COASTAL PRODUCTION SERVICES INC. v. Hudson

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

January 14, 2009

No. 06-60766 Charles R. Fulbruge III

Clerk

COASTAL PRODUCTION SERVICES INC; FOREST OIL CORPORATION;

ACE AMERICAN INSURANCE COMPANY

Petitioners

v.

TERRY W HUDSON; DIRECTOR, OFFICE OF WORKER’S

COMPENSATION PROGRAMS, US DEPARTMENT OF LABOR

Respondents

Petition for Review from the Benefits Review Board,

U.S. Department of Labor

Before WIENER, DeMOSS, and PRADO, Circuit Judges.

JACQUES L. WIENER, Jr., Circuit Judge:

Petitioners Coastal Production Services Inc. (“Coastal”), Forest Oil

Corporation, and ACE American Insurance Company (collectively, “Petitioners”)

seek our review of an order of the Benefits Review Board (“BRB”) affirming the

determination of the Administrative Law Judge (“ALJ”) that Respondent Terry

Hudson (“Hudson”) is entitled to benefits under the Longshore and Harbor

Workers’ Compensation Act (“LHWCA” or “Act”), 33 U.S.C. § 901 et seq.

Perceiving no error in the determinations of the ALJ and the BRB that Hudson

was a maritime employee who was injured on a maritime situs, we deny the

petition for review.

No. 06-60766

I. FACTS AND PROCEEDINGS

In January 2001, Hudson began working as a junior contract platform

operator for Coastal. He was assigned to the Saturday Island facility in

Barataria Bay, Plaquemines Parish, Louisiana.1 The Saturday Island field

comprises (1) a large platform with living quarters (the “Saturday Island

platform”), (2) fourteen satellite wells that are connected to the platform by

horizontal subsurface piping, and (3) a sunken oil storage barge (“the Cherokee”)

that is adjacent to the platform. The satellite wells pipe their production (a

mixture of oil, gas, and saltwater) to the Saturday Island platform, where the

components are separated. The required amount of the separated gas is re-

distributed throughout the oil field for gas-lift purposes, and the remainder is

piped to a Southern Natural Gas pipeline for resale. The separated saltwater

is injected into disposal wells. The separated oil is first piped into holding tanks

on the platform, then is periodically transferred to larger storage tanks on the

Cherokee. When the Cherokee’s storage tanks are full, the oil is transferred into

customers’ transport barges for delivery onshore. All oil produced from the

Saturday Island field’s satellite wells is ultimately shipped ashore by transport

barge.

Hudson’s job entailed several different duties. He (1) checked the satellite

wells daily by “jo-boat” and was responsible for their maintenance and upkeep,

(2) serviced and maintained the Saturday Island platform, (3) transferred oil

from the platform’s holding tanks to the storage tanks on the Cherokee

approximately three to four times per week, (4) performed daily inspections and

maintenance of the Cherokee, including inspecting its lines for leaks, checking

its gauges, and maintaining its engines, and (5) assisted in the loading of oil

from the Cherokee into the transport barges when they came to pick up the oil.

1

The facility is owned by Forest Oil Corporation.

2

No. 06-60766

Hudson testified that in performing this last duty, he would place a walk-board

between the Cherokee and the arriving transport barge, hook up pipelines and

hoses to transfer oil, disconnect and reconnect the hoses and pipelines as the

Cherokee’s holding tanks emptied, and monitor the tank levels. According to

Hudson, he took part in many, if not all, of the oil transfers that occurred while

he was working.

On August 11, 2001, Hudson was injured when the saltwater disposal

pump on which he was working exploded.2 That pump was located on the

Saturday Island platform, which is located approximately 30 to 40 feet from the

Cherokee and connected to it by a permanent walkway and oil transfer pipes.

Hudson filed a claim for benefits under the LHWCA. Petitioners contested

coverage, arguing that pursuant to Herb’s Welding, Inc. v. Gray,3 Thibodeaux v.

Grasso Production Management Inc.,4 and Munguia v. Chevron USA, Inc.,5 the

Saturday Island platform did not qualify as a maritime location. Petitioners also

contended that Hudson did not qualify as a maritime employee because his

employment activities furthered the non-maritime purpose of oil production;

moreover, they argued that any job-related maritime activities performed by

Hudson were minimal and not a regular part of his duties.

The ALJ ruled that Hudson satisfied both the situs and status

requirements of the LHWCA. With respect to situs, the ALJ concluded that the

2

The saltwater pump injects water into disposal wells and helps to prevent water from

entering the oil storage tanks on the platform. There is no direct line from the saltwater pump

to the Cherokee.

3

470 U.S. 414, 425 (1985) (holding that a welder responsible for general maintenance

on a fixed oil platform in state territorial waters is not engaged in maritime employment).

4

370 F.3d 486, 494 (5th Cir. 2004) (holding that a fixed oil drilling platform is neither

a “pier” nor an “adjoining area” because the platform’s sole purpose is to further gas and oil

production, a non-maritime activity).

5

999 F.2d 808, 813 (5th Cir. 1993) (discussing that the purpose of an oil platform is to

drill for oil and gas, which is a non-maritime activity).

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No. 06-60766

Cherokee’s docking facility — which was used to load oil into transport barges

— qualified as an “other adjoining area customarily used by an employer in

loading” a vessel, and that the Cherokee and the Saturday Island platform were

component parts of a single area. The ALJ distinguished the Saturday Island

platform from the fixed platforms in Herb’s Welding, Thibodeaux, and Munguia

on the basis of function: The Saturday Island platform and the Cherokee

comprised a single facility, the maritime purpose of which is the loading of cargo

(already extracted oil) onto vessels.6 With regard to status, the ALJ determined

that Hudson met the requirements for land-based maritime employment because

his assisting in the loading of oil and maintaining the loading equipment was

essential to the cargo loading process. Additionally, the ALJ concluded that

Hudson’s maritime activities were routine and recurring, not episodic,

momentary, or incidental to his non-maritime work.

6

The platform also served at least one non-maritime purpose, i.e., piping natural gas

to shore, and the arguably non-maritime purpose of processing the mixture received from the

satellite wells. Processing is probably part of “production” in the technical sense, see

Production, THE DICTIONARY OF PETROLEUM TERMS (2001) (“[T]he phase of the petroleum

industry that deals with bringing the well fluids to the surface and separating them and

storing, gauging, and otherwise preparing the product for delivery.”), and is probably a non-

maritime activity because it frequently occurs onshore and has no peculiar connection to

maritime activities. We flesh out a possible counterargument in note 24 infra.

It is worth noting that Herb’s Welding and Thibodeaux appear to have used

“production” to mean drilling and extraction (i.e, vertical removal of the product), even though

the technical definition of production seems to include separation, processing, and some

storage. See Herb’s Welding, 470 U.S. at 416-23, 425 (repeatedly describing the platform as

a drilling platform, but once describing the platform at issue as a production platform);

Thibodeaux, 370 F.3d at 490, 492, 494 (noting that drilling for oil and gas is not a maritime

activity, but also referring to the platform as a production platform). Munguia, 999 F.2d at

809-10, also appears to have focused on platforms involved in drilling and extraction. The

progenitor of all of these cases, Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 352,

360-61 (1969), described the platform at issue as a drilling platform and did not use the word

production. It thus does not appear that mere classification of a platform as involved in

“production” in the technical sense forecloses a finding of maritime situs, at least not as a

matter of stare decisis. In any event, as we discuss infra notes 14-42 and accompanying text,

the Saturday Island platform is also involved in the loading of vessels — a traditional maritime

activity — so we need not reach this issue.

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No. 06-60766

On appeal, the BRB affirmed the ALJ’s holding as to both situs and status.

The BRB adopted the ALJ’s reasoning that the Saturday Island platform was a

covered situs because (1) it is surrounded by navigable water and (2) functions

as a facility for loading cargo (oil) onto vessels. The BRB determined that the

Cherokee and the Saturday Island platform could not be classified as separate

areas because they are permanently connected to each other through a system

of pipes and a walkway. The BRB also concluded that Hudson’s work in loading

oil into the transport barges and maintaining the pipes and equipment necessary

to the loading process constituted maritime employment and that the ALJ

rationally computed the amount of time that Hudson spent in the performance

of these activities.

II. ANALYSIS

1. Standard of Review

Our review of the BRB’s decision is limited in scope to “considering errors

of law, and making certain that the BRB adhered to its statutory standard of

review of factual determinations, that is, whether the ALJ’s findings of fact are

supported by substantial evidence and [are] consistent with the law.”7

“Substantial evidence is that relevant evidence – more than a scintilla but less

than a preponderance – that would cause a reasonable person to accept the fact

finding.”8 We review the BRB’s legal conclusions de novo.9 Although perhaps

somewhat quizzical in light of the typical understanding of the difference

between conclusions of law and findings of fact, we decided in Texports Stevedore

7

Miller v. Cent. Dispatch, Inc., 673 F.2d 773, 778 (5th Cir. 1982).

8

Dir., OWCP v. Ingalls Shipbuilding, Inc., 125 F.3d 303, 305 (5th Cir. 1997).

9

B & D Contracting v. Pearley, __ F.3d __, 2008 WL 4811102, at *1 (5th Cir. Nov. 6,

2008).

5

No. 06-60766

Co. v. Winchester that the determination of situs by the ALJ is one of fact.10

Status determinations are also findings of fact, unless made under an erroneous

legal standard.11

2. Analysis

10

632 F.2d 504, 515 (5th Cir. 1980) (en banc) (“In LHWA cases, this determination of

whether a site is an ‘adjoining area’ is handled by the ALJ and reviewed by the Board. . . . The

ALJ is guided in his factual determination by the section stating that in the absence of

substantial evidence to the contrary, LHWA coverage is presumed. If the situs determination

is supported by substantial evidence on the record as a whole, it will not be set aside by this

court.” (emphases added and internal citations omitted)). The references to the situs

determination and a factual determination make clear that the Winchester court was speaking

of the ultimate conclusion about situs, even though that may seem like a legal conclusion.

