by Matthew H. Ammerman on August 4th, 2015

How do courts classify temporary offshore workers? It depends on their work history.

On July 24, 2015, the U.S. Court of Appeals for the Fifth Circuit held that Joseph Wilcox, a welder employed by welding company Max Welders, failed the seaman status test. While employed by Max Welders, Wilcox worked for 34 different customers on 191 different jobs, both offshore and onshore. He was hurt, however, working on a two-month job assigned to work for Wild Well Control from its derrick barge, the D/B SUPERIOR PERFORMANCE. The barge was used to support well-decommissioning work. On June 5, 2012, gas exploded while Wilcox was welding inside on the well platform. Wild Well conceded Wilcox was its borrowed employee at the time.

To be a seaman, a worker’s duties must (1) contribute to the function of the vessel or to the accomplishment of its mission, and (2) a seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature. Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995). Wilcox failed the second prong because he lacked a substantial connection to the derrick barge.

The interesting element of the case is that Wilcox argued that his work offshore for Wild Well should be the focus of the status inquiry, rather than his entire employment with Max Welders. This is similar – though not the same – as the re-assignment exception to the 30% rule. That exception provides that if a worker has a permanent change in essential work duties, the focus of his status should be in the new rather than old job. Wilcox, however, was a project-to-project welder whose permanent job duties did not change.

The Fifth Circuit panel rejected Wilcox’s argument and affirmed the trial court’s summary judgment that Wilcox did not satisfy the substantial-connection requirement. The status inquiry could not be limited to two months he expected to work on the Wild Well project. Wilcox v. Wild Well Control, Inc., 2015 U.S. App. LEXIS 12878 (5th Cir. July 24, 2015).


by Matthew H. Ammerman on July 1st, 2015

Luigi Malta worked for Wood Group as an offshore warehouseman at the Black Bay Central Facility, a fixed platform located in Louisiana state territorial waters. Supplies and equipment kept at the Central Facility platform were loaded onto vessels and shipped to the satellite platforms. A substantial part of Malta’s work duties involved loading and unloading vessels from the platform, and he was injured in the process of unloading a vessel at the platform. Malta v. Wood Group Production Svs., BRB No. 14-0312 (May 29, 2015)(published).

Work on fixed platforms in territorial waters is not LHWCA-covered because fixed platforms are considered artificial islands. Herb’s Welding, Inc. v. Gray, 470 U.S. 414 (1985). However, Malta’s case presented a unique set of facts because he did not work on a fixed oil production platform. The Central Facility platform functioned as an offshore dock and staging area. The platform was equipped with 3 cranes, and vessel loading and unloading of cargo – equipment and supplies -- was a regular activity at the platform.

Work on traditional fixed oil production platforms should not be covered. An adjoining area must be “customarily used” for loading or unloading a vessel to be a LHWCA situs. According to the Fifth Circuit, for example, routine activity of assisting in tying the vessel or loading or unloading one’s tools and personal gear at a platform are not meaningful job responsibilities for application of the LHWCA. Bienvenu v. Texaco, Inc., 164 F.3d 901, 908 (5th Cir. 1999).


by Matthew H. Ammerman on October 24th, 2014

On March 10, 2014, the Fifth Circuit agreed that Larry Naquin, a vessel repair supervisor at Elevating Boat, Inc.’s (EBI) shipyard facility in Houma, Louisiana, was a seaman.

Naquin was injured while operating a crane in the shipyard. Naquin's primary responsibility as a vessel repair supervisor was the maintenance and repair of EBI’s fleet of lift-boat vessels. Ordinarily, Naquin worked aboard the lift-boats while they were moored, jacked up, or docked in EBI's shipyard canal. Naquin spent approximately 70 percent of his total time working aboard those vessels, including inspecting, cleaning, painting, replacing parts, performing engine repairs, going on test runs, securing equipment, and operating the vessel’s marine cranes and jack-up legs.  Two to three times per week, Naquin would do his work while the vessel was being moved to another position in the canal. Occasionally, EBI dispatched Naquin to repair a vessel or fill in as a vessel crane operator while the vessel was operating in open water. Naquin spent the remaining 30 percent of his time working in the shipyard's fabrication shop or operating the shipyard's LC-400 land-based crane.

The Supreme Court's Chandris case holds that to be a seaman the worker must (1) contribute to the mission of a vessel; and, (2) have a substantial connection to a vessel in navigation (or identifiable fleet) in terms of duration and nature. The Fifth Circuit rejected EBI’s argument that the nature of Naquin’s brown-water work did not expose him to the perils of the sea. Naquin's primary job duties were doing the ship’s work on vessels docked or at anchor in navigable water. The Fifth Circuit held that the evidence supports the jury’s finding that Naquin is a seaman.

Naquin v. Elevating Boats, L.L.C., 744 F.3d 927, 930-931 (5th Cir. 2014).


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: http://www.dol.gov/owcp/dlhwc/index.htm#.UPcuHWc5ht0
 
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.



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