COASTAL PRODUCTION SERVICES INC. v. Hudson

Co., CONCLUSION Ins. Am. Bankers Co. v. state Ins. Cir.1989).3 (4th Garcia F.2d above, the set forth For the reasons any interest in lawfully assign” “could court is judgment of the district id. she had none. See Annuity reason, Funding’s se- Settlement For this AFFIRMED. right to receive curity interest in Garcia’s the terms of her under payments periodic with the United agreement

settlement compelling no basis provides

States Annuity pay- to direct the

TransAmerica Funding. The dis-

ments to Settlement refusing thus correct

trict court was

do so.4 Judgment III. Default COASTAL PRODUCTION SERVICES INC.; Corporation; ACE Forest Oil Funding attempts also Settlement Company, Peti- denial of its American Insurance district court’s appeal tioners, judgment pendent on its motion for default Garcia, arguing against law claims state abused its discre that “the District Court the motion for default denying tion in HUDSON; Director, Terry Office of W. dismissing [Settlement

judgment Compensation Programs, U.S. Worker’s Garcia.” The against claims Fundingj’s Labor, Department Respondents. however, court, dismissed Settle district No. 06-60766. state law claims Funding’s pendent ment Fund only after Settlement against Garcia Appeals, United States Court of why to show cause ing ignored an order Fifth Circuit. Hav not be dismissed. the claims should object district court’s ing failed to Jan. claims, Fund Settlement dismissal of that decision ing complain cannot about

before this court. See Tex. Commercial Inc., Energy, 413 F.3d

Energy v. TXU Cir.2005) (5th (holding arguments the district court are

not raised before

waived on appeal). agreement, district court al-

3. The which is not be- district court. The settlement us, us, Garcia, annuity, which is before paid despite fore lowed the funds to be Thus, express are two distinct contracts. appeared party the fact that Garcia never as a opinion question of Settle- no on the whether case, Funding’s in the and denied Settlement Funding United ment a claim in the has bond, request supersedeas for a which would security to enforce its States Court of Claims preserved have the funds while Settlement payments periodic interest due Garcia in the Funding proceeded appeal. reg- with its agreement with the under her settlement istry gone, funds are now and as Settlement United States. concedes, Funding Set- issue whether Funding may tlement have been entitled to question Our decision does not reach those is moot. funds Funding was entitled to whether Settlement paid registry the funds into the TransAmerica

son”) under is entitled to benefits Compen- Longshore and Harbor Workers’ (“LHWCA” “Act”), Act 33 U.S.C. sation seq. Perceiving § 901 et no error in the the ALJ and the BRB determinations of employee a maritime who that Hudson was situs, deny on a maritime petition for review. I. AND PROCEEDINGS FACTS began working January Hudson operator for junior as a contract Saturday assigned to the Coastal. He was (ar- Bay, Plaque- facility Island in Barataría Zaunbrecher Leonard Christopher Parish, Saturday LA, Louisiana.1 The Foret, Lafayette, for mines & Briney gued), (1) large platform comprises Island field Petitioners. (the “Saturday living quarters with Island (argued), Law Joseph Arthur Brewster (2) fourteen satellite wells that platform”), Brewster, Metairie, LA, office of Arthur J. platform by to the horizon- are connected Terry for Hudson. W. (3) a sunken oil piping, tal subsurface (argued), Mark Am- Boyle Matthew W. Cherokee”) (“the that is ad- storage barge Shire, Reinhalter, Richard brose Donald jacent to The satellite wells platform. Labor, Seid, Dept, of Thom- Anthony U.S. (a oil, gas, their mixture of pipe Clerk, Jr., Benefits Re- Shepherd, as O. saltwater) Saturday plat- Island DC, Du- Board, Washington, David view form, components separat- where the are Labor, hon, Employment Dept, of U.S. required separated amount of the ed. Orleans, LA, Admin., for New Standards gas throughout is re-distributed the oil Director, Compensation Office of Worker’s gas-lift for and the remain- purposes, field Programs. piped der is to a Southern Natural Gas pipeline separated for resale. The saltwa- injected disposal ter is into wells. The separated piped holding oil is first into platform, periodically tanks on the then is DeMOSS, WIENER, Before larger storage transferred to tanks on the PRADO, Judges. Circuit storage Cherokee. When the Cherokee’s full, into WIENER, tanks are the oil is transferred Judge: Circuit barges delivery for transport customers’ Production Services Petitioners Coastal All from the produced onshore. oil Satur- (“Coastal”), Corporation, Oil Inc. Forest ultimate- day Island field’s satellite wells is Company and ACE American Insurance ly shipped by transport barge. ashore “Petitioners”) (collectively, seek our review job of the Benefits Review Board Hudson’s entailed several different of an order (1) (“BRB”) affirming the determination of duties. He checked the satellite wells (“ALJ”) Judge daily by “jo-boat” responsible and was for the Administrative Law (2) (“Hud- upkeep, serviced Respondent Terry Hudson their maintenance Corpora- 1. The is owned Forest Oil tion. Saturday plat- age, arguing pursuant maintained the Island to Herb’s Weld- (3)

form, plat- oil from the transferred ing, Gray,3 Inc. v. Thibodeaux v. Grasso holding tanks to the tanks form’s Inc,,4 Management Production and Mung- three to approximately on the Cherokee USA, Inc.,5 uia v. Saturday Chevron (4) week, daily per performed times four qualify Island did not aas mari- inspections and maintenance Chero- time location. Petitioners also contended leaks, kee, including inspecting its lines qualify that Hudson did not aas maritime checking gauges, maintaining its its employee employment because his activi- (5) engines, assisted ties furthered the non-maritime purpose of transport oil from the Cherokee into the moreover, production; oil they argued that oil. barges they pick up when came to any job-related per- maritime activities in performing Hudson testified that this by formed Hudson were minimal and not a duty, place last he would a walk-board regular part of his duties. arriving between the Cherokee and the transport barge, up pipelines hook The ALJ ruled that Hudson satisfied oil, to transfer disconnect and recon- hoses requirements both the situs and status of pipelines nect the hoses and as the Chero- situs, respect LHWCA. With to holding emptied, tanks and monitor kee’s ALJ concluded that the Cherokee’s dock- Hudson, According the tank levels. to he ing facility was used to load oil into —which all, if part many, took not of the oil transport barges qualified as an “other — that he transfers occurred while was work- adjoining customarily by an em- ing. vessel, ployer loading” and that the 11, 2001, August On Hudson was Saturday plat- Cherokee and the Island disposal pump when saltwater component parts single form were of a working exploded.2 he was That distinguished area. The ALJ the Satur- pump Saturday was located on the Island day platform plat- Island from the fixed approximately platform, which is located Thibodeaux, Welding, forms Herb’s 30 to 40 feet from the and con- Cherokee Munguia on the basis of function: The permanent walkway nected to it and Saturday platform and the Chero- Island pipes. transfer oil comprised single facility, kee the mari- purpose time of which is the of Hudson filed a claim for benefits under oil) cargo (already the LHWCA. Petitioners contested cover- extracted onto vessels.6 1993) (5th injects (discussing pump 2. The saltwater water 5. 999 F.2d Cir. into dis- posal prevent purpose platform helps wells and to water from that the of an oil is to drill entering gas, platform. for oil and which is a non-maritime activ- oil tanks on ity). There is no direct line from the saltwater pump to the Cherokee. 6. The also served at least one non- i.e., gas purpose, piping

3. 470 U.S. natural shore, (1985) (holding arguably pur- L.Ed.2d 406 that a welder non-maritime general pose responsible processing for maintenance on a mixture received from Processing probably fixed oil state territorial waters is the satellite wells. sense, engaged employment). not in maritime "production” in the technical Production, see Dictionary of Petroleum ("[T]he (2001) (5th Cir.2004) phase petroleum (holding 4. 370 F.3d Terms industry bringing the well drilling platform that deals with that a fixed oil neither separating "adjoining fluids to the surface and them and "pier” nor an area” because the storing, preparing platform's gas gauging, and otherwise purpose sole is to further activity). product delivery.”), probably a non- production, a for and is oil non-maritime status, rationally computed the determined that the ALJ the ALJ regard With requirements spent met in the that Hudson amount of time Hudson employment because land-based performance of these activities. loading of oil and main- assisting in the his loading equipment was essen-

