by Matthew H. Ammerman on October 16th, 2020

Petroleum tank farms that dot the banks of the Mississippi River and Houston Ship Channel have long been a LHWCA situs question mark. Workers often perform tank-to-tank transfers on tanks distant from navigable water and the original shipment that brought the petroleum product to the facility in the first place.

The Fifth Circuit holds in International-Matex Tank Terminals v. Director, OWCP [Victorian],[1] that a worker’s injury at the International-Matex Tank Terminals’ (IMTT) facility on the Mississippi River during a tank-to-tank transfer is covered by the LHWCA. Dwayne Victorian was a shift foreman at IMTT’s oil-and-gas storage facility in Gretna, Louisiana, with 60 storage tanks. All product stored at the facility arrives by vessel, and most of it leaves by vessel.[2] Victorian, who often worked in the yard, injured his neck pulling an air hose up a tank platform to blow out a line to facilitate a tank-to-tank transfer. He was approximately 1,200 feet from the dock.[3]

LHWCA situs comprises two components in the Fifth Circuit — a geographic and functional requirement. An area must adjoin navigable waters and have “some maritime purpose.”[4] On the geographic component, the court clarified that what must adjoin navigable waters is the “parcel of land” underlying the employer’s facility, not the particular part of the parcel on which the accident occurs.[5] IMTT’s terminal facility adjoined the river.[6] The geographic requirement was satisfied.

The functional requirement was also satisfied because IMTT has sixty storage tanks for liquid bulk product that is unloaded directly from vessels to those tanks and stored there, including the tanks Victorian used for the tank-to-tank transfer.[7] It was a terminal, a site enumerated in Section 3(a) of the LHWCA that includes “any adjoining pier, wharf, dry dock, terminal, building way, [or] marine railway….”[8] Thus, Victorian needed only to show that the facility served “some maritime purpose” (rather than the more rigorous standard for an “other adjoining area” under the LHWCA).[9]

The court rejected IMTT’s argument that it was not a terminal but a “mixed use” facility with a manufacturing component. IMTT occasionally heated oil to make it easier to transport and also mixed diesel fuel and oil for the vessels that docked at its facility.[10] IMTT argued that it was analogous to facilities that serve mixed maritime and manufacturing uses, and, consequently, the Benefits Review Board erred in not evaluating its function under the “other adjoining area” standard. The court rejects that argument because IMTT’s heating and mixing activities do not transform it into a manufacturing facility.[11] And the court also clarifies that the functional requirement is not used to determine whether an area qualifies as an enumerated site. Instead, all is that is required for an enumerated site is that it serve “some maritime purpose.”[12] The geographic and functional requirements for LHWCA situs were satisfied.

Victorian met the status requirement because he was tasked with monitoring the flow of oil products, opening and closing manifolds to direct flow, and facilitating the loading and unloading process.[13] A worker can meet the LHWCA’s status requirement by either: (1) being engaged in maritime employment at the time of injury for more than an episodic period; or, (2) based on his employment as a whole involving loading, unloading, building, or repairing vessels. The Fifth Circuit affirms based on the trial judge’s finding that Victorian’s employment as a whole was integral to vessel loading and unloading operations.[14]

The Fifth Circuit also addressed the fact-intensive issue of whether Victorian had reached maximum medical improvement. IMTT argued that he reached MMI a little over one year after his injury because its defense medical examiner concluded he was MMI if he did not elect to have cervical surgery. But his treating surgeon eventually recommended cervical surgery two years after the injury. The panel suggests that there may be a point when a worker’s unreasonable delay in pursuing surgery could lead to de facto MMI but affirms the trial judge’s finding that Victorian had not reached MMI.[15]

