McGray Constr. v. Director, 96-70041

• Decision Date: 13 February 1997
• Docket Number: No. 96-70041,96-70041
• Parties: (9th Cir. 1999) MCGRAY CONSTRUCTION COMPANY; BEAVER INSURANCE COMPANY, Petitioners, v. DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS; HARRY HURSTON, Respondents. Argued and Submitted:
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1008

181 F.3d 1008 (9th Cir. 1999)

MCGRAY CONSTRUCTION COMPANY; BEAVER INSURANCE COMPANY, Petitioners, v. DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS; HARRY HURSTON, Respondents.

No. 96-70041

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted: February 13, 1997

Filed: May 2, 1997

Opinion withdrawn: September 3, 1997

Reargued and Resubmitted: June 1, 1999

Filed: June 22, 1999

Roger A. Levy, Laughlin, Falbo, Levy & Moresi, San Francisco, California, for the petitioners.

John R. Hillsman, McGuinn, Hillsman & Palefsky, San Francisco, California, for respondent Harry Hurston.

Laura J. Stomski (briefed), Attorney, Joshua T. Gillelan II (argued), United States Department of Labor, Office of Workers' Compensation Programs, Washington, D.C., for the respondent.

Petition for Review of an Order of the Benefits Review Board. OWCP No. 18-0026439 BRB No. 88-4207.

Before: Procter Hug, Jr., Chief Judge; David R. Thompson and Andrew J. Kleinfeld, Circuit Judges. Opinion by Judge Kleinfeld.

KLEINFELD, Circuit Judge:

The main issue in this case is whether a person who has mostly done maritime work in the past, but takes a nonmaritime job, gets compensated for workplace injury under the workers' compensation system or the Longshore and Harbor Workers' Compensation Act.¹

We previously issued an opinion in this case², but withdrew it³ after the Supreme Court overruled Papai v. Harbor Tug and Barge Co. on which the majority in our earlier opinion relied.⁴ We now revisit the case and reach a conclusion consistent with the intervening Supreme Court decision.

FACTS

Mr. Hurston was working as a pile driver, when a load fell from a crane and seriously injured him. His employer, McGray Construction, voluntarily paid workers' compensation benefits. Mr. Hurston contended that he was entitled to have his benefits paid under the Longshore and Harbor Workers' Compensation Act.⁵ This raised questions of whether the place where Mr. Hurston was hurt constituted a maritime situs, and whether he was working in a maritime status at the time.

The place of the injury looked like a pier, but it was not used to dock ships. Nor did it reach water, except at high tide. A pipe brought oil from a well in the Santa Barbara channel to the pier. Machinery on the pier separated out the water and gas, and stored the oil in big tanks along with oil from other wells. Once every five or ten days the oil from the tanks was pumped out into a pipe that deposited it into an offshore barge, which would take it to a refinery. The Benefits Review Board held that the structure was not a pier for purposes of coverage under the Act, but we reversed and remanded, holding that the structure was an "adjoining pier" under the Act.⁶ Thus for purposes of the case at bar, it is established that Mr. Hurston's injury occurred at a maritime situs.

On remand, the Benefits Review Board held that Mr. Hurston was in maritime status. A significant part of the reasoning was that Mr. Hurston's "overall employment history" had been largely maritime. He had spent 90% of his time in the almost three decades preceding the accident as a marine diver, and only 10% as a pile driver. Different companies hired him out of a union hall that represented both trades. The Board read Northeast Marine Terminal Co., Inc. v. Caputo⁷ to mean that a person who spent some of his time doing maritime work was covered by the Act even when he took a job that was not maritime. The Board also viewed construction work on a pier as maritime in nature, at least where spray from the ocean often made the pier slippery and the waves affected the way the pile driving was done. McGray Construction, the company that hired Mr. Hurston, petitions for review.

ANALYSIS

In order to be covered by the Longshore and Harbor Workers' Compensation Act, a person must be an "employee" as defined in the Act.⁸ The "status" test, whether a person is an "employee," is independent of the "situs" test, whether a person is at a maritime location. Both tests must be satisfied. So, for example, "persons who are on the situs but are not engaged in the overall process of loading and unloading vessels are not covered."⁹ Thus even though it is now established that Mr. Hurston was working at a covered situs, we must evaluate his "status" independently.

