Perkins v. Marine Terminals Corp.

• Decision Date: 08 April 1982
• Docket Number: Nos. 80-7220,80-7241,s. 80-7220
• Parties: Earl PERKINS, Petitioner, v. MARINE TERMINALS CORPORATION, and Pacific Employers Insurance Co., Respondents. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United States Department of Labor, Petitioner, v. MARINE TERMINALS CORPORATION, and Pacific Employers Insurance Co., Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1097

673 F.2d 1097

Earl PERKINS, Petitioner, v. MARINE TERMINALS CORPORATION, and Pacific Employers

Insurance Co., Respondents.

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United

States Department of Labor, Petitioner, v. MARINE TERMINALS CORPORATION, and Pacific Employers

Insurance Co., Respondents.

Nos. 80-7220, 80-7241.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 12, 1981.

Decided April 8, 1982.

Kathryn E. Ringgold, San Francisco, Cal., Joshua T. Gillelan, Washington, D. C., argued, for petitioner; Airola & Ringgold, San Francisco, Cal., on brief.

Albert H. Sennett, San Francisco, Cal., for respondents.

On Petition for Review of an Order of the Benefits Review Board.

Before SKOPIL and BOOCHEVER, Circuit Judges, and BILBY, ^* District Judge.

BOOCHEVER, Circuit Judge:

The claimant, Earl Perkins, and the Director of the Office of Workers' Compensation Programs ("Director") petition for review of an order of the Benefits Review Board ("Board") that vacated a compensation award by 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. We conclude that the Board erred in characterizing the question of maritime situs as jurisdictional, and in overturning the ALJ's determination that Perkins was injured in the course of his employment. We further conclude that the issue of whether Perkins gave his employer timely notice of his claim is not properly before us because the Board failed to address it. Accordingly, we grant the petition for review, reverse the Board's decision, and remand for further proceedings on the notice issue.

I Background

Perkins was injured in an automobile accident on February 16, 1977, while driving his personal vehicle home after his work for Marine Terminals Corporation ("Marine"). On the day of the accident, Marine, a contract stevedore, was performing work for the Military Ocean Transport Bay Area ("MOTBA") at the Oakland Army Base in Oakland, California. Marine employed Perkins as a longshoreman.

The accident occurred within the Army Base's perimeter fence, but approximately 1,700 feet landward of the controlled access gate to the MOTBA docks where Perkins and the rest of Marine's longshoremen were working that day. Perkins had been dispatched to the MOTBA job site by the International Longshoremen's and Harbor Workers' Union from the central hiring hall in San Francisco.

Perkins was covered by the Pacific Coast Longshore Contract which provided one-half hour travel time at straight pay to longshoremen dispatched from San Francisco to work in Oakland. Marine provided free round-trip bus service between the hiring hall and Oakland Army Base, but its employees were not required to ride the bus. Employees dispatched from San Francisco received the same half-hour travel time regardless of whether they rode Marine's bus or arranged their own transportation.

The ALJ found that because of the travel-time payment Perkins' injury occurred in the course of his employment within the meaning of section 2(2) of the Act, 33 U.S.C. § 902(2), and awarded temporary total disability and permanent partial disability. The ALJ also found that Perkins gave Marine timely notice of his claim as required by section 12(a) of the Act, 33 U.S.C. § 912(a). Marine did not contend that the Act's maritime situs requirement was not met, and the ALJ did not address the question.

On Marine's appeal, the Board, following its decision in Ramos v. Universal Dredging Corp., 10 BRBS 368 (1979) (rev'd, 653 F.2d 1353 (9th Cir. 1981) ), held that whether an injury has a maritime situs goes to subject matter jurisdiction. As such, the Board reasoned that maritime situs issues may be raised at any stage of the proceedings and the Board was therefore obligated to raise it on its own motion. The Board held that subject matter jurisdiction was lacking in this case because the site of the accident was not connected with maritime activity.

As an alternative basis for its decision, the Board held that even if there were jurisdiction, Perkins' injury did not occur in the course of his employment as required for coverage by section 2(2) of the Act. The Board reasoned that the union contract provided compensation only for transportation to work, not from work, and that none of the exceptions to the going-and-coming rule applied. The Board did not decide whether the notice given by Perkins was timely.

