Fifth Circuit Narrows “Adjoining Area” Definition in LHWCA Jurisdiction Test
On April 29, 2013, the Fifth Circuit issued an opinion for the en banc Court in New Orleans Depot Services, Inc. v. Director OWCP, 718 F.3d 384 (5th Cir. 2013) that effectively reformulated the 1972 situs jurisdictional requirement under the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. sec. 901 et.seq. The Court now will require that the situs upon which an employee is injured must border upon navigable waters for the employee to satisfy this prong of the dual jurisdiction test of the Act.
The reader will remember that prior to the amendments to the LHWCA in 1972, the Act’s jurisdiction applied over navigable water and ended at the water’s edge. In order to attune the coverage of the LHWCA to the changes in the shipping industry that increasingly drew stevedoring activities onto land, Congress in 1972 provided the following amendment to the act:
SEC. 3.(a) Except as otherwise provided in this section, compensation shall be payable under this Act in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including 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). (emphasis added)
In its latest restatement of the situs requirement, the majority of the court rejected its previous definition of “other adjoining area” provided in Textports Stevedore Co. v. Winchester, 632 F.2d 504 (5th Cir. 1980). In that case, Mr. Winchester was injured in a gear room located more than five city blocks from the water’s edge. After 30 years of a broader test of what “adjoining” meant, the Court has now adopted the more objectively reasoned and restrictive “bordering upon navigable waters” definition of the Fourth Circuit in Sidwell v. Express Container Services, Inc., 71 F.3d 1134 (4th Cir. 1995).
Status Prong of LHWCA Test Also Addressed
In addition to this holding, seven judges provided a concurring decision concerning the status of the plaintiff, Mr. Zepeda, as a maritime employee, thereby addressing the second prong of the dual test for LHWCA jurisdiction. Noting that Mr. Zepeda was not involved in the actual process of moving cargo between ship and land transportation and was solely tasked with repairing empty containers, the concurring judges would find that he was not engaged in the type of duties that longshoremen traditionally perform in transferring goods between ship and land transportation. Mr. Zepeda therefore would not have met the criteria for maritime status. Only in the instance where the repair of a container was immediately necessary to prevent a stoppage in the loading or discharge of a vessel would the concurring judges find that container repairer had sufficient maritime nexus to suffice for the test of maritime status.
It is interesting to note that the author of the concurring opinion declared it to be an alternative ground to vacate the decision below and not to be considered as dictum. Practitioners may be hard pressed, however, to assert the concurring opinion as controlling precedent as it was adopted by less than a mathematical majority of the en banc Court. The concurring opinion is, however, noteworthy, as seven of the judges adopted its reasoning and these judges will be sitting on future panels of the Fifth Circuit.
Doug Matthews has practiced law in New Orleans for 35 years and concentrates on maritime trial practice as defense counsel.