Trotti & Thompson v. Crawford

• Decision Date: 04 December 1980
• Docket Number: No. 79-1793,79-1793
• Citation: 631 F.2d 1214
• Parties: TROTTI & THOMPSON and Insurance Company of North America, Petitioners, v. Lowell P. CRAWFORD and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1214

631 F.2d 1214

TROTTI & THOMPSON and Insurance Company of North America, Petitioners, v. Lowell P. CRAWFORD and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.

No. 79-1793

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Dec. 4, 1980.

Mehaffy, Weber, Keith & Gonsoulin, Daniel V. Flatten, Beaumont, Tex., for petitioners.

Walter Umphrey, Port Arthur, Tex., for Lowell P. Crawford.

Gilbert T. Renaut, U.S. Dept. of Labor, Washington, D.C., for Dept. of Labor.

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

Before BROWN, KRAVITCH and FRANK M. JOHNSON, Jr., Circuit Judges.

JOHN R. BROWN, Circuit Judge:

This is one of a spring tide of appeals resulting from the 1972 amendments to the Longshoremen's and Harbor Workers' Compensation Act (LHWCA or Act), 33 U.S.C.A. §§ 901 et seq. The employer, Trotti & Thompson, Inc., and its workmen's compensation insurance carrier, Insurance Company of North America, appeal from a decision by the Benefits Review Board (BRB) awarding benefits to Lowell P. Crawford, a carpenter injured while building a pier at the Port of Beaumont, Texas. We affirm.

I. What Happened?

Crawford was a carpenter for Trotti & Thompson from 1958 to 1973. During that time he worked intermittently on the construction of highways, bridges, refineries, and a number of piers. For approximately six months prior to his injury, Crawford was involved in the construction of a large pier within the Port of Beaumont, extending into the Neches River, a major navigational waterway. The new pier was to become a part of the Port and to be used in the loading and unloading of vessels.

The pier-construction process is well-known. ¹ As the record in this case shows, in the early stages the vast majority of the work takes place on floating barges. First, numerous pilings are driven into the bottom of the waterway. Support hangers are attached to the tops of the pilings. Progressing outward from the shore, the pilings are initially connected with narrow steel beams. ² Wooden forms-built by carpenters on the floating barges-are then hoisted onto these strut beams and filled with concrete. Crawford, as most carpenters, was primarily involved in building the forms, although he also assisted in the hoisting and concrete-pouring operations. Not infrequently, in hoisting and in moving the barges from place to place, Crawford donned a life jacket and worked in the water itself. In all, about 90% of his time was spent working on the barges; the rest was either on the pier structure or actually floating in water itself.

Crawford's injury occurred as he was standing out over the water on one of the steel beams of the pier structure. He was directing a crane operator in the movement of a steel beam when the beam slipped out of the chain holding it. The beam struck Crawford, knocking him onto a concreted portion of the uncompleted pier and severely injuring his right arm.

The issues before us relate solely to whether Crawford was within the jurisdictional confines of the LHWCA at the time of injury. First, Crawford must have been working on a covered maritime situs ³ within § 903(a). Secondly, he must have had the status ⁴ of a covered employee under § 902(3). ⁵ Our resolution of these issues is aided by the decision of the Fourth Circuit in a factually similar case, Brown & Root, Inc. v. Joyner, 607 F.2d 1087 (1979), cert. denied, --- U.S. ----, 100 S.Ct. 2960, 64 L.Ed.2d 837 (1980), by a recent decision of the Supreme Court, P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 100 S.Ct. 328, 62 L.Ed.2d 225, 1979 A.M.C. 2319 (1979), and by extensive discussions in decisions of our Court. See Jacksonville Shipyards, Inc. v. Perdue, 539 F.2d 533, 1976 A.M.C. 1934 (5th Cir. 1976), vacated and remanded in part, 432 U.S. 904, 97 S.Ct. 2967, 53 L.Ed.2d 1088, aff'd on remand, 575 F.2d 79, 1978 A.M.C 2672 (1978), aff'd in part sub nom., P.C. Pfeiffer Co. v. Ford, supra; Ingalls Shipbuilding Corp. v. Morgan, 551 F.2d 61, 1977 A.M.C. 987 (5th Cir. 1977); Alabama Dry Dock & Shipbuilding Co. v. Kininess, 554 F.2d 176, 1977 A.M.C. 1650 (5th Cir.), cert. denied, 434 U.S. 903, 98 S.Ct. 299, 54 L.Ed.2d 190, 1978 A.M.C. 1894 (1977); Odom Construction Co. v. United States Department of Labor, 622 F.2d 110 (5th Cir. 1980).

