Petition for Writ of Certiorari — Coloma v. Director
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Supreme Court, U.S,
* ELLEDB
| APR 25 1890
— goGkRH £ SPANIOL, JR.
CLERK
In the Supreme C
OF THE
United States
OCTOBER TERM, 1989
CEFERINO COLOMA,
Petitioner,
VS.
DIRECTOR, OFFICE OF WORKERS
COMPENSATION PROGRAMS,
Respondent,
CHEVRON SHIPPING Co.,
Intervenor.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN R. HILLSMAN
McGUINN, HILLSMAN &
PALEFSKY
451 Jackson Street
San Francisco, California 94111
(415) 421-9292
Attorney for Petitioner
BOWNE OF SAN FRANCISCO. INC «+ 190 NINTH ST +« SF . CA 94103 + (415) 664-2300
a
QUESTIONS PRESENTED
This petition concerns federal maritime jurisdiction, and re-
quests an interpretation of the “status” provisions of the Long-
shore and Harbor Workers’ Compensation Act (“LHWCA”). 33
U.S.C. § 902(3). It raises two questions under Supreme Court
Rule 17.
(1) Are Weyerhauser Co. v. Gilmore’ and the traditional,
“significant relationship” test for “maritime employment” still
good law, as the Eleventh and Fifth Circuits held as recently as
March 7, 1990, or were they reversed sub silento by Herb’s
Welding, Inc. v. Gray’, as the Ninth Circuit ruled in its decision
below?
(2) Do longshoremen, ship repairmen, shipbuilders, and ship-
breakers comprise only “a part of the larger group of activities
that make up ‘maritime employment’ ”, as this Court held in P.C.
Pfeiffer Co., Inc. v. Ford,’, or does the LHWCA exclude all those
“employees who are not engaged in loading, unloading, repairing,
or building a vessel”, as the Supreme Court suggested in Herb’s
Welding?
' §28 F.2d 957 (9th Cir. 1975).
7470 U.S. 414 (1985).
> 444 U.S. 69, 77, n. 7 (1979).
ii
TABLE OF CONTENTS
IPEDAARE. OE PITA EBOOG. 6. occ cccccacccecsccnces
STATEMENT? OF THE CARE .... 20.5. c ccc ccc ees
I.
II.
I.
II.
ITI.
THE DECISION TO ABANDON WEYER-
HAUSER CONFLICTS WITH THE OPINIONS
OF TWO OTHER FEDERAL COURTS OF AP-
PEAL, AND DECIDES AN IMPORTANT
COU CS GU i vin cb cntcscanetanesades
CERTIORARI IS REQUIRED TO ESTABLISH
WHETHER LHWCA COVERAGE MUST
NOW BE MEASURED BY A “RESTRICTIVE
STANDARD” WHICH IS FAR NARROWER
THAN THAT TRADITIONALLY ACCORDED
BF ET ee ee ae
CERTIORARI IS FINALLY REQUIRED TO
CLARIFY WHETHER LONGSHOREMEN,
SHIP REPAIRMEN, SHIPBUILDERS AND
SHIPBREAKERS COMPRISE ONLY “PART
OF THE LARGER GROUP OF [MARITIME
EMPLOYEES],” AS THIS COURT HELD IN
P.C. PFEIFFER, OR WHETHER CONGRESS
INTENDED TO EXCLUDE ALL THOSE “NOT
ENGAGED IN LOADING, UNLOADING, RE-
PAIRING OR BUILDING A VESSEL”, AS
THE SUPREME COURT RULED IN HERB'S
ah us ERETEEE EEE ee ee
iii
TABLE OF AUTHORITIES
Cases
Page
Baltimore & Phil. Steamboat Co. v. Norton 284 U.S. 408
ET ee 8
Brady-Hamilton Stevedore Co. v. Herron 568 F.2d 137 (9th
es aka b hiecw ps tense te ened 3, 10
Chesapeake and Ohio Ry. Co. v. Schwalb ___ U.S. —_,
a ie Siena chek bene dees revs 10
Coloma v. Director, OWCP Slip.Op. No. 88-7445, to be
reported at 897 F.2d 394 (9th Cir. 1990) ............. l
Coloma v. Chevron Shipping Co. 21 B.R.B.S. 318 (BRB,
a a ee ee l
Coloma v. Chevron Shipping Co. 21 B.R.B.S. 200 (BRB,
NE ey eran l
Coloma v. Chevron Shipping Co. 14 B.R.B.S. 434 (ALJ,
iE oan ak wiko-s geihi'e 6 04 0060s eu es ]
Davis v. Dept. of Labor & Industries 317 U.S. 240 (1942) 3
Director, OWCP v. Perini North River Assoc. 459 U.S. 293
ied xo hh OW kee cb dee ed sees ces 7,10, 11
Duncanson-Harrelson Co. v. Director, OWCP 644 F.2d 827
es ache beeen ane-qewsees vee kes < 7
Duncanson-Harrelson Co. v. Director, OWCP 686 F.2d 1336
ne Pare 7
Executive Jet Aviation, Inc. v. City of Cleveland 409 U.S.
ETS Ee ee 4, 8,12
Herb's Welding, Inc. v. Gray 470 U.S. 414 (1985) ..... Passim
Hullingshorst Industries, Inc. v. Carrol 650 F.2d 750 (Sth
Ee Che s saa bist vest bi sbees venceds 7,14
Jacksonville Shipyard, Inc. v. Perdue 539 F.2d 533 (Sth Cir.
EN EE Se 7,14
LeMelle v. B.F. Diamond 674 F.2d 296 (4th Cir. 1982)... 7
Marshall v. International Mercantile Marine Co. 39 F.2d 551
EE 6
Miller v. Central Dispatch, Inc. 673 F.2d 773 (Sth Cir.
Cee Ci aa avant eee keh eee seea ss 7,13
Mississippi Coast Marine v. Bosarge 637 F.2d 994 (Sth Cir.
sy yg aa Cr 7
iv
TABLE OF AUTHORITIES
CASES
Page
Nacriema Operating Co. v. Johnson 396 U.S. 212 (1969) 9
Northeast Marine Terminal Co., Inc. v. Caputo 432 U.S. 249
og a re roe Pere oe a er Tee 7, 9, 10
Odom Constr. Co. v. U.S. Dept. of Labor 622 F.2d 110 (Sth
| EE. 5 dinkin ake sain hth awd neh seats eke weet 7,8
P. C. Pfeiffer Company, Inc. v. Ford 444 U.S. 69 (1979)......
Pe eT Ae ee He Oe ee ee 4, 10, 13
Ramos v. Universal Dredging Corp. 653 F.2d 1353 (9th Cir.
| See debe Mile dss det Ridin oes iien ate ues 7
Sanders v. Alabama Dry Dock & Shipbuilding Co. 841 F.2d
FR Re I iin hh ie iip 6s 4dh6s cece cnesss 8
Schwabenland v. Sanger Boats 683 F.2d 309 (9th Cir. 1982) 7
Smith yv. Eastern Seaboard Piledriving, Inc. 604 F.2d 789
CRG NE occ anereet ahi cdAee a wade kendh vs ius 7
Southern Pacific Co. v. Jensen 244 U.S. 205 (1917) ...... 9
Sun Ship, Inc. v. Pennsylvania 447 U.S. 715 (1980)..... 10, 13
Thomas v. Lane 23 Fed.Cas. 975 (C.C.D.Me. 1813) .....
Trotti & Thompson v. Crawford 631 F.2d 1214 (2nd Cir.
GE ohn dase bedi aennesceda chase bee Shecat sss 7
Troupe v. Chicago, Duluth & Georgian Bay Transit Co. 234
Pal ee GE: TED necdtaddncescbdhwedvskses ss 6
Union Texas Petroleum v. PLT Engineering, Inc., 895 F.2d
eich eek hendin bucweas ss 8,9
United States v. Evans 195 U.S. 361 (1906) ............ 3
Voris v. Biloel 346 UB. SBB (IGSS) .. wo. cccsccccsccecs 7
Ward v. Director, OWCP 684 F.2d 114 (Sth Cir. 1982)... 7
West v. Chevron USA, Inc. 615 F.Supp. 377 (E.D.La. 1985) 7
Western Fuel Co. v. Garcia 257 U.S. 233 (1921) ..... we §
Weyerhauser Co. v. Gilmore 528 F.2d 957 (9th Cir. 1975)
Ome. Gk; Sa es re ND 6s hb SS seea cece cae Passim
|
TABLE OF AUTHORITIES
Statutes
Page
Longshoremen’s and Harbor Workers’ Compensation Act
As Amended, 1972, Pub. L. 92-576... ... 0... sceeces 9
Longshore and Harbor Workers’ Compensation Act Amend-
ments of 1984, Pub. L. 98-426, 98 Stat. 1639 ......... 2,9
Longshore and Harbor Workers’ Compensation Act, 33
EE CCAS 4% ne cabdh bs 44 ohendiaaee ees 2,9, 13
Supreme Court Rules:
EG ii ns ba OS ee eee Lee a 8,9
| Serer reT eT er Ter iT ere Terre 8
U. S. Constitution:
EE DE i cobb ceudetcedeveesceckednasss 3
Se ES os ie de beee cdi sadnesbissewaanes 2
OD ee I Wb Ca WW ie NEb edb kK se kanknes 6
Miscellaneous Authorities
“The Annual Report of the Maritime Administration”
Er ae Ee Pry er ee 12
ET. ccviesuxkevennennbusnehnneen he 12
Gilmore & Black, The Law of Admiralty (2d ed. 1975)
OO Er, ee) Seep ee HEP ere 3, 9, 10, 13
H.R. Rep. No. 92-1441, 92d Cong., 2d Sess., reprinted in
1972 U.S. Code Cong. & Admin. News 4708........... 10
U.S. Dept. of Labor, Employment Standards Administra-
tion, LHWCA: Annual Report on Administration of the
PS ate ee oe eee 12
vi
LIST OF APPENDICES
Opinion Affirming Benefits Review Board Coloma v.
Director, OWCP, 897 F.2d 394 (9th Cir. Feb. 23,
EPA ee eee eae
Order Denying Claimant’s Motion for Reconsidera-
tion Coloma v. Chevron Shipping Co., 21 B.R.B.S.
318 (BRB, October 27, 1988) ... 0.0... ccc ce ceees
' Decision and Order Affirming Administrative Law
Judge Coloma v. Chevron Shipping Co., 21 B.R.B.S.
200 (BRB, Aug. 12, 1988) ................ 0.08
Order Denying Reconsideration Coloma v. Chevron
Shipping Co. (ALJ No. 85-LHC-1981, Jul. 18, 1986)
Decision and Order Denying Benefits Coloma v.
Chevron Shipping Co. 18 B.R.B.S. 434 (ALJ) [May
aca SC EG hEE6EK KO ONS GAS SERS ASS ORD
pA i rn
Fe i. ED CUED on vnc evecassveneseces
Page
A-15
as ae ell
ales
No.
In the Supreme Court
OF THE
United States
OCTOBER TERM, 1989
CEFERINO COLOMA,
Petitioner,
VS.
DiIRECTOR, OFFICE OF WORKERS
COMPENSATION PROGRAMS,
Respondent,
CHEVRON SHIPPING Co.,
Intervenor.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DECISION BELOW
Review is hereby sought of a decision of the United States
Court of Appeals for the Ninth Circuit which was entered on
February 23, 1990, and will be reported at 897 F.2d 394 (9th Cir.
