Newport News Shipbuilding & Dry Dock Co. v. Graham

• Decision Date: 13 March 1978
• Docket Number: 77-1100,Nos. 76-2297,s. 76-2297
• Citation: 1979 A.M.C. 99,573 F.2d 167
• Parties: NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY, Petitioner, v. Willie A. GRAHAM, Respondent. and Director, Office of Workers' Compensation Programs, United States Department of Labor, Intervenor. NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, and George E. Jones, Respondents.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 167

573 F.2d 167

NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY, Petitioner, v. Willie A. GRAHAM, Respondent. and Director, Office of Workers' Compensation Programs, United

States Department of Labor, Intervenor.

NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED

STATES DEPARTMENT OF LABOR, and George E. Jones,

Respondents.

Nos. 76-2297, 77-1100.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 10, 1978.

Decided March 13, 1978.

Robert H. Joyce (Luther G. Jones, III, Seyfarth, Shaw, Fairweather & Geraldson, Washington, D. C., William McL. Ferguson, Shannon T. Mason, Jr., Ferguson & Mason, Newport News, Va., on brief), for petitioner.

Linda L. Carroll, Atty., U. S. Dept. of Labor, Washington, D. C. (Carin Ann Clauss, Sol. of Labor, Laurie M. Streeter, Associate Sol. and Francine K. Weiss, Atty., U. S. Dept. of Labor, Washington, D. C., on brief), for respondent Director, Office of Workers' Compensation Programs.

Stuart R. Gordon, Howell, Anninos, Daugherty & Brown, Norfolk, Va., on brief, for respondent Willie A. Graham in 76-2297.

H. Duncan Garnett, Jr., Jones, Blechman, Woltz & Kelly, Newport News, Va., on brief, for respondent George E. Jones in 77-1100.

Before HAYNSWORTH, Chief Judge, and BUTZNER and HALL, Circuit Judges.

BUTZNER, Circuit Judge:

Willie A. Graham and George E. Jones were injured in separate accidents while working for the Newport News Shipbuilding and Dry Dock Co. Both employees claimed compensation for their injuries under the Longshoremen's and Harbor Workers' Compensation Act as amended in 1972, 33 U.S.C. §§ 901, et seq. In these consolidated cases, Newport News Shipbuilding seeks to set aside the orders of the Benefits Review Board awarding compensation to both claimants. We deny the petitions and affirm the Board.

Under the 1972 amendments to the Act, eligibility for benefits depends on the situs of the worker's injury and his status. To be compensable, injuries to covered employees must occur,

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, or building a vessel). 33 U.S.C. § 903(a).

Eligible employees are those,

engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker . . . 33 U.S.C. § 902(3).

The claimant must satisfy both of these statutory requirements. Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 265, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977).

I

Graham worked as a "chipper" in a submarine shop which was located 1200 feet from the water. The shop primarily fabricated component parts for nuclear reactors. As a chipper, Graham's duties generally consisted of using a chipping hammer to clean castings and welds. He suffered a lower back strain while removing a temporary alignment piece from a sonar shield. Although the submarine shop does some work for land-based reactors, the sonar shield Graham worked on was installed in the reactor room of a submarine being constructed in a shipway approximately 1900 feet from the shop. Graham's duties did not include actually installing parts on ships.

Jones had worked in the shipyard for longer than 25 years. He was rated as a mechanic and belonged to the maintenance department. Jones dislocated his shoulder when he bumped against a sandmill machine while greasing it. Although he had been assigned to oil machinery in the foundry for the last four or five years, members of the department work throughout the shipyard. In the past, Jones has worked on the waterfront and aboard ship. During the month of Jones's injury, about 15 per cent of the foundry's work was for the shipyard's own ship repair and construction projects, and about 12 per cent involved ship related work for a wholly owned subsidiary, Newport News Industrial Corp. The remaining 73 per cent involved production of non-maritime items for Newport News Industrial Corp.

II

Both claims meet the Act's situs test. The submarine shop and the foundry are integral parts of the shipyard even though they are located 1200 feet and 3000 feet respectively from the water's edge. Other cases have held that injuries sustained in a carpentry shop located 300 feet from water and in a structural steel shop located 2000 feet from water were covered under the Act. Halter Marine Fabricators, Inc. v. Nulty, reported sub nom., Jacksonville Shipyards, Inc. v. Perdue, 539 F.2d 533, 543 (5th Cir. 1976); Dravo Corp. v. Maxin, 545 F.2d 374, 381 (3d Cir. 1976). The steel shop in Maxin, like the foundry and submarine shop in this case, was not devoted exclusively to ship related work. Relying on these precedents, we hold that the submarine shop and the foundry are included in the statutory concept of "navigable waters of the United States" because they are located in an area adjoining such waters "customarily used by an employer in . . . repairing, or building a vessel." 33 U.S.C. § 903(a).

III

Both claims also meet the Act's status test. At the time of his injury, Graham was clipping a sonar shield that was later installed in a submarine. After careful analysis of the Act, other courts have ruled that an employee who works in a fabrication shop on component parts of ships is a shipbuilder. See, e. g., Ingalls Shipbuilding Corp. v. Morgan, 551 F.2d 61, 62 (5th Cir. 1977) (employee killed while cleaning a steel plate that would later be used for construction or repair of ships); Jacksonville Shipyards, Inc. v. Perdue, 539 F.2d 533, 543-44 (5th Cir. 1976) (carpenter injured while building a piece of woodwork for installation on a new ship); Dravo Corp. v. Maxin, 545 F.2d 374, 376 (3d Cir. 1976) (employee injured while burning steel plates which would ultimately become bottoms and decks of barges). Since Graham was engaged in an integral part of the submarine's construction, he meets the status test.

At the time of Jones's injury, he was oiling a machine used in building ships. Precedent supports the conclusion that he, too, was a maritime employee as defined in 33 U.S.C. § 902(3). In Bradshaw v. McCarthy, 3 BRBS 195 (1976), petition for review denied, 547 F.2d 1161 (3d Cir. 1977), a mechanic injured his back in a marine terminal while removing a tire from a forklift that was used in longshoring operations. The Board said:

Merely because a waterfront mechanic is not directly involved in the actual loading or unloading of cargo does not remove him from the coverage of the amended Act. The maintenance and repair of longshoring machinery and equipment is essential to the movement of maritime cargo and, thus, such an employee's duties are included in the broad concept of maritime employment. 3 BRBS at 198.

The Fifth Circuit suggests that an employee meets the status test if he is "directly involved" in the work of building a ship even though he does not actually perform that work himself. Jacksonville Shipyards, Inc. v. Perdue, 539 F.2d 533, 539-40 (5th Cir. 1976). Applying this principle in Alabama Dry Dock and Shipbuilding Co. v. Kininess, 554 F.2d 176, 178 (5th Cir. 1977), the court held that an employee injured while sandblasting a disassembled crane was entitled to compensation under the Act because "(m)aintenance of the crane was necessary to enable it to perform its eventual function of hauling fabricated ship sections to the water's edge."

Jones's job is significantly different from those involved in two recent decisions denying benefits. In Dravo Corp. v. Banks, 567 F.2d 593 (3d Cir. 1977), the court held that an unskilled...