The Fifth Circuit issued a new decision affirming the denial of benefits under both the Longshore and Harbor Workers’ Compensation Act and the Outer Continental Shelf Lands Act. The decision turned on two issues: whether a particular watercraft was a legal “vessel” and whether Claimant’s job activities had a substantial nexus to operations on the Outer Continental Shelf.
Factual Background:
Claimant worked as a marine carpenter building housing modules designed for use on a tension leg offshore platform named Big Foot. After an alleged injury, Claimant filed a claim for benefits under the Longshore and Harbor Workers’ Compensation Act as a shipbuilder. He also argued–in the alternative–that his claim was covered by the Outer Continental Shelf Lands Act. (“OCLSA”)
Both the Administrative Law Judge and the Benefits Review Board disagreed with Claimant’s assertion. First, Longshore benefits were denied because the Big Foot was not a “vessel,” thus preventing Claimant from being a shipbuilder. Second, OCSLA benefits were denied because there was no “significant causal link” between the alleged injury and operations on the Outer Continental Shelf.
Status as a Maritime Employee:
As for the Longshore claim, the Fifth Circuit noted that a claimant is eligible for Longshore benefits when they show that an injury occurred on a maritime situs (the situs requirement), and that he was a maritime employee (the status requirement). In this case, the situs requirement was met, but not the status requirement.
To be an “employee,” the injured worker must be “engaged in maritime employment,” which includes “ship repairman, shipbuilder, and shipbreaker.” Further, the term “employee” includes any other occupation that is integral or essential to loading, unloading, building, or repairing vessels.
In this case, Claimant’s status as a maritime employee turned on the “vessel” status of Big Foot. If Big Foot was a “vessel,” then Claimant was a maritime employee. If not, then Claimant was not a maritime employee.
Status as a “Vessel”:
The Fifth Circuit determined that Big Foot was not a vessel. To do so, it looked at a collection Supreme Court cases. See Lozman v. City of Riviera Beach, 133 S. Ct. 735 (2013) (floating house was not a “vessel”); Stewart v. Dutra Const. Co., 543 U.S. 481, 488-90 (2005) (floating dredge was not a “vessel”). Based on the Supreme Court cases, the Fifth Circuit concluded (with citations omitted):
Returning to our case, we conclude that Big Foot is not a vessel. Like the floating home in Lozman, Big Foot has no means of self-propulsion, has no steering mechanism or rudder, and has an unraked bow. Big Foot can only be moved by being towed through the water, and when towed to its permanent location, Big Foot will not carry “items being transported from place to place (e.g., cargo),” but only “mere appurtenances.” While required to carry a captain and crew when towed, the crew will only be present to ensure Big Foot’s transport to its permanent location on the OCS. And unlike the Super Scoop [in Stewart v. Dutra], Big Foot will not be used to transport equipment and workers over water in the court of its regular use. In fact, Big Foot is only intended to travel over water once in the next twenty years–the voyage to its operational location on the OCS. Given these undisputed facts, “a reasonable observer, looking to [Big Foot’s] physical characteristics and activities, would [not] consider it designed to a practical degree for carrying people or things over water.”
Fifth Circuit case law compelled the same result. See, e.g., Bernard v. Binnings Constr. Co., Inc., 741 F.2d 824, 830-32 (5th Cir. 1984) (work punt was not a “vessel” under the Jones Act); Smith v. Massman Constr. Co., 607 F.2d 87, 89 (5th Cir. 1979) (caisson was not a “vessel” under the Jones Act); Blanchard v. Engine & Gas Compressor Servs., Inc., 575 F.2d 1140, 1141-43 (5th Cir. 1978 (concluding that “buildings mounted on virtually permanently sunken barges [were] not Jones Act vessels”).
Because Big Foot was not a vessel, Claimant was not a maritime employee entitled to Longshore benefits.
The Outer Continental Shelf Lands Act:
Further, the Fifth Circuit affirmed the lower court’s decision that Claimant was not entitled to OCSLA benefits. The OCSLA is an extension of the Longshore and Harbor Workers’ Compensation Act. If certain criteria are satisfied, an injured worker main be entitled to OCSLA benefits.
As noted by the Fifth Circuit:
The Supreme Court recently clarified that a “‘claimant must establish a substantial nexus between the injury and extractive operations on the [OCS]’ to qualify for workers’ compensation benefits under the OCSLA.” Pac. Operators Offshore, LLP v. Valladoid, 132 S. Ct. 680, 685 (2012) (quoting Valladolid v. Pac. Operations Offshore, LLP, 604 F.3d 1126, 1139 (9th Cir. 2010). To meet the substantial nexus test, “the injured employee [must] establish a significant causal link between the injury that he suffered and his employer’s on-OCS operations conducted for the purpose of extracting natural resources from the OCS.” Id. at 691. Baker’s injury–incurred on dry land while “building the living and dining quarters for [Big Foot]”–does not satisfy the fact-specific test.
As such, the OCSLA did not apply to Claimant. The Fifth Circuit affirmed the denial of benefits.
The case is Baker v. Director, OWCP, No. 15-60634, — F.3d —- (5th Cir. 2016).
