Thibodeaux v. Grasso Production Management Inc.

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
May 18, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_______________ Clerk

No. 03-60131
_______________

RANDALL THIBODEAUX,

Petitioner,

VERSUS

GRASSO PRODUCTION MANAGEMENT INC.; SIGNAL MUTUAL INDEMNITY
ASSOCIATION LIMITED, CARRIER; DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, U.S. DEPARTMENT OF LABOR,

Respondents.

_________________________

Petition for Review of
an Order of the Benefits Review Board

_________________________

Before JONES, MAGILL,* and SMITH, Circuit Judges.

MAGILL, Circuit Judge:

Randall Thibodeaux petitions for review of an order of the

Department of Labor Benefits Review Board ("Board") denying him

benefits under the Longshore and Harbor Workers' Compensation Act

("LHWCA"), 33 U.S.C. § 901, et seq. (2000). Thibodeaux sought

compensation under the LHWCA after injuring himself while working

on a fixed oil production platform in the territorial waters of

Louisiana. An administrative law judge held that Thibodeaux's

*
Circuit Judge of the United States Court of Appeals for the
Eighth Circuit, sitting by designation.
injury was covered by the LHWCA. The Board reversed, holding that

the platform was not a covered situs under 33 U.S.C. § 903(a). We

have jurisdiction pursuant to 33 U.S.C. § 921(c), and we deny the

petition for review of the Board's order.

I.

During the relevant period, Thibodeaux worked for Grasso

Production Management Inc. as a pumper/gauger on Garden Island Bay

platform No. 276, a fixed oil and gas production platform. As part

of his duties, Thibodeaux monitored gauges both on the platform and

on nearby wells. He reached the wells by using a 17-foot skiff.

In addition to the skiff, Thibodeaux also piloted a 24-foot vessel,

the M/V Katie Elizabeth, which was used to transport employees from

Venice, Louisiana, to the platform along with their personal

supplies and, on occasion, equipment used for production. The

platform where Thibodeaux spent the majority of his working hours

rests on wooden pilings driven into a small bank next to a canal;

the platform extends over marsh and water, but is accessible only

by vessel. There are docking areas for the two water craft noted

above.

Thibodeaux injured himself after observing that a discharge

line located five feet below the deck of the platform was leaking

oil. Upon determining that he could better inspect the line from

a small wooden platform below the deck and adjacent to the line,

he first lowered himself over the edge and then jumped the two to

three remaining feet down onto the wooden platform. The wood gave

2
way, and Thibodeaux plunged into the marsh below where a nail

pierced his hand. The accident did not occur on the portion of the

platform used to dock the two vessels.

Thibodeaux filed a claim against Grasso and Signal Mutual

Indemnity under the LHWCA. An ALJ held Thibodeaux was covered by

the LHWCA as he was a maritime employee and his injury occurred on

a pier, a situs enumerated in § 903(a). Grasso and Signal appealed

to the Board. The Board reversed the ALJ, reasoning that the oil

production platform was not a "pier" within the meaning of the

statute. It did not reach the issue of status.

II.

We review Board decisions for errors of law and to ensure the

Board does not exceed its statutory authority to review whether an

ALJ's findings of fact are supported by substantial evidence and

consistent with the law. Cooper/T. Smith Stevedoring Co. v.

Liuzza, 293 F.3d 741, 744 (5th Cir. 2002); Munguia v. Chevron

U.S.A. Inc., 999 F.2d 808, 810 (5th Cir. 1993); see also 33 U.S.C.

§ 921(b)(3). The LHWCA provides remuneration for workers who

establish that they were engaged in maritime employment1 on a

covered situs at the approximate time of their injuries. Munguia,

999 F.2d at 810. The situs requirement is satisfied where an

1
Section 902(3) defines a covered employee, with some excep-
tions, as "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." 33 U.S.C. § 902(3).

