New Orleans Depot Servs. v. Dir., Office of Worker's Comp. Programs

New Orleans Depot Servs. v. Dir., Office of Worker's Comp. Programs

Opinion

 [*386]  W. EUGENE DAVIS, Circuit Judge:

In this case, we review the determination of the Benefits Review Board ("BRB") that the claimant, Juan Zepeda, was entitled to compensation benefits under the Longshore and Harbor Workers' Compensation Act ("LHWCA" or "the Act"), from Petitioner New Orleans Depot Services, Inc. ("NODSI").

In particular, the BRB found that the claimant's employment activities with NODSI took place in an area or location "adjoining" navigable waters "customarily used by an employer in loading [or] unloading . . . a vessel"¹ and therefore NODSI's facility met the situs requirement of the Act. We conclude that because the NODSI facility where Mr. Zepeda worked did not border on navigable waters, it was not a covered situs and Mr. Zepeda is entitled to no benefits under the Act from Petitioner NODSI. We therefore vacate the award of the BRB as against NODSI and remand for further proceedings.

I. Facts

The claimant, Mr. Zepeda, filed a claim for LHWCA benefits against one of his prior employers, New Orleans Marine Contractors ("NOMC"), to recover benefits for his hearing loss due to continuous exposure to loud noises. As a defense, NOMC contended that NODSI was a subsequent maritime employer and that NODSI rather than NOMC was therefore the responsible party.² The issue then presented to the Administrative Law Judge ("ALJ") and BRB was whether NODSI was responsible as a subsequent employer for benefits under the LHWCA. NOMC then, in effect, prosecuted Mr. Zepeda's claim against NODSI so that NOMC would avoid its liability to him.

Following  [**4] his employment with NOMC, Mr. Zepeda was employed by the Petitioner, NODSI, at its "Chef Yard" facility on the Chef Menteur Highway in New Orleans. NODSI and its employees were engaged in the repair, maintenance, and storage of shipping containers and chassis.³ Some of the containers had been used to transport ocean cargo. NODSI had more than one facility, but the Chef Yard facility is the only facility relevant to this appeal. The Chef Yard, with access to the Chef Menteur Highway and rail transportation, can best be described as a small industrial park. The Chef Yard is located approximately 300 yards from the Intracoastal Canal and is surrounded by a carwash, a radiator shop, an automobile [*387]  repair shop, a bottling company, and a company that manufactures boxes. The bottling company's facility is located between the Intracoastal Waterway and the Chef Yard.

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