653 F.2d 1353 (9th Cir. 1981), 79-7257, Ramos v. Universal Dredging Corp.

Docket Nº:79-7257, 79-7285 and 79-7302.
Citation:653 F.2d 1353
Party Name:Raymond C. RAMOS, Petitioner, v. UNIVERSAL DREDGING CORPORATION, Industrial Indemnity Company, and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
Case Date:August 17, 1981
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1353

653 F.2d 1353 (9th Cir. 1981)

Raymond C. RAMOS, Petitioner,



Company, and Director, Office of Workers'

Compensation Programs, United States

Department of Labor, Respondents.

Nos. 79-7257, 79-7285 and 79-7302.

United States Court of Appeals, Ninth Circuit

August 17, 1981

Argued and Submitted April 24, 1981.

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Mark C. Walters, U.S. Dept. of Labor, Washington, D.C., argued, for petitioner; Benjamin L. Carroll, III, McKenzie, Trecker & Fritz, Honolulu, Hawaii, on brief.

John A. Roney, Stubenberg, Shegemura, Roney & Gniffke, Honolulu, Hawaii, for respondents.

On Petition for Review of Order of Benefits Review Board.

Before KILKENNY, SNEED and FARRIS, Circuit Judges.

KILKENNY, Circuit Judge:

Ramos and the Director, Office of Workers' Compensation Programs, United States Department of Labor (Director) both petition for review of an order of the Benefits Review Board (Board) which vacated an award of an Administrative Law Judge (ALJ) under the Longshoremen's and Harbor Workers' Compensation Act (LHWCA or Act), 33 U.S.C. § 901 et seq., and remanded to dismiss for lack of subject matter jurisdiction.


Ramos was employed by Universal Dredging Corporation (Universal) as a deck hand on the Dredge EXPLORER. The dredge was being used in connection with the construction of a reef runway of the Honolulu International Airport, which extended into Hickam Harbor and Keehi Lagoon. The dredge, located some distance from the shore, had no motor for transportation. Its function is to scoop soil, rock, coral, and other ocean floor material and pump the material through pipes to the levee. We can assume that Ramos' job duties included keeping the deck clean, checking the fuel level for the next shifts, inspecting the pipes for leaks, removing stones that might jam the machinery, and supplying general maintenance to the dredge.

Ramos was injured while working on the dredge in late September and early October, 1975. He filed claims for benefits under the Act and Universal voluntarily paid those claims for temporary total disability until August, 1977. At that time, the parties could not agree on continued compensation and the case was transferred to the ALJ for a formal hearing. Her decision, which can be termed both findings and conclusions, states, among other things, the following:

"The issues here under consideration are: (1) whether the Claimant was a 'member of the crew' of a vessel excluded from coverage at the time of his injury; and, (2) the nature and the extent of injury."

Her findings recite that the dredge was in navigable waters, that the activity was maritime employment and that the parties so agreed. She also found that the injuries occurred during and in the course of employment. Her decision and order filed July 10, 1979, found that Ramos was: (1) not a "member of the crew" of a vessel excluded from coverage; (2) permanently disabled, and (3) entitled to compensation. Ramos appealed the failure of the ALJ to award attorney fees and 10% additional compensation under 33 U.S.C. § 914(e). Universal appealed urging, among other things, that the ALJ erred in finding that

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Ramos was not a member of the crew of the vessel. The Director filed a brief and presented oral argument in response to Universal's petition for review.

Later, in a two to one decision, the Board vacated the ALJ's award. The Board decided that issues presented by §§ 902(3) (whether plaintiff was an "employee") and 903(a) (whether the injury occurred upon navigable waters) presented issues of subject matter jurisdiction, rather than issues of "coverage." These were issues that could not be waived and the Board was required to raise them on its own motion. It found that the claimant was not a "harbor worker" because the reef runway under construction was not a "harbor facility" and that Ramos was not engaged in "maritime employment" because his work did not have a "realistically significant relationship to navigation and commerce on navigable waters."


We have concluded that the only issue necessary to be decided is whether the Board erred when it concluded that it did not have subject matter jurisdiction.


The majority in the Board's decision makes it clear that it did not reach the merits, but concluded that it lacked subject matter jurisdiction. We quote from it:

"We will not address the issues raised in these appeals as we have determined that, regardless of the disposition of the issue of claimant's status as a member of the crew, the award must be vacated for lack of subject matter jurisdiction. The record clearly reveals that claimant was not engaged in maritime employment under the Act." (Emphasis added.)

The decision concludes with the language:

"Accordingly, the award is vacated and the case is remanded to the Office of Administrative Law Judges with instructions to dismiss for lack of subject matter jurisdiction."

The 1972 Amendment under scrutiny, § 903(a) of the Act, reads:

"(a) Compensation 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...

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