Cunningham v. Director, Office of Workers' Compensation Programs

United States Court of Appeals
For the First Circuit

No. 03-1980

DAMON R. CUNNINGHAM, JR.,

Petitioner,

v.

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR; BATH IRON WORKS,

Respondents.

ON PETITION FOR REVIEW OF A DECISION OF THE BENEFITS REVIEW BOARD

Before

Torruella, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lynch, Circuit Judge.

Marcia J. Cleveland for petitioner.
Barry H. Joyner, Attorney for the Director, with whom Howard
M. Radzely, Solicitor of Labor, Donald S. Shire, Associate
Solicitor, and Mark A. Reinhalter, Counsel for Longshore, were on
brief for the Director, Office of Workers' Compensation Programs.
Stephen Hessert with whom Doris V. R. Champagne and Norman,
Hanson & Detroy, LLC, were on brief for Bath Iron Works.

August 3, 2004
 COFFIN, Senior Circuit Judge. Petitioner Damon E.

Cunningham, Jr. has been a pipe fitter for Bath Iron Works in Bath,

Maine, for more than 25 years, and since 1998 has worked at the

company's East Brunswick Manufacturing Facility ("EBMF"). At the

EBMF, which is approximately 3.5 to 4 miles from BIW's main

shipyard in Bath, workers prefabricate pipe units that are

transported by truck and installed in ships at Bath. Cunningham

injured his back at EBMF in October 1999 and subsequently sought

disability coverage under the Longshore and Harbor Workers'

Compensation Act ("LHWCA"), 33 U.S.C. §§ 901-950. An Administrative

Law Judge ("ALJ") and the Benefits Review Board ("BRB" or "Board")

denied his claim on the ground that the EBMF is not a covered work

location.

In his petition for review, Cunningham asserts that the ALJ

and Board erred by too narrowly defining the reach of the statute.

He contends that the EBMF qualifies as an area that adjoins

navigable waters. See 33 U.S.C. § 903(a). Although Cunningham

presents a sympathetic case based on the nature of his employment,

we conclude that the ALJ properly determined that the LHWCA does

not presently confer benefits on employees who are injured at the

EBMF. We therefore must deny the petition for review.

I. Background

The LHWCA was enacted in 1927 to provide compensation for

maritime workers who were injured while working on navigable waters

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in the course of their employment. Director, Office of Workers'

Comp. Programs v. Perini North River Assocs., 459 U.S. 297, 311

(1983); Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 257-

58 (1977). Initially, a maritime worker was covered under the

statute only if his injury occurred while he was performing work on

the seaward side of the shore. Caputo, 432 U.S. at 258.1 In 1972,

the law was significantly amended, see id. at 261; Perini North

River Assocs., 459 U.S. at 313, and one of the changes made is at

the heart of this case. Rather than stopping at the water's edge,

coverage under the act was extended shoreward in recognition that

"modern technology had moved much of the longshoreman's work onto

the land," Caputo, 432 U.S. at 262 & n.20; see S. Rep. No. 92-1125,

at 12-13 (1972); H.R. Rep. No. 92-1441, at 10-11 (1972), reprinted

in 1972 U.S.C.C.A.N. 4698, 4707-08. The pertinent section of the

amended statute provides as follows:

[C]ompensation 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).

1
In Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917), the
Supreme Court established what has since been called the "Jensen
line," the line between the water and land. The Court held that
maritime employees injured on the seaward side of the line were not
covered by state workers' compensation laws. The LHWCA was enacted
in 1927 to cover those workers.

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33 U.S.C. § 903(a).

Among the other changes effected by the 1972 Amendments was

the addition of a requirement that the injured employee be engaged

in maritime employment. See Caputo, 432 U.S. at 263-64 & n.21; 33

U.S.C. § 902(3). Previously, a worker generally was entitled to

compensation so long as his injury occurred on navigable waters,

without regard to whether his particular job was maritime in

nature. Caputo, 432 U.S. at 263-64. Eligibility for coverage

under the LHWCA is thus now subject to both a "status" test and a

"situs" test. Cunningham's status as a maritime worker is

uncontested, and we therefore must address only whether the "situs"

of his employment – the EBMF – falls within the statutory

definition. Because Cunningham's injury occurred neither on a

navigable waterway nor on any of the specific sites listed in

section 903(a), the issue is whether the EBMF constitutes an "other

adjoining area" under the statute.

