Walker v. Metro MacHine Corp.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

STEVEN WALKER, 
Petitioner,
v.
METRO MACHINE CORPORATION;  No. 02-1059
OFFICE OF WORKERS’ COMPENSATION
PROGRAMS,
Respondents.

On petition for review of an order of the
Benefits Review Board.
(01-368)

Argued: September 26, 2002

Decided: October 29, 2002

Before NIEMEYER, LUTTIG, and MICHAEL Circuit Judges.

Affirmed by unpublished per curiam opinion.

COUNSEL

ARGUED: Robert Elliott Walsh, RUTTER, WALSH, MILLS &
RUTTER, Norfolk, Virginia for Appellant. F. Nash Bilisoly IV,
VANDEVENTER BLACK, L.L.P., Norfolk, Virginia for Appellee.

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 WALKER v. METRO MACHINE CORPORATION
OPINION

PER CURIAM:

Steven Walker, a shipfitter, was injured at the Mid-Atlantic facility
of Metro Machine Corporation ("Metro Machine"). He sought com-
pensation under the Longshore and Harbor Workers’ Compensation
Act ("LHWCA"), 33 U.S.C. § 901 et seq. The ALJ denied Walker
benefits, finding that the injury did not occur on a situs covered by
the LHWCA, and the Department of Labor Benefits Review Board
affirmed. Because the facts of this case are virtually indistinguishable
from those in Jonathan Corporation v. Brickhouse, 142 F.3d 217 (4th
Cir. 1998), we affirm.

I.

Walker was injured in October 1998, while working for his
employer, Metro Machine, a ship repair company in Norfolk, Vir-
ginia. Walker was employed as a shipfitter. His job required him to
engage in hull and structural work on ships and to construct steel parts
for ships.

Metro Machine has two facilities adjacent to navigable waters: the
Mid-Atlantic facility and the Imperial Docks facility. J.A. at 96.
While Walker occasionally worked at Imperial Docks, he primarily
worked at Mid-Atlantic, J.A. at 98, and he sustained the injury at
issue while working at Mid-Atlantic. The Mid-Atlantic facility abuts
the Elizabeth River and is used for fabricating components for and
repairing pieces of Navy and other ships that are under repair at Impe-
rial Docks, where there are wet and dry docks. Metro Machine
removes parts from the ships at Imperial Docks and ships them, via
truck or barge, to Mid-Atlantic. J.A. at 96. Somewhere between 5 and
20 percent of the material is sent by barge. The Mid-Atlantic facility
has a bulkhead on the river where the barge ties up, but no pier or dry
dock. J.A. at 97.

The Mid-Atlantic facility has two main areas, one which is adja-
cent to the Elizabeth River — the "back parcel" — and one which is
not — the "front parcel." These areas are separated by a fenced-off
 WALKER v. METRO MACHINE CORPORATION 3
jogging path and the City of Norfolk owns the easement. There is a
gravel road across the jogging path that permits access, via gates, to
both areas during working hours for employees. Id. Walker was
injured on the front parcel of land, just outside the fabrication shop.

Walker sought benefits under the LHWCA. The ALJ denied his
claim because he found situs jurisdiction lacking on two independent
grounds. First, he found that the injury did not occur on an adjoining
area under this court’s decision in Sidwell v. Express Container Ser-
vices, Incorporated, 71 F.3d 1134 (4th Cir. 1995). Second, he found
that the Mid-Atlantic facility was not a covered situs under this
court’s decision in Brickhouse. The Benefits Review Board did not
express opinion on the first ground but affirmed on the second.
Walker petitioned this court for review of the Board’s decision.

II.

Whether situs jurisdiction is present in this case is a question of
law, which we review de novo. See Brickhouse, 142 F.3d at 221 (stat-
ing that courts independently review the Board’s adjudicatory inter-
pretations of the LHWCA). The presence of situs jurisdiction under
the LHWCA is governed by section 903(a), which limits coverage to
injuries:

occurring upon the navigable waters of the United States
(including any adjoining pier, wharf, dry dock, terminal,
building way, marine railway, or other adjoining area cus-
tomarily used by an employer in loading, unloading, repair-
ing, dismantling, or building a vessel).

33 U.S.C. § 903(a) (emphasis added).

In Brickhouse, we applied section 903(a) to facts that were strik-
ingly similar to those in the instant case. The facility in Brickhouse
fabricated steel parts for maritime related purposes, such as repair and
replacement of ship components. See Brickhouse, 142 F.3d at 218. It
was contiguous with a navigable waterway and the property had a
dock for loading barges. Id. at 219. The facility "served ships at other
locations by manufacturing components at its plant and shipping them
4 WALKER v. METRO MACHINE CORPORATION
from the plant to the other locations." Id. at 222. Most of the supplies
reached the facility by truck and most of its product left by the same.
Sometimes, however, especially large components would be shipped
by barge. Id. at 219.

