Jonathan Corporation v. Brickhouse , 142 F.3d 217 ( 1998 )


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  • PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    JONATHAN CORPORATION,
    Petitioner,
    v.
    MICHAEL C. BRICKHOUSE; DIRECTOR,
    No. 96-2457
    OFFICE OF WORKERS' COMPENSATION
    PROGRAMS, UNITED STATES
    DEPARTMENT OF LABOR,
    Respondents.
    JONATHAN CORPORATION,
    Petitioner,
    v.
    MICHAEL C. BRICKHOUSE; DIRECTOR,
    No. 97-1039
    OFFICE OF WORKERS' COMPENSATION
    PROGRAMS, UNITED STATES
    DEPARTMENT OF LABOR,
    Respondents.
    On Petitions for Review of Orders
    of the Benefits Review Board.
    (95-1556)
    Argued: October 30, 1997
    Decided: April 23, 1998
    Before RUSSELL,* NIEMEYER, and WILLIAMS, Circuit Judges.
    _________________________________________________________________
    *Judge Russell heard oral argument in this case but died prior to the
    time the decision was filed. The decision is filed by a quorum of the
    panel. 28 U.S.C. § 46(d).
    Petition for review granted and order of the Benefits Review Board
    reversed by published opinion. Judge Niemeyer wrote the opinion, in
    which Judge Williams joined.
    _________________________________________________________________
    COUNSEL
    ARGUED: F. Nash Bilisoly, IV, VANDEVENTER, BLACK, MER-
    EDITH & MARTIN, L.L.P., Norfolk, Virginia, for Petitioner. John
    Harlow Klein, RUTTER & MONTAGNA, L.L.P., Norfolk, Virginia,
    for Respondents. ON BRIEF: Kelly O. Stokes, VANDEVENTER,
    BLACK, MEREDITH & MARTIN, L.L.P., Norfolk, Virginia, for
    Petitioner. Matthew H. Kraft, RUTTER & MONTAGNA, L.L.P.,
    Norfolk, Virginia, for Respondents.
    _________________________________________________________________
    OPINION
    NIEMEYER, Circuit Judge:
    We are presented with the jurisdictional question of whether the
    Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33
    U.S.C. § 901 et seq., covers an employee's injury sustained in a steel
    fabrication plant near navigable water. Coverage depends on satisfac-
    tion of a "situs" test and a "status" test. Because we conclude that the
    situs requirement is not met, we hold that the LHWCA does not cover
    the employee's injury and reverse the decision of the Benefits Review
    Board which ruled otherwise.
    I
    Michael C. Brickhouse was injured in August 1993, when a 12-foot
    square piece of steel fell on him while he was working for his
    employer, Tidewater Steel Company, a steel fabrication firm in Ches-
    apeake, Virginia. Brickhouse was a welder who had worked for Tide-
    water Steel for four and one-half years. Following his injury he went
    to the hospital and has not returned to work.
    The Tidewater Steel facility at which Brickhouse worked is an
    80,000-square foot building which is divided into three bays. One bay
    2
    is used exclusively to fabricate steel for Jonathan Corporation, Tide-
    water Steel's parent corporation, for maritime related projects, such
    as the repair and replacement of ship components. The other two bays
    fabricate steel for bridges and other non-maritime projects.
    Brickhouse had, over the years, spent substantial periods of time
    performing welding on components for installation in ships, and on
    occasion he would travel to the shipyards of Jonathan Corporation to
    work on the components' installation. The majority of his time, how-
    ever, was expended in welding on non-maritime projects in the other
    two bays of the Tidewater Steel facility. Jonathan Corporation con-
    tends in its brief that the work records for Brickhouse, which are in
    the record, demonstrate that he worked more than 75% of the time on
    non-maritime projects. At the time of his injury, Brickhouse was
    working in a non-maritime bay of the plant on a railroad bridge that
    was to be shipped to Concord, North Carolina.
