TOPIC 60

Topic  60.2     Longshore Act Extensions--Defense Base Act

Announcement--Possible Gulf War Fire/Lung Cancer Link

            According to the Associated Press, a committee of the Institute of Medicine [a branch of the National Academy of Science, an independent group chartered by Congress to advise the government on scientific matters], states that Gulf War personnel exposed to pollution from the well fires, exhaust and other sources may face an increased lung cancer risk.  More than 600 oil well fires were ignited by Iraqi troops during their retreat from Kuwait in 1991.

Topic  60.2     Longshore Act Extensions--Defense Base Act

Kalama Servs., Inc. v. Director, OWCP., ___U.S. ___, ____ S.Ct. ____, (S.Ct. No. 03-1440), (Cert. denied Oct. 4, 2004).

            Let stand a Second Circuit decision which had found that the Board and ALJ’s award of benefits under the “zone of special danger” doctrine.  Previously it had been determined that injuries to an off-duty employee during foreseeable horseplay in a bar on Johnston Atoll arose out of a zone of special danger created by the isolation of the island and the limited recreational opportunities available there.  Misconduct by the employee during the horseplay was not sufficiently egregious to sever the relationship between his employment and the injury under the zone of special danger doctrine.

Topic  60.2     Longshore Act Extensions--Defense Base Act

Ilaszczat v. Kalama Services, 36 BRBS 78 (2002).

            Whether the "zone of special danger" applied to this Defense Base Act case was the main issue here. The claimant was injured during the time he worked as the manager of the "Self-Help Store" on the Johnston Atoll, a two mile long island located in the South Pacific. The claimant initially sustained a work-related injury to his left leg. Subsequently he sustained an injury to his left hip while engaging in post-work recreational activity. The "recreational" injury is the focus of this litigation. After work, the claimant went for drinks to the "Tiki Bar," where he remained until closing and then went on to the AMVETS where he bought drinks for a group of soldiers. He entered into a $100 wager with a military police officer wherein the claimant bet the officer that the officer could not, in a karate demonstration, "put [his] leg over [the claimant's] head without touching [claimant]." At this point there are two versions as to how the claimant actually injured his hip, but he was taken to the clinic where he stayed for two days, after which he was transferred to Hawaii for hip surgery. While recovering, the claimant received notice from the base military commander that he was expelled from the atoll and was precluded from ever returning. The employer thereafter discharged the claimant based on the fact that the debarment order prohibited his return to Johnston Atoll.

            The ALJ found that the claimant did fall within the "zone of special danger" and that his conduct, although perhaps unauthorized and/or prohibited, was not so egregious as to sever the relationship between his employment and the injury under the doctrine. The employer on appeal challenges this finding and further argues that the ALJ ignored the legal "reasonable recreation" standard, wherein only those incidents in which the claimant's conduct was reasonable are accepted as falling within the "zone of special danger" doctrine.

            The Board found that the ALJ properly applied the "zone of special danger" doctrine here. The Board noted that the ALJ had found that the claimant and the other employees on the atoll had limited choices and opportunities for recreation, and that this is, presumably, the reason why the military authorized the operation of "social clubs" on the atoll. The ALJ had further found that with the existence of clubs serving alcohol to employees, in combination with the employees' lengthy periods of isolation in the middle of the Pacific Ocean, it was clearly foreseeable by both the military authority and the employer that "risky horseplay" or scuffles such as that which occurred, would occur from time to time. As such, he determined that the claimant's conduct was not "so far from his employment" and was not "so thoroughly disconnected from the service of his employer that it would be entirely unreasonable to say that the injuries suffered by him arose out of and in the course of his employment."

            The ALJ also found, assuming arguendo, that while the claimant was engaged in "unauthorized" or prohibited behavior (i.e., assuming that the employer's characterization is accurate and the incident involved wagering and fighting), this fact alone does not necessarily establish that the claimant's behavior was unforeseeable. Specifically, the ALJ found that the incident was "foreseeable, if not foreseen" by the employer and thus the mere fact that fighting was prohibited does not necessarily preclude the claimant's recovery even if fighting constituted grounds for expulsion from the atoll.

            The Board found that the issue as to whether the claimant should be barred of benefits because he was discharge and could not return to pot-injury work due to his own misfeasance became moot since the claimant was never offered any position by the employer post-injury, nor did the employer establish that suitable alternate employment would have been available to the claimant at pre-injury wages, but for, his discharge.

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Topic  60.2.1  Extension Acts--Defense Base Act--Applicability of the LHWCA

Morrissey v. Kiewit-Atkinson-Kenny, 36 BRBS 5 (2002).

