Petition for Writ of Certiorari — Shives v. CSX Transportation, Inc.

0) Sane Goh we.

sti O8— BST 0Ct 13198

Gn oyhe OFFICE OF THE CLERK

Supreme Court of the Chhited States

October Term 1998

LARRY W. SHIVES,

Petitioner,

Vv.

CSX TRANSPORTATION,

INCORPORATED,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Petition for Writ of Certiorari

Allan B. Rabineau

Counsel of Record

Guy M. Albertini

P. Matthew Darby

Theresa A. Rosendale

ALBERTINI & DARBY, L.L.P.

3201 North Charles Street

Suite 1A

Baltimore, Maryland 21218

(410) 243-9400

Counsel for Petitioner

THE LEX GROUP ¢ 1205 East Main Street ¢ Suite 2 East ¢ Richmond, VA 23219

(804) 644-4419 @ (800) 856-4419 @ Fax: (804) 644-3256

UESTION P D

Whether an employee of a railroad who was injured

while working on a non-maritime related job

assignment is precluded from filing a claim under the

Federal Employers' Liability Act (FELA)?

PARTIES TO THE PROCEEDINGS

Petitioner, Larry W. Shives is a resident of Maryland.

He was the Plaintiff in the lower court proceedings of this

case and was the Appellee before the United States Court of

Appeals for the Fourth Circuit.

Respondent, CSX Transportation, Incorporated is a

corporation organized and existing under laws of Virginia.

Respondent was a Defendant to the action in the lower court

proceedings and was also the Appellant before the United

States Court of Appeals for the Fourth Circuit.

There are no other parties to this action.

TABLE OF CONTENTS

QUESTION PRESENTED 2.n.an..cccscssssssscscossssvsssccscssnseccecere i

PARTIES TO THE PROCEEDINGS ............ccscsscsssssesesesee ii

ANN OO IEEE cabo decdcsnstneesecaasascsnscesnecacsosie iii

TABLE OF AUTHORITIES. ............ssssscccssssssssssssesssssesessees iv

PETITION FOR WRIT OF CERTIORARI ........cccscssssssseee 1

REISE TEE ot oc 1

Harthill deconiesiacdnidnsanacactomeninansacossen 1

STATUTES INVOLVED IN THE CASE .........cccccsssssssesee:

STATEMENT OF THE CASE ...0.......ncssssscsccsncsocsccccconsssses 3

REASONS FOR GRANTING WRIT ..0......cscccscssesesccsssseees 5

1. The Fourth Circuit Opinion regarding

application of Longshore Harborworkers

Compensation Act (LHWCA) to a railroad

employee performing non-maritime activities

at the time of his injury is in conflict with

decisions of the United States Supreme Court

and other courts of appeals ..0.0.0........ccccscesecesessesseee. 5

AR RTE RN 14

Ts Sotaaitisiinieecehdicesisissdbapahnaiee toad nsec secs, os. App. 1

Cases Page

676 F.2d 547 (1 1 Cir. 1982), cert den.

Fs 2 I i I ells ereccecesccsnccssncesctece 10

Vv

493 U.S. 40, 110 S.Ct. 381,

og Re |

- 5h Sh rg gas 3. | Tea aac OneeE en 11,12

Hullin ies, Inc. v. ll

Ur a Re ME I hh ecccn na concncncesasees 10

In Re: CS ion, | rated

306 US. 12. 90 S.Ct. 347 (1969),

melee BNE ee 5

Northeast Marine Terminal Co. v. Caputo,

432 U.S. 249, 97 S.Ct 2348 (1977).......... 5,7,8,12,13

P.C. Pfeiffer Co., Inc. v. Ford,

444 U.S. 67, 100 S.Ct. 328 (1979).............. 5,9,10,11

Wilkerson v. McCarthy,

ee I es inch csiticotssiatentpiciatiiactidaneacboiion 13

iv

Statutes and Rules

EN TM LOA 1

Te cataninsieanneentl 2,6,7

i csemnsssscoromnmninsonet 2,6,7

POTS Pog 28 EE Se cae 1,4

PETITION FOR WRIT OF CERTIORARI

Larry W. Shives, respectfully petitions the United

States Supreme Court to issue a Writ of Certiorari to review the

judgment entered in this action by the United States Court of

Appeals for the Fourth Circuit.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Fourth Circuit giving rise to this action is published at in

Re: CSX Transportation, Incorporated 151 F.3d 164 (4* Cir.

1998), and is reprinted in the Appendix ("App.") A-1 through

A-15. The opinion of the United States District Court for the

District of Maryland is unpublished and is reprinted at App. A-

16 through A-17.

JURISDICTION

The opinion of the United States Court of Appeals for

the Fourth Circuit was entered on July 16, 1998. The

jurisdiction of the United States Supreme Court is invoked

under 28 U.S.C. § 1254 (1).

STA RULES INVOLVED IN THE CASE

45 U.S.C. § 51 et seq.

Liability of common carriers by railroad, in

interstate or foreign commerce, for injuries to

employees from negligence; definition of

employees

Every common carrier by railroad while

engaging in commerce between any of the

several States or Territories, or between any of

l

the States and Territories, or between the

District of Columbia and any of the States or

Territories, or between the District of

Columbia or any of the States or Territories and

any foreign nation or nations, shall be liable in

damages to any person suffering injury while he

is employed by such carrier in such

commerce...for such injury or death resulting in

whole or in part from the negligence of any of

the officers, agents, or employees of such

carrier, or by reason of any defect or

insufficiency, due to its negligence, in its cars,

engines, appliances, machinery, track, roadbed,

works, boats, wharves, or other equipment...

33 U.S.C. § 902 et seq.

Definitions

The term "employee" means any person

engaged in maritime employment, including

any longshoreman or other person engaged in

longshoring operations, and any harborworker

including a ship repairman, shipbuilder, and

ship-breaker...

33 U.S.C. § 903, et seq.

Disability or death; injuries occurring upon

navigable waters of the United States

Except as otherwise provided in this

section, compensation shall be payable under

this chapter in respect of disability or death of

an employee, but only if the disability or death

results from an injury occurring upon the

2

navigable waters of the United States

(including any adjoining pier, wharf, dry dock,

terminal, building way, marine railway, or other

adjoining area customarily used by an employer

in loading, unloading, repairing, dismantling, or

building a vessel).

STATEMENT OF THE CASE

I. F G D

On August 28, 1996, Larry W. Shives ("Shives"), an

employee of CSX Transportation, Incorporated ("CSXT"), was

injured while working as a carman at the Seagirt Marine

Terminal in Baltimore, Maryland. Seagirt Marine Terminal is

an intermodal facility in Baltimore, Maryland in which freight

arrives at and is taken from the terminal by ship, truck and

train. As a carman, Shives assisted in loading and unloading of

trailers and containers from flatbed railcars. The trailers and

containers are removed from or placed onto railcars by crane.