This matter is not free from doubt, as we have said that “[w]e review the determination

of LHWCA coverage by either an ALJ or the BRB as a question of law.” Boomtown Belle

Casino v. Bazor, 313 F.3d 300, 302 (5th Cir. 2002) (citing Hullinghorst Indus., Inc. v. Carroll,

650 F.2d 750, 753 (5th Cir. Unit A 1981) (“[W]e reject at the outset [the] contention that the

Board exceeded its statutory authority in reversing the determination of the ALJ that Carroll

was not a covered employee within the meaning of the Act. Under the uncontested facts, the

ALJ’s determination in this regard was neither a finding of fact nor a factual inference drawn

from the evidence. It was a conclusion of law.”)).

There appears to be a circuit split on this question. Compare Winchester, 632 F.2d at

515, and Brooker v. Durocher Dock & Dredge, 133 F.3d 1390, 1392 (11th Cir. 1998) (“Although

this court reviews the ALJ’s interpretation of the LHWCA de novo, it will not set aside the

ALJ’s findings of fact, including its situs determination, if substantial evidence supports them.”

(citing Winchester, 632 F.2d at 515)), with Jonathan Corp. v. Brickhouse, 142 F.3d 217, 221

(4th Cir. 1998) (“Because the facts relating to the resolution of the situs issue are not

substantially in dispute, coverage becomes a question of law which we determine de novo.”

(citing Potomac Elec. Power Co. v. Dir., OWCP, 449 U.S. 268, 278-79 & n.18 (1980) and

Pittman Mech. Contractors v. Dir., OWCP, 35 F.3d 122, 125 (4th Cir. 1994))).

The cases on which the Fourth Circuit relied deal with the deference owed to statutory

constructions of the LHWCA by the BRB. In particular, Potomac Electricity Power Co. v.

Director, OWCP, 449 U.S. at 278 n. 18, stands for the proposition that no deference is owed to

BRB statutory constructions because the BRB is not a policymaking agency. This decision by

the Supreme Court is not, however, in direct conflict with our classification of the situs

determination as one of fact, not law. The Court simply concluded that the BRB’s statutory

interpretations of the LHWCA are owed no deference.

Were we writing on a clean slate, it is unclear how the ultimate conclusion by an ALJ

or the BRB about whether a locus satisfies the situs requirement of the LHWCA is a question

of fact, particularly when the facts underlying the situs determination are not in dispute. We

are nevertheless bound by Winchester, which was a unanimous en banc determination of this

precise issue by this court, there being no contrary intervening precedent on this exact issue

by either the Supreme Court or this court en banc.

11

Boatel, Inc. v. Delamore, 379 F.2d 850, 857 (5th Cir. 1967).

6

No. 06-60766

For a claimant to be eligible for benefits under the LHWCA (1) his injury

must occur on a maritime situs, and (2) his status must be that of a maritime

employee.12 Both requirements must be met for the claimant to receive benefits

under the Act.13

a. Situs

Section 3(a) of the LHWCA states that a claimant is eligible for benefits

“only 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, dismantling,

or building a vessel).”14 As the Saturday Island platform does not meet the

definition of any of the kinds of facilities specifically listed in the statute, it must

qualify as an “other adjoining area” to be considered a maritime situs.

To qualify as an “other adjoining area,” the situs must be located in

proximity to navigable waters (i.e., possess a geographical nexus) and have a

maritime nexus — here, “customarily used by an employer in loading . . . a

vessel.”15 The situs need not be used exclusively or even primarily for maritime

purposes, as long as it is customarily used for significant maritime activity.16 No

party disputes that the Saturday Island platform adjoins navigable waters, so

12

See 33 U.S.C. §§ 902(3), 903(a) (2006).

13

Herb’s Welding, Inc. v. Gray, 470 U.S. 414, 415-16 (1985).

14

33 U.S.C. § 903(a) (emphasis added).

15

Id.; see Winchester, 632 F.2d at 514-15.

16

Winchester, 632 F.2d at 514-15.

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No. 06-60766

the geographic nexus prong of the test is satisfied; the only open question is

whether it is within an area with a maritime nexus.17

At the outset, we must define the relevant area and then ask whether it

is customarily used for loading a vessel or other maritime activities listed in §

3(a) of the LHWCA. There are several levels of generality that could, as a

theoretical matter, be used to define the area. We could consider (1) the exact

locus of the injury (the saltwater pump), (2) the Saturday Island platform, (3) the

Saturday Island facility (i.e., the platform plus the Cherokee), (4) the entire

Saturday Island field (i.e., the satellite wells, the gas transportation system, the

platform, and the Cherokee), (5) the whole Barataria Bay, and so on. The first

option is foreclosed by our opinion in Winchester.18 The last option and levels of

even greater generality are obviously absurd, and we repudiated such extremes

in Winchester as well.19 We assume without deciding that the entire Saturday

Island field is also too extreme a level of generality.20 We are left, therefore, with

17

Although “adjoining” connotes “lying next to” or “beside,” we observed in Winchester

that “adjoining” can also be defined as “neighboring.” 632 F.2d at 514. Additionally,

WEBSTER’S DICTIONARY defines “adjoining” as “touching or bounding at some point or on some

line: near in space.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 27 (2002). Adopting

the broad definition of the word “adjoining,” we conclude that the Saturday Island platform

adjoins navigable waters because is it located in and has direct contact with navigable waters.

This interpretation conforms with our conclusion in Winchester that “[t]o instill in the term

[adjoining] its broader meaning is in keeping with the spirit of the congressional purposes [of

the Act].” 632 F.2d at 514. For these same reasons, the Cherokee too adjoins navigable

waters.

In fact, the platform and the Cherokee are in navigable waters. We nevertheless treat

fixed platforms as islands for almost all purposes. See, e.g., Rodrigue v. Aetna Cas. & Sur. Co.,

395 U.S. 352, 360 (1969). Visually, it is best to conceive of the facility (the platform and the

Cherokee) as onshore because we treat the Saturday Island facility as “land.” This helps to

understand how the facility “adjoins” navigable waters.

18

632 F.2d at 516.

19

Id. at 514 (“Nevertheless, outer limits of the maritime area will not be extended to

extremes. We would not extend coverage in this case to downtown Houston.”).

20

We may assume this without deciding it because to pick this level of generality

reduces to the choice between options two and three. If the “overall area,” Winchester, 632

8

No. 06-60766

the second and third options. This case turns on the correctness of the ALJ’s

determination that both the platform and the Cherokee are part of the same

“overall area” that is customarily used for loading cargo (oil).

We do not define a covered area for LHWCA purposes according to fence

lines and local designations because they “are subject to manipulation for

compensation purposes.”21 Instead, Winchester appears to have merged the two

questions — definition of the area and connection to enumerated maritime

activities — into a simple functional inquiry. The “area” that adjoins navigable

waters for purposes of the LHWCA is that area “customarily used by an

employer in loading, unloading, repairing, or building a vessel.”22 Yet the

Saturday Island platform, except for its storage of fully processed and produced

oil (which is arguably part of the process of loading a vessel23), is itself not

F.2d at 516, includes the satellite wells and the gas transportation system, we would end up

with what might be termed a “mixed coverage situs” under the apportionment principle found

in cases like Bianco v. Georgia Pacific Corp., 304 F.3d 1053 (11th Cir. 2002). Cases like

Maraney v. Consolidation Coal Co., 37 BRBS 97 (2003) and Jones v. Aluminum Co. of America,

35 BRBS 37 (2001), deal with situations in which there are clearly covered and clearly non-

covered parts of an overall area. The satellite wells and the gas transportation system are,

after Thibodeaux, clearly not covered sections of the overall area. But, Hudson’s injury did not

occur at either of those places. Accordingly, we would still have to answer whether only the

Cherokee or the platform plus the Cherokee are covered parts of the overall area.

21

Winchester, 632 F.2d at 515.

22

33 U.S.C. § 903(a).

23

We note that storage of fully processed oil in the storage tanks on the platform can

quite plausibly be understood to be part of the loading process. The storage tanks hold finished

cargo and adjoin navigable waters; they are directly and permanently connected by pipes and

a walkway to the point at which the vessel actually receives the cargo (which also adjoins

navigable waters and is no more than 30 to 40 feet away); and, operation of the storage tanks

is necessary for a vessel to be loaded, given the cargo storage configuration of the Saturday

Island facility: If no oil flows from the platform’s storage tanks to the Cherokee, no oil is

available for a vessel to load. This is quite distinguishable from the dissent’s example of

storage facilities at most production plants. Those storage facilities (presumably) lack a

geographical nexus to navigable waters, (presumably) are not directly and permanently

connected to the shipping terminal, and (presumably) operation of the storage facilities is not

the only way to get products to the shipping terminal and then loaded onto a vessel given the

set-up of the loading system. If those presumptions are wrong, it is unclear why it would be

9

No. 06-60766

customarily used for loading oil onto the customers’ transport barges, which on-

load the processed oil from the Cherokee for transport to shore. Instead, at least

without the temporary storage tanks, the Saturday Island platform is better

thought of as a processing plant functionally connected to oil production and not

to the loading or unloading of cargo from vessels.24 If Winchester countenanced

a strict reading of “area,” or if we were to address this issue de novo, we might

end the inquiry here and conclude that Hudson was not injured on an LHWCA-

covered situs. As neither is the case, however, we continue.