   [1] 943 F.3d 278 (5th Cir. 2019).
   [2] Id. at 281.
   [3] Victorian v. International-Matex Tank Terminals, 2015-LHC-1290, Slip. Op. at 14 (June 5, 2017) (ALJ’s decision and order), aff’d, 52 BRBS 35 (2018), pet. denied, 943 F.3d 278 (5th Cir. 2019).
   [4] Wood Group Production Services v. Director, OWCP [Malta], 930 F.3d 733, 737-738 (5th Cir. 2019).
   [5] Id. at 284-285 (citing New Orleans Depot Services, Inc. v. Director, OWCP [Zepeda], 718 F.3d 384, 392 (5th Cir. 2013) (en banc), BPU Sherwin Alumina v. Director, OWCP [Martin], 732 F.3d 457, 461 (5th Cir. 2013)).
   [6] Id. at 284.
   [7] Id. at 287.
   [8] 33 U.S.C. § 903(a).
   [9] Id. The LHWCA at Section 3(a) requires that an “other adjoining area” be “customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel.”
   [10] Id. at 281, 287.
   [11] There was also no functional line of demarcation between IMTT’s storage tanks used to hold product unloaded from vessels and its mixing of petroleum products. The Fifth Circuit has looked to that functional divide in mixed-use-facility cases to hold that bauxite unloaded from vessels is no longer part of the vessel unloading process when it is transferred to an underground cross-tunnel for manufacturing into alumina. BPU Management, 732 F.3d 457, 464-65 (5th Cir. 2013).
   [12] International-Matex Tank Terminals, 943 F.3d at 286 (The “functional approach” requires that putative situs also “serve a maritime purpose.”) (citations omitted).
   [13] Id. at 288.
   [14] Id. at 289.
   [15] Id. at 289-90.

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.

by Matthew H. Ammerman on March 20th, 2020

This inquiry is timely because the Port of Houston closed the Bayport and Barbours Cut terminals on March 19, 2020, because a worker tested positive for COVID-19.[1]

The critical word in the question above is “workplace.” And the answer is most likely yes if the infection was caused by workplace exposure, such as contact with an infected employee in covered LHWCA employment.

 Keep in mind that the worker will be aided by the LHWCA’s Section 20 presumption of compensability if the matter is litigated. Therefore, if an employee credibly asserts her infection was caused by exposure in covered LHWCA work, the employer must show by substantial evidence that the infection was not caused at work to rebut that presumption. If the presumption is rebutted, the worker must then prove by a preponderance of the evidence that her COVID-19 disease was caused by exposure in the workplace.

The LHWCA’s definition of “injury” includes “…occupational disease or infection as arises naturally out of such employment ….”[2] To invoke the Section 20 presumption, the worker need only make a prima facie showing “(1) that she suffered a harm and (2) that conditions existed at work, or an accident occurred at work, that could have caused, aggravated or accelerated the condition.”[3] The burden of production then shifts to the employer to show by substantial evidence—facts, not speculation--that the harm was not work-related. “Substantial evidence” is “evidence that ‘a reasonable mind might accept as adequate to support a conclusion.’"[4]

The LHWCA has been interpreted to cover infections from exposure to a disease or toxic substance at work.[5] The exposure must be in work that is covered by the LHWCA, i.e., the employee meets the LHWCA status requirement and the exposure occurred on a LHWCA situs.[6]

Therefore, in a case serious enough to warrant it, a LHWCA employer or carrier should seek the opinion of an infectious disease or environmental health expert as to whether the exposure was within a reasonable probability caused by workplace exposure. That means fact-gathering in the intake and investigation process will be very important, including finding out what other exposure to the disease at home or in the public the worker may have had and when.

Comprehensively screening workers, keeping good documentation of those screenings, and using rigorous mitigation strategies in the workplace may be a proactive measure to lower the risk of workplace exposure and liability for COVID-19.

The overall impact of COVID-19 on the maritime community will hopefully be less than the population overall. The percentage of severe outcomes in typical working-age adults (20-64) is much lower than those 65 and older.[7] Risk mitigation strategies such as social distancing rely in large part on the maritime industry to deliver goods from overseas that are in turn delivered to doorsteps across the country. Keep calm but stay vigilant, friends! [end].

