An en banc decision of the United States Fifth Circuit Court of Appeals has vastly amended the scope of the situs requirement under the LHWCA. This case began as a simple hearing loss issue, when the claimant filed a claim for longshore benefits against his employer. Claimant was employed at the Employer’s Chef Menteur Highway container yard in New Orleans (“Chef Yard”). Claimant’s primary job duties were to repair and maintain shipping containers at the Chef Yard. The Chef Yard had access to a highway and railway. It was located 300 yards from the Intracoastal Canal and was surrounded by a carwash, radiator shop, automobile repair shop, bottling company, and a box manufacturing company. The bottling company’s facility was located in between the intracoastal waterway and the Chef Yard. Claimant worked only within the employer’s Chef Yard, no other locations. The Chef Yard had no access to the intracoastal canal and all the equipment was delivered to the Chef Yard by truck.
After a formal hearing, the ALJ concluded that the claimant’s work repairing ocean containers was a significant maritime activity necessary to loading and unloading cargo. Additionally, the ALJ concluded that the location of the Chef Yard satisfied the situs requirement for an injury occurring in an area “adjoining navigable waters.” The BRB affirmed the ALJ’s decision and a divided panel of the Fifth Circuit affirmed the BRB. The Fifth Circuit then voted for an en banc court to consider the BRB’s determination of the situs test.
The Fifth Circuit began its review of the situs issue looking at its prior en banc decision in Texports Stevedore Co. v. Winchester, 632 F.2d 504 (5th Cir. 1980). In Winchester, a worker was injured when he fell while working. The worker was engaged in repairing and maintaining gear used by longshoremen in loading and unloading vessels. The gear room was located five blocks from the gate of the nearest Houston port dock. The Fifth Circuit held that the situs requirement was met. The Winchester court stressed that a site must have some nexus with the waterfront.
The Fifth Circuit also reviewed the Sidwell decision from the Fourth Circuit Court of Appeals. Sidwell v. Express Container Services, Inc., 71 F.3d 1134 (4th Cir. 1995). In Sidwell, the injured worker was a shipping container mechanic. His injury occurred at his employer’s facility located approximately .8 miles from the closest ship terminal in an area with non-maritime commercial and residential facilities. In deciding the Sidwell matter, the Fourth Circuit recognized the Supreme Court had not defined the term “adjoining area” and none of the tests proffered by other federal circuits followed the language of the Act. The Sidwell court found support for its interpretation from the House of Representatives Report on the 1972 amendments of the Act – “the bill also expands the coverage of this Act to cover injuries occurring in the contiguous dock area related to longshore and ship repair work.” The Sidwell court stated “the definition we adopt today ensures coverage for all maritime employees injured in the waterfront areas where the loading, unloading and repairs of vessels occurs as Congress plainly intended and as the Supreme Court has directed.” The Sidwell court made clear that its literal definition of “adjoining” could not be circumvented by a broad interpretation of the term “area.” In order for an “area” to constitute an “other area,” under the statute, it must be a shore-side structure or facility.
The en banc Fifth Circuit in the instant matter adopted the Sidwell ruling and definition of adjoining navigable water to mean “border on” or “be contiguous with” navigable waters. The Fifth Circuit overruled the contrary definition and analysis of Winchester and its progeny. This definition was more faithful to the plain language of the Act. In applying the Sidwell decision to the instant case, the Fifth Circuit ruled there was no dispute that the Chef Yard where Claimant’s injury occurred did not adjoin navigable waters and thus was not a longshore covered situs. The decision of the BRB was vacated and remanded for further proceedings.
A seven judge concurrence also determined that Claimant would not have had the appropriate maritime status as well. The concurrence analyzed the Schwalb case to reach this decision. Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S. 40 (1989). In Schwalb, the Supreme Court recognized that employees who were injured while maintaining or repairing equipment were essential to the loading or unloading process. However, not all such repairmen would be covered, as the Schwalb court premised this conclusion on the fact that the process of loading and unloading vessels would stop if the machinery used by longshoremen became broken, clogged or fouled. The concurring opinion noted it was clear that the claimant was not involved in the process of moving cargo between ship and land transportation. His task was to repair empty containers, only some of which may have been used in maritime shipping. Although it would not be unreasonable to conclude that repairing ship containers was integral and essential to the ship loading and unloading process, the Fifth Circuit noted that Schwalb does not create a rule under which all employees, who repair any equipment that may be used in a loading process, are integral and essential to allow coverage under the Act. The Act does not provide a “but-for” test for determining coverage. The inquiry distinguishes tasks necessary to execute a loading process from the tasks of an employee that are only tangentially connected to the loading process. The concurrence noted that the work of the claimant in this case had a tangential connection to the loading process. Some of the empty containers that claimant repaired may have been headed for a truck or train rather than a vessel. This was the sort of tangential (“second character”) connection for which the Act would not allow coverage. Nothing about claimant’s work was done with the specific purpose of assisting longshoring tasks and nothing about the location of claimant could be considered a proper situs. The concurrence concluded, claimant’s work was not essential or integral to loading or unloading vessels and claimant’s work would not meet the status requirement under the Act.