930).

   A predominantly non-maritime worker was covered as a maritime employee if he received his injury while temporarily assigned to work on the water. Parker v. Motor Boat Sales, 314 U.S. 244 (1941) (janitor's death covered because he drowned when riding in a boat, "a clearly maritime activity," during the course of employment).

1.5.2 Navigable waters

   The LHWCA does not define the term "navigable waters." Therefore, one must look to a jurisprudential definition. In The Daniel Ball, 77 U.S. 557 (1871), overruled by United States v. Appalachian Electric Power Co., 311 U.S. 377 (1940), the Court defined navigable waters as those forming "a continued highway over which commerce is or may be carried on with other States or foreign countries...." See also The Montello, 78 U.S. 411(1871); Lenore v. Petro Concrete Structures, Inc., 23 BRBS 403 (1990). For instance, where a claimant had been working on a non-navigable lake at the time of his injury, the LHWCA's situs requirement was not satisfied. Williams v. Director, OWCP, 825 F.2d 246 (9th Cir. 1987).

   In Kaiser Aetna v. United States, 444 U.S. 164, 171-73 (1979), the Supreme Court pointed out that the concept of navigability may be used for different purposes. Examples include defining the scope of Congress' regulatory authority under the Interstate Commerce Clause, determining the extent of the authority of the Corps of Engineers under the Rivers and Harbors Appropriation Act of 1899, and establishing the limits of the jurisdiction of federal courts conferred by Art. III, 2, of the Constitution over admiralty and maritime cases. The Supreme Court warned that any reliance upon judicial precedent must be predicated upon careful appraisal of the purpose for which the concept of navigability was invoked in a particular case.

   The LHWCA derives its legitimacy over admiralty and maritime cases from Art. III, 2 of the Constitution (the admiralty power). Nogueira v. New York, N.H. & H. R. Co., 281 U.S. 128 (1930).

   Clearly the LHWCA rests on the admiralty power, not the commerce clause of the Constitution. Washington v. W.C. Dawson & Co., 264 U.S. 219, 227 (1924); South Pac. Co. v. Jensen, 244 U.S. 205 (1917). Congress has power to alter, amend, or revise the maritime law by statutes of general application. Nogueira, 281 U.S. 128.

   The federal admiralty jurisdiction is founded upon the need for a uniform body of governing law with respect to navigation and commercial maritime activity. Three Buoys Houseboat Vacations, Ltd. v. Morts, 878 F.2d 1096, 1099 (8th Cir. 1989), vac'd, 497 U.S. 1020, adhered to on recon., 921 F.2d 775 (8th Cir. 1990).

   Navigability, for purposes of the LHWCA, depends on actual present navigation or susceptibility to future navigation with reasonable improvements. Three Buoys, 878 F.2d at 1099; Land & Lake Tours v. Lewis, 738 F.2d 961, 963 n.3 (8th Cir.), cert. denied, 469 U.S. 1038 (1984); Livingston v. United States, 627 F.2d 437 (9th Cir. 1980), cert. denied, 450 U.S. 914 (1981) (comparison of admiralty jurisdiction, which requires present navigability in fact for commercial shipping, with commerce clause jurisdiction, which requires historical navigability); Chapman v. United States, 575 F.2d 147 (7th Cir.) (en banc), cert. denied, 439 U.S. 893 (1978) (a natural or artificial waterway which is not susceptible of being used as an interstate artery of commerce because of either manmade or natural conditions is not "navigable waters" for purposes of jurisdiction).

   See also Rizzi v. Underwater Construction Corp.,84 F.3d 199 (6th Cir. 1996), 28 BRBS 360 (1994) (diver who was injured in an underground reservoir tank located under a paper mill failed the situs test as required under Section 3(a) of the LHWCA as the tank did not constitute "navigable waters" pursuant to the section; it is irrelevant to a determination of navigability that water rushed in and out of tank and that claimant was subject to "maritime hazards"; nor did the tank constitute an "adjoining area" as there was no evidence to suggest that it was "used to load, unload, repair, dismantle, or build a vessel"). In Rizzi, the Sixth Circuit based its holding on the need for the ability of the body of water in question to function as a container highway for commerce between ports. The Montello, 78 U.S. 411 (1871).

   The phrase "any dry dock" has been construed by case law to include marine railways, building ways, graving docks, and similar structures actually located on land. Paul v. General Dynamics Corp., 16 BRBS 290 (1984). This phrase includes land-based building ways similar to dry docks which are used for new ship construct. Murphy v. Bethlehem Steel Corp., 17 BRBS 148 (1985). Employees injured on "dry docks" during the construction of new ships are covered, as well as those claimants injured on "dry docks" while repairing vessels. See Maes v. Barrett & Hilp, 27 BRBS 128 (1993); Paul v. General Dynamics Corp., 16 BRBS 290 (1984).

   The term "pier" as used in the LHWCA denotes a physical structure rather than a functional concept. In Hurston v. Director, OWCP, 29 BRBS 127 (1995), on remand from Hurston v. McGray Construction Co., 989 F.2d 1547, 26 BRBS 180 (CRT) (9th Cir. 1993), rev'g Hurston v. Mc Gray Construction Co., 24 BRBS 94 (1990), recon. en banc denied, BRB No. 88--4207 (Aug. 13, 1991), the Board held that a worker replacing sheet piling on the sides of a pier is covered under the LHWCA since "pier" is an enumerated situs regardless of its function. The pier was a rectangular structure which was entirely on the beach at low tide and which extended partly into the ocean at high tide. Oil well fluids produced on a nearby structure are piped to the pier where automated equipment separates the well fluids into gas, water, and crude oil, and where the processed crude oil is stored in a tank located on the structure. The stored crude oil was pumped in a pipeline, on a weekly basis to a marine terminal for later shipment to Los Angeles. The Ninth Circuit determined that a structure built on pilings that reaches from land to navigable water, and used only for oil production, is a pier. The court found that this structure was a covered situs under Section 903(a), even though it is not used for traditional maritime activity such as the loading or repair of vessels.

[ED. NOTE: This case is distinguishable from Herb's Welding Inc. v. Gray, 470 U.S. 414, 17 BRBS 78 (CRT)(1985)(injury on fixed platform, "artificial island", used solely for oil production purposes not covered because welder on fixed platform is not maritime employee) and Munguia v. Chevron U.S.A., Inc., 999 F.2d 808, 27 BRBS 103(CRT)(5th Cir. 1993), reh'g denied, 8 F.3d 24 (5th Cir. 1994), aff'g on other grounds 23 BRBS 180 (1990) and 25 BRBS 336 (1992)(en banc), cert. denied, 114 S.Ct. 1839 (1994)(pumper-gauger who serviced and maintained fixed platform wells was not a maritime employee under Herb's Welding, rationale.) In Hurston, a worker repairing a pier ("an enumerated situs regardless of its function") has situs by definition. The Board has held that the term "harbor-worker" in Section 2(3) encompasses at least these persons directly involved in the construction, repair, alteration or maintenance of harbor facilities (which includes docks, piers, wharves, and adjacent areas used in the loading, unloading, repair or construction of ships..." 29 BRBS at 129(citation omitted).]

   Although the LHWCA's status requirement restricts coverage to only those employees engaged in maritime employment under Section 902(3), the LHWCA's situs requirement does not require that any pier adjoining navigable waters of the United States be used as a navigational aid or for boat hook-ups or the like in order to be covered under Section 903(a). Thus, it is the type of structure, rather than its function, which defines "any adjoining pier" under the LHWCA.

   Similarly, in Trotti & Thompson v. Crawford, 631 F.2d 1214 (5th Cir. 1980), an uncompleted pier under active construction was held to be a covered situs, albeit uncompleted. The Fifth Circuit explained that "Congress now expressly prescribes that situs is satisfied for injuries occurring upon any pier adjoining navigable waters." Id. at 1219.

   Previously, however, the Fifth Circuit had taken a contrary position in Jacksonville Shipyards v. Perdue, 539 F.2d 533 (5th Cir. 1976), vac'd sub nom. Director, OWCP v. Jacksonville Shipyards, 433 U.S. 904 (1977), on remand, 575 F.2d 79 (5th Cir. 1978). There the Fifth Circuit applied a functional test. The court read Section 903(a) as permitting courts to "look past an area's formal nomenclature and examine the facts to see if the situs is one customarily used by an employer in loading, unloading, repairing or building a vessel." Jacksonville, 539 F.2d at 541.

   It should be noted that Jacksonville pre-dated Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 6 BRBS 150 (1977). Caputo, emphasizing expansive situs coverage, held that an adjoining pier used only for storage is a covered site, regardless of the fact that it was not used to load or unload vessels. Thus, Jacksonville's approach, which depends on construing the phase "any adjoining pier" to be modified by customarily used ... in loading, unloading, repairing, dismantling, or building a vessel," should not be relied upon.

   As a result, an employee was compelled to make a jurisdictional guess as to whether he should bring a claim under the state "maritime but local" doctrine, or file a claim under the LHWCA. An error could foreclose the forum due to the statute of limitations. Finally, in Davis v. Department of Labor & Industry, 317 U.S. 249 (1942), the Court decided that this case by case determination must stop. This goal was accomplished by allowing concurrent jurisdiction to put an end to the "jurisdictional twilight zone." Id. at 256.

   In Calbeck v. Travelers Insurance Co., 370 U.S. 114 (1962), the Court held that the LHWCA comprehended all injuries sustained by employees on navigable water, without regard to whether the locus of an event was "maritime but local" and hence within the scope of state compensation provisions. A judicial gloss thus was placed on the term "on navigable waters." A worker who, in the course of his duty was obliged to go on navigable waters, however briefly or sporadically, and who suffered an injury while in that historical maritime locality, was covered by Calbeck's simple test:

(1) the worker was on navigable waters at the time of the injury;

(2) the employer employed one or more workers;

(3) to labor on navigable waters.

   This approach led to the view that "maritime employment" includes even in a non-technical, general sense, employment upon the navigable waters. Thus, situs equaled instant status. In the pre-1972 jurisprudence, an injury in maritime employment included all work injuries of amphibious workers over navigable water. Pier injuries, however, were not covered in this pre-1972 period. Nacirema Operating Co. v. Johnson, 396 U.S. 212 (1969). Thus, a sharp jurisdictional line could still be drawn.

1.5.3 1972 Amendments

   Congress extensively amended the LHWCA in 1972, moving federal coverage ashore in an attempt to provide continuous coverage for amphibious workers. The description of "navigable waters" in the coverage provision was enlarged to encompass certain areas shoreward of the Jensen line:

Compensation shall be payable ... if the disability or death results from an injury occurring upon the navigable waters of the United States (including 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) (1972).

   Although this extension of coverage shoreward solved some jurisdictional problems, it created others. Longshore workers, shipbuilders, and other amphibious workers who had walked in and out of coverage during their working day under the old act now were covered. Caputo, 432 U.S. 249. Workers with a transitory or incidental employment presence in the newly covered area, however, were not included. The definition of "employee" was amended to include only:

person[s] engaged in maritime employment, including any longshoremen or other person engaged in longshoring operations, and any harbor worker including a ship repairman, shipbuilder, and shipbreaker ...

33 U.S.C. 902(3).

   The intent of the amendments was to add additional workers to coverage, not to exclude from coverage any employee who is injured in employment on actual navigable waters and who therefore would have been covered under the original act. The categories of occupations and activities expressly listed in Section 2(3) are not an exhaustive definition of the term "maritime employment." Trotti & Thompson v. Crawford, 631 F.2d 1214 (5th Cir. 1980).

   However, a string of Supreme Court decisions addressing Section 2(3) has left it "clearly decided that, aside from the specified occupations, land-based activity occurring within the Section 3 situs will be deemed maritime only if it is an integral or essential part of loading or unloading a vessel." Munguia v. Chevron U.S.A., Inc., 999 F.2d 808, 811 (5th Cir. 1993) (citing Chesapeake & Ohio R.R. v. Schwalb, 493 U.S. 40, 45 (1989)). See also P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 80 (1979); H.R.Rep. No. 92-1441, p.11 (1972); S.Rep. No. 92-1125, p.13 (1972), U.S.Code Cong. & Admin.News 1972, p. 4708.

   The Supreme Court, in Herb's Welding, stated:

Congress did not seek to cover all those who breathe salt air. Its purpose was to cover those workers on the situs who are involved in the essential elements of loading and unloading; it is `clear that persons who are on the situs but not engaged in the overall process of loading or unloading vessels are not covered.'

470 U.S. at 423 (quoting Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 267 (1977)).

1.6 SITUS

1.6.1 "Over water"

   Although the intent of the amendments was to add to coverage rather than to exclude workers already covered, the jurisprudence has moved towards a stricter scrutiny of just what "maritime" employment is; i.e., is it simply work done over navigable water, Bienvenu v. Texaco, Inc., 124 F.3d 692 (5th Cir. 1997)("We again repair to our troubled efforts to define maritime employment"); Randall v. Chevron U.S.A., Inc., 13 F.3d 568 (1994); Director, OWCP v. Perini North River Assoc.(Churchill), 459 U.S. 297, 103 S.Ct. 634 (1983); Interlake Steamship Co. v. Nielson, 338 F.2d 879 (6th Cir. 1964); or is it more likely any work performed on the water that has a realistically significant relationship to navigation or commerce? Fusco v. Perini N. River Assocs., 622 F.2d 1111 (2d Cir. 1980), cert. denied, 449 U.S. 1131 (1981); Weyerhaeuser Co. v. Gilmore, 528 F.2d 957 (9th Cir. 1975), rev'g 1 BRBS 180 (1974), cert. denied, 429 U.S. 868 (1976).

[ED. NOTE: To the extent that Wayerhaeuser and Fusco held there must be a realistically significant relationship to navigation or commerce when the worker is working over water, one can argue that they have been indirectly overruled by Director, OWCP v. Perini North River Association, 459 U.S. 297, 103 S.Ct. 634 (1983). There need only be a "realistically significant relationship" to navigation or commerce when the worker is over land.]

   Ironically, the restrictive views of the Ninth and Second Circuits were founded on the Supreme Court's decision in P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 11 BRBS 320 (1979), a case which dealt with land-based employees who, by definition, were not covered under the pre-1972 LHWCA. Ford's conclusion, taken out of context, was that "maritime employment" is an occupational concept based on the nature of a worker's activities, precluding any application of the 1972 LHWCA to an employee whose activities do not bear a significant relationship to navigation or commerce on navigable water.

   The Board, reversed by Weyerhaeuser, overruled previous Board decisions that held that the 1972 Amendments did not reduce traditional coverage of the LHWCA. See Sedmak v. Perini N. River Assocs., 9 BRBS 378 (1978), aff'd sub nom. Fusco v. Perini N. River Assoc., 622 F.2d 1111, 12 BRBS 328 (2d Cir. 1980), cert. denied, 449 U.S. 1131 (1981). These previous decisions had held that if one injured over navigable water would have been covered before the 1972 Amendments, one should continue to be covered after the 1972 Amendments.

   Eventually Weyerhaeuser gained widespread acceptance, except in the Fifth Circuit, Boudreaux v. American Workover, Inc., 680 F.2d 1034 (5th Cir. Unit A 1982), cert. denied, 459 U.S. 1170 (1983), and the courts reverted back to almost a case-by-case application of a status test.

   The Supreme Court "clarified" the issue in Director, OWCP v. Perini North River Associates, 459 U.S. 297 (1983). The Court stated:

In holding that we can find no congressional intent to affect adversely the pre-1972 coverage afforded to workers injured upon the actual navigable waters in the course of their employment, we emphasize that we in no way hold that Congress meant for such employees to receive LHWCA coverage merely by meeting the situs test, and without any regard to the maritime employment language. We hold only that when a worker is injured on the actual navigable waters in the course of his employment on those waters, he satisfies the status requirement in 2(3), and is covered under the LHWCA, providing of course, that he is the employee of a statutory "employer" and is not excluded by any other provision of the Act. We consider these employees to be engaged in maritime employment' not simply because they are injured in a historical maritime locale, but because they are required to perform their employment duties upon navigable waters.

Id. at 324.

   Perini dealt with a construction worker injured while performing his job on the deck of a cargo barge being used in the construction of a sewage treatment plant extending over the Hudson River. Writing for the majority, Justice O'Connor held that a maritime construction worker working on navigable waters and injured while on navigable waters would have been covered under the 1927 LHWCA and is covered today. In his concurrence, Justice Rehnquist noted that the claimant was engaged in unloading materials from a supply barge to a cargo barge, just as a longshoreman does, and therefore was in maritime employment.

   Perini held that the 1972 Amendment did not disclose any Congressional intent to withdraw coverage from those workers injured on navigable waters in the course of their employment who would have been covered by the LHWCA before 1972. Perini states that before 1972, there was little litigation concerning whether an employer was "in maritime employment" for purposes of being the employee of a statutory employer.