The statute defines "employee" status as "maritime employment" including "longshoreman," and "any harbor-worker including a ship repairman, ship-builder, and ship-breaker," but excludes seamen and excludes various people who work on and near water if covered by workers' compensation:

The term "employee" means 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, but such term does not include -

(A) individuals employed exclusively to perform office clerical, secretarial, security, or data processing work;

(B) individuals employed by a club, camp, recreational operation, restaurant, museum, or retail outlet;

(C) individuals employed by a marina and who are not engaged in construction, replacement, or expansion of such marina (except for routine maintenance);

(D) individuals who (i) are employed by suppliers, transporters, or vendors, (ii) are temporarily doing business on the premises of any employer described in paragraph (4), and (iii) are not engaged in work normally performed by employees of that employer under this Act;

(E) aquaculture workers;

(F) individuals employed to build, repair, or dismantle any recreational vessel under sixty-five feet in length;

(G) a master or member of a crew of any vessel; or

(H) any person engaged by a master to load or unload or repair any small vessel under eighteen tons net

if individuals described in clauses (A) through (F) are subject to coverage under a State workers' compensation law.¹⁰

Thus, first, the work has to be "maritime" for the person to be an "employee." We discuss below what that means. Second, the statute coordinates the definition of "employee" for coverage under the Act so that no one is left out in the cold, by largely assuring coverage as a seaman, a longshore or harbor-worker, or under state workers' compensation laws. In this case as in most or all, the question is not whether an employee will be left out in the cold, but only which scheme covers him. Third, Congress gave its attention to a number of quite specific occupations, such as longshoremen, ship repairmen, aquaculture workers, builders of small recreational vessels, and so forth, so the statute cannot be read as a broad brush approach.

Several Supreme Court decisions have construed aspects of the statute bearing on the case before us. In Northeast Marine Terminal Co. v. Caputo,¹¹ a man who checked cargo as it was unloaded, and a terminal laborer hurt as he loaded cargo onto a truck, were held to be covered. The Court rejected the notion that coverage under the Act ended when the cargo reached its first point of rest on the dock, and held that the 1972 amendments expanded coverage shoreward from navigable waters to adjoining areas used for loading and unloading and building ships, but constrained coverage by requiring that a person's employment be "maritime."¹² Both men hurt fell into the category of "longshoremen or other person engaged in longshoring operations."¹³ Containerization had changed unloading operations, so checking the cargo as it was unloaded on shore from a container already at rest on land was longshoring.¹⁴ Because truck drivers picking up cargo at the dock are not covered,¹⁵ the man loading the truck presented a closer case. But his assignments on his job with this employer as a terminal laborer included loading and unloading barges, lighters, and containers, as well as trucks.¹⁶ Because he was "a member of a regular stevedoring gang," and as a terminal laborer was assigned various tasks during the day that might well include unloading a vessel or container, he was employed as a longshoreman whether the cargo had come to rest off the ship or not.¹⁷ "The Act focuses primarily on occupations - longshoreman, harbor worker, ship repairman, ship builder, ship-breaker. . . . When Congress said it wanted to cover 'longshoremen,' it had in mind persons whose employment is such that they spend at least some of their time in indisputably longshoring operations and who, without the 1972 Amendments, would be covered for only part of their activity."¹⁸

P.C. Pfeiffer Co. v. Ford¹⁹ held that "maritime employment" status does not depend on whether the tasks are performed over water, but instead requires maritime duties, such as longshoring. "Congress intended that a worker's eligibility for federal benefits would not depend on whether he was injured while walking down a gangway or while taking his first step onto the land."²⁰ The men injured in P.C. Pfeiffer were "doing tasks traditionally performed by longshoremen"²¹ so they were covered. It did not matter that one of them was hired out of the warehousemen's union instead of the longshoremen's union, and was prohibited by union-management agreements from going on board a ship.²² "We do not suggest that the scope of maritime employment depends upon the vagaries of union jurisdiction."²³ Director v. Perini North River Associates²⁴ held that a man who unloaded caissons from a barge was a maritime employee.

Herb's Welding, Inc. v. Gray²⁵ established, importantly for this case, that the required "maritime employment" status did not "cover all those who breathe salt air."²⁶ The Court held that a welder who worked on an oil drilling platform was not covered, even though he faced maritime hazards, was generally on or near the water, arrived at his platform by boat, and unloaded his gear from the boat to the platform.²⁷ The 1972 amendments "were not meant 'to cover employees who are not engaged in loading, unloading,...