The cranes are operated by employees of the Ceres

Corporation whose employees are longshoremen and members

of the International Longshoremen Association.

According to Shives, he was injured when he slipped

on oil and grease surrounding a hitch on one of the railcars.

None of the containers carried by the incoming train on which

Shives was working at the time of the accident, nor the trailer

Shives unhitched immediately before his accident were

destined for transport via any maritime vessel. In fact for the

entire six years Shives has worked at the Seagirt Marine

Terminal, only 15% of the containers carried daily into or out

of the entire marine terminal by trains were unloaded from or

onto ships.

Il. PROCED L RY

Petitioner, Larry W. Shives, filed a claim pursuant to

the Federal Employers’ Liability Act (FELA) 45 U.S.C. § 51,

et. seq. against his employer, Respondent, CSXT in the Circuit

Court for Baltimore City. CSXT filed a Notice of Removal in

the United States District Court for the District of Maryland,

Northern Division. CSXT asserted that Shives' claim arose

exclusively under the Longshore and Harbor Worker's

Compensation Act (LHWCA) and not under the Federal

Employers’ Liability Act (FELA) and would thus present a

removable federal question. At the same time, CSXT also

moved to dismiss Shives' claim asserting that Shives failed to

exhaust his administrative remedies under LHWCA.

Thereafter, Shives filed an opposition to CSXT's motion to

dismiss and also filed a motion to remand to the Circuit Court

for Ba!timore City.

The parties stipulated to the facts and submitted

supplemental briefs to the United States District Court. The

United States District Court (Smalkin, J.) in a Memorandum

Opinion dated August 4, 1997 rejected CSXT's assertion that

Shives had a claim under LHWCA and not under FELA. On

the same date, the District Court ordered that the case be

remanded to the Circuit Court for Baltimore City.

CSXT noted its appeal of the United States District

Court's Order on August 6, 1997 and on August 11, 1997 filed

a Petition for Writ of Mandamus requesting that the case be

reopened in the United States District Court and be dismissed

by said court. —

On appeal, the Fourth Circuit found that Shives was

engaged in maritime employment and thus his claim arose

exclusively under the LHWCA. The Fourth Circuit vacated

and remanded the case to the United States District Court with

instruction to dismiss the case brought under FELA and permit

Shives to exhaust his administrative remedies under LHWCA.

REASONS FOR GRANTING THE WRIT

I. The Fourth Circuit opinion regarding the application of

the LHWCA to railroad employee performing non-

maritime activities at the time of his injury is in conflict

with the United States Supreme Court and other courts

of appeal.

The Fourth Circuit opinion rejected Shives' proposed

application of the FELA to this case. The Fourth Circuit

concluded that Shives met the status test under LHWCA,

finding that status is "occupational, intending to provide

employees continuous coverage throughout their employment

at a maritime situs regardless of the particular activity at the

time of injury." Jn Re CSX Transportation, Incorporated, 151

F.3d 164, 169 (4th Cir. 1998). The Fourth Circuit opinion

discards the status requirement of LHWCA and misinterprets

the Supreme Court's holding in Northeast Marine Terminal Co.

v. Caputo 432 U.S. 249, 97 S.Ct 2348 (1977) and P.C. Pfeiffer

Co., Inc. v. Ford, 444 U.S. 67, 100 S.Ct. 328 (1979). The

Caputo and Pfeiffer decisions allowed recovery under the

LHWCA only when workers would have been considered

longshoremen as defined by LHWCA prior to its amendments

in 1972 or were not defined as longshoremen prior to the 1972

Amendments, but were engaged in the elements of loading,

unloading, repairing, dismantling or building a vessel at the

time of their injury.

Prior to 1972, in order for a longshoremen to be

covered by the LHWCA, said employee had to be injured upon

the navigable waterways of the United States. Coverage

depended entirely on the situs of the longshoremen at the time

of his injury. In Nacirema Operating Company v. Johnson,

396 U.S. 212, 90 S.Ct 347 (1969), reh den. 397 U.S. 929, this

Court rejected coverage of the LHWCA to three employees

who were knocked onto a pier when attaching cargo from

railcars to crane for loading on a ship. A fourth employee who

(

5

was knocked into the water was covered under LHWCA.1 This

Court reasoned that because three of the men did not fall into

the river or other navigable waterway they were not entitled to

compensation under LHWCA.

To address the inconsistencies in the LHWCA and to

stop longshoremen from walking in and out of federal versus

state workers' compensation coverage depending on where their

injury occurred, Congress amended LHWCA in 1972. The

1972 amendments replaced the purely situs test with a two

prong situs and status test to determine coverage under the Act.

The situs requirement found in 33 U.S.C. § 903(a)

extended coverage to injuries "upon the navigable waters of the

United States including any adjoining pier, wharf, dry dock,

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

customarily used by an employer in loading, unloading,

repairing, dismantling or building a vessel." Because the

expanded situs test reached any employee working at a marine

terminal, a status requirement was also included in the

amendments.

The status requirement is found in 33 U.S.C. § 902(3)

which defines an employee covered by the Act as "any person

engaged in maritime employment, including any longshoreman

or other person engaged in longshoring operations, and any

harborworker including a ship repairman, shipbuilder, and

shipbreaker..."

| No petition for writ of certiorari was sought in reference to the

employee who fell into the water.

—

In the present case there was no dispute that Shives met

the situs requirement under LHWCA. Shives was working on

a marine terminal which was specifically included in the

expanded situs requirement under 33 U.S.C. § 903(a).

Therefore, the analysis must tern on whether Shives met either

of the two alternative requirements for status under the Act

based upon 33 U.S.C. § 902(3) which requires that (1)

employee must either be a longshoreman or (2) be engaged in

longshoring operations [at the time of his injury]. Here, Shives

is clearly not a longshoreman. The District Court found that

Shives did not satisfy the status test necessary for jurisdiction

under the LHWCA. Shives was not engaged in any of the

essential elements of loading or unloading a vessel at the time

of his injury. Also, the Court noted that only 15% of the daily

container traffic handled by Seagirt Marine Terminal involved

cargo being loaded or unloaded from any maritime vessel.

The status requirement found in 33 U.S.C. § 902(3)

required that an employee be engaged in maritime employment

and indicated that maritime employment is defined as a

longshoreman or one engaged in longshoring work,

unfortunately neither the amendments themselves nor the

legislative history further defined maritime employment. See

Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249

(1977). Beyond this explanation it has been left to the courts

to set the parameters of what is included in maritime

employment.

