Bienvenu v. Texaco, Inc

Revised February 17, 1999

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-60625

CARL BIENVENU,

Petitioner,

versus

TEXACO, INC; DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS,
U.S. DEPARTMENT OF LABOR; INSURANCE COMPANY OF NORTH AMERICA,

Respondents.

Petition for Review of an Order of the
Benefits Review Board

January 11, 1999

Before POLITZ, Chief Judge, and JOLLY, HIGGINBOTHAM, DAVIS, JONES,
SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES,
STEWART, PARKER, and DENNIS, Circuit Judges.*

HIGGINBOTHAM and DAVIS, Circuit Judges:

Carl Bienvenu seeks benefits under the Longshore and Harbor

Workers' Compensation Act (LHWCA) for injuries sustained on

navigable waters during the course of his employment. His petition

requires us to enter the unsettled waters of our LHWCA

jurisprudence. In deciding that Bienvenu is entitled to LHWCA

*
Judges King and Duhe’ are recused.
benefits, we right our wayward precedent and chart a smoother

course for future panels to follow.

I.

Bienvenu worked for Texaco, Inc., in the Caillou Island

production field as a pumper specialist. By 1987 he had been

employed by Texaco in this field for about twenty-two years. The

Caillou Island production field is a five-mile by twelve-mile area

located within three miles of the Louisiana coast and contains

approximately 150 to 175 active fixed production platforms.

Bienvenu and his fellow employees lived in a base camp on pilings

over the water. Bienvenu worked seven days on and seven days off,

and on his work days he worked a twelve-hour shift. Bienvenu was

responsible for maintaining and calibrating automated equipment

located on fixed production platforms. Bienvenu had the almost

exclusive use of a vessel, the MISS JACKIE, along with a skipper to

transport him around the field to the platforms where he worked.

The ALJ found that during an average twelve-hour work day, Bienvenu

spent approximately 75% of his time performing his duties while

physically located on a fixed production platform; 16.7% of his

time in transit as a passenger on the MISS JACKIE; and 8.3% of his

time working on equipment on the back of the MISS JACKIE.

Bienvenu was injured twice during the course of his employment

while on board the MISS JACKIE in navigable waters. The first time

was while moving his tool box from the dock to the boat, and the

2
second time was while tying the MISS JACKIE to the dock. These

injuries forced him to stop working.

Bienvenu claimed benefits under the LHWCA. An ALJ denied

Bienvenu relief on the grounds that the LHWCA did not apply to him

since he was not engaged in “maritime employment.” The ALJ read

this Court’s prior decisions to mean that coverage under the Act

was dictated by the “amount of time devoted to specific work

activity by a Claimant." The ALJ ruled that Bienvenu was not a

"maritime employee" because he spent the vast majority of his

working hours on fixed platforms and was only fortuitously on

navigable waters when injured. The extension of the LHWCA to land-

based activities did not apply to Bienvenu since his work was not

an integral or essential part of loading or unloading a vessel.

Bienvenu timely appealed the ALJ’s decision to the Benefits

Review Board ("BRB"). The BRB failed to render a timely decision

and was deemed to have affirmed the ALJ’s ruling. See Omnibus

Consolidated Rescissions and Appropriations Act of 1996, Pub. L.

No. 104-134, 110 Stat. 1321-219. Bienvenu petitioned us for

review. A panel of this court reversed the ALJ’s decision because

Fifth Circuit precedent compelled a conclusion that Bienvenu passed

the status test since he was on navigable waters when injured.

Bienvenu v. Texaco, Inc., 124 F.3d 692, 692-93 (5th Cir.), reh’g en

banc granted, 131 F.3d 1135 (5th Cir. 1997).

II

3
 In 1917, the Supreme Court held that state workers’

compensation systems could not reach longshoremen injured seaward

of the water’s edge. Southern Pac. Co. v. Jensen, 244 U.S. 205

(1917). In response, Congress passed the LHWCA in 1927. See Pub.

L. No. 803, 44 Stat. 1429. Technically, there were five

requirements for coverage under the LHWCA as originally enacted, as

later detailed by the Supreme Court in Director v. Perini North

River Associates, 459 U.S. 297, 306-07 (1983):

(1) The employee could not be a "master or member of a crew of

any vessel, nor any person engaged by the master to load or unload

or repair any small vessel under 18 tons net."

(2) The employee must suffer injury during the course of

employment.

(3) The employee had to be employed by a statutory "employer,"

defined to be "an employer any of whose employees are employed in

maritime employment, in whole or in part, upon the navigable waters

of the United States."

(4) The employee had to meet a situs requirement that injury

occurred upon navigable waters.

(5) No federal coverage unless compensation may not validly be

provided by state law.1

1
"Congress used [this phrase] . . . in a sense consistent with
the delineation of coverage as reaching injuries occurring on
navigable waters." Id. at 309 (quoting Calbeck v. Travelers Ins.
Co., 370 U.S. 114, 126 (1962)). The phrase was deleted in 1972.
See id. at 313-14.

4
 In 1969, the Supreme Court, while recognizing the harshness of

the Jensen line, held that the LHWCA did not extend to injuries

occurring on a pier attached to land. Nacirema Operating Co. v.

Johnson, 396 U.S. 212, 218-20 (1969). The Court stated that the

"invitation to move that line landward must be addressed to

Congress, not to this Court." Id. at 224. Congress acted on this

invitation in 1972 when it amended the LHWCA. See LHWCA Amendments

of 1972, Pub. L. No. 92-576, 86 Stat. 1251. The 1972 Amendments

extended "coverage to more workers by replacing the single-situs

requirement with a two-part situs and status standard." P.C.

Pfeiffer Co. v. Ford, 444 U.S. 69, 73 (1979). The situs test now

reached shoreward to reach 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 customarily used by an employer in loading,

unloading, repairing, dismantling, or building a vessel.)" 33

U.S.C. § 903(a). The status test defined an employee as "any

person engaged in maritime employment, including any longshoreman

or other person engaged in longshoring operations, and any

harborworker including a ship repairman, shipbuilder, and ship-

breaker." Id. § 902(3).

In Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249

(1977), the Supreme Court first expounded on the status test. The

workers in that case were Blundo and Caputo. Blundo was injured

when he fell while checking cargo as it was removed from a

5
container. Caputo moved cargo from the hold of the vessel onto

shore and was hurt when rolling a dolly into a truck. Though the

1972 Act did not expressly state that workers in their positions

were covered, the Court held that both Blundo and Caputo were

entitled to benefits. Blundo was covered because "[o]ne of the

reasons Congress expanded coverage in 1972 was that

containerization permits loading and unloading tasks traditionally

conducted aboard ship to be performed on the land." Pfeiffer, 444

U.S. at 74. Caputo fell under the LHWCA because he spent some of

his time in "indisputably longshoring operations,"Caputo, 432 U.S.

at 273, and Congress had intended "to ensure that a worker who

could have been covered part of the time by the pre-1972 Act would

be completely covered by the 1972 Act." Pfeiffer, 444 U.S. at 75.

In Pfeiffer, the Supreme Court further elaborated on the

difference between the situs and status tests by noting that the

situs test limits the geographic coverage of the LHWCA, while the

status test is an occupational concept that focuses on the nature

of the worker’s activities. Id. at 78. The "crucial factor" in

determining the scope of maritime employment "is the nature of the

activity to which a worker may be assigned." Id. at 82. Though

the 1972 Amendments extend coverage, they do not provide benefits

to all workers in the situs area, such as truck drivers who pick up

goods for further trans-shipment. Id. at 83.

Four years after Pfeiffer, the Supreme Court returned to this

issue in Perini. In that case, a workman, Churchill, was employed

6
in the construction of a sewage treatment plant that extended over

the Hudson River. He was injured on the deck of a cargo barge

where he was supervising operations. The Court found no

congressional intent in the 1972 Amendments to withdraw LHWCA

coverage from workmen covered by the Act before 1972. The Court

held that when a worker is injured on the actual navigable waters

in the course of his employment on these waters, he satisfies the

status requirement, assuming that the other requirements of the

LHWCA are met. 459 U.S. at 324 & n.33. The Court expressed no

opinion on whether LHWCA coverage extends to a worker "injured

while transiently or fortuitously upon actual navigable waters or

to a land-based worker injured on land who then falls into actual

navigable waters." Id. at 324 n.34.

The Perini Court discussed three of its pre-1972 cases to

illustrate the scope of the Act’s coverage before the amendments

were adopted. See id. at 307-12 (discussing Davis v. Department of

Labor, 317 U.S. 249 (1942); Parker v. Motor Boat Sales, 314 U.S.

244 (1941); and Calbeck v. Travelers Ins. Co., 370 U.S. 114

(1962)). Parker is the case most relevant to our decision.2

In Parker, Mr. Armistead, a janitor employed by a retailer of

pleasure craft, was directed to assist a salesman place outboard

2
The employee in Davis was injured while standing on a barge
and dismantling a bridge. In Calbeck, the employee was completing
construction of a vessel afloat on navigable waters. Thus, the job
responsibilities of the employees in those cases required more
frequent work on navigable waters than those of the employee in
Parker.

7
motors on a boat. Mr. Cooper, the salesman, then allowed Mr.

