Given the significantly better benefits available to an injured worker who qualifies under the Longshoreman and Harbor Workers’ Compensation Act (“LHWCA”) compared to a state workers’ compensation scheme, attorneys for injured workers are constantly trying to fit their client into the LHWCA to maximize their potential recovery. As a result, there is a steady availability of legal opinions emerging from both administrative agencies as well as the judiciary. In nearly every case, the result hinges upon some sort of classification, such as: classifying the employee (maritime worker or not), classifying the employment (maritime work or not), or classifying the location of his/her work or injury (maritime situs or not), among others. Depending on the circumstances, the classification of the injured worker or his employment will determine whether or not he or she is entitled to federal or state benefits. [Editor’s Note: Our LHWCA 101 article can be read here.]
On August 19, 2016, the U.S. Fifth Circuit was presented with a dispute about whether James Baker fell under the LHWCA or the state workers’ compensation scheme. And as mentioned, that decision was based on a dispute of classification. Specifically here, the court was asked whether the Big Foot Tension Leg Platform (“TLP”) should be classified as a vessel. Mr. Baker was injured while working as a marine carpenter, constructing the living quarters that would eventually be placed on Big Foot. If Big Foot was classified as a vessel, then Mr. Baker would qualify as a shipbuilder under the LHWCA and entitled to Longshore benefits.
What constitutes a vessel has been litigated several times over in the past decade or so in the Fifth Circuit and the U.S. Supreme Court. In 2005, the U.S. Supreme Court decided Stewart v. Dutra Construction Company, 543 U.S. 481 (2005). Therein, the Supreme Court ruled that Super Scoop dredge, a floating platform with a clam shell bucket to remove silt from the ocean floor, qualified as a vessel under 1 U.S.C. § 3. To reach that opinion, the Supreme Court noted that Super Scoop “carried machinery, equipment, and a crew over water, its function was to move through Boston Harbor, … digging the ocean bottom as it moved.” Super Scoop was not only capable of being used for transport of equipment and workers, it was being used for that purpose.
More recently, in Lozman v. City of Riviera Beach, 133 S.Ct. 735 (2013) the Supreme Court was asked to determine whether a “floating home” was a vessel under 1 U.S.C. § 3. In concluding that Lozman’s houseboat was not a vessel, the Court noted that the houseboat was not regularly used to transport people or goods over water, had no rudder or other steering mechanism, had an unraked hull, had a rectangular bottom ten inches below the water, had no special capacity to generate or restore electricity, and had small rooms that looked like ordinary nonmaritime living quarters. Lozman’s houseboat also had no means of self-propulsion and could only be moved over water by towing.
On the heels of Lozman, the Eastern District of Louisiana held in Warrior Energy Services v. ATP TITAN, 2013 W.L. 1739378 (E.D. La. April 22, 2013), that a hybrid semisubmersible/spar did not qualify as a vessel. The ATP TITAN, was a triple column, floating production facility moored in 4,000’ of water. The TITAN was classified as an industrial vessel by the U.S. Coast Guard, and had navigational lights, lifeboats, crew quarters, an onboard generator, and a drinking water plant. It was designed to be moved to new fields to aid in oil and gas production every five to eight years. The district court distinguished the TITAN from other drilling rigs that have been previously classified as vessels by highlighting the fact that the TITAN would remain in its current location for 5-8 years. Further, to move the TITAN would take a year of planning, and approximately 15 – 29 weeks to accomplish, and would cost between $70-80,000,000.00 to move. Referring to the Lozman “reasonable observer test,” the court held that a reasonable observer “would likely find that the ATP TITAN is not practically capable of carrying people or things over water.” The Fifth Circuit later affirmed the Eastern District’s ruling. Citing to Stewart, the court characterized the dispositive question as “whether the watercraft’s use as a means of transportation on water is a practical possibility or merely a theoretical one.” In its analysis, the Fifth Circuit found: (1) the TITAN was moored to the floor of the OCS by twelve chain mooring lines connected to twelve anchor piles, each weighing 170 tons and each embedded over 200’ into the sea floor, and by an oil and gas production infrastructure; (2) the TITAN had not been moved since it was constructed and been installed in its current location in 2010; (3) the TITAN had no means of self-propulsion, apart from repositioning itself within a 200’ range by manipulating its mooring lines; (4) and moving the TITAN would require approximately a year of preparation, at 15 weeks for its execution, and would cost between $70,000,000.00 and $80,000,000.00. The ATP TITAN decision was consistent with prior court rulings finding spars to not be vessels. [Editor’s Note: For more in depth review of Stewart, Lozman and ATP Titan, please review our prior blog posts here and here.]
