Harry Hurston v. Director, Office of Workers Compensation Programs McGray Construction Company Beaver Insurance Company

989 F.2d 1547, 1993 A.M.C. 2477, 93 Cal. Daily Op. Serv. 2396, 93 Daily Journal DAR 4139, 1993 U.S. App. LEXIS 6670, 1993 WL 92570

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 1, 1993
• Docket: 91-70528
• Status: Published

Opinions

RYMER, Circuit Judge:

Harry Hurston petitions for review of the Benefits Review Board decision and order denying him benefits under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901-950. We must decide whether a structure built on pilings that reaches from land to navigable water is a “pier” which is a covered situs under § 903(a) even though it is not used for a traditional maritime activity such as the loading or repair of vessels.

We hold that it is. The LHWCA's “status” requirement restricts coverage to only those employees engaged in maritime employment under § 902(3), but its “situs” requirement does not require that any pier adjoining navigable waters of the United States be used as a navigational aid or for boat hook-ups or the like to be covered under § 903(a). Therefore, it is the type of structure rather than its function which defines “any adjoining pier” under the Act. We have jurisdiction under 33 U.S.C.. § 921(c), and we reverse.- •

I

Hurston- worked as a pile driver on Elwood Pier No. 1 for McGray Construction Company in March, 1985. Elwood Pier No. 1 is a structure built on pilings extending from land to sea in the Santa Barbara channel. Oil is pumped from a nearby well and piped into Elwood Pier No. 1 where it is separated into water, gas, and crude oil. The crude oil is stored until it is pumped into a pipeline to be picked up by a tanker. Hurston was injured when a 1,000 pound sheet pile fell from a crane, landed on him, and left him permanently disabled. He filed a disability claim under the LHWCA against McGray and its workers’ compensation insurer, Beaver Insurance Company.

The Administrative Law Judge found that Hurston qualified as a maritime employee under § 902(3),¹ and held that Elwood Pier No. 1 was a covered “adjoining pier” within § 903(a).² The ALJ also found that Hurston was injured while replacing a thousand pound sheet pile on Elwood Pier No. 1, that Elwood Pier No. 1 was built on pilings and extended over water, and that it was a “pier” within the ordinary meaning of that term.

McGray appealed both findings to the Benefits Review Board. The Board held that a nexus with maritime activity is required for coverage under the Act, and since Elwood Pier No. 1 was used only for oil production, it lacked the requisite relationship to vessels and maritime activity.³ Therefore, it reversed the order awarding benefits to Hurston.

Hurston seeks review of the Board’s determination that § 903(a) extends geographic coverage only to those adjoining piers which have a maritime use.

II

We review the Board’s decision for “errors of law and adherence to the substantial evidence standard.” Port of Portland v. Director, Office of Workers’ Compensation Programs, 932 F.2d 836, 838 (9th Cir.1991). There is no dispute about the characteristics of the structure in this case. Since the Board is not a policy making body, we give no special deference to its interpretations of the Act. Id. However, we do “accord ‘considerable weight’ to the construction of the statute urged by the Director ... as he is charged with administering [the statute].” Force v. Director, Office of Workers’ Compensation Programs, 938 F.2d 981, 983 (9th Cir.1991); Port of Portland, 932 F.2d at 838. For example, in Force we found that since “the statute is easily susceptible .to the Director’s interpretation, we need go no further.” Force, 938 F.2d at 984.

Ill

Hurston and the Director argue that under the plain statutory language, the Benefits Review Board erred in holding that a § 903(a) “adjoining pier” must have a relationship to navigation and commerce over navigable waters. The Director’s interpretation is that, for the purposes of the statute, an “adjoining pier” is a structure built on pilings extending from land to navigable water, regardless of the structure’s use. The Board did not take issue with the AU’s finding that Hurston was injured on a structure that resembled a pier to the extent that it extended from the beach on pilings and touched the water at high tide. Rather, it held as a matter of law that a structure may not be considered a “pier” based only on its appearance and location. The Board reasoned that, “[although the requirement that an area be customarily used for loading, unloading, building or repairing a vessel does not apply to the structures explicitly listed in Section 3(a), we believe that a facility must have a maritime use in order to be considered a ‘pier.’ ” McGray similarly urges the court to look beyond the mere appearance of the structure on which injury occurred and, as the Board did, to consider whether it has a functional connection to maritime or navigational activity.