1990) .*
* Ceferino Coloma v. Director, Office of Workers Compensation Pro-
grams, Slip Opinion No. 88-7445 (9th Cir. 1990), affg Decision and
Order (and Order denying reconsideration) of Benefits Review Board,
U.S. Department of Labor, 21 B.R.B.S. 318 (BRB, 1988), affg Deci-
sion and Order Affirming Administrative Law Judge, 21 B.R.B.S. 200
(BRB, 1988), afg Decision and Order Denying Benefits (and Order
denying reconsideration) of Administrative Law Judge, U.S. Depart-
ment of Labor, 18 B.R.B.S. 434 (ALJ, 1986).
2
JURISDICTION
- The jurisdiction of this Court is invoked under 28 U.S.C.
§ 1254(1) (1988).
STATUTE INVOLVED
The statute involved is 33 U.S.C. §902(3) (1972).° That
section enacts the so-called “status” requirement for LHWCA
coverage, and provides that:
“The term ‘employee’ means any person engaged in mari-
time employment, including any longshoreman or other
person engaged in longshoring operations, and any harbor-
worker including a ship repairman, shipbuilder, and ship-
breaker, but such term does not include a master or member
of a crew of any vessel, or any person engaged by the master
to load or unload or repair any small vessel under eighteen
tons net.”
33 U.S.C. 902(3) (1972) [emphasis added].
The Slip Opinion of the Court of Appeals is reproduced as Appendix
A to this petition; the Order denying reconsideration and Decision and
Order of the Benefits Review Board are reproduced as Appendices B
and C hereto; the Order Denying Reconsideration and Decision and
Order Denying Benefits of the Administrative Law Judge are repro-
duced as Appendices D and E hereto.
* Section 2(3) was amended prospectively in 1984. See Public Law
98-426. Though this claim arose prior to that amendment, the italicized
language at issue in this case has remained the same since 1972, when it
was enacted by Congress to define the so-called “status” requirement for
LHWCA coverage. The 1984 amendments serve only to modify that
language by specific exclusion.
ee
3
SUMMARY OF PETITION
I must go down to the seas again,
to the lonely sea and sky,
And all I ask, oh Lord above,
is a star to steer me by.
— JOHN MASEFIELD
Though they flow from a Constitutional source,° the shoal
waters of admiralty have never been easy to navigate. “The
precise scope of admiralty jurisdiction is not a matter of obvious
principle or of very accurate history.” United States v. Evans, 195
U.S. 361, 365 (1906). As an arm of that imprecise jurisdiction,
the exact reach of the LHWCA has been particularly unclear. See
gen. Gilmore & Black, The Law of Admiraity (2d ed.) 418-423.
Until 1972, it was strewn with “maritime but local” exceptions
(e.g., Western Fuel Co. v. Garcia, 257 U.S. 233 (1921)), and
overshadowed by an obscure “twilight zone”. Davis v. Dept. of
Labor & Industries, 317 U.S. 240 (1942). Since 1972, LHWCA
coverage has revolved around the double tests of “situs” and
“status”. 33 U.S.C. §§ 902(3) and 903(a).’ Unfortunately, as
Justice Kennedy foretold back in 1978, “neither test is precise,
and cases will often arise which present questions of coverage that
are difficult to resolve.” Brady-Hamilton Stevedore Co. v. Herron,
568 F.2d 137, 140 (9th Cir. 1978). After piloting their cases
through those difficult questions for almost two decades, puzzled
practitioners are still searching for a star to steer by. Our petition
respectfully requests the Supreme Court to give us that star, and
to realign the LHWCA, once and for all, with the overarching
firmament of admiralty.
In 1972, the same year that the “situs” and “status” require-
ments were added to the LHWCA, this Court ruled that before
admiralty jurisdiction attaches to an overwater tort, “there must
also be a mantime nexus—some relationship between the tort and
® Article III, Section 2, of the Constitution confers “all Cases of
Admiralty and maritime Jurisdiction” upon the courts of the United
States.
’ These are commonly known as the “ ’72 amendments”.
4
traditional maritime activities involving navigation or commerce
on navigable waters.” Executive Jet Aviation, Inc. v. City of
Cleveland, 409 U.S. 249, 256 (1972). That decision clarified 159
years of conflicting jurisdictional law, and handed down a simple
standard which has been followed ever since. Two years later, in
1975, the Ninth Circuit Court of Appeal interpreted the ‘72
amendments in light of Executive Jet, and ruled “that for an
injured employee to be eligible for federal compensation under
LHCA, his own work... must have a realistically significant
relationship to ‘traditional maritime activity involving navigation
and commerce on navigable waters’”. Weyerhauser Co. v. Gil-
more, 528 F.2d 957, 961 (9th Cir. 1975), cert. den., 429 U.S. 868
(1979). Weyerhauser was followed by five maritime circuits, and
served as a steady coverage beacon for almost 15 years.
By its decision below, the Ninth Circuit abandoned
Weyerhauser on grounds that to do otherwise “would be to ignore
the clear and direct mandate” of Herb’s Welding, Inc. v. Gray,
470 U.S. 414 (1985). Appendix A, pp. A-9-A-13. In the opinion
of the Court of Appeal, Herb's Welding narrowly restricts
LHWCA “status” to “those actually involved in moving cargo
between ship and land transportation.” Jd., p. A-9. We respect-
fully petition this Court to examine the wisdom of abandoning
Weyerhauser, and to consider whether Herb’s Welding really
made the remedial embrace of the LHWCA that much smaller
than the jurisdictional ambit of the admiralty and Executive Jet.
We also ask the Court to eliminate a conflict between the Fifth
and Eleventh Circuits, on the one hand, and the Ninth Circuit on
the other. We finally request the Court to clarify conflicting
language from its own opinions in P.C Pfeiffer and Herb’s
Welding.
STATEMENT OF THE CASE
I. Proceedings Below
This case comprises petitioner Ceferino Coloma’s LHWCA
claim against his former employer, the Chevron Shipping Com-
pany (“Chevron”). The parties stipulated that Coloma was in-
jured on a maritime situs, and the Administrative Law Judge
Biase
SR ipa i ea ts at etn.
5
(“ALJ”) concluded that “claimant’s work was in aid of Chev-
ron’s seafaring and navigational activities”. Appendix E, p. A-30.
While that conclusion clearly satisfied Weyerhauser, the ALJ
denied coverage under Herb’s Welding on grounds that claimant
was not “actually involved in moving cargo between ship and land
transportation.” Jd., p. A-28. The decision and order were entered
on May 21, 1986. Jd. Coloma appealed to the Benefits Review
Board (“BRB”), which affirmed the ALJ on August 12, 1988.
Appendix C. When the BRB denied a petition for reconsideration
on October 27, 1988 (Appendix B), Coloma took his case to the
Ninth Circuit Court of Appeal. The Ninth Circuit affirmed the
BRB on February 23, 1990, and ruled that Weyerhauser had been
overturned sub silento by Herb’s Welding. Appendix A.
Il. Material Facts
The material facts were undisputed. Ceferino Coloma was a
ship’s cook. After twenty years as a Navy steward, Coloma retired
and obtained a “Z card” so he could sign on with the merchant
marine. RT 53:12-19; 54:1-5; 58:1-15.* Coloma went to work for
Chevron USA (“CUSA”) as a galleyhand aboard seagoing
tankers in 1974. RT 57:24-25; 56:1-21; 62:14-16. In January,
1975, Chevron transferred him to the “Operations, Ports and
Navigation Department”, and assigned him to the Longwharf at
its Richmond, California refinery. RT 63:1-4. The Richmond
Longwharf extends more than a quarter mile into San Francisco
Bay, and is used to load and unload tankers. RT 28:8-12; 30:15-
22. Like all liquid cargo operations, loading and unloading at the
Longwharf is not conducted by independent stevedores or long-
shoremen, but through pumps, hoses, and pipes operated directly
by the tanker crews. RT 30:23-25. Coloma fed those crews in a
wharf-top mess hall known as the “Seagull Inn”. RT 68:4-6. Most
of the Inn’s employees carried “Z cards”. RT 64:15-65:7. Indeed,
Coloma was sent there to replace a cook whom Chevron had
transferred to permanent fleet duty. RT 62:17-24.
* Though we have not included the Reporter’s Transcript among the
appendices, we have still cited the record (“RT”) for ease of reference
in the event that our petition is granted.
6
The primary purpose of the Seagull Inn was to feed seamen
from visiting tankers. RT 22:20-24. Coast Guard regulations
require ship’s crew to remain aboard during cargo operations (46
C.F.R. § 35.35-1), so the Seagull Inn was established to feed
them dockside while the vessel’s regular galleyhands took shore
leave. RT 23:13-17. Crewmen dined there for free under the
room-and-board provisions of their employment contracts. RT
27:8-9. Since the Longwharf is behind refinery fences, the Inn is
not accessible to the public. RT 35:11-19. Besides tanker and
tugboat crews, the only people permitted to eat there were Coast
Guard officers, customs officials, and outside ship-repair contrac-
tors. RT 25:6-25; 26:1-6.
In 1982, Chevron closed the Inn, and transferred most of the
messmen to shipboard galleys. RT 63:9-12. Today, visiting tank-
ers either require their galleyhands to remain aboard, or send their
crews to the refinery cafeteria about a mile up the road. RT 36:20-
25; 37:1-6. Coloma was reassigned to the CUSA tanker Hilyer
Brown on July 14, 1982. Before leaving, however, he contracted
benign keratoma with lichenoid dermatitis on both hands from
the chemical cleansers he used at the Inn. RT 70:7-10. He was
medically discharged from the Hilyer Brown on July 23, 1982, as
a result of that condition. RT 61:1-3.
Coloma was a “seaman” under the Jones Act (46 U.S.C.
§ 688(a)) during his service aboard CUSA tankers,’ and he was a
“maritime employee” under Weyerhauser during his interim
service on the Richmond Longwharf. Only the decision to aban-
don Weyerhauser left him high and dry. We respectfully petition
the Court to review that decision.
* See, e.g., Troupe v. Chicago, Duluth & Georgian Bay Transit Co.,
234 F.2d 253 (2nd Cir. 1956); Marshall v. International Mercantile
Marine Co., 39 F.2d 551 (2nd Cir. 1930).
a ee See
Ten eh PREM ea ke ae tate it
REASONS FOR GRANTING THE WRIT
I. THE DECISION TO ABANDON WEYERHAUSER CON-
FLICTS WITH THE OPINIONS OF TWO OTHER FED-
ERAL COURTS OF APPEAL, AND DECIDES AN
IMPORTANT QUESTION OF LAW
The Court of Appeal decided an important question of law
when it interpreted Section 902(3) under what it took to be “the
more restrictive standard” of Herb’s Welding, and abandoned the
traditional Weyerhauser test. Appendix A, p. A-12. It thereby
rejected a whole generation of circuit court cases which “define
the phrase ‘maritime employment’ as a ‘general’ and ‘catch-all’
phrase”.'° Relying instead on a Louisiana District Court opinion,
“It concluded... that the Supreme Court views ‘expansive no-
tions’ of what is maritime ‘with disfavor’.” Id., quoting West v.
Chevron USA, Inc., 615 F.Supp. 377, 381 (E.D.La. 1985). This
conclusion conflicts sharply with the Supreme Court’s assiduous
admonition thet:
“The language of the 1972 Amendments is broad and sug-
gests that we should take an expansive view of the extended
coverage. * * * The Act ‘must be liberally construed in
conformance with its purpose, and in a way which avoids
harsh and incongruous results.‘ Voris v. Eikel, 346 U.S. 328,
333 (1953).” Northeast Marine Terminal Co., Inc. v.
Caputo, 432 U.S. 249, 268 (1977) [emphasis added]. See
also Director, OWCP v. Perini North River Assoc., 459 U.S.