   The Court in Perini went on to state:

Indeed, the constant interpretation given to the LHWCA before 1972 by the Director, the Deputy Commissioner, the courts, and the commentators was that (except for those workers specifically exempted in the statute), any worker injured upon navigable waters in the course of employment was "covered...without any inquiry into what he was doing (or supposed to be doing) at the time of the injury.

459 U.S. at 311 and quoting Gilmore and Black, at 429-430

   Importantly, the Supreme Court offered no opinion on whether coverage extends to workers injured while transiently or fortuitously on actual navigable waters. Id. at 324 n.34. Significantly, the Court noted that its holding only extends to those persons "traditionally covered" before the 1972 amendments and that the Court expresses no opinion at the time of the Perini ruling as to whether coverage extends to workers injured while transiently or fortuitously upon actual navigable waters. 459 U.S. at 324 n. 34. The Court stated that its holding was a recognition that a worker's performance of his duties upon actual navigable waters is necessarily a very important factor in determining whether he is engaged in "maritime employment" Id.

   It should be noted that while the history is sparse, there are several Supreme Court cases that predated Perini and also provide a background lending support to the Perini approach. Calbeck v. Travelers Ins. Co., 370 U.S. 114, 82 S.Ct. 1196 )(1962)(workers injured while working on launched and floating yet uncompleted drilling barges were covered under the LHWCA); Parker v. Motor Boat Sales, Inc., 314 U.S. 244, 62 S.Ct. 221 (1941)(janitor who drowned while riding in employer's motorboat keeping watch for obstacles was covered; unanimous Court held covered without any further inquiry whether the injured worker's employment had a direct relation to navigation or commerce); Davis v. Dept. of Labor, 317 U.S. 249, 63 S.Ct. 225 (1942)( in dicta the Court indicated that a worker engaged in dismantling a bridge across a navigable river who fell from a barge and drowned could be covered under the LHWCA).

   In Calbeck, the Court specifically recounted the history of the pre-1972 LHWCA and stated that, "[I]t appears that the Longshoreman's Act was designed to ensure that a compensation remedy existed for all injuries sustained by employees on navigable waters..." 370 U.S. at 124(emphasis added). In fact, the Calbeck Court notes that an original version of the proposed Longshore Act contained language which excluded "...employment of local concern and of no direct relation to navigation and commerce." 370 at 122. Ultimately the phrase was taken out because the Congressional committee thought the clause was vague and would be subject to continual litigation. 370 U.S. at 123. In Perini, the Court noted that in Calbeck the Court had made "it clear to employers that if they required their employees to work upon actual navigable waters, those employees would be covered by the LHWCA." 459 U.S. 308, n.18.

   In Northeast Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249, 97 S.Ct. 2348 (1977), the Court stated, "Previously [to the 1972 amendments taking the LHWCA landward] so long as a work-related injury occurred on navigable waters and the injured worker was not a member of a narrowly defined class [i.e. master or member of a crew], the worker would be eligible for federal compensation provided that his or her employer had at least one employee engaged in maritime employment." 432 U.S. at 265. While the Caputo Court went on to state that after the definition of navigable waters was legislatively changed in 1972, a requirement was added that the injured worker be "engaged in maritime employment," (which was defined to include "any longshoreman or other person engaged in longshoring operations, and any harbor worker including a ship repairman, shipbuilder, and shipbreaker...,") this was dicta since the Caputo issue involved employees injured on land.

   Randall went a step further than Perini and extended LHWCA coverage "to workers injured while transiently or fortuitously upon actual navigable waters..." and held that anyone doing his/her work over water is covered under the LHWCA. This approach has not been followed in the Eleventh Circuit. Brockington v. Certified Elec., 903 F.2d 1523 (11th Cir. 1990), cert. denied, 498 U.S. 1026 (1991)(land-based electrician injured while riding in boat in which he had helped load supplies and equipment for a land-based job on an island did not have status under the LHWCA; there was nothing inherently maritime about his task as an electrician and the "maritime environment" in which he was injured had no connection to the general nature of his employment.)

   As previously noted, Randall reflects the Fifth Circuit's current position. See also: Radcliff Gravel Co., Inc. v. Henderson, 138 F.2d 549 (5th Cir. 1943)(workers who trimmed sand and gravel as it was loaded on barges after being dredged from the bed of navigable waters and who drowned upon the capsize of their boat as they returned to shore, were engaged in maritime employment and were covered under the LHWCA.); Nalco Chemical Corp. v. Shea, 419 F.2d 572 (5th Cir. 1969)(delivering chemicals to oil platforms by boat was sufficiently maritime to render employer an "employer" within the LHWCA and therefore provide coverage under the LHWCA.); and Boudreaux v. American Workover, Inc., 680 F.3d 1034 (5th Cir. Unit A 1982)(en banc)(worker injured while performing marine petroleum exploration and extraction work aboard a drilling vessel located offshore but in state territorial waters, was engaged in maritime employment under the LHWCA; 1972 amendments did not disturb previous test that the LHWCA covers all injuries on navigable waters of employees whose employers employed one or more workers to labor on navigable waters.)

   The Sixth Circuit's position tracked that of the Fifth Circuit. See Interlake Steamship Co. v. Nielsen, 338 F.2d. 879 (6th Cir. 1964).

   Two years after Perini, however, in Herb's Welding v. Gray, 470 U.S. 414, 17 BRBS 78 (CRT) (1985), the Supreme Court stated that, "[w]hile maritime employment' is not limited to the occupations specifically mentioned in Section 2(3), neither can it be read to eliminate any requirement of a connection with the loading or construction of ships." But see Ward v. Director, OWCP, 684 F.2d 1114 (5th Cir. 1982), cert. denied, 459 U.S. 1170 (1983) (fish spotter pilot is covered); Holcomb v. Robert W. Kirk & Assocs., 655 F.2d 589 (5th Cir. Unit B 1981), cert. denied, 459 U.S. 1170 (1983); Fusco v. Perini N. River Assoc., 601 F.2d 659 (2d Cir. 1979), vac'd sub nom. 444 U.S. 1028 (1980); Tri-State Terminals v. Jesse, 596 F.2d 752 (7th Cir. 1979); Jacksonville Shipyards v. Perdue, 539 F.2d 533 (5th Cir. 1976), vac'd sub nom. Director, OWCP v. Jacksonville Shipyards, 433 U.S. 904 (1977).

   In Herb's Welding, however, the Court again expressly reserved the issue of whether the LHWCA applies to a worker injured while "transiently or fortuitously" upon navigable waters, although it noted in passing a "substantial difference between a worker performing a set of tasks requiring the worker to be both on and off navigable waters, and a worker whose job is entirely land-based but who takes a boat to work." Herb's Welding, 470 U.S. at 427 n.13.

[ED. NOTE: It must be remembered that in Herb's Welding, the claimant was injured on a fixed platform ("an artificial island") and thus was not injured over navigable waters.]

   The Fifth Circuit in Randall noted that the Supreme Court in Herb's Welding found that since that claimant could not meet the status test, he was excluded from LHWCA coverage without addressing the situs test. The Fifth Circuit first noted that Herb's Welding had left open the question of coverage while "transiently or fortuitously" upon navigable waters. 470 U.S. at 427 n.13.

   Next, the Fifth Circuit noted that this issue had already been addressed in Fontenot v. AWI, Inc., 923 F.2d 1127 (5th Cir. 1991) (wireline operator employed by oil field service company as a pipe recovery specialist who spent equal parts of time on shore, on fixed platforms, and on oil exploration/production vessels, and who is injured while on a crewboat was covered under the LHWCA).

   In Fontenot, the Fifth Circuit applied the Perini test (injured while on actual navigable waters while in the course of employment) rather than the Herb's Welding test (when not injured on navigable waters the claimant must show that his employment had some connection with the loading, unloading, repair, or construction of ships) because the claimant was injured while upon actual navigable waters in the course of his employment. Id. at 1133.

   Although the Fifth Circuit in Randall has followed the Fontenot holding, the court stated:

We have some difficulty with this analysis, specifically in the Fontenot court's conspicuous omission of the "in the course of his employment" element of Perini in its application of Perini to Fontenot's case. Part of the difficulty, however, stems from the language of Perini itself. In one passage in Perini, the Supreme Court strongly suggested that even workers who are injured on navigable waters are required to show that "they are required to perform their employment duties upon navigable waters." Perini, 459 U.S. at 324 (footnote omitted); see also Herb's Welding, 470 U.S. at 424 n.10 (pointing out that Perini was "carefully limited" to coverage of an employee injured while performing his job upon actual navigable waters). Yet, at the same time, the Perini Court insisted that the addition of the "status" test to the LHWCA by the 1972 Amendments did not diminish the LHWCA's traditionally broad coverage of workers injured on actual navigable waters. Perini, 459 U.S. at 315, see also Grant Gilmore & Charles L. Black, Jr., The Law of Admiralty 428 (2nd ed. 1975) (observing that, at least before the 1972 Amendments, "workers who are not seamen but who nevertheless suffer injury on navigable waters are no doubt (or so the courts have been willing to assume) engaged in maritime employment'").

    Had the Fontenot court relied on the fact that Fontenot was employed on vessels, i.e., on actual navigable waters, some thirty percent of the time as well as on the day of his accident, its holding would be within the Perini rule. Instead, the court chose to rely solely on the situs of Fontenot's injury:
The Court [in Herb's Welding] did not address the status of an oil field employee injured while in transit on navigable waterways, or one who spent a substantial period of his time working on drilling vessels, rather than fixed platforms. Id. at 1130.

13 F.3d at 897.

   Relying on Herb's Welding and Caputo, the Eleventh Circuit came to a contrary result in Brockington when a land-based electrician was injured over navigable water. The Eleventh Circuit looked at the claimant's basic employment and found that he did not meet the status test:

    Although [the claimant] was injured on navigable waters, he was not in any sense engaged in loading, unloading, repairing or building a vessel, and his de minimis connection to maritime activity is simply insufficient to fulfill the "status" requirement of the LHWCA.

903 F.2d at 1528.

   The Eleventh Circuit has stated that Section 2(3) extends coverage to occupations beyond those specifically named by the statute. Sanders v. Alabama Dry Dock & Shipbuilding Co., 841 F.2d 1085 (11th Cir. 1988). See also Holcomb v. Robert W. Kirk & Assocs., 655 F.2d 589 (5th Cir. Unit B 1981), cert. denied, 459 U.S. 1170 (1983).

Place of Inception Is Critical

   The Board has held that in determining whether an injury occurs on navigable waters, the place of inception is the critical element of an injury - causing occurrence. Kennedy v. American Bridge Co., 30 BRBS 1(1996); Crapanzano v. Rice Mohawk, U.S. Construction Co., 30 BRBS 81 (1996).

   The Board had previously decided Weyerhauser Co. v. Gilmore, 1 BRBS 180(1974)(worker sorting logs and walking about on floating walkway and logs while feeding them into a mill was covered), similarly to what would eventually become the Supreme Court's position in Perini. Once the Board was reversed by the Ninth Circuit in Weyerhauser, the Board overruled its previous position and held that the 1972 amendments had changed the concept of "coverage: as it related to workers injured on navigable water. see Sedmak v. Perini North River Assoc., 9 BRBS 378 (1978), aff'd sub nom. Fusco v. Perini N. River Association., 622 F.2d 111, 12 BRBS 328 (9th Cir. 1980), cert. denied, 449 U.S. 1131 (1981).

   Now the Board has again shown movement back towards its pre-Weyerhauser position, most recently in the "not-published" decision Griffen v. McLean Contracting Co., (BRB No. 96-0759)(Jan. 29, 1997), where the sole issue was one of coverage.

   While in Griffin, the Board found that there was not coverage because the worker was working on a roadway not considered an "adjoining area" (because it was not used for maritime purposes), the dicta in Griffin is noteworthy. The Board noted the LHWCA as it existed prior to the enactment of the 1972 amendments and stated that in amending the LHWCA in 1972, Congress did not intend to withdraw coverage of the LHWCA from workers injured on navigable waters who would have been covered by the LHWCA before 1972. Perini, 459 U.S. 297 (1983).

   The Board noted that the Perini Court held that when a worker is injured on actual navigable waters while in the course of his employment on those waters, he is a maritime employee under Section 2(3). The Board stated, "Regardless of the nature of the work being performed, such a claimant satisfies both the situs and status requirements and is covered under the Act, unless he is specifically excluded from coverage by another statutory provision."(emphasis added.) Griffin at slip op. p. 2. Again, also in dicta, the Board in Griffin stated that, "...injury on actual waters is sufficient to establish coverage under both sections 2(3) and 3(a) of the Act..." Griffin at slip op. p. 3.

   Finally, in Griffin the Board clearly explained its position:

   Section 3(a) provides coverage for disability resulting from an injury occurring on the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railroad or other adjoining area customarily used by an employer in loading, repairing, dismantling, or building a vessel.)33 U.S.C. 903(a)(1988). Accordingly, coverage under Section 3(a) is determined by the nature of place of work at the moment of injury.

Griffin at slip op. p. 3 (emphasis added).

   While noting the Board's seemingly poised position to "adopt" either the Randall or Perini positions, one must keep in mind the facts of Randall to understand how liberally the Fifth Circuit provides coverage under the LHWCA. In Randall, the claimant was a mechanic on a fixed platform in the Gulf of Mexico. As a tropical storm was approaching, a vessel came to evacuate the platform. Randall swung by rope to the deck of the vessel which fell away from him and he dropped into the water and drowned. In holding that the deceased was a "maritime employee," the Fifth Circuit discussed Perini and concluded "situs" at the time of injury can satisfy the "status"requirement. In other words, because Randall was injured/drowned on navigable waters in the course of his employment he was engaged in maritime employment. Based on Perini, his place of injury/death satisfied "status".

   The group of workers who traditionally had been covered as maritime employees prior to the 1972 amendments by virtue of work on navigable waters includes such diverse occupations as marine construction workers, pile drivers, barge workers, deckhands, divers, airplane pilots (fish spotters), roustabouts and security guards. The Longshore Textbook, 3rd Ed. 1993.

1.6.2 "Over land"

    "Situs" was extended landward in 1972 under Section 3(a)'s "adjoining" clause. This "adjoining area" concept has been broadly interpreted to include land that is not contiguous to the navigable water, provided certain conditions are met:

(1) the suitability of the site for maritime purposes,

(2) the use of adjoining properties,

(3) proximity to the navigable waterway,

(4) whether or not the site is as close to the waterway as is feasible, given all of the circumstances.

   In Brady-Hamilton Stevedore Co. v. Herron, 568 F.2d 137, 141, 7 BRBS 409, 411 (9th Cir. 1978), the court was more concerned with a "functional relationship" than it was with physical contiguity. The "functional relationship test" was later adopted by the Board in Bennett v. Matson Terminals, 14 BRBS 526 (1981), aff'd sub nom. Motoviloff v. Director, OWCP, 692 F.2d 87 (9th Cir. 1982).

   In Texports Stevedore Co. v. Winchester, 632 F.2d 504 (5th Cir. 1980), cert. denied, 452 U.S. 905 (1981), the court held that although an adjoining area need not be directly contiguous to navigable water, it must have a maritime nexus. The Fifth Circuit stated:

The situs requirement compels a factual determination that cannot be hedged by the labels placed on an area. Jacksonville Shipyards, 539 F.2d at 541. Just as we disapprove of a test that disposes of the question based totally on the presence of intervening or surrounding maritime facilities, we also reject the idea that Congress intended to substitute for the shoreline another hard line. Growing ports are not hemmed in by fence lines; the Act's coverage should not be either. All circumstances must be examined. Nevertheless, outer limits of the maritime area will not be extended to extremes. We would not extend coverage in this case to downtown Houston. The site must have some nexus with the waterfront.

Texports, 632 F.2d at 513-14.

   The court went on to analyze the parameters of "adjoining" as follows:

Although "adjoin" can be defined as "contiguous to" or "to border upon," it also is defined as "to be close to" or "to be near." "Adjoining" can mean "neighboring." To instill in the term its broader meaning is in keeping with the spirit of the congressional purposes. So long as the site is close to or in the vicinity of navigable waters, or in a neighboring area, an employee's injury can come within the LHWCA.

Id. But see Sidwell v. Express Container Services, Inc., 71 F.3d 1134, 29 BRBS 138 (CRT)(4th Cir. 1995), cert. denied, ___U.S.___, 116 S.Ct. 2570 (1996)(mem.); Parker v. Director, OWCP, 75 F.3d 929, 30 BRBS 10 (CRT)(4th Cir. 1996), cert. denied, ___U.S.___, 117 S.Ct. 58 (1996).

   Importantly, the situs inquiry looks to the nature of the place of work at the moment of injury. Jacksonville Shipyards v. Perdue, 539 F.2d 533, 4 BRBS 482 (5th Cir. 1976), vacated and remanded, 433 U.S. 904 (1977).

