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Fifth Circuit Takes the Bang Out of Winchester

January 07, 2016 (6 min read)

By Paul B. Howell, Franke & Salloum, PLLC, Gulfport, Mississippi

For 33 years the Fifth Circuit Court of Appeals promulgated an expansive view of the situs test for jurisdiction under the Longshore and Harbor Workers’ Compensation Act (LHWCA, 33 U.S.C.S. § 901 et seq.).[fn1] The situs test extends coverage to “... injur[ies] occurring upon navigable waters of United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel).” (Emphasis added.) 33 U.S.C.S. § 903(a).

(Publisher’s Note: Citations link to Lexis. Lexis online subscribers can access the statutes and cases.)

In 1980, the Fifth Circuit decided Texports Stevedore Co. v. Winchester, 632 F.2d 504, 12 BRBS 719 (5th Cir. 1980) (en banc). In that case, the court found that an injury occurring in employer’s separate gear room, five blocks from the gate of the nearest Houston port dock, met the situs requirement, despite the fact that the location did not actually adjoin the navigable waters. In so ruling, the Fifth Circuit noted that “adjoining” has little-used definitions, including “close to,” “near,” or “neighboring.” Id. 514. The Fifth Circuit reasoned that applying a broader meaning to “adjoining” would be more in keeping with the spirit of congressional purposes and it would lessen the chance of employees walking in and out of coverage during their work day. Essentially, the court stated that injuries in the vicinity of navigable waters, or in a neighboring area, would be covered so long as the injury occurred at a site with a maritime nexus. Id. at 514.[fn2] Accord. Brady-Hamilton Stevedore Co. v. Herron, 568 F.2d 137, 141, 7 BRBS 409 (9th Cir. 1978); Cunningham v. Director, OWCP, 377 F.3d 98, 104, 38 BRBS 42(CRT) (1st Cir. 2004); Sea-Land Service, Inc. v. Director, OWCP (Johns), 540 F.2d 629, 638, 4 BRBS 289 (3rd Cir. 1976).

However, the Fourth Circuit was not on the expansive-interpretation-of-jurisdiction bandwagon. In Sidwell v. Express Container Services, Inc., 71 F.3d 1134, 29 BRBS 138(CRT) (4th Cir. 1995), cert. denied, 518 U.S. 1028, 135 L. Ed. 2d 1086, 116 S. Ct. 2570 (1996), the Fourth Circuit was confronted with a case where an employee was injured at a container repair facility .8 miles from the closest ship terminal in an area with non-maritime businesses. In applying the plain meaning of “adjoining,” the Fourth Circuit found that since the site of injury did not abut or touch the navigable waters, then it did not occur at an “adjoining” area. Id. at 1138.

The Sidwell court also concluded that “other adjoining areas” not enumerated in the statute must also meet a separate “functional” test for jurisdiction in that the specific location of the injury must be one “customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel.” Id. at 1139.

Thirty-three years after Winchester, the en banc Fifth Circuit was once again presented with an issue regarding the limits of situs, in New Orleans Depot Services, Inc. v. Director, OWCP, 718 F.3d 384, 47 BRBS 5(CRT) (5th Cir. 2013) (en banc). In New Orleans Depot Services, it was argued that noise exposure at a shipping container yard separated from the navigable waters by 300 yards and a bottling company met the situs requirement for jurisdiction. However, in denying situs the Fifth Circuit overruled Winchester and adopted the Sidwell plain meaning of “adjoining” to be “border on” or “contiguous with.” The Fifth Circuit noted that the plain language of a statute may not be ignored under the guise of interpreting it liberally and that the U.S. Supreme Court had noted in 1985 that “[t]here will always be a boundary to coverage and there will always be people who cross it during their employment.” Id. at 393, citing Herb’s Welding, Inc. v. Gray, 470 U.S. 414, 426, 84 L. Ed. 2d 406, 416, 105 S. Ct. 1421, 1429, 17 BRBS 78(CRT) (1985).

The disarming of Winchester was completed six months after New Orleans Depot Services when the Fifth Circuit clearly enunciated that an employee injured in an “other adjoining area” must meet both a geographic and a functional component for situs. In BPU Management, Inc. v. Director, OWCP, DOL, 732 F.3d 457, 47 BRBS 39(CRT) (5th Cir. 2013), an employee was injured shoveling fallen bauxite onto a conveyor. The bauxite had been unloaded from a ship to an above-ground storage facility where it was then transferred by conveyor to the manufacturing part of the plant. The ore had fallen off the conveyor while being moved from the storage facility into the manufacturing area.

In denying coverage, the Fifth Circuit found that although the facility as a whole met the geographic requirement of situs since it abutted the navigable waters, the actual site of the injury occurred in a non-enumerated “other adjoining area” which must also meet the “functional” requirement for situs by showing that the area was customarily used for loading, unloading, repairing, dismantling, or building a vessel. The Fifth Circuit found in BPU that the unloading process ended when the bauxite was delivered to the storage facility. Therefore, the claimant’s injury while shoveling ore being removed from the storage facility for processing did not meet the functional requirement of situs applicable to other adjoining areas. Id. at 461-465.

Since Winchester was overruled, jurisdiction has been denied in the following cases based upon New Orleans Depot Services and BPU:

1. Carter v. Captain Elliott’s Party Boat, (unpublished BRB opinion) BRB No. 15-0016 (2015) - An equipment/storage yard 12-13 miles from employer’s shoreside facility.

2. Whittaker v. Industrial Staffing Services, Inc. d/b/a Flexible Services, Inc., (unpublished BRB opinion) BRB No. 14-0409 (2015) - Landlocked high school and plastics warehouse.

3. Johnson v. Huntington Ingalls, Inc.-Pascagoula Operations, 2015-LHC-00189 (2015) - Shipyard parking lot.

4. Billiot v. Global Construction & Equipment, LLC, 2015-LHC-00065 (2015) - Fabrication shop where equipment used to unload ships is manufactured.

5. Bordelon v. Noranda Aluminum, LLC, 2012-LHC-01312 (2013) - Warehouse of alumina processing facility separated from the dock area by buildings with non-maritime uses.

6. Pena v. Integrated Marine Services, 2014-LHC-1583 (2015) - Cargo container chassis repair yard on property leased from Port of Houston which does not border navigable water.

7. Global Management Enterprises, LLC v. Commerce & Industry Insurance Co., 574 Fed. Appx. 333, 48 BRBS 33(CRT) (5th Cir. 2014) - Beach on remote island.

New Orleans Depot Services and BPU have reversed a trend in the Fifth and other circuits toward a liberal finding of situs espoused in Winchester. Now, the location of the injury must not only meet a “geographic” requirement by being in a contiguous area which actually touches the navigable waters, but (if not an area enumerated in the statute), it must also meet a “functional” requirement whereby the specific location of the injury must be one customarily used for loading, unloading, repairing, dismantling, or building a vessel. The magic bullet for taking the bang out of Winchester was use of the common definition of the word “adjoin.”

Footnotes:

1. There is a separate status test for jurisdiction. 33 U.S.C.S. § 902(3); see Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 53 L. Ed. 2d 320, 97 S. Ct. 2348, 6 BRBS 150 (1977).

2. Nine Fifth Circuit decisions have subsequently cited Winchester with approval.

© Copyright 2016 Franke & Salloum, PLLC. All rights reserved. Reprinted by permission. This article originally appeared in the January 2016 issue of Benefits Review Board Service Longshore Reporter.

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