Keller Foundation/case Fndn v. Joseph Tracy

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KELLER FOUNDATION/CASE 
FOUNDATION; ACE USA/ESIS,
Petitioners,
v.
JOSEPH TRACY; GLOBAL

No. 11-71703
INTERNATIONAL OFFSHORE LTD.;
LIBERTY MUTUAL INSURANCE OWCP No. 08-0119
COMPANY; DIRECTOR, OFFICE OF
WORKERS’ COMPENSATION
PROGRAMS; U.S. DEPARTMENT OF
LABOR,
Respondents.

JOSEPH TRACY, JR., 
Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS’

COMPENSATION PROGRAMS; U.S. No. 11-71800
DEPARTMENT OF LABOR; GLOBAL OPINION
INTERNATIONAL OFFSHORE LTD.;
LIBERTY MUTUAL INSURANCE CO.;
KELLER FOUNDATION, INC./CASE
FOUNDATION CO.; ACE USA/ESIS,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board,
U.S. Department of Labor
11599
11600 KELLER FOUNDATION v. TRACY
Argued and Submitted
May 9, 2012—Portland, Oregon
Filed September 20, 2012
Before: A. Wallace Tashima, Richard C. Tallman, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta
KELLER FOUNDATION v. TRACY 11603
COUNSEL
Joshua T. Gillelan II (argued), Longshore Claimants’ National
Law Center, Washington, DC; Eric A. Dupree, Dupree Law,
APLC, Coronado, California, for petitioner-appellant Joseph
Tracy.
Robert E. Babcock (argued), Holmes Weddle & Barcott, P.C.,
Lake Oswego, Oregon, for petitioners-appellants Keller Foun-
dation/Case Foundation and ACE USA/ESIS.
James P. Aleccia (argued), Aleccia, Socha & Mitani, Long
Beach, California, for respondents-appellees Global Interna-
tional Offshore Ltd. and Liberty Mutual Insurance Company.
Jonathan P. Rolfe (argued), M. Patricia Smith, Rae Ellen
James, Mark A. Reinhalter, Sean Bajkowski, U.S. Department
of Labor, Office of the Solicitor, Washington, DC, for
respondent-appellee Director, Office of Workers’ Compensa-
tion Programs.
OPINION
IKUTA, Circuit Judge:
Joseph Tracy appeals the Benefits Review Board’s determi-
nation that injuries he incurred in part during his employment
by Global International Offshore Ltd. from 1998 to 2002 were
not covered under the Longshore and Harbor Workers’ Com-
pensation Act (referred to as LHWCA, or the Act).1 Because
1
The LHWCA is administered by the Office of Workers’ Compensation
Programs, which is under the purview of the Department of Labor. See 20
11604 KELLER FOUNDATION v. TRACY
we hold that no portion of Tracy’s employment during this
period satisfied the Act’s status and situs tests, we affirm.
I
The LHWCA provides workers’ compensation coverage
for maritime employees engaged in longshoring and harbor
work and similar operations. The question in this case is
whether Tracy qualified for coverage under the Act during the
period in which he worked for Global, his last employer. This
question is crucial for Global because of the “last employer
rule,” which determines which employer is liable for compen-
sating an employee covered under the Act. Under this rule,
even if the claimant suffered an injury while working for a
prior employer, if a “subsequent injury aggravated, acceler-
ated or combined with claimant’s prior injury, thus resulting
in claimant’s disability,” the subsequent employer is responsi-
ble for the full amount of the compensatory award. Found.
Constructors, Inc. v. Dir., Office of Workers Comp. Pro-
grams, 950 F.2d 621, 624 (9th Cir. 1991) (quoting Kelaita v.
Dir., Office of Workers’ Comp. Programs, 799 F.2d 1308,
1311 (9th Cir. 1986)) (internal quotation marks omitted).
It is undisputed that Tracy was covered by the Act during
his previous employment with Keller Foundation, and that
Tracy’s disability stemmed from cumulative trauma he expe-
rienced during his separate stints with Keller and Global.
Under the last employer rule, then, if Tracy were covered by
the Act while working for Global, Global would be responsi-
ble for paying the full award owed to Tracy under the Act. If
not, then Keller would be responsible.2
C.F.R. § 701.201; 20 C.F.R. § 1.1. The Department of Labor’s Benefits
Review Board (BRB) reviews appeals from the decisions of administrative
law judges that arise under various statutes, including the LHWCA. See
33 U.S.C. § 921(b); 20 C.F.R. § 801.102.
2
Tracy is joined by Keller in this appeal. To avoid confusion, we refer
to appellant as Tracy.
KELLER FOUNDATION v. TRACY 11605
We now briefly review the Act’s history and purposes,
which provide essential insight to the tests we must apply in
determining whether the Act covers Tracy’s employment with
Global.