As noted earlier, the EBMF is several miles from BIW's main

shipyard, which is located on the Kennebec River in Bath. The pipe

and tin shops housed at the EBMF originally were located at the

main shipyard and were moved in 1990 because more space was needed

for them to operate efficiently. The work done at the EBMF is

fully integrated into BIW's shipbuilding process; since 1995, the

company has utilized a "just-in-time" system in which components

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are prefabricated in East Brunswick and delivered to Bath just

before they are needed for installation in the ships.

The EBMF is one of five BIW facilities concentrated in the

same area of East Brunswick. The complex of BIW buildings

dominates the eastern portion of Brunswick, accounting for more

acres and more employees than other land users. Other maritime

businesses are located in East Brunswick, including a marina and

propeller shop, but the area between the Bath shipyard and BIW's

East Brunswick complex is not predominantly maritime in character.

Based on a review of maps, photographs and testimony, the Board

reported that the area contains restaurants, motels, convenience

stores, gas stations, residences and other non-maritime uses.

Although removed by several miles from the Kennebec River, the

EBMF does have proximity to salt water, at least some of which

indisputably is navigable. At its closest point, the EBMF property

is about 1,400 feet from the navigable New Meadows River, an inlet

of Casco Bay. The property also is crossed by a body of water

identified as Thompson Brook by BIW and described as a tidal

saltwater marsh by petitioner. The parties debate whether that

waterway is navigable within the meaning of the LHWCA.

After examining a variety of factors – including the

geography, tidal activity and history of the area, as well as the

relationship between BIW's main shipyard and the East Brunswick

site – the ALJ concluded that the EBMF is neither literally

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contiguous to navigable waters nor otherwise an "adjoining area"

within the meaning of section 903(a). The ALJ rejected

petitioner's contention that Thompson Brook is navigable, finding,

among other factors, that the waterway does not meet the

requirement that it either be currently used for commercial

purposes or reasonably capable of future commercial use. In

evaluating whether the EBMF is an "adjoining area" in relation to

the New Meadows River, the ALJ utilized a test set out by the Ninth

Circuit in Brady-Hamilton Stevedore Co. v. Herron, 568 F.2d 137,

141 (9th Cir. 1978), that focuses on the "functional relationship"

between the workplace and navigable waters. See also Texports

Stevedore Co. v. Winchester, 632 F.2d 504, 513-14 (5th Cir. 1980)

(en banc); but see Sidwell v. Express Container Servs., Inc., 71

F.3d 1134, 1138-39 (4th Cir. 1995).2 The ALJ found that no

functional connection existed between the maritime work done at the

facility and the New Meadows River, and thus that the EBMF was not

covered as an extension of that waterway. The ALJ did not address

the question whether the EBMF was an area adjoining the BIW

shipyard on the Kennebec.

The Board largely agreed with the ALJ's findings, which it

deemed supported by substantial evidence and consistent with the

2
Sidwell takes a much more literal view of the "other
adjoining area" language, holding that "an area is 'adjoining'
navigable waters only if it 'adjoins' navigable waters . . . ," 71
F.3d at 1138. We further address the different tests in our
discussion in Section II infra.

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relevant case law. Although the ALJ did not explicitly consider

the nexus between the EBMF and the Kennebec River, the Board's

examination of the undisputed facts and the judge's subsidiary

findings led it to conclude as a matter of law that the EBMF "is

not within the perimeter of a general maritime area around the

Kennebec River or the main shipyard."

Petitioner Cunningham asserts that the ALJ and Board decisions

were infected by numerous factual and legal errors, including

misinterpretation of the Herron "functional relationship" test,

neglect of a statutory presumption in favor of coverage, and lack

of record support for the finding that the salt marsh – the body of

water called Thompson Brook by the ALJ and the Board3 – was not,

and could not be made, navigable.

We review the Board's rulings of law de novo and otherwise

examine its decision to determine if it adhered to the "substantial

evidence" standard in reviewing the ALJ's factual findings. Bath

Iron Works v. Director, Office of Workers' Comp. Programs, 244 F.3d

222, 226 (lst Cir. 2001); Prolerized New England Co. v. Benefits

Review Bd., 637 F.2d 30, 35-36 (lst Cir. 1980).