taining the II. ANALYSIS Addi- cargo loading process. tial to the concluded Hudson’s tionally, the ALJ Review Standard of were routine and recur- maritime activities Our review of the BRB’s decision momentary, or inciden- ring, episodic, scope “considering limited errors work. to his non-maritime tal law, making certain that the BRB the BRB affirmed ALJ’s appeal, On statutory adhered to its standard review and status. The holding as to both situs determinations, is, of factual whether reasoning BRB the ALJ’s adopted findings supported the ALJ’s of fact are was a covered Saturday Island substantial evidence and consistent [are] (1) by navi- it is surrounded with the law.”7 “Substantial evidence is (2) a gable water and functions as than a that relevant evidence—more scin- (oil) The loading cargo for onto vessels. preponderance tilla but than a less —that BRB the Cherokee and determined person accept would cause a reasonable Saturday platform Island could not be finding.”8 the fact We review BRB’s they separate classified as areas because legal Although per- conclusions de novo.9 to each other permanently are connected haps quizzical light somewhat system walkway. and a through pipes a typical understanding of the difference be- The BRB also concluded Hudson’s findings tween conclusions of law and transport into the work oil fact, in Texports we decided Stevedore Co. maintaining pipes barges and v. Winchester that the determination of equipment necessary loading pro- by of fact.10 employment cess constituted maritime the ALJ is one Status activity frequently drilling platform at did because it occurs issue as a not use peculiar production. appear onshore and has no connection to the word It thus does not possible a maritime activities. We flesh out platform that mere of a classification as in- counterargument in note 24 “production” volved in in the technical sense infra. situs, finding noting Welding forecloses of maritime least that Herb’s It is worth event, any "production” not as a matter of stare decisis. In appear to have used Thibodeaux (i.e., drilling accompa- we and extraction vertical discuss notes 14-42 and to mean infra text, product), though nying Saturday platform even Island is removal of the definition of seems to also involved in the tra- technical vessels—a processing, separation, activity include and some ditional maritime need not —so storage. Welding, See Herb’s 470 U.S. at 416- reach this issue. 23, 425, (repeatedly describing 105 S.Ct. 1421 Inc., 773, Dispatch, 7. Miller v. Cent. 673 F.2d platform drilling platform, as a but once (5th 1982). 778 Cir. produc- describing the at issue as a Thibodeaux, 490, platform); 370 F.3d at Dir., Inc., Ingalls Shipbuilding, 492, OWCPv. 125 (noting drilling gas 494 for oil 303, (5th 1997). F.3d 305 Cir. activity, referring not a maritime but also production platform). as a 338, 809-10, Contracting Pearley, Munguia, 9. B & D 548 F.3d appears F.2d at also (5th Cir.2008). 339-40 platforms drilling have focused involved progenitor of all extraction. The of these cases, 504, (5th Cir.1980) (en banc) Rodrigue Casualty Surety v. Aetna & 10. 632 F.2d Co., 352, 352, 360-61, cases, ("In 395 U.S. 89 S.Ct. LHWA this determination of (1969), ‘adjoining 23 L.Ed.2d 360 described the an area’ is han- whether site is fact, a. Situs findings also are determinations legal an erroneous