This Court first addressed this issue in Northeast

Marine Terminal Co. v. Caputo , 432 U.S. 249 (1977) in which

this Court extended coverage to Blundo, a checker and Caputo,

a member of a regular longshoring gang. Blundo was

employed as a checker and was to check and record cargo as it

was loaded or unloaded onto vessels. On January 8, 1974,

Blundo slipped on ice and was injured when checking a

container unloaded from a vessel at another pier. Northeast

Marine Terminal Co., supra at 253. Caputo was a terminal

laborer who worked for different stevedoring companies at

7

Northeast Marine Terminal. On April 16, 1973, Caputo was

injured while helping load trucks with cargo discharged from

ships at that terminal. Both Blundo and Caputo were

longshoremen as defined by LHWCA prior to the 1972

Amendments, but would not have been covered before 1972

merely because their injuries occurred on land and not over

navigable waters. Thus, they would have been covered by the

state workers' compensation system of the state in question.

Under the expanded coverage provided by the 1972

Amendments, this Court held that both men were engaged in

maritime employment at the time of their injuries. Blundo's job

as a checker was to mark items as they were unloaded from a

vessel. This job was directly related to loading and unloading

of a vessel. Caputo was covered because his job had a direct

impact on loading and unloading of vessels. This Court

reasoned that Caputo was "the type of amphibious worker who

without the 1972 amendments would be covered for only part

of his activities." Northeast Marine Terminal 432 U.S. at 273.

Caputo was a longshoremen who was employed by a

stevedoring company and he performed his job unloading cargo

either on the vessel itself or on the pier. Because Caputo and

Blundo were both longshoremen as defined by the pre 1972

amendments, it is not necessary that they be performing

longshoring operations at the time of their injuries. This

interpretation is evidenced by Justice Marshall's statement in

Northeast Marine Terminal, supra at p. 273:

The Act focuses primarily on occupations -

longshoremen, harbor worker, ship repairman,

shipbuilder, shipbreaker. Both the text and the

history demonstrate a desire to provide

continuous coverage throughout their

employment to these amphibious workers who,

without the 1972 Amendments, would be

covered for only part of their activity. It seems

clear, therefore, that when Congress said it

8

wanted to cover "longshoremen" it had in mind

persons whose employment is such that they

spend at least some of their time in indisputably

longshoring operations and who, without the

1972 Amendments would be covered for only

part of their activity.

In the instant case, Shives is not the type of amphibious

worker Congress intended to protect unless he was engaged in

longshoring activities at the time of his injury. Shives' job as

a carman is to inspect railcars and assist in the loading and

unloading of flatbed railcars. He was certainly not a

longshoreman and would not have been considered a

longshoreman prior to the 1972 Amendments. In fact on the

day of Shives' accident, there were no vessels in the marine

terminal. Throughout the entire six years, Shives worked at the

terminal only 15% of all traffic in and out of the terminal even

involved ships.

This Court also addressed this issue in P.C. Pfeiffer

Company, Inc. v. Ford, 444 U.S. 69, 100 S.Ct. 328 (1979). In

that case, this Court affirmed LHWCA benefits for a

warehouseman and cotton header. While neither man was

injured on navigable waterways of the United States, they were

both performing longshoremen duties of transferring cargo

from ships to land transport. This Court cautioned however,

that not all employees who work in areas adjoining navigable

waters are covered by LHWCA.

Justice Powell stated:

The Committee does not intend 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. Thus

employees whose responsibility is only to pick

9

up stored cargo for further trans-shipment

would not be covered. Pfeiffer, supra, 444 U.S.

at 80, 100 S.Ct at 335 (1979).

Shives' job was not essential to loading or unloading a

vessel. His job was more in line with picking up cargo for

further shipment and under Pfeiffer could not be covered under

LHWCA. In other words, if an employee is not a

longshoreman, he must be engaged in longshoring activities at

the time of his injury.

However, the Court of Appeals for the Fourth Circuit is

overruling the District Court also ignored the importance of the

nature of the work Shives was engaged in at the time of his

injury. In fact, the Fourth Circuit concluded that the activity in

which Shives was performing at the time of his injury was of

little importance. Jn Re: CSX Transportation, Incorporated,

No. 97-2038, No. 97-2053, 151 F3d 164, 169 (4 Cir, 1998)

(emphasis added).

This reasoning is flawed because under the LHWCA,

an employee who is not a ongshoreman is only covered when

engaged in the elements of loading, unloading, repairing,

dismantling or building a vessel. See Hullinghorst Industries,

Inc. v. Carroll, 650 F.2d 750 (Sth Cir. 1981) cert den. 454 U.S.

1163, 102 S.Ct 1037; Browning v. B.F. Diamond Const. Co.,

676 F.2d 547 (11th Cir. 1982), cert den. 459 U.S. 1170, 103

S.Ct 814; Chesapeake & Ohio Ry. v. Schwalb, 493 U.S. 40, 110

S.Ct. 381, 107 L.Ed.2d 278 (1989).

If an employee is not a longshoreman and his job does

not affect the loading and unloading of a maritime vessel, then

the employee is not covered under the LHWCA simply because

the situs of his job is a marine terminal. See Pfeiffer 444 US.

at 83, 100 S.Ct at 337. In the case at bar, Shives was checking

containers that were being loaded from trains having originated

in Jacksonville, Florida onto trucks. At no time did the job in

which he was engaged have anything to do with the loading or

unloading of a vessel. Shives' job was not related in any way to

10

OE

maritime activities. There were no vessels at the terminal on

the day of the occurrence. To hold that Shives was engaged in

maritime employment under these circumstances would extend

coverage of the LHWCA well beyond the intentions of

Congress when it adopted LHWCA. S.Rep. No. 92-1125, p. 13

(1972) and H.R. Rep. No. 92-1441, pp. 10-11 (1972) as cited

in P.C. Pfeiffer Co., Inc. v. Ford, 100 S.Ct at 335, 444 U.S. at

80.

The Fourth Circuit's decision in Shives' case is in

contrast to its earlier decision in Hayes v. CSX Transportation,

inc., 985 F.2d 137 (4th Cir. 1993). The Fourth Circuit in

Hayes held that a carman was engaged in maritime

employment when he assisted the crane operators in unloading

1 train. However, the origins of the cargo which Hayes was

helping unload were unknown, but the Fourth Circuit assumed

"it was obvious that Hayes was engaged in maritime

employment at the time of his injury." Hayes, 985 F.2d at 142.