II. Discussion

We dispose preliminarily of petitioner's contention that we

must view this case with a bias in favor of coverage, pursuant to

3
For convenience, we shall refer to the waterway as Thompson
Brook.

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33 U.S.C. § 920(a). Section 920(a) states a presumption that "the

claim comes within the provisions of this chapter" if there is no

"substantial evidence to the contrary." In Stockman v. John T.

Clark & Son of Boston, Inc., 539 F.2d 264, 269 (lst Cir. 1976), we

held that this provision does not govern general interpretation of

the situs requirement. Like Stockman, this case requires us to

address "'general propositions or methods of approach,'" id. at 270

(citation omitted), for determining when a workplace may be

classified as an "adjoining" area. How these standards, in turn,

apply to the largely undisputed facts also requires legal judgments

about the statute's scope that we conclude are not subject to the

presumption. Cf. Pittston Stevedoring Corp. v. Dellaventura, 544

F.2d 35, 48 (2d Cir. 1976), aff'd sub nom. Northeast Marine

Terminal Co. v. Caputo, 432 U.S. 249 (1977) ("[T]he very fact that

the presumption can be overcome by substantial contrary evidence

indicates its inapplicability to an interpretive question of

general import . . . .").

We thus turn to the substantive question before us: whether

the EBMF is an "adjoining area" under section 903(a), entitling

employees working there to the LHWCA's disability coverage. We are

mindful that Congress intended through this provision to extend the

statute's reach to employees performing maritime work away from the

water's edge and that the broad language of the 1972 Amendments

"suggests that we should take an expansive view of the extended

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coverage," Caputo, 432 U.S. at 268; see also Perini North River

Assocs., 459 U.S. at 315-16.

This court has not yet articulated a standard methodology for

approaching the question of "adjoining area."4 As noted earlier,

however, other circuits have adopted varied approaches in

evaluating whether a given workplace qualifies as an "adjoining

area" under the statute. Both the Ninth Circuit in Herron, 568

F.2d at 137, and the Fifth Circuit in Winchester, 632 F.2d at 504,

view that phrase to describe "a functional relationship that does

not in all cases depend upon physical contiguity," Herron, 568 F.2d

at 141. A court assessing the relationship must instead balance

all relevant circumstances. The Ninth Circuit listed several

factors that, among others, it believed should be considered in

determining whether a site is "adjoining":

the particular suitability of the site for the maritime
uses referred to in the statute; whether adjoining
properties are devoted primarily to uses in maritime
commerce; the proximity of the site to the waterway; and
whether the site is as close to the waterway as is
feasible given all of the circumstances in the case.

Herron, 568 F.2d at 141.5

4
We have previously addressed situs issues, but have done so
without adopting a particular analytical approach. See Prolerized
New England Co. v. Benefits Review Board, 637 F.2d 30, 38-39 (lst
Cir. 1980); Stockman v. John T. Clark & Son of Boston, Inc., 539
F.2d 264, 272 (lst Cir. 1976).
5
The Third Circuit articulated an even more far-reaching
approach in Sea-Land Service, Inc. v. Director, Office of Workers'
Comp. Programs, 540 F.2d 629, 638 (3d Cir. 1976), concluding that
Congress "intended to expand the scope of the LHWCA to provide a

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 The Fourth Circuit, meanwhile, adheres to a literal reading of

the statute. In Sidwell, the court concluded that even general

geographical proximity to navigable waters was insufficient to

qualify an area as "adjoining," holding that the area must be

either "'contiguous with'" or otherwise "'touch[]' such waters."

See 71 F.3d at 1138-39. If the area in question is separated from

the navigable waters by other areas, the Fourth Circuit stated, it

"simply is not 'adjoining' the waters under any reasonable

definition of that term." Id. at 1139; see also Jonathan Corp. v.

Brickhouse, 142 F.3d 217, 220-22 (4th Cir. 1998).

