Fifth Circuit rejects LHWCA coverage directly and through OCSLA for work on TLP component

by Matthew H. Ammerman on July 16th, 2017

The first appellate opinion dealing directly with post-Valladolid application of OCSLA comes from the Fifth Circuit in Baker v. Director, OWCP, 834 F.3d 542 (5th Cir. 2016). But the primary issue was whether the LHWCA directly covered the worker’s alleged injury.[1] More specifically, the question is whether the injured worker was engaged in maritime employment, which hinged on whether the tension leg platform Big Foot was a vessel within the meaning of the LHWCA.

 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 land on topside living quarters the Big Foot, which was designed to work on 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 a canal to a shoreside meeting place. Therefore, to meet the requirements of statutory LHWCA coverage, he had to meet the LHWCA’s situs[2] and status requirements.[3] Situs was easily satisfied because he worked in a shipyard adjoining navigable waters. But the LHWCA’s § 902(3) requires that the worker be engaged in maritime employment, specifically, longshoring operations, a ship repairman, shipbuilder, or ship-breaker.[4] Baker had to be working on a component of a “vessel” as defined by general maritime law to meet the status requirement.

The Big Foot, a tension leg platform, 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[5]

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 then carried out to sea 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, Baker argued it would lose its vessel status.

The Fifth Circuit first works through the yin and yang of the U.S. Supreme Court’s Stewart[6] and Lozman[7] cases. The dredge Super Scoop at issue in Stewart was slow and massive but had characteristics common to seagoing vessels like a captain, crew, navigational lights, ballast tanks, and a crew area. The Super Scoop also had means of self-propulsion. It was a vessel because it was not just “capable of being used  [] as a means of transportation on water” – it was in fact used to transport equipment and workers over water.[8] The house boat at issue in Lozman floated, had been towed, and was capable of incidentally carrying people or things over water.[9] But the Supreme Court reasoned that the house boat was not a vessel because it was not “designed to any practical degree to transport persons or things over water.”[10] That distinguished Lozman’s house boat from the Super Scoop, which was regularly – though not primarily – used to transport workers and equipment over water.[11]
The Fifth Circuit holds the Big Foot is more like Lozman’s house boat than the Super Scoop, and, consequently, is not a vessel regardless of whether it floats and has or will be towed.[12] The Big Foot has no means of self-propulsion, no steering mechanism, rudder, and has an unraked bow. The Big Foot is required to carry a captain and crew when towed, but the crew will only be present to ensure Big Foot's transport to its permanent location on the OCS. The Big Foot was designed to be secured to the bed of the Gulf of Mexico with sixteen miles of tendons and stay there for approximately twenty years during the life of the formation. It is only intended to travel over water once in that time to reach the Shelf. Invoking the “reasonable observer” test from Lozman, the Fifth Circuit holds a reasonable observer would conclude the tension leg platform’s physical characteristics and activities is not a vessel.[13]  
The Fifth Circuit then harkens back to its “work platform” test from cases such as Bernard v. Binnings Constr. Co., Inc.[14] to make the point that its holding is consistent with its pre-Stewart cases as well. In Bernard v. Binnings, a work punt was not a vessel because it functioned as a work platform and did not have substantial vessel characteristics.[15]
At bottom, the Big Foot is not a vessel, therefore, Baker’s landside injury was not LHWCA-covered because he was not engaged in maritime employment and could not meet the status requirement.[16]
The Fifth Circuit similarly rejects Baker’s alterate theory of LHWCA coverage -- the application of OCSLA pursuant to the Supreme Court’s “substantial nexus” test from the Valladolid case.[17] To meet that test, the worker must show a “significant causal link between the injury and his employer’s on-OCS operations ….,” a question left to the individual circumstances of each case.[18] In Baker’s case, the ALJ found that the living quarters topside on which Baker worked was not unique to OCS operations, though the particular topside at issue was intended for use on the Shelf. Also, unlike the worker in the Valladolid case, Baker only worked on land, whereas the worker in Valladolid worked on the Shelf ninety-eight percent of his time. The ALJ further found that Baker’s employer, Gulf Island Fabricators, would have no role in the installation or operation of the Big Foot on the Shelf. The Fifth Circuit held those findings were supported by substantial evidence, and, consequently, that Baker failed to show a significant causal link between his injury and his employer’s on-OCS operations.[19]

The Fifth Circuit rejected LHWCA coverage of Baker’s injury, directly and through OCSLA’s extension.

