5th Circuit continues tightening LHWCA situs

by Matthew H. Ammerman on December 12th, 2013

In its first opinion following the landmark Zepeda decision on April 29, 2013, the 5th Circuit held that cross-tunnels at a shore-side aluminum manufacturing facility are not LHWCA-covered. In doing so, the court states that cargo -- in this case bauxite -- leaves the maritime unloading process when it is "surrendered to land transport." That "point of surrender" is the point where the longshoreman's duty to unload and move the cargo ceases. BPU Mgmt. v. Dir., OWCP [Martin], 732 F.3d 457, 464 (5th Cir. 2013).

BPU/Sherwin Alumina (Sherwin) operates an aluminum facility near Ingleside, Texas. Reddish-brown bauxite is unloaded from ships and moved by overhead conveyors to two long, rectangular bauxite storage warehouses shown in the overhead shot above.

The bauxite remains in the storage warehouses weeks or years until it is needed. When a certain grade of bauxite is needed, a door at the bottom of the bin opens and drops the raw material down into underground conveyors. The bauxite is transferred by a cross-tunnel conveyor from under the warehouse to a rod mill, where it is pulverized into smaller pieces and transported towards the metal-extraction facility to transform into finished product.

David Martin, who was classified by his employer as a dockworker, hurt his back shoveling spilled bauxite back onto an underground cross-tunnel conveyor. The administrative law judge and Benefits Review Board found the incident was covered under the LHWCA. The 5th Circuit reversed because the LHWCA only covers injuries on navigable waters, an enumerated site, or in an area which "adjoins" navigable waters and is used for loading and unloading. The underground cross-tunnels were found to adjoin navigable water by the ALJ, but the 5th Circuit considered the bauxite to have left maritime transportation by the time it reached the cross-tunnels. Therefore, the cross-tunnels were not "customarily used" for loading or unloading vessels.

Earlier this year in the Zepeda case, the 5th Circuit stripped away the barnacles of the old liberal definition of "adjoining area." The court held that "adjoin" should be given its ordinary meaning: to be "contiguous with" or "abutting upon." The court further refines its interpretation of situs in this recent Martin case, clarifying that cargo that has passed the "point of surrender" to land transportation is no longer part of the loading and unloading process. An area past the "point of surrender" cannot be an LHWCA-covered "adjoining area" because it is not "...customarily used by an employer" for loading or unloading vessels. (emphasis added).

BPU Mgmt. v. Dir., OWCP [Martin], 732 F.3d 457 (5th Cir. October 8, 2013).


Posted in LHWCA: Coverage: Situs    Tagged with situs, Longshore, zepeda mixed-use facility

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