. While we agree with McGray that we should not necessarily be bound to the principle “if it walks like a duck, if it sounds like a duck, it’s a duck,” if it appears to be a pier, if it is built like a pier and adjoins navigable waters, it’s a pier. In short, as in Force, the statute is easily susceptible to the Director’s interpretation.

A.

As with all statutory interpretations, we begin with the language of the statute. Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). The plain language of § 903(a) supports the Director’s interpretation. It says that compensation is payable if disability 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).” 33 U.S.C. § 903(a) (emphasis added). The phrase “any adjoining pier” is unqualified, whereas “other adjoining area” is qualified so as to require a relationship to maritime activity.⁴ Thus, unless the injury occurs on a pier, wharf, dry dock, terminal, building way, or marine railway adjoining navigable waters, to be covered it must occur on “other adjoining areas” which are “customarily used by an employer in .loading, unloading, repairing, dismantling, or building a vessel.” When, however, the injury occurs on a pier, so long as it is adjoining navigable waters, it is within the situs requirement.

If Congress had wanted to restrict “any adjoining pier” to cover only those piers used for maritime purposes, it could have easily said so. Or, it could have eliminated the phrase “other adjoining area,” so that “pier, wharf, dry dock, terminal, building way, [and] marine railway” would also have been modified by “customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel[].” Likewise, the drafters could have put a comma after “other adjoining area” had they wished “any adjoining pier” to be modified by “customarily used.” See-Larson, The Conflicts Problem Between the Longshoreman’s Act and State Workman's Compensation Act Under the 1972 Amendments, 14 Houston L.Rev. 287, 294 (1977). As written, the language does none of these things.

Accordingly, under the plain meaning of § 903(a), a pier adjoining navigable waters of the United States, as Elwood Pier No. 1 admittedly is, is a covered situs without regard to its use for a maritime purpose.

B

In addition to the. plain language, the history and context of § 903(a) support the Director’s interpretation.⁵ The LHWCA is basically a workmen’s compensation system for maritime workers injured on or near navigable waterways. The Act became necessary because the Supreme Court had held in 1917 that the states were without power to extend workmen’s compensation remedies to injuries at sea. Southern Pac. Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917). As a result of Jensen, a longshoreman would be insured by state workmen’s compensation if he were injured on land, but would be uninsured if he were injured on a boat or at sea. The difference between land and sea, and coverage or no coverage, came to be known as the “Jensen line.” See, e.g., Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 257, 97 S.Ct. 2348, 2353, 53 L.Ed.2d 320 (1977).

Congress wanted to provide comprehensive coverage for longshoremen, and tried unsuccessfully to encourage state programs through delegation. Id. Finally, in 1927, it enacted the LHWCA to create a federal system of workmen’s compensation to cover harbor workers and longshoremen so as to have “ ‘one law to cover their whole employment, whether directly part of the process of loading or unloading a ship or not.’ ” Id. (quoting H.R.Rep. No. 639, 67th Cong., 2d Sess. 2 (1922)). Whereas before longshoremen and harborworkers were either covered under state programs or not covered at all, after the LHWCA was passed they were either covered under state programs or the federal LHWCA.

For the next fortyLfive years, the line dividing coverage under the LHWCA and state programs depended almost exclusively upon the situs of the injury. Though the situs line was somewhat unsettled early on, in 1969 the Supreme Court held that coverage under the LHWCA stopped at the “Jensen line.” Nacirema Operating Co. v. Johnson, 396 U.S. 212, 223-24, 90 S.Ct. 347, 354, 24 L.Ed.2d 371 (1969) (LHWCA does not apply to longshoreman injured while on pier unloading cargo).. Thus, if an employee were injured on navigable waterways, he would be;'covered under the LHWCA, but if he were injured on land, he' would be covered under state workmen’s compensation. The status test was easy to meet: anybody who worked for a maritime employer was covered regardless of the type of work the employee did. For example, in Pennsylvania R. Co. v. O’Rourke, 344 U.S. 334, 73 S.Ct. 302, 97 L.Ed. 367 (1953) a railroad brakeman was injured while removing railbox cars from a float. The Court held that the brakeman passed the status threshold since the statute “is directed at the employer when it speaks of maritime employment, not [to] the work [of] the employee.” Id. at 340, 73 S.Ct. at 305.