[1] 33 U.S.C. §§ 902(3), 903(a).
[2] 33 U.S.C. § 903(a).
[3] 33 U.S.C. § 902(3).
[4] Id.
[5] Fields v. Pool Offshore, Inc., 182 F.3d 353, 358 (5th Cir. 1999), cert. denied, 528 U.S. 1155 (2000)(offshore spar); Cain v. Transocean Offshore USA, Inc., 518 F.3d 295, 299-302 (5th Cir. 2008)(incomplete semi-submersible)(“We further think the preclusion from vessel status of crafts still under construction serves several important goals and is consistent with the concern for avoiding uncertainties and possible oscillation in and out of Jones Act status….”), cert. denied, 555 U.S. 880 (2008); Warrior Energy Servs. Corp. v. ATP Titan M/V, 551 Fed. Appx. 749, 750 (5th Cir. 2014)(tension leg platform)(The TITAN, a floating oil and gas production facility moored on the Outer Continental Shelf, is not a vessel in maritime lien case); Abram v. Nabors Offshore Corp., 2010 U.S. Dist. LEXIS 79518 (S.D. Tex. 2010)(Harmon, J.), aff’d, 439 Fed. Appx. 347, 348 (5th Cir. 2011)(tension leg platform).
[6] Stewart v. Dutra Constr. Co., 543 U.S. 481, 488-90, 125 S.Ct. 1118, 160 L.Ed. 932 (2005).
[7] Lozman v. City of Riviera Beach, 133 S.Ct. 735, 184 L.Ed.2d 604 (2013).
[8] Baker, 834 F.3d 542, 546 (5th Cir. 2016)(emphasis added), citing Stewart, 543 U.S. 481, 495 (2005).
[9] Baker, 834 F.3d 542, 547 (5th Cir. 2016), citing Lozman, 133 S.Ct. 735, 740 (2013).
[10] Id., 834 F.3d at 547 (5th Cir. 2016), citing Lozman, 133 S.Ct. at 741.
[11] Id., 834 F.3d at 547 (5th Cir. 2016), citing Lozman, 133 S.Ct. at 743.
[12] Id. at 547.
[13] Id. at 547, citing Lozman, 133 S. Ct. at 741.
[14] Id., citing 741 F.2d 824 (5th Cir. 1984)
[15] Id., 834 F.3d 547-548, citing Smith v. Massman Constr. Co., 607 F.2d 87, 89 (5th Cir. 1979),(caisson was not a vessel in large part because the caisson's "transportation of men and material, if any occurred, was incidental" to its purpose of "being both a form for concrete in a bridge pier and a part of the pier itself, not for the purpose of being a . . . vessel."); See also Blanchard v. Engine & Gas Compressor Servs., Inc., 575 F.2d 1140, 1141-43 (5th Cir. 1978) (buildings mounted on virtually permanently sunken barges were not vessels); Warrior Energy Servs. Corp. v. ATP Titan M/V, 551 F. App'x 749, 752 (5th Cir. 2014) (floating oil and gas production facility moored to the floor of the OCS was not a vessel under 1 U.S.C. § 3 because it was "not practically capable of transportation on water").
[16] Id. at 546.
[17] Id. at 548 citing Pacific Operators Offshore, LLP v. Valladolid, 565 U.S. 207, 132 S.Ct. 680, 691, 181 L.Ed. 2d 675 (2012).
[18] Id. at 548-549, citing Valladolid, 132 S.Ct. 680, 690-691 (2012).
[19] Id. at 549.

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