This year’s longshore conference, occurring March 9-10, was very successful for Loyola University College of Law. There were over 500 attendees, guest speakers including District Directors, Administrative Law Judges, and doctors. Topics included Managing Pain and the Opioid Crisis in America, Section 22 Modification Trends, Professionalism in Settlement Negotiations, and a mock oral argument before the BRB. Kudos to the speakers, Board Members, and Loyola University College of Law for hosting such a great conference.
The Fifth Circuit recently decided a longshore jurisdiction case based solely on the functional component to situs for an injury occurring on an “adjoining area.”
In the instant case, the employer’s facility receives bauxite that is unloaded from ships and moved directly into the alumina production process via conveyor system. The conveyor deposits the bauxite into bins located in a large storage area. The bauxite remains in the storage area until it is needed. When the material is needed a small gate located in the floor beneath the bins opens to drain the material in an underground reclaim system. The bauxite is then sifted through and placed onto a conveyor belt which drops the bauxite onto a cross-tunnel conveyor. The cross-tunnel conveyor moves the bauxite into an area where it is further pulverized as part of the manufacturing process.
When the material is transported via cross-tunnel conveyor it occasionally spills onto the floor and must be shoveled back onto the conveyor. Claimant was employed as a dockworker from 1997 to 2006 and had a primary duty to ensure that ships were properly docked, loaded or unloaded. Claimant also cleaned the cross-tunnel of debris several hours each month. While shoveling cross-tunnel debris, Claimant injured his lower back and filed a claim for longshore benefits. At a formal hearing, an ALJ found that the cross-tunnel was a covered situs for longshore benefits. Employer appealed to the BRB, which agreed with the ALJ and reasoned that the cross-tunnel had a substantial nexus with the bauxite-unloading process because it was underneath the storage area, which adjoined and had a functional relationship with navigable waters. Employer appealed to the Fifth Circuit.
The Fifth Circuit reasoned that in the recent en banc decision of New Orleans Depot Servs., Inc. v. Director, OWCP, 718 F.3d 384 (5th Cir. 2013), to qualify as an other-adjoining-area two distinct situs components must be satisfied: 1) the area must adjoin navigable waters (geographic component) and 2) the area must be customarily used by an employer in the loading or unloading process (functional component). Hinging its decision on the functional component, the Fifth Circuit held that once the raw bauxite was received for manufacturing, the maritime operations ceased. The Fifth Circuit determined that the raw bauxite was received after it was unloaded from vessels, transported to storage, and then held in storage. Once the material reached the storage area, maritime operations ceased. The court analogized this case to the Supreme Court’s decision in P.C. Pfeiffer Co. v. Ford, 444 U.S. 69 (1979), which outlined a clear rule in a scenario where goods, ready for ground transport, are unloaded from a vessel and then shipped over land. The vessel unloading process includes the transfer of cargo from ship to shore only until the cargo is received for land transport. Thus, for maritime operations, goods unloaded and then received for ground transport were the legal equivalent as raw goods received for manufacturing purposes. The maritime operations cease when the goods are received for their intended purpose.
Here, since the claimant was injured in the cross-tunnel, well beyond the transition from maritime operations to the manufacturing process, he did not satisfy the functional component to situs. The Fifth Circuit granted the employer’s petition for review and remanded the case to the BRB to enter an order dismissing the claimant’s longshore claim.
We recently reported on the en banc 5th Circuit decision in New Orleans Depot Services, Inc. v. Director, OWCP, et al., 11-60057, 2013 WL 1798608 (5th Cir. Apr. 29, 2013). Here at Mouledoux, Bland, Legrand & Brackett, we recently won a longshore jurisdictional case on summary decision regarding similar issues before the court in New Orleans Depot Services, Inc.
In this matter, Claimant filed a Motion for Summary Decision on the issue of longshore jurisdiction. On behalf of the employer, we opposed Claimant’s Motion for Summary Decision and also filed Employer’s own Motion for Summary Decision requesting dismissal of the case for lack of jurisdiction.
In this matter, the ALJ noted that Employer’s facility was connected to the Mississippi River and ran northward from navigable waters. The Employer’s facility primarily transformed bauxite into alumina. The Employer’s facility had a dock, which the ALJ noted would be proper maritime situs. Claimant was injured in a warehouse three-quarters of a mile away from the dock and the river with a road leading to the dock. From the dock, bauxite is unloaded from vessels and transported into a loading building and then the bauxite is further transported into the plant for manufacturing into alumina. A neighboring coke plant sits to the west of the Employer’s dock but does not separate the dock from the rest of Employer’s operation, including the warehouse in question.
The ALJ ruled that warehouse where Claimant was injured does not fall into one of the enumerated areas listed in the Longshore Act, thus the issue was whether the warehouse was an “other adjoining area” contiguous to the location of maritime operations.
The ALJ reasoned that Claimant was injured in a location not touching navigable waters, but Employer’s entire facility extended from the water. Unlike prior cases where situs was met, Employer’s facility was not used primarily for unloading vessels. Employer manufactured bauxite into alumina. The bauxite manufacturing buildings with non-maritime related function existed between the dock and the warehouse where Claimant was injured. No case law suggested that an employer’s entire facility extending from the water would be a covered situs. The ALJ stated that a boundary must be drawn at some point from the shoreline moving inland, and the ALJ found that Employer’s entire facility cannot be considered a maritime situs. The warehouse where Claimant was injured was separated from the dock by many buildings not contributing to maritime activity. The connection to the dock and maritime activity was severed by the other operations being performed on Employer’s property. Thus, the warehouse was not contiguous to the dock and had no geographical nexus sufficient to be an “other adjoining area.” Maritime situs was not found and therefore, no determination of status was necessary, as jurisdiction was not met without situs. The ALJ ruled in Employer’s favor granting its Motion for Summary Decision, denying Claimant’s Motion for Summary Decision, and dismissing the case for lack of jurisdiction.
