Herb's Welding, Inc. v. Gray

470 U.S. 414, 105 S. Ct. 1421, 84 L. Ed. 2d 406, 1985 U.S. LEXIS 64, 1985 A.M.C. 1700, 53 U.S.L.W. 4275

• Court: Supreme Court of the United States
• Decided: March 18, 1985
• Docket: 83-728
• Status: Published

Opinions

Justice White

delivered the opinion of the Court.

The Longshoremen’s and Harbor Workers’ Compensation Act (LHWCA or Act), 44 Stat. 1424, as amended, 33 U. S. C. § 901 et seq., provides compensation for the death or disability of any person engaged in “maritime employment,” §902(3), if the disability or death results from an injury incurred upon the navigable waters of the United States or any adjoining pier or other area customarily used by an employer in loading, unloading, repairing, or building a vessel, § 903(a).¹ Thus, a worker claiming under the Act must satisfy both a “status” and a “situs” test. The court below held that respondent Robert Gray, a welder working on a fixed offshore oil-drilling platform in state territorial waters, was entitled to benefits under the Act. We reverse for the reason that Gray was not engaged in maritime employment.

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Respondent Gray worked for Herb s Welding, Inc., m the Bay Marchand oil and gas field off the Louisiana coast. Herb’s Welding provided welding services to the owners of drilling platforms. The field was located partly in Louisiana territorial waters, i. e., within three miles of the shore, and partly on the Outer Continental Shelf. Gray ate and slept on a platform situated in Louisiana waters. He spent roughly three-quarters of his working time on platforms in state waters and the rest on platforms on the Outer Continental Shelf. He worked exclusively as a welder, building and replacing pipelines and doing general maintenance work on the platforms.

On July 11, 1975, Gray was welding a gas flow line on a fixed platform² located in Louisiana waters. He burnt through the bottom of the line and an explosion occurred. Gray ran from the area, and in doing so hurt his knee. He sought benefits under the LHWCA for lost wages, disability, and medical expenses.³ When petitioner United States Fidelity & Guaranty Co., the workers’ compensation carrier for Herb’s Welding, denied LHWCA benefits, Gray filed a complaint with the Department of Labor. The Administrative Law Judge (ALJ), relying on our decision in Rodrigue v. Aetna Casualty & Surety Co., 395 U. S. 352 (1969), ruled that because Gray’s work was totally involved in the exploration for, and development and transmission of, oil and gas from submerged lands, it was not relevant to traditional maritime law and lacked any significant maritime connection. Gray therefore did not satisfy the LHWCA’s status requirement.

The Benefits Review Board reversed on other grounds. 12 BRBS 752 (1980). By a vote of 2-1, it concluded that irrespective of the nature of his employment, Gray could recover by virtue of a provision of the Outer Continental Shelf Lands Act, 67 Stat. 462, 43 U. S. C. § 1331 et seq. (Lands Act), that grants LHWCA benefits to offshore oil workers injured on the Outer Continental Shelf.⁴ Although Gray had been injured in state waters, the Board felt that his injury nonetheless could be said to have occurred, in the words of the statute, “as a result of” operations on the outer shelf. It considered his work “integrally related” to such operations. 12 BRBS, at 757. The dissenting Board member argued that the Lands Act provides LHWCA benefits only for injuries actually occurring in the geographic area of the outer shelf. Id., at 761-763.

