COASTAL PRODUCTION SERVICES INC. v. Hudson

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
January 14, 2009

No. 06-60766 Charles R. Fulbruge III
Clerk

COASTAL PRODUCTION SERVICES INC; FOREST OIL CORPORATION;
ACE AMERICAN INSURANCE COMPANY

Petitioners
v.

TERRY W HUDSON; DIRECTOR, OFFICE OF WORKER’S
COMPENSATION PROGRAMS, US DEPARTMENT OF LABOR

Respondents

Petition for Review from the Benefits Review Board,
U.S. Department of Labor

Before WIENER, DeMOSS, and PRADO, Circuit Judges.
JACQUES L. WIENER, Jr., Circuit Judge:
Petitioners Coastal Production Services Inc. (“Coastal”), Forest Oil
Corporation, and ACE American Insurance Company (collectively, “Petitioners”)
seek our review of an order of the Benefits Review Board (“BRB”) affirming the
determination of the Administrative Law Judge (“ALJ”) that Respondent Terry
Hudson (“Hudson”) is entitled to benefits under the Longshore and Harbor
Workers’ Compensation Act (“LHWCA” or “Act”), 33 U.S.C. § 901 et seq.
Perceiving no error in the determinations of the ALJ and the BRB that Hudson
was a maritime employee who was injured on a maritime situs, we deny the
petition for review.
 No. 06-60766

I. FACTS AND PROCEEDINGS
In January 2001, Hudson began working as a junior contract platform
operator for Coastal. He was assigned to the Saturday Island facility in
Barataria Bay, Plaquemines Parish, Louisiana.1 The Saturday Island field
comprises (1) a large platform with living quarters (the “Saturday Island
platform”), (2) fourteen satellite wells that are connected to the platform by
horizontal subsurface piping, and (3) a sunken oil storage barge (“the Cherokee”)
that is adjacent to the platform. The satellite wells pipe their production (a
mixture of oil, gas, and saltwater) to the Saturday Island platform, where the
components are separated. The required amount of the separated gas is re-
distributed throughout the oil field for gas-lift purposes, and the remainder is
piped to a Southern Natural Gas pipeline for resale. The separated saltwater
is injected into disposal wells. The separated oil is first piped into holding tanks
on the platform, then is periodically transferred to larger storage tanks on the
Cherokee. When the Cherokee’s storage tanks are full, the oil is transferred into
customers’ transport barges for delivery onshore. All oil produced from the
Saturday Island field’s satellite wells is ultimately shipped ashore by transport
barge.
Hudson’s job entailed several different duties. He (1) checked the satellite
wells daily by “jo-boat” and was responsible for their maintenance and upkeep,
(2) serviced and maintained the Saturday Island platform, (3) transferred oil
from the platform’s holding tanks to the storage tanks on the Cherokee
approximately three to four times per week, (4) performed daily inspections and
maintenance of the Cherokee, including inspecting its lines for leaks, checking
its gauges, and maintaining its engines, and (5) assisted in the loading of oil
from the Cherokee into the transport barges when they came to pick up the oil.

1
The facility is owned by Forest Oil Corporation.

2
 No. 06-60766

Hudson testified that in performing this last duty, he would place a walk-board
between the Cherokee and the arriving transport barge, hook up pipelines and
hoses to transfer oil, disconnect and reconnect the hoses and pipelines as the
Cherokee’s holding tanks emptied, and monitor the tank levels. According to
Hudson, he took part in many, if not all, of the oil transfers that occurred while
he was working.
On August 11, 2001, Hudson was injured when the saltwater disposal
pump on which he was working exploded.2 That pump was located on the
Saturday Island platform, which is located approximately 30 to 40 feet from the
Cherokee and connected to it by a permanent walkway and oil transfer pipes.
Hudson filed a claim for benefits under the LHWCA. Petitioners contested
coverage, arguing that pursuant to Herb’s Welding, Inc. v. Gray,3 Thibodeaux v.
Grasso Production Management Inc.,4 and Munguia v. Chevron USA, Inc.,5 the
Saturday Island platform did not qualify as a maritime location. Petitioners also
contended that Hudson did not qualify as a maritime employee because his
employment activities furthered the non-maritime purpose of oil production;
moreover, they argued that any job-related maritime activities performed by
Hudson were minimal and not a regular part of his duties.
The ALJ ruled that Hudson satisfied both the situs and status
requirements of the LHWCA. With respect to situs, the ALJ concluded that the

2
The saltwater pump injects water into disposal wells and helps to prevent water from
entering the oil storage tanks on the platform. There is no direct line from the saltwater pump
to the Cherokee.
3
470 U.S. 414, 425 (1985) (holding that a welder responsible for general maintenance
on a fixed oil platform in state territorial waters is not engaged in maritime employment).
4
370 F.3d 486, 494 (5th Cir. 2004) (holding that a fixed oil drilling platform is neither
a “pier” nor an “adjoining area” because the platform’s sole purpose is to further gas and oil
production, a non-maritime activity).
5
999 F.2d 808, 813 (5th Cir. 1993) (discussing that the purpose of an oil platform is to
drill for oil and gas, which is a non-maritime activity).

3
 No. 06-60766

Cherokee’s docking facility — which was used to load oil into transport barges
— qualified as an “other adjoining area customarily used by an employer in
loading” a vessel, and that the Cherokee and the Saturday Island platform were
component parts of a single area. The ALJ distinguished the Saturday Island
platform from the fixed platforms in Herb’s Welding, Thibodeaux, and Munguia
on the basis of function: The Saturday Island platform and the Cherokee
comprised a single facility, the maritime purpose of which is the loading of cargo
(already extracted oil) onto vessels.6 With regard to status, the ALJ determined
that Hudson met the requirements for land-based maritime employment because
his assisting in the loading of oil and maintaining the loading equipment was
essential to the cargo loading process. Additionally, the ALJ concluded that
Hudson’s maritime activities were routine and recurring, not episodic,
momentary, or incidental to his non-maritime work.

6
The platform also served at least one non-maritime purpose, i.e., piping natural gas
to shore, and the arguably non-maritime purpose of processing the mixture received from the
satellite wells. Processing is probably part of “production” in the technical sense, see
Production, THE DICTIONARY OF PETROLEUM TERMS (2001) (“[T]he phase of the petroleum
industry that deals with bringing the well fluids to the surface and separating them and
storing, gauging, and otherwise preparing the product for delivery.”), and is probably a non-
maritime activity because it frequently occurs onshore and has no peculiar connection to
maritime activities. We flesh out a possible counterargument in note 24 infra.
It is worth noting that Herb’s Welding and Thibodeaux appear to have used
“production” to mean drilling and extraction (i.e, vertical removal of the product), even though
the technical definition of production seems to include separation, processing, and some
storage. See Herb’s Welding, 470 U.S. at 416-23, 425 (repeatedly describing the platform as
a drilling platform, but once describing the platform at issue as a production platform);
Thibodeaux, 370 F.3d at 490, 492, 494 (noting that drilling for oil and gas is not a maritime
activity, but also referring to the platform as a production platform). Munguia, 999 F.2d at
809-10, also appears to have focused on platforms involved in drilling and extraction. The
progenitor of all of these cases, Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 352,
360-61 (1969), described the platform at issue as a drilling platform and did not use the word
production. It thus does not appear that mere classification of a platform as involved in
“production” in the technical sense forecloses a finding of maritime situs, at least not as a
matter of stare decisis. In any event, as we discuss infra notes 14-42 and accompanying text,
the Saturday Island platform is also involved in the loading of vessels — a traditional maritime
activity — so we need not reach this issue.

4
 No. 06-60766

On appeal, the BRB affirmed the ALJ’s holding as to both situs and status.
The BRB adopted the ALJ’s reasoning that the Saturday Island platform was a
covered situs because (1) it is surrounded by navigable water and (2) functions
as a facility for loading cargo (oil) onto vessels. The BRB determined that the
Cherokee and the Saturday Island platform could not be classified as separate
areas because they are permanently connected to each other through a system
of pipes and a walkway. The BRB also concluded that Hudson’s work in loading
oil into the transport barges and maintaining the pipes and equipment necessary
to the loading process constituted maritime employment and that the ALJ
rationally computed the amount of time that Hudson spent in the performance
of these activities.
II. ANALYSIS
1. Standard of Review
Our review of the BRB’s decision is limited in scope to “considering errors
of law, and making certain that the BRB adhered to its statutory standard of
review of factual determinations, that is, whether the ALJ’s findings of fact are
supported by substantial evidence and [are] consistent with the law.”7
“Substantial evidence is that relevant evidence – more than a scintilla but less
than a preponderance – that would cause a reasonable person to accept the fact
finding.”8 We review the BRB’s legal conclusions de novo.9 Although perhaps
somewhat quizzical in light of the typical understanding of the difference
between conclusions of law and findings of fact, we decided in Texports Stevedore

7
Miller v. Cent. Dispatch, Inc., 673 F.2d 773, 778 (5th Cir. 1982).
8
Dir., OWCP v. Ingalls Shipbuilding, Inc., 125 F.3d 303, 305 (5th Cir. 1997).
9
B & D Contracting v. Pearley, __ F.3d __, 2008 WL 4811102, at *1 (5th Cir. Nov. 6,
2008).

