concurring:
I concur only in the results reached by the majority opinion in affirming the decision of the Administrative Law Judge (ALJ). The ALJ correctly applied the Brady-Hamilton test which was cited with approval in Hum-phries. This test provides a sufficient mechanism to resolve, on a case by ease basis, situs issues raised by 33 U.S.C. § 903(a) as a part of the Longshore and Harbor Workers’ Compensation Act (LHWCA). The facts of the present case do not justify abandoning Brady-Hamilton, and creating a more restrictive interpretation of the situs test so as to preclude coverage for injuries sustained by maritime employees.
As indicated by footnote 12 of the majority opinion, the ALJ correctly applied the factors of Brady-Hamilton and “expressly found that ‘there are no outstanding characteristics of the site that make it especially suitable for maritime use,’ the adjoining properties are not devoted primarily to maritime uses (indeed, many of them are residential), the terminal gates are % of a mile from the site, and the water is even farther.” The majority opinion further acknowledges that application of the Brady-Hamilton test was enough to deny coverage for failure to comply with the situs requirement.
With the expansion of terminal operations shrinking the available sites that actually touch navigable waters, as well as the development of technology that will increasingly push maritime work ashore, the Brady-Hamilton test provides an appropriate guidepost to determine whether the situs requirement has been met. Application of the test also makes it possible to draw a boundary line to coverage without being unnecessarily restrictive.
The majority, however, now favors creation of a more literal interpretation which will serve to exclude coverage, if the site in question does not actually touch navigable waters. This new test is crafted by defining “other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel” as merely an extension of the enumerated sites which actually touch navigable waters. Such an interpretation would render the additional proviso superfluous. Congress by use of the phrase “or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel” provided a description of additional areas that would satisfy the situs test without requiring these additional sites to actually touch navigable waters. If Congress intended to further limit coverage, there would have been no need to describe additional covered sites beyond those already enumerated in the statute.
*1143In appropriate circumstances, consistent with Brady-Hamilton, an injury to a maritime employee on an “other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel” could be covered, even where the site did not actually touch navigable waters. However, based upon the facts of the present case, the ALJ’s decision was a correct application of the Brady-Hamilton test which should not be abandoned by this Court. Simply put, the situs requirement was not met in this case, and covered should be denied to Sidwell. I concur in the results only to the extent that the decision of the Administrative Law Judge should be affirmed.