by Matthew H. Ammerman on August 7th, 2014

After the U.S. Supreme Court decided in 2009's Townsend case that punitive damages were available for willful and wanton denial of maintenance and cure, we wondered whether unseaworthiness was next.

The issue: A seaman's claim for unseaworthiness also arises under general maritime law -- are punitive damages available for willful and wanton unseaworthiness?

In October 2013, the U.S. Court of Appeals for the 5th Circuit answered affirmatively. Relying heavily on Townsend, the panel reasoned that unseaworthiness claims existed before the Jones Act was passed in 1920. If punitive damages were available under general maritime law, the panel reasoned, then punitive damages remain available to seamen as a remedy for the general maritime law claim of unseaworthiness for willful and wanton behavior reckless to the safety of the crew. All this despite the call for uniformity between general maritime law and federal statutes in the Miles case decided almost two decades before Townsend.

BUT stay tuned -- on February 24, 2014, the 5th Circuit granted hearing en banc by the entire court. The panel's ruling may be modified or changed.

McBride v. Estis Well Serv., L.L.C., 731 F.3d 505, 518 (5th Cir. 2013)(rehearing en banc granted February 24, 2014).

by Matthew H. Ammerman on December 12th, 2013

In its first opinion following the landmark Zepeda decision on April 29, 2013, the 5th Circuit held that cross-tunnels at a shore-side aluminum manufacturing facility are not LHWCA-covered. In doing so, the court states that cargo -- in this case bauxite -- leaves the maritime unloading process when it is "surrendered to land transport." That "point of surrender" is the point where the longshoreman's duty to unload and move the cargo ceases. BPU Mgmt. v. Dir., OWCP [Martin], 732 F.3d 457, 464 (5th Cir. 2013).

BPU/Sherwin Alumina (Sherwin) operates an aluminum facility near Ingleside, Texas. Reddish-brown bauxite is unloaded from ships and moved by overhead conveyors to two long, rectangular bauxite storage warehouses shown in the overhead shot above.

The bauxite remains in the storage warehouses weeks or years until it is needed. When a certain grade of bauxite is needed, a door at the bottom of the bin opens and drops the raw material down into underground conveyors. The bauxite is transferred by a cross-tunnel conveyor from under the warehouse to a rod mill, where it is pulverized into smaller pieces and transported towards the metal-extraction facility to transform into finished product.

David Martin, who was classified by his employer as a dockworker, hurt his back shoveling spilled bauxite back onto an underground cross-tunnel conveyor. The administrative law judge and Benefits Review Board found the incident was covered under the LHWCA. The 5th Circuit reversed because the LHWCA only covers injuries on navigable waters, an enumerated site, or in an area which "adjoins" navigable waters and is used for loading and unloading. The underground cross-tunnels were found to adjoin navigable water by the ALJ, but the 5th Circuit considered the bauxite to have left maritime transportation by the time it reached the cross-tunnels. Therefore, the cross-tunnels were not "customarily used" for loading or unloading vessels.

Earlier this year in the Zepeda case, the 5th Circuit stripped away the barnacles of the old liberal definition of "adjoining area." The court held that "adjoin" should be given its ordinary meaning: to be "contiguous with" or "abutting upon." The court further refines its interpretation of situs in this recent Martin case, clarifying that cargo that has passed the "point of surrender" to land transportation is no longer part of the loading and unloading process. An area past the "point of surrender" cannot be an LHWCA-covered "adjoining area" because it is not "...customarily used by an employer" for loading or unloading vessels. (emphasis added).

BPU Mgmt. v. Dir., OWCP [Martin], 732 F.3d 457 (5th Cir. October 8, 2013).

by Matthew H. Ammerman on November 14th, 2013

Big change! The DLHWC issued notice that effective 12/2/2013 parties should submit “case create” forms to the New York OWCP. For employers that means you must file your Longshore Report of Injury (LS-202) here as of the effective date:

U. S. Department of Labor
Office of Workers’ Compensation Programs
Division of Longshore and Harbor Workers’ Compensation
201 Varick Street, Room 740
Post Office Box 249
New York, NY 10014-0249
FAX (646) 264-3002

All case-related mail thereafter, e.g., letters, medical, LS-206, LS-207, et al. should bear the OWCP number and be sent here AFTER the case is created:
U. S. Department of Labor
Office of Workers’ Compensation Programs
Division of Longshore and Harbor Workers’ Compensation
400 West Bay Street, Suite 63A, Box 28
Jacksonville, FL 32202
FAX (904) 357-4787

Checks payable to the DOL for penalties, etc. now go to the DLHWC’s Branch of Financial Management in Washington, D.C.