5
 No. 06-60766

Co. v. Winchester that the determination of situs by the ALJ is one of fact.10
Status determinations are also findings of fact, unless made under an erroneous
legal standard.11
2. Analysis

10
632 F.2d 504, 515 (5th Cir. 1980) (en banc) (“In LHWA cases, this determination of
whether a site is an ‘adjoining area’ is handled by the ALJ and reviewed by the Board. . . . The
ALJ is guided in his factual determination by the section stating that in the absence of
substantial evidence to the contrary, LHWA coverage is presumed. If the situs determination
is supported by substantial evidence on the record as a whole, it will not be set aside by this
court.” (emphases added and internal citations omitted)). The references to the situs
determination and a factual determination make clear that the Winchester court was speaking
of the ultimate conclusion about situs, even though that may seem like a legal conclusion.
This matter is not free from doubt, as we have said that “[w]e review the determination
of LHWCA coverage by either an ALJ or the BRB as a question of law.” Boomtown Belle
Casino v. Bazor, 313 F.3d 300, 302 (5th Cir. 2002) (citing Hullinghorst Indus., Inc. v. Carroll,
650 F.2d 750, 753 (5th Cir. Unit A 1981) (“[W]e reject at the outset [the] contention that the
Board exceeded its statutory authority in reversing the determination of the ALJ that Carroll
was not a covered employee within the meaning of the Act. Under the uncontested facts, the
ALJ’s determination in this regard was neither a finding of fact nor a factual inference drawn
from the evidence. It was a conclusion of law.”)).
There appears to be a circuit split on this question. Compare Winchester, 632 F.2d at
515, and Brooker v. Durocher Dock & Dredge, 133 F.3d 1390, 1392 (11th Cir. 1998) (“Although
this court reviews the ALJ’s interpretation of the LHWCA de novo, it will not set aside the
ALJ’s findings of fact, including its situs determination, if substantial evidence supports them.”
(citing Winchester, 632 F.2d at 515)), with Jonathan Corp. v. Brickhouse, 142 F.3d 217, 221
(4th Cir. 1998) (“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.”
(citing Potomac Elec. Power Co. v. Dir., OWCP, 449 U.S. 268, 278-79 & n.18 (1980) and
Pittman Mech. Contractors v. Dir., OWCP, 35 F.3d 122, 125 (4th Cir. 1994))).
The cases on which the Fourth Circuit relied deal with the deference owed to statutory
constructions of the LHWCA by the BRB. In particular, Potomac Electricity Power Co. v.
Director, OWCP, 449 U.S. at 278 n. 18, stands for the proposition that no deference is owed to
BRB statutory constructions because the BRB is not a policymaking agency. This decision by
the Supreme Court is not, however, in direct conflict with our classification of the situs
determination as one of fact, not law. The Court simply concluded that the BRB’s statutory
interpretations of the LHWCA are owed no deference.
Were we writing on a clean slate, it is unclear how the ultimate conclusion by an ALJ
or the BRB about whether a locus satisfies the situs requirement of the LHWCA is a question
of fact, particularly when the facts underlying the situs determination are not in dispute. We
are nevertheless bound by Winchester, which was a unanimous en banc determination of this
precise issue by this court, there being no contrary intervening precedent on this exact issue
by either the Supreme Court or this court en banc.
11
Boatel, Inc. v. Delamore, 379 F.2d 850, 857 (5th Cir. 1967).

6
 No. 06-60766

For a claimant to be eligible for benefits under the LHWCA (1) his injury
must occur on a maritime situs, and (2) his status must be that of a maritime
employee.12 Both requirements must be met for the claimant to receive benefits
under the Act.13
a. Situs
Section 3(a) of the LHWCA states that a claimant is eligible for benefits
“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).”14 As the Saturday Island platform does not meet the
definition of any of the kinds of facilities specifically listed in the statute, it must
qualify as an “other adjoining area” to be considered a maritime situs.
To qualify as an “other adjoining area,” the situs must be located in
proximity to navigable waters (i.e., possess a geographical nexus) and have a
maritime nexus — here, “customarily used by an employer in loading . . . a
vessel.”15 The situs need not be used exclusively or even primarily for maritime
purposes, as long as it is customarily used for significant maritime activity.16 No
party disputes that the Saturday Island platform adjoins navigable waters, so

12
See 33 U.S.C. §§ 902(3), 903(a) (2006).
13
Herb’s Welding, Inc. v. Gray, 470 U.S. 414, 415-16 (1985).
14
33 U.S.C. § 903(a) (emphasis added).
15
Id.; see Winchester, 632 F.2d at 514-15.
16
Winchester, 632 F.2d at 514-15.

7
 No. 06-60766

the geographic nexus prong of the test is satisfied; the only open question is
whether it is within an area with a maritime nexus.17
At the outset, we must define the relevant area and then ask whether it
is customarily used for loading a vessel or other maritime activities listed in §
3(a) of the LHWCA. There are several levels of generality that could, as a
theoretical matter, be used to define the area. We could consider (1) the exact
locus of the injury (the saltwater pump), (2) the Saturday Island platform, (3) the
Saturday Island facility (i.e., the platform plus the Cherokee), (4) the entire
Saturday Island field (i.e., the satellite wells, the gas transportation system, the
platform, and the Cherokee), (5) the whole Barataria Bay, and so on. The first
option is foreclosed by our opinion in Winchester.18 The last option and levels of
even greater generality are obviously absurd, and we repudiated such extremes
in Winchester as well.19 We assume without deciding that the entire Saturday
Island field is also too extreme a level of generality.20 We are left, therefore, with

17
Although “adjoining” connotes “lying next to” or “beside,” we observed in Winchester
that “adjoining” can also be defined as “neighboring.” 632 F.2d at 514. Additionally,
WEBSTER’S DICTIONARY defines “adjoining” as “touching or bounding at some point or on some
line: near in space.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 27 (2002). Adopting
the broad definition of the word “adjoining,” we conclude that the Saturday Island platform
adjoins navigable waters because is it located in and has direct contact with navigable waters.
This interpretation conforms with our conclusion in Winchester that “[t]o instill in the term
[adjoining] its broader meaning is in keeping with the spirit of the congressional purposes [of
the Act].” 632 F.2d at 514. For these same reasons, the Cherokee too adjoins navigable
waters.
In fact, the platform and the Cherokee are in navigable waters. We nevertheless treat
fixed platforms as islands for almost all purposes. See, e.g., Rodrigue v. Aetna Cas. & Sur. Co.,
395 U.S. 352, 360 (1969). Visually, it is best to conceive of the facility (the platform and the
Cherokee) as onshore because we treat the Saturday Island facility as “land.” This helps to
understand how the facility “adjoins” navigable waters.
18
632 F.2d at 516.
19
Id. at 514 (“Nevertheless, outer limits of the maritime area will not be extended to
extremes. We would not extend coverage in this case to downtown Houston.”).
20
We may assume this without deciding it because to pick this level of generality
reduces to the choice between options two and three. If the “overall area,” Winchester, 632

8
 No. 06-60766

the second and third options. This case turns on the correctness of the ALJ’s
determination that both the platform and the Cherokee are part of the same
“overall area” that is customarily used for loading cargo (oil).
We do not define a covered area for LHWCA purposes according to fence
lines and local designations because they “are subject to manipulation for
compensation purposes.”21 Instead, Winchester appears to have merged the two
questions — definition of the area and connection to enumerated maritime
activities — into a simple functional inquiry. The “area” that adjoins navigable
waters for purposes of the LHWCA is that area “customarily used by an
employer in loading, unloading, repairing, or building a vessel.”22 Yet the
Saturday Island platform, except for its storage of fully processed and produced
oil (which is arguably part of the process of loading a vessel23), is itself not

F.2d at 516, includes the satellite wells and the gas transportation system, we would end up
with what might be termed a “mixed coverage situs” under the apportionment principle found
in cases like Bianco v. Georgia Pacific Corp., 304 F.3d 1053 (11th Cir. 2002). Cases like
Maraney v. Consolidation Coal Co., 37 BRBS 97 (2003) and Jones v. Aluminum Co. of America,
35 BRBS 37 (2001), deal with situations in which there are clearly covered and clearly non-
covered parts of an overall area. The satellite wells and the gas transportation system are,
after Thibodeaux, clearly not covered sections of the overall area. But, Hudson’s injury did not
occur at either of those places. Accordingly, we would still have to answer whether only the
Cherokee or the platform plus the Cherokee are covered parts of the overall area.
21
Winchester, 632 F.2d at 515.
22
33 U.S.C. § 903(a).
23
We note that storage of fully processed oil in the storage tanks on the platform can
quite plausibly be understood to be part of the loading process. The storage tanks hold finished
cargo and adjoin navigable waters; they are directly and permanently connected by pipes and
a walkway to the point at which the vessel actually receives the cargo (which also adjoins
navigable waters and is no more than 30 to 40 feet away); and, operation of the storage tanks
is necessary for a vessel to be loaded, given the cargo storage configuration of the Saturday
Island facility: If no oil flows from the platform’s storage tanks to the Cherokee, no oil is
available for a vessel to load. This is quite distinguishable from the dissent’s example of
storage facilities at most production plants. Those storage facilities (presumably) lack a
geographical nexus to navigable waters, (presumably) are not directly and permanently
connected to the shipping terminal, and (presumably) operation of the storage facilities is not
the only way to get products to the shipping terminal and then loaded onto a vessel given the
set-up of the loading system. If those presumptions are wrong, it is unclear why it would be

