Petition for Writ of Certiorari — Mobil Mining & Minerals v. Nixson
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Buprems Court, U.S.
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00 44 yui6 200
No. 00-___ggeics Gm MME GLERK
IN THE
Supreme Court of the United States
MOBIL MINING & MINERALS,
Petitioner,
Vv.
DAVID R. NIXSON AND DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS, U.S. DEPARTMENT OF LABOR,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
ROBERT A. LONG, JR.
Counsel of Record
COVINGTON & BURLING
1201 Pennsylvania Ave., N.W.
Washington, D.C. 20004-2401
(202) 662-6000
Attorney for Petitioner
July 2000
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QUESTION PRESENTED
Whether, when any part of a manufacturing facility is
used for loading or unloading vessels, the entire facility,
including non-maritime areas, is “customarily used” for such
purposes and thus is a covered situs under Section 3(a) of the
Longshore and Harbor Workers’ Compensation Act, 33
U.S.C. § 903(a)?
PARTIES TO THE PROCEEDING AND
RULE 29.6 DISCLOSURE
The following were parties to the proceeding in the
court of appeals: Mobil Mining & Minerals, Insurance
Company of the State of Pennsylvania, David R. Nixson, and
Director, Office of Workers’ Compensation Programs, U.S.
Department of Labor.
Mobil Mining and Minerals is a division of Mobil
Business Resources Corp., which is a wholly-owned
subsidiary of Mobil Corporation. All of the stock of Mobil
Corporation is, in turn, owned by Exxon Mobil Corporation,
a publicly held company.
©
TABLE OF CONTENTS
Page
QUESTION PRESENTED ......sssssssssssessessneentensersnertnee i
PARTIES TO THE PROCEEDING AND
RULE 29.6 DISCLOSURE. .......--:--s+ssessessersersestesennensensre 00" ii
TABLE OF CONTENTS .......+:-ssssseseessessenresssnsssennenseessne ree ili
TABLE OF AUTHORITIES. ......---s-s-ssssessersesseseesenseetsnnrr Vv
OPINIONS BELOW .......:scssessssssersessrssenennsensensnnensnnnts sere 2
JURISDICTION .......-:.02.0-ccoseccssassssssssesncenssonsennsonconsensososeesseee 2
STATUTE INVOLVED......-+-::sscesseserssessersertesetn ttn 2
STATEMENT OF THE CASE .....-.-:+ssssesessesssserenssesensnsree 3
Facts Giving Rise To This Case........--.-s:sssssssrrsrserssrerrr 3
Administrative Proceedings ......-+--+-s-ssseserserrsterteren sneer +
The Decision Of The Fifth CUrcUulit ............eseeeeeeeeeeeesenneneeessees 6
REASONS FOR GRANTING THE WRIT ......-:ccesceeeeseeeeeees 6
I. THE FIFTH CIRCUIT'S DECISION
PERPETUATES A CIRCUIT CONFLICT
OVER THE MEANING OF THE PHRASE
“CUSTOMARILY USED” IN THE
sie oscseencnnannbenyessnonsemsnrermeneesvincearnr eo? 7
A. The Circuits Are Split On The Issue
Whether, When Part Of A
Manufacturing Facility Is Used For |
Loading Or Unloading Vessels, The
Entire Facility Is “Customarily Used”
For Such Purposes. .......---sss-sssrsesesersstenseeesnsnsnssesensesee® 7
- ili -
B. The Circuit Conflict Arises, At Least In
Part, From Uncertainty About The
Scope Of This Court’s Decisions. ...............:::c0ce0e 11
I]. THE FIFTH CIRCUIT’S HOLDING THAT
WHENEVER ANY PART OF A
MANUFACTURING PLANT IS USED TO
LOAD OR UNLOAD VESSELS, THE
ENTIRE PLANT IS “CUSTOMARILY
USED” FOR SUCH PURPOSES IS
INCONSISTENT WITH
CONGRESSIONAL INTENT .. ..:ccccscsconsestsccsssescenscnsseees 16
II]. THE PROPER INTERPRETATION OF
THE PHRASE “CUSTOMARILY USED”
PRESENTS AN IMPORTANT FEDERAL
QUESTION THAT HAS NOT BEEN, BUT
SHOULD BE, SETTLED BY THIS
GIPFIT Es: dinskcheiinssindpcsdcsncnhnsniiannintciaidatanstminnnpaiidianiagisasiaiiatam 19
CEG NN sissinnscicassinnintesdtind sasbssansaabasacendlicaad reuiodmaniiaie 21
PAF TR MGIEIT bsisnsnhebinsonscnssnnaninistscittesnhtannibliisanitiactenaasaiiial la
«iV
-
TABLE OF AUTHORITIES
CASES
Page(s)
Brooker v. Durocher Dock and Dredge, 133
F.3d 1390 (11th Cir.), cert. granted, 524
U.S. 982 (1998), cert. dismissed, 525
U.S. 957 (1998). ..secssssssesssseessnsscesessecnensnsnsssncncncnnsnsees 20, 21
Chesapeake and Ohio Railway Co. v.
Schwalb, 493 U.S. 40 (1989)......:s:sssseesesseseneeeees 8, 19, 20
_ Director, OWCP v. Greenwich Collieries,
512 U.S. 267 (1994) ......ssscccsscscecersserenenenenesnenssneneenscensezes 15
Director, OWCP v. Perini North River
Associates, 459 U.S. 297 (1983) ...----esesesesssreerereeeees 16, 20
Estate of Cowart v. Nicklos Drilling Co.,
505 U.S. 469 (1992) .....cescsseseersereserseeesereees BIg ae ever Fe 15
Fleishmann vy. Director, OWCP, 137 F.3d
131 (2d Cir.), cert. denied, 525 U.S. 981
(1998) ...nvesescoonscsscconnssssesannseanenpasesnnccennescnnscanaaansnanscanensstae 13
Herb’s Welding, Inc. v. Gray, 470 U.S. 414
(1985) ...ssccssssesscscssescnseensssneenscsscenscscensenennsnsces 14, 15, 19, 20
Hurston v. Director, OWCP, 989 F.2d 1547
(Sth Cir. 1993) .....sscccsessecssssssnseesnneenscsnnccnnscnscnnsnnsnnsnsseseess 13
Jonathan Corp. v. Brickhouse, 142 F.3d 217
(4th Cir.), cert. denied, 525 U.S. 1040
(1998) ...ns.cssccvsscssssnsensssnvesnsennsoncesncancnncassossncancansnensees passim
Nacirema Operating Co. v. Johnson, 396
UB. SERGI GOS wxrscicssssssceeniaitiianiniiaadicamdsauaiiits 7, 14, 18, 19
Northeast Marine Terminal Co. v. Caputo,
43.2.US.. BOP CRIT) tiecitisusiiensnteicdae passim
P.C. Pfeiffer Co. v. Ford, 444 U.S. 69
_ GTD) ...»sc0rcnenseserininatteibiaiintnliabbanishiniadsniainialbapt 18, 20
Pittston Stevedoring Corp. v. Dellaventura,
S44 F.2d 35, 53 (2d Cir. 1976).........ccccecscesscsscecsessosserees 12
Prolerized New England Co. v. Benefits
Review Board, 637 F.2d 30 (lst
CBp. TR). arsnssnisssnssesnceccicsudeacliicanaamanaeadaiamial passim
O'Leary v. Puget Sound Bridge & Dry Dock
Co, 49 F.28 S71 COGN CR. Sp iiisnerciccecessinsinnalah 16
Sidwell v. Express Container Services, Inc.,
71 F.3d 1134 (4th Cir. 1995),
cert. denied, 518 U.S. 1028 (1996) ....... eee eeeeeees 7, 10
Texports Stevedore Co. v. Winchester, 632
F.2d 504 (Sth Cir. 1980) (en banc)..............ceeeeeeeeeees 5, 6
Voris v. Eikel, S46 U3. S26 CAFBE ccsccsstivicininmain 15
STATUTES & LEGISLATIVE MATERIALS
28 U.S.C. § ERSOED cccininicosccissideecisiasescsncanen maeanenen 2
The Longshore and Harbor Workers’
Compensation Act (““LHWCA”), 33
—- —_— -) .
ee ae ee ee ee ee ee er Se
LHWCA § 2(3), 33 U.S.C. § SQ2GB) ........cccecccrecsccsssossceses 4
LHWCA § 3(a), 33 U.S.C. § 903(a)..........::cccceeeeees passim
LHWCA § 21(c), 33 U.S.C. § 921(C)................c.-.ccececreess 6
Longshoremen’s and Harbor Workers’
Compensation Act Amendments of
1972 § 2(c), Pub. L. No. 92-576, 86 Stat.
SI Ne g
HLR: Rep. No. 92-1441 (1972) ...co-sccccosccssscconssecsoncsesconsseconsee 18
en ee SO. 17, 18
MISCELLANEOUS
Gavranovic v. Mobil Mining and Minerals,
cig FR ZR er ~
2A Sutherland, Statutes and Statutory
Construction (4th ed., Norman Singér
Oe aac apeaieseacalitnsin pai iisetitianctnninniacsiats shanaanins 16
Webster’s Third New International
IE Te siiesiciincenncttitincntscinssiunnctincnemiqnsimntininptioncnnn 16
- Vil -
IN THE
SUPREME COURT OF THE UNITED STATES
MOBIL MINING & MINERALS,
Petitioner,
Vv.
DAVID R. NIXSON AND DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS, U.S. DEPARTMENT OF LABOR,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
Mobil Mining & Minerals (“Mobil”) respectfully
petitions this Court for a Writ of Certiorari to review a
judgment of the United States Court of Appeals for the Fifth
Circuit. The Fifth Circuit, in accord with the First Circuit
and in conflict with the Fourth Circuit, held that whenever
part of a manufacturing facility (e.g, a dock) is used for
loading or unloading vessels, the entire facility is
“customarily used” for such purposes and thus is a covered
“situs” under § 3(a) of the Longshore and Harbor Workers’
Compensation Act (“LHWCA”), 33 U.S.C. § 903(a).
Certiorari should be granted to resolve the conflict among
leading maritime-law circuits on this issue, which results
from uncertainty about the scope and effect of this Court’s
prior decisions interpreting the LHWCA, and which
undermines Congress’ goal of establishing a uniform
compensation structure by subjecting employers and
ats
employees to different coverage rules in different parts of the
country.
OPINIONS BELOW
The opinions of the court of appeals, Appendix
("App.") la-2a, the Benefits Review Board, App. 3a-8a, and
the administrative law judge, App. 9a-35a, are unreported.
JURISDICTION
The decision of the court of appeals was filed on
February 7, 2000. Mobil’s petition for rehearing was denied
on April 7, 2000. App. 36a. This Court's jurisdiction rests
on 28 U.S.C. § 1254(1).
STATUTE INVOLVED
The Longshore and Harbor Workers’ Compensation
Act (“LHWCA”), 33 U.S.C. §§ 901-950, provides in
pertinent part:
Except as otherwise provided in this
section, compensation shall be payable
under this chapter in respect of disability or
death of an employee, but only if the
disability or death results from an injury
occurring upon the navigable waters of the
United States (including any adjoining pier, .
wharf, dry dock, terminal, building way,
marine railway, or other adjoining area
customarily used by an employer in
loading, unloading, repairing, dismantling,
or building a vessel.)
Id. § 903(a).
STATEMENT OF THE CASE
Facts Giving Rise To This Case
Mobil Mining and Minerals (“Mobil”) operates a
fertilizer manufacturing plant in Pasadena, Texas, on the
southern shore of the Houston Ship Channel. The raw
materials used to make fertilizer — phosphate rock, ammonia,
and sulfuric acid — arrive at the plant by truck, rail, and
barge. App. 15a. Finished fertilizer products leave the plant
primarily by rail and truck, and to a limited extent by barge
and ship. App. 4a, 20a.
When raw materials arrive at Mobil’s manufacturing
plant by vessel or barge, they are never loaded directly onto a
rail car or a truck. Conversely, when raw materials come
into the plant by rail or truck, they are never loaded directly
onto a vessel or barge. Rather, “[e]verything goes into the
plant to be processed.” Tr. 106-07.' Mobil’s plant,
therefore, is not a “trans-shipment place” or an “intermodal
or cargo shipment depot.” Tr. 108.
Mobil’s plant has four docks at which barges may be
either loaded or unloaded. App. 14a. Respondent Nixson,
however, was not injured on (or even near) any of these
docks. Rather, he was injured at the inland junction of the
manufacturing plant’s two railroad tracks. The rail line is
separated from the waterfront by a road, several large
warehouse buildings, and a rock storage tank. App. 14a;
Exh. CX-11 (plant map, reprinted following App. 49a).
Nixson was injured when his arm was unexpectedly
caught in the coupling between two empty rail cars. App.
’ “Tr.” refers to the transcript of the hearing before the
administrative law judge.
20a. Nixson was not loading or unloading the rail cars at the
time of his injury; indeed, rail cars were never loaded or
unloaded in the area where Nixson’s injury occurred. Tr.
110. Instead, Nixson was “attempting to couple cars together
for purposes of pushing them back to the storage tracks when
his accident occurred.” App. 20a.
After his injury, Nixson promptly received state
workers’ compensation and medical benefits. App. 11a-12a.
Nixson returned to Mobil approximately ten months after his
accident, working as a laboratory technician. App. 12a.
Administrative Proceedings
Nixson filed a claim for benefits under the LHWCA.
App. 10a. Mobil defended by challenging the applicability
of the Act, contending that the injury did not occur on a
statutorily covered “situs.” Specifically, Mobil contended
that the rail line where Nixson was injured does not
“adjoin{]” navigable waters and is not “customarily used by
the Employer to load and unload vessels.” App. 24a.’
Rejecting Mobil’s focus on the rail line as the specific site of
Nixson’s injury, the administrative law judge (“ALJ”)
“conclude[d] that Employer's facility is in the vicinity of
navigable waters and is used to load and unload vessels.”
App. 27a-28a (emphasis added). The ALJ expressly rejected
Mobil’s contention that a “manufacturing area[] having [its]
own docking facilities’ should not be considered an
“adjoining area” that is “customarily used” for loading and
unloading vessels within the meaning of § 3(a). App. 26a.
In so holding, the ALJ disapproved “the Fourth Circuit’s
: Mobil also argued that, at the time of his injury, Nixson
was not engaged in “maritime employment” within the meaning of
LHWCA § 2(3), 33 U.S.C. § 902(3); however, Mobil dropped this
“status” argument on appeal before the Fifth Circuit.
vis
restrictive construction of the situs requirement,” App. 26a,
which is discussed in detail below, see infra pages 9-10.