In the present case, the facts were quite different. Shives was

not engaged in the loading or unloading of a vessel. The train

on which Shives was working originated from Jacksonville and

all of its cargo was for transport by truck.

The District Court clearly found "a sharp contrast"

between the facts as they existed in the present case and the

facts in Hayes. Judge Frederic Smalkin in his Memorandum

Opinion, App. 17 stated:

... the evidence is undisputed that none of the

containers or other freight carried by the

incoming train on which Mr. Shives was

working at the time of his accident was destined

for transport by a maritime vessel, and that only

15% of the daily container traffic handled by

the terminal involved cargo from trains being

transhipped from boat to train or vice versa.

Under these circumstances, the Court is

constrained to conclude that, although the

11

Seagirt terminal is an appropriate situs for the

application of LHWCA, Mr. Shives did not

meet the status test at the time of his injury.

The Fourth Circuit's opinion seems to suggest that even

though he is clearly not a longshoreman, the work Shives was

performing at the time of his injury was of no legal import.

This contention would essentially strip the LHWCA of its

Status requirement and is not supported by the Fourth Circuit's

earlier decision in Hayes, 985 F.2d 137 (4th Cir. 1993) The

Court stressed in its decision that Hayes was “engaged in

maritime employment at the time of his injury." (emphasis

added) Hayes, 985 F.2d at 138. The Court in Hayes later states

that "it was obvious Hayes was engaged in maritime

employment at the time of his injury." Hayes, supra, 985 F.2d

at 142. The Hayes Court assumed from the limited factual

information that it was given that Hayes was engaged in

maritime employment at the time of his injury. Clearly, the

work they assumed Hayes to be doing when the accident

occurred was of considerable legal import.

In the Shives' case, no assumption is necessary. Shives

was not engaged in maritime activity at the time of his injury

and thus does not meet the status test required for coverage

under the LHWCA.

The Fourth Circuit also considered Respondent,

CSXT's argument that Congress intended to prevent employees

from walking in and out of coverage. While this may be true,

it is misapplied in this case. Congress intended to prevent

employees from walking in and out of federal versus state

coverage for their injuries. Congress was concerned about the

inadequacy of the state remedies available to longshoremen

depending on where they were injured. S.Rep /2-13, House

Report H.R. Rep. No. 92-1441 pp. 10-11 as cited in Northeast

Marine Terminal Co. v. Caputo, 432 U.S. 249, 261 (1977).

However, in the case of railroad workers Congress

enacted a separate statute called the Federal Employers’

12

, |

Liability Act, 45 U.S.C. §151, et. seq. FELA was specifically

enacted "to put on the railroad industry some of the cost for

legs, eyes, arms and lives which it consumes in its operations."

Wilkerson v. McCarthy, 366 U.S. 53, 68 (1949). There is no

such concern voiced as the policy behind the enacting of the

LHWCA and its 1972 Amendments. In Northeast Marine

Terminal Co. v. Caputo, 432 U.S. 249, 261, 97 S.Ct 2348

(1977),

Justice Marshall states:

The main concern of the 1972 Amendments

was not the scope of coverage but with

accommodating the desires of three interested

groups: (1) shipowners who were discontented

with the decisions allowing many maritime

workers to use the doctrine of "seaworthiness"

to recover full damages from shipowners

regardless of fault; (2) employers of the

longshoremen who, under another judicially

created doctrine, could be required to indemnify

shipowners and thereby lose the benefit of the

intended exclusivity of the compensation

remedy; and (3) workers who wanted to

improve the benefit schedule deemed

inadequate by all parties.

There can be no doubt that Shives was a railroad

worker at the time of his injury. He worked for CSXT as a

carman with his main duties being to hitch and unhitch flatbed

railcars. Congress intended railroad workers to be covered by

the law they specifically passed to compensate railroad workers

for injuries occurring while in the performance of their duties

for the railroad. It is difficult to imagine that Congress in

passing the 1972 Amendments of the LHWCA would be

concerned about an employee already adequately protected by

13

FELA, a statute which has been in force and effect since 1908.

The Fourth Circuit erred when it held that Shives' case

was governed by the LHWCA, instead of by the FELA. More

importantly, the Fourth Circuit's opinion extends the LHWCA

well beyond the boundaries Congress or this Court's earlier

decisions intended.

CONCLUSION

In view of the foregoing, Larry W. Shives, respectfully

requests this Court to grant the Petitioner's Writ of Certiorari.

Respectfully submitted, this 13th day of October, 1998.

Mik ihrtaw.

Allan B. Rabineau

Counsel of Record

Guy M. Albertini

P. Matthew Darby

Theresa A. Rosendale

3201 North Charles Street

Baltimore, MD 21218

(410) 243-9400

14

TABLE OF CONTENTS

Appendix to the Petition

Opinion,

United States Court of Appeals

for the Fourth Circuit

entered July 16, 1998 ooo... cccccccccceceeeeneeeee App. |

Memorandum Opinion,

United States District Court

for the District of Maryland

entered August 4, 1997................. iaupainatashdaan App. 16

Order,

United States District Court

for the District of Maryland

entered August 4, 1997 .............cccccccccecssesccece App. 18

App. i

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 97-2038

In Re: CSX TRANSPORTATION,

INCORPORATED,

Petitioner.

On Petition for Writ of Mandamus.

(CA-97-1611-S)

No. 97-2053

LARRY W. SHIVES,

Plaintiff-Appellee,

Vv.

CSX TRANSPORTATION, ae

INCORPORATED,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Frederic N. Smalkin, District Judge.

(CA-97-1611-S)

Argued: May 6, 1998

Decided: July 16, 1998

Entered: July 16, 1998

Before NIEMEYER and MICHAEL, Circuit Judges, and

FRIEDMAN, United States District Judge for the Eastern

District of Virginia, sitting by designation.

App. 1

Vacated and remanded with instructions by published

opinion. Judge Niemeyer wrote the opinion, in which Judge

Michael and Judge Friedman joined.

COUNSEL

ARGUED: Eric Rawson Harlan, Stephen Bennett Caplis,

WHITEFORD, TAYLOR & PRESTON, L.L.P., Baltimore,

Maryland, for Appellant. Perry Matthew Darby,

ALBERTINI & DARBY, Baltimore, Maryland, for

Appellee. ON BRIEF: Guy M. Albertini, Allan B.

Rabineau, Theresa A. Rosendale, ALBERTINI & DARBY,

Baltimore, Maryland, for Appellee.