Armistead to accompany him as he demonstrated the motor on the

customer’s boat. During the demonstration run, the vessel capsized

and Armistead was killed. The Court first reviewed the evidence to

determine whether the evidence was sufficient to support the deputy

commissioner’s finding that Armistead was acting within the course

of his employment. The Court found the following portions of the

record pertinent to this inquiry:

that on the morning of the accident Armistead was sent to
the river with specific instructions to help Cooper in
placing the outboard motors on the boat; that there were
no specific instructions as to whether or not Armistead
was to stay out of the boat; that either Armistead or
Cooper was told that Armistead was ‘to go and help’
Cooper; that Cooper, the superior of the two employees,
at least acquiesced in Armistead’s remaining in the boat
to ‘keep a lookout’ for hidden objects in the muddy
water; that Cooper regarded Armistead’s acting as look
out as ‘helpful’; that employees of the respondent would
sometimes make trips in boats for testing purposes, in
furtherance of respondent’s business; and that in one
such instance an employee had taken a boat on a trip of
at least fifty miles in respondent’s behalf.3

314 U.S. at 246.

The Court concluded that, based on the above evidence, the

deputy commissioner and the district court correctly found that

3
According to the Court of Appeals’ opinion in Parker, the
day of Armistead’s accident, as far as the record discloses, was
the only instance when his duties ever brought him into contact
with navigable waters. Motor Boat Sales, Inc. v. Parker, 116 F.2d
789, 792 (4th Cir.), rev’d, 314 U.S. 244 (1941). Unlike the worker
in Green v. Vermilion Corp., 144 F.3d 332 (5th Cir. 1998), Bienvenu
was not engaged in traditional longshoreman duties aboard the
vessel when the injuries occurred.

8
Armistead was covered under the LHWCA. The Court stated that

coverage would not be denied because

habitual performance of other and different duties on
land cannot alter the fact that at the time of the
accident he was riding in a boat on a navigable river,
and it is in connection with that clearly maritime
activity that the award was here made. Moreover, § 2(4)
of the Act, 33 U.S.C.A. § 902(4), expressly provides for
its application to ‘employees (who) are employed . . . in
whole or in part upon the navigable waters of the United
States.

Id. at 247 (footnote and citations omitted) (alterations in

original).

The Perini Court cited with approval Pennsylvania R. Co. v.

O’Rourke, 344 U.S. 334 (1953), which considered whether a railroad

worker injured on navigable water was covered by the LHWCA. The

claimant’s five-man train crew had duties that included work on the

railroad company’s car floats, which moved freight and passengers

to and from the yard by water. At the time of the accident, the

crew was removing boxcars from floats. O’Rourke climbed up on a

boxcar to release a brake and fell. The question presented was

whether O’Rourke could bring a damage action under the Federal

Employers’ Liability Act (FELA) or was relegated to a compensation

remedy under the LHWCA. The Court of Appeals held that the

claimant was not covered under the LHWCA because he was a railroad

worker and was not engaged in maritime employment. O'Rourke v.

Pennsylvania R. Co., 194 F.2d 612, 615 (2d Cir. 1952), rev’d, 344

U.S. 344 (1953).

In reversing the Court of Appeals, the Supreme Court stated:

9
 We are clear, however, that the emphasis on the nature of
respondent’s duties here misses the mark. The statute
applies, by its own terms, to accidents on navigable
waters when the employer has any employees engaged in
maritime service. . . . The Court of Appeals, we think,
is in error in holding that the statute requires as to
the employee, both injury on navigable water and maritime
employment as a ground for coverage by the Compensation
Act. An injured worker’s particular activity at the time
of injury determines of course whether he was injured in
the course of his employment within § 902(2), and whether
he was a member of the crew of the vessel within the
exceptions of §§ 902(3) and 903(a)(1). This explains the
emphasis on the factor of the individual’s job in Parker
v. Motor Boat Sales, Inc. . . . ."

344 U.S. at 340.

The Court had the following to say about Parker.

The result in Parker, as well, is totally inconsistent
with any ‘duties test.’ Armistead, the employee there,
was a janitor with the motor boat company. He had been
ordered to ride in one of the boats during a test trip in
order to keep a lookout for hidden objects. Compensation
under the Harbor Workers Act could not have been paid in
connection with his death if we were to test its
applicability by the nature of his regular work.

Id. at 341 (citation omitted).

In 1985, the Supreme Court considered whether a welder

employed on a platform in Louisiana waters was covered under the

LHWCA. Herb's Welding, Inc. v. Gray, 470 U.S. 414 (1985). The

Court held that because Gray, the welder, was not injured on

navigable waters he could attain coverage only by qualifying for

the 1972 Amendments' expanded coverage for shore side workers. The

court concluded that Gray did not qualify for this expanded

coverage because he was not engaged in "maritime employment." This

employment was limited to longshoring, shipbuilding and ship

10
repairing. Gray’s welding work on stationary platforms did not fit

within this definition. See id. at 424-26.

The Court made clear, however, that this definition of

maritime employment did not apply to workers injured on navigable

waters: "This view of 'maritime employment’ does not preclude

benefits for those whose injury would have been covered before 1972

because it occurred ‘on navigable waters’." Id. at 424 n.10.

The Court also discussed the Court of Appeals' position that

because Gray would be covered while traveling by boat to work on

the platform, a finding of no coverage while Gray was on the

platform created a "curious hole" in coverage.

Gray traveled between platforms by boat and might have
been covered, before or after 1972, had he been injured
while in transit. See Director, OWCP v. Perini North
River Assoc., 459 U.S. at 324, 103 S.Ct. at 651. But see
id., at 324, n. 34, 103 S.Ct. at 651, n. 34. ("We
express no opinion whether such coverage extends to a
worker injured while transiently or fortuitously upon
actual navigable waters."). . . . Any coverage
attributable to the LHWCA itself was de minimis. We also
note in passing a substantial difference between a worker
performing a set of tasks requiring him to be both on and
off navigable waters, and a worker whose job is entirely
land-based but who takes a boat to work.

Id. at 427 n.13.

With this general background, we now turn to the arguments of

the parties in this case.

III.

A.

In light of Bienvenu's injury on navigable waters, Texaco

acknowledges, as it must, that Bienvenu need not establish that he

11
was engaged in maritime employment as that term is used in § 2(3)

of the Act. The Supreme Court's decisions in Perini and Herb's

Welding foreclose this argument. Those cases recognize that the

1972 Amendments were not intended to alter the scope of coverage

for workmen injured on navigable waters. As our discussion above

demonstrates, before 1972, any workman injured in the course of his

employment actually engaged in the performance of his assigned

duties on navigable waters enjoyed coverage under the LHWCA. He

was not required to perform the traditional maritime work described

in § 2(3) of the Act.

Relying on language in Perini, Texaco argues that workers like

Bienvenu who are injured on navigable waters must establish that

they were "required to perform their employment duties on navigable

waters."

Texaco argues that the one hour per day Bienvenu spent on the

deck of the MISS JACKIE, working on compressors and other platform

equipment, could have been performed on the platform had Bienvenu

chosen to do so and therefore that this work does not bring him

within the LHWCA coverage. We disagree with this reading of

Perini. The Perini Court, in discussing the pre-1972 law relative

to coverage under the Act, stated: "It becomes clear from this

discussion that the 1927 Act, as interpreted by Parker, Davis, and

Calbeck, provided coverage to those employees of statutory

‘employers,’ injured while working upon navigable waters in the

course of their employment." 459 U.S. at 311. In the very same

12
paragraph the Court cites with approval the following quote from

Gilmore and Black: "Any worker injured upon navigable waters in the

course of employment was ‘covered’ . . . without any inquiry into

what he was doing (or supposed to be doing) at the time of his

injury." Id. at 311 (citation omitted) (alteration in original).

Immediately following this discussion the Court uses the

language upon which Texaco relies: "As a marine construction worker

required to work upon navigable waters, and injured while

performing his duties on navigable waters, there can be no doubt

that Churchill would have been covered under the 1927 LHWCA." Id.

at 311-12.

We cannot read the above sentence as demanding that a worker

demonstrate that the duties he was performing aboard the vessel

were in response to a direct order from his superior. We believe

that all Perini requires is that the claimant show that he was

injured on navigable waters while in the course of his employment.4

4
Two other passages from Perini buttress this conclusion:

We are unable to find any congressional intent to
withdraw coverage of the LHWCA from those workers injured
on navigable waters in the course of their employment and
who would have been covered by the Act before 1972.

Id. at 315.

There is nothing in these comments or anywhere else
in the legislative reports, to suggest, as Perini claims,
that Congress intended the status language to require
that an employee injured upon the navigable waters in the
course of his employment had to show that his employment
possessed a direct (or substantial) relation to
navigation or commerce in order to be covered.

13
 In this case, the ALJ found that Bienvenu spent one hour out

of a twelve-hour workday, or approximately 8.3% of his work time,

actually performing job responsibilities on navigable waters. From

the record, it is clear that Bienvenu had been performing the same

work from the MISS JACKIE for about eleven years. Surely if Texaco

had some objections to Bienvenu’s working on platform equipment

aboard the MISS JACKIE over this extended period of time it would

have made them known. Under these circumstances, Bienvenu was

entitled to assume that he had the discretion to perform his repair

and maintenance work on production equipment at the location he

deemed most efficient, including on the vessel. Bienvenu was in

the course of his employment when he performed the above-described

work on the MISS JACKIE and Bienvenu is covered under the LHWCA

unless Texaco prevails on its argument that Bienvenu was aboard the

MISS JACKIE fortuitously or transiently and for that reason has no

coverage. We now turn to this argument.

B.

As we discussed above, the Supreme Court in Perini reserved

the question of whether a workman aboard a vessel "transiently or

fortuitously" enjoyed coverage under the LHWCA. The Court in

Herb's Welding reiterated this reservation. 470 U.S. at 427 n.13.

The Director argues that while the Supreme Court reserved this

question in Perini, the cases it cited as representative of the

Id. at 318-19.

14
pre-1972 law on coverage indicate that the Court would reject any

such hole in coverage. While it is not free from doubt, we believe

that the signals from the Supreme Court in Perini and again in

Herb's Welding indicate that the Supreme Court would hold that a

workman who is aboard a vessel simply transiently or fortuitously,

even though technically in the course of his employment, does not

enjoy coverage under the LHWCA. We join the Eleventh Circuit in

reaching this conclusion. See Brockington v. Certified Elec.,

Inc., 903 F.2d 1523, 1528 (11th Cir. 1990); see also Zapata-Haynie

Corp. v. Barnard, 933 F.2d 256, 260 (4th Cir. 1991) (noting that

the plaintiff was "not merely fortuitously over water when his

injury occurred").