A
The LHWCA is best understood as a legislative effort to fill
a narrow, albeit troublesome gap between two well-
established remedial schemes for injured workers: the Jones
Act, which covers “seamen,” and state-based workers’ com-
pensation programs, which cover non-maritime, land-based
workers. Although the Jones Act does not explicitly define
“seamen,” the Supreme Court has made clear that this term
refers to employees who are part of a ship’s crew, thus
excluding harbor workers.3 See Chandris, Inc. v. Latsis, 515
U.S. 347, 355-56 (1995). Likewise, the Supreme Court has
held that states cannot extend their workers’ compensation
programs to cover harbor workers, either on their own initia-
tive or under authorization from Congress, due to paramount
federal authority over all matters involving maritime law. See
Washington v. W.C. Dawson & Co. (Dawson’s Case), 264
U.S. 219, 227 (1924); Knickerbocker Ice Co. v. Stewart, 253
U.S. 149, 164 (1920); S. Pac. Co. v. Jensen, 244 U.S. 205,
217 (1917). It was thus left to Congress to fill this remedial
gap by federal statute, which it did in 1927 by passing the
LHWCA. See Act of Mar. 4, 1927, ch. 509, 44 Stat. 1424,
U.S.C. §§ 901-50.
3
Traditional principles of admiralty law ensured that seamen would
receive “maintenance and cure” from their employers when injured, see
The Osceola, 189 U.S. 158, 169 (1903), rights that were later codified and
extended in the Jones Act. See Act of June 5, 1920, ch. 250, 41 Stat. 988
(codified at 46 U.S.C. §§ 30104-05). Because the seamen covered by the
Jones Act preferred their traditional remedies to LHWCA coverage, Con-
gress excepted them from coverage in the original LHWCA. See 1A BENE-
DICT ON ADMIRALTY § 7, at 1-11 (7th rev. ed. 2011) (citing Act of March
4, 1927, ch. 509, 44 Stat. 1424, 33 U.S.C. §§ 901-50).
11606 KELLER FOUNDATION v. TRACY
For nearly five decades after the LHWCA’s enactment,
however, courts struggled to define when an injured worker
was entitled to relief. Initially, the LHWCA provided cover-
age on the basis of a “situs test” alone, allowing recovery for
a work-related injury as long as the injury occurred on “navi-
gable waters” and the employer had at least one employee
(but not necessarily the injured employee) who was engaged
in maritime employment. Ne. Marine Terminal Co. v. Caputo,
432 U.S. 249, 264 (1977) (citing Pa. R.R. Co. v. O’Rourke,
344 U.S. 334, 340-42 (1953)). Thus construed, however, the
situs test often produced arbitrarily restrictive outcomes. See,
e.g., Nacirema Operating Co. v. Johnson, 396 U.S. 212, 224-
25 (1969) (holding that longshoremen killed or injured on a
pier while loading or unloading a ship were not covered under
the Act, but would be if they had been thrown into the water
or were on the deck of the ship when the accident happened).
To address this problem, Congress in 1972 broadened the
situs test, which now provides:
Except as otherwise provided in this section, com-
pensation 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 adjoining pier, wharf, dry
dock, terminal, building way, marine railway, or
other adjoining area customarily used by an
employer in loading, unloading, repairing, disman-
tling, or building a vessel).
33 U.S.C. § 903(a). Effectively, Congress redefined “naviga-
ble waters” to include landward areas where maritime
employees might be working, so they remained covered by
the Act even if they were on the landward side of the pier
when the injury occurred, and to avoid making coverage
dependent on “where the body falls.” Nacirema, 396 U.S. at
224 (1969) (Douglas, J., dissenting).
KELLER FOUNDATION v. TRACY 11607
But this broader situs test, if applied alone, could extend the
LHWCA’s coverage to non-maritime workers who simply
happened to be injured near the water’s edge. Accordingly,
the 1972 amendment included a new “status” test, which
defines the word “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, shipbuilder, and ship-
breaker.” 33 U.S.C. § 902(3). The status test also continues
the Act’s exclusion of seamen, excepting from coverage “a
master or member of a crew of any vessel,” § 902(G), thus
preserving the mutually-exclusive relationship between the
Jones Act and the LHWCA.
With this historical context in mind, we now turn to a brief
discussion of Tracy’s work for Global before analyzing his
claims.
B
Tracy was hired by Global in March 1998 as a barge fore-
man. Although Tracy was assigned to several vessels and
locations during his employment by Global, on appeal he
points to only two assignments where he qualified for cover-
age under the Act: (1) his assignment to the Iroquois, and (2)
his assignment in the ports of Indonesia and Singapore.
Tracy’s assignment to the Iroquois, a pipe-laying derrick
barge, commenced when he was first hired by Global in
March 1998. For the first three weeks of Tracy’s employment,
the Iroquois was floating in a shipyard in Louisiana, and
Tracy was assigned to do repairs, maintenance, and modifica-
tions to the deck to ensure the Iroquois’s seaworthiness and
prepare it for its mission. He also assisted with work on some
other barges during his time in Louisiana, although he was
assigned only to the Iroquois.