The Board reaffirmed its position after the case was remanded to the ALJ for entry of judgment and calculation of benefits, and petitioners sought review in the Court of Appeals for the Fifth Circuit. That court affirmed, relying directly on the LHWCA rather than on the Lands Act. 703 F. 2d 176 (1983). With regard to the Act’s situs requirement, it noted that this Court had compared drilling platforms to wharves in Rodrigue v. Aetna Casualty & Surety Co., supra. Given that the 1972 Amendments to the LHWCA extended coverage to accidents occurring on wharves, it would be incongruous if they did not also reach accidents occurring on drilling platforms. Also, since workers injured on movable barges, on fixed platforms on the Outer Continental Shelf, or en route to fixed platforms, are all covered, there would be a “curious hole” in coverage if someone in Gray’s position was not. 703 F. 2d, at 177-178. As for Gray’s status, the Court of Appeals, differing with the ALJ, held that Gray’s work bore “a realistically significant relationship to traditional maritime activity involving navigation and commerce on navigable waters,” id., at 179-180, because it was an integral part of the offshore drilling process, which, the court had held in Pippen v. Shell Oil Co., 661 F. 2d 378 (1981), was itself maritime commerce. We granted certiorari. 465 U. S. 1098 (1984).

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A

When extractive operations first moved offshore, all claims for injuries on fixed platforms proceeded under state workers’ compensation schemes. See Hearings, at 396, 409, 411. See also Robertson 993. With the 1953 passage of the Lands Act, Congress extended LHWCA coverage to oil workers more than three miles offshore. 43 U. S. C. § 1333(b). Because until 1972 the LHWCA itself extended coverage only to accidents occurring on navigable waters, 33 U. S. C. § 903 (1970 ed.), and because stationary rigs were considered to be islands, Rodrigue v. Aetna Casualty & Surety Co., swpra, oil rig workers inside the 3-mile limit were left to recover under state schemes. See, e. g., Freeman v. Chevron Oil Co., 517 F. 2d 201 (CA5 1975); Gifford v. Aurand Mfg. Co., 207 So. 2d 160 (La. App. 1968). Any worker, inside or outside the 3-mile limit, who qualified as a seaman was not covered by the LHWCA, but could sue under the Jones Act, 46 U. S. C. §688, the Death on the High Seas Act, 46 U. S. C. §761 et seq., and the general maritime law. Hearings, at 411-414, 450-459, 487; see n. 1, supra. See also Wright, Jurisdiction in the Tidelands, 32 Tulane L. Rev. 175, 186 (1958).

So matters stood when Congress amended the LHWCA in 1972. What is known about the congressional intent behind that legislation has been amply described in our prior opinions. See, e. g., Director, OWCP v. Perini North River Associates, 459 U. S. 297 (1983); Sun Ship, Inc. v. Pennsylvania, 447 U. S. 715, 717-722 (1980); Northeast Marine Terminal Co. v. Caputo, 432 U. S. 249, 256-265 (1977). The most important of Congress’ concerns, for present purposes, was the desire to extend coverage to longshoremen, harbor-workers, and others who were injured while on piers, docks, and other areas customarily used to load and unload ships or to repair or build ships, rather than while actually afloat. Whereas prior to 1972 the Act reached only accidents occurring on navigable waters, the amended 33 U. S. C. §903 expressly extended coverage to “adjoining area[s].” At the same time, the amended definition of an “employee” limited coverage to employees engaged in “maritime employment.”

The Act, as amended, does not mention offshore drilling rigs or the workers thereon. The legislative history of the amendments is also silent, although early in the legislative process, a bill was introduced to extend the Act to all offshore oil workers. The bill died in Committee. While hardly dispositive, it is worth noting that the same Committee considered the 1972 Amendments to the LHWCA, and the possible extension of the Lands Act’s application of the LHWCA to drilling platforms, apparently without it ever occurring to anyone that the two might have been duplicative. The concurrent but independent reconsideration of both the Lands Act and the LHWCA, the congressional view that the amendments to the latter involved the “[extension of [coverage to [s]horeside [ajreas,” H. R. Rep. No 92-1441, p. 10 .(1972), and the absence of any mention of drilling platforms in the discussion of the LHWCA, combine to suggest that the 1972 Congress at least did not intentionally extend the LHWCA to workers such as Gray.⁵

B

The rationale of the Court of Appeals was that offshore drilling is maritime commerce and that anyone performing any task that is part and parcel of that activity is in maritime employment for LHWCA purposes. Since it is doubtful that an offshore driller will pay and maintain a worker on an offshore rig whose job is unnecessary to the venture, this approach would extend coverage to virtually everyone on the stationary platform. We think this construction of the Act is untenable.