            In this jurisdiction case, the claimant argued that he had jurisdiction under the LHWCA either by way of the Outer Continental Shelf Lands Act (OCSLA), the Defense Base Act (DBA), or the LHWCA itself. The Board upheld the ALJ's denial of jurisdiction in this matter. The claimant worked on a major construction project known as the Harbor Clean-up Project undertaken by the Massachusetts Water Resources Authority to build a new sewage treatment plant and a discharge, or outfall, tunnel to serve the Boston metropolitan area. The outfall tunnel is located 400 feet beneath the ocean floor and is to extend over nine miles from Deer Island into the Atlantic Ocean. The claimant worked as a member of a "bull gang," and his duties included maintenance of the rail system, water systems and the tunnel boring machine. He also was required to shovel muck, a substance he described as a cement-like mixture of wet dirt and debris, and assisted with the changing of heads or blades on the tunnel boring machine. When injured, the claimant was working in the outfall tunnel approximately five miles from Deer Island.

            The ALJ found that the claimant's work site was located in bedrock hundreds of feet below any navigable water and thus could not be viewed as being "upon the navigable waters of the United States." Additionally the ALJ found that the claimant was not engaged in maritime employment as his work had no connection to loading and unloading ships, transportation of cargo, repairing or building maritime equipment or the repair, alteration or maintenance of harbor facilities. Further, the ALJ found that the tunnel where the injury occurred was not an enumerated situs and was not used for any maritime activities. The ALJ also rejected claims for coverage under the OCSLA and DBA.

            The Board first rejected coverage under the OCSLA noting that claimant's contentions on appeal pertain to the geographic location of the injury site (more than 3 miles offshore under the seabed), and erroneously disregard the statutory requirement that the claimant's injury must result from explorative and extractive operations involving natural resources.

            Next, the Board rejected coverage under the DBA. The claimant had contended that the oversight provided by the United States District Court to the project is sufficient to bring the claim under the jurisdiction of the DBA. However, the DBA provides benefits under the LHWCA for those workers injured while engaged in employment under contracts with the United States, or an agency thereof, for public work to be performed outside of the continental United States. The Board stated that the ALJ properly found that the DBA does not extend coverage for work on projects that must meet federal specifications, guidelines and statutes, but rather requires that the United States or an agency thereof be a party to the contract.

            Finally the Board rejected coverage directly under the LHWCA. The rock where the tunnel was being drilled rose above the surface of the water at the point where the claimant was injured. The bedrock was at all times dry ground, and there is no assertion that the tunnel itself was used in interstate commerce as a waterway. Thus, the Board found that the injury did not occur on navigable water. As to the claimant's contention that he was injured on a "marine railway," the Board rejected this allegation after examining the definition of "marine railway" and noting that the claimant did not contend that the railway used in the tunnel played any part in removing ships from the water for repair.

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Topic  60.2.2  Extension Acts--Defense Base Act--Claim Must Stem From a "Contract" For "Public Work" Overseas

Morrissey v. Kiewit-Atkinson-Kenny, 36 BRBS 5 ( 2002).

            In this jurisdiction case, the claimant argued that he had jurisdiction under the LHWCA either by way of the Outer Continental Shelf Lands Act (OCSLA), the Defense Base Act (DBA), or the LHWCA itself. The Board upheld the ALJ's denial of jurisdiction in this matter. The claimant worked on a major construction project known as the Harbor Clean-up Project undertaken by the Massachusetts Water Resources Authority to build a new sewage treatment plant and a discharge, or outfall, tunnel to serve the Boston metropolitan area. The outfall tunnel is located 400 feet beneath the ocean floor and is to extend over nine miles from Deer Island into the Atlantic Ocean. The claimant worked as a member of a "bull gang," and his duties included maintenance of the rail system, water systems and the tunnel boring machine. He also was required to shovel muck, a substance he described as a cement-like mixture of wet dirt and debris, and assisted with the changing of heads or blades on the tunnel boring machine. When injured, the claimant was working in the outfall tunnel approximately five miles from Deer Island.

            The ALJ found that the claimant's work site was located in bedrock hundreds of feet below any navigable water and thus could not be viewed as being "upon the navigable waters of the United States." Additionally the ALJ found that the claimant was not engaged in maritime employment as his work had no connection to loading and unloading ships, transportation of cargo, repairing or building maritime equipment or the repair, alteration or maintenance of harbor facilities. Further, the ALJ found that the tunnel where the injury occurred was not an enumerated situs and was not used for any maritime activities. The ALJ also rejected claims for coverage under the OCSLA and DBA.

            The Board first rejected coverage under the OCSLA noting that claimant's contentions on appeal pertain to the geographic location of the injury site (more than 3 miles offshore under the seabed), and erroneously disregard the statutory requirement that the claimant's injury must result from explorative and extractive operations involving natural resources.

