BRB No. 93-1033
WELDON M. GREEN )
)
Claimant-Petitioner )
)
v. )
)
C.J. LANGENFELDER & SON, )
INCORPORATED ) DATE ISSUED: 05/09/1996
)
Self-Insured )
Employer-Respondent ) DECISION and ORDER
Appeal of the Decision and Order of George A. Fath, Administrative Law
Judge, United States Department of Labor.
Alan Hilliard Legum, Annapolis, Maryland, for claimant.
William H. Kable and James A. Johnson (Semmes, Bowen & Semmes),
Baltimore, Maryland, for self-insured employer.
Before: HALL, Chief Administrative Appeals Judge, SMITH and BROWN,
Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order (92-LHC-1716) of Administrative Law
Judge George A. Fath rendered on a claim filed pursuant to the provisions of the
Longshore and Harbor Workers' Compensation Act, as amended, 33 U.S.C. §901
et seq. (the Act). We must affirm the findings of fact and conclusions of
law of the administrative law judge which are rational, supported by substantial
evidence, and in accordance with law. O'Keeffe v. Smith, Hinchman & Grylls
Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C. §921(b)(3).
Claimant, a barge loader aboard employer's oyster harvesting dredge the
LARUNO, suffered a work-related injury to his shoulder on August 3, 1990, when he
attempted to fix a conveyor belt that had malfunctioned. This incident caused a
tear in claimant's left rotator cuff which required surgery on September 25, 1990.
Claimant filed a claim for benefits under the Act; additionally, claimant filed an
action against employer under the Jones Act. On April 30, 1991, claimant and
employer entered into a settlement of the Jones Act action for $20,888.
The only issue addressed by the administrative law judge was whether claimant
was a "member of a crew" of a vessel and therefore excluded from coverage under the
Act pursuant to Section 2(3)(G) of the Act, 33 U.S.C. §902(3)(G). In his
Decision and Order, the administrative law judge applied the United States Supreme
Court's decision in McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 26 BRBS
75 (CRT)(1991), and found that claimant was permanently attached to the LARUNO,
that he was involved in the performance of the ship's work, and that, therefore,
claimant had an employment-related connection to the LARUNO. The administrative
law judge then found that the LARUNO, which was on the navigable waters of the
Chesapeake Bay at the time of claimant's injury, was engaged as an instrument of
commerce and was thus "in navigation." Relying on the decision of the United
States Court of Appeals for the Fourth Circuit in Hill v. B.F. Diamond, 311
F.2d 789 (4th Cir. 1962), which listed "dredges" as examples of "vessels" within
the meaning of the Jones Act, the administrative law judge next found that the
LARUNO was a "vessel" in navigation. Accordingly, the administrative law judge
determined that claimant was a "member of a crew" pursuant to Section 2(3)(G) of
the Act, and therefore excluded from coverage under the Act.
Claimant appeals, contending that the administrative law judge erred in
determining that the LARUNO was a vessel in navigation. Specifically, claimant
asserts that since the LARUNO remained moored during its six-month cycle with no
navigational abilities outside of being manually pulled by mooring lines, it should
have been considered a work platform, not a vessel. Additionally, claimant argues
that since the LARUNO was merely a floating platform, and as such was not an
instrument of transportation or commerce, it was not "in navigation." Employer
responds, urging affirmance of the administrative law judge's Decision and Order.
In the alternative, employer argues that even if claimant were not a member of a
crew under Section 2(3)(G) of the Act, he would still be excluded from longshore
coverage pursuant to Section 2(3)(E) of the Act, 33 U.S.C. §902(3)(E), which
excludes aquaculture workers from coverage. See also 20 C.F.R.
§701.301(a)(12)(iii)(E).
Section 2(3)(G) of the Act excludes from coverage "a master or member of a
crew of any vessel." 33 U.S.C. §902(3)(G). In considering whether claimant
is excluded from coverage under the Act as a "member of a crew" of a vessel, or a
seaman,[1] the threshold issue presented by this
appeal is whether the LARUNO is in fact a vessel in navigation. The United States
Supreme Court has held that in determining seaman status, the key is whether the
employee had an employment-related connection to the vessel; specifically, the
Court stated that "[i]t is not necessary that a seaman aid in navigation or
contribute to the transportation of the vessel, but a seaman must be doing the
ship's work."[2] Wilander, 498 U.S. at
355, 26 BRBS at 83 (CRT).
