stating that “[w]e believe that all Perini requires is that the claimant show that he was injured on navigable waters while in the course of his employment” and “[w]e therefore hold that a worker injured in the *1239 course of his employment on navigable waters is engaged in maritime employment and meets the status test [] only if his presence on the water at the time of injury was neither transient or fortuitous”
How later courts described this case
- stating that “[w]e believe that all Perini requires is that the claimant show that he was injured on navigable waters while in the course of his employment” and “[w]e therefore hold that a worker injured in the *1239 course of his employment on navigable waters is engaged in maritime employment and meets the status test [] only if his presence on the water at the time of injury was neither transient or fortuitous”
- finding violation of Fed. R.App. P. 28 and refusing to review appeal of attorneys’ fees award given failure of appellant to cite relevant authority or specific errors made by district court in its "bald assertion” that the district court erred
- declining to set exact standards but holding that a worker who spent 8.3% of his employment time on actual navigable waters did not fall within the transient and fortuitous exception and was covered by the Act
- "If a person who would otherwise be covered under the LHWCA does the type of work enumerated by one of these amendments and is covered by a state workman's compensation act, he is not covered by the LHWCA."
Written by the judges who cited it.
The opinion
DeMOSS, Circuit Judge,
with whom, JERRY E. SMITH, Circuit Judge, joins dissenting:
With all due respect for my colleagues in the majority, I am unable to concur in their decision for the following reasons.
I. Chronology of significant events
Any explanation of my disagreements with the majority has to begin with an overview of the key factual and legal events, which I find determinative of the legal issues presented in this case. First, I will briefly reprise the facts giving rise to Bienvenu’s claims, as either stipulated to by the parties or found by the administrative law judge.
This ease began over eleven years ago. On April 10 and 11, 1987, Bienvenu suffered back sprains which resulted in his having to stop working for Texaco on July 19, 1987. Soon thereafter, on September 1,1987, Bien-venu underwent back surgery. By January 31, 1989, Bienvenu had achieved maximum medical improvement following his surgery.
Texaco’s workers’ compensation insurance carrier made payments to Bienvenu pursuant to the Louisiana Workers’ Compensation Law. During the period from July 19,1987 to May 29, 1991, Bienvenu received $261 per week; from May 30,1991 to July 30, 1992 he received $522 per week. In addition, all of Bienvenu’s medical bills were paid by Texaco’s insurance carrier, as required by the Louisiana Workers’ Compensation Law.
All was as it should have been until December 3, 1990, when Bienvenu filed a claim for benefits under the federal Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq. (hereinafter, LHWCA). Almost two years later, on October 14, 1992, an administrative law judge conducted a hearing regarding Bienvenu’s LHWCA claim. The decision was handed down after yet another year of delay, on November 30, 1993. See Bienvenu, No. 92-LHC-2801, slip op. at 4-5, 27 Ben. Rev. Bd. Serv. (MB) 547 (ALJ), 550-51 (Dep’t Labor Nov. 30, 1993).
In addition to these factual events, there are two key legal events that have a significant impact on Bienvenu’s claim. The first of these is the enactment of amendments to the LHWCA, effective on September 28, 1984. Longshore and Harbor Workers’ Compensation Act Amendments of 1984, Pub.L. 98-426, sec. 2 (a), 98 Stat. 1639 , 1639 (codified at 33 U.S.C. § 902 (3)(A)-(F)). The second is the decision by the Supreme Court *914 in Herb’s Welding, Inc. v. Gray, 470 U.S. 414 , 105 S.Ct. 1421 , 84 L.Ed.2d 406 (1985), which was argued on October 3, 1984, and related to an accident which occurred on July 11, 1975, and therefore was not governed by the 1984 LHWCA Amendments.
Today, more than eleven years after the injuries occurred, more than thirteen years after the decision in Herb’s Welding, and more than fourteen years after the 1984 LHWCA Amendments took effect, we are still attempting to decide which compensation statute is applicable to Bienvenu’s injuries. That fact, standing alone, is a tragic commentary about the ambiguities of our LHWCA jurisprudence. This ambiguity, and the attendant delay is, unfortunately, an example of what the United States Congress intended to prevent by adopting the 1984 LHWCA Amendments.
II. What effect did the 1984 amendments to the LHWCA have on the question of whether relief should be under state workers’ compensation statutes or the LHWCA?
Amazingly, in Part II of its opinion, the majority reviews the entire history of the LHWCA from the Supreme Court’s decision in' Southern Pacific Co. v. Jensen, 244 U.S. 205 , 37 S.Ct. 524 , 61 L.Ed. 1086 (1917), right down to the Supreme Court’s 1985 opinion in Herb’s Welding, yet fails in recounting this historical background to mention once, much less apply or construe, the 1984 LHWCA Amendments. This legislation made significant changes in the structure and applicability of the LHWCA. Most significantly, the 1984 LHWCA Amendments defined six new categories of employment which were nob included in the definition of the term “person engaged in maritime employment,” if the individuals described therein “are subject to coverage under a State workers’ compensation law.” See 33 U.S.C. § 902 (3).
