AEU Longshore Blog ISSUE: New Truck Driver Case

We have a new truck driver case from the U.S. Department of Labor’s Benefits Review Board (BRB).

This one deals with the issue  of situs as well as status.  The decision also ducks the question of whether the driver was an independent contractor, not an employee and thus not covered by workers’ compensation, either state act or federal USL&H.

The case is Abdulaziz A. Ahmed v. Western Ports Transportation, Inc., BRB No. 16-0067, 9/21/16.

The claimant is a commercial truck driver.  His “employer” contracts with independent truck owner/operators to transport domestic and international containers between rail yards, retail outlets, piers, and warehouses.

He usually worked as part of the employer’s “rail” operations, moving containers between the Port of Seattle terminals and rail yards.

He was injured at a rail yard, the Union Pacific Intermodal Facility.  The Facility is two to three miles from the Port and the claimant’s route from the Port to the Facility involves, “… turns onto several streets and Highway 99, as well as crossing a drawbridge …”.

So, based on where the injury occurred, is the Facility a covered situs under the Longshore Act?

The situs provision of the Act, section 3(a), states:

“Except as other wise provided in this section, compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any 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).”

Our truck driver here was not injured over the water or at any of the specifically enumerated sites, so that leaves us with the question of whether the Union Pacific Intermodal Facility is an “other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel”.

NOTE:  This injury occurred in the jurisdiction of the federal Ninth Circuit Court of Appeals (states of WA, OR, MT, ID, CA, NV, AZ, AK, HI).  In the Ninth Circuit an “adjoining” area does not have to actually touch or be contiguous with the water as it does in the Fourth (states of MD, VA, WV, SC, NC) and Fifth (states of TX, LA, MS) Circuits, “adjoining” means with “contiguous with”.  In the Ninth Circuit, “adjoining” depends on:

“… the particular suitability of the site for the maritime uses referred to in the statute; whether adjoining properties are devoted primarily to uses in maritime commerce; the proximity of the site to the waterway; and whether the site is as close to the waterway as is feasible given all of the circumstances in the case.” (Brady-Hamilton Stevedore Co. v. Herron, 568 F.2nd 137 (9th Cir. 1978))

In our case, the Facility is surrounded by mixed use properties (maritime and non-maritime), is several miles from the Port, and generally does not function as an area of maritime commerce.

Even in the relatively broad approach to situs used in the Ninth Circuit, the BRB affirmed the Administrative Law Judge’s (ALJ) finding that the claimant’s injuries did not occur on a covered situs.

NOTE:  Although the Facility is located “several miles” from the Port, distance alone was not the reason that it was not a covered situs.  Distance from the water is one among several factors considered in the Ninth Circuit.

So, the claimant in this case does not meet situs, and since both status and situs have to be independently satisfied for Longshore Act coverage, the case could have ended here.

But the BRB also discussed the status of the claimant, and affirmed the ALJ’s finding that the claimant did not meet status.

The claimant moved cargo from the Port of Seattle’s terminals to an intermodal rail facility.  In the landmark case of P.C. Pfeiffer Co. v. Ford, 444 U.S. 69 (1979), the U.S. Supreme Court held that workers engaged in intermediate steps of moving cargo between ship and land transportation were covered by the Longshore Act.  And in another landmark case, Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249 (1977), the Supreme Court rejected the “point of rest” theory.  Unloading of cargo does not consist only of moving the cargo from the vessel to its initial point of rest at dockside.

Was the driver’s job an intermediate step in the process of moving cargo between the Port of Seattle’s terminals and the Intermodal Facility?

This issue involves the identification of the point at which cargo handling ends and land transportation begins.  Workers on one side are engaged in maritime employment and meet status under the Longshore Act.  Workers on the other side of this point are not engaged in maritime employment.

In addressing the status issue in the Ahmed case the BRB reviewed a number of prior truck driver cases.  It considered several cases in which drivers who transported cargo between port terminals and facilities located outside the port were involved in the land based stream of commerce rather than an intermediate step in the loading/unloading process.  The key point in several of the cases is that the drivers were transporting sealed containers to destinations outside the ports area.