   In Hagenzeiker v. Norton Lilly & Co., 22 BRBS 313 (1989), the Board held that an accident on a public road within the port complex occurred on a covered situs as the entire port complex was used for importing and exporting cargo. Compare with Kerby v. Southeastern Public Service Authority, 31 BRBS 6 (1997), appeal pending, No. 97-1323 (4th Cir.), infra.

   A claimant who was engaged in maritime employment, but who was injured when he was struck by an automobile while returning from a restaurant located 1.5 miles from employer's terminal, was not injured on a maritime situs. Humphries v. Director, OWCP, 834 F.2d 372 (4th Cir. 1987), aff'g Humphries v. Cargill, Inc., 19 BRBS 187 (1986), cert. denied, 485 U.S. 1028 (1988). See also Cabaleiro v. Bay Refractory Co., 27 BRBS 72 (1993); McConnell v. Bethlehem Steel Corp., 25 BRBS 1 (1991).

   Where a lineman is on call twenty-four hours a day, seven days a week and sustains injuries in an automobile accident which occurred in the course of his employment, on a public road thirteen miles from a job site, he is nevertheless not covered under the LHWCA because he lacks situs. Morris v. Portland Lines Bureau, BRB No. 96-0472(unpublished)(1996).

   The breath of the requirements of a claimant's employment does not enlarge situs under the LHWCA. Coverage under Section 3(a) is determined by the nature of the place of work at the moment of injury. See Nelson v. Gray F. Atkinson Construction Co., 29 BRBS 39 (1995), Aff'd mem., No. 95-70333 (9th Cir. Nov. 13, 1996).

   The specific employment requirements concerning the use of a claimant's car and the use of public roads between the employee's residence and the docks do not automatically bring the location of the claimant's injury on a public road within the coverage of Section 3(a). The situs inquiry looks to the relationship of the place of injury to navigable waters. See generally Brown v. Bath Iron Works Corp., 22 BRBS 384, 389(1989); Davis v. Dovan Co. of California, 20 BRBS 121, 124-125 (1987), aff'd mem., 865 F.2d 1257 (4th Cir. 1989) (table); Lasofsky v. Arthur J. Trickle Engineering Works, Inc., 20 BRBS 58, 60 (1987), aff'd mem., 853 F.2d 919 (3rd Cir. 1988)(table).

[ED. NOTE: Compare the Board's position in Morris with the Third Circuit's position in Curtis v. Schlumberger Offshore Serv., 849 F.2d 805 (3rd Cir. 1988)(OCSLA case wherein the circuit court found that the OCSLA does not contain a "situs" requirement, that it covers injuries "arising out of or in connection with" an OCSLA operation). Cf. Mills v. Director, OWCP, 877 F.2d 356 (5th Cir. 1989)(en banc.)]

   In Kerby v. Southeastern Public Service Authority, 31 BRBS 6 (1997), appeal pending, No. 97-1323 (4th Cir.), wherein the claimant worked at a power plant which provided electricity and steam for shipbuilding and ship repair at a shipyard. However, since the power plant was separated from the shipyard by a fence around the shipyard, a private railroad spur, and a fence around the power plant, and since the power plant was not contiguous with navigable water the Board determined that the claimant did not satisfy the Section 3(a) situs requirement, though there was a covered status.        The fact that the power plant was located on Naval property adjacent to the naval shipyard in order to efficiently provide steam and electricity was of no consequence. The Board also noted that employer's power plant personnel do not have immediate access to Norfolk Naval Shipyard by virtue of their employment status with the employer. To enter the shipyard, employer's power plant employees need to obtain a special pass from the shipyard and must be escorted into the shipyard.

ED. NOTE: While the Board here is contained by Sidwell v. Express Container Service, Inc., 71 F.3d 1134, 29 BRBS 138 (CRT)(4th Cir. 1995), cert. denied, ___U.S.___, 116 S.Ct. 2570 (1996)(mem.)(an area is "adjoining" navigable water only if it is contiguous with, or otherwise touches navigable waters; to be included as an "other area" under the LHWCA, the area must be a designated shoreside structure or facility which must be "custodialy used by employer in loading, unloading, repairing, dismantling, or building a vessel."), this decision would most probably have been the same in other circuits, if one relies on the shipyard's personnel practices (i.e. security passes, escort) as a crucial element of analysis.]

   Interestingly, the Board noted that the fact that surplus electric power was sold off for non-shipyard commercial use was not dispositive.

   The situs requirement is not met solely because an employer's facility was customarily used and particularly suited for its ship-repair work, since any test which focuses only on whether the facility is used for a maritime purpose and whether a claimant is a maritime employee would effectively eliminate the situs requirement of Section 3(a). Davis v. Doran Co., 20 BRBS 121 (1987), aff'd mem., No. 88-3505, 22 BRBS 3 (CRT) (4th Cir. 1989) (unpublished).

   In Davis, the Board noted that this marine propeller repairing company did not front on water (one mile away by air, two miles by water) and "was in an area not primarily maritime as indicated by the presence of a bottling company, a linen service, an auto body shop, a public park, office buildings and residential housing in the area." The evidence disclosed that this structure was chosen simply because it would contain an overhead crane and would permit the movement of ship propellers throughout the facility. Its proximity to water was fortuitous, according to the Board.

   As to occupational diseases, the expanded situs requirement (after the 1972 Amendments) applies to employees and their survivors, even though the employee was exposed to the hazardous stimuli before the effective date of the Amendments, in an area that was not a covered situs before the 1972 Amendments. Insurance Co. of North America v. U.S. Dep't of Labor, 969 F.2d 1400, 26 BRBS 14 (CRT) (2d Cir. 1992), cert. denied, 113 S. Ct. 1253 (1993).

   In Nelson v. Guy F. Atkinson Construction Co., 29 BRBS 39 (1995), the Board found that the claimant failed to satisfy the situs requirement under Section 3(a) where, at the time of his injury, he was preparing and excavating, through the use of explosives, an area of dry land that would eventually become a navigational lock. The fact that the site of an injury will be navigable at some point in the future does not render the site navigable at the time of the injury. Id.

   Furthermore, as there was no evidence that the site of the claimant's injury was used by employer for maritime activities at the time of claimant's injury, the site did not constitute an "adjoining area." (Section 3(a) provides coverage for a disability resulting from an injury occurring on an "adjoining area"). Nelson, 29 BRBS at 41-42 (citing Brady-Hamilton Stevedore Co. v. Herron, 568 F.2d 137, 141, 7 BRBS 409, 411 (9th Cir. 1978)).

See also Rizzi v. Underwater Construction Corp., 84 F.3d 199 (6th Cir. 1996), aff'g, 28 BRBS 360 (1994) (diver who was injured in an underground reservoir tank under a paper mill failed the situs test as required under Section 3(a) of the LHWCA as the tank did not constitute "navigable waters" pursuant to the section; it is irrelevant to a determination of navigability that water rushed in and out of tank and that claimant was subject to "maritime hazards"; nor did the tank constitute an "adjoining area" as there was no evidence to suggest that it was "used to load, unload, repair, dismantle, or build a vessel").

   A worker injured on board a ship in Alaskan navigable waters who is assisting in the clean up of the massive Valdez oil spill meets the situs test and the fact that some of the clean up work might have occurred on land adjacent to the water would not adversely affect the situs test. Fontenot v. Industrial Clean-up, Inc., 92-LHC-971(unpublished)(Aug. 17, 1992), appealed as Industrial Clean-up, Inc. v. U.S. Dept. of Labor, BRB, (appeal pending).

   For the purposes of determining situs a facility should not be divided into two functioning areas, maritime and non-maritime. Brickhouse v. Jonathan Corp., BRB Nos. 95-1556 and 96-1278 (unpublished)(1996), citing Sidwell v. Express Container Services, Inc., 71 F.3d 1134, 1140 n. 11, 29 BRBS 138, 144 n.11 (CRT)(4th Cir. 1995)(situs inquiry is concerned with whether the parcel of land adjoins navigable waters, "not the particular square foot on that parcel upon which a claimant is injured.") In Parker v. director, OWCP, 75 F.3d 929, 30 BRBS 10 (CRT)(4th Cir. 1996), the court noted that to be included as an "other area" under the LHWCA, the area must be custodialy used by the employer in loading, unloading, repairing, dismantling, or building a vessel."

[ED. NOTE: The Board has limited the application of the holding in Sidwell to cases arising within the Fourth Circuit. Arjona v. Interport Maintenance Company, Inc.,31 BRBS 86 (1997). The Board has limited the application of the holding in Sidwell to cases arising within the Fourth Circuit. Arjona v. Interport Maintenance Company, Inc.,31 BRBS 86 (1997).        The emphasis in Brickhouse was on the "area". The facility was on a 90 acre site adjoining a navigable river. While the majority of the work done at the facility was not maritime related, a "significant amount" was. Large completed projects were shipped out by barges which dock at the facility. The building in which claimant's injury occurred was about 800 feet from the river's edge. A third of the building was used for shipbuilding construction contracts. The Board, in Brickhouse, concluded that "situs will be conferred, even where an injury occurs on a non-maritime potion of a facility, if the overall facility upon which claimant is injured constitutes an "adjoining area" under Section 3(a)." Brickhouse, slip op. at 4.

1.7 STATUS

1.7.1 "Maritime Worker" ("Maritime Employment")

   As previously noted, the amendments to the LHWCA moved coverage landward to a limited degree. The Supreme Court in Perini, 459 U.S. 297, indicated that the 1972 Amendments were not intended to apply a status test to maritime workers injured over actual navigable waters who would have been covered before 1972.

[ED. NOTE: By referring to these workers as "maritime" workers injured over water, it can be argued that Perini did apply a status test of sorts. However, the reverse argument is that a worker, working over water, is by definition, a "maritime" worker.]

   Several Supreme Court cases have interpreted the "status" requirement of the 1972 LHWCA. The first major case was Northeast Marine Terminal v. Caputo, 432 U.S. 249 (1977). Under Caputo, a claimant need not be engaged in maritime employment at the time of injury to be covered by the LHWCA. The Court noted that it was not Congress' intent that a claimant walk in and out of coverage during a day's work. 432 U.S. at 266 n.27.

   In Caputo, the Court rejected the "moment of injury" test for purposes of excluding claimants from coverage. The "moment of injury" test looked to a claimant's duties at the time of injury in determining whether status is established. See also Brady-Hamilton Stevedore Co. v. Herron, 568 F.2d 137 (9th Cir. 1978), aff'g 1 BRBS 273 (1975).

   In its desire for uniformity of coverage, the LHWCA focuses on occupation, rather than on duties at the time of injury. The Supreme Court stated that Congress intended to cover "persons whose employment was such that they spent at least some of their time in indisputably longshore operations and who, without the 1972 Amendments, would be covered for only part of their activity." 432 U.S. at 273.

   It is noteworthy that the Court did not decide whether the claimant in Caputo was engaged in duties at the time of injury that were maritime, since he was a longshoreman by occupation and could have been assigned to covered or uncovered duties. (The worker was actually putting goods already unloaded from a ship or container onto a delivery truck.) See Southwest Marine v. Gizoni, 502 U.S. 81, 112 S.Ct. 486, 26 BRBS 44 (CRT) (1991).

   In P.C. Pfeiffer Co. v. Ford, 444 U.S. 69 (1979), the Court emphasized that Section 2(3) contains occupational, not geographical, requirements. Moreover, it does not enumerate all possible categories of maritime employment. A claimant may be covered under Section 2(3) either because his work constitutes an occupation specifically enumerated in Section 2(3) or because it falls within the general category of "maritime employment." Id. at 334 n.7. (Note, however, Gizoni discussion, infra.)

   Ford dealt with two workers who were land-based, one moving goods from a warehouse to a terminal, the other fastening vehicles onto railroad cars. Holding that they were "maritime workers," the Court adopted a definition of "maritime employment" that reached any worker who facilitated in the movement of cargo between a ship and land transportation (and vice versa). Such a view allows for a more predictable approach in determining status. However, once cargo exits "maritime commerce," its transport inland is not a covered employment under the LHWCA. Zube v. Sun Refining & Marketing Co., 31 BRBS 50 (1997)(while the movement of petroleum products between a barge and storage containers is covered, the cargo's movement between the storage tanks and a tanker truck for transport to service stations is land transportation and not covered). It must be kept in mind, however, that mere involvement in a manufacturing operation in which raw materials arrive by ship, or the finished product leaves by ship, is insufficient to confer coverage under Section 2(3). See Coyne v. Refined Sugar, Inc., 28 BRBS 372 (1994)(worker at sugar refining facility who would unload bags of sugar from a conveyor belt and deliver them to a warehouse or place them onto a truck for surface transport to a ship, is not covered); Earmon v. Aluminum Co. of America, 28 BRBS 46, aff'd on rem., 29 BRBS 15 (1994)(bulldozing activities were not covered as they "involved the movement of bauxite as part of the process for manufacturing aluminum, rather than as part of the process of unloading the bauxite from a vessel")

   As noted in the Congressional Record, there is no legislative definition of "maritime employment":

   Without firm direction from Congress, courts must continue to grapple with defining the parameters of maritime employment. Conflicts among the circuit courts of appeal no doubt will continue to arise, and the Supreme Court will have to resolve these conflicts.

Cong. Rec. S11623 Sept.20, 1984.

   In Chesapeake & Ohio Railway Co. v. Schwalb, 493 U.S. 40, 23 BRBS 96 (CRT) (1989), the Court held that land-based claimants at a relevant situs, engaged in activity that is an integral or essential part of loading or unloading a vessel, are covered under the LHWCA. Here two laborers were injured while doing housekeeping and janitorial services while cleaning spilled coal from loading equipment (one of their job duties). A pier machinist engaged in his primary duty of repairing coal-loading equipment was also injured. These injuries occurred at coal-loading facilities adjacent to navigable water.

   Thus, the Court found that workers "who are injured while maintaining or repairing equipment essential to the loading or unloading process are covered by the Act" even though they were not performing work essential to the loading process when they were actually injured. 493 U.S. at 47, 23 BRBS at 99 (CRT). The ship-loading process could not continue unless the equipment the claimants worked on was operating properly. Equipment cleaning is necessary to keep machines operating and is a form of maintenance and is only a degree removed from repair work.

   In Munguia v. Chevron U.S.A., Inc., 999 F.2d 808, 27 BRBS 103 (CRT), reh'g denied, 8 F.3d 24 (5th Cir. 1994), cert. denied, 114 S.Ct. 1839 (1994), the Fifth Circuit, after citing numerous Supreme Court decisions, held that a worker injured over land must show Section 2(3) activity which was an integral or essential part of loading or unloading a vessel, unless the worker falls into one of the occupations specified in Section 2(3). 999 F.2d at 811. See also Ferguson v. Southern States Cooperative, 27 BRBS 16 (1993) (mechanic who modified warehouse roof to accommodate the booms of incoming ships, assisted in docking every incoming ship, repaired machinery essential to the unloading process, and was actually performing maritime function at time of death, is covered under LHWCA); Arjona v. Interport Maintenance Company, Inc., 31 BRBS 86 (1997)(claimant injured while repairing shipping containers was doing maritime employment and thus satisfied status test.).

   In Bang v. Danos Curole Marine, BRB No. 96-0598 (unpublished)(Feb. 5, 1997) the Board, relying on the Munguia standard, found that a claimant's unloading duties were conducted solely to facilitate the operation of an oil and gas production facility, which it stated was not an inherently maritime operation under Herb's Welding, Inc. v. Gray, 470 U.S. 414, 17 BRBS 78 (CRT)(1985). See also Fontenot v. AWI, Inc., 923 F.2d 1127, 1130, 24 BRBS 81 (CRT)(5th Cir. 1991). Using the status test of Herb's Welding, the Board stated that where the employee is not over navigable water at the time of injury, then the employee is engaged in "maritime employment" only if his work is directly connected to the commerce carried on by a ship or vessel. Importantly, claimant's overall duties were maintenance duties related to keeping a natural resources facility operational and producing gas and oil, activities which were not inherently maritime, and involved little, if any, loading and unloading of "cargo" from boats.

[ED. NOTE: Compare this with the situation where a natural resources worker aboard a drilling ship would be covered, or a roustabout who routinely unloaded supply boats at a oil production platform would be covered.]

   In Gizoni, the Supreme Court held that a maritime worker whose occupation is one of those enumerated in the LHWCA, may, nevertheless, be a seaman within the meaning of the Jones Act. The inquiry into seaman status is fact-specific and depends on the vessel's nature and the employee's precise relation to it: "It is not the employee's particular job that is determinative, but the employee's connection to a vessel." Gizoni, 502 U.S. at ___, 112 S.Ct. at 492, 26 BRBS at 47 (CRT) (citing Wilander). In Gizoni, the claimant was a rigging foreman who worked on a floating platform and rode these platforms as they were towed into place.