The Benefits Review Board (“BRB”) noted Mobil’s
argument that the ALJ “erred in concluding that its entire
facility, including the rail line where claimant was injured, is
a covered situs under the Act,” App. 6a (emphasis added),
but nonetheless affirmed the ALJ’s decision “for the reasons
set forth in” an earlier decision involving Mobil’s fertilizer
plant, Gavranovic v. Mobil Mining and Minerals, 33
B.R.B.S. 1 (Feb. 23, 1999), App. 7a. In Gavranovic, the
BRB “decline[d] to impose the more restrictive law
established by the United States Court of Appeals for the
Fourth Circuit.” App. 44a-45a. Instead, relying on the Fifth
Circuit’s controlling decision in Texports Stevedore Co. v.
Winchester, 632 F.2d 504 (Sth Cir. 1980) (en banc), the _
Board explained that while a site must have some “maritime
nexus” to be “considered a covered situs,” “it need not be
used exclusively or primarily for maritime purposes.” App.
43a. Referring specifically to Mobil’s fertilizer plant, the
Board held that “[a]lthough the facility ... is a manufacturing
operation, and the [specific site at] which [claimants] were
injured is not directly involved with the loading or unloading
of barges or vessels, part of employer’s business involves
sending and receiving goods by barges or vessels — a
distinctly maritime activity.” App. 47a (emphasis added).
Accordingly, “because significant maritime activity (loading
and unloading barges) occurs on the docks at [Mobil’s]
facility,” the Board held that Mobil’s entire facility — most of
which is never used in loading or unloading barges — is
“customarily used” for such purposes within the meaning of
§ 3(a). App. 47a (emphasis added).
The Decision Of The Fifth Circuit
The Fifth Circuit affirmed in a brief unpublished
decision.’ The Fifth Circuit followed what it called the
“seminal case in th[{at] court, Texports Stevedore Co. v.
Winchester, 632 F.2d 504 (Sth Cir. 1980) (en banc).” App.
2a. While acknowledging that “the pinpoint site of the
accident” (the rail line) was not a covered situs within the
meaning of § 3(a), the court held that the “area constituting
Mobil's facility” was a covered situs. App. 2a (emphasis
added). The Fifth Circuit subsequently denied Mobil’s
petition for rehearing.
REASONS FOR GRANTING THE WRIT
This Court has not hesitated to grant certiorari in
order to resolve “conflict[s] over the coverage afforded by
the 1972 Amendments” to the LHWCA. Caputo, 432 U.S. at
256. This case presents just such a conflict. Section 3(a)’s
“catch-all” clause extends coverage under the LHWCA to
“adjoining area[s] customarily used by an employer in
loading, unloading, repairing, dismantling, or building a
vessel.” 'What does it mean for an “adjoining area” to be
“customarily used” for loading, unloading, repairing,
dismantling, or building a vessel? In the absence of a
definitive construction by this Court, the courts of appeals
have reached very different conclusions.
: The Fifth Circuit had jurisdiction pursuant to 33 U.S.C.
§ 921(c).
THE FIFTH CIRCUIT’S DECISION
PERPETUATES A CIRCUIT CONFLICT OVER
THE MEANING OF THE PHRASE
“CUSTOMARILY USED” IN THE LHWCA.
A. The Circuits Are Split On The Issue
Whether, When Part Of A Manufacturing
Facility Is Used For Loading Or Unloading
Vessels, The Entire Facility Is
“Customarily Used” For Such Purposes.
1. Prior to 1972, coverage under the LHWCA turned
on whether an injury occurred “upon the navigable waters.”
In 1969, this Court confirmed that longshore workers injured
on navigable waters (or on ships) were covered under the
LHWCA, but longshore workers injured on adjacent piers or
wharves were not. See Nacirema Operating Co. v. Johnson,
396 U.S. 212, 223-24 (1969); see also Northeast Marine
Terminal Co. v. Caputo, 432 U.S. 249, 259 (1977) (“[T]he
Court made it clear that federal coverage stopped at the
water’s edge.”). “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.” Sidwell v. Express
Container Servs., Inc., 71 F.3d 1134, 1135 (4th Cir. 1995),
cert. denied, 518 U.S. 1028 (1996). Notwithstanding the
“anomal[y] inherent in a system that drew lines at the water’s
edge,” Caputo, 432 U.S. at 281, this Court declined “[t]he
invitation to move [the coverage] line landward,” declaring
that such an invitation had to be “addressed to Congress,”
Nacirema, 396 U.S. at 224.
In 1972, Congress responded to Nacirema , by
amending LHWCA § 3(a) to cover not only injuries
occurring “upon the navigable waters” but also injuries
occurring on “any adjoining pier, wharf, dry dock, terminal,
building way, marine railway, or other adjoining area
mv
customarily used by an employer in loading, unloading,
repairing, dismantling, or building a __ vessel.”
Longshoremen’s and Harbor Workers’ Compensation Act
Amendments of 1972 § 2(c), Pub. L. No. 92-576, 86 Stat.
1251, 1251 (Oct. 27, 1972). In addition to this broadened
“situs” test, Congress added a “status” requirement, which
limited coverage to persons “engaged in maritime
employment, including any longshoreman or other person
engaged in longshoring operations, and any harbor-worker
were a ship repairman, shipbuilder, and —
” Id. § 2(a).
2. As explained above, the ALJ, the BRB, and the
Fifth Circuit held that because part of Mobil’s manufacturing
facility (namely, the dock area) is used for loading and
unloading barges, the entire manufacturing facility —
including a rail line that was never used for loading or
unloading — is “customarily used” for maritime purposes
within the meaning of § 3(a).* In so holding, the Fifth
Circuit joined the First Circuit, which has also found the situs
requirement met in a case involving employees injured in
non-maritime areas of a manufacturing plant because the
plant had docks that were used for loading and unloading
ships.
In Prolerized New England Co. v. Benefits Review
Board, 637 F.2d 30 (ist Cir. 1980), the First Circuit
encountered a case very much like this one and decided it in
like fashion. Prolerized operated a “scrap metal business” in
Everett, Massachusetts, alongside the Mystic River. /d. at
33. Like Mobil’s fertilizer plant, Prolerized’s manufacturing
. Because the rail line where Nixson was injured was never
used in connection with loading or unloading vessels, it is very
different from the rail line at issue in Chesapeake and Ohio
Railway Co. v. Schwalb, 493 U.S. 40 (1989).
.
facility “ha[d] its own shiploading equipment and dock.” Jd.
And,’ like Nixson, the claimant in Prolerized was injured
while working on a piece of equipment that was not used to
load or unload vessels and did not itself adjoin the water but,
instead, was located “1000 feet from the water’s edge.” Jd. at
38.
Notwithstanding the facts (1) that Prolerized’s plant,
like Mobil’s, was neither a shipyard nor a terminal but rather
a manufacturing facility that “created from raw material a
recognizably different product,” id. at 36, and (2) that,
“viewed functionally,” the specific piece of equipment on
which the claimant was injured was “far removed from the
loading of ships,” id. at 38, the First Circuit held that
Prolerized’s entire facility was a covered situs. In so holding,
the Prolerized court relied on this Court’s decision in
Caputo, 432 U.S. 249, which, as the First Circuit read it,
“made clear that a covered ‘adjoining area’ need not be
entirely devoted to shiploading” in order to be considered
“customarily used” within the meaning of § 3(a). 637 F.2d at
38 (“[T]he Court [in Caputo] held an entire terminal facility
_ covered when one of its two finger-piers was used to load
and unload vessels.”). The First Circuit adopted a “similarly
expansive” approach to § 3(a) in Prolerized and held that,
although the employer’s plant was a manufacturing facility
and not a “terminal,” because part of that facility (i.e., the
dock) was used for shiploading and unloading, the entire
facility — including the non-maritime-related piece of
equipment on which the claimant was injured — was
“customarily used” for purposes of § 3(a). See id. at 39.
3. The view of the First and Fifth Circuits — that so
long as any part of a manufacturing facility is used for
maritime purposes the entire facility is a covered situs —
conflicts with the Fourth Circuit’s interpretation of the
LHWCA as expressed in Jonathan Corp. v. Brickhouse, 142
F.3d 217 (4th Cir.), cert. denied, 525 U.S. 1040 (1998). The
= a
facility at issue in Brickhouse was a “steel fabrication plant”
which, like Prolerized’s and Garvey’s plants — and like
Mobil’s plant here — was situated on a navigable waterway
and “ha[d] a dock for loading barges.” Jd. at 218-19. Unlike
the First and Fifth Circuits, however, the Fourth Circuit
refused in Brickhouse to conclude that, simply because part
of the manufacturing facility might be used for loading and
unloading ships, the whole facility is “customarily used” for
maritime purposes and thus a covered situs under § 3(a).
Instead, hewing closely to the text of § 3(a), the
Fourth Circuit observed that the situses expressly enumerated
in the text — piers, wharves, dry docks, terminals, building
ways, and marine railways — are all “facilities customarily
used by longshoremen in loading and unloading ships and in
repairing or building them.” /d. at 221. Applying traditional
interpretive canons, the court held that the “other areas”
referred to in § 3(a)’s catch-all clause likewise “must be for
the loading or unloading of cargo onto ships in navigable
waters, or for the ‘repairing, dismantling, or building’ of
those ships.” Jd.; accord Sidwell, 71 F.3d at 1139 (“[AJn
‘other adjoining area’ as to which coverage extends must be
like a ‘pier,’ ‘wharf,’ ‘dry dock,’ ‘terminal,’ “building way,’
or ‘marine railway.’”). Specifically, the Brickhouse court
held that to be covered, these “other area[s]” must be
“discrete structure[s] or facilit[ies], the very raison d’étre of
which is [their] use in connection with navigable waters.” Jd.
(quoting Sidwell, 71 F.3d at 1139). Thus, notwithstanding
the facts that the plant property adjoined a river and that part
of the plant (i.e., the dock) was used for loading and
unloading barges, the Fourth Circuit held that “the steel
fabrication plant where [claimant] was injured was not a
facility, the ‘raison d’étre of which is its use in connection’
with the nearby navigable waters” and, therefore, was not a
statutorily covered situs. Jd. at 222.
<i.
4. In sum, the First and Fifth Circuits have held that
so long as a single part of a manufacturing facility (e.g., a
dock) is used for maritime purposes, the entire facility is
considered to be “customarily used” under § 3(a). The
Fourth Circuit, in contrast, requires that a covered facility —
not a part of the facility, but the facility itself — be one the
“the very raison d’étre of which is its use in connection with
navigable waters.” This Court should grant certiorari to
resolve this conflict.
B. The Circuit Conflict Arises, At Least In
Part, From Uncertainty About The Scope
Of This Court’s Decisions.
1. In Caputo, this Court was faced with the question
whether a claimant (Blundo) was injured on a covered situs
when he slipped on a pier located within a shipping terminal
in Brooklyn:
Blundo’s injury was sustained while he
was checking a container being stripped on
a pier located within a facility known as the
21st Street Pier. The fenced-in facility was
located on the water and ran between 19th
and 21st Streets. It included two “finger-
piers.” The pier on the 21st Street end was
used to berth ships for purposes of loading
and unloading them. The one on the 19th
Street end was used only for stripping and
stuffing containers and storage. Blundo
was working on this latter pier.
432 U.S. at 279-80 (citations omitted).
The employer in Caputo argued that Blundo was not
on a covered situs when he was injured because the specific
site of his injury — the 19th Street pier — “was not
oft«
‘customarily used by an employer for loading [or] unloading
... a vessel.’” Jd: at 280. This Court rejected the employer’s
contention. First, the Court noted that Blundo was injured on
the 19th Street pier while “stripping” and “stuffing” shipping
containers, and observed that “[s]tripping a container ... is
the functional equivalent of sorting cargo discharged from a
ship [and] stuffing a container is part of the loading of the
ship even though it is performed on shore and not in the
ship’s cargo holds.” Jd. at 270-71 (quoting Pittston
Stevedoring Corp. v. Dellaventura, 544 F.2d 35, 53 (2d Cir.
1976) (Friendly, J.)). Second, and more significantly for
present purposes, the Caputo Court concluded that because
“one of the two finger-piers clearly was used for loading and
unloading vessels,” the “entire terminal facility” — including
the non-maritime-related pier on which Blundo was injured —
was “customarily used” and was thus a covered situs under §
3(a). Id. at 281.
2. The First Circuit in Prolerized relied on Caputo in
concluding that the injury there at issue occurred on a
covered situs. By holding “an entire terminal facility covered
when one of its two finger-piers was used to load and unload
vessels,” the First Circuit thought Caputo “made clear that a
covered ‘adjoining area’ need not be entirely devoted to
shiploading” in order to be considered “customarily used”
under § 3(a). Prolerized, 637 F.2d at 38. The Fourth Circuit
in Brickhouse, on the other hand, did not consider itself
bound by Caputo. Notwithstanding the fact that a distinct
part of the facility in Brickhouse — namely, the barge dock —
was used for loading and unloading vessels, the court
concluded that the injury did not occur on a covered situs
because the manufacturing plant viewed as a whole was not a
“facility the very raison d’étre of which is its use in
connection with navigable waters.” 142 F.3d at 222.
3. The Fourth Circuit was correct to distinguish
Caputo. As an initial matter, this Court’s suggestion in
«12
Caputo that a discrete part of a terminal could render the
entire terminal facility “customarily used” for purposes of
§ 3(a) was dictum. The Caputo Court first expressed grave
doubt that “the phrase ‘customarily used’ was intended to
modify more than the immediately preceding phrase ‘other
areas.” 432 U.S. at 280.° The Court’s indication that the
21st Street pier somehow made the whole terminal — and,
hence, the 19th Street pier — a covered situs proceeded only
on the “assum[ption]” that the phrase “customarily used”
could also “be read to modify the preceding terms” such as
“terminal” and “pier.” /d. at 281.
It is not at all clear that the rationale of Caputo — that
whenever part of a facility is “customarily used” for maritime
purposes the entire facility is likewise “customarily used” —
extends to a case like this one (and like Prolerized, Garvey,
and Brickhouse) where the facility at issue is not a shipping
“terminal” (as in Caputo) but rather a manufacturing plant.
Quite unlike a manufacturing plant, a “terminal” is a situs
specifically enumerated in § 3(a) along with “pier,” “wharf,”
“dry dock,” “building way,” and “marine railway.” A
“terminal,” like the other specifically enumerated structures
and facilities, is by its very nature related to maritime activity
— in the Fourth Circuit’s parlance, it is a “facility the very
raison d’étre of which is its use in connection with navigable
waters.”