Winchester involved a gear room located five blocks from the gate of the

nearest dock. The gear room contained “spreader bars, pallets, wire cable slings,

tow motors, forklifts, etc.” that were “used by stevedores to perform the loading

operation.”25 We held that an injury in the area of the gear room occurred on a

covered situs. Our holding on those facts teaches that simply because a vessel

cannot dock for loading and unloading at a particular area does not mean that

absurd to treat such storage facilities as part of the loading process. We also note that the

satellite wells, inasmuch as they are unarguably involved in extraction/production only (and

not in processing and storage), do not serve a loading purpose (unlike storage and transfer),

and are therefore not part of the loading process, even though they may be necessary to

loading in the “but for” sense.

24

Although we do not base our decision on it, it is at least arguable that a facility

integral to the conversion of material into cargo suitable for maritime transport, such as the

platform’s separators, has a role in loading a vessel. It would, of course, be possible to ship the

mixture of oil, gas, and water on vessels without first processing it, but that would likely prove

to be more expensive (the yield of marketable product per shipment would dramatically

decrease because each shipment would include useless saltwater) and would also deprive the

producer of an economical method of gas-lifting the field (instead, gas would have to be

transported out to the field after processing onshore). We seriously doubt whether a particular

process used to facilitate the economical loading of vessels must be necessary to loading a vessel

before it may be considered part of the loading process (that conclusion would lead to absurd

results wholly inconsistent with our cases), but the conceptual line between

production/processing of hydrocarbons and loading/unloading a vessel is somewhat blurry in

the case of the separation facility on the Saturday Island platform. As we do not need to

resolve this issue today, we do not.

25

632 F.2d at 507 n.1.

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No. 06-60766

the area is not a covered situs. It further teaches that if a particular area is

associated with items used as part of the loading process, the area need not itself

be directly involved in loading or unloading a vessel or physically connected to

the point of loading or unloading.

Vessels were not loaded or unloaded directly from the Saturday Island

platform, at least not with cargo. Rather, vessels were loaded with cargo (oil)

from the Cherokee, which was directly and permanently connected to the

platform (by pipes and a walkway), in close proximity to it (30 to 40 feet), and

described by the employer in its operations manual as part of the same

“gathering and processing” facility as the platform.26 Further, the platform was

functionally integral to the Cherokee’s loading and unloading mission because

the configuration of the Saturday Island field used the platform as the

consolidation point for transport. If the platform were to sink tomorrow, the

satellite wells could still produce/extract the oil, water, and gas mixture, but that

mixture (whether or not processed and separated) could not be loaded onto

vessels. The fact that the Saturday Island field could have been set up

differently, perhaps with pipelines (as was done for gas), or with vessels loading

the raw, unseparated product at each satellite well, or some other way, is no

answer to the fact that as actually set up, the platform’s “gathering” function

plays an integral role in the loading of vessels, even if its “processing” function

26

Forest Oil Corporation, Facility Operations Manual: Saturday Island Field:

Plaquemines Parish, Louisiana, at 2 (1998) (emphasis added) (“The central gathering and

processing facility for the Saturday Island Field consists of one sunken barge used for storage

(Cherokee), one raised barge, the S-91 barge, that is used for processing and storage and ten

wooden-pile structures which are interconnected by walkways.”). Although we shied away

from employers’ descriptions of the relevant area in Winchester, we did so to prevent employers

from manipulating boundaries in a unilateral effort to determine the coverage area. When an

employer has defined an area as part of a facility also used for loading and unloading, however,

that concern is less pressing and we have no trouble taking account of that description. In any

event, Winchester only said that “fencelines and employers’ designations will not . . . end the

factual inquiry.” 632 F.2d at 515 (emphasis added).

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No. 06-60766

might not. As such, the entire platform is “customarily used by an employer in

loading . . . a vessel.”

This conclusion is buttressed by the liberal construction we are instructed

to employ in favor of LHWCA coverage,27 and the fact that whatever argument

there might be about the platform’s role in loading, the Cherokee is

unquestionably involved in loading vessels. Covering the platform as well as the

Cherokee, between which Hudson moved on a daily basis in unquestionable

furtherance of the loading duties of his job (for example, to inspect the Cherokee

each day), “will reduce the number of employees walking in and out of

coverage”28 and further the congressional policy of eliminating “shifting and

fortuitous coverage.”29

Winchester also directed us to consider the “general area” and the “overall

loading process.”30 The fact that “the specific locus of the injury is not

customarily used for maritime purposes even though the general area is so used”

is not fatal to a finding of maritime situs.31 These instructions clearly

contemplate some role for geography (i.e., proximity and interconnectedness),

independent from function. The dissent implicitly acknowledges this when it

repeats six times that the geographical separation of the Cherokee is relevant

to the nexus determination. If Winchester only stood for a functional inquiry, the

fact that a particular area is not used for maritime activities would be

dispositive. But, Winchester does not require every square inch of an area

“generally” used for loading and unloading to be so used. If it did, we would have

27

Ne. Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249, 268 (1977).

28

Winchester, 632 F.2d at 516.

29

Caputo, 432 U.S. at 274.

30

Winchester, 632 F.2d at 515-16.

31

Id. at 516.

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No. 06-60766

a game of hopscotch: The bathrooms in an otherwise “adjoining area” would not

be covered, nor would be pavement that although clearly within the area, had

not been walked on by stevedores loading and unloading a vessel.

Winchester countenanced defining a general area (a geographic notion) by

its function. If a general area is customarily — not necessarily exclusively or

predominantly — used for loading and unloading of vessels, all parts within it

are a maritime situs. To determine whether it is fair to call a particular part of

a facility “within” the “general area” used for loading and unloading, we must

look both to its proximity and its interconnectedness to the loading and

unloading location, along with its function.32 Simply because Winchester

extended coverage to a non-proximate, non-interconnected location on the basis

of function does not mean that proximity and connection play no role in our

analysis.

Additional support for this proposition comes from Northeast Marine

Terminal Co., Inc. v. Caputo. There, the Supreme Court addressed a facility

with “two ‘finger-piers.’”33 One pier, located on 21st Street, “was used to berth

ships for purposes of loading and unloading them.”34 Another pier, on 19th

Street, and therefore presumably some distance away, “was used only for

32

The dissent questions how we can conclude that the Cherokee and the platform

constitute a single situs, but also conclude that the satellite wells and the platform, which have

pipes connecting them, are not. In the first instance, we note that even if the wells are

interconnected with the platform, they are not proximate to it. Second, the satellite wells are

not interconnected to the platform in the relevant way. The Cherokee and the platform have

a walkway that allows, with a few steps, an employee to move between them, bringing

concerns about shifting and fortuitous coverage into play. The satellite wells have no such

connection to the platform; they must be accessed by boat. Accordingly, although physically

connected, they are not connected in the relevant manner.

33

432 U.S. at 280.

34

Id.

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stripping and stuffing containers and storage.”35 The Court held that an injury

on the 19th Street “finger-pier” nevertheless occurred on a covered situs because

“[t]he entire terminal facility adjoined the water and one of its two finger-piers

clearly was used for loading and unloading vessels.”36 This is obviously a close

analogy to the Cherokee and the platform. Unlike the dissent, we cannot

conclude in light of Caputo that there is not more than a scintilla of evidence

that supports the situs determination by the ALJ and BRB.

Like the BRB itself in this case, we also see the BRB’s decision in

Gavranovic v. Mobil Mining & Minerals37 as support for this proposition. There,

the BRB concluded that the situs requirement was satisfied because the

manufacturing facility where the accident occurred was “used to store finished

product and to load rail cars and trucks.”38 Even though Building 10 (the situs

of the injury) was not used to load vessels (as the statute requires), it was “in

close proximity to the docks and . . . not [a] separate and distinct area[].”39 More

to the point, the BRB said:

Although the facility at which claimants herein work is a

manufacturing operation, and the building in which they were

injured is not directly involved with the loading and unloading of

vessels, part of employer’s business involves sending and receiving

goods by barges or vessels — a distinctly maritime activity.

Moreover, the geography of . . . the entire facility and the building

in question [are such that they] are adjacent to navigable water and

to the docks where barges are loaded and unloaded.40

35

Id.

36

Id. at 281 (emphasis added).

37

33 BRBS 1, *1 (1999).

38

Id. at *3.

39

Id. at *4.

40

Id. at *5 (emphasis added).

14

No. 06-60766

Again emphasizing that geography plays some role, the BRB said: “In light of

the location of employer’s facility and because significant maritime activity . . .

occurs . . . [there], we affirm . . . that claimants’ injuries . . . occurred on a

covered situs.”41

On the one hand, Hudson might have been injured while on the Cherokee,

which clearly qualifies as a covered situs. On the other hand, Hudson might

have been injured while working on the satellite wells, which do not qualify as

“adjoining area[s]” under Thibodeaux. Given the close functional and geographic

relationship between a clearly maritime situs (the Cherokee) and a somewhat

less clearly maritime situs (the platform), several factors we have identified

support affirmance on the facts of this case.

41

Id. (emphasis added). Although not precedent with which we are forced to grapple

as a formal matter, we also note the BRB’s decisions in Dickerson v. Mississippi Phosphates

Corp., 37 BRBS 58 (2003), Jones v. Aluminum Co. of America, 35 BRBS 37 (2001), Stroup v.