This rule emphasizing situs over status rested coverage on the often fortuitous location of an injury. For example, in Nacirema, 396 U.S. 212, 90 S.Ct. 347, longshoremen were injured when a crane which lifted cargo from a pier onto a ship swung back and knocked the workers into the pier. The Supreme Court held that since ■ the injury occurred on the pier, the longshoremen were not covered under the LHWCA. Had the crane swung the other way and knocked them into’ the water or onto the ship, they would have been eov-ered. Id. at 225, 90 S.Ct. at 355 (Douglas, J., dissenting).

By 1972, Congress had become dissatisfied with the LHWCA and amended it to broaden the geographic coverage and limit the class' of persons covered. Caputo, 432 U.S. at 264-65, 97 S.Ct. at 2357. “Navigable waters of the United States,” i.e., the Jensen line test for situs, was extended to cover “any adjoining pier, wharfs dry dock, ...” etc. 33 U.S.C. § 903(a). The class of persons covered — the test for status — was limited from virtually any employee of a maritime employer to only those employees “engaged in maritime employment.” 33 U.S.C. § -902(3). Thus, the 1972 amendments “changed what had been essentially only a ‘situs’ test ... to one looking to both the ‘situs’ ... and the ‘status.’ ” Caputo, 432 U.S. at 264-65, 97 S.Ct. at 2357. These amendments were intended to provide a uniform compensation system for longshoremen and harborworkers. Id. at 269-73, 97 S.Ct. at 2360-62. As Caputo recognizes, Congress did not want a system in which coverage “depend[ed] on the ‘fortuitous circumstance of whether the injury [to the longshoreman] occurred on land or over water.’ ” Id. at 272, 97 S.Ct. at 2361 (quoting H.R.Rep. 1441, p. 10, reprinted in 1972 U.S.Cong. & Admin.News 4698).

This history supports the Director’s position. Ever since 1927, the LHWCA has sought to provide comprehensive coverage for maritime employees. Since 1972, the LHWCA has emphasized status over situs to avoid the anomaly of a worker walking in and out of coverage. It would be counter to the history of the statute now to restrict the situs requirement to only those piers with a “maritime use”: a maritime employee injured on a pier which is not used for a maritime purpose would continually “walk in and out” of coverage, as did all longshoremen before 1972. Under the Board’s functional test, the disfavored “Jensen line” would be replaced by a “maritime use” line which would provide coverage under the LHWCA depending upon the use of the pier on which the maritime worker is injured. The Director’s interpretation avoids this anomaly by covering all structures built on pilings extending from land to navigable water. This test is consistent with the evolution of a narrow status test and a broad situs test.

The context of § 903(a) within the LHWCA also favors the Director’s construction. The status provision, codified in § 902(3), defines “employee” as “any person engaged in maritime employment.” Section 902(3) then specifically describes which workers are included and which excluded. There is no correspondingly detailed definition of “pier,” which suggests that Congress intended to limit the class of covered workers but leave the geographic areas such as a pier or wharf unlimited so long as they adjoin navigable waters of the United States.

The board relied on one dictionary’s definition of a “pier” as “a platform extending from a shore over water supported by piles or pillars, used to secure, shelter, and provide access to vessels,” Webster’s II New Riverside University Dictionary, to bolster its conclusion that to be a “pier” a structure must have a relationship to vessels and maritime activity. We are not persuaded by the reference. As Hurston points out, other dictionaries define a “pier” as a similar structure used for different purposes, for example, as a place to promenade. See, e.g., Webster’s Seventh New Collegiate Dictionary (1971); Webster’s New Universal Unabridged Dictionary (2d Ed.1983). More significantly, however, Congress has already defined the maritime connection it requires for coverage under § 903 by making compensation payable only if the injury occurs upon a pier adjoining the navigable waters of the United States. That nexus adequately supports the Director’s interpretation. It is not for the Board, or the courts, to add to that nexus a further requirement that the pier adjoining the navigable waters of the United States be used for boat hook-ups, navigational aids or some other maritime activity.

C

Hurston and the Director argue that there is ample legal authority to support the proposition that the phrase “any adjoining pier” means what it says. We agree.

Courts have generally interpreted the LHWCA broadly to provide coverage. “The language of the 1972 Amendments is broad and suggests that we should take an expansive view of the extended coverage.” Caputo, 432 U.S. at 268, 97 S.Ct. at 2359. “The Act must be liberally construed in conformance with its purpose, and in a way which avoids harsh and incongruous results.” Id. (quotation omitted). Based on these rules of construction alone, the Director’s more expansive, structural definition of pier over the Board’s more narrow, functional one, is justified.