   [1] Erin Douglas, 2 Port of Houston terminals close after worker tests positive for COVID-19, Houston Chronicle, March 20, 2020; (viewed 3/20/2020).
[2] 33 U.S.C. § 902(2)(emphasis added).
   [3] Conoco, Inc. v. Dir., OWCP [Prewitt], 194 F.3d 684, 687-88 (5th Cir. 1999).
   [4] Ramsay Scarlett & Co. v. Dir., OWCP, 806 F.3d 327, 334 (5th Cir. 2015)(internal citation omitted).
   [5] Casey v. Georgetown Univ. Medical Center, 31 BRBS 147 (1997)(death from liver disease allegedly caused or aggravated by exposure to halothane gas at work was compensable); Overton v. Marmac Corp., BRB No. 06-0782 (Ben. Review Board)(March 28, 2007)(unpublished)(Hepatitis C compensable, “Employer here did not rebut the presumption  because  it  did  not  produce  substantial  evidence  that  claimant’s  hepatitis  C  was not related to his sewage exposure.”); Cf. White v. Ameri-Force, Inc., 35 BRBS 91 (ALJ)(Claimant’s pneumonia was not due to being rained on at work but was caused by a host of other factors including laryngeal dysfunction, bullous emphysema, and smoking), citing in part, McNeelly vs. Sheppeard, 89 F.2d 956 (5th Cir. 1937)(pneumonia not compensable).
   [6] Hough v. Vimas Painting Co., Inc., 45 BRBS 9 (2011)(worker who contracted histoplasmosis from exposure to bird guano while on bridge [instead of barge] failed to meet situs requirement).
   [7] “Severe Outcomes Among Patients with Coronavirus Disease 2019 (COVID-19) — United States, February 12–March 16, 2020.” MMWR Morb Mortal Wkly Rep. ePub: 18 March 2020. DOI:; (viewed 3/20/20).

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).

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).

by Matthew H. Ammerman on February 11th, 2020

There are only a handful of federal district court opinions addressing the contours of the Supreme Court’s “substantial nexus” test from Pacific Operators Offshore, LLP v. Vallodolid.[1] That test is used to determine whether a worker is covered by the Outer Continental Shelf Lands Act (OCSLA) extension of the LHWCA. Specifically, OCSLA applies where there is a “…significant causal link between the injury that [the worker] suffered and his employer's on-OCS [Outer Continental Shelf] operations conducted for the purpose of extracting natural resources from the OCS.”[2]

The district court in Mays v. Chevron Pipe Line Company[3] entered a judgment based on a jury’s $2.9M verdict to the widow and family of a worker, James Mays, who was killed doing pipeline maintenance on a drilling platform in Louisiana’s territorial waters. The jury found a “substantial nexus” between Mays’ death and his employer’s operations on the OCS.[4] Chevron moved for judgment as a matter of law that the court misapplied the law in focusing on Chevron’s operations on the OCS instead of Mays’ payroll employer, Furmanite. Presumably, as a labor supply company, Furmanite did not have direct extractive operations on the OCS because Chevron’s extractive operations were highlighted by the Mays’ plaintiffs. Chevron did not want OCSLA to apply because it would enjoy immunity as a “statutory employer” if the Louisiana workers’ compensation statute applied instead of OSCLA.

The district court rejects Chevron’s argument because Vallodolid did not adjudicate the meaning of “employer” under Section 43 U.S.C. § 1333(b).[5] That section defines an employer as “an employer any of whose employees are employed in such [extractive] operations.” The court instead looks to the pre-Vallodolid opinion from Barger v. Petroleum Helicopters, Inc., 692 F.2d 337 (5th Cir. 1982). There, the Fifth Circuit holds that the OCSLA’s definition of “employer” applied to cover a helicopter pilot’s employer, even though the helicopter company was not engaged in extractive operations on the OCS. Writing for the panel in Barger, Judge Rubin reasoned that helicopter pilots who transport workers to and from the Shelf play “an important role in developing the Shelf.”[6] Therefore, such workers “should not be treated differently on the basis of who their immediate employer is.”[7]

The district court in Mays applies Barger to reason that Mays also played an “important role” in extractive operations because he serviced valves on pipelines transporting gas from the OCS.[8] Therefore, the district court denies Chevron’s motion for judgment as a matter of law or for new trial.