Bayou Steel Corp., 1998 WL 461480 (BRB, July 2, 1998), and Melerine v. Harbor Construction

Co., 26 BRBS 97 (1992). In Melerine, the BRB noted that the dock was

separate and distinct from the mill. The steel mill is located one-quarter mile

from the dock area, separated by a road and a levee, and materials are

transported by truck from the mill to the dock. The [ALJ] found that no

conveyors or other loading apparatus linked the two areas. . . . The mill is used

solely for the manufacturing of steel products[,]

a clearly non-maritime activity. 26 BRBS at *3. In Stroup, the shipping bay at issue (attached

to the structure at issue in Melerine) was “1/4 to 1/2 [of a] mile from the docks and the

Mississippi River. Further, the ‘A’ bay is separated from the River by a public road and a levee

and is located in a building which also houses the melt shop, the roll mill, and another shipping

bay.” 1998 WL 461480, at *1. In Dickerson, the site of the accident, a

phosphoric acid plant[, had] nothing to do with maritime activity and its sole

purpose [was] to convert the liquid sulfuric acid into phosphoric acid and store

it. It has no connection to the docks by way of conveyor belt or other means. It

is geographically and functionally separate from the docks.

37 BRBS at *5 (emphasis added) (internal citations omitted); see also Maraney v. Consol. Coal

Co., 37 BRBS 97, at *6 (2003) (“In the instant case, [the location of the injury] is functionally

and geographically separate from employer’s unloading/loading operations.” (emphasis added)).

Jones simply recited the unsurprising proposition that “a plant that manufactures aluminum

oxide is not engaged in [loading, unloading, repairing or building of vessels].” 35 BRBS at *6.

Jones is perhaps the best support for the dissent’s conclusion, because it is not clear how

geographically distinct the manufacturing and loading sites of the facility were. In light of

Caputo and Winchester, along with the bulk of the BRB’s other cases, however, we cannot

justify using that ambiguity in Jones to reach a contrary result in this case.

15

No. 06-60766

First, we owe deference to the ALJ/BRB’s situs determination, and they

concluded that the platform was a maritime situs. Second, the LHWCA is to be

construed liberally in favor of compensation. Third, Winchester deliberately

selected a very broad and liberal construction of situs (a room used to store gear

located blocks away from the nearest gate to a terminal and outside the property

line of the port) and counseled us to do the same by inspecting the “overall

loading process” and the “general area.” Fourth, we effectuate congressional

policy to avoid shifting and fortuitous coverage (although, as the dissent points

out, this cannot always be avoided because there must be a line somewhere) by

finding that the platform, adjoining the Cherokee and functionally related to its

loading purpose, is a maritime situs. Considered as a whole, these additional

thumbs on the scale tip the balance in favor of affirming the ALJ/BRB’s

determination that the platform qualifies as a maritime situs. Merely because

one discrete portion of an area adjoining navigable waters, and part of the

general loading and unloading area, is not directly used for loading and

unloading (say, a food cart on a dock, or a scrubber as part of the hose connected

to unload the oil), this should not create hopscotching coverage. If, as Petitioners

urge, we were surgically to separate the platform from the Cherokee — and

classify one as maritime and the other as non-maritime — we would do exactly

that which Congress sought to eliminate with the 1972 amendments to the Act.42

We decline to slice the Saturday Island facility that finely and cause that

situation.

We cannot say that the ALJ did not have substantial evidence that would

permit a reasonable person to conclude that the Cherokee and the platform are

in the same general area customarily used for loading vessels. Neither can we

say in the alternative that functionally the platform was not actually part of the

42

See Ne. Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249, 274 (1977).

16

No. 06-60766

loading process (even though it also served the arguably non-maritime

production purpose of separation).

The area need only “customarily” be used for loading, not exclusively or

predominantly so. This is why the presence of gas pipelines from the platform

to shore does not vitiate the maritime nature of the platform. Piping gas to

shore is a non-maritime activity, but, again, the platform need not be used

exclusively or even predominantly for maritime activities to qualify as a

maritime situs. In fact, oil is the primary product of the platform and is shipped

by barge, for which the platform (unlike the satellite wells) is a necessary part

of the loading process in the field as configured. So, although it need not be the

case, here the platform does appear to have a predominantly maritime use —

facilitation of the loading of cargo (oil, the main product of the platform).

This conclusion is not foreclosed by Thibodeaux or Herb’s Welding. In

Herb’s Welding, a majority of the Supreme Court expressly declined to decide

whether a fixed drilling platform qualifies as a maritime situs.43 The dissent

thought that the situs requirement was satisfied.44 Yet, although the majority

refused to reach the issue, there are hints that even it thought a drilling

platform might qualify as a covered situs.45

In Thibodeaux, we resolved that question for fixed oil “production”46

platforms in the territorial waters of Louisiana by concluding that the platform

43

See Herb’s Welding, Inc. v. Gray, 470 U.S. 414, 427 (1985).

44

See id. at 446-47 (Marshall, J., dissenting).

45

See id. at 425 (“The dissent emphasizes that Gray was generally on or near the water

and faced maritime hazards. To the extent this is so, it is relevant to ‘situs,’ not ‘status.’ To

hold that Gray was necessarily engaged in maritime employment because he was on a drilling

platform would ignore Congress’ admonition that not everyone on a covered situs automatically

satisfies the status test.” (emphasis added and internal citation omitted). But see id. at 422

n.6 (“Rodrigue did observe that offshore platforms are like piers, [but] its holding was that they

are islands.”).

46

See supra note 6 and accompanying text.

17

No. 06-60766

was not a maritime situs.47 The claimant in Thibodeaux was a pumper/gauger

who was injured when he attempted to repair a leaking line under the deck of

the platform.48 Relying in part on the Supreme Court’s comments in Herb’s

Welding, we determined that the platform did not serve a maritime purpose.49

Specifically, we noted that

Thibodeaux has pointed to no connection Garden Island Bay

platform No. 276 has with maritime commerce that distinguishes it

from the platforms in [Herb’s Welding or Munguia]. Oil is not

shipped from the platform. Although personal gear and occasionally

supplies are unloaded at docking areas on the platform, the purpose

of the platform is to further drilling for oil and gas, which is not a

maritime purpose.50

Because the oil production platform in Thibodeaux did not serve any maritime

purpose, we held that it was neither a “pier” nor an “other adjoining area” as

defined by the Act.51 The dissent questions our reliance on Thibodeaux’s

statement that the platform in that case was not involved in oil shipment (i.e.,

the loading or unloading of cargo). Far from being an isolated or superfluous

statement, that observation is the linchpin of the distinction between

Thibodeaux and Caputo: The platform served no maritime purpose precisely

because it was in no way involved in loading or unloading a vessel. The

structure of the quoted material makes that clear: Drilling is contrasted with

shipment (which we construe to mean loading or unloading).

Unlike the platform in Thibodeaux, there is no evidence that the Saturday

Island platform is now or ever was involved in drilling or extracting

47

370 F.3d 486, 487 (5th Cir. 2004).

48

Id. at 487-88.

49

Id. at 494 (citing Herb’s Welding, 470 U.S. at 423-24).

50

Id. (footnote omitted) (emphases added).

51

Id. at 493-94.

18

No. 06-60766

hydrocarbons,52 and it has an independent connection to maritime commerce —

as we have excruciatingly demonstrated above, the loading of cargo (oil) from the

Cherokee, with the necessary intermediation of the platform given the

configuration of the Saturday Island field, is a maritime purpose. Although

there are no docking facilities on the Saturday Island platform per se, it is

directly and permanently connected to the Cherokee, and it serves as a

temporary holding station for the already-produced and separated oil until it is

further transferred the 30 to 40 feet to the Cherokee where it is held until it can

be shipped ashore by barge. Thus, the Saturday Island platform is part of the

“general area” used as part of the “overall loading process” adjoining navigable

waters, clearly distinguishable from the drilling (but not shipping) platform in

Thibodeaux.

Based on the foregoing analysis, we conclude that Hudson was injured on

a maritime situs. As the LHWCA requires both maritime situs and status,

however, our analysis does not end here. We must also determine whether

Hudson’s status was that of a maritime employee.

b. Status

The Act confers maritime status on “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.”53 An employee may qualify for maritime status based on either (1)

the nature of the activity in which he is engaged at the time of the injury or (2)

52

In fact, the “platform” appears to be a barge itself. See Facility Operations Manual:

Saturday Island Field: Plaquemines Parish, Louisiana, supra note 26, at 2 (noting that storage

and processing occur on the “S-91 barge,” although the structure of the sentence makes the

object of the appositional “used for processing and storage” somewhat unclear).

53

33 U.S.C. § 902(3) (2006). Certain exclusions, none of which are applicable here, do

apply.

19

No. 06-60766

the nature of his employment as a whole.54 Although the Act does not define

“maritime employment,” the Supreme Court has instructed that occupations in

addition to those enumerated in the statute will be covered as maritime

employment if the occupation entails activities that are an integral or essential

part of the loading, unloading, building, or repairing of a vessel.55 In addition,

the employee’s maritime activities must be more than episodic, momentary, or

incidental to his non-maritime work.56

As Hudson was not employed in any of the occupations enumerated in the

statute, his work must have been integral or essential to the loading, unloading,

building, or repairing of a vessel to be covered under the LHWCA. The ALJ and

the BRB determined that Hudson was a maritime employee based on his

responsibility for the general upkeep of the Cherokee and his facilitation of the

loading of cargo (oil) into transport barges. The ALJ and the BRB also

determined that these activities were not merely episodic, momentary, or

incidental to non-maritime work, because they were regularly assigned to

platform operators.

Petitioners assert that the BRB erred by concluding that Hudson was a

maritime employee because the majority of his daily activities were related to

servicing and maintaining oil and gas production facilities. Petitioners claim

that, under the Supreme Court’s holding in Herb’s Welding, such activities are

not maritime in nature and, therefore, do not qualify Hudson as a maritime

employee.

