5th Circuit: worker on floating "thing" (non-vessel) is covered by LHWCA

by Matthew H. Ammerman on October 16th, 2020

The "thing" in this case was the Big Foot tension leg platform that was floating on Corpus Christi Bay and moored at a facility in Ingleside, Texas, during construction.

The 1972 amendments to the LHWCA expanded its coverage to landward sites and added a statutory requirement that workers be engaged in maritime employment.[1] Those requirements — referred to as the “situs” and “status” elements for statutory coverage — did not, however, displace LHWCA coverage as it existed prior to 1972. A worker who is injured on “actual navigable waters in the course of his employment on those waters … satisfies the status requirement … and is covered under the LHWCA, providing, of course, that he is the employee of a statutory ‘employer,’ and is not excluded by any other provision of the Act.”[2]

The Fifth Circuit in MMR Constructors, Inc. v. Director, OWCP[Flores] [3] addressed both requirements highlighted above in holding that a worker on a moored non-vessel floating in navigable waters was covered by the LHWCA. That non-vessel was the Big Foot, a roughly 30-story-high tension-leg oil platform used for deepwater drilling, which is now offshore 225 miles south of New Orleans anchored to the sea floor by over sixteen miles of tendons.[4]

The Fifth Circuit previously held the Big Foot is not a vessel in a separate case involving an earlier phase of its construction.[5]

Here, the Big Foot was connected to shore by utility lines and moored with steel cables at a facility near Ingleside, Texas, in Corpus Christi Bay during the topside phase of its construction.[6] Henry Flores, a quality assurance and control technician for electrical wiring, tripped and tore his Achilles tendon working on the platform.[7] He claimed benefits under the LHWCA, which his employer disputed, arguing that his injury was not covered by the LHWCA.

The situs element of LHWCA coverage requires that the worker be injured on “navigable waters of the United States” or one of the enumerated landward sites.[8] The worker need not be on navigable waters by means of a vessel. The Fifth Circuit looked to Williams v. Avondale Shipyards, Inc. in which it held that an engineering draftsman injured during sea trials of a not-yet-commissioned Coast Guard cutter, a non-vessel, was covered by the LHWCA.[9] In Williams, the LHWCA coverage issue was whether the injured worker was on the “navigable waters of the United States” or the high seas, the latter being outside the reach the LHWCA.[10] The panel in Williams, in a decision written by Judge John R. Brown, assumed the worker could be LHWCA-covered while working on a non-vessel on navigable waters.[11]

Another pre-1972 case also supported the Fifth Circuit’s holding that Flores’s injury was covered by the LHWCA. In Travelers Insurance Company v. Shea, a shipbuilder’s employee was injured while working on a “floating outfitting pier, … which had been permanently anchored to the shore and bottom of the navigable Sabine River by clusters of piling for eighteen years.”[12]  That floating pier was an extension of land and the water underneath it “removed from navigation,” consequently, prior to 1972, that landside injury was not covered.[13]  The Big Foot, however, was not permanently attached to the shore to qualify as an extension of land.  The LHWCA applied to Flores’s injury that took place on “navigable waters” on the Big Foot in the course of his employment if his employer qualified as a statutory “employer.”[14]

The test to qualify as a statutory employer under the LHWCA is “largely tautological.”[15] The Fifth Circuit has “held that if the injured employee meets the Act’s [1972] definition of ‘employee,’ the employer is ipso facto a covered employer — it has at least one employee engaged in maritime employment.”[16] Flores was that one employee, so his employer was a LHWCA “employer.”

The Fifth Circuit also held that the LHWCA is constitutional even if applied to workers not engaged in traditional maritime activities,[17] and affirmed the Benefits Review Board’s award of LHWCA benefits to Flores.[18]

[1] 33 U.S.C. §§ 902(3); 903(a).
[2] Director v. Perini North River Associates [Churchill], 459 U.S. 297, 324, 103 S. Ct. 634, 650-51 (1983) (emphasis added).
[3] 954 F.3d 259 (5th Cir. 2020).
[4] Id. at 261 n. 2.
[5] Baker v. Director, OWCP, 834 F.3d 542, 547 (5th Cir. 2016).
[6] MMR Constructors, Inc., 954 F.3d at 261.
[7] Id.
[8] 33 U.S.C. § 903(a).
[9] Id. at 263-264 (citing Williams v. Avondale Shipyards, Inc., 452 F.2d 955, 957-958 (5th Cir. 1971)).
[10] Id. at 263 n.24 (5th Cir. 2020) (citing Williams, 452 F.2d at 959). This point is not without controversy. The Second Circuit holds that the LHWCA extends extraterritorially to the high seas in a decision cited favorably by the Ninth Circuit. Kollias v. D & G Marine Maintenance, 29 F.3d 67, 75 (2d Cir. 1994); see also Saipan Stevedore Co. v. Director, OWCP, 133 F.3d 717, 723 (9th Cir. 1998).
[11] Williams, 452 F.2d at 959.
[12] 382 F.2d 344, 345-46 (5th Cir. 1967).
[13] MMR Constructors, Inc., 954 F.3d at 264-265 (citing Travelers Insurance Company at 349).
[14] Id. at 265. The Fifth Circuit was careful to point out that its test permitting LHWCA coverage on a floating structure was not as expansive as the Second Circuit’s “any floating object” standard. Id. at 264 n.34 (citing  Lockheed Martin Corp. v. Morganti, 412 F.3d 407, 416 (2d Cir. 2005)).
[15] Id. at 266 (citing Hullinghorst Industries, Inc. v. Carroll, 650 F.2d 750, 758 (5th Cir. 1981)).
[16] Id.
[17] Id. at 267-268 (citing Director v. Perini North River Associates, 459 U.S. 297, 320 n. 29); see also Perini at 318-319 (“There is nothing in these comments, or anywhere else in the legislative Reports, to suggest, as Perini claims, that Congress intended the [LHWCA’s] 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.”).
[18] Id. at 268.

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