3
injury occurs "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 sole issue for our review is

whether a fixed oil production platform built on pilings over

marsh2 and water and inaccessible from land constitutes either a

"pier" or an "other adjoining area" within the meaning of § 903(a).

We hold the platform in question is neither, and therefore deny the

petition for review of the Board's ruling that Thibodeaux has not

met the situs requirement of the LHWCA.

This court has previously adopted a functional approach to

construing the parenthetically enumerated structures in § 903(a).

Jacksonville Shipyards, Inc. v. Perdue, 539 F.2d 533, 541 (5th Cir.

1976), vacated and remanded, Pfeiffer Co., Inc. v. Ford, 433 U.S.

904 (1977), reaffirmed, 575 F.2d 79 (5th Cir. 1978), cert. denied,

440 U.S. 967 (1979), overruled on other grounds, Texports Stevedore

Co. v. Winchester, 632 F.2d 504, 516 (5th Cir. 1980).3 In

Jacksonville Shipyards, we required an employee to demonstrate that

2
The ALJ and Board apparently disagreed whether a portion of
the platform was driven into dry land as opposed to marsh.
Thibodeaux v. Grasso Prod. Mgmt., Inc., No. 02-0260 at 6 (BRB Dec.
17, 2002). Because we adhere to a functional approach to defining
"pier," it is unnecessary for us to decide whether the platform was
in fact secured to dry land or marsh, a determination that would
likely change with the tide.
3
Despite its troubled history, Jacksonville Shipyards remains
controlling law on this proposition.

4
"a putative situs actually be used for loading, unloading, or one

of the other functions specified in the Act." Id. In this way, we

interpreted the statute not to encompass all possible instances of

the enumerated structures, but rather only those with some relation

to the purpose of the LHWCA—providing compensation for maritime

workers injured in areas used for maritime work. Id. Under the

reasoning of Jacksonville Shipyards, while a structure built on

pilings and straddling both land and water may bear some physical

resemblance to a pier, if it does not serve a maritime purpose, it

is not a pier within the meaning of § 903(a). This position has

been criticized; the ALJ in this case declined to follow

Jacksonville Shipyards, instead employing the interpretation of

pier first set forth in Hurston v. Dir., Office of Workers Comp.

Programs, 989 F.2d 1547 (9th Cir. 1993), and later adopted by

Fleischmann v. Dir., Office of Workers' Comp. Programs, 137 F.3d

131 (2d Cir. 1998). Thibodeaux v. Grasso Prod. Mgmt., Inc., No.

2001-LHC-1433 at 12 (ALJ Nov. 15, 2001). The Board in turn

rejected the Hurston approach and set forth a functional analysis.

We agree with the Board that the Hurston court's definition of pier

is overly broad, and we instead adhere to the functional approach

first announced in Jacksonville Shipyards.

In Hurston, the employee worked as a pile driver on a fixed

oil production platform built on pilings extending from land to

sea. Id. at 1548. Unlike the structure in this case, the platform

at issue in Hurston was accessible from land. Id. at 1554 (quoting

5
findings of fact made by the ALJ) (Alarcon, J., dissenting). In

the course of holding that an oil production platform was a pier

and therefore a covered situs, the Ninth Circuit eschewed the

functional approach of Jacksonville Shipyards, instead holding that

appearance wholly determined identity: "if it appears to be a pier,

if it is built like a pier and adjoins navigable waters, it's a

pier." Id. at 1549. The court rested its decision mainly on the

fact that a close reading of § 903(a) reveals the enumerated term

"pier" is not qualified by the phrase "customarily used by an

employer in loading, unloading, repairing, dismantling, or building

a vessel" as is the phrase "other adjoining area." Id. It

reasoned that had Congress wanted to limit the meaning of the

enumerated structures to its maritime connotation, it would have

supplied a comma between "other adjoining area" and "customarily

used," or otherwise explicitly stated its intention. Id. at 1549-

50. Since Congress did not, the Hurston court assumed Congress

must have intended "pier" to have its broadest meaning—any

structure "built on pilings extending from land to navigable

water." Id. at 1553. The Supreme Court, this circuit and the

Eleventh Circuit have all expressly declined to resolve whether an

enumerated structure such as a pier or a wharf need also be

"customarily used by an employer in loading, unloading, repairing,

dismantling, or building a vessel." Northeast Marine Terminal Co.

v. Caputo, 432 U.S. 249, 280 (1977); Texports Stevedore Co. v.

