The Mendez court noted that "at most
that the RED HAWK is theoretically
capable of maritime transport, but not
practically capable."
Mendez is a recent example of the
critical nature of the vessel question if
the structure is not a vessel, the plaintiff
cannot sue under the Jones Act.
Lozman was recently followed in
Mooney v. W&T Offshore Inc., 2013 U.S.
Dist. LEXIS 30091 (E.D. La. 2013).
Mooney alleged he was a Jones Act
seaman because the tension-leg platform
(TLP) operated by his employer was
a "vessel." The court disagreed and
dismissed the suit, relying on Lozman:
"a reasonable observer looking at the
structure's physical characteristics and
activities, would not consider the vessel
as being designed for carrying people or
things over water." The court compared
the TLP to floating gas production
platforms and floating casinos, which
do not qualify as vessels under current
law; it was permanently moored to the
seafloor. Under Lozman's "reasonable
observer" test, vessel status was denied.
Jurisdiction under the LHWCA
strict interpretation of "adjoining area"
for jurisdiction under the LHWCA (the
LHWCA applies to "adjoining areas"
used for maritime activity); New Orleans
Depot Services, Inc. v. Director OWCP,
718 F.3d 384 (5
Fifth Circuit Winchester case which held
that an adjoining area (a stevedore's
gear room about ½ mile outside the
fence boundary of the Port of Houston)
need not be directly contiguous to
navigable waters.
NODSI employee Juan Zepeda was
injured in the "Chef Yard" facility in
New Orleans. NODSI repaired shipping
containers and chassis. Chef Yard, with
access to the Chef Menteur Highway and
rail transportation, is a small industrial
park located about 300 yards from the
Intracoastal Canal.
delivered to and taken from the Yard by
truck with no access to the canal. An
administrative law judge held the Yard
was close enough to navigable waters
for jurisdictional purposes. The Benefits
Review Board affirmed.
The Fifth Circuit overruled
Winchester with a plain language
approach to interpreting the Act: "The
plain language of the LHWCA requires
that coverage situs actually adjoin
navigable waters" and not be "in the
general geographic proximity of the
waterfront."
of the LHWCA?
limits but how far does the LHWCA
go seaward? The question was recently
addressed in Keller Foundation v. Tracy,
696 F.3d 835 (9
was injured while employed in the ports
of Singapore and an Indonesian ship
yard. Previous lower court decisions
had determined that the LHWCA did
not apply to workers injured on foreign
territorial waters.
But more recently, in Weber v. S.C.
Loveland Company, 28 BRBS 321
(1994), a longshoreman injured on a
barge in Kingston, Jamaica, was held to
be covered under the LHWCA because
the worker was a U.S. citizen, employer
was U.S. based, and the vessel was under
the American flag.
In
U.S. includes the high seas, but drew the
line where those high seas intersect with
foreign territorial waters, and held that in
the absence of clear congressional intent
to include injuries in foreign territorial
waters in Section 903(a), there is a
presumption that the LHWCA does not
apply extraterritorially.
In another 2012 landmark decision,
the Court extended the Outer Continental
Shelf Lands Act (OCSLA), to land
injuries. (Congress enacted OCSLA in
the 1950s and extended the LHWCA
to claims that fall under the OCSLA.)
Valladolid, 132 S. Ct. 680 (2012)
("Valladolid"). The outer continental
shelf (OCS) is a subsea area that
begins offshore from the coastal states
where their territorial waters end. Juan
Valladolid was killed while performing
maintenance work at the employer's
onshore oil and gas processing facility in
Ventura County, California. Ninety-eight
percent of his other duties were on OCS
platforms. His widow filed for benefits
under OCSLA, which provides benefits
for injury or death to an employee
occurring "as a result of operations
connected with the exploration,
development, removal and transportation
of natural resources from the seabed
and subsoil of the outer continental
shelf." For many years, courts had held
OCSLA had a situs requirement limiting
jurisdiction to injuries occurring on the
OCS. In Valladolid, the Court extended
OCSLA coverage to work-related injuries
occurring away from the OCS, provided
the work has a "substantial nexus" to the
employer's operations on the OCS.
Before January 2012, Federal Courts
disagreed about OCSLA jurisdiction. The
Fifth Circuit refused to extend OCSLA
to injuries outside the OCS. The Third
Circuit took a broader view, applying
OCSLA even to land injuries, if the
injury would not have occurred "but for
operations" on the OCS.
Valladolid rejected these views and
adopted the Ninth Circuit's "substantial
nexus" test. Practitioners need to follow
subsequent cases to probe the landward
limits of OCSLA jurisdiction. Valladolid
will likely result in more claims for land/
near-land injuries under OCSLA that
were formerly covered under state law.
defining the parameters of jurisdiction
under the Jones Act, the LHWCA and
the OCSLA. Employers and their counsel
must remain current on these and
subsequent decisions given the risks and
substantial dollars at stake.