LHWCA situs: Fifth Circuit restores meaning to "adjoining"

by Matthew H. Ammerman on June 14th, 2013

I used to say that Longshore situs in the Fifth Circuit was like horseshoes and hand grenades -- close enough was good enough. No more.

On April 29, 2013, an en banc panel of the U.S. Court of Appeals for the Fifth Circuit held in the Zepeda case that a Louisiana chassis-repair facility 300 yards from the waterfront was not a covered LHWCA situs. Juan Zepeda claimed a hearing loss injury while working at the facility, which was was physically separated from the waterfront and surrounded by other industrial businesses. The Fifth Circuit overruled the longstanding decision in 1980's Winchester case that held that an “adjoining area” did not actually have to touch navigable waters to be a covered situs. 33 U.S.C. § 903(a). The worker in Winchester was injured at a gear room 5 blocks from the gate of the nearest dock and separated from the waterfront by public streets and other private property.

The court's new decision relies on the plain language of the LHWCA that states that specific sites adjoining navigable waters such as as a pier or wharf are covered plus an "... adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel." 33 U.S.C. § 903(a)(emphasis added).

The en banc Fifth Circuit followed the language of the Act and gave the normal meaning to “adjoining” as the Fourth Circuit did in 1995. A covered adjoining area must border on or be contiguous with navigable waters. New Orleans Depot Servs. v. Dir., Office of Worker's Comp. Programs [Zepeda], 2013 U.S. App. LEXIS 8674 (5th Cir. Apr. 29, 2013).

Put away the hand grenades.



Posted in not categorized    Tagged with New Orleans Depot, Longshore situs, zepeda, winchester, adjoining area, situs

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