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When an “Other Adjoining Area” is Not a Covered Situs Under the LHWCA

Case:
New Orleans Depot Services v. Director, OWCP
Federal Fifth Circuit Court of Appeals
718 F.3d 384 (5th Cir. 2013)

This decision from the Fifth Circuit provides further direction as to whether the location of an injury that occurs on an “other adjoining area” satisfies the situs requirement of the jurisdictional component as defined by the Longshore and Harbor Workers’ Compensation Act (“LHWCA”). 33 U.S.C. §§ 901 et seq.

The LHWCA applies to the claims of an injured worker, if the two prong jurisdictional test of situs (location of injury) and status (engaged in maritime employment) are met. The “situs” component is satisfied if the injury occurs upon the navigable waters of the United States, which includes any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel. 33 U.S.C. 903(a). The term “other adjoining area” includes both a geographic component and a functional component; the “other area” must adjoin navigable waters and be customarily used by an employer in loading or unloading a vessel.

In New Orleans Depot Services, the claimant was an injured repair mechanic who worked at a container yard with no wharf, dock, or pier, and was 300 yards from the industrial canal. The Administrative Law Judge and Benefits Review Board determined that the injury had occurred on a covered situs because the claimant’s employment activities occurred in an area “adjoining” navigable waters customarily used by an employer in loading or unloading a vessel, i.e., some of the repaired containers were used in maritime shipping. The Fifth Circuit, however, held en banc that the Claimant was not injured on a covered situs because the site at which he was working did not border upon and was not contiguous with navigable waters. The Fifth Circuit articulated that “other adjoining area” means that this “other area” must border on or be contiguous with navigable waters. This “other area” is synonymous with a discrete shore-side structure or facility whose reason for being is its use in connection with navigable waters; and the parcel of land underlying the employer’s facility must adjoin navigable waters, not the particular part of the that parcel upon which the claimant is injured.

The New Orleans Depot case was followed in a June 23, 2014 opinion from the Fifth Circuit in Global Mgmt. Enters., LLC v. Commerce & Indus. Ins. Co., 2014 U.S. App. LEXIS 11801. In that case, the Court held the beach where a worker was assisting in clean-up efforts following the Gulf Oil Spill was not a location customarily used for "loading, unloading, repairing, dismantling, or building a vessel" under the LHWCA. On August 21, 2010, an employee was allegedly injured while lifting a bag of oil-laden sand that would later be loaded onto a truck and transferred to a vessel for removal. At the time of the incident, the employee was working on a beach located a few feet from the Gulf and roughly a half-mile from the pier at which the vessel was docked. Relying on New Orleans Depot, the Court concluded the employee’s injury was not sustained on a situs covered by the LHWCA.

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