Thus, it is not the least bit unnatural to conclude that
Blundo’s injury — occurring as it did within the confines of a
7 Lower courts have followed Caputo’s suggestion and have
held that specifically enumerated structures, such as “terminals,”
need not be “customarily used” in order to qualify as maritime
situses under § 3(a). See, e.g., Fleishmann v. Director, OWCP,
137 F.3d 131, 138-39 (2d Cir.), cert. denied, 525 U.S. 981 (1998);
. Hurston v. Director, OWCP, 989 F.2d 1547, 1552 (9th Cir. 1993).
eo
shipping “terminal” — occurred on a maritime situs. It is
quite another matter, however, to conclude that Nixson’s
injury, which occurred in a non-maritime area of a fertilizer
manufacturing plant located a considerable distance from the
water, likewise occurred on a maritime situs. Under the rule
adopted by the First and Fifth Circuits, every manufacturing
plant that happens to have a shipping and receiving dock is
transformed — in toto — into a maritime situs for purposes of
§ 3(a), even if the core operations of the plant involve
manufacturing rather than traditional maritime activity.
4. It is questionable whether the “part-therefore-
whole” rationale of Caputo has survived subsequent
decisions of this Court. In relying on Caputo to extend
LHWCA coverage to the entire scrap metal processing
facility before it, the First Circuit in Prolerized stated that
“[a] crazy quilt pattern of situs coverage tracking the
indistinct line between Prolerized’s manufacturing and
loading operations would produce uncertainty and confusion
for employers and employees alike.” 637 F.2d at 39. The
Prolerized court’s Caputo-based justification for its
sweeping situs definition has been overtaken by the teaching
of this Court’s decision in Herb’s Welding, Inc. v. Gray, 470
U.S. 414 (1985). There, this Court dismissed as “not ...
compelling” a similar argument that “denying coverage to
someone in [claimant’s] position will result in exactly the
sort of checkered coverage that Congress sought to eliminate
in 1972.” Id. at 426. The premise of the First and Fifth
Circuit’s decisions, like the argument rejected in Herb’s
Welding, “goes far beyond Congress’ undoubted desire to
treat equally all workers engaged in loading or unloading a
ship, whether they were injured on the ship or on an
adjoining pier or dock.” Jd. As the Court observed in Herb’s
Welding, because the situs requirement is geographic, “there
will always be a boundary to coverage, and there will always
be people who cross it during their employment.” /d. (citing
Nacirema, 396 U.S. at 223-24). “If that phenomenon was
a
Re TTS
enough to require coverage, the Act would have to reach
much further than anyone argues it does or should.” Jd. at
426-27. The Fourth Circuit relied on this very passage from
Herb's Welding in refusing to extend coverage to an entire
manufacturing facility in Brickhouse. See 142 F.3d at 220.
In addition, the decision in Caputo was expressly
‘premised on the liberal construction approach of Voris v.
Eikel, 346 U.S. 328, 333 (1953), in which this Court
observed that the LHWCA should be “liberally construed in
conformance with its purpose, and in a way which avoids
harsh and incongruous results.” More recently, however, this
Court has declined in LHWCA cases to apply Voris, and has
instead emphasized as the “controlling principle” the “basic
and unexceptional rule that courts must give effect to the
clear meaning of statutes as written.” Estate of Cowart v.
Nicklos Drilling Co., 505 U.S. 469, 476 (1992); see also id.
at 502 (Blackmun, J., dissenting) (criticizing Court for
ignoring Voris’ liberal construction rule); cf Director,
OWCP v. Greenwich Collieries, 512 U.S. 267, 281 (1994)
(abrogating the “true doubt” rule, which shifts burden of
persuasion to party opposing LHWCA claim). Cowart and
Greenwich Collieries thus undermine one of the key
assumptions upon which the Caputo _— and the
decision of the Fifth Circuit rest.
This Court should grant certiorari to clarify the scope
of its dictum in Caputo and the effect of its subsequent
decisions in Herb’s Welding, Cowart, and Greenwich
Collieries.
aot.
Il. THE FIFTH CIRCUIT’S HOLDING THAT
WHENEVER ANY PART OF A
MANUFACTURING PLANT IS USED TO
LOAD OR UNLOAD VESSELS, THE ENTIRE
PLANT IS “CUSTOMARILY USED” FOR
SUCH PURPOSES IS INCONSISTENT WITH
CONGRESSIONAL INTENT.
“The issue of [LHWCA] coverage is an issue of
statutory construction and legislative intent.” Director,
OWCP v. Perini North River Associates, 459 U.S. 297, 305
(1983). The Fifth Circuit’s approach to the situs issue cannot
be squared with any of the traditional indicia of legislative
intent.
1. Each of the situses specifically enumerated in
§ 3(a) — piers, wharves, dry docks, terminals, building ways,
and marine railways — is, by its very nature, maritime-
related.© Under the well-established interpretive principle
ejusdem generis, “[w]here general words follow specific
words in a statutory enumeration, the general words are
construed to embrace only objects similar in nature to those
objects enumerated by the preceding specific words.” 2A
Sutherland, Statutes and Statutory Construction § 47.17 at
188 (4th ed., Norman Singer ed. 1973). Thus, it follows that,
° The maritime character of piers, wharves, dry docks, and
terminals is common knowledge. A “marine railway” consists of
“inclined tracks extending into the water so that a ship can be
hauled up on a cradle or platform for cleaning or repairs.”
Webster's Third New International Dictionary 1382 (1993). A
“building way” is “a permanent shipyard structure located entirely
on land which [is] designed and is used exclusively for new ship
construction. To facilitate the launching of completed vessels, the
outermost or seaward end of the building way extends into the
water on an incline.” O'Leary v. Puget Sound Bridge & Dry Dock
Co., 349 F.2d 571, 573 (9th Cir. 1965).
~ e
in order to come within the purview of § 3(a), an “other
adjoining area” must likewise be of an inherently maritime
character. As the Fourth Circuit has put it, an “adjoining
area” must be “like” a pier, wharf, dry dock, terminal,
building way, or marine railway — i.e., it must be “a discrete
structure or facility the very raison d’étre of which is its use
in connection with navigable waters.” Brickhouse, 142 F.3d
at 222.
Here, the Fifth Circuit acknowledged that the
“pinpoint site” of Nixson’s accident — the rail line — was not
“customarily used” for loading or unloading vessels; rather,
its coverage determination rested on its conclusion that the
entire “area constituting Mobil’s facility” was “customarily
used” and thus a § 3(a)-covered situs. App. 2a. But, unlike a
pier or a wharf, a fertilizer manufacturing plant simply is not
by its very nature a maritime facility. The fertilizer plant’s
purpose — its “raison d’étre” — is to manufacture fertilizer, not
to build or service ships. Accordingly, the plain language of
§ 3(a) cannot sustain the Fifth Circuit’s sweeping
interpretation.
2. Nor does the legislative history of the 1972
Amendments lend any support to the Fifth Circuit’s
extension of the LHWCA beyond Mobil’s barge docks to
include an entire manufacturing plant. To the contrary, the
Senate Report indicates that Congress’ purpose was merely
to “expand[] the coverage of th{e] Act to cover injuries
occurring in the contiguous dock area related to longshore
and ship repair work.” S. Rep. No. 92-1125, at 2 (1972) (“S.
Rep.”) (emphasis added). The House and Senate Reports
both cite as a “typical example” the following scenario,
which demonstrates the limited intended scope of the
shoreward extension:
[CJargo, whether in break bulk or
containerized form, is typically unloaded
se
from the ship and immediately transported
to a storage or holding area on the pier,
wharf, or terminal adjoining navigable
waters. The employees who perform this -
work would be covered under the bill for
injuries sustained by them over the
navigable waters or on the adjoining land
area.
S. Rep. at 13; H.R. Rep. No. 92-1441, at 11 (1972) (emphasis
added).
3. Finally, the Fifth Circuit’s decision sweeping
Mobil’s entire manufacturing plant into LHWCA coverage
merely because one part of the plant is used to load and
unload vessels is contrary to this Court’s own explanations of
Congress’ intent. As an initial matter, as this Court observed
in P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 73 (1979), the 1972
situs amendments were a “respon{se]” to the 1969 Nacirema
decision. In Nacirema, this Court declined to extend pre-
1972 LHWCA coverage to “injuries occurring on piers”
because “structures such as wharves and piers, permanently
affixed to land, are extensions of the land,” 396 U.S. at 213-
15, but expressly invited Congress to overrule its decision via
legislative amendment, see id. at 224. Particularly given this
Court’s invitation and Congress’ prompt response, the 1972
Amendments should be read primarily to extend LHWCA
coverage to the sorts of employees denied coverage in
Nacirema — i.e., workers loading vessels on piers and
wharves immediately adjacent to the water.
Thus, this Court has explained that Congress’ purpose
in amending § 3(a) was to “avoid anomalies inherent in a
system that drew lines at the water’s edge,” Caputo, 432 U.S.
at 281, and to “extend[] coverage to the area adjacent to the
ship that is normally used for loading and unloading,”
Schwalb, 493 U.S. at 46. Although it was unquestionably
- 18 -
“anomal([ous]}” to afford LHWCA coverage to employees on
one end of the gangplank while denying it to those on the
other, there is nothing anomalous in limiting coverage to
genuinely maritime areas and refusing to extend the notion of
maritime situs to include entire manufacturing plants.
There is no doubt that some areas within Mobil’s
manufacturing plant constitute maritime situses — the four
loading docks, for instance, are clearly areas that “adjoin{]”
the water and are “customarily used” for maritime purposes.
However, there is no evidence — in the text of § 3(a), in the
legislative history, or in this Court’s precedents — that
Congress intended for entire manufacturing facilities like
Mobil’s to be deemed “customarily used” for loading or
unloading vessels simply because they have their own docks.
Had Congress so intended, it would have used language to
reflect that intent; indeed, it need only have added a few
words so that the catch-all clause read: “... or other adjoining
facility that includes areas customarily used” for loading or
unloading vessels. As this Court has noted more than once,
such a decision is for the members of Congress — courts
“should not legislate for them.” Herb’s Welding, 470 U.S. at
427; see also Nacirema, 396 U.S. at 224 (“The invitation to
move [the coverage] line landward must be addressed -to
Congress, not to this Court.”).
il. THE PROPER INTERPRETATION OF THE
PHRASE “CUSTOMARILY USED” PRESENTS
AN IMPORTANT FEDERAL QUESTION THAT
HAS NOT BEEN, BUT SHOULD BE, SETTLED
BY THIS COURT.
This Court has in the past addressed several issues
relating to the scope of coverage under the LHWCA. This
Court has recognized, for instance, that the LHWCA
“contains distinct situs and status requirements,” P.C.
Pfeiffer Co., 444 U.S. at 78; that “the status requirement is
i.
occupational and the situs test is geographic,” Perini, 459
U.S. at 324 n.32; and that neither requirement should be read
to render the other superfluous, see Herb’s Welding, 470 U.S.
at 426. Moreover, this Court has on numerous occasions
considered the contours of the LHWCA’s “status”
requirement. See, e.g., Schwalb, 493 U.S. 40; Herb’s
Welding, 470 U.S. 414; Perini, 459 U.S. 297; P.C. Pfeiffer
Co., 444 U.S. 69; Caputo, 432 U.S. 249. But this Court has
never spoken definitively to the meaning of § 3(a)’s situs
requirement — or, more specifically, to the meaning of the
catch-all clause’s requirement that an “adjoining area” be
“customarily used” for loading or unloading.
In the vacuum left by this Court’s decisions, a circuit
conflict has developed over the proper interpretation of the
phrase “customarily used”: Is it the case that whenever a
manufacturing plant has its own docks that are used to load
or unload vessels carrying materials to or from the plant, the —
entire plant — including concededly non-maritime areas — is
“customarily used” within the meaning of § 3(a)? The First
and Fifth Circuits say yes; the Fourth Circuit says no. So
long as the split is allowed to persist, Congress’ objective of
providing a uniform compensation structure will be thwarted.
Indeed, under the current state of the law, employers like
Mobil that have multistate operations remain subject to
dramatically different coverage regimes in different part of
the country.
* * *
It would appear that this Court was poised to clarify
the meaning of the “customarily used” standard when it
granted certiorari two years ago in Brooker v. Durocher Dock
and Dredge, 133 F.3d 1390 (11th Cir.), cert. granted, 524
U.S. 982 (1998). However, the petition in Brooker was
dismissed pursuant to Rule 46.1 by agreement of the parties.
See 525 U.S. 957 (1998). This petition provides the Court
MD.
the opportunity it lost in Brooker — an opportunity to clarify
the much-debated meaning of the LHWCA’s situs
requirement.
CONCLUSION
For the foregoing reasons, the petition should be
granted.
Respectfully submitted,
Robert A. Long, Jr.
Counsel of Record
Covington & Burling
1201 Pennsylvania Ave., N.W.
Washington, D.C. 20004-2401
(202) 662-6000
Attorney for Petitioners
July 2000
la
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-60273
MOBIL MINING & MINERALS; INSURANCE
COMPANY OF THE STATE OF PENNSYLVANIA,
Petitioners
versus
DAVID R. NIXSON; DIRECTOR, OFFICE OF
WORKER’S COMPENSATION PROGRAMS, USS.
DEPARTMENT OF LABOR,
Respondents.
Petition for review of an Order of the
Office of Workers Compensation Programs &
The U.S. Department of Labor
Before GARWOOD, WIENER, and DENNIS, Circuit
Judges.
PER CURIAM:*
Respondent-Claimant David R. Nixson sought
benefits under the Longshore and Harbor Workers’
Compensation Act, 33 U.S.C. §§ 901, et. seg. for an arm
* Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
2a
injury sustained while working for his employer, Mobil
Mining & Minerals, at rail facilities on Mobil’s premises
adjacent to the Ship Channel in Houston, Texas. The claim
proceeded on stipulated facts before an Administrative Law
Judge, the ALJ awarded Nixson benefits under the LHWCA
after concluding that he met both the “status” and “situs”
tests for coverage. Petitioners appealed the ALJ’s ruling to
the BRB which affirmed. Petitioners now ask us to reverse
the BRB and ALJ, conceding “status,” but challenging
“situs.”
We have carefully reviewed the stipulated facts
regarding both the particular site where the accident occurred
and the surrounding area constituting Mobil’s facility
contiguous to the Ship Channel in light of the applicable law
as set forth in the briefs of counsel to this court and discussed
in oral argument before us. Particularly in light of our
standard of review of this case and the seminal case in this
court, Texports Stevedore Co. v. Winchester, 632 F.2d 504
(Sth Cir. 1980) (en banc), we are convinced that the “area,”
as distinguished from the pinpoint site of the accident, is a
covered situs pursuant to the plain wording of § 903(a) of the
LHWCA. As Nixson’s status was stipulated, his claim is
clearly within the coverage of the LHWCA. We therefore
affirm the rulings of the ALJ and the BRB to that effect.
AFFIRMED.
3a
BRB No. 98-988
DAVID R. NIXSON
Claimant-Respondent )
| v.
MOBIL MINING AND MINERALS
and
INSURANCE COMPANY OF THE
STATE OF PENNSYLVANIA
Employer/Carrier
Petitioners
Date Issued: March 3, 1999
DECISION AND ORDER
Appeal of the Decision and Order of Lee J.
