Mississippi Coast Marine, Inc. v. Bosarge
| Decision Date | 17 February 1981 |
| Docket Number | No. 78-2375,78-2375 |
| Citation | 637 F.2d 994 |
| Parties | MISSISSIPPI COAST MARINE, INC., and U. S. Fidelity and Guaranty Company, Petitioners, v. Herman E. BOSARGE and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Paul M. Franke, Jr., Gulfport, Miss., for petitioners.
Bobby O'Barr, Biloxi, Miss., Joshua T. Gillelan, II, Atty., U. S. Dept. of Labor, Washington, D. C., for respondents.
Petition for Review of an Order of the Benefits Review Board.
Before SIMPSON, GODBOLD and THOMAS A. CLARK, Circuit Judges.
This case comes to us under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. (hereinafter the "Act"). Petitioners, Mississippi Coast Marine, Inc. and its insurer, United States Fidelity & Guaranty Co. (hereinafter "Mississippi Coast"), appeal a decision of the Benefits Review Board which affirmed an award to claimant, Herman E. Bosarge, for several heart attacks, the first of which claimant experienced while employed by Mississippi Coast. Upon review of the record the decision of the Benefits Review Board is affirmed.
By way of synopsis, Bosarge suffered a heart attack while working as a marine carpenter in the repair of a thirty-foot pleasure boat at his employer's boatyard located on the waterfront. Appellant raises the following contentions: (1) Bosarge was not an "employee" under the Act because at the time of injury Bosarge was not engaged in "maritime employment" (status); (2) the Mississippi Coast boatyard is exempt from the Act because the overwhelming majority of its work was performed upon vessels under eighteen tons net (situs); and (3) the claimant's permanent total disability was not causally related to his injury while employed at the boatyard, or alternatively the amount of appellant's liability should have been apportioned in accordance with Section 8(f) of the Act, 33 U.S.C. § 908(f).
Mississippi Coast owns a facility in Gulfport, Mississippi, consisting of three acres of land bounded on the east and south by the Gulfport Small Craft Harbor, which has a channel leading into the Gulf of Mexico. Mississippi Coast's business involves the repair of vessels ranging in size from small pleasure craft to commercial shrimping boats weighing thirty tons and measuring sixty feet in length. Larger vessels are not serviced by Mississippi Coast, and the great majority of the repair work involves small pleasure craft.
Claimant, Herman E. Bosarge, was first employed by the petitioner in the fall of 1972 as a marine carpenter. Approximately seven months later, on April 21, 1973, Bosarge was injured while working on a wooden thirty-foot Chris Craft pleasure boat, which was resting on blocks to allow ready access from the employer's work yard. This particular boat had been blown ashore near the employer's facilities during a storm, and a mobile crane had been driven to retrieve it. The boat weighed approximately two tons.
On the day Bosarge suffered his injury, work had begun as usual at 7:00 o'clock in the morning. Approximately four hours later, while operating an electric screwdriver, Bosarge experienced a severe pain in the center of his chest. Claimant stopped work momentarily in order to rest, but the pain persisted until claimant decided to go home. When the chest pains continued throughout the afternoon, Bosarge contacted a physician, and was taken to a hospital where he remained for over one week with a diagnosis of myocardial infarction (an obstruction of blood circulation in the middle layer of the heart wall).
Bosarge returned to work for Mississippi Coast almost three months later, on July 16, 1973, and resumed his maritime carpentry work for three months before quitting his job. Claimant next worked for Sheppard Building Supply Company for about a month and subsequently worked seven months as a carpenter for contractor Bill Mosely. Each job paid a higher hourly wage than Mississippi Coast. Finally, Bosarge worked for L. P. Gollott for two months until the day of his second injury on January 11, 1975.
On Saturday, January 11 (twenty-two months after his first attack), Bosarge suffered a second heart attack. Claimant was immediately hospitalized and, since that time, has been unable to return to work. Furthermore, since the second injury Bosarge has experienced several other serious heart attacks.
Bosarge filed a claim for compensation seeking relief under the Act. The claimant was submitted to an administrative law judge who held a formal hearing and determined that (1) the claim was within the scope of the Act; (2) the disabling injury was causally related to the employment; (3) the claimant was an "employee" within the meaning of the Act at the time of injury; and (4) Section 8(f) was inapplicable to the case. The Benefits Review Board affirmed. We also affirm.