OPINION

—_—

NIEMEYER, Circuit Judge:

The question presented is whether a worker was

engaged, at the time of his work-related injury, in "maritime

employment" as defined in the Longshore and Harbor

Workers' Compensation Act, 33 U.S.C. § 902(3), when his

job at a marine terminal included the loading and unloading

of ships only 15% of the time and when he was unloading

non-maritime freight from a train at the time of his injury.

Because we hold that the worker was engaged in maritime

employment, we vacate and remand to the district court with

instructions to dismiss this case, which was brought under

the Federal Employers’ Liability Act, to permit the

administrative process on the worker's pending Longshore

Act claim to run its course.

App. 2

I

Larry W. Shives was injured in August 1996 at the

Seagirt Marine Terminal in Baltimore, Maryland, while in

the employ of CSX Transportation, Inc. ("CSXT"). Shives

was employed as a "carman,” a job that required him to

inspect train cars and assist in loading and unloading them.

The Seagirt Marine Terminal is an intermodal terminal

where freight is unloaded from trains onto ships as well as

trucks, and vice versa. The parties have stipulated in this

case that 15% of the tasks assigned to CSXT's carmen such

as Shives involved the loading and unloading of maritime

freight. The remainder of the carmen's time was spent on

non-maritime transfers of freight from trains to trucks and

vice versa.

When Shives sustained his injury, he was assisting in

the unloading of a flatbed train car that carried UPS trailers.

As he unlocked the hitch on the car, he slipped on some oil,

twisting his right knee and striking it against the bed of the

car. The parties stipulated that the cargo on the train on

which Shives was injured was being unloaded onto trucks for

inland destinations.

Following his injury, Shives filed a negligence suit

against CSXT in Maryland state court under the Federal

Employers’ Liability Act ("FELA"), 45 U.S.C. § 51 et_seq.

He also filed a protective worker's compensation claim with

the Department of Labor under the Longshore and Harbor

Workers Compensation Act ("LHWCA"), 33 U.S.C. § 901 et

seq.

Contending that Shives was engaged in maritime

employment and therefore entitled only to workers

compensation under the LHWCA, CSXT removed Shives'

case to federal court under 28 U.S.C. §§ 1441 and 1331. It

then moved to dismiss the case to allow Shives'

administrative claim to proceed before the Department of

Labor. Shives filed a motion to remand the case to the state

court, arguing that he was not engaged in maritime

App. 3

employment and thus was entitled to pursue his negligence

claim in state court under the FELA. :

The district court, recognizing that in order to be

covered by the LHWCA, Shives had to satisfy both the situs

and status requirements of the Act, held first that Shives'

injury occurred at a maritime situs. Pursuant to its status

inquiry, however, it concluded that because “none of the

containers or other freight carried by the incoming train on

which Mr. Shives was working at the time of his accident

was destined for transport by a maritime vessel, and . . . only

15% of the daily container traffic handled by the terminal

involved cargo from trains being transhipped from boat to

train or vice versa," Shives did not meet the status test "as of

the time of his injury." Accordingly, the court entered an

order granting Shives' motion to remand the case to the state

court.

CSXT filed this appeal from the district court's order.

Because CSXT was concerned with whether the district

court's order was appealable in light of 28 U.S.C. § 1447(d),

it also filed a petition for a writ of mandamus to review the

district court's order by virtue of our holding in Jamison v.

Wiley, 14 F.3d 222 (4th Cir. 1994).

II

At the outset, we must satisfy ourselves on the

question of whether we have jurisdiction to review the

district court's order in light of 28 U.S.C. § 1447(d)

(prohibiting appellate review of remand orders), which is

limited by Thermtron Products, Inc. v. Hermansdorfer, 423

U.S. 336, 346, 352-53 (1976) ("[O]nly remand orders issued

under § 1447(c) and invoking the grounds specified therein

-- that removal was improvident and without jurisdiction --

are immune from review under § 1447(d).").

Shives filed this case in state court under the FELA,

45 U.S.C. § 51 et. seg., which confers concurrent federal and

state jurisdiction over FELA claims. See 45 U.S.C. § 56. But

App. 4

when filed in state court, an FELA claim may not be

removed to federal court. See 28 U.S.C. § 1445(a). CSXT

claimed that this case was not an FELA claim but rather a

claim for federal workers compensation under the LHWCA

because Shives was engaged in maritime employment at the

time of his injury. It therefore removed this case to federal

court under 28 U.S.C. § 1441(b) based on federal question

jurisdiction conferred by 28 U.S.C. § 1331. Because the

district court concluded that Shives was not engaged in

maritime employment at the time of his injury and that

therefore he could pursue his FELA claim, it ordered a

remand based on 28 U.S.C. § 1445(a) (prohibiting the

removal of FELA cases). Not sure how to obtain appellate

review of the district court's order, CSXT both filed a notice

of appeal and petitioned for a writ of mandamus, relying on

Jamison v. Wiley, 14 F.3d 222 (4th Cir. 1994).

While 28 U.S.C. § 1291 confers jurisdiction on the

courts of appeals "from all final decisions of the district

courts," the removal statute prohibits appellate review of

district courts’ orders "remanding a case to the State court

from which it was removed." 28 U.S.C. § 1447(d). In

Thermtron, however, the Supreme Court limited the

application of § 1447(d), holding that § 1447(d) only

restricted appellate review of remand orders based on §

1447(c) -- a provision addressing remands where a removal

was improvident or the district court was without subject

matter jurisdiction. See 423 U.S. at 346; see also Jamison, 14

F.3d at 231-32. Absent the proscription of § 1447(d), it

would appear that an order remanding a case to state court

puts the litigants out of federal court, effectively ending the

federal case, and therefore is a final order appealable under §

28 U.S.C. § 1291. See Quackenbush v. Allstate Ins. Co., 116

S. Ct. 1712, 1719 (1996).

In this case, the district court could not rule, in a strict

sense, under § 1447(c) that it was without jurisdiction

because federal courts have concurrent jurisdiction over

FELA claims. See_ 45 U.S.C. § 56. Rather, it ruled properly

App. 5

that an FELA claim could not be removed from a state court

to a federal court. See 28 U.S.C. § 1445(a). Moreover, its

ministerial application of § 1445(a) depended on its

substantive ruling that Shives was not engaged in maritime

employment. This determination is probably not of the type

of ruling included in 28 U.S.C. § 1447(c), see Jamison, 14

F.3d at 232, and therefore prohibited by § 1447(d). This

conclusion, however, is not entirely without doubt.

It is clear that the remand order presented to us for

review does not play the typical rerouting role of directing

non-federal cases back to state court. The question of

whether the LHWCA applies to a workrelated injury is

exclusively a federal question which Congress never

intended for state courts to resolve. See 33 U.S.C. § 921: cf.