            Next, the Board rejected coverage under the DBA. The claimant had contended that the oversight provided by the United States District Court to the project is sufficient to bring the claim under the jurisdiction of the DBA. However, the DBA provides benefits under the LHWCA for those workers injured while engaged in employment under contracts with the United States, or an agency thereof, for public work to be performed outside of the continental United States. The Board stated that the ALJ properly found that the DBA does not extend coverage for work on projects that must meet federal specifications, guidelines and statutes, but rather requires that the United States or an agency thereof be a party to the contract.

            Finally the Board rejected coverage directly under the LHWCA. The rock where the tunnel was being drilled rose above the surface of the water at the point where the claimant was injured. The bedrock was at all times dry ground, and there is no assertion that the tunnel itself was used in interstate commerce as a waterway. Thus, the Board found that the injury did not occur on navigable water. As to the claimant's contention that he was injured on a "marine railway," the Board rejected this allegation after examining the definition of "marine railway" and noting that the claimant did not contend that the railway used in the tunnel played any part in removing ships from the water for repair.

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Topic  60.2.4  Substantive Rights Determined Under Provisions of LHWCA as Incorporated into the DBA

            The third paragraph of this subsection should read as follows:

            In Lee v. The Boeing Co., Inc., 123 F.3d 801 (4^th Cir. 1997), the issue arose as to whether the DBA incorporated Section 3(e) of the LHWCA.  The claimant had suffered major injuries in a car crash while working for Boeing in Saudi Arabia.  Boeing wanted a credit for payments that the claimant was receiving from the Occupational Hazards Branch of the Social Insurance Laws of Saudi Arabia.  The ALJ found that such a credit was appropriate.  Lee v. The Boeing Co., 27 BRBS 597 (ALJ)(1994).  The Board tacitly affirmed by taking no action on the appeal within a year.  The claimant then appealed the holding to the Fourth Circuit which found that it did not have jurisdiction to hear the case and transferred it to the District Court for the District of Maryland.  See  Lee v. The Boeing Co., 7 F. Supp. 2d 617 (D. Md. 1998).

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Topic  60.2.7  Defense Base Act--Course and Scope of Employment, "Zone of Special Danger"

Kalama Servs., Inc. v. Director, OWCP., ___U.S. ___, ____ S.Ct. ____, (S.Ct. No. 03-1440), (Cert. denied Oct. 4, 2004).

            Let stand a Second Circuit decision which had found that the Board and ALJ’s award of benefits under the “zone of special danger” doctrine.  Previously it had been determined that injuries to an off-duty employee during foreseeable horseplay in a bar on Johnston Atoll arose out of a zone of special danger created by the isolation of the island and the limited recreational opportunities available there.  Misconduct by the employee during the horseplay was not sufficiently egregious to sever the relationship between his employment and the injury under the zone of special danger doctrine.

Topic  60.2.7  Extension Acts-Defense Base Act, Course and Scope of Employment, "Zone of Special Danger"

Edmonds v. Al Salam Aircraft Co., Ltd., (Unpublished)(BRB No. 01-0602) (April 5, 2002).

            In this Defense Base Act case the issue was the extent of the "zone of special danger" concept. Claimant was hit by a car while attempting to cross a highway in order to go to the supermarket Saudi Arabia. The ALJ found that claimant, although not injured while performing the duties of his employment, was nevertheless in the "zone of special danger" created by his overseas job. The employer here appealed, arguing first, that driving in Saudi Arabia is no more dangerous than driving in the United States. Second, the employer urged the Board to reconsider the "zone of special danger" doctrine "in light of the 21st Century, since applicability of this doctrine, as exemplified by past case precedent, is premised on an antiquated view of the world outside of the United States."

            After noting Supreme Court jurisprudence on the "zone of special danger" doctrine, the Board declined to address the employer's invitation to reconsider the doctrine "in light of the 21st Century, since the Board's use and application of the ‘zone of special danger' doctrine stems directly from the binding precedent of the Supreme Court's decisions... ." Next the Board noted that the instant case was no one in which the claimant was "so thoroughly disconnected" from work for the employer that it is unreasonable for his injuries to be covered, as the ALJ found that claimant's injuries were related to his living and working conditions in Saudi Arabia. The Board noted that the ALJ had determined that the employer did not provided the claimant with on-base housing, convenient transportation to and from the base, or fresh food at the commissary on the housing compound, and it was reasonable for him to buy food off-base. The ALJ had also found that the claimant was always on call and his hours of work were not consistent; thus it was reasonable for him to drive his own car. Lastly, the ALJ determined, based in part on the claimant's credible testimony and a pamphlet distributed by the employer's predecessor that driving in Saudi Arabia presented hazards not found in the United States.

