Smart v. Marathon Seafood

• Decision Date: 30 December 1983
• Docket Number: No. AN-358,AN-358
• Citation: 444 So.2d 48
• Parties: Chris SMART, Appellant, v. MARATHON SEAFOOD and American Casualty Company, Appellees.
• Court: Florida District Court of Appeals

Page 48

444 So.2d 48

Chris SMART, Appellant, v. MARATHON SEAFOOD and American Casualty Company, Appellees.

No. AN-358.

District Court of Appeal of Florida,

First District.

Dec. 30, 1983.

David R. Howland, of Ress, Gomez, Rosenberg & Howland, North Miami, for appellant.

Donna S. Catoe, of Peters, Pickle, Flynn, Niemoeller & Downs, Miami, for appellees.

ZEHMER, Judge.

The claimant, Chris Smart, appeals an order denying his claim for worker's compensation benefits on the ground that his exclusive remedy is under the federal Longshoremen's and Harbor Workers' Compensation Act. We reverse.

On June 20, 1978, three weeks after being employed by Marathon Seafood to work as a helper in Marathon's shrimp processing and packing house, claimant was engaged in packing shrimp when he experienced sharp pains described as being like electric shocks running down both legs. He sought medical attention for this injury and filed a worker's compensation claim under chapter 440, Florida Statutes. Marathon had worker's compensation coverage with American Casualty Company as part of its employer's liability insurance policy, in which Marathon's business classification for premium purposes was listed as "wholesale fish dealer."

The carrier denied the claim on the ground, among others, that the deputy commissioner lacked jurisdiction under section 440.09(2), Florida Statutes (1977) ¹ because the claimant's injury was covered by the federal Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C., §§ 901, et seq. Both the employer, Marathon, and the claimant contended the deputy had jurisdiction under chapter 440 because claimant was essentially engaged in a manufacturing or processing business that took place on land and that he was not a "maritime employee" covered by the federal act. After hearing substantial evidence on this jurisdictional issue, the deputy commissioner held that the claimant's injury was covered by the federal act and dismissed the claim.

At the time of claimant's injury, Marathon Seafood was in the business of purchasing and processing shrimp, lobster, and other kinds of seafood at its processing facility and selling the processed seafood at wholesale. Marathon owned and maintained a dock adjacent to its plant and purchased shrimp directly from independently owned and operated boats (eighteen tons and over) at its dock. The shrimp boats were unloaded by an employee of Marathon (other than claimant) by use of a winch which would lower a bucket to the hold of the boat, where it would be filled by the boat crew. The bucket would then be hoisted and the shrimp transferred directly to a holding tank attached to the processing building. Once deposited in the bank, Marathon became owner of the shrimp, which it would then process and sell at wholesale.

The processing would begin when the shrimp were placed in the holding tank containing a washing solution and preservative. Upon transfer from that tank, the heads would be removed by a crew of workmen (not the claimant) and the shrimp would be placed in a second tank to again be washed and treated with a preservative. The shrimp would next be placed in a grading machine which separated them according to size. The sorted shrimp would then be weighed and packed with ice in large boxes. The boxes would be removed to a refrigerated cooling room and stored until resold to Marathon's customers and loaded on trucks for delivery. Two or three times a week, Marathon's customers typically would take delivery at Marathon's plant, using their own trucks or trucks operated by another shrimp wholesaler.

Claimant's employment primarily involved processing the shrimp after grading by weighing the sorted shrimp, packing them in ice, and moving the boxes to the cooler. Claimant was required to lift plastic bags of sorted shrimp weighing forty to seventy pounds approximately thirty inches onto a scale, add enough shrimp to total 105 pounds, pack these shrimp in ice, and move the boxes by dragging or lifting them to the cooler. Claimant also assisted in loading the customers' trucks on occasion. Other miscellaneous jobs occasionally performed by claimant when he was not packing shrimp included lubricating machinery in the plant and the winch at the dock, pulling weeds, mowing, painting, and cleanup. Claimant, however, was not hired for, and in fact never engaged in, the unloading of shrimp from the shrimp boats to the holding tank.

The deputy commissioner personally observed the premises and described them in her order:

As evidenced by the photographs in evidence, the entire premises are moderately sized. From the dock where the boats are unloaded to the inside of the processing house itself where the heading, grading, weighing and packing is done, there is a distance of at most 20 to 25 feet approximately. Thus, the entire shrimp processing operation from unloading to ice storing, to finally re-loading on the trucks, takes place in a fairly self-contained and moderately sized area. Once the shrimp are unloaded directly from the boats, the balance of the MARATHON SEAFOOD operation (including the heading, grading, weighing, packing, and finally storing in ice) takes place inside the processing house where the machines are located approximately 25 feet off the dock.

The deputy commissioner concluded from these facts that claimant met both prongs of the situs and status test for determining coverage under the longshoremen's act, as delineated by the Supreme Court in P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 73-74, 100 S.Ct. 328, 332, 62 L.Ed.2d 225 (1979):

The ... situs test provides compensation for an "employee" whose disability or death "results from an injury occurring 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)." § 3(a), 33 U.S.C. § 903(a). The status test defines an employee as "any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker...." § 2(3), 33 U.S.C. § 902(3). To be eligible for compensation, a person must be an employee as defined by § 2(3) who sustains injury on the situs defined by § 3(a).

We agree with the deputy commissioner that the situs prong of the test is met in this case. The processing and storage facility and dock were joined as an integral facility. Both were adjacent to navigable waters. The dock handled the unloading of shrimp boats weighing over eighteen tons. Claimant's alleged injury occurred on a "contiguous dock area related to longshore ... work." P.C. Pfeiffer Co., supra, 444 U.S. at p. 79, n. 9, 100 S.Ct. at p. 335, n. 9.

We disagree, however, with the deputy commissioner's conclusion that claimant also met the status prong of the coverage test. Under the statutory definition of employee in 33 U.S.C. § 902(3), only persons employed to perform longshoring operations or harbor work relating to shipbuilding or repair fall within the act's coverage. As this case involves no question of harbor work, coverage exists only if it can be found that the claimant's usual work activity was an integral part of some longshore activity, i.e., the unloading of shrimp boats.

In P.C. Pfeiffer Co. v. Ford, supra, appellee Ford was injured while working on a public dock in the Port of Beaumont, Texas, securing vehicles on railroad flat cars after removal from the ship for further shipment to their ultimate destination. Appellee Bryant was injured while unloading a bale of cotton from a dray wagon into a pier warehouse to await further movement from the warehouse to the ship. Regarding the purpose of the 1972 amendment to the longshoremen's act expanding coverage to certain land-based injuries, the Supreme Court observed:

The discussion of coverage in the legislative history also shows that Congress intended the term 'maritime employment' to refer to status rather than situs. Committees in both Houses of Congress recognized:

'[T]o take a typical example, cargo, whether in break bulk or containerized form, is typically unloaded from the ship and immediately transported to a storage or holding area on the pier, wharf, or terminal adjoining navigable waters. The employees who perform this work would be covered under the bill for injuries sustained by them over the navigable waters or on the adjoining land area. The Committee does not intend to cover employees who are not engaged in loading, unloading,...