The express statutory language of § 902(3) specifies that persons employed to perform certain tasks (described in clauses A, E, and F) or employed by certain employers (described in clauses B, C, and D) are not included within the definition of the term “person engaged in maritime employment” if the individuals described by clauses (A) through (F) are subject to coverage under a state workers’ compensation law. Thus, in resolving the question of whether an injured worker is entitled to state compensation benefits or to LHWCA compensation benefits, the first inquiry which must logically be made is whether or not any one or more of clauses (A) through (F) apply to his employment. 1 If so, we must then ask whether the worker was subject to state workers’ compensation law. If a worker was not covered by any state compensation statute, then none of clauses (A) through (F) can act to deny or remove him from coverage under the LHWCA. But if state workers’ compensation covers the employee, and if any one or more of the § 902(3) subelauses apply, then the injured worker is not “a person engaged in maritime employment” and he is therefore not an “employee” as defined in § 902(3). If he is not an employee, he is not entitled to compensation benefits under the LHWCA, regardless of the location, or “situs,” of his injury, because the situs test specified in 33 U.S.C. § 903 (a) is applicable only to the “disability or death of an employee ” as defined in the LHWCA. 2 Consequently, the changes made by the 1984 LHWCA Amendments constitute clear, deliberate action on the part of Congress to withdraw LHWCA coverage from those individuals described in clauses (A) through (F), even in the circumstance that their injuries occurred upon “navigable waters” in the course of their employment, *915 and despite the fact that they might have been covered by LHWCA prior to the enactment of the 1984 LHWCA Amendments.
The withdrawal of LHWCA coverage on the condition that the injured worker is “subject to coverage under a State workers’ compensation law” is a significant change from prior law. The 1984 LWHCA Amendments reflect congressional recognition of the interplay between the separate state and federal workers’ compensation schemes, and legislatively dictate that in the circumstances in which individuals falling within the purview of clauses (A) through (F) are already subject to state workers’ compensation benefits, those state workers’ compensation benefits are the exclusive benefits for those particular workers.
While the 1984 LHWCA Amendments are plain on their face, and there is no need to look at legislative history when there is no ambiguity in the statutory language, I nevertheless think that a look at legislative history is useful in this case in order to understand what Congress was attempting to accomplish by the 1984 LHWCA Amendments. For example, the House Report states that the 1984 amendments were intended to
insure stability for both the employer and the employee. The employer needs to know its obligations with respect to workers’ compensation for its employees, and make plans accordingly. Employees should not fall within the coverage of different statutes because of the nature of what it is they were doing at the moment of injury.
H.R.Rep. No. 98-570, pt. 1, at 6 (1984), reprinted in 1984 U.S.C.C.A.N. 2734, 2739 (emphasis supplied). The Senate report on the Senate bill which initiated the legislative process is even more specific and expressive as to the purposes of the 1984 LHWCA Amendments. See S. Rep. No. 98-81 (1983).
From the language used by Congress in the 1984 LHWCA Amendments, and from the explanations provided by Congress in legislative history regarding the need for and purpose of the 1984 LHWCA Amendments, several congressional intentions become abundantly clear. First, Congress sought to correct, overrule, or reverse situations in which “courts and agencies have found coverage which [is] not warranted.” 3 Second, Congress attempted to define situations in which the “nexus to maritime navigation and commerce” was insufficient to justify the imposition of the federal compensation scheme. 4 Third, Congress recognized that “appropriate state compensation laws” can often provide coverage to the employees involved “more aptly.” 5 Fourth, Congress aimed to *916 protect the principle that workers’ compensation is an employee’s exclusive remedy against the employer. 6
None of the language added by the 1984 LHWCA Amendments can be read to provide for an injured worker to receive both state and LHWCA benefits. Likewise, none of the language added by the 1984 amendments can be read to adopt the concept articulated by the Supreme Court in Director, OWCP v. Perini North River Associates, 459 U.S. 297 , 103 S.Ct. 634 , 74 L.Ed.2d 465 (1983), that “injury on navigable waters in the course of employment” is all that is needed to establish “maritime employment” for the purpose of bestowing LHWCA coverage. To the contrary, the broad, simple, unqualified language used in the various clauses of § 902(3) necessarily moots consideration of that factor.