'° See, e.g., Hullingshorst Industries, Inc. v. Carrol, 650 F.2d 750, 755
(Sth Cir. 1981); Jacksonville Shipyard, Inc. v. Perdue, 539 F.2d 533,
540 (Sth Cir. 1976); Schwabenland v. Sanger Boats, 683 F.2d 309 (9th
Cir. 1982); Duncanson-Harrelson Co. v. Director, OWCP, 644 F.2d 827
(9th Cir. 1981); Duncanson-Harrelson Co. v. Director, OWCP. 686
F.2d. 1336 (9th Cir. 1982); LeMelle v. B.F. Diamond, 674 F.2d 296 (4th
Cir. 1982); Miller v. Central Dispatch, Inc., 673 F.2d 773 (Sth Cir.
1981); Mississippi Coast Marine v. Bosarge, 637 F.2d 994 (Sth Cir.
1981); Odom Construction Co. v. U.S. Dept. of Labor, 622 F.2d 110
(Sth Cir. 1980); Smith v. Eastern Seaboard Piledriving, Inc., 604 F.2d
789 (2nd Cir. 1979); Ramos v. Universal Dredging Corp., 653 F.2d 1353
(9th Cir. 1981); Ward v. Director, OWCP, 684 F.2d 114 (Sth Cir.
1982); Trotti & Thompson v. Crawford, 631 F.2d 1214 (2nd Cir. 1980);
Weyerhauser Co. v. Gilmore, supra.
OO eee eer are a hetes ef
297, 315-16 (1983); Baltimore & Phil. Steamboat Co. v.
Norton, 284 U.S. 408, 414 (1932).
As we saw earlier, the decision to abandon Weyerhauser also
snuffs a coverage beacon that had shone steadily since 1975, and
leaves the sweep of LHWCA coverage out of phase with that of
general admiralty jurisdiction. See Executive Jet Aviation, Inc. v.
City of Cleveland, Ohio, supra. Does this mean that the courts of
appeal must rewrite almost fifteen years’ worth of coverage
jurisprudence? Only the Supreme Court can answer that impor-
tant federal question. Clearly, if there really has been a sudden,
restrictive shift from the “expansive view” traditionally accorded
the Act, this Court should say so specifically under Supreme
Court Rule 17(c).
The decision below also creates a conflict among the circuits.
Though the Ninth Circuit has abandoned Weyerhauser, the Fifth
Circuit and the Eleventh Circuit still consider it good law. The
Eleventh Circuit decision on point is Sanders v. Alabama Dry
Dock & Shipbuilding Co., 841 F.2d 1085 (11th Cir., 1988). Like
the decision below, Sanders was decided after Herb’s Welding.
But, unlike the decision below, Sanders refused to restrict the
phrase “maritime employment” to those trades generally enumer-
ated on the face of the statute. Jd, 841 F.2d at 1088. It
interpreted that phrase under the progeny of Weyerhauser. Id.,
citing Odom Const. Co. v. U.S. Dept. of Labor, supra.'' The
decision below, however, “decline[d] to accord precedential
value to the Sanders decision.” Appendix A, p. A-12, fn. 10. This
created a conflict among the circuits under Supreme Court Rule
17(a).
The Fifth Circuit compounded that conflict last March 7 when
it handed down its opinion in Union Texas Petroleum v. PLT
Engineering, Inc., 895 F.2d 1043 (Sth Cir. 1990). Like Sanders,
Texas Petroleum stood by the Weyerhauser coverage test not-
withstanding Herb's Welding. To quote the Fifth Circuit:
“As always, the lessons of prior cases must be applied in
deciding new cases that arise under different statutes. Under
'' See footnote 10 supra.
6A titan ene bie are uw
the Longshore and Harbor Workers’ Compensation Act
(LHWCA), 33 U.S.C. §§ 901-950, coverage may extend
beyond admiralty’s boundaries. However, the threshold ques-
tion under... LHWCA is: does the dispute arise out of
traditional maritime activity? Thus, while the LHWCA was
not intended to ‘cover all those who breathe salt air,” neither
was [it] intended to exclude them all. See Herb’s Welding,
Inc. v. Gray, [supra, 470 U.S. at 414].” Id., 895 F.2d at
1049, fn. 9 emphasis added].
The Fifth Circuit’s position also conflicts with the decision below.
We respectfully urge the Court to resolve this conflict under Rule
17(a).
II. CERTIORARI 1S REQUIRED TO ESTABLISH
WHETHER LHWCA COVERAGE MUST NOW BE
MEASURED BY A “RESTRICTIVE STANDARD”
WHICH IS FAR NARROWER THAN THAT TRADI-
TIONALLY ACCORDED THE ADMIRALTY
As we saw earlier, the courts have been riddling with Long-
shore coverage since the statute was enacted in 1927. See Gilmore
& Black, supra, 408-23. A respected commentator has described
their early efforts as “one of the most depressing branches of
federal jurisprudence”. IJd., 420. Well-meaning but imprecise
amendments in 1972 (Pub. L. 92-576) and 1984 (Pub. L. 98-
426) did little to solve that conundrum. At best, they may be said
only to have exchanged the old puzzle of “twilight zones” and
“maritime but local” exceptions for the modern perplex of “situs”
and “status”.
The story behind the Act’s amendments has been told well and
often elsewhere. See, e.g., Northeast Marine Terminal Co., Inc. v.
Caputo, supra, 432 U.S. at 256-73. It will suffice for our purposes
merely to note that they “changed what had been essentially only
a ‘situs’? test of eligibility for compensation to one looking to
both the ‘situs’ of the injury and the ‘status’ of the injured.” /d.,
'? 1.e., whether the accident occurred on navigable waters seaward of
the so-called “Jensen line”. Southern Pacific Co. v. Jensen, 244 U.S. 205
(1917); Nacriema Operating Co. v. Johnson, 396 U.S. 212 (1969).
10
432 U.S. at 264-65. This, of course, is the double-barrelled
approach which Justice Kennedy once termed “difficult to re-
solve.” Brady-Hamilton Stevedore Co. v. Herron, supra, 568 F.2d
at 140. Since Coloma was injured on a covered pier, our difficul-
ties concern only the question of status.
Status is the occupational component of LHWCA coverage,
and queries whether the claimant is a “maritime employee”. “The
question is made difficult by the failure of Congress to define the
relevant terms. . . in either the text of the Act or its legislative
history.'? Northeast Marine Terminal Co., Inc. v. Caputo, supra,
432 USS. at 265. The appellate confusion which grew out of this
legislative failure has required Supreme Court clarification on no
fewer than six occasions over the last thirteen years.'* That’s
because Congress, and hence the Court, tried to solve the prob-
lem on a piecemeal basis. They tried to define “maritime employ-
ment” through specific example rather than general description. '°
But, just like the proverbial elephant which, when approached
from different directions in a fog, seems either a tree, a wall, or a
rope, the ill-lit Longshore Act presents a different face to almost
'> As Professors Gilmore and Black complained: “The Reports do not
read as if they have been divinely inspired. As essays in statutory
construction, they do not commend themselves.” Gilmore & Black,
supra, 430.”
'* Those six cases include: Northeast Marine Terminal Company, Inc.
v. Caputo, supra; P.C. Pfeiffer Company, Inc. v. Ford, 444 U.S. 69
(1979); Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715 (1980): Director,
OWCP v. Perini North River Associates, supra; Herb's Welding, Inc. v.
Gray, supra; and Chesapeake and Ohio Ry. Co. v. Schwalb, ___. U.S.
—_—, 110 S.Ct. 381 (1989).
'S The uninspired Committee Reports, for example, merely state that
the Act was intended to cover “longshoremen, harbor workers, ship
repairmen, shipbuilders, shipbreakers and other employees engaged in
maritime employment.” H.R. Rep. No. 92-1441, 92d Cong., 2d Sess.,
reprinted in 1972 U.S. Code Cong. & Admin. News, 4708. This, in turn,
was the very report which this Court looked to perforce for the rationale
of its 5-4 opinion in Herb’s Welding (supra, 70 U.S. at 423-24), to take
just one example.
Mk NN NI ge A
1]
everyone on the waterfront. That’s why the status question has
remained so elusive.
Of the six Supreme Court coverage decisions since 1972, only
one took a far-seeing, non-piecemeal approach—Director, OWCP
v. Perini North River Assoc., supra. Perini stepped back from the
myopic riddle of “maritime employment”, and held “that when a
worker is injured on the actual navigable waters in the course of
his employment on those waters, he satisfied the status require-
ment in Section 2(3), and is covered under the LHWCA” no
matter what his job was at the time. Jd., 459 U.S. at 324. This
holding was based on the sweeping conclusion that “Congress was
concerned with injuries on land, and assumed that injuries occur-
ring on the actual navigable waters were covered, and would
remain covered” under the modern amendments. /d., 459 U.S. at
319.
Perini put an end to a long debate. Unlike the still-confusing
situation ashore, there has never been need for another Supreme
Court opinion clarifying coverage on navigable waters. Perini gave
courts and counsel a star to steer by. The apparently endless
round of shoreside coverage questions shows only that
dockworkers like Ceferino Coloma need a similar case to shine
over them. As we saw at the outset, this Court hung just such a
shining rule over the admiralty when it handed down Executive
Jet. And that, in turn, was the rule that Weyerhauser steered by.
Weyerhauser was the first appellate opinion to consider the
LHWCA’s ill-defined “status” requirement. 528 F.2d at 959.
After examining the Committee Reports, the statute, the amend-
ments, and their place and purpose under the larger firmament of
maritime law, Weyerhauser concluded that “[t]he 1972-amended
prerequisite of ‘maritime employment’ is a clearly expressed
congressional perpetuation of the essential element of admiralty
jurisdiction over the employee.” Jd., 528 F.2d at 961. It then
erected a long-standing test:
“We hold that for an injured employee to be eligible for
federal compensation under LHCA, his own work and em-
ployment, distinguished from his employer’s diversified oper-
ations, including maritime, must have a realistically
i 12
significant relationship to ‘traditional maritime activity in-
volving navigation and commerce on navigable waters,’ with
the further condition that the injury-producing disability
occurred on navigable waters or adjoining areas as defined in
Section 903.” Id., quoting Executive Jet Aviation, Inc. v. City
of Cleveland, Ohio, supra.
We respectfully submit that the decision below not only made a
grave error, but doomed the courts and counsel to still another
round of obscure coverage cases, when it dismantled
Weyerhauser, and denied Coloma coverage. That’s why we have
petitioned this-Court for a writ of certiorari. The Act needs
another Perini.
Ill. CERTIORARI IS FINALLY REQUIRED TO CLARIFY
WHETHER LONGSHOREMEN, SHIP REPAIRMEN,
SHIPBUILDERS AND SHIPBREAKERS COMPRISE
ONLY “PART OF THE LARGER GROUP OF [MARI-
TIME EMPLOYEES],” AS THIS COURT HELD IN
P.C. PFEIFFER, OR WHETHER CONGRESS IN-
TENDED TO EXCLUDE ALL THOSE “NOT EN-
GAGED IN LOADING, UNLOADING, REPAIRING OR
BUILDING A VESSEL”, AS THE SUPREME COURT
RULED IN HERB’S WELDING
Back in 1979, this Court explained that longshoremen,'® ship
repairmen, shipbuilders and shipbreakers comprise only “a part of
'® The fact is that it’s become a misnomer to call this the “Longshore
Act”. Back in 1962, before containerization and the °72 Amendments,
“The Annual Report of the Maritime Administration (““MARAD”)
could count over 70,000 American longshoremen. MARAD (1962) 19.
By 1985, that number had dwindled to 29,759. MARAD (1985) 37. Yet
annual LHWCA filings rose dramatically over the same period of time.