On the other hand, transporting containers within the port area, such as from the dockside to terminal storage facilities and other destinations within the port, were considered to be still part of the loading/unloading process, i.e., an intermediate step since the cargo had not yet entered land transportation.

Since the driver in our case was transporting between the port and the Intermodal Facility outside the port he was involved in land transportation and did not meet status under the Longshore Act.

Finally, the claimant in this case did not board vessels or handle cargo.  He just drove the truck.  His activities were the first step in land transportation.  In the other direction, his activity would be the last step in land transportation of cargo to be put aboard vessels.

NOTE:  The ALJ had also found that the claimant was an independent contractor and not an employee.  It would have been an interesting discussion if the BRB had also taken up this issue.

NOTE:  This claimant was also out of luck with his compensation claim under the state act, in which he was adjudicated to be an independent contractor, not covered by workers’ compensation.

 

 

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John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers’ Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation.  Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of the AEU Longshore Blog.

ISSUE: Future Landmark Cases- High Seas, Foreign Waters

We observed last time that the issues involved in the “concurrent” jurisdiction question included the competing concepts of individual state police powers versus the need for uniform federal maritime jurisdiction.

The high seas/foreign waters issue with regard to Longshore Act coverage also involves the limits and extent of federal maritime or admiralty jurisdiction, except that here we’re looking outward rather than inward at the states.

Leaving aside questions of due process (jurisdiction over the parties) and convenient forum, a primary question is whether the overseas coverage of the Longshore Act should be coextensive with federal maritime statutes such as the Jones Act and the Death on the High Seas Act (DOHSA).  This question arises quite often as U.S. employers send their workers beyond U.S. territorial waters on to the high seas and to other countries to do work that meets maritime “status” for coverage under the Longshore Act.

We do not have an actual circuit conflict on this question, but that’s because only one circuit has given a clear answer on the question of Longshore Act coverage in foreign territorial waters.  We do, however, have uncertainty.

Here’s a brief survey of where we stand right now:

Cove Tankers Corp. v. United Ship Repair Inc., 683 F.2nd 38 (2nd Cir. 1982) – two ship repairmen injured when a boiler exploded on a voyage from New York to Philadelphia when the vessel had deviated 135 miles offshore.  The federal Second Circuit Court of Appeals held that the Longshore Act covered the injuries.

Reynolds v. Ingalls Shipbuilding Division, Litton Systems, Inc., 788 F.2nd 264 (5th Cir.), cert. denied, 479 U.S. 885 (1986) – injury occurring beyond state territorial waters (14 miles offshore)  during sea trials held covered by the Longshore Act.

Kollias v. D & G. Marine Maintenance, 29 F.3rd 67 (2nd Cir. 1994), cert. denied 513 U.S. 1146 (1998) – the Second Circuit held that Section 39(b) of the Longshore Act (33 U.S.C. 939(b)) indicates Congressional intent to cover the high seas under the Longshore Act.  The court notes that this statutory reference to “the high seas” overcomes the general presumption against extraterritorial application of U.S. statutes.  The Longshore Act was applied to this case where the injury occurred 200 miles offshore.

Weber v. S.C. Loveland Co., 28 BRBS 321 (1994) – this decision by the U.S. Department of Labor’s Benefits Review Board (BRB) applies the Longshore Act to an injury that occurred in the port of Kingston, Jamaica.  The BRB, citing foreign application of  the Jones Act and the DOHSA, based its decision on, “… the trend in admiralty law to extend coverage into foreign waters to provide uniform coverage for American workers, especially when all contact except for the site of the injury, are with the U.S.”

Keller Foundation/Case Foundation v. Tracy, 696 F.3rd 835 (9th Cir. 2012), cert. denied 133 S. Ct. 2825 (2013). – the Ninth Circuit held that the Longshore Act applies on the high seas, but that the foreign territorial waters and their adjoining ports and shore based areas are not the “navigable waters of the United States”.  The Ninth Circuit cited the strong presumption that Acts of Congress do not apply extraterritorially absent a clear statutory indication, and unlike the Second Circuit it did not find this clear indication in the Longshore Act.