Topic  60.2.7  Defense Base Act--Course and Scope of Employment, "Zone of Special Danger"

Ilaszczat v. Kalama Services, 36 BRBS 78 (2002).

            Whether the "zone of special danger" applied to this Defense Base Act case was the main issue here. The claimant was injured during the time he worked as the manager of the "Self-Help Store" on the Johnston Atoll, a two mile long island located in the South Pacific. The claimant initially sustained a work-related injury to his left leg. Subsequently he sustained an injury to his left hip while engaging in post-work recreational activity. The "recreational" injury is the focus of this litigation. After work, the claimant went for drinks to the "Tiki Bar," where he remained until closing and then went on to the AMVETS where he bought drinks for a group of soldiers. He entered into a $100 wager with a military police officer wherein the claimant bet the officer that the officer could not, in a karate demonstration, "put [his] leg over [the claimant's] head without touching [claimant]." At this point there are two versions as to how the claimant actually injured his hip, but he was taken to the clinic where he stayed for two days, after which he was transferred to Hawaii for hip surgery. While recovering, the claimant received notice from the base military commander that he was expelled from the atoll and was precluded from ever returning. The employer thereafter discharged the claimant based on the fact that the debarment order prohibited his return to Johnston Atoll.

            The ALJ found that the claimant did fall within the "zone of special danger" and that his conduct, although perhaps unauthorized and/or prohibited, was not so egregious as to sever the relationship between his employment and the injury under the doctrine. The employer on appeal challenges this finding and further argues that the ALJ ignored the legal "reasonable recreation" standard, wherein only those incidents in which the claimant's conduct was reasonable are accepted as falling within the "zone of special danger" doctrine.

            The Board found that the ALJ properly applied the "zone of special danger" doctrine here. The Board noted that the ALJ had found that the claimant and the other employees on the atoll had limited choices and opportunities for recreation, and that this is, presumably, the reason why the military authorized the operation of "social clubs" on the atoll. The ALJ had further found that with the existence of clubs serving alcohol to employees, in combination with the employees' lengthy periods of isolation in the middle of the Pacific Ocean, it was clearly foreseeable by both the military authority and the employer that "risky horseplay" or scuffles such as that which occurred, would occur from time to time. As such, he determined that the claimant's conduct was not "so far from his employment" and was not "so thoroughly disconnected from the service of his employer that it would be entirely unreasonable to say that the injuries suffered by him arose out of and in the course of his employment."

            The ALJ also found, assuming arguendo, that while the claimant was engaged in "unauthorized" or prohibited behavior (i.e., assuming that the employer's characterization is accurate and the incident involved wagering and fighting), this fact alone does not necessarily establish that the claimant's behavior was unforeseeable. Specifically, the ALJ found that the incident was "foreseeable, if not foreseen" by the employer and thus the mere fact that fighting was prohibited does not necessarily preclude the claimant's recovery even if fighting constituted grounds for expulsion from the atoll.

The Board found that the issue as to whether the claimant should be barred of benefits because he was discharge and could not return to pot-injury work due to his own misfeasance became moot since the claimant was never offered any position by the employer post-injury, nor did the employer establish that suitable alternate employment would have been available to the claimant at pre-injury wages, but for, his discharge.

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Topic  60.3.1  Longshore Act Extensions--Outer Continental Shelf Lands Act—Applicability of the LHWCA

Announcement--Offshore Drilling Workers cannot be required to take mandatory periodic medical exams under the ADA         

            BNA (Daily Labor Report No 228, Nov. 29, 2004) reports that offshore drilling rig workers cannot be required to take mandatory period medical examinations to screen for threatening illnesses, according to a September 10, 2004 EEOC informal advisory letter.  The letter, addressed to an inquiring offshore drilling company, states that EEOC does not believe that workers on remote drilling rigs fall within the “public safety exception” of the EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (2000).  According to BNA, the EEOC stated alternatives available to such an employer:  1) completely voluntary medical screenings; 2)  a medical exam before being allowed to work on a platform, provided there is a “reasonable belief that a particular offshore worker has a medical condition that may affect his or her ability to perform job functions or may pose a direct threat; 3) requiring all offshore workers to answer a medical history questionnaire and undergo a medical exam after making a conditional job offer, with follow-ups where appropriate.

Topic  60.3.1  Longshore Act Extensions--Outer Continental Shelf Lands Act—Applicability of the LHWCA

Nase v. Teco Energy, Inc., (Unpublished)(Civ. Act. No: 04-0838 Sec. “R”(5))(E.D. La Dec. 8, 2004).