Caputo’s rationale affords support as well. In Caputo, the Supreme Court held that workers who were injured on a pier used only for storing containers were covered under the LHWCA. Although not dispositive on the situs issue, the Court’s focus on status is instructive,⁶ as is the short shrift it gave to the petitioner’s “halfhearted” argument that the' pier was not a covered situs because it was not customarily used for loading or unloading a vessel. In so doing, the Court wrote:

... [W]e agree with the court below that it is not at all clear that the phrase “customarily used” was intended to modify more than the immediately preceding phrase “other areas.” We note that the sponsor of the bill in the House, Representative Daniels, described this section as “expand[ing] the coverage which was limited to the ship in the present law, to the piers, wharves, and terminals.” There was little concern with respect to how these facilities were used.

Id. at 280, 97 S.Ct. at 2365 (emphasis added) (citations and internal quotations omitted). While the Court went on to note that the pier satisfied the situs test even assuming that the phrase should be read to modify the preceding terms, id. at 281, 97 S.Ct. at 2366, it concluded that “when Congress sought to expand the situs to avoid anomalies inherent in a system that drew lines at the water’s edge, it intended to include an area such as the one at issue here.” Id. Thus, the Director’s construction is consistent with Caputo’s emphasis on expansive situs coverage, as well as its holding that an adjoining pier used only for storage is a covered site regardless of the fact that it was not used to load or unload vessels.

Our decision in Williams v. Director, Office of Workers’ Compensation Programs, 825 F.2d 246, 247 (9th Cir.1987) also supports the Director’s interpretation. Although we held that Alpine Lake was not a situs within the meaning of § 903(a), we reiterated that the 1972 amendments were intended to “provide[ ] continuous coverage to a worker who would otherwise be covered for only a part of his activity” and that, by including adjoining areas, Congress alleviated the anomaly of a longshoreman’s walking in and out of coverage depending on which side of the gang plank an injury occurred. Id. We then stated:

This anomaly is not present when work is done on a non-navigable lake with no functional relationship to maritime activity. A diver working on a non-navigable lake does not walk (or swim) continuously in and out of coverage. Rather, he is working continually out of coverage because he is at a location that does not meet the geographic situs requirement of § 903(a).

Id. It is undisputed here that Elwood Pier No. 1 extends to navigable waters, and so has. a functional relationship to maritime activity as far as the statute is concerned.

McGray argues that we should follow Herb’s Welding, Inc. v. Gray, 470 U.S. 414, 105 S.Ct. 1421, 84 L.Ed.2d 406 (1985), where the injury occurred on an off-shore oil platform which McGray contends is functionally similar to the place where Hur-ston was injured, and Trotti & Thompson v. Crawford, 631 F.2d 1214 (5th Cir.1980) and Jacksonville Shipyards, Inc. v. Per-due, 539 F.2d 533 (5th Cir.1976), reaffirmed, 575 F.2d 79 (5th Cir.1978), cert. denied, 440 U.S. 967, 99 S.Ct. 1520, 59 L.Ed.2d 784 (1979), in which the Fifth Circuit applied a functional test. Herb’s Welding held that a person working on an off-shore oil-drilling platform “was not engaged in maritime employment” and therefore was not a covered employee. Herb’s Welding, 470 U.S. at 416, 105 S.Ct. at 1423. This was a “status” case, and is inapposite to the “si-tus” inquiry we face in this case. See id. at 425-26, 105 S.Ct. at 1428 (distinguishing dissenting argument which focused on “si-tus” requirement).

In Jacksonville Shipyards, Inc., the Fifth Circuit read § 903(a) as permitting courts to “look past an area’s formal nomenclature and examine the facts to see if the situs is one ‘customarily used by an employer in loading, unloading, repairing or building a vessel.’ ” 539 F.2d at 541. Jacksonville Shipyards, however, pre-dat-ed Caputo, and involved an abandoned “terminal,” not “a situs such as a pier, being built over a clearly covered situs such as the navigable waters.” See Trotti, 631 F.2d at 1218. Trotti is actually closer, as it involved an uncompleted pier, under active construction. The court held that the pier, albeit uncompleted, was a covered situs, as “Congress now expressly prescribes that situs is satisfied for injuries occurring upon any pier adjoining navigable waters.” Id. at 1219. In light of Caputo, Trotti, and our own reading of § 902(3), we are not persuaded by Jacksonville’s approach, which depends on construing the phrase “any adjoining pier” to be modified by “customarily used ... in loading, unloading, repairing, dismantling, or building a vessel,” 539 F.2d at 541.

