5th Circuit: Offshore Platform with Warehouse is Covered by LHWCA

by Matthew H. Ammerman on February 11th, 2020

Normally a fixed, offshore platform related to extractive operations is not a covered LHWCA situs.[1],[2] What about a fixed, offshore platform with a portion devoted to unloading and loading vessels? In Wood Group Production Services v. Director, OWCP [Malta], the Fifth Circuit holds the portion devoted to unloading or loading is a covered situs.[3] Consequently, the injured worker, Luigi Malta, is entitled to LHWCA benefits for his injury suffered in the process of unloading CO2 containers from a vessel to a warehouse on the platform.

The Fifth Circuit’s opinion in Malta follows several opinions where the court struggles with how to classify a fixed platform used in part to load or unload vessels.

A fixed, offshore platform is not an enumerated site listed in section 3(a) of the LHWCA. Therefore, the only way for a fixed platform to be covered is if it is an “other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel.”[4] The Fifth Circuit has recognized that any “adjoining area” must have: (1) a geographic connection to navigable waters (the area must adjoin navigable waters); and, (2) a functional nexus to loading, unloading, etc.[5]

These are the general parameters for the functional element of the LHWCA situs determination for a fixed offshore platform as set out in past Fifth Circuit cases:
  • Navigable waters around a fixed platform are a covered situs. Therefore, work from a boat (that is not transient or fortuitous) around the fringes of a platform is covered work because it occurs on navigable waters.[6]
  • A worker loading or unloading his personal tools or occasional supplies does not transform a fixed platform into a covered situs.[7]  
  • A portion of a fixed platform not integral to loading or unloading, vessel repair, or shipbuilding is not a covered situs.[8]
  • A portion of a fixed platform that “plays an integral role in the loading of vessels” is a covered LHWCA situs.[9]
With that framework, here are the facts of the Malta case. Malta was a warehouseman employed on the Black Bay Central Facility (Central Facility). The Central Facility was “a fixed platform located in the territorial waters of Louisiana [used to] provide[] support services for oil and gas production occurring at various satellite production platforms….”[10] The Central Facility comprises four separate platforms connected by catwalks. One of the platforms of the Central Facility supports a warehouse used to house supplies and tools for satellite production platforms and the Central Facility itself.

Malta was injured while standing in front of the Central Facility’s warehouse. A basket of CO2 containers was lifted from a boat by a platform crane to where Malta was standing in front of the warehouse. The basket collapsed, and one of the CO2 containers fell out and exploded injuring Malta.[11]

The Fifth Circuit distills the case to whether the functional element of the adjoining-area test is satisfied. The court takes note that the Central Facility is “not a standalone fixed platform. It is a facility designed as a central hub to support a multitude of smaller platforms in and around the oilfield. Central Facility comprises four platforms and includes a safe harbor designed to allow for loading and unloading vessels in rough seas….”[12] And unlike the worker in Thibodeaux, Malta was injured on a part of the platform used to load and unload vessels.[13]

The court bats away the employer’s argument that the material being loading or unloaded was not “maritime cargo.”[14] The employer argued that the materials were equipment and supplies related to natural resource production, and, therefore, the Central Facility lacked the functional nexus required to be an adjoining area.[15] But “cargo” is not listed in Section 3(a)’s statutory definition of what makes an “adjoining area.” The court sticks to the statute and holds the portion of the Central Facility where Malta was injured is a covered situs because loading and unloading vessels takes place there. In doing so, however, the court distinguishes a worker’s loading or unloading of gear and supplies to a platform. At bottom, the court follows the plain language of the Act in holding “Malta … was injured while unloading a boat on a platform used to load and unload boats.”[16]

Does this opinion transform every offshore production fixed platform into a covered LHWCA situs because crew or supplies used on the platform are unloaded or loaded from a boat? No. The court took great pains to recognize that movement of personal gear or supplies to or from a fixed platform is not enough loading or unloading to transform a production platform into a LHWCA situs.[17] The linchpin is that the statute requires that an adjoining area be “customarily used” for loading, etc. That implies significantly more loading or unloading activity than the easier-to-satisfy “some of the [worker’s] time” functional requirement for LHWCA status. Central Facility had three cranes to load or unload equipment onto boats, a full-time crane operator, and a safe harbor for vessels. And it was undisputed that “significant” unloading took place on the dock where Malta was hurt.[18]

Moving equipment or supplies from a boat to a platform used to produce oil and gas from that fixed production platform is not enough to make that platform a LHWCA situs.[19] The Central facility was unique—it was an offshore warehouse. Unlike a traditional fixed, offshore production platform, the Central Facility’s main purpose was to supply the satellite wells with equipment and supplies.[20] That is different from a traditional production platform that is primarily devoted to natural resource production. It is unlikely that unloading a vessel onto a fixed production platform would transform it into an “adjoining area.”[21]