            This is the consolidated case of two off-shore workers for the alleged exposure to hazardous, toxic and carcinogenic materials (phosphate and drilling muds/chemicals) allegedly resulting in diagnoses of “bronchitis obliterans organizing pneumonia” (BOOP) and non-Hodgkin’s lymphoma.  The workers sued in state court.  One made claims under the general maritime law and the Jones Act, and alternatively, under the LHWCA.  The other alleged that he was a maritime worker entitled to compensation under the LHWCA.  The defendants removed the action to federal court alleging OCSLA jurisdiction, and the plaintiffs are now moving the court to remand the action to state court.

            The district court found that some of the events giving rise to the suit occurred on the outer Continental Shelf.  While acknowledging that district courts have original jurisdiction over actions governed by OCSLA, the court stated that it must determine whether the claims “arise under” federal law.  The court stated that in the absence of a clear statement of law by the Fifth Circuit, it finds that removal under the OCSLA is not proper when maritime law governs the plaintiff’s claim and one of the defendants is from the state of suit, as here.  As to the defendant from the state of suit, the defendants argued that that defendant is immune from the intentional tort claim (that is a part of the litigation) under the LHWCA.  While finding that the defendants are correct with regard to the LHWCA (LCHWA bars recovery for the intentional tort of another person in the same employ.), the court noted that the claimant argued only in the alternative that he had LHWCA coverage.  The primary allegations were under the maritime law, Jones Act and state law.  Because there is a possible cause of action in intentional tort against the in-state defendant that is not barred by either state worker’s compensation, the court found that there was not fraudulent joinder.  Under the rules of joinder, the court allowed the second worker’s claim to remain joined and thus both cases were remanded to state court.

Topic  60.3.1  OCSLA—Applicability of the LHWCA

Lively v. Diamond Offshore Drilling, Inc., (Unpublished)(No. Civ. A. 03-1989)(E.D. La. August 3, 2004).

            At issue here was whether, under the OCSLA, general maritime law or Louisiana law would apply. (Louisiana law prohibits enforcement of an indemnity provision pursuant to the Louisiana Oilfield Anti-Indemnity Act ("LOAIA"). In addressing whether state law would apply as surrogate law, the court reviewed the law of the Fifth Circuit to determine if federal maritime law applied of its own force in this case. Noting that circuit law indicates that a contract to furnish labor to work on special purpose vessels to service oil wells is a maritime contract, the district court concluded that the worker's duties were in furtherance of the vessel's primary purpose and that the agreement was maritime. Thus federal law and not Louisiana law governed.

            The court next held that Section 905(c) and not 905(b) governed since the worker was a non-seaman engaged in drilling operations on the OCS. (As a non-seaman engaged in drilling operations on the OCS, the worker is subject to the exclusive remedy of the LHWCA by virtue of 43 U.S.C. § 1333(b) of the OCSLA, rather than 33 U.S.C. § 901, et seq. When the LHWCA is applicable by virtue of Section 1333(b), the third-party remedy against the vessel owner is governed by Section 905(c). ) Under Section 905(c) "any reciprocal indemnity provision" between the vessel and the employer is enforceable.

Topic  60.3.1  Outer Continental Shelf Lands Act—Applicability of the LHWCA

Desoto v. Pride International, Inc., (Unpublished) (No. Civ. A 03-1868)(E.D. La. March 3, 2004).

            Here a Motion for Summary Judgment was granted to the defendants because the claimant was injured on a fixed platform located within the territorial waters of Mexico, within the Gulf of Mexico. The plaintiff was injured by a falling crate while employed as a crane operator and motorman mechanic aboard a drilling rig. The plaintiff alleged federal question jurisdiction and in an amended complaint relied upon the general maritime law of the United States ("GML") and the OCSLA. The fact that the accident occurred on a fixed platform in Mexican territorial waters was uncontested. Since the Fifth Circuit has previously held that an injury on a fixed platform does not fall within the admiralty and maritime jurisdiction, the district court found that the GML does not support federal question jurisdiction. The court further found that the OCSLA was inapplicable since the OCSLA provides that "the soil and seabed of the outer continental Shelf appertain to the United States and are subject to its jurisdiction, control, and power of disposition." Thus, the claim was outside the scope of the OSCLA. (Cf. Weber v. S.C.Loveland Co. (Weber II), 35 BRBS 75 (2001)(Claimant injured in the port of Kingston, Jamaica, while walking on employer's catwalk on barge, was covered under the LHWCA.)

Topic  60.3.1  Outer Continental Shelf Lands Act—Applicability of the LHWCA

Hebert v. Pride International, (Unpublished) (Civ. No. 03-0804)(E. D. La. March 5, 2004); 2004 U.S. Dist. LEXIS 3436.

            This OCS summary judgment matter dealt with whether a worker was a borrowed employee making his exclusive remedy workers' compensation benefits under the LHWCA. Noting Fifth Circuit case law, the federal district court listed the nine factors a court must consider in making a borrowed employee determination.