III. Effect of the 1984 LHWCA Amendments on the Supreme Court’s Holding in Perini
The principal case which the majority relies on to determine Bienvenu’s compensation rights is the 1983 decision of the Supreme Court in Perini. Obviously, Perini related to facts and circumstances which occurred after adoption of the Longshoremen’s and Harbor Workers’ Compensation Act Amendments of 1972, Pub.L. 92-576, 86 Stat. 1251, but before the 1984 LHWCA Amendments. There is nothing in the Perini opinion which even recognizes the pendency before Congress of what later became the 1984 LHWCA Amendments. Nevertheless, the majority relies upon Perini to establish two essential premises. The first of these is that under the law prior to the 1972 LHWCA Amendments, a worker injured on actual navigable waters in the course of his employment on those waters automatically satisfied the status requirement of the LHWCA. The second premise is that nothing in the 1972 LHWCA Amendments indicates a congressional intent to withdraw LHWCA coverage from workmen covered by the Act before 1972. See Majority Op. at 907-08. The majority then refers to three prior Supreme Court opinions upon which the Perini Court relied in making these conclusions: Parker v. Motor Boat Sales, 314 U.S. 244 , 62 S.Ct. 221 , 86 L.Ed. 184 (1941); Davis v. Department of Labor & Industries, 317 U.S. 249 , 63 S.Ct. 225 , 87 L.Ed. 246 (1942); and Calbeck v. Travelers Insurance Co., 370 U.S. 114 , 82 S.Ct. 1196 , 8 L.Ed.2d 368 (1962).
The majority identifies Parker as the case “most relevant to our decision” in this case. But the 1984 LHWCA Amendments adopted by Congress substantially undercut the rationales of both Perini and Parker . For instance, if the factual circumstances involved in Parker (a janitor employed by a retailer of pleasure craft assists a salesman placing an outboard motor on a boat and accompanies the salesman on a demonstration run; the boat then capsizes and the janitor is killed) had occurred after the passage of the 1984 LHWCA Amendments, the current statutory terms would expressly preclude LHWCA coverage for the janitor because he was “employed by a ... retail outlet,” § 902(3)(B), and he was “employed to build, repair, or dismantle a recreational vessel under 65 feet in length,” § 902(3)(F). Since the janitor in Parker was determined to be an LHWCA employee, but that same janitor would no longer be covered by the statute, the value of that opinion is substantially diminished. 7 *917 Likewise, Perini’s blanket holding — that the 1972 LHWCA Amendments preserved and supplemented the entirety of pre-1972 LHWCA coverage — should have little influence after the adoption of the 1984 LHWCA Amendments, which obviously do retract coverage from the pre-1972 boundaries. The modifications demolished the Perini proposition by unequivocally withdrawing LHWCA coverage from certain workers, despite the fact that they may have been injured on actual navigable waters in the course of their employment.
IV. What effect did the 1984 LHWCA Amendments have on the rule announced by the Supreme Court in Herb’s Welding?.
The casualty involved in the Herb’s Welding case occurred in July 1975, after passage of the 1972 LHWCA Amendments, but before passage of the 1984 LHWCA Amendments. The case was argued before the Supreme Court on October 3, 1984, just five days after the effective date of the 1984 LHWCA Amendments. Since the accident occurred before the 1984 LHWCA'Amend-ments were adopted, it is not surprising that there is no discussion of that statutory development in the Herb’s Welding opinion. That decision nevertheless has a significant application in the present controversy. First and foremost, Herb’s Welding plainly held that the work activities which the claimant, Gray, performed on a fixed platform supporting a well producing oil and gas did not qualify Gray as a “person engaged in maritime employment” under the 1972 LHWCA Amendments. The Supreme Court arrived at this conclusion not only by considering the nature of Gray’s work activities (which had nothing to do with the loading, unloading, or repair of any vessel), but also by reviewing the history of how Congress had viewed the activities of offshore production of oil and gas. See Herb’s Welding, 470 U.S. at 419-26 , 105 S.Ct. at 1425-28 . Relying on its earlier decision in
Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352 , 89 S.Ct. 1835 , 23 L.Ed.2d 360 (1969), the Court discussed numerous aspects in which Congress had made clear that the production of oil and gas from fixed platforms is not a maritime activity. Specifically, the court stated (1) that activities on drilling platforms are not even suggestive of traditional maritime affairs; (2) that in adopting the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331 et seq. (hereinafter, Lands Act), Congress had expressly decided that “maritime law” would not apply to operations on fixed platforms; (3) that the history of the Lands Act at the very least forecloses the conclusion that offshore drilling is a maritime activity and that any task essential thereto is maritime employment for LHWCA purposes; and (4) that Congress must have been familiar with Rodrigue and the Lands Act when it used the term “maritime employment” in the definition the term “employee” in the 1972 LHWCA Amendments. Herb’s Welding, 470 U.S. at 420-23 , 105 S.Ct. at 1426-27 . Furthermore, the Court pointed out that in prior cases interpreting the 1972 LHWCA Amendments, the Court had said “the ‘maritime employment’ requirement is ‘an occupational test that focuses on loading and unloading,’ ” id. at 423 , 105 S.Ct. at 1427 (quoting P.C. Pfeiffer & Co. v. Ford, 444 U.S. 69, 80 , 100 S.Ct. 328, 336 , 62 L.Ed.2d 225 (1979)), and that while “ ‘maritime employment’ is not limited to the occupations specifically mentioned” in § 902(3), “neither can it be read to eliminate any requirement of a connection with the loading or construction of ships,” id. According to the Court, both P.C. Pfeiffer & Co. and Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 267 , 97 S.Ct. 2348, 2359 , 53 L.Ed.2d 320 (1977), “lead us to the conclusion that Gray was not engaged in maritime employment for purposes of the LHWCA.” Herb’s Welding, 470 U.S. at 423 , 105 S.Ct. at 1428 . In conclusion, the Supreme Court in Herb’s Welding held: “Be *918 cause Gray’s employment was not ‘maritime,’ he does not qualify for benefits under the LHWCA. We need not determine whether he satisfied the Act’s situs requirement. ” Id. at 427, 105 S.Ct. at 1429 (emphasis supplied).