9
 No. 06-60766

customarily used for loading oil onto the customers’ transport barges, which on-
load the processed oil from the Cherokee for transport to shore. Instead, at least
without the temporary storage tanks, the Saturday Island platform is better
thought of as a processing plant functionally connected to oil production and not
to the loading or unloading of cargo from vessels.24 If Winchester countenanced
a strict reading of “area,” or if we were to address this issue de novo, we might
end the inquiry here and conclude that Hudson was not injured on an LHWCA-
covered situs. As neither is the case, however, we continue.
Winchester involved a gear room located five blocks from the gate of the
nearest dock. The gear room contained “spreader bars, pallets, wire cable slings,
tow motors, forklifts, etc.” that were “used by stevedores to perform the loading
operation.”25 We held that an injury in the area of the gear room occurred on a
covered situs. Our holding on those facts teaches that simply because a vessel
cannot dock for loading and unloading at a particular area does not mean that

absurd to treat such storage facilities as part of the loading process. We also note that the
satellite wells, inasmuch as they are unarguably involved in extraction/production only (and
not in processing and storage), do not serve a loading purpose (unlike storage and transfer),
and are therefore not part of the loading process, even though they may be necessary to
loading in the “but for” sense.
24
Although we do not base our decision on it, it is at least arguable that a facility
integral to the conversion of material into cargo suitable for maritime transport, such as the
platform’s separators, has a role in loading a vessel. It would, of course, be possible to ship the
mixture of oil, gas, and water on vessels without first processing it, but that would likely prove
to be more expensive (the yield of marketable product per shipment would dramatically
decrease because each shipment would include useless saltwater) and would also deprive the
producer of an economical method of gas-lifting the field (instead, gas would have to be
transported out to the field after processing onshore). We seriously doubt whether a particular
process used to facilitate the economical loading of vessels must be necessary to loading a vessel
before it may be considered part of the loading process (that conclusion would lead to absurd
results wholly inconsistent with our cases), but the conceptual line between
production/processing of hydrocarbons and loading/unloading a vessel is somewhat blurry in
the case of the separation facility on the Saturday Island platform. As we do not need to
resolve this issue today, we do not.
25
632 F.2d at 507 n.1.

10
 No. 06-60766

the area is not a covered situs. It further teaches that if a particular area is
associated with items used as part of the loading process, the area need not itself
be directly involved in loading or unloading a vessel or physically connected to
the point of loading or unloading.
Vessels were not loaded or unloaded directly from the Saturday Island
platform, at least not with cargo. Rather, vessels were loaded with cargo (oil)
from the Cherokee, which was directly and permanently connected to the
platform (by pipes and a walkway), in close proximity to it (30 to 40 feet), and
described by the employer in its operations manual as part of the same
“gathering and processing” facility as the platform.26 Further, the platform was
functionally integral to the Cherokee’s loading and unloading mission because
the configuration of the Saturday Island field used the platform as the
consolidation point for transport. If the platform were to sink tomorrow, the
satellite wells could still produce/extract the oil, water, and gas mixture, but that
mixture (whether or not processed and separated) could not be loaded onto
vessels. The fact that the Saturday Island field could have been set up
differently, perhaps with pipelines (as was done for gas), or with vessels loading
the raw, unseparated product at each satellite well, or some other way, is no
answer to the fact that as actually set up, the platform’s “gathering” function
plays an integral role in the loading of vessels, even if its “processing” function

26
Forest Oil Corporation, Facility Operations Manual: Saturday Island Field:
Plaquemines Parish, Louisiana, at 2 (1998) (emphasis added) (“The central gathering and
processing facility for the Saturday Island Field consists of one sunken barge used for storage
(Cherokee), one raised barge, the S-91 barge, that is used for processing and storage and ten
wooden-pile structures which are interconnected by walkways.”). Although we shied away
from employers’ descriptions of the relevant area in Winchester, we did so to prevent employers
from manipulating boundaries in a unilateral effort to determine the coverage area. When an
employer has defined an area as part of a facility also used for loading and unloading, however,
that concern is less pressing and we have no trouble taking account of that description. In any
event, Winchester only said that “fencelines and employers’ designations will not . . . end the
factual inquiry.” 632 F.2d at 515 (emphasis added).

11
 No. 06-60766

might not. As such, the entire platform is “customarily used by an employer in
loading . . . a vessel.”
This conclusion is buttressed by the liberal construction we are instructed
to employ in favor of LHWCA coverage,27 and the fact that whatever argument
there might be about the platform’s role in loading, the Cherokee is
unquestionably involved in loading vessels. Covering the platform as well as the
Cherokee, between which Hudson moved on a daily basis in unquestionable
furtherance of the loading duties of his job (for example, to inspect the Cherokee
each day), “will reduce the number of employees walking in and out of
coverage”28 and further the congressional policy of eliminating “shifting and
fortuitous coverage.”29
Winchester also directed us to consider the “general area” and the “overall
loading process.”30 The fact that “the specific locus of the injury is not
customarily used for maritime purposes even though the general area is so used”
is not fatal to a finding of maritime situs.31 These instructions clearly
contemplate some role for geography (i.e., proximity and interconnectedness),
independent from function. The dissent implicitly acknowledges this when it
repeats six times that the geographical separation of the Cherokee is relevant
to the nexus determination. If Winchester only stood for a functional inquiry, the
fact that a particular area is not used for maritime activities would be
dispositive. But, Winchester does not require every square inch of an area
“generally” used for loading and unloading to be so used. If it did, we would have

27
Ne. Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249, 268 (1977).
28
Winchester, 632 F.2d at 516.
29
Caputo, 432 U.S. at 274.
30
Winchester, 632 F.2d at 515-16.
31
Id. at 516.

12
 No. 06-60766

a game of hopscotch: The bathrooms in an otherwise “adjoining area” would not
be covered, nor would be pavement that although clearly within the area, had
not been walked on by stevedores loading and unloading a vessel.
Winchester countenanced defining a general area (a geographic notion) by
its function. If a general area is customarily — not necessarily exclusively or
predominantly — used for loading and unloading of vessels, all parts within it
are a maritime situs. To determine whether it is fair to call a particular part of
a facility “within” the “general area” used for loading and unloading, we must
look both to its proximity and its interconnectedness to the loading and
unloading location, along with its function.32 Simply because Winchester
extended coverage to a non-proximate, non-interconnected location on the basis
of function does not mean that proximity and connection play no role in our
analysis.
Additional support for this proposition comes from Northeast Marine
Terminal Co., Inc. v. Caputo. There, the Supreme Court addressed a facility
with “two ‘finger-piers.’”33 One pier, located on 21st Street, “was used to berth
ships for purposes of loading and unloading them.”34 Another pier, on 19th
Street, and therefore presumably some distance away, “was used only for

32
The dissent questions how we can conclude that the Cherokee and the platform
constitute a single situs, but also conclude that the satellite wells and the platform, which have
pipes connecting them, are not. In the first instance, we note that even if the wells are
interconnected with the platform, they are not proximate to it. Second, the satellite wells are
not interconnected to the platform in the relevant way. The Cherokee and the platform have
a walkway that allows, with a few steps, an employee to move between them, bringing
concerns about shifting and fortuitous coverage into play. The satellite wells have no such
connection to the platform; they must be accessed by boat. Accordingly, although physically
connected, they are not connected in the relevant manner.
33
432 U.S. at 280.
34
Id.

13
 No. 06-60766

stripping and stuffing containers and storage.”35 The Court held that an injury
on the 19th Street “finger-pier” nevertheless occurred on a covered situs because
“[t]he entire terminal facility adjoined the water and one of its two finger-piers
clearly was used for loading and unloading vessels.”36 This is obviously a close
analogy to the Cherokee and the platform. Unlike the dissent, we cannot
conclude in light of Caputo that there is not more than a scintilla of evidence
that supports the situs determination by the ALJ and BRB.
Like the BRB itself in this case, we also see the BRB’s decision in
Gavranovic v. Mobil Mining & Minerals37 as support for this proposition. There,
the BRB concluded that the situs requirement was satisfied because the
manufacturing facility where the accident occurred was “used to store finished
product and to load rail cars and trucks.”38 Even though Building 10 (the situs
of the injury) was not used to load vessels (as the statute requires), it was “in
close proximity to the docks and . . . not [a] separate and distinct area[].”39 More
to the point, the BRB said:
Although the facility at which claimants herein work is a
manufacturing operation, and the building in which they were
injured is not directly involved with the loading and unloading of
vessels, part of employer’s business involves sending and receiving
goods by barges or vessels — a distinctly maritime activity.
Moreover, the geography of . . . the entire facility and the building
in question [are such that they] are adjacent to navigable water and
to the docks where barges are loaded and unloaded.40

35
Id.
36
Id. at 281 (emphasis added).
37
33 BRBS 1, *1 (1999).
38
Id. at *3.
39
Id. at *4.
40
Id. at *5 (emphasis added).

14
 No. 06-60766

Again emphasizing that geography plays some role, the BRB said: “In light of
the location of employer’s facility and because significant maritime activity . . .
occurs . . . [there], we affirm . . . that claimants’ injuries . . . occurred on a
covered situs.”41
On the one hand, Hudson might have been injured while on the Cherokee,
which clearly qualifies as a covered situs. On the other hand, Hudson might
have been injured while working on the satellite wells, which do not qualify as
“adjoining area[s]” under Thibodeaux. Given the close functional and geographic
relationship between a clearly maritime situs (the Cherokee) and a somewhat
less clearly maritime situs (the platform), several factors we have identified
support affirmance on the facts of this case.