We therefore hold that a worker injured in the course of his

employment on navigable waters is engaged in maritime employment

and meets the status test5 only if his presence on the water at the

time of injury was neither transient or fortuitous. The presence,

however, of a worker injured on the water and who performs a "not

insubstantial" amount of his work on navigable waters is neither

transient nor fortuitous. Though we decline to set today the exact

amount of work performance on navigable waters sufficient to

trigger LHWCA coverage, instead leaving that task to the case-by-

case development for which the common law is so well-suited, see

5
See Perini, 459 U.S. at 324 ("[W]hen a worker is injured on
the actual navigable waters in the course of his employment on
those waters, he satisfies the status requirement . . . .").

15
Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067, 1073 (5th Cir.

1986) (en banc) (adopting case-by-case review to determine coverage

under the Jones Act), we will provide some guiding thoughts on the

matter.

First, the threshold amount must be greater than a modicum of

activity in order to preclude coverage to those employees who are

merely commuting from shore to work by boat. Also, the routine

activity of assisting in tying the vessel to the dock and loading

or unloading one’s tools and personal gear onto the vessel do not

count as meaningful job responsibilities. Moreover, we agree with

the Supreme Court in Herb's Welding that there is a substantial

difference between a worker "performing a set of tasks requiring

him to be both on and off navigable waters, and a worker whose job

is entirely land based but who takes a boat to work." 470 U.S. at

427 n.13. The time Bienvenu actually worked on production

equipment aboard the MISS JACKIE constituted 8.3% of his time at

work. This is not an insubstantial amount of Bienvenu's work time

and is sufficient to trigger LHWCA coverage.6

Our conclusion today that the Supreme Court would deny LHWCA

coverage to a worker injured on a vessel that he is aboard

6
Because Bienvenu's work on the production equipment aboard
the MISS JACKIE is sufficient to trigger LHWCA coverage, we do not
consider whether his time aboard the MISS JACKIE being shuttled
from platform to platform should be included in determining whether
he spent more than a modicum of his work time on navigable waters.

16
transiently or fortuitously permits us to clarify our case law on

this subject.7

In Fontenot v. AWI, Inc., 923 F.2d 1127 (5th Cir. 1991), we

held that a worker who spent 40% of his worktime on shore, 30% on

fixed platforms and 30% on oil exploration and production vessels,

was engaged in maritime employment because he "was injured while on

actual navigable waters, in the course of his employment." Id. at

1130. Our holding today is entirely consistent with our holding in

Fontenot given the substantial duties Fontenot had on navigable

waters.

In Randall v. Chevron U.S.A., Inc., 13 F.3d 888 (5th Cir.

1994), the petitioner's husband was killed while attempting to

transfer by swing rope from a fixed platform to a vessel. Mr.

Randall was a mechanic who performed all of his work duties on a

fixed platform and had no assigned duties on navigable waters. He

was simply transported to and from his workstation--a stationary

platform--by boat.

The Randall panel read Fontenot to base coverage under the

LHWCA solely upon Fontenot's injury on navigable waters without

regard to the extent of his duties on navigable waters. It

therefore concluded that Fontenot had decided that workers injured

7
Our decisions in Thibodaux v. Atlantic Richfield Co., 580
F.2d 841 (5th Cir. 1978), and Boudreaux v. American Workover, Inc.,
680 F.2d 1034 (5th Cir. Unit A 1982) (en banc), were decided before
the Supreme Court announced its decision in Director v. Perini and
answered most of the questions confronting us at that time.

17
while transiently or fortuitously upon navigable waters are covered

by the LHWCA. See id. at 897. Because the Randall panel found

itself bound by what it perceived as this holding in Fontenot, the

Randall panel concluded that the claimant was covered by the LHWCA.

This court, sitting en banc, of course is not bound by either

Fontenot or Randall. As our discussion above indicates, our

conclusion that workmen who are aboard vessels transiently or

fortuitously when they sustain injury are not covered by the LHWCA

is inconsistent with Randall's holding. Randall is therefore

overruled.

IV.

Judge DeMoss, in his dissent, argues that we ignored the 1984

Amendments to the LHWCA. We did not deal with the amendments,

codified at 33 U.S.C. § 902(3)(A)-(F), for a reason: They have

nothing to do with this case. The amendments exclude from coverage

under the Act persons engaged in six separate, narrowly defined

types of employment. These include: clerical workers (Section

902(3)(A)); workers at camps, restaurants, or retail outlets

(Section 902(3)(B)); marina workers (Section 902(3)(C)); workers

employed by vendors or suppliers (Section 902(3)(D)); aquaculture

workers (Section 902(3)(E)); and builders or repairers of

recreational vessels (Section 902(3)(F)). If a person who would

otherwise be covered under the LHWCA does the type of work

enumerated by one of these amendments and is covered by a state

workman’s compensation act, he is not covered by the LHWCA. But

18
Bienvenu’s employment as a pumper/gauger does not fit within any of

the job descriptions listed in the amendments.

Both Judge Jones and Judge DeMoss argue in dissent that unless

a worker devotes substantial time to longshore duties (Judge DeMoss

suggests 30%), he should not be covered under the LHWCA. Adoption

of such a rule would create serious problems. First, such a rule

is plainly inconsistent with Perini (worker injured on the

navigable water in the course of his employment satisfies the

status requirement). Indeed, Judge Jones's main point is that

Perini was wrongly decided. Second, imposing such a blanket

requirement would overrun the detailed provisions of the 1984

amendments. The very detailing of specific job descriptions by

Congress belies any speculation that Congress intended by the

amendments any such wholesale withdrawal of compensation coverage

-- recall that the exclusions under the amendments demand coverage

under state workers’ compensation. The dissent is silent about

workers beyond state territorial waters. Such workers to whom

coverage under the LHWCA is not expressly extended by statute (such

as the Outer Continental Shelf Lands Act, 43 U.S.C. §§ 1331 et

seq.) presumably will be left without compensation.

Relatedly, Judge DeMoss argues that our opinion in this case

conflicts with this Court’s recent opinion in Green v. Vermilion

Corp., 144 F.3d. 332 (5th Cir. 1998). In Green, we held that a

worker in a hunting camp was not covered under the LHWCA. The

distinction between the two cases is patent: Green was a "camp"

19
worker expressly excluded from coverage by Section 902 (3)(B);

Bienvenu does not fall within any of Section 902's narrowly defined

exclusions.

Judge DeMoss next takes the position that the Supreme Court’s

conclusion in Herb’s Welding, Inc. v. Gray, 470 U.S. 414, 105 S.

Ct. 1421 (1985), that the oil field welder in that case was not

engaged in maritime employment precludes Bienvenu’s recovery under

the LHWCA. He refuses to acknowledge the distinction between a

worker injured on land and a worker injured on navigable water. The

Court made it crystal clear that its denial of coverage to Gray was

because he fell outside of the 1972 Amendments’ expanded coverage

for shore side workers. The Court expressly held: "This view of

‘maritime employment’ does not preclude benefits for those whose

injury would have been covered before 1972 because it occurred ‘on

navigable waters.’" 470 U.S. at 424 n. 10, 105 S. Ct. at 1428 n.

10.

By arguing that workers injured on navigable water only

qualify for LHWCA coverage if they perform longshore duties, Judges

Jones and DeMoss fail to recognize the long established principle

that persons engaged in work aboard vessels are engaged in maritime

employment. See Gilmore & Black, The Law of Admiralty at 429-30.

That principle underlies the Perini Court’s conclusion that workers

engaged in the course of their employment satisfy the "status"

requirement. 459 U.S. at 311. Imposing such a duties test also

directly conflicts with the Supreme Court's holding in Penn. R. Co.

20
v. O'Rourke, 344 U.S. 334 (1953) (see discussion in text, supra),

which the Court relied on in Perini. Also, the Dissents’ proposed

holding that oilfield work aboard a vessel is not maritime

employment would mean that the hundreds of oilfield workers working

on drilling barges are not maritime employees. In The Offshore Co.

v. Robison, 266 F.2d 769 (5th Cir. 1959), and the hundreds of cases

that followed, we held that such workers qualify as seamen and can

recover under the Jones Act and the General Maritime law. The

Dissenters’ reasoning would lead to the anomalous holding that

oilfield work aboard a vessel is not maritime work if the employee

spends less than 30% of his time performing that work; yet a worker

who performs more than 30% of his work aboard a vessel is a seaman,

the highest form of maritime worker. See Seas Shipping Co., Inc.

v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946)

(stevedore elevated to status of seaman for purposes of suing

shipowner for unseaworthiness).

The assertion that adopting an inquiry for longshoreman

coverage similar to that for seaman status affords a more clear and

litigation-dampening standard is both stunning and perverse. It is

stunning to those familiar with the huge number of cases spawned in

our struggle with that test. It is perverse to place the same

hurdle before an injured worker who claims to be a seaman, with the

uncapped liability system they enjoy, and an injured worker seeking

workers’ compensation as a longshoreman. The "logic" of the

21
Dissents’ equating what is essentially a tort system with a

workers’ compensation scheme turns the fundamental purpose of a no-

liability, limited-damage compensation scheme upside down. Finally,

an en banc court is not the Congress.

For the reasons stated above, the judgments of the BRB and

ALJ are REVERSED and the case is REMANDED to the ALJ for further

proceedings.

22
EDITH H. JONES, Circuit Judge, dissenting:

Even though I must agree with the majority opinion that

we are bound by Perini’s general interpretation of the 1972

amendments to the LHWCA, I disagree with their conclusion that

Bienvenu, an oil pumper who spent his entire career maintaining oil

and gas equipment on production platforms within Louisiana’s three-

mile limit, was not "transiently" injured on board the Miss Jackie.

The majority’s decision to the contrary sets such a low threshold

for LHWCA coverage that it is easy to envision increased litigation

over LHWCA coverage for other land-based workers who are maritime

commuters. Of course, as the Supreme Court said, "there will

always be a boundary to coverage, and there will always be people

who cross it during their employment." Herb’s Welding, Inc. v.

