Ninth Circuit: intermodal facility is not a LHWCA situs

by Matthew H. Ammerman on September 7th, 2018

The U.S. Court of Appeals for the Ninth Circuit has not adopted the plain-language approach to the situs element of LHWCA statutory coverage like the Fourth[1] or Fifth[2] Circuits. Instead, the Ninth Circuit relies on the Herron factors to determine whether an injury site qualifies as “adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel”[3] based on its functional relationship with navigable waters. The Herron factors are: (1) the particular suitability of the site for the maritime uses; (2) whether adjoining properties are devoted primarily to uses in maritime commerce; (4) the proximity of the site to the waterway; and, (5) whether the site is as close to the waterway as is feasible given all of the circumstances in the case.[4]
The Ninth Circuit holds that the Herron factors were not satisfied with regard to an intermodal facility in Ahmed v. Western Ports Transportation, Inc.[5] Ahmed, a truck driver for Western Ports, was usually assigned to employer’s rail group and drove trailers between a terminal at the Port of Seattle and the Union Pacific Intermodal Facility. The trip was approximately two or three miles over several public streets, a highway, and a draw bridge.[6] He was injured at the intermodal facility. The Ninth Circuit holds that facility is not particularly suitable for maritime activities. It is a mixed-use facility located near the port for economic rather than functional reasons. The primary purpose of the intermodal facility is to facilitate landward (rail) transportation.[7] The Ninth Circuit affirms the administrative law judge’s finding that the intermodal facility was not an “adjoining area.”[8]

[1] Sidwell v. Express Container Services, Inc., 71 F.3d 1134, 1138 (4th Cir. 1995).
[2] New Orleans Depot Services, Inc. v. Director, Office of Worker's Comp. Programs [Zepeda], 718 F.3d 384, 394 (5th Cir. 2013)(en banc).
[3] 33 U.S.C. § 903(a).
[4] Brady-Hamilton Stevedore Co. v. Herron, 568 F.2d 137, 141 (9th Cir. 1978).
[5] 731 F. App'x 661, 2018 U.S. App. LEXIS 12486 (9th Cir. 2018).
[6] Ahmed v. Western Ports Transportation, Inc., 50 BRBS 41 (2016), aff’d, 731 F. App'x 661 (9th Cir. 2018).
[7] Ahmed, 731 F. App'x at 662-63; cf. BPU Mgmt. v. Dir., OWCP, DOL [Martin], 732 F.3d 457, 464 (5th Cir. 2013)(surrender of cargo to land transport is where functional relationship ends).
[8] Id. at 663.

Posted in Situs    Tagged with situs, Longshore situs, herron factors



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