41
Id. (emphasis added). Although not precedent with which we are forced to grapple
as a formal matter, we also note the BRB’s decisions in Dickerson v. Mississippi Phosphates
Corp., 37 BRBS 58 (2003), Jones v. Aluminum Co. of America, 35 BRBS 37 (2001), Stroup v.
Bayou Steel Corp., 1998 WL 461480 (BRB, July 2, 1998), and Melerine v. Harbor Construction
Co., 26 BRBS 97 (1992). In Melerine, the BRB noted that the dock was
separate and distinct from the mill. The steel mill is located one-quarter mile
from the dock area, separated by a road and a levee, and materials are
transported by truck from the mill to the dock. The [ALJ] found that no
conveyors or other loading apparatus linked the two areas. . . . The mill is used
solely for the manufacturing of steel products[,]
a clearly non-maritime activity. 26 BRBS at *3. In Stroup, the shipping bay at issue (attached
to the structure at issue in Melerine) was “1/4 to 1/2 [of a] mile from the docks and the
Mississippi River. Further, the ‘A’ bay is separated from the River by a public road and a levee
and is located in a building which also houses the melt shop, the roll mill, and another shipping
bay.” 1998 WL 461480, at *1. In Dickerson, the site of the accident, a
phosphoric acid plant[, had] nothing to do with maritime activity and its sole
purpose [was] to convert the liquid sulfuric acid into phosphoric acid and store
it. It has no connection to the docks by way of conveyor belt or other means. It
is geographically and functionally separate from the docks.
37 BRBS at *5 (emphasis added) (internal citations omitted); see also Maraney v. Consol. Coal
Co., 37 BRBS 97, at *6 (2003) (“In the instant case, [the location of the injury] is functionally
and geographically separate from employer’s unloading/loading operations.” (emphasis added)).
Jones simply recited the unsurprising proposition that “a plant that manufactures aluminum
oxide is not engaged in [loading, unloading, repairing or building of vessels].” 35 BRBS at *6.
Jones is perhaps the best support for the dissent’s conclusion, because it is not clear how
geographically distinct the manufacturing and loading sites of the facility were. In light of
Caputo and Winchester, along with the bulk of the BRB’s other cases, however, we cannot
justify using that ambiguity in Jones to reach a contrary result in this case.

15
 No. 06-60766

First, we owe deference to the ALJ/BRB’s situs determination, and they
concluded that the platform was a maritime situs. Second, the LHWCA is to be
construed liberally in favor of compensation. Third, Winchester deliberately
selected a very broad and liberal construction of situs (a room used to store gear
located blocks away from the nearest gate to a terminal and outside the property
line of the port) and counseled us to do the same by inspecting the “overall
loading process” and the “general area.” Fourth, we effectuate congressional
policy to avoid shifting and fortuitous coverage (although, as the dissent points
out, this cannot always be avoided because there must be a line somewhere) by
finding that the platform, adjoining the Cherokee and functionally related to its
loading purpose, is a maritime situs. Considered as a whole, these additional
thumbs on the scale tip the balance in favor of affirming the ALJ/BRB’s
determination that the platform qualifies as a maritime situs. Merely because
one discrete portion of an area adjoining navigable waters, and part of the
general loading and unloading area, is not directly used for loading and
unloading (say, a food cart on a dock, or a scrubber as part of the hose connected
to unload the oil), this should not create hopscotching coverage. If, as Petitioners
urge, we were surgically to separate the platform from the Cherokee — and
classify one as maritime and the other as non-maritime — we would do exactly
that which Congress sought to eliminate with the 1972 amendments to the Act.42
We decline to slice the Saturday Island facility that finely and cause that
situation.
We cannot say that the ALJ did not have substantial evidence that would
permit a reasonable person to conclude that the Cherokee and the platform are
in the same general area customarily used for loading vessels. Neither can we
say in the alternative that functionally the platform was not actually part of the

42
See Ne. Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249, 274 (1977).

16
 No. 06-60766

loading process (even though it also served the arguably non-maritime
production purpose of separation).
The area need only “customarily” be used for loading, not exclusively or
predominantly so. This is why the presence of gas pipelines from the platform
to shore does not vitiate the maritime nature of the platform. Piping gas to
shore is a non-maritime activity, but, again, the platform need not be used
exclusively or even predominantly for maritime activities to qualify as a
maritime situs. In fact, oil is the primary product of the platform and is shipped
by barge, for which the platform (unlike the satellite wells) is a necessary part
of the loading process in the field as configured. So, although it need not be the
case, here the platform does appear to have a predominantly maritime use —
facilitation of the loading of cargo (oil, the main product of the platform).
This conclusion is not foreclosed by Thibodeaux or Herb’s Welding. In
Herb’s Welding, a majority of the Supreme Court expressly declined to decide
whether a fixed drilling platform qualifies as a maritime situs.43 The dissent
thought that the situs requirement was satisfied.44 Yet, although the majority
refused to reach the issue, there are hints that even it thought a drilling
platform might qualify as a covered situs.45
In Thibodeaux, we resolved that question for fixed oil “production”46
platforms in the territorial waters of Louisiana by concluding that the platform

43
See Herb’s Welding, Inc. v. Gray, 470 U.S. 414, 427 (1985).
44
See id. at 446-47 (Marshall, J., dissenting).
45
See id. at 425 (“The dissent emphasizes that Gray was generally on or near the water
and faced maritime hazards. To the extent this is so, it is relevant to ‘situs,’ not ‘status.’ To
hold that Gray was necessarily engaged in maritime employment because he was on a drilling
platform would ignore Congress’ admonition that not everyone on a covered situs automatically
satisfies the status test.” (emphasis added and internal citation omitted). But see id. at 422
n.6 (“Rodrigue did observe that offshore platforms are like piers, [but] its holding was that they
are islands.”).
46
See supra note 6 and accompanying text.

17
 No. 06-60766

was not a maritime situs.47 The claimant in Thibodeaux was a pumper/gauger
who was injured when he attempted to repair a leaking line under the deck of
the platform.48 Relying in part on the Supreme Court’s comments in Herb’s
Welding, we determined that the platform did not serve a maritime purpose.49
Specifically, we noted that
Thibodeaux has pointed to no connection Garden Island Bay
platform No. 276 has with maritime commerce that distinguishes it
from the platforms in [Herb’s Welding or Munguia]. Oil is not
shipped from the platform. Although personal gear and 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.50
Because the oil production platform in Thibodeaux did not serve any maritime
purpose, we held that it was neither a “pier” nor an “other adjoining area” as
defined by the Act.51 The dissent questions our reliance on Thibodeaux’s
statement that the platform in that case was not involved in oil shipment (i.e.,
the loading or unloading of cargo). Far from being an isolated or superfluous
statement, that observation is the linchpin of the distinction between
Thibodeaux and Caputo: The platform served no maritime purpose precisely
because it was in no way involved in loading or unloading a vessel. The
structure of the quoted material makes that clear: Drilling is contrasted with
shipment (which we construe to mean loading or unloading).
Unlike the platform in Thibodeaux, there is no evidence that the Saturday
Island platform is now or ever was involved in drilling or extracting

47
370 F.3d 486, 487 (5th Cir. 2004).
48
Id. at 487-88.
49
Id. at 494 (citing Herb’s Welding, 470 U.S. at 423-24).
50
Id. (footnote omitted) (emphases added).
51
Id. at 493-94.

18
 No. 06-60766

hydrocarbons,52 and it has an independent connection to maritime commerce —
as we have excruciatingly demonstrated above, the loading of cargo (oil) from the
Cherokee, with the necessary intermediation of the platform given the
configuration of the Saturday Island field, is a maritime purpose. Although
there are no docking facilities on the Saturday Island platform per se, it is
directly and permanently connected to the Cherokee, and it serves as a
temporary holding station for the already-produced and separated oil until it is
further transferred the 30 to 40 feet to the Cherokee where it is held until it can
be shipped ashore by barge. Thus, the Saturday Island platform is part of the
“general area” used as part of the “overall loading process” adjoining navigable
waters, clearly distinguishable from the drilling (but not shipping) platform in
Thibodeaux.
Based on the foregoing analysis, we conclude that Hudson was injured on
a maritime situs. As the LHWCA requires both maritime situs and status,
however, our analysis does not end here. We must also determine whether
Hudson’s status was that of a maritime employee.
b. Status
The Act confers maritime status on “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.”53 An employee may qualify for maritime status based on either (1)
the nature of the activity in which he is engaged at the time of the injury or (2)

52
In fact, the “platform” appears to be a barge itself. See Facility Operations Manual:
Saturday Island Field: Plaquemines Parish, Louisiana, supra note 26, at 2 (noting that storage
and processing occur on the “S-91 barge,” although the structure of the sentence makes the
object of the appositional “used for processing and storage” somewhat unclear).
53
33 U.S.C. § 902(3) (2006). Certain exclusions, none of which are applicable here, do
apply.

19
 No. 06-60766

the nature of his employment as a whole.54 Although the Act does not define
“maritime employment,” the Supreme Court has instructed that occupations in
addition to those enumerated in the statute will be covered as maritime
employment if the occupation entails activities that are an integral or essential
part of the loading, unloading, building, or repairing of a vessel.55 In addition,
the employee’s maritime activities must be more than episodic, momentary, or
incidental to his non-maritime work.56
As Hudson was not employed in any of the occupations enumerated in the
statute, his work must have been integral or essential to the loading, unloading,
building, or repairing of a vessel to be covered under the LHWCA. The ALJ and
the BRB determined that Hudson was a maritime employee based on his
responsibility for the general upkeep of the Cherokee and his facilitation of the
loading of cargo (oil) into transport barges. The ALJ and the BRB also
determined that these activities were not merely episodic, momentary, or
incidental to non-maritime work, because they were regularly assigned to
platform operators.
Petitioners assert that the BRB erred by concluding that Hudson was a
maritime employee because the majority of his daily activities were related to
servicing and maintaining oil and gas production facilities. Petitioners claim
that, under the Supreme Court’s holding in Herb’s Welding, such activities are
not maritime in nature and, therefore, do not qualify Hudson as a maritime
employee.
In Herb’s Welding, the Supreme Court addressed whether an employee
who was injured while welding a gas-flow line on a fixed offshore oil drilling

54
Universal Fabricators, Inc v. Smith, 878 F.2d 843, 845 (5th Cir. 1989) (citing
Hullinghorst Indus., Inc. v. Carroll, 650 F.2d 750, 754 (5th Cir. Unit A 1981)).
55
Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S. 40, 47 (1989).
56
See Boudloche v. Howard Trucking Co., 632 F.2d 1346, 1348 (5th Cir. 1980).