The details are in the notice available on the OWCP's website, along with FAQs here:
Though not stated in the notice, the implication is that all correspondence will be scanned at the central repositories.
This should be interesting.

by Matthew H. Ammerman on June 14th, 2013

I used to say that Longshore situs in the Fifth Circuit was like horseshoes and hand grenades -- close enough was good enough. No more.

On April 29, 2013, an en banc panel of the U.S. Court of Appeals for the Fifth Circuit held in the Zepeda case that a Louisiana chassis-repair facility 300 yards from the waterfront was not a covered LHWCA situs. Juan Zepeda claimed a hearing loss injury while working at the facility, which was was physically separated from the waterfront and surrounded by other industrial businesses. The Fifth Circuit overruled the longstanding decision in 1980's Winchester case that held that an “adjoining area” did not actually have to touch navigable waters to be a covered situs. 33 U.S.C. § 903(a). The worker in Winchester was injured at a gear room 5 blocks from the gate of the nearest dock and separated from the waterfront by public streets and other private property.

The court's new decision relies on the plain language of the LHWCA that states that specific sites adjoining navigable waters such as as a pier or wharf are covered plus an "... adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel." 33 U.S.C. § 903(a)(emphasis added).

The en banc Fifth Circuit followed the language of the Act and gave the normal meaning to “adjoining” as the Fourth Circuit did in 1995. A covered adjoining area must border on or be contiguous with navigable waters. New Orleans Depot Servs. v. Dir., Office of Worker's Comp. Programs [Zepeda], 2013 U.S. App. LEXIS 8674 (5th Cir. Apr. 29, 2013).

Put away the hand grenades.

by Matthew H. Ammerman on April 22nd, 2013

Gary Schwirse's job at Marine Terminals was to remove cones and guide container trucks through the facility as part of unloading. On the date of his accident, he drank 2 beers before work, 3 beers during the morning shift, 4-5 beers at lunch, and the greater part of a pint of whiskey after lunch. He finished his work early and drank beer near the transport van. He walked away from the van to relieve himself and fell over a rail onto the concrete below. Schwirse sought LHWCA benefits for his injuries.

Schwirse had no recollection of the fall. The employer’s safety man investigated and saw no slippery substances, cones, or other obstructions near the site of the accident.

This may sound like an easy case. But it is not due to the employer's burden to prove the intoxication defense. The employer must clear two hurdles: (a) overcoming a presumption in favor of the worker that intoxication was not the sole cause; and, (b) meeting its burden of showing that intoxication was the sole cause of the injuries. 33 U.S.C. § 903(c).

Administrative Law Judge Torkington first rejected the employer's intoxication defense and awarded LHWCA benefits because of the lack of direct evidence of the chain of events and because his fall may have been caused by his carelessness. The Board reversed, however, holding that the judge failed to review all the relevant evidence. On remand, Judge Torkington found Schwirse’s claim was barred because his injury was due solely to intoxication, in part due to the evidence that Schwirse did not trip over a cone as he claimed. Claimant appealed.

The U.S. Court of Appeal for the Ninth Circuit affirmed Judge Torkington's denial of LHWCA benefits in a short, unpublished opinion. Schwirse argued that the concrete and metal slab upon which Schwirse fell was the cause of his injury not his intoxication. The Ninth Circuit panel rejected that argument because it would render the intoxication defense "insignificant, if not wholly superfluous." There was substantial evidence supporting Judge Torkington's finding that Marine Terminals rebutted the presumption of compensability, and that Marine Terminals did not have to rule out every other possible cause -- such as Schwirse's argument that the ground caused his injuries. The appeals court went on to say that there was sufficient evidence supporting the judge's finding that intoxication was the sole cause of Schwirse's injuries. The denial of LHWCA benefits was affirmed.

