# Petition for Writ of Certiorari — Mobil Mining & Minerals v. Nixson

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1147%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2000
- **Citation:** 531 U.S. 978

## Text

Buprems Court, U.S.

se FEL BD
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

vol
>

7 ye

— ON ne mite ae AO se Ae ee ete ea

eee CE ele RA i re

ee eee

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.

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

“a> HOUSTON SHIP CHANNEL \

—" mt “a a

pa weer cock aor 0a | mrecseuaTe mace wacnoess COCK ; : ‘
Seen

sume 20 . if ” aw, e*

PEATUZAA sTORsea 7

EXHIBIT
CY- Il

2 onan 0 Ie " te LN -
r MobH Mining eng Minera aw wason | eswer tf Fo wot oll |} PLANT & ‘ACUA
| '

—wiwelesl wt — et a 90 pon peer sanapema renas ren ¢8 0-940 41 i A neice . * P.1168TC | PLO PLAN

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1147%3A1. Public record. Not legal advice.