So, does the Longshore Act cover an American citizen injured on the high seas or in foreign territorial waters in the course of his maritime employment?

We seem to have consistent agreement (2nd Circuit, 5th Circuit, 9th Circuit, and the BRB) that the Longshore Act applies on the high seas, at least when the employee is on the high seas situs temporarily and all other contacts of his employment are with the U.S.  And in the process of deciding its high seas cases the Second Circuit in Kollias indicated that it sees no problem with extraterritorial application of the Longshore Act.  The court cited the statement in section 39(b) authorizing the Department of Labor to establish compensation districts for injuries occurring on the high seas.

But we have uncertainty if the injury occurs in the territorial waters or adjoining land areas of a foreign country if your case is going to end up on appeal anywhere but in the Ninth Circuit.

If your case is going to end up on appeal in the Ninth Circuit, then the answer seems to be clear.  The Longshore Act does not apply in foreign waters.

NOTE:  What federal circuit your appeal ends up in is based on the place where the injury occurred.

What about everywhere else outside of the Ninth Circuit’s jurisdiction?

The last word from the BRB (in Weber) was that, subject to a few conditions, the Longshore Act applies in foreign waters.  No federal circuit other than the Ninth has decided this question, and as we saw that circuit held to the contrary in Tracy.

What will happen when the next case involving an injury occurring in foreign territorial waters arises outside of the Ninth Circuit?  Will the BRB follow its own precedent in Weber or will it adopt the reasoning of the Ninth Circuit?  Will other circuits, such as the Second and the Fifth, follow the reasoning indicated in their high seas cases and apply the Longshore Act, or will they adopt the reasoning of the Ninth Circuit?

It does seem to be a stretch to include foreign territorial waters in the definition of “navigable waters of the united States”.  On the other hand, there is the concept of uniform coverage for American workers temporarily overseas for maritime work that has to be considered.  And the BRB cited the Jones Act and the DOHSA, which have been applied in foreign waters.  The BRB sees this as indicating a trend that U.S. maritime law will follow American workers overseas.

At any rate, maritime employers need a uniform answer on the issue of the application of the Longshore Act in foreign territorial waters.  As seen above, the U.S. Supreme Court has declined to review this issue on more than one occasion.  Eventually, we’ll need an answer.

 

 

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John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation.  Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of the AEU Longshore Blog.

ISSUE: Future Landmark Cases – Situs

Jack_crop 72dpiOn February 1, 2016, I discussed the last case on my list of the top six landmark Longshore Act cases.  This time what I’d like to do is to identify the landmark cases that we need but that we don’t yet have.  There are important, disputed issues and circuit conflicts that have not yet been resolved by the U.S. Supreme Court but that should be.

The first of these involves section 3(a) (33 U.S.C. 903(a)), the situs provision of the Longshore Act.

Section 3(a):

“Except as 137 (1978) or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the 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).”

You can meet the situs requirement for Longshore Act coverage in one of three ways:

  1. Be injured over the navigable waters of the United States,
  2. Be injured on an enumerated site, i.e., any pier, wharf, dry dock, terminal, building way, or marine railway,
  3. Be injured on an “other adjoining area customarily used by an employer” for maritime activity.

The issue to be resolved in our hypothetical future Supreme Court case is the interpretation of “other adjoining area …”

With its April 29, 2013, decision in New Orleans Depot Services, Inc. v. Director, Office of Workers’ Compensation Programs et al. (Zepeda) the federal Fifth Circuit Court of Appeals joined the Fourth Circuit (Sidwell v. Express Container Services, 71 F.3d 1134 (1990)) in a restrictive approach, defining “adjoining” as contiguous to or touching navigable waters.  Prior to Zepeda, the Fifth Circuit had been a leading circuit in an expansive interpretation of the term adjoining.

Circuits other than the Fourth and the Fifth use a geographic/functional approach that does not require that an “adjoining” area be physically contiguous with the water.

What does “adjoining” mean?  The Fourth and Fifth Circuits base their narrow interpretation on the word’s primary dictionary meaning and their own plain reading of the statute.