[ED. NOTE: Gizoni does not, however, provide a clear, useable definition of a Jones Act "seaman."]

   Gizoni is easily distinguished from Caputo (focus on occupation, rather than duties at the time of injury) and Ford (find coverage because a claimant's work constitutes an occupation specifically enumerated in the LHWCA, or because his work falls within the general category of maritime employment). These cases both dealt with workers injured on land who helped to facilitate the movement of cargo between a ship and land transportation.

   The tests noted by the Court in Caputo and Ford examine the workers' specific situations to determine whether or not the workers are "maritime" workers entitled to LHWCA coverage, or simply, land-based workers entitled only to a state workers' compensation benefit.

   In Gizoni, the Court's inquiry was to focus on what type of maritime work Gizoni was employed to do--that of a LHWCA maritime worker or a Jones Act seaman. Recall, the LHWCA and the Jones Act are two mutually-exclusive remedies. Not all ship repairmen meet the requisite requirements of Wilander, 498 U.S. 337, to be seamen; but all ship repairmen qualify as maritime employees and are at least entitled to LHWCA benefits, unless they fall under a specific exception to the LHWCA.

   Note, the LHWCA applies to any person "engaged in maritime employment" and does not distinguish between management and non-management personnel. Sanders v. Alabama Dry Dock & Shipbuilding Co., 841 F.2d 1085 (11th Cir. 1988), rev'g 20 BRBS 104 (1987).

[ED. NOTE: However, this should not be confused with a single proprietorship. See Employer-Employee Relationship, infra.]

   In Sanders, 841 F.2d 1085, the court found that the claimant's responsibilities as a labor relations assistant satisfied the status test since those responsibilities were significantly related to, and directly furthered the employer's ongoing shipbuilding and ship repair operations.

   The court noted that whether particular job skills are uniquely maritime is not dispositive in determining whether the status test is satisfied. The proper focus should be upon whether the purposes served in applying the job skills directly relate to furthering the shipyard concerns of a covered employer.

   A model shop worker who built scale model components and battery wedges used in submarine construction is covered under the LHWCA. Peterson v. General Dynamics Corp., 25 BRBS 71 (1991).

   A worker engaged by a subcontractor of Exxon Corporation to assist in the cleaning of the massive "Valdez" oil spill in the navigable waters off of Alaska was found by one judge to be covered under the LHWCA. Fontenot v. Industrial Clean-up, Inc., 92-LHC-971 (August 17, 1992)(unpublished), appealed as Industrial Clean-up, Inc. v. U.S. Dept. of Labor, BRB (appeal pending). Judge Miller held that the employer, engaged by Exxon to assist in the clean-up of the spill of the tanker's cargo of oil, was a maritime employer. The judge found that the claimant's work was clearly a maritime activity conducted in a maritime environment. The work of cleaning up the navigable waters and shore satisfies the status test.

   A worker whose job duties are maintaining and operating equipment at a power plant which provides electricity and steam for shipbuilding and ship repair operations at the Norfolk Naval Shipyard is covered under Section 2(3)of the LHWCA. The Board felt that since electricity and steam are mandatory component in the shipbuilding and ship repair process. Compare Peter v. Hess Oil Virgin Island Corp., 903 F.2d 935, reh'g denied, 498 U.S. 1067 (1991)(Status test met where employee's connecting and disconnecting fuel hoses in loader process); Chesapeake and Ohio Ry. Co. v. Schwalb, 493 U.S. 40, 47, 23 BRBS 96, 99 (CRT)(1989); Kerby v. Southeastern Public Service Authority, 31 BRBS 6 (1997), appeal pending, No. 97-1323 (4th Cir.).

1.7.2 "Harbor-worker"

   The term "harbor-worker" includes "at least those persons directly involved in the construction, repair, alteration or maintenance of harbor facilities (which include docks, piers, wharves and adjacent areas used in the loading, unloading, repair or construction of ships)." Hurston v. McGray Const. Co., 29 BRBS 127 (1995), on remand from Hurston v. Director, OWCP, 989 F.2d 1547, 26 BRBS 180 CRT)(9th Cir. 1993), reh'g Hurston v. McGray Const. Co., 24 BRBS 94 (1990), recon. en banc denied, BRB No. 88-4207 (Aug 13, 1991)(unpublished); Stewart v. Brown & Root, Inc., 7 BRBS 356 (1978), aff'd sub nom. Brown & Root, Inc. v. Joyner, 607 F.2d 1087, 11 BRBS 86 (4th Cir. 1979), cert. denied, 446 U.S. 981 (1980). See also Ripley v. Century Concrete Services, 23 BRBS 336 (1990); Dupre v. Cape Romain Contractors, 23 BRBS 86, 90 (1989); Olson v. Healy Tibbitts Constr. Co., 22 BRBS 221 (1989).

   A heavy equipment operator involved in the construction or alteration of a harbor facility was found by the Board to be a covered harbor-worker under Section 2(3). Furthermore, the Board found that the claimant also met the status requirement of Section 2(3) on the alternate ground that he was engaged in the maintenance of shipbuilding facilities where the evidence indicated that the facility being built would eventually be used to service submarines. Hawkins v. Reid Assocs., 26 BRBS 8 (1992).

   The contract under which the claimant worked was titled "nuclear repair facility" and involved the renovation of a former structural fabrication facility which ran along a dry dock by a 100 foot-wide area containing tracks and an underground utility system.

   The maintenance of the structures housing shipyard machinery, and in which shipbuilding operations are carried on, is no less essential to shipbuilding than is the repair of the machinery used in the process itself. Graziano v. General Dynamics Corp., 663 F.2d 340, 14 BRBS 52 (1st Cir. 1981). See also Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S. 40, 23 BRBS 96 (CRT) (1989).

   In Hurston the Ninth Circuit determined that a pier is an enumerated situs regardless of its function. In its decision on remand in Hurston, the Board noted that the term "harbor-worker" in Section 2(3) encompasses at least those persons directly involved in the construction, repair, alteration, or maintenance of harbor facilities (which includes docks, piers, wharves, and adjacent areas used in the loading, unloading, repair, or construction of ships). Stewart v, Brown and Root, Inc. 7 BRBS 356, 365 (1978), aff'd sub. nom. Brown and Root, Inc. v. Joyner, 607 F.2d 1087, 11 BRBS 86 (4th Cir. 1979), cert. denied, 446 U.S. 981 (1980).

1.7.3 Bridge Building

   Although several early lower court cases found bridge construction/demolition workers covered by the LHWCA, in Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352 (1969), a pre-1972 Amendment case, the Supreme Court stated:

[A]dmiralty jurisdiction has not been construed to extend to accidents on piers, jetties, bridges, or even ramps or railways running into the sea.... To the extent that it has been applied to fixed structures completely surrounded by water, this has usually involved collision with a ship and has been explained by the use of the structure solely or principally as a navigational aid.

395 U.S. at 360 (emphasis added).

   Under specific circumstances, several courts have found certain bridge construction workers to be covered under the LHWCA. In Le Melle v. B. F. Diamond Construction Co., 674 F.2d 296 (4th Cir. 1982), cert. denied, 459 U.S. 1177 (1983), a construction worker employed in the building of a draw bridge over navigable water was granted status under the LHWCA. The court found that the bridge was designed in part as an aid to navigation. It must be noted, however, that the employer had stipulated to situs because it thought this worker was standing on a bridge piling at the time of his injury. C.f. Nold v. Guy F. Atkinson Co., 9 BRBS 620 (1979), appeal dismissed, 784 F.2d 339 (9th Cir 1986); Crapanzano v. Rice Mohawk, U.S. Construction Co., Ltd., 30 BRBS 81 (1996)(no showing bridge was used for maritime purposes because no evidence that bridge aided in navigation).

   In Gilliam v. Wiley N. Jackson Co., 659 F.2d 54, 13 BRBS 1048 (5th Cir. 1981), cert. denied, 459 U.S. 1169 (1983), the court held that a construction site foreman had status when, at the time of his injury, he was supervising and assisting in the removal of pilings from a barge used in the building of a bridge. The unloading of this cargo had a realistically significant relationship to maritime activities. Importantly, the court noted that this holding did not mean that all persons injured while engaged in bridge building are covered employees.

   In Browning v. B. F. Diamond Construction Co., 676 F.2d 547, 14 BRBS 803, (11th Cir. 1982), cert. denied, 459 U.S. 1170 (1983), a bridge construction worker was covered because he was directly involved with the unloading of a vessel at the time of his death. It is noteworthy that the employer did not raise the situs issue.

   In Crapanzano the claimant worked as a journeyman ironworker constructing a bridge across a bay. His duties included: unloading a barge by hooking pre-cut concrete girders to the crane, climbing the bridge structure, and "loading" the girders (positioning them onto the pile caps); positioning reinforced beams; and bolting clips onto the girders and beams. Claimant was injured while walking along the girders on the bridge structure.

   In deciding Crapanzano, the Board noted that the Second Circuit (wherein jurisdiction resides for this case) has held that a construction worker whose duties involved occasionally unloading a barge carrying materials for construction of a structure which reaches from the shore to a point over the water was not engaged in maritime employment as there is no sufficient relationship to navigation or commerce on navigable waters. Fusco v. Perini North River Associates, 622 F.2d 1111, 12 BRBS 328 (2nd Cir. 1980), cert. denied, 449 U.S. 1131 (1981)(sewage disposal plant construction worker not maritime employee); See also Laspragata v. Warren George, Inc., 21 BRBS 132 (1988)(sewage treatment plant construction worker not a covered employee). Specifically, the Board stated:

Although claimant in the instant case unloaded materials from a barge, those items were for the purpose of constructing a non-maritime structure over water; therefore, his employment has no relationship to maritime commerce under the case law of the Second Circuit. See Fusco 622 F.2d at 1113, 12 BRBS at 332; see also Pulkoski, 28 BRBS at 303 (bridge construction worker not a maritime employee); Johnsen, 25 BRBS at 335 (bridge painter not a maritime employee); Laspragata, 21 BRBS at 135. Consequently, a claimant does not meet the Section 2(3) status requirement and cannot be classified as a maritime employee.

30 BRBS at 83.

   However, the Board noted that other circuits have held that the loading and unloading of construction materials constitutes traditional longshore activities. See Browning, (rig foreman involved with unloading construction materials from barge for bridge construction is a covered employee); Gillian (construction worker unloading materials from barge for bridge construction is covered); Smith v. Universal Fabricators, Inc., 21 BRBS 83 (1988), aff'd, 878 F.2d 843, 22 BRBS 104 (CRT)(5th Cir 1989), cert. denied, 493 U.S. 1070 (1990); Cf. Wilson v. General Engineering and Machine Works, 20 BRBS 173, 176 n. 4 (1988)(Board noted that notion of "traditional cargo" is outdated, but distinguished between maritime and military cargo). See also Kennedy v. American Bridge Co., 30 BRBS 1 (1996)(Board followed lead of Fifth and Eleventh Circuits in a Third Circuit case and held that a railroad bridge ironworker is covered because he loaded and unloaded construction materials to and from a barge).

   Using Director, OWCP v. Perini North River Associates, 459 U.S. 297 (1983), one can argue that a bridge worker actually working on a barge or other "vessel" over navigable waters when injured would meet both the situs and status tests. See Gilliam v. Wiley N. Jackson Co., 659 F.2d 54 (1981); See also: Randall v. Chevron U.S.A., Inc., 13 F. 3d 368 (1994).

   Compare Pulkoski v. Hendrickson, 28 BRBS 298 (1994), where the Board distinguished the case from Lemelle, finding that a bridge construction worker was not covered by the LHWCA because (1) the employer "had completed all bulkhead work [on the bridge] prior to the commencement of claimant's employment," (2) the claimant's employment did not bear a relationship to the loading, unloading, building, or repairing of a vessel, and (3) unlike Lemelle, where the bridge construction worker aided in improving the navigability of a river, in the case at bar, the claimant's employment did not aid navigation, but rather made the canal less navigable due to the lower clearance of the new bridge.

   See also Johnsen v. Orfanos Contractors, 25 BRBS 329 (1992) (distinguishing Lemelle, as the bridge in that case was under construction and thus claimant's injury on a piling in the river was on actual navigable waters; in the instant case, claimant performed maintenance upon a completed bridge, which is therefore an extension of land and not within coverage of the LHWCA).

   In this regard the claimant's alternative argument in Crapanzano is noteworthy. Claimant argues that the structure upon which he worked was actually a pier because it was not a completed bridge and therefore is a covered situs regardless of its use.

   Importantly, in Crapanzano, the Board relying on the holding of Nacirema Operating Co. v Johnson, 396 U.S. 212 (1969) found that as a matter of law, bridges are not a covered situs. In Nacirema, a pre-1972 amendment case, the claimants were injured while they were walking on piers attaching railroad cargo to ships' cranes for loading onto the ships. The Supreme Court, in Nacirema, noted well settled law which, prior to the enactment of the LHWCA, considered wharves, piers, and bridges permanently affixed to the land as extensions of land. The Court also acknowledged the language and purpose of the LHWCA and concluded that Congress specifically limited coverage under the LHWCA to those injuries which occurred on the seaward side of the "Jensen line." Consequently, in Nacirema, the Court held that the claimants who where injured while walking on piers were not employees within the meaning of the LHWCA. Nacirema, 396 U.S. at 212.

   In Crapanzano the Board opined that:

Although the piers and wharves referenced in Nacirema would no be covered under the [LHWCA] as amended in 1972, see 33 U.S.C. 903(a)(1982); Johnsen, 25 BRBS at 332 n. 1, the case still espouses good law regarding other extensions of land. In later cases, the Supreme Court acknowledged that the 1972 Amendments to the [LHWCA] pertaining to jurisdiction were drafted in response to its holding in Nacirema. However, it has not stated that those Amendments made its decision null and void. See Perini, 459 U.S. at 316-318, 15 BRBS at 74-75 (CRT); Caputo, 432 U.S. at 249, 6 BRBS at 150. Thus, the notion that a structure such as a bridge is an extension of land and may not constitute a covered situs is still legal precedent. See, e.g., Kennedy, 30 BRBS at 2; Johnsen, 25 BRBS at 332-333, Laspragata, 21 BRBS at 135.

30 BRBS at 84. 1.8 HISTORIC STATUS TESTS

[ED. NOTE: The lead cases rendered by the Supreme Court as to status under the LHWCA have been discussed above. See Gizoni, 112 S. Ct. 486; Wilander, 498 U.S. 337; Schwalb, 493 U.S. 40; Herb's Welding, 470 U.S. 414; Perini, 459 U.S. 297; Ford, 444 U.S. 69; Caputo, 432 U.S. 249; Calbeck, 370 U.S. 114; Davis, 317 U.S. 249. At this point a discussion of the more significant circuit and Board cases will follow. THE READER IS CAUTIONED, however, that this is an historical discussion wherein some of the status tests (developed by various circuits) may no longer garner widespread acceptance and approval; in certain situations, some have specifically been overruled.], 498 U.S. 337; Schwalb, 493 U.S. 40; Herb's Welding, 470 U.S. 414; Perini, 459 U.S. 297; Ford, 444 U.S. 69; Caputo, 432 U.S. 249; Calbeck, 370 U.S. 114; Davis, 317 U.S. 249. At this point a discussion of the more significant circuit and Board cases will follow. THE READER IS CAUTIONED, however, that this is an historical discussion wherein some of the status tests (developed by various circuits) may no longer garner widespread acceptance and approval; in certain situations, some have specifically been overruled.]

Traditional Test (the loading process)

   The jurisprudence has firmly established coverage for workers in "traditional" longshoring occupations, such as loaders and unloaders, container stuffers and strippers, and checkers. See, e.g., Handcor, Inc. v. Director, OWCP, 568 F.2d 143, 7 BRBS 413 (9th Cir. 1978), aff'g 1 BRBS 319 (1975); Spennato v. Pittston Stevedoring Co., 5 BRBS 117 (1976); Green v. Atlantic Container Lines, 2 BRBS 385 (1975); Batista v. Atlantic Container Lines, 2 BRBS 193 (1975); Stockman v. John T. Clark & Son, Inc., 2 BRBS 99 (1975), aff'd, 539 F.2d 264, 4 BRBS 304 (1st Cir. 1976), cert. denied, 433 U.S. 908 (1977) .

   In Gilliam v. Wiley N. Jackson Co., 659 F.2d 54 (5th Cir. 1981), rev'g 12 BRBS 556 (1980), cert. denied, 459 U.S. 1169 (1983), the Fifth Circuit found coverage because the claimant was unloading pilings from a barge cargo from a vessel at the time of injury, which constitutes longshoring operations, even though the pilings were to be used in bridge construction.

