Odom Const. Co., Inc. v. U.S. Dept. of Labor

Citation622 F.2d 110
Decision Date21 July 1980
Docket NumberNo. 78-1483,78-1483
PartiesODOM CONSTRUCTION COMPANY, INC., Employer, and American Mutual Insurance Company, Carrier, Petitioners, v. UNITED STATES DEPARTMENT OF LABOR and Director, Office of Workers' Compensation Programs, United States Department of Labor, and Garfield Maze, Jr., Respondents.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Mouton, Roy, Carmouche, Bivins & Hill, John A. Bivins, Lafayette, La., for petitioners.

John E. Conery, Franklin, La., for G. Maze, Jr.

Ralph M. Hartman, Director Office of Workers' Compensation Programs, U. S. Dept. of Labor, Mary A. Sheehan, U. S. Dept. of Labor, Washington, D. C., for respondents.

Petition for Review of an Order of the Benefits Review Board

Before GODBOLD, GARZA and RANDALL, Circuit Judges.

GODBOLD, Circuit Judge:

This is a petition by the employer and its insurer for review of a decision by the Benefits Review Board affirming an Administrative Law Judge's award to the respondent Maze of permanent disability benefits under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901, et seq. ("LHWCA"). The petitioners raise three arguments: (1) Maze was not a covered "employee" within the meaning of 33 U.S.C. § 902(3); 1 (2) he was not injured on a situs covered under 33 U.S.C. § 903(a); 2 and (3) he was not permanently disabled as defined in 33 U.S.C. § 902(10). 3

I. Coverage under LHWCA

The facts underlying Odom's arguments that Maze was not a covered employee injured on a covered situs are largely undisputed. Maze, an employee of Odom, was accidentally injured on July 9, 1973 when an oxyacetylene torch, which he was using to cut wire rope, exploded and burned his forearms. Maze was normally a land-based construction worker. On the day of his injury he was engaged in a two-day job that required moving four large concrete blocks that had been located on the bank of a navigable canal 4 but had sunk into the water because of erosion. Earlier in the day of his injury Maze had been in the water digging under the blocks so that wire rope could be passed around them, but he was standing on shore when the torch exploded. The blocks were used solely as a place to tie off or moor barges that were waiting to be moved to the loading facilities of Domtar Salt Mine Company and barges that, after being loaded, were awaiting towboats.

1. Maze's status under 33 U.S.C. § 902(3)

Odom argues that Maze is not a covered "employee" both because moving the concrete blocks was not maritime work and because the great majority of Maze's work for Odom was indisputably nonmaritime. We reject both arguments.

First, the act of moving the blocks is maritime work. Section 902(3) lists harborworkers among the types of workers covered. It is at least arguable that the repair of moorings, even of those not adjacent to main docks, is a type of job that could be performed by a typical harborworker. Yet we need not hold that Maze was engaged in "harborworking" at the time of his injury, for § 902(3) by its own terms states that longshoremen and harborworkers are not the only persons engaged in maritime employment. Cf. P. C. Pfeiffer Co. v. Ford 444 U.S. 69, 77, 100 S.Ct. 328, 334, 62 L.Ed.2d 225, 233 n.7 (1979); Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 265 n.25, 97 S.Ct. 2348, 2358, 53 L.Ed.2d 320, 334 n.25 (1977) (maritime employment includes more than longshoring). Moving the blocks directly furthered maritime commerce. By tying up to the blocks, barges were moored and held in place before loading until they could be moved to the loading facilities and, after loading, until they could be taken away by tugs. Relocating the blocks after they had fallen or slipped into the water from erosion is not the type of job peripherally related to maritime matters that Congress said was not to be covered by the LHWCA, such as trans-shipment of stored cargo or clerical work. See S.Rep. No. 92-1125, 92d Cong., 2d Sess. 13; H.R.Rep. No. 92-1441, 92d Cong. 2d Sess. 10-11, quoted in P. C. Pfeiffer Co., supra, 444 U.S. at 79, 100 S.Ct. at 335, 62 L.Ed.2d at 234; Caputo, supra, 432 U.S. at 265 n.27, 97 S.Ct. at 2358, 53 L.Ed.2d at 334 n.27. On the facts before us, where the job being done clearly had "a realistically significant relationship to 'traditional maritime activity involving navigation and commerce on navigable waters' . . .," Weyerhauser Co. v. Gilmore, 528 F.2d 957, 961 (9th Cir. 1975), cert. denied, 429 U.S. 868, 97 S.Ct. 179, 50 L.Ed.2d 148 (1976) (citations omitted), Maze's work at the time of his injury was maritime.

The appellants urge that even if Maze was doing maritime work at the time of his injury, he is not a covered employee because he spent the great majority of his time doing indisputably land-based jobs. They assert that the 1972 amendments extended coverage only to workers who do primarily maritime employment. Arguably, our decision that Maze is a covered employee could be based solely upon the foregoing conclusion that he was engaged in maritime work at the time of his injury. See Thibodaux v. Atlantic Richfield Co., 580 F.2d 841, 843-45 (5th Cir. 1978), cert. denied, 442 U.S. 909, 99 S.Ct. 2820, 61 L.Ed.2d 274 (1979); 1A Benedict on Admiralty § 16a (1979); cf. Fusco v. Perini North River Assoc., 601 F.2d 659, 668 (2d Cir. 1979), vacated and remanded, 444 U.S. 1028, 100 S.Ct. 697, 62 L.Ed.2d 664 (1980) (claimant must have major activities on navigable waters). We need not rest on this narrow ground, however, but can look at all the circumstances of Maze's employment. Where, as here, the claimant was doing maritime work that required him to go into the water and where a significant part of the employer's overall work, 20%, was maritime, the policy of the Act strongly favors coverage.