In Herb’s Welding, the Supreme Court addressed whether an employee

who was injured while welding a gas-flow line on a fixed offshore oil drilling

54

Universal Fabricators, Inc v. Smith, 878 F.2d 843, 845 (5th Cir. 1989) (citing

Hullinghorst Indus., Inc. v. Carroll, 650 F.2d 750, 754 (5th Cir. Unit A 1981)).

55

Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S. 40, 47 (1989).

56

See Boudloche v. Howard Trucking Co., 632 F.2d 1346, 1348 (5th Cir. 1980).

20

No. 06-60766

platform was a “maritime employee.”57 The Court explained that “the maritime

employment requirement is an occupational test that focuses on loading and

unloading.”58 After determining that the employee’s work as a welder was wholly

unrelated to any loading or unloading process, the Court held that he was not a

maritime employee.59

We do not disagree with Petitioners’ insistence that those of Hudson’s

activities that related solely to the production of oil and gas from the fourteen

remote production facilities do not imbue him with maritime status. But, there

was more: Unlike the welder in Herb’s Welding, Hudson was directly involved

in the loading of cargo into transport barges for shipment to shore —— a distinctly

maritime activity. Specifically, Hudson transferred previously produced oil that

had come to rest in the platform’s storage tanks to the larger tanks on the

Cherokee where it awaited transport by barge (not by pipeline); he checked the

Cherokee’s cargo loading lines for leaks; and he maintained its engine. Hudson

also hooked up lines for transferring the oil from the Cherokee to the customer

transport barges, manned the emergency shutoff during such transfers, and

boarded customers’ barges to witness gauge readings. These routine, non-

episodic activities are all maritime in nature and support the conclusion that

Hudson’s status was that of a maritime employee.

Petitioners nevertheless contend that even if Hudson was involved in

maritime activities, he failed to dedicate a sufficient percentage of his work to

such activities to bestow maritime status under the LHWCA. We disagree.

The ALJ determined that, as part of his regularly assigned duties, Hudson

spent approximately 9.7% of his time engaged in the above-described maritime

57

470 U.S. 414, 415 (1985).

58

Id. at 424 (internal quotation marks omitted).

59

Id. at 424-25.

21

No. 06-60766

activities.60 To arrive at this figure, the ALJ calculated the amount of time

Hudson spent (1) loading oil into transport barges and (2) servicing the

equipment necessary to load the oil.61 Crediting Hudson’s testimony regarding

his participation in the oil transfers, the ALJ determined that Hudson spent a

total of 22 hours transferring cargo. The ALJ also determined that, according to

time sheets entered in the record, Hudson spent a total of approximately 122

hours maintaining the Cherokee and its equipment. As each of these calculations

is supported by substantial evidence, we perceive no error in the ALJ’s

determinations.

As for the fact that Hudson spent approximately 9.7% of his time

performing maritime activities, we have never set a minimum amount of time

required to qualify as a maritime employee under the Act. We have, however,

upheld maritime status for an employee who spent only 2.5-5% of his employment

engaged in maritime activities when those activities were part of his regularly

assigned duties, as were Hudson’s.62 Thus, Hudson easily spent more than any

minimum amount of time that an employee must be engaged in maritime

activities to be considered a maritime employee under the Act.

60

142 / 1465 = 0.097. The ALJ determined that Hudson worked a total of 1465 hours

during his employment with Coastal. Because of an arithmetical error, the ALJ mistakenly

credited Hudson with 142 total hours of maritime-related activity instead of 144. Under the

correct mathematical calculation, Hudson actually spent 9.8% of his time engaged in maritime

activities. 144 / 1465 = 0.098.

61

Petitioners also advance that the ALJ erred by including the amount of time Hudson

spent maintaining and servicing the equipment on the Cherokee. The ALJ determined that

the maintenance of the Cherokee was necessary and essential for the proper loading and

transfer of the oil into transport barges. As employees who are injured while maintaining or

repairing equipment essential to the loading or unloading process are covered by the LHWCA,

the ALJ did not err by including this time in its calculation. See Chesapeake & Ohio Ry. Co.

v. Schwalb, 493 U.S. 40, 47 (1989) (“Someone who repairs or maintains a piece of loading

equipment is just as vital to and an integral part of the loading process as the operator of the

equipment.”).

62

Boudloche v. Howard Trucking Co., 632 F.2d 1346, 1348 (5th Cir. 1980).

22

No. 06-60766

III. CONCLUSION

We hold that, under the discrete facts of this case, the fixed platform in

question is inseparable from the Cherokee and that together they constitute a

loading facility for the transhipment of cargo by vessel. As such, the platform

qualifies as a maritime situs, being an element that is essential to the maritime

activity of loading cargo for transport. We also hold that Hudson regularly

engaged in sufficient maritime activities to meet the status requirement of the

Act. It follows that, as Hudson was injured on a maritime location and qualifies

as a maritime employee, neither the ALJ nor the BRB erred in determining that

he is eligible for benefits under the LHWCA. The petition for review is DENIED.

23

No. 06-60766

DeMOSS, Circuit Judge, dissenting:

Terry Hudson was injured while repairing a saltwater disposal pump on a

fixed oil and gas production platform located in the state territorial waters of

Louisiana. In my opinion, Hudson’s injury did not occur on a maritime situs. By

treating the Cherokee loading barge and the production platform as a single

LHWCA situs, the majority fails to apportion different functional areas within

the same facility into covered and non-covered areas. I believe that the Cherokee

has a functional nexus with maritime activities, but the production platform does

not. The petition should be granted, and the decision of the BRB awarding

LHWCA benefits should be reversed. Because the majority relies on an elastic

definition of “loading” and allows the tail to wag the dog in its situs analysis, I

respectfully dissent.

I.

In order to recover benefits under the LHWCA, the employee must satisfy

both the situs and status test. Herb’s Welding, Inc. v. Gray, 470 U.S. 414, 415-16

(1985). “Situs and status play equal, coordinate roles in determining coverage.”

Thibodeaux v. Grasso Prod. Mgmt., Inc., 370 F.3d 486, 493 (5th Cir. 2004). The

situs test is derived from 33 U.S.C. § 903(a), which states, in relevant part:

[C]ompensation shall be payable under this chapter 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 adjoining pier, wharf, dry dock,

terminal, building way, marine railway, or other adjoining area

customarily used by an employer in loading, unloading, repairing,

dismantling, or building a vessel).

The majority correctly observes that the production platform where Hudson was

injured does not meet the definition of any of the seven sites specifically listed in

§ 903(a), so it must qualify as an “adjoining area” to be considered a maritime

situs. Therefore, Hudson can recover benefits under the LHWCA “only if [his]

disability . . . results from an injury occurring upon . . . [an] adjoining area

24

No. 06-60766

customarily used by an employer in loading . . . a vessel.” Id. Hudson must

demonstrate that he was located on a covered situs at the approximate time he

sustained his injuries. See Thibodeaux, 370 F.3d at 488.

II.

The “adjoining area” must have both a geographical and functional nexus

with maritime activities to qualify as a covered situs. See Texports Stevedore Co.

v. Winchester, 632 F.2d 504, 514 (5th Cir. 1980) (en banc). Because the

production platform and the Cherokee are in direct contact with navigable

waters, I agree with the majority that the geographical nexus prong of the situs

test is satisfied. See id.; see also Thibodeaux, 370 F.3d at 494. My dissent argues

that the production platform where Hudson was injured does not satisfy the

functional nexus prong of the situs test.

The functional nexus inquiry is fact-intensive. See Winchester, 632 F.2d at

513, 515. The scope of the covered situs cannot be determined solely through

reference to fence lines and employers’ designations, which are subject to

manipulation. Id. at 515. Rather, “[t]he perimeter of an area is defined by

function.” Id. An adjoining area must be “customarily used for significant

maritime activity.” Id.

In my opinion, the BRB’s conclusion that Hudson was injured on a

maritime situs is not supported by substantial evidence.1 The production

platform is not customarily used for any maritime activity, let alone significant

1

The panel is bound by Winchester’s holding that the BRB’s situs determination is a

question of fact that we review under the substantial evidence standard. See Winchester, 632

F.2d at 515. When the material facts are undisputed, as they are in this case, I believe that

the BRB’s situs determination should be reviewed under the de novo standard reserved for

questions of law. See B&D Contracting v. Pearley, 548 F.3d 338, 340 (5th Cir. 2008). Perhaps

the en banc court will have an opportunity to revisit this issue in the future. Nevertheless,

even under the more deferential substantial evidence standard, the record does not contain

more than a scintilla of evidence that the production platform where Hudson was injured was

“customarily used for significant maritime activity.” See Dir., OWCP v. Ingalls Shipbuilding,

Inc., 125 F.3d 303, 305 (5th Cir. 1997).

25

No. 06-60766

maritime activity. In affirming the decision of the BRB, the majority disregards

binding Fifth Circuit precedent holding that a “fixed oil and gas production

platform,” which is connected to satellite wells and located in state territorial

waters, does not qualify as a maritime situs under the LHWCA. See Thibodeaux,

370 F.3d at 487-88.

The majority purports to distinguish Thibodeaux from this case by relying

on a single sentence within that eight-page opinion: “Oil is not shipped from the

platform.” Id. at 494. Even assuming that this observation is the lynchpin of the

Thibodeaux court’s situs analysis, it is undisputed that oil was not shipped from

the production platform where Hudson was actually injured. Rather, oil was

shipped from the Cherokee, which is geographically separate and functionally

distinct from the production platform.2 Thibodeaux controls this case because

Hudson’s injury occurred on the production platform, not the loading barge.