Both the ALJ and Board took the broader view espoused by the

Ninth and Fifth circuits, but nonetheless concluded that the EBMF

was not an adjoining area. Cunningham unsurprisingly endorses the

"functional relationship" test but asserts that, in applying it,

the ALJ failed to weigh all the relevant factors, instead treating

federal workmen's compensation remedy for all maritime employees."
The court thus held:

As long as the employment nexus (status) with maritime
activity is maintained, the federal compensation remedy
should be available. Resuscitating the situs requirement
in cases satisfying the status test will interfere with
Congress' intention to eliminate the phenomenon of
shifting coverage.

The Supreme Court has observed that the Third Circuit "appears to
have essentially discarded the situs test," Caputo, 432 U.S. at 277
n.40, and elsewhere has stated that both elements of the test must
be given force, see Herb's Welding, Inc. v. Gray, 470 U.S. 414, 426
(1985). Particularly in light of these comments, we do not believe
the Third Circuit test is defensible.

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the three-to-four-mile distance between the EBMF and the Bath

shipyard as dispositive. The ALJ further erred, Cunningham

contends, by limiting himself to examining the EBMF's connection to

a single body of water; in Cunningham's view, a strong functional

relationship with one navigable waterway may be combined in the

calculus of factors with the facility's proximity to another

navigable waterway.

Thus, Cunningham asserts that the EBMF qualifies in two ways

for LHWCA coverage. First, he contends that the strength of the

functional relationship between BIW's main shipyard in Bath and the

EBMF outweighs any proximity issue with respect to the navigable

Kennebec River. Alternatively, if the Kennebec is deemed to be too

far for the EBMF to "adjoin" it, the facility's strong functional

relationship with the Bath shipyard, combined with its proximity to

the New Meadows River or Thompson Brook, also balances out in favor

of coverage. The latter approach implicates Cunningham's claim

that the ALJ erred in finding that Thompson Brook is not navigable;

he attributes that mistake to the judge's use of the more limited

admiralty definition of "navigable," rather than the broader

definition applicable to Commerce Clause claims.

Because the ALJ and Board both used the functional

relationship test, which provides greater flexibility for a

claimant such as Cunningham, and we nevertheless agree with the

determination that LHWCA coverage is foreclosed in this case, we

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assume, without deciding, that the Herron functional approach is

correct.

Applying this functional test, we first confront whether the

EBMF is an "adjoining area" in relation to the Bath shipyard and

the Kennebec. Our review, of course, is limited to any lingering

legal issues and considering whether the Board properly evaluated

the ALJ's rulings under the substantial evidence test. The

Director of the Office of Workers' Compensation Programs argues

that the Board's decision should be vacated and the case remanded

to the ALJ because the Board improperly concluded, as a matter of

law, that the distance between the EBMF and the Kennebec River

foreclosed a finding that the EBMF was an adjoining area.6 The ALJ

never considered the EBMF's relationship to the Kennebec

riverfront, and the Director asserts that the ALJ – the designated

factfinder – must be given the opportunity to consider in the first

instance all relevant circumstances.7

We agree with the Board majority that, in light of the

undisputed facts and the factual determinations that the ALJ did

make, a remand is unnecessary. Moreover, contrary to Cunningham's

assertion, the Board did not base its decision simply on the

6
The Director is charged with the administration and
enforcement of the LHWCA, see Ingalls Shipbuilding, Inc. v.
Director, OWCP, 519 U.S. 248, 262-63 (1997), and also is often a
litigant in LHWCA cases as a representative of the Department of
Labor, see id. at 269.
7
One of the three Board members also took this position.

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mileage between the Kennebec River and the EBMF, a rationale that

we agree would be insufficient under the test we are applying.8

The Board carefully reviewed the multiple factors of the Herron

test and concluded that the nature of the area between the EBMF and

the Kennebec waterfront, in addition to the lack of proximity,

compelled the conclusion that the EBMF was outside the perimeter of

an "adjoining area" within the meaning of section 903(a).9

We find neither legal nor factual error in that conclusion.

