Board: OCSLA's landside reach limited

by Matthew H. Ammerman on December 17th, 2015

The Outer Continental Shelf Lands Act (OCSLA) extends LHWCA benefits to certain offshore workers. The first appellate opinion dealing directly with the Supreme Court's 2012 Valladolid case, which held OCSLA can apply to off-the-Shelf injuries, came from the Benefits Review Board on July 17, 2015, in Baker v. Gulf Island Marine Fabricators, LLC, 49 BRBS 45 (2015). The early indication from the Board is that OCSLA’s landside reach is limited – not like the octopus-arm reach that some predicted.

James Baker was a marine carpenter at a shoreside yard in Houma, Louisiana, owned by Gulf Island Fabricators. Baker was employed by Gulf Island for 8 months. He was injured on October 22, 2012, while working on topside living quarters for a tension leg platform, Big Foot, destined for the Outer Continental Shelf. Baker sought benefits under the LHWCA directly, or, alternately, under OCSLA.

Baker worked on land with the exception of a few boat rides across the canal to a shoreside meeting place. Therefore, to meet the requirements of statutory LHWCA coverage, he had to meet the standard requirements of LHWCA situs and status. Situs was easily satisfied because he worked in a shipyard adjoining navigable waters. But the LHWCA’s status requirement of § 902(3) requires that the worker be engaged in maritime employment, specifically, longshoring operations, a ship repairman, shipbuilder, or ship-breaker. Baker had to be working on a component of a ship, i.e., a “vessel” as defined by general maritime law, to meet the status requirement.

Consequently, the vessel status of the Big Foot was squarely at issue. The Big Foot would not be a vessel when at work as a floating production platform tethered to the seabed of the Gulf of Mexico under Fifth Circuit law. In a series of decisions, the Fifth Circuit holds that tension leg platforms or other floating production platforms that are secured to the seabed are not vessels. See, e.g., Fields v. Pool Offshore, Inc., 182 F.3d 353, 358 (5th Cir. 1999), cert. denied, 528 U.S. 1155 (2000).

Baker, however, argued that the Big Foot would have two lives. First, the structure would be a vessel as it was transported by navigable waters for construction and transport to be set up as a floating production platform. Second, once the Big Foot was set up and secured to the seabed on the OCS, it would lose its vessel status. That argument was torpedoed by the Fifth Circuit’s 2008 decision in Cain that held that a semi-submersible rig, which would have been a vessel in its finished state, was not a vessel before it was put into navigation. Cain v. Transocean Offshore USA, Inc., 518 F.3d 295, 299-302 (5th Cir. 2008). In other words, even if Big Foot would have been considered a vessel while floating out to its destination, it was not a vessel when under construction.

Consequently, Baker’s work on the living-quarters topside intended for the Big Foot was not maritime employment. He was not building a ship within the meaning of 33 U.S.C. § 902(3) and his shoreside injury was not LHWCA-covered. Baker, 49 BRBS at 49.

That does not, however, dispose of the question of LHWCA coverage. Baker alternately sought LHWCA benefits under the OCSLA extension because the Big Foot was unquestionably destined for the Shelf. In two paragraphs, the Board rejected the application of OCSLA to Baker’s injury. The administrative law judge found that the topside on which Baker worked was not unique to OCS operations, though the particular topside at issue was intended for use on the Shelf. The trial judge further found that Baker’s employer would have no role in the installation or operation of the Big Foot on the OCS. Consequently, the Board held that Baker failed to show a significant causal link between “his injury and ‘his employer’s on-OCS operations conducted for the purpose of extracting natural resources from the OCS. …” Baker, 45 BRBS at 50.

The Board affirmed the trial judge’s rejection of LHWCA and OCSLA coverage. Baker was not entitled to LHWCA benefits directly or through OCSLA.

Posted in not categorized    Tagged with OCSLA, longshore act, outer continental shelf



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