After preparations were complete, the Iroquois was towed
from Louisiana to Tuxpan, Mexico. Tracy served as barge
11608 KELLER FOUNDATION v. TRACY
foreman on the Iroquois and was third in command over a
skeleton crew of about 60 people during the voyage, which
took about seven days. When the barge arrived in Mexico,
Tracy first worked in the port, helping to check and load
equipment, doing repairs, and performing general mainte-
nance on the Iroquois until the barge was ready to set out on
its mission of laying pipe off the coast of Del Carmen, Mex-
ico. Once the Iroquois commenced this mission, Tracy over-
saw the barge’s general maintenance. While the Iroquois was
still laying pipe off Del Carmen, Global reassigned Tracy to
the Seminole, a pipe-laying barge located in Malaysia. Tracy
served as the Seminole’s anchor foreman for about four to six
months.
The second assignment on which Tracy relies occurred
after his work on the Seminole. Beginning some time in 1999,
Tracy was periodically assigned to land-based assignments in
the ports of Singapore and a shipyard in Indonesia. These
assignments generally took place during the monsoon season
(from October through March), and were designed to keep
Tracy in Global’s employ even when the barge to which he
was assigned had been temporarily brought into port. This
shore-side work in the ports of Indonesia and Singapore
included organizing a recently-acquired yard and making
major repairs and modifications to equipment. Tracy also per-
formed various other port duties, such as helping to load and
unload trucks, barges, and other vessels to which he was not
assigned.
At some point, Tracy was reassigned to the Seminole, on
which he was working when he suffered a heart attack in
2002 that ended his employment. In February 2003, Tracy
filed a claim for benefits under the Act against Global for his
hearing loss, upper extremity trauma, and heart condition.
Global denied his claim, and Tracy requested a hearing before
an administrative law judge (ALJ).
KELLER FOUNDATION v. TRACY 11609
The ALJ granted two partial summary judgments in Glob-
al’s favor before finally issuing a lengthy order that resolved
the remaining eleven issues in the case. Relevant here, the
ALJ found that Tracy’s disability resulted from cumulative
trauma experienced during both his employment by Keller
and his employment by Global.4 The ALJ held, however, that
Tracy was not covered by the Act when he was working for
Global because none of his assignments satisfied both the sta-
tus and situs tests. The ALJ further rejected Tracy’s argument
that Global should be estopped from denying coverage under
the Act based on the workers’ compensation clause of his
employment contract, finding that Tracy had not made the
required factual showing to support application of estoppel.
The BRB affirmed the ALJ’s decision in all relevant respects.
II
On appeal, Tracy disputes these conclusions, arguing that
his assignments both to the Louisiana shipyard and to the
ports of Indonesia and Singapore satisfied the status and situs
tests.5 We now evaluate these issues in turn.
We review a decision of the BRB “for errors of law and
adherence to the substantial evidence standard, and may
affirm on any basis contained in the record.” Brady-Hamilton
Stevedore Co. v. Dir., Office of Workers’ Comp. Programs,
58 F.3d 419, 421 (9th Cir. 1995) (quoting Cretan v. Bethle-
hem Steel Corp., 1 F.3d 843, 845 (9th Cir. 1993)) (internal
quotation marks omitted). On questions of law, we review the
BRB’s decision de novo and do not give it any special defer-
4
Tracy had previously worked for Keller from July 1996 to November
1997 on a sewer project for the city of San Diego.
5
Tracy also argues that the ALJ and BRB erred in restricting the com-
pensation for his injuries by reference to the maximum rate “applicable”
during 1998. As Tracy acknowledges, this issue is squarely controlled by
Roberts v. Dir., Office of Workers’ Compensation Programs, 625 F.3d
1204 (9th Cir. 2010), which was affirmed by Roberts v. Sea-Land Ser-
vices, Inc., 132 S. Ct. 1350 (2012).
11610 KELLER FOUNDATION v. TRACY
ence. Stevedoring Servs. of Am. v. Price, 382 F.3d 878, 883
(9th Cir. 2004); see also Potomac Elec. Power Co. v. Dir.,
Office of Workers’ Comp. Programs, 449 U.S. 268, 278 n.18
(1980).
A
We first consider Tracy’s arguments relating to his assign-
ment to the Iroquois. As discussed above, the BRB affirmed
the ALJ’s finding that the status requirement of the Act was
not satisfied during the entirety of Tracy’s assignment to the
Iroquois, even when it was in dock in Louisiana. The ALJ had
ruled that Tracy was a seaman (and thus did not satisfy the
Act’s status test) even while working in the Louisiana ship-
yards because he was hired for service on and to the Iroquois
and all of his duties contributed to the function or mission of
that vessel.
On appeal, Tracy does not dispute that he qualified as a
seaman when the Iroquois set out for Mexico and while it was
laying pipe off the Mexican shore because he was a member
of the crew. Nor does he contest that the Iroquois was a vessel
in navigation, even during the time it was in drydock. See
Chandris, 515 U.S. at 373-74. Rather, he argues that the first
three weeks he was employed by Global while the Iroquois
was being readied, during which time he also assisted with
loading other vessels that were also in the yard, should be
viewed as a different work assignment in which he had differ-
ent “essential duties.” Cf. id. at 372. Tracy argues that he was
not a seaman during those three weeks and so this period sat-
isfied the status test.
