Jonathan Corporation v. Brickhouse

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JONATHAN CORPORATION,
Petitioner,

v.

MICHAEL C. BRICKHOUSE; DIRECTOR,
No. 96-2457
OFFICE OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.

JONATHAN CORPORATION,
Petitioner,

v.

MICHAEL C. BRICKHOUSE; DIRECTOR,
No. 97-1039
OFFICE OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.

On Petitions for Review of Orders
of the Benefits Review Board.
(95-1556)

Argued: October 30, 1997

Decided: April 23, 1998

Before RUSSELL,* NIEMEYER, and WILLIAMS, Circuit Judges.
_________________________________________________________________
*Judge Russell heard oral argument in this case but died prior to the
time the decision was filed. The decision is filed by a quorum of the
panel. 28 U.S.C. § 46(d).
Petition for review granted and order of the Benefits Review Board
reversed by published opinion. Judge Niemeyer wrote the opinion, in
which Judge Williams joined.

_________________________________________________________________

COUNSEL

ARGUED: F. Nash Bilisoly, IV, VANDEVENTER, BLACK, MER-
EDITH & MARTIN, L.L.P., Norfolk, Virginia, for Petitioner. John
Harlow Klein, RUTTER & MONTAGNA, L.L.P., Norfolk, Virginia,
for Respondents. ON BRIEF: Kelly O. Stokes, VANDEVENTER,
BLACK, MEREDITH & MARTIN, L.L.P., Norfolk, Virginia, for
Petitioner. Matthew H. Kraft, RUTTER & MONTAGNA, L.L.P.,
Norfolk, Virginia, for Respondents.

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

We are presented with the jurisdictional question of whether the
Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33
U.S.C. § 901 et seq., covers an employee's injury sustained in a steel
fabrication plant near navigable water. Coverage depends on satisfac-
tion of a "situs" test and a "status" test. Because we conclude that the
situs requirement is not met, we hold that the LHWCA does not cover
the employee's injury and reverse the decision of the Benefits Review
Board which ruled otherwise.

I

Michael C. Brickhouse was injured in August 1993, when a 12-foot
square piece of steel fell on him while he was working for his
employer, Tidewater Steel Company, a steel fabrication firm in Ches-
apeake, Virginia. Brickhouse was a welder who had worked for Tide-
water Steel for four and one-half years. Following his injury he went
to the hospital and has not returned to work.

The Tidewater Steel facility at which Brickhouse worked is an
80,000-square foot building which is divided into three bays. One bay

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is used exclusively to fabricate steel for Jonathan Corporation, Tide-
water Steel's parent corporation, for maritime related projects, such
as the repair and replacement of ship components. The other two bays
fabricate steel for bridges and other non-maritime projects.

Brickhouse had, over the years, spent substantial periods of time
performing welding on components for installation in ships, and on
occasion he would travel to the shipyards of Jonathan Corporation to
work on the components' installation. The majority of his time, how-
ever, was expended in welding on non-maritime projects in the other
two bays of the Tidewater Steel facility. Jonathan Corporation con-
tends in its brief that the work records for Brickhouse, which are in
the record, demonstrate that he worked more than 75% of the time on
non-maritime projects. At the time of his injury, Brickhouse was
working in a non-maritime bay of the plant on a railroad bridge that
was to be shipped to Concord, North Carolina.

The property on which the Tidewater Steel facility is situated is
contiguous to the Southern Branch of the Elizabeth River, a navigable
waterway, and the property has a dock for loading barges. Tidewater
Steel, however, receives all of its steel by rail or truck, and likewise
ships out most of its fabricated product by rail or truck. From time to
time, when components are especially large, it ships them by barge.
The record reveals, for example, that on at least one occasion, the
company shipped components of a flight deck by barge to a navy
shipyard for installation on a navy ship.

In response to Brickhouse's claim for workers compensation under
the LHWCA, Jonathan Corporation challenged coverage of the Act,
contending that Brickhouse was not, at the time of his injury, on "nav-
igable waters of the United States," as required by U.S.C. § 903(a),
and that he was not engaged in "maritime employment," as required
by 33 U.S.C. § 902(3). These requirements refer to "situs" and "sta-
tus" requirements for jurisdiction, both of which must be satisfied.
See Director, OWCP v. Perini N. River Assocs., 459 U.S. 297, 314
(1983); Northeast Marine Terminal Co. v. Caputo , 432 U.S. 249, 265,
279 (1977); Pittman Mech. Contractors v. Director, OWCP, 35 F.3d
122, 125 (4th Cir. 1994).