Romero, Jr., Administrative Law Judge,
United States Department of Labor.
Dennis L. Brown, Houston, Texas, for
claimant.
Thomas C. Fitzhugh III and J. Corbin Van
Arsdale (Fitzhugh & Elliott, P.C.), Houston,
Texas, for employer/carrier.
Before: SMITH and McGRANERY,
Administrative Appeals Judges, and
4a
NELSON, Acting Administrative Appeals
Judge.
PER CURIAM:
Employer appeals the Decision and Order (97-LHC-
238) of Administrative Law Judge Lee J. Romero, Jr.,
rendered on a claim filed pursuant to the provisions of the
Longshore and Harbor Workers’ Compensation Act, as
amended, 33 U.S.C. § 901 et seq. (the Act). We must affirm
the administrative law judge’s findings of fact and
conclusions of law if they 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).
Employer is a fertilizer manufacturer whose facilities
adjoin the Houston Ship Channel. It receives raw materials
(sulphur, anhydrous ammonia, phosphate rock, and sulfuric
acid) by truck, railway and barges, and it produces sulfuric
acid, phosphoric acid, ammonium thiosulfate (liquid
fertilizer), and two grades of solid fertilizer called
dioammonium phosphate and monoammonium phosphate.
The finished product is shipped out by trucks, railway, barges
and ships.
Claimant and employer stipulated that claimant was
injured on January 16, 1994, during the course of his
employment,’ and that employer paid claimant benefits under
the Texas workers’ compensation statute for his injuries, but
that if the administrative law judge found claimant to be a
covered employee under the Longshore Act, he would be
entitled to greater benefits for the same periods of time.
' Claimant’s left arm was crushed between two railcars during the
switching procedure. He filed a claim for compensation for the
left arm injury as well as for a psychological injury. Emp. Ex. 2.
Sa
Further, they stipulated that, during the year preceding his
injury, between 41 and 50 percent of claimant’s work
involved loading and unloading vessels. At the time of his
injury, claimant was classified as an “A” operator. An “A”
operator undertakes various duties including operating the
marine loader to load finished product on to barges, operating
the Buhler to unload phosphate rock from barges, operating
the loading units in Buildings 9 and 10, and driving the diesel
locomotive. See Tr. at 31; see also Gavranovic v. Mobil
Mining & Minerals, | BRBS __, BRB No. 98-741
(February 19, 1999).? On the day of his injury, claimant was
assigned to the locomotive crew to keep the railcars moving
ad the units supplied with railcars to load. Tr. at 103.
- The administrative law judge found that employer’s
facility adjoins the Houston Ship Channel and is suited for its
purpose of receiving raw materials and shipping finished
product along the waterway. Based on this proximity to-a
navigable waterway and the occurrence of the maritime
activities of loading and -unloading barges and ships, the
administrative law judge found that employer’s facility has a
maritime nexus. Decision and Order at 14. Further, in
accordance with Texports Stevedore Co. v. Winchester, 632
F.2d 504, 12 BRBS 719 (5th Cir. 1980) (en banc), cert.
denied, 452 U.S. 905 (1981), the administrative law judge
found that employer’s entire facility, including the rail line
on which claimant was injured, is an “adjoining area”
customarily used for maritime activity and, therefore, is a
covered situs under Section 3(a) of the Act. 33 U.S.C.
§ 903(a); Decision and Order at 15. With regard to
* Gavranovic is a consolidated appeal involving two employees
who worked at employer’s facility. One employee was classified
as an “A” operator, and one was a “C” operator. Gavranovic, slip
op. at 2-3.
6a
claimant’s status, the administrative law judge noted the
parties’ stipulation regarding the percentage of claimant’s
duties which were maritime during the year preceding his
injury, as well as claimant’s testimony that he had a daily
expectation of being assigned to maritime work 50 percent of
the time, and he found that claimant is subject to regular
maritime work assignments. Decision and Order at 16-17.
Consequently, he concluded that claimant fulfilled the status
requirement of Section 2(3) of the Act, 333 U.S.C. § 902(3).
Decision and Order at 17. Employer appeals the
administrative law judge’s decision regarding coverage, and
claimant responds, urging affirmance.
Employer contends the administrative law judge erred
in concluding that its entire facility, including the rail line
where claimant was injured, is a covered situs under the Act.
Employer also challenges the administrative law judge’s
determination that claimant is a covered employee, as he is a
land-based worker who was injured while performing land-
based work on the railway. The issues raised herein by
employer are the same issues raised by employer in
Gavranovic. See Gavranovic, slip op. at 5. In Gavranovic,
the Board rejected employer’s various arguments and held
that, under the controlling law of the United States Court of
Appeals for the Fifth Circuit, Winchester, 632 F.2d at 504, 12
BRBS at 719, employer’s entire facility constitutes a covered
situs under the Act. specifically, in light of its location
adjacent to the Houston Ship Channel, a navigable waterway,
and in light of the occurrence of significant maritime activity
on the docks at employer’s facility, loading and unloading
* The administrative law judge also determined that employer is
liable for a Section 14(e), 33 U.S.C. § 914(e), penalty and interest.
Decision and Order at 17-18. These findings have not been
challenged on appeal.
7a
barges and ships, the Board affirmed the administrative law
judge’s conclusion that the entire facility is an “adjoining
area” which is “customarily used” for maritime purposes.
Gavranovic, slip op. at 7-8; see Sisson v. Davis & Sons, Inc.,
131 F.3d 555, 31 BRBS 199 (CRT) (Sth Cir. 1998);
Winchester, 632 F.2d at 504, 12 BRBS at 719; Stroup v.
Bayou Steel Corp., 32 BRBS 151 (1998); Melerine v. Harbor
Const. Co., 26 BRBS 97 (1992). Further, the Board affirmed
the administrative law judge’s determination that claimants
met the status requirement, rejecting employer’s argument
that the “moment of injury” test prevents coverage. The
Board held that the Fifth Circuit’s “moment of injury” test is
used to broaden, not narrow, coverage under the Act.
Gavranovic, slip op. at 8; Universal Fabricators, Inc. v.
Smith, 878 F.2d 843, 22 BRBS 104 (CRT) (5th Cir. 1989),
cert. denied, 493 U.S. 1070 (1990); Thibodaux v. Atlantic
Richfield Co., 580 F.2d 841, 8 BRBS 787 (Sth Cir. 1978),
cert., denied, 442 U.S. 909 (1979); McGoey v. Chiquita
Brands Int'l, 30 BRBS 237 (1997); Scott v. Tug Mate, Inc.,
22 BRBS 164 (1989). Finally, in light of the occupational
nature of claimants’ work as “A” and “C” operators, and
their regular involvement in loading and unloading barges,
the Board held that the administrative law judge correctly
determined they were covered under Section 2(3) of the Act.
Gavranovic, slip op. at 8-9; see 33 U.S.C. § 902(3);
Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S. 40, 46, 23
BRBS 96 (CRT) (1989); Northeast Marine Terminal Co. v.
Caputo, 432 U.S. 249, 273, 6 BRBS 150, 165 (1977);
Boudloche v. Howard Trucking Co., 632 F.2d 1346, 12
BRBS 732 (Sth Cir. 1980), cert. denied, 452 U.S. 915 (1981).
Because the present case involves the same facility
and the same employee classification and duties as the Board
addressed in Gavranovic, we reject employer’s contentions
on appeal for the reasons set forth in Gavranovic. We affirm
the administrative law judge’s findings that employer’s entire
8a
facility is a covered situs and that claimant is a covered
employee pursuant to Sections 2(3) and 3(a) of the Act.
Consequently, we affirm the award of benefits to claimant.
Gavranovic, slip op. at 8-9; see also Schwalb, 493 U.S. at 40,
23 BRBS at 96 (CRT); Caputo, 432 U.S. at 249, 6 BRBS at
150; Winchester, 632 F.2d at 504, 12 BRBS at 719.
Accordingly, the administrative law judge’s Decision
and Order is affirmed.
SO ORDERED.
/s/ Roy P. Smith
Administrative Appeals Judge
/s/ Regina C. McGranery
Administrative Appeals Judge
/s/ Malcolm D. Nelson
Acting Administrative Appeals Judge
9a
In the Matter of:
DAVID R. NIXSON
Claimant
V.
MOBIL MINING & MINERALS
Employer
INSURANCE COMPANY OF THE STATE OF
PENNSYLVANIA
Carrier
Case No. 97-LHC-238
OWCP No. 08-111299
APPEARANCES:
DENNIS L. BROWN, ESQ.
For The Claimant
‘THOMAS C. FITZHUGH, III, ESQ.
CORBIN VAN ARSDALE, ESQ.
KERRY McKNIGHT, ESQ.
For The Employer/Carrier
BEFORE: LEE J. ROMERO, JR.
Administrative Law Judge
10a
DECISION AND ORDER
This is a claim for benefits under the Longshore and
Harbor Workers’ Compensation Act (herein the Act), 33
U.S.C. § 901, et seqg., brought by David R. Nixson (Claimant)
against Mobil Mining & Minerals (Employer) and Insurance
Company of the State of Pennsylvania (Carrier).
The issues raised by the parties could not be resolved
administratively and the matter was referred to the Office of
Administrative Law Judges for hearing. Pursuant thereto,
Notice of hearing issued scheduling a formal hearing on
September 22, 1997, in Houston, Texas. All parties were
afforded a full opportunity to adduce testimony, offer
documentary evidence and submit post-hearing briefs.
Claimant offered 18 exhibits, Employer/Carrier proffered
three exhibits which were admitted into evidence along with
one Joint Exhibit. This decision is based upon a full
consideration of the entire record.
Post-hearing briefs were received from the Claimant
and the Employer/Carrier on December 22, 1997. Based
upon the stipulations of Counsel, the evidence introduced,
my observations of the demeanor of the witnesses, and
having considered the arguments presented, | make the
following Findings of Fact, Conclusions of Law and Order.
1. STIPULATIONS
At the commencement of the hearing, the parties
stipulated (JX-1), and I find:
1. That the date of Claimant’s accident and injury
was January 16, 1994.
' References to the transcript and exhibits are as follows:
Transcript: Tr.; Claimant’s Exhibits: CX-__; and
Employer/Carrier Exhibits: EX-___; and Joint Exhibit: JX-___.
lla
2. That Claimant’s injury occurred during the course
and scope of his employment with Employer.
3. That there existed an employee-employer
relationship at the time of the accident/injury.
4. That the Employer was notified of the
accident/injury on January 16, 1994.
5. That Claimant filed a Longshore claim on
May 20, 1996.
6. That Employer filed a Notice of Conversion on
July 22, 1996.
7. That an Informal conference was held before the
District Director on August 21, 1996.
8. That Claimant’s average weckly wage, based on
his gross income in the 52-week period prior to the injury
which totaled $64,846.01, is $1,247.06 with a compensation
rate of $738.30.
9. That Claimant received temporary total disability
benefits from January 17, 1994 through October 7, 1994 at a
compensation rate of $464.00 for 41 1/7 weeks or a total of
$19,090.28 under the Texas State Compensation Act.”
10. That medical benefits for Claimant have been
paid pursuant to Section 7 of the Act.
11. That Claimant is being or has been paid
permanent partial disability benefits at 100% for his arm
* The parties further stipulated that the foregoing dates are the
appropriate dates for temporary total disability benefits, and if
longshore jurisdiction is found, Employer/Carrier will pay benefits
for this time period at the higher Longshore average weekly wage
with a credit for the amounts paid under the state compensation act
for temporary disability.
12a
under the Texas State Compensation Act for a 58% whole
body impairment totaling payments of $56,550.00 (174
weeks at $325.00/week).”
12. That Claimant reached maximum medical
improvement on October 7, 1994.
13. That in the year before Claimant’s injury, between
40-51% of his work assignments involved the loading and
unloading of vessels.
Il. ISSUES
The unresolved issues presented by the parties are:
? Jurisdiction; situs and status coverage.
2. Attorney’s fees, penalties and interest.
Il. SUMMARY OF THE EVIDENCE
The Testimonial Evidence
Claimant
Claimant was born on August 14, 1956, is married
and has three children. (Tr. 28). He began employment with
the Employer on June 12, 1989 as a laborer and progressed
through various job classifications to the position of
Operator A which he held at the time of his injury. Claimant
is presently classified as a Laboratory Tester A. (Tr. 29).
Employer is a manufacturer of industrial fertilizer.
(Employer’s Brief, page 1). Claimant testified that the
Employer operates four shifts on a rotating basis. Each shift
is comprised of three A Operators, one B Operator and one
* If longshore jurisdiction is found, the Carrier agrees to pay the
difference between 100% to the arm under the schedule in
§ 8(c)(1)[31 weeks at the average weekly wage] and the amount
paid under the state act for permanent disability.
13a
C Operator. (Tr. 30-31). An A Operator performs functions
to include operating a marine loader, the Buhler, unit 9,
unit 10; overhead crane work; unloading ammonia barges,
sulfuric acid barges at the acid rack; and loading Thio barges.
(Tr. 31). The job of a B Operator is mainly the operating of
the front-end loader. (Tr. 59). The C Operator is referred to
as a rail helper since his primary function is to assist in
loading rail cars. The A Operator’s jobs are marine type jobs
of loading and unloading barges and vessels and the
operation of various equipment associated with that process.
(Tr. 60).
Claimant testified that the dock supervisor at the time
of his injury was Mr. Emest Gardner who supervised all of
the shipping dock operations. (Tr.82). A shipping dock
employee such as Claimant would report to the dock office or
coffee shack where he would receive his daily assignment
posted on the assignment board jn the dock office. Each
assignment would indicate which job the employee was to
perform on that particular shift. (Tr. 59). Claimant testified
that it was Mr. Gardner’s responsibility to assign specific
jobs to the various operators on each shift. (Tr. 59).
Claimant stated that on a daily basis he had a 50%
expectation of working on the waterfront if a vessel was
coming in or if a barge was present. (Tr. 82, 102). He would
have a “pretty good idea we’re going to be either loading it or
off-loading it.” (Tr. 82). He further stated that there are
times when there is nothing but waterfront work going on;
either loading fertilizer or unloading one of the barges,
whether it be rock or an ammonia barge. (Tr. 83).
Claimant testified that if waterfront loading or
unloading jobs were being performed simultaneously with
railcar work, he would more likely be assigned to the
waterfront job. (Tr. 84). All of Claimant’s work is
performed at the A Operator pay rate. (Tr. 87). Although
Claimant would be assigned a specific job function on a daily
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basis, he testified that there have been occasions when he
was called off of his assigned job, during the normal course
of an eight hour shift, to perform work directly on the
waterfront by relieving other employees for lunch breaks, “a
necessity,” or in the event of an emergency such as the
arrival of an unexpected barge. (Tr. 90).
