Texports Stevedore Co. v. Winchester

• Decision Date: 10 December 1980
• Docket Number: No. 76-4100,76-4100
• Citation: 632 F.2d 504
• Parties: TEXPORTS STEVEDORE COMPANY and Texas Employers' Insurance Association, Petitioners, v. Murl J. WINCHESTER and Director, Office of Workers' Compensation Programs, U.S. Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 504

632 F.2d 504

TEXPORTS STEVEDORE COMPANY and Texas Employers' Insurance Association, Petitioners, v. Murl J. WINCHESTER and Director, Office of Workers' Compensation Programs, U.S. Department of Labor Respondents.

No. 76-4100.

United States Court of Appeals Fifth Circuit.

Dec. 10, 1980.

E. D. Vickery, W. Robins Brice, Houston, Tex., for petitioners.

Ronald E. Meisburg, Joshua T. Gillelan, II, Attys., Dept. of Labor, Washington, D. C., for respondents.

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

Before COLEMAN, Chief Judge, AINSWORTH, GODBOLD, CHARLES CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN, VANCE, KRAVITCH, FRANK M. JOHNSON, Jr., GARZA, HENDERSON, REAVLEY, POLITZ, HATCHETT, ANDERSON, RANDALL, TATE, SAM D. JOHNSON and THOMAS A. CLARK, Circuit Judges. ^*

FAY, Circuit Judge:

We granted the petition for rehearing, 5th Cir., 569 F.2d 428, to reconsider the definition of an "adjoining area" or maritime situs under 33 U.S.C. § 903(a) (1976) of the 1972 amendments to the Longshoremen's and Harbor Workers' Compensation Act. The prior decisions, 5th Cir., 554 F.2d 245; 5th Cir., 561 F.2d 1213, finding that the claimant was injured at a maritime situs are affirmed.

I. FACTS AND PROCEEDINGS

Respondent Murl J. Winchester was a Longshoreman employed as a "gear man" by petitioner Texports Stevedore Company. Texports maintained three "gear rooms," or facilities for the storage and maintenance of gear, ¹ in the vicinity of the Houston Shipping Channel Docks. ² All three gear rooms were supervised by the same shop foreman. Two of the gear rooms were on the docks. Because those gear areas could not be expanded, and because the docks had insufficient space for an additional gear room, Texports' third gear room is on Avenue N, five blocks from the gate of the nearest dock. This third gear room is as close as Texports could get to the docks. Port Authority property extends to within about a half block from the gear room. Other Houston stevedores also must locate gear rooms outside the docks' gates. ³

Winchester would report to the Avenue N gear room where he was given his daily work assignment. His duties as a gear man included supplying and repairing the tools and machinery used by stevedores in loading and unloading ships. His work was performed at the dockside, on board ships, and at each of the gear rooms, including those of other stevedores. When Texports was loading and unloading cargo, Winchester would service several ships, travelling over the public streets connecting the gear rooms and docks. Even when Texports had no ships to load or unload, the gear rooms operated repairing and maintaining gear for the next loading and unloading operation.

On June 3, 1974, while in the course of his employment for Texports, Winchester tripped and fell against a forklift at the Avenue N gear room, striking his face. Winchester filed a claim for compensation for serious facial disfigurement under the Longshoremen's and Harbor Workers' Compensation Act (LHWA). The Administrative Law Judge (ALJ) denied his disfigurement claim, but held Texports liable for Winchester's medical expenses and attorney's fees. Decision and Order of ALJ, App. at 9-21.

On appeal by petitioners, the Benefits Review Board (the Board) affirmed the Administrative Law Judge's decision. The LHWA's two-pronged test for coverage requires the injured claimant to have been an "employee" engaged in maritime employment ⁴ at a situs specified in the Act. ⁵ The Board held that Winchester was an "employee" injured in an area under the LHWA. Decision of the Benefits Review Board, App. at 1-6, reprinted in Winchester v. Texports Stevedore Co., 4 B.R.B.S. 447, 449-51 (1976). As to the situs, the Board stated:

(A)n adjoining area must be deemed bounded only by its use as a maritime enterprise. Maxin v. Dravo Corp., 2 B.R.B.S. 372 ((1975), aff'd, 545 F.2d 374 (3d Cir. 1976)). The Avenue N gear room although five blocks from any wharf was placed in a location that would provide easy access for the gear men to service vessels on both sides of the channel. It clearly played an integral part in employer's overall maritime enterprise thereby qualifying as an adjoining area under the Act.

Further, the 1972 amendments to the Act were enacted in part to eliminate the circumstance of having persons engaged in maritime employment walk in and out of coverage during the workday. Stockman v. John T. Clark & Son of Boston, Inc., (539 F.2d 264, 274 (1st Cir. 1976)); Dellaventura v. Pittston Stevedoring Corp. (Pittson Stevedoring Corp. v. Dellaventura ), (544 F.2d 35, 54 (2d Cir. 1976)). A narrow reading of the situs requirement in the instant case would be contrary to this purpose of the Act.

