4th Circuit: A Bridge is Not a LHWCA Situs

by Matthew H. Ammerman on February 11th, 2020

The original LHWCA enacted in 1927 only covered workers injured on the “navigable waters of the United States” or a dry dock.[1] The 1972 amendments to the LHWCA expanded its statutory coverage landward. Congress added a land-based “situs” and an activity-based “status” requirement for workers injured on land.[2] Both must be satisfied for the LHWCA to apply to a worker who is injured on land or an extension of land.

The Fourth Circuit in Muhammad v. Norfolk Southern Railway Co.[3] holds that a bridge is not a LHWCA situs. Consequently, Muhammad, a railroad worker who was injured replacing crossties on a bridge, could bring his lawsuit under the Federal Employers Liability Act (FELA) against his employer for injuries sustained when he fell from the bridge.

Bad facts make bad law.[4] A corollary might be that bad stipulations make confusing law. The Fourth Circuit had some jurisprudential cleaning up to do. It held in LeMelle v. B. F. Diamond Construction Co., 674 F.2d 296, 298 (4th Cir. 1982) that a worker had LHWCA status who was engaged in replacing a bridge that had a lift section to facilitate vessels passing under it, i.e., was engaged in maritime employment. But LeMelle did not deal with situs. The parties—for reasons that are unclear—stipulated that LeMelle was hurt on a LHWCA situs when working on a piling on a fixed section of the bridge one mile from shore.[5] That decision created confusion among those who thought a bridge that was an aid to navigation was a covered situs.[6] However, that is not correct.

Bridges have long been held to be extensions of land.[7] Therefore, absent customary use for loading, unloading, repairing, dismantling, or building a vessel sufficient to fit within the definition of an “adjoining area,” a bridge is not a LHWCA situs under the plain language of the statute.[8] In fact, in holding that LeMelle’s work gave him LHWCA status, the Fourth Circuit relied on three cases in which the workers were hurt or killed while standing on vessels or who fell into navigable waters and died.[9] Consequently, this distraction in this area of the law could be placed at the feet of an apparent erroneous stipulation of situs in the LeMelle case.

The Fourth Circuit in Muhammad does its best to clarify that a bridge is not a covered situs. The court points out a quote from the LeMelle case had been taken out of context by the trial court.[10] The Fourth Circuit should have perhaps gone further in Muhammad to reverse or cabin LeMelle as being an anomaly. The anomaly is that, by all appearances, it was erroneously stipulated in LeMelle that there was LHWCA situs on the piling of a bridge, and, consequently, LHWCA situs in that case was probably lacking.[11]

This, therefore, is the dividing line: a worker who is injured on navigable water and who happens to be working on a bridge project is covered by the pre-1972 LHWCA. But a worker who is injured on the bridge itself—regardless of whether it “aids navigation”—cannot be covered by the LHWCA because the situs prong is not satisfied (except in an unusual circumstance in which the bridge happens to be “customarily used” for loading, unloading, etc., sufficient to qualify as an “adjoining area”). Muhammad was on the bridge itself. LHWCA situs was lacking. He was not covered by the LHWCA and, therefore, could bring his suit under FELA.

