Walker v. Metro MacHine Corp. , 50 F. App'x 104 ( 2002 )


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  •                           UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    STEVEN WALKER,                           
    Petitioner,
    v.
    METRO MACHINE CORPORATION;                        No. 02-1059
    OFFICE OF WORKERS’ COMPENSATION
    PROGRAMS,
    Respondents.
    
    On petition for review of an order of the
    Benefits Review Board.
    (01-368)
    Argued: September 26, 2002
    Decided: October 29, 2002
    Before NIEMEYER, LUTTIG, and MICHAEL Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    COUNSEL
    ARGUED: Robert Elliott Walsh, RUTTER, WALSH, MILLS &
    RUTTER, Norfolk, Virginia for Appellant. F. Nash Bilisoly IV,
    VANDEVENTER BLACK, L.L.P., Norfolk, Virginia for Appellee.
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    2              WALKER v. METRO MACHINE CORPORATION
    OPINION
    PER CURIAM:
    Steven Walker, a shipfitter, was injured at the Mid-Atlantic facility
    of Metro Machine Corporation ("Metro Machine"). He sought com-
    pensation under the Longshore and Harbor Workers’ Compensation
    Act ("LHWCA"), 
    33 U.S.C. § 901
     et seq. The ALJ denied Walker
    benefits, finding that the injury did not occur on a situs covered by
    the LHWCA, and the Department of Labor Benefits Review Board
    affirmed. Because the facts of this case are virtually indistinguishable
    from those in Jonathan Corporation v. Brickhouse, 
    142 F.3d 217
     (4th
    Cir. 1998), we affirm.
    I.
    Walker was injured in October 1998, while working for his
    employer, Metro Machine, a ship repair company in Norfolk, Vir-
    ginia. Walker was employed as a shipfitter. His job required him to
    engage in hull and structural work on ships and to construct steel parts
    for ships.
    Metro Machine has two facilities adjacent to navigable waters: the
    Mid-Atlantic facility and the Imperial Docks facility. J.A. at 96.
    While Walker occasionally worked at Imperial Docks, he primarily
    worked at Mid-Atlantic, J.A. at 98, and he sustained the injury at
    issue while working at Mid-Atlantic. The Mid-Atlantic facility abuts
    the Elizabeth River and is used for fabricating components for and
    repairing pieces of Navy and other ships that are under repair at Impe-
    rial Docks, where there are wet and dry docks. Metro Machine
    removes parts from the ships at Imperial Docks and ships them, via
    truck or barge, to Mid-Atlantic. J.A. at 96. Somewhere between 5 and
    20 percent of the material is sent by barge. The Mid-Atlantic facility
    has a bulkhead on the river where the barge ties up, but no pier or dry
    dock. J.A. at 97.
    The Mid-Atlantic facility has two main areas, one which is adja-
    cent to the Elizabeth River — the "back parcel" — and one which is
    not — the "front parcel." These areas are separated by a fenced-off
    WALKER v. METRO MACHINE CORPORATION                    3
    jogging path and the City of Norfolk owns the easement. There is a
    gravel road across the jogging path that permits access, via gates, to
    both areas during working hours for employees. 
    Id.
     Walker was
    injured on the front parcel of land, just outside the fabrication shop.
    Walker sought benefits under the LHWCA. The ALJ denied his
    claim because he found situs jurisdiction lacking on two independent
    grounds. First, he found that the injury did not occur on an adjoining
    area under this court’s decision in Sidwell v. Express Container Ser-
    vices, Incorporated, 
    71 F.3d 1134
     (4th Cir. 1995). Second, he found
    that the Mid-Atlantic facility was not a covered situs under this
    court’s decision in Brickhouse. The Benefits Review Board did not
    express opinion on the first ground but affirmed on the second.
    Walker petitioned this court for review of the Board’s decision.
    II.
    Whether situs jurisdiction is present in this case is a question of
    law, which we review de novo. See Brickhouse, 
    142 F.3d at 221
     (stat-
    ing that courts independently review the Board’s adjudicatory inter-
    pretations of the LHWCA). The presence of situs jurisdiction under
    the LHWCA is governed by section 903(a), which limits coverage to
    injuries:
    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) (emphasis added).
    In Brickhouse, we applied section 903(a) to facts that were strik-
    ingly similar to those in the instant case. The facility in Brickhouse
    fabricated steel parts for maritime related purposes, such as repair and
    replacement of ship components. See Brickhouse, 
    142 F.3d at 218
    . It
    was contiguous with a navigable waterway and the property had a
    dock for loading barges. 
    Id. at 219
    . The facility "served ships at other
    locations by manufacturing components at its plant and shipping them
    4              WALKER v. METRO MACHINE CORPORATION
    from the plant to the other locations." 
    Id. at 222
    . Most of the supplies
    reached the facility by truck and most of its product left by the same.
    Sometimes, however, especially large components would be shipped
    by barge. 
    Id. at 219
    .
    We concluded that situs jurisdiction was not present under those
    facts. In order to be covered under the catch-all provision of section
    903(a), we reasoned, the purpose of the facility must be its use in con-
    nection with the "nearby navigable waters." 
    Id. at 222
    . The fact that
    the Brickhouse facility was contiguous with a navigable waterway
    was "simply fortuitous." 
    Id.
     The facility did not serve ships at the
    water’s edge, and it could not be said that its raison d’etre was its use
    in connection with the navigable waters contiguous to it. "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 longshore-
    man’s workplace at the water’s edge." 
    Id.
     Finally, we dismissed the
    fact that components were, "on rare occasions," shipped by barge
    from the facility. 
    Id.
     This fact would be relevant "only if barges were
    the ‘customary’ method of shipment and if its employees were long-
    shoremen who customarily loaded the barge at the facility." 
    Id.
    The facts of the instant case are not materially distinguishable from
    those of Brickhouse. The Mid-Atlantic facility is also devoted to fab-
    ricating and repairing parts that then must be shipped to Imperial
    Docks, where they are installed. As in Brickhouse, all that can be said
    of the Mid-Atlantic facility is that it "serve[s] ships at other loca-
    tions." 
    Id.
     While at the Mid-Atlantic facility, the employees’ work
    does not "routinely take them from within the plant, onto adjoining
    water, and back again into the plant." 
    Id.
     As the ALJ found, "[e]xcept
    for the bulkhead, the Mid-Atlantic facility could be duplicated in any
    location." J.A. at 97. And given that only 5 to 20 percent of shipments
    to and from the Mid-Atlantic facility were by barge, it cannot be said
    that "barges were the ‘customary’ method of shipment."1 Brickhouse,
    1
    "Customarily" means "according to custom; usually." Webster’s New
    World Dictionary 349 (2d ed. 1984). "Usual" is defined as "such as is in
    common or ordinary use; such as is most often seen, heard, used, etc.;
    common; ordinary; customary." Id. at 1564.
    WALKER v. METRO MACHINE CORPORATION                     5
    