unless made under 3(a) of the Section LHWCA states standard.11 eligible “only claimant is for benefits if the disability Analysis injury or death results from an occurring upon waters of the eligible a claimant to be for For (including any adjoining United States (1) his under the LHWCA benefits (2) wharf, dock, terminal, situs, dry pier, building a maritime his must occur on employe a maritime must be that of status or other adjoining way, railway, marine requirements Both must be met e.12 customarily by employer claimant to receive benefits under the loading, unloading, repairing, dismantling, Act.13 substantially by by dispute, the Board issue are not died the ALJ and reviewed cover guided age question .... ALJ in his determi- becomes of law which we The factual by stating (citing the ab- nation the section that in determine de novo.” Potomac Elec. Dir., OWCP, contrary, evidence to the sence of substantial Power Co. v. 449 U.S. 278- coverage presumed. If the situs LHWA 79 & n. 66 L.Ed.2d 446 by (1980) Dir., supported evi- determination is substantial and Pittman Mech. Contractors v. whole, OWCP, (4th 1994))). as a it will not be dence on record 35 F.3d Cir. (emphases added and set aside this court.” cases on which the Fourth Circuit re- omitted)). The references to internal citations statutory lied deal with the deference owed to and a factual determi- the situs determination constructions of the LHWCA the BRB. In make clear that the Winchester court nation particular, Electricity Potomac Power Co. v. speaking about Director, OWCP, 18, of the ultimate conclusion 449 U.S. at 278 n. 101 situs, may legal though that seem like a 509, even proposition S.Ct. stands for the that no conclusion. statutory owed to deference is BRB construc- policymaking a tions because BRB is not doubt, we matter not free from as This is agency. by Supreme This decision Court have said that review the determination "[w]e not, however, in direct conflict with our coverage by an ALJ or the of LHWCA either of the situs determination as one classification question Belle BRB as a of law.” Boomtown fact, simply law. The concluded of Court Bazor, 300, (5th F.3d 302 Cir. Casino 313 interpretations statutory Indus., BRB’s 2002) (citing Hullinghorst Inc. v. Car are owed no LHWCA deference. roll, 750, (5th 1981) 650 F.2d 753 Cir. Unit A slate, writing Were we on a clean it is (“[W]e reject [the] at the outset contention by how the ultimate conclusion an unclear statutory that the Board exceeded its authori ALJ the BRB about whether a locus satis- ty reversing the determination of the ALJ requirement of the LHWCAis a fies situs employee that Carroll was not a covered with fact, question particularly the facts when meaning in the of the Act. Under the uncon underlying the situs determination are not facts, tested the ALJ's determination in this by dispute. We bound Win- are nevertheless regard finding of fact nor a was neither chester, en de- which was a unanimous banc the evidence. factual inference drawn from court, precise by termination of this issue this law.”)). It was a conclusion of being contrary intervening precedent there no appears split a circuit this There to be Supreme by exact either the Winchester, on this issue question. Compare 632 F.2d at Court or this court en banc. 515, Dredge, and Brooker v. Durocher Dock & (11th Cir.1998) (“Al- 133 F.3d 1392 Boatel, Delamore, 11. Inc. v. 379 F.2d though interpre- this court reviews the ALJ’s (5th 1967). Cir. novo, de it tation of the LHWCA will not set fact, findings including its aside the ALJ's (2006). 902(3), 903(a) §§ 12. See 33 U.S.C. determination, evidence if substantial Winchester, (citing supports them.” 632 F.2d Brickhouse, 515)), Welding, Gray, 470 Corp. v. 13. Herb’s Inc. v. U.S. at with Jonathan 415-16, (4th Cir.1998) ("Because 84 L.Ed.2d 142 F.3d relating the facts to the resolution of the situs outset, vessel).”14 the rele- Saturday At the we must define As the building it cus- vant area and then ask whether does not meet defini- Island loading a vessel or other tomarily used for specifi- the kinds of facilities any tion of 3(a) §in maritime activities listed statute, qualify it must in the cally listed gen- are levels of LHWCA. There several area” to be consid- adjoining as an “other could, matter, erality that as theoretical situs. a maritime ered to define the area. We could be used (1) the exact locus of the consider adjoining as an “other qualify To (2) (the Saturday Is- pump), saltwater prox area,” be located the situs must (3) Saturday fa- platform, land Island (i.e., possess waters imity navigable (i.e., platform plus the cility Chero- nexus) and have a geographical (4) kee), Saturday Island field the entire here, “customarily an em nexus— (i.e., wells, gas transporta- the satellite ... a vessel.”15 ployer in and the Chero- system, platform, exclusively or even not be used situs need (5) kee), Bay, Barataría and so the whole long purposes, for maritime primarily option is foreclosed our on. The first customarily significant used for as it is option The last opinion Winchester:18 disputes activity.16 party No greater generality are and levels of even adjoins Saturday Island that the absurd, obviously repudiated such waters, geographic so the nexus extremes Winchester as well.19 We as- satisfied; only prong of the test deciding sume without that the entire Sat- it is whether is within open question urday field is also too extreme a Island left, are there- generality.20 a maritime nexus.17 level We area with 903(a) added). (1969). Visually, (emphasis it § L.Ed.2d 360 is best to 14. 33 U.S.C. (the facility conceive of Winchester, Id..; 632 F.2d 514-15. see Cherokee) as onshore because we treat the Saturday helps Island as "land.” This Winchester, 632 F.2d at 514-15. facility "adjoins” to understand how the navi- gable waters. "adjoining” "lying Although connotes next 17. "beside,” in Winchester to” or we observed at 18. 632 F.2d 516. "adjoining” be defined as can also "neighboring.” F.2d at 514. Additional- 632 ("Nevertheless, 19. Id. at 514 outer limits of "adjoining” ly, defines Dictionary Webster's the maritime area will not be extended to point "touching bounding at or on or some coverage We would not extend extremes. space.” some near in line: Webster’s Third Houston.”). this case to downtown 27 Dictionary New International Adopting of the word the broad definition Saturday "adjoining,” deciding may we conclude that the 20. We without it assume this adjoins navigable pick generality waters be- Island because to this level of re direct contact options cause is it located in and has duces to the choice between two and area,” interpretation Winchester, with waters. This three. If the "overall in Winchester conforms with our conclusion at F.2d includes the satellite wells and [adjoining] instill in the term its "[t]o gas transportation system, end would meaning spirit keeping with the broader is in up might with what be termed “mixed cov congressional purposes Act].” [of of erage apportionment princi situs” under reasons, the 632 F.2d at 514. For these same ple Georgia found cases like Bianco v. adjoins navigable too waters. Cherokee (11th Cir.2002). Corp., 304 F.3d 1053 Pacific fact, Co., Maraney platform and the Cherokee are Cases like Coal Consolidation (2003) navigable waters. We nevertheless treat 37 BRBS 97 and Jones v. Aluminum America, (2001), platforms pur- fixed as islands for almost all Co. 35 BRBS 37 deal with of See, Rodrigue poses. e.g., clearly v. Aetna Cas. & Sur. situations in which there are covered Co., 352, 360, clearly parts U.S. non-covered of an overall “customarily of the is that area fore, options. and third LHWCA with the second of the on the correctness employer loading, unloading, This case turns plat- that both the determination ALJ’s repairing, building vessel.”22 Yet the of the part are form and Cherokee Saturday platform, except Island for its customarily area” that same “overall storage fully processed produced of oil (oil). loading cargo used for (which arguably part process of the of vessel23), loading customarily is itself not a covered area do not define We loading used for oil onto the customers’ according to fence purposes for LHWCA transport barges, pro- which on-load the they designations local lines and oil from the for transport cessed Cherokee compensa subject manipulation to “are Instead, to shore. least without Instead, Winchester ap purposes.”21 tanks, temporary storage Saturday Is- merged questions— have the two pears thought land is better of as a of the area and connection definition processing plant functionally connected to activities —into a enumerated oil and not to the junctional The “area” inquiry. simple from vessels.24 Win- If adjoins navigable purposes unloading cargo waters for of gas given set-up loading system. satellite wells and the trans- vessel of the area. The Thibodeaux, are, clearly portation system presumptions wrong, after If those are it is unclear But, area. why storage not covered sections of the overall it would be absurd to treat such injury did not occur at either of Hudson's part loading process. We facilities as Accordingly, places. wells, we would still those note that the also satellite inasmuch as only the Cherokee or have to answer whether they unarguably are involved in extrac- platform plus the Cherokee are covered (and tion/production only processing not in parts of the overall area. storage), loading purpose do serve a not (unlike transfer), storage are there- Winchester, 632 F.2d at 515. part loading process, even fore though they may necessary be 903(a). § 22. 33 U.S.C. the “but for” sense. storage fully processed We note that oil 24.Although we decision on do not base our storage quite can in the tanks on the it, arguable facility integral it is at least that a plausibly to be be understood cargo into suit- to the conversion of material loading process. tanks hold fin- transport, plat- such as the able for maritime waters; they adjoin navigable ished separators, form’s has a role in directly permanently connected are would, course, possible to vessel. It be pipes walkway point at which and a oil, gas, ship the mixture and water on (which actually cargo also vessel receives the it, processing without first but vessels adjoins navigable and no more than waters is (the likely expensive prove to be more would and, away); operation 30 to 40 feet of the per shipment yield product of marketable necessary storage tanks is for a vessel to be dramatically decrease because each would loaded, given cargo storage configuration the saltwater) shipment useless would include Saturday facility: flows of the Island If no oil deprive producer the of an and would also platform's storage from the tanks to the Cher- (in- gas-lifting the field economical method of okee, no oil is available for a vessel to load. stead, transported gas out to would have to be quite distinguishable the dissent’s This is from onshore). processing We field after seri- the storage produc- example of facilities at most ously particular process used doubt whether a storage (presum- plants. Those facilities loading of vessels to facilitate the economical geographical ably) lack a nexus to loading necessary a vessel before it must be to waters, (presumably) directly per- are not and may part loading process terminal, be considered of the manently shipping connected to the (that to absurd results conclusion would lead (presumably) operation the fa- and of cases), wholly with our but the only way get products inconsistent to cilities is not the production/process- conceptual line between shipping terminal and then loaded onto a (30 feet), it reading by a strict to 40 and described Chester countenanced “area,” employer operations part or if we were to address this issue its manual as novo, inquiry here might “gathering processing” de we end of the same and Further, Hudson was not facility platform.26 and conclude that as the on an situs. As neither functionally integral LHWCA-covered to the however, case, continue. we is and loading unloading Cherokee’s mission configuration Saturday gear room located involved Winchester Island field used the as the con- gate from the of the nearest five blocks point transport. plat- solidation for If the gear “spreader room contained dock. The tomorrow, form were to sink the satellite motors, bars, slings, tow pallets, wire cable oil, produee/extract wells could still forklifts, by “used etc.” that were steve- water, mixture, gas but that mixture loading operation.”25 perform dores to (whether processed separated) or not injury in the area of the We held that an could not be loaded onto vessels. The fact gear occurred on a covered situs. room Saturday that the Island field could have facts teaches that holding Our on those differently, up perhaps pipe- been set with dock simply because a vessel cannot (as gas), lines was done for or with vessels at a loading unloading particular raw, loading the unseparated product at the area not a does not mean well, each way, satellite or some other covered It further that if a situs. teaches actually no answer to the fact that as set particular area is associated with items up, platform’s “gathering” function part loading process, used as plays integral loading role directly area need not itself be involved vessels, if “processing” even its function physically or unloading vessel such, might not. As the entire or un- point connected “customarily an employer in load- loading. ... ing a vessel.” Vessels were not loaded unloaded This conclusion is buttressed the lib- directly Saturday plat- from the Island form, Rather, eral construction we are instructed to em- cargo. at least not with (oil) ploy coverage,27 vessels from favor of were loaded with LHWCA Cherokee, directly per- argument which was the fact that whatever there manently platform (by might platform’s connected to the be about the role load- pipes walkway), proximity ing, and a in close unquestionably the Cherokee is in- ing hydrocarbons loading/unloading by walkways.”). Although nected we shied blurry away employers’ descriptions vessel is somewhat in the case of the from of the rel- Winchester, separation facility Saturday prevent on the evant area in Island we did so to platform. employers manipulating As do not need resolve this boundaries in today, we coverage issue do not. unilateral effort to determine the employer area. When an has defined an area 25. 632 F.2d at 507 n. 1. of a also used for however, unloading, that concern is less Corporation, Facility Operations 26. Forest Oil pressing taking and we have no trouble ac- Saturday Plaquemines Manual: Field: Island event, description. any count of that Win- Parish, Louisiana, (1998) (emphasis at 2 add- only employ- chester said that "fencelines and ed) ("The gathering processing central and designations ers’ will not ... end the factual facility Saturday for the Island Field consists inquiry.” added). (emphasis 632 F.2d at 515 (Chero- barge storage of one sunken used for kee), Co., barge, barge, one raised Caputo, S-91 that is 27. Ne. Marine Terminal Inc. v. 249, 268, processing used for and and ten 432 U.S. 53 L.Ed.2d wooden-pile structures which are intercon- covered, “adjoining area” would not be nor Covering the loading vessels. volved Cherokee, although clearly pavement would be between as well as area, by within the had not been walked on daily basis in moved on a Hudson loading unloading stevedores and a vessel. loading furtherance of the unquestionable (for inspect job example, duties of his defining a Winchester countenanced day), “will reduce the each the Cherokee (a notion) general geographic its in and out of employees walking of number general function. If a area is customari- congressional and further the coverage”28 ly necessarily exclusively predomi- —not eliminating “shifting and fortui- policy of nantly loading unloading for —used coverage.”29 tous vessels, it a parts all within are maritime it fair situs. To determine whether directed us to consider also Winchester a a particular part facility call “within” loading “general area” and the “overall “general loading area” used for specific The fact that “the lo- process.”30 unloading, prox- we must look both its customarily used cus imity and its interconnectedness to the though even purposes for location, unloading along with not fatal to a area is so used” is general Simply its function.32 because Winchester These finding of maritime situs.31 instruc- coverage non-proximate, extended to a role for clearly contemplate some tions non-interconnected location the basis of (i.e., and intercon- geography proximity proximity function does not mean that nectedness), from function. independent analysis. in our play connection no role acknowledges this implicitly The dissent geo- repeats it six times when support proposition Additional for this separation of the Cherokee graphical Marine comes from Northeast Terminal If to the nexus determination. Co., There, relevant Supreme Caputo. Inc. in- for a functional only stood Winchester with “two ‘fin- Court addressed ”33 that a area is not quiry, particular the fact on 21st ger-piers.’ pier, One located dis- Street, for maritime activities would be ships pur- used “was used to berth for But, require unloading does not them.”34 positive. poses Winchester Street, “generally” every square pier, inch of an area Another on 19th and therefore unloading presumably away, to be so some distance “was used for did, game only stripping stuffing con- If it we would have used. storage.”35 The Court held in an otherwise tainers and hopscotch: The bathrooms allows, Winchester, walkway and the have a 28. 632 F.2d at 516. steps, employee to move be- with few Caputo, 97 S.Ct. 2348. 29. 432 U.S. them, shifting bringing about tween concerns coverage play. satel- and fortuitous into Winchester, 30. 632 F.2d at 515-16. have no such connection to the lite wells 31. Id. at 516. they Ac- platform; must be accessed boat. connected, cordingly, although physically questions how we can con- 32. The dissent they connected in the relevant man- are not clude that the Cherokee ner. situs, single but also conclude constitute platform, the satellite wells and the 33. 432 U.S. at 97 S.Ct. 2348. them, pipes connecting which have are not. instance, we note that even if the In the first Id. platform, with the wells are interconnected Second, they proximate are not to it. satellite wells are not interconnected Id. way. The Cherokee in the relevant “finger- proximity 19th Street close to the docks and ... not that an on the occurred on a covered pier” nevertheless separate and distinct More [a] area[ ].”39 facility entire terminal “[t]he situs because point, the BRB said: adjoined water and one of its two facility at Although the which claimants clearly for finger-piers was used herein work a manufacturing opera- is obviously This is unloading and vessels.”36 tion, building they were analogy a to the Cherokee and the close directly not involved with the dissent, we cannot platform. Unlike vessels, unloading of of light Caputo conclude in of that there is employer’s business sending involves than a scintilla of evidence that not more receiving goods by barges ves- determination supports the situs distinctly activity. sels—a and BRB. ALJ Moreover, geography ... of the en- case, Like the BRB itself in this we also building question tire v. see the BRB’s decision Gavranovic adjacent they] such that are to navi- [are Mining support Mobil & Minerals37 as gable water and to the docks where There, this the BRB conclud- proposition. barges are loaded and unloaded.40 requirement ed that the situs was satisfied Again emphasizing geography plays manufacturing facility where role, some the BRB “In light said: the accident “used to store occurred was employer’s facility location of and because product finished and to load rail cars and (the significant activity ... ... though Building trucks.”38 Even occurs [there], injury) affirm ... inju- situs of the was not used to load we that claimants’ (as “in requires), vessels the statute it was ries ... occurred on a covered situs.”41 added). (emphasis clearly activity. 36. Id. at 97 S.Ct. 2348 non-maritime 26 BRBS at (at- Stroup, shipping bay *3. In at issue (1999). 37. 33 BRBS *1 Melerine) tached to the structure at issue in mile from the [of a] docks and "1/4 1/2 38. Id. at *3. Further, Mississippi bay River. the 'A' separated by public from the River road and 39. *4. Id. at building a levee and is located in a which also mill, shop, houses the melt the roll and anoth- added). (emphasis Id. at *5 shipping bay.” er 1998 WL at *1. Dickerson, accident, the site added). (emphasis Although prece- Id. phosphoric plant[, nothing acid grapple had] do dent with which we forced to are matter, activity purpose with maritime formal its sole also note the BRB's deci- liquid Mississippi Phosphates [was] sions in Dickerson v. convert the sulfuric acid into (2003), Corp., phosphoric 37 BRBS 58 Jones v. Aluminum acid and store it. It has no America, (2001), Stroup Co. by way conveyor 35 BRBS 37 connection to the docks of (BRB, Bayou Corp., Steel 1998 WL 461480 belt geographically or other means. It is 2, 1998), July and Melerine v. Harbor Con- functionally separate from the docks. Co., struction 26 BRBS 97 In Mele- added) (internal (emphasis 37 BRBS at *5 rine, the BRB noted that the dock was omitted); Maraney citations see also v. Con Co., (2003) ("In sol. Coal 37 BRBS at separate *6 the mill. distinct from The case, injury] the instant location one-quarter [the steel mill is located mile from area, functionally geographically separate separated the dock a road and a levee, employer’s unloading/loading transported by operations.” and materials are added)). (emphasis simply truck from the dock. Jones [ALJ] mill to the recited the conveyors unsurprising proposition plant found that no or other that "a apparatus linked the engaged two areas .... The manufactures aluminum oxide is not solely manufacturing [loading, mill is used unloading, repairing building for the [,] products steel per- vessels].” 35 BRBS *6. Jones is unloading (say, a food cart for and hand, might have Hudson one On the Cherokee, dock, part the which a as of the injured while on on a scrubber been theOn oil), as a covered situs. clearly qualifies unload the this hose to connected in- hand, have been might Hudson other hopscotching coverage. not create should wells, working on the satellite jured while If, urge, as we were surgically Petitioners “adjoining area[s]” as qualify do not from the separate platform the Chero- close func- the Given under Thibodeaux. classify one as maritime and the kee—and between relationship geographic tional and other as non-maritime —we would ex- do Cherokee) (the clearly to elimi- actly Congress sought that which clearly maritime situs less and somewhat amendments the nate with the 1972 (the factors we have platform), several Saturday Act.42 to slice the We decline affirmance on the facts support identified finely that and that Island cause this of case. situation. First, the deference to we owe ALJ/ say that the ALJ did not We cannot determination, they con- BRB’s situs per- have substantial evidence would a maritime was platform cluded that the to conclude that person mit reasonable Second, con- LHWCA is to be the situs. platform the are in the Cherokee liberally in favor of compensation. strued customarily for general same used Third, deliberately selected Winchester say Neither can we in the loading vessels. of situs and liberal construction very broad functionally the platform alternative (a gear to store located blocks room used actually part pro- not of the loading gate to a terminal away from nearest (even port) though argu- it also served the property line of the cess and outside by in- purpose to do the same ably and counseled us non-maritime loading process” and the “overall specting separation). Fourth, we effectuate area.” “general only “customarily” be The area need shifting and policy to avoid congressional exclusively pre- loading, for not used the dis- coverage (although, as fortuitous why dominantly presence so. This is out, always be this cannot points sent platform from the to shore gas pipelines a line because there must be avoided nature of the not the maritime does vitiate somewhere) by finding platform, that the non- Piping gas to shore is a platform. functionally Cherokee adjoining but, activity, again, a mari- loading purpose, related to its exclusively pre- or even need not be used whole, as a these time situs. Considered quali- activities to dominantly maritime for tip on the scale bal- additional thumbs fact, In oil is the a maritime situs. fy as affirming ance favor ALJ/BRB’s primary product of platform qualifies determination for which the shipped barge, one Merely situs. because