The Fourth Circuit states – “The ordinary meaning of the word ‘adjoin’ indicates that the area to which Section 3(a) refers must be contiguous with or otherwise touch navigable waters.  If there are other areas between the navigable waters and the area in question, the latter area simply is not ‘adjoining’ the water under any reasonable definition of that word.”

Other circuits, such as the Ninth, read the same statute and take a different meaning.

The Ninth Circuit states – “Consideration should be given to the following factors, among others, in determining whether or not a site is an ‘adjoining area’ under Section 903(a):  the particular suitability of the site for the maritime uses referred to in the statute; whether adjoining properties are devoted primarily to uses in maritime commerce; the proximity of the site to the waterway; and whether the site is as close to the waterway as is feasible given all of the circumstances in the case” (Brady-Hamilton Stevedores v. Herron, 568 F.2nd 137 (1978)).

Other circuits, notably the First and the Third, take an approach similar to the Ninth’s.

A circuit conflict on such a basic element of coverage should be resolved by the Supreme Court.

The Ninth Circuit has recently been right on the situs of injury question for Outer Continental Shelf Lands Act (OCSLA) coverage, and it is probably right on the question of  interest due on past due compensation (compound not simple interest).  If it’s right on contiguous versus vicinity situs issue then the Supreme Court should say so.

NOTE:  Unsolicited opinion warning:  Workers who are engaged in maritime employment such as the container repair mechanics involved in Sidwell and Zepeda, but whose employers have been forced to relocate away from the waterfront for economic reasons should not necessarily lose Longshore Act coverage.

At any rate, contiguous or in the vicinity, you should get the same answer in each of the federal circuits under a statute based on the principle of national uniformity in maritime matters.

Admittedly, the position taken by the Fourth and Fifth Circuits is straightforward and certain.  “Adjoining” means contiguous with and touching.

The opposing view typified by the Ninth Circuit’s approach is more nuanced, and admittedly has more moving parts, such as distance from the water, use of intervening properties, use of neighboring properties, reasons why the employer chose the location, etc. in the effort to identify maritime neighborhoods that “adjoin” or are in the vicinity of navigable waters.

I don’t think that the approaches taken by the Fourth and Fifth Circuits as opposed to the Ninth, Third, and First Circuits are necessarily at two opposite poles of the argument.  Here’s what I mean.

The 1972 Amendments to the Longshore Act, recognizing the changing location of maritime employment, followed the maritime work landward by extending coverage to adjoining landside areas where work had moved due to technological and economic changes in cargo handling and ship fabrication.  The Amendments intended to provide uniform Longshore Act coverage to maritime workers on both sides of the water line. You could make the argument that if, for largely economic reasons, the work has moved again, then uniform Longshore Act benefits should again follow the maritime workers.

The more expensive that waterfront property becomes and the more expansive terminal operations become, the more you expect maritime workers such as container repairmen, transportation workers, ship fabricators, etc. to be working away from the water.

I’m not suggesting that a covered situs is anywhere where maritime activity occurs, but perhaps it should be part of the situs analysis.  This approach is at the opposite pole from the interpretation of the Fourth and Fifth Circuits, placing the Ninth Circuit’s formulation more in the middle.

How far from the water is too far?  Rather than an arbitrary line at some point, maybe it’s where the non-maritime factors outweigh the maritime factors governing a particular site’s location.  Although absolutely no court has endorsed this, maybe some element of the nature of the work should be considered.

This conflict can be resolved by the Supreme Court.  Maybe this will be the next landmark Longshore Act case.

John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation.  Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of the AEU Longshore Blog.

ISSUE: High Seas, Foreign Waters

Jack_crop 72dpiYogi Berra might have said this.  “Some questions always come up, because they don’t come up that often.”   You know.  Sort of like, “Nobody goes there anymore.  It’s too crowded”.

Questions continue to come up with regard to U.S. workers going overseas, either on the high seas or in foreign waters, to do work that would meet the maritime “status” requirement for Longshore Act coverage if done on or adjoining the navigable waters of the United States in the conventional sense.

We are assuming that these high seas/foreign waters workers meet “status”, so this is strictly a “situs” issue.