1
In order to analyze Tracy’s argument, we turn to the
Supreme Court’s two-prong test, as set forth in Chandris, for
determining whether an injured claimant is a seaman who is
KELLER FOUNDATION v. TRACY 11611
entitled to coverage under the Jones Act (and therefore
excluded from LHWCA coverage). See id. at 356, 368.
[1] First, the employee’s duties must “contribut[e] to the
function of the vessel or to the accomplishment of its mis-
sion.” Id. at 368 (quoting McDermott Int’l Inc. v. Wilander,
498 U.S. 337, 355 (1991) (alteration in original). “[T]his
threshold requirement is very broad: All who work at sea in
the service of a ship are eligible for seaman status.” Id.
(emphasis omitted) (quoting Wilander, 498 U.S. at 354)
(internal quotation marks omitted).
[2] Second, the purported 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.” Id. The purpose of this requirement is to “separate the
sea-based maritime employees who are entitled to Jones Act
protection from those land-based workers who have only a
transitory or sporadic connection to a vessel in navigation.”
Id. The Court established “an appropriate rule of thumb for
the ordinary case,” namely that “[a] worker who spends less
than about 30 percent of his time in the service of a vessel in
navigation should not qualify as a seaman under the Jones
Act.” Id. at 371. Moreover, the “total circumstances” of an
individual’s employment must be weighed, rather than a mere
“snapshot” of the moment of injury, to ensure that a worker
does not “oscillate back and forth between Jones Act cover-
age and other remedies depending on the activity in which the
worker was engaged while injured.” Id. at 363, 370.
Chandris thus underscored that the Jones Act inquiry is
“fundamentally status-based.” By extension, it reinforces an
earlier holding that the Jones Act “does not cover probable or
expectant seamen but seamen in being.” See Desper v.
Starved Rock Ferry Co., 342 U.S. 187 (1952). In Desper, the
Court considered whether a worker who was injured while
doing repair work on sightseeing boats that had been beached
and were on blocks was a seaman for purposes of the Jones
11612 KELLER FOUNDATION v. TRACY
Act. Id. at 188-89. Even though Desper had an expectation of
being hired to operate the boats in the future, the Court held
that he was not a seaman at the time of his accident because
the boats were not afloat, had neither captain nor crew, and
were undergoing work of the sort typically done by shore-
based workers. Id. at 190. We followed Desper in Heise v.
Fishing Co. of Alaska, holding that the claimant, who had
been hired to help repair and perform maintenance on a fish-
ing vessel while it was laid up for the winter, was not a sea-
man for purposes of the Jones Act. See 79 F.3d 903, 904 (9th
Cir. 1996).
2
[3] We now apply the Chandris framework to Tracy’s
argument that he did not qualify as a seaman while he was
working in the Louisiana shipyard for the first three weeks of
his Iroquois assignment. Tracy easily meets the first “essen-
tial requirement” of seaman status: that the employee’s duties
“contribut[e] to the function of the vessel or to the accom-
plishment of its mission.” Chandris, 515 U.S. at 368. Global
hired Tracy to be the barge foreman of the Iroquois, and sub-
stantial evidence supported the ALJ’s finding that his various
duties related to the Iroquois, including during the three-week
period when he was engaged in various repairs, maintenance,
and preparations while the Iroquois was in dry dock, were in
furtherance of accomplishing its mission of laying pipe. Con-
sidering the total circumstances of Tracy’s work in the Louisi-
ana shipyard, the ALJ did not err in determining that his
duties contributed to the function of the Iroquois and the
accomplishment of its mission.
[4] We consider next whether Tracy satisfied the second
prong of the Chandris test, which requires a substantial con-
nection to a vessel in both “duration” and “nature.” Id. Under
the totality of the circumstances in this case, there is no basis
for artificially separating Tracy’s first three weeks of work on
the Iroquois from the rest of his Iroquois assignment. We
KELLER FOUNDATION v. TRACY 11613
therefore conclude that the ALJ did not err in declining to do
so. Tracy was hired as barge foreman of the Iroquois, his
work in the shipyard was in service to the Iroquois, and he set
sail on the Iroquois. In no sense could Tracy be considered a
“land-based worker[ ] who ha[s] only a transitory or sporadic
connection to a vessel in navigation.” Id.
Nor did Tracy come close to “spend[ing] less than about 30
percent of his time in the service of a vessel in navigation.”
Id. at 371. Rather, almost all of his time in the Louisiana ship-
yard, the Gulf of Mexico, the port of Tuxpan, and off the
coast of Del Carmen, was in the service of the Iroquois as its
barge foreman. Although Tracy performed some duties in
connection with other vessels during the three weeks before
the Iroquois set sail, he testified that he was not assigned to
those other vessels, and there was no evidence that the work
he did in connection with any other vessel was substantial in
either nature or duration.
Tracy further argues that during this three-week period he
was merely an expectant sailor, as in Desper and Heise.
Again, we disagree. Tracy was an experienced seaman whose
connection to the Iroquois as barge foreman was established
from the beginning of his employment.