The Act does not define the term “maritime employment,” but our cases and the legislative history of the amendments foreclose the Court of Appeals’ reading. Rodrigue involved two men killed while working on an offshore drilling rig on the Outer Continental Shelf. Their families brought third-party negligence suits in federal court, claiming recovery under both the Death on the High Seas Act and the state law of Louisiana. The District Court ruled that resort could not be had to state law and that the High Seas Act provided the exclusive remedy. The Court of Appeals for the Fifth Circuit affirmed, holding that the men had been engaged in maritime activity on the high seas and that maritime law was the exclusive source of relief. We reversed. First, the platforms involved were artificial islands and were to be treated as though they were federal enclaves in an upland State. Federal law was to govern accidents occurring on these islands; but, contrary to the Court of Appeals, we held that the Lands Act and borrowed state law, not the maritime law, constituted the controlling federal law. The platforms “were islands, albeit artificial ones, and the accidents had no more connection with the ordinary stuff of admiralty than do accidents on piers.”⁶ 395 U. S., at 360. Indeed, observing that the Court had previously “held that drilling platforms are not within admiralty jurisdiction,” we indicated that drilling platforms were not even suggestive of traditional maritime affairs. Id., at 360-361.

We also went on to examine the legislative history of the Lands Act and noted (1) that Congress was of the view that maritime law would not apply to fixed platforms unless a statute expressly so provided; and (2) that Congress had seriously considered applying maritime law to these platforms but had rejected that approach because it considered maritime law to be inapposite, a view that would be untenable if drilling from a fixed platform is a maritime operation. The history of the Lands Act at the very least forecloses the Court of Appeals’ holding that offshore drilling is a maritime activity and that any task essential thereto is maritime employment for LHWCA purposes.⁷

We cannot assume that Congress was unfamiliar with Rodrigue and the Lands Act when it referred to “maritime employment” in defining the term “employee” in 1972.⁸ It would have been a significant departure from prior understanding to use that phrase to reach stationary drilling rigs generally.

The Fifth Circuit’s expansive view of maritime employment is also inconsistent with our prior cases under the 1972 Amendments to the LHWCA. The expansion of the definition of navigable waters to include rather large shoreside areas necessitated an affirmative description of the particular employees working in those areas who would be covered. This was the function of the maritime employment requirement. But Congress did not seek to cover all those who breathe salt air. Its purpose was to cover those workers on the situs who are involved in the essential elements of loading and unloading; it is “clear that persons who are on the situs but not engaged in the overall process of loading or unloading vessels are not covered.” Northeast Marine Terminal Co. v. Caputo, 432 U. S., at 267. While “maritime employment” is not limited to the occupations specifically mentioned in §2(3),⁹ neither can it be read to eliminate any requirement of a connection with the loading or construction of ships. As we have said, the “maritime employment” requirement is “an occupational test that focuses on loading and unloading.” P. C. Pfeiffer Co. v. Ford, 444 U. S. 69, 80 (1979). The Amendments were not meant “to cover employees who are not engaged in loading, unloading, repairing, or building a vessel, just because they are injured in an area adjoining navigable waters used for such activity.” H. R. Rep. No. 92-1441, p. 11 (1972); S. Rep. No. 92-1125, p. 13 (1972). We have never read “maritime employment” to extend so far beyond those actually involved in moving cargo between ship and land transportation. Both Caputo and P. C. Pfeiffer Co. make this clear and lead us to the conclusion that Gray was not engaged in maritime employment for purposes of the LHWCA.¹⁰

Gray was a welder. His work had nothing to do with the loading or unloading process, nor is there any indication that he was even employed in the maintenance of equipment used in such tasks. Gray’s welding work was far removed from traditional LHWCA activities, notwithstanding the fact that he unloaded his own gear upon arriving at a platform by boat. Tr. of Oral Arg. 56. He built and maintained pipelines and the platforms themselves. There is nothing inherently maritime about those tasks. They are also performed on land, and their nature is not significantly altered by the marine environment,¹¹ particularly since exploration and development of the Continental Shelf are not themselves maritime commerce.

