- LHWCA "Situs" Test Held to Require an Injury Location Actually Adjoining Navigable Waters
- June 28, 2013
- Law Firm: Jones Walker LLP - New Orleans Office
In New Orleans Depot Services, Inc. v. Director, Office of Worker’s Compensation Programs, No. 11-60057 (5th Cir. Apr. 29, 2013) (en banc), the Fifth Circuit Court of Appeals overruled 33 years of precedent in abandoning the "situs" test established in Texports Stevedore Co. v. Winchester, 632 F.2d 504 (en banc). Winchester had interpreted 33 U.S.C. §903(a) to provide Longshore Act coverage where the situs of the injury was close to or in the vicinity of navigable waters. In overruling Winchester, the Fifth Circuit Court of Appeals adopted a situs test rationale used by the Fourth Circuit Court of Appeals in Sidwell v. Express Container Services, Inc., 71 F.3rd 1134 (4th Cir. 1995). The "situs test" in the area governed by the Fifth Circuit Court of Appeals now requires the location where the injured employee was working at the time of the injury to be contiguous to navigable waters.
Prior to 1972, compensation under the LHWCA required an injury on navigable waters. This created the problem of longshoremen walking in and out of coverage at the vessel gangplank. The 1972 amendments to the LHWCA broadened the situs requirement and added a status requirement. The situs requirement has been viewed as having both a geographic and a functional aspect. In Winchester, the injury occurred in a gear room five blocks from the nearest Port of Houston gate. The en banc Fifth Circuit Court of Appeals utilized a broad reading of the statutory word "adjoining" as meaning "close to," "near," and "neighboring." The limitation placed on the test was that the injury site had to have some nexus with the waterfront. This explanation of the situs test was followed in the Fifth Circuit for 33 years.
In the NODSI case, the Fifth Circuit again sat en banc to hear an appeal from the Benefits Review Board. The case involved hearing loss by a worker who held a job at a small industrial park 300 yards from the Intercoastal Waterway, where he repaired containers and chassis. The present day Fifth Circuit Court of Appeals abandoned the expansive situs definition of the Winchester court, focusing on the plain language of the statute word "adjoining" and giving it its ordinary meaning. The Fifth Circuit held that a situs must be contiguous to or border on navigable waters.
Of the 15 judges on the appellate court involved in the en banc review, 11 joined the opinion, 1 concurred with the holding, and 3 dissented. Moreover, seven of the eleven appellate judges joining the opinion also joined a specific concurring opinion regarding the "status" requirement in the case. These seven judges, as an alternative, said that the injured worker did not meet the status requirement either because to meet the status requirement, the worker must be performing customary maritime functions of dockworkers. Under the circumstances, repairing containers and chassis was not a customary maritime function of dockworkers. The lone concurring judge would not have overruled Winchester. The three dissenting judges viewed Winchester as a sound, long-term precedent and said there should be no change in the situs test standard.
Several circuit courts of appeal have followed the "expansive" interpretation path and the Fourth Circuit, now joined by the Fifth Circuit, has utilized a more restrictive standard. It is possible that the United States Supreme Court will ultimately hear a "situs" test case to resolve the conflicts among the circuits.