Although the functional, "just-in-time" relationship between the

two locations could hardly be stronger, the key fact is that they

are quite clearly two separate locations. Even if, as the Board

assumed, East Brunswick was the closest available location for

relocating the pipefitting work, it cannot reasonably be viewed as

an "adjoining" extension of the shipyard. Rather than sharing an

"area" or neighborhood with the main facility, the EBMF is part of

a second campus for the shipyard's maritime activities. This is

not a matter of mileage. We could imagine a sprawling complex that

spans one or more public roadways and incorporates some non-

8
At some point, the distance between a workplace and the
navigable waterway may become so large that it is indeed
dispositive of the issue. That is not the case here.
9
On the two other Herron factors, the Board accepted that the
facility "may have been built as close as feasible to the main
shipyard," see Opinion at 11, and found reasonable the ALJ's
conclusion that the EBMF's location was not particularly suited to
maritime uses because the prefabrication of pipe systems need not
"be performed on or near the water or at a maritime site," id.

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maritime uses, but still would qualify as a single continuous

extension of the shore. Here, however, the shipyard and the East

Brunswick complex are two separate maritime enclaves separated by

a large area of mostly unrelated business and residential

properties. See Brown v. BIW Corp., 22 BRBS 384 (1989), 1989 WL

245312, *3 (reversing the ALJ after concluding that BIW's Hardings

facility, located in the same cluster of buildings as the EBMF, was

not an "other adjoining area" under section 903(a), noting that

"[t]he administrative law judge placed too much emphasis upon the

functional relationship between the Hardings facility and

employer's shipyard").

Petitioner has pointed to no case with such an extended view

of the concept of "adjoining." We agree that there is no logical

basis for distinguishing between the maritime employees at the main

shipyard and the similarly occupied employees at the EBMF. Both

are engaged in primary maritime activity directly relevant to the

shipyard, and both sets of employees thus have the same functional

relationship to the navigable waters of the Kennebec. But despite

this equivalence, and despite the Supreme Court's admonition to

broadly construe the 1972 Amendments, we are not at liberty to

ignore entirely the concept of "adjoining." The Supreme Court has

confirmed that the "status" and "situs" requirements are separate,

see Perini North River Assocs., 459 U.S. at 324 n.32 ("[T]he status

requirement is occupational and the situs test is geographic."),

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and we may not "blur together requirements Congress intended to be

distinct," Herb's Welding, Inc. v. Gray, 470 U.S. 414, 426 (1985).

We thus find no legal error in the Board's conclusion that no

matter how much maritime activity takes place at the EBMF, and how

many additional BIW buildings surround it, the substantial expanse

of unrelated land uses between the main shipyard and East Brunswick

forecloses a finding that the one "adjoins" the other.10

In so concluding, we emphasize that we are not employing the

Fourth Circuit's strict "adjoining" standard or holding that all

intervening property must be maritime in nature. Under the

10
The interpretation of "other adjoining area" set forth in
the Department of Labor's LHWCA Program Memorandum No. 58,
Guidelines for Determination of Coverage of Claims Under Amended
Longshoremen's Act (August 5, 1977) ("Guidelines"), is consistent
with this analysis. The memorandum describes the relevant "area"
as "the entire, overall facility devoted to covered activities."
The memorandum continues:

[I]t does not defeat coverage of a shipbuilder's injury
that the precise location where it occurred – for
example, a fabrication shop – does not itself adjoin the
water; it suffices if the overall area within which it
occurred (generally a shipyard) adjoins the water. The
relevant "area," in short, is the entire maritime
facility involved . . . . [S]uch shipyard areas should be
considered to include nearby locations which are in
purpose and effect parts of them, even when a fence or
public roads physically, but not functionally, separate
the location from the shipyard.

Guidelines, at 13-14 (emphasis in original; footnotes omitted).

In our view, the memorandum allows for intervening non-
maritime uses outside the perimeter of the main area, but
contemplates only such minor interruptions as a fence or adjacent
public roads.

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functional approach, public roadways or other non-maritime uses

that separate the subject workplace from the waterfront will not

disqualify the facility from LHWCA coverage. See, e.g.,

Winchester, 632 F.2d at 513 ("We reject the position that the

presence or absence of nonmaritime buildings between the point of

injury and the water is an absolute test for whether an injury is

covered under the LHWA."). The suitability of the site for

maritime use and the unavailability of sites closer to the

waterfront are significant considerations, and both factors

arguably support petitioner here. Nonetheless, even under the

flexible Herron test, for an area to "adjoin" navigable waters,

there must be at least some sense of a largely continuous

neighborhood of maritime uses, some shape of a perimeter – perhaps

broken in spots or irregular in form – that extends out from the

water's edge. See Winchester, 632 F.2d at 514, quoted in Sisson

v. Davis & Sons, Inc., 131 F.3d 555, 557 (5th Cir. 1998) (a

workplace can be said to adjoin navigable waters "so long as the

site is close to or in the vicinity of navigable waters, or in a

neighboring area").