Topic  60.3.1  Extension Acts--Outer Continental Shelf Lands Act Applicability

Morrissey v. Kiewit-Atkinson-Kenny, 36  BRBS 5 (2002).

            In this jurisdiction case, the claimant argued that he had jurisdiction under the LHWCA either by way of the Outer Continental Shelf Lands Act (OCSLA), the Defense Base Act (DBA), or the LHWCA itself. The Board upheld the ALJ's denial of jurisdiction in this matter. The claimant worked on a major construction project known as the Harbor Clean-up Project undertaken by the Massachusetts Water Resources Authority to build a new sewage treatment plant and a discharge, or outfall, tunnel to serve the Boston metropolitan area. The outfall tunnel is located 400 feet beneath the ocean floor and is to extend over nine miles from Deer Island into the Atlantic Ocean. The claimant worked as a member of a "bull gang," and his duties included maintenance of the rail system, water systems and the tunnel boring machine. He also was required to shovel muck, a substance he described as a cement-like mixture of wet dirt and debris, and assisted with the changing of heads or blades on the tunnel boring machine. When injured, the claimant was working in the outfall tunnel approximately five miles from Deer Island.

            The ALJ found that the claimant's work site was located in bedrock hundreds of feet below any navigable water and thus could not be viewed as being "upon the navigable waters of the United States." Additionally the ALJ found that the claimant was not engaged in maritime employment as his work had no connection to loading and unloading ships, transportation of cargo, repairing or building maritime equipment or the repair, alteration or maintenance of harbor facilities. Further, the ALJ found that the tunnel where the injury occurred was not an enumerated situs and was not used for any maritime activities. The ALJ also rejected claims for coverage under the OCSLA and DBA.

            The Board first rejected coverage under the OCSLA noting that claimant's contentions on appeal pertain to the geographic location of the injury site (more than 3 miles offshore under the seabed), and erroneously disregard the statutory requirement that the claimant's injury must result from explorative and extractive operations involving natural resources.

            Next, the Board rejected coverage under the DBA. The claimant had contended that the oversight provided by the United States District Court to the project is sufficient to bring the claim under the jurisdiction of the DBA. However, the DBA provides benefits under the LHWCA for those workers injured while engaged in employment under contracts with the United States, or an agency thereof, for public work to be performed outside of the continental United States. The Board stated that the ALJ properly found that the DBA does not extend coverage for work on projects that must meet federal specifications, guidelines and statutes, but rather requires that the United States or an agency thereof be a party to the contract.

            Finally the Board rejected coverage directly under the LHWCA. The rock where the tunnel was being drilled rose above the surface of the water at the point where the claimant was injured. The bedrock was at all times dry ground, and there is no assertion that the tunnel itself was used in interstate commerce as a waterway. Thus, the Board found that the injury did not occur on navigable water. As to the claimant's contention that he was injured on a "marine railway," the Board rejected this allegation after examining the definition of "marine railway" and noting that the claimant did not contend that the railway used in the tunnel played any part in removing ships from the water for repair.

Topic  60.3.1  Outer Continental Shelf Lands Act–Applicability of the LHWCA

Demette v. Falcon Drilling Co., Inc., 280 F.3d 492 (5th Cir. Jan. 16, 2002); en banc pet.denied, 37 Fed. Appx 93 (table)(5th Cir. March 5, 2002); 2002 WL 1022097.

[ED. NOTE: This opinion was substituted for a previous one styled the same and reported at 253 F.3d 840 (5th Cir. 2001).]

            In determining that an OCSLA case was covered by the LHWCA and that the LHWCA did not invalidate an indemnity agreement, the Fifth Circuit, for the first time, specified the "exact contours of the situs test" established by Section 1333 of the OCSLA.

            The Fifth Circuit formulated a specific rule:

The OCSLA applies to all of the following locations:

(1) the subsoil and seabed of the OCS;

(2) any artificial island, installation, or other device if

            (a) it is permanently or temporarily attached to the seabed of the OCS, and

            (b) it has been erected on the seabed of the OCS, and

            (c) its presence on the OCS is to explore for, develop, or produce resources from the OCS;

(3) any artificial island, installation, or other device if

            (a) it is permanently or temporarily attached to the seabed of the OCS, and

            (b) it is not a ship or vessel, and

            (c) its presence on the OCS is to transport resources from the OCS.

Topic   60.3.1 OCSLA–Applicability of the LHWCA

Diamond Offshore Co. v. A & B Builders, Inc., 302 F.3d 531 (5th Cir. 2002).