The ALJ found that both situs and status requirements were satis-
fied in this case. In finding the situs requirement met, he observed that

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the plant was located on a navigable waterway which was used on
occasion to ship heavy prefabricated steel, such as flight decks, for
installation on ships. While the ALJ assumed that the majority of the
plant's work was committed to the fabrication of non-maritime steel
products shipped by rail or truck, he observed that a "significant
amount of its work is maritime related." The ALJ concluded:

[T]he evidence of record establishes Claimant's injury took
place in an adjoining area to a navigable waterway, the
South Branch of the Elizabeth River. The adjoining area is
the Tidewater Steel facility in Chesapeake, Virginia. That
location is used by the employer in loading and unloading
vessels. Consequently, Claimant has established the situs
requirement.

In finding the status requirement met, the ALJ held that a claimant
"need not be engaged in maritime employment at the time of the rele-
vant injury" and that a claimant "who regularly performs duties relat-
ing to maritime employment should not be denied coverage if injured
while temporarily performing some non-maritime activity." He con-
cluded that a "significant amount" of Brickhouse's work was mari-
time in nature because he welded on components intended for
installation in ships, because he sometimes installed components on
ships, and because he sometimes worked at amphibious bases and at
shipyards. The ALJ thus concluded that, even though the claimant
was working on non-maritime work at the time of his injury, "he is
one of those employees who can walk in and out of maritime activity
at the whim of his employer."

Having found both the situs and status requirements satisfied, the
ALJ concluded that Brickhouse was an employee covered by the
LHWCA. The Benefits Review Board affirmed, and this appeal fol-
lowed.

II

Until 1972, the Longshoremen's and Harbor Workers' Compensa-
tion Act ("Longshoremen's" remained in the Act's title until 1984
when it was changed to "Longshore") provided coverage for injuries
occurring only "upon the navigable waters of the United States

4
(including any dry dock)." 33 U.S.C. § 903 (1970 ed.). If an injury
occurred on a pier adjoining navigable waters, it occurred on the land
side of jurisdiction, and coverage of the Act was denied. See
Nacirema Operating Co. v. Johnson, 396 U.S. 212, 223-24 (1969).
The "line of demarcation" between land and water defined the line
between coverage of the Longshoremen's and Harbor Workers' Com-
pensation Act and coverage of state workers' compensation laws.
Director, OWCP v. Perini N. River Assocs., 459 U.S. 297, 316
(1983). "As a consequence, longshoremen continually walked in and
out of LHWCA coverage as they walked up and down the gangplank
from ship to shore during the loading and unloading of vessels."
Sidwell v. Express Container Servs., Inc., 71 F.3d 1134, 1135 (4th
Cir. 1995) (citing S. Rep. 92-1125, 92nd Cong., 2d Sess. 12-13
(1972)). In Nacirema, the Supreme Court stated that any invitation "to
move that line [of jurisdiction] landward must be addressed to Con-
gress, not to this Court." Id. at 224. As the Court later observed, "In
1972, Congress moved the line." Caputo, 432 U.S. at 260.

The 1972 amendments to the Longshoremen's and Harbor Work-
ers' Compensation Act moved the line landward by including in the
definition of navigable waters "any adjoining pier, wharf, dry dock,
terminal, building way, marine railway, or other adjoining area cus-
tomarily used by an employer in loading, unloading, repairing, dis-
mantling, or building a vessel." 33 U.S.C. § 903(a). In so moving the
line, however, Congress recognized that non-maritime employees
would be included within coverage under a pure situs test. Conse-
quently, it also limited the class of employees covered by defining
employee to mean "any person engaged in maritime employment,
including any longshoreman or other person engaged in longshoring
operations, and any harbor-worker including a ship repairman, ship-
builder, and ship-breaker." 33 U.S.C. § 902(3).

One of Congress' principal purposes in moving the coverage line
landward was to provide more uniform coverage for longshoremen as
they loaded and unloaded ships and repaired them. See Herb's Weld-
ing, Inc. v. Gray, 470 U.S. 414, 426 (1985); Caputo, 432 U.S. at 272.
It made little sense that a longshoreman injured at one end of a gang-
plank was covered, while at the other end, he was not covered, even
though he was doing the same job. Also, with the advent of container-
ization and other modern loading techniques, much of the loading and

5
unloading work was done on the pier adjacent to the ship. See Caputo,
432 U.S. at 269-70. Thus, Congress believed that coverage for a per-
son who did traditional longshoremen's work both on the water and
on the adjacent land should not depend on where the person was
standing in relation to the water's edge when injured. See id. at 272.