U.S. Dept. of Labor, Employment Standards Administration, LHWCA:
Annual Report on Administration of the Act (1986) 28. In short,
“longshore workers” are playing an ever smaller role under the Act
which bears their name. If the Supreme Court has nonetheless “said
that the ‘maritime employment’ requirement is ‘an occupational test
that focuses on loading and unloading’” (Herb's Welding, supra, 470
U.S. at 424), it’s probably because it hasn’t had occasion to consider
ee
13
the larger group of activities that make up ‘maritime employ-
ment’ ”. P.C. Pfeiffer Co., Inc. v. Ford, supra, 444 U.S. at 77, n. 7.
In 1985, however, it observed that “[t]he Amendments were not
meant ‘to cover employees who are not engaged in loading,
unloading, repairing, or building a vessel”. Herb's Welding, Inc. v.
Gray, supra, 470 U.S. at 424. This apparent conflict has created a
great deal of confusion among the lower courts. For one thing,
Herb’s Welding makes no mention of “shipbreakers”, though
they’re specifically enumerated on the face of the Act. 33 U.S.C.
§ 902(3). For another, and far more importantly, it appears to
limit “maritime employment” to four narrow categories. But that
doesn’t fit the bustling reality of the modern waterfront.
“The almost infinite range of the conditions of waterfront
employment has been detailed in thousands of cases.” Gilmore &
Black, supra, 430. Hundreds of those cases were decided after
Weyerhauser. But just as the Ninth Circuit felt constrained to
rewrite Weyerhauser, contradictory dicta from Herb’s Welding
could compel the courts of appeal to rewrite Weyerhauser’s
progeny.
Under the old rule:
“While Section 902(3) specifically grants coverage to long-
shoremen, harbor workers, shipbuilders, etc., the Act encom-
passes occupations beyond those specifically listed. Thus we
look to the character of the work, whether the work is
maritime, that is, whether the employee's activities had a
realistically significant relationship to traditional maritime
activity.” Miller v. Central Dispatch, Inc., supra, 673 F.2d at
780-81 [citing Weyerhauser v. Gilmore, supra}. See also
many covered “harbor worker” claims since the “status” requirement
was first enacted. Of the six coverage cases which have been accepted
for review since 1972, Caputo, P.C. Pfeiffer, and Schwalb all involved
“longshore workers”, while Herb’s Welding concerned an oil worker
injured on a stationary platform more than a mile out to sea. To be sure,
Perini covered a harbor-working construction foreman, but only because
he was injured afloat, and Sunship did no more, coverage-wise, than
afford five injured shipyard employees the right to elect benefits under
the state system. In sum, this case affords the Supreme Court its first
opportunity to consider the coverage of a harbor worker injured ashore.
14
Hullinghorst Industries, Inc. v. Carroll, supra, 650 F.2d at
755; Jacksonville Shipyard, Inc. v. Perdue, supra, 539 F.2d at
540.
Over the last fifteen years, there have been a great many cases
decided under that rule. The decision below has repealed it. We
question whether it’s really necessary to rewrite fifteen years’
worth of Longshore law. Only this Court can answer that
question.
WHEREFORE we respectfully urge the Supreme Court to
grant our petition for certiorari.
Respectfully submitted,
JOHN R. HILLSMAN
McGuINN, HILLSMAN & PALEFSKY
451 Jackson Street
San Francisco, California 94111
(415) 421-9292
Attorneys for Petitioner
24 April 1990
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Appendix A
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 88-7445
CEFERINO COLOMA,
Petitioner,
= V.
DIRECTOR, OFFICE OF WORKERS
COMPENSATION PROGRAMS,
Respondent.
OPINION
Petition for Review of an Order of the Benefits Review
Board of the United States Department of Labor
Argued and Submitted
December 15, 1989 — San Francisco, California
Filed February 23, 1990
Before: Joseph T. Sneed, Procter Hug, Jr. and
_ Edward Leavy, Circuit Judges.
Opinion by Judge Sneed
SUMMARY
Workers’ Compensation
Affirming the Benefits Review Board’s affirmation of the ad-
ministrative law judge’s denial of benefits under the Longshore
and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901-50
(1982 & Supp. V 1987), the court held that a shipping company’s
messman and cook is not engaged in maritime employment under
§ 2(a) of the 1972 amendments to the Act.
eee
A-2
Appellant Ceferino Coloma was employed as a messman and
cook by the Chevron Shipping Company from 1974 to 1982.
Between 1977 and 1982, he worked in the Seagull Inn, the
Chevron crews mess on the Richmond Longwharf. Chevron
closed the Inn in 1982, and Coloma was transferred to a seagoing
tanker where he continued to prepare meals. In 1984, he filed a
claim seeking benefits for permanent disability under the
LHWCA. At a formal hearing before an administrative law
- judge, the parties stipulated that Coloma had developed a benign
keratoma with lichnoid dermatitis on both hands, that this illness
arose out of and in the course of his employment with Chevron,
and that it resulted from repeated exposure to the harsh cleansing
chemicals used by the company. It was also stipulated that
Coloma’s exposure to these chemicals occurred on a maritime
situs and that the occupational illness had permanently disabled
Coloma, preventing him from engaging in his accustomed trade.
The ALJ denied benefits on the basis that, as a messman and
cook, Coloma had not been a maritime employee under 33
U.S.C. § 902(3) as amended in 1972. The BRB affirmed, and
Coloma appealed.
[1] With the 1972 amendments to the LHWCA, Congress
inserted a status requirement which was, for the first time, clearly
separate and distinct from the situs requirement. After this, the
Act required that eligible workers be engaged in maritime em-
ployment. [2] In Herb’s Welding, Inc. v. Gray, 470 U.S. 414
(1985), the Supreme Court stated that it had never read mari-
time employment to extend so far beyond those actually involved
in moving cargo between ship and land transportation.
[3] Coloma argued that the occupational test articulated in
Herb’s Welding is dicta and not binding authority in this case.
The court disagreed. The Supreme Court had to define maritime
employment in order to decide Herb’s Welding. [4] In the
alternative, Coloma argued that he is covered even if the Herb’s
Welding standard is applied, contending that his functions were
essential to the longshoring operations of Chevron because the
presence of the Seagull Inn permitted those crew members
performing the loading and unloading duties to remain aboard the
vessel during loading and unloading operations. This is not the
case. The Seagull Inn closed in 1982, and Chevron has not been
— A-3
forced to shut down its operations. Those crew members appar-
ently now use a cafeteria located about a mile away or are fed by
messmen who remain aboard the tanker. Coloma’s functions were
not essential to the loading and unloading process.
COUNSEL
John R. Hillsman, McGuinn, Hillsman & Palefsky, San Fran-
cisco, California, for the petitioner.
Mark H. Tune, Harbinson, Carlson & Tune, San Francisco,
California, for the intervenor.
No appearance by counsel for respondent.
OPINION
SNEED, Circuit Judge:
Ceferino Coloma seeks benefits under the Longshore and
Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C.
§§ 901-50 (1982 & Supp. V 1987) for permanent disability
sustained in the course of his employment with the Chevron
Shipping Company (Chevron). Administrative Law Judge
(ALJ) Karst denied benefits on the basis that Coloma’s occupa-
tion of messmen and ccok was not “maritime employment” under
Section 2(a) of the 1972 amendments to the Act. The Benefits
Review Board (BRB) affirmed the ALJ’s decision. We affirm.
I.
FACTS AND PROCEEDINGS BELOW
Ceferino Coloma was employed as a messman and cook by the
Chevron Shipping Company from 1974 to 1982. Coloma alleged
that, as of about 1978, his hands hurt when wet. Coloma filed a
claim on June 20, 1984, seeking benefits for permanent disability
under the LHWCA. At a formal hearing before ALJ Karst, the
parties stipulated that Coloma had developed a benign keratoma
with lichnoid dermatitis on both hands, that this illness arose out
of and in the course of Coloma’s employment with Chevron, and
that it resulted from repeated exposure to the harsh cleansing
~ eee 2? eee . | Pee ~ Le —— eal” ¢ = a a. 4 —_— Es lh ae
&. aE i oe - ne - > —
A-4
chemicals used by the company. The parties stipulated further
that Coloma’s exposure to these chemicals occurred on a “mari-
time situs,” and that the occupational illness had permanently
disabled Coloma, preventing him from engaging in his accus-
tomed trade.
In his May 21, 1986 decision and order, the ALJ accepted all
of the above as true and determined that Coloma’s claim should
-be considered pursuant to the 1972 Amendments to the
LHWCA. See Pub. L. No. 92-576, 86 Stat. 1251, 1251 (1972).
The sole issue in dispute is whether Coloma’s occupation as
messman and cook constitutes “maritime employment” under
Section 2(a) of the 1972 Amendments.? ALJ Karst, in his
May 21, 1986 opinion, found that:
Claimant is a 56-year-old former messman/cook. He
served 20 years in that capacity with the U.S. Navy and five
more with Chevron. Between 1977 and 1982, he worked in
the “Seagull Inn”, the Chevron “crews mess” on the Rich-
mond Longwharf. Undisputed testimony . . . establishes that
the primary function of the Seagull Inn was to provide meals
to the officers and seamen of visiting Chevron tankers while
their shipboard stewards took shore leave. The Seagull Inn
also served the crews of Chevron’s “Inland Fleet”, the harbor
tugs and barges ordinarily berthed at the Richmond
' Although 33 U.S.C. § 902(c) was amended again in 1984, see Pub.
L. No. 98-426, 98 Stat. 1639 (1984), the 1984 Amendments do not
apply here. The ALJ-concluded that Coloma’s claim arose on July 28,
1982, when a physician explained to Coloma the relationship between
his illness and his occupational chemical exposure. Therefore, his claim
arose prior to the effective date of the 1984 Amendments.
? Section 2(1) of the 1972 Amendments defines a maritime employee
as “any person engaged in maritime employment, including any long-
shoreman or other person engaged in longshoring operations, and any
harbor worker including a ship repairman, shipbuilder, and shipbreaker,
but such term does not include a master or member of a crew of any
vessel, or any person engaged by the master to load or unload or repair
any small vessel under eighteen tons net.” Pub. L. No. 92-576, § 2(a),
86 Stat. 1251, 1251 (1972).
Longwharf, together with occasional visitors like Coast
Guard officers, customs officials, harbor pilots, and outside
contractors. Though these later, occasional visitors were
charged for their meals, the seamen from Chevron’s seagoing
and inland fleets dined for free “in lieu of a meal allowance”.
Moreover, since the Seagull Inn is located on the Longwharf
itself, within the gates of the Richmond refinery, it was never
open to the general public.
Undisputed testimony from the claimant and former
Seagull Inn cook Miguel Presa establishes that Chevron
closed the Inn in 1982, but transferred most of its employees
to shipboard positions on tankers owned by respondent’s
corporate affiliate, Chevron, U.S.A., Inc., or “CUSA”.
Claimant himself was transferred to the sea-going CUSA
tanker HILYER BROWN on July 14, 1982. Adam, Presa,
and claimant all agree that, whether he worked ashore at the
“Seagull Inn” or afloat on a CUSA tanker, claimant’s duties
were always the same, preparing and serving meals to hungry
seamen.
The ALJ denied benefits on the basis that, as a messman and
cook, Coloma had not been a “maritime employee” under 33
U.S.C. § 902(3) as amended in 1972. Relying on the Supreme
Court’s opinion in Herb’s Welding, Inc. v. Gray, 470 U.S. 414
(1985), the ALJ stated that:
Claimant’s tasks of cleaning tables, washing dishes and
cooking were neither “inherently maritime” nor were they
significantly different from the tasks that are performed in
dining halls, cafeterias and restaurants on land... . The evi-
dence does not establish that claimant’s employment in-
volved any aspect of the process of loading, unloading,
repairing or building vessels. Because the “Seagull Inn”
principally fed seamen and not longshoremen, claimant’s
work was in aid of Chevron’s seafaring and navigational
activities, and not in aid of any longshoring functions per-
formed on the wharf.