Finally, McGray argues that we should be concerned about expanding the LHWCA to confer status based solely on the location, name, or appearance of a structure because what were once piers,' wharfs, and so forth, customarily used for loading or repairing vessels, are now offices, homes, restaurants, retail outlets, and parking lots. We are not greatly concerned, however, because people working on such places are covered only if they meet the status requirement; waiters, bellhops, parking lot attendants, and other similar workers do not qualify as “maritime employees” under § 902(3).

Because we consider only situs in this appeal, what then Judge Kennedy said for our court in Brady-Hamilton Stevedore Co. v. Herron, 568 F.2d 137 (9th Cir.1978), bears repeating:

Situs and status must coincide before coverage will attach. Each test acts as a control upon the other so as to diminish .the potential for undue expansion of coverage. Admittedly, neither test is precise, and cases will often arise which present questions of coverage that are difficult to resolve. But by operating coordinately, the status and situs tests fix coverage within somewhat more certain bounds than would be the case under either test alone.

Id. at 140. All that we now hold is that it is inappropriate to engraft a usage requirement onto “any adjoining pier.” Such a pier is by definition in navigable waters and within maritime jurisdiction. Accordingly, we leave for the status inquiry whether the worker is engaged in maritime employment.

IV

We conclude that a structure built on pilings extending from land to navigable water is an “adjoining pier” within the meaning of 33 U.S.C. § 903(a). This is an essentially factual test which depends upon the structure’s appearance and location. Elwood Píer No. 1 meets this factual criteria, and consequently it is a “pier” under the LHWCA. Since this court may only review board decisions, Port of Portland v. Director, Office of Workers’ Compensation Programs, 932 F.2d 836, 838 (9th Cir.1991), and the Board failed to decide the status issue, we do not comment on whether the ALJ correctly found that Hurston met the status requirement.

REVERSED AND REMANDED.

1 .Section 2(3) of the Act provides:

The term "employee” means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker, but such term does not include—

(A) individuals employed exclusively to perform office clerical, secretarial, security, or data processing work;

(B) individuals employed by a club, camp, recreational operation, restaurant, museum, or retail outlet;

(C) individuals employed by a marina and who are not engaged in construction, replacement, or expansion of such marina (except for routine maintenance);

(D) individuals who (i) are employed by suppliers, transporters, or vendors, (ii) are temporarily doing business on the-premises of an employer described in paragraph (4), and (iii) are not engaged in work normally performed by employees of that employer under this chapter;

(E) aquaculture workers;

(F) individuals employed to build, repair, or dismantle any recreational vessel under sixty-five feet in length;

(G) a master or member of a crew of any vessel; or

(H) any person engaged by a master to load or unload or repair any small vessel under eighteen tons net;

if individuals described in clauses (A) through (F) are subject to coverage under a State workers’ compensation law.

18 U.S.C. § 902(3).

2 . Section 3(a) of the Act, which defines the situs requirement, provides:

compensation shall be payable under this chapter 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).

33 U.S.C. § 903(a).

3 . The Board did not reach the ALJ’s finding of status, and .the issue of whether Hurston was a .maritime employee is not before us on appeal.

4 . As the Supreme Court observed in Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 280-81, 97 S.Ct. 2348, 2365-66, 53 L.Ed.2d 320 (1977), "it is not at all clear that the phrase 'customarily used’ was intended to modify more than the immediately preceding phrase ‘other areas.’ ”

5 . Much of this history of the Act is taken from Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 257-65, 97 S.Ct. 2348, 2353-57, 53 L.Ed.2d 320 (1977).

6 . As it stated:

The Act focuses primarily on occupations— longshoreman, harbor worker, ship repairman, shipbuilder, shipbreaker. Both the test and the history demonstrate a desire to provide continuous coverage throughout their employment to these amphibious workers who, without the 1972 Amendments, would be covered only for part of their activity.

432 U.S. at 273, 97 S.Ct. at 2362.