    The property on which the Tidewater Steel facility is situated is
    contiguous to the Southern Branch of the Elizabeth River, a navigable
    waterway, and the property has a dock for loading barges. Tidewater
    Steel, however, receives all of its steel by rail or truck, and likewise
    ships out most of its fabricated product by rail or truck. From time to
    time, when components are especially large, it ships them by barge.
    The record reveals, for example, that on at least one occasion, the
    company shipped components of a flight deck by barge to a navy
    shipyard for installation on a navy ship.
    In response to Brickhouse's claim for workers compensation under
    the LHWCA, Jonathan Corporation challenged coverage of the Act,
    contending that Brickhouse was not, at the time of his injury, on "nav-
    igable waters of the United States," as required by U.S.C. § 903(a),
    and that he was not engaged in "maritime employment," as required
    by 33 U.S.C. § 902(3). These requirements refer to "situs" and "sta-
    tus" requirements for jurisdiction, both of which must be satisfied.
    See Director, OWCP v. Perini N. River Assocs., 
    459 U.S. 297
    , 314
    (1983); Northeast Marine Terminal Co. v. Caputo , 
    432 U.S. 249
    , 265,
    279 (1977); Pittman Mech. Contractors v. Director, OWCP, 
    35 F.3d 122
    , 125 (4th Cir. 1994).
    The ALJ found that both situs and status requirements were satis-
    fied in this case. In finding the situs requirement met, he observed that
    3
    the plant was located on a navigable waterway which was used on
    occasion to ship heavy prefabricated steel, such as flight decks, for
    installation on ships. While the ALJ assumed that the majority of the
    plant's work was committed to the fabrication of non-maritime steel
    products shipped by rail or truck, he observed that a "significant
    amount of its work is maritime related." The ALJ concluded:
    [T]he evidence of record establishes Claimant's injury took
    place in an adjoining area to a navigable waterway, the
    South Branch of the Elizabeth River. The adjoining area is
    the Tidewater Steel facility in Chesapeake, Virginia. That
    location is used by the employer in loading and unloading
    vessels. Consequently, Claimant has established the situs
    requirement.
    In finding the status requirement met, the ALJ held that a claimant
    "need not be engaged in maritime employment at the time of the rele-
    vant injury" and that a claimant "who regularly performs duties relat-
    ing to maritime employment should not be denied coverage if injured
    while temporarily performing some non-maritime activity." He con-
    cluded that a "significant amount" of Brickhouse's work was mari-
    time in nature because he welded on components intended for
    installation in ships, because he sometimes installed components on
    ships, and because he sometimes worked at amphibious bases and at
    shipyards. The ALJ thus concluded that, even though the claimant
    was working on non-maritime work at the time of his injury, "he is
    one of those employees who can walk in and out of maritime activity
    at the whim of his employer."
    Having found both the situs and status requirements satisfied, the
    ALJ concluded that Brickhouse was an employee covered by the
    LHWCA. The Benefits Review Board affirmed, and this appeal fol-
    lowed.
    II
    Until 1972, the Longshoremen's and Harbor Workers' Compensa-
    tion Act ("Longshoremen's" remained in the Act's title until 1984
    when it was changed to "Longshore") provided coverage for injuries
    occurring only "upon the navigable waters of the United States
    4
    (including any dry dock)." 33 U.S.C. § 903 (1970 ed.). If an injury
    occurred on a pier adjoining navigable waters, it occurred on the land
    side of jurisdiction, and coverage of the Act was denied. See
    Nacirema Operating Co. v. Johnson, 
    396 U.S. 212
    , 223-24 (1969).
    The "line of demarcation" between land and water defined the line
    between coverage of the Longshoremen's and Harbor Workers' Com-
    pensation Act and coverage of state workers' compensation laws.
    Director, OWCP v. Perini N. River Assocs., 
    459 U.S. 297
    , 316
    (1983). "As a consequence, longshoremen continually walked in and
    out of LHWCA coverage as they walked up and down the gangplank
    from ship to shore during the loading and unloading of vessels."