Herb’s Welding teaches us that the first decision to be made in determining LHWCA coverage is whether the injured worker satisfies the status requirement of the definition of “a person engaged in maritime employment.” The changes made by the 1984 LHWCA Amendments to the status definition in § 902(3) do not directly address the category of workers on a fixed platform for the production of oil and gas. But Herb’s Welding states that “there is nothing inherently maritime” about the tasks Gray performed in that case. Likewise there is “nothing inherently maritime” about the tasks Bienvenu performed in this case.
Y. What was Bienvenu actually doing during 8.3% of his work time?
The majority attaches controlling significance to the fact that Bienvenu was performing work on board the MISS JACKIE during 8.3% of his work time. They pay very little attention to carefully describing the nature of the work Bienvenu performed while on board the MISS JACKIE. Because the nature of the work which Bienvenu performed while on board the MISS JACKIE is critically important to a proper determination of the status question in this case, I quote the following findings of fact made by the administrative law judge:
In terms of size, the Caillou Island production field is approximately five miles north and south and ten to twelve miles east and west---- During the year 1987, the Cail-lou Island production field had approximately 150 to 175 producing wells. All of the wells were located inside of the three mile territorial limit. The majority of the wells were located in water areas and bays and contained a small platform constructed around the well heads. The platforms were constructed of pilings similar to telephone poles driven into the mud below the water line and then wood was constructed on top with metal grading to allow the workers to walk on. The entire unit was referred to as a cribbing which was about six feet wide by twelve to fifteen feet long. The cribbings had no living quarters.
During the period of his work with Texaco, Mr. Bienvenu never worked off-shore on the outer continental shelf. All of his work was inside the three-mile limit.
Mr. Bienvenu was working as a pumper specialist at the time of his injury. In that job, he did maintenance of automated equipment in the production facilities. The equipment included a variety of measuring gauges consisting primarily of fluid measuñng meters. His responsibility was to maintain the equipment. He used other meters to test the equipment and calibrate it.... Each meter had to be calibrated approximately every three months. Other meters which he maintained were fixed on platforms and he also was responsible for maintaining that equipment. Mr. Bienvenu had a tool box which included all of his hand tools. The tool box weighed approximately eighty pounds or more. The box had to be moved from one well to another as the work sites changed.
... Mr. Bienvenu had almost exclusive use of the Miss Jackie, however, on occasion the boat was used by others. Mr. Bienvenu would simply tell the skipper of the Miss Jackie which particular cribbing he was to be taken to. The Claimant [Bienvenu] did not navigate the boat, although his tools were basically maintained on the boat. He did not perform maintenance work on the boat itself. However, he did perform work on some of the well controls on the back part of the boat.
Claimant’s job as a pumper specialist required him to perform the majoñty of his work on the platforms. However, some of the work was performed on the back of the boat which transported him to the job site. Of the two to three hours that he was on the Miss Jackie on an average day, approximately one hour of that time was spent actually working on equipment on the boat. The rest of the time was spent on the Miss Jackie moving from location to location. The remaining nine hours of the day was spent on a fixed platform in the island field doing his work as a pumper specialist.
*919 Bienvenu , No. 92-LHC-2801, slip op. at 4-5, 27 Ben. Rev. Bd. Serv. (MB) at 550-51 (emphasis supplied).