20
 No. 06-60766

platform was a “maritime employee.”57 The Court explained that “the maritime
employment requirement is an occupational test that focuses on loading and
unloading.”58 After determining that the employee’s work as a welder was wholly
unrelated to any loading or unloading process, the Court held that he was not a
maritime employee.59
We do not disagree with Petitioners’ insistence that those of Hudson’s
activities that related solely to the production of oil and gas from the fourteen
remote production facilities do not imbue him with maritime status. But, there
was more: Unlike the welder in Herb’s Welding, Hudson was directly involved
in the loading of cargo into transport barges for shipment to shore —— a distinctly
maritime activity. Specifically, Hudson transferred previously produced oil that
had come to rest in the platform’s storage tanks to the larger tanks on the
Cherokee where it awaited transport by barge (not by pipeline); he checked the
Cherokee’s cargo loading lines for leaks; and he maintained its engine. Hudson
also hooked up lines for transferring the oil from the Cherokee to the customer
transport barges, manned the emergency shutoff during such transfers, and
boarded customers’ barges to witness gauge readings. These routine, non-
episodic activities are all maritime in nature and support the conclusion that
Hudson’s status was that of a maritime employee.
Petitioners nevertheless contend that even if Hudson was involved in
maritime activities, he failed to dedicate a sufficient percentage of his work to
such activities to bestow maritime status under the LHWCA. We disagree.
The ALJ determined that, as part of his regularly assigned duties, Hudson
spent approximately 9.7% of his time engaged in the above-described maritime

57
470 U.S. 414, 415 (1985).
58
Id. at 424 (internal quotation marks omitted).
59
Id. at 424-25.

21
 No. 06-60766

activities.60 To arrive at this figure, the ALJ calculated the amount of time
Hudson spent (1) loading oil into transport barges and (2) servicing the
equipment necessary to load the oil.61 Crediting Hudson’s testimony regarding
his participation in the oil transfers, the ALJ determined that Hudson spent a
total of 22 hours transferring cargo. The ALJ also determined that, according to
time sheets entered in the record, Hudson spent a total of approximately 122
hours maintaining the Cherokee and its equipment. As each of these calculations
is supported by substantial evidence, we perceive no error in the ALJ’s
determinations.
As for the fact that Hudson spent approximately 9.7% of his time
performing maritime activities, we have never set a minimum amount of time
required to qualify as a maritime employee under the Act. We have, however,
upheld maritime status for an employee who spent only 2.5-5% of his employment
engaged in maritime activities when those activities were part of his regularly
assigned duties, as were Hudson’s.62 Thus, Hudson easily spent more than any
minimum amount of time that an employee must be engaged in maritime
activities to be considered a maritime employee under the Act.

60
142 / 1465 = 0.097. The ALJ determined that Hudson worked a total of 1465 hours
during his employment with Coastal. Because of an arithmetical error, the ALJ mistakenly
credited Hudson with 142 total hours of maritime-related activity instead of 144. Under the
correct mathematical calculation, Hudson actually spent 9.8% of his time engaged in maritime
activities. 144 / 1465 = 0.098.
61
Petitioners also advance that the ALJ erred by including the amount of time Hudson
spent maintaining and servicing the equipment on the Cherokee. The ALJ determined that
the maintenance of the Cherokee was necessary and essential for the proper loading and
transfer of the oil into transport barges. As employees who are injured while maintaining or
repairing equipment essential to the loading or unloading process are covered by the LHWCA,
the ALJ did not err by including this time in its calculation. See Chesapeake & Ohio Ry. Co.
v. Schwalb, 493 U.S. 40, 47 (1989) (“Someone who repairs or maintains a piece of loading
equipment is just as vital to and an integral part of the loading process as the operator of the
equipment.”).
62
Boudloche v. Howard Trucking Co., 632 F.2d 1346, 1348 (5th Cir. 1980).

22
 No. 06-60766

III. CONCLUSION
We hold that, under the discrete facts of this case, the fixed platform in
question is inseparable from the Cherokee and that together they constitute a
loading facility for the transhipment of cargo by vessel. As such, the platform
qualifies as a maritime situs, being an element that is essential to the maritime
activity of loading cargo for transport. We also hold that Hudson regularly
engaged in sufficient maritime activities to meet the status requirement of the
Act. It follows that, as Hudson was injured on a maritime location and qualifies
as a maritime employee, neither the ALJ nor the BRB erred in determining that
he is eligible for benefits under the LHWCA. The petition for review is DENIED.

23
 No. 06-60766

DeMOSS, Circuit Judge, dissenting:
Terry Hudson was injured while repairing a saltwater disposal pump on a
fixed oil and gas production platform located in the state territorial waters of
Louisiana. In my opinion, Hudson’s injury did not occur on a maritime situs. By
treating the Cherokee loading barge and the production platform as a single
LHWCA situs, the majority fails to apportion different functional areas within
the same facility into covered and non-covered areas. I believe that the Cherokee
has a functional nexus with maritime activities, but the production platform does
not. The petition should be granted, and the decision of the BRB awarding
LHWCA benefits should be reversed. Because the majority relies on an elastic
definition of “loading” and allows the tail to wag the dog in its situs analysis, I
respectfully dissent.
I.
In order to recover benefits under the LHWCA, the employee must satisfy
both the situs and status test. Herb’s Welding, Inc. v. Gray, 470 U.S. 414, 415-16
(1985). “Situs and status play equal, coordinate roles in determining coverage.”
Thibodeaux v. Grasso Prod. Mgmt., Inc., 370 F.3d 486, 493 (5th Cir. 2004). The
situs test is derived from 33 U.S.C. § 903(a), which states, in relevant part:
[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).
The majority correctly observes that the production platform where Hudson was
injured does not meet the definition of any of the seven sites specifically listed in
§ 903(a), so it must qualify as an “adjoining area” to be considered a maritime
situs. Therefore, Hudson can recover benefits under the LHWCA “only if [his]
disability . . . results from an injury occurring upon . . . [an] adjoining area

24
 No. 06-60766

customarily used by an employer in loading . . . a vessel.” Id. Hudson must
demonstrate that he was located on a covered situs at the approximate time he
sustained his injuries. See Thibodeaux, 370 F.3d at 488.
II.
The “adjoining area” must have both a geographical and functional nexus
with maritime activities to qualify as a covered situs. See Texports Stevedore Co.
v. Winchester, 632 F.2d 504, 514 (5th Cir. 1980) (en banc). Because the
production platform and the Cherokee are in direct contact with navigable
waters, I agree with the majority that the geographical nexus prong of the situs
test is satisfied. See id.; see also Thibodeaux, 370 F.3d at 494. My dissent argues
that the production platform where Hudson was injured does not satisfy the
functional nexus prong of the situs test.
The functional nexus inquiry is fact-intensive. See Winchester, 632 F.2d at
513, 515. The scope of the covered situs cannot be determined solely through
reference to fence lines and employers’ designations, which are subject to
manipulation. Id. at 515. Rather, “[t]he perimeter of an area is defined by
function.” Id. An adjoining area must be “customarily used for significant
maritime activity.” Id.
In my opinion, the BRB’s conclusion that Hudson was injured on a
maritime situs is not supported by substantial evidence.1 The production
platform is not customarily used for any maritime activity, let alone significant

1
The panel is bound by Winchester’s holding that the BRB’s situs determination is a
question of fact that we review under the substantial evidence standard. See Winchester, 632
F.2d at 515. When the material facts are undisputed, as they are in this case, I believe that
the BRB’s situs determination should be reviewed under the de novo standard reserved for
questions of law. See B&D Contracting v. Pearley, 548 F.3d 338, 340 (5th Cir. 2008). Perhaps
the en banc court will have an opportunity to revisit this issue in the future. Nevertheless,
even under the more deferential substantial evidence standard, the record does not contain
more than a scintilla of evidence that the production platform where Hudson was injured was
“customarily used for significant maritime activity.” See Dir., OWCP v. Ingalls Shipbuilding,
Inc., 125 F.3d 303, 305 (5th Cir. 1997).

25
 No. 06-60766

maritime activity. In affirming the decision of the BRB, the majority disregards
binding Fifth Circuit precedent holding that a “fixed oil and gas production
platform,” which is connected to satellite wells and located in state territorial
waters, does not qualify as a maritime situs under the LHWCA. See Thibodeaux,
370 F.3d at 487-88.
The majority purports to distinguish Thibodeaux from this case by relying
on a single sentence within that eight-page opinion: “Oil is not shipped from the
platform.” Id. at 494. Even assuming that this observation is the lynchpin of the
Thibodeaux court’s situs analysis, it is undisputed that oil was not shipped from
the production platform where Hudson was actually injured. Rather, oil was
shipped from the Cherokee, which is geographically separate and functionally
distinct from the production platform.2 Thibodeaux controls this case because
Hudson’s injury occurred on the production platform, not the loading barge.
Under my analysis, “transportation” occurs at a maritime situs;
“production” does not.3 I define “production” to include both extraction (at the
satellite wells) and separation (at the production platform); I define
“transportation” to include the loading of cargo in maritime commerce (at the
Cherokee). The production platform serves the non-maritime purpose of oil and
gas extraction and separation, while the Cherokee serves the maritime purpose
of a storage and loading facility for marketable crude oil. In addition to
extraction and separation, the production platform also pipes marketable natural
gas to shore, which even the majority acknowledges is a non-maritime activity.

