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LHWCA: “Other Adjoining Areas” Must Be Contiguous to Navigable Waters

LHWCA: “Other Adjoining Areas” Must Be Contiguous to Navigable Waters

Status and Situs

An individual seeking workers’ compensation benefits under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) must satisfy two separate requirements—“status” and “situs.” 

The “status” test requires that the recipient of benefits be engaged in “maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor worker including a ship repairman, shipbuilder, and shipbreaker.”  33 U.S.C. 902(3).

The “situs” test requires that the person’s accident occur “upon the navigable waters of the United States (including any adjoining pier, wharf . . . or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel.”  33 U.S.C. 903(a) (emphasis added).

Court Defines “Other Adjoining Areas” Under LHWCA

Recently, in New Orleans Depot Servs., Inc. v. Director, Office of Worker’s Compensation Programs, 718 F.3d 384 (5th Cir. 2013), the U.S. Fifth Circuit Court of Appeals addressed which work areas constitute “other adjoining areas” under the LHWCA.  In that case, the claimant, Juan Zepeda, was injured while working in a small industrial park approximately 300 yards from the Intercoastal Canal.  The Benefits Review Board (“BRB”) held that this employment at the park was a proper LHWCA situs.  The Fifth Circuit, however, disagreed.

Federal circuit courts have been in disagreement as to whether “other adjoining areas” must be physically contiguous with navigable waters or whether having a close vicinity to navigable waters is sufficient.  In its recent opinion, the Fifth Circuit cited with authority an opinion of the Fourth Circuit in which that court stated, “[T]he ordinary meaning of ‘adjoin’ is ‘to lie next to,’ to ‘be in contact with,’ to ‘abut upon,’ or to be ‘touching or bounding at some point.’”

The Fifth Circuit also noted that, by mandating a situs requirement in the first place, Congress must have anticipated that longshoremen could physically walk in and out of LHWCA coverage.

The Court ultimately held, “The LHWCA dictates that a covered situs actually adjoin navigable waters, and we may not ignore this limitation.”  It accordingly vacated the BRB’s award to Mr. Zepeda.

Allen & Gooch is providing this legal update for informational purposes only. This article should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. You should consult your own attorney concerning your particular situation and any specific legal questions you may have.