(Emphasis added.)
A-6
Coloma appealed to the Department of Labor’s Benefits Re-
view Board. In its August 12, 1988, review of the ALJ’s decision,
the BRB affirmed, also relying on Herb's Welding.
On appeal to this court, appellant asserts that the ALJ and
BRB erred by applying the test articulated in Herb's Welding. He
argues that the language from Herb’s Welding adopted below is
merely dicta, and need not be followed by this court. He entreats
_‘this court to apply instead the standard it articulated in Weyer-
haeuser Co. v. Gilmore, 528 F.2d 957 (9th Cir. 1975), cert.
denied, 429 U.S. 868 (1976). In Weyerhaeuser, we held that the
occupational. test under section 902(3) requires that the em-
ployee’s job “have a realistically significant relationship to ‘tradi-
tional maritime activity....’” Jd. at $61 (citation omitted).
Appellant asserts that there exists a “long and unbroken line” of
cases applying Weyerhaeuser, and that we should not disturb such
firmly entrenched precedent. Applying the Weyerhaeuser stan-
dard, he contends, he is eligible for benefits as a maritime
employee.
In the alternative, appellant argues that he also meets the
standard articulated by the Supreme Court. He argues that his
job was “essential” to the overall loading and unloading process
because Chevron’s longshoring activities could not continue unin-
terrupted without his services. He points further to the result in
Chesapeake & Ohio Ry. Co. v. Schwalb, 110 S. Ct. 381, 385
(1989), where, he contends, the Supreme Court held that a
“janitor” is a maritime employee within the meaning of the
statute. He argues that if a “janitor” is covered, then a mess-
man/cook clearly is covered.
This court has jurisdiction of this matter pursuant to 33 U.S.C.
§ 921(c).
II.
STANDARD OF REVIEW
In reviewing the decision of the ALJ under 33 U.S.C.
§ 921(b), the “BRB must accept the ALJ’s findings unless they
are contrary to the law, irrational, or unsupported by substantial
A-7
evidence.” Todd Shipyards Corp. v. Black, 717 F.2d 1280, 1284
(9th Cir. 1983), cert. denied, 466 U.S. 937 (1984). This court of
appeals “scrutinizes [BRB] decisions for errors of law and for
adherence to the statutory standard” described above. Bumble
Bee Seafoods v. Director, Office of Workers’ Compensation Pro-
grams, 629 F.2d 1327, 1329 (9th Cir. 1980). The BRB is not a
policymaking body; therefore, “its interpretations of the LHWCA
are not entitled to any special deference.” Todd Shipyards, 717
F.2d at 1284.
III.
DISCUSSION
A. The Situs Requirement
Prior to the 1972 Amendments, the LHWCA provided com-
pensation for the disability or death of an employee only where
the employee’s injury occurred on the “navigable waters of the
United States (including any dry dock)... .” Act of Mar. 4, 1927,
Pub. L. No. 69-803 § 3(a), 44 Stat. 1424, 1426. With the
Amendments, Congress extended the covered situs, which had
previously “stopped at the water’s edge.” Northeast Marine Ter-
minal Co. v. Caputo, 432 U.S. 249, 259 (1977). The amended
Act covered also “any adjoining pier, wharf, dry dock, terminal,
building way, marine railway, or other adjoining area customarily
used by an employer in loading, unloading, repairing, or building a
vessel.” Pub. L. No. 92-576, § 2(c), 86 Stat. 1251, 1251 (1972)
(amending section 3(a) of the 1927 Act). This was the “situs”
requirement.
B. The Status Requirement
[1] The 1972 Amendments also “describe[d] affirmatively
the class of workers Congress desired to compensate.”’ Northeast
> Prior to the 1972 Amendments, the LHWCA described a class of
covered workers by exclusions; “The term ‘employee’ does not include
the master or member of a crew of any vessel, nor any person engaged by
the master to load or unload or repair any small vessel under eighteen
tons net.” § 2(3), 44 Stat. at 1424, 1425 (1927).
A-8
Marine, 432 U.S. at 264. That is, Congress inserted a status
requirement, which was, for the first time, clearly separate and
distinct from the situs requirement. P.C. Pfeiffer Co. v. Ford, 444
U.S. 69, 79 (1979). After the 1972 Amendments, the Act
required that eligible workers be “engaged in maritime employ-
ment, including any longshoreman or other person engaged in
longshoring operations, and any harborworker including a ship
_ repairman, shipbuilder, and shipbreaker ...” § 2(a), 86 Stat. at
1251 (emphasis added). Employees clearly must meet both the
status and situs requirements in order to be eligible for coverage.
See Chesapeake & Ohio Ry. Co. v. Schwalb, 110 S. Ct. 381, 384-
85 (1989); Herb’s Welding, Inc. v. Gray, 470 U.S. 414, 423-24
(1985); P.C. Pfeiffer, 444 U.S. at 79. In the instant case, the
parties do not dispute that Coloma meets the situs requirement.
The dispute, rather, concerns whether he meets the status
. requirement.
Congress did not explicitly define terms such as “maritime
employment” and “longshoremen” appearing in 33 U.S.C.
902(3). See Northeast Marine, 432 U.S. at 265. Relying on the
Senate and House Reports, the Supreme Court concluded that
Congress intended “to cover those workers involved in the essen-
tial elements of unloading a vessel — taking cargo out of the hold,
moving it away from the ship’s side, and carrying it immediately
to a storage or holding area.” Jd. at 267. The Court emphasized
further “that persons who are on the situs but are not engaged in
the overall process of loading and unloading vessels are not
covered.” Id.
[2] In Herb’s Welding, the Supreme Court firmly restated the
applicable status test: ;
[In enacting the maritime employment requirement, }
Congress did not seek to cover all those who breathe salt air.
Its purpose was to cover those workers on the situs who are
involved in the essential elements of loading and unloading;
it is “clear that persons who are on the situs but not engaged
in the overall process of loading or unloading vessels are not
covered.” While “maritime employment” is not limited to
the occupations specifically mentioned in § 2(3), neither can
it be read to eliminate any requirement of a connection with
A-9
the loading or construction of ships.” As we have said, the
“maritime employment” requirement is “an occupational
test that focuses on loading and unloading.” The Amend-
ments were not meant “to cover employees who are not
engaged in loading, unloading, repairing, or building a vessel,
just because they are injured in an area adjoining navigable
waters used for such activity.” We have never read ‘‘mari-
time employment” to extend so far beyond those actually
involved in moving cargo between ship and land
transportation.
470 U.S. at 423-24 (emphasis added; citations and footnote
omitted). And, if there were any doubt about the Supreme
Court’s view, that doubt was resolved by its recent opinion in
Chesapeake & Ohio Ry. Co.‘
[3] Appellant argues that the occupational test articulated in
Herb’s Welding is dicta, and therefore is not binding authority in
the instant case. We disagree.° The Court had to define maritime
“[I]t has been clearly decided that, aside from the [occupations
specified in the statute], land-based activity occurring within the § 903
situs will be deemed maritime only if it is an integral or essential part of
loading or unloading a vessel.
...[T]he maritime employment requirement as applied to land-
based work cther than longshoring and the other occupations
named in § 902(3) is an occupational test focusing on loading and
unloading. Those not involved in those functions do not have the
benefit of the Act.
110 S. Ct. 384-85.
* There is general agreement in case law and legal encyclopedias that
obiter dicta or dicta is “ ‘language unnecessary to a decision....’”
Lawson v. United States, 176 F.2d 49, 51 (D.C. Cir. 1949), cert. denied,
339 U.S. 934 (1950); 20 Am. Jur. 2d Courts § 74 (1965); 21 C.J 5S.
Courts § 190 (1940). See also Sarnoff v. American Home Prod. Corp.,
798 F.2d 1075, 1084 (7th Cir. 1986) (“A dictum is a statement in a
judicial opinion that could have been deleted without seriously impairing
the analytical foundations of the holding. ...”).
A-10
employment in order to decide Herb’s Welding because the
question there was whether the occupational duties of a welder
injured while working on a fixed platform in Louisiana waters
constituted maritime employment under the Act.°
Appellant asserted in oral argument that there was “no mention
of the significant relationship test in Herb’s Welding,” and thsu
argues that the Supreme Court did not intend Herb’s Welding to
' reverse the law of circuits applying Weyerhaeuser-type standards.
Appellant is wrong. In Herb’s Welding, the Supreme Court
reversed the Fifth Circuit, which had applied the Weyerhaeuser
test, as adopted in a 1980 Fifth Circuit case.’ In so doing, the
Court stated that “[t]he Fifth’s Circuit’s expansive view of
maritime employment is ... inconsistent with our prior cases
under the 1972 Amendments to the LHWCA.” 470 U:S. at 423.
It then proceeded to substitute its “essential elements of loading
and unloading” test for the Weyerhaeuser “significant relation-
ship” test. In Herb's Welding, the Supreme Court went beyond
® The Court concluded that:
{Gray’s} work had nothing to do with the loading or unloading
process, nor is there any indication that he was even employed in
the maintenance of equipment used in such tasks. . .. He built and
maintained pipelines and the platforms themselves. There is noth-
ing inherently maritime about those tasks. They are also performed
on land, and their nature is not significantly altered by the maritime
environment... .
... 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 automat-
ically satisfies the status test.
470 US. at 425 (footnote omitted).
’ The Fifth Circuit, in Herb's Welding, Inc. v. Gray, 703 F.2d 176, 179
(Sth Cir. 1983), relied on the test set forth in Odom Constr. Co. v.
United States Dep't of Labor, 622 F.2d 110, 113 (Sth Cir. 1980), cert.
denied, 450 U.S. 966 (1981). The Fifth Circuit panel in Herb’s Welding
read the Odom test as requiring employees to show that their employ-
ment had a “realistically significant relationship to traditional maritime
activity” in order to obtain coverage under Section 902(3). Jd.
A-11
merely rejecting the Fifth Circuit’s application of the “significant
relationship” test; it rejected the test itself. Furthermore, in
Chesapeake & Ohio Ry. Co., the Court explicitly granted certio-
rari to resolve the conflict between the position adopted by
Virginia Supreme Court, the lower court in that case, and several
federal circuits. 110 S. Ct. at 384. The Virginia Supreme Court
had adopted the “significant relationship test” whereas the cir-
cuits in conflict with it had adopted the “loading and unloading”
test. The Court clearly embraced the latter test, firmly rejecting
more expansive interpretations of the Act.
Appellant also asserted in oral argument that there exists a
“Jong and unbroken” line of decisions applying Weyerhaeuser.
This assertion also is plainly wrong. The long line of decisions was
broken following Herb's Welding. In the only Ninth Circuit
decision construing Section 903(2) since Herb’s Welding, this
court clearly deferred to the Supreme Court’s definition of mari-
time employment, thereby implicitly rejecting the Weyerhaeuser
“significant relationship” test. See Dorris v. Director, Office of
Workers’ Compensation Programs, 808 F.2d 1362, 1364 (9th Cir.