            This 905(b) summary judgment case concerning whether there has been a breach of an indemnity provision in a contract, has an extensive discussion of "situs" and "status" under the OCSLA. The matter was remanded for supplementation of the record in order for there to be a determination as to if there was a genuine issue of material fact as to whether the repair contractor's employee's injury on an offshore drilling rig qualified as an OCSLA situs so that the contractor could validly contract to indemnify the operator of the rig with respect to the injury. The court noted that because an employee of a contractor repairing an offshore drilling rig was injured on navigable water (qualifying for benefits under the LHWCA) did not preclude the possibility of also qualifying for benefits under the OCSLA. If the worker qualified for benefits directly under the OSCLA, the contractor could validly contract to indemnify the rig operator as to the worker's injury.

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Topic  60.3.2  Longshore Act Extensions--Outer Continental Shelf Lands Act—Coverage—(Situs, Status, “But for” Test)

Nase v. Teco Energy, Inc., (Unpublished)(Civ. Act. No: 04-0838 Sec. “R”(5))(E.D. La Dec. 8, 2004).

            This is the consolidated case of two off-shore workers for the alleged exposure to hazardous, toxic and carcinogenic materials (phosphate and drilling muds/chemicals) allegedly resulting in diagnoses of “bronchitis obliterans organizing pneumonia” (BOOP) and non-Hodgkin’s lymphoma.  The workers sued in state court.  One made claims under the general maritime law and the Jones Act, and alternatively, under the LHWCA.  The other alleged that he was a maritime worker entitled to compensation under the LHWCA.  The defendants removed the action to federal court alleging OCSLA jurisdiction, and the plaintiffs are now moving the court to remand the action to state court.

            The district court found that some of the events giving rise to the suit occurred on the outer Continental Shelf.  While acknowledging that district courts have original jurisdiction over actions governed by OCSLA, the court stated that it must determine whether the claims “arise under” federal law.  The court stated that in the absence of a clear statement of law by the Fifth Circuit, it finds that removal under the OCSLA is not proper when maritime law governs the plaintiff’s claim and one of the defendants is from the state of suit, as here.  As to the defendant from the state of suit, the defendants argued that that defendant is immune from the intentional tort claim (that is a part of the litigation) under the LHWCA.  While finding that the defendants are correct with regard to the LHWCA (LCHWA bars recovery for the intentional tort of another person in the same employ.), the court noted that the claimant argued only in the alternative that he had LHWCA coverage.  The primary allegations were under the maritime law, Jones Act and state law.  Because there is a possible cause of action in intentional tort against the in-state defendant that is not barred by either state worker’s compensation, the court found that there was not fraudulent joinder.  Under the rules of joinder, the court allowed the second worker’s claim to remain joined and thus both cases were remanded to state court.

Topic  60.3.2  Longshore Extension Acts—Outer Continental Shelf Lands Act—Coverage

Kirkpatrick v. B.B.I, Inc., 38 BRBS 27 (2004).

            The Board affirmed the ALJ's finding that the claimant was covered by the OCSLA although the claimant was not directly involved in the physical construction of an offshore platform. The parties had stipulated that the worker's "primary job function was supervising the ordering and transportation of materials necessary to the construction of the Conoco platform complex, upon which he was injured." As the claimant's purpose for being on the platform was to procure supplies necessary to construct the platform, and his injury occurred during the course of his duties, his work satisfies the OCSLA status test.

            The Board also found that Sections 12 and 13 apply to a claimant's notice of injury and claim for compensation due to his injury; these sections do not apply to a carrier seeking a determination that another carrier is responsible for claimant's benefits. The Board stated, "There is, in fact, no statutory provision requiring a carrier seeking reimbursement from another carrier to do so within a specified period."

            Here INA claimed that it relied on Houston General's 12 year acceptance of this claim and, to its detriment, "is now facing a claim for reimbursement approaching three-quarters of a million dollars, without the opportunity to investigate contemporaneously, manage medical treatment, engage in vocational rehabilitation, monitor disability status, etc." The Board rejected this argument "as there was no representation or action of any detrimental reliance, there can be no application of the doctrine of equitable estoppel."

            Further, the Board noted that the doctrine of laches precludes the prosecution of stale claims if the party bringing the action lacks diligence in pursuing the claim and the party asserting the defense has been prejudiced by the same lack of diligence. Additionally the Board noted that because the LHWCA contains specific statutory periods of limitation, the doctrine of laches is not available to defend against the filing of claims there under. "As the claim for reimbursement is related to claimant's claim under the Act by extension of OCSLA, and as the Supreme Court has stated that the doctrine of laches does not apply under the OCSLA, the doctrine of laches does not apply to this case.

            The Board found that neither judicial estoppel or equitable estoppel applied and noted that "jurisdictional estoppel" is a fictitious doctrine.