Bordelon v. Noranda Alumina, LLC, 2012-LHC-01312 (May 14, 2013).
En Banc Decision of 5th Circuit Changes Scope of Situs Requirement: “Adjoining” Means “Border On” Navigable Waters
An en banc decision of the United States Fifth Circuit Court of Appeals has vastly amended the scope of the situs requirement under the LHWCA. This case began as a simple hearing loss issue, when the claimant filed a claim for longshore benefits against his employer. Claimant was employed at the Employer’s Chef Menteur Highway container yard in New Orleans (“Chef Yard”). Claimant’s primary job duties were to repair and maintain shipping containers at the Chef Yard. The Chef Yard had access to a highway and railway. It was located 300 yards from the Intracoastal Canal and was surrounded by a carwash, radiator shop, automobile repair shop, bottling company, and a box manufacturing company. The bottling company’s facility was located in between the intracoastal waterway and the Chef Yard. Claimant worked only within the employer’s Chef Yard, no other locations. The Chef Yard had no access to the intracoastal canal and all the equipment was delivered to the Chef Yard by truck.
After a formal hearing, the ALJ concluded that the claimant’s work repairing ocean containers was a significant maritime activity necessary to loading and unloading cargo. Additionally, the ALJ concluded that the location of the Chef Yard satisfied the situs requirement for an injury occurring in an area “adjoining navigable waters.” The BRB affirmed the ALJ’s decision and a divided panel of the Fifth Circuit affirmed the BRB. The Fifth Circuit then voted for an en banc court to consider the BRB’s determination of the situs test.
The Fifth Circuit began its review of the situs issue looking at its prior en banc decision in Texports Stevedore Co. v. Winchester, 632 F.2d 504 (5th Cir. 1980). In Winchester, a worker was injured when he fell while working. The worker was engaged in repairing and maintaining gear used by longshoremen in loading and unloading vessels. The gear room was located five blocks from the gate of the nearest Houston port dock. The Fifth Circuit held that the situs requirement was met. The Winchester court stressed that a site must have some nexus with the waterfront.
The Fifth Circuit also reviewed the Sidwell decision from the Fourth Circuit Court of Appeals. Sidwell v. Express Container Services, Inc., 71 F.3d 1134 (4th Cir. 1995). In Sidwell, the injured worker was a shipping container mechanic. His injury occurred at his employer’s facility located approximately .8 miles from the closest ship terminal in an area with non-maritime commercial and residential facilities. In deciding the Sidwell matter, the Fourth Circuit recognized the Supreme Court had not defined the term “adjoining area” and none of the tests proffered by other federal circuits followed the language of the Act. The Sidwell court found support for its interpretation from the House of Representatives Report on the 1972 amendments of the Act – “the bill also expands the coverage of this Act to cover injuries occurring in the contiguous dock area related to longshore and ship repair work.” The Sidwell court stated “the definition we adopt today ensures coverage for all maritime employees injured in the waterfront areas where the loading, unloading and repairs of vessels occurs as Congress plainly intended and as the Supreme Court has directed.” The Sidwell court made clear that its literal definition of “adjoining” could not be circumvented by a broad interpretation of the term “area.” In order for an “area” to constitute an “other area,” under the statute, it must be a shore-side structure or facility.
The en banc Fifth Circuit in the instant matter adopted the Sidwell ruling and definition of adjoining navigable water to mean “border on” or “be contiguous with” navigable waters. The Fifth Circuit overruled the contrary definition and analysis of Winchester and its progeny. This definition was more faithful to the plain language of the Act. In applying the Sidwell decision to the instant case, the Fifth Circuit ruled there was no dispute that the Chef Yard where Claimant’s injury occurred did not adjoin navigable waters and thus was not a longshore covered situs. The decision of the BRB was vacated and remanded for further proceedings.
A seven judge concurrence also determined that Claimant would not have had the appropriate maritime status as well. The concurrence analyzed the Schwalb case to reach this decision. Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S. 40 (1989). In Schwalb, the Supreme Court recognized that employees who were injured while maintaining or repairing equipment were essential to the loading or unloading process. However, not all such repairmen would be covered, as the Schwalb court premised this conclusion on the fact that the process of loading and unloading vessels would stop if the machinery used by longshoremen became broken, clogged or fouled. The concurring opinion noted it was clear that the claimant was not involved in the process of moving cargo between ship and land transportation. His task was to repair empty containers, only some of which may have been used in maritime shipping. Although it would not be unreasonable to conclude that repairing ship containers was integral and essential to the ship loading and unloading process, the Fifth Circuit noted that Schwalb does not create a rule under which all employees, who repair any equipment that may be used in a loading process, are integral and essential to allow coverage under the Act. The Act does not provide a “but-for” test for determining coverage. The inquiry distinguishes tasks necessary to execute a loading process from the tasks of an employee that are only tangentially connected to the loading process. The concurrence noted that the work of the claimant in this case had a tangential connection to the loading process. Some of the empty containers that claimant repaired may have been headed for a truck or train rather than a vessel. This was the sort of tangential (“second character”) connection for which the Act would not allow coverage. Nothing about claimant’s work was done with the specific purpose of assisting longshoring tasks and nothing about the location of claimant could be considered a proper situs. The concurrence concluded, claimant’s work was not essential or integral to loading or unloading vessels and claimant’s work would not meet the status requirement under the Act.