Integral or Essential Part Test

   Caputo itself, gave rise to the "integral part" test. In Caputo, the Supreme Court held that a terminal worker loading cargo from ships to trucks and a cargo checker were covered under the LHWCA since their work was "clearly an integral part of the unloading process." Caputo, 432 U.S. at 271. See also P.C. Pfeiffer Co. v. Ford, 444 U.S. 69 (1979) (a worker unloading cotton from a dray wagon onto a pier warehouse, as well as a warehouseman fastening cargo to a railcar, were covered by the LHWCA); Childs v. Western Rim Co., 27 BRBS 208 (1993) (checking and stripping containers constitute intermediate steps in the movement of cargo and satisfy the status requirement).

   The Supreme Court reasoned:

[T]he crucial factor is the nature of the activity to which a worker may be assigned. Persons moving cargo directly from ship to land transportation are engaged in maritime employment.... [A] worker responsible for some portion of that activity is as much an integral part of the process of loading or unloading a ship as a person who participates in the entire process.

Ford, 444 U.S. at 82-83.

   The Supreme Court has also held that land-based claimants at a relevant situs, engaged in activity that is an integral or essential part of loading or unloading a vessel, are covered under the LHWCA. Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S. 40 (1989) (laborers injured while doing housekeeping and janitorial services while cleaning spilled coal from loading equipment were covered under LHWCA, as well as machinist engaged in his primary duty of repairing coal loading equipment).

Functional Relationship (to the loading process) Test

   Workers whose activities were a step or more beyond actual loading and unloading may also be covered. In Blundo v. I.T.O. Co., 2 BRBS 376 (1975), the Board stated that cargo remains in maritime commerce until delivered to the consignee for further transshipment, and that readying cargo for delivery to the consignee is covered employment. Similarly, unloading railroad cars and trucks, either manually or with forklift-type equipment, prior to its storage and loading on the ships is covered employment. See, e.g., DiMartino v. Universal Terminal & Stevedoring Corp., 5 BRBS 55 (1976); Scalmato v. Northeast Marine Terminal Co., 1 BRBS 461 (1975).

   The key to coverage in the context of longshoring operations became a "functional relationship" test: did the worker's activity have a functional relationship to maritime transportation as distinguished from such land-based activities as trucking, railroading, or warehousing? Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 35 (2d Cir. 1976), aff'd sub nom. Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249 (1977).

   Affirming Dellaventura, the Court stated that work involving cargo as it moves between sea and land transportation after its immediate unloading is maritime in nature. Caputo, 432 U.S. 249. See also Ford, 444 U.S. 69 (the intermediate steps of moving cargo between ship and land transportation, and not merely picking up cargo for further transshipment, is covered). See also Zube v. Sun Refining and Marketing Co., 31 BRBS 50 (1997) (while the movement of petroleum products between a barge and storage containers is covered, the cargo's movement between the storage tanks and a tanker truck for transport to service stations is land transport and therefore not covered).

   It must be kept in mind that the fact that ownership of cargo transfers to a consignee at the initial point of rest is not determinative; the nature of the work performed controls rather than whether the person performing it is an agent of the consignee. Lewis v. Sunnen Crane Service, Inc., 31 BRBS 34 (1997), citing Novelties Distribution Corp. v. Molee, 710 F.2d 992, 15 BRBS 168 (CRT)(3rd. Cir. 1983), aff'g, 15 BRBS 1 (1982). When goods are still within the terminal they have not been "delivered" to the consignee.

   But see Sette v. Maher Terminals, 27 BRBS 224 (1993) (delivery clerk who works in an office and processes paperwork necessary for the release of cargo to outbound truck drivers is excluded from coverage). Although claimant's job duties could be considered integral or essential to the loading and unloading of cargo, the Board rejected this argument noting that no Supreme Court case holds that an employee performing exclusively office clerical work is covered by the LHWCA. However, where an office delivery clerk who occasionally works as a checker, is injured while performing his office delivery clerk duties, he is not "exclusively" a clerical employee, and the exclusion in Section 2(3)(A) is not applicable. Reggio v. Maher Terminals, Inc., ___BRBS___, BRB No. 96-1136 (May 27, 1997). See also Caldwell v. Universal Maritime Service Corp., 22 BRBS 398 (1989)(office clerk subject to reassignment as a checker is covered under the LHWCA) and McGoey v. Chiquita Brands International, 30 BRBS 237 (1997)(a person is engaged in "maritime employment" under 2(3) if he spends "at least some of [his] time" engaged in traditional maritime work).

   Although the Board noted that Chesapeake & Ohio Railway Co. v. Schwalb, 493 U.S. 40 (1989) imposes no requirement on an employee to physically handle cargo, the Board also noted that in Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, the Supreme Court stated that "purely clerical employees whose jobs do not require them to participate in the loading or unloading of cargo" are not covered under the LHWCA. 432 U.S. at 273.

   See also Atlantic Container Serv. v. Coleman, 904 F.2d 611 (11th Cir. 1990) (land-based mechanic, whose work consisted almost entirely of making outbound, loaded chassis road-worthy, found to be engaged in maritime employment); Novelties Distribution Corp. v. Molee, 710 F.2d 992, 15 BRBS 168 (CRT) (3d Cir. 1983), cert. denied, 465 U.S. 1012 (1984) (involving the movement of cargo in the terminal area within the stream of maritime commerce); Warren Bros. v. Nelson, 635 F.2d 552, 12 BRBS 714 (6th Cir. 1980).

   However, a locomotive engineer who hauled rail cars to the docks for dock employees to either load or unload, and hauled them away when dock employees were finished loading or unloading them, was not engaged in "maritime employment"--he was engaged in the process of overland transportation. Stowers v. Consolidated Rail Corp., 26 BRBS 155 (CRT) (6th Cir. 1993). Compare with Schwalb, 493 U.S. 40, where workers at a railroad coal-loading facility adjacent to navigable water were covered because of their specific job duties.

   In Odness v. Import Dealers Service Corp., 26 BRBS 165 (1992), a worker's principal duties (90 percent) as a maintenance mechanic consisted of washing cars (at employer's facility two-and-a half to three miles from the port) and maintaining the car wash equipment. Other duties consisted of performing visual damage surveys (approximately once a month for about six hours) and marking cars for final destination at either the employer's facility or the harbor. The claimant did not participate in unloading vehicles and did not go aboard ships.

   The Board found that this employment was not covered employment. The Board viewed these activities as preparing vehicles for sale after unloading is completed. The Board also examined the claimant's moving of cars at the port, approximately four times a year.

   The Board stated that:

While such work arguably does involve maritime activity, we conclude that even if this work is covered it is insufficient in itself to confer status under the Act because of its episodic nature.

Odness, 26 BRBS at 171.

   Not surprisingly, a messman/cook did not have a functional relationship to cargo-transfer operations. Coloma v. Chevron Shipping Co., 897 F.2d 394 (9th Cir. 1990), aff'g 21 BRBS 318 (1988), cert. denied, 498 U.S. 818 (1990). Here the Board rejected the claimant's argument that his work as a messman was directly linked to the loading and unloading of ships, stating that such work was too far attenuated from employer's cargo-transfer operations to constitute maritime employment under the LHWCA.

Directly Involved (in the loading process) Test

   An employee is a maritime employee and may be covered if, at the time of his injury, his duties have a sufficient nexus to an occupation enumerated in Section 2(3) of the LHWCA, even though he is not engaged in the occupation itself. Jacksonville Shipyards v. Perdue, 539 F.2d 533 (5th Cir. 1976), vacated and remanded, 433 U.S. 904 (1977). In Perdue, the court had held that an employee met the definition of maritime employee "if at the time of his injury (a) he was performing the work of loading, unloading, repairing, building, or breaking a vessel, or (b) although he was not actually carrying out these specified functions, he was directly involved' in such work." 539 F.2d at 539-40.

Point of Rest Test

   The point of rest refers to "the point where the stevedoring operation ends (or, in the case of loading, begins) and the terminal operation function begins (or ends, in the case of loading)." Caputo, 432 U.S. at 275. As noted, the Supreme Court has rejected the "point of rest" theory.

   In Caputo, petitioners contended "that the maritime employment of longshoremen' included only the stevedoring activity of the longshore gang ... which in the case of unloading, takes cargo out of the hold of the vessel, moves it away from the ship's side, and carries it to its point of rest on the pier or in a terminal shed." As such, those employees who handled the cargo after it had reached its first point of rest would not be covered under the LHWCA. Finding this theory too restrictive, the Court reasoned that this approach could bifurcate coverage for employees who performed essentially the same work and prevent uniform coverage.

   The Second, Third, and Fifth Circuits had rejected the point of rest theory prior to Caputo; only the Fourth Circuit had adopted it. I.T.O. Corp. v. Benefits Review Bd., 529 F.2d 1080 (4th Cir. 1975), modified en banc, 542 F.2d 903 (4th Cir. 1976), vacated and remanded sub nom. Adkins v. I.T.O. Corp., 433 U.S. 904 (1977).

   The Board has continued to reject arguments based on a point of rest theory. See M v. Sunnen Crane Services, Inc., 31 BRBS 34 (1997); Molee v. Novelties Distribution Corp., 15 BRBS 1 (1982), aff'd, 710 F.2d 992, 15 BRBS 168 (CRT) (3d Cir. 1983), cert. denied, 465 U.S. 1012 (1984); Miller v. Prolerized New England Co., 14 BRBS 811 (1981), aff'd, 691 F.2d 45, 15 BRBS 23 (CRT) (1st Cir. 1982).

Moment of Injury Test

    Caution: In Caputo, 432 U.S. 249, the Supreme Court rejected the "moment of injury" test for purposes of excluding claimants from coverage. This test looks to a claimant's duties at the time of injury in determining whether status is established. See also Brady-Hamilton Stevedore Co. v. Herron, 568 F.2d 137 (9th Cir. 1978), aff'g 1 BRBS 273 (1975). As noted previously, under Caputo a claimant need not be engaged in maritime employment at the time of injury to be covered by the LHWCA.

   The Court did not decide whether the worker's duties at the time of injury (putting goods already unloaded from a ship or container onto a delivery truck) were maritime because he was a longshoreman by occupation and could have been assigned to covered or uncovered duties.

   In Thibodaux v. Atlantic Richfield Co., 580 F.2d 841, 8 BRBS 787 (5th Cir. 1978), cert. denied, 442 U.S. 909 (1979), the Fifth Circuit interpreted Caputo as providing alternative tests for determining whether a claimant satisfies the status requirement of Section 2(3). Thus, if a claimant was engaged in longshore employment at the time he was injured, he was covered under Section 2(3); if he was not so engaged, he was nonetheless covered if his overall employment was maritime in nature, which required that he spend "at least some" of his time in covered employment. The Fifth Circuit's analysis was based on the facts in Caputo: claimant Blundo, who was injured while working as a checker, was held covered based on his activities at the moment of his injury while claimant Caputo, a member of a regular stevedoring "gang" injured while loading a ship's cargo onto a truck on the pier, was held covered based on the nature of his overall employment. See also Hullinghost Industries, Inc. v. Canoll, 650 F.2d 750, 14 BRBS 373 (5th Cir. 1981), cert. denied, 454 U.S. 1163 (1982).

   In Odom Construction Co. v. United States Department of Labor, 622 F.2d 110 (5th Cir. 1980), cert. denied, 450 U.S. 966 (1981), the court held that the claimant, a construction worker who was injured while moving concrete blocks used to moor barges, met the status requirement of Section 2(3). Although the court held first that the claimant's coverage at the moment of injury arguably could be the sole basis for its decision, it did not rest on this ground alone. Viewing all of the circumstances of the claimant's employment the court found that, where the claimant was performing maritime work and where a significant part of employer's business (20 per cent) was maritime in nature, the policies of the LHWCA favored coverage.

   The court noted that the employer had a separate maritime gang which was assigned to work on maritime projects and that the claimant was not assigned to work on this gang. The court determined, however, that coverage could not be permitted to turn on the fact that the employer did not choose to assign the claimant to the maritime group. Such a holding would impermissibly allow an employer to avoid liability to workers injured while engaged in maritime employment simply by allowing each employee only to do a limited amount of maritime work. See also Universal Fabricators v. Smith, 878 F.2d 843, 22 BRBS 104 (CRT) (5th Cir. 1989), cert. denied, 493 U.S. 1070 (1990); Gilliam v. Wiley N. Jackson Co., 659 F.2d 54 (5th Cir. 1981), rev'g 12 BRBS 556 (1980), cert. denied, 459 U.S. 1169 (1983) (claimant covered because he was assisting in the transfer of pilings from a barge at the time of injury.) .

   The Eleventh Circuit has also applied the moment of injury test. Browning v. B.F. Diamond Constr., 676 F.2d 547 (11th Cir. 1982), rev'g 14 BRBS 313 (1981), cert. denied, 459 U.S. 1170 (1983). The court found coverage because the decedent was unloading metal forms from a barge at the time of death, and was thus engaged in longshoring activities.

[ED. NOTE: Decisions of the Fifth Circuit, as that court existed on September 30, 1981 and handed down by that court prior to the close of business on that date, are precedent in the Eleventh Circuit unless specifically overruled.]

   The Board reluctantly applied the moment of injury test in a case arising in the Fifth Circuit in which the claimant was injured while installing a toilet seat aboard a floating oil rig. Henry v. Gentry Plumbing & Heating Co., 18 BRBS 95 (1986). Because the claimant was involved in the maintenance and repair of a vessel at the moment of injury, the status test was satisfied. The Board noted its disagreement with the Fifth Circuit rule, as it permits claimants to walk in and out of coverage. Further, according to the Board, the Fifth Circuit approach undermined the intent underlying the 1972 Amendments, i.e., an emphasis on the claimant's overall employment to provide continuous coverage. However, more recently the Board admitted that, "there is support for the conclusion that a finding of coverage based on maritime duties at the time of injury is not inconstant with Caputo." Lewis v. Sunnen Crane Service, Inc., 31 BRBS 34 (1997). Furthermore, in Lewis, the Board noted that Chesapeake and Ohio Ry. Co. v. Schwalb, 493 U.S. 40, 23 BRBS 96 (CRT)(1989) and Director, OWCP v. Perini North River Associates, 459 U.S. 297, 15 BRBS 62 (CRT)(1983), applied a "covered at the moment of injury" test. Moreover, according to the Board in Lewis, a finding of coverage where a claimant is performing maritime work when injured is inconsistent with the LHWCA as it provides a remedy for those exposed to the particular hazards associated with maritime employment. See generally Herb's Welding, Inc. v. Gray, 470 U.S. 414, 17 BRBS 78 (CRT)(1985); Weyher/Linsey Constructors, Inc v. Prevetire, 27 F.3d 985, 28 BRBS 57 (CRT)(4th Cir. 1994), cert. denied, 115 S.Ct. 1691 (1995).

[ED. NOTE: While in Lewis the Board specifically stated that, there, it was not necessary to base a finding of coverage under Section 2(3) solely on the claimant's performance of maritime work at the time of injury, it is noteworthy that the Board has used Lewis to announce a possible future adoption of the Fifth Circuit's position.]

   It should be remembered that, under Caputo, coverage of "longshoremen" under Section 2(3) covers those employees who spend "at least some of their time in undisputably longshore operations." 432 U.S. at 273, 6 BRBS at 165. For more on the issue of time spent in longshore work, see "Substantial Part of Employment in Indisputable Maritime Activities Test" infra.

Overall Employment Test

   The Board's approach had been to determine whether a claimant's overall employment was maritime in nature, regardless of whether his duties at the moment of injury are covered. Brown v. Reynolds Shipyard, 9 BRBS 614 (1979). See also Thibodeaux v. Atlantic Richfield Co., 580 F.2d 841 (5th Cir. 1978), cert. denied, 442 U.S. 909 (1979), where the court held that status may be based either upon the maritime nature of the claimant's activity at the time of his injury (moment of injury test) or based upon the maritime nature of his employment as a whole.

   This later test requires only that the claimant spend "some portion" of his overall employment performing maritime activities. Performing "episodic" maritime activities which were not a regular part of a claimant's duties did not, however, constitute some time regularly spent in indisputably longshoring operations. Felt v. San Pedro Tomco, 25 BRBS 362 (1992).

Substantial Part of Employment in Indisputably Maritime Activity Test

   Since Caputo, it is well settled that an employee who regularly performs duties relating to maritime employment should not be denied coverage if injured while temporarily performing some non-maritime activity. What has been at issue is how much of a claimant's overall employment must be spent in maritime activity.

   The Board relied on the Caputo language that persons are covered if they spend "at least some of their time" in covered work in formulating its test for coverage, holding initially that an employee satisfies the status requirement if he spends "a substantial part of his employment in indisputably maritime activity." Howard v. Rebel Well Serv., 11 BRBS 568 (1979), rev'd, 632 F.2d 1348 (5th Cir. 1980).