6
Winchester, 632 F.2d 504, 511-12 n.11 (5th Cir. 1980) (en banc)4;

Brooker v. Durocher Dock & Dredge, 133 F.3d 1390, 1394 (11th Cir.

1998) ("We, like the Supreme Court in Caputo and the former Fifth

Circuit in Winchester, need not reach the issue of whether a pier

must be 'customarily used' for vessel activity to meet the situs

test in section 3(a) of the LHWCA.").

Even assuming the Hurston court is correct in its grammatical

reading of § 903(a), its conclusion does not follow from its

premise. To hold as a matter of grammar and punctuation that the

phrase beginning "customarily used" does not modify "pier" is quite

different from holding as a matter of law that the term "pier"

derives no meaning from its context in a maritime statute, and that

the term's statutory meaning extends to the outer limits of its

4
In Winchester, this court noted possible tension between
Caputo and Jacksonville Shipyards:"[t]he [Jacksonville Shipyards]
panel indicated that all sites must be customarily used for
maritime purposes, but the Supreme Court has expressed doubt over
whether the 'customarily used' language applies to the seven
specific sites as well as the general one." 632 F.2d at 511-12
n.11. However, the Winchester court specifically declined to
resolve the issue, as that case required application of the "other
adjoining areas" category rather than an enumerated site. Nor did
the Supreme Court in Caputo resolve the broader question of whether
the enumerated sites should be defined functionally. At best, that
Court cast doubt on whether, as a matter of grammar, the phrase
beginning "customarily used" modified the enumerated sites. It did
not hold that a structure similar to an enumerated site in
appearance need serve no maritime purpose to come within § 903(a).
To the contrary, the Court noted the situs at issue in Caputo was
used for loading and unloading. 432 U.S. at 281. As we explain
below, our opinion today does not rest on reading the phrase
"customarily used by an employer in loading [or] unloading" to
modify "pier" as a matter of grammar. Rather, we hold the context
of the statute indicates the enumerated sites should have some
maritime purpose.

7
meaning in ordinary language.

The Board in the present case aptly described Hurston's error

in this regard:

While the Board acknowledged in Hurston that the sites
enumerated in Section 3(a) need not be shown to be
customarily used for loading, unloading, building or
repairing vessels, in contrast to the general "other
adjoining areas" covered by the Act, it does not follow
that such a site is covered based solely on appearance
where it clearly lacks a maritime purpose. The sites
enumerated in Section 3(a) are all land-based structures
or areas which adjoin navigable waters and are typically
used in maritime activities. An enumerated site, like a
pier or dry dock, is thus covered without the need for
specific proof that the site in fact has a maritime use.
Where, however, the record does contain evidence that a
site does not serve a maritime function, the fact that it
may look similar to a pier cannot control. . . . The mere
fact that the platform is located over water cannot alter
the fact that its use as a drilling facility is a non-
maritime use.

Thibodeaux v. Grasso Prod. Mgmt., Inc., No. 02-0260 at 6-7 (BRB

Dec. 17, 2002).

We agree with the Board that we need not read the phrase

"customarily used" as modifying "pier" in order to arrive at the

conclusion that the term "pier" in § 903(a) does not include every

conceivable structure built on pilings over land and water, but

rather only those serving some maritime purpose.