Gray, 470 U.S. 414, 428, 105 S. Ct. 1421, 1429 (1985) (citation

omitted). The true boundary, in my view, should not lie at the

nethermost conceivable description of maritime commuter-workers,

but at the line drawn by Congress’s adoption of a maritime

employment status test in the 1972 amendments to the LHWCA.8 This

leads me respectfully to disagree with the interpretation of the

8
See Longshoremen’s and Harbor Workers’ Compensation Act §
2(3), 33 U.S.C. § 902(3) ("The term ‘employee’ means 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 . . .
.").

23
LHWCA adopted in Perini. Although our lower court may not defy the

High Court’s ruling, it is useful to observe how interpretation of

the statute could be brought more in line with its plain meaning.

Because much light has been shed on this debate by both

the majority and dissenting opinions, I will frame my views

succinctly. First, I accept that Perini insists upon continued

LHWCA coverage, irrespective of the 1972 amendment’s definition of

maritime employment, for any worker "injured while performing his

job upon actual navigable waters." Perini, 459 U.S. at 299, 103 S.

Ct. at 638.9 Although it is a close call, I disagree with the

majority’s conclusion that because Bienvenu voluntarily performed

as much as 8.3% of his work duties on the vessel, i.e. repairing or

maintaining equipment and tools, he was not merely "transiently"

aboard and thus excluded from LHWCA coverage. Perini’s significant

footnote disclaims any intent to rule on whether LHWCA "coverage

extends to a worker injured while transiently or fortuitously upon

actual navigable waters . . . ." 459 U.S. 297, 326 n.34, 103 S.

9
Judge DeMoss’s dissent correctly shows, however, that Perini
and cases on which it relies, such as Parker, should not be relied
upon to the extent that Congress specifically overruled them in the
1984 amendments to the LHWCA. Moreover, while some may argue that
Congress did not expressly overrule Perini in the 1984 LHWCA
amendments, thus implicitly adopting the Perini construction of
LHWCA coverage, this argument must fail in light of the express
status test embodied in the 1972 amendments and retained, with
further restrictions, by the 1984 amendments. Based on the
language of the statute, the 1984 amendments could just as easily
be interpreted as a congressional reaffirmance of a strict status
test for LHWCA coverage, regardless of situs.

24
Ct. 634, 651 n.34 (1983). In Herb’s Welding, the Court reiterates

a likely limit to LHWCA coverage in another footnote which observes

that Gray, a welder on fixed offshore oil and gas platforms

traveled between platforms by boat and might have been
covered, before or after 1972, had he been injured while
in transit. Even if he would have been covered for some
small fraction of his time independent of the Lands Act,
however, he is a far cry from the paradigmatic
longshoreman who walked in and out of coverage during his
workday and spent substantial amounts of his time "on
navigable waters." Any coverage attributable to the
LHWCA itself was de minimis. We also note in passing a
substantial difference between a worker performing a set
of tasks requiring him to be both on and off navigable
waters, and a worker whose job is entirely land-based but
who takes a boat to work.

Herb’s Welding, Inc., 470 U.S. at 427 n.13, 105 S. Ct. at 1429 n.13

(citing Perini, 459 U.S. at 324, 103 S.Ct. at 651). At the least,

"transiently" is closely related to "in transit", and both phrases

are closely related to the description of "a worker whose job is

entirely land-based but who takes a boat to work." Indeed, Gray,

like Bienvenu, ate and slept on a platform in Louisiana waters and

spent 75% of his time working on platforms in state territorial

waters. See Herb’s Welding, Inc., 470 U.S. at 416, 105 S. Ct. at

1423. On the basis of these careful disclaimers, there should be

substantial doubt whether a pumper like Bienvenu who "takes a boat

to work" should be covered by the LHWCA. The majority purports not

to answer this question, but their description of Bienvenu’s "work"

on board the Miss Jackie suffers from two flaws. First, it sets up

a test (a "modicum" of work, "not insubstantial" work) that can be

25
satisfied by artful pleading concerning the waterborne commuter’s

"work" performed en route to land-based jobs.10 Second, it

foreordains that employees like Bienvenu and Gray will continuously

walk in and out of LHWCA coverage throughout the work day. These

problems would be avoided by a holding that Bienvenu was only a

commuter by boat in the course of performing his duties as an oil

field worker. See Brockington v. Certified Elec., Inc., 903 F.2d

1523, 1528 (11th Cir. 1990) ("question of whether an individual is

a maritime employee for purposes of LHWCA coverage is controlled by

analysis of his ‘basic’ employment, rather than the employee’s

particular work at the moment of the accident").

Like the offshore welder Robert Gray, Bienvenu is hardly

engaged in "maritime employment" under either a layman’s conception

of the term or the tighter definition imposed by the LHWCA. And

from a common sense standpoint, it is hard to understand why Gray

should have been covered solely by state workers compensation

insurance, while Bienvenu is permitted also to benefit from the

10
The majority predicts that my position would create as many
problems as the ill-starred Robison test for seaman status. I
hesitated deliberately to engage in similar vague and dire
predictions about their view. But two observations are in order.
First, they invoke the Barrett v. Chevron litigation-based test as
a model for drawing lines among types of coverage in these cases;
we are all thus in the same boat. Second, I believe we are all
dealing with truly marginal cases in which coverage under a state
compensation scheme or LHWCA may be arguable but ought at least to
have some consistent rationale tied to real work "on the waters."

26
federal compensation program.11 The reason for these incongruous

results, I suggest, lies not in the statute written by Congress but

in the Supreme Court’s awkward interpretation of it in Perini.

Faced with 1972 LHWCA amendments that, for the first time,

expressly defined coverage in terms of an employee’s maritime work

status as well as the appropriate situs, the Court held that the

status determination was essentially relevant only to the landward

extension of LHWCA. Congress did not intend, the Court said, to

modify the essentially situs-based test for coverage of those

employed "on navigable waters" who would have been covered by the

Act before 1972.

But the language chosen by Congress reflects no such

bifurcated intent. Even if Perini correctly described Congress’s

legislative intent as expressed in committee reports, such

intentions do not substitute for the plain meaning of the statute.

See Free v. Abbott Lab. (In re Abbott Lab.), 51 F.3d 524, 528 (5th

Cir. 1995) ("We cannot search legislative history for congressional

11
The majority blithely ignore this incongruity, in which two
workers otherwise similarly situated receive different forms of
coverage based solely on the fortuitous location of the accident.
Surely that incongruity is quantitatively worse than that which
they espy in my position, whereby, they claim, offshore oilworkers
may receive either state compensation or Seaman’s benefits. I
disagree that such a consequence will be common. But if it did
occur, it would be based on a principled distinction concerning the
basic nature of the employee’s work and exposure to the risks of
the sea. The majority’s pinched definition of "transient" and
"fortuitous" accidents on the water leads, by contrast, to the type
of capricious result they reach today.

27
intent unless we find the statute unclear or ambiguous."). Since

Perini was decided, the Supreme Court has focused more carefully in

statutory construction cases on the language that Congress chose,

using that language as its basic guide to statutory

interpretation.12 It seems plain to me that the definition of

maritime employment added to the LHWCA in 1972 is not limited to

landward coverage questions but is also a requirement for coverage

of injuries on navigable waters. This interpretation was certainly

foreshadowed in early commentary on the 1972 amendments.13 Further,

12
See City of Chicago v. Environmental Defense Fund, 511 U.S.
328, 337, 114 S. Ct. 1588, 1593 (1994) ("[I]t is the statute, and
not the Committee Report, which is the authoritative expression of
the law . . . ."); Republic of Arg. v. Weltover, Inc., 504 U.S.
607, 618, 112 S. Ct. 2160, 2168 (1992) ("The question, however, is
not what Congress ‘would have wanted’ but what Congress enacted .
. . ."); Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 610
n.4, 111 S. Ct. 2476, 2484 n.4 (1991) ("No matter how clearly its
report purports to do so, a committee of Congress cannot take
language that could only cover ‘flies’ or ‘mosquitoes,’ and tell
the courts that it really covers ‘ducks.’"); Burlington N. R.R. Co.
v. Oklahoma Tax Comm’n, 481 U.S. 454, 461, 107 S. Ct. 1855, 1860
(1987) ("Unless exceptional circumstances dictate otherwise,
‘[w]hen we find the terms of a statute unambiguous, judicial
inquiry is complete.’").
13
See, e.g., Perini, 459 U.S. at 326-28, 103 S. Ct. at 651-53
(Stevens, J., dissenting) ("If we ignore history, and merely
concentrate on the text of the statute, the conclusion is
inescapable that [the LHWCA] merely provides coverage for people
who do the work of longshoremen and harbor workers . . . .");
Charles F. Tucker, Coverage and Procedures Under the Longshoremen’s
and Harbor Workers’ Compensation Act Subsequent to the 1972
Amendments, 55 Tul. L. Rev. 1056, 1060-68, 1088 (1981) ("For a
worker to be covered under the Act, he must not only meet the situs
requirement of section 903(a), but he must also meet the status
test of section 902(3) . . . ."); Roberto L. Corrado, Note,
Director, Office of Workers’ Compensation Programs v. Perini North

28
it is not an absurd construction of the Act to hold that a federal

program to compensate "longshore and harbor workers" should

encompass maritime employment in a traditional sense rather than,

e.g., oil field workers. Finally, this is not an abstractly unfair

construction of the statute, inasmuch as there is no longer any

doubt that workers like Bienvenu are covered by state compensation

schemes.

Thus, under a strictly textual reading of the LHWCA, if

we were not bound by Perini, I would hold that Bienvenu was not

engaged in maritime employment for coverage purposes. Even bound

by Perini, however, it seems to me that Bienvenu was injured

"transiently", as Perini and Herb’s Welding used that term, and

should not receive LHWCA coverage overlapping that provided under

state workers’ compensation. I respectfully dissent.