[5] Accordingly, we hold that Tracy was not just an “ex-
pectant” or “probable” seaman, but a “seaman in being” for
the entire time that he was employed as barge foreman of the
Iroquois, which was a vessel in navigation even during the
time it was docked in the Louisiana shipyard. Because Tracy
was a member of a crew of a vessel in navigation, and thus
a seaman for purposes of the Jones Act, he was not an “em-
ployee” as defined by the LHWCA and did not satisfy the sta-
tus test during his assignment to the Iroquois. See 33 U.S.C.
§ 902(3)(G).
11614 KELLER FOUNDATION v. TRACY
B
We next consider Tracy’s arguments relating to his assign-
ment to the ports of Indonesia and Singapore. Tracy claims
that his injury in these foreign ports constituted an injury
“upon the navigable waters of the United States” within the
meaning of the Act, and that the BRB therefore erred in hold-
ing that he did not meet the situs test of the Act. Tracy pre-
sents a three-step argument to support his claim: he asserts
that (1) “navigable waters of the United States” include the
“high seas;” (2) the high seas include “foreign territorial
waters,” and thus (3) § 903(a) makes the land areas adjoining
foreign territorial waters part of the navigable waters of the
United States.6
1
[6] Tracy’s first premise, that the Act applies to the high
seas, is supported by our case law. We have previously
asserted that Congress intended the Act’s coverage to extend
to the high seas. See Saipan Stevedore Co. v. Dir., Office of
Workers’ Comp. Programs, 133 F.3d 717, 723 (9th Cir.
1998). In so stating, Saipan drew on the analysis set forth in
a Second Circuit case, Kollias v. D & G Marine Maintenance,
29 F.3d 67 (2d Cir. 1994). Kollias based its conclusion that
Congress intended the Act to apply to the high seas on three
primary factors: Congress’s goal of providing consistent cov-
6
The Act does not include definitions of the “high seas” or “territorial
waters.” The Supreme Court has explained, however, that the waters
“[n]earest to the nation’s shores are its inland, or internal waters,” and
these inland waters “are subject to the complete sovereignty of the nation,
as much as if they were a part of its land territory.” United States v. Loui-
siana, 394 U.S. 11, 22 (1969). The “territorial sea” of a nation is a belt of
waters “[b]eyond the inland waters, and measured from their seaward
edge,” where “the coastal nation may exercise extensive control but can-
not deny the right of innocent passage to foreign nations.” Id. Finally,
“[o]utside the territorial sea are the high seas, which are international
waters not subject to the dominion of any single nation.” Id. at 23.
KELLER FOUNDATION v. TRACY 11615
erage; a reference to the “high seas” in one section of the Act,
33 U.S.C. § 939(b);7 and the Director’s interpretation that the
Act applied to the high seas. Id. at 73-75.
[7] The second step in Tracy’s syllogism is that the “high
seas” includes foreign territorial waters. This would be an
extension of the law; we have not previously reached such a
conclusion, nor are we aware of any other circuit doing so.8
To support this point, Tracy relies only on our decision in
Howard v. Crystal Cruises, Inc., in which we interpreted the
scope of the Death on the High Seas Act (DOHSA), 46
U.S.C. §§ 30301-08, as reaching to foreign territorial waters.
See 41 F.3d 527, 530 (9th Cir. 1994). DOHSA provides that
“[w]hen the death of an individual is caused by wrongful act
. . . occurring on the high seas beyond 3 nautical miles from
the shore of the United States,” the representative of the dece-
dent may file an action for damages. 46 U.S.C. § 30302. Con-
cluding that there was nothing “inherently absurd with the
notion of an American court applying American law to an
action filed by an American plaintiff against an American
defendant, particularly when the law in question was
expressly designed to cover wrongful deaths occurring out-
side the territorial boundaries of the United States,” we held
that the wife of a cruise passenger who died as a result of an
injury sustained when disembarking from the cruise vessel in
Mexican territorial waters could bring her claims under
DOHSA. Howard, 41 F.3d at 530. Therefore, Tracy con-
cludes, we should likewise hold that an employee who is sta-
7
Section 939(b) provides in part that “[j]udicial proceedings under [the
Act] in respect of any injury or death occurring on the high seas shall be
instituted in the district court within whose territorial jurisdiction is
located the office of the deputy commissioner having jurisdiction in
respect of such injury or death.” 33 U.S.C. § 939(b).
8
But see Weber v. S.C. Loveland Co., 28 Ben. Rev. Bd. Serv. (MB) 321
(1994) (allowing coverage under the Act for a longshoreman, who testi-
fied that 90 to 95 percent of his work occurred within the United States,
who was injured in a Jamaican port while unloading grain from a vessel
that had been loaded in New Orleans.).
11616 KELLER FOUNDATION v. TRACY
tioned in a foreign nation’s inland area is a covered worker
under the Act, so long as the inland area is adjacent to a for-
eign port and thus contiguous to foreign inland waters and
foreign territorial seas.
2
Regardless of the merits of Tracy’s logic, his argument
does not overcome the strong presumption that enactments of
Congress do not apply extraterritorially. See Morrison v. Nat’l
Austl. Bank Ltd., 130 S. Ct. 2869 (2010).