The Fifth Circuit holds the portion of the Central Facility where Malta was injured—in front of a warehouse used to store material unloaded from a vessel—is a LHWCA situs. The court also affirms the trial court’s finding that Malta had LHWCA status because he was injured unloading a vessel and regularly loaded or unloaded vessels.[22] The Fifth Circuit denied the employer’s petition for review and held the LHWCA applied to Malta’s injury. [end].
   [1] LHWCA § 3(a), 33 U.S.C. § 903(a).
   [2] See Herb's Welding v. Gray, 470 U.S. 414, 421-22, n. 6, 105 S. Ct. 1421, 1426 n. 6 (1985); Thibodeaux v. Grasso Production Management, Inc., 370 F.3d 486, 493 (5th Cir. 2004)(“While [the Supreme Court in Herb’s Welding] limited its decision to status rather than situs …. Herb's Welding's insistence that oil production platforms be considered islands even outside of the narrow issue of admiralty jurisdiction, together with the statutory analysis above, provides ample support for holding that the oil production platform at issue in this case is not a pier, even though it may possess a few of the basic physical attributes of a pier.”).
   [3] 930 F.3d 733 (5th Cir. July 22, 2019); 2019 U.S. App. LEXIS 21762, 2019 WL 3281417 (5th Cir. July 22, 2019).
   [4] LHWCA § 3(a), 33 U.S.C. § 903(a).
   [5] New Orleans Depot Servs. v. Director, Office of Worker's Compensation Programs [Zepeda], 718 F.3d 384, 392 (5th Cir. 2013)(en banc)(“An ‘other adjoining area’ seeking coverage as an LHWCA-covered situs must therefore satisfy both a geographic and a functional component.”).
   [6] Bienvenu v. Texaco, Inc., 164 F.3d 901, 908 (5th Cir. 1999)(en banc).
   [7] Munguia v. Chevron U.S.A., 999 F.2d 808, 813 (5th Cir. 1993)(“ …the transfer of small amounts of supplies between tank batteries by Munguia and his fellow roustabouts was undertaken … to further the non-maritime-related purpose of servicing and maintaining the fixed platform wells, the mere fact that Munguia may have loaded and unloaded them onto his skiff cannot confer coverage.”).
   [8] Malta, 930 F.3d 733, 739-740; No. 18-60542, 2019 U.S. App. LEXIS 21762, at *14-15 (5th Cir. 2019)(“The Thibodeaux court observed that minor maritime activity occurring in specific areas of the fixed platform—where the injury did not occur—did not transform the entire platform into a covered situs. It does not follow from this unobjectionable proposition, however, that an injury should evade coverage if it occurs on a specific portion of a platform where loading/unloading does occur merely because the general purpose of the entire platform is dedicated to another task.”), citing Thibodeaux, 370 F.3d 486, 488 (5th Cir. 2004).
   [9] Coastal Production Services, Inc. v. Hudson, 555 F.3d 426, 434 (5th Cir. 2009)(platform used to collect and separate oil sent to a connected, sunken barge for loading onto vessels was a covered LHWCA situs).
   [10] Malta, 930 F.3d at 735.
   [11] Id. at 736.
   [12] Id. at 739 (emphasis added).
   [13] Id. at 740.
   [14] Id. at 740-741. The Supreme Court rejected a similar “maritime commerce” argument with regard to LHWCA status for a worker on navigable water. Director v. Perini North River Associates, 459 U.S. 297, 318-19, 103 S. Ct. 634, 648 (1983)(“There is nothing in these comments, or anywhere else in the legislative Reports, to suggest, as Perini claims, that Congress intended the [LHWCA] status language to require that an employee injured upon the navigable waters in the course of his employment had to show that his employment possessed a direct (or substantial) relation to navigation or commerce in order to be covered.”).
   [15] Id. at 738-739.
   [16] Id. at 742-743 (emphasis added).
   [17] Id. at 741-742.
   [18] Id. at 739.
   [19] See, e.g., Munguia, 999 F.2d 808, 813 (5th Cir. 1993)(movement of tools or supplies to “to further the non-maritime-related purpose of servicing and maintaining the fixed platform wells” was not enough to create a functional nexus to loading or unloading a vessel.).
   [20] Malta at 739.
   [21] Thibodeaux, 370 F.3d 486, 494 (“Although personal gear and occasionally supplies are unloaded at docking areas on the platform, the purpose of the platform is to further drilling for oil and gas, which is not a maritime purpose.”).
   [22] Malta at 742, 745 (Malta spent at least 25% of the time on his hitch unloading vessels).

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