Id. at 4-5; B.R.B.S. at 450-51.

A panel of this court affirmed the Board. Texports Stevedore Co. Winchester, 554 F.2d 245, as modified, 561 F.2d 1213 (1977). After noting the policy of liberal construction, the presumption of coverage, and the scope of review of Board decisions, the panel held that the Board properly determined that Winchester was an "employee." Id. at 247. ⁶ Turning to the gear room, the panel held that it was a maritime situs:

Respondent's accident did not occur on the dock or pier adjoining the Houston Shipping Channel but at a gear room which, though five blocks away, adjoined the docks and associated buildings. See Alabama Dry Dock and Ship Building Co. v. Kininess, 554 F.2d 176, 178 (5th Cir. 1977).

561 F.2d at 1213. ⁷

On petition for rehearing en banc, petitioners argue that the panel's assertion that the gear room "adjoined the docks and associated buildings" is factually inaccurate. Furthermore, they argue that the panel ignored the statute's requirement that the situs adjoin "navigable waters," not just a facility that in turn is next to water. Petitioners also assert that the panel opinion is inconsistent with two prior opinions of this court, Alabama Dry Dock & Shipbuilding Co. v. Kininess, 554 F.2d 176 (5th Cir.), cert. denied, 434 U.S. 903, 98 S.Ct. 299, 54 L.Ed.2d 190 (1977) and Jacksonville Shipyards, Inc. v. Perdue, 539 F.2d 533 (5th Cir. 1976).

The case was reargued before the en banc panel in June, 1980. In its supplemental brief, petitioners assert that the Alabama Dry Dock test provides certainty of coverage while meeting the congressional objective of expanding coverage. Petitioners also claim that the legislative history supports restricting situs to facilities strictly "contiguous" to "navigable waters."

Although we recognize the merit of some of petitioners' positions, we decline their invitation to constrict the broadened coverage of the LHWA by corseting the areas eligible as maritime situses.

II. THE 1972 AMENDMENTS TO THE LHWA

In 1917, the Supreme Court held that maritime employees injured seaward of the water's edge could not be covered by state workers' compensation schemes. Southern Pacific Co. v. Jensen, 244 U.S. 205, 214-18, 37 S.Ct. 524, 528-529, 61 L.Ed. 1086 (1917). Although later cases softened the Jensen line, this ruling left many longshoremen injured over water without a compensation remedy. See Sun Ship, Inc. v. Pennsylvania, --- U.S. ----, 100 S.Ct. 2432, 65 L.Ed.2d 458 (1980). To fill the gap left by Jensen, Congress enacted the 1927 LHWA to cover injuries occurring "upon the navigable waters." Although Congress constitutionally had the power to compensate maritime injuries occurring on land, the Court limited the LHWA's scope by interpreting the waterline to be its point of cleavage. Nacirema Operating Co., Inc. v. Johnson, 396 U.S. 212, 90 S.Ct. 347, 24 L.Ed.2d 371 (1969). In general, longshoremen's injuries on land were covered by state law and those over water were covered by federal law.

Congress later attempted a general overhaul of the LHWA which resulted in the 1972 amendments to the statute. One major change was an increase in federal benefits. This increase, however, created quite a disparity between the federal benefits and many states' compensation benefits. H.Rep.No.92-1441, 92d Cong., 2d Sess. 10-11 (1972) and S.Rep.No.92-1125, 92d Cong., 2d Sess. 12-13 (1972), reprinted in (1972) U.S. Code Cong. & Ad. News pp., 4698, 4707-08 (hereinafter H.Rep.). ⁸ Besides this general disparity, many states supplied what Congress considered to be totally inadequate benefits. H.Rep. at 10. As the LHWA stood, the amount of benefits received depended upon "the fortuitous circumstance of whether the injury occurred on land or over water." Id. Technology had heightened this factor of chance by enabling much of the work traditionally handled over water to be moved on shore. Id. Many longshoremen moved continually from shore to sea, in and out of state and federal coverage, during the day.

To effectuate a uniform compensation system for those who would be covered by the LHWA for part of their activity, Congress moved the jurisdictional line landward to cover

an injury occurring upon the navigable waters of the United States (including any adjoining pier, 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) (1976); H.Rep. at 11. Congress did not, however, intend to cover all people who happened into a maritime area. H.Rep. at 11. Congress therefore added a status requirement so that the LHWA would cover only persons "engaged in maritime employment." 33 U.S.C. § 902(3) (1976). The 1927 LHWA contained only a water's-edge situs test for jurisdiction. The 1972 amendments created a two-prong test covering a broader area but requiring a connection to maritime employment.

III. CAPUTO AND PFEIFFER

The Supreme Court has addressed the LHWA's expanded coverage twice since the 1972 amendments, but neither opinion tangles with the thornier problems of the new situs test. The cases do impart, however, the proper approach to resolving the problems: "The language of the 1972 Amendm...