The maritime nature of the LHWCA imparts a meaning to §

903(a)'s enumerated terms that goes beyond their use in ordinary

language. Congress enacted the LHWCA pursuant to its maritime

jurisdiction, having been twice rebuffed by the Supreme Court in

its initial attempts to use state workers' compensation laws to

8
cover injuries occurring in navigable waters. Calbeck v. Travelers

Ins. Co., 370 U.S. 114, 117 (1962) (holding that Congress invoked

its constitutional maritime power in enacting the LHWCA in 1927);

Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920) (invalidating

pre-1927 legislation delegating to states the power to legislate

maritime workers' compensation laws); Washington v. W.C. Dawson &

Co., 264 U.S. 219 (1924) (same). The LHWCA provides only for

employees "engaged in maritime employment" who work either on or

near navigable waters. 33 U.S.C. § 902(3). In light of the

statute's origin and aim, it would be incongruous to extend it to

cover accidents on structures serving no maritime purpose.

Moreover, the terms enumerated in § 903(a) which accompany

pier—wharf, dry dock, terminal, building way, and marine railway—

connote maritime commerce. Hurston, 989 F.2d at 1558 (Alacron, J.,

dissenting). The canon noscitur a sociis, "a word is known by the

company it keeps," is "often wisely applied where a word is capable

of many meanings in order to avoid the giving of unintended breadth

to the Acts of Congress." Hickman v. Texas, 260 F.3d 400, 403 (5th

Cir. 2001) (quotations omitted). The approach adopted by the ALJ

and the Hurston court results in just such an overly broad

interpretation of the term "pier." The Hurston court acknowledged

that its minimalist definition of structures enumerated in § 903(a)

could include, in addition to oil production platforms, "offices,

homes, restaurants, retail outlets, and parking lots" built on

foundations that resemble piers or wharves. 989 F.2d at 1553. If

9
the enumerated terms are considered in isolation, and only their

most basic attributes extracted from definitions, then perhaps they

could stretch so far as to include homes and parking lots. But

when viewed together in the context of the LHWCA, a connection to

maritime commerce becomes the unifying thread connecting the listed

structures.5 See Hickman, 260 F.3d at 403 ("'[I]n expounding a

statute, we must not be guided by a single sentence or member of a

sentence, but look to the provisions of the whole law, and to its

object and policy.'") (quoting Kelly v. Robinson, 479 U.S. 36, 43

(1986)).

It is contrary to sound statutory construction to impute an

intent to Congress that "pier" be defined in such a way as to

include structures having no connection to maritime activity, where

the term is contained in a statute enacted pursuant to Congress's

maritime jurisdiction and for the benefit of maritime employees,

and is placed in a list of structures with obvious maritime

connotations.

5
Additionally, we note that in context the word "other" in the
phrase "or other adjoining area customarily used by an employer in
loading [or] unloading" (emphasis added) means something to the
effect of "additional," and necessarily refers back to the
enumerated structures, indicating that what follows will have some
resemblance to what preceded. It is reasonable to surmise that
Congress intended for the additional unspecified "adjoining areas"
to have qualities similar to those possessed by the enumerated
structures, such as being used for a maritime purpose. Thus the
similarity between the enumerated structures and any qualifying
structure in the catch-all "other adjoining area" category is that
structures in both categories customarily are used for a maritime
purpose such as loading and unloading vessels.

10
 The Hurston court attempted to buoy its definition of "pier"

by sinking into the long history of the LHWCA. The court

concluded:

Since 1972, the LHWCA has emphasized status over situs to
avoid the anomaly of a worker walking in and out of
coverage. It would be counter to the history of the
statute now to restrict the situs requirement to only
those piers with "maritime use": a maritime employee
injured on a pier which is not used for a maritime
purpose would continually "walk in and out" of coverage,
as did all longshoremen before 1972.