Schwirse v. Dir., OWCP, 496 Fed. Appx. 734 (9th Cir. October 23, 2012).

by Matthew H. Ammerman on September 21st, 2012

The LHWCA has been interpreted to encompass the navigable waters of foreign countries despite the plain language of the Act that states an injury must occur on the "navigable waters of the United States." Here, Joseph Tracy worked as a barge foreman in Indonesia and Singapore. Tracy argued he was entitled to LHWCA benefits because his injuries occurred while he was on the "high seas." The "high seas" are referenced in an obscure section of the Act concerning the establishment of compensation districts. Tracy argued that meant Congress intended to include injuries that occurred outside the U.S. The U.S. Court of Appeals for the 9th Circuit disagreed with Tracy, holding that an injury in the waters of another country cannot support LHWCA coverage. There is a presumption against applying the laws of the U.S. extraterritorially. The court seems to leave the door open for injuries that might occur on the high seas that are uncontrolled by another country -- leaving that fight for another day.

At bottom, foreign territorial waters and their adjoining shore-based areas are not the "navigable waters of the United States." 33 U.S.C. § 903(a). Tracy's injuries as a worker in the ports of Indonesia and Singapore did not satisfy the situs component of LHWCA coverage. Three cheers for the 9th Circuit following the plain language of the Act.

Keller Found. v. Tracy, 2012 U.S. App. LEXIS 19768 (9th Cir. Sept. 20, 2012).

by Matthew H. Ammerman on August 27th, 2012

The work place in both of these recently decided cases was a container repair facility.

In the Zepeda case, the 5th Circuit (TX, LA, MS) affirmed an administrative law judge’s finding of LHWCA situs. However, in the Ramos case, the 11th Circuit (AL, GA, FL) reversed the ALJ and held there was no situs. Both appellate courts relied on the 5th Circuit’s en banc decision from 1980 in Texports v. Winchester. That case, decided by a full (en banc) panel of the 5th Circuit, held that that despite the statute requiring an area “adjoining” navigable water, a work area arguably related to maritime activity need not actually touch water. It is enough if "the site is close to or in the vicinity of navigable waters, or in a neighboring area, ... ." 632 F.2d 504, 514 (5th Cir. 1980) (en banc), cert. denied, 452 U.S. 905 ( 1981)(emphasis added).

There is no formulaic test to determine situs, which leads to a fact-intensive inquiry. An ALJ should consider: (1) geographic nexus - whether the site is specific sufficiently close to a waterfront; and, (2) functional nexus - whether the location has a purpose for its proximity to the waterfront.

Zepeda was container repair mechanic who worked in two yards: the Chef Yard, which is approximately 300 yards from the Industrial Canal in New Orleans, and Terminal Yard, which is approximately 100 yards from the waterfront. The ALJ found that Zepeda’s alleged hearing loss occurred on a LHWCA-covered site because the container repair facilities served in part a client whose containers were used in land and maritime transportation. The yards were also surrounded by other maritime businesses. The 5th Circuit relied heavily on its limited scope of review and held the ALJ's decision was supported by substantial evidence. Therefore, it was affirmed. New Orleans Depot Servs. v. Dir., 2012 U.S. App. LEXIS 15336 (5th Cir. July 25, 2012).

The ALJ in the Ramos case also found the container repair yard – even though it was over 3 miles from the Port of Jacksonville – was a covered situs. However, the 11th Circuit reversed the ALJ because there was no geographic nexus between the yard and the waterfront. The yard was not in the “vicinity” of navigable waters. While the tentacles of LHWCA coverage are long, situs could not be stretched that far. Ramos v. Dir., OWCP, 2012 U.S. App. LEXIS 16663 (11th Cir. Aug. 10, 2012).

Coincidentally, one of the reasons the 5th Circuit majority in Zepeda upheld LHWCA coverage is that it did not want to create a circuit split with a 1990 decision from the 11th Circuit involving a container repair facility. The 11th Circuit's Ramos case decided two weeks later did just that.

This split between circuits highlights the unpredictability of the 32-year-old “close enough” test from Winchester. Judge Clement’s dissent in the Zepeda case echoes the sentiment of many maritime employers. The Winchester test "construes situs so broadly that it threatens to swallow every employer with even a tangential relation to the maritime industry." This injects costly uncertainty into business planning, insurance decisions, and claims handling.

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