Price v. Norfolk & W. Ry. Co., 78-1619

• Decision Date: 09 April 1980
• Docket Number: No. 78-1619,78-1619
• Parties: John B. PRICE, Jr., Appellee, v. NORFOLK AND WESTERN RAILWAY COMPANY, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1059

618 F.2d 1059

John B. PRICE, Jr., Appellee, v. NORFOLK AND WESTERN RAILWAY COMPANY, Appellant.

No. 78-1619.

United States Court of Appeals, Fourth Circuit.

Argued April 2, 1979.

Decided April 9, 1980.

Edward L. Oast, Jr., and William T. Prince, Norfolk, Va. (Williams, Worrell, Kelly & Greer, Norfolk, Va., on brief), for appellant.

William F. Burnside, Virginia Beach, Va., for appellee.

Before BREITENSTEIN ^*, RUSSELL and WIDENER, Circuit Judges.

WIDENER, Circuit Judge:

The plaintiff, John Price, was injured in the course of his employment with the defendant, Norfolk and Western Railway Company (N&W), and brought an action under the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51-60, against N&W to recover damages for his injury. The defendant moved to dismiss the case for lack of jurisdiction, arguing that the plaintiff was a longshoreman as defined in the Federal Longshoremen's and Harbor Workers' Compensation Act (LHWCA or the Act), 33 U.S.C. § 901 et seq., and therefore his exclusive remedy was for compensation under that act. The district court found that Price was not a longshoreman and thus refused to dismiss the case. The case was then tried to the district court who found for the plaintiff and awarded damages of $4,000.00 less a credit of $1,216.72 for previously received benefits under the LHWCA. ¹ Defendant appeals.

On appeal the parties agree, as they must, that if Price was a longshoreman his exclusive remedy was under the LHWCA and the district court was without jurisdiction over his FELA claim. 33 U.S.C. § 905; Pennsylvania Railroad Co. v. O'Rourke, 344 U.S. 334, 73 S.Ct. 302, 97 L.Ed. 367 (1952); Nogueira v. New York, New Haven & Hartford Railroad Co., 281 U.S. 128, 50 S.Ct. 303, 74 L.Ed. 754 (1930). Thus, the sole issue before us is whether Price was an "employee" within the coverage of the LHWCA. ² 33 U.S.C. § 902(3) states:

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 shipbreaker, but such term does not include a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net.

In determining whether Price was an employee within the meaning of § 902(3), it is necessary to examine the operations at the port facility where Price was injured and the nature of Price's work. The defendant, N&W, owns and partially maintains a grain elevator complex at Sewells Point in Norfolk, Virginia. The grain elevators are operated by Continental Grain Company, and are used for the receiving and shipping of grain. The incoming grain handled at the facility is received there by rail, truck, ship, or barge, and the outgoing grain is loaded into vessels in the deepwater berths alongside the elevator.

The grain is loaded onto the ships by a conveyor belt system housed in a structure called a gallery. The belt system transports the grain from weighing scales and pours it through chutes directly into the hold of the vessel. In the unloading process, the grain is removed from the vessel by a marine leg elevator system, transferred to the gallery belt system, and transported by these belts to the scales for weighing. Thus, in both loading and unloading the grain is moved by the gallery belt system between the scales and the vessel.

The gallery belt system is used only for conveying the grain (loading and unloading ships and barges) and is not used for its storage. The storage facilities are further inland.

The plaintiff, Price, was injured while painting the support towers for the gallery, a part of its routine maintenance which is the responsibility of N&W. The support tower is not a part of the mechanism that actually operates the belt system housed within the support tower. The gallery, and its maintenance, are essential to the loading and unloading of all vessels at the Sewells Point port facility.

The plaintiff was classified as a painter by N&W, and at the time of the accident was assigned to Paint Force # 1, the only N&W paint gang working at the Norfolk Terminal. Except for the painting of railroad cars, which was done by the shop crew, the Paint Force performed all the painting at the Norfolk Terminal. The painting included work on the warehouses, docks, drawbridges, and coal piers.

We feel that our decision in Newport News Shipbuilding & Dry Dock Co. v. Graham, 573 F.2d 167 (4th Cir.), cert. denied, 439 U.S. 979, 99 S.Ct. 563, 58 L.Ed.2d 649 (1978), is controlling in this case and requires that we reverse the district court's holding that Price was not an employee within the meaning of the Act and therefore was entitled to recover under the FELA. In Graham, a claimant Jones was seeking compensation under the LHWCA for injuries sustained when he bumped against a machine which he was oiling. The machine was used in building ships. He was rated as a mechanic and belonged to the maintenance department of the employer. ³ In holding that Jones was entitled to compensation under the LHWCA, we stated: "Because Jones's maintenance was essential to keeping the shipyard's machinery in working order for the construction of ships, we conclude that he was a shipbuilder within the meaning of the Act." Id. at 170.

In so holding, we cited with approval a Benefits Review Board decision that is directly on point. 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 terminal while removing a tire from a forklift he was repairing. The forklift was used to unload ships and to load freight cars, tractors, and trailers. In holding that the claimant was an employee as defined in the Act, the Board stated:

Merely because a waterfront mechanic is not directly...