The dissent emphasizes that Gray was generally on or near the water and faced maritime hazards. Post, at 445-449. To the extent this is so, it is relevant to “situs,” not “status.” To hold that Gray was necessarily engaged in maritime employment because he was on a drilling platform would ignore Congress’ admonition that not everyone on a covered situs automatically satisfies the status test. See S. Rep. No. 92-1125, p. 13 (1972). The dissent considers “[t]he maritime nature of the occupation . . . apparent from examining its location in terms of the expanded situs coverage of the 1972 Amendments.” Post, at 446. We recognize that the nature of a particular job is defined in part by its location. But to classify Gray’s employment as maritime because he was on a covered situs, post, at 448, or in a “maritime environment,” post, at 450, would blur together requirements Congress intended to be distinct. We cannot thus read the status requirement out of the statute.¹²

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Respondents, and the dissenters, object that denying coverage to someone in Gray’s position will result in exactly the sort of inconsistent, checkered coverage that Congress sought to eliminate in 1972. In the words of the court below, it creates a “curious hole” in coverage, 703 F. 2d, at 178, because Gray would have been covered had he been injured on navigable waters or on the outer shelf.

We do not find the argument compelling. First, this submission goes far beyond Congress’ undoubted desire to treat equally all workers engaged in loading or unloading a ship, whether they were injured on the ship or on an adjoining pier or dock. The former were covered prior to 1972; the latter were not. Both are covered under the 1972 Amendments. Second, there will always be a boundary to coverage, and there will always be people who cross it during their employment. Nacirema Operating Co. v. Johnson, 396 U. S. 212, 223-224 (1969). If that phenomenon was enough to require coverage, the Act would have to reach much further than anyone argues that it does or should. Third, the inconsistent coverage here results primarily from the explicit geographic limitation to the Lands Act’s incorporation of the LHWCA. Gray would indeed have been covered for a significant portion of his work-time, but because of the Lands Act, not because he fell within the terms of the LHWCA.¹³ Congress’ desire to make LHWCA coverage uniform reveals little about the position of those for whom partial coverage results from a separate statute. This is especially true because that statute draws a clear geographical boundary that will predictably result in workers moving in and out of coverage.

As we have said before in this area, if Congress’ coverage decisions are mistaken as a matter of policy, it is for Congress to change them. We should not legislate for them. See Victory Carriers, Inc. v. Law, 404 U. S. 202, 216 (1971).

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Because Gray’s employment was not “maritime, he does not qualify for benefits under the LHWCA. We need not determine whether he satisfied the Act’s situs requirement. We express no opinion on his argument that he is covered by 43 U. S. C. § 1333(b). The judgment is reversed, and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion.

It is so ordered.

Section 2(3) of the Act, 86 Stat. 1251, 33 U. S. C. §902(3), provides: “The term ‘employee’ means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker, but such term does not include a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net.”

1 Section 3(a) of the Act, 33 U. S. C. § 903(a), provides in part:

“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, or building a vessel).”