1987). Although there are only a few district and circuit court
cases applying Section 903)2) since Herb’s Welding, almost all
rely on Supreme Court doctrine in lieu of previously established
circuit law. See Bailey v. Global Marine, Inc., 714 F.Supp. 235,
240, (S.D. Tex. 1989) (citing to Herb's Welding test as sup-
planting Fifth Circuit standards); Clark v. Solomon Navigation,
Lid., 631 F.Supp. 1275, 1281-83 (S.D.N.Y. 1986) (applying
*In Dorris, we denied coverage to a claimant whose “regular duties
consisted of driving his truck onto the dock, where containers were
placed on the vehicle’s chassis, and driving to the consignee’s delivery
place. He also delivered containers from the consignee’s delivery place
to the harbor.” Dorris, 808 F.2d at 1364. We held that such functions
were not maritime, “when goods are unloaded from a ship and loaded
avcard another by other workers.” Id. at 1365 (emphasis added).
Although we did not cite explicitly to Herb’s Welding in Dorris, we
relied on its precedents, such as Northeast Marine and Pfeiffer, for our
emphasis on the test requiring involvement in loading and unloading of
ships, and did not rely on Weyerhaeuser or its progeny.
A-12
Herb’s Welding test in place in Second Circuit test),” but see
Sanders v. Alabama Dry Dock & Shipbuilding Co., F.2d 1085,
1088 (llth Cir. 1988) (applying a test similar to the Ninth
Circuit’s Weyerhaeuser test).'°
Appellant contends that the’ cases continue to define the phrase
“maritime employment” as a “general” and “catch-all” phrase.
This is not so. The cases interpreting Herb’s Welding have
' recognized the norrowness and specificity of the Supreme Court’s
test, and have “heed[ed] the signal of the Supreme Court” in
accepting this more restrictive standard. See, e.g., West v. Chev-
ron U.S.A., Inc., 615 F. Supp. 377, 381 (E.D. La. 1985).""
We need not reach the question of whether Coloma might have
met the standard articulated by the Ninth Circuit in Weyerhaeu-
* The Second Circuit’s standard was nearly identical to Weyerhaeuser.
See Fusco v. Perini N. River Assoc., 622 F.2d 1111, 1113 (2nd Cir
1980), cert. denied, 449 U.S. 1131 (1981).
'° The Eleventh Circuit opinion in Sanders provides the lone excep-
tion among post-Herb’s Welding cases to the general rule that Supreme
Couri doctrine interpreting Section 903(2) replaces circuit doctrine if
the two are inconsistent. Yet, the Eleventh Circuit has fluctuated in its
interpretation of Section 903(2). Although its only post-Herb's Welding
case, Sanders, relies on a Fifth Circuit case, Odom Constr. Co v. United
States Dep't of Labor, 622 F.2d 110, 113 (Sth Cir. 1980), cert. denied,
450 U.S. 966 (1981), which articulates the “significant relationship”
test, a pre-Herb's Welding Eleventh Circuit case, Browning v. B.F.
Diamond Constr. Co. 676 F.2d 547, 549-50 (llth Cir. 1982),cert.
denied, 459 U.S. 1170 (1983), relies on the “loading and unloading” test
set forth by the Supreme Court in Northeast Marine. In deciding
Sanders, the Eleventh Circuit therefore appears to have ignored not only
Supreme Court doctrine, but also its own precedent. Thus, in light of
this confusion as to precisely what the Eleventh Circuit standard is, we
decline to accord precedential value to the Sanders decision.
'' In West, the district court examined generally concepts of what is
maritime, for purposes other than interpreting the LHWCA. The court
referred to Herb's Welding as revealing that the Supreme Court has
taken a “restrictive view” of what is maritime. 615 F. Supp. at 381. It
concluded further that the Supreme Court views “expansive notions” of
what is maritime “with disfavor.” Jd.
A-13
ser. To apply that test, as appellant urges us to do, would be to
ignore the clear and direct mandate from the Supreme Court. Our
duty of obedience to the Supreme Court is not conditioned on an
explicit reversal by name of prior inconsistent Ninth Circuit
authority.
[4] In the alternative, appellant urges that he is covered even if
the Herb's Welding and Chesapeake standard is applied. He
contends that his functions were “essential” to the longshoring
operations of Chevron because the presence of the Seagull Inn
permitted those crew members performing the loading and un-
loading duties to remain aboard the vessel during loading and
unloading operations. That is not the case. The Seagull Inn closed
in 1982, and Chevron has not been forced to shut down its
operations. Those crew members apparently now use a cafeteria
located about a mile away or are fed by messmen who remain
aboard the tanker. Coloma’s functions were not essential.
Finally, appellant contends that the result in Chesapeake Ohio
Ry. Co. provides support for his claim. Specifically, he argues that
the claimants in Chesapeake Ohio Ry. Co. were janitors whose
occupational duties were no more essential to loading and unload-
ing than those of a messman/cook. Appellant’s argument misin-
terprets the facts of that case. Two of the claimants inChesapeake
Ohio Ry. Co. were responsible for cleaning spilled coal from
rollers and conveyor belts that are part of the overall mechanical
loading system at a location where coal is loaded from railway
cars to a ship on navigable waters. 110 S. Ct. at 383. The third
claimant maintained and repaired loading equipment. The Su-
preme Court held that:
[E]mployees who are injured while maintaining or repairing
equipment essential to the loading or unloading process are
covered by the Act. Such employees are engaged in activity
that is an integral part of and essential to those overall
processes. ... 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.
A-14
... The determinative consideration is that the ship loading
process could not continue unless the [functions served by
the claimants were performed].
Id. at 385-86.
This case is easily distinguishable. If the equipment repaired or
maintained by the claimants in Chesapeake Ohio Ry. Co. stopped
. functioning adequately, the loading and unloading process could
not continue. No such dependence exists in this case. After the
Seagull Inn closed, Chevron’s longshoring operation continued.
Coloma’s duties at the Seagull Inn simply were not essential to
the loading and unloading process.
Therefore, we hold that, under the Supreme Court’s binding
interpretation of Section 903(2) of the 1972 Amendments,
Coloma was not engaged in “maritime employment.”
We affirm the August 12, 1988 decision of BRB and deny
benefits under the LHWCA.
AFFIRM.
A-15
Appendix B
U.S. DEPARTMENT OF LABOR
Benefits Review Board
1111 20th St., N.W.
Washington, D.C. 20036
BRB Nos. 86-2084 and 86-2084A
CEFERINO COLOMA
Claimant-Petitioner
V.
CHEVRON SHIPPING COMPANY
Self-Insured Employer
ORDER
FILED AS PART OF THE RECORD OCT. 27, 1988
Linda M. Markies
Clerk of the Board
Benefit Review Board
Claimant moves for reconsideration of the Board’s Decision
and Order in Coloma v. Chevron Shipping Co. BRB Nos.
86-2084 and 86-2084A (August 12, 1988), affirming the Decision
and Order (85-LHCA-1981) of Administrative Law Judge Alex-
ander Karst denying benefits based on his conclusion that claim-
ant’s employment as a messman/cook did not constitute maritime
employment within the meaning of Section 2(3) of the Long-
shore and Harbor Workers’ Compensation Act. 33 U.S.C.
§ 902(3). Claimant argues that the Board overlooked (1) the
administrative law judge’s express conclusion that “claimant’s
work was in aid of Chevron’s seafaring and navigational activi-
ties”; and (2) United States Coast Guard regulation 46 C.F.R.
§ 35.35 which requires that “a sufficient number of the crew shall
be on duty to perform cargo transfer operations.”
Claimant first contends that his work as a messman at the
Seagull Inn was directly linked to the loading and unloading of
A-16
ships based on the U.S. Coast Guard regulation providing that
Chevron may give its tankermen shore leave as long as “a
sufficient number of the crew shall be on duty to perform cargo
transfer operations.” 46 C.F.R. § 35.35-1(a). According to claim-
ant, Chevron would not have been able to keep a sufficient
number of the crew on duty to load and unload cargo for more
than a few hours unless the crew was fed by the messmen at the
Seagull Inn. Therefore, claimant argues that his work as a
' messman is directly linked to the loading and unloading process.
We reject claimant’s contention. The Supreme Court has clearly
stated that workders who are on the situs but not engaged in the
overall process of loading or unloading vessels are not covered
under the Act. Herb’s Welding, Inc. v. Gray, 470 U.S. 414, 105
S.Ct. 1421, 17 BRBS 78 (CRT) (1985); Northeast Marine
Terminal Co., Inc. v. Caputo, 432 U.S. 249, 6 BRBS 150 (1977).
In Herb's Welding, supra, the Supreme Court stated that employ-
ees who are not engaged in loading, unloading, repairing, or
building a vessel are not covered simply because they are injured
in an area adjoining navigable waters used for such activity. The
Court further stated, “We have never read ‘maritime employ-
ment’ to extend so far beyond those actually involved in moving
cargo between ship and land transportation.” Thus, because
claimant’s work as a messman/cook was so far attenuated from
employer’s cargo transfer operations, he was not engaged in
maritime employment for purposes of the Act.
Claimant next contends that the Board erred in concluding that
claimant’s work was not done in furtherance of traditional mari-
time activity because such a conclusion overlooks the administra-
tive law judge’s finding that “claimant’s work was in aid of
Chevron’s seafaring and navigational activities.” Decision and
Order at 5. We reject this contention. The administrative law
judge concluded that claimant’s duties as a messman/cook were
“neither inherently maritime nor significantly different from the
tasks performed in dining halls, cafeterias and restaurants on
land,” and had no connection with loading, unloading, repairing or
building vessels. In Herb’s Welding, supra, the Supreme Court
applied the same rationale and found that a welder on a fixed
offshore drilling platform whose duties included building and
maintaining platforms and pipelines was not a maritime employee
oS
A-17
because those tasks are also performed on land, and their nature is
not significantly altered by the maritime environment. Similarly,
claimant’s work as a messman at the Seagull Inn is not maritime
employment under the Act.
Accordingly, claimant’s Motion for Reconsideration is hereby
denied.
/s/_ ROY P. SMITH
Roy P. Smith, Acting Chief
Administrative Appeals Judge
/s/_ JAMES F. BROWN
James F. Brown
Administrative Appeals Judge
/s/_ NANCY S. DOLDER
Nancy S. Dolder
Administrative Appeals Judge
Dated this 27th day of
October 1988
A-18
Appendix C
U.S. DEPARTMENT OF LABOR
Benefits Review Board
1111 20th St., N.W.
Washington, D.C. 20036
BRB Nos. 86-2084 and 86-2084-A
CEFERINO COLOMA
Claimant-Petitioner
Cross-Respondent
v.
CHEVRON SHIPPING COMPANY
Self-Insured
Employer-Respondent
Cross-Petitioner
FILED AS PART OF THE RECORD
August 12, 1988
DECISION AND ORDER
Appeal of the Decision and Order and Order Denying Reconsid-
eration of Alexander Karst, Administrative Law Judge, United
States Department of Labor.
John R. Hillsman and Derek Jacobson (McGuinn, Hillsman &
Palefsky), San Francisco, California, for the claimant.
Mark H. Tune (Harbinson, Carlson & Tune), San Francisco,
California, for the self-insured employer.
Before: RAMSEY, Chief Administrative Appeals Judge,
BROWN and DOLDER, Administrative Appeals Judge.
PER CURIAM:
Claimant appeals and employer cross-appeals the Decision and
Order and Order Denying Reconsideration (85-LHCA-1981) of
Administrative Law Judge Alexander Karst denying benefits on a
claim filed pursuant to the provisions of the Longshore and
Harbor Workers’ Compensation Act, as amended, 22 U.S.C.
§ 901 et seg. (the Act). In reviewing this appeal, the Board must
A-19
affirm the determinations of the administrative law judge which
are supported by substantial evidence, are rational, and are in
accordance with law. 33 U.S.C. § 921(b) (3); O'Keeffe v. Smith,
Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965). The
Board heard oral argument on this case in San Francisco, Califor-
nia on July 15, 1988.