The district court also erred in holding it lacked “subject-matter jurisdiction” because the court wrongly held that Muhammad’s exclusive remedy against his employer was under the LHWCA. The Fourth Circuit corrects this error, holding that the trial court had subject-matter jurisdiction because Muhammad claimed recovery under a federal law, FELA, over which the court certainly had subject-matter jurisdiction. This too is a frequent point of confusion when the paths of the LHWCA and civil courts at law cross. Assuming a court has subject-matter jurisdiction of the injured party’s lawsuit, then the court has subject-matter jurisdiction to decide whether the LHWCA applies to an injury.[12] However, that court does not have subject-matter jurisdiction to award LHWCA benefits.[13] And if there is an administrative proceeding underway, a civil court’s determination could be stayed due to the primary jurisdiction of an administrative agency such as the U.S. Department of Labor.[14] [end].
   [1] Longshoremen’s and Harbor Workers’ Compensation Act, March 4, 1927, ch 509. § 3, 44 Stat. 1426 (amended 1972)(“Compensation shall be payable under this Act in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock) and if recovery for the disability or death through workmen's compensation proceedings may not validly be provided by State law. …”); Chesapeake & Ohio Railway v. Schwalb, 493 U.S. 40, 46, 110 S. Ct. 381, 107 L. Ed. 2d 278 (1989).
   [2] Act of Oct. 27, 1972, P. L. 92-576, §§ 2(c), 21, 86 Stat. 1251, 1265; Director v. Perini North River Associates, 459 U.S. 297, 319, 103 S. Ct. 634, 648 (1983).
   [3] 925 F.3d 192, 2019 U.S. App. LEXIS 16773 (4th Cir. June 4, 2019).
   [4] Tharpe v. Sellers, 138 S. Ct. 545, 547 (2018)(Thomas, J. dissenting)(“If bad facts make bad law, then ‘unusual facts’ inspire unusual decisions.”).
   [5] LeMelle, 674 F.2d 296, 297 (4th Cir. 1982).
   [6] Kehl v. Martin Paving Company, 34 BRBS 121 (2000)(reversing ALJ’s decision finding section of bridge to be a covered situs and describing LeMelle as an “anomaly.”).
   [7] Id. at 197, citing Nacirema Operating Co. v. Johnson, 396 U.S. 212, 214-15, 90 S. Ct. 347, 349-50 (1969)(“Since long before the Longshoremen's Act was passed, it has been settled law that structures such as wharves and piers, permanently affixed to land, are extensions of the land.  Thus, literally read, a statute that covers injuries ‘upon the navigable waters’ would not cover injuries on a pier even though the pier, like a bridge, extends over navigable waters.”).
   [8] LeMelle at 298, citing Davis v. Department of Labor & Industries, 317 U.S. 249, 251, 63 S. Ct. 225, 226 (1942)(“Deceased had helped to cut some steel from the bridge and, at the time of the accident, was working on the barge….”); Hardaway Contracting Co. v. O'Keeffe, 414 F.2d 657, 658 (5th Cir. 1968)(“…the decedent [Richard Gerald Rogers], while performing service for the employer as a laborer and while engaged in building a bridge … sustained personal injury resulting in his death, when, as he was standing on board the employer's vessel, 'Dutchman,' and loading diesel fuel tanks from the 'Dutchman'….”); Peter v. Arrien, 325 F. Supp. 1361, 1364 (E.D. Pa. 1971), aff’d, 463 F.2d 252, 253 (3d Cir. 1972)(crane operator died in the river after crane toppled from temporary causeway that was often submerged).
   [9] Muhammad, 925 F.3d 192, 199.
   [10] Muhammad, 925 F.3d 192, 198 (“To be sure, an employee working from a barge on navigable waters while constructing or maintaining a bridge would, under the pre-1972 standard, be on navigable waters, as that employee would then be physically working from a vessel on navigable waters.”).
   [11] The U.S. Department of Labor’s Benefits Review Board holds that parties cannot stipulate to coverage of the LHWCA because subject-matter jurisdiction cannot be waived. See, e.g., Foster v. Davison Sand & Gravel Company, 31 BRBS 191 (1997).
   [12] See, e.g, In re Shippers Stevedoring Co., 274 S.W.3d 840, 846 (Tex. App.—Houston [14th Dist.] 2008)(“But regardless of the merit of that defense to the specific claims pleaded in this case—a question that we do not reach–its assertion does not deprive the state trial court of subject-matter jurisdiction.”).
   [13] Ceres Gulf v. Cooper, 957 F.2d 1199, 1208 (5th Cir. 1992).
   [14] See, e.g., Southwestern Bell Telephone Co., L.P., 226 S.W.3d 400, 403 (Tex. 2007)(discussing primary jurisdiction of administrative agency); Todd Pacific Shipyards Corporation v. Gibson, 52 Wn. App. 653, 656, 763 P.2d 206, 208 (1988).

Posted in not categorized    Tagged with LHWCA, Longshore situs, longshore status



follow on

11th circuit 5th Circuit 905(b) 9th circuit ALJ Aggravation Rule Amclyde Average weekly wage Bienvenu Boroski CMS CORONAVIRUS COVID-19 Churchill Contribution Cowart Credit Intoxication defense L-MSA LHWCA discovery LHWCA: Medical LHWCA Longshore Report of Injury Longshore situs Longshore Maintenance and cure New Orleans Depot OCSLA OPA Oil Pollution Act Outer Continental Shelf Lands Act Permanent total disability Roberts Section 10(a) Section 10(c) Section 20 Presumption Section 33(g) Section 7 Medical Section 7 Stroke Supreme Court Testbank Townsend Tracy Valladolid actually incurred additional insured adjoining area batterton change of physician compensation container repair disability doiron dollar-for-dollar dr. seidemann eggshell skull exclusion extraterritorial general maritime law hearing loss herron factors indemnity intervening cause jones act joseph tracy last responsible employer rule liability MSA longshore act longshore status manderson maritime contract maritime punitive damages master service agreement maximum compensation rate mcbride v. estis mcbride medical expenses naquin non-pecuniary damages occupational disease outer continental shelf pai or incurred paid or incurred pecuniary damages percentage of responsibility presumption punitive damages ramos rate rebuttal recreational vessel seaman status seaman situs special weight status substantial nexus transitory maritime worker unseaworthiness vessel negligence vessel status voluntary retirement winchester test winchester zepeda mixed-use facility zepeda