[8] In Morrison, the Supreme Court provided guidance on
how federal courts should determine whether a statute has
extraterritorial application: “unless there is the affirmative
intention of the Congress clearly expressed to give a statute
extraterritorial effect, we must presume it is primarily con-
cerned with domestic conditions.” Id. at 2877 (quoting EEOC
v. Arabian American Oil Co. (Aramco), 499 U.S. 244, 248
(1991)) (internal quotation marks omitted). Morrison thus
rejected the widespread practice among circuit courts of try-
ing “to ‘discern’ whether Congress would have wanted [a fed-
eral] statute to apply” extraterritorially, and it also rejected the
courts’ development of complex tests that were difficult to
apply. Id. at 2878. “Rather than guess anew in each case,”
federal courts must “apply the presumption in all cases, pre-
serving a stable background against which Congress can leg-
islate with predictable effects.” Id. “When a statute gives no
clear indication of an extraterritorial application, it has none.”
Id.
With those principles in mind, Morrison reviewed the tex-
tual evidence of whether Congress intended the principal anti-
fraud provision of the Securities Exchange Act of 1934
(“Exchange Act”), § 10(b), to apply extraterritorially. The
Exchange Act referred generally to “foreign commerce,” 15
U.S.C. § 78c(a)(17), mentioned dissemination of transaction
prices in “foreign countries,” 15 U.S.C. § 78b(2), and con-
KELLER FOUNDATION v. TRACY 11617
ferred limited regulatory power over foreign activity to pre-
vent evasion of the Exchange Act, 15 U.S.C. § 78dd(b). But
these “uncertain indications” were not enough, the Court held,
to overcome the presumption against extraterritoriality. 130 S.
Ct. at 2883. Rather, based on the numerous references to
domestic securities activity throughout the statute, it was clear
that U.S.-based purchase-and-sale transactions are the “object
of the statute’s solicitude.” Id. at 2884.
The Court further noted that § 30(a) of the Exchange Act
did contain a clear statement of extraterritorial effect,9 which
“would be quite superfluous if the rest of the Exchange Act
already applied to transactions on foreign exchanges.” Id. at
2883. And in any event, “when a statute provides for some
extraterritorial application, the presumption against extraterri-
toriality operates to limit that provision to its terms.” Id. That
is, courts must find clear and independent textual support —
rather than relying on mere inference — to justify the nature
and extent of each statutory application abroad.
[9] In applying Morrison’s presumption against extraterri-
toriality to § 903(a) of the LHWCA, we begin with the plain
text of the statute, which limits coverage to injuries that occur
“upon the navigable waters of the United States.” 33 U.S.C.
§ 903(a). There is no indication at all, much less a clear indi-
cation, that Congress meant “navigable waters of the United
States” to include territorial waters of foreign sovereigns.
Moreover, there is no hint that Congress intended the land-
ward reach of the term “navigable waters” to include the “ad-
joining pier, wharf, dry dock, terminal, building way, marine
railway, or other adjoining area” of a foreign nation. As with
9
Section 30(a) makes it unlawful “for any broker or dealer . . . to make
use of the mails or of any means or instrumentality of interstate commerce
for the purpose of effecting on an exchange not within or subject to the
jurisdiction of the United States, any transaction in any security the issuer
of which is . . . within or subject to the jurisdiction of the United States.”
15 U.S.C. § 78dd(a).
11618 KELLER FOUNDATION v. TRACY
the Exchange Act in Morrison, the “object of the statute’s
solicitude” here is fundamentally domestic: Congress passed
the LHWCA to provide workers’ compensation coverage for
those employees who could not be covered by the Jones Act
or state workers’ compensation schemes.
Tracy nonetheless argues that § 939(b) of the Act, which
refers to the “high seas,” should establish that Congress
intended the Act to apply extraterritorially. This section
directs the Secretary of Labor to establish compensation dis-
tricts that “include the high seas and the areas within the
United States to which this chapter applies,” while also
addressing district court jurisdiction over “injury or death
occurring on the high seas.” 33 U.S.C. § 939(b). We need not
decide here whether this single reference, under Morrison, is
enough to indicate that Congress intended the Act to cover
maritime workers injured on the high seas. Cf. 130 S. Ct. at
2882. Either way, the provision does not address, and there-
fore cannot overcome, the presumption that the Act does not
apply to foreign territorial water or a foreign sovereign’s
lands. See id. at 2883 (“[W]hen a statute provides for some
extraterritorial application, the presumption against extraterri-
toriality operates to limit that provision to its terms.”).
For similar reasons, Tracy’s reliance on Saipan is mis-
placed. A determination that the Act applies to the high seas,
where no single nation is sovereign, cannot compel the con-
clusion that Congress also intended the Act to apply to the ter-
ritorial sea, internal waters, and adjoining land of other
nations, all areas in which those nations exercise sovereign
control. See Louisiana, 394 U.S. at 22. Nor does Howard help
Tracy, as Howard was interpreting a different act that is extra-
territorial by its very nature, addressing injuries and deaths
that occur in a context Congress would have rightly under-
stood to involve excursions into foreign territorial waters. See
Howard, 41 F.3d at 530 (noting that “the law in question was
expressly designed to cover wrongful deaths occurring out-
side the territorial boundaries of the United States.”).