2
The geographical nexus prong of the situs test focuses on the production platform’s
geographical nexus with navigable waters. In contrast, the fact that the production platform
is “geographically separate” from the loading barge is relevant to the functional nexus inquiry.
3
“Function” is defined as “the action for which a . . . thing is specially fitted, used, . . .
or for which a thing exists.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 920 (16th ed.
1971). The function of the satellite wells and the platform is to produce marketable crude oil.
The function of the loading barge is to transport that crude oil in maritime commerce. Only
the latter function occurs on a LHWCA situs.

26
 No. 06-60766

Because the perimeter of an adjoining area is determined by its function, the
production platform should have been distinguished from the Cherokee in the
majority’s situs analysis.
III.
The fourteen satellite wells feed an unmarketable mixture of oil, gas, and
salt water, which is extracted from the subterranean strata beneath Barataria
Bay, to the production platform. The production platform separates that mixture
into two marketable products—crude oil and natural gas—and one waste
product—salt water. At his deposition, Hudson testified that the production
platform contains saltwater pumps, heater treaters, compressors, and
dehydrators. Like many manufacturing plants, the production platform converts
raw materials into marketable products.
The total flow from the satellite wells is gathered by a manifold on the
production platform. Crude oil and salt water from the separation process flows
to the heater treaters on the production platform, where marketable crude oil is
temporarily stored. Gas from the separation process is metered for sale into the
Southern Natural Gas pipeline, and reinjected throughout the field for gas-lift
purposes. The salt water is stored in tanks on the production platform, and
saltwater disposal pumps reinject the salt water into the ground via a satellite
well. The separation process that occurs on the production platform is a discrete
stage of oil and gas production; it has nothing to do with the loading or unloading
of a vessel.
From the 4,000 barrel-capacity storage tanks on the production platform,
marketable crude oil is gravity fed via hard piping and flexible hose to the
Cherokee loading barge, which has a 8,900 barrel-capacity. The production
platform and the Cherokee are approximately thirty to forty feet apart and
separated by open water. Marketable crude oil is pumped from the loading barge
to transport barges via a pump located on the loading barge. The loading barge

27
 No. 06-60766

serves as a docking and loading facility, which can accommodate one 10,500
barrel-capacity transport barge. During the eight months of Hudson’s
employment, a transport barge would come once or twice a week.
Hudson was injured while attempting to repair a saltwater disposal pump
on the production platform. The reinjection of salt water, which is one of the final
stages of the production process, prevents contamination of the oil storage tanks
on the production platform. When Hudson cranked the pump, the starter
exploded and caught on fire, resulting in serious burns and shrapnel wounds on
his body. At the time of his injury, no transport barge was being loaded with
crude oil from the Cherokee.
Hudson admitted that the vast majority of his activities as a contract
operator were related to the servicing and maintenance of equipment on the
production platform. No cargo or other materials are ever loaded or unloaded
onto a vessel in the area of the platform where Hudson was injured. No pipeline
connects the saltwater disposal pump to the Cherokee. The equipment used to
produce oil and gas on the production platform is the same equipment used to
produce oil and gas on the land. All of the loading equipment is located on the
Cherokee; Hudson did not venture onto the production platform during the
loading process.
IV.
The crux of my argument is simple: the production platform, which extracts
hydrocarbons and converts them into a marketable form, is functionally distinct
from the loading barge, which facilitates the loading of marketable crude oil onto
mobile transport barges. The production of a commodity at a non-maritime situs
is different from the transportation of that commodity at a maritime situs.
Although both the production platform and the Cherokee have oil storage tanks,
only the Cherokee stores crude oil in a manner that facilitates the loading of a
vessel.

28
 No. 06-60766

The majority fails to grasp the following fact: oil and gas production is the
only activity that occurred on the platform where Hudson was injured. In an
effort to avoid the import of this inconvenient truth, the majority makes two
flawed arguments: (1) the production platform is a covered situs because it is
connected to the Cherokee by pipes and a permanent walkway, and (2) the
production platform is a covered situs because it stores marketable crude oil in
temporary storage tanks, which is part of the loading process. The first
argument fails because it impermissibly bootstraps the loading activities that
occur on a separate structure, and the second arguments fails because it relies
on an over-inclusive definition of “loading.”
In holding that the production platform and the Cherokee constitute a
single LHWCA situs, the majority allows proximity to trump functionality. The
central issue is whether Hudson was injured on an “adjoining area customarily
used by an employer in loading . . . a vessel.” 33 U.S.C. § 903(a). When defining
the scope of the LHWCA situs, “[t]he perimeter of an area is defined by function.”
Winchester, 632 F.2d at 515. Under the functional approach, the production
platform is inextricably intertwined with the satellite wells, not the Cherokee
loading barge. Without one, the other is useless. The satellite wells and the
production platform are involved in two distinct stages of the production process:
the satellite wells extract an unmarketable mixture of oil, gas, and salt water
from the subterranean strata, and the production platform separates that
mixture into marketable products and disposes of the waste. The activities
occurring on the production platform have nothing to do with cargo
transportation or maritime commerce. That happens later, at the loading barge.4
Nevertheless, the majority’s analysis combines two structures that lack a
functional nexus (the production platform and the loading barge) and separates

4
In support of its argument that the production platform qualifies as an “adjoining
area,” the majority repeatedly refers to loading activities that occurred on the Cherokee.

29
 No. 06-60766

two structures that share a functional nexus (the production platform and the
satellite wells).
Production does not cease until you have a marketable product. In this
case, you do not have a marketable product until the total flow from the satellite
wells is separated using the saltwater pumps, heater treaters, compressors, and
dehydrators on the production platform. Transportation begins when the crude
oil is transferred from the temporary storage tanks on the production platform
to the loading barge, at which point it becomes cargo awaiting transportation in
maritime commerce.
The ALJ, the BRB, and the majority all focus on the fact that the
production platform and the loading barge are connected via pipes and a
permanent walkway. This observation does not alter the reality that production
occurred on one functionally integrated structure (the satellite wells and the
production platform) and transportation occurred on another (the Cherokee).
Many land-based oil and gas production sites are connected, whether by pipeline
or asphalt, to various maritime sites used for shipment of cargo by vessel. To
further add to the confusion, the majority insists that the satellite wells and the
production platform are not functionally integrated despite the fact that the
satellite wells are connected to the production platform via gulf-floor
transmission lines. If the determinative factor of the situs test is
interconnectedness, why is the production platform inextricably intertwined with
the loading barge but not with the satellite wells?
The majority refers to the close proximity and permanent attachment of the
production platform and the Cherokee to support its argument that these two
functionally distinct areas constituted a single, inseparable facility. We have
previously held that function, not proximity or physical connectivity, is the
determinative factor regarding situs. See Winchester, 632 F.2d at 515. While

30
 No. 06-60766

proximity and physical connectivity might provide some evidence of common
function, they are not a substitute for it.
According to the majority, Hudson spent 90.2% of his time performing non-
maritime activities on the production platform and 9.8% of his time performing
maritime activities on the loading barge. In holding that the loading activities
occurring on the Cherokee control the situs designation of the production
platform, the majority is allowing the tail to wag the dog. The production
platform where Hudson was injured is geographically separate and functionally
distinct from the Cherokee. Perhaps there will be cases where the production
and transportation areas in a single facility are situated over navigable waters
and are not geographically separate and functionally distinct. This case does not
fall within that hypothetical category.
The majority’s second argument relies on an expansive definition of
“loading” that includes incidental storage at the site of production, regardless of
whether that storage actually facilitates the loading of a vessel. After observing
that marketable crude oil is stored in temporary storage tanks on the production
platform, the majority argues that this storage is part of the loading process
because “[i]f no oil flows from the platform’s storage tanks to the Cherokee, no oil
is available for a vessel to load.” Because part of the “general area” is used for
loading, the majority concludes that the entire production platform is a covered
situs. The majority’s reliance on the attenuated connection between post-
production storage on the platform and loading on the Cherokee is suspiciously
similar to the “but for” logic that it repudiates in a footnote.
Not all storage is related to loading. Most if not all production facilities
contain temporary storage areas for finished products. In the absence of a
pipeline, any land-based oil and gas production site must possess temporary
storage tanks for marketable crude oil that has recently been extracted and
separated. In my opinion, the statutory term “loading” does not encompass