River Associates: Judicial Dilution of the Longshoremen’s and
Harbor Workers’ Compensation Act’s ‘Status’ Requirement, 33 Cath.
U. L. Rev. 245, 277 (1983) ("The Court’s overly expansive view of
the LHWCA controverts the plain meaning of the Act, and restricts
Congress’ attempt to apply a test of maritime status to all workers
injured on the actual navigable waters of the United States.");
Harold K. Watson, Comment, Broadened Coverage Under the LHWCA, 33
La. L. Rev. 683, 693 (1973) ("Now, in order to recover, the
employee must once again show his [own] status as a maritime
employee before the broadened situs-oriented coverage provision
will inure to his benefit."); see also, e.g., Arthur Larson & Lex
K. Larson, Larson’s Workers’ Compensation Law, §§ 89.27(c), 89.41
(1998) (discussing implications of 1972 amendments and development
of LHWCA coverage in light of Perini) ("[T]he boundary will no
doubt be drawn on a case-by-case basis, rather than on the basis of
some all-purpose general test or principle.").

29
DeMOSS, Circuit Judge, with whom, SMITH, Circuit Judge, joins

dissenting:

With all due respect for my colleagues in the majority, I am

unable to concur in their decision for the following reasons.

I. Chronology of significant events

Any explanation of my disagreements with the majority has to

begin with an overview of the key factual and legal events, which

I find determinative of the legal issues presented in this case.

First, I will briefly reprise the facts giving rise to Bienvenu’s

claims, as either stipulated to by the parties or found by the

administrative law judge.

This case began over eleven years ago. On April 10 and 11,

1987, Bienvenu suffered back sprains which resulted in his having

to stop working for Texaco on July 19, 1987. Soon thereafter, on

September 1, 1987, Bienvenu underwent back surgery. By January 31,

1989, Bienvenu had achieved maximum medical improvement following

his surgery.

Texaco’s workers’ compensation insurance carrier made payments

to Bienvenu pursuant to the Louisiana Workers’ Compensation Law.

During the period from July 19, 1987 to May 29, 1991, Bienvenu

received $261 per week; from May 30, 1991 to July 30, 1992 he

received $522 per week. In addition, all of Bienvenu’s medical
bills were paid by Texaco’s insurance carrier, as required by the

Louisiana Workers’ Compensation Law.

All was as it should have been until December 3, 1990, when

Bienvenu filed a claim for benefits under the federal Longshore and

Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq.

(hereinafter, LHWCA). Almost two years later, on October 14, 1992,

an administrative law judge conducted a hearing regarding

Bienvenu’s LHWCA claim. The decision was handed down after yet

another year of delay, on November 30, 1993. See Bienvenu, No.

92-LHC-2801, slip op. at 4-5, 27 Ben. Rev. Bd. Serv. (MB) 547(ALJ),

550-51 (Dep’t Labor Nov. 30, 1993).

In addition to these factual events, there are two key legal

events that have a significant impact on Bienvenu’s claim. The

first of these is the enactment of amendments to the LHWCA,

effective on September 28, 1984. Longshore and Harbor Workers’

Compensation Act Amendments of 1984, Pub. L. 98-426, sec. 2(a), 98

Stat. 1639, 1639 (codified at 33 U.S.C. § 902(3)(A)-(F)). The

second is the decision by the Supreme Court in Herb’s Welding, Inc.

v. Gray, 470 U.S. 414, 105 S. Ct. 1421 (1985), which was argued on

October 3, 1984, and related to an accident which occurred on July

11, 1975, and therefore was not governed by the 1984 LHWCA

Amendments.

31
 Today, more than eleven years after the injuries occurred,

more than thirteen years after the decision in Herb’s Welding, and

more than fourteen years after the 1984 LHWCA Amendments took

effect, we are still attempting to decide which compensation

statute is applicable to Bienvenu’s injuries. That fact, standing

alone, is a tragic commentary about the ambiguities of our LHWCA

jurisprudence. This ambiguity, and the attendant delay is,

unfortunately, an example of what the United States Congress

intended to prevent by adopting the 1984 LHWCA Amendments.

II. What effect did the 1984 amendments to the LHWCA have on the
question of whether relief should be under state workers’
compensation statutes or the LHWCA?

Amazingly, in Part II of its opinion, the majority reviews the

entire history of the LHWCA from the Supreme Court’s decision in

Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S. Ct. 524 (1917),

right down to the Supreme Court’s 1985 opinion in Herb’s Welding,

yet fails in recounting this historical background to mention once,

much less apply or construe, the 1984 LHWCA Amendments. This

legislation made significant changes in the structure and

applicability of the LHWCA. Most significantly, the 1984 LHWCA

Amendments defined six new categories of employment which were not

included in the definition of the term "person engaged in maritime

employment," if the individuals described therein "are subject to

32
coverage under a State workers’ compensation law." See 33 U.S.C.

§ 902(3).

The express statutory language of § 902(3) specifies that

persons employed to perform certain tasks (described in clauses A,

E, and F) or employed by certain employers (described in clauses B,

C, and D) are not included within the definition of the term

"person engaged in maritime employment" if the individuals

described by clauses (A) through (F) are subject to coverage under

a state workers’ compensation law. Thus, in resolving the question

of whether an injured worker is entitled to state compensation

benefits or to LHWCA compensation benefits, the first inquiry which

must logically be made is whether or not any one or more of clauses

(A) through (F) apply to his employment.************** If so, we must

then ask whether the worker was subject to state workers’

compensation law. If a worker was not covered by any state

compensation statute, then none of clauses (A) through (F) can act

to deny or remove him from coverage under the LHWCA. But if state

workers’ compensation covers the employee, and if any one or more

of the § 902(3) subclauses apply, then the injured worker is not "a

person engaged in maritime employment" and he is therefore not an

**************
No one contends that Bienvenu fits into the
enumerated categories of "any longshoreman or other person engaged
in longshoring operations, and any harbor-worker including a ship
repairman, shipbuilder, and ship-breaker" specified in § 902(3), as
to which there would be no doubt that the LHWCA is the exclusive
compensation regime.

33
"employee" as defined in § 902(3). If he is not an employee, he is

not entitled to compensation benefits under the LHWCA, regardless

of the location, or "situs," of his injury, because the situs test

specified in 33 U.S.C. § 903(a) is applicable only to the

"disability or death of an employee" as defined in the

LHWCA.*************** Consequently, the changes made by the 1984 LHWCA

Amendments constitute clear, deliberate action on the part of

Congress to withdraw LHWCA coverage from those individuals

described in clauses (A) through (F), even in the circumstance that

their injuries occurred upon "navigable waters" in the course of

their employment, and despite the fact that they might have been

covered by LHWCA prior to the enactment of the 1984 LHWCA

Amendments.

The withdrawal of LHWCA coverage on the condition that the

injured worker is "subject to coverage under a State workers’

***************
The statute provides:

Except as otherwise provided in this section,
compensation 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,
dismantling, or building a vessel).

33 U.S.C. § 903(a). This limitation on LHWCA coverage is commonly
known as the "situs" requirement.

34
compensation law" is a significant change from prior law. The 1984

LWHCA Amendments reflect congressional recognition of the interplay

between the separate state and federal workers’ compensation

schemes, and legislatively dictate that in the circumstances in

which individuals falling within the purview of clauses (A) through

(F) are already subject to state workers’ compensation benefits,

those state workers’ compensation benefits are the exclusive

benefits for those particular workers.

While the 1984 LHWCA Amendments are plain on their face, and

there is no need to look at legislative history when there is no

ambiguity in the statutory language, I nevertheless think that a

look at legislative history is useful in this case in order to

understand what Congress was attempting to accomplish by the 1984

LHWCA Amendments. For example, the House Report states that the

1984 amendments were intended to

insure stability for both the employer and the
employee. The employer needs to know its
obligations with respect to workers’ compensation
for its employees, and make plans accordingly.
Employees should not fall within the coverage of
different statutes because of the nature of what it
is they were doing at the moment of injury.

H.R. Rep. No. 98-570, pt. 1, at 6 (1984), reprinted in 1984

U.S.C.C.A.N. 2734, 2739 (emphasis supplied). The Senate report on

the Senate bill which initiated the legislative process is even

35
more specific and expressive as to the purposes of the 1984 LHWCA

Amendments. See S. Rep. No. 98-81 (1983).

From the language used by Congress in the 1984 LHWCA

Amendments, and from the explanations provided by Congress in

legislative history regarding the need for and purpose of the 1984

LHWCA Amendments, several congressional intentions become

abundantly clear. First, Congress sought to correct, overrule, or

reverse situations in which "courts and agencies have found

coverage which [is] not warranted."*************** Second, Congress

attempted to define situations in which the "nexus to maritime

navigation and commerce" was insufficient to justify the imposition

of the federal compensation scheme.*************** Third, Congress

***************
"It is clear from the abundant record developed at
the ove[r]sight hearings that a pressing need exists to revise
portions of the act. The courts and agencies have found coverage
to exist in situations which are not warranted." S. Rep. No. 98-81
at 20. "[T]he decade of experience under the 1972 Amendments has
vividly demonstrated that the effort to eliminate benefit disparity
and to promote systemic uniformity has exacted a price, too. The
rules of coverage, in the words of one authority, have been a
‘doubly prolific generator of litigation.’" Id. at 24-25 (quoting
4 A. Larson, Workmen’s Compensation § 89.27(b), at 16-180 (1983)).
***************
In this vein, the Senate report reflects the
following judgments about situations in which the connection
between employment and traditional maritime duties are too
attenuated to support LHWCA coverage:

Additionally, the committee would like to
clarify that certain establishments, and their
employees, such as clubs, camps, restaurants,
museums, retail outlets and marinas are exempt from
coverage regardless of their location.

36
recognized that "appropriate state compensation laws" can often

provide coverage to the employees involved "more aptly."***************

The committee received numerous complaints
from these employers and their insurance carriers
that indicate a general confusion as to whether or
not the Longshore Act applies. These businesses
are operated on or over a navigable water and
insurance carriers, fearing a claim under the act,
often require Longshore riders on their workers
compensation insurance policies.