KELLER FOUNDATION v. TRACY 11619
[10] Finally, we consider the effect of the Director’s sup-
port for Tracy’s interpretation.10 We deem reasonable inter-
pretations of the Director to have “at least some” persuasive
force if the statute is silent or ambiguous with respect to the
specific issue and the Director’s interpretation is based on a
permissible construction of the statute. Metro. Stevedore Co.
v. Rambo, 521 U.S. 121, 136 (1997); see also Skidmore v.
Swift & Co., 323 U.S. 134, 140 (1944); Price v. Stevedoring
Servs. of Am., No. 08-71719, slip op. at 10461-62 (9th Cir.
Sept. 4, 2012) (en banc) (holding that the Director’s litigating
position was not entitled to Chevron deference, but did war-
rant Skidmore respect on certain issues where the “arguments
[were] persuasive” and the “agency’s manual and practice
[had] for some time consistently advanced a reasonable posi-
tion.”). According to the Director, “[i]n the absence of any
express provision in the Act barring its reach to foreign
waters, Longshore coverage should be interpreted . . . to
extend to injuries on foreign territorial waters.” But Morrison
tells us that this is backward: courts must presume that there
is no coverage in foreign territorial waters and in foreign ports
in the absence of a “clear indication” to the contrary. Because
the Director cites no textual evidence of Congress’s clear
intention to authorize the extraterritorial application of the
Act, the Director’s interpretation lacks persuasive force. See
130 S. Ct. at 2887-88.
[11] Accordingly, we hold that foreign territorial waters
and their adjoining ports and shore-based areas are not the
“navigable waters of the United States” as the Act defines that
phrase. See 33 U.S.C. § 903(a). Tracy’s injuries as a worker
in the ports of Indonesia and Singapore thus do not satisfy the
situs test for coverage. By extension, the BRB did not err in
concluding that injuries to a “long-term, contractual, Global
employee who was based overseas” and whose assignments
“commenced and terminated in foreign territories on foreign
10
Although the Director of the Office of Workers’ Compensation Pro-
grams is named as the federal respondent, he supports Tracy’s appeal.
11620 KELLER FOUNDATION v. TRACY
waters” did not occur upon the “navigable waters of the
United States.”
III
Finally, Tracy argues that even if he does not meet the
LHWCA’s coverage criteria, Global should be estopped from
denying coverage because his employment contract provided,
in part, that “[e]mployee is covered for worker’s compensa-
tion benefits, if any, payable under the laws of the Employ-
ee’s country of origin.” Tracy contends that this provision
constitutes Global’s assurance that he would be entitled to
recovery of compensation under the Act. He argues that
Global is bound by this promise and should be estopped from
raising any defenses to the applicability of the Act. The ALJ
and BRB rejected this argument, holding that Tracy had not
made the required showing for equitable estoppel. We agree
and decline to use our equitable powers to contravene the stat-
ute.
Equitable estoppel prevents a party from asserting a strict
legal right after another party has been led to form a reason-
able belief that the right would not be asserted. In this sense,
equitable estoppel functions as a “shield,” see Jablon v.
United States, 657 F.2d 1064, 1068 (9th Cir. 1981). Indeed,
one of many equitable principles observed is that estoppel
does not create new rights, affirmative duties, or liabilities
where none previously existed. See United States v. Ga.-Pac.
Co., 421 F.2d 92, 96 (9th Cir. 1970). For these reasons, as
well as the fact that estoppel effectively bars a party from
asserting a legal right, its application is strictly limited by
equitable considerations and courts must apply it with caution
and restraint. See, e.g., Redman v. U.S. W. Bus. Res., Inc., 153
F.3d 691, 696 (8th Cir. 1998) (noting that equitable estoppel
“is an exception to the rule, and should . . . be used only in
exceptional circumstances” (alteration in original) (internal
quotation omitted)).
KELLER FOUNDATION v. TRACY 11621
In Heckler v. Community Health Services of Crawford
County, 467 U.S. 51 (1984), the Supreme Court set forth the
contours of equitable estoppel as a matter of federal law.
While remarking on the doctrine’s “flexible application,” the
Court maintained that “certain principles are tolerably clear:”
If one person makes a definite misrepresentation of
fact to another person having reason to believe that
the other will rely upon it and the other in reasonable
reliance upon it does an act . . . the first person is not
entitled
(b) to regain property or its value that the other
acquired by the act, if the other in reliance upon the
misrepresentation and before discovery of the truth
has so changed his position that it would be unjust
to deprive him of that which he thus acquired.
Id. at 59 (quoting Restatement (Second) of Torts § 894(1)
(1979)). Since Heckler, the Court has consistently affirmed
the importance of detrimental reliance in estoppel determina-
tions. See CIGNA Corp. v. Amara, 131 S. Ct. 1866, 1881
(2011); Lyng v. Payne, 476 U.S. 926, 935 (1986).
We have previously considered application of equitable
estoppel in the LHWCA context. See Rambo v. Dir., Office of
Workers’ Comp. Programs, 81 F.3d 840 (9th Cir. 1996),
reversed in part on other grounds sub nom. Metro. Stevedore
Corp. v. Rambo, 521 U.S. 121 (1997). In Rambo, which
involved attempted modification of a benefits award under the
Act, we set out four elements that must be shown for equita-
ble estoppel to apply:
“(1) the party to be estopped must know the facts;
(2) he must intend that his conduct shall be acted on
or must so act that the party asserting the estoppel
has a right to believe it is so intended; (3) the latter
11622 KELLER FOUNDATION v. TRACY
must be ignorant of the facts; and (4) he must rely
on the former’s conduct to his injury.”
Id. at 843. We have also considered equitable estoppel in the
context of a time-barred Jones Act claim. See Huseman v. Ici-
cle Seafoods, Inc., 471 F.3d 1116 (9th Cir. 2006). In both of
these cases, the asserted claim of equitable estoppel failed
because there was no showing of detrimental reliance. See
Rambo, 81 F.3d at 843; Huseman, 471 F.3d at 1124.
[12] Bearing these principles of equitable estoppel in mind,
we hold that the ALJ and BRB correctly found that Tracy has
not shown that he is entitled to equitable estoppel. In the first
place, the contract provides only that an “[e]mployee is cov-
ered for workers’ compensation benefits, if any, payable
under the laws of the Employee’s country of origin,” and thus
it does not promise coverage under the Act. This provision
could be referring to remedies under state workers’ compen-
sation laws, the LHWCA, or the Jones Act; indeed, the phrase
“if any” implies that in some cases, no workers’ compensation
benefits are available under the relevant law. We see no evi-
dence that Global represented to Tracy, who was hired as a
barge foreman, that he would be covered by the LHWCA.
[13] What is more, Tracy failed to allege that he reason-
ably relied on this provision. Nor is there any such evidence
in the record. Nothing suggests that Tracy was even aware of
the contractual provision, let alone that he changed his posi-
tion for the worse in reliance on it. For instance, there is no
evidence that Global told Tracy to file a claim specifically
under the Act instead of some other type of claim, and Tracy
himself points out that he also filed for workers’ compensa-
tion with the state of California.11 And unlike Huseman, in
which an expired statute of limitation precluded recovery, see
11
We deny Tracy’s motion to take judicial notice of the contents of the
documents from Tracy’s state workers’ compensation case because they
have no relevance to our decision here.
KELLER FOUNDATION v. TRACY 11623
471 F.3d at 1117, there is no evidence before us that Tracy’s
belief that Global is the responsible employer instead of Kel-
ler has caused him any detriment at all, much less detriment
for which Global should be held responsible.
[14] Tracy argues that he need not show detrimental reli-
ance because “the doctrine on which he relied was ‘a different
kind of estoppel,’ not equitable estoppel but ‘more closely
related to (though still distinct from) promissory estoppel.” He
contends that this species of estoppel is a common feature of
workers’ compensation law: “an employer who has given
assurances that a worker is covered by a compensation law is
estopped to deny such coverage once an injury occurs.” We
reject this argument. First, the state workers’ compensation
cases Tracy cites do not support his claim: in every case, the
state court identified evidence of reliance by the claimant on
the employer’s representation that the claimant was covered
by workers’ compensation.12 Second, we have no authority to
depart from our precedent requiring evidence of detrimental
reliance as a prerequisite to the application of equitable estop-
pel. Tracy has cited no case in which a federal court has done
so. Because estoppel is such a powerful tool, the requirements
of statutes and the ability to assert legal rights should not be
easily set aside. We decline to extend this doctrine, which
both we and the Supreme Court have interpreted and applied
very narrowly, where not one of the essential elements has
been shown and when doing so would defeat the express eli-
gibility requirements of a federal statute. We therefore affirm
12
See, e.g., Hall v. Spurlock, 310 S.W.2d 259, 261 (Ky. 1957)
(“[W]here . . . a workman has been assured by the other party that he was
covered by the provisions of the Workmen’s Compensation Law, estoppel
should be decreed.”); Tri-Union Express v. Workers’ Comp. Appeal Bd.
(Hickle), 703 A.2d 558, 560 (Pa. Commw. Ct. 1997) (“[T]he Claimant
was advised . . . that the Claimant would be covered by Workers’ Com-
pensation Insurance,” and “[t]he Claimant credibl[y] testified that the rep-
resentation that the Claimant would be covered by Workers’
Compensation was a big factor in his decision to sign on with [employ-
er].”).
11624 KELLER FOUNDATION v. TRACY
the BRB’s determination that equitable estoppel does not
apply.
IV
In the LHWCA, Congress set out to provide workers’ com-
pensation for a category of employees who were not covered
by already existing workers’ compensation programs, and
thus the Act’s coverage is restricted by the status and situs
tests. Tracy’s employment by Global from 1998 to 2002 did
not satisfy those tests, so the BRB did not err by holding that
Global was not a responsible employer under the Act.
AFFIRMED.