LITTLE_DONNA_T_v_HUNTINGTON_INGALLS_I_2012LHC01125_(DEC_17_2012)_114020_CADEC_SD.PDF
In this case the Claimant alleges an injury occurring in the grass embankment adjoining the shipyard property at the fence line along the east side of Warwick Boulevard. Since the record failed to demonstrate that this area was a pier, wharf, dry dock, marine terminal, building way or marine railway, the Claimant can only satisfy the maritime “situs” requirement if she establishes by a preponderance of the evidence that the grassy embankment area of land was an “other” adjoining area that is customarily used by the Employer in loading, unloading, repairing, dismantling or building a vessel.
The general test to determine the issue of “situs” in the Fourth Circuit is set forth in Sidwell v. Express Container Services, Inc., 71 F.3d 1134 (4th Cir. 1995). There the Court noted that the U.S. Supreme Court had not articulated a test for determining what was an “other adjoining area” within the meaning of § 903(a) of the Act. The Court examined and specifically rejected the approach of the Courts of Appeal for the Third, Fifth and Ninth Circuits. 2
The Court also noted it had examined the issue of “situs” in earlier cases of Newport News Shipbuilding & Dry Dock Co. v. Graham, 537 F. 2d 167 (4
th Cir, 1978), cert denied, 439 US 979 (1978), where a comprehensive test was not offered, and in Humphries v. Director, OWCP, 834 F. 2d 372 (4th Cir. 1987), cert. denied, 485 US 1028 (1988). The Court stated that it “reject[ed] the idea that Congress intended to substitute for the shoreline another hard line” in the 1972 amendments to the Act and found that §903(a) of the Act was a clearly stated intention of Congress that “the LHWCA requires that covered situses actually ‘adjoin’ navigable waters … that is, if it is ‘contiguous with’ or otherwise ‘touches’ such waters. If there are other areas between the navigable waters and the area in question, the latter area simply is not ‘adjoining’ the waters under any reasonable definition of that term.” Sidwell v. Express Container Services, Inc., supra,
at 1138. The Court went on to state that the additional statutory language of “customarily used by the employer in loading, unloading, repairing, dismantling, or building a vessel” was a further restriction on “other adjoining areas” such that the geographical “situs” must first adjoin navigable waters and then be customarily used by the employer in a certain manner. The Court acknowledged in Jonathan Corp. v. Brickhouse, 142 F.3d 217, 220 (4th Cir. 1998) that “the situs requirements still establish geographical boundary for coverage [and] as with any geographical
boundary, workers can still move across that boundary into and out of the Act’s coverage.” (citing Herb’s Welding, Inc. v. Grey, 470 US 414, 426-427 (1985))
In this case the evidence established that the 7 to 8 foot wide grassy embankment on which the Claimant stepped into a hole and twisted her ankle on November 4, 2011 ran along the east side of Warwick Boulevard between Warwick Boulevard and the shipyard fence line placed on the edge of shipyard property. The pertinent section of grassy embankment extended from 39 th Street along Warwick Boulevard in a northerly direction pass the shipyard gate used to enter the
Employer’s scrapyard area of the shipyard located near the railroad tracks that cross Warwick Boulevard in a westerly direction from the gate entrance area. The pertinent section of grassy embankment and Warwick Boulevard are owned and controlled by the City of Newport News. Pursuant to the local code requirements, the Employer mows the grass to keep the height within city requirements. Mr. Kelly testified that the grassy embankment area is not utilized by the shipyard for any purpose.
The Claimant did not introduce any evidence that would indicate that the shipyard uses the grassy embankment to load or unload vessels, dismantle vessels, repair vessels, or build vessels. Without such use, the grassy embankment that abuts shipyard property, but is not owned by the shipyard and is outside the perimeter of the shipyard, cannot be considered “other adjoining area customarily used by the employer in loading, unloading, repairing, dismantling or building a vessel” and cannot be considered a covered situs under §903(a) of the LHWCA.
Here the Claimant had arrived at the shipyard when she parked in the shipyard’s 39
th Street parking lot. She left the shipyard when she moved onto the City of Newport News property of Warwick Boulevard and the adjacent grassy embankment. She has failed to establish that the City of Newport News owned property was “customarily used by the employer in loading, unloading, repairing, dismantling, or building a vessel.” She reentered the shipyard when she moved into the shipyard gate entrance at the railroad tracks and scrapyard area of the shipyard.
Such movement across geographical boundaries is that envisioned by the Court under §903(a).
Since, the Claimant has failed to establish that the area owned by the City of Newport News outside the perimeter of the shipyard and was being traversed by the Claimant between the 39th Street parking lot and scrapyard entrance, was customarily used by the Employer for specified maritime activity, this Administrative Law Judge finds that the alleged injuries did not occur in a maritime “situs” as required by 33 USC §903(a) and that the Claimant is not entitled to benefits
under the Act. Since the Claimant has not established the required situs, the remaining issues in this case are moot.
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