Claimant identified the Employer’s facility from an
aerial photograph and a blueprint or emergency exist map of
the plant. (Tr. 32; CX-7, CX-11). The waterfront area of the
facility is located on the Houston Ship Channel and is
comprised of a phosphate rock unloading dock where
phosphate ore is unloaded from barges by the use of a Buhler
(Tr. 33); the East Dock where sulfuric acid and the Thio
barges are loaded and unloaded; and the West Dock where
the finished product of fertilizer is loaded into barges or
vessels. (Tr. 33). The waterfront facility also contains an
ammonia unloading dock where ammonia barges are
unloaded. (See also Employer’s’ Responses to
Interrogatories, CX-1, p. 3).
Claimant described other facilities along the
waterfront which are Building 10 or the West Storage Area
where dry fertilizer is stored and Building 9 where additional
dry fertilizer is stored. (Tr.34). Buildings9 and 10 are
fronted by railroad tracks which provide empty cars from
storage tracks for loading. Trucks are also loaded from
Building 10. In the area of Building9, the Employer
maintains overhead cranes which are used for loading
vessels. A conveyor belt sustem [sic] connects Building 9 to
the loading dock area. Across from Building 9 are located
rock grinding mills where phosphate ore is stored along with
the rock storage dome. (Tr. 34). The acid rack, located near
Tank 106 of Employer’s facility, is the area where sulfuric
acid is loaded into rail cars and unloaded from rail cars.
(Tr. 34).
lSa
Claimant testified that the Employer’s continual
operation is dependent upon raw materials such as phosphate
rock as a source of its manufacturing process. (Tr. 36). He
estimated that approximately 900,000 tons of phosphate rock
were unloaded at the Employer’ facility during the year
prior to his injury. (Tr. 36). Claimant stated that only
A Operators are involved in the loading and unloading
process of Employer’s operations. (Tr. 37). Claimant
testified that the raw product of sulfuric acid arrives at the
facility by barge and rail car and is further transported via
pipeline from the Employer’s facility to the Air Products
facility, another manufacturer that uses the sulfuric acid as a
drying agent in their process. After use, Air Products returns
the sulfuric acid to the Employer for use in its process. (Tr.
39-40).
Claimant testified that the finished product of
fertilizer is shipped out via barge and ship and can be
transported by railcar. (Tr. 41). Claimant estimated that
approximately 580,000 tons of fertilizer is shipped from the
Employer’s facility to its customers. Liquid fertilizer, also
known as Thio, is stored and shipped from storage tanks at
the Employer’s facility by barge to customers. (Tr. 42). The
plant has a capacity to load approximately 5,000 tons of dry
fertilizer into vessels on a daily basis by the use of a marine
loader. (Tr. 43). However, a capacity of only 3,000 tons
may be loaded per day when using rail cars. (Tr. 44).
Claimant testified that the phosphate ore is off-loaded
from a vessel and transported by a system of conveyor belts
into the rock dome and silos where it is stored until used.
(Tr. 45, 47; See CX-1, p.4). During the one-year period
before Claimant’s injury, 50 phosphate rock barges docked
and were unloaded at Employer’s facility. (CX-1, p. 4).
Claimant further testified that as a Buhler operator unloading
phosphate rock, the operator would take a position on the
barge with the satellite control box to view the rock operation
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and the feet of the Buhler which “sucks” up the rock and
dumps it onto a conveyor belt which then travels to the silos.
(Tr. 54, 62).
A Operators also operate the jib crane which is used
to lift and place front-end loaders onto barges to do final
states of off-loading. The shift members are required to
sweep up and shovel the debris into the box of the front-end
loader in the last stages of off-loading phosphate rock.
(Tr. 57). Claimant further testified that in addition to
working on the unloading docks, part of an operator’s duties
include cleaning such docks regularly as_ routine
maintenance. (Tr. 49).
At the ammonia unloading dock, which is a regular
work site for Claimant’s shift crew, as an A Operator
Claimant operates winches to tie up barges that are moored at
the unloading dock. He will also assist the tankerman in
“wrestling” the hose onto the barge for hookup to manifolds
and the eventual unloading of the ammonia. (Tr. 50). On
occasion, Claimant was required to actually perform duties
on the ammonia barges being unloaded. (Tr. 50-51).
Additionally, Claimant and other shift crew members would
lubricate and grease joints of the equipment used in
unloading barges. (Tr.51), As part of the regular
maintenance of the facility, Claimant and other shift
members were required to sweep and hose off the ammonia
dock areas to make sure that such areas were fit to walk on.
(Tr. 52; See CX-1, pp. 5-6). During the one-year period
before Claimant’s injury, 37 ammonia barges docked and
were unloaded at Employer’s facility. (CX-1, p. 6).
Claiman: testified that although the Employer has a
contractual agreement with a company who provides
employees to tie up barges upon arrival, occasionally barges
arrive at unexpected times or nor one is present to tie up
barges and his shift would be required to assist in securing
barges. (Tr. 56). Claimant testified that he has been called
17a
off of other jobs to tie off barges upon their arrival at
Employer’s facility because of the narrowness of the ship
channel which is approximately 500 to 600 feet wide. (Tr.
57-58).
Claimant testified that dry fertilizer is loaded via
conveyor belt from Building 9 into river barges which have a
capacity of approximately 1,500 to 1,600 tons. It takes
approximately eight hours to load a barge of that size.
(Tr. 65). A phosphate ore barge which transports the raw
phosphate has a capacity of approximately 18,000 to 19,000
tons and is fully discharged in 48 to 60 hours. (Tr. 69).
Claimant testified that there are two crane operators
located inside Building 9 and one unit operator outside of
Building 9 who operate the overhead cranes that pick up
fertilizer in five-ton buckets suspended by cables and
position the fertilizer into 100-ton hoppers inside the
building. The fertilizer travels through a screen and
conveyor system and dumps onto a belt that travels to the
marine loader and is dumped into another belt system and
ultimately loaded into a barge or vessel. Claimant described
this process as a continuous one. (Tr. 68).
Sulfuric acid is unloaded from barges by way of a
hose as is liquid fertilizer (Thio) loaded into barges. The
shift members will assist the tankerman with the hoses to
allow him to attach the hose to manifolds. The operators
control the valves on the docks and coordinate with the
operators in the plant for the loading and unloading process.
(Tr. 75); See CX-1, p. 7). During the one-year period before
Claimant’s injury, 18 sulfuric acod [sic] docked and are
unloaded at employer’s facility. (CX-1, p. 7).
Operators will also load trucks and railcars out of
Building 10. Occasionally products from Building 10 can be
loaded directly onto a ship or barge. (Tr. 76).
18a
Shift members are also required, as part of their
duties, to clear debris from the waterfront area. (Tr. 80).
This cleanup work is performed approximately six times per
year but is not documented as part of the work assignments
of the shift members. (Tr. 81).
Claimant estimated that it takes approximately eight
to sixteen hours to load a Thio barge and approximately eight
to twelve hours to load a DAP or MAP barge. (See CX-1,
pp. 8-9). He estimated that it would take approximately four
days to load a 20,000 ton vessel with fertilizer. (Tr. 101).
Claimant testified that on at least one occasion he recalled
loading railcars that went directly to another shipping facility
to load a ship or barge from the railcars. (Tr. 102).
The foregoing locations, equipment and activities are
depicted in 44 photographs and a video described by
Claimant at the hearing. (Tr. 48-81; CX-8 and 9).
Claimant identified Exhibit 4 as a compilation of his
hours of work. The document comprises earnings from
January 3, 1993 through January 16, 1994. A total of 2,192
straight-time hours are reflected for that period time, 797.5
overtime hours and 40 hours for vacation. Of the total
number of hours worked, 408.5 hours are performed on
“rails, rail help, switching or locomotive” work, as reflected
in the “History/Comments” section of the weekly time
sheets. Of the 408.5 hours of rail or locomotive time, 70.5
hours were overtime hours. Thus, 13.6 percent of his work
time was devoted to rail or locomotive work and conversely,
86.4 percent of his work was involved in loading and
unloading and associated duties along the waterfront.* (CX-
* Although Claimant described responsibility centers 6155 as
“dock loading” and 6110 as “unloading,” CX-21 reflects 6155 as
“shipping.” It is further noted that the job safety analysis data
sheets (CX-15) disclose that code 6115 in [sic] used
(...continued)
19a
4; Tr. p.91). Employer responded to Interrogatory No. 18
that Claimant worked 82 days during the 52-week period
before his injury in which he participated in some step of the
loading or unloading process for raw materials or finished
product, either going to or coming from a ship or barge or
other means of water transportation. (CX-1, pp. 10, 14-15).
Claimant testified that on the day of his accident and
injury he was assigned to work on the locomotive crew
moving rail cars and keeping “units” (presumably 9 and/or
10) supplied with rail cars to load. (Tr. 103). His duties also
included moving loaded rail cars out onto other tracks.
Claimant testified that rail cars are delivered to the Employer
by the Port Terminal Railroad Association and that the rail
cars are stored on tracks until needed for use. (Tr. 104).
Claimant stated that rail cars arrive at the Employer’s facility
loaded with materials such as sulfuric acid and commodities
to be unloaded. (Tr. 105-106). Part of the a shift’s duties
interchangeably with not only dock loading but also truck and rail
car activities, such as “operating car puller, fueling plant vehicles,
connect air to outbound cars, disconnect locomotive from
outbound cars, connect air to top of tank cars, clean track scale
pits, repair track/truck scale, spot sulfur car, spot acid tank car,
spot hopper cars at Building 10 for loading, clean truck scale pit,
close and seal doors on fail cars, car cleaning, parking railroad cars
at road crossing, lower walkway to tank car, disconnect unloading
arm from acid tank car, disconnect air from top of tank car,
hooking unloading arm to acid tank car, acid rail car unloading,
loading Thio trucks, applying steam-sulfur railcar unloading,
unloading sulfur rail cars, hopper car loading, setting hand brakes
on rail cars, and open top doors on hopper cars. Of the 2989.5
hours listed in Claimant’s weekly time sheets, 893 denote code
6110 for “unloading” which is 29.8% of his total work time. The
“History/Comments” section of the time sheets do not clearly
delineate hours worked in loading various modes of transport such
as barges, vessels, trucks and rail cars.
20a
could include cleaning out the rail cars after being unloaded.
(Tr. 106).
Claimant further testified that approximately 80% of
the finished product leaving the plant is shipped out by rail
car. (Tr. 106).° Claimant identified the rail car and track
area where he was injured as located behind buildings 9 and
10 and near the rock storage tanks to the east. (Tr. 109-111).
The distance from the site of injury to the waterfront area-is
not reflected in the record. Claimant testified that he was
attempting to couple cars together for purposes of pushing
them back to the storage tracks when his accident occurred.
(Tr. 110; EX-2).
Ernest Odell Gardner
The parties deposed Ernest Gardner on June 4, 1997.
(EX-3). Mr. Gardner testified that he retired from Employer
on August 1, 1996 after 36 years of employment. (CX-3,
p. 8). At the time of his retirement, Mr. Gardner was an area
supervisor over shipping and receiving. His responsibilities
included receiving raw materials by barge, hopper cars and
tank cars and loading finished products into ships, barges,
hopper cars, tank cars and trucks. (CX-3, p. 9). His primary
job duties were to make job assignments, coordinate all
loading and unloading, figure schedules, coordinate
maintenance and repairs and preventive maintenance.
* Receipts and shipments for 1993 are reflected in CX-23. A
comparison of receipts to shipments is shown in CX-24. The
admission of both exhibits was reserved pending a post-hearing
review for accuracy and authentication by Employer/Carrier. No
objection has been lodged, accordingly, CX-23 and CX-24 are
hereby received into the record. Of the total tonnage of exported
fertilizer (588,479 tons) in 1993, 492,669 tons or 83.7% were
transported by trucks and tail. Only 13 vessels and 8 barges were ~
loaded with finished product in 1993, whereas 2491 trucks and
4,034 rail cars were utilized for transport.
2la
Mr. Gardner received his work assignments from the
traffic manager. (CX-3, p. 10). He testified that he had 20
operators working in the Shipping and Receiving
Department, five operators per shift with four shifts. On each
shift there were three A Operators, one B Operator and one
C Operator. (CX-3, pp. 12-13). A Operators operate a unit
to load fertilizer into trucks and hopper cars, operate a diesel
locomotive, and an overhead crane, unload ammonia barges,
operate a marine loader, operate the Buhler to discharge a
rock barge, unload sulfuric acid barges and load thiosulfate
barges, load thio tank cars and unload sulfuric acid tank cars.
(CX-3, p. 14). The B Operators operated a front-end loader
to load out fertilizer into tank cars and operated front-end
loaders inside the hull of a rock barge to unload a rock barge
or to push rock with a front-end loader to a conveyor belt.
(CX-3, pp. 14-15). A C Operator assists the unit operator in
loading hopper cars, cleaning cars, moving hopper cars and
tank cars around inside the plant or outside the plant. (CX-3,
p. 15). A Operators were also required to do B and
C Operator duties at times. (CX-3, p. 18).
Mr. Gardner testified that his only assignment
responsibility was for job duties for the 2:00 p.m. to 10:00
p.m. shift. (CX-3, p. 20). Job assignments were reflected on
the assignment board located in the break room or lunch
room. (CX-3, p. 21). He testified that job assignments could
change during a shift if job requirements necessitated such a
change. Changes in assignments due to requirements were
very rare, but would occasionally occur. (CX-3, p. 22).
In describing a typical time sheet, Mr. Gardner
testified that the responsibility center code number 6155
indicated that an operator was working out of one of the units
such as Building9 or 10 and normally means they we
loading products out instead of unloading something. The
responsibility center code number 6110 indicated that the
operator was performing work on the actual dock area,
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unloading some kind of products off of the dock or also
performing clean-up duties on the dock. (CX-3, p. 35).
Mr. Gardner described the duties of an operator
unloading an ammonia barge as tying off the barge to the
dock and hooking up the hoses which are then secured by the
barge tankerman on the manifolds of the barge. The operator
then opens and closes the valves during the unloading
process. He estimated that it took and estimate of 20 hours to
unload an ammonia barge which would require three shifts to
complete. (CX-3, pp. 43-45).
Loading Thio, which is a finished liquid fertilizer
product, into barges requires the operators to tie off an empty
barge upon arrival. The A Operator then hooks a six-inch
hose to the barge and opens valves to allow the pumps to
begin pumping liquid fertilizer into the barge. Once the
barge is completely loaded, the operator assists in undoing
the ropes to allow the barge to go free. Mr. Gardner
estimated that it would take an average of 16 hours to load a
Thio barge. (CX-3, pp. 46-48).