as a maritime wells) (unlike necessary is a the satellite adjoining navi- portion of an area discrete in the loading process field part of the waters, general load- gable So, although it need not be area, configured. directly ing unloading using ambiguity a con- in Jones reach support conclu- haps the best dissent’s sion, geographical- trary case. it is not clear how result in this manufacturing ly distinct Co., Capu Inc. 42. See Ne. Terminal Marine light Caputo facility were. sites of the to, S.Ct. Winchester, 432 U.S. along with the bulk cases, however, justify L.Ed.2d 320 cannot BRB's other 438 case, platform appear Welding Munguia]. here the does or Oil is not have a maritime use—facili- predominantly shipped the platform. Although (oil,

tation the main personal gear occasionally supplies product platform). of the docking are unloaded at areas on the platform, the purpose platform

This conclusion is not foreclosed Thi- of the Welding. In bodeaux or Herb’s Herb’s drilling gas, to further for oil and majority Supreme Welding, a Court purpose.50 is not a maritime decide a expressly declined to whether production platform Because the oil in Thi- qualifies a mari- drilling platform fixed as any pur- bodeaux did not serve maritime thought time dissent that situs.43 The pose, we held that it “pier” was neither a Yet, requirement al- was satisfied.44 adjoining nor an “other area” as defined majority though refused to reach the by the Act.51 questions The dissent our issue, thought there are hints that even it Thibodeaux’s, reliance on statement that qualify a drilling platform might cov- platform ered situs.45 that case was not involved (i.e., shipment in oil or unload- Thibodeaux, ques- we resolved that ing cargo). Far from being an isolated “production”46 platforms tion for fixed oil statement, superfluous or that observation the territorial waters of Louisiana concluding platform linchpin is the was distinction between claimant in maritime situs.47 The Thibo- Caputo: Thibodeaux and platform pumper/gauger deaux was a who was in- served no purpose precisely be- jured attempted repair when he leak- it in way cause was no in loading involved ing platform.48 line under the deck of the unloading a vessel. The structure of Relying in part Supreme on the Court’s quoted material makes that clear: Welding, comments in Herb’s deter- Drilling is shipment contrasted with mined that the did not serve a (which we construe to mean loading or purpose.49 Specifically, we noted unloading). Thibodeaux, Unlike the pointed Thibodeaux has to no connection there is no evidence that Saturday Bay platform Garden Island No. 276 has Island with is now or in- maritime commerce that distin- ever was guishes platforms it from the drilling volved in extracting hydrocar- [Herb’s omilted). Welding, Gray, 43. See Herb’s Inc. v. 470 U.S. But 422 see id. at n. 105 S.Ct. 414, 427, ("Rodrigue 105 S.Ct. 84 L.Ed.2d 406 1421 did observe that offshore platforms piers, holding are like [but] its was islands.”). they are 446-47, (Mar- 44. See id. at 105 S.Ct. 1421 shall, J., dissenting). supra 46. See accompanying note 6 and text. (5th Cir.2004). 47. 370 F.3d ("The 45. See id. at 105 S.Ct. 1421 dissent emphasizes Gray generally on or 48. Id. at 487-88. near the water and faced maritime hazards. so, 'situs,' To the extent this is it is relevant to (citing Welding, Id. at Gray not 'status.' Herb’s To hold that was necessari- U.S. 423-24, 1421). ly engaged employment in maritime he drilling platform ignore was on a would (footnote Congress' omitted) added). everyone (emphases admonition that not Id. automatically covered situs satisfies the status test.") (emphasis added and internal citation 51. Id. at 493-94. shipbuilder, ship-break- repairman, connec- bons,52 independent and it has we have employee may qualify commerce—as An for mari- to maritime er.”53 above, (1) demonstrated excruciatingly status based on either nature time (oil) Cherokee, cargo from the loading of activity engaged in he is of the of the necessary intermediation with the (2) time of the or the nature of of the given configuration employment Although his as a whole.54 field, pur- a maritime Saturday Island employ- not define “maritime the Act does docking facil- Although there are no pose. ment,” Supreme Court has instructed Saturday platform per Island on the ities to those enu- occupations addition connect- se, directly permanently it is merated in the statute will be covered as Cherokee, as a and it serves to the ed occupation if en- employment already- holding station for temporary integral activities that are an or es- tails it fur- oil until separated produced loading, unloading, part sential to 40 feet to transferred the 30 ther In building, repairing vessel.55 until it can be where it is held Cherokee addition, employee’s maritime activi- Thus, the Sat- by barge. ashore shipped episodic, must be more than momen- ties “gen- of the platform part urday Island to his non-maritime tary, or incidental of the “overall eral area” used work.56 adjoining navigable wa- loading process” ters, the drill- clearly distinguishable from employed was not As Hudson (but platform in Thibo- ing shipping) in the any occupations of the enumerated deaux. statute, integral have been his work must analysis, we con- foregoing Based on the loading, unloading, essential a mari- that Hudson was clude repairing of a vessel to be building, or requires LHWCA both time situs. As the under the LHWCA. The ALJ covered status, however, our maritime situs that Hudson was and the BRB determined end here. We must also analysis does not respon employee based on his a maritime whether Hudson’s status determine general upkeep of the Cher sibility for employee. that of a maritime loading of okee and his facilitation (oil)