   In determining whether a substantial portion of a claimant's overall duties were maritime in nature, the Board employed one of two tests. A "primary function" test was used where an employee clearly had certain principal activities, but spent an insignificant amount of time performing other activities. Maples v. Marine Disposal Co., 14 BRBS 619 (1982) (claimant spent majority of his time picking up trash, which was his primary duty--dumping garbage onto barge was merely incidental); Cappelluti v. Sea-Land Serv., 10 BRBS 1024 (1979). See Maher Terminals v. Farrell, 548 F.2d 476, 5 BRBS 393 (3d Cir. 1977).

   The other test used by the Board was the "substantial portion" test where an employee worked on a variety of projects, some of which were maritime and others of which were not. Ries v. Harry Kane, Inc., 13 BRBS 617 (1981) (claimant was covered under the substantial portion test where 33 percent of his time was maritime employment driving pilings to enlarge slips for recreational boats).

   Several circuit courts of appeal have overruled the Board's "substantial portion" test, and by inference, the "primary function" test. In Graziano v. General Dynamics Corp., 663 F.2d 340 (1st Cir. 1981), rev'g 13 BRBS 16 (1980), overall masonry work on shipyard facilities was sufficient for coverage because maintenance and repair of shipyard facilities was essential to building and repairing ships. Also, the small amount of time spent cleaning out acid tanks and boilers was sufficient to confer maritime coverage because these duties constituted a regular portion of claimant's employment.

   In Levins v. Benefits Review Board, 724 F.2d 4 (1st Cir. 1984), rev'g 15 BRBS 281 (1983), the court rejected the Board's interpretation of the "regularly assigned duties" language as being the same as a "primary function" test. Specifically, the court held that, in determining whether a regular portion of the claimant's duties included maritime employment, the Board impermissibly focused exclusively on the claimant's primary duties.

   The Fifth Circuit in Boudloche v. Howard Trucking Co., 632 F.2d 1346 (5th Cir. 1980), rev'g 11 BRBS 687 (1979), cert. denied, 452 U.S. 915 (1981), relied on the Supreme Court's language in Caputo that a worker who spends "at least some" of his time in longshoring operations is afforded coverage, the court said that "some" is not "substantial," and termed the Board's test contrary to the letter and spirit of the Supreme Court's holding. See also Lennon v. Waterfront Transport, 20 F.3d 658 (5th Cir. 1994)(claimant handling cargo on regular basis would not be considered episodic and thereby excluded from coverage.)

   The court thus reversed the Board's holding that a truck driver who spent a small amount of time loading and unloading oil field equipment onto docks and ships was not engaged in longshoring operations. See also Howard v. Rebel Well Serv., 632 F.2d 1348 (5th Cir. 1980), rev'g 11 BRBS 568 (1979) (claimant covered where 10 per cent of his time was regularly spent in ship repair).

   In Miller v. Central Dispatch, 673 F.2d 773 (5th Cir. Unit A 1982), the court found that a claimant who worked for a specialized maritime service agency which transported seamen and cargo between vessels and points on shore and spent only five percent of her time on vessels, was covered when she was injured aboard a vessel. Here the court cited Ford to say that maritime employment is occupational rather than geographical.

   The Ninth Circuit rejected the "substantial portion" test in Schwabenland v. Sanger Boats, 683 F.2d 309 (9th Cir. 1982), rev'g 13 BRBS 22 (1980), cert. denied, 459 U.S. 1170 (1983). There the court held that claimant's "regular performance" of maritime operations is sufficient to confer status.

   More recent Board cases have applied the "at least some part" test. In Spencer v. Baker Agricultural Co., 16 BRBS 205 (1984), a claimant who spent two days per week servicing and maintaining equipment used in construction and repair of offshore drilling rigs and who was injured while tying up a barge was found covered under the Fifth Circuit's moment of injury test and because he spent some portion (two days a week) of his overall employment in maritime activities. See also McGoey v. Chiquita Brands International, 30 BRBS 237 (1997)(a person is engaged in "maritime employment" under Section 2(3) if he spends "at least some of [his] time" engaged in maritime work); Caldwell v. Universal Maritime Services Corp., 22 BRBS 398 (1989)(office clerk subject to reassignment as a checker is covered under the LHWCA); Reggie v. Maher Terminals, Inc., ___BRBS___, BRB No. 96-1136 (May, 27 1997)(office delivery clerk who occasionally works as a checker injured while performing his office delivery clerk duties, is not "exclusively" a clerical employee and therefore is covered).

   The view that employees may be covered based on either covered work at the time of injury or the overall nature of their employment has long been held by the Fifth Circuit. See, e.g., Universal Fabricators, Inc. v. Smith, 878 F.2d 843, 22 BRBS 104 (CRT) (5th Cir. 1989), cert. denied, 493 U.S. 1070 (1990), and cases cited therein.

   In Malone v. Howard Fuel Co., 16 BRBS 364 (1984), the Board found coverage where part of claimant's duties involved checking the ship's oil and monitoring the discharge process. The Board held that "at least some" of claimant's work constituted maritime employment and that the work was a regular portion of his assigned job duties. See also Jackson v. Atlantic Container Corp., 15 BRBS 473 (1983).

   In Wuellet v. Scappoose Sand & Gravel Co., 18 BRBS 108 (1986), the Board affirmed the judge's finding that the claimant, a welder/mechanic at a barge-loading facility, was covered, stating that "a sufficient portion of claimant's regularly assigned duties qualifies as maritime employment."

   In Lewis v. Sunnen Crane Service, Inc., 31 BRBS 34 (1997), the Board found that the determination as to whether a claimant spends some of his time in covered work is not dependent on mathematical percentages. The key fact it the nature of the work to which the claimant could be assigned.

   While the circuit case law recognizes that at some point, work is so episodic or momentary that claimants are not covered, it does not define where that point is reached. Work cannot be considered "episodic" when it is a part of the employee's regular job assignments. See McGoey, 30 BRBS 237 (1997); Ferguson v. Southern States Comparative, 27 BRBS 16 (1993). Such a definition of the term "episodic" was enumerated by the First Circuit in Lewis v, Benefits Review Board, 724 F.2d 4, 16 BRBS 23 (CRT) (1st Cir. 1984). The First Circuit stated that to be considered "episodic" an activity must be "discretionary or extraordinary" as opposed to that which is a "regular portion of the overall task to which a claimant could have been assigned.

   Compare this situation, however, to the one where assigned "maritime" duties are found to be "episodic" in nature. In Odness v. Import Dealers Service Corp., 26 BRBS 165 (1992), the Board found that there was not status where a claimant was required to move cars at the port when a new shipment of cars would arrive before the previous shipment had been cleared out of the harbor berth. The Board stated that "[w]hile such work arguably does involve maritime activity, we conclude that even if this work is covered it is insufficient in itself to confer status under the Act because of its episodic nature." 26 BRBS at 171.

   In Felt v. San Pedro Tomco, 25 BRBS 362 (1992), dismissed on other grounds sub nom. Felt v. Director, OWCP, 27 BRBS 165 (9th Cir. 1993), the Board found there to be a lack of situs and status where the employer's sole worker, who did maintenance work and delivered work for his company's primary supplier, was injured in employer's warehouse yard on a forklift moving pallets. Predominately all of the employer's business was based on its exclusive contract with Drew Chemical Company, and nearly all of the employer's deliveries were to commercial vessels, water taxis, and cruise ships berthed at the Long Beach/San Pedro Harbor and the Los Angeles Harbor.

   In Felt, the claimant hand-carried on board small items, such as boxes of welding rods, gloves and test tubes in order to prevent pilferage. He testified that he had done this 15 times within the last six months prior to his injury. He further testified that several times the dock boss had told him to drive aboard vessels and that this averaged two out of every 10 times. The claimant made deliveries to vessels at least three or four times a day and 10 or 15 times a week.

   The Board held that, Felt was similar to Dorris v. Director, OWCP, 808 F.2d 1362, 19 BRBS 82 (CRT) (9th Cir. 1987) (truck driver transporting cargo who is neither expected to nor assigned to perform longshoring work is not engaged in such work). The Board, in Felt, held that when the worker performed such activities as hand-loading merchandise onto commercial vessels and driving his truck on board to make deliveries, these activities were episodic and not a regular part of the claimant's duties and did not constitute some time regularly spent in indisputably longshoring operations.

   The Board stated that hand carrying items constitutes delivery, not loading. The Board stated that the time that the claimant spent personally loading merchandise onto vessels was minimal compared to his other responsibilities, and incidental to his employment. The Board noted that, just as in Dorris, the claimant was neither expected to nor assigned to, perform longshoring work. The Board found the claimant to be a vendor, a truck driver, and a warehouse employee.]

   This approach is in line with the Third Circuit's opinion in Sea-Land Service v. Rock, 953 F.2d 56, 25 BRBS 112 (CRT) (3d Cir. 1992). In that case the claimant was a courtesy van driver who transported passengers primarily within his employer's marine terminal. The Third Circuit found that the claimant was not essential to the process of loading and unloading a vessel, though he did, on occasion, transport longshoremen.

Realistically Significant Relationship to Maritime Employment Test

   This test, applied in Thorton v. Brown & Root, Inc., 707 F.2d 149, 152-53 (5th Cir. 1983), cert. denied, 464 U.S. 1052 (1984), was expressly rejected in Herb's Welding, 470 U.S. at 418-19 as being too expansive.

1.9 MARITIME EMPLOYER

    Prior to the 1972 Amendments "employer" was defined as:

...an employer 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).

Thus, an employer was not a statutory employer if all of its employees worked on land. See Novelties Distribution Corp. v. Molee, 710 F.2d 992 (3d Cir. 1983), cert. denied, 465 U.S. 1012 (1984).

   Relying on this definition in a post-amendment case, the Board held that an employer who manufactured small boats was not engaged in shipbuilding because none of its employees were engaged in the construction of vessels over navigable waters, as defined prior to the 1972 Amendments, or on a dry dock, building way, or marine railway. Claimant, therefore, was not a shipbuilder subject to coverage under the LHWCA. Napoles v. Donzi Marine, 5 BRBS 685 (1977), appeal dismissed sub nom. Director, OWCP v. Donzi Marine, 586 F.2d 377 (5th Cir. 1978).

   The 1972 Amendments greatly expanded the definition of "employer:"

The term "employer" means an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including 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. 2(4) (1972).

   The legislative history of the 1972 Amendments suggested, however, that there was

...no intention of extending coverage under the Act to individuals who are not employed by a person who is an employer, i.e., a person at least some of whose employees are engaged in whole or in part in some form of maritime employment. Thus, an individual employed by a person, none of whose employees work, in whole or in part, on the navigable waters, is not covered even if injured on a pier adjoining navigable waters.

S. Rep. No. 92-1125, 92d Cong., 2d Sess. 13 (1972); H. Rep. No. 92-1441, 92d Cong., 2d Sess. 11. See also Molee, 710 F.2d at 997-98.

   The Board has held that if a claimant is an "employee" within the meaning of Section 2(3) of the LHWCA, then the employer is an employer within the meaning of Section 2(4) of the LHWCA. Having one employee (any employee) engaged in maritime employment was sufficient to make the employer a maritime employer. Blundo v. International Terminal Operating Co., 2 BRBS 376 (1975), aff'd sub nom. Pittson Stevedoring Corp. v. Dellaventura, 544 F.2d 35 (2d Cir. 1976), aff'd sub nom. Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249 (1977); Harris v. Maritime Terminals, 1 BRBS 301, 340 (1975), rev'd sub nom. I.T.O. Corp. v. Benefits Review Bd., 529 F.2d 1080 (4th Cir. 1975), rev'd on rehearing en banc, 542 F.2d 903 (4th Cir. 1976), vacated and remanded sub nom. Atkins v. I.T.O. Corp., 433 U.S. 904, reinstated on remand, 563 F.2d 646 (4th Cir. 1977).

   The Supreme Court noted the inconsistency between the actual wording of Section 2(4) and the expression in the legislative history, but did not endorse either interpretation. Director, OWCP v. Perini N. River Assocs, 459 U.S. 297, 314 n.24 (1983).

   The Third Circuit stated, however, that the language of the statute is "unproblematic," and determined that the employer was a statutory employer because its employee was engaged in maritime employment in a terminal area. Molee, 710 F.2d 992. The court stated that it did not matter that the employer was an agent of the consignees, and not an agent of its parent stevedoring company.

   The Fifth Circuit has stated that it is clear that Section 2(4) requires merely that an employer have at least one employee engaged in maritime employment, as defined in Section 2(3), on a situs, as defined in Section 3(a). Jacksonville Shipyards v. Perdue, 539 F.2d 533, 538 n.9 (5th Cir. 1978), aff'd on other grounds sub nom. P.C. Pfeiffer Co. v. Ford, 444 U.S. 69 (1979).

   Thus, if a claimant can satisfy Sections 2(3) and 3(a) of the LHWCA, his employer is automatically brought within Section 2(4). A maritime employee can make his employer a maritime employer. See Hullinghorst Indus. v. Carroll, 650 F.2d 750 (5th Cir. 1981), cert. denied, 454 U.S. 1163 (1982).

   If claimant fails to meet one of the jurisdictional elements, it is immaterial whether or not employer would qualify as a statutory employer. Carroll, 650 F.2d 750.

   The Board has held consistently that, where an employer has an employee engaged in maritime employment, the employer is a statutory employer under Section 2(4). Spencer v. Baker Agric. Co., 16 BRBS 205 (1984); Perez v. Sea-Land Servs., 8 BRBS 130 (1978). The Board seemingly has not included the situs requirement in its definition of Section 2(4), but in Spencer situs was not at issue, and in Perez, the Board went on to affirm the judge's finding of situs.

   The LHWCA does not define "employer" in terms of the types of entities that qualify. Instead, it defines the class of employees covered by the LHWCA and then defines "employer" as "an employer any of whose employees" are covered by the LHWCA. (When Congress extended the LHWCA to cover oil recovery operations on the Outer Continental Shelf, it changed the class of covered employees but repeated without change the definition of employer.)

   The LHWCA does not limit the type of legal entity that can qualify as an employer. Given the intent of Congress to provide coverage to all persons within the statutory definition of employee, the conclusion is inescapable that any entity capable of employing a statutory "employee" can qualify as an employer, including partnerships and joint ventures. Davidson v. Enstar Corp., 848 F.2d 574, 577, rev'd on other grounds, 860 F.2d 167 (5th Cir. 1988).

   "Employer" is currently defined as follows:

(4) The term "employer" means an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including 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. 902(4). 1.10 Outer Continental Shelf Lands Act (OCSLA)     (See also Longshore Extension Acts, Topic 60.3.)

1.10.1 Natural Resources Workers

   Congress enacted the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. 1331, et seq., in 1953 to establish the law governing conduct on the Outer Continental Shelf (OCS), an area of intense mineral extraction activity that lacked an established legal system because it lies beyond state boundaries. Mills v. Director, OWCP, 877 F.2d 356 (5th Cir. 1989) (en banc). Congress enacted the OCSLA "to define a body of law applicable to the seabed, the subsoil, and the fixed structures ... on the Outer Continental Shelf." Rodrique v. Aetna Casualty & Surety Co., 395 U.S. 352 (1969).

   To this end Congress made non-maritime federal law applicable to the subsoil, seabed and platforms. Id. at 355-56. In the event no federal law existed on a particular issue, Congress elected to borrow the adjacent state's law as surrogate federal law. Id.; 43 U.S.C. 1333(a)(2)(A).

   One obvious void in the Law governing the OCS was the lack of a workers' compensation scheme for thousands of workers employed in the oilfield extraction industry. Congress filled that void in 1333(b) when it adopted the LHWCA's benefits provision to cover non-seamen employed in the oil patch on the OCS.

   Offshore oil and gas exploration is not maritime employment. Herb's Welding v. Gray, 470 U.S. 414 (1985). Here the Supreme Court held that the claimant (a welder) was not a maritime employee because there is nothing inherently maritime about building and maintaining pipelines and platforms. Those tasks are also performed on land and their nature is not significantly altered by the maritime environment. The Court also noted that while maritime employment is not limited to the occupations specifically mentioned in Section 2(3), neither can the LHWCA be read to eliminate any requirement of a connection with the loading or construction of ships.

   A mineral resources worker is not covered for his work on a fixed platform in state territorial waters. (Generally, the first three miles off of the coast of a state.) Id., Munguia v. Chevron U.S.A., Inc., 999 F.2d 808 (1993) (relief pumper gauger is engaged in work to further the maintenance of the oil wells, not maritime employment). There may be specific circumstances, however, under which a mineral resources worker (within three miles) is covered.

   The worker (within the three-mile limit) may be covered if injured on a floating platform ("a vessel"). For example, a worker, engaged by a subcontractor of Exxon Corporation to assist in the cleanup of the massive "Valdez" oil spill in the navigable waters off of Alaska was found to be covered under the LHWCA. Fontenot v. Industrial Clean-up, Inc., 92-LHC-971(unpublished)(Aug. 17, 1992). The jury found that the claimant's work was clearly a maritime activity conducted in a maritime environment.