Subsequent Supreme Court decisions have further defined seaman status under
the Jones Act. See Southwest Marine, Inc. v. Gizoni, 502 U.S. 81, 26 BRBS
44 (CRT) (1991) (maritime worker not necessarily precluded from Jones Act coverage
where job title fits within one of enumerated occupations covered by the Longshore
Act). In Chandris, Inc. v. Latsis, U.S. , 115 S.Ct. 2172 (1995),
the Court concluded that the inquiry under the Jones Act is fundamentally status
based: land-based maritime workers do not become seamen because they happen to be
working on board a vessel when they are injured, and seamen do not lose Jones Act
protection when the course of their service to a vessel takes them ashore. In
Latsis, the Court noted that a vessel does not cease to be "in navigation"
merely because it is taken to a drydock or a shipyard to undergo repairs; the
question of whether repairs are sufficiently significant so that the vessel can no
longer be considered to be in navigation is a question of fact for a jury to
decide. Id., 115 S.Ct. at 2193.
The term "vessel in navigation" has yet to be specifically defined by the
Supreme Court. Similarly, since the Court's decision in Wilander, the
United States Court of Appeals for the Fourth Circuit, within whose appellate
jurisdiction this case arises, has not addressed this term. In the instant case,
relying on the Fourth Circuit's decision in Hill, the administrative law
judge found that the LARUNO was a vessel in navigation. In Hill, the Fourth
Circuit stated, in dicta, that "[i]t is well established that many special
purpose craft, such as dredges, floating derricks and barges equipped for special
purposes or operations are vessels within the meaning of the Jones Act."[3] Hill, 311 F.2d at 791 (footnotes
omitted). In support of this statement, the Fourth Circuit cited, inter
alia, the Supreme Court's decision in Senko v. LaCrosse Dredging Corp.,
352 U.S. 370 (1957), wherein the Court held that a handyman assigned to a dredge
could be a member of the dredge's crew, and thus covered under the Jones Act.
Significantly, however, the Court in Senko stated in a footnote that the
question of whether the dredge constituted a "vessel" was not raised in any of the
proceedings below, and thus, was not considered. Id., 352 U.S. at 371 n.1.[4]
In view of more recent decisions of the Supreme Court and United States Courts
of Appeals, the administrative law judge's summary conclusion based solely on
Hill and Senko in determining that employer's dredge is a "vessel in
navigation" cannot be affirmed. The development of case law subsequent to
Hill regarding the jurisdictional status of seamen undermines a conclusory
label that all dredges in all circumstances are vessels in navigation. Recent
cases demonstrate that some floating structures may not be vessels but work
platforms, even though they could also be termed barges or other craft. Thus, in
determining whether crafts were considered vessels in navigation, two federal
district courts within the Fourth Circuit did not rely upon Hill. Taylor
v. Cooper River Constructions, 830 F.Supp. 300 (D.S.C. 1993); Presley v.
Healy Tibbits Constr. Co., 646 F.Supp. 203 (D.Md. 1986). Rather, the courts
looked to the decisions of other United States Courts of Appeals for guidance,
specifically to those of the United States Court of Appeals for the Fifth Circuit,
which has more recently addressed this issue.
In Bernard v. Binnings Constr. Co., Inc., 741 F.2d 824 (5th Cir. 1984),
the plaintiff was injured while working on a raft or "work punt." The Fifth
Circuit affirmed the district court's ruling that the plaintiff was not a seaman,
since he was not injured on a vessel within the meaning of the Jones Act. In so
holding, the court considered three factors used in determining whether a floating
work platform is a vessel: (1) if the structure involved was constructed and used
primarily as a work platform; (2) if the structure was moored or otherwise secured
at the time of the accident; and (3) if the structure was capable of movement
across navigable waters in the course of normal operations, was this transportation
merely incidental to its primary purpose of serving as a work platform. Id.
at 831. The court concluded that the work punt was not designed for navigation,
was not engaged in navigation, and was not actually in navigation at the time of
the injury.[5] Bernard, 741 F.2d at 832.