It has been a safe bet that the Longshore Act applies on the “high seas”, subject to conditions such as contacts with the U.S. and the temporary nature of the work assignment.  The problem has been, and still is, with regard to foreign territorial waters.

We have the U.S. Department of Labor’s Benefits Review Board’s decision in Weber v. S.C. Loveland Co., 35 BRBS 75 (2001) aff’d on recon., 35 BRBS 190 (2002) for the proposition that the Longshore Act coverage extends to the territorial waters of foreign countries.  The Board’s rationale is based on the language of section 39(b) of the Longshore Act, which authorizes the Secretary of Labor to establish compensation districts to include the high seas, and provides for judicial jurisdiction for proceedings involving injuries occurring on the high seas.  The Board also cited the trend in Admiralty law to extend federal maritime jurisdiction into foreign waters to provide uniform coverage for American workers.

But in Keller Found./Case Found. v. Tracy, 696 F.3rd 835 (9th Cir. 2012), the federal Ninth Circuit Court of Appeals (states of WA, OR, MT, ID, CA, NV, AZ, AK, HI) accepts the proposition that the Longshore Act applies on the high seas, but the court states, “we hold that foreign territorial waters and their adjoining ports and shore based areas are not the ‘navigable waters of the United States’”.  The court cited the strong presumption that enactments of Congress do not apply extraterritorially, and did not find strong enough intent in the Longshore Act to overcome this presumption.

To further muddy the waters, in Kollias v. D.G. Marine Maintenance, 29 F.3rd 67 (2nd Cir. 1994) the federal Second Circuit (states of NY, CT, VT) opined that the Longshore Act covers injuries on the high seas without qualification and that in section 39(b) the court found Congressional intent to overcome the general presumption against extraterritoriality.

So what’s our best guess today with regard to American workers overseas performing maritime employment?

  1. In the Ninth Circuit the Longshore Act applies on the high seas subject to conditions, but not in the territorial waters of other countries.
  2. Outside of the Ninth Circuit, the Longshore Act applies on the high seas also subject to conditions, but the issue of coverage in foreign territorial waters is uncertain.
  3. Will Circuits other than the Ninth follow the rationale of the Board in Weber (and for that matter will the Board continue to follow its own precedent in the wake of Tracy), or will the Circuits split? It may be worth noting that the Board did not disturb its opinion in Weber when Tracy went through on its way to the Ninth Circuit. Rather, the Board distinguished Tracy in that Mr. Tracy was based overseas from 1998 to 2002, not temporarily, and his trips did not begin and end in the U.S. This prolonged foreign assignment did not meet the conditions of Weber for Longshore Act coverage.
  4. Until the issue of situs in foreign territorial waters is clarified, maritime employers whose cases are likely to end up in a Circuit other than the Ninth should get Longshore Act coverage for their employees who are going overseas to perform maritime work.

Note:  if the overseas work is on a U.S. military base or pursuant to a government contract, be thinking about the Defense Base Act.

Note:  Will your case end up in the Ninth Circuit?  The location of the Office of Workers’ Compensation Program’s District Director who serves the Order of the Administrative Law Judge controls jurisdiction.  Cases are usually assigned to the District Director closest to the injured worker’s residence.

The jurisprudence is somewhat sparse, but not non-existent, but unfortunately what exists is not uniform.

So, once again we look to Yogi Berra, who almost certainly never said, “When you come to a fork in the road – take it.”

When there’s any doubt, play it safe and get coverage.

Notwithstanding the above discussion, some aspects of overseas coverage are clear.  The navigable waters of the United States includes the Territories and the territories, such as Guam, American Samoa, the U.S. Virgin Islands, the Commonwealth of the Northern Marianas, Gilbert and Solomons (not Sullivans), etc.

Note:  The Longshore Act does not apply in Puerto Rico, but the Defense Base Act does.  The Defense Base Act does not apply in Guam, but the Longshore Act does.

John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers Compensation Programs, as the Chief, Branch of Insurance and Financial Management, and the Acting Director, Division of Longshore and Harbor Workers’ Compensation.  Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of the AEU Longshore Blog.