The Director argues that the concept should embrace a facility

that is "functionally part of the shipyard, provided a sufficient

geographic nexus exists between the facility and navigable waters."

Whether or not a statutory amendment to this effect would improve

matters, our view is that it is too much of a stretch for

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"adjoining" to make. Beyond question, substantial evidence

supports the ALJ's implicit finding – and the Board's explicit one

– that the necessary geographical connection does not exist between

the EBMF and the Kennebec.

As the Board noted, Cunningham argues that the geographic

shortcomings between the EBMF and the Kennebec River can be

overcome in the functional analysis because the EBMF is near both

the New Meadows River and Thompson Brook, the latter of which

actually crosses the EBMF property. Cunningham asserts that both

of these waterways are navigable and that their proximity to his

workplace, together with the EBMF's functional connection with the

Kennebec, qualifies him for coverage under the LHWCA. All three

members of the panel agree that this argument is flawed for

reasons fully explained by the ALJ and Board, although two members

believe an alternative route to the same outcome is supported by

the statutory history and precedent. See infra n.17.

What is undisputed among the panel members is that substantial

evidence supports the ALJ's and Board's determination that Thompson

Brook is not navigable and, thus, that its adjacency to the EBMF

property can play no role in the Herron functional analysis. The

ALJ and Board correctly determined that the applicable definition

of "navigable" derives from admiralty law, see generally Victory

Carriers, Inc. v. Law, 404 U.S. 202, 216 (1971); id. at 222-23

(Appendix to Opinion of Douglas, J., dissenting); Nacirema Co. v.

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Johnson, 396 U.S. 212, 215 & n.7 (1969).11 For admiralty purposes,

the concept of "navigability" is generally understood to describe

"a present capability of waters to sustain commercial shipping," or

"contemporary navigability in fact," Livingston v. United States,

627 F.2d 165, 169-70 (8th Cir. 1980). See also Kaiser Aetna v.

11
Cunningham argues that Congress must have enacted the LHWCA
under its commerce powers, rather than as an exercise of its power
under the maritime clause of the Constitution, and that the
broader definition of "navigable" applicable to Commerce Clause
cases thus must be used in this context. This assertion is faulty.
In Victory Carriers, issued before the 1972 Amendments to the
LHWCA, the Supreme Court noted that Congress had "ample power under
Arts. I and III of the Constitution to enact a suitable solution"
if it felt that "denying federal remedies to longshoremen injured
on land is intolerable," 404 U.S. at 216. The cases cited in
support of that statement make it clear that the Court was
referring to Congress's admiralty power. See id. at n.16; see also
id. at 222-223 (Appendix to Opinion of Douglas, J., dissenting)
(noting that the Court had "clearly acknowledged that Congress'
constitutional maritime power does not cease at the shoreline. . .
.").
Although admiralty jurisdiction in tort has traditionally been
limited to torts that took place on navigable waters, admiralty
contract jurisdiction "'extends over all contracts, (wheresoever
they may be made or executed . . .) which relate to the navigation,
business or commerce of the sea,'" Johnson, 396 U.S. at 215 n.7
(citation omitted). Because workers' compensation coverage
embraces both tort and contract elements, "Congress need not have
tested coverage by locality alone." Id. Thus, "Congress might
have extended coverage to all longshoremen by exercising its power
over maritime contracts." Id. at 215.
We think it evident that in the 1972 Amendments, Congress did
exactly what these cases said it had the power to do, namely, used
its constitutional maritime authority to extend LHWCA coverage to
additional land-based maritime employees who met both the status
and situs tests. Cunningham's contention that the non-exclusive
nature of LHWCA relief proves that the statute must be supported by
the commerce power is simply incorrect. State regulation may
supplement federal maritime law so long as it is "consistent with
federal maritime principles and policies." Yamaha Motor Corp., USA
v. Calhoun, 516 U.S. 199, 214-15 & n.13 (1996).