The committee believes that these employers
lack the necessary nexus to maritime employment and
commerce and therefore are properly exempted from
the jurisdiction of the act.

S. Rep. No. 98-81 at 29.
***************
The report states, in pertinent part:

[T]he lower courts as well as the Benefits
Review Board in the past have often been divided on
the proper criteria for determining such issues as
"maritime employment" and "adjoining area." (See,
e.g., discussion in 4 A. Larson, Workmen’s
Compensation § 89.42 at pp. 52-53 (Supp. 1981)).

. . . Uncertainty of coverage fosters
continued litigation, with attendant expense and
delay that is a burden to employers, their
insurance carriers, and claimants.

. . . .

. . . Rather, the consensus among the
committee members was to reaffirm the purposes of
the 1972 jurisdictional changes, and in that light,
the committee narrowed its focus to certain fairly
identifiable employers and employees who, although
by circumstance happened to work on or adjacent to
navigable waters, lack a sufficient nexus to
maritime navigation and commerce. The committee’s
attention was directed to specified activities
which were singled out for criticism by numerous

37
Fourth, Congress aimed to protect the principle that workers’

compensation is an employee’s exclusive remedy against the

employer.***************

None of the language added by the 1984 LHWCA Amendments can be

read to provide for an injured worker to receive both state and

LHWCA benefits. Likewise, none of the language added by the 1984

amendments can be read to adopt the concept articulated by the

Supreme Court in Director, OWCP v. Perini North River Associates,

459 U.S. 297, 103 S. Ct. 634 (1983), that "injury on navigable

waters in the course of employment" is all that is needed to

establish "maritime employment" for the purpose of bestowing LHWCA

coverage. To the contrary, the broad, simple, unqualified language

used in the various clauses of § 902(3) necessarily moots

consideration of that factor.

witnesses before the committee. Under this case-
specific approach, the committee has determined
that certain activities do not merit coverage under
the act and that the employees involved are more
aptly covered under appropriate state compensation
laws.

S. Rep. No. 98-81 at 25 (emphasis supplied).
***************
"Judicial interpretations of the act have allowed
for dual recovery under both State workers’ compensation and LHWCA.
This violates the principle of workers’ compensation that it is the
employer’s exclusive remedy. Current law undermines this principle
when an employer faces both Federal and state programs." S. Rep.
No. 98-81 at 30.

38
III. Effect of the 1984 LHWCA Amendments on the Supreme Court’s
Holding in Perini

The principal case which the majority relies on to determine

Bienvenu’s compensation rights is the 1983 decision of the Supreme

Court in Perini. Obviously, Perini related to facts and

circumstances which occurred after adoption of the Longshoremen’s

and Harbor Workers’ Compensation Act Amendments of 1972, Pub. L.

92-576, 86 Stat. 1251, but before the 1984 LHWCA Amendments. There

is nothing in the Perini opinion which even recognizes the pendency

before Congress of what later became the 1984 LHWCA Amendments.

Nevertheless, the majority relies upon Perini to establish two

essential premises. The first of these is that under the law prior

to the 1972 LHWCA Amendments, a worker injured on actual navigable

waters in the course of his employment on those waters

automatically satisfied the status requirement of the LHWCA. The

second premise is that nothing in the 1972 LHWCA Amendments

indicates a congressional intent to withdraw LHWCA coverage from

workmen covered by the Act before 1972. See Majority Op. at 13-14.

The majority then refers to three prior Supreme Court opinions upon

which the Perini Court relied in making these conclusions: Parker

v. Motor Boat Sales, Inc., 314 U.S. 244, 62 S. Ct. 221 (1941);

Davis v. Department of Labor & Industries, 317 U.S. 249, 63 S. Ct.

39
225 (1942); and Calbeck v. Travelers Insurance Co., 370 U.S. 114,

82 S. Ct. 1196 (1962).

The majority identifies Parker as the case "most relevant to

our decision" in this case. But the 1984 LHWCA Amendments adopted

by Congress substantially undercut the rationales of both Perini

and Parker. For instance, if the factual circumstances involved in

Parker (a janitor employed by a retailer of pleasure craft assists

a salesman placing an outboard motor on a boat and accompanies the

salesman on a demonstration run; the boat then capsizes and the

janitor is killed) had occurred after the passage of the 1984 LHWCA

Amendments, the current statutory terms would expressly preclude

LHWCA coverage for the janitor because he was "employed by a . . .

retail outlet," § 902(3)(B), and he was "employed to build, repair,

or dismantle a recreational vessel under 65 feet in length,"

§ 902(3)(F). Since the janitor in Parker was determined to be an

LHWCA employee, but that same janitor would no longer be covered by

the statute, the value of that opinion is substantially

diminished.*************** Likewise, Perini’s blanket holding -- that the

***************
Just a cursory review of footnote 21 in Perini, 459
U.S. at 311, 103 S. Ct. at 644, indicates the following additional
categories where the 1984 LHWCA Amendments would change the status
of the injured employee described in the following pre-1972 cases:

1. Nalco Chem. Corp. v. Shea, 419 F.2d 572 (5th Cir. 1969)
(pilot salesman traveling to offshore platform) would be changed by
§ 902(3)(D) ("individuals employed by suppliers, transporters, or
vendors . . ."); and

40
1972 LHWCA Amendments preserved and supplemented the entirety of

pre-1972 LHWCA coverage -- should have little influence after the

adoption of the 1984 LHWCA Amendments, which obviously do retract

coverage from the pre-1972 boundaries. The modifications

demolished the Perini proposition by unequivocally withdrawing

LHWCA coverage from certain workers, despite the fact that they may

have been injured on actual navigable waters in the course of their

employment.

IV. What effect did the 1984 LHWCA Amendments have on the rule
announced by the Supreme Court in Herb’s Welding?

The casualty involved in the Herb’s Welding case occurred in

July 1975, after passage of the 1972 LHWCA Amendments, but before

passage of the 1984 LHWCA Amendments. The case was argued before

the Supreme Court on October 3, 1984, just five days after the

effective date of the 1984 LHWCA Amendments. Since the accident

occurred before the 1984 LHWCA Amendments were adopted, it is not

surprising that there is no discussion of that statutory

development in the Herb’s Welding opinion. That decision

2. Holcomb v. Robert W. Kirk & Assoc., Inc., 655 F.2d 589
(5th Cir. Unit B Sept. 1981) (watchman injured while working on
vessel); Interlake S.S. Co. v. Nielson, 338 F.2d 879 (6th Cir.
1964) (watchman); and Rex Investigative & Patrol Agency, Inc. v.
Collura, 329 F. Supp. 696 (E.D.N.Y. 1971) (land-based employee sent
temporarily onto vessel to act as watchman), would be changed by
§ 902(3)(A) ("individuals employed exclusively to perform . . .
security . . . work").

41
nevertheless has a significant application in the present

controversy. First and foremost, Herb’s Welding plainly held that

the work activities which the claimant, Gray, performed on a fixed

platform supporting a well producing oil and gas did not qualify

Gray as a "person engaged in maritime employment" under the 1972

LHWCA Amendments. The Supreme Court arrived at this conclusion not

only by considering the nature of Gray’s work activities (which had

nothing to do with the loading, unloading, or repair of any

vessel), but also by reviewing the history of how Congress had

viewed the activities of offshore production of oil and gas. See

Herb’s Welding, 470 U.S. at 419-26, 105 S. Ct. at 1425-28. Relying

on its earlier decision in Rodrique v. Aetna Casualty & Surety Co.,

395 U.S. 352, 89 S. Ct. 1835 (1969), the Court discussed numerous

aspects in which Congress had made clear that the production of oil

and gas from fixed platforms is not a maritime activity.

Specifically, the court stated (1) that activities on drilling

platforms are not even suggestive of traditional maritime affairs;

(2) that in adopting the Outer Continental Shelf Lands Act, 43

U.S.C. § 1331 et seq. (hereinafter, Lands Act), Congress had

expressly decided that "maritime law" would not apply to operations

on fixed platforms; (3) that the history of the Lands Act at the

very least forecloses the conclusion that offshore drilling is a

maritime activity and that any task essential thereto is maritime

42
employment for LHWCA purposes; and (4) that Congress must have been

familiar with Rodrique and the Lands Act when it used the term

"maritime employment" in the definition the term "employee" in the

1972 LHWCA Amendments. Herb’s Welding, 470 U.S. at 420-23, 105 S.

Ct. at 1426-27. Furthermore, the Court pointed out that in prior

cases interpreting the 1972 LHWCA Amendments, the Court had said

"the ‘maritime employment’ requirement is ‘an occupational test

that focuses on loading and unloading,’" id. at 423, 105 S. Ct. at

1427 (quoting P.C. Pfeiffer & Co. v. Ford, 444 U.S. 69, 80, 100 S.

Ct. 328, 336 (1979)), and that while "‘maritime employment’ is not

limited to the occupations specifically mentioned" in § 902(3),

"neither can it be read to eliminate any requirement of a

connection with the loading or construction of ships," id.

According to the Court, both P.C. Pfeiffer & Co. and Northeast

Marine Terminal Co. v. Caputo, 432 U.S. 249, 267, 97 S. Ct. 2348,

2359 (1977), "lead us to the conclusion that Gray was not engaged

in maritime employment for purposes of the LHWCA." Herb’s Welding,

470 U.S. at 423, 105 S. Ct. at 1428. In conclusion, the Supreme

Court in Herb’s Welding held: "Because Gray’s employment was not

‘maritime,’ he does not qualify for benefits under the LHWCA. We

need not determine whether he satisfied the Act’s situs

requirement." Id. at 427, 105 S. Ct. at 1429 (emphasis supplied).

43
 Herb’s Welding teaches us that the first decision to be made

in determining LHWCA coverage is whether the injured worker

satisfies the status requirement of the definition of "a person

engaged in maritime employment." The changes made by the 1984

LHWCA Amendments to the status definition in § 902(3) do not

directly address the category of workers on a fixed platform for

the production of oil and gas. But Herb’s Welding states that

"there is nothing inherently maritime" about the tasks Gray

performed in that case. Likewise there is "nothing inherently

maritime" about the tasks Bienvenu performed in this case.