b. Status transport barges. The into the BRB also determined ALJ and maritime status on The Act confers merely episodic, were not these activities employ in maritime “any person engaged to non-maritime momentary, or incidental ment, or other including any longshoreman work, regularly as they were longshoring operations, person engaged ship signed platform operators. including a any harbor-worker Smith, Fabricators, fact, v. 878 Inc. "platform” appears to be a 54. Universal 52. Cir.1989) (5th Facility Operations (citing barge Manual: Hullin itself. See F.2d 845 Parish, Plaquemines Indus., Carroll, Saturday Field: Island v. 650 F.2d ghorst Inc. Louisiana, (noting that supra note at 2 (5th 1981)). A 754 Cir. Unit processing occur on the "S-91 barge,” although of the sentence the structure Schwalb, Ry. Chesapeake & Ohio Co. object appositional “used for makes the 40, 47, 107 L.Ed.2d 278 U.S. unclear). storage” processing and somewhat 902(3) (2006). § Certain exclu- 53. 33 U.S.C. Co., Trucking Boudloche v. Howard See here, sions, applicable do none of which are 1980). (5th Cir. F.2d apply. Specifically, previous- Petitioners assert that the BRB erred Hudson transferred by concluding that Hudson was a maritime ly produced oil that had come to rest in the majority daily of his employee because the platform’s storage larger tanks to the servicing activities were related tanks on the Cherokee where it awaited maintaining gas production oil and facili- (not transport by barge by pipeline); he that, claim under ties. Petitioners the Su- cargo loading checked the Cherokee’s lines preme holding Welding, Court’s Herb’s leaks; engine. and he maintained its such activities are not maritime nature up Hudson also hooked lines for transfer- and, therefore, qualify do not Hudson as a oil ring the from the Cherokee to the employee. maritime transport barges, customer manned the Welding, Supreme transfers, In Herb’s Court emergency during shutoff such employee addressed whether an who was and boarded barges customers’ to witness injured welding gas-flow while line on a gauge routine, readings. non-epi- These drilling platform fixed offshore oil was a sodic activities are all nature employee.”57 “maritime The Court ex- support the conclusion that Hudson’s plained employment that “the maritime re- status employee. was that of a maritime quirement occupational is an test that fo- Petitioners nevertheless contend that loading and unloading.”58 cuses After if even Hudson was involved in maritime determining employee’s that the work as a activities, he failed to dedicate a sufficient wholly any welder was unrelated to load- percentage of his work to such activities to ing unloading process, or the Court held bestow maritime status under employee.59 he was not maritime disagree. LHWCA. We disagree We do not with Petitioners’ that, The ALJ determined of his insistence those of Hudson’s activities regularly duties, assigned spent Hudson solely that related of oil approximately 9.7% of his time engaged gas produc- from the fourteen remote the above-described maritime activities.60 tion facilities do not him imbue with mari- To arrive at figure, this But, ALJ calculated time status. there was more: Unlike (1) the amount spent of time Hudson Welding, the welder Herb’s load- Hudson was (2) ing directly transport barges involved in the oil into servic- transport barges ing into for shipment equipment necessary to load the distinctly activity. shore—a Crediting oil.61 testimony Hudson’s re- 414, 415, 57. 470 U.S. 105 S.Ct. 61.Petitioners also advance that the ALJ erred L.Ed.2d 406 by including the amount of time Hudson spent maintaining servicing equip (internal quota- 58. Id. at 105 S.Ct. 1421 ment on the Cherokee. The ALJ determined omitted). tion marks that the maintenance of the Cherokee was necessary proper essential for the 424-25, 59. Id. at 105 S.Ct. 1421. transport barges. and transfer of the oil into = 0.097. The ALJ determined 142/1465 employees injured As who are while main that Hudson worked a total of 1465 hours taining repairing equipment essential to during employment his with Coastal. Be- unloading process are covered error, cause of an arithmetical the ALJ mis- LHWCA, by the the ALJ did not err includ takenly credited Hudson with 142 total hours ing this time in its calculation. See Chesa activity of maritime-related instead of 144. Schwalb, peake Ry. & Ohio Co. v. 493 U.S. calculation, Under the correct mathematical (1989) 107 L.Ed.2d 278 actually spent Hudson of his time en- 9.8% ("Someone repairs piece who or maintains a = gaged in maritime activities. 144/1465 loading equipment just as vital to and an 0.098. un- mining eligible that he is benefits trans- in the oil participation his garding petition for review der the LHWCA. that Hudson fers, ALJ determined DENIED. transferring car- 22 hours a total of spent that, ac- ALJ also determined

go. The DeMOSS, dissenting: Judge, Circuit rec- in the sheets entered cording to time approximately ord, spent a total Hudson repair- while Terry Hudson was maintaining Cherokee 122 hours on a oil disposal pump fixed ing saltwater of these calcula- As each equipment. its platform located in gas production evidence, by substantial supported tions waters of Louisiana. state territorial ALJ’s determi- no error perceive injury did not occur my opinion, Hudson’s nations. By treating the on a maritime situs. produc- loading barge Cherokee spent ap- that Hudson for the fact As situs, single as a LHWCA performing his time 9.7% of proximately majority apportion fails to different activities, have never set maritime facility within the same functional areas required qual- of time minimum amount I into covered and non-covered areas. the Act. under employee ify as maritime a functional has believe that the Cherokee however, have, status upheld maritime We activities, pro- but the nexus with maritime only spent who 2.5-5% employee an petition does not. The duction activ- in maritime engaged employment his of the granted, and the decision should be his were those activities ities when awarding BRB LHWCA benefits should duties, Hud- as assigned were regularly majority reversed. Because the relies be Thus, more easily spent Hudson son’s.62 “loading” and an definition of elastic that an minimum amount of time any than wag dog in its situs allows the tail to in maritime engaged employee must be analysis, respectfully I dissent. em- a maritime to be considered activities the Act. ployee under I.

III. CONCLUSION under the In order to recover benefits LHWCA, satisfy both employee must that, facts of under the hold discrete We Welding, test. Herb’s situs and status question case, this the fixed 415-16, 105 Gray, 470 U.S. Inc. v. and that from the Cherokee inseparable “Situs L.Ed.2d 406 84 S.Ct. they constitute together roles play equal, coordinate and status cargo by vessel. transhipment of for the Thibodeaux determining coverage.” such, qualifies a mari- as As Inc., Mgmt., 370 F.3d Prod. Grasso situs, being an element that is essen- time Cir.2004). (5th The situs test de- activity of tial to the maritime 903(a), § 33 U.S.C. rived from also transport. We hold cargo for states, part: in relevant in sufficient engaged regularly Hudson under payable shall be [CJompensation re- to meet the status maritime activities disability or respect that, chapter this It as of the Act. follows quirement only if the employee, but death of an injured on a location Hudson maritime injury an results from disability or death employee, nei- qualifies as a maritime waters of upon occurring BRB erred in deter- nor the ther the ALJ Co., Trucking v. Howard loading process 62. Boudloche integral part (5th Cir.1980). equipment.”). F.2d operator any adjoin- (including satisfy the United States the functional prong nexus wharf, dock, terminal, dry situs test. ing pier, way, railway, building marine or other The functional nexus inquiry is fact-in- customarily by adjoining area used an Winchester, tensive. See 632 F.2d at employer loading, unloading, repair- scope 515. The of the covered situs cannot vessel). budding a ing, dismantling, or solely through be determined reference to employers’ designations, fence lines and majority correctly observes that the subject which are to manipulation. Id. at production platform where Hudson was Rather, perimeter of an area “[t]he injured does not meet the definition of defined function.” Id. An adjoining any specifically of the seven sites listed “customarily must be used for signifi- 903(a), §in it qualify so must as an “ad- cant activity.” maritime Id. joining area” to be considered a maritime Therefore, situs. Hudson can recover my In opinion, the BRB’s conclusion “only if benefits under the LHWCA [his] Hudson was on a maritime disability ... results from an oc- supported by situs is not substantial evid curring upon ... adjoining area cus- [an] ence.1 The platform is not tomarily employer customarily any used for activity, ... a vessel.” Id. Hudson must demon- significant let alone activity. strate he was located on a covered affirming BRB, the decision of the situs at the approximate time he sus- majority disregards binding Fifth Circuit Thibodeaux, injuries. tained his See 370 precedent holding that a gas “fixed oil and F.3d at 488. production platform,” which is connected to satellite wells and located in state terri