2 Offshore oil rigs are of two general sorts: fixed and floating. Hearings on S. 2318 et al. before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 92d Cong., 2d Sess., 395-396, 480-486 (1972) (hereinafter Hearings). Floating structures have been treated as vessels by the lower courts. E. g., Producers Drilling Co. v. Gray, 361 F. 2d 432, 437 (CA5 1966). Workers on them, unlike workers on fixed platforms, see Rodrigue v. Aetna Casualty & Surety Co., 395 U. S. 352 (1969), enjoy the same remedies as workers on ships. If permanently attached to the vessel as crewmembers, they are regarded as seamen; if not, they are covered by the LHWCA because they are employed on navigable waters. See generally Robertson, Injuries to Marine Petroleum Workers: A Plea for Radical Simplification, 55 Texas L. Rev. 973, 982-992 (1977) (hereinafter Robertson). Gray is not in a position to take advantage of this line of eases. All, or almost all, the platforms in the field were fixed production platforms rather than floating rigs. Tr. of Oral Arg. in No. 77-LHCA-1308, before Benefits Review Board, p. 12. There has never been any dispute that Gray was injured on a fixed platform, nor any contention that he should be considered to have been on a vessel at the time of his injury. The only question, therefore, is whether Gray is limited to state workers’ compensation remedies or may also recover under the LHWCA.

3 Gray did recover under the Louisiana workers’ compensation scheme, receiving weekly benefits totalling $3,172.50 over two years as well as $1,696.14 for medical expenses. These payments were credited against his later LHWCA recovery. See App. to Pet. for Cert. A-45. State workers’ compensation and the LHWCA are not mutually exclusive remedies. Sun Ship, Inc. v. Pennsylvania, 447 U. S. 715 (1980).

4 The relevant section provides:

“With respect to disability or death of an employee resulting from any injury occurring as the result of operations conducted on the Outer Continental Shelf for the purpose of exploring for, developing, removing or transporting by pipeline the natural resources, or involving rights to the natural resources, of the subsoil and seabed of the outer Continental Shelf, compensation shall be payable under the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act.” 67 Stat. 463, as amended, 43 U. S. C. § 1333(b).

5 Petitioners view Congress’ failure to extend LHWCA coverage to all offshore oil workers as an explicit rejection of the position adopted by the court below. However, it appears that the bill, S. 1547, was designed not so much to increase the benefits of those not covered, as to limit the remedies of those workers who could qualify as seamen and so were not confined to the workers’ compensation scheme. See 117 Cong. Rec. 10490-10491 (1971) (statement of Sen. Tower); Hearings, at 396-403, 418-419, 602. The bill was opposed because it would limit recoveries by those who did better without LHWCA coverage. Id., at 589-590, 602. See generally Boudreaux v. American Workover, Inc., 680 F. 2d 1034, 1053 (CA5 1982).

6 The dissent finds “substantial irony” in this analogy in light of the 1972 LHWCA Amendments, which extended coverage landward to piers. Post, at 433-434. The irony dissipates in light of the fact that while Rodrigue did observe that offshore platforms are like piers, its holding was that they are islands. 395 U. S., at 360. It has not been suggested that workers on islands are covered by the amended LHWCA.

7 The dissent considers the Lands Act’s extension of the LHWCA to platforms on the Outer Continental Shelf an indication that work thereon is maritime employment. Post, at 437-438. However, as the dissent acknowledges, the LHWCA has been extended to several emphatically non-maritime locales. Undeterred, the dissent points out that Congress left regulation of offshore platforms to the Coast Guard. Yet one would not have expected otherwise, since geographically the platforms fall within the Coast Guard’s jurisdiction. No one contends that offshore platforms are not offshore.

8 We note also that the LHWCA covered an employee injured on navigable waters if his employer had at least one employee engaged in “maritime employment.” In contrast, in providing for LHWCA coverage of employees working in offshore oil fields, the Lands Act defined the term “employer” as “an employer any of whose employees are employed in such operations,” i. e., “exploring for, developing, removing, or transporting by pipeline the natural resources ... of the subsoil and seabed of the outer Continental Shelf_” 43 U. S. C. § 1333(b).

9 The LHWCA covers “any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker.” By the use of the term “including,” Congress indicated that the specifically mentioned occupations are not exclusive. See P. C. Pfeiffer Co. v. Ford, 444 U. S. 69, 77-78, n. 7 (1979); H. R. Rep. No. 92-1441, p. 11 (1972).