31
 No. 06-60766

temporary storage at the production platform because that storage facilitates the
production of crude oil, not the loading of a vessel. Only the Cherokee stores
crude oil in a manner that facilitates the loading of a vessel. Unlike the crude
oil stored on the production platform, the crude oil stored in the Cherokee is
awaiting shipment by transport barge. The “hopscotch” hypothetical posed by the
majority is a red herring because no part of the production platform, including
the temporary storage tanks, is integral to the loading of the transport barges.
The majority declares that the production platform was the “consolidation point
for transport.” I beg to differ. The 8,900 barrel-capacity storage tank in the
Cherokee serves that “gathering function,” not the temporary storage tanks on
the production platform. The production platform gathers the total flow from the
satellite wells in order to separate it, and the Cherokee gathers the crude oil from
the production platform in order to transport it.
Over twenty years ago, the Supreme Court declared that oil and gas
production is “not even suggestive of traditional maritime affairs.” Herb’s
Welding, 470 U.S. at 422 (citing Rodrigue v. Aetna Cas. & Sur. Co., 395 U.S. 352,
360-61 (1969)). The majority should have avoided expanding LHWCA coverage
into this uncharted territory. See Herb’s Welding, 470 U.S. at 421 (“[The
plaintiff’s] approach would extend coverage to virtually everyone on the
stationary [drilling] platform. We think this construction of the [LHWCA] is
untenable.”) (status case); Thibodeaux, 370 F.3d at 488 (“The sole issue for our
review is whether a fixed oil production platform built on pilings over marsh 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
. . . .”) (situs case).
V.
Precedent from the Supreme Court, the BRB, the Fifth Circuit, and the
Eleventh Circuit supports the conclusion that the production platform where

32
 No. 06-60766

Hudson was injured does not qualify as a covered situs. The cases cited by the
majority are distinguishable.
The similarities between this case and Thibodeaux are striking. Both
Hudson and Thibodeaux were injured while attempting to repair equipment on
fixed oil and gas production platforms, which were connected to satellite wells.
370 F.3d at 487. The platform where Hudson was injured served no greater
“maritime purpose” than the platform where Thibodeaux was injured. Id. at 490.
These production platforms were not “customarily used by an employer in loading
. . . a vessel.” See 33 U.S.C. § 903(a). The only significant factual difference
between the two cases is that the production platform in this case was attached
by pipeline and a permanent walkway to a separate structure used for loading
marketable crude oil onto a transport barge.
In describing the Fifth Circuit’s “functional approach,” Thibodeaux
reaffirmed the holding of Jacksonville Shipyards, Inc. v. Perdue, 539 F.2d 533
(5th Cir. 1976), that “a putative situs actually be used for loading, unloading, or
one of the other functions specified in the Act.” Id. at 489 & n.3. It is undisputed
that Hudson’s injury did not occur on the Cherokee or a docked transport barge.

Thibodeaux also indicated that the “adjoining area” should have some
resemblance to the other parenthetically enumerated structures in the statute.
Id. at 491 n.5. Although the loading barge, which has docking facilities,
resembles a pier, we have previously held that an oil and gas production platform
does not fall within that enumerated category because it does not have a
connection to maritime commerce. See id. at 491, 493. Like any other land-
based oil and gas production site, the platform in this case was solely used for a
non-maritime function: the exploration and discovery of hydrocarbons, the
drilling of test and production wells, the extraction of those hydrocarbons from

33
 No. 06-60766

subterranean strata, the separation of those hydrocarbons into marketable
products, and the disposal of the production waste products.5
Both the Supreme Court and this Court have declared that the oil and gas
production process has absolutely nothing to do with maritime commerce. See id.
at 491 (“[I]t would be incongruous to extend [the LHWCA] to cover accidents on
structures serving no maritime purpose.”); see also Herb’s Welding, 470 U.S. at
425. Although Herb’s Welding is often pigeonholed as a “status” case, “[its]
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
has a connection to maritime commerce.” Thibodeaux, 370 F.3d at 494.
Importantly, Herb’s Welding reaffirmed the classification of off-shore production
platforms as “islands,” which reinforces the conclusion that the island where
Hudson was injured was geographically separate and functionally distinct from
the Cherokee, which was used to load cargo that was produced on that island. See
470 U.S. at 422 n.6 (citing Rodrigue, 395 U.S. at 360).
VI.
I agree with Coastal’s argument that we must apportion different
functional areas within the same facility into covered and non-covered areas. The
apportionment principle naturally flows from the requirement that “[t]he
perimeter of an area is defined by function.” Winchester, 632 F.2d at 515.
Because this circuit has not been presented with a case requiring application of
the apportionment principle, it is appropriate to look to persuasive precedent
from the BRB and the Eleventh Circuit for guidance.
In my opinion, the BRB unsuccessfully distinguishes its own precedent
indicating that the production platform is not a covered situs. In Jones v.
Aluminum Co. of America, the decedent’s widow sued ALCOA under the

5
Winchester and Thibodeaux suggest that the satellite wells (where extraction occurred)
and the production platform (where separation occurred) constitute a single functional entity.

34
 No. 06-60766

LHWCA, claiming that her husband died of cancer due to exposure to asbestos
on a covered situs. 35 BRBS 37, 2001 WL 467885, at *1 (April 9, 2001). The
decedent worked as a millwright welder and later as a general mechanic, which
required him to construct, repair, and maintain all types of equipment in the
ALCOA facility, which was adjacent to the navigable waters of the Mobile River.
Id. at *1, *6. The decedent’s regularly-assigned duties included repairing and
maintaining the bauxite conveyor belt system, which was used to unload raw
bauxite for the production of aluminum. Id. at *6. The conveyor belts
“transported bauxite from the ships to [ALCOA’s] storage facility for later use in
the manufacturing process.” Jones v. Aluminum Co. of Am., BRB No. 97-287, 31
BRBS 130 (Oct. 16, 1997). In addition to his work on the conveyor belt system,
the decedent worked the vast majority of his time in the aluminum
manufacturing plant, which was located near the docks and conveyor belts in the
same ALCOA facility.
Regarding the situs issue, the BRB stated the following:
[T]hat portion of employer’s facility where loading and unloading
occur constitutes a maritime situs.

It is also clear, however, that employer’s manufacturing plant is not
a covered situs. The Fifth Circuit’s decision in Winchester recognizes
that the “function” of an adjoining area must be one that is used for
the loading, unloading, repairing or building of vessels. A plant that
manufactures aluminum oxide is not engaged in these functions. In
Stroup [v. Bayou Steel Corp., BRB No. 97-1406, 32 BRBS 151 (BRB
July 2, 1998)], the Board recognized that there is a point at which
the maritime process ceases, and the manufacturing process begins,
and vice versa. This statement is consistent with cases holding that
employees, whose duties are integral to a manufacturing process
rather than to a longshoring process, are not engaged in maritime
employment pursuant to Section 2(3) of the Act. As employer’s
operation contains manufacturing facilities as well as areas used in
maritime work, the entire site is not covered under Section 3(a); the
plant itself lacks the functional nexus to be considered a covered

35
 No. 06-60766

area, and it cannot be brought into coverage simply because goods
are shipped by water from another portion of the facility.

Jones, 2001 WL 467885, at *6 (internal citations omitted).
In this case, the BRB held that the production platform where Hudson was
injured was more analogous to the covered situs in Gavranovic v. Mobil Mining
& Materials, 33 BRBS 1, 1999 WL 122921 (Feb. 23, 1999), than the non-covered
situs in Jones. In Gavranovic, the employee’s injury occurred in a cargo storage
building that was separate from the production area and was connected to
another building that stored cargo awaiting transport by vessel. See Gavranovic,
1999 WL 122921, at *4. The BRB found that the building where the injury
occurred was adjacent to navigable water, was in close proximity to the docks,
and was not a separate and distinct area. Id. In both Gavranovic and Jones, the
BRB recognized that the entire area used for loading and unloading, including
the areas containing conveyor belts and cargo storage facilities, qualified as a
covered situs. Jones, 2001 WL 467885, at *6; Gavranovic, 1999 WL 122921, at *4.
Thus, if the employee is injured in an area used as part of the overall shipment
process, then he is injured on a covered situs, but if the employee is injured in an
area “where only manufacturing took place,” then he is not.6 Jones, 2001 WL
467885, at *7.
In my opinion, Jones is much more closely analogous to this case than
Gavranovic, upon which the BRB relied. Both Hudson and Jones performed work
in the loading / unloading area and the manufacturing / production area of a
facility that was adjacent to navigable waters. In Jones, the area where the
bauxite was unloaded from vessels and moved by conveyor belt was

6
At most, Gavranovic stands for the proposition that an interconnected cargo storage
facility qualifies as a covered situs if it is distinct from the production facility, adjoins navigable
waters, and contains some cargo awaiting transport by vessel. To that extent, it is relevant
to the situs designation of the Cherokee, not the production platform.

