BRB: Grocery Worker Could Not Satisfy Longshore Status Requirement

Claimant was responsible for transporting groceries from employer’s inland warehouse to staging areas within a port.  He was injured while moving an ice chest from his truck to a grocery box, which grocery box was destined to be loaded on a supply boat for transport to an offshore rig.  Claimant alleged entitlement to benefits under the Longshore Act as a result of his injury.

The ALJ initially determined that Claimant satisfied the elements for coverage.  However, Employer appealed, and the Benefits Review Board reversed.  In doing so, the BRB looked at two specific issues:

First, the BRB determined whether Claimant was precluded from coverage under the Act by application of the vendor exclusion.  The BRB noted that the term employee as defined by the Act did not include persons employed by vendors temporarily doing business on Employer’s premises and who are not normally engaged in the work of the Employer.  The BRB, affirming the ALJ’s decision on this point, concluded that the vendor exclusion did not apply.  The BRB found, as had the ALJ, that while Claimant was employed by a vendor and was only temporarily doing business at the facility of a maritime employer, Claimant was still doing work normally performed by a dock crew.  In that regard the BRB noted that Claimant was working along with the dock employees to unload supplies from his truck,  which supplies would be loaded onto a supply boat and transported to an offshore rig.  Thus, because the Claimant was performing work normally performed by the dock crew, the vendor exclusion could not be applied to deny Claimant coverage under the Act.

The BRB next looked at whether Claimant was performing maritime work.  The ALJ had determined that Claimant was performing maritime work because Claimant’s job involved assisting with the unloading of groceries from his truck to temporary staging areas for eventual loading onto a supply boat, or in some cases, direct loading onto a supply boat by the dock employees.  The BRB reversed the ALJ’s finding in this regard, holding instead that Claimant was not doing maritime work at the time of his accident.  The BRB noted that Claimant did not load or unload ships.  The BRB further noted that Claimant’s work was not an intermediate step in maritime transport, but was the last step of land transport.  Relying on Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249 (1977), wherein the U.S. Supreme Court declined to find coverage under the Longshore Act for “employees such as truck drivers, whose responsibility on the waterfront is essentially to pick up or deliver cargo unloaded from or destined for maritime transportation,” the BRB found that Claimant in this case was not covered.   The BRB consequently reversed the ALJ and determined that Claimant was not engaged in maritime employment and the BRB, therefore, declined to find that Claimant was covered by the Act.

Jacobs v. G&J Land and Marine Food distributors, et. al., BRB No. 13-0353 (Apr. 3, 2014).