    Sidwell v. Express Container Servs., Inc., 
    71 F.3d 1134
    , 1135 (4th
    Cir. 1995) (citing S. Rep. 92-1125, 92nd Cong., 2d Sess. 12-13
    (1972)). In Nacirema, the Supreme Court stated that any invitation "to
    move that line [of jurisdiction] landward must be addressed to Con-
    gress, not to this Court." 
    Id. at 224.
    As the Court later observed, "In
    1972, Congress moved the line." 
    Caputo, 432 U.S. at 260
    .
    The 1972 amendments to the Longshoremen's and Harbor Work-
    ers' Compensation Act moved the line landward by including in the
    definition of navigable waters "any adjoining pier, wharf, dry dock,
    terminal, building way, marine railway, or other adjoining area cus-
    tomarily used by an employer in loading, unloading, repairing, dis-
    mantling, or building a vessel." 33 U.S.C. § 903(a). In so moving the
    line, however, Congress recognized that non-maritime employees
    would be included within coverage under a pure situs test. Conse-
    quently, it also limited the class of employees covered by defining
    employee to mean "any person engaged in maritime employment,
    including any longshoreman or other person engaged in longshoring
    operations, and any harbor-worker including a ship repairman, ship-
    builder, and ship-breaker." 33 U.S.C. § 902(3).
    One of Congress' principal purposes in moving the coverage line
    landward was to provide more uniform coverage for longshoremen as
    they loaded and unloaded ships and repaired them. See Herb's Weld-
    ing, Inc. v. Gray, 
    470 U.S. 414
    , 426 (1985); 
    Caputo, 432 U.S. at 272
    .
    It made little sense that a longshoreman injured at one end of a gang-
    plank was covered, while at the other end, he was not covered, even
    though he was doing the same job. Also, with the advent of container-
    ization and other modern loading techniques, much of the loading and
    5
    unloading work was done on the pier adjacent to the ship. See 
    Caputo, 432 U.S. at 269-70
    . Thus, Congress believed that coverage for a per-
    son who did traditional longshoremen's work both on the water and
    on the adjacent land should not depend on where the person was
    standing in relation to the water's edge when injured. See 
    id. at 272.
    With the 1972 amendments, the test for coverage thus changed
    from a simple situs test to a test incorporating situs and status require-
    ments. Even with the new situs boundary moved landward, however,
    the situs requirements still establish a geographical boundary for cov-
    erage. See Herb's 
    Welding, 470 U.S. at 427
    ; 
    Caputo, 432 U.S. at 263
    -
    64. As with any geographical boundary, workers can still move across
    that boundary into and out of the Act's coverage. See Herb's 
    Welding, 470 U.S. at 426
    ("[T]here will always be a boundary to coverage, and
    there will always be people who cross it during their employment.");
    Humphries v. Director, OWCP, 
    834 F.2d 372
    , 373-74 (4th Cir. 1987).
    The question now, however, is where the geographical boundary for
    coverage of the LHWCA runs and, more particularly, whether it
    includes the location where Brickhouse was injured.
    Jonathan Corporation contends that the boundary does not encom-
    pass the situs where Brickhouse was injured. It notes that he was
    injured while fabricating steel for an inland bridge in a steel fabrica-
    tion plant located "approximately 1,000 feet from the Elizabeth
    River." It argues that Brickhouse's work area is not "contiguous with
    a navigable waterway" and that the facility in which he was working
    was not "like a pier, wharf, dry dock, terminal, building way, or
    marine railway. . . . Tidewater Steel is a plant where heavy steel is
    fabricated." It argues further that the Tidewater Steel plant was not
    customarily used for loading, unloading, repairing, dismantling, or
    building a vessel. It notes that Tidewater Steel did not even have a
    shoreside crane that could be used for those purposes at the water's
    edge of its property.
    Brickhouse, arguing for coverage, states that the Tidewater Steel
    facility is contiguous to navigable waters because the plant's property
    extends to the water's edge. He argues, moreover, that Tidewater
    Steel has in fact loaded fabricated steel onto barges from its property.