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United States, 444 U.S. 164, 171-72 (noting the varying definitions

of "navigable waters" for different contexts); The Robert W.

Parsons, 191 U.S. 17, 26 (1903) ("the modern doctrine" is that "the

actual navigability of the waters[] is the test of jurisdiction")12;

Chapman v. United States, 575 F.2d 147, 151 (7th Cir. 1978) (en

banc); George v. Lucas Marine Constr., 28 BRBS 230 (1994), 1994 WL

573753, **4, 6 ("[A] natural or an artificial waterway which is not

capable of being used as an interstate artery of commerce because

of natural or man-made conditions is not considered navigable for

purposes of jurisdiction under the [LWHCA]."), aff'd sub nom.

George v. Director, OWCP, 86 F.3d 1162 (9th Cir. 1996) (Table).

12
In defining navigable waters for purposes of admiralty
jurisdiction, the Court in The Robert W. Parsons relied in part on
the widely quoted definition given in The Daniel Ball, 77 U.S. (10
Wall.) 557, 563 (1870), which addressed Congress's commerce power
over navigable waters:

Those rivers must be regarded as public navigable rivers
in law which are navigable in fact. And they are
navigable in fact when they are used, or are susceptible
of being used, in their ordinary condition, as highways
for commerce, over which trade and travel are or may be
conducted in the customary modes of trade and travel on
water.

This definition appeared in early cases involving both the commerce
clause power and admiralty jurisdiction, reflecting an assumption
that their scope was coextensive. Adams v. Montana Power Co., 528
F.2d 437, 440 (9th Cir. 1975). The Supreme Court subsequently
clarified that these were two independent sources of power, see,
e.g., In re Garnett, 141 U.S. 1, 15 (1891), but, as reflected in
The Robert W. Parsons, accepted the "navigable in fact" test as
applicable to admiralty jurisdiction.

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 The ALJ thoroughly reviewed the voluminous evidence submitted

on the issue of Thompson Brook's navigability, and the Board in

turn endorsed the ALJ's finding of non-navigability based on ample

evidence that the waterway is neither presently used for commercial

purposes nor adaptable for future commercial use. We see no need

to repeat here Cunningham's factual contentions, as our review is

limited to ascertaining whether the Board properly applied the

substantial evidence test to the ALJ's findings. As the Board

noted, the evidence concerning Thompson Brook's physical features

("a narrow, shallow channel of water with many sharp meandering

turns"), its lack of current commercial usage, and its location in

a "Resource Protection Zone" all point to the reasonableness of the

ALJ's conclusion. The Board, additionally, credited the ALJ's

finding that Thompson Brook may not be considered an extension of

the navigable New Meadows River, and it rejected appellant's

contention that Thompson Brook should be deemed navigable based on

tidal activity. We find no flaw in these judgments.13 Thus, the

13
The ALJ found that Thompson Brook is not affected by tidal
activity where the brook flows across BIW's property, relying
primarily on maps and a survey conducted by an independent
consulting firm. The survey was the subject of testimony by BIW's
expert, David Kamila, a civil engineer and land use consultant, who
also made personal observations of the site. When asked what the
survey numbers indicated about the tidal effect on the relevant
section of Thompson Brook, Kamila testified that the "numbers tell
you that it's above the mean tide for sure." Because the survey
showed that the lowest elevation of Thompson Brook's channel in the
relevant area was 1.55 feet higher than the average high tide at
the brook's mouth (10.9 feet vs. 9.35 feet), and because "the
height of the tide diminishes as it travels north," the ALJ

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EBMF may not qualify as an adjoining area based on its proximity to

Thompson Brook.

