In its most recent decision regarding Longshore and Harbor Workers’ Compensation Act (LHWCA) coverage, namely New Orleans Depot Services, Inc. v. Director, Office of Workers’ Compensation Programs, 718 F.3d 384 (5th Cir. 2013) (en banc), the United States Fifth Circuit Court of Appeals defined “adjoining” as used in the LHWCA to mean “bordering on or contiguous with navigable waters.” In doing so, the Court expressly overruled its own precedent found in Texports Stevedore Co. v. Winchester, 632 F.2d 504 (5th Cir. 1980) (en banc), and the Court adopted the interpretation of the statutory language proffered by the Fourth Circuit Court of Appeals in Sidwell v. Express Container Services, Inc., 71 F.3d 1134 (4th Cir. 1995).
In New Orleans Depot Services, the claimant sought benefits for hearing loss resulting from continuous exposure to loud noises. His injuries were suffered while employed to repair, maintain, and store shipping containers at his employer’s facility on Chef Menteur Highway in New Orleans. The employer’s facility was located 300 yards from the Intracoastal Canal in a small industrial park with access to Chef Menteur Highway surrounded by a car wash, a radiator shop, an automobile repair shop, a bottling company, and a box manufacturer. The employer’s facility had no access to the Intracoastal Canal. All of the containers repaired at the facility were delivered to the facility by truck and departed by either truck or rail. No containers were loaded with cargo while in the custody of the claimant’s employer.
The Fifth Circuit began its analysis noting the concerns of Congress in amending the LHWCA in 1972 to prevent longshoremen from walking in and out of coverage as they moved from ship to shore and back again by extending coverage to injuries occurring on “other adjoining areas.” However, the Court also noted that there must be boundaries to coverage under the LHWCA, and thus, “other adjoining areas” must satisfy a geographic component and a functional component for coverage to be afforded. In evaluating its own jurisprudence, and that of other circuits, the Fifth Circuit quoted and cited with approval Fourth Circuit’s opinion in Sidwell.
In contravention to the decisions of other circuits, including the Fifth, the Fourth Circuit, in Sidwell, construed the “other adjoining areas” language strictly. The Sidwell court held that the plain language meaning of “adjoining” required that the situs of the injury actually lie next to, be in contact with, or abut navigable waters. The Sidwell court further concluded that, as a separate inquiry, the situs of the injury must be an area “customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel.” In support of these propositions, the Fourth Circuit cited legislative history associated with the LHWCA amendments of 1972 and U.S. Supreme Court precedent interpreting Congress’s intent.
Approving of the interpretation espoused by the Fourth Circuit, the Firth Circuit concluded by adopting the opinion of the Fourth Circuit and overruling Winchester and its progeny. Applying this new standard, the Court denied coverage under the act because the employer’s facility did not border upon and was not contiguous with navigable waters. Therefore, the situs requirement of the LHWCA could not be met.
This latest interpretation of the geographic component of the situs requirement for coverage under the LHWCA marks a departure from prior interpretations of the statute. Prior jurisprudence expanded the geographic scope of the LHWCA to include coverage for injuries far removed from navigable waters. Thus in New Orleans Depot Services, Inc., the Fifth Circuit has made clear departure from the past and created a bright-line test for the geographic component of the LHWCA’s situs requirement.