    Finally, he notes that one entire bay of the Tidewater Steel facility is
    dedicated to the fabrication of ship-bound components.
    6
    Because the facts relating to the resolution of the situs issue are not
    substantially in dispute, coverage becomes a question of law which
    we determine de novo. The Board's adjudicatory interpretations of the
    LHWCA are thus not entitled to deference but rather are subject to
    our independent review. See Potomac Elec. Power Co. v. Director,
    OWCP, 
    449 U.S. 269
    , 278 n.18 (1980); Pittman Mech. Contractors
    v. Director, OWCP, 
    35 F.3d 122
    , 125 (4th Cir. 1994).
    The situs requirement of the LHWCA limits coverage only to inju-
    ries
    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 cus-
    tomarily used by an employer in loading, unloading, repair-
    ing, dismantling or building a vessel).
    33 U.S.C. § 903(a). In extending the line of coverage landward, Con-
    gress thus defined navigable waters to include certain land areas "ad-
    joining" the navigable waters.
    The landward extension is a seamless annexation of land to naviga-
    ble waters for purposes of LHWCA coverage. See 
    Caputo, 432 U.S. at 263
    . But the annexation does not include all adjacent land. The stat-
    ute extends "navigable waters" only to land relating to work on those
    waters, specifically enumerating adjoining piers, wharfs, dry docks,
    terminals, building ways, and marine railways. See 33 U.S.C.
    § 903(a). These are facilities customarily used by longshoremen in
    loading and unloading ships and in repairing or building them. See
    
    Caputo, 432 U.S. at 271
    n.32. The link between the navigable waters
    and the land side facilities is thus established under the statute by (1)
    the contiguity of the land side facility and navigable water, and (2) the
    affinity of the land side facility to longshoremen's work on ships.
    Anticipating that its enumeration of land side facilities might not
    be complete, Congress also incorporated a catchall term in § 903(a)
    to include any "other adjoining area customarily used by an employer
    in loading, unloading, repairing, dismantling, or building a vessel." 33
    U.S.C. § 903(a). But again, Congress did not abandon its legislating
    principle of connecting this "other area" to the work of longshoremen
    7
    on navigable waters. The "other area" annexed to navigable waters by
    the Act must again be "adjoining" the water and must again be linked
    to the traditional longshoremen's work on the water. The "other area"
    must be for the loading or unloading of cargo onto ships in navigable
    waters or for the "repairing, dismantling, or building" of those ships.
    
    Id. In the
    foregoing manner, Congress was careful to address the prob-
    lem of a longshoreman walking into and out of jurisdiction at water's
    edge as he performed traditional longshore work on and off ships in
    navigable waters. It did so by drawing a new line of demarcation
    landward. See, e.g., 
    Caputo, 432 U.S. at 266
    n.27 (quoting legislative
    reports).
    These principles are mostly established in our circuit. In Sidwell,
    we noted that land is made part of navigable waters for purposes of
    LHWCA coverage "only if it ``adjoins' navigable waters, that is, if it
    is ``contiguous with' or otherwise ``touches' such 
    waters." 71 F.3d at 1138-39
    . While the problem presented in Sidwell did not require us
    to address the nature of land side facilities that the LHWCA covers,
    we did observe the controlling principle that the kinds of property that
    the LHWCA enumerates are "discrete structure[s] or facilit[ies], the
    very raison d'etre of which is [their] use in connection with navigable
    waters." 
    Id. at 1139;
    see generally 
    Humphries, 834 F.2d at 375
    ("[T]he LHWCA requires us to draw a spacial line for coverage under
    the Act").
    The situs test, in sum, is a geographical one, and even though a
    longshoreman may be performing maritime work, if he is not injured
    within the land area specified by the statute, he is not covered by the
    Act.