V. What was Bienvenu actually doing during 8.3% of his work time?

The majority attaches controlling significance to the fact

that Bienvenu was performing work on board the MISS JACKIE during

8.3% of his work time. They pay very little attention to carefully

describing the nature of the work Bienvenu performed while on board

the MISS JACKIE. Because the nature of the work which Bienvenu

performed while on board the MISS JACKIE is critically important to

a proper determination of the status question in this case, I quote

the following findings of fact made by the administrative law

judge:

In terms of size, the Caillou Island production
field is approximately five miles north and south
and ten to twelve miles east and west. . . .
During the year 1987, the Caillou Island production

44
field had approximately 150 to 175 producing wells.
All of the wells were located inside of the three
mile territorial limit. The majority of the wells
were located in water areas and bays and contained
a small platform constructed around the well heads.
The platforms were constructed of pilings similar
to telephone poles driven into the mud below the
water line and then wood was constructed on top
with metal grading to allow the workers to walk on.
The entire unit was referred to as a cribbing which
was about six feet wide by twelve to fifteen feet
long. The cribbings had no living quarters.

During the period of his work with Texaco, Mr.
Bienvenu never worked off-shore on the outer
continental shelf. All of his work was inside the
three-mile limit.

Mr. Bienvenu was working as a pumper
specialist at the time of his injury. In that job,
he did maintenance of automated equipment in the
production facilities. The equipment included a
variety of measuring gauges consisting primarily of
fluid measuring meters. His responsibility was to
maintain the equipment. He used other meters to
test the equipment and calibrate it. . . . Each
meter had to be calibrated approximately every
three months. Other meters which he maintained
were fixed on platforms and he also was responsible
for maintaining that equipment. Mr. Bienvenu had a
tool box which included all of his hand tools. The
tool box weighed approximately eighty pounds or
more. The box had to be moved from one well to
another as the work sites changed.

. . . Mr. Bienvenu had almost exclusive use
of the Miss Jackie, however, on occasion the boat
was used by others. Mr. Bienvenu would simply tell
the skipper of the Miss Jackie which particular
cribbing he was to be taken to. The Claimant
[Bienvenu] did not navigate the boat, although his
tools were basically maintained on the boat. He
did not perform maintenance work on the boat
itself. However, he did perform work on some of
the well controls on the back part of the boat.

45
 Claimant’s job as a pumper specialist required
him to perform the majority of his work on the
platforms. However, some of the work was performed
on the back of the boat which transported him to
the job site. Of the two to three hours that he
was on the Miss Jackie on an average day,
approximately one hour of that time was spent
actually working on equipment on the boat. The
rest of the time was spent on the Miss Jackie
moving from location to location. The remaining
nine hours of the day was spent on a fixed platform
in the island field doing his work as a pumper
specialist.

Bienvenu, No. 92-LHC-2801, slip op. at 4-5, 27 Ben. Rev. Bd. Serv.

(MB) at 550-51 (emphasis supplied).

From these findings it is absolutely clear that the work which

Bienvenu did on the stern of the MISS JACKIE was directly related

to and an essential part of his primary job responsibility, which

was to maintain, repair, and replace as necessary, the gauges and

meters which measured the flow of oil and gas from each fixed

platform. This work activity had absolutely nothing to do with

loading or unloading a vessel, nor with repairing or maintaining

equipment used to load or unload a vessel, nor with repairing or

maintaining the vessel itself, nor with repairing or maintaining

any dock, wharf, or pier used for the loading or unloading of any

vessel. Bienvenu’s work activity on the stern of the boat was not

"inherently maritime" in nature. Given the express holding by the

Supreme Court in Herb’s Welding, the conclusion is inescapable that

46
the work activities which Bienvenu performed on the stern of the

MISS JACKIE were not maritime in nature.

Consequently, the majority errs grievously when it concludes

that, because of the performance of these non-maritime work

activities on the stern of the MISS JACKIE, Bienvenu somehow

transforms himself from a worker engaged in non-maritime employment

(as Herb’s Welding surely holds he was) into a worker entitled to

claim the benefits of a "maritime employment" status simply because

his injury occurred "on navigable waters." This conclusion is even

more incomprehensible in light of the fact that his injury did not

actually occur during the time that he was working on the stern of

the MISS JACKIE maintaining and repairing the equipment removed

from the production platform.

VI. The majority decision is in direct conflict with Green v.
Vermilion and leaves that conflict unresolved.

A further problem presented by the majority’s treatment of

this case is its conflict with the recently decided Green v.

Vermilion Corp., 144 F.3d 332 (5th Cir. 1998), petition for cert.

filed, 67 U.S.L.W. ____ (U.S. Jan. 14, 1999) (No. 98-1128). There

are many factual similarities between this case and Green. Both

Green and Bienvenu were land-based workers whose primary non-

maritime duties took up the major portions of their work time.

Both Green and Bienvenu sustained injuries on vessels which were

47
owned by their respective employers. Both injuries occurred after

the effective date of the 1984 LHWCA Amendments. In both cases,

the vessel involved was a relatively small vessel which needed only

one person to operate it. At the time of injury in both cases, the

vessels were tied up at a dock in an area which it may be "legally

accurate" to define as "navigable waters," but which was not in any

sense a channel of commerce for interstate or foreign shipping.

The waters involved in both cases were entirely within the

territorial waters of the State of Louisiana. Neither Green nor

Bienvenu performed any tasks for the purpose of maintaining or

repairing the vessel in question, nor did either operate or

navigate such vessel while it was in transit.

At the moment of his injury, Green was helping to unload

supplies brought by boat to the duck camp where he worked. This is

an activity upon which the Green panel might have focused for

purposes of finding LHWCA coverage, but did not. At the moment of

his injury, Bienvenu was lifting his personal tool box on or off of

the boat on which he rode between well platforms; this is an

activity which the majority itself excludes from the category of

"meaningful job responsibilities." Majority Op. at 17.

Following their injuries, both Green and Bienvenu received

full medical care and weekly compensation benefits under the

Louisiana Workers’ Compensation Law. Each of them ultimately made

48
claims for LHWCA benefits. Green sued his employer directly in

federal district court, and the district judge denied him any

recovery. Bienvenu filed an administrative claim directly under

the LHWCA, but the administrative law judge held that the LHWCA did

not apply to his injury. Both Green and Bienvenu appealed to our

Court. In Green’s case, a panel of our Court affirmed the district

court’s determination that Green was not entitled to benefits under

LHWCA. See Green, 144 F.3d at 335. In Bienvenu’s case, the panel

concluded that it was bound by precedent to hold that Bienvenu is

entitled to LHWCA benefits because of his transient or fortuitous

presence upon actual navigable waters. See Bienvenu, 124 F.3d at

693. After en banc reconsideration the majority now confirms the

availability of LHWCA benefits, but on different grounds.

These two decisions are hopelessly at odds, and our Court

should put them in the same category so that they produce the same

result. Green concluded that by enacting the 1984 LHWCA

Amendments, Congress expressly determined that Green was not

engaged in "maritime employment" for the purposes of LHWCA coverage

because he was employed by a "club or camp" and covered by state

compensation. See 33 U.S.C. § 902(3)(B). In essence, Congress

legislatively determined that "non-maritime" status may trump the

"situs" aspect of a particular injury. The panel in Green

correctly affirmed the district court’s denial of LHWCA benefits to

49
Green because Congress statutorily eliminated Green’s employment

from those which could be considered to be "maritime employment."

In my view, we should have applied the same analysis to

Bienvenu’s claim. In Herb’s Welding, the Supreme Court held that

a worker on a fixed platform producing oil and gas from territorial

waters of a state is not engaged in maritime employment and

therefore not entitled to LHWCA benefits. See Herb’s Welding, 470

U.S. at 423-26, 105 S. Ct. at 1427-28. The work which Bienvenu

performed on fixed platforms is analogous to the work which Gray

performed on fixed platforms in that case. Why doesn’t Bienvenu’s

non-maritime status trump his situs in this case? Why doesn’t the

Supreme Court’s determination that producing oil and gas from fixed

platforms in state waters is not a "maritime employment" constitute

just as binding a determination of "non-maritime status" as if

Congress had included in § 902(3) another sub-clause saying that

"maritime employment" does not include individuals employed to

build, repair, maintain, operate, or dismantle fixed platforms on

which there are facilities for the exploration, production, or

storage of oil and gas from territorial waters of any state?

The only thing that distinguishes Bienvenu’s claim from Gray’s

is that in Herb’s Welding the worker was injured on a fixed

platform, while Bienvenu was injured on a vessel tied to a fixed

platform. That factual distinction should not be determinative.

50
First, it is important to note that one of the themes underlying

the enactment of the 1972 and 1984 LHWCA Amendments was eliminating

the circumstance of workers walking in and out of coverage, such

that LHWCA applicability depends upon whether a worker’s injury

occurred on the vessel or on the dock. This approach should

likewise be applied to those workers whose status is determined to

be "non-maritime" either by act of Congress or by a decision of the

Supreme Court. Both employers and employees benefit from the

uniformity and predictability of coverage which would be achieved

by eliminating controversies centered on the circumstance of

whether a non-maritime worker’s injury occurred on land or water.

If Bienvenu sustained an injury while actually repairing a

valve on the fixed platform, there is no question that he would not

be entitled to LHWCA benefits and his compensation benefits would

be under Louisiana state workers’ compensation. If Bienvenu spends

the overwhelming majority of his time working on fixed platforms,

his "non-maritime" status should not change when he gets on a boat

to ride to or from his place of work, or to perform some limited

non-maritime task. Bienvenu’s non-maritime status should not

change unless and until the nature of his work assignments change

so that he is engaged for a substantial portion of his work time in

activities which meet the test of "maritime employment."