With the 1972 amendments, the test for coverage thus changed
from a simple situs test to a test incorporating situs and status require-
ments. Even with the new situs boundary moved landward, however,
the situs requirements still establish a geographical boundary for cov-
erage. See Herb's Welding, 470 U.S. at 427; Caputo, 432 U.S. at 263-
64. As with any geographical boundary, workers can still move across
that boundary into and out of the Act's coverage. See Herb's Welding,
470 U.S. at 426 ("[T]here will always be a boundary to coverage, and
there will always be people who cross it during their employment.");
Humphries v. Director, OWCP, 834 F.2d 372, 373-74 (4th Cir. 1987).
The question now, however, is where the geographical boundary for
coverage of the LHWCA runs and, more particularly, whether it
includes the location where Brickhouse was injured.

Jonathan Corporation contends that the boundary does not encom-
pass the situs where Brickhouse was injured. It notes that he was
injured while fabricating steel for an inland bridge in a steel fabrica-
tion plant located "approximately 1,000 feet from the Elizabeth
River." It argues that Brickhouse's work area is not "contiguous with
a navigable waterway" and that the facility in which he was working
was not "like a pier, wharf, dry dock, terminal, building way, or
marine railway. . . . Tidewater Steel is a plant where heavy steel is
fabricated." It argues further that the Tidewater Steel plant was not
customarily used for loading, unloading, repairing, dismantling, or
building a vessel. It notes that Tidewater Steel did not even have a
shoreside crane that could be used for those purposes at the water's
edge of its property.

Brickhouse, arguing for coverage, states that the Tidewater Steel
facility is contiguous to navigable waters because the plant's property
extends to the water's edge. He argues, moreover, that Tidewater
Steel has in fact loaded fabricated steel onto barges from its property.
Finally, he notes that one entire bay of the Tidewater Steel facility is
dedicated to the fabrication of ship-bound components.

6
Because the facts relating to the resolution of the situs issue are not
substantially in dispute, coverage becomes a question of law which
we determine de novo. The Board's adjudicatory interpretations of the
LHWCA are thus not entitled to deference but rather are subject to
our independent review. See Potomac Elec. Power Co. v. Director,
OWCP, 449 U.S. 269, 278 n.18 (1980); Pittman Mech. Contractors
v. Director, OWCP, 35 F.3d 122, 125 (4th Cir. 1994).

The situs requirement of the LHWCA limits coverage only to inju-
ries

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

33 U.S.C. § 903(a). In extending the line of coverage landward, Con-
gress thus defined navigable waters to include certain land areas "ad-
joining" the navigable waters.

The landward extension is a seamless annexation of land to naviga-
ble waters for purposes of LHWCA coverage. See Caputo, 432 U.S.
at 263. But the annexation does not include all adjacent land. The stat-
ute extends "navigable waters" only to land relating to work on those
waters, specifically enumerating adjoining piers, wharfs, dry docks,
terminals, building ways, and marine railways. See 33 U.S.C.
§ 903(a). These are facilities customarily used by longshoremen in
loading and unloading ships and in repairing or building them. See
Caputo, 432 U.S. at 271 n.32. The link between the navigable waters
and the land side facilities is thus established under the statute by (1)
the contiguity of the land side facility and navigable water, and (2) the
affinity of the land side facility to longshoremen's work on ships.

Anticipating that its enumeration of land side facilities might not
be complete, Congress also incorporated a catchall term in § 903(a)
to include any "other adjoining area customarily used by an employer
in loading, unloading, repairing, dismantling, or building a vessel." 33
U.S.C. § 903(a). But again, Congress did not abandon its legislating
principle of connecting this "other area" to the work of longshoremen

7
on navigable waters. The "other area" annexed to navigable waters by
the Act must again be "adjoining" the water and must again be linked
to the traditional longshoremen's work on the water. The "other area"
must be for the loading or unloading of cargo onto ships in navigable
waters or for the "repairing, dismantling, or building" of those ships.
Id.

In the foregoing manner, Congress was careful to address the prob-
lem of a longshoreman walking into and out of jurisdiction at water's
edge as he performed traditional longshore work on and off ships in
navigable waters. It did so by drawing a new line of demarcation
landward. See, e.g., Caputo, 432 U.S. at 266 n.27 (quoting legislative
reports).