Zapata Haynie Corp. v. Barnard, 933 F.2d 256, 258 (4th Cir.

1991) (noting that interpretation of the LHWCA is a matter

for the federal executive and federal appeals courts). If we

were to dismiss this appeal as unreviewable under 28 U.S.C.

§ 1447(d), then we would be leaving in place a remand order

which would commit to the state courts the decision of

whether the LHWCA provided coverage to the employee. To

follow that course would thus deprive the federal courts of

their proper role in resolving this important issue and would

circumvent Congress’ intent that LHWCA coverage issues be

resolved in the first instance by the Department of Labor and

ultimately in the federal courts of appeals. See 33 U.S.C. §§

919, 921.

Thus, because the coverage question of the LHWCA

is a conceptual antecedent for the district court's remand

order, it would appear that we are not prohibited by §

1447(d) from reviewing that order. See Mangold v. Analytic

Servs., Inc., 77 F.3d 1442, 1450-51 (4th Cir. 1996). In

Mangold, we held that if, after examining the district court's

reasoning for remand, we determined that the order did not

fall precisely under the grounds identified in § 1445(c), we

were authorized to review the order on appeal. See

Quackenbush , 116 S. Ct. at 1719-20. We said, “review of

App. 6

the remand order, because not actually based on either of the

grounds specified in § 1447(c), is not barred by § 1447(d)."

77 F.3d at 1453.

If we have any doubt about the correctness of this

analysis, we are authorized in these circumstances to issue a

writ of mandamus. To avoid forfeiting the federal courts’ role

of reviewing LHWCA coverage issues is one of those

extraordinary situations envisioned in Thermtron for exercise

of the writ. We held analogously in Mangold that "to

fragment a claim between. .:ate and federal courts [was]

fraught with mischief and capable of producing unnecessary

tensions between the two systems" and that therefore we

were justified in treating an appeal as a petition for a writ of

mandamus. Id.

Accordingly, while we exercise appellate jurisdiction

with some delicacy, we also recognize our review authority

on the employer's petition for a writ of mandamus. See

Jamison, 14 F.3d at 233-34. We now tum to the coverage

question.

Il

To be covered by the LHWCA, a work-related injury

must have occurred on "navigable waters," as defined by 33

U.S.C. § 903(a), and the employee must have been engaged

in “maritime employment," as defined by 33 U.S.C. §

902(3). The parties agree that Shives' injury occurred on

navigable waters because it occurred while Shives was

working at a terminal adjoining navigable waters. See 33

U.S.C. § 903(a) (defining “navigable waters" to include

adjoining terminal areas). The sole issue therefore is whether

Shives was “engaged in maritime employment" as defined by

33 U.S.C.§ 902(3) when he sustained his injury. While

Shives acknowledges that 15% of his job entailed the loading

and unloading of maritime freight, he contends that because,

at the time of his * jury, he was unloading freight from a

train onto trucks aot ships, he was not covered by the

App. 7

LHWCA and therefore was entitled to pursue his FELA

claim for negligence. His interest in an FELA claim stems

from his belief that a recovery under the FELA will be more

remunerative than an award for workers compensation under

the LHWCA.

CSXT concedes that at the time of Shives' injury, the

loading activity was not of maritime freight nor in

connection with a ship. It argues, however, that "the work

which [Shives] was performing at the time of injury is of no

legal import." It maintains that maritime employment is

occupational, defined by whether the employee spends some

portion of his overall work engaged in maritime

employment. Because Shives' work concededly involved

15% maritime employment, CSXT argues, he was covered

by the LHWCA.

The issue thus reduces to a two-part question:

whether an employee who engages in maritime activities

only 15% of the time is “engaged in maritime employment"

as defined by the LHWCA and whether it matters that at the

time of his injury he was performing a nonmaritime duty.

Prior to 1972, the LHWCA applied only to injuries

occurring on navigable water, and the line demarcating land

and water also defined the line between coverage of the

LHWCA and coverage of state workers' compensation laws.

See generally Jonathan Corp. v. Brickhouse, 142 F.3d 217

(4th Cir. 1998). "As -a consequence, Longshoremen

continually walked in and out of LHWCA coverage as they

walked up and down the gangplank from ship to shore

during the loading and unloading of vessels." Id. at *2

(quoting Sidwell v. Express Container Servs., Inc., 71 F.3d

1134, 1135 (4th Cir. 1995)). To provide more uniform

coverage for longshoremen as they loaded and unloaded

ships and to provide federal coverage for all workers who

loaded ships, whether they were on the water or the adjacent

land, Congress amended the LHWCA to extend coverage to

the area adjacent to the ship that is normally used for loading

and unloading. In addition, because of this expanded

App. 8

geographical coverage, it restricted the coverage to maritime

employment. Thus, while coverage before 1972 was based

solely on a situs test delineated by the shoreline, coverage

after the 1972 amendments was based on meeting a two-part

situs and status requirement. See P.C. Pfeiffer Co. v. Ford,

444 U.S. 69, 73 (1979).

To satisfy the situs test adopted in 1972, an injury

must occur on “navigable waters" defined to include "any

adjoining pier, wharf, dry dock, terminal, building way,

marine railway, or other adjoining area customarily used by

an employer in loading, unloading, repairing, dismantling, or

building a vessel." 33 U.S.C. § 903(a). And to satisfy the

status test, the employee must be engaged in “maritime

employment," defined to include “any longshoreman or other

person engaged in longshoring operations, and any

harbor-worker including a ship repairman, shipbuilder, and

ship-breaker." 33 U.S.C. § 902(3).

While the new situs test mitigated the "walking in

and out of coverage" problem by moving the line inland in

order to cover workers loading and unloading ships both

from on the water and from on the land, a worker could still

walk into and out of a LHWCA situs because the line

remained geographical. See Jonathan, 142 F.3d at 220. The

status test, however, is occupational, intending to provide

employees continuous coverage throughout their

employment at a maritime situs regardless of the particular

activity at the time of injury. As the Supreme Court stated in

Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249

(1977):

The Act focuses primarily on occupations--

longshoreman, harbor worker, ship repairman,

shipbuilder, shipbreaker. Both the text and the

history demonstrate a desire to provide

continuous coverage throughout their

employment to these amphibious workers

who, without the 1972 amendments, would be

App. 9

covered only for part of their activity. It

seems clear, therefore, that when Congress

said it wanted to cover “longshoremen," it had

in_mind persons whose employment is such

that they s at least some of their time in

indisputably longshoring operations and who,

without the 1972 amendments, would be

covered for only part of their activity.

id. at 273 (emphasis added). Confirming later the

occupational characteristic of this status test, the Court

observed, “the ‘maritime employment’ requirement is ‘an

occupational test that focuses on loading and unloading.”