II. Situs

The pre-1972 LHWCA did not require that an injured employee have a maritime status. Instead, the primary requirement was that the injury have occurred "upon the navigable waters of the United States (including any dry dock)...." LHWCA of 1927, ch. 509, § 3(a), 44 Stat. 1426. This situs requirement was interpreted to incorporate the boundary line laid down in Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917). The Jensen line ran along the water's edge, but also extended out along the edge of structures such as piers, which were over navigable waters but permanently attached to the land. Thus Nacirema Operating Co. v. Johnson, 396 U.S. 212, 90 S.Ct. 347, 24 L.Ed.2d 371, 1969 A.M.C. 1967 (1969), held that an injury occurring on a pier attached to the land-hence on the landward side of the Jensen line-was not covered by the pre-1972 Act. However, an employee knocked off the pier and injured when he hit the water was covered, since the injury was consumated on the seaward side of the Jensen line. See id. at 225, 90 S.Ct. at 355, 24 L.Ed.2d at 381, 1969 A.M.C. at 1976 (Douglass, J., dissenting) (discussing Marine Stevedoring Corp. v. Oosting, 238 F.Supp. 78 (E.D.Va.1965), aff'd, 398 F.2d 900 (4th Cir. 1968)). The Supreme Court decried the anomaly ⁶ in coverage of the pre-1972 Act, but stated that the remedy was up to Congress. Id. at 223-24, 90 S.Ct. at 353-54, 24 L.Ed.2d at 380, 1969 A.M.C. at 1976.

Despite the fact that Crawford spent at least 90% of his time seaward of the Jensen line, the portion of the uncompleted pier upon which he was standing and onto which he fell when injured was apparently ⁷ attached to the land. Thus Crawford would not have met the situs requirement of the pre-1972 Act. Crawford's temporary presence on the uncompleted pier-even though he normally spent more than 90% of his time on barges or in the water-would have deprived him of coverage under the pre-1972 Act.

In 1972, Congress amended the Act to, among other things, reduce the anomalies by moving the Act's coverage considerably inland. This was done with specific thought to longshoremen who constantly walked and worked across the Jensen line while loading and unloading docked vessels. P.C. Pfeiffer Co. v. Ford, supra. In order to reduce the anomalies of shifting coverage, Congress added a list of areas to the "navigable waters ... (including any dry dock) ..." provision. As broadened, the situs requirement now covers any 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).

33 U.S.C.A. § 903(a) (note 3, supra). Thus piers and wharves have joined dry docks (and by implication marine railways) as landward expansions of the Act's coverage.

The employer-insurer appellants agree that a completed pier is covered by the express language of the amended situs requirement, but argue that an uncompleted pier is not covered. They argue that the word "pier" must be construed in the same fashion as the later words "or other adjoining area customarily used by an employer in loading, offloading, repairing, or building a vessel." They argue that an uncompleted pier cannot be "customarily used." ⁸ In support of this interpretation, appellants rely on our decision in Jacksonville Shipyards, Inc. v. Perdue, supra (Skipper's case.) ⁹

In Skipper's case, we considered whether a "terminal"-a specifically listed area, like a "pier"-was a covered situs. Skipper was injured in an area across the river from an active shipyard, an area which had not been used, however, for maritime fabrication for about one year. We found that such an abandoned area was not a covered situs. ¹⁰ We did not, however, have occasion to consider an area under construction, which was intended for future maritime use. Nor did Skipper's case involve a situs such as a pier, being built over a clearly covered situs such as the navigable waters. ¹¹

Notwithstanding some broad dictum concerning future use in Perdue, we feel that there is a distinction between an area which before construction is a covered situs but is in the process of being put to some future use which will also qualify as a covered situs, and an area which was once a covered situs but is now abandoned, with no plans for future use as a covered situs. Perdue involved only this latter type of area-the separate fabrication facility in which Skipper was injured. That separate, abandoned area is far different from the construction area of the pier or dry dock at an already covered situs on the navigable waters. The construction area of a pier or dry dock is after all simply being transformed from one defined maritime use to another.

Precedent from the pre-1972 Act involving dry docks, and a recent application by the Fourth Circuit under the amended Act supports our approach. In Travelers Insurance Co. v. McManigal, 139 F.2d 949, 1944 A.M.C. 377 (4th Cir. 1944), a carpenter was injured while constructing a dry dock, a situs, once completed, specifically listed by the pre-1972 Act. The construction site had previously been covered with water, making it a previously covered situs. ¹² The Court looked to the maritime function which the completed dry dock would fulfill and to the fact that the area in which the dry dock was being built had previously been a situs within the Act. The Court held: "It is not material that in the pending case the dry dock was not finished. Not only was the locality within the...