   However, if a worker was more or less permanently attached to the floating platform, which was capable of being navigated and the worker's duties were for the furtherance of the mission of the "vessel," then the worker would not be covered by the OCSLA, 43 U.S.C. 1331 et. seq., extension of the LHWCA; rather, he would be classified as a Jones Act seaman doing mineral resources work. See Kerr-McGee Corp. v. Ma-Ju Marine Servs., 830 F.2d 1332 (5th Cir. 1987); Miller v. Rowan Cos., 815 F.2d 1021 (5th Cir. 1987).

   A worker injured on the OCS (at least three miles from shore) under the OCSLA extension to the LHWCA, would be covered. As noted previously, the OCSLA extends coverage to mineral resource workers injured on the OCS, simply because they are mineral resource workers. 470 U.S. at 441 n.13.

   In Mills v. Director, OWCP, 877 F.2d 356 (5th Cir. 1989), the Fifth Circuit, en banc, held that LHWCA coverage as extended under the OCSLA applies to employees who (1) suffer injury or death on an OCS platform or the waters above the OCS; and (2) satisfy the "but for" status test described in Herb's Welding v. Gray, 766 F.2d 898, 900 (5th Cir. 1985).

   The court noted that the claimant, at the time of his injury was on Louisiana soil though he was involved in the construction of a platform destined for use on the OCS. But cf. Curtis v. Schlumberger Offshore Serv., 849 F.2d 805 (3d Cir. 1988) (OCSLA platform worker injured in car accident on New Jersey Garden State Parkway while driving to meet helicopter that would have flown him to rig was covered by the OCSLA extension to LHWCA).

   Finding that the bare language of 43 U.S.C. 1333(b) of the OCSLA did not resolve the issue, the Fifth Circuit looked to the legislative intent and history to reach its conclusion. The Fifth Circuit also noted that the Supreme Court has recognized the geographic boundaries to the OCSLA's coverage in both Herb's Welding v. Gray, 470 U.S. 414 (1985), and in Offshore Logistics v. Tallentire, 477 U.S. 207 (1986) (OCS platform workers dies in a helicopter crash on the high seas).

   Previously, the Fifth Circuit had held that, in determining whether OCSLA jurisdiction exists, the claimant's injury need not have actually occurred on the OCS. In Thornton v. Brown & Root, Inc., 707 F.2d 149 (5th Cir. 1983), rev'g 12 BRBS 883 (1980) and 13 BRBS 37 (1980), cert. denied, 464 U.S. 1052 (1984), the court found status for two land-based workers on the basis that their jobs directly facilitated the offshore drilling process. One claimant worked constructing offshore stationary platforms, and the other worked in the construction of housing modules and heliports for offshore stationary platforms. Thorton was a pre-Herb's Welding case and relied on the concept that mineral exploration is maritime employment.

   Prior to the en banc reversal of Mills, the Board had followed the now-reversed panel decision in Mills. In Laviolette v. Reagan Equipment Co., 21 BRBS 285 (1988), the Board had remanded for consideration whether a housing superstructure was destined for the Shelf. Interestingly, the Board also held in Laviolette that a claimant injured building housing superstructures and, who spent, at most, eight hours during his four-month tenure offloading these structures, was not covered under Section 2(3), as his loading activities were clearly incidental to his participation in the construction of such superstructures and not integral to the loading and unloading process.

   The Ninth Circuit has held that the OCSLA extends coverage to a worker injured while working as a pipe fitter/welder on a stationary offshore oil platform, under construction on the OCS, since his welding activities contributed directly to the development of natural resources of the OCS. Kaiser Steel Corp. v. Director, OWCP, 812 F.2d 518 (9th Cir. 1987), aff'g Robarge v. Kaiser Steel Corp., 17 BRBS 213 (1985).

   The Fifth Circuit has held that a worker, injured while supervising the maintenance of a production platform which furthered mineral development, was covered because the injury would not have occurred "but for" the maintenance work he was performing and supervising on the platform. Recar v. CNG Producing Co., 853 F.2d 367 (5th Cir. 1988).

   The Fifth Circuit has also held that an OCS worker being transported by helicopter to an OCS platform, and who was injured in a helicopter crash, was covered under the OCSLA extension of the LHWCA. Barger v. Petroleum Helicopters, 692 F.2d 337 (5th Cir.), cert. denied, 461 U.S. 958 (1982); Stansbury v. Sikorski Aircraft, 681 F.2d 948 (5th Cir.), cert. denied, 459 U.S. 1089 (1982) (injury would not have occurred "but for" the operations on the OCS).

   The Third Circuit held that a drilling rig employee injured on a highway while en route to his work site was covered under the OCSLA extension. Curtis v. Schlumberger Offshore Serv., 849 F.2d 805 (3d Cir. 1988). The court noted that the OCSLA does not contain a "situs" requirement, that it covers injuries "arising out of or in connection with" any OCSLA operations, and that the employee in this case would not have been injured "but for" his job, which was related to operations on the OCS. But cf. Mills, 877 F.2d 356.

   But for LHWCA cases (not utilizing the OCSLA) see Section 1.6.1 wherein a lineman on call 24 hours per day, seven days a week, injured in his auto thirteen miles from his work assignment and in the course of his employment, was not covered under the LHWCA because he lacked situs. Morris v. Portland Lines Bureau, BRB No. 96-0472 (unpublished)(1996).

   It is important to note that when offshore exploration for minerals began, only state workers' compensation act remedies were available for injuries occurring to these workers. In 1953, Congress extended the LHWCA to mineral resource workers beyond the three-mile limit on the OCS.

   Herb's Welding has left open the possibility that a mineral resource worker in state territorial waters (where fixed platforms are treated as artificial islands) doing the work of a longshore worker (i.e., assisting in the loading or unloading of equipment/supplies) could be covered under the LHWCA. In 1969, the Supreme Court had held that fixed offshore platforms are artificial islands and therefore are outside traditional maritime jurisdiction. Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352 (1969).

   But see Alexander v. Hudson Engineering Co., 18 BRBS 78 (1986), where the Board noted that any work an electrician may have performed in assisting in the loading of electrical equipment was clearly "incidental" to his participation in fixed platform construction and not integral to the loading and unloading process. This case notes the language in Herb's Welding, wherein that worker was unloading his own gear upon arrival at the fixed platform. In Alexander, the Board reviewed the specific factual situation and found that the claimant's participation was not an "integral" part of the loading and unloading process.

   When dealing with mineral resource workers care must be taken to analysis exactly what they are doing and where. The following non-OCSLA case is illustrative as to how maritime employment and mineral resource employment are distinguishable, as well as how important a roll the structure on which the injured worker was injured may play.

   In Hurston v. McGray Construction Co., 29 BRBS 127 (1995), on remand from Hurston v. Director, OWCP, 989 F.2d 1547, 26 BRBS 180 (CRT)(9th Cir. 1993), reh'g Hurston v. McGray Construction Co., 24 BRBS 94 (1990), recon. en banc denied, BRB No. 88-4207 (Aug 13,1991) the worker was injured while replacing sheet pilings on the side of a pier. The pier was a rectangular structure which was entirely on the beach at high tide. Oil well fluids produced on a nearby structure are piped to the pier where automated equipment separates the well fluids into gas, water, and crude oil, and where the processed crude oil is stored in a tank located on the structure. The stored crude oil is pumped in a pipeline, on a weekly basis to a marine terminal for later shipment to Los Angeles.

   The Ninth Circuit determined that a structure built on pilings that reaches from land to navigable waters, and used only for oil production, is a pier. The court found that the structure was a covered situs under Section 903(a), even though it is not used for traditional maritime activities such as the loading or repairing of vessels. [For more on "piers" see Topic 1.5.2.]

   Hurston is distinguished from Herb's Welding (injury on a fixed platform - "artificial island" used solely for oil production purposes not covered because welder on a fixed oil platform is not a maritime employee) and Munguia (pumper-gauger who services and maintained fixed oil platform wells was not a maritime employee under Herb's Welding rational). In Hurston, a worker repairing a pier which is an enumerated situs passes the situs requirement by its very definition. The Board has held that the term "harbor-worker" in Section 2(3) encompasses at least those persons directly involved in the construction, repair, alteration, or maintenance of harbor facilities (which include docks, piers, wharves, and adjacent areas used in the loading, unloading, repairing or construction of ships). 29 BRBS at 129.

[ED. NOTE: When dealing with mineral resource workers, it is important both to determine (1) if the worker is on a fixed platform or a floating platform or drilling barge, and (2) whether or not the worker is on the OCS or within state territorial waters. Then ask if the worker's particular injury happened in connection with operations on the OCS and would not have occurred "but for" the extraction of minerals on the OCS.]

1.11 EXCLUSIONS TO COVERAGE

    Sections 2 and 3 of the LHWCA contain express exclusions from coverage. Some of these exclusions were inserted when the LHWCA was originally enacted. Others have been added by the 1984 Amendments. Still others have been created by the jurisprudence itself (i.e., mineral exploration is not maritime employment under the LHWCA, though it is addressed under the OCSLA).

1.11.1 "master or member of a crew"

   This exclusion was originally found in Sections 2(3) and 3. It is presently found at Section 2(3)(G). (This exclusion has previously been dealt with at Topic 1.3.)

1.11.2 "small vessel"

   This exclusion originally appeared under Sections 2(3) and 3(a)(1). It now appears at Sections 2(3)(H), 3(d)(1), and 3(d)(3). This exclusion has been applied with the emphasis on whether a person was "engaged by the master."

   It is well-established that the purpose for this exclusion is to prevent the master of a vessel from incurring liability without the owner's consent. Continental Casualty Co. v. Lawson, 64 F.2d 802 (5th Cir. 1933); Napoles v. Donzi Marine, 5 BRBS 685 (1977), appeal dismissed sub nom. Director, OWCP v. Donzi Marine, 586 F.2d 377, 9 BRBS 404 (5th Cir. 1978). In Napoles, the Board, citing Continental Casualty, found that the claimant was employed by a ship repair company, and therefore was not "engaged by the master" of the small vessel he was repairing at the time of injury.

   Citing Black's Law Dictionary, the Board defined master as "the commander of a merchant vessel ... the representative and confidential agent of the owner...." Black's Law Dictionary 1127 (Rev. 4th ed. 1968). More recently, the Board in Schwabenland v. Sanger Boats, 13 BRBS 22 (1980), rev'd on other grounds, 683 F.2d 309 (9th Cir. 1982), cert. denied, 459 U.S. 1170 (1983), determined that the "eighteen tons net" exclusion did not apply because claimant was neither "engaged by the master" nor involved in loading, unloading, or repairing any vessel.

   The Ninth Circuit, although reversing the Board on other grounds, agreed with the portion of the Board opinion holding small recreational boat-building within the jurisdiction of the LHWCA. See also Clophus v. AMOCO Prod. Co., 21 BRBS 261 (1988).

   In Mississippi Coast Marine v. Bosarge, 637 F.2d 994 (5th Cir. 1981), aff'g 8 BRBS 224 (1978), modified and reh'g denied, 657 F.2d 665 (5th Cir. 1981), the Fifth Circuit held that the "eighteen tons net" exception of Section 3(a)(1) only applies to situations where the employees are "engaged by the master" to repair vessels under eighteen tons net. A person engaged by someone other than the master to repair such a vessel would not fall within the statutory exemption.

   Thus, a marine carpenter who repaired recreational boats and small pleasure craft was covered. [But note the recreational vessel under 65 feet in length exclusion at 2(3)(F).] See also Odom, 622 F.2d 110, and Trotte, 631 F.2d 1214.

1.11.3 Officers and agents of the federal, state, local, or foreign governments

   This exclusion is found at Section 3(b) of the LHWCA. There is little case law in this area. See Evans v. Louisiana Department of Highways, 430 F.2d 1280 (5th Cir. 1970), where a district court judgment barring recovery for a state worker was affirmed.

1.11.4 Intoxication as the sole cause of injury     (See also Section 20(c).)

   Only when the Section 20(c) presumption (that the injury was not occasioned by the willful intention of the injured employee) is overcome by substantial evidence does this exclusion apply. Sheridon v. Petro-Drive, Inc., 18 BRBS 57 (1986); Shelton v. Pacific Architects & Eng'rs, 1 BRBS 306 (1975).

[ED. NOTE: But see Maher Terminals v. Director, OWCP, 992 F.2d 1277, 27 BRBS 1 (CRT) (3d Cir. 1993), cert. granted sub nom. Director, OWCP v. Greenwich Colleries, ___U.S.___, 114 S. Ct. 751 (1994). In Maher, the Third Circuit held that the Administrative Procedure Act (APA), 5 U.S.C. 501 et seq., prohibits application of the true doubt rule to cases involving benefits under the LHWCA because: (1) under the APA, the claimant bears the ultimate burden of persuasion by a preponderance of the evidence; and (2) the true doubt rule allows a claimant to prevail despite a failure to prove entitlement by a preponderance of the evidence. The Third Circuit stated that the rule's application contravenes the APA. The Third Circuit went on to add that because there is no express provision in the LHWCA which overrides the APA, the claimant must prove that a death/injury was related to the employee's work injury by a preponderance of the evidence.]

1.11.5 Willful Intention to injure or kill self or another.     (See also Section 20(d))

[ED. NOTE: See Maher Terminal noted above under Topic 1.8.4.]

Suicide

   In Del Vecchio v. Bowers, 296 U.S. 280 (1935), the Supreme Court stated that, where both the employer and the claimant present substantial evidence, the issue must be resolved upon the whole body of proof pro and con. If the evidence permits an inference either way upon the question of suicide, the trier of fact must draw the inference and his decision as to the weight of the evidence may not be disturbed. If there is an absence of substantial evidence, the claimant shall have the benefit of the presumption that the injury was not occasioned by the willful intention of the injured employee to injure or kill himself.

   Where an employee's death does not stem from a "willful intent" to commit suicide, but is instead caused by an irresistible suicidal impulse resulting from an employment-related condition, Section 3(c) does not bar compensation. See Cooper v. Cooper Assocs., 7 BRBS 853 (1978), aff'd in pertinent part sub nom. Director, OWCP v. Cooper Assocs., 607 F.2d 1385 (D.C. Cir. 1979). See also Voris v. Texas Employers Ins. Ass'n, 190 F.2d 929 (5th Cir. 1951), cert. denied, 342 U.S. 932 (1952); Terminal Shipping Co. v. Traynor, 243 F. Supp. 915 (D. Md. 1965).

   In Konns v. Young Brothers, Ltd, 28 BRBS 57 (1994) the employee's suicide was covered under the LHWCA since it was due to depression resulting from a grand jury investigation into thefts of the employer's cargo and other work-related pressures associated with the supervisor's management style which made the decedent feel unappreciated and not trusted. 28 BRBS at 59. Konns relies on specific instances, shown through testimony, in which the claimant was repeatedly upset by his superior's actions. Id., at 58-59.

   Konns notes that Section 3(c) does not bar compensation when the employee's death is due to an irresistible impulse. The employee's depression need not be identified or treated prior to his suicide. Id., at 60.

Intent to Harm Self

   In Cyr v. Crescent Wharf and Warehouse Co., 211 F.2d 454 (9th Cir. 1954), the Ninth Circuit held that by the use of the term "unavoidable" the statute place upon the injured employee the "duty of using due care in regards to his injury" such that the employee's own intentions or carelessness in this regard renders the injury avoidable. The Board followed this holding in Grumbley v. Eastern Associated Terminals Co., 9 BRBS 650 (1979)(employer can rebut the 20(a) presumption by producing substantial evidence that the injury was caused by a subsequent non-work related event which was not the natural or unavoidable result of the initial injury.) A claimant's own conduct can constitute such an event. Cyr; Konns v. Young Brothers, Ltd, 28 BRBS 57, 63 (1994); Wright v. Connolly-Pacific Co., 25 BRBS 161, 164 (1991), aff'd mem. sub. nom. Wright v. Director, OWCP, BRB No. 92-70045 (9th Cir. 1993).

   The Fifth Circuit has held that an employee's deliberate, intentional and unexcused misconduct, resulting in an unforeseeable work-related injury, may sever the connection between the original work-related injury and the subsequent consequences he may suffer. Bludworth Shipyard Inc. v. Lira, 700 F.2d 1046 (5th Cir. 1983).