We concluded that situs jurisdiction was not present under those
facts. In order to be covered under the catch-all provision of section
903(a), we reasoned, the purpose of the facility must be its use in con-
nection with the "nearby navigable waters." Id. at 222. The fact that
the Brickhouse facility was contiguous with a navigable waterway
was "simply fortuitous." Id. The facility did not serve ships at the
water’s edge, and it could not be said that its raison d’etre was its use
in connection with the navigable waters contiguous to it. "The very
fact that it was necessary for the components to be shipped from the
plant before their installation, whether by ship or not, provides the
fact that insulates the plant from navigable waters and distinguishes
Brickhouse’s work location from that of the traditional longshore-
man’s workplace at the water’s edge." Id. Finally, we dismissed the
fact that components were, "on rare occasions," shipped by barge
from the facility. Id. This fact would be relevant "only if barges were
the ‘customary’ method of shipment and if its employees were long-
shoremen who customarily loaded the barge at the facility." Id.

The facts of the instant case are not materially distinguishable from
those of Brickhouse. The Mid-Atlantic facility is also devoted to fab-
ricating and repairing parts that then must be shipped to Imperial
Docks, where they are installed. As in Brickhouse, all that can be said
of the Mid-Atlantic facility is that it "serve[s] ships at other loca-
tions." Id. While at the Mid-Atlantic facility, the employees’ work
does not "routinely take them from within the plant, onto adjoining
water, and back again into the plant." Id. As the ALJ found, "[e]xcept
for the bulkhead, the Mid-Atlantic facility could be duplicated in any
location." J.A. at 97. And given that only 5 to 20 percent of shipments
to and from the Mid-Atlantic facility were by barge, it cannot be said
that "barges were the ‘customary’ method of shipment."1 Brickhouse,
1
"Customarily" means "according to custom; usually." Webster’s New
World Dictionary 349 (2d ed. 1984). "Usual" is defined as "such as is in
common or ordinary use; such as is most often seen, heard, used, etc.;
common; ordinary; customary." Id. at 1564.
 WALKER v. METRO MACHINE CORPORATION 5
142 F.3d at 222. Because the instant case is not distinguishable from
Brickhouse in any material way, we are bound by Brickhouse and
conclude that situs jurisdiction is absent.

In an attempt to distinguish Brickhouse, Walker points to various
factual differences, only a few of which merit comment. Walker first
argues that this case is distinguishable because the Mid-Atlantic facil-
ity is entirely devoted to ship repair, whereas only one third of the
facility in Brickhouse was so devoted. See id. at 218-19. But nowhere
did the Brickhouse court say that the portion of the facility devoted
to ship work was dispositive, or even relevant for that matter. Rather,
the critical factor was the relationship of the facility to the nearby
navigable waters. Here, as in Brickhouse, the relationship is simply
fortuitous. Walker argues that the relationship was necessary because
certain parts were so large that they could only be shipped by barge.
This argument fails because, however important, barges simply were
not the customary method of shipment.

Second, Walker argues that in Brickhouse there was no evidence
that the facility ever repaired, dismantled, or built a ship at its dock.
See id. Here, however, a mite tug boat did undergo repair at the Mid-
Atlantic facility. See J.A. at 98. The presence of one small tug boat
is not enough to change the outcome however. The mite tug was not
docked and repaired until after Walker’s injury, and, in any case, one
instance of on-site repair after years of operation does not constitute
the "customary" use of the facility.

Finally, Walker argues that he actually loaded and unloaded barges
at the water’s edge. This fact again would only be significant if the
Mid-Atlantic employees "were longshoremen who customarily loaded
the barge at the facility." Brickhouse, 142 F.3d at 222. The ALJ
found, however, that about 75 percent of Walker’s work was com-
pleted inside the fabrication shop, J.A. at 98, and the record does not
indicate that the other employees at Mid-Atlantic engaged in more
frequent loading and unloading activity. Thus, it is clear that Walker’s
customary employment was in the fabrication shop and his occasional
ventures to the water’s edge were the exception rather than the rule.
That exception is insufficient to confer situs jurisdiction.2
2
Because we find situs jurisdiction lacking under Brickhouse, we need
not consider Metro Machine’s argument that jurisdiction is also absent
under Sidwell.
6 WALKER v. METRO MACHINE CORPORATION
The judgment of the Benefits Review Board is affirmed.

AFFIRMED