Herb's Welding, Inc. v. Gray, 470 U.S. 414, 423-24 (1985)

(quoting Pfeiffer, 444 U.S. at 80). And in determining

occupation, "the crucial factor is the nature of the activity to

which a worker may be assigned." Pfeiffer , 444 U.S. at 82

(emphasis added). Finally, the Supreme Court has instructed

that any coverage determination be informed by "an

expansive view of the extended coverage." Caputo, 432 U.S.

at 268. It said, "The Act ‘must be liberally construed in

conformance with its purpose, and in a way which avoids

harsh and incongruous results." Id.

In short, the status inquiry focuses on the assigned

occupational duties of the employee, and coverage is not

denied simply because the employee was not performing a

maritime function at the time of his injury. To determine

whether the employee is engaged in maritime employment,

we inquire whether the employee's assigned job requires his

spending some of his time in indisputably longshoring

operations.

This construction of the status requirement is

consistent with Congress’ intent to fill the gap that existed

before the 1972 amendments when longshoremen could walk

in and out of coverage as they walked up and down the

gangplank. In combination with the situs requirement, the

Status requirement thus provides LHWCA benefits more

App: 10

seamlessly to all those who perform some longshoring

operations. Indeed, it is instructive to recognize that an

employer covered by the LHWCA is defined as one whose

"employees are employed in maritime employment, in whole

or in part, upon the navigable waters of the United States [as

defined by the Act]." 33 U.S.C. § 902(4) (emphasis added).

Were we to adopt a more restrictive interpretation that

maritime employment refers only to the particular activities

of the longshoreman being performed at the specific moment

of injury, we would “bring the “walking in and out of

coverage’ problem back with a vengeance." Chesapeake and

Ohio Ry. Co. v. Schwalb, 493 US. 40, 50 (1989)

(Blackmun, J., concurring); see also Caputo, 432 U.S. at 274.

Our test requiring the examination of an employee's

assigned duties to determine whether some of them include

longshoring operations is similar to that adopted in other

circuits. In Boudloche v. Howard Trucking Co., Inc., 632

F.2d 1346 (Sth Cir. 1980), the Fifth Circuit held that an

employee who spent only 2-1/2 to 5% of his overall working

time performing longshore work was nevertheless engaged

in maritime employment since he spent "at least some of

[his] time in undisputedly longshoring operations." Id. at

1347 (quoting Caputo, 432 U.S. at 273). The court observed

Boudloche was directed to regularly perform

some portion of what was undisputedly

longshoring work at fully equipped docks

and, for at least some part of his work, was

required to perform the total maritime job at

unequipped docks. The fact that his employer

also assigned him broader duties as a truck

driver cannot override its choice to make

Boudloche a maritime employee under the

Act.

Id. at 1348; see also Howard v. Rebel Well Serv., 632 F.2d

1348 (Sth Cir. 1980) (a sandblaster who spent 10% of his

App. 11

iid

time sandblasting maritime equipment was engaged in

maritime employment). The Fifth Circuit subsequently

summarized its rule, stating, “a claimant will meet the status

requirement of the Act, not only if he is engaged in ‘maritime

employment’ at the time of injury, but also if he spends some

portion of his overall employment engaged in maritime

activities.” Hullinghorst_Indus., Inc. v. Carroll_, 650 F.2d

750, 754 (Sth Cir. Unit A, July 1981). See also Garvey Grain

Co. v. Director, OWCP, 639 F.2d 366, 371 (7th Cir. 1981)

(noting that “[t}he ‘moment of injury’ test is no longer the test

to determine the status of an employee under the Act" and

that coverage may be found where an employee "spends at

least some of his time in indisputedly longshore operations");

Sea-Land Servs., Inc. v. Director, OWCP, 685 F.2d 1121,

1123 (9th Cir. 1982) (same).

Seagirt Marine Terminal is an intermodal maritime

situs where freight is transferred from train to ship, from

train to truck, from truck to ship, and from truck to train.

When CSXT assigned its employees the carmen's duties of

loading and unloading its train cars at the terminal, it

expected that the carmen would unload all of its freight,

whether that freight was destined for truck or for ship.

Likewise, it expected the carmen would load its trains with

freight that arrived at the terminal, whether that freight

arrived by truck or by ship. Because its carmen's duties

consisted of loading and unloading at a marine terminal and

some of the loading and unloading involved ships, the

carmen by occupation were engaged in maritime

employment. The fortuity that some freight at the terminal

would bypass ships does not deny the carmen's employment

a maritime characteristic. Moreover, as we have noted, even

if the employee's particular function at the time of his injury

was not maritime, he is not denied coverage based on a lack

of maritime status. Because maritime status is an

occupational inquiry, we determine only whether some of the

employees’ work was indisputedly maritime i., nature.

App. 12

Shives, hoping that the LHWCA does not cover him

because of his expectation of realizing a more beneficial

recovery through his FELA claim, argues that because only

15% of his duties involved the loading and unloading of

maritime freight, he was not engaged in maritime

employment. This argument, suggesting that maritime

employment is determined by some defined percentage of an

employee's work, however, is not useful and misdirects the

inquiry. Congress wanted the LHWCA to cover

longshoremen loading and unloadingships, whether they are

on the ship or at the adjacent terminal, and the Supreme

Court has clearly held that to give effect to this intent, the

employee does not move in and out of maritime employment

status for purposes of coverage under the Act. Shives was

assigned maritime work as needed at the marine terminal,

and this longshore work was not merely “momentary or

episodic.” Boudloche, 632 F.2d at 1348. It was an assigned

portion of his duties necessary in order for CSXT to function

at the terminal efficiently.

Undoubtedly, there is a level of longshore work

assigned to an employee that may be so de minimis as to

defeat coverage. We need not, in this case, determine that

level because we conclude that Shives was clearly assigned

to do some indisputably longshore work when he was

assigned, as part of his job, to load and unload maritime

freight at the Seagirt Marine Terminal.

The district court relied on our decision in Hayes v.

CSX Transp., Inc., 985 F.2d 137 (4th Cir. 1993), in ruling

that Shives was not engaged in maritime employment “as of

the time of his injury.” It noted that Hayes inquired whether

the employee “was engaged in maritime employment at the

time of his injury,” id. at 140 (emphasis added), and reasoned

that “none of the containers or other freight carried by the

incoming train on which Mr. Shives was working at the time

of his accident was destined for transport by a maritime

vessel." While the status test properly inquires whether the

employee was engaged in maritime employment at the time

App. 13

of his injury, this does not mean that his particular duties at

the time of injury needed to be maritime in nature. Rather,

the status test turns on whether the employee's occupation at

the time of injury was maritime. By its nature, therefore, a

status test considers the employee's occupation as a whole,

not the nature of the particular job function being performed

at the time of injury. Indeed, this is how we understood the

test in Hayes because we acknowledged that "the origins or

destination of the loads being worked at the time [of Hayes’

injury] are unknown." 985 F.2d at 139.