This case brings into focus what import we should ascribe to the Justice Thomas’s reference to the employer’s “on-OCS” operations in the substantial nexus test from the Valladolid case. The Supreme Court’s opinion in Vallodolid twice recites that the injury must have a substantial nexus, or significant causal link, to the “…employer's on-OCS operations conducted for the purpose of extracting natural resources from the OCS.”[9] That limiting factor also provides a level of predictability to the employer, who should have control over whether it operates on the OCS, as well as litigants.[10] Also, in 2016, the Fifth Circuit in the Baker case considered an employer’s lack of on-OCS operations as one of the factors to deny OCSLA coverage to a carpenter injured on land who was building offshore living quarters destined for the OCS.[11]

On the other side of the coin, in addition to the Barger case, the 1988 panel opinion in Mills v. Director, OWCP—which was one year later reversed en banc by the now-rejected situs-of-injury test—did not focus on the employer’s operations on the OCS.[12] Instead, the Fifth Circuit panel focused on the connection between the platform being constructed on land in Amelia, Louisiana, which was destined specifically for the OCS, and “operations on the Shelf.”[13]

The Mays case is before the Fifth Circuit where this issue may be sorted out by early next year.[14] [end].
   [1] 565 U.S. 207, 132 S.Ct. 680, 181 L.Ed.2d. 675 (2012).
   [2] Id., 565 U.S. 207, 222, 132 S. Ct. 680, 691 (emphasis added).
   [3] 2019 U.S. Dist. LEXIS 103751, 2019 WL 2517864 (W.D. La. June 18, 2019).
   [4] Id. at *8.
   [5] Id. at *5.
   [6] Id. at *7, citin  Barger, 692 F.2d 337, 340 (5th Cir. 1982).
   [7] Id.
   [8] Id.
   [9] Valladolid, 565 U.S. 207, 222, 132 S. Ct. 680, 691 (2012).
   [10] There is also arguably a statutory basis, which is not discussed in the Mays case. The extension of the LHWCA through OCSLA at 43 U.S.C. § 1333(b) refers to “operations” conducted on the OCS, and an employer is later defined in a subsection as an entity that employs workers in “such operations”:
With respect to disability or death of an employee resulting from any injury occurring as the result of operations, conducted on the outer Continental Shelf for the purpose of exploring for, developing, removing, or transporting by pipeline the natural resources, or involving rights to the natural resources, of the subsoil and seabed of the outer Continental Shelf compensation shall be payable under the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act [Longshore and Harbor Workers’ Compensation Act] [33 USCS §§ 901 et seq.].
* * *
(2) the term “employer” means an employer any of whose employees are employed in such operations; ….”
43 U.S.C. § 1333(b)(emphasis added).

   [11] Baker v. Director, OWCP, 834 F.3d 542, 549 (5th Cir. 2016)(“And although [employer] Gulf Island manufactured the living quarters for Big Foot, the company had no role in moving Big Foot to, installing Big Foot on, or operating Big Foot once placed on the OCS.”).
   [12] 846 F.2d 1013, 1015 (5th Cir. 1988)(“…the requirement that the claimant show a nexus between the work being done and operations on the shelf similar to the proximate cause test in tort law; it requires that the work ‘further[s] the operation of a fixed rig on the shelf and [is] in the regular course of extractive operations on the shelf.’”)(internal citation omitted), rev’d, 877 F.2d 356 (5th Cir. 1989) (en banc), rev’d, Valladolid, 565 U.S. 207 (2012).
   [13] Id.
   [14] Doc. 255, Case 6:14-cv-03098-BAJ-CBW, Peggy Mays, et al. v. Chevron Pipe Line Company, et al.; in the Western District of Louisiana, Lafayette Division (July 1, 2019).

by Matthew H. Ammerman on February 11th, 2020

Though referred to as a “guideline” for seaman status by the Supreme Court,[1] the thirty-percent rule used to determine the durational element of the substantial-connection prong is, in practice, a bright dividing line in the Fifth Circuit.[2] When a worker in the offshore oil patch spends time divided between land, fixed platforms, and vessels, determination of seaman status turns into a numbers game. Specifically, the issue for the court is often what variables to include in the numerator and divisor to determine whether the thirty-percent threshold is met.