II. waters, torial qualify does not as a mari time situs under the LHWCA. See Thibo The “adjoining area” must have both a deaux, 370 F.3d at 487-88. geographical and functional nexus with maritime qualify activities to as a covered majority purports The distinguish Texports situs. See Stevedore Co. v. Win- by Thibodeaux from this relying case on a (5th Cir.1980) chester, 632 F.2d 514 single sentence within that eight-page (en banc). production plat- opinion: Because the “Oil is not shipped plat- from the form and the Cherokee are in direct con- form.” Id. at 494. Even assuming that waters, tact with I agree with this observation lynchpin is the of the Thi- majority the geographical the nexus analysis, bodeaux court’s situs it is undis- prong id.; of the situs test is satisfied. puted See that oil was not shipped from the Thibodeaux, see also My production 370 F.3d platform where Hudson ac- was argues dissent production plat- tually injured. Rather, the oil was shipped form injured where Hudson Cherokee, was does not from the which is geographical- panel Cir.2008). holding The is bound Winchester's Perhaps the en banc court will ques- the BRB’s situs opportunity determination is a have an to revisit this issue in the Nevertheless, tion of fact that we review under the substan- future. even under the more Winchester, tial standard, evidence standard. See 632 deferential substantial evidence the F.2d at 515. When the material facts are record does not contain more than a scintilla case, undisputed, they are in this I believe production platform of evidence that the that the BRB's situs determination should be where Hudson was "customarily reviewed under significant the de novo standard re- activity.” used for See Dir., questions Inc., served for of law. See B&D Ingalls Shipbuilding, Con- OWCPv. tracting (5th Pearley, (5th Cir.1997). 548 F.3d F.3d platform contains production that the salt- distinct from functionally ly separate treaters, compres- pumps, water heater Thibodeaux platform.2 production sors, many Like dehydrators. manu- Hudson’s this case because controls production platform facturing plants, the platform, production on the occurred into marketable raw materials converts loading barge. products. “transportation” oc- analysis, my Under the satellite wells is situs; The total flow from “production” a maritime

curs at production a manifold on gathered include “production” I define does not.3 wells) (at oil and salt water platform. Crude the satellite extraction both flows to the heater (at separation process I platform); production separation platform, where production the load- treaters to include “transportation” define (at temporarily oil is stored. the marketable crude maritime commerce cargo ing process is me- Cherokee). separation from the platform Gas production The Natural into the Southern oil and tered sale purpose of non-maritime serves the reinjected throughout pipeline, and the Gas separation, while gas extraction gas-lift purposes. The salt of a the field for purpose serves Cherokee production in tanks on the water is facility for marketable stored storage and re- disposal pumps platform, and saltwater to extraction In addition crude oil. ground water into the via inject the salt platform also production separation, shore, separation process satellite well. gas to natural marketable pipes production platform is a occurs on the acknowledges is majority even the it gas production; stage of oil perim- discrete activity. Because non-maritime nothing to do with by has is determined adjoining eter of vessel. unloading of a function, its from the distinguished been have should 4,000 barrel-capacity From analysis. majority’s the Cherokee platform, market- production on the tanks piping fed via hard gravity crude oil is able III. loading to the Cherokee and flexible hose 8,900 barrel-capacity. which has a barge, an un- wells satellite feed The fourteen and the platform Cherokee oil, production The gas, and salt mixture of marketable thirty forty to feet approximately are from subter- water, is extracted the which by open water. Mar- Bay, apart separated to Barataría strata beneath ranean from the load- pumped is ketable crude oil production platform. The production the barges pump via barge transport to ing mixture into two separates that platform loading The loading barge. on the and natu- located oil products marketable —crude loading docking aas barge wa- serves product one waste gas ral —salt —and 10,500 one can accommodate facility, which testified deposition, Hudson his ter. At thing exists.” Webster’s Third or for which prong the situs geographical nexus 2. The (16th geo- production platform’s Dictionary the test focuses on New International ed.1971). In waters. the satellite wells graphical nexus with function of The contrast, production that the the fact produce marketable platform is to and the separate” the "geographically is barge the function of crude oil. The inqui- nexus barge relevant to the functional is oil in maritime transport that crude to is ry- Only the latter function occurs commerce. a LHWCAsitus. on action for defined as "the 3. "Function” fitted, used, ... thing specially ...

barrel-capacity transport barge. tanks, During storage have oil only the Cherokee eight employment,, the months of Hudson’s stores oil in a crude manner that facilitates transport barge would come the loading once or of a vessel. twice a week. majority The fails grasp to the following injured attempting

Hudson was while to fact: oil gas production only is the repair disposal a saltwater pump on the activity that occurred on the platform production platform. reinjection injured. where Hudson was In effort water, salt which is one of final stages the import to avoid the of this inconvenient production process, prevents truth, con- majority makes two argu- flawed (1) tamination of the oil tanks on the production ments: platform is a production platform. When Hudson covered situs because it is to connected pump, exploded cranked the the starter by pipes permanent Cherokee and a walk- fire, caught (2) on resulting serious way, and production platform is a and shrapnel body. burns wounds his on covered situs because it stores marketable injury, At the time of transport his no tanks, crude oil temporary storage barge being loaded with crude oil from which of the loading process. The the Cherokee. argument first fails because it impermissi- bly bootstraps activities Hudson admitted that the majority vast structure, occur separate on a of his activities as a contract operator were arguments second fails because it relies on servicing related and maintenance an over-inclusive “loading.” definition of of equipment on production platform. No or other materials are ever load- holding that the ed or unloaded onto a vessel area of and the Cherokee single constitute a injured. where Hudson was situs, LHWCA majority proxim- allows No pipeline connects the disposal saltwater ity trump functionality. The central pump to the equipment Cherokee. The issue is whether Hudson was on an used produce gas oil and produc- on the “adjoining customarily by an tion platform is the same equipment used employer in loading ... a vessel.” 33 to produce gas oil and on the All land. 903(a). § U.S.C. defining When scope the loading equipment is located situs, of the LHWCA perimeter “[t]he Cherokee;- Hudson did not venture onto an area is defined function.” Winches- production the platform during loading the ter, 632 F.2d at 515. Under the functional process. approach, production the platform is inex- tricably intertwined with the satellite

IV. wells, not the Cherokee loading barge. my crux of argument simple: The is one, the Without the other is useless. The production platform, which hydro- extracts satellite production wells and the platform carbons and converts them a into market- are involved two stages distinct form, able functionally distinct from the production process: the satellite ex- wells loading barge, which the loading facilitates tract an oil, unmarketable gas, mixture of of marketable crude oil onto mobile trans- and salt water from the subterranean stra- port barges. production The ta, of a commod- production and the platform separates ity aat non-maritime is different that mixture into products marketable and from transportation the commodity that disposes of the waste. The activities oc- at a maritime situs. both Although curring the production on the platform have production platform and nothing the Cherokee cargo to do with transportation or prox- the close refers to later, majority The happens That commerce. maritime attachment imity permanent and Nevertheless, the barge.4 loading the at and the Cherokee to platform production two struc- combines analysis majority’s two func- that these support argument its (the nexus a functional lack that tures single, a tionally areas constituted distinct barge) and the platform production previously facility. have inseparable We that share structures separates two function, proximity physi- not that held (the production functional nexus fac- connectivity, is the determinative cal wells). the satellite Winchester, 632 regarding situs. See tor you until have cease does not Production physi- proximity F.2d at 515. While case, you do In this product. marketable evi- might provide some connectivity cal until the product have a marketable not function, they are not of common dence sepa- the satellite wells from total flow it. for substitute pumps, heater using the saltwater rated majority, Hudson to the According on treaters, dehydrators compressors, non- performing time 90.2% of his spent Transportation platform. production the production plat- the activities on oil is transferred crude when the begins mar- performing of his time and 9.8% form the storage on tanks temporary barge. activities on itime loading barge, to the production occur- loading activities holding that awaiting cargo it becomes point the situs control ring on the Cherokee commerce. transportation in platform, the production designation wag the allowing the tail to majority is all BRB, majority ALJ, The Hud- platform where dog. production The plat- production the fact that on focus separate geographically son was barge connected are and the form the Chero- functionally distinct from This walkway. permanent and a pipes via where will be cases Perhaps there kee. reality that not alter does observation areas in transportation production and functionally one occurred production situated over single are (the wells satellite structure integrated sepa- geographically and are waters transpor- platform) and production case functionally This distinct. rate and Cherokee). (the another occurred on tation cate- hypothetical that not fall within does gas production oil and Many land-based gory. connected, by pipeline whether are sites relies argument maritime sites majority’s to various second