From these findings it is absolutely clear that the work which Bienvenu did on the stern of the MISS JACKIE was directly related to and an essential part of his primary job responsibility, which was to maintain, repair, and replace as necessary, the gauges and meters which measured the flow of oü and gas from each fixed platform. This work activity had absolutely nothing to do with loading or unloading a vessel, nor with repairing or maintaining equipment used to load or unload a vessel, nor with repairing or maintaining the vessel itself, nor with repairing or maintaining any dock, wharf, or pier used for the loading or unloading of any vessel. Bienvenu’s work activity on the stern of the boat was not “inherently maritime” in nature. Given the express holding by the Supreme Court in Herb’s Welding, the conclusion is inescapable that the work activities which Bienvenu performed on the stern of the MISS JACKIE were not maritime in nature.
Consequently, the majority errs grievously when it concludes that, because of the performance of these non-maritime work activities on the stern of the MISS JACKIE, Bienvenu somehow transforms himself from a worker engaged in non-maritime employment (as Herb’s Welding surely holds he was) into a worker entitled to claim the benefits of a “maritime employment” status simply because his injury occurred “on navigable waters.” This conclusion is even more incomprehensible in light of the fact that his injury did not actually occur during the time that he was working on the stern of the MISS JACKIE maintaining and impairing the equipment removed from the production platform.
VI. The majority decision is in direct conflict with Green v. Vermilion and leaves that conflict unresolved.
A further problem presented by the majority’s treatment of this case is its conflict with the recently decided Green v. Vermilion Corp., 144 F.3d 332 (5th Cir.1998), petition for cert. filed, 67 U.S.L.W. 3532 (U.S. Jan. 14, 1999) (No. 98-1128). There are many factual similarities between this case and Green. Both Green and Bienvenu were land-based workers whose primary non-maritime duties took up the major portions of them work time. Both Green and Bienvenu sustained injuries on vessels which were owned by them respective employers. Both injuries occurred after the effective date of the 1984 LHWCA Amendments. In both cases, the vessel involved was a relatively small vessel which needed only one person to operate it. At the time of injury in both cases, the vessels were tied up at a dock in an area which it may be “legally accurate” to define as “navigable waters,” but which was not in any sense a channel of commerce for interstate or foreign shipping. The waters involved in both cases were entirely within the territorial waters of the State of Louisiana. Neither Green nor Bienvenu performed any tasks for the purpose of maintaining or repairing the vessel in question, nor did either operate or navigate such vessel while it was in transit.
At the moment of his injury, Green was helping to unload supplies brought by boat to the duck camp where he worked. This is an activity upon which the Green panel might have focused for purposes of finding LHWCA coverage, but did not. At the moment of his injury, Bienvenu was lifting his personal tool box on or off of the boat on which he rode between well platforms; this is an activity which the majority itself excludes from the category of “meaningful job responsibilities.” Majority Op. at 908.
Following their injuries, both Green and Bienvenu received full medical care and weekly compensation benefits under the Louisiana Workers’ Compensation Law. Each of them ultimately made claims for LHWCA benefits. Green sued his employer directly in federal district court, and the district judge denied him any recovery. Bienvenu filed an administrative claim directly under the LHWCA, but the administrative- law judge held that the LHWCA did not apply to his injury. Both Green and Bienvenu appealed to our Court. In Green’s case, a panel of our Court affirmed the district court’s determination that Green was not entitled to benefits under LHWCA. See Green, 144 F.3d at 335 . In Bienvenu’s case, *920 the panel concluded that it was bound by precedent to hold that Bienvenu is entitled to LHWCA benefits because of his transient or fortuitous presence upon actual navigable waters. See Bienvenu, 124 F.3d at 693. After en banc reconsideration the majority now confirms the availability of LHWCA benefits, but on different grounds.
These two decisions are hopelessly at odds, and our Court should put them in the same category so that they produce the same result. Green concluded that by enacting the 1984 LHWCA Amendments, Congress expressly determined that Green was not engaged in “maritime employment” for the purposes of LHWCA coverage because he was employed by a “club or camp” and covered by state compensation. See 33 U.S.C. § 902 (3)(B). In essence, Congress legislatively determined that “non-maritime” status may trump the “situs” aspect of a particular injury. The panel in Green correctly affirmed the district court’s denial of LHWCA benefits to Green because Congress statutorily eliminated Green’s employment from those which could be considered to be “maritime employment.”
In my view, we should have applied the same analysis to Bienvenu’s claim. In Herb’s Welding, the Supreme Court held that a worker on a fixed platform producing oil and gas from territorial waters of a state is not engaged in maritime employment and therefore not entitled to LHWCA benefits. See Herb’s Welding, 470 U.S. at 423-26 , 105 S.Ct. at 1427-28 . The work which Bienvenu performed on fixed platforms is analogous to the work which Gray performed on fixed platforms in that case. Why doesn’t Bienvenu’s non-maritime status trump his situs in this case? Why doesn’t the Supreme Court’s determination that producing oil and gas from fixed platforms in state waters is not a “maritime employment” constitute just as binding a determination of “non-maritime status” as if Congress had included in § 902(3) another sub-clause saying that “maritime employment” does not include individuals employed to build, repair, maintain, operate, or dismantle fixed platforms on which there are facilities for the exploration, production, or storage of oil and gas from territorial waters of any state?