Mr. Gardner testified that from 1993 fertilizer was
only loaded out of Building 9 into barges and ships. (CX-3,
p. 50). Mr. Gardner testified that dry fertilizer is loaded by
overhead cranes in Building 9 into 100-ton hoppers that then
drop the fertilizer onto a conveyer belt system that leads out
to the dock area. The conveyor belts lead out to the marine
loader which is over the dock area. The marine load then
dumps the dry fertilizer into a telescope chute that goes down
into the ship or barge. The ship or barge is then moved
periodically to make available empty cells for loading. (CX-
3, pp. 51-54). Mr. Gardner testified that it takes an average
of eight to ten hours to load a normal barge and that the
company attempts to load an average of 5,000 metric tons per
day. (CX-3, pp. 54-55). Mr. Gardner further testified that a
1,000 ton vessel would normally take 16 hours to load
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whereas a 25,000 ton vessel would take up to six days. (CX-
3, p. 55).
Mr. Gardner testified that acid barges are unloaded in
the same area where Thio barges are loaded. Approximately
15 to 20 acid barges are unloaded each year. He estimated
that it took an average of ten hours to unload an acid barge at
180 tons an hour. (CX-3, p. 56). Unloading an acid barge is
primarily an A Operator’s job. (CX-3, p. 57).
Mr. Gardner testified that phosphate rock barges
arrive at the facility and are secured by contract stevedores
who also discharge the barge upon completion of unloading.
An A Operator will operate the Buhler which is extended into
the barge and sucks up the rock out of the barge and places it
onto a conveyor belt system. (CX-3, pp. 60-61). The
phosphate rocks are transported by conveyor belt system into
the rock dome or three or four silos located next to the dome.
(CX-3, p. 62). Mr. Gardner testified that approximately 80
percent of the finished product is transported by trucks and
rail. (CX-3, p. 78).
The Contentions of the Parties
Claimant contends that his duties as an A operator
involved traditional maritime employment functions such as
tying up and releasing barges, hooking up the hoses for
discharge or receiving a product, transferring the discharge of
product or the delivery of product and cleaning the dock area.
Claimant further contends that Employer is a marine
employer since an integral part of its operation is shipping a
finished product and receiving materials via water
transportation, which Employer does not contest. (Tr. 98).
Lastly, Claimant contends that he is a covered
employee since his duties and not the place of injury is
controlling. He argues that since his duties are essentially
maritime in nature, the locus of his injury is not
24a
determinative of status. Moreover, it is urged that Claimant
achieved status under the Act since he spent at least “some of
his time” [40-51%] in traditional maritime work.
Employer, on the other hand, contends that
Employer's facility is not a maritime situs but a
manufacturing plant and that a restrictive interpretation of the
Act should be applied in the instant case. It is argued that the
rail line where Claimant was injured is not an “adjoining
area” and not a maritime situs since it is not an area which is
customarily used by the Employer to load and unload
vessels. Thus, according to Employer, Claimant is a land-
based worker who was injured while performing non-
maritime work on a non-maritime situs.
Employer also contends that even if Claimant was
injured on a maritime situs, he must prove that “at the
approximate time he incurred disability or death,” he was
engaged in maritime employment. Since Claimant was
engaged in rail switching when injured, which is unrelated to
loading or unloading a vessel, he is not a covered employee.
Employer concedes that Claimant would be covered
under the Act if he was loading barges when injured.
(Employer's Brief, pp 5-6; Tr. 98).
IV. DISCUSSION
It has been consistently held that the Act must be
construed liberally in favor of the claimant. Voris v. Eikel,
346 U.S. 328, 333 (1953); J. B. Vozzolo, Inc. v. Britton, 377
F.2d 144 (D.C. Cir. 1967). However, the United States
Supreme Court has determined that the “true-doubt” rule,
which resolves factual doubt in favor of the Claimant when
the evidence is evenly balanced, violates Section 7(c) of the
Administrative Procedure Act, 5 U.S.C. Section 556(d),
which specifies that the proponent of a rule or position has
the burden of proof. Director, OWCP v. Greenwich
rf
25a
Collieries, 512 U.S. 267, 114 S.Ct. 2251 (1994), aff’g. 990
F.2d 730 (3rd Cir. 1993),
In arriving at a decision in this matter, it is well-
settled that the finder of fact is entitled to determine the
credibility of witnesses, to weigh the evidence and draw his
own inferences therefrom, and is not bound to accept the
opinion or theory of any particular medical examiners.
Duhagon v. Metropolitan Stevedore Company, 31 BRBS 98,
101 (1997); Avondale Shipyards, Inc. v. Kennel, 914 F.2d 88,
91 (Sth Cir. 1988); Atlantic Marine, Inc. v. Hartford Accident
& Indemnity Co. v. Bruce, 551 F.2d 898, 900 (Sth Cir. 1981);
Bank v. Chicago Grain Trimmers Association, Inc., 390 U.S.
459, 467, reh’g denied, 391 U.S. 929 (1968).
Jurisdiction
To establish jurisdiction and coverage, Claimant must
satisfy the two-pronged test of the “situs” and “status”
requirements of the Act. 33 U.S.C. §§ 902(3), 903(a). See
Northeast Marine Terminal Co., Inc. v. Caputo, 432 U.S.
249, 97 S.Ct. 2348 (1977); Kennedy v. American Bridge Co.,
30 BRBS 1 (1996); See also Jones v. Aluminum Company of
America, 31 BRBS 130, 131 (1997). Status refers to the
nature of the work performed whereas situs refers to the
place of performance.
A. Situs
Section 3(a) of the Act provides that a compensable
injury must occur on the navigable waters of the United
States “including any adjoining pier, wharf, dry dock,
terminal, building way, marine railway, or other adjoining
area customarily used by an employer in loading, unloading,
repairing, dismantling, or building a vessel.” 33 U.S.C.
§ 903(a) (1988). By the 1972 amendments to the Act,
Congress expanded the jurisdictional lines landward to cover
injuries occurring on the enumerated adjoining land areas.
26a
Texports Stevedore Company v. Winchester, 632 F.2d 504,
510, 510 (Sth Cir. 1980), cert. denied, 452 U.S. 905 (1981).
Employer/Carrier postulate that “manufacturing areas
having their own docking facilities,” such as Employer’s, are
excluded from the landward reach of Section 3(a) and
therefore its premises is not a maritime situs. It is argued that
appellate courts and the Benefits Review Board have recently
applied a restrictive situs requirement, following the Supreme
Court’s directives to apply the “plain language” of the Act.
See Sidwell v. Express Container Services, Inc., 71 F.3d 1134
(4th Cir. 1995), cert. denied, _ U.S. ___, 116 S.Ct. 2570
(1996); Parker v. Director, (OWCP, 75 F.3d 929 (4th Cir.
1996), cert. denied, _ U.S. __,, 117 S.Ct. 58 (1996);
Ingalls Shipbuilding, Inc. v. Director, OWCP [Yates], ___
U.S. _, 117 S.Ct. 796, 801-804 (1997); Estate of Cowart v.
Nicklos Drilling Co., 505 U.S. 469, 112 S.Ct. 2589, 2594-
2596, 2598 (1992).
Employer contends that Claimant is a land-based
worker who was injured while coupling rail cars on a rail line
not used to load or unload vessels. There is no direct
movement of materials or product by rail to vessels or vessels
to rail. It is asserted that the rail line is not a transshipment
or intermodal exchange point for cargo moving directly into
maritime commerce and is neither an adjoining area nor
customarily used by the Employer to load or unload a vessel.
In view of such assertions, it is urged that Claimant has failed
to met the situs requirement of the Act.
Since Claimant’s injury did not occur on navigable
waters, but rather on a rail line behind the Employer’s
storage area, it is necessary to evaluate the situs requirement
in light of the “adjoining” language of Section 3(a) of the
Act.
Contrary to the Fourth Circuit’s _ restrictive :
construction of the situs requirement advocated by
27a
Employer/Carrier, the Fifth Circuit, within whose appellate
jurisdiction this case arises, has reasoned that as long as the
site of an employee’s injury is close to or in the vicinity of
navigable waters, or in a neighboring area, the injury comes
within the “broader meanings” of “adjoin” in keeping with
the spirit of the Act and Congressional purposes.
Winchester, at 514. Moreover, the Court has announced that
the best way to effectuate the congressional purposes is to
determine situs by looking at all the circumstances. /d. at
513.
Factors which have been considered in determining
whether a site is an “adjoining area” have included: the
particular suitability of the site for maritime uses referred to
in the statute; whether adjoining properties are devoted
primarily to uses in maritime commerce; the proximity of the
site to the waterway; and whether the site is as close to the
waterway as is feasible given all the circumstances. Arjona
v. Interport Maintenance Company, Inc., 31 BRBS 86, 87
(1997).
In the present matter, it is elementary that Employer’s
site on the Houston Ship Channel is suitable for its maritime
receipt of raw materials necessary for use in_ its
manufacturing process and shipment of its final product in
commerce to its customers. The docks located along the
waterway service Employer’s maritime receipt of
manufacturing materials and are certainly adjoining
navigable waterways. Such docks are also connected to
storage and manufacturing areas by conveyor belt systems to
facilitate receipt and shipment. Employer's facility is
situated on the Houston Ship Channel and arguably could not
have been located any closer to the waterway. The proximity
of its location is a definite benefit to Employer given its
maritime receipt and shipment activity. | find and conclude
that Employer’s facility is in the vicinity of navigable waters
28a
and is used to load and unload vessels. Thus, the facility has
a maritime nexus.
In rejecting a position that the presence or absence of
non-maritime buildings between the point of injury and the
water as an absolute test in deciding whether an injury is
covered by the Act, the Fifth Circuit concluded that the
character of surrounding properties is only one factor to be
considered in an analysis of “adjoining areas.” Winchester,
at 513. The Court has also rejected the proposition that only
the narrow strip of facilities physically touching the water
can be a maritime situs. Jd., at 514; See Alabama Dry Dock
& Shipbuilding Co. v. Kininess, 554 F.2d 176 (Sth Cir.
1977), cert. denied, 434 U.S. 903, 98 S.Ct. 299 (1977).
In Kininess, the Court found that the physical distance
of the locus of injury, a back lot crane storage area, to water
was not decisive in finding situs coverage. Jd. at 178. The
test applied was whether the situs was within a contiguous
area which adjoins the water. The court concluded that the
back lot was part of the shipyard which was considered a
maritime situs since the buildings separating the back lot
from the waterway were used for shipbuilding. Jd.
Furthermore, the Fifth Circuit’s view of what
constitutes the boundaries of an “area” is one defined by
function. The area must be one “customarily used by the
employer in loading, unloading, repairing or building a
vessel.” It is noted that the statute “does not require that the
area’s exclusive use be for maritime purposes so long as it is
customarily used for significant maritime activity.”
Winchester, at 515. Consequently, the court held that a gear
man who maintained gear rooms in the employer’s storage
and maintenance facility located not on, but close (five
blocks) to its ship channel docks, was injured on a covered
situs, reasoning that the gear room was as close to the docks
as was feasible and had a substantial nexus to the waterway.
Id., at 506-507, 515. Similarly, the rail line on which
29a
Claimant was injured was located on the premises of
Employer’s facility, which I have found to have a maritime
nexus, and close to the navigable waterway. In fact, the rail
line is separated from the waterway by buildings which
themselves are used for unloading raw materials and loading
finished product. Thus, I find and conclude that Employer’s
facility, including its rail line, is an adjoining area under the
Act since it is customarily used for maritime activity, the
loading and unloading of vessels.
In addition to the foregoing, in light of Caputo, it is
not essential that I find Claimant was injured while actually
engaged in maritime tasks. As the Supreme Court explained
in Caputo, Congress, in amending the Act in 1972, intended
to resolve the problem of employees walking in and out of
coverage during their workday by providing continuous
coverage to workers “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 pat of their activity. Caputo, at 273.
Thus, to conclude that a worker like Claimant, who spends
50% of his work time loading and unloading barges and
vessels, is covered only if he is injured while engaged in such
maritime activity would accentuate the “walking in and out
of coverage” that Congress intended to eliminate. /d., at 274.
Thus, the broad interpretation applied to “area” in
Winchester must also be applied here since to do so will
reduce the number of employees walking in and out of
coverage. Accordingly, I find and concluded that Claimant
has fulfilled the situs requirement of the Act.
B. Status
The status requirement of Section 2(3) limits
coverage to “employees,” defined as those engaged in
“maritime employment.” Section 902(3) provides in
pertinent part:
30a
The term “employee” means any person
engaged in maritime employment, including
any longshoreman or other person engaged
in longshoring opérations, and any harbor-
worker including a _ ship repairman,
shipbuilder and shipbreaker...
33 U.S.C. § 902(3).° Accordingly, a claimant may establish
status by showing that he is engaged in one of the activities
listed in Section 902(3).
The Supreme Court has “clearly decided that, aside
from the specified occupations, land-based activity occurring
within the Section 903 situs will be deemed maritime only if
it is an integral or essential part of loading or unloading a
vessel.” | Chesapeake and Ohio Railway Company v.
Schwalb, 493 U.S. 40, 45, 110 S.Ct. 381, 384 (1989)’;
Munguia v. Chevron U.S.A., Inc., 999 F.2d 808, 811 (Sth Cir.
1993).
However, contrary to the Employer/Carrier’s
assertions that Claimant must be engaged in maritime
employment at the time of injury, several Supreme Court and
Circuit Court decisions interpreting Section 902(3) have not
limited the status requirement to the activities listed in this
section. A person is “engaged in maritime employment”
° Section 902(3) further lists several examples of individuals who
are not engaged in maritime employment, none of which are
relevant here.
” See also Herb’s Welding, Inc. v. Gray, 470 U.S. 414, 415-416,
105 S.Ct 1421, 1423-1424 (1985) (“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 thé 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 and unloading
vessels are not covered.” (Quoting Caputo, 432, U.S. 249, 267, 97
S.Ct. 2348, 2358-2359 (1977).
3la
under the Act if (1) he is engaged in maritime work at the
moment of his injury, or (2) if he is not so engaged at the
moment of his injury, he is nonetheless covered if he spends
at least some of his working time for his employer engaged
in maritime work. See P. C. Pfeiffer Co., Inc. v. Ford, 444
U.S. 69, 83 n. 18, 100 S.Ct. 328, 337 n. 18 (1979); Caputo,
432 U.S. at 273-274, 97 S.Ct. at 2361-2163; Winchester, 632
F.2d at 516; See Lewis v. Sunnen Crane Service, Inc., 31
BRBS 34, 39 (1997).