989 F.2d at 1551; see, e.g., Chesapeake & Ohio R.R. Co. v. Schwalb,

493 U.S. 40, 46 (1989) (stating that prior to the 1972 amendment

adding the enumerated structures, maritime workers loading or

unloading a vessel were covered if an injury occurred on the vessel

or gangplank, but not on a wharf or pier). However, we do not

resurrect that evil by holding that fixed oil production platforms

are not piers. Workers on oil platforms would not walk in and out

of coverage like workers unloading vessels prior to 1972; rather,

oil platform workers like Thibodeaux would, for the vast majority

of their working hours, simply be outside of coverage of the LHWCA,

just like oil production workers on land-based drilling operations.

The Supreme Court has rejected the argument that coverage must be

extended to workers on oil production platforms in order to avoid

recreating the problem Congress attempted to resolve in 1972.

Herb's Welding, Inc. v. Gray, 470 U.S. 414, 427 n.13 (1985). Like

the worker in Herb's Welding, Thibodeaux "is a far cry from the

paradigmatic longshoreman who walked in and out of coverage during

11
his workday and spent substantial amounts of his time 'on navigable

waters.'" Id. The Ninth Circuit has previously recognized this

very point. Williams v. Dir., Office of Workers Comp. Programs,

825 F.2d 246, 247 (9th Cir. 1987) (stating that the anomaly of

walking in and out of coverage is not present when work is being

performed in an area with "no functional relationship to maritime

activity").

The Board's decision is further strengthened by the fact that

the Supreme Court has twice considered fixed oil production

platforms to be islands. Herb's Welding, 470 U.S. at 422 n.6;

Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 360 (1969).

In Rodrigue, the Court held that fixed drilling rigs located on the

outer Continental Shelf off the Louisiana coast were artificial

islands. 395 U.S. at 359-60. Though Rodrigue concerned admiralty

jurisdiction over tort claims arising from accidents on fixed oil

drilling platforms and not whether such rigs meet the situs

requirement of the LHWCA, Rodrigue's appellation was approved in

Herb's Welding, which did concern the post-1972 amended LHWCA. 470

U.S. at 421-22.

In Herb's Welding, the Supreme Court reviewed a decision by

this court affirming benefits under the LHWCA for an employee

injured while welding on a fixed oil production platform in

Louisiana waters. Herb's Welding, Inc. v. Gray, 703 F.2d 176 (5th

Cir. 1983). This court based its situs determination on language

in Rodrigue likening oil production platforms to wharves. Id. at

12
177-78.6 The Fifth Circuit noted that at the time Rodrigue was

decided, wharves where not covered sites under the LHWCA. Id.

Since after Rodrigue the statute was amended to extend to wharves

and piers, this court reasoned that the Rodrigue court's analogy

provided a sufficient foundation to hold that fixed oil production

platforms could satisfy § 903(a) because they are like wharves in

that they are customarily used in loading and unloading crews,

supplies, and oil. Id. at 178. The Supreme Court reversed. While

it limited its decision to status rather than situs, the Court

reaffirmed Rodrigue's classification of fixed oil production

platforms as islands, stating in response to the dissent's likening

of a production platform to a pier that "while Rodrigue did observe

that offshore platforms are like piers, its holding was that they

are islands. It has not been suggested that workers on islands are

covered by the LHWCA." 470 U.S. at 422 n.6 (internal citation

omitted). Herb's Welding's insistence that oil production

platforms be considered islands even outside of the narrow issue of

admiralty jurisdiction, together with the statutory analysis above,

provides ample support for holding that the oil production platform

at issue in this case is not a pier, even though it may possess a

few of the basic physical attributes of a pier.

Nor should a court rely more heavily on the requirement of

6
Though not discussed in the Fifth Circuit's decision in
Herb's Welding, Rodrigue likened production platforms to piers as
well as wharves. 395 U.S. at 360.