The Fifth Circuit recently applied the Bernard factors and reversed a lower
court's summary decision, holding that the question of whether a spud barge was a
vessel or a work platform should have been left for a jury to decide. See Ducote
v. Keeler & Co., Inc., 953 F.2d 1000 (5th Cir. 1992).
The Fifth Circuit's approach in Bernard was essentially adopted by the
United States Court of Appeals for the Second Circuit in Tonnesen v. Yonkers
Contracting Co., Inc., No. 95-7439 (2d Cir. April 19, 1996). In
Tonnesen, the court reversed the district court's summary decision that a
stationary barge was not a "vessel in navigation." The court commented that the
factors applied by the Fifth Circuit in Bernard were consistent with the
Supreme Court's insistence on the preservation of a jury trial on reasonably
disputed elements of Jones Act claims. While the Second Circuit determined that
the second and third Bernard factors must be applied, the court disagreed
with regard to the first factor, namely, the Fifth Circuit's focus on the original
purpose for the structure. Rather, the court held that the first prong of the test
should focus on the present purpose of the floating structure. Tonnesen,
slip op. at 7.
In two cases arising within the Fourth Circuit, district courts applied the
factors espoused in Bernard and Ducote. In Taylor, 830
F.Supp. at 300, a spud barge moved from place to place only with the aid of tug
boats and was neither registered nor licensed with the United States Coast Guard.
The district court distinguished the facts in Ducote, noting that in that
case, the job of the spud barge called for it to be moved five miles downriver; in
contrast, once the spud barge in Taylor was brought to the work site, it was
moved by tug boat only several yards for repositioning. Taylor, 830 F.Supp.
at 303 n.8. Moreover, in holding that the spud barge was not a "vessel in
navigation," the district court found that the purpose of the spud barge was not
to transport people or articles of commerce, but rather, to serve as a base for
constructing a bridge. Id. at 304. In its decision, the district court
cited decisions from other circuits which found that barges used as work platforms
were not "vessels in navigation" for purposes of the Jones Act. See,
e.g., DiGiovanni v. Traylor Bros., Inc., 959 F.2d 1119 (1st
Cir.)(en banc), cert. denied, U.S. , 113 S.Ct. 87 (1992);
Hurst v. Pilings & Structures, Inc., 896 F.2d 504 (11th Cir. 1990). In both
DiGiovanni and Hurst, the circuit courts, applying Fifth Circuit law,
looked to the primary purpose of the barges and whether their movement was
incidental to that purpose. See DiGiovanni, 959 F.2d at 1123;
Hurst, 896 F.2d at 506.
In Presley, 646 F.Supp. at 203, a case decided prior to
Wilander, the district court determined that a pile driver injured while
working on a barge had a cause of action under the Longshore Act, as he was not a
seaman under the Jones Act. Citing Bernard, the court found that since the
purpose of the barge was to be used as a situs for construction work and not to
transport people or articles of commerce, the barge was not "in navigation."[6] Id. at 206.
In the instant case, it appears uncontroverted that the function of the LARUNO
was to excavate oyster shells from the bottom of the Chesapeake Bay and load them
onto barges, working in six-month cycles. The record indicates that the LARUNO was
moored to virtually the same position throughout the six-month period. The crew
would be picked up on shore by boat at the beginning of their shift and taken to
the LARUNO, then returned to shore by boat afterwards. See Emp. Ex. 15,
Green Dep. at 38-39. While the LARUNO had a kitchen, shower and locker facilities,
the crew would bring their own meals aboard, and no one slept aboard the LARUNO.
Id. at 41-45. The LARUNO had no engine and no navigational capabilities
except for pull lines; during bad weather, for example, it had to be moved by
tugboat to a safe harbor. See Tr. at 28, 34. When the LARUNO was performing
its excavating function, it was anchored to the bottom of the bay, and whenever its
location needed to be shifted, it was moved along anchor lines. Id. at 33-34. While employer contends that the LARUNO was certified by the United States
Coast Guard, the record contains no evidence as to whether the LARUNO was
certified, registered or licensed with the Coast Guard.[7]
As case law developed in recent years establishes that determining whether a
particular craft is a "vessel in navigation" requires analysis of factors relating
to the characteristics of the craft involved, we vacate the administrative law
judge's conclusion that the LARUNO was a vessel in navigation, and remand the case
for further findings consistent with the approach taken by the Fifth Circuit in
Bernard and Ducote, and recently utilized by the district courts in
Taylor and Presley.[8] On remand,
the administrative law judge must consider the totality of the evidence regarding
the use of the LARUNO prior to claimant's injury, including whether it was moored
or otherwise secured at the time of the injury and whether any transportation
capabilities of the LARUNO were incidental to its primary purpose.