Although an employee is covered if some portion of
his activities constitute covered employment, those activities
must be more than “episodic, momentary or incidental to
non-maritime work.” Boudloche v. Howard Trucking Co.,
632 F.2d 1346 (Sth Cir. 1980), cert. denied, 452 U.S. 915,
101 S.Ct. 3049 (1981). In the present matter, the parties have
stipulated that during the year before his injury Claimant’s
maritime duties of loading and unloading vessels constitute
40-51% of his work assignments. (JX-1). I find the factual
stipulation clearly supported by the record as summarized
above. Moreover, it is apparent based on Claimant’s
uncontradicted and credible testimony, that he had a 50%
daily expectation of being assigned to. maritime work. Thus,
he was subject to regular maritime work assignments which
cannot be considered “episodic, momentary or incidental” to
non-maritime work. See McGoey v. Chiquita Brands
International, 30 BRBS 237, 239 (1979).
Therefore, in view of the foregoing, I find and
conclude that Claimant is a covered employee who meets the
status test of Section 2(3) based on the overall indisputably
maritime nature of his work assignments and duties. See
generally Lennon v. Waterfront Transport, 20 F.3d 658, 660-
661 (Sth Cir. 1994),
32a
V. SECTION 14(e) PENALTY
Section 14(e) of the Act provides that if an employer
fails to pay compensation voluntarily within 14 days after it
becomes due, or within 14 days after unilaterally suspending
compensation as set forth in Section 14(b), the Employer
shall be liable for an additional 10% penalty of the unpaid
installments. Penalties attach unless the Employer files a
timely notice of controversion as provided in Section 14(d).
In the present matter, Employer became aware of
Claimant’s injury on January 16, 1994, and commenced
payments of temporary total disability benefits under the
Texas State Compensation Act at a compensation rate of
$464.00 per week for 41 1/7 weeks through October 7, 1994.
Thereafter, Employer/Carrier began payments of $325.00 per
week for 174 weeks for permanent partial disability benefits
under the Texas State Compensation Act. Employer filed a
Notice of Controversion on July 22, 1996.
In accordance with Section 14(b) of the Act, Claimant
was owed compensation on the fourteenth day after
Employer was notified of his injury. Thus, Employer was
liable for compensation on January 30, 1994. Since
Employer controverted Claimant’s right to compensation
under the Act, Employer had an additional fourteen days to
file such a notice with the District Director. Frisco v. Perini
Corp. Marine Division, 14 BRBS 798, 801 n.3 (1981). A
notice should have been filed by February 13, 1994 to be
timely and prevent the application of penalties.
Payments of compensation under a state act do not
excuse the failure to file a notice of controversion under the
longshore act. Spear v. General Dynamics Corp., 25 BRBS
132, 136-137 (1991); See Madden v. Western Asbestos Co.,
23 BRBS 55, 60 (1989). However, where an employer
makes payments under a state act and the claimant is
ultimately awarded compensation under the Act greater than
33a
the amount received voluntarily, the employer’s liability
under Section 14(e) is based solely on the difference. Jd:
Dygert v. Manufacturer's Packaging Co., 10 BRBS 1036,
1046-1047 (1979).
Therefore, Employer is liable for penalties in
accordance with Section 14(e) of the Act from February 13,
1994 until July 22, 1996, based on the difference between the
payments made under the Texas State Compensation Act and
payments due and owing under the Act.
VI. INTEREST
Although not specifically authorized in the Act, it has
been an accepted practice that interest at the rate of six per
cent per annum is assessed on all past due compensation
payments. Avallone v. Todd Shipyards Corp., 10 BRBS 724
(1974). The Benefits Review Board and the Federal Courts
have previously upheld interest awards on past due benefits
to insure that the employee receives the full amount of
compensation due. Watkins v. Newport News Shipbuilding &
Dry Dock Co., aff'd in pertinent part and rev'd on other
grounds, sub nom. Newport news v. Director, OWCP, 594
F.2d 986 (4th Cir. 1979). The Board concluded that
inflationary trends in our economy have rendered a fixed six
per cent rate no longer appropriate to further the purpose of
making Claimant whole, and held that “...the fixed per cent
rate should be replaced by the rate employed by the United
States District Courts under 28 U.S.C. § 1961 (1982). This
rate is periodically changed to reflect the yield on United
States Treasury Bills...” Grant v. Portland Stevedoring
Company, et al., 16 BRBS 267 (1984). This order
incorporates by reference this statute and provides for its
specific administrative application by the District Director.
See Grant v. Portland Stevedoring Company, et al., 17
BRBS 20 (1985). The appropriate rate shall be determined
as of the filing date of this Decision and Order with the
District Director.
34a
Vil. ATTORNEY’S FEES
No award of attorney’s fees for services to the
Claimant is made herein since no application for fees has
been made by the Claimant’s counsel. Counsel is hereby
allowed thirty (30) days from the date of service of this
decision to submit an application for attorney’s fees. A
service sheet showing that service has been made on all
parties, including the Claimant, must accompany the petition.
Parties have twenty (20) days following the receipt of such
application within which to file any objections thereto. The
Act prohibits the charging of a fee in the absence of an
approved application.
Vill. ORDER
Based upon the foregoing Findings of Fact,
Conclusions of Law, and upon the entire record, I enter the
following Order:
1. Employer/Carrier shall pay Claimant
compensation for temporary total disability from January 17,
1994 through October 7, 1994 based on Claimant’s average
weekly wage of $1,247.06, in accordance with the provisions
of Section 8(b) of the Act. 33 U.S.C. § 908(b)
2. Employer/Carrier shall pay Claimant the sum of
$230,349.60 as compensation for a 100% scheduled
permanent partial disability to Claimant’s left arm based on
an average weekly wage of $1,247.06 and a compensation
rate of $738.30 for 312 weeks pursuant to Section 908(c){1),
in accordance with the provisions of Section 8(c) of the Act.
33 U.S.C. § 908(c).
3. Employer/Carrier shall pay all reasonable,
appropriate and necessary medical expenses arising from
Claimant’s January 16, 1994, work injury, pursuant to the
provisions of Section 7 of the Act.
35a
4. Employer shall be liable for an assessment under
Section 14(e) of the Act to the extent that installments of
compensation were found to be due and owing from
February 13, 1994 until July 22, 1996, as provided herein.
5. Employer/Carrier shall receive credit for all
compensation heretofore paid, as and when paid.
6. Employer shall pay interest on any sums
determined to be due and owing at the rate provided by 28
U.S.C. § 1961 (1982); Grant v. Portland Stevedoring Co., et
al., 16 BRBS 267 (1984).
7. Claimant’s attorney shall have thirty (30) days to
file a fully supported fee application with the Office of
Administrative Law Judges; a copy must be served on
Claimant and opposing counsel who shall then have twenty
(20) days to file any objections thereto.
ORDERED this 13th day of March, 1998, at
Metairie, Louisiana.
/s/ Lee J. Romero, Jr.
Administrative Law Judge
36a
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-60273
MOBIL MINING & MINERALS; INSURANCE
COMPANY OF THE STATE OF PENNSYLVANIA
Petitioners
Vv.
DAVID R. NIXSON; DIRECTOR, OFFICE OF
WORKER’S COMPENSATION PROGRAMS, US
DEPARTMENT OF LABOR
Respondents
Petition for Review of an Order of the
Office of Workers Compensation Programs &
the U.S. Department of Labor
ON PETITION FOR REHEARING
Before GARWOOD, WIENER, and DENNIS, Circuit
Judges.
PER CURIAM:
IT IS ORDERED that the ae for rehearing filed
in the above case is Denied.
ENTERED FOR THE COURT:
/s/ James L. Dennis
United States Circuit Judge
37a
Benefits Review Board
United States Department of Labor
LEE C. GAVRANOVIC,
Claimant-Respondent
V.
MOBIL MINING AND MINERALS
and
INSURANCE COMPANY OF THE STATE OF
PENNSYLVANIA,
Employer/Carrier-Petitioners
TOMMIE L. JONES,
Claimant-Respondent
Vv.
MOBIL MINING AND MINERALS
and
INSURANCE COMPANY OF THE STATE OF
PENNSYLVANIA,
Employer/Carrier-Petitioners
BRB No. 98-741
BRB No. 98-750
February 23, 1999
DECISION and ORDER
38a
Dennis L. Brown and Mike N. Cokins, Houston, Texas, for
claimants. .
Thomas C. Fitzhugh III, J. Corbin Van Arsdale and Matthew
H. Ammerman (Fitzhugh & Elliott, P.C.), Houston, Texas,
for employer/carrier.
BEFORE: HALL, Chief Administrative Appeals Judge,
SMITH and McGRANERY, Administrative Appeals Judges.
PER CURIAM:
Employer appeals the Decisions and Orders Granting
Benefits (96-LHC-1932, 96-LHC-1954) of Administrative
Law Judge James W. Kerr, Jr., rendered on two claims filed
pursuant to the provisions of the Longshore and Harbor
Workers’ Compensation Act, as amended, 33 U.S.C. § 901 ef
seq. (the Act).' We must affirm the administrative law
judge’s findings of fact and conclusions of law if they 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).
Employer is a fertilizer manufacturer whose facilities
adjoin the Houston Ship Channel. Jt.Cl.Ex. 4.” It receives
raw materials (sulphur, anhydrous ammonia, phosphate rock,
and sulfuric acid) by truck, railway and barges, and it
produces sulfuric acid, phosphoric acid, ammonium
' These cases were consolidated for purposes of the hearing before
the administrative law judge, but separate decisions were issued.
Due to the similarity of issues, we hereby consolidate them
formally for decision. 20 C.F.R. § 802.104(a).
> Jt.Cl.Ex. indicates Joint Claimants’ exhibits; Emp.Ex. J and
Cl.Ex. J identify Employer’s and Claimant’s exhibits in the Jones
case; Emp.Ex. G and Cl.Ex. G identify Employer’s and Claimant’s
exhibits in the Gavranovic case.
39a
thiosulfate (liquid fertilizer), and two grades of solid fertilizer
called dioammonium phosphate and monoammonium
phosphate. Tr. at 281, 283. According to Ernest Gardner, a
former area supervisor in shipping and receiving for
employer who is now retired, the sulphur arrives by trucks,
the ammonia and phosphate rock arrive by barge, and the
sulfuric acid arrives by both railway and barges. With the
exception of the sulfur, all materials are unloaded from their
respective modes of transportation by employer’s operators.
Id. at 281. The finished product is shipped out by railway or
trucks 80-85 percent of the time and by barges or ships 15-20
percent of the time. Jd at 284. Employer’s personnel in
“Shipping and Receiving” are divided into various “classes”
of operators with “A” operatois having the most seniority as
well as being qualified for the most jobs.
Claimant Jones has worked for employer for over 23
years. He has spent over 13 years on the shipping docks and
over 11] years as an “A” operator. Tr. at 209-210. As an “A”
operator, Mr. Jones regularly worked the overhead cranes in
Buildings 9 and 10,° unloaded the ammonia barges, operated
the marine loader, loaded the “thio” barges, unloaded the
acid barges, operated the Buhler* to unload the rock barges,
and worked the acid rack. Tr. at 215. He also performed
class “B” and “C” operator jobs when required or when he
* Buildings 9 and 10 sit adjacent to the Houston Ship Channel and
they act as storing houses for the finished product (fertilizer).
However, from Building 9, fertilizer is loaded by crane onto a
conveyor belt which leads to the dock where a marine loader loads
it onto barges or other sea-going vessels for shipment. From
Building 10, fertilizer is loaded onto trucks or rail cars, or is
transferred to Building 9 to replenish its supply.
* A Buhler is a scooping apparatus used to remove rock from
barges. A front- end loader is on the barge to pile the rock for the
Buhler to pick up.
40a
switched with “B” or “C” men to provide them with training
on the “A” jobs. Tr. at 212-214, 216. On August 6, 1994,
Mr. Jones was working in Building 10 as a rail helper, a class
“C” job. He crossed the end of a hopper car and started to
step off when his foot slipped, resulting in a fractured left
foot. Emp.Ex. J 1; Tr. at 216. Mr. Jones received medical
treatment, and state workers’ compensation benefits, and
eventually returned to work in his usual job. Cl.Ex. J 1; Tr.
at 216-217. Thereafter, he filed a claim for benefits under
the Act.
Claimant Gavranovic started as a laborer hired to
clean the shipping docks for employer. He later bid into
operations and became a “C” operator. As a “C” operator, he
was qualified to wash out hopper cars, act as a rail helper,
and control railroad switching. Tr. at 51. Based on his
experience and training, he also was qualified to perform
some class “B” and “A” jobs. He testified he often worked
as a “B” operator driving a front-end loader both in the rock
barge and in Building 9, and, prior to his injury on February
6, 1996, he trained on and became qualified to perform
certain “A” jobs such as driving the diesel locomotive,
working in Buildings 9 and 10, and relieving “A” operators
on the marine loader and the Buhler.” Tr. at 51-52, 54. On
February 6, 1996, Mr. Gavranovic was working inside a
railroad hopper car cleaning product off the car with a
chipping gun when a piece of debris fell from the top of the
car onto his foot. His injury also resulted in a fractured left
* Sometime in 1996 after Mr. Gavranovic’s injury, the company
instituted a new policy, changing some of the “A” jobs to “B” jobs.
Jt.Cl.Ex. 24 at 14; Tr. at 53. The new policy also created a more
formalized training plan whereby “B” and “C” operators could
train to become “A” operators. Further, at some point after his
return to work, Mr. Gavranovic became a “B” operator. Jt.Cl.Ex.
24 at 10-11.
4la
foot. Emp.Ex. G 1; Tr. at 57-58. Mr. Gavranovic received
medical treatment and state workers’ compensation benefits
and eventually returned to his usual work. Cl.Ex. G 1; Tr. at
60-61. Thereafter, he filed a claim for benefits under the Act.
Claimants and employer agreed that both claimants
were injured during the course of their employment, that both
claimants received medical and disability benefits pursuant to
the Texas Workers’ Compensation Act, and that both
claimants returned to their regular employment after
recovering from their respective injuries. Jones Decision and
Order at 2-3; Gavranovic Decision and Order at 2-3. The
parties also stipulated to the duration and amount of
temporary total and permanent partial disability benefits to
which claimants would be entitled under the Act should the
administrative law judge find them to be covered employees.
Id. at 3. The primary issue before the administrative law
judge, therefore, involved coverage under the Act.°
The administrative law judge first found that, under
the case law of the United States Court of Appeals for the
Fifth Circuit, within whose jurisdiction these cases arise,
employer’s entire facility meets the situs requirement of the
Act, 33 U.S.C. § 903(a), as it is in close proximity to the
dock area where loading and unloading activities occur, and
that Building 10, in which both claimants were injured, is not
separate and distinct from the dock area. Jones Decision and
Order at 12-13; Gavranovic Decision and Order at 14-15.
With regard to Mr. Jones’s status, the administrative law
judge found that as an “A” operator, Mr. Jones was subject to
regular maritime assignments. He credited Mr. Jones’s
testimony and found that those assignments included
operating the Buhler to unload the rock barges and assisting
® In the Gavranovic case, the parties also disputed claimant’s
average weekly wage.