The only thing that distinguishes Bien-venu’s claim from Gray’s is that in Herb’s Welding the worker was injured on a fixed platform, while Bienvenu was injured on a vessel tied to a fixed platform. That factual distinction should not be determinative. First, it is important to note that one of the themes underlying the enactment of the 1972 and 1984 LHWCA Amendments was eliminating the circumstance of workers walking in and out of coverage, such that LHWCA applicability depends upon whether a worker’s injury occurred on the vessel or on the dock. This approach should likewise be applied to those workers whose status is determined to be “non-maritime” either by act of Congress or by a decision of the Supreme Court. Both employers and employees benefit from the uniformity and predictability of coverage which would be achieved by eliminating controversies centered on the circumstance of whether a non-maritime worker’s injury occurred on land or water.
If Bienvenu sustained an injury while actually repairing a valve on the fixed platform, there is no question that he would not be entitled to LHWCA benefits and his compensation benefits would be under Louisiana state workers’ compensation. If Bienvenu spends the overwhelming majority of his time working on fixed platforms, his “non-maritime” status should not change when he gets on a boat to ride to or from his place of work, or to perform some limited non-maritime task. Bienvenu’s non-maritime status should not change unless and until the nature of his work assignments change so that he is engaged for a substantial portion of his work time in activities which meet the test of “maritime employment.”
Additionally, in making factual and legal determinations about a worker’s maritime or non-maritime status, we should employ the same rationale and methods of analysis that our Court and the Supreme Court have recognized as being necessary to the task of distinguishing between the status of “seaman” or “member of the crew of a vessel” for Jones Act purposes on one hand and “longshoreman, harbor worker, or other maritime employment” for LHWCA purposes on the other. It is noteworthy that the clause of *921 § 902(3) which determines that a “master or member of the crew of any vessel” is not a “person engaged in maritime employment” for LHWCA purposes is clause (G), which follows immediately after clauses (A) through (F), which were added by the 1984 LHWCA Amendments. It seems quite logical and appropriate that the law should be the same for all of these clauses in § 902(3). I turn now to some brief comments in that regard.
Our Court should be guided by the examples set in three important Supreme Court cases —McDermott International, Inc. v. Wilander, 498 U.S. 337 , 111 S.Ct. 807 , 112 L.Ed.2d 866 (1991); Chandris, Inc. v. Latsis, 515 U.S. 347 , 115 S.Ct. 2172 , 132 L.Ed.2d 314 (1995); and Harbor Tug & Barge Co. v. Papai, 520 U.S. 548 , 117 S.Ct. 1535 , 137 L.Ed.2d 800 (1997) — which were decided after Perini and Herb’s Welding, and after the adoption of the 1984 LHWCA Amendments. These eases, taken together, constitute the best summary of current Supreme Court precedent on distinguishing a “seaman” from a “longshoreman.” Each case makes a significant contribution to the task of defining the boundary lines between “seaman” or “member of the crew of a vessel” (seaman status) and “longshoreman, harbor worker, or other maritime employment worker” (longshoreman status). Both Wilander and Latsis contain excellent historical reviews of the origination of the relevant concepts and principles. Each of these historical summaries also points out the several instances in which the Supreme Court has changed course in making this delineation, either as the result of statutory action by Congress or by later definition of the Supreme Court itself.
These three recent Supreme Court opinions lead to a number of conclusions which should inform our judgment in this case. First, regardless of what the law may have been at one time, it is now clear that the two categories of seaman status and longshore status are mutually exclusive. Second, we now know that seaman status is determined primarily by the worker’s connection with a vessel (or vessels) — a connection which must be substantial both in duration and nature. Third, it has been determined that a maritime worker who spends only a small fraction of his working time on board a vessel is fundamentally a land-based worker, and therefore he is not considered to be a member of the vessel’s crew, regardless of what his duties are. Fourth, our Court has identified an appropriate rule of thumb for determining whether a worker has achieved Jones Act seaman status in the ordinary case — a worker who spends less than 30% of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act. See, e.g., Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067, 1076 (5th Cir.1986) (en banc). The Supreme Court has blessed this objective test. See Latsis, 515 U.S. at 366-68 , 115 S.Ct. at 2189 . Finally, we know that if an employee’s regular duties require him to divide his time between vessel and land, his status as a crew member is determined “in the context of his entire employment” with his current employer.