Under my analysis, “transportation” occurs at a maritime situs;

“production” does not.3 I define “production” to include both extraction (at the

satellite wells) and separation (at the production platform); I define

“transportation” to include the loading of cargo in maritime commerce (at the

Cherokee). The production platform serves the non-maritime purpose of oil and

gas extraction and separation, while the Cherokee serves the maritime purpose

of a storage and loading facility for marketable crude oil. In addition to

extraction and separation, the production platform also pipes marketable natural

gas to shore, which even the majority acknowledges is a non-maritime activity.

2

The geographical nexus prong of the situs test focuses on the production platform’s

geographical nexus with navigable waters. In contrast, the fact that the production platform

is “geographically separate” from the loading barge is relevant to the functional nexus inquiry.

3

“Function” is defined as “the action for which a . . . thing is specially fitted, used, . . .

or for which a thing exists.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 920 (16th ed.

1971). The function of the satellite wells and the platform is to produce marketable crude oil.

The function of the loading barge is to transport that crude oil in maritime commerce. Only

the latter function occurs on a LHWCA situs.

26

No. 06-60766

Because the perimeter of an adjoining area is determined by its function, the

production platform should have been distinguished from the Cherokee in the

majority’s situs analysis.

III.

The fourteen satellite wells feed an unmarketable mixture of oil, gas, and

salt water, which is extracted from the subterranean strata beneath Barataria

Bay, to the production platform. The production platform separates that mixture

into two marketable products—crude oil and natural gas—and one waste

product—salt water. At his deposition, Hudson testified that the production

platform contains saltwater pumps, heater treaters, compressors, and

dehydrators. Like many manufacturing plants, the production platform converts

raw materials into marketable products.

The total flow from the satellite wells is gathered by a manifold on the

production platform. Crude oil and salt water from the separation process flows

to the heater treaters on the production platform, where marketable crude oil is

temporarily stored. Gas from the separation process is metered for sale into the

Southern Natural Gas pipeline, and reinjected throughout the field for gas-lift

purposes. The salt water is stored in tanks on the production platform, and

saltwater disposal pumps reinject the salt water into the ground via a satellite

well. The separation process that occurs on the production platform is a discrete

stage of oil and gas production; it has nothing to do with the loading or unloading

of a vessel.

From the 4,000 barrel-capacity storage tanks on the production platform,

marketable crude oil is gravity fed via hard piping and flexible hose to the

Cherokee loading barge, which has a 8,900 barrel-capacity. The production

platform and the Cherokee are approximately thirty to forty feet apart and

separated by open water. Marketable crude oil is pumped from the loading barge

to transport barges via a pump located on the loading barge. The loading barge

27

No. 06-60766

serves as a docking and loading facility, which can accommodate one 10,500

barrel-capacity transport barge. During the eight months of Hudson’s

employment, a transport barge would come once or twice a week.

Hudson was injured while attempting to repair a saltwater disposal pump

on the production platform. The reinjection of salt water, which is one of the final

stages of the production process, prevents contamination of the oil storage tanks

on the production platform. When Hudson cranked the pump, the starter

exploded and caught on fire, resulting in serious burns and shrapnel wounds on

his body. At the time of his injury, no transport barge was being loaded with

crude oil from the Cherokee.

Hudson admitted that the vast majority of his activities as a contract

operator were related to the servicing and maintenance of equipment on the

production platform. No cargo or other materials are ever loaded or unloaded

onto a vessel in the area of the platform where Hudson was injured. No pipeline

connects the saltwater disposal pump to the Cherokee. The equipment used to

produce oil and gas on the production platform is the same equipment used to

produce oil and gas on the land. All of the loading equipment is located on the

Cherokee; Hudson did not venture onto the production platform during the

loading process.

IV.

The crux of my argument is simple: the production platform, which extracts

hydrocarbons and converts them into a marketable form, is functionally distinct

from the loading barge, which facilitates the loading of marketable crude oil onto

mobile transport barges. The production of a commodity at a non-maritime situs

is different from the transportation of that commodity at a maritime situs.

Although both the production platform and the Cherokee have oil storage tanks,

only the Cherokee stores crude oil in a manner that facilitates the loading of a

vessel.

28

No. 06-60766

The majority fails to grasp the following fact: oil and gas production is the

only activity that occurred on the platform where Hudson was injured. In an

effort to avoid the import of this inconvenient truth, the majority makes two

flawed arguments: (1) the production platform is a covered situs because it is

connected to the Cherokee by pipes and a permanent walkway, and (2) the

production platform is a covered situs because it stores marketable crude oil in

temporary storage tanks, which is part of the loading process. The first

argument fails because it impermissibly bootstraps the loading activities that

occur on a separate structure, and the second arguments fails because it relies

on an over-inclusive definition of “loading.”

In holding that the production platform and the Cherokee constitute a

single LHWCA situs, the majority allows proximity to trump functionality. The

central issue is whether Hudson was injured on an “adjoining area customarily

used by an employer in loading . . . a vessel.” 33 U.S.C. § 903(a). When defining

the scope of the LHWCA situs, “[t]he perimeter of an area is defined by function.”

Winchester, 632 F.2d at 515. Under the functional approach, the production

platform is inextricably intertwined with the satellite wells, not the Cherokee

loading barge. Without one, the other is useless. The satellite wells and the

production platform are involved in two distinct stages of the production process:

the satellite wells extract an unmarketable mixture of oil, gas, and salt water

from the subterranean strata, and the production platform separates that

mixture into marketable products and disposes of the waste. The activities

occurring on the production platform have nothing to do with cargo

transportation or maritime commerce. That happens later, at the loading barge.4

Nevertheless, the majority’s analysis combines two structures that lack a

functional nexus (the production platform and the loading barge) and separates

4

In support of its argument that the production platform qualifies as an “adjoining

area,” the majority repeatedly refers to loading activities that occurred on the Cherokee.

29

No. 06-60766

two structures that share a functional nexus (the production platform and the

satellite wells).

Production does not cease until you have a marketable product. In this

case, you do not have a marketable product until the total flow from the satellite

wells is separated using the saltwater pumps, heater treaters, compressors, and

dehydrators on the production platform. Transportation begins when the crude

oil is transferred from the temporary storage tanks on the production platform

to the loading barge, at which point it becomes cargo awaiting transportation in

maritime commerce.

The ALJ, the BRB, and the majority all focus on the fact that the

production platform and the loading barge are connected via pipes and a

permanent walkway. This observation does not alter the reality that production

occurred on one functionally integrated structure (the satellite wells and the

production platform) and transportation occurred on another (the Cherokee).

Many land-based oil and gas production sites are connected, whether by pipeline

or asphalt, to various maritime sites used for shipment of cargo by vessel. To

further add to the confusion, the majority insists that the satellite wells and the

production platform are not functionally integrated despite the fact that the

satellite wells are connected to the production platform via gulf-floor

transmission lines. If the determinative factor of the situs test is

interconnectedness, why is the production platform inextricably intertwined with

the loading barge but not with the satellite wells?

The majority refers to the close proximity and permanent attachment of the

production platform and the Cherokee to support its argument that these two

functionally distinct areas constituted a single, inseparable facility. We have

previously held that function, not proximity or physical connectivity, is the

determinative factor regarding situs. See Winchester, 632 F.2d at 515. While

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No. 06-60766

proximity and physical connectivity might provide some evidence of common

function, they are not a substitute for it.

According to the majority, Hudson spent 90.2% of his time performing non-

maritime activities on the production platform and 9.8% of his time performing

maritime activities on the loading barge. In holding that the loading activities

occurring on the Cherokee control the situs designation of the production

platform, the majority is allowing the tail to wag the dog. The production

platform where Hudson was injured is geographically separate and functionally

distinct from the Cherokee. Perhaps there will be cases where the production

and transportation areas in a single facility are situated over navigable waters

and are not geographically separate and functionally distinct. This case does not

fall within that hypothetical category.

The majority’s second argument relies on an expansive definition of

“loading” that includes incidental storage at the site of production, regardless of

whether that storage actually facilitates the loading of a vessel. After observing

that marketable crude oil is stored in temporary storage tanks on the production

platform, the majority argues that this storage is part of the loading process

because “[i]f no oil flows from the platform’s storage tanks to the Cherokee, no oil

is available for a vessel to load.” Because part of the “general area” is used for

loading, the majority concludes that the entire production platform is a covered

situs. The majority’s reliance on the attenuated connection between post-

production storage on the platform and loading on the Cherokee is suspiciously

similar to the “but for” logic that it repudiates in a footnote.

Not all storage is related to loading. Most if not all production facilities

contain temporary storage areas for finished products. In the absence of a

pipeline, any land-based oil and gas production site must possess temporary

storage tanks for marketable crude oil that has recently been extracted and

separated. In my opinion, the statutory term “loading” does not encompass

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No. 06-60766

temporary storage at the production platform because that storage facilitates the

production of crude oil, not the loading of a vessel. Only the Cherokee stores

crude oil in a manner that facilitates the loading of a vessel. Unlike the crude

oil stored on the production platform, the crude oil stored in the Cherokee is

awaiting shipment by transport barge. The “hopscotch” hypothetical posed by the

majority is a red herring because no part of the production platform, including

the temporary storage tanks, is integral to the loading of the transport barges.

The majority declares that the production platform was the “consolidation point

for transport.” I beg to differ. The 8,900 barrel-capacity storage tank in the

Cherokee serves that “gathering function,” not the temporary storage tanks on

the production platform. The production platform gathers the total flow from the

satellite wells in order to separate it, and the Cherokee gathers the crude oil from

the production platform in order to transport it.