            The Board vacated the ALJ's ruling that he did not have jurisdiction to address the issue of reimbursement between the two insurance carriers. "Because INA's liability evolved from claimant's active claim for continuing benefits, and because its responsibility for those benefits is based entirely on the provisions of the Act, as extended by the OCSLA, we vacate the [ALJ's] determination that he does not have jurisdiction to address the reimbursement issue, and we remand the case to him…."

Topic  60.3.2  Extension Acts—Outer Continental Shelf Lands Act--Coverage

Ten Taxpayer Citizens Group v. Cape Wind Associates, LLC., 373 F.3d 183 (1st Cir.  2004).

            Here the First Circuit notes that windmills to be erected in Nantucket Sound would be subject to the jurisdiction, control, and power of the United States government, according to the OCSLA and would be a natural resource reserve held by the Federal Government for the public. News reports from New Orleans indicate that there is growing consideration to develop new rigs, as well as abandoned oil rigs, as alternative energy source wind turbines in the Gulf of Mexico.

Topic  60.3.2  OCSLA–Coverage

Diamond Offshore Co. v. A & B Builders, Inc., 302 F.3d 531 (5th Cir. 2002).

            This 905(b) summary judgment case concerning whether there has been a breach of an indemnity provision in a contract, has an extensive discussion of "situs" and "status" under the OCSLA. The matter was remanded for supplementation of the record in order for there to be a determination as to if there was a genuine issue of material fact as to whether the repair contractor's employee's injury on an offshore drilling rig qualified as an OCSLA situs so that the contractor could validly contract to indemnify the operator of the rig with respect to the injury. The court noted that because an employee of a contractor repairing an offshore drilling rig was injured on navigable water (qualifying for benefits under the LHWCA) did not preclude the possibility of also qualifying for benefits under the OCSLA. If the worker qualified for benefits directly under the OSCLA, the contractor could validly contract to indemnify the rig operator as to the worker's injury.

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Topic  60.3.4  OCSLA v. Admiralty v. State Jurisdiction

Lively v. Diamond Offshore Drilling, Inc., (Unpublished)(No. Civ. A. 03-1989)(E.D. La. August 3, 2004).

            At issue here was whether, under the OCSLA, general maritime law or Louisiana law would apply. (Louisiana law prohibits enforcement of an indemnity provision pursuant to the Louisiana Oilfield Anti-Indemnity Act ("LOAIA"). In addressing whether state law would apply as surrogate law, the court reviewed the law of the Fifth Circuit to determine if federal maritime law applied of its own force in this case. Noting that circuit law indicates that a contract to furnish labor to work on special purpose vessels to service oil wells is a maritime contract, the district court concluded that the worker's duties were in furtherance of the vessel's primary purpose and that the agreement was maritime. Thus federal law and not Louisiana law governed.

            The court next held that Section 905(c) and not 905(b) governed since the worker was a non-seaman engaged in drilling operations on the OCS. (As a non-seaman engaged in drilling operations on the OCS, the worker is subject to the exclusive remedy of the LHWCA by virtue of 43 U.S.C. § 1333(b) of the OCSLA, rather than 33 U.S.C. § 901, et seq. When the LHWCA is applicable by virtue of Section 1333(b), the third-party remedy against the vessel owner is governed by Section 905(c). ) Under Section 905(c) "any reciprocal indemnity provision" between the vessel and the employer is enforceable.

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Topic  60.4.1  Nonappropriated Fund Instrumentalities Act–Applicability of the LHWCA

Hargrove v. Coast Guard Exchange System, 37 BRBS 21 (2003).

            Here the Board held that active duty military personnel are excluded from coverage under the Nonappropriated Fund Instrumentalities Act (NFIA).  The claimant, while on active duty in the United States Coast Guard, sustained a low back injury during the course of his part time, off-duty, employment as a sales clerk at the Coast Guard Exchange Mini Mart.

            The claimant had argued that nowhere in the statute are active military personnel in their off-duty hours excluded from the definition of “employee” under the NFIA.  Further, the claimant also argued that the dropping of the word “civilian” from 5 U.S.C. § 8171(a) is indicative of Congressional intent to include military personnel who work for nonappropriated fund instrumentalities in their off-duty hours.  However, the Board found that the deletion of the word “civilian” was not intended to include military personnel within the coverage of NFIA.  Rather, the annotation to Section 8171 states that the word “civilian” was dropped from Section 8171(a) as it was determined to be unnecessary, since “the definition of ‘employee’ in Section 2105 includes only civilians.”  See Annotation to 5 U.S.C.A. § 8171 (West 1986); see also 5 U.S.C. § 2105(a).  The Board also noted that “the implementing regulations of the various branches of the military, as well as the lone-standing position of DOL, explicitly speak to this issue and cannot be ignored.”

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