Claimant worked as a messman/cook for Chevron Shipping
Company (employer) from 1974 until 1982. Claimant suffered
from a cumulative occupational illness diagnosed as benign ker-
atoma with lichnoid dermatitis on both hands, which arose out of
his employment with Chevron due to repeated exposure to cleans-
ing chemicals. The parties stipulated, and the administrative law
judge agreed, that claimant was employed on a maritime situs;
claimant’s occupational illness has been permanent and untreat-
able since September 30, 1982; claimant’s illness permanently
disables him from his accustomed trade as a messman/cook; and
claimant gave Chevron timely notice of his occupational injury in
accordance with the provisions of 33 U.S.C. § 912. Employer
provided medical treatment and paid state workers’ compensation
to claimant through the date of the hearing.
The administrative law judge found that the claim was filed
within the two years statute of limitations set forth in the 1984
amended version of Section 13(b)(2), 33 U.S.C. § 913(b) (2)
(Supp. IV 1986), and was, therefore, not time-barred. The
administrative law judge concluded, however, that claimant was
not a maritime “employee” as defined in Section 2(3), 33 U.S.C.
§ 902(3), and accordingly he denied benefits. On appeal, claim-
ant contends that the administrative law judge erred in finding
that claimant’s employment as a messman/cook did not consti-
tute maritime employment within the meaning of Section 2(3) of
the Act. Employer responds, asserting that the administrative law
judge’s Decision and Order denying benefits should be affirmed.
In addition, employer appeals the administrative law judge’s
finding that the instant claim is not timed-barred.
Claimant began working for Chevron as a messman/cook in
September 1974. On January 23, 1975, claimant was assigned to
the “Seagull Inn,” the Chevron “crews’ mess” on the Richmond
Longwharf. Chevron’s local port superintendent, Charles Adam,
A-20
testified that the primary function of the Seagull Inn was to
provide meals to the officers and seamen of visiting Chevron
tankers while their ship stewards took shore leave. The Seagull
Inn also served the crews of Chevron’s “Inland Fleet,” the harbor
tugs and barges ordinarily berthed at the Richmond Longwharf,
along with occasional visitors such as Coast Guard officers,
customs officials, harbor pilots, and outside contractors. Although
these occasional visitors were charged for their meals, the seamen
- from Chevron’s seagoing and inland fleets dined without charge in
lieu of a meal alllowance. Moreover, since the Seagull Inn is
located on the Longwharf itself, within the gates of the Richmond
refinery, ft was never open to the general public. Claimant and
former Seagull Inn cook Miguel Presa testified that Chevron
closed the Seagull Inn in June 1982 and transferred most of its
employees to shipboard positions on tankers owned by Chevron’s
corporate affiliate, Chevron, U.S.A., Inc. or “CUSA.” Claimant
was transferred to the sea-going CUSA tanker, the Hillyer
Brown, on July 14, 1982, but was discharged from the Hillyer
Brown on July 27, 1982, and never returned to work thereafter.
The administrative law judge concluded that claimant is not
covered under the Act because, (1) his duties as a mess-
man/cook were “neither inherently maritime nor significantly
different from the tasks performed in dining halls, cafeterias and
restaurants on land,” (2) claimant’s employment had no connec-
tion with loading, unloading, repairing or building vessels, and
(3) “because the Seagull Inn principally fed seamen and not
longshoremen, claimant’s work was in aid of Chevron’s seafaring
and navigational activities, and not in aid of any longshoring
functions performed on the wharf.” Decision and Order at 5.
Claimant argues on appeal that his activities as a galley hand in
the crews’ mess had a significant relationship to maritime trans-
portation. Claimant argues that in applying the significant rela-
tionship test, the fact-finder must look to the purpose of the work,
not solely to the particular skills used, and that the purpose of his
work, feeding employer's seamen while their tankers discharged
cargo at the wharf, served traditional maritime commerce.
ee Oe
Pee
A-21
In order to be covered under the Act as amended in i972,
claimant must satisfy the situs and status requirements.’ See P.C.
Pfeiffer Co. v. Ford, 444 U.S. 69, 100 S.Ct. 328, 11 BRBS 320
(1979). It is not disputed that claimant in the instant case meets
the situs requirement. Thus, the issue is whether claimant’s duties
as a cook/messman meet the status requirement. The term
“employee” is defined as any person engaged in maritime employ-
ment, including any longshoreman or other person engaged in
longshoring operations, and any harbor-worker including a ship
repairman, shipbuilder, and shipbreaker....” 33 U.S.C.
§ 902(3). While claimant correctly asserts that maritime employ-
ment is not limited to the occupations specifically mentioned in
Section 2(3), it cannot be read to eliminate any requirement of a
connection with the loading or construction of ships. Herb’s
Welding v. Gray, 470 U.S. 414, 105 S.Ct. 1421, 17 BRBS 78
(CRT) (1985). The United States Supreme Court has stated
that the purpose of the Act is to cover only those workers on the
situs who are involved in the essential elements of loading and
unloading. Northeast Marine Terminal Co., Inc. v. Caputo, 432
U.S. 249, 6 BRBS 150 (1977). The United States Court of
Appeals for the Ninth Circuit, the circuit in which this case
arises, looks to whether claimant’s work involves a “realistically
significant relationship to traditional maritime activity involving
navigation and commerce on navigable waters.” Weyerhauser Co.
v. Gilmore, 528 F.2d 957, 3 BRBS 140 (9th Cir. 1975), cert.
denied, 429 U.S. 868 (1976). See also Schwabenland v. Sanger
Boats, 683 F.2d 309, 16 BRBS 78 (CRT) (9th Cir. 1982), cert.
denied, 459 U.S. 1170 (1983).
We initially reject employer’s argument at oral argument that
claimant is not covered under Section 2(3) because his duties as
a cook/messman are “typical support activities of a clerical
'The 1984 Amendments to Section 2(3) do not apply here because
claimant’s injury occurred prior to September 28, 1984, the effective
date of these provisions of the Longshore and Harbor Workers’ Com-
pensation Act Amendments of 1984. Pub L. No. 98-426, 98 Stat. 1639,
1655, § 28(c). We note, however, that the 1984 amended version of
Section 2(3)(B), 33 U.S.C. § 902(3)(B) (Supp. IV 1986), excludes
from coverage individuals employed by a restaurant.
A-22
personnel, payroll-type nature.” OA Tr. at 18. The rationale that
some jobs are not covered because they are support services
incidental to any business operation has been rejected. See, e.g.,
Miller v. Central Dispatch, Inc., 673 F.2d 773, 14 BRBS 752 (Sth
Cir. 1982), rev'g 23 BRBS 793 (1980); Holcomb v. Robert W.
Kirk & Assoc., Inc., 655 F.2d 589, 13 BRBS 839 (Sth Cir. 1981),
rev'g 11 BRBS 835 (1979); Jackson v. Atlantic Container Corp.,
15 BRBS 473 (1983).
We affirm, however, the administrative law judge’s conclusion
that claimant was not an “employee” under the Act because his
work as a messman/cook did not involve the loading or unloading
process and had no connection with the repairing or building of
vessels. In Herb's Welding, supra, the Supreme Court held that a
welder on a fixed offshore drilling platform was not a maritime
employee because there is nothing inherently maritime about
building and maintaining platforms and pipelines. The Court
stated that those tasks are also performed on land, and their
nature is not significantly altered by the maritime environment.
105 S.Ct. at 1428. Similarly, we hold that claimant’s work at the
Seagull Inn preparing and serving meals to the officers and
seamen of Chevron tankers is not maritime employment under
the Act since there is no connection with the loading and
unloading of ships, and it is not done in furtherance of “tradi-
tional” maritime activity. Herb's Welding, supra; Weyerhauser,
supra. We therefore hold that claimant is not an “employee”
under Section 2(3) and is not covered by the Act. Because we
affirm the administrative law judge’s denial of coverage, we need
not address employer’s argument on cross-appeal.
nes
Accordingly, the administrative law judge’s Decision and Order
and Order Denying Reconsideration are affirmed.
SO ORDERED.
ROBERT L. RAMSEY
Robert L. Ramsey, Chief
Administrative Appeals Judge
JAMES F. BROWN
James F. Brown
Administrative Appeals Judge
NANCY S. DOLDER
Nancy S. Dolder
Administrative Appeals Judge
i
A-24
Appendix D
U.S. DEPARTMENT OF LABOR
Office of Administrative Law Judges
211 Main Street
San Francisco, California 94105
Suite 600
Case No. 85-LHC-1981
OWCP No. 13-76186
In the Matter of
CEFERINO COLOMA,
Claimant,
Ve
CHEVRON SHIPPING COMPANY,
Self-Insured Employer.
ORDER DENYING RECONSIDERATION
Claimant’s Motion for Reconsideration, which was orally ar-
gued on July 11, 1986, is denied.
The summary of claimant’s argument made at the hearing of
the motion, contained in Mr. Hillsman letter of July 2, 1986, and
Mr. Tune’s reply of July 8, 1986, are hereby made a part of the
record herein.
/s/_ ALEXANDER KARST
Alexander Karst
Administrative Law Judge
Dated: July 18, 1986
San Francisco, California
AK:brt
A-25
Appendix E
U.S. DEPARTMENT OF LABOR
Office of Administrative Law Judges
211 Main Street
San Francisco, California 94105
Suite 600
Case No. 85-LHC-1981
OWCP No. 13-76186
In the Matter of
CEFERINO COLOMA
Claimant
V.
CHEVRON SHIPPING COMPANY
Self-insured Employer
John R. Hillsman, Esq.
McGuinn, Hillsman & Palefsky
451 Jackson Street
San Francisco, California 94111
For the Claimant
Mark H. Tune, Esq.
Harbinson, Carlson & Tune
114 Sansome Street, Suite 618
San Francisco, California 94104
For the Respondent
Before: ALEXANDER KARST
Administrative Law Judge
DECISION AND ORDER DENYING BENEFITS
Ceferino Coloma, claimant herein, seeks benefits under the
Longshore and Harbor Workers’ Compensation Act, 33 U.S.C.
§§ 901 et seq., (the “Act”), for permanent disability due to an
injury to his hands sustained in the course of his employment by
respondent Chevron Shipping Company during the period 1974 to
1982. The parties have stipulated, and I accept that claimant
A-26
Ceferino Coloma (hereinafter “Coloma”) was employed as a
messman/cook by respondent Chevron Shipping Co. (hereinafter
“Chevron”) from 1974 until 1982; that claimant suffered cumula-
tive, occupationai illness diagnosed as benign keratoma with
lichnoid dermatititis on both hands; that claimant’s occupational
illness arose out of and in the course of his employment with
Chevron due to his repeated exposure to the harmfulstimuli of
cleansing chemicals; that Chevron was the “last employer” to
expose claimant to said stimuli; that Chevron exposed claimant to
said stimuli on a “maritime situs”; that claimant’s occupational
illness has been permanent, stationary, and untreatable since
September 30, 1982; that said injury permanently disables claim-
ant from his accustomed trade as a messman/cook; that ciaim-
ant’s applicable average weekly wage was $394.09; and that
claimant gave Chevron timely notice of his occupational injury in
accordance with the provisions of Section 12 of the Act. It was
further agreed that Chevron received timely notice of injury, and
that medical treatment and workers’ compensation under state
law were provided to claimant by respondent through the date of
the hearing.
The issues presented for adjudication are timeliness under
Section 13(b) (2), jurisdiction (status) under Section 2(3) of the
Act, nature and extent of disability under Section 8, and penalties,
interest, and attorney’s fees under Section 10, 14, and 28.