Before turning to the merits of the case, it is helpful to review briefly the Act. In 1972 Congress amended the Longshoremen's and Harbor Workers' Compensation Act (LHWCA) to extend coverage to a broader range of workers in an effort to remedy inconsistencies inherent in the Act as originally passed. The original 1927 Act was designed to provide worker's compensation to longshoremen and harbor workers injured during the course of employment, but, unfortunately, the 1927 Act created artificial distinctions which plagued admiralty courts for the next forty-five years. In 1969 the Supreme Court invited Congress to amend the Act after the Court was forced to hold that a longshoreman injured on a pier while attaching cargo to a ship's crane was not covered under the Act, even though he would have been covered had he fallen into the water rather than onto the land. 1
The 1972 Amendments raised entirely new questions, however, some of which continue to foster confusion and uncertainty among those engaged in maritime work. Today we hope to lay to rest one of those questions in our holding that the amendatory provisions of the LHWCA are applicable to recreational boat builders and small pleasure craft marinas, even where the work is performed solely upon vessels under eighteen tons net.
The inquiry in determining whether an injury falls within the Act involves "situs" 2 and "status." 3 This circuit stated in Jacksonville Shipyards, Inc. v. Perdue, 539 F.2d 533, 538 (5th Cir. 1976):
(T)he general thrust of the new Act's coverage is clear. Congress has replaced the old "water's edge" analysis with a two-part test which requires (1) that the claimant have been engaged in "maritime employment" (status) and (2) that the injury have taken place upon the situs specified in the Act.
Therefore, in order to prevail in this suit, petitioners must establish either that the claimant's injury occurred at a site outside the statutory boundaries or that claimant was not engaged in "maritime employment." 4
In considering the merits, we acknowledge that the Court of Appeals must sustain the Benefits Review Board's determination if it is supported by substantial evidence. Furthermore, it is appropriate for the court to construe remedial legislation "liberally in conformance with its purpose, and in such a way which avoids harsh and incongruous results." 5 The standard of review we apply is to "review only for errors of law, and to make certain that the Board adhered to its statutory standard of review of factual determinations." 6 Accordingly, we turn to the merits.
Appellant argues that claimant Bosarge was not a "maritime employee", and, therefore, that the Benefits Review Board committed an error of law in holding that claimant satisfied the requirements of 33 U.S.C. § 902(3). Appellant argues that at the time of injury Bosarge was not employed as a repairman of vessels and that there is no coverage under the holding in Jacksonville Shipyards, Inc. v. Perdue, 539 F.2d at 539. We disagree that the facts would support such an argument and thus find it unnecessary to consider the "time of injury argument."
Appellant also argues that, because claimant's general work activities were similar to those performed by land-based carpenters, claimant should not be classified as a "maritime employee." Petitioner reasons that because carpenters are not specifically mentioned in the Act, Bosarge should not be covered under the Act, being essentially a carpenter who performed work upon navigable vessels. But this circuit recently considered and rejected this argument in two cases, Odom Construction Co., Inc. v. United States Department of Labor, 622 F.2d 110 (5th Cir. 1980), and Trotti & Thompson v. Crawford, 631 F.2d 1214 (5th Cir. 1980), and today we echo their logic. 7
Applying the reasoning of Odom and Trotti to the instant case, we conclude that Bosarge was engaged in "maritime employment" within the meaning of 33 U.S.C. § 902(3) while employed to repair vessels at petitioner's boatyard. The fact that his activities were in many respects similar to a carpenter who builds, for example, houses rather than vessels is irrelevant. The proper inquiries are whether Bosarge's activities had a "realistically significant relationship to traditional maritime activity" 8 or whether Bosarge's activities "directly furthered the shipbuilding goals of his employer." 9 It is difficult to conceive of an activity more fundamental to maritime employment than the building and repair of navigable vessels. Accordingly, we affirm the Benefits Review Board's "status" determination.
Petitioner also attacks the Benefits Review Board's determination that Mississippi Coast fell within the Act's jurisdiction on the ground that petitioner was outside the statutory "situs." To support its position, petitioner points to use of the terms "ship repairman, ship builder and ship breaker" in 33 U.S.C. § 902(3) and the situs exemption "in respect of the disability or death of (1) A master or...
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