Finally, in its response to claimant's appeal, employer contends that even if
claimant were not a seaman covered under the Jones Act, he would still be excluded
from longshore coverage under Section 2(3)(E) of the Act, 33 U.S.C.
§902(3)(E), since he is an aquaculture worker. The implementing regulations
provide the following definition:
Aquaculture workers, meaning those employed by commercial enterprises
involved in the controlled cultivation and harvest of aquatic plants and
animals, including cleaning, processing or canning of fish and fish
products, the cultivation and harvesting of shellfish, and the controlled growing
and harvesting of other aquatic species . . .
20 C.F.R. §701.301(a)(12)(iii)(E); see generally Zapata Haynie Corp. v.
Barnard, 933 F.2d 256, 24 BRBS 160 (CRT)(4th Cir. 1991). In his Decision and
Order, the administrative law judge did not address this contention, which was
raised by employer in the proceedings below. On remand, if the administrative law
judge finds that claimant is not excluded from coverage under Section 2(3)(G), he
must address employer's contentions regarding Section 2(3)(E).
Accordingly, the Decision and Order of the administrative law judge is
vacated, and the case is remanded for further findings consistent with this
opinion.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
JAMES F. BROWN
Administrative Appeals Judge
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Footnotes.
1)A "seaman" under the Jones Act is defined as a "member of a
crew" of a vessel as stated in the Act. See McDermott Int'l, Inc. v.
Wilander, 498 U.S. 337, 26 BRBS 75 (CRT)(1991).
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2)The Supreme Court thus adopted the United States Court of
Appeals for the Fifth Circuit's two-part test for seaman status: (1) whether the
employee was permanently assigned to or did a significant portion of his work on
a vessel (or an identifiable fleet of vessels); and (2) whether his duties
contributed to the vessel's function or operation. See Offshore Company v.
Robison, 266 F.2d 769 (5th Cir. 1959).
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3)The structure at issue in Hill was not a dredge. In
that case, the plaintiffs were construction workers injured on a tubular section
destined to become part of a tunnel. The Fourth Circuit ruled that the tunnel
section was not a vessel in navigation within the meaning of the Jones Act.
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4)In a pre-Wilander decision, the Court held that a barge
is a vessel within the meaning of the Act "even when it has no motive power of its
own, since it is a means of transportation." Norton v. Warner Co., 321 U.S.
565, 571 (1944). The Fourth Circuit cited this case in Lewis v. Roland E. Trego
& Sons, 501 F.2d 372, 374 (4th Cir. 1974), wherein the court concluded that an
employee doing a seaman's work on a vessel in navigation, in that case a barge, can
recover for injuries caused by unseaworthiness, although he is not a member of a
crew.
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5)The Fifth Circuit observed that the "term vessel has generally
been defined broadly and, in its traditional sense, refers to structures designed
or utilized for transportation of passengers, cargo or equipment from place to
place across navigable waters." Bernard, 741 F.2d at 828-829.
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6)As this case was decided prior to Wilander, the district
court also found that the injured worker was not a seaman as he did not aid in
navigation. Presley, 646 F.Supp. at 205-206.
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7)It is noted that the LARUNO was larger than a typical barge;
it had multiple decks, a pilot house, navigational lights, and a bunk room.
See Emp. Ex. 1.
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8)The administrative law judge's findings that claimant had a
permanent attachment to the LARUNO and contributed to its mission is unchallenged
on appeal. Under the standard for seaman status established by Wilander,
if the LARUNO is found not to be a "vessel in navigation," claimant would not be
a seaman, or a member of a crew, and thus would be covered by the Longshore
Act.
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NOTE: This is a PUBLISHED LHCA Document.
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