The district court in Lee v. Nacher Corporation[3] grants summary judgment in favor of Nacher Corporation that its offshore oil patch worker, Tom Lee, was not a seaman. Lee worked a total of 387 hours for Nacher. He spent 68% of his time either on land or on a fixed platform. He spent 22% of his employment with Nacher working on a vessel. The remaining time was spent on vessel being transported to a fixed platform (5%) or loading or unloading a vessel at a stationary platform (5%).[4] Therefore, if all of Lee’s time spent on a vessel was included, he would satisfy the thirty-percent guideline with a total of 32%.

However, the district court excluded the time Lee spent being transported on a crew boat to or from a fixed platform as well as his time loading or unloading a vessel at a fixed platform. The court relied on the Fifth Circuit’s opinion in Munguia v. Chevron Company, U.S.A. (Munguia II),[5] to exclude the transport time.[6] The Munguia II court excluded the time that a roustabout spent using a “nautical motor pool” of Joboats, Lafitte skiffs, and Boston whalers to reach the fixed platforms to perform his work.[7] In Munguia II, the Fifth Circuit reasoned that the injured roustabout “had no regular work duties aboard any vessel.”[8] Lee’s time being transported to a fixed platform similarly was not performed in service of a vessel and was, therefore, excluded.[9]

With regard to Lee’s time spent loading or unloading crew boats at fixed platforms, the district court holds that allotted time was devoted to the work on a fixed platform rather than a vessel.[10] Therefore, that time—even though partly aboard a vessel—was not counted toward the durational element of the substantial-connection test.[11]

Therefore, Lee spent at most 22% of his time employed with Nacher on vessels. The court granted summary judgment that Lee was not a seaman as a matter of law.[12] [end].
   [1] Chandris, Inc. v. Latsis, 515 U.S. 347, 371, 115 S. Ct. 2172, 2191 (1995)(“Generally, the Fifth Circuit seems to have identified an appropriate rule of thumb for the ordinary case: A worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act. This figure of course serves as no more than a guideline established by years of experience, and departure from it will certainly be justified in appropriate cases.”).
   [2] Roberts v. Cardinal Services, Inc., et al., 266 F.3d 368, 378 (5th Cir. 2001)(“Accordingly, we see no reason to depart from our well-established rule, as reaffirmed in Hufnagel and St. Romain, that a worker who fails to show that at least 30 percent of his time is spent on vessels under the common ownership or control of his employer is precluded from recovering as a seaman under the Jones Act.”)(internal citations omitted).
   [3] 362 F.Supp. 3d 359 (E.D. La. 2019).
   [4] Id. at 366.
   [5] 768 F.2d 649 (5th Cir. 1985)(Munguia II), cert. denied, 475 U.S. 1050 (1986).
   [6] Id. at 367.
   [7] Munguia II, 768 F.2d at 653-654.
   [8] Munguia II, 768 F.2d 649, 654.
   [9] Lee, 362 F.Supp. 3d at 367.
   [10] Id.
   [11] Id. at n. 49, citing Butcher v. Superior Offshore, 357 Fed. App'x 619, 620 (5th Cir. 2009)("[Plaintiff] worked thirty percent of his time on board the vessel but this included time spent for meals and breaks, which does not make [plaintiff] a seaman."); Hufnagel v. Omega Serv. Ind., Inc., 182 F.3d 340, 344-45 (5th Cir. 1999); Pearson v. Offshore Specialty Fabricators, Inc., No. CIV. A. 91-3350, 1992 U.S. Dist. LEXIS 15246, 1992 WL 300826, at *2-*3 (E.D. La. Oct. 8, 1992)(finding a plaintiff tasked with sandblasting and painting a platform was not a seaman because his time on a vessel attached to the platform did not contribute to the vessel's mission of providing sleeping and eating quarters to people working on the platform).
   [12] Id. at 367-368.

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