    142 F.3d at 222
    . Because the instant case is not distinguishable from
    Brickhouse in any material way, we are bound by Brickhouse and
    conclude that situs jurisdiction is absent.
    In an attempt to distinguish Brickhouse, Walker points to various
    factual differences, only a few of which merit comment. Walker first
    argues that this case is distinguishable because the Mid-Atlantic facil-
    ity is entirely devoted to ship repair, whereas only one third of the
    facility in Brickhouse was so devoted. See 
    id. at 218-19
    . But nowhere
    did the Brickhouse court say that the portion of the facility devoted
    to ship work was dispositive, or even relevant for that matter. Rather,
    the critical factor was the relationship of the facility to the nearby
    navigable waters. Here, as in Brickhouse, the relationship is simply
    fortuitous. Walker argues that the relationship was necessary because
    certain parts were so large that they could only be shipped by barge.
    This argument fails because, however important, barges simply were
    not the customary method of shipment.
    Second, Walker argues that in Brickhouse there was no evidence
    that the facility ever repaired, dismantled, or built a ship at its dock.
    See 
    id.
     Here, however, a mite tug boat did undergo repair at the Mid-
    Atlantic facility. See J.A. at 98. The presence of one small tug boat
    is not enough to change the outcome however. The mite tug was not
    docked and repaired until after Walker’s injury, and, in any case, one
    instance of on-site repair after years of operation does not constitute
    the "customary" use of the facility.
    Finally, Walker argues that he actually loaded and unloaded barges
    at the water’s edge. This fact again would only be significant if the
    Mid-Atlantic employees "were longshoremen who customarily loaded
    the barge at the facility." Brickhouse, 
    142 F.3d at 222
    . The ALJ
    found, however, that about 75 percent of Walker’s work was com-
    pleted inside the fabrication shop, J.A. at 98, and the record does not
    indicate that the other employees at Mid-Atlantic engaged in more
    frequent loading and unloading activity. Thus, it is clear that Walker’s
    customary employment was in the fabrication shop and his occasional
    ventures to the water’s edge were the exception rather than the rule.
    That exception is insufficient to confer situs jurisdiction.2
    2
    Because we find situs jurisdiction lacking under Brickhouse, we need
    not consider Metro Machine’s argument that jurisdiction is also absent
    under Sidwell.
    6              WALKER v. METRO MACHINE CORPORATION
    The judgment of the Benefits Review Board is affirmed.
    AFFIRMED
    

Document Info

Docket Number: 02-1059

Citation Numbers: 50 F. App'x 104

Judges: Niemeyer, Luttig, Michael

Filed Date: 10/29/2002

Precedential Status: Non-Precedential

Modified Date: 10/19/2024