dissenting.
I respectfully dissent. The majority concludes that because “Claimant’s work was sufficiently land-based” his claim for worker’s compensation benefits falls within the concurrent jurisdiction of both the LHWCA and the PWCA
In Flowers v. Travelers Insurance Co., 258 F.2d 220 (5th Cir.1958), Clyde Flowers, a welder, “was injured while performing his duties ... in making repairs on the S.S. Redstone, a large ocean-going tanker” ... while “[t]he vessel was floating drydock in Todd Shipyard in Galveston Harbor.” Id. at 221. Although eighty percent of Clyde’s work was done ashore in the plate department at Todd Shipyard, the United States Court of Appeals determined that “[t]he non-maritime nature of the so-called regular work or duties is completely irrelevant.” Id. at 221. The United States Court of Appeals stated:
[B]oth before and since the time of Davis, the doing of repair work on an existing vessel has been treated as so clearly maritime in nature that attempted application of State compensation laws would collide with that essential uniformity which was the very breath of Jensen.
There is thus no undefined or undefinable boundary. There is here no marginal employment.
Flowers, 258 F.2d at 222 (footnote omitted). The United States Court of Appeals held that the LHWCA provided the exclusive remedy and that the “twilight zone” exception did not apply because “[t]he outlines of a case of an injury received on navigable waters while engaged in essential repairs to an existing vessel have long been clear and distinct ... [a]s to them there is no twilight.” Id. at 228.
In the present controversy, the facts establish that Claimant was injured while repairing a barge floating on navigable waters. Claimant was clearly performing a maritime activity and his injury falls within the exclusive jurisdiction of the LHWCA.
I would reverse the decision of the Board.
DOYLE, J., joins in this dissent.