II Admiralty Jurisdiction

Consistent with our recent decision in Ramos v. Universal Dredging Corp., 653 F.2d 1353 (9th Cir. 1981), we hold that the question of situs in this case goes only to coverage, not subject matter jurisdiction, and that the Board was therefore without authority to raise and decide it sua sponte. Because Marine neither raised the issue of situs before the ALJ nor appealed the ALJ's determination of coverage to the Board, except with regard to the limited course-of-employment issue, the right to contest coverage on situs grounds was waived.

An injured employee cannot be compensated under the Act, as amended in 1972, without satisfying certain maritime situs and status requirements. See P. C. Pfeiffer Co. v. Ford, 444 U.S. 69, 78, 100 S.Ct. 328, 335, 62 L.Ed.2d 225 (1979). To satisfy the situs requirement, the injury 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). To meet the status requirement, the employee must be "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).

In Ramos, the Board reversed its prior decision in Sablowski v. General Dynamics Corp., 5 BRBS 383 (1977), and held that questions of situs and status go to subject matter jurisdiction. The Board reasoned that the Act's coverage requirements not only limit recoveries under the statute, but also define the extent of admiralty jurisdiction under Article III. Ramos, 10 BRBS at 371-72.

This court rejected the Board's reasoning, holding that "an injury may have a sufficient connection with traditional maritime activity (an offshore oil spill) to be well within the reach of admiralty jurisdiction, but not (be) (sic) an injury covered by §§ 903(a) and 902(3). In that posture, the issue is purely one of coverage." Ramos, 653 F.2d at 1359. Lack of coverage is not synonymous with lack of jurisdiction. In some cases, however, the connection with maritime activity may be so remote that "a subject matter jurisdictional issue would be presented even though the parties might desire to contest only whether a disability existed (such as where a stevedore's bookkeeper is injured twenty miles from navigable water). In such situations, the Board would have power to inquire into its jurisdiction to proceed." Id.

The touchstone in determining whether admiralty jurisdiction exists is whether the case "involves a significant relationship to traditional maritime activity." Id. at 1358, discussing Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972). Although, as in Ramos, "this case may lie in that murky area where maritime activity blends into the nonmaritime, there is no question in our minds but that the Board had jurisdiction...." Id.

It is undisputed that Perkins was engaged in maritime employment for purposes of the status test set forth in 33 U.S.C. § 902(3). ¹ We believe that this factor alone constitutes a sufficient nexus to traditional maritime activity to create admiralty jurisdiction in this case. "It is the existence of the special employer-employee relationship, and not the situs of that relationship, that is significant for purposes of admiralty jurisdiction." Sea-Land Service, Inc. v. Director, Office of Workers' Compensation Programs, 540 F.2d 629, 636 (3d Cir. 1976). See also Brady-Hamilton Stevedore Co. v. Herron, 568 F.2d 137, 141 (9th Cir. 1978).

The pertinent focus in determining the limits of admiralty jurisdiction centers on the employee's functional, rather than spatial, nexus to traditional maritime activities. Although there may be situations where injuries to maritime employees occur so far from navigable water that situs considerations alone would pose jurisdictional questions (but see Sea-Land, 540 F.2d at 638), this is not such a case. Perkins' situation is clearly distinguishable from the hypothetical case posed in Ramos, 653 F.2d at 1359, about the bookkeeper injured twenty miles from navigable water. The fact that one of the Board members argued in dissent that the site where Perkins was injured was an "adjoining area" under 33 U.S.C. § 903(a) indicates, if nothing else, the relative closeness of the situs issue in this case. As the Board noted in Lasky v. Todd Shipyards Corp., 8 BRBS 263, 265 (1978):

(T)he fact that an injury occur(s) outside the physical boundaries of the shipyard should not in and of itself be considered dispositive of the issue whether claimant was covered at the time of his injury. It would appear that in certain instances (the) situs requirement should be read to include persons injured on their way to work, for example a situation where an employee was hired from a central hiring hall.

Accord, Stockman v. John T. Clark & Son of Boston, Inc., 539 F.2d 264 (1st Cir. 1976), cert. denied, 433 U.S. 908, 97 S.Ct. 2972, 53 L.Ed.2d 1092 (1977); Brown v. Reynolds Shipyard, 9 BRBS 614 (1979); Nalej v. H. W. Ramberg Inc., 8 BRBS 640 (1978). There is no requirement in the Act that a facility or area be used exclusively, or even primarily, for maritime purposes for it to be a covered...