36
 No. 06-60766

geographically separate and functionally distinct from the area where the
aluminum was manufactured. Similarly, in this case, the area where the oil was
stored for future shipment and loaded onto vessels was geographically separate
and functionally distinct from the area where the hydrocarbons were extracted
and separated into marketable form.
In this case, like Jones, there was a point where the non-maritime
production process ceased and the maritime loading process began. Both the
production platform in this case and the aluminum manufacturing plant in Jones
were part of larger facilities that were adjacent to navigable waters. After
observing that an injury is covered under the LHWCA only if it occurs on a
covered situs, the BRB remanded the Jones case to the ALJ for a determination
of “whether decedent was exposed to asbestos on a covered situs,” i.e. while he
worked on the conveyor belt system used to unload raw materials from vessels.
Jones, 2001 WL 467885, at *8. In this case, we know that Hudson’s injury
occurred while repairing a saltwater disposal pump on the production platform.
Similarly, in Melerine v. Harbor Construction Co., the BRB stated that
“[t]he fact that the [steel] mill receives raw materials and ships its products by
water, utilizing its dock area for loading and unloading, cannot in and of itself
convert the site of the mill into a covered situs.” 26 BRBS 97, 1992 WL 368658,
at *4 (Sept. 25, 1992). The BRB noted that the steel mill and the loading dock
were geographically separate and functionally distinct. See id. at *3. Because
“the line between [the employer’s] manufacturing and loading operations is
clearly drawn,” the BRB held that it was appropriate “to treat the mill as one
functional area and the dock as another.” Id. at *4. Importantly, the BRB held
that “finished products enter the stream of maritime commerce only after
delivery by truck to the dock area.” Id.
Like Melerine, the line between production and loading operations is
“clearly drawn” in this case. The marketable oil enters the stream of maritime

37
 No. 06-60766

commerce only after gravity-fed delivery of the cargo from the production
platform to the loading barge. At that point, like the situation in Gavranovic, the
crude oil is stored in the Cherokee in a manner that facilitates the loading of a
vessel.
Finally, in Dickerson v. Mississippi Phosphates Corp., the BRB held that
the employer’s phosphoric acid plant, which was located about 100 feet from a
navigable waterway, was not a covered situs. 37 BRBS 58, 2003 WL 21041375,
at *6 (April 29, 2003). The facts of Dickerson closely resemble the facts of Jones
and Melerine. See id. at *5.
The BRB in Dickerson rejected the employee’s argument that the plant was
a covered situs because it abutted navigable waters and was part of a larger
manufacturing facility that included a dock area. Id. at *5. No loading or
unloading of a vessel occurred in the area where the employee was injured, and
the plant was not used for any intermediate steps in the loading process. Id.
Because the plant did not have “a functional nexus to maritime activity,” the
employee could not satisfy the situs test. Id. at *6. The situs designation of the
phosphoric acid plant was not altered by the presence of a pipeline that connected
the phosphoric acid plant to the fertilizer plant, or the presence of a conveyor belt
that connected the fertilizer plant to the dock. Id. at *5.
Dickerson demonstrates that the production platform’s situs designation
is not affected by (1) the geographical proximity of the platform to either
navigable waters or the loading barge; or (2) the pipes connecting the production
platform to the Cherokee. Jones, Melerine, and Dickerson support the conclusion
that we must apportion different functional areas within the same facility into
covered and non-covered areas. I believe that the majority’s “all or nothing”
approach fails to recognize this basic principle.

38
 No. 06-60766

VII.
Eleventh Circuit precedent supports the conclusion that the production
platform where Hudson was injured was not a covered situs. In Bianco v.
Georgia Pacific Corp., the Eleventh Circuit addressed whether the sheetrock
production department of a gypsum products facility qualified an “adjoining area”
under § 903(a). 304 F.3d 1053, 1054 (11th Cir. 2002).
In Bianco, the gypsum products facility lied on the banks of the Turtle and
East Rivers. Id. Raw gypsum was unloaded from vessels onto a series of
conveyor belts that moved the gypsum to the employer’s “rock shed” at its
production plant. Id. at 1054-1055. From the rock shed, the gypsum was
processed and then transported to the sheetrock production department. Id. The
finished product was eventually transported to market by truck. Id. The
employee in Bianco sustained an injury in the sheetrock production department
Id. During the course of his employment, the employee participated in both the
production and the unloading process. Id.
Relying in part on the principles contained in Winchester, the Eleventh
Circuit held that the sheetrock production department where the injury occurred
did not satisfy the situs test.7 Id. at 1058. Because this area was used solely for
manufacturing sheetrock and was not part of the “on-going overall process of
unloading raw gypsum,” the Eleventh Circuit concluded that it was functionally
distinct from the unloading area contained in the same facility. Id.
Significantly, the Eleventh Circuit responded to the employee’s argument that
“[because] a portion of the [employer’s] facility is maritime, the entire facility
must be, because to hold otherwise would result in workers walking in and out

7
The Eleventh Circuit has adopted all Fifth Circuit decisions issued before October 1,
1981, including Winchester, as binding precedent. Bonner v. City of Prichard, Ala., 661 F.2d
1206, 1209 (11th Cir. 1981) (en banc). Because the Eleventh Circuit relied on Winchester when
it applied the apportionment principle in Bianco, I find its reasoning particularly persuasive.

39
 No. 06-60766

of coverage.” Id. at 1059. Based on the Supreme Court’s statements in Schwalb8
and Herb’s Welding, the Eleventh Circuit determined that this principle “was
more concerned with workers engaged in maritime activity walking in and out
of coverage at or near the water’s edge.” Id. Most importantly, the Eleventh
Circuit noted that congressional intent that workers not walk in and out of
coverage “does not give a court the license to reach out and expand coverage
beyond the terms of [33 U.S.C. § 903(a)].” Id. at 1060.
Like the Eleventh Circuit in Bianco, I believe that the majority’s expansive
definition of covered situs “would effectively be writing out of the statute the
requirement that the adjoining area ‘be customarily used by an employer in
loading . . . a vessel.’” Id. “[The] broad interpretation of ‘area’ [contained in
Winchester] is different from one that ignores other language in the statute
indicating that a functional nexus to maritime activity must nonetheless exist.”
Id. at 1060 n.10 (emphasis in original).
This case is distinguishable from the facts of Caputo, where one employee
was injured on a pier while stripping containerized cargo and another employee
was injured on an adjoining area while loading cargo from a vessel onto a truck.
Ne. Marine Terminal Co. v. Caputo, 432 U.S. 249, 253, 255 (1977). It is also
distinguishable from the facts of Winchester, where the injury occurred in a “gear
room” that contained “equipment used by stevedores to perform the loading

8
Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S. 40 (1989).

40
 No. 06-60766

operation.”9 632 F.2d at 507 & n.1. The production platform in this case has a
functional nexus to oil and gas production, not to the loading of cargo.
I disagree with the majority’s invocation of the “walking in and out of
coverage” principle to justify its situs holding. First, the Supreme Court stated
in Herb’s Welding that “there will always be a boundary to coverage, and there
will always be people who cross it during their employment.” 470 U.S. at 426; see
also Bianco, 304 F.3d at 1059-60. In Jones, Melerine, and Dickerson, the BRB
recognized that those employees spent at least some of their time performing
maritime work on a covered situs; however, the employees were unable to
establish that they were located on a covered situs at the approximate time they
were injured. See Thibodeaux, 370 F.3d at 488. Second, I believe that the text
of § 903(a) is not ambiguous regarding whether the production platform is a
covered situs. The production platform was not “customarily used by an
employer in loading . . . a vessel.” See 33 U.S.C. § 903(a). “The starting point in
discerning congressional intent is the existing statutory text.” Lamie v. United
States Tr., 540 U.S. 526, 534 (2004). Only after application of the principles of
statutory construction, including the canons of construction, and after a
conclusion that the statute is ambiguous may the court turn to the legislative
history. Carrieri v. Jobs.com, Inc., 393 F.3d 508, 518-19 (5th Cir. 2004). Third,

9
Unlike the production platform where Hudson was injured, the “gear room” where
Winchester was injured was an essential part of the loading and unloading process:

[Winchester’s] duties as a gear man included supplying and repairing the tools
and machinery used by stevedores in loading and unloading ships. His work
was performed at the dockside, on board ships, and at each of the gear rooms,
including those of other stevedores. When Texports was loading and unloading
cargo, Winchester would service several ships, travelling over the public streets
connecting the gear rooms and docks. Even when Texports had no ships to load
or unload, the gear rooms operated repairing and maintaining gear for the next
loading and unloading operation.

Winchester, 632 F.3d at 507.

41
 No. 06-60766

even assuming that this principle should guide our situs analysis, the facts of this
case do not present the situation that Congress sought to eliminate with the 1972
amendments to the LHWCA. In support of this argument, the majority cites to
Caputo and Winchester, which I have previously demonstrated are factually
distinguishable from this case. The “walking in and out of coverage” principle
reflects Congress’s “undoubted desire to treat equally all workers engaged in
loading or unloading a ship, whether they were injured on the ship or on an
adjoining pier or dock.” Herb’s Welding, 470 U.S. at 426; see also Sidwell v.
Express Container Servs., Inc., 71 F.3d 1134, 1135 (4th Cir. 1995). This principle
merely reminds us that Hudson would have been covered if he were injured on
the loading barge, the transport barge, or the walkboard in-between. All three
of these locations would qualify as a maritime situs under the LHWCA. The
majority makes an unwarranted logical leap when it relies on this principle to
transform a non-maritime oil and gas production platform into a covered situs.
Hudson “is a far cry from the paradigmatic longshoreman who walked in and out
of coverage during his workday and spent substantial amounts of his time ‘on
navigable waters.’” Herb’s Welding, 470 U.S. at 427 n.13.
VIII.
The regulation of oil and gas production in state territorial waters has
traditionally been an area of state concern. This is not a case where Hudson
would be left without a remedy if the LHWCA does not apply. Hudson was
injured while performing a job required at many land-based oil and gas
production sites located throughout Louisiana, and he is currently receiving state
worker’s compensation benefits. There is ample precedent supporting the
conclusion that the production platform where Hudson was injured was not a
covered situs. If there is any doubt as to whether the LHWCA applies in this
case, I believe that principles of federalism counsel towards a more conservative
approach. The majority and dissenting opinions from our en banc decision in

42
 No. 06-60766

Bienvenu underscore the difficulties arising from application of the LHWCA to
the oil and gas production industry based in state territorial waters. The
additional ambiguity injected by the majority into this area of law “is plainly in
conflict with the policy favoring expeditious but limited compensation to injured
workers, that underlies all programs of workers’ compensation, whether at the
federal or state level.” Bienvenu v. Texaco, Inc., 164 F.3d 901, 923 (5th Cir. 1999)
(en banc) (DeMoss, J., dissenting). For these reasons, I respectfully dissent.

43