Over twenty years ago, the Supreme Court declared that oil and gas

production is “not even suggestive of traditional maritime affairs.” Herb’s

Welding, 470 U.S. at 422 (citing Rodrigue v. Aetna Cas. & Sur. Co., 395 U.S. 352,

360-61 (1969)). The majority should have avoided expanding LHWCA coverage

into this uncharted territory. See Herb’s Welding, 470 U.S. at 421 (“[The

plaintiff’s] approach would extend coverage to virtually everyone on the

stationary [drilling] platform. We think this construction of the [LHWCA] is

untenable.”) (status case); Thibodeaux, 370 F.3d at 488 (“The sole issue for our

review is whether a fixed oil production platform built on pilings over marsh and

water and inaccessible from land constitutes either a ‘pier’ or an ‘other adjoining

area’ within the meaning of § 903(a). We hold the platform in question is neither

. . . .”) (situs case).

V.

Precedent from the Supreme Court, the BRB, the Fifth Circuit, and the

Eleventh Circuit supports the conclusion that the production platform where

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No. 06-60766

Hudson was injured does not qualify as a covered situs. The cases cited by the

majority are distinguishable.

The similarities between this case and Thibodeaux are striking. Both

Hudson and Thibodeaux were injured while attempting to repair equipment on

fixed oil and gas production platforms, which were connected to satellite wells.

370 F.3d at 487. The platform where Hudson was injured served no greater

“maritime purpose” than the platform where Thibodeaux was injured. Id. at 490.

These production platforms were not “customarily used by an employer in loading

. . . a vessel.” See 33 U.S.C. § 903(a). The only significant factual difference

between the two cases is that the production platform in this case was attached

by pipeline and a permanent walkway to a separate structure used for loading

marketable crude oil onto a transport barge.

In describing the Fifth Circuit’s “functional approach,” Thibodeaux

reaffirmed the holding of Jacksonville Shipyards, Inc. v. Perdue, 539 F.2d 533

(5th Cir. 1976), that “a putative situs actually be used for loading, unloading, or

one of the other functions specified in the Act.” Id. at 489 & n.3. It is undisputed

that Hudson’s injury did not occur on the Cherokee or a docked transport barge.

Thibodeaux also indicated that the “adjoining area” should have some

resemblance to the other parenthetically enumerated structures in the statute.

Id. at 491 n.5. Although the loading barge, which has docking facilities,

resembles a pier, we have previously held that an oil and gas production platform

does not fall within that enumerated category because it does not have a

connection to maritime commerce. See id. at 491, 493. Like any other land-

based oil and gas production site, the platform in this case was solely used for a

non-maritime function: the exploration and discovery of hydrocarbons, the

drilling of test and production wells, the extraction of those hydrocarbons from

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No. 06-60766

subterranean strata, the separation of those hydrocarbons into marketable

products, and the disposal of the production waste products.5

Both the Supreme Court and this Court have declared that the oil and gas

production process has absolutely nothing to do with maritime commerce. See id.

at 491 (“[I]t would be incongruous to extend [the LHWCA] to cover accidents on

structures serving no maritime purpose.”); see also Herb’s Welding, 470 U.S. at

425. Although Herb’s Welding is often pigeonholed as a “status” case, “[its]

description of the work performed on fixed oil production platforms as non-

maritime is highly relevant to the issue of whether the oil production platform

has a connection to maritime commerce.” Thibodeaux, 370 F.3d at 494.

Importantly, Herb’s Welding reaffirmed the classification of off-shore production

platforms as “islands,” which reinforces the conclusion that the island where

Hudson was injured was geographically separate and functionally distinct from

the Cherokee, which was used to load cargo that was produced on that island. See

470 U.S. at 422 n.6 (citing Rodrigue, 395 U.S. at 360).

VI.

I agree with Coastal’s argument that we must apportion different

functional areas within the same facility into covered and non-covered areas. The

apportionment principle naturally flows from the requirement that “[t]he

perimeter of an area is defined by function.” Winchester, 632 F.2d at 515.

Because this circuit has not been presented with a case requiring application of

the apportionment principle, it is appropriate to look to persuasive precedent

from the BRB and the Eleventh Circuit for guidance.

In my opinion, the BRB unsuccessfully distinguishes its own precedent

indicating that the production platform is not a covered situs. In Jones v.

Aluminum Co. of America, the decedent’s widow sued ALCOA under the

5

Winchester and Thibodeaux suggest that the satellite wells (where extraction occurred)

and the production platform (where separation occurred) constitute a single functional entity.

34

No. 06-60766

LHWCA, claiming that her husband died of cancer due to exposure to asbestos

on a covered situs. 35 BRBS 37, 2001 WL 467885, at *1 (April 9, 2001). The

decedent worked as a millwright welder and later as a general mechanic, which

required him to construct, repair, and maintain all types of equipment in the

ALCOA facility, which was adjacent to the navigable waters of the Mobile River.

Id. at *1, *6. The decedent’s regularly-assigned duties included repairing and

maintaining the bauxite conveyor belt system, which was used to unload raw

bauxite for the production of aluminum. Id. at *6. The conveyor belts

“transported bauxite from the ships to [ALCOA’s] storage facility for later use in

the manufacturing process.” Jones v. Aluminum Co. of Am., BRB No. 97-287, 31

BRBS 130 (Oct. 16, 1997). In addition to his work on the conveyor belt system,

the decedent worked the vast majority of his time in the aluminum

manufacturing plant, which was located near the docks and conveyor belts in the

same ALCOA facility.

Regarding the situs issue, the BRB stated the following:

[T]hat portion of employer’s facility where loading and unloading

occur constitutes a maritime situs.

It is also clear, however, that employer’s manufacturing plant is not

a covered situs. The Fifth Circuit’s decision in Winchester recognizes

that the “function” of an adjoining area must be one that is used for

the loading, unloading, repairing or building of vessels. A plant that

manufactures aluminum oxide is not engaged in these functions. In

Stroup [v. Bayou Steel Corp., BRB No. 97-1406, 32 BRBS 151 (BRB

July 2, 1998)], the Board recognized that there is a point at which

the maritime process ceases, and the manufacturing process begins,

and vice versa. This statement is consistent with cases holding that

employees, whose duties are integral to a manufacturing process

rather than to a longshoring process, are not engaged in maritime

employment pursuant to Section 2(3) of the Act. As employer’s

operation contains manufacturing facilities as well as areas used in

maritime work, the entire site is not covered under Section 3(a); the

plant itself lacks the functional nexus to be considered a covered

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No. 06-60766

area, and it cannot be brought into coverage simply because goods

are shipped by water from another portion of the facility.

Jones, 2001 WL 467885, at *6 (internal citations omitted).

In this case, the BRB held that the production platform where Hudson was

injured was more analogous to the covered situs in Gavranovic v. Mobil Mining

& Materials, 33 BRBS 1, 1999 WL 122921 (Feb. 23, 1999), than the non-covered

situs in Jones. In Gavranovic, the employee’s injury occurred in a cargo storage

building that was separate from the production area and was connected to

another building that stored cargo awaiting transport by vessel. See Gavranovic,

1999 WL 122921, at *4. The BRB found that the building where the injury

occurred was adjacent to navigable water, was in close proximity to the docks,

and was not a separate and distinct area. Id. In both Gavranovic and Jones, the

BRB recognized that the entire area used for loading and unloading, including

the areas containing conveyor belts and cargo storage facilities, qualified as a

covered situs. Jones, 2001 WL 467885, at *6; Gavranovic, 1999 WL 122921, at *4.

Thus, if the employee is injured in an area used as part of the overall shipment

process, then he is injured on a covered situs, but if the employee is injured in an

area “where only manufacturing took place,” then he is not.6 Jones, 2001 WL

467885, at *7.

In my opinion, Jones is much more closely analogous to this case than

Gavranovic, upon which the BRB relied. Both Hudson and Jones performed work

in the loading / unloading area and the manufacturing / production area of a

facility that was adjacent to navigable waters. In Jones, the area where the

bauxite was unloaded from vessels and moved by conveyor belt was

6

At most, Gavranovic stands for the proposition that an interconnected cargo storage

facility qualifies as a covered situs if it is distinct from the production facility, adjoins navigable

waters, and contains some cargo awaiting transport by vessel. To that extent, it is relevant

to the situs designation of the Cherokee, not the production platform.

36

No. 06-60766

geographically separate and functionally distinct from the area where the

aluminum was manufactured. Similarly, in this case, the area where the oil was

stored for future shipment and loaded onto vessels was geographically separate

and functionally distinct from the area where the hydrocarbons were extracted

and separated into marketable form.

In this case, like Jones, there was a point where the non-maritime

production process ceased and the maritime loading process began. Both the

production platform in this case and the aluminum manufacturing plant in Jones

were part of larger facilities that were adjacent to navigable waters. After

observing that an injury is covered under the LHWCA only if it occurs on a

covered situs, the BRB remanded the Jones case to the ALJ for a determination

of “whether decedent was exposed to asbestos on a covered situs,” i.e. while he

worked on the conveyor belt system used to unload raw materials from vessels.

Jones, 2001 WL 467885, at *8. In this case, we know that Hudson’s injury

occurred while repairing a saltwater disposal pump on the production platform.

