- Fifth Circuit Court of Appeals Further Defines the LHWCA "Situs" Test
- October 21, 2013
- Law Firm: Jones Walker LLP - New Orleans Office
In the June 20, 2013, edition of our Admiralty & Maritime E*Lert, we reviewed New Orleans Depot Services, Inc. v. Director, Office of Workers' Compensation Programs, an en banc decision of the Fifth Circuit Court of Appeals which overruled 33 years of precedent in abandoning the expansive "situs" test established in Texports Stevedore Co. v. Winchester. It has not taken long for the Fifth Circuit to further expound upon its current "situs" test in adopting an iteration of the old "point of rest" test. In BPU Management, Inc./Sherwin Alumina Company; Liberty Mutual Insurance Co. v. Director, Office of Workers' Compensation Programs, United States Department of Labor; David Martin, No. 12-60289 (5th Cir. Oct. 8, 2013), the Court found that the injured worker failed to satisfy the situs test and remanded the case to the Benefits Review Board ("BRB") to enter an order dismissing the claim for benefits under the LHWCA.
In this case in which the facts were not in dispute, the Court decided the LHWCA coverage issue as one of statutory construction and legislative intent (i.e., a pure question of law). The question for decision was whether the place where Martin was injured was a covered situs under the Act.
The BRB had concluded that a cross-tunnel where Martin was injured, running from bins in a covered storage area to the pulverizing mill, was used in the unloading process of vessels and, consequently, had a functional relationship. Martin met the first prong of situs analysis—the geographic component—as the facility adjoined navigable waters.
The Fifth Circuit held that Martin was not injured while participating in unloading a vessel or conduct essential to that activity because the bauxite cargo had been delivered into storage, which was the functional equivalent of the surrender of cargo for land transport.
In summary, the injured worker satisfied the geographic prong of the situs test as his employer's entire facility, including the location of the injury, adjoined navigable waters. However, the injured worker did not meet the functional prong of the test as the area of the injury was not customarily used for unloading vessels.
This decision is significant as the panel of the Fifth Circuit has further explicated the situs test, noting that the surrender of cargo for land transport marks the end of the maritime unloading process because it is the point where the longshoreman's duty to unload and move the cargo ceases. This is likely familiar to longtime Longshore Act aficionados as the "point of rest" test.
As noted in the June 20, 2013, issue, several circuit courts of appeal have followed an expansive interpretation as to situs and several other circuit Courts have now utilized the more restrictive standard. It is possible that the U.S. Supreme Court will ultimately agree to hear a situs test case to resolve the conflicts among the circuits.