The argument that the functional relationship between the EBMF

and the Kennebec can be supplemented by the geographic proximity of

the New Meadows River, which is indisputably navigable, also

founders. The full panel agrees that the Herron analysis does not

anticipate aggregating a facility's solely functional relationship

with one waterway and its solely geographic proximity to another

non-contiguous waterway. Here, the Board endorsed the ALJ's

determination that no functional relationship exists between the

EBMF and the New Meadows River, and we find no error in that

conclusion. The Board relied heavily on the ALJ's finding that, in

the Board's words, "EBMF's proximity to the New Meadows River is

irrelevant" because "the evidence establishes that employer does

not own the intervening property or use the River for any reason."

understood Kamila to state that the BIW property was beyond tidal
influence. The ALJ thus had ample factual support for his finding.
The Board, citing The Robert W. Parsons and George, stated
that "the tidal fluctuations of Thompson Brook are irrelevant" in
determining navigability. See The Robert W. Parsons, 191 U.S. at
26 (it is "not the ebb and flow of the tide, but the actual
navigability of the waters" that is the test of jurisdiction);
George, 1997 WL 573753, at *7 ("[T]he ebb-and-flow test [has] been
rejected as the test for determining navigability . . . .").
Whether the "ebb and flow" test retains any vitality remains a
matter of discourse, see, e.g., Mary Garvey Algero, Ebb and Flow of
the Tide: A Viable Doctrine for Determining Admiralty Jurisdiction
or a Relic of the Past?, 27 Seton Hall L. Rev. 138 (1996), but the
ALJ's supportable finding of no tidal influence resolves the issue
here.

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 A workplace that fails the situs test because it is too

distant from the navigable water with which it has a functional

link is missing a critical element of the calculus; to fill that

proximity gap with a second, incidental body of water would extend

LHWCA coverage to a much wider range of locations. At least where

the second waterway has no functional connection with the

employer's maritime activities, we find neither precedent nor logic

to support such an extension of the concept of "adjoining area."14

The Board reached the same conclusion, noting that, under Herron

and Winchester, "the site in question must have both a geographic

and functional nexus with the same body of water."15

Whether the EBMF's relationship with the New Meadows River

may, on its own, establish situs under the Herron analysis is a

separate question and one to which we now turn. At its closest

point, the New Meadows is 1,400 feet from the EBMF property, a

distance from navigable waters that reasonably could support a

finding of situs if other factors were similarly favorable. Even

if the ALJ's findings against petitioner on other of the Herron

14
We note that, when a work location has some functional link
with two reasonably proximate waterways, it may be appropriate to
look at the Herron factors relating to each of them in combination.
This is not that case, and we do not decide the issue here.
15
Although one Board member wrote a separate concurring and
dissenting opinion, he joined the majority on this point.

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factors are debatable,16 however, the lack of a functional link

between the EBMF and the New Meadows River overshadows their

impact. As the Board noted, "[the] employer, indisputably, does

not use the New Meadows River, and thus, that waterway cannot

define an area with a functional use related to it."

Because petitioner has failed to establish that the EBMF

satisfies the situs requirement in relation to any of the three

waterways at issue, he is not entitled to benefits under the LHWCA.

The petition for review is therefore denied.17

16
As noted earlier, it is at least arguable that the EBMF
location is both suited to maritime uses and as close to the main
shipyard as is feasible given all the circumstances in the case.
17
Although it is not a basis for decision in this case, two
members of the panel believe that the lack of a functional link
between the EBMF and Thompson Brook may well be the most pertinent
rationale for rejecting situs based on their relationship. In
their view, section 903(a) implicitly provides that an "adjoining
area" covered by the statute must qualify based on its relationship
to the navigable water upon which the employer's maritime activity
takes place. In other words, situs analysis and the Herron test
would come into play only in relation to a body of navigable water
on which the employer conducts its primary maritime business. In
this case, that would be only the Kennebec River.
The third panel member disagrees both with the propriety of
the raising of the theory and with the substance of it. This
member believes that a workplace that is literally contiguous to
navigable waters is by definition an "adjoining" area under section
903(a); thus, if Thompson Brook were navigable, the EBMF would meet
the LHWCA's situs requirement.
In the majority's view, Congress's passage of the 1972
Amendments was a deliberate "march from the sea landward," Triguero
v. Consolidated Rail Corp., 932 F.2d 95, 100, ruling out situs
where the "'raison d'etre'" of a facility had nothing to do with
its fortuitous location near another navigable waterway, see
Brickhouse, 142 F.3d at 222. Such a construction would render
unnecessary any probing of the navigability of an incidental body
of water to determine disability coverage.

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