In order to achieve the goals of uniformity and predictability, when determining LHWCA coverage we should follow this same pattern, which our Court has pioneered in dividing workers between seaman or longshoreman status. First of all, we should hold that the status of a longshoreman and the status of a non-maritime worker are mutually exclusive. To fit into either category, we should look at the type and nature of a worker’s duties over a period of employment. In order to determine that an employee fits into either category, we should require determination that his work assignments in that particular category be substantial in terms of both their duration and nature. We should use our rule of thumb from seaman status cases and hold that a worker who spends less than 30% of his time in maritime employment should not qualify for LHWCA benefits. In connection with workers who must travel over water to get to their work site, the time in transit over water should be counted as time attributable to the status of the duties performed at the work site. If a worker is employed in both maritime and non-maritime tasks, his remedies should be determined by the controlling status, regardless of where the injury occurred.
Applying the foregoing concepts to the factual determinations made by the administrative law judge here in this case, I would *922 conclude that, because Bienvenu worked nine hours of his regular twelve-hour workday performing repair work on the fixed platforms (a task which clearly falls within non-maritime status) and spent another two hours in transit between his work sites at each platform, his non-maritime status is controlling. Indeed, his non-maritime work represents more than 90% of his total employment time. Consequently, I would affirm the administrative law judge’s holding that Bienvenu was not entitled to benefits under the LHWCA because his controlling employment status was not maritime in nature and he was covered by state workers’ compensation. Accordingly, Green and Bien-venu would fall into the same category insofar as LHWCA coverage is concerned.
VII. Where did the “transient or fortuitous” straw man and the “more than a modicum” test come from?
I must express my discomfort with some of the analysis and reasoning employed in Part III.B of the majority opinion. As an initial matter, the problem of “transient or fortuitous presence on a vessel” simply is not featured in the holdings of either Perini or Herb’s Welding. That concept exists only in dicta, relegated to footnotes, in which the Supreme Court is speculating about circumstances not before the Court in either case. Likewise, there is no language in the LHWCA which can be construed to require any such determination in the course of determining status. I am truly amazed at the willingness of the majority to guess the meaning of “the signals from the Supreme Court in Perini and again in Herb’s Welding ” on the subject of whether the LHWCA covers a worker who is “simply transiently or fortuitously aboard a vessel.” While the majority’s guess may be correct, it seems inordinately presumptuous to use that guess as a launching pad for rewriting the law of the Circuit. Furthermore, I cannot understand the majority’s reference to “joining to Eleventh Circuit in reaching this conclausion” on the basis of Brockington v. Certified Electric Inc., 903 F.2d 1523 (11th Cir.1990). There is absolutely nothing in Brockington which addresses the concept of a worker’s “transient or fortuitous” presence aboard a vessel. Rather, I read Brockington as addressing head-on the fundamental question of “status.” The Brockington Court stated:
In order to answer this question, one must determine whether “employment” is defined by what he was doing at the moment he was injured, or whether it is defined by the nature of employment in which he was generally engaged. This question was addressed by the Supreme Court in Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249 , 97 S.Ct. 2348 , 53 L.Ed.2d 320 (1977), where it held that the question of whether an individual is a maritime employee for purposes of LHWCA coverage is controlled by analysis of his “basic” employment, rather than the employee’s particular work at the moment of the accident____ What matters to a determination of maritime status is the description of his regular employment.
902 F.2d at 1528. Applying that concept, the Brockington Court concluded that an electrician whose duties consisted primarily of wiring houses and commercial buildings had no connection to “traditional ‘loading and unloading’ activity” and that the “ ‘marine environment’ in which he was injured had absolutely no connection to the general nature of his employment.” Id. If the majority truly wants to join the Eleventh Circuit in this rationale, I would gladly concur because Bienvenu’s “regular employment” as a pumper specialist on fixed production platforms is clearly recognized by the Supreme Court in Herb’s Welding as being non-maritime employment.
Second, I find the new rule postulated by the majority to be enormously convoluted, and I predict that it will generate litigation rather than avoid it. The majority’s critical measure of the necessary degree of maritime employment to trigger LHWCA coverage— “more than a modicum” — is inherently subjective and destroys the hope for predictability and uniformity of results in determining whether an injured worker gets state compensation benefits or LHWCA benefits.
Finally, I have to disagree with the majority’s attempts to “clarify our case law on this subject.” The majority opinion is just flat wrong in its description of the holding in Fontenot v. AWI, Inc., 923 F.2d 1127 (5th *923 Cir.1991). The holding in that case is that the claimant was “covered by the LHWCA because he was on actual navigable waters in the course of his employment at the time of his injury.” Fontenot, 923 F.2d at 1133 . The panel in Fontenot did address, but ultimately left open and did not decide, the question of whether, “the fact that Fontenot spent 30% of his time working on an oil production vessel and was returning from a job on such vessel when he injured himself’ would satisfy the LHWCA’s status test. The majority opinion goes on to castigate the panel in Randall v. Chevron U.S.A., Inc., 13 F.3d 888 (5th Cir.1994), for misreading Fon-tenot. But the panel in Randall read the holding in Fontenot exactly as it reads. It is the majority in this case which now wants to impute to Fontenot a holding which was never made in that case. While I recognize that our en bane Court is not bound by either Fontenot or Randall , I cannot, for the life of me, see how we can overrule Randall without also overruling the express holding in Fontenot .