Big Foot, like other TLP’s, is a type of offshore oil platform used for deepwater drilling. Although Big Foot can float, it is not capable of self-propulsion, has no steering mechanism, does not have a racked bow and has no thrusters for positioning once on location. Once completed, Big Foot was scheduled to be towed to a location approximately 200 miles off the coast of Louisiana and anchored to the sea floor by over sixteen miles of tendons. While under tow, Big Foot will be tended by a crew that is employed to control Big Foot during the voyage. However, once anchored, Big Foot will serve as a work platform for the life of the oilfield, which is estimated to be 20 years. The U.S. Coast Guard classified Big Foot as a “floating Outer Continental Shelf facility” pursuant to 33 CFR § 143.120.
After his injury, Mr. Baker filed for Longshore benefits. At the time, he was working on the living quarters that were to be placed on Big Foot, which he claimed qualified him as a shipbuilder entitling him to Longshore benefits. The determining factor would be whether Big Foot was a vessel. The U.S. Fifth Circuit again reviewed the U.S. Supreme Court’s decision in Stewart and Lozman to compare Big Foot to the vessels analyzed in those cases. Mr. Baker argued that Big Foot was akin to Super Scoop, which was the focus of the Stewart case. The Department of Labor countered with a comparison to the Lozman houseboat. The Fifth Circuit was persuaded by the later. In reaching its opinion, the Fifth Circuit stated “like the floating home in Lozman, Big Foot has no means of self-propulsion, has no steering mechanism or rudder and has an unraked bow. Big Foot can only be moved by being towed through the water, and when towed to its permanent location, Big Foot will not carry items being transported from place to place but only mere appurtenances.” The crew aboard Big Foot only supervised its transportation, and would not be present upon permanent anchoring. Big Foot will not be used to transport equipment and workers over water in the course of its regular use. In fact, Big Foot’s only intended travel over water was its transport to its final location. Given these undisputed facts, and using the Lozman reasonable observer test, the Fifth Circuit stated that “a reasonable observer looking to Big Foot’s physical characteristics and activities, would not consider it to be designed to any practical degree for carrying people or things over water.” Thus, the Fifth Circuit continued to clarify the types of offshore facilities that do not qualify as vessels for the purpose of Longshore coverage.
Alternatively, Mr. Baker also argued that his work on the living quarters had a substantial nexus to the extraction of natural resources on the Outer Continental Shelf, sufficient to trigger OCSLA jurisdiction. This argument stems from the 2012 U.S. Supreme Court case, Pacific Operators Offshore, LLP v. Valladolid, 132 S.Ct. 680 (2012). Therein, the U.S. Supreme Court extended OCSLA jurisdiction to non-OCS situses where the injured employee established a “significant causal link between the injury that he suffered and his employer’s on-OCS operations conducted for the purpose of extracting natural resources from the OCS.” The Fifth Circuit rejected this argument as well. The Fifth Circuit held that “while not an office employee, Baker’s job of constructing living and dining quarters is too attenuated from Big Foot’s future purpose of extracting natural resources from the OCS for the OCSLA to cover his injury.” The court found persuasive the fact that Mr. Baker’s job did not require him to travel to the OCS at all, “making his work geographically distant from the OCS.” The Fifth Circuit further noted that Mr. Baker’s employer had no role in moving, installing, or operating Big Foot once placed on the OCS. As a result, Mr. Baker did not fall under the coverage of the LHWCA as extended by the OCSLA.
As new and uniquely-designed floating offshore structures hit the market, injured workers and their lawyers will continue to try to fit them within the definitions of a vessel for purposes of the Jones Act inclusion and/or Workers Compensation coverage. The emerging case law continues to provide guidance on how such vessels should be classified, and should be carefully considered when faced with a similar dispute.