Last week, the Fifth Circuit issued an important Longshore Act opinion. The court addressed “situs” and “status,” two very important factors in all Longshore or LHWCA claims. The opinion is MMR Constructors, Inc. v. Director, OWCP.
Factual and Procedural Background:
Henry Flores worked for MMR Constructors as a technician for electrical systems. He injury occurred while assisting with “electrical wiring for the construction of Chevron’s tension-leg platform named Big Foot.” At the time of Mr. Flores’ accident, the platform which would ultimately become the Big Foot was floating on pontoons in Corpus Christi Bay. Steel cables and utility lines connected the platform to land.
Injury on Navigable Waters – Situs:
First, the Fifth Circuit addressed the “situs” test. The “extent to which a craft or pier is permanently attached to land is critical.” A permanent attachment, which removes the underlying water from navigation, can be considered an extension of land. In this case, the Fifth Circuit reasoned:
From these cases, it is clear that if a craft resting on navigable waters is permanently attached to land, then the water underneath the craft is removed from navigation and is not navigable under the LHWCA.While Big Foot was attached to land bordering Corpus Christi Bay, its attachment was not permanent. Big Foot was attached only temporarily while under construction—it was built to be moved offshore to drill for oil and gas in the Gulf of Mexico. Because it was not permanently attached to land, the water underneath it was not removed from navigation. Thus, Flores was injured on navigable waters and is entitled to benefits under the Act if MMR was a statutory “employer.” We now turn to that question.
Maritime Employment – Status:
The next question considered by the Fifth Circuit was Mr. Flores’ status as a maritime employer. Pursuant to the Longshore Act, an “employee” is “any person engaged in maritime employment, including any longshoreman or other person engaged in long shoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker.” The employee’s presence on the water should be more than “transient or fortuitous.” Here, Mr. Flores’ employment was anything but:
It is clear, however, that the facts here do not raise this concern, because Flores had been working on Big Foot for MMR on navigable waters for several months before his injury.
We therefore hold that because Flores was regularly employed by MMR on navigable waters and, under Perini, meets the “employee” definition, it follows that MMR had at least one employee engaged in maritime employment. Our conclusion that we should not read the “status” test as narrowing the definition of a statutory employer is consistent with both our holding in Nalco Chemical Corp. and the BRB’s finding. Our conclusion also follows the reasoning of the Supreme Court in Perini: Congress sought to expand, not limit, coverage under the LHWCA with the 1972 amendments. MMR was thus an employer under the Act.