13
status to circumscribe the outer limits of coverage under the LHWCA

where an enumerated situs is at play. Situs and status play equal,

coordinate roles in determining coverage. As then-Judge Kennedy

wrote:

Situs and status must coincide before coverage will attach.
Each test acts as a control upon the other so as to diminish
the potential for undue expansion of coverage. . . . [B]y
operating coordinately, the status and situs tests fix
coverage within somewhat more certain bounds than would be the
case under either test alone.

Brady-Hamilton Stevedore Co. v. Herron, 568 F.2d 137, 140 (9th Cir.

1978).

III.

Having resolved to require that in order to be a pier within

the meaning of the LHWCA a structure must have some maritime

purpose, we conclude that the oil production platform where

Thibodeaux worked does not meet that standard. Both this court and

the Supreme Court have expressed the opinion that work commonly

performed on oil production platforms is not maritime in nature.

Munguia v. Chevron U.S.A. Inc., 999 F.2d 808, 818 (5th Cir. 1993);

Herb's Welding, 470 U.S. at 423-24.

Munguia involved a case quite similar to the present one,

though we ultimately resolved it on the basis of status. The

employee in Munguia was also a pumper/gauger working on fixed oil

production platforms built over marsh and water and accessible only

by water. 999 F.2d at 809. Just as in this case, the employer

maintained vessels at the platforms in order to serve the needs of

14
production. Id. at 810. Even though the platforms were accessed

by boat, we held that the use of boats for servicing and

maintaining production facilities was not in furtherance of a

maritime purpose. Id. at 812-13. Munguia relied heavily on Herb's

Welding, where the Supreme Court held that a welder on a fixed oil

production platform was not a maritime employee within the LHWCA.

In the course of its analysis, the Court examined work normally

performed on oil production platforms. As for building and

maintaining platforms and pipelines, it concluded that "[t]here is

nothing inherently maritime about those tasks. They are also

performed on land, and their nature is not significantly altered by

the marine environment, particularly since exploration and

development of the Continental Shelf are not themselves maritime

commerce." 470 U.S. at 425 (emphasis added). While both Munguia

and Herb's Welding are status cases, their description of the work

performed on fixed oil production platforms as non-maritime is

highly relevant to the issue of whether the oil production platform

in this case has a connection to maritime commerce. Against the

backdrop of Munguia and Herb's Welding, Thibodeaux has pointed to

no connection Garden Island Bay platform No. 276 has with maritime

commerce that distinguishes it from the platforms in those cases.7

Oil is not shipped from the platform. Although personal gear and

7
The platforms at issue in Munguia were actually serviced by
a fleet much larger than the one here. 999 F.2d at 810 (stating
that eight to twelve small vessels and at least one large vessel
were used to service the production field).

15
occasionally supplies are unloaded at docking areas on the

platform, the purpose of the platform is to further drilling for

oil and gas, which is not a maritime purpose.

IV.

Finally, the Board also determined that Thibodeaux's injury

did not occur on an "other adjoining area customarily used by an

employer in loading, unloading, repairing, dismantling, or building

a vessel." 33 U.S.C. § 903(a). We assume that the area of

injury—a platform and marsh a short distance away from navigable

water—qualifies as an "adjoining area." However, an adjoining area

must be "customarily used for significant maritime activity."

Texports Stevedore Co. v. Winchester, 632 F.2d 504, 515 (5th Cir.

1980) (en banc). Even if we define the "area" of injury broadly as

the entire production platform rather than the adjacent small

wooden platform from which Thibodeaux actually fell, the analysis

above demonstrates that under Munguia and Herb's Welding, an oil

production platform is normally not the site of significant

maritime activity. See id. at 516 (reasoning that "area" should be

broadly construed). Nor does the record in this case indicate that

the platform at issue here is different from the platforms in those

cases in a meaningful way.

V.

For the foregoing reasons, we deny the petition for review of

the Board's decision holding Thibodeaux has not met the situs

requirement of 33 U.S.C. § 903(a).

16