asphalt, “loading” To further by vessel. definition shipment expansive anon site of confusion, majority insists at the storage incidental includes add of whether regardless wells production, the satellite loading of a functionally integrated actually facilitates are not marketable observing are wells After fact that the satellite the vessel. despite storage temporary via stored platform oil is production to the crude connected ma- the platform, production the the deter- on lines. If tanks transmission gulf-floor storage part this argues that jority is intercon- the situs test factor minative no oil process “[i]f loading nectedness, the why production platform is the to storage tanks platform’s from the loading flows with the inextricably intertwined for Cherokee, is available no oil the wells? the satellite barge but not with loading ac- refers majority repeatedly to the produc- argument the support of its area,” on the Cherokee. tivities that occurred "adjoining qualifies an part “gen- vessel to load.” Because is “not even suggestive of traditional mari- loading, eral area” is used for the majority time affairs.” Herb’s Welding, 470 U.S. production concludes that the entire plat- 1421 (citing S.Ct. Rodrigue v. form majority’s Co., is a covered situs. The Aetna Cas. & Sur. 395 U.S. 360- (1969)). reliance on the attenuated connection be- S.Ct. L.Ed.2d 360 post-production storage tween on plat- the majority The should have expand- avoided loading form on the Cherokee is suspi- ing coverage LHWCA into this uncharted ciously to the logic similar “but for” that it territory. See Herb’s Welding, 470 U.S. at (“[The in a footnote. repudiates 105 S.Ct. 1421 plaintiffs] ap- proach coverage would extend virtually storage Not all is related to loading. everyone on stationary the plat- [drilling] if production Most not all facilities contain form. We think this construction of the temporary storage areas for prod- finished untenable.”) (status case); [LHWCA] ucts. In the absence of a pipeline, any Thibodeaux, (“The 370 F.3d at 488 sole gas production land-based oil and site issue for our review is whether a fixed oil possess temporary storage must tanks for production platform built pilings on over marketable oil that recently crude has marsh and water and from inaccessible separated. been extracted and In my land constitutes a ‘pier’ either or an ‘other opinion, statutory “loading” term does adjoining area’ within meaning encompass temporary not storage at the 903(a). § We hold the platform in ques- production platform because that storage ....”) (situs case). tion is neither oil, production facilitates the of crude not Only of a vessel. the Chero- V. kee stores crude oil in a manner facilitates the of a vessel. Unlike Court, Supreme Precedent production BRB, crude oil stored on the plat- Circuit, the Fifth and the Eleventh form, the crude oil stored in the Cherokee supports Circuit the conclusion that is awaiting shipment by transport barge. production platform where Hudson was in- “hopscotch” The hypothetical posed by jured qualify does not as a situs. covered majority is a herring red because no The cases cited the majority are distin- production platform, including guishable. temporary tanks, integral The similarities between this case transport barges. The ma- striking. Thibodeaux are Both Hudson jority production declares that plat- Thibodeaux were at- while form was the point “consolidation tempting repair equipment on fixed oil transport.” beg 8,900 I to differ. The and gas production platforms, which were barrel-capacity storage tank in the Chero- connected to satellite wells. 370 F.3d at serves that “gathering function,” kee The where Hudson in- was the temporary storage pro- tanks jured greater no served pur- “maritime platform. production duction The plat- pose” than the where Thibodeaux gathers form the total flow from the satel- injured. Id. at 490. These it, lite wells in separate order to platforms were not “customarily gathers Cherokee the crude oil from the employer loading ... a vessel.” See production platform in order transport 903(a). § 33 U.S.C. only significant it. factual difference between the two cases is twenty years

Over ago, Supreme that the production platform in case this Court declared that oil gas production and was by pipeline attached and a permanent

447 case, de- “[its] as a “status” pigeonholed used structure separate walkway to fixed performed of the work scription trans- oil crude onto marketable is non-maritime as platforms production oil barge. port of whether the issue to highly relevant “func- Fifth Circuit’s describing the In to has a connection platform production oil reaffirmed Thibodeaux approach,” tional Thibodeaux, 370 commerce.” maritime Inc. Shipyards, of Jacksonville holding Welding Herb’s Importantly, 494. F.3d at (5th Cir.1976), that Perdue, F.2d 533 of off-shore the classification reaffirmed for load- actually be used putative “a “islands,” which platforms production func- the other one of unloading, or ing, the island conclusion reinforces & n. at 489 Act.” Id. in the specified tions geographi- injured was Hudson was where that Hudson’s undisputed It is 3. functionally distinct separate cally a docked Cherokee on the not occur did load Cherokee, was used to from the barge. transport island. on that produced that was the “ad- indicated also Thibodeaux 6, 105 S.Ct. 422 n. at 470 U.S. See resem- have some should joining area” 360, at 89 S.Ct. U.S. Rodrigue, 395 (citing enu- parenthetically the other blance to 1835). Id. at in the statute. structures merated loading barge, Although n. 5. facilities, VI. resembles docking which has that an oil held previously have we pier, argument with agree I Coastal’s not does fall platform production gas areas functional different apportion must category enumerated within covered into the same within to a connection have not it does apportionment areas. non-covered any Like at See id. commerce. require- flows from naturally principle gas production oil land-based other of an area perimeter “[t]he ment that solely this case site, Winchester, 632 by function.” defined the ex- function: for a non-maritime not has this circuit Because at 515. F.2d hydrocarbons, discovery of ploration ap- requiring awith case presented been wells, production drilling of test it principle, apportionment plication hydrocarbons from of those the extraction prece- to persuasive look appropriate strata, separation subterranean Eleventh Cir- and the from the BRB dent prod- into marketable hydrocarbons those guidance. cuit for production ucts, disposal unsuccessfully products.5 waste the BRB my opinion, indicating precedent its own distinguishes Court this Court and Supreme Both the a cov- production that the produc- gas that the oil and have declared Co. v. Aluminum In Jones situs. ered nothing to do absolutely has process tion AL- America, widow sued the decedent’s id. at 491 commerce. See with maritime LHWCA, her claiming that under COA [the extend (“[I]t incongruous to be would exposure to due died of cancer husband structures cover accidents on LHWCA] 35 BRBS situs. on a covered asbestos see also purpose.”); serving no 2001). (April *1 at WL U.S. Welding, 470 Herb’s weld- millwright as a worked The decedent Welding is often Although Herb’s occurred) single functional constitute suggest that the and Thibodeaux 5. Winchester occurred) (where entity. extraction wells satellite (where separa- er general mechanic, and later as a ing process, engaged are not in maritime required construct, him to repair, and employment pursuant 2(3) to Section types maintain equipment all in the the Act. employer’s As operation con- facility, adjacent ALCOA which was tains manufacturing facilities as well as navigable waters of the Mobile River. Id. areas work, used maritime the entire *1, at *6. The regularly-as- decedent’s site is not 3(a); covered under Section signed duties included repairing and main- plant the itself lacks the functional nex- taining conveyor the bauxite system, belt us to be area, considered a covered which was used to unload raw bauxite for it cannot be brought into coverage sim- production the of aluminum. Id. at *6. ply goods shipped are by water conveyor belts “transported bauxite from another portion of facility. the from ships the [ALCOA’s] facili- Jones, 467885, (internal 2001 WL at *6 ty for later use in the manufacturing pro- omitted). citations cess.” Am., Jones v. Aluminum Co. of 97-287, BRB (Oct. No. 16, 31 BRBS 130 case, In this the BRB held that the 1997). In addition to his work production platform where Hudson was in- conveyor system, belt the decedent worked jured was analogous more to the covered majority vast of his time in the alumi- Gavranovic v. Mobil Mining & num manufacturing plant, which was locat- Materials, 33 BRBS 1999 WL 122921 ed near the docks and conveyor belts in (Feb. 23, 1999), than the non-covered situs the same facility. ALCOA Gavranovic, In Jones. the employee’s Regarding issue, the situs injury BRB stat- occurred in a cargo storage building ed following: separate that was

[Tjhat portion employer’s was connected to another build- where loading ing unloading stored cargo awaiting occur con- transport stitutes a maritime Gavranovic, situs. vessel. See 1999 WL 122921, at *4. clear, It is The BRB however, also found that employer’s building where manufacturing plant is not a occurred covered adjacent to water, situs. The Fifth was in Circuit’s decision in close proximity docks, recognizes Winchester the “func- and was not a separate tion” of an adjoining area distinct area. Id. In must be one both Jones, that is used for Gavranovic and loading, the BRB unloading, recog- repairing nized that building of vessels. entire area plant A used for and unloading, manufactures aluminum including oxide is not the areas contain- engaged ing conveyor these functions. belts and Stroup storage facili- Bayou ties, [v. Corp., Steel 97-1406, qualified BRB No. as a Jones, covered situs. (BRB July 1998)], BRBS *6; 2001 WL at Gavranovic, Board recognized point that there is a WL Thus, at *4. if employee which the maritime process ceases, injured an area used the manufacturing process begins, shipment overall process, then he is in- vice versa. This jured statement is situs, consistent on a covered but if the employ- with cases holding that employees, ee is in an area only “where manu- whose duties are integral to a manufac- facturing took place,” then he is not.6 turing process rather Jones, than to a longshor- 2001 WL at *7. most,