These principles are mostly established in our circuit. In Sidwell,
we noted that land is made part of navigable waters for purposes of
LHWCA coverage "only if it `adjoins' navigable waters, that is, if it
is `contiguous with' or otherwise `touches' such waters." 71 F.3d at
1138-39. While the problem presented in Sidwell did not require us
to address the nature of land side facilities that the LHWCA covers,
we did observe the controlling principle that the kinds of property that
the LHWCA enumerates are "discrete structure[s] or facilit[ies], the
very raison d'etre of which is [their] use in connection with navigable
waters." Id. at 1139; see generally Humphries, 834 F.2d at 375
("[T]he LHWCA requires us to draw a spacial line for coverage under
the Act").

The situs test, in sum, is a geographical one, and even though a
longshoreman may be performing maritime work, if he is not injured
within the land area specified by the statute, he is not covered by the
Act.

Consistent with these principles, we have held that when a long-
shoreman moved out of coverage, even momentarily, leaving a shore-
side facility in a car to pick up food for his fellow workers, he was
not covered by the LHWCA when he was injured during that momen-
tary departure. See Humphries, 834 F.2d at 375. When Congress
addressed a longshoreman's moving into and out of coverage at
water's edge as he unloaded a ship or repaired it, Congress did not
purport to eliminate the phenomenon of moving into and out of cover-

8
age -- such a condition necessarily attends any geographical bound-
ary of coverage. See Herb's Welding, 470 U.S. at 426-27 (noting that
there always will be a boundary of coverage which people cross dur-
ing their employment). Rather, it moved the line landward only to
lessen the irrationality of a line at water's edge where coverage
depended on which end of the gangplank a longshoreman was
injured. See id.; Caputo, 432 U.S. at 272.

With these principles in hand, we may readily apply them to the
case before us. At the time of his employment, Brickhouse was fabri-
cating steel parts for an inland bridge in North Carolina. He was fabri-
cating them in a steel fabrication plant which was not a pier, wharf,
dry dock, terminal, building way, or marine railway. Nor was it, we
conclude, a similar type of facility that fits the catchall provision.
While at the plant, the employees' work did not routinely take them
from within the plant, onto adjoining water, and back again into the
plant. On the contrary, when at the plant, their work kept them in the
plant to fabricate steel components that were shipped from the plant,
usually by rail or truck, either to an inland site or to a ship on naviga-
ble waters for installation. The very fact that it was necessary for the
components to be shipped from the plant before their installation,
whether by ship or not, provides the fact that insulates the plant from
navigable waters and distinguishes Brickhouse's work location from
that of the traditional longshoreman's workplace at the water's edge.
When Brickhouse worked on ships, which he occasionally did, he
traveled by land to the shipyards where he then installed fabricated
parts. During these times, he was undoubtedly on a situs covered by
the LHWCA. But while at the Tidewater Steel plant, his situs was no
different than it would have been at any steel fabrication plant any-
where in the land.

Brickhouse argues that the fact that the Elizabeth River runs con-
tiguous to the plant's property satisfies the situs requirement. That
fact, however, is simply fortuitous. The plant was not connected to the
Elizabeth River in any way necessary to make workers in the plant
longshoremen working at the water's edge. Indeed, the plant was
almost a thousand feet from the water's edge, and it was not "custom-
ary" for the plant's workers to move between land and water in any
regular way. They remained in the plant fabricating maritime and

9
non-maritime components, just as they would have done if the plant
were located at any inland site.

Stated otherwise, the steel fabrication plant where Brickhouse was
injured was not a facility, the "raison d'etre of which is its use in con-
nection" with the nearby navigable waters. See Sidwell, 71 F.3d at
1139. The plant did not serve ships at the water's edge. Indeed, there
is no evidence that Tidewater Steel ever repaired, dismantled, or built
a ship at its barge dock on the Elizabeth River. Rather, it served ships
at other locations by manufacturing components at its plant and ship-
ping them from the plant to the other locations. Moreover, the fact
that components were, on rare occasions, shipped by barge from Tide-
water Steel's dock is not meaningful. The barge dock on Tidewater
Steel's property would be relevant only if barges were the "custom-
ary" method of shipment and if its employees were longshoremen
who customarily loaded the barge at the facility. See 33 U.S.C.
§ 903(a). But the evidence in the record is insufficient to draw either
conclusion.

Because we conclude that at the time of his injury, Brickhouse was
not on a situs covered by the LHWCA, we need not address the more
complex question of whether Brickhouse was injured while engaging
in maritime employment. See, e.g., Herb's Welding, 470 U.S. at 424-
25 (observing, "we have never read `maritime employment' to extend
so far beyond those actually involved in moving cargo between ship
and land transportation" to include a claimant who was a welder, and
thus a welder, without more, "was not engaged in maritime employ-
ment"). The petition for review is granted, and the judgment of the
Benefits Review Board is

REVERSED.

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