We have a new truck driver case from the U.S. Department of Labor’s Benefits Review Board (BRB).
This one deals with the issue of situs as well as status. The decision also ducks the question of whether the driver was an independent contractor, not an employee and thus not covered by workers’ compensation, either state act or federal USL&H.
The case is Abdulaziz A. Ahmed v. Western Ports Transportation, Inc., BRB No. 16-0067, 9/21/16.
The claimant is a commercial truck driver. His “employer” contracts with independent truck owner/operators to transport domestic and international containers between rail yards, retail outlets, piers, and warehouses.
He usually worked as part of the employer’s “rail” operations, moving containers between the Port of Seattle terminals and rail yards.
He was injured at a rail yard, the Union Pacific Intermodal Facility. The Facility is two to three miles from the Port and the claimant’s route from the Port to the Facility involves, “… turns onto several streets and Highway 99, as well as crossing a drawbridge …”.
So, based on where the injury occurred, is the Facility a covered situs under the Longshore Act?
The situs provision of the Act, section 3(a), states:
“Except as other wise provided in this section, compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel).”
Our truck driver here was not injured over the water or at any of the specifically enumerated sites, so that leaves us with the question of whether the Union Pacific Intermodal Facility is an “other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel”.
NOTE: This injury occurred in the jurisdiction of the federal Ninth Circuit Court of Appeals (states of WA, OR, MT, ID, CA, NV, AZ, AK, HI). In the Ninth Circuit an “adjoining” area does not have to actually touch or be contiguous with the water as it does in the Fourth (states of MD, VA, WV, SC, NC) and Fifth (states of TX, LA, MS) Circuits, “adjoining” means with “contiguous with”. In the Ninth Circuit, “adjoining” depends on:
“… the particular suitability of the site for the maritime uses referred to in the statute; whether adjoining properties are devoted primarily to uses in maritime commerce; the proximity of the site to the waterway; and whether the site is as close to the waterway as is feasible given all of the circumstances in the case.” (Brady-Hamilton Stevedore Co. v. Herron, 568 F.2nd 137 (9th Cir. 1978))
In our case, the Facility is surrounded by mixed use properties (maritime and non-maritime), is several miles from the Port, and generally does not function as an area of maritime commerce.
Even in the relatively broad approach to situs used in the Ninth Circuit, the BRB affirmed the Administrative Law Judge’s (ALJ) finding that the claimant’s injuries did not occur on a covered situs.
NOTE: Although the Facility is located “several miles” from the Port, distance alone was not the reason that it was not a covered situs. Distance from the water is one among several factors considered in the Ninth Circuit.
So, the claimant in this case does not meet situs, and since both status and situs have to be independently satisfied for Longshore Act coverage, the case could have ended here.
But the BRB also discussed the status of the claimant, and affirmed the ALJ’s finding that the claimant did not meet status.
The claimant moved cargo from the Port of Seattle’s terminals to an intermodal rail facility. In the landmark case of P.C. Pfeiffer Co. v. Ford, 444 U.S. 69 (1979), the U.S. Supreme Court held that workers engaged in intermediate steps of moving cargo between ship and land transportation were covered by the Longshore Act. And in another landmark case, Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249 (1977), the Supreme Court rejected the “point of rest” theory. Unloading of cargo does not consist only of moving the cargo from the vessel to its initial point of rest at dockside.
Was the driver’s job an intermediate step in the process of moving cargo between the Port of Seattle’s terminals and the Intermodal Facility?
This issue involves the identification of the point at which cargo handling ends and land transportation begins. Workers on one side are engaged in maritime employment and meet status under the Longshore Act. Workers on the other side of this point are not engaged in maritime employment.
In addressing the status issue in the Ahmed case the BRB reviewed a number of prior truck driver cases. It considered several cases in which drivers who transported cargo between port terminals and facilities located outside the port were involved in the land based stream of commerce rather than an intermediate step in the loading/unloading process. The key point in several of the cases is that the drivers were transporting sealed containers to destinations outside the ports area.
On the other hand, transporting containers within the port area, such as from the dockside to terminal storage facilities and other destinations within the port, were considered to be still part of the loading/unloading process, i.e., an intermediate step since the cargo had not yet entered land transportation.
Since the driver in our case was transporting between the port and the Intermodal Facility outside the port he was involved in land transportation and did not meet status under the Longshore Act.
Finally, the claimant in this case did not board vessels or handle cargo. He just drove the truck. His activities were the first step in land transportation. In the other direction, his activity would be the last step in land transportation of cargo to be put aboard vessels.
NOTE: The ALJ had also found that the claimant was an independent contractor and not an employee. It would have been an interesting discussion if the BRB had also taken up this issue.
NOTE: This claimant was also out of luck with his compensation claim under the state act, in which he was adjudicated to be an independent contractor, not covered by workers’ compensation.
John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers’ Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation. Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of the AEU Longshore Blog.