6. At Gavranovic proposi- stands for the cility qualifies aas covered situs if it is dis- tion that an cargo storage interconnected fa- tinct from the production facility, adjoins 1992). (Sept. at *4 97, 1992 WL much more is Jones my opinion, In mill and the the steel noted that than Gavra- BRB to this case analogous closely separate geographically were loading BRB relied. Both dock the novic, upon which at *3. id. functionally work the distinct. See performed and Jones Hudson employer’s] manufac- the [the area and “the line between loading/unloading Because facility that loading operations manufacturing turing/production waters. that it was navigable drawn,” BRB held adjacent the clearly was the bauxite was Jones, one func- area where the mill as the “to treat appropriate by con- moved vessels Id. from as another.” and the dock unloaded tional area separate and geographically was that veyor belt the BRB held Importantly, *4. area where from the functionally distinct the stream enter products “finished Similar- manufactured. was by aluminum delivery the only after commerce oil case, the was area where the in this ly, Id. area.” the dock truck to onto and loaded shipment future stored Melerine, produc- line between the Like separate and geographically was vessels “clearly loading operations where the area functionally distinct oil case. The marketable in this drawn” sep- were extracted hydrocarbons the commerce the stream of enters form. marketable into arated cargo the delivery of only gravity-fed after Jones, there case, was like In this the load- production from the production non-maritime the where point situation like the At that ing barge. point, loading and the maritime ceased process Gavranovic, oil is stored the crude plat- production began. Both process that facilitates in a manner the Cherokee man- the aluminum in this case form a vessel. part were in Jones ufacturing plant Mississippi v. Dickerson Finally, adjacent to nav- were that facilities larger that BRB held Corp., the Phosphates observing that After igable waters. plant, acid phosphoric employer’s only LHWCA under the covered naviga- from a 100 feet about was located situs, BRB a covered it occurs on if covered situs. not a waterway, was ble ALJ for to the case Jones remanded (April at *6 WL BRBS decedent was of “whether a determination closely 2003). of Dickerson The facts situs,” covered on a to asbestos exposed Jones Melerine. the facts of resemble conveyor belt worked on the while he i.e. id. at *5. See materials from to unload raw system 467885, at *8. Jones, 2001 WL em- rejected the vessels. in Dickerson The BRB inju- Hudson’s case, know that In this was plant argument ployee’s a saltwater repairing while ry navigable occurred it abutted situs covered platform. production on the disposal pump manufac- larger of a was waters and area. included a dock turing Harbor Con- Similarly, Melerine unloading of loading or *5. No Id. at Co., “[t]he BRB stated struction the em- area where in the vessel occurred raw mill receives mate- fact that [steel] not plant injured, and ployee was water, uti- products its and ships rials in the steps any intermediate used for and unload- area for its dock lizing plant Because process. Id. the site convert itself and of cannot in ing, to mari- nexus “a functional have did not 26 BRBS a covered situs.” null into designation of waters, it is relevant some and contains Cherokee, platform. extent, To awaiting transport vessel. activity,” time employee the shed, could not sat- gypsum the processed was and then isfy the situs test. Id. at *6. transported The situs to the sheetrock production designation of the phosphoric department. plant acid Id. The finished product was not by presence altered the was eventually of a pipe- transported to market line that connected the truck. phosphoric Id. The employee acid in Bianco sus- plant to the tained an plant, injury fertilizer in pres- the the produc- sheetrock ence conveyor department of a belt that Id. During connected the course the of his plant employment, fertilizer employee the dock. the Id. at participated *5. in both production the and the unloading Dickerson pro- demonstrates that the process. Id. platform’s duction situs designation is not in Relying part (1) on the principles affected con- geographical the proximity Winchester, tained the Eleventh Circuit platform either waters held the production sheetrock (2) depart- or the loading barge; the pipes ment where did occurred not connecting production platform to the satisfy the situs test.7 Id. at Jones, 1058. Be- Melerine, Cherokee. and Dicker- cause this area solely was used for manu- son support the conclusion that we must facturing sheetrock and was not apportion different functional areas within the “on-going process overall of unloading facility same into covered and non- raw gypsum,” the Eleventh Circuit con- covered areas. I believe that majori- cluded that it was functionally distinct ty’s “all or nothing” approach fails to rec- from the unloading area contained ognize this basic principle.

same facility. Id. Significantly, the Elev- enth responded Circuit to the employee’s VII. argument that portion “[because] a Eleventh precedent Circuit supports the [employer’s] facility maritime, the entire conclusion that production facility be, must because to hold otherwise where Hudson was anot cov would result in workers walking in and out ered situs. In v. Georgia Bianco Pacific of coverage.” Id. at 1059. Based on the Corp., the Eleventh Circuit addressed Supreme Court’s statements in Schwalb8 whether the production sheetrock depart and Herb’s Welding, the Eleventh Circuit ment gypsum of a products quali determined that this principle “was more fied an “adjoining 903(a). § area” under concerned with engaged workers in mari- (11th 1053, 1054 Cir.2002). 304 F.3d activity time walking and out of cover- Bianco, In gypsum products facility age at or near the water’s edge.” Id. lied on the banks of the Turtle and East Most importantly, the Eleventh Circuit Rivers. Id. Raw gypsum was unloaded noted congressional intent that work- from vessels onto conveyor a series of ers not walk in and out of coverage “does belts that moved gypsum to the em- give a court the license to reach out ployer’s “rock shed” at its and expand coverage beyond the terms of plant. Id. at 1054-55. From the rock 903(a)].” § [33 U.S.C. Id. at 1060. 7. The Eleventh adopted Circuit has Bianco, all Fifth principle in I find reasoning par- its Circuit decisions issued before October ticularly persuasive. Winchester, including prece- as binding Prichard, City Ala., dent. Bonner v. 661 Chesapeake Schwalb, Ry. & Ohio Co. v. (11th Cir.1981) F.2d (en banc). U.S. 107 L.Ed.2d 278 Because the Eleventh Circuit relied Win- chester applied when it apportionment Jones, Bianco, at 1059-60. F.3d Bianco, I Circuit the Eleventh Like Dickerson, recog the BRB Melerine, and defi- expansive majority’s that the believe at least spent employees that those nized effectively “would covered nition performing time of their some require- the statute writing out be however, situs; on a covered work custom- ‘be adjoining ment that to establish unable were employees ... a employer by an arily used ” the at covered situs on located a they were interpretation broad “[The] Id. vessel.’ injured. See were they time approximate dif- Winchester] in [contained of ‘area’ Second, I Thibodeaux, at 488. F.3d 370 lan- ignores other that one from ferent 903(a) is not §of the text that believe indicating that in the statute guage afunc- produc the whether regarding ambiguous activity must nexus to tional pro The situs. is a covered (em- n. 10 at 1060 Id. exist.” nonetheless “customarily platform was duction original). in phasis ... loading in employer by an used from the distinguishable case is This 903(a). § “The See 33 U.S.C. vessel.” employee was one where Caputo, facts of congressional discerning point starting container- stripping while pier aon injured La statutory text.” existing is the intent in- was employee another cargo and ized 526, 534, Tr., 540 U.S. States mie v. United loading area while adjoining on jured (2004). 1024 1023, 157 L.Ed.2d 124 S.Ct. Ne. a truck. onto a vessel from of the principles of Only application after 432 Caputo, U.S. Co. v. Terminal Marine construction, the including can statutory 2348, L.Ed.2d 53 255, 253, S.Ct. 97 construction, a conclusion after ons from distinguishable also It is 320 may the ambiguous the statute Winchester, the where facts of the history. Car legislative the turn to court contained “gear room” in a occurred Inc., 518- Jobs.com, 393 F.3d rieri perform to by stevedores “equipment assuming Cir.2004). Third, even (5th 19 & at 507 632 F.2d loading operation.”9 the our situs guide should principle this this case production The n. 1. pres do not case facts of this the analysis, gas pro- to oil nexus functional has sought to Congress the situation ent cargo. loading of duction, the not to amendments 1972 with eliminate argument, majority’s invocation of this support disagree with I LHWCA. coverage” Winches Caputo and majority out cites “walking First, demonstrated holding. ter, previously I have its situs justify principle this distinguishable Weld- factually in Herb’s are stated Court Supreme out of cover “walking in and boundary The always be a case. will “there ing that “un Congress’s reflects peo- principle always age” be will there coverage, and workers all equally to treat desire doubted employment.” their during cross it ple who ship, unloading engaged 1421; also see 426, 105 S.Ct. 470 U.S. Texports was When other stevedores. where Hud- 9. Unlike cargo, Winchester unloading loading and where Win- "gear room” injured, the son was travelling over ships, several service would injured was an essential was chester gear connecting the public streets unloading process: loading and had Texports when Even and docks. rooms includ- gear man duties as [Winchester's] unload, gear rooms ships to load no tools and repairing supplying ed maintaining gear repairing operated machinery used stevedores opera- unloading loading and the next per- ships. His work unloading tion. dockside, ships, and on board at the formed Winchester, F.2d at rooms, including those gear at each they injured whether were on the ship or of law plainly “is in conflict with the policy on an adjoining pier or dock.” Herb’s favoring expeditious but limited compensa- Welding, 470 U.S. at 1421; injured tion to workers, that underlies all see also Sidwell v. Express Container programs of workers’ compensation, Servs., Inc., (4th 71 F.3d Cir. whether at the federal or state level.” Bi- 1995). This principle merely reminds us Texaco, Inc., envenu v. 164 F.3d that Hudson would have been if covered he (5th Cir.1999) (en banc) (DeMoss, J., dis- were barge, senting). reasons, For these I respectfully transport barge, or the walkboard in-be dissent. tween. All three of these locations would qualify as a maritime situs under

LHWCA. majority makes an unwar logical

ranted leap when it relies on this

principle to transform a non-maritime oil gas production platform into a covered

situs. Hudson cry “is a far from para

digmatic longshoreman who walked in and out of coverage during his workday and UNITED America, STATES of spent substantial of his amounts time ‘on Plaintiff-Appellee, navigable waters.’” Herb’s Welding, 470 13, 105 U.S. at 427 n. S.Ct. 1421.

Justin Paul STERLING, Defendant- VIII. Appellant. regulation gas oil production No. 07-30001.

in state territorial waters has traditionally been an area of state concern. This United is not States Court of Appeals, a case where Hudson would be left without Fifth Circuit. a remedy if the LHWCA does not apply. Jan. injured

Hudson was while performing a job required many land-based oil and

gas production sites located throughout

Louisiana, and he is currently receiving

state compensation worker’s benefits.

There ample precedent supporting the

conclusion

where Hudson was not a cov-

ered situs. If any there is doubt as to

whether the applies case, LHWCA in this

I believe that principles of federalism

counsel towards more ap- conservative

proach. The majority and dissenting opin-

ions from our en banc decision in Bien-

venu underscore the difficulties arising application of the LHWCA to the oil

and gas production industry based state

territorial waters. The ambigu- additional

ity injected by the majority into this area

Case Details

Case Name: COASTAL PRODUCTION SERVICES INC. v. Hudson

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jan 14, 2009

Citation: 555 F.3d 426

Docket Number: 06-60766

Court Abbreviation: 5th Cir.