Additionally, in making factual and legal determinations about

a worker’s maritime or non-maritime status, we should employ the

51
same rationale and methods of analysis that our Court and the

Supreme Court have recognized as being necessary to the task of

distinguishing between the status of "seaman" or "member of the

crew of a vessel" for Jones Act purposes on one hand and

"longshoreman, harbor worker, or other maritime employment" for

LHWCA purposes on the other. It is noteworthy that the clause of

§ 902(3) which determines that a "master or member of the crew of

any vessel" is not a "person engaged in maritime employment" for

LHWCA purposes is clause (G), which follows immediately after

clauses (A) through (F), which were added by the 1984 LHWCA

Amendments. It seems quite logical and appropriate that the law

should be the same for all of these clauses in § 902(3). I turn

now to some brief comments in that regard.

Our Court should be guided by the examples set in three

important Supreme Court cases -- McDermott International, Inc. v.

Wilander, 498 U.S. 337, 111 S. Ct. 807 (1991); Chandris, Inc. v.

Latsis, 515 U.S. 347, 115 S. Ct. 2172 (1995); and Harbor Tug &

Barge Co. v. Papai, 520 U.S. 548, 117 S. Ct. 1535 (1997) -- which

were decided after Perini and Herb’s Welding, and after the

adoption of the 1984 LHWCA Amendments. These cases, taken

together, constitute the best summary of current Supreme Court

precedent on distinguishing a "seaman" from a "longshoreman." Each

case makes a significant contribution to the task of defining the

52
boundary lines between "seaman" or "member of the crew of a vessel"

(seaman status) and "longshoreman, harbor worker, or other maritime

employment worker" (longshoreman status). Both Wilander and Latsis

contain excellent historical reviews of the origination of the

relevant concepts and principles. Each of these historical

summaries also points out the several instances in which the

Supreme Court has changed course in making this delineation, either

as the result of statutory action by Congress or by later

definition of the Supreme Court itself.

These three recent Supreme Court opinions lead to a number of

conclusions which should inform our judgment in this case. First,

regardless of what the law may have been at one time, it is now

clear that the two categories of seaman status and longshore status

are mutually exclusive. Second, we now know that seaman status is

determined primarily by the worker’s connection with a vessel (or

vessels) -- a connection which must be substantial both in duration

and nature. Third, it has been determined that a maritime worker

who spends only a small fraction of his working time on board a

vessel is fundamentally a land-based worker, and therefore he is

not considered to be a member of the vessel’s crew, regardless of

what his duties are. Fourth, our Court has identified an

appropriate rule of thumb for determining whether a worker has

achieved Jones Act seaman status in the ordinary case -- a worker

53
who spends less than 30% of his time in the service of a vessel in

navigation should not qualify as a seaman under the Jones Act.

See, e.g., Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067, 1076

(5th Cir. 1986) (en banc). The Supreme Court has blessed this

objective test. See Latsis, 515 U.S. at 366-68, 115 S. Ct. at

2189. Finally, we know that if an employee’s regular duties

require him to divide his time between vessel and land, his status

as a crew member is determined "in the context of his entire

employment" with his current employer.

In order to achieve the goals of uniformity and

predictability, when determining LHWCA coverage we should follow

this same pattern, which our Court has pioneered in dividing

workers between seaman or longshoreman status. First of all, we

should hold that the status of a longshoreman and the status of a

non-maritime worker are mutually exclusive. To fit into either

category, we should look at the type and nature of a worker’s

duties over a period of employment. In order to determine that an

employee fits into either category, we should require determination

that his work assignments in that particular category be

substantial in terms of both their duration and nature. We should

use our rule of thumb from seaman status cases and hold that a

worker who spends less than 30% of his time in maritime employment

should not qualify for LHWCA benefits. In connection with workers

54
who must travel over water to get to their work site, the time in

transit over water should be counted as time attributable to the

status of the duties performed at the work site. If a worker is

employed in both maritime and non-maritime tasks, his remedies

should be determined by the controlling status, regardless of where

the injury occurred.

Applying the foregoing concepts to the factual determinations

made by the administrative law judge here in this case, I would

conclude that, because Bienvenu worked nine hours of his regular

twelve-hour workday performing repair work on the fixed platforms

(a task which clearly falls within non-maritime status) and spent

another two hours in transit between his work sites at each

platform, his non-maritime status is controlling. Indeed, his non-

maritime work represents more than 90% of his total employment

time. Consequently, I would affirm the administrative law judge’s

holding that Bienvenu was not entitled to benefits under the LHWCA

because his controlling employment status was not maritime in

nature and he was covered by state workers’ compensation.

Accordingly, Green and Bienvenu would fall into the same category

insofar as LHWCA coverage is concerned.

55
VII. Where did the "transient or fortuitous" straw man and the
"more than a modicum" test come from?

I must express my discomfort with some of the analysis and

reasoning employed in Part III.B of the majority opinion. As an

initial matter, the problem of "transient or fortuitous presence on

a vessel" simply is not featured in the holdings of either Perini

or Herb’s Welding. That concept exists only in dicta, relegated to

footnotes, in which the Supreme Court is speculating about

circumstances not before the Court in either case. Likewise, there

is no language in the LHWCA which can be construed to require any

such determination in the course of determining status. I am truly

amazed at the willingness of the majority to guess the meaning of

"the signals from the Supreme Court in Perini and again in Herb’s

Welding" on the subject of whether the LHWCA covers a worker who is

"simply transiently or fortuitously aboard a vessel." While the

majority’s guess may be correct, it seems inordinately presumptuous

to use that guess as a launching pad for rewriting the law of the

Circuit. Furthermore, I cannot understand the majority’s reference

to "joining to Eleventh Circuit in reaching this conclusion" on the

basis of Brockington v. Certified Electric Inc., 903 F.2d 1523

(11th Cir. 1990). There is absolutely nothing in Brockington which

addresses the concept of a worker’s "transient or fortuitous"

presence aboard a vessel. Rather, I read Brockington as addressing

56
head-on the fundamental question of "status." The Brockington

Court stated:

In order to answer this question, one must
determine whether "employment" is defined by what
he was doing at the moment he was injured, or
whether it is defined by the nature of employment
in which he was generally engaged. This question
was addressed by the Supreme Court in Northeast
Marine Terminal Co. v. Caputo, 432 U.S. 249, 97 S.
Ct. 2348 (1977), where it held that the question of
whether an individual is a maritime employee for
purposes of LHWCA coverage is controlled by
analysis of his "basic" employment, rather than the
employee’s particular work at the moment of the
accident. . . . What matters to a determination of
maritime status is the description of his regular
employment.

902 F.2d at 1528. Applying that concept, the Brockington Court

concluded that an electrician whose duties consisted primarily of

wiring houses and commercial buildings had no connection to

"traditional ‘loading and unloading’ activity" and that the

"‘marine environment’ in which he was injured had absolutely no

connection to the general nature of his employment." Id. If the

majority truly wants to join the Eleventh Circuit in this

rationale, I would gladly concur because Bienvenu’s "regular

employment" as a pumper specialist on fixed production platforms is

clearly recognized by the Supreme Court in Herb’s Welding as being

non-maritime employment.

Second, I find the new rule postulated by the majority to be

enormously convoluted, and I predict that it will generate

57
litigation rather than avoid it. The majority’s critical measure

of the necessary degree of maritime employment to trigger LHWCA

coverage -- "more than a modicum" -- is inherently subjective and

destroys the hope for predictability and uniformity of results in

determining whether an injured worker gets state compensation

benefits or LHWCA benefits.

Finally, I have to disagree with the majority’s attempts to

"clarify our case law on this subject." The majority opinion is

just flat wrong in its description of the holding in Fontenot v.

AWI, Inc., 923 F.2d 1127 (5th Cir. 1991). The holding in that case

is that the claimant was "covered by the LHWCA because he was on

actual navigable waters in the course of his employment at the time

of his injury." Fontenot, 923 F.2d at 1133. The panel in Fontenot

did address, but ultimately left open and did not decide, the

question of whether "the fact that Fontenot spent 30% of his time

working on an oil production vessel and was returning from a job on

such vessel when he injured himself" would satisfy the LHWCA’s

status test. The majority opinion goes on to castigate the panel

in Randall v. Chevron U.S.A., Inc., 13 F.3d 888 (5th Cir. 1994),

for misreading Fontenot. But the panel in Randall read the holding

in Fontenot exactly as it reads. It is the majority in this case

which now wants to impute to Fontenot a holding which was never

made in that case. While I recognize that our en banc Court is not

58
bound by either Fontenot or Randall, I cannot, for the life of me,

see how we can overrule Randall without also overruling the express

holding in Fontenot.

VII. Conclusion

If there is any area of jurisprudence which mandates the

highest level of clarity, simplicity, predictability, and

efficiency, it is the area of workers’ compensation benefits. An

injured worker is entitled to prompt medical care and treatment for

his injuries, some cash payments during convalescence, and ultimate

compensation for permanent injuries. He should not have to guess

where to get these benefits. Likewise, the employer who wants to

provide compensation benefits should be able to accurately predict

which compensation regime is applicable to his employees, and he

should not have to guess, at the risk of greater liability, which

is the right regime. With employers like Texaco who have workers

in many different states and in other countries -- workers who are

engaged in activities on land, sea, and in the air -- the task of

determining the appropriate compensation remedy should turn on

objective rather than subjective factors. The majority opinion

recognizes that its requirement of "more than a modicum of work

time on a vessel" is not susceptible of objective quantification,

and that the new doctrine will require employers and claimants to

59
endure the caldron of case-by-case development. I think that

relegating the participants in workers’ compensation schemes to a

protracted common-law evolution of principles governing which of

two compensation regimes applies in a given case is a

misinterpretation of both congressional intent and the Supreme

Court’s interpretation of the Longshore and Harbor Workers’

Compensation Act. In addition, it is plainly in conflict with the

policy favoring expeditious but limited compensation to injured

workers, that underlies all programs of workers’ compensation,

whether at the federal or state level. I therefore respectfully

DISSENT.

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