VIII. Conclusion
If there is any area of jurisprudence which mandates the highest level of clarity, simplicity, predictability, and efficiency, it is the area of workers’ compensation benefits. An injured worker is entitled to prompt medical care and treatment for his injuries, some cash payments during convalescence, and ultimate compensation for permanent injuries. He should not have to guess where to get these benefits. Likewise, the employer who wants to provide compensation benefits should be able to accurately predict which compensation regime is applicable to his employees, and he should not- have to guess, at the risk of greater liability, which is the right regime. With employers like Texaco who have workers in many different states and in other countries — workers who are engaged in activities on land, sea, and in the air — the task of determining the appropriate compensation remedy should turn on objective rather than subjective factors. The majority opinion recognizes that its requirement of “more than a modicum of work time on a vessel” is not susceptible of objective quantification, and that the new doctrine will require employers and claimants to endure the caldron of case-by-case development. I think that relegating the participants in workers’ compensation schemes to a protracted common-law evolution of principles governing which of two compensation regimes applies in a given case is a misinterpretation of both congressional intent and the Supreme Court’s interpretation of the Longshore and Harbor Workers’ Compensation Act. In addition, it 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. I therefore respectfully DISSENT.
. No one contends that Bienvenu fits into the enumerated categories of "any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker” specified in § 902(3), as to which there would be no doubt that the LHWCA is the exclusive compensation regime.
. The statute provides:
Except as otherwise provided in this section, compensation 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).
33 U.S.C. § 903 (a). This limitation on LHWCA coverage is commonly known as the "situs” requirement.
. "Il is clear from the abundant record developed at the ove[r]sight hearings that a pressing need exists to revise portions of the act. The courts and agencies have found coverage to exist in situations which are not warranted." S. Rep. No. 98-81 at 20. "[T]he decade of experience under the 1972 Amendments has vividly demonstrated that the effort to eliminate benefit disparity and to promote systemic uniformity has exacted a price, too. The rules of coverage, in the words of one authority, have been a 'doubly prolific generator of litigation.’ ” Id. at 24-25 (quoting 4 A. Larson, Workmen’s Compensation § 89.27(b), at 16-180 (1983)).
. In this vein, the Senate report reflects the following judgments about situations in which the connection between employment and traditional maritime duties are too attenuated to support LHWCA coverage:
Additionally, the committee would like to clarify that certain establishments, and their employees, such as clubs, camps, restaurants, museums, retail outlets and marinas are exempt from coverage regardless of their location.
The committee received numerous complaints from these employers and their insurance carriers that indicate a general confusion as to whether or not the Longshore Act applies. These businesses are operated on or over a navigable water and insurance carriers, fearing a claim under the act, often require Longshore riders on their workers compensation insurance policies.
The committee believes that these employers lack the necessary nexus to maritime employment and commerce and therefore are properly exempted from the jurisdiction of the act.
S.Rep. No. 98-81 at 29.
. The report states, in pertinent part:
[T]he lower courts as well as the Benefits Review Board in the past have often been divided on the proper, criteria for determining such issues as "maritime employment” and “adjoining area.” (See, e.g., discussion in 4 A. Larson, Workmen’s Compensation § 89.42 at pp. 52-53 (Supp.1981)).
... Uncertainty of coverage fosters continued litigation, with attendant expense and delay that is a burden to employers, their insurance carriers, and claimants.
*916 ... Rather, the consensus among the committee members was to reaffirm the purposes of the 1972 jurisdictional changes, and in that light, the committee narrowed its focus to certain fairly identifiable employers and employees who, although by circumstance happened to work on or adjacent to navigable waters, lack a sufficient nexus to mantime navigation and commerce. The committee’s attention was directed to specified activities which were singled out for criticism by numerous witnesses before the committee. Under this case-specific approach, the committee has determined that certain activities do not merit coverage under the act and that the employees involved are more aptly covered under appropriate state com-perisation laws.
S.Rep. No. 98-81 at 25 (emphasis supplied).
. "Judicial interpretations of the act have allowed for dual recovery under both State workers’ compensation and LHWCA. This violates the principle of workers’ compensation that it is the employer’s exclusive remedy. Current law undermines this principle when an employer faces both Federal and state programs.” S. Rep. No. 98-81 at 30.