There have been occasional legislative efforts to limit the definition of “maritime employment” to enumerated tasks. For example, in 1980 Representative Erlenborn proposed deleting the “maritime employment” language and limiting coverage to “a longshoreman, ship repairman, ship builder, ship breaker, or harbor worker” who “was directly engaged in activities relating to such employment” when injured. H. R. 7610, 96th Cong., 2d Sess., §2(a) (1980). His bill specifically excluded “any person who, at the time of injury, was engaged in administration, clerical, custodial, delivery, maintenance, or repair of gear or equipment ... or any other employments not direct and integral parts of vessel loading, unloading, repairing, building, or breaking.” Ibid. The bill was referred to Committee, 126 Cong. Rec. 15417 (1980), and was never reported by the Committee.

10 This view of “maritime employment” does not preclude benefits for those whose injury would have been covered before 1972 because it occurred “on navigable waters.” Director, OWCP v. Perini North River Associates, 459 U. S. 297 (1983). No claim is made that Gray was injured “on navigable waters.” Indeed, it was agreed by all counsel at oral argument that prior to 1972 Gray would not have been covered, except arguably by operation of the Lands Act. See Tr. of Oral Arg. 11, 46, 52-54. See also 703 F. 2d, at 179.

In light of the dissent’s reliance on Perini, post, at 442-443, we point out that that decision was carefully limited to coverage of an employee “injured while performing his job upon actual navigable waters.” 459 U. S., at 299; see id,., at 305, 311-312, 315, 324. The Court’s rationale was that, first, any employee injured on navigable waters would have been covered prior to 1972, and, second, Congress did not intend to restrict coverage in adopting its “maritime employment” test. The holding was, “of course,” limited to workers covered prior to 1972, id., at 324, n. 34, a group to which Gray does not belong. The opinion says nothing about the contours of the status requirement as applied to a worker, like Gray, who was not injured on navigable waters. To hold that enactment of the status requirement did not constrict prior coverage is wholly different from refusing to view that requirement as a meaningful limit on the Act’s extended coverage.

11 The general counsel to the International Association of Drilling Contractors stated to the Senate Subcommittee in 1972:

“Irrespective of design, bottom resting, semi-submersible, or full floating, these structures [drilling platforms] perform only as a base from which the drilling industry conducts its operations. The operations, once the structure is in place, are no different from that which takes place on dry land. All of the equipment and methods utilized in the drilling operations are identical to our land based operations. The exposure to employee injuries are the same. Accident frequency rates and severity of injury are no greater, in fact less, because of crew selection and confinement to an area permits concentrated training and safety programs.” Hearings, at 410-411.

12 Throughout these proceedings, Gray has argued that he need not satisfy the status/situs test because he falls within the Lands Act’s incorporation of LHWCA benefits. See 43 U. S. C. § 1333(b). The Benefits Review Board so held. He repeats that argument in this Court, as he is free to do. United States v. New York Telephone Co., 434 U. S. 159, 166, n. 8 (1977). However, it has not been fully briefed and argued here and was not discussed by the Court of Appeals. We therefore decline to consider it. See Dandridge v. Williams, 397 U. S. 471, 475-476, n. 6 (1970). It is open to the Court of Appeals on remand.

13 Gray traveled between platforms by boat and might have been covered, before or after 1972, had he been injured while in transit. See Director, OWCP v. Perini North River Associates, 459 U. S., at 324. But see id., at 324, n. 34 (“We express no opinion whether such coverage extends to a worker injured while transiently or fortuitously upon actual navigable waters”). Even if he would have been covered for some small fraction of his time independent of the Lands Act, however, he is a far cry from the paradigmatic longshoreman who walked in and out of coverage during his workday and spent substantial amounts of his time “on navigable waters.” Any coverage attributable to the LHWCA itself was de minimis. We also note in passing a substantial difference between a worker performing a set of tasks requiring him to be both on and off navigable waters, and a worker whose job is entirely land-based but who takes a boat to work.