Similarly, in Melerine v. Harbor Construction Co., the BRB stated that

“[t]he fact that the [steel] mill receives raw materials and ships its products by

water, utilizing its dock area for loading and unloading, cannot in and of itself

convert the site of the mill into a covered situs.” 26 BRBS 97, 1992 WL 368658,

at *4 (Sept. 25, 1992). The BRB noted that the steel mill and the loading dock

were geographically separate and functionally distinct. See id. at *3. Because

“the line between [the employer’s] manufacturing and loading operations is

clearly drawn,” the BRB held that it was appropriate “to treat the mill as one

functional area and the dock as another.” Id. at *4. Importantly, the BRB held

that “finished products enter the stream of maritime commerce only after

delivery by truck to the dock area.” Id.

Like Melerine, the line between production and loading operations is

“clearly drawn” in this case. The marketable oil enters the stream of maritime

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No. 06-60766

commerce only after gravity-fed delivery of the cargo from the production

platform to the loading barge. At that point, like the situation in Gavranovic, the

crude oil is stored in the Cherokee in a manner that facilitates the loading of a

vessel.

Finally, in Dickerson v. Mississippi Phosphates Corp., the BRB held that

the employer’s phosphoric acid plant, which was located about 100 feet from a

navigable waterway, was not a covered situs. 37 BRBS 58, 2003 WL 21041375,

at *6 (April 29, 2003). The facts of Dickerson closely resemble the facts of Jones

and Melerine. See id. at *5.

The BRB in Dickerson rejected the employee’s argument that the plant was

a covered situs because it abutted navigable waters and was part of a larger

manufacturing facility that included a dock area. Id. at *5. No loading or

unloading of a vessel occurred in the area where the employee was injured, and

the plant was not used for any intermediate steps in the loading process. Id.

Because the plant did not have “a functional nexus to maritime activity,” the

employee could not satisfy the situs test. Id. at *6. The situs designation of the

phosphoric acid plant was not altered by the presence of a pipeline that connected

the phosphoric acid plant to the fertilizer plant, or the presence of a conveyor belt

that connected the fertilizer plant to the dock. Id. at *5.

Dickerson demonstrates that the production platform’s situs designation

is not affected by (1) the geographical proximity of the platform to either

navigable waters or the loading barge; or (2) the pipes connecting the production

platform to the Cherokee. Jones, Melerine, and Dickerson support the conclusion

that we must apportion different functional areas within the same facility into

covered and non-covered areas. I believe that the majority’s “all or nothing”

approach fails to recognize this basic principle.

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No. 06-60766

VII.

Eleventh Circuit precedent supports the conclusion that the production

platform where Hudson was injured was not a covered situs. In Bianco v.

Georgia Pacific Corp., the Eleventh Circuit addressed whether the sheetrock

production department of a gypsum products facility qualified an “adjoining area”

under § 903(a). 304 F.3d 1053, 1054 (11th Cir. 2002).

In Bianco, the gypsum products facility lied on the banks of the Turtle and

East Rivers. Id. Raw gypsum was unloaded from vessels onto a series of

conveyor belts that moved the gypsum to the employer’s “rock shed” at its

production plant. Id. at 1054-1055. From the rock shed, the gypsum was

processed and then transported to the sheetrock production department. Id. The

finished product was eventually transported to market by truck. Id. The

employee in Bianco sustained an injury in the sheetrock production department

Id. During the course of his employment, the employee participated in both the

production and the unloading process. Id.

Relying in part on the principles contained in Winchester, the Eleventh

Circuit held that the sheetrock production department where the injury occurred

did not satisfy the situs test.7 Id. at 1058. Because this area was used solely for

manufacturing sheetrock and was not part of the “on-going overall process of

unloading raw gypsum,” the Eleventh Circuit concluded that it was functionally

distinct from the unloading area contained in the same facility. Id.

Significantly, the Eleventh Circuit responded to the employee’s argument that

“[because] a portion of the [employer’s] facility is maritime, the entire facility

must be, because to hold otherwise would result in workers walking in and out

7

The Eleventh Circuit has adopted all Fifth Circuit decisions issued before October 1,

1981, including Winchester, as binding precedent. Bonner v. City of Prichard, Ala., 661 F.2d

1206, 1209 (11th Cir. 1981) (en banc). Because the Eleventh Circuit relied on Winchester when

it applied the apportionment principle in Bianco, I find its reasoning particularly persuasive.

39

No. 06-60766

of coverage.” Id. at 1059. Based on the Supreme Court’s statements in Schwalb8

and Herb’s Welding, the Eleventh Circuit determined that this principle “was

more concerned with workers engaged in maritime activity walking in and out

of coverage at or near the water’s edge.” Id. Most importantly, the Eleventh

Circuit noted that congressional intent that workers not walk in and out of

coverage “does not give a court the license to reach out and expand coverage

beyond the terms of [33 U.S.C. § 903(a)].” Id. at 1060.

Like the Eleventh Circuit in Bianco, I believe that the majority’s expansive

definition of covered situs “would effectively be writing out of the statute the

requirement that the adjoining area ‘be customarily used by an employer in

loading . . . a vessel.’” Id. “[The] broad interpretation of ‘area’ [contained in

Winchester] is different from one that ignores other language in the statute

indicating that a functional nexus to maritime activity must nonetheless exist.”

Id. at 1060 n.10 (emphasis in original).

This case is distinguishable from the facts of Caputo, where one employee

was injured on a pier while stripping containerized cargo and another employee

was injured on an adjoining area while loading cargo from a vessel onto a truck.

Ne. Marine Terminal Co. v. Caputo, 432 U.S. 249, 253, 255 (1977). It is also

distinguishable from the facts of Winchester, where the injury occurred in a “gear

room” that contained “equipment used by stevedores to perform the loading

8

Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S. 40 (1989).

40

No. 06-60766

operation.”9 632 F.2d at 507 & n.1. The production platform in this case has a

functional nexus to oil and gas production, not to the loading of cargo.

I disagree with the majority’s invocation of the “walking in and out of

coverage” principle to justify its situs holding. First, the Supreme Court stated

in Herb’s Welding that “there will always be a boundary to coverage, and there

will always be people who cross it during their employment.” 470 U.S. at 426; see

also Bianco, 304 F.3d at 1059-60. In Jones, Melerine, and Dickerson, the BRB

recognized that those employees spent at least some of their time performing

maritime work on a covered situs; however, the employees were unable to

establish that they were located on a covered situs at the approximate time they

were injured. See Thibodeaux, 370 F.3d at 488. Second, I believe that the text

of § 903(a) is not ambiguous regarding whether the production platform is a

covered situs. The production platform was not “customarily used by an

employer in loading . . . a vessel.” See 33 U.S.C. § 903(a). “The starting point in

discerning congressional intent is the existing statutory text.” Lamie v. United

States Tr., 540 U.S. 526, 534 (2004). Only after application of the principles of

statutory construction, including the canons of construction, and after a

conclusion that the statute is ambiguous may the court turn to the legislative

history. Carrieri v. Jobs.com, Inc., 393 F.3d 508, 518-19 (5th Cir. 2004). Third,

9

Unlike the production platform where Hudson was injured, the “gear room” where

Winchester was injured was an essential part of the loading and unloading process:

[Winchester’s] duties as a gear man included supplying and repairing the tools

and machinery used by stevedores in loading and unloading ships. His work

was performed at the dockside, on board ships, and at each of the gear rooms,

including those of other stevedores. When Texports was loading and unloading

cargo, Winchester would service several ships, travelling over the public streets

connecting the gear rooms and docks. Even when Texports had no ships to load

or unload, the gear rooms operated repairing and maintaining gear for the next

loading and unloading operation.

Winchester, 632 F.3d at 507.

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No. 06-60766

even assuming that this principle should guide our situs analysis, the facts of this

case do not present the situation that Congress sought to eliminate with the 1972

amendments to the LHWCA. In support of this argument, the majority cites to

Caputo and Winchester, which I have previously demonstrated are factually

distinguishable from this case. The “walking in and out of coverage” principle

reflects Congress’s “undoubted desire to treat equally all workers engaged in

loading or unloading a ship, whether they were injured on the ship or on an

adjoining pier or dock.” Herb’s Welding, 470 U.S. at 426; see also Sidwell v.

Express Container Servs., Inc., 71 F.3d 1134, 1135 (4th Cir. 1995). This principle

merely reminds us that Hudson would have been covered if he were injured on

the loading barge, the transport barge, or the walkboard in-between. All three

of these locations would qualify as a maritime situs under the LHWCA. The

majority makes an unwarranted logical leap when it relies on this principle to

transform a non-maritime oil and gas production platform into a covered situs.

Hudson “is a far cry from the paradigmatic longshoreman who walked in and out

of coverage during his workday and spent substantial amounts of his time ‘on

navigable waters.’” Herb’s Welding, 470 U.S. at 427 n.13.

VIII.

The regulation of oil and gas production in state territorial waters has

traditionally been an area of state concern. This is not a case where Hudson

would be left without a remedy if the LHWCA does not apply. Hudson was

injured while performing a job required at many land-based oil and gas

production sites located throughout Louisiana, and he is currently receiving state

worker’s compensation benefits. There is ample precedent supporting the

conclusion that the production platform where Hudson was injured was not a

covered situs. If there is any doubt as to whether the LHWCA applies in this

case, I believe that principles of federalism counsel towards a more conservative

approach. The majority and dissenting opinions from our en banc decision in

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No. 06-60766

Bienvenu underscore the difficulties arising from application of the LHWCA to

the oil and gas production industry based in state territorial waters. The

additional ambiguity injected by the majority into this area of law “is plainly in

conflict with the policy favoring expeditious but limited compensation to injured

workers, that underlies all programs of workers’ compensation, whether at the

federal or state level.” Bienvenu v. Texaco, Inc., 164 F.3d 901, 923 (5th Cir. 1999)

(en banc) (DeMoss, J., dissenting). For these reasons, I respectfully dissent.

43