    Consistent with these principles, we have held that when a long-
    shoreman moved out of coverage, even momentarily, leaving a shore-
    side facility in a car to pick up food for his fellow workers, he was
    not covered by the LHWCA when he was injured during that momen-
    tary departure. See 
    Humphries, 834 F.2d at 375
    . When Congress
    addressed a longshoreman's moving into and out of coverage at
    water's edge as he unloaded a ship or repaired it, Congress did not
    purport to eliminate the phenomenon of moving into and out of cover-
    8
    age -- such a condition necessarily attends any geographical bound-
    ary of coverage. See Herb's 
    Welding, 470 U.S. at 426
    -27 (noting that
    there always will be a boundary of coverage which people cross dur-
    ing their employment). Rather, it moved the line landward only to
    lessen the irrationality of a line at water's edge where coverage
    depended on which end of the gangplank a longshoreman was
    injured. See id.; 
    Caputo, 432 U.S. at 272
    .
    With these principles in hand, we may readily apply them to the
    case before us. At the time of his employment, Brickhouse was fabri-
    cating steel parts for an inland bridge in North Carolina. He was fabri-
    cating them in a steel fabrication plant which was not a pier, wharf,
    dry dock, terminal, building way, or marine railway. Nor was it, we
    conclude, a similar type of facility that fits the catchall provision.
    While at the plant, the employees' work did not routinely take them
    from within the plant, onto adjoining water, and back again into the
    plant. On the contrary, when at the plant, their work kept them in the
    plant to fabricate steel components that were shipped from the plant,
    usually by rail or truck, either to an inland site or to a ship on naviga-
    ble waters for installation. The very fact that it was necessary for the
    components to be shipped from the plant before their installation,
    whether by ship or not, provides the fact that insulates the plant from
    navigable waters and distinguishes Brickhouse's work location from
    that of the traditional longshoreman's workplace at the water's edge.
    When Brickhouse worked on ships, which he occasionally did, he
    traveled by land to the shipyards where he then installed fabricated
    parts. During these times, he was undoubtedly on a situs covered by
    the LHWCA. But while at the Tidewater Steel plant, his situs was no
    different than it would have been at any steel fabrication plant any-
    where in the land.
    Brickhouse argues that the fact that the Elizabeth River runs con-
    tiguous to the plant's property satisfies the situs requirement. That
    fact, however, is simply fortuitous. The plant was not connected to the
    Elizabeth River in any way necessary to make workers in the plant
    longshoremen working at the water's edge. Indeed, the plant was
    almost a thousand feet from the water's edge, and it was not "custom-
    ary" for the plant's workers to move between land and water in any
    regular way. They remained in the plant fabricating maritime and
    9
    non-maritime components, just as they would have done if the plant
    were located at any inland site.
    Stated otherwise, the steel fabrication plant where Brickhouse was
    injured was not a facility, the "raison d'etre of which is its use in con-
    nection" with the nearby navigable waters. See 
    Sidwell, 71 F.3d at 1139
    . The plant did not serve ships at the water's edge. Indeed, there
    is no evidence that Tidewater Steel ever repaired, dismantled, or built
    a ship at its barge dock on the Elizabeth River. Rather, it served ships
    at other locations by manufacturing components at its plant and ship-
    ping them from the plant to the other locations. Moreover, the fact
    that components were, on rare occasions, shipped by barge from Tide-
    water Steel's dock is not meaningful. The barge dock on Tidewater
    Steel's property would be relevant only if barges were the "custom-
    ary" method of shipment and if its employees were longshoremen
    who customarily loaded the barge at the facility. See 33 U.S.C.
    § 903(a). But the evidence in the record is insufficient to draw either
    conclusion.
    Because we conclude that at the time of his injury, Brickhouse was
    not on a situs covered by the LHWCA, we need not address the more
    complex question of whether Brickhouse was injured while engaging
    in maritime employment. See, e.g., Herb's 
    Welding, 470 U.S. at 424
    -
    25 (observing, "we have never read ``maritime employment' to extend
    so far beyond those actually involved in moving cargo between ship
    and land transportation" to include a claimant who was a welder, and
    thus a welder, without more, "was not engaged in maritime employ-
    ment"). The petition for review is granted, and the judgment of the
    Benefits Review Board is
    REVERSED.
    10