   However, the Fifth Circuit has been highly critical of the Ninth Circuit's Cyr approach. See Hartford Accident and Indemnity Co. v. Cardillo, 112 F.2d 11, 17 (5th Cir. 1940)("It is entirely inconsistent [to] read...into the statute the law of tort causation and defense, where liability is predicated on fault and nullified by contributory fault.) The Seventh Circuit, finding the Ninth Circuit approach "problematic" both as a matter of policy and because it is not supported by the language of the statute, adopted the Fifth Circuit's standard. Jones v. Director, OWCP, 977 F.2d 1106 (7th Cir. 1992)(the test is whether the causal effect attributable to the employment has been "overpowered and nullified by influences originally entirely outside the employment."). The Seventh Circuit further noted that a worker's reckless disregard of his own health and safety would ordinarily not be foreseeable, but that it is generally foreseeable that workers will seek employment for which they are qualified even if there might be some risk of aggravating an injury. Thus, in the Seventh Circuit, foreseeable negligence on the part of the employee cannot constitute an intervening cause. It is deliberate misconduct on a claimant's part that amounts to an intervening cause, not merely a hapless lapse of the moment.

   In Meissner v. Foss Maritime, 29 BRBS 168 (ALJ)(1995), the judge found that a claimant's own affirmative misconduct effectively overpowered and nullified the causal effect attributable to the employment, thus severing the connection with his employment. The claimant, a shipbuilder, had a history of bronchial problems and a prior incident of almost passing out in April of 1983 while working for another employer. He was originally told by his doctor not to return to shipfitting because of his respiratory condition. Subsequently the claimant was retained for other work. However, when those positions ended, the claimant despite all of his doctor's orders, applied for work as a shipfitter with the employer, concealing his medical information.

   The judge in Meissner concluded that the claimant's conduct after he was hired, especially in light of the medical information he concealed when hired, constituted no less than a knowing disregard for his own safety. The judge determined that the claimant's conduct was the type that is not foreseeable for the circumstances of the first injury, nor were the injuries sustained in June of 1990 the natural and unavoidable consequences of the first April of 1983 injury.

Intent to Harm Another

   Again, the claimant has the benefit of the presumption that there was no intent to harm himself or another. It can be rebutted if willful intent can be shown. The finding of intent can be based upon the claimant's speech and physical activity (gestures and contact) at the time of the incident. Rogers v. Dalton Steamship Corp., 7 BRBS 207 (1977).

   In Arrar v. St Louis Shipbuilding Co., 780 F.2d 19 (8th Cir. 1985), the court dealt with what constitutes "substantial evidence" that a claimant intended to injure another. The court held that a claimant, injured when he attempted to break up a fight, was entitled to the presumption that the injury was not occasioned by the willful intention of the injured employee to injure another. The testimony of the party striking the claimant was not substantial evidence that the claimant intended to injure him.

   For examples of cases dealing with intent to harm another see for example Kielczewski v. Washington Port Co., 8 BRBS 428 (1978)(harassment of a fellow employee did not constitute the willful intention of the injured employee to injure himself or another); Green v. Atlantic and Gulf Stevedores, 18 BRBS 116 (1986)(an aggressor injured while seeking to harm another will be excluded from coverage); Kirkland v. Air America, 23 BRBS 348 (1990)(where a claimant participated in the murder of her husband, any causal relationship which may have existed between, the conditions created by his job and his death were effectively severed.

1.11.6 "Employee" exclusions

   The 1984 Amendments added several employee exclusions to the LHWCA at Section 2(3). These exclusions apply only if the individuals described are subject to coverage under a state workers' compensation law. Also, they apply only to injuries occurring after September 28, 1984, the date of enactment of the 1984 Amendments.

1.11.7 Clerical/secretarial/security/data processing employees

   This exclusion is for land-based workers whose duties are performed in an office. H.R. Rep. No. 98-1027, 98th Cong., 2d Sess. 22 (1984). Cargo checkers and marine clerks continue to be covered. The Board has found coverage for a clerk/checker who performed clerical duties as to cargo removal. Hall v. Newport News Shipbuilding & Dry Dock Co., 24 BRBS 1 (1990); Caldwell v. Universal Maritime Serv. Corp., 22 BRBS 398 (1989).

   Nevertheless, in Bergquist v. Newport News Shipbuilding & Dry Dock Co., 23 BRBS 131 (1989), a key machine operator was excluded from coverage. Her employment essentially involved processing invoices and inspection information using a computer terminal, and generating descriptive stickers and tags which were ultimately placed on various pieces of equipment and which were used in the shipyard inventory and routing process. Although the claimant herself did not inspect the parts or affix the inspection stickers, her office was adjacent to the warehouse/inspection office, and she would occasionally have to go into the parts warehouse.

   The Board held that her duties were that of an office clerical worker and therefore excluded from coverage. See also Sette v. Maher Terminals, 27 BRBS 224 (1993)(employee who performs exclusively office clerical work is not covered); Williams v. Newport News Shipbuilding and Dry Dock Co., 28 BRBS 42 (1994), vac'd rem'd, 29 BRBS 75 (CRT). The Board distinguished this case from White v. Newport News Shipbuilding & Dry Dock Co., 633 F.2d 1070 (4th Cir. 1980) (immaterial that the skills used by employee are essentially non-maritime in character if the purpose of the work is maritime). In White, a claimant whose duties consisted of sorting and marking pipe to be used in shipbuilding, was found to be covered. See also: Jones v. Aluminum Co. Of America, ___ BRBS ___ (Oct 16, 1997)(holding that a clerical worker who spent 1% of his time working on a conveyor system was covered as his conveyor work "was a regular, non-discretionary part of [his] job.").

   Non-maritime skills applied to a maritime project are maritime for purposes of the maritime employment test of the LHWCA. Hullinghorst Industries v. Carrol, 650 F.2d 750, 14 BRBS 373 (5th Cir. 1981), cert. denied, 454 U.S. 1163 (1982). The work of constructing, repairing, and maintaining pipelines on a pier needed to carry fuel, water, and steam to the vessels docked at a naval pier was integrally related to the loading and unloading process; without these pipes the fuel, water, electricity, and steam could not be loaded onto ships. Simonds v. Pittman Mechanical Contractors, 27 BRBS 120 (1993).

   The Fourth Circuit in White concluded that the claimant's functions regarding the pipes were the first steps physically taken to alter that pipe for its use in ship construction; the claimant's doing so constituted an integral part of the shipbuilding process. In Bergquist, the Board noted that the claimant's duties involved handling paper rather than shipbuilding materials.    In Hall v. Newport News Shipbuilding & Dry Dock Co., 24 BRBS 1 (1990), a claimant whose duties were that of a key punch operator performed purely clerical tasks. Office clerical work equally well-suited to land-based enterprises is not maritime employment. Levins v. Benefits Review Bd., 724 F.2d 4 (1st Cir. 1984). The practical substance of an employee's duties is determinative of coverage.

   When a claimant's duties have been found to be peculiarly maritime in nature, coverage has been found. In Powell v. International Transportation Services, 18 BRBS 82 (1986), a "vessel planning and stowage coordinator" was found to be covered under the LHWCA as his duties involved planning the movement of cargo, albeit largely from an office.

   Clerical/security employees who make trips to ships/yards/piers, may continue to be covered. In Jannuzzelli v. Maersk Container Service Co., 25 BRBS 66 (1991), the Board found that a timekeeper who checked in men for payroll purposes, and ensured that work crews were fully manned by going down to the dock regularly, spent at least some of his time performing functions which were maritime and integral to the loading and unloading process. Importantly, the Board noted that these duties were more than momentary and episodic and that the claimant was not engaged exclusively in office clerical work. The exclusion did not apply. See also Reggie v. Maher Terminals, Inc., BRB No. 96-1136 (May 27, 1992) (unpublished)(office delivery clerk who occasionally works as a checker and is injured while performing his office delivery checker duties, he is not "exclusively" a clerical employee, and the 2(3)(A) exclusion is not applicable); Caldwell v. Universal Maritime Service Corp., 22 BRBS 398 (1989)(office clerk subject to reassignment as a checker is covered under the LHWCA); McGoey v. Chiquita Brands International, 30 BRBS 237 (1997), rev'g, 29 BRBS 637 (ALJ)(a person is "engaged in maritime employment" under Section 2(3) if he spends "at least some of [his] time engaged in maritime work). Cf. Stone v. Ingalls Shipbuilding, Inc., 30 BRBS 209 (1996)(claimant hired as joiner-helper at shipyard with the understanding that she could be called upon to perform joiner duties, lacked status because "most of claimant's work "was performed in an office and that which is not is too sporadic to warrant coverage."

   Though the majority of a dispatcher's duties were clerical, he was covered under the LHWCA since his duties also required him to sort, pad, and handle cargo destined to be loaded upon vessels. Lennon v. Waterfront Transport, 20 F.3d 658 (5th Cir. 1994).

[ED. NOTE: In Caldwell the office clerk was subject to reassignment as a checker and was covered. In Stone the claimant was hired with the understanding that she may be called upon to do joiner work. How does the Board distinguish these cases? Also, how does the Board reconcile McGoey where a person is engaged in maritime employment if he spends at least some of his time engaged in maritime work, with Stone where the claimant spent most of her work in an office, but not all of it? While these cases may be distinguishable, the Board is providing little or no guidance or clue for future case resolution.]

   Similarly, in Spear v. General Dynamics Corp., 25 BRBS 132 (1991), the Board found that where a claimant was not exclusively engaged in security guard work he was not excluded. Here the claimant helped ensure a safe working environment by performing various fire and safety duties in a regular fashion in addition to his patrolling duties which regularly involved spending several hours onboard submarines as a night watchman.

   Ensuring a safe working environment is an integral function in the shipbuilding industry. The Board also noted that the title of an employee's job is not determinative of coverage. This policy is in keeping with the opinion of the Supreme Court in Gizoni.

1.11.8 Employed by a club, camp, recreational operation, restaurant, museum, or retail outlet

   Section 2(3)(B) excludes "recreational employees." This group includes social and fraternal organizations for profit or nonprofit purposes. It also includes those connected with water sports, i.e., scuba diving, snorkeling, rafting, and canoeing.

[ED. NOTE: For Dockside Gambling/ Floating Casinos, see Topic 1.4.3.1]

 

1.11.9 Marina workers

   Section 2(3)(C) includes individuals employed by a marina and who are not engaged in construction, replacement, or expansion of such marinas (except for routine maintenance). Though covered prior to the 1984 Amendments, marina workers were actually engaged in the pleasure boat industry.

   The Amendments excluded those who do routine marina maintenance such as maintenance work on clubs, restaurants, and bars. Workers who perform construction, replacement, or expansion work on piers, berths, and marina facilities remain covered. One should look to what a worker is actually doing, rather than his job title.

1.11.10 Employees of suppliers, transporters, or vendors

   Section 2(3)(D) deals with employees who are temporarily on the maritime site. These people are not performing any portion of the maritime employer's work.

   In this regard, Martinez v. Distribution Auto Service, 19 BRBS 12 (1985), held that a truck driver, whose sole responsibility was to pick up and transport a container of sealed cargo from a storage area to his employer's facility where it was stripped by fellow employees, is excluded from coverage.

   In Ripley v. Century Concrete Services, 23 BRBS 336 (1990), the Board found that a concrete form carpenter, employed by a building contractor, engaged in the alteration of a pier/adjacent area used in the repair of ships at the shipyard, was engaged in covered maritime employment. A building contractor working under a contract to complete a construction project is not a "vendor" as that term refers to one who sells goods. The employer, the Board reasoned, provided a service, not a product, to the shipyard.

1.11.11 Aquaculture workers

   The 1984 Amendments to the LHWCA specifically exclude from coverage anyone who is employed as an "aquaculture worker" as long as that person is "subject to coverage under a State workers' compensation law." 33 U.S.C. 902(3)(E). Aquaculture workers are defined as those employed by commercial enterprises involved in the controlled cultivation and harvest of aquatic plants and animals, including the cleaning, processing, or canning of fish and fish products, the cultivation and harvesting of shellfish, and the controlled growing and harvesting of other aquatic species. 20 C.F.R. 701.301(a)(12)(iii)(E).

   The legislative history indicates that

[t]he conferees understand that, to date, the definition of maritime employment has never been interpreted to mean the cleaning, processing or canning of fish and fish products. But to foreclose any future problem of interpretation, the term "aquaculture operations" should be understood as including such activities.

H.R. Conf. Rep. 98-1027, 98th Cong., 2d 23 (1984).

   A fish spotter is not an aquaculture worker. Zapata Haynie Corp. v. Barnard, 933 F.2d 256 (4th Cir. 1991), aff'g 23 BRBS 267 (1990). This occupation does not involve the controlled cultivation and harvesting of animals. Also, the claimant in that case was not involved in the processing of the caught fish.

   See Hutchinson v. Mavar Shrimp & Oyster Co., 14 BRBS 48 (ALJ) (1982) (laborer in a canning facility who handles and moves roller baskets containing canned pet food to a cooker is clearly involved in the processing and canning operation, and his duties bear no significant relationship to maritime activity.).

   See also Loggins v. Newport Shrimp Co., 20 BRBS 814 (ALJ) (1988) (utility worker who was assisting in the unloading of squid from a boat was engaged exclusively in the business of cleaning, processing and canning fish, and is thus an excluded aquaculture worker). See also: Green v. C.J. Langenfelder and Son, Inc., 30 BRBS 77 (1996)(on remand the Board instructed the ALJ to consider aquaculture issue if by using the Board's guidelines, ALJ concluded that "seaman" exclusion did not apply to employee attempting to fix conveyor belt onboard oyster harvester dredge).

   But see Ljubic v. United Food Processor, 30 BRBS 143 (1996) (maintenance supervisor who maintained/repaired equipment on the dock of a cannery was not excluded from coverage as a aquaculture worker, because his work constituted "traditional maritime employment" and workers engaged in both maritime and non-maritime employment "cannot walk in and out of coverage").

[ED. NOTE: Remember: A worker engaged in longshoring activity during at least a portion of his working day is covered under the LHWCA since to exclude him would be to reinstate the same degree of shifting and fortuitous coverage that Congress intended to eliminate. Brady-Hamilton Co. v. Herron, 568 F.2d 137, 140 (9th Cir. 1978).]

1.11.12 Recreational vessel construction/repair

   Section 2(3)(G) limits this exclusion to boat yards involved in the construction, repair, or scrapping of recreational vessels under 65 feet in length. If a recreational vessel 65 feet or over is worked on, the employer is not excluded from any claims arising out of that work. A recreational vessel is one operated primarily for pleasure. 20 C.F.R. 701.301(a)(12)(iii)(F) (1985).

   For a case analyzing how a vessel should be measured in order to determine whether or not it is 65 feet, see Powers v. Sea Ray Boats, Inc, ___ BRBS ___ (1998). In Powers, the hull and deck measured 64 feet, 6 inches. The overall length, including a "service platform" and "bow pulpit" would place the vessel at 72 feet, 7 inches. Respondent had argued that Coast Guard regulations (which would not include these additional measurements) should be used to determine the correct length, i.e. less than 65 feet. However, the judge and later the Board, relied on the plain and scientific mandates of the Department of Labor's regulation for measuring the length of a recreational vessel. 20 C.F.R. 701.301(a)(12)(iii)(F). The judge reasoned that had the Department of Labor wanted a portion of the vessel excluded, it could have so specified and had it wanted the Coast Guard regulations utilized, it could have so stated. Furthermore, the judge noted that exclusions from coverage are narrowly constructed. See 130 Cong. Rec. H9597-8 (Daily Ed. Sept. 14, 1984); 130 Cong. Rec. H9731, H9733-4 (Daily Ed. Sept. 18, 1984); Cong. Rec. S11622-3 (Daily Ed. Sept. 20, 1984). He further noted the judicial policy of resolving all doubtful questions of coverage in the claimant's favor. Tampa Ship Repair v. Director, OWCP, 535 F.2d 1936 (5th Cir. 1976).

1.11.13 Small vessel building/repairing/dismantling

   This exclusion is found at Section 3(d). In order for it to be operable, the facility must be certified by the Secretary as not building, repairing, or dismantling any vessel exceeding the required size limits. These limits are commercial barges under 900 light-ship displacement tons and commercial tugboats, towboats, crew boats, supply boats, fishing boats, or other work vessels under 1,600 tons gross. Note that the exclusion is for commercial vessels only.

"[A] facility, in order to avail itself of the exemption, must in its shipbuilding operations be engaged in working only on small vessels. If such a facility engages in the construction or repair of a vessel larger or of a type other than those defined in the provision, those employees who would be subject to the exemption would be covered under the [LHWCA] during the period of activity on the non-qualified vessel. Once the facility is again engaged in exclusively small vessel operations, the exemption would apply.

S11624 Cong. Rec. (Sept. 20, 1984).

   If the facility receives federal maritime subsidies, or the employer's workers are not covered under a state workers' compensation system, then the facility is not excluded.

   Note that the exclusion applies only to employees that are not working over navigable waters or on an adjoining pier, wharf, dock, facility over land for launching vessels, or facility over land for hauling, lifting, or drydocking vessels. Those so working will continue to be covered.


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