This claim was filed on June 20, 1984. A medical chart entry
dated June 6, 1978 said that “Mr. Coloma is questioning his sick
time hand condition should be industrially related as it may be
caused by the detergents”. (Resp. Exh. V). Claimant testified
that in 1978 his hands hurt at work when his hands were wet and
when he washed dishes, and that he was told in 1978 to wear
gloves in order to not get his hands wet. (Tr. pp. 69-71).
The factual question is whether the claim was filed within the
two-year statute of limitations set forth in the 1984 Amendments
to Section 13(b)(2). The legal question concerning the 1984
Amendments to the Act, is whether those Amendments apply.
Given the record in this case, I need not consider either issue.
There is a question as to the exact date on which claimant should
have first become aware, in the exercise of reasonable diligence or
A-27
by reason of medical advice, of the relationship between his
employment and the occupational illness. Pointing to the fact that
claimant had suffered from the condition for quite a long time,
Chevron argues that he should have apprehended its industrial
etiology earlier than June 20, 1981, i.e., as early as 1978. Claim-
ant denies this. He explained that he was not told what was
causing his hand problems until July 28, 1982, when Dr. Da-
quioag first informed him that his illness related to chemical
exposure at work. I find this testimony credible and convincing.
Though medical records indicate that the claimant received
treatment for this condition before June 20, 1982, I find that there
is nothing to suggest that he could or should have understood its
relation to his work before July 28, 1982.
More importantly, I find that Chevron was fully aware of
claimant’s occupational illness. Chevron had been paying
Mr. Coloma’s state workers’ compensation benefits prior to the
hearing. In this connection, I note Chevron’s stipulation that it
received timely notice of Coloma’s claim under Section 12. Like
the Benefits Review Board in Saylor v. Ingalls Shipbuilding, Inc.,
9 BRBS 561, I therefore conclude that:
“...the employer was fully aware of -claimant’s injured
condition since the employer was at all times prior to the
hearing paying the claimant compensation pursuant to the
state workers’ compensation law. Clearly, the purpose behind
the statute of limitations would not be served by a barring of
the claimant’s claim.” 9 BRBS at 563.
This claim is not barred by the statute of limitations.
The principal question presented here concerns claimant’s
status as a “maritime employee” under Section 2(3) of the Act.
Chevron admits that it is a “maritime employer” under Sec-
tion 2(4), so we can focus our inquiry on the injured worker. The
issue of whether an injured worker should be deemed a “maritime
employee” is a question of fact. South Chicago Coal & Dock v.
Bassett (1940) 309 U.S. 251, 158.
Claimant is a 56-year-old former messman/cook. He served 20
years in that capacity with the U. S. Navy and five more with
Chevron. Between 1977 and 1982, he worked in the “Seagull
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Inn”, the Chevron “crews mess” on the Richmond Longwharf.
Undisputed testimony from Chevron’s local Port Superintendent,
Charles Adam, establishes that the primary function of the
Seagull Inn was to provide meals to the officers and seamen of
visiting Chevron tankers while their shipboard stewards took
shore leave. The Seagull Inn also served the crews of Chevron’s
“Inland Fleet”, the harbor tugs and barges ordinarily berthed at
the Richmond Longwharf, together with occasional visitors like
Coast Guard officers, customs officials, harbor pilots, and outside
contractors. Though these later, occasiunal visitors were charged
for their meals, the seamen from Chevron’s seagoing and inland
fleets dined for free “in lieu of a meal allowance”. Moreover,
since the Seagull Inn is located on the Longwharf itself, within
the gates of the Richmond refinery, it was never open to the
general public.
Undisputed testimony from the claimant and former Seagull!
Inn cook Miguel Presa establishes that Chevron closed the Inn in
1982, but transferred most of its employees to shipboard positions
on tankers owned by respondent’s corporate affiliate, Chevron,
U.S.A., Inc., or “CUSA”. Claimant himself was transferred to
the sea-going CUSA tanker HILYER BROWN on July 14,
1982. Adam, Presa, and claimant all agree that, whether he
worked ashore at the “Seagull Inn” or afloat on a CUSA tanker,
claimant’s duties were always the same, preparing and serving
meals to hungry seamen.
Pointing to the fact that he was injured ashore, and relying on
Herb's Welding, Inc., v. Gray (1985) ___ U.S. —_, 105 S. Ct.
1421, Chevron argues that there was nothing “inherently mari-
time” about Coloma’s work as a messman/cook. According to the
respondent, claimant was not “engaged in the overall process of
loading or unloading”, and therefore cannot be deemed a “mari-
tive employee”. Claimant contends that Herb's Welding, Inc., v.
Gray, supra, is distinguishable and this does not control the result
of this case. He relies on older case law and asserts that he is a
“maritime employee” because his work had a “realistically signif-
icant relationship to national maritime activity.”
Parties agree that the 1984 amendment of § 902(3) which
excludes restaurant workers does not apply here because this case
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was filed prior to the effective date of the amendment of the
section.
In Herb’s Welding, Inc., v. Gray, supra, the Supreme Court
held that a welder who worked on an offshore platform was not
engaged in maritime employment under the coverage of the Act.
The Court stated that there was “nothing inherently maritime”
about his tasks which “are also performed on land, and their
nature is not significantly altered by the maritime environment”
(/d., 105 S.Ct., at p. 1478, 14 BRBS, at p. 83 (CRT)).
“But Congress did not seek to cover all those who breathe
salt air. Its purpose was to cover those workers on the situs
who are involved in the essential elements of loading and
unloading; it is ‘clear that persons wiio are on the situs but
not engaged in the overall process of loading or unloading
vessels are not covered.” Northeast Marine Terminal Co. v.
Caputo, 432 U.S., at 267, 97 S.Ct., at 2359. While ‘maritime
employment’ is not limited to the occupations specifically
mentioned in § 2(3), [footnote omitted] neither can it be
read to eliminate any requirement of a connection with the
loading or construction of ships. As we have said, the
‘maritime employment’ requirement is ‘an occupational test
that focuses on loading and unloading.’ P. C. Pfeiffer Co. v.
Ford, 444 U.S. 69, 80, 100 S.Ct. 328, 336, 62 L.Ed.2d 225
(1979). The Amendments were not meant ‘to cover employ-
ees who are not engaged in loading, unloading, repairing, or
building a vessel, just because they are injured in an area
adjoining navigable waters used for such activity.” H.R.Rep.
No. 92-1441, p. 11 (1972); S.Rep.No. 92-1125, p. 13
(1972), U.S.Code Cong. & Admin., News 1972, p. 4708.
We have never read ‘maritime employment’ to extend so far
beyond those actually involved in moving cargo between ship
and land transportation. Both Caputo, and P. C. Pfeiffer Co.
make this clear...” (/d., 105 S.Ct., at pp. 1427-1428, 17
BRBS, at pp. 82-83 (CRT).
Claimant’s tasks of cleaning tables, washing dishes and cooking
were neither “inherently maritime” nor were they significantly
different from the tasks that are performed in dining halls,
cafeterias and restaurants on land. Indeed, claimant testified that,
une
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after he left employment as a messman, he looked for a job at a
restaurant since it was the only thing he knew. (Tr. p. 75). The
evidence does not establish that claimant’s employment involved
any aspect of the process of loading, unloading, repairing or
building vessels. Because the “Seagull Inn” principally fed
seamen and not longshoremen, claimants work was in aid of
Chevron’s seafaring and navigational activities, and not in aid of
any longshoring functions performed on the wharf.
Under the rationale of Herb’s Welding, Inc., v. Grady, supra, |
feel compelled to find that because claimant’s occupation had no
connection with loading or unloading of ships, moving cargo
between ships and land transportation, or ships construction or
repair, he was not covered by the Act.
The claim is denied.
/s/ ALEXANDER KARST
Alexander Karst
Adminsitrative Law Judge
Dated: May 21, 1986
San Francisco, California
AK:es
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Appendix F
Longshoremen’s aiid Harbor Workers’ Compensation Act
As Amended, 1972
An Act To provide compensation for disability or death
resulting from injury to employees in certain maritime
employment, and for other purposes.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SHORT TITLE
Sec. 1. This Act may be cited as “Longshoremen’s and
Harbor Workers’ Compensation Act.”
DEFINITIONS
Sec. 2. When used in this Act —
(1) The term “person” means individual, partnership, corpora-
tion, or association.
(2) The term “injury” means accidental injury or death arising
out of and in the course of employment, and such occupational
disease or infection as arises naturally out of such employment or
as naturally or unavoidably results from such accidental injury,
and includes an injury caused by the willful act of a third person
directed against an employee because of his employment.
(3) The term “employee” means any person engaged in mari-
time employment, including any longshoreman or other person
engaged in longshoring operations, and any harbor-worker includ-
ing a ship repairman, shipbuilder, and ship-breaker, but such term
does not include a master or member of a crew of any vessel, or
any person engaged by the master to load or unload or repair any
small vessel under eighteen tons net.
(4) The term “employer” means an employer any of whose
employees are employed in maritime employment, in whole or in
part, upon the navigable waters of the United States (including
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any adjoining pier, wharf, dry dock, terminal, building way,
marine railway, or other adjoining area customarily used by an
employer in loading, unloading, repairing, or building a vessel).
(5) The term “carrier” means any person or fund authorized
under section 32 to insure this Act and includes self-insurers.
(6) The term “Secretary” means the Secretary of Labor.
_' (7) The term “deputy commissioner” means the deputy com-
missioner having jurisdiction in respect of an injury or death.
(8) The term “State” includes a Territory and the District of
Columbia. —
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Appendix G
Public Law 98-426
98th Congress
An Act
Entitled the “Longshore and Harbor Workers’ Compensation
Act Amendments of 1984”.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That (a) this
Act may be cited as the “Longshore and Harbor Workers’
Compensation Act Amendments of 1984”.
(b) Except as otherwise specifically provided, whenever in this
Act an amendment or repeal is expressed in terms of an amend-
ment to, or repeal of, a section or other provision, the reference
shall be considered to be made to a section or other provision of
the Longshoremen’s and Harbor Workers’ Compensation Act.
DEFINITIONS
Sec. 2.(a) Section 2(3) is amended to read as follows:
““(3) The term ‘employee’ means any person engaged in mari-
time employment, including any longshoreman or other person
engaged in longshoring operations, and any harbor-worker includ-
ing a ship repairman, shipbuilder, and ship-breaker, but such term
does not include —
“(A) individuals employed exclusively to perform of-
fice clerical, secretarial, security, or data processing work;
“(B) individuals employed by a club, camp, recrea-
tional operation, restaurant, museum, or retail outlet;
“(C) individuals employed by a marina and who are
not engaged in construction, replacement, or expansion of
such marina (except for routine maintenance);
“(D) individuals who (i) are employed by suppliers,
transporters, or vendors, (ii) are temporarily doing business
ee a ee ee RE eee So Se ——— ss ee,
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on the premises of an employer described in paragraph (4),
and (iii) are not engaged in work normally performed by
employees of that employer under this Act;
“(E) aquaculture workers;
“(F) individuals employed to build, repair, or disman-
tle any recreational vessel under sixty-five feet in length;
“(G) a master or member of a crew of any vessel; or
“(H) any person engaged by a master to load or unload
or repair any small vessel under eighteen tons net;
if individuals described in clauses (A) through (F) are subject to
coverage under a State workers’ compensation law.”
(b) Section 2(10) is amended by inserting before the period at
the end thereof the following: “; but such term shall mean
permanent impairment, determined (to the extent covered
thereby) under the guides to the evaluation of permanent impair-
ment promulgated and modified from time to time by the Ameri-
can Medical Association, in the case of an individual whose claim
is described in section 10(d)(2)”.
(c) Section 2(13) is amended to read as follows:
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.