In summary, we hold that because, at the time of

injury, Shives was performing his assigned work as a carman

at the Seagirt Marine Terminal and because some of his

carman's duties were indisputably maritime, Shives was

engaged in maritime employment as defined by the

LHWCA. Because Shives met both the situs and the status

tests of the LHWCA, he was covered by the Act.

This LHWCA coverage is exclusive and preempts

Shives from pursuing an FELA claim. See 33 U.S.C. §

905(a); Etheridge v. Norfolk & W. Ry. Co., 9 F.3d 1087,

1091 (4th Cir. 1993).

IV

Having concluded that Shives only has an LHWCA

claim, and not an FELA claim, we are left with a procedural

conundrum. Section 1441 of Title 28 authorizes removal of

civil actions “of which the district courts have original

jurisdiction.” 28 U.S.C. § 1441(b); see also § 1441(a). While

Shives' LHWCA claim arises under the laws of the United

States, see 28 U.S.C. § 1331, it is not an action over which

the district courts have original jurisdiction. An LHWCA

claim must be filed with the Department of Labor where it is

assigned to an administrative law judge whose decision is

reviewed by the Benefits Review Board. 33 U.S.C. §§

910(a), 921(b). Review by the courts is authorized through a

App. 14

petition for review, which may be filed only in the courts of

appeals, not in the district court. 33 U.S.C. § 921(c).

Thus, not only was Shives' claim not removable as an

FELA case, see 28 U.S.C. § 1445(a), it was also not

removable under 28 U.S.C. § 1441(b). But the remedy for

the improper removal in this case does not appear to be a

remand to state court as ordered by the district court, which

acted on its finding that this is an FELA case. State courts

have jurisdiction over FELA cases, but they do not have

jurisdiction over LHWCA cases.

While state court jurisdiction is not ordinarily a

prerequisite for removability, see 28 U.S.C. § 144l1(e),

jurisdiction in the district court is, see 28 U.S.C. § 1441(a) &

(b). Thus, we are faced with an LHWCA case over which

neither the state court nor the district court had jurisdiction

because such a claim could only be filed in the first instance

with the Secretary of Labor.

While the only intuitive remedy might nevertheless

be to remand this case to the state court to decide the

coverage question, if we were to do so, we would be

committing the federal question of LHWCA coverage to the

state court when Congress intended that it be decided

exclusively in federal court. In the peculiarities of this case,

we believe that the district court should not have remanded

the case to state court, but should have dismissed it.

Accordingly, we vacate the district court's remand order and

remand this case to the district court with instructions to

dismiss the case for lack of subject matter jurisdiction. In this

way, Shives will be able to proceed through the

administrative process before the Department of Labor with

his protectively filed LHWCA claim.

IT IS SO ORDERED

App. 15

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

LARRY W. SHIVES

v.

CSX TRANSPORTATION, INC.

CIVIL NO. S 97-1611

Entered: August 4, 1997

MEMORANDUM OPINION

This matter is before the Court on the plaintiff's

motion to remand, following supplemental briefing. No oral

hearing is required. Local itule 105.6, D. Md.

This suit started as an FELA claim in the Circuit

Court for Baltimore City. The defendant removed it to this

Court on the basis that, in actuality, it stated a claim under

the LHWCA. The plaintiff maintains that this case is not an

LHWCA case, but, rather, is an FELA case which, is non-

removable. 28 U.S.C. § 1445(a).

The question of the nature of this case, FELA vs.

LHWCA, is dispositive of the jurisdictional issue posed by

the motion to remand. That question is answered by the

Fourth Circuit's decision in Hayes v. CSX Transp., Inc., 985

F.2d 137 (4th Cir. 1993). In Hayes, as in this case, the injury

occurred at a maritime terminal, thus satisfying one of the

two tests, Le., the "situs" test, for jurisdiction under the

LHWCA.

The "situs" test is, however, only one of the two tests

that must be met before LHWCA jurisdiction exists. Hayes,

985 F.2d at 140. This case as did Hayes, turns on whether

the second test is also satisfied, viz., the "status" test. This

resolves into an inquiry as to “whether he [plaintiff] was

App. 16

engaged in maritime employment at the time of his inquiry."

In Hayes, there was no information as to the origins or

destinations of any of the containers the plaintiff had been

handling, but the Fourth Circuit assumed that it was "obvious

that Hayes was engaged in maritime employment at the time

of his injury. He was engaged in completing the unloading

process and in moving the cargo form ship to land

transportation." Jd., at 142.

In this case, in sharp contrast, the evidence in

undisputed that none of the containers or other freight carried

by the incoming train on which Mr. Shives was working at

the time of his accident was destined for transport by a

maritime vessel, and that only 15% of the daily container

traffic handled by the terminal involved cargo from trains

being transhipped from boat to train or vice versa. Under

these circumstances, the Court is constrained to conclude

that, although the Seagirt terminal is an appropriate situs for

the application of LHWCA, Mr. Shives did not meet the

status test as of the time of his injury.

Therefore, an Order will be entered separately,

remanding this case to the Circuit Court for Baltimore City.

Each party will bear its own costs and fees in connection

with removal and remand.

/s/

Frederic N. Smalkin

United States District Judge

Dated: August 4, 1997

App. 17

LOI A PORN bo RN A Ha

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND %

LARRY W. SHIVES

v.

CSX TRANSPORTATION, INC.

CIVIL NO. S 97-1611

Entered: August 4, 1997

ORDER

For the reasons stated in the foregoing Memorandum

Opinion, it is this 4th day of August, 1997, ORDERED:

1. That plaintiffs motion to remand BE, and the

same hereby IS, GRANTED;

2. That this case BE, and it hereby IS, remanded

to the Circuit Court for Baltimore City, with each party to

bear its own costs, fees and expenses in connection with

removal and remand;

3. That the Clerk of Court forthwith transmit the

record herein along with a certified copy of this Order to the

Clerk for the Circuit Court for Baltimore City;

4. That the Clerk of Court mail copies hereof and the

foregoing Memorandum Opinion to counsel for the parties;

and

4 That this case be CLOSED on this Court's

docket.

/s/

Frederic N. Smalkin

United States District Judge

App. 18