42a
with the ammonia and thio barges. Further, he credited the
documentary evidence which showed that Mr. Jones also ran
units 9 and 10 and operated a marine loader. Jones Decision
and Order at 13-14. Therefore, he found that Mr. Jones
“spent at least some of his time” in maritime activity and is
covered under Section 2(3) of the Act, 33 U.S.C. § 902(3).
Id. at 14. Consequently, the administrative law judge
awarded Mr. Jones disability benefits under the Act, as
stipulated by the parties. /d.
With regard to Mr. Gavranovic’s status, the
administrative law judge found that he, too, was subject to
regular maritime assignments. Although Mr. Gavranovic
was Classified as a “C” operator and not an “A” operator like
Mr. Jones, the administrative law judge found that Mr.
Gavranovic performed a variety of maritime work, including
cleaning the dock area and the conveyor belts, tying up
barges, operating the front-end loader in the rock barges, and
operating unit 9 in the loading of vessels. Further, the
administrative law judge credited Mr. Gavranovic’s
testimony and the evidence which showed that he was
qualified to operate the Buhler and was training on the
marine loader. Gavranovic Decision and Order at 16. Thus,
he found that Mr. Gavranovic also met the status
requirement, and he awarded benefits under the Act pursuant
to the parties’ stipulation, based on an average weekly wage
of $926.11. Jd. at 16-17.
Employer appeals the decisions in these cases. It
contends in both instances that its facility is not a maritime
situs. Moreover, even if part of the facility could be
considered maritime in nature, employer contends that the
area where claimants were injured, Building 10, is not a
covered situs. Employer also contends that claimants are
land-based workers who are not covered employees under the
Act. It argues that they do not meet the status requirement as .
they were not performing maritime work at the time of their
43a
injuries. Claimants respond, urging affirmance of the
administrative law judge’s findings.
Situs
To be covered under the Act, a claimant must meet
both the status requirement of Section 2(3) and the situs
requirement of Section 3(a). 33 U.S.C. §§ 902(3), 903(a).
Section 3(a) states:
Except as otherwise provided in this section,
compensation shall be payable under thisschapter in
respect of disability or death of an employee, but only
if the disability or death results from an injury
occurring upon the navigable waters of the United
States (including any adjoining pier, wharf, dry dock,
terminal, building way, marine railway, or other
adjoining area customarily used by an employer in
loading, unloading, repairing, dismantling, or
building a vessel).
33 U.S.C. § 903(a)(1994). Coverage under Section 3(a) is
determined by the nature of the place of work at the moment
of injury. Stroup v. Bayou Steel Corp., 32 BRBS 151 (1998);
Melerine v. Harbor Construction Co., 26 BRBS 97 (1992).
To be considered a covered situs, a site must have a maritime
nexus, but it need not be used exclusively or primarily for
maritime purposes. See Texports Stevedore Co. vy.
Winchester, 632 F.2d 504, 12 BRBS 719 (1980) (en banc),
cert. denied, 452 U.S. 905 (1981); Melerine, 26 BRBS at 97. )
The cases at bar arise within the jurisdiction of the Fifth
Circuit, which has adopted a broad view of the situs test,
refusing to restrict the test by fence lines or other boundaries.
See Sisson v. Davis & Sons, Inc., 131 F.3d 555, 31 BRBS
199 (CRT) (Sth Cir. 1998). Specifically, the court stated that
the perimeter of an “area” is to be defined by function and
that the character of surrounding properties is but one factor
to be considered. Thus, an area can be considered an-
44a
“adjoining area” within the meaning of the Act if it is in the
vicinity of navigable waters; or in a neighboring area, and it
is customarily used for maritime activity. Winchester, 632
F.2d at 504, 12 BRBS at 719; see also Brady-Hamilton
Stevedore Co. v. Herron, 568 F.2d 137, 7 BRBS 409 (9th
Cir. 1978). Using these guidelines, the Fifth Circuit has held
that an administrative law judge properly found that a gear
room located five blocks from the nearest dock constituted a
covered situs because it was in the vicinity of the navigable
waterway, it was as close to the docks as feasible, and it had
a nexus to maritime activity in that it was used to store gear
which was used in loading process. Winchester, 632 F.2d at
514-516, 12 BRBS at 726-729.
In the present cases, both injuries occurred on
employer’s facility in Building 10 which is adjacent to
navigable water. Building 10 is used to store finished
product and to load rail cars and trucks. When the supply of
fertilizer to be transported by barge or vessel in Building 9
runs low, product is transferred from Building 10 to
Building 9. Neither building is used in manufacturing or
processing fertilizer. Tr. at 117, 120. Employer contends
that neither its facility nor Building 10 is a covered situs
under the Act for a variety of reasons. We reject this
contention. Initially, we reject employer’s assertion that we
should rely on the definition of “marine terminal” found in
the Occupational Safety and Health Administration (OSHA)
regulations, 29 C.F.R. § 1917.2(u), as it is inapplicable in
light of the fact that the OSHA regulations were not
developed at the same time or for the same purpose as the
Act. See Erlenbaugh v. United States, 409 U.S. 239 (1972);
Powers v. Sea Ray Boats, Inc., 31 BRBS 206, 211 (1998).
Further, we decline to impose the more restrictive
law established by the United States Court of Appeals for the
45a
Fourth Circuit upon cases arising within the Fifth Circuit, as
the Fifth Circuit law is controlling.’ Sisson, 131 F.3d at 555,
31 BRBS at 199 (CRT); Winchester, 632 F.2d at 504, 12
BRBS at 719. Under Winchester, the definition of “adjoining
area” is a broad one. It includes areas in the vicinity of
navigable waters which are used for maritime activity.
Winchester, 632 F.2d at 514-516, 12 BRBS at 726-729, and
actual contiguity with navigable waters is not required.
Sisson, 131 F.3d at 557, 31 BRBS at 200 (CRT). Thus, the
geography and the function of an .area are of utmost
importance. Stroup, 32 BRBS at 154. The administrative
law judge in this case found that Building 10 is “in close
proximity” to the docks and that they are not “separate and
distinct” areas. Gavranovic Decision and Order at 14; see
’ See Parker v. Director, OWCP, 75 F.3d 929, 30 BRBS 10 (CRT)
(4th Cir. 1996), cert. denied, 117 S.Ct. 58 (1996); Sidwell v.
Express Container Services, Inc., 71 F.3d 1134, 29 BRBS 138
(CRT) (4th Cir. 1995), cert. denied, 518 U.S. 1028 (1996). The
Fourth Circuit has held that the situs test is limited to a strict
interpretation of the language of the Act. In Sidwell, the Fourth
Circuit held that a covered situs under the Act must actually adjoin
navigable waters; i.e., it must be contiguous to and actually touch
the navigable water. With regard to “other adjoining areas,” the
court stated that non-enumerated areas must be similar to the
enumerated ones and must be customarily used for maritime
activity. Thus, the raison d’etre for the facility or structure must be
~for-use in connection with the navigable waters. Id., 71 F.3d at
1138-1139, 29 BRBS at 142-144 (CRT). Following its decision in
Sidwell, the Fourth Circuit held that an injury sustained in a steel
fabrication plant by an employee fabricating steel for an inland
bridge did not occur on a covered situs. It held that the steel plant,
located 1000 feet from the river, did not meet the geographical test
and was not a facility the purpose of which was to serve the
navigable water. Jonathan Corp. v. Brickhouse, 142 F.3d 217, 32
BRBS 86 (CRT) (4th Cir. 1998), cert. denied, 119 S.Ct. 590
(1998). In any event, this reasoning would not dictate a contrary
result in these cases, as employer’s facility actually adjoins
navigable waters and is used for loading and unloading vessels.
46a
also Jones Decision and Order at 12-13. Moreover, although
he noted that Building 10 is not used directly to load vessels,
he reasoned that his conclusion that the two areas are not
separate and distinct is supported by the facts that conveyor
belts link Building 10 to other areas, and fertilizer is
transferred from it to Building 9 when Building 9 needs more
fertilizer for shipments on vessels. Thus, he stated that
because of its proximity to the water and because the facility
is “customarily used” for maritime purposes (albeit not
exclusively), employer’s entire facility is an “adjoining area”
pursuant to Section 3(a) under the Fifth Circuit’s
interpretation in Winchester. | Gavranovic Decision and
Order at 14-15; see also Jones Decision and Order at 12-13.
In a recent case arising within the jurisdiction of the
Fifth Circuit, the Board affirmed the administrative law
judge’s finding that a worker injured in a warehouse shipping
bay at a steel manufacturing plant was not injured on a
covered situs. Stroup, 32 BRBS at 155. The Board stated
that the shipping bay, which was used to store steel and to
load trucks which then transported the steel overland or
carried it to barges or rails for further shipment, did not serve
a maritime function, agreeing with the administrative law
judge who stated that “there is nothing inherently maritime
about storing and loading steel onto trucks....” Stroup, 32
BRBS at 154. This lack of a maritime function in
conjunction with the shipping bay’s distance from the
employer’s dock facility where loading and unloading
occurred,® led the Board to conclude that an injury in the
shipping bay, even while loading a truck with steel bound for
a barge, did not occur on a covered situs because it met
neither the geographic nor the function criterion of
® The warehouse/shipping bay was situated 1/4 to 1/2 mile from
the docks, separated therefrom by a levee and a public road.
47a
Winchester. Stroup, 32 BRBS at 154-155; see also Melerine,
26 BRBS at 101.
The instant cases are distinguishable from Stroup.
Although the facility at which claimants herein work is a
manufacturing operation, and the building in which they
were injured is not directly involved with the loading or
unloading of barges or vessels, part of employer’s business
involves sending and receiving goods by barges or vessels-a
distinctly maritime activity. Moreover, the geography of the
facility herein can be distinguished from the facility in
Stroup, as here, the entire facility and the building in question
are adjacent to navigable water and to the docks where
barges are loaded and unloaded. See Jt.Cl.Ex. 4. In light of
the location of employer’s facility and because significant
maritime activity (loading and unloading barges) occurs on
the docks at employer’s facility, we affirm the administrative
law judge’s determination that claimants’ injuries in these
cases occurred on a covered situs. Smith v. Universal
Fabricators, Inc., 21 BRBS 83 (1988), aff'd, 878 F.2d 843,
22 BRBS 104 (CRT) (Sth Cir. 1989), cert. denied, 493 U.S.
1070 (1990); Winchester, 632 F.2d at 504, 12 BRBS at 719.
Status
Employer next argues that neither claimant satisfies
the status requirement. Specifically, employer argues that
both Mr. Jones and Mr. Gavranovic are land-based workers
and neither was engaged in maritime activity at the time of
his injury; therefore, the administrative law judge should not
have awarded benefits. Generally, a claimant satisfies the
“status” requirement if he is an employee engaged in work
which is integral to the loading, unloading, constructing, or
repairing of vessels. See 33 U.S.C. § 902(3); Chesapeake &
Ohio Ry. Co. v. Schwalb, 493 U.S. 40, 23 BRBS 96 (CRT)
(1989). To satisfy this requirement, he need only “spend at
least some of fhis] time in indisputably longshoring
operations.” Northeast Marine Terminal Co. v. Caputo, 432
48a
U.S. 249, 273, 6 BRBS #50, 165 (1977); Boudloche vy.
Howard Trucking Co., 632 F.2d 1346, 12 BRBS 732 (5th
Cir. 1980), cert. denied, 452 U.S. 915 (1981). Under Fifth
Circuit law, a claimant also may satisfy the status
requirement by fulfilling the “moment of injury” test; that is,
by being engaged in maritime employment at the time of
injury. Universal Fabricators, Inc. v. Smith, 878 F.2d 843,
22 BRBS 104 (CRT) (Sth Cir. 1989), cert. denied, 493 U.S.
1070 (1990); Thibodaux v. Atlantic Richfield Co., 580 F.2d
841, 8 BRBS 787 (Sth Cir. 1978), cert. denied, 442 U.S. 909
(1979); Scott v. Tug Mate, Inc.,22 BRBS 164 (1989).
We reject employer’s arguments regarding the status
of each of these employees. Initially, we note the error of
employer's argument that because neither claimant was
performing maritime work at the time of his injury, neither
satisfies the status requirement. To the contrary, the Fifth
Circuit uses the “moment of injury” test not to narrow but to
. broaden coverage under the Act. See McGoey v. Chiquita
Brands International, 30 BRBS 237 (1997); Thornton vy.
Brown & Root, Inc., 23 BRBS 75 (1989); Henry v. Gentry
Plumbing, 18 BRBS 95 (1986). Therefore, the fact that both
claimants herein were injured during the course of
performing non-maritime work is insufficient in and of itself
to deny them coverage. See Caputo, 432 U.S. at 273,
~ 6 BRBS at 165 (a claimant cannot be excluded because of
activities performed at the time of injury as the “status” test
is occupational in nature).
With regard to the occupational nature of their work,
oe we affirm the administrative law judge’s conclusion that both
claimants regularly engage in maritime work. The
administrative law judge credited the testimony of both
claimants and, although Mr. Jones, as an “A” operator, has
more duties listed in his job description which constitute
maritime work, Mr. Gavranovic clearly testified and
established to the satisfaction of the administrative law judge
49a
that he, too, performed some of those same duties on a
regular basis. For instance, both testified that they
participated in loading fertilizer from unit 9. Specifically,
Mr. Gavranovic stated that he controlled/monitored
everything therein, except he did not operate the crane - he
worked the screens, the elevator, the conveyor belts, cleaning
debris when necessary, and Mr. Jones stated that, if assigned
to Building 9, he would most likely be operating the crane.
Tr. 56-57, 215-216, 220. Further, they both testified that
they used the marine loader on the docks to load out-bound
fertilizer onto barges and vessels, and they unloaded
phosphate rock from in-coming barges. Tr. at 54, 89, 99,
215-216, 220; see also Jt.Cl.Ex. 2 at 18, 26. Moreover, the
administrative law judge noted employer’s concession that
Mr. Jones had loaded and unloaded barges and that Mr.
Gavranovic unloaded barges. This evidence is sufficient to
Support the administrative law judge’s conclusion that
claimants loaded and unloaded vessels “at least some of the
time” and, therefore, meet the status requirement of Section
2(3). Schwalb, 493 U.S. at 40, 23 BRBS at 96 (CRT);
Caputo, 432 U.S. at 249, 6 BRBS at 150; Boudloche, 632
F.2d at 1346, 12 BRBS at 732. As both claimants are
covered employees, we affirm the administrative law judge’s
awards of benefits.
Accordingly, the administrative law judge’s decisions
awarding benefits are affirmed.
SO ORDERED.
/s/ Betty Jean Hall
Chief Administrative Appeals Judge
/s/ Roy P. Smith
Administrative Appeals Judge
Js/ Regina C. McGranery
Administrative Appeals Judge
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