American Marine Corp. v. Director, Office of Workers Compensation Programs ( 2010 )

FILED
NOT FOR PUBLICATION DEC 20 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
AMERICAN MARINE CORPORATION; No. 09-73328
COMMERCE & INDUSTRY/CHARTIS
INSURANCE, Carrier & Employer, BRB No. 08-0840
Petitioners,
MEMORANDUM *
v.
DIRECTOR, OFFICE OF WORKERS
COMPENSATION PROGRAMS;
UNITED STATES DEPARTMENT OF
LABOR; MATTHEW A. BOWES,
Respondents.
On Petition for Review of an Order of the
Benefits Review Board
Argued and Submitted December 7, 2010
San Francisco, California
Before: COWEN,** TASHIMA, and SILVERMAN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Robert E. Cowen, Senior United States Circuit Judge,
sitting by designation.
American Marine Corporation (“American Marine”) petitions for review of
a decision of the Benefits Review Board (“BRB”) awarding benefits under the
Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901-950(“LHWCA”), to Respondent Matthew Bowes (“Bowes”), who was injured in the
course of his employment as a diver for American Marine. For the reasons set
forth below, we deny the petition.
1. As an initial matter, Bowes argues that we do not have jurisdiction to
hear the petition because the insurance carrier for American Marine named below
has not petitioned for review and, by virtue of its insurance coverage, American
Marine does not have independent standing to contest the BRB’s ruling. We
disagree. Under the LHWCA, “[a]ny person adversely affected or aggrieved by a
final order of the [BRB] may obtain a review of that order in the United States
court of appeals for the circuit in which the injury occurred . . . .”1 33 U.S.C.
§ 921(c). The LHWCA provides that “[e]very employer shall be liable for . . . the
payment to his employees of the compensation payable [under certain sections of
the LHWCA for medical treatment, disability, and death]. 33 U.S.C. § 904(a).
Because American Marine is liable to Bowes under the LHWCA and participated
in the proceedings before both the ALJ and the BRB, it is a “person adversely
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The pertinent events, including Bowes’ injury, occurred in Hawaii.
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affected or aggrieved” by the BRB’s order. We thus have jurisdiction over this
petition pursuant to § 921(c) of the LHWCA.
2. On the merits, American Marine argues that Bowes, as a commercial
diver, is a “member of a crew of [a] vessel” not covered by the LHWCA. 33
U.S.C. § 902(3)(G). “We review legal decisions of the BRB for errors of law de
novo.” Trachsel v. Rogers Terminal & Shipping Corp., 597 F.3d 947, 949 (9th
Cir. 2010). “The BRB must accept the ALJ's findings ‘unless they are contrary to
the law, irrational, or unsupported by substantial evidence.’ We, in turn, review
the BRB for ‘errors of law and for adherence to the statutory standard governing
the [BRB]'s review.’” Haw. Stevedores, Inc. v. Ogawa, 608 F.3d 642, 648 (9th
Cir. 2010) (alteration in the original) (citations omitted).
We are guided by the test established by the Supreme Court in Chandris, Inc.
v. Latsis, 515 U.S. 347 (1995), in determining whether Bowes is covered under the
LHWCA. This test requires that, to be exempt from the LHWCA’s coverage under
§ 902(3)(G), a maritime worker “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.” Id. at 368. Regarding the duration requirement, the Court
noted a “rule of thumb for the ordinary case: A worker who spends less than about
30 percent of his time in the service of a vessel in navigation should not qualify” as
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a member of a vessel’s crew for purposes of the LHWCA. Id. at 371. No reason
has been advanced why the Chandris rule of thumb should not be applied in this
case. Here, applying the Chandris test, the ALJ determined that Bowes spent less
than 30 percent of his time in the service of a vessel (or an identifiable group of
vessels) in navigation. “‘[I]f reasonable persons, applying the proper legal
standard, could differ as to whether the employee was a “member of a crew,” it is a
question for the [finder of fact].’” Id. at 369 (quoting McDermott Int’l, Inc. v.
Wilander, 498 U.S. 337, 356 (1991)). Consequently, the determination of what
duties should be counted as “in the service of a vessel in navigation” for purposes
of applying the 30 percent rule of thumb is a factual question for the ALJ. Here,
the ALJ’s findings are supported by substantial evidence. Accordingly, the
petition for review is
DENIED.
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