A finding that Maze was not covered would create a major opportunity for abuse of the Act, a risk that is illustrated by the facts of this case. Mr. Odom testified in the hearing before the ALJ that, at the time of Maze's injury, approximately 20% of his company's work involved bulkheading and piledriving in navigable waters. He stated further that he had a separate crew for that type of work and in fact had separately incorporated those operations just before the hearing. If any member of this "maritime" group had been the claimant here, there would be no doubt about his status as a covered employee. Odom should not benefit from the fact that it has not elected to assign Maze, who was injured while engaged in clearly maritime activity, to some group or crew identified as carrying on maritime activity.

At least twice, in construing the maritime employment requirement of the Act, the Supreme Court has pointed out that coverage should not turn on the employers' assignment policies. In P. C. Pfeiffer Co., supra, the employer suggested that the Act reached only employees who, on the days of their injuries, could have been assigned to work on navigable waters. The Court stated that under such an interpretation an employer could impermissibly limit his liability under the Act simply by prohibiting some of his cargo-moving employees, who would otherwise have been covered, from working on navigable waters. 444 U.S. at 83, 100 S.Ct. at 337, 62 L.Ed.2d at 237. In Caputo, the employer urged that the Act covered only workers who handled cargo before it reached its first "point of rest" on land. The Court noted that such a construction would permit an employer to define the limits of his liability at his whim by moving the point of rest. 432 U.S. at 275 n.38, 97 S.Ct. at 2363, 53 L.Ed.2d at 340 n.38. In both cases the Court found that permitting coverage to turn on assignment policies was inconsistent with the professed Congressional desire for uniform coverage.

Denying recovery to Maze here would allow employers like Odom, who do substantial amounts of both maritime and nonmaritime work, to avoid liability under the Act to workers injured while engaged in maritime activity simply by allowing each employee to do only a limited amount of maritime work. Under the Supreme Court's analysis in Caputo and Pfeiffer, such a result would be contrary to Congressional intent.

2. The situs under 33 U.S.C. § 903(a)

Appellants contend that Maze was not injured on a covered situs. They assert that the mooring blocks are not a "pier" or "wharf" and that their site, therefore, comes within the jurisdiction of the Act only if it is an "other adjoining area customarily used by an employer in loading, unloading, repair, or building a vessel." They interpret the phrase "customarily used by an employer . . ." to extend coverage only when the claimant's employer normally uses the facility for loading or unloading. They state that permitting coverage if the area is used for the listed purposes by any employer other than the claimant's would be inconsistent with the definition of employer given in 33 U.S.C. § 902(4). 5

Odom's suggestion that coverage would be available only if it, the employer, used the mooring blocks is both an inappropriately strained reading of the statute and contrary to the overall Congressional intent. The stated limitation is cast in terms of an employer, not the employer or the claimant's employer. A more reasoned interpretation is that the site must be used by a statutory employer. It is clear from the record and the findings below that Domtar Salt, which uses the blocks as an integral part of its facilities for loading salt onto barges, is a statutory employer.

In addition, it seems clear to us that the phrase "customarily used by an employer . . ." was inserted to ensure that an employer could be liable only when it had real or constructive notice that an area was used for maritime purposes and was therefore likely to be a covered situs. This notice function would not be aided substantially by requiring the claimant's employer to be the customary user, as illustrated by the fact that Odom makes no claim here that it did not know about...

To continue reading

Request your trial
40 cases
  • Texports Stevedore Co. v. Winchester
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • December 10, 1980
    ... ... Compensation Programs, U.S. Department of Labor, ... Respondents ... No. 76-4100 ... Meisburg, Joshua T. Gillelan, II, Attys., Dept. of Labor, Washington, D. C., for respondents ... Stockman v. John T. Clark & Son of Boston, Inc., (539 F.2d 264, 274 (1st Cir. 1976)); ... Odom Construction Co., Inc. v. United States Dep't of ... ...
  • Boudreaux v. American Workover, Inc.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • July 6, 1982
    ...F.2d 665 (5th Cir. 1981); Trotti & Thompson v. Crawford, 631 F.2d 1214, 1221 (5th Cir. 1980) (land); Odom Construction Co. v. United States Dep't of Labor, 622 F.2d 110, 113 (5th Cir. 1980) (land), cert. denied, 450 U.S. 966, 101 S.Ct. 1482, 67 L.Ed.2d 614 (1981).27 Thibodaux v. Atlantic Ri......
  • Boudreaux v. American Workover, Inc.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • December 7, 1981
    ...(Trotti & Thompson v. Crawford, 631 F.2d 1214 (5th Cir. 1980)), or on clearing a navigable channel (Odom Construction Co. v. United States Dep't of Labor, 622 F.2d 110 (5th Cir. 1980), cert. denied, 450 U.S. 966, 101 S.Ct. 1482, 67 L.Ed.2d 614 (1981)), is maritime in nature. But of course i......
  • Miller v. Central Dispatch, Inc.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • April 22, 1982
    ...Coast Marine v. Bosarge, 637 F.2d 994, 996 (5th Cir. 1981), modified in part, 657 F.2d 665 (5th Cir.); Odom Construction Co. v. U.S. Department of Labor, 622 F.2d 110, 115 (5th Cir. 1980), cert. denied, 450 U.S. 966, 101 S.Ct. 1482 67 L.Ed.2d 614, 101 S.Ct. 1482 (1981); Avondale Shipyards, ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT