
USCA1 Opinion

	




          April 21, 1993    UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-1659                                   DAVID VEGA-MENA,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________                                     ERRATA SHEET               The  opinion  of this  Court issued  on  April 13,  1993, is          amended as follows:               On page 12, last line, delete "is" after "it".                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1659                                   DAVID VEGA-MENA,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                     [Hon. Carmen C. Cerezo, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                           Campbell, Senior Circuit Judge,                                     ____________________                         and Skinner,* Senior District Judge.                                       _____________________                                 ____________________            Eli B. Arroyo with whom Andres  Garcia Arache and Alcides  Oquendo            _____________           _____________________     ________________        Maldonado were on brief for appellant.        _________            Silvia Carreno Coll, Assistant  United States Attorney,  with whom            ___________________        Daniel F. Lopez-Romo,  United States  Attorney, was on  brief for  the        ____________________        United States.                                 ____________________                                    April 13, 1993                                 ____________________                                    ____________________        *Of the District of Massachusetts, sitting by designation.                      CAMPBELL,  Senior  Circuit  Judge.    Appellant,  a                                 ______________________            security  guard injured on the  job at a  United States naval            station  in  Puerto  Rico,  brought  this  negligence  action            against  the  United States  and  others  after he  collected            benefits  under Puerto  Rico's workers'  compensation system.            The  United States District Court for  the District of Puerto            Rico granted summary judgment  for the United States, finding            that the United  States was appellant's "statutory  employer"            and  thus immune  from suit  under the Puerto  Rico Workmen's            Compensation Act.  Appellant argues on  appeal that the court            misapplied  Puerto Rico  law, and,  in the  alternative, that            federal law preempts the  statutory employer immunity rule of            Puerto Rico law.  We affirm the grant of summary judgment.                                          I.                                          I.                      In 1988, appellant David Vega-Mena  was employed by            Vigilantes,  Inc. ("Vigilantes"), a Puerto Rican corporation,            as a security guard.  Pursuant to  a contract with the United            States  of   America,  Vigilantes  provided   security  guard            services at the United  States Naval Station, Roosevelt Roads            in Ceiba, Puerto Rico.   On the evening of October 13,  1988,            Vega-Mena was  performing his duties  as a security  guard at            the Roosevelt Roads naval station when he fell into a tank of            waste diesel fuel and sustained serious injuries.                        Vigilantes was an insured employer pursuant to  the            Puerto Rico Workmen's Compensation Act ("PRWCA"), 11 L.P.R.A.                                         -3-               1 et seq., and  Vega-Mena applied for,  and collected, all                 _______            the  benefits available to  him as an  employee of Vigilantes            under the PRWCA.  Thereafter,  in October 1990, Vega-Mena and            other  plaintiffs brought  this  civil action  in the  United            States District Court for the District of Puerto Rico against            the United States, Vigilantes,  and certain other defendants.            Plaintiffs  alleged  that defendants'  negligence  had caused            Vega-Mena's  injuries.   For  reasons  not  relevant to  this            appeal, the complaint was amended in April 1991 to name Vega-            Mena  as  the sole  plaintiff and  Vigilantes and  the United            States as the only defendants.                      Both  the original  and amended  complaints alleged            that  the  district court  had  jurisdiction  pursuant to  28            U.S.C.    1346, the  jurisdictional provision of  the Federal            Tort Claims Act.  The complaints also referred to 28 U.S.C.              2671, which  defines terms  used in  the Federal Tort  Claims            Act.  The only cause of action alleged was for "negligence."                      The  district court  dismissed  the claims  against            Vigilantes  on jurisdictional  grounds.   Vega-Mena  does not            appeal from that  ruling.   In July 1991,  the United  States            moved for summary  judgment on  the claims against  it.   The            government argued that the Puerto Rico Workmen's Compensation            Act entitled  it  to "statutory  employer"  immunity  against            appellant's action.  Vega-Mena replied that the United States            did not meet  the requirements of  Puerto Rico for  statutory                                         -4-            employer  status.   In  the  alternative,  he contended,  the            Longshore and  Harbor Workers' Compensation Act,  33 U.S.C.              901 et seq.     which applied to his case,  appellant argued,                _______            by  force  of the  Defense  Bases Act,  42  U.S.C.    1651               preempted Puerto Rico's statutory employer rule, disentitling            the United States to statutory employer immunity.                        The district court granted  summary judgment to the            United States, finding no genuine issue of  material fact and            holding  that  the  PRWCA  provided the  United  States  with            statutory   employer  immunity.      The  court   noted  that            plaintiff's original and amended complaints made no reference            to the  Longshoreman and Harbor Workers'  Compensation Act or            the  Defense Bases  Act, but stated  that "the  outcome would            have been the same" even if  he had "brought the claim" under            those acts.   Appellant  Vega-Mena appeals from  the district            court's final order to the extent it granted summary judgment            for appellee, the United States.                                         II.                                         II.            A.  Puerto Rico Statutory Employer Doctrine                _______________________________________                      Vega-Mena   contends   that   the  district   court            misconstrued Puerto Rican law  in determining that the United            States  was  immune  as  a  "statutory  employer"  from  tort            liability for appellant's injuries.                       Under  the workers'  compensation scheme  in Puerto            Rico, when an employee suffers an injury, illness, disability                                         -5-            or death  as a result  of "any  act or  function inherent  in            [his]  work," and his  employer is insured  according to law,            the  employee's right  to compensation  from the  employer is            limited to  the statutory  compensation  offered through  the            State Insurance Fund.  11 L.P.R.A.   2, 21; Santiago Hodge v.                                                        ______________            Parke Davis & Co., 126 D.P.R. 1 (1990)  (hereinafter Santiago            _________________                                    ________            Hodge P.R.)  (reprinted in  Santiago Hodge  v. Parke Davis  &            __________    _________ __  ______________     ______________            Co., 909 F.2d 628, 635 (1st Cir.  1990) (hereinafter Santiago            ___                                                  ________            Hodge  II)).   The  injured worker  lacks  a cause  of action            _________            against his employer for damages regardless of the employer's            degree  of negligence.  Santiago Hodge P.R., reprinted in 909                                    ___________________  _________ __            F.2d at 636-37.   The  PRWCA does not,  however, prevent  the            injured  worker  from suing  a third  party  in tort  for the            worker's insured injuries, such  a defendant being a stranger            to the  employer-employee relationship.   Id. at 637;  see 11                                                      ___          ___            L.P.R.A.   32.1                                            ____________________            1.  11 L.P.R.A.   32 provides in part:                      In   case   where    the   injury,    the                      professional   disease,   or  the   death                      entitling  the workman or employee or his                      beneficiaries    to    compensation    in                      accordance  with  this  chapter has  been                      caused under circumstances making a third                      party   responsible   for  such   injury,                      disease, or death, the injured workman or                      employee or his  beneficiaries may  claim                      and recover damages  from the third party                      responsible for said injury,  disease, or                      death, within one year following the date                      of the final decision  of the case by the                      Manager of the State Insurance  Fund, who                      may  subrogate himself  in the  rights of                                         -6-                      The concept of  "statutory employer" was  fashioned            by the Puerto Rico courts to extend an employer's immunity to            certain persons  who were not technically  employers but were            thought to  deserve immunity  from tort liability  because of            their    close    involvement   in    the   employer-employee            relationship.  See Santiago  Hodge v. Parke Davis &  Co., 859                           ___ _______________    __________________            F.2d 1026,  1029 (1st Cir. 1988)  (hereinafter Santiago Hodge                                                           ______________            I).   The courts took note  of the fact that  a contractor is            _            not   only  compelled   to  provide   workmen's  compensation            insurance for his own employees, see 11 L.P.R.A.   19, but is                                             ___            also  "subsidiarily liable for the premium payments ('taxes')                   ____________            of the workers  of a  person who 'contracted'  with him  [the            contractor] or  the workers  of 'a contractor  or independent            subcontractor'  hired  by  him   when  the  latter  were  not            insured[.]"   Santiago Hodge P.R.,  reprinted in 909  F.2d at                          ___________________   _________ __            637 (emphasis in  original); see 11 L.P.R.A.   20.2  The term                                         ___                                            ____________________                      the   workman   or   employee    or   his                      beneficiaries   to  institute   the  same                      action . . . .            2.  11 L.P.R.A.   20 provides:                           Every  insured  employer  shall,  on                      reporting his annual payrolls, include in                      said payrolls  the wages paid  to all the                      workmen  and  employees  working  for  or                      employed  by him,  whether by the  job or                      under some person  with whom the employer                      contracted  for  the  job,  or   under  a                      contractor  or  independent subcontractor                      employed or contracted by  said employer;                      and  all accounts  or taxes  collected by                      the   State   shall  be   based   on  the                                         -7-            "statutory employer" is thus  used by the Puerto  Rico courts            to  refer to "the principal contractor and to distinguish him            from the  subcontractor, the real or  contractual employer of            an   employee  who  seeks  compensation  for  a  work-related            accident, when  the principal contractor may  be protected by            the employer  immunity."   Santiago Hodge P.R.,  reprinted in                                       ___________________   _________ __            909  F.2d  at  638.    One  purpose  for  making  contractors            responsible for the premiums incurred by subcontractors is to            encourage     principal     contractors,    when     choosing            subcontractors,  to insist  that  they carry  the appropriate            workers' compensation insurance.  Id. at 637.                                              ___                      Puerto  Rico case  law  "has  only  recognized  the            'statutory  employer' within  the  context of  a contract  or            subcontract  for  work  or  services, and  only  for  project            owners, principal contractors or subcontractors who had, with            regard to the  injured worker, the mutual legal obligation to            insure him with the State Insurance Fund."  Id. at 638.  "The                                                        ___            determinant  factor  of immunity  is  the  existence of  that            direct or indirect link  between the workman who  suffers the            accident and the  employer in the course of  whose employment            and  as consequence of which  the injury takes  place."  Ruiz                                                                     ____                                            ____________________                      employer's current payroll in which shall                      be included the above-mentioned laborers;                      Provided, That this  provision shall  not                      be  applicable to employers for whom work                      is done by  an independent contractor who                      is  insured  as  an  employer  under  the                      provisions of this chapter.                                         -8-            Diaz  v. Vargas Reyes, 109 D.P.R.  761, 9 P.R. Sup. Ct. Off'l            ____     ____________            Translations 1019, 1024 (1980).                      Unless  there  exists  a  legal  nexus  linking the            worker's direct employer to the wrongdoer in the mutual legal            obligation to insure the employee  with the Fund, the alleged            wrongdoer  is   a  mere   "third  party"   lacking  statutory            protection  against claims  by  injured workers,  and not  an            immune "statutory employer."  Santiago  Hodge P.R., reprinted                                          ____________________  _________            in  909 F.2d  at  638.   The  crucial factor  in  determining            __            whether the requisite  legal nexus exists  is the nature  and            terms  of the contractual relationship between the contractor            and subcontractor.   Id. at  639.  In Lugo  S nchez v. Puerto                                 ___              _____________    ______            Rico Water Resources Auth.,  105 D.P.R. 861, 5 P.R.  Sup. Ct.            __________________________            Off'l Translations 1198 (1977), the Puerto Rico Supreme Court            held that a principal contractor who requires his independent            subcontractors to take  out workmen's compensation  insurance            has "insured"  the workmen of  the independent  subcontractor            and is  therefore immune from suit under the exclusive remedy            provision,  11 L.P.R.A.   21.   See Garcia  v. Friesecke, 597                                            ___ ______     _________            F.2d 284,  288-89  (1st Cir.),  cert.  denied, 444  U.S.  940                                            _____________            (1979); Santiago Hodge P.R., reprinted in 909 F.2d at 638.                    ___________________  _________ __                      In the present case,  the district court ruled that            the United  States qualified as a  statutory employer because            it  shared   the  legal  obligation   to  insure  Vigilantes'            employees  under  the   Puerto  Rico  workers'   compensation                                         -9-            program.    The United  States and  Vigilantes clearly  had a            principal contractor-subcontractor relationship.  Under their            written agreement, Vigilantes was obligated to provide  guard            services to the United States at specified locations for  the            term  of the  contract.    Vigilantes'  employees,  including            appellant,   worked  as   guards  at   United  States   naval            facilities,   and  appellant  sustained  his  injuries  while            working as a Vigilantes  guard on patrol at such  a facility.            Even  more  to the  point,  the  United States  contractually            required  Vigilantes  to obtain  state  workers' compensation            insurance  for the security guards as required by Puerto Rico            law.3  It was under  this insurance that appellant, following                                            ____________________            3.   The relevant provision in the contract reads:                 H.18  INSURANCE                       _________                      Within fifteen  (15) days  after the award  of this                 contract, the Contractor  [Vigilantes] shall furnish the                 OIC [a United  States government agency] certificate  of                 insurance as evidence of  the existence of the following                 insurance coverage in amounts  not less than the amounts                 specified below in accordance with the "INSURANCE - WORK                 ON A GOVERNMENT INSTALLATION" clause, Section I.                                       COVERAGE            COVERAGE       PER PERSON     PER ACCIDENT    PROPERTY            Comprehensive  $300,000       $1,000,000      $100,000             General             Liability            Automobile     $300,000       $1,000,000      $100,000            Liability            Worker's       AS REQUIRED BY STATE LAW            Compensation            (Other as required by State Law)                                         -10-            injury,  brought  his claim  for compensation  and recovered.            Given  the terms of the  contract between the  parties, it is            clear that  under Puerto Rico  law the requisite  legal nexus            existed between  the United  States and Vigilantes,  and thus            that the  United States  was properly  found by  the district            court to be immune as appellant's statutory employer.                      Appellant  makes only  one attack  on the  district            court's application of Puerto Rico law to  the facts, arguing            that the  contract between  Vigilantes and the  United States            was  essentially  a  "contract  for hire"  recognized  by  31            L.P.R.A.    4111, and that this type of contract creates only            a   relationship   of   employer-employee,  not   contractor-            subcontractor.4      However,   section  4111  only  entitles                                            ____________________            The Certificate  of Insurance  shall provide for  thirty days            written notice to the  OIC by the insurance company  prior to            cancellation or  material change  in policy coverage.   Other            requirements   and   information   are   contained   in   the            aforementioned "Insurance" clause.            4.  31 L.P.R.A.   4111 provides:                           Period  of  contract  for  services;                           ____________________________________                      remuneration    The services  of servants                      ____________                      and  laborers may  be  contracted  for  a                      fixed period  of time, or without a fixed                      period.  A hiring for life shall be void.                      Professional  services,  as  regards  the                      remuneration  therefor, shall  be subject                      to  the  agreement  of  the  parties; and                      where  there  is   no  agreement  as   to                      remuneration,  and a  disagreement should                      arise  respecting  the  same,  the  party                      entitled to such remuneration may sue and                      recover  from  the   adverse  party   the                      reasonable value of such services  in any                      court of competent jurisdiction.                                         -11-            servants  and laborers  to  collect the  reasonable value  of            their  services  from an  employer  if  there  is no  written            employment agreement,  and prohibits  "hiring for life."   31            L.P.R.A.    4111.  It  does not in any way  alter or void the            terms of the  written contract between the  United States and            Vigilantes,   which   clearly   establishes   a   contractor-            subcontractor relationship sufficient  to entitle the  United            States  to  statutory  employer  immunity under  Puerto  Rico            law.5                      We  find  no  error,  therefore,  in  the  district            court's  holding  that, under  Puerto  Rico  law, the  United            States  is immune  as  a "statutory  employer"  from suit  by            appellant under Puerto Rican tort law.            B.    Applicability  of  the Longshore  and  Harbor  Workers'                  _______________________________________________________            Compensation Act            ________________                      Appellant  argues, in  the  alternative,  that  the            United States is not immune because the federal Longshore and            Harbor  Workers' Compensation Act preempts Puerto Rico's rule            of statutory  employer immunity.  The  district court applied            Puerto  Rico law  because  appellant's  complaint stated  its                                            ____________________            5.  Appellant  argues  that  the  United  States  waived  the            affirmative defense of statutory employer immunity by failing            to raise  it in its answer  to the complaint.   We decline to            consider appellant's  argument because  he never  advanced it            before the district court.   Clauson v. Smith, 823  F.2d 660,                                         _______    _____            666 (1st Cir. 1987).                                         -12-            claim against the United States under the Federal Tort Claims            Act  ("FTCA").      The  complaint   expressly  invoked   the            jurisdictional  provision  of the  FTCA,  28  U.S.C.    1346,            without  mentioning any other federal or state law.  Under 28            U.S.C.    1346(b), the  district court has  jurisdiction over            actions against the United States for money damages:                      for   injury  or  loss  of  property,  or                      personal  injury or  death caused  by the                      negligent or wrongful act or  omission of                      any  employee  of  the  Government  while                      acting within the scope of his  office or                      employment, under circumstances where the                                  _____________________________                      United States, if a private person, would                      _________________________________________                      be liable  to the claimant  in accordance                      _________________________________________                      with the  law of the place  where the act                      _________________________________________                      or omission occurred.                      ____________________            28 U.S.C.   1346(b) (emphasis supplied).   The district court            applied  the law  of  the place  where  the act  or  omission            occurred, Puerto Rico,  and reached the  conclusion, affirmed            supra, that  under  Puerto Rico  law  the United  States  was            _____            immune as a statutory employer.                      Appellant concedes  that he sued the  United States            pursuant to the  FTCA and that the  FTCA mandates application            of  local law.   However,  he argues:  (1) the  Longshore and            Harbor Workers'  Compensation Act ("LHWCA"), 33  U.S.C.   901            et  seq., also  applies  to this  case,  as extended  by  the            ________            Defense Bases Act,  42 U.S.C.   1651  et seq.; (2) the  LHWCA                                                  _______            exclusive liability provision, 33 U.S.C.   905(a), entitles a            contractor  to  statutory  employer   immunity  only  if  the            subcontractor actually fails to secure payment to the injured                                         -13-            worker; (3) the subcontractor  here, Vigilantes, did not fail            to secure compensation payments for appellant; (4) therefore,            under  the  LHWCA,  the  United States  is  not  immune  from            appellant's  suit for  damages; and, (5)  since the  LHWCA is            federal law, it preempts the inconsistent PRWCA rule and thus            should have been applied by the district court.                      Appellant's  preemption argument  presupposes that,            because his accident occurred on a naval base in Puerto Rico,            the Defense Bases  Act, 42  U.S.C.   1651  et seq.,  applies,                                                       _______            mandating application  of the Longshore  and Harbor  Workers'            Compensation  Act.     See  42  U.S.C.     1651(a).6     This                                   ___            supposition may or may not be so.  It can be argued that, for                                            ____________________            6.  42 U.S.C.   1651 provides that:                      (a)  Except  as   herein  modified,   the                      provisions  of   the  Longshoremen's  and                      Harbor    Workers'   Compensation    Act,                      approved March 4,  1927 (44 Stat.  1424),                      as amended, shall apply in respect to the                      injury  or death of  any employee engaged                      in any employment                              (2) upon any  lands occupied or used                      by  the  United  States  for  military or                      naval  purposes  in   any  Territory   or                      possession outside the continental United                      States (including the United States Naval                      Operating Base, Guantanamo Bay, Cuba; and                      the Canal Zone);                       . . . .            Section 1651  also makes the LHWCA applicable to employees of            contractors  and  subcontractors  on  certain   public  works            projects outside the continental United States.   42 U.S.C.              1651(a)(3)-(a)(5).      42   U.S.C.      1651(b)(4)   defines            "continental United  States" as "the States  and the District            of Columbia."                                         -14-            the narrow and specialized purposes of the Defense Bases Act,            Puerto Rico  is not  a "Territory or  possession outside  the            continental United States" as  those terms are there intended            to  be  understood.7    We  need  not,  however,  decide this                                            ____________________            7.  Appellant asserts without  analysis that bases in  Puerto            Rico  "obviously" fall  within the  definition of  "any lands            occupied or used by  the United States for military  or naval            purposes  in   any  Territory   or  possession   outside  the            continental  United States."  The  question is not so simple,            however.    The Defense  Bases Act  applies  to bases  in any            "territory,"  but that term is not defined by the Act nor has            appellant cited  any cases  interpreting it in  that context.            As we have noted before:                      The  term "territory"  does  not  have  a                      fixed and technical  meaning accorded  to                      it in all circumstances, and  thus Puerto                      Rico may be  found to be  included within                      one   act   whose  coverage   extends  to                      territories  of  the  United  States  and                      excluded  from  another.    Americana  of                                                  _____________                      Puerto  Rico, Inc.  v.  Kaplus, 368  F.2d                      __________________      ______                      431,  436 (3d  Cir. 1966),  cert. denied,                                                  ____________                      386 U.S.  943, 87  S.Ct. 977,  17 L.Ed.2d                      874 (1967).  "[W]hether Puerto Rico comes                      within   a    given   congressional   act                      applicable  in  terms  to a  'territory,'                      depends upon the character and aim of the                      act."  Puerto Rico  v. The Shell Company,                             ___________     _________________                      302 U.S. 253, 258,  58 S.Ct. 167, 169, 82                      L.Ed. 235 (1937).            Garcia  v.  Friesecke, 597  F.2d 284,  293 (1st  Cir.), cert.            ______      _________                                   _____            denied, 444  U.S. 940  (1979).  Nor  is it clear  whether the            ______            Defense   Bases  Act  can   apply  concurrently   with  local            compensation acts.  See 42 U.S.C.   1651(c) (making liability                                ___            of employer under  Defense Bases Act "exclusive  and in place            of  all  other liability  of  such  employer  . .  .  to  his            employees (and  their dependents) within the  purview of this            chapter, under  the workmen's compensation law  of any State,            Territory, or  other jurisdiction"); Flying Tiger Lines, Inc.                                                 ________________________            v. Landy, 370 F.2d 46, 51-52 (9th Cir. 1966).               _____                 In Royal Indemnity Co. v. Puerto Rico Cement  Corp., 142                    ___________________    _________________________            F.2d  237 (1st Cir.), cert. denied, 323 U.S. 756 (1944), this                                  ____________            court stated that the  purpose of the Defense Bases  Act "was                                         -15-            difficult question  in order  to resolve the  present appeal.            Even assuming the Act applies, and appellant falls within it,            appellant cannot prevail.   Hence, for purposes  of this case            only and  specifically without  deciding the issue,  we shall            assume that the  Defense Bases Act applies  to military bases            in  Puerto  Rico.   We shall  also  assume, again  solely for            purposes  of argument  and  without  actually deciding,  that            appellant could show on the particular facts of his case that            he satisfied  all other requirements of the Defense Bases Act            and the pertinent provisions of the LHWCA.8                                            ____________________            to  provide   the  same   relief  to   outlying  territories,            including . . .  Puerto  Rico, as  the  existing law  affords            employees in  the United  States" and  held that  the Defense            Bases Act applied exclusively and in place of the PRWCA.  Id.                                                                      ___            at 239.   How much of  Royal Indemnity is  still good law  is                                   _______________            unclear given  the comprehensive evolution since  1944 of the            law  of  federal  and  state  compensation  schemes  and,  in            particular, the subsequent amendment of    3(a) of the LHWCA,            upon  which  Royal  Indemnity  was  based.    See Simpson  v.                         ________________                 ___ _______            Director, Office of Workers' Compensation  Programs, 681 F.2d            ___________________________________________________            81,  88 (1st  Cir. 1982)  (questioning continued  vitality of            Royal Indemnity after Calbeck v. Travelers Insurance Co., 370            _______________       _______    _______________________            U.S. 114 (1962)), cert. denied sub nom. Bath Iron Works Corp.                              _____________________ _____________________            v. Director,  Office of Workers'  Compensation Programs,  459               ____________________________________________________            U.S. 1127  (1983); see generally  Lusson v. Carter,  704 F.2d                               ___ _________  ______    ______            646 (1st Cir.  1983); Garcia  v. Friesecke, 597  F.2d 284;  4                                  ______     _________            Arthur Larson,  The Law of Workmen's  Compensation,    89.10-                            __________________________________            .27(c) (1990).            8.  Appellant  has never  applied for  LHWCA benefits  on the            ground of entitlement  under the Defense Bases  Act, and thus            it  has never been  determined by the  Deputy Commissioner in            the applicable United States Department of Labor Compensation            District  whether  and  to what  extent  he  may  in fact  be            eligible for such benefits.  See  42 U.S.C.   1653; 33 U.S.C.                                         ___              939; 20  C.F.R. pt. 702;  AFIA/CIGNA Worldwide v.  Felkner,                                        ____________________     _______            930 F.2d 1111, 1112-14  (5th Cir.), cert. denied, 112  S. Ct.                                                ____________            297  (1991) (describing  procedures  for making  claims under            LHWCA as extended  by Defense Bases Act).  On the other hand,                                         -16-                      We   proceed,   therefore,   on  the   supposition,            arguendo,  that  Vega-Mena's  accident  occurred  within  the            ________            concurrent  jurisdiction both  of  the Longshore  and  Harbor            Workers'  Compensation Act  and of  the Puerto  Rico Workers'            Compensation Act.   See Sun  Ship, Inc. v.  Pennsylvania, 447                                ___ _______________     ____________            U.S.  715, 717-19  (1980)  (reviewing  history of  concurrent            jurisdiction  of  state  workers'  compensation  systems  and            LHWCA).     When  both  the  LHWCA  and  a  state  act  apply            concurrently,  the  injured  worker  is  free  to  apply  for            benefits  under either system.   Id. at 724.   "When laborers                                             ___            file  claims  under the  LHWCA,  they  are compensated  under            federal standards.   And  workers who commence  their actions            under  state  law  will generally  be  able  to  make up  the            difference  between  state  and  federal  benefit  levels  by            seeking relief  under the  Longshoremen's Act, if  the latter            applies."  Id.                       ___                      That  appellant could  have  applied (as  we assume                                      _____  ____  _______            arguendo) for  benefits under the  LHWCA, does not  mean that            ________            any tort claim he may have against a third party is a federal            cause of  action.   Though appellant's injury  occurred on  a            naval  base, he has neither  alleged nor does  he or could he            argue  that he has a federal maritime cause of action against                                            ____________________            appellant  has  applied  for,  and  has  received,  workmen's            compensation  benefits under  Puerto  Rico law.   As  we have            already  held,  the  United  States is  an  immune  statutory            employer under Puerto Rico law.                                         -17-            the United States.  The LHWCA itself clearly creates no cause            of  action  against  the   United  States  as  the  allegedly            negligent third-party contractor.  Griffis v. Gulf Coast Pre-                                               _______    _______________            Stress  Co., 850  F.2d 1090,  1091 (5th  Cir. 1988);  Ward v.            ___________                                           ____            Norfolk Shipbuilding & Drydock Corp., 770 F. Supp. 1118, 1121            ____________________________________            (E.D. Va. 1991).   The  only cause of  action for  negligence            against third parties expressly referred to in section 905 is            that  against vessels pursuant to 33 U.S.C.   905(b).9  Hence            while section 905(a), and  33 U.S.C.   933, provide  that the            LHWCA does not limit an injured worker's right to sue a third                           _____            party, those provisions do not create, nor do they purport in                                           ______            any  way  to  establish,  the  third  party's  liability  for            negligence.10  The liability  of a third party, other  than a                                            ____________________            9.  33 U.S.C.   905(b) establishes  a cause of action against            vessels for negligence:                      In  the  event  of  injury  to  a  person                      covered  under this chapter caused by the                      negligence of a vessel, then such person,                      or anyone otherwise  entitled to  recover                      damages by reason  thereof, may bring  an                      action  against such  vessel  as a  third                      party in accordance  with the  provisions                      of section 933 of this title, . . . .            10.  33 U.S.C.   933(a) provides:                           (a)  Election  of  remedies   If  on                           ___________________________                      account  of  a  disability  or  death for                      which compensation is payable  under this                      chapter  the  person  entitled   to  such                      compensation determines  that some person                      other  than the employer  or a  person or                      persons  in  his   employ  is  liable  in                      damages, he  need  not elect  whether  to                      receive such compensation  or to  recover                                         -18-            vessel, must arise under some federal or state law other than            the LHWCA.   Griffis, 850 F.2d at 1091; Ward, 770 F. Supp. at                         _______                    ____            1121-22.  Here, the  only cause of action against  the United            States  is  based  on  Puerto  Rico  negligence  law  as made            applicable by the Federal Tort Claims Act.  "[W]hen state law            creates a cause  of action, the State  is free to define  the            defenses to  that claim,  including the defense  of immunity,            unless, of course, the state rule is in conflict with federal            law."     Ferri  v.  Ackerman,  444  U.S.  193,  198  (1979).                      _____      ________            Therefore, unless the statutory employer immunity rule of the            PRWCA  is in conflict with  the LHWCA rule,  in particular 33            U.S.C.    905(a), under the  circumstances of this  case, the            Puerto Rico defense to appellant's claim applies and, as held            above,  the   United  States   is  immune   from  appellant's            negligence action.                      After  examining the precise  scope of  the federal            and  Puerto  Rico  rules,  and keeping  in  mind  the Supreme            Court's  admonition to  avoid "seeking out  conflicts between            federal  and  state  regulation where  none  clearly exists,"            Huron Portland Cement Co.  v. City of Detroit, 362  U.S. 440,            _________________________     _______________            446  (1960),  we  find  no conflict  in  these  circumstances            between  the  LHWCA's exclusive  liability provision  and the            Puerto  Rico  rule  of   statutory  employer  immunity.    As                                            ____________________                      damages against such third person.                                         -19-            explained in  Part II.A. supra, under  Puerto Rico's workers'                                     _____            compensation  scheme  all  employers  must  insure their  own            employees  and,   in  return,  their   liability  for   their            employees'  injuries  is  limited  by  11  L.P.R.A.     21 to            workers' compensation payments.  11 L.P.R.A.   21 provides:                        21.   Exclusiveness of remedy   When an                              _______________________                      employer insures his workmen or employees                      in  accordance  with  this  chapter,  the                      right   herein   established  to   obtain                      compensation  shall  be  the only  remedy                      against the employer, even in those cases                      where maximum  compensations and benefits                      have    been   granted    in   accordance                      thereof; . . . .             In shorthand,  11 L.P.R.A.   21  entitles complying employers            to "immunity" from damages actions  by injured employees.  In            addition,  a   contractor  is  secondarily  liable   for  the            insurance premium payments for its  subcontractor's employees            when the subcontractor is not properly insured.   11 L.P.R.A.              20.   As interpreted by the Puerto Rico Supreme Court, this            mutual obligation  entitles contractors to  the same immunity            enjoyed by employers and so such contractors are deemed to be            "employers" for the purposes  of 11 L.P.R.A.   21.  They have            so-called  "statutory employer  immunity."   This means  that            such  a contractor can invoke  11 L.P.R.A.    21 as a defense            against claims by his subcontractors' injured employees.                      Under the LHWCA, as  under the Puerto Rico statute,            an  employer must "secure the payment to his employees of the            compensation payable"  under the  LHWCA, 33 U.S.C.    904(a),                                         -20-            and  in exchange is liable  to injured employees  only to the            extent  of the workers'  compensation payments.   33 U.S.C.              905(a).    In  contrast  to the  PRWCA,  however,  the  LHWCA            requires  contractors  to   secure  compensation  for   their            subcontractor's  employees  only  if  the  subcontractors are                                        ________            actually  uninsured.  33 U.S.C.    904(a).   The more limited            responsibility  of  contractors  for   their  subcontractors'            employees is mirrored by the limited immunity for contractors            granted by 33 U.S.C.   905(a):                      The liability of  an employer  prescribed                      in  section 904  of this  title shall  be                      exclusive  and  in  place  of  all  other                      liability   of   such  employer   to  the                      employee,  .   .  .  except  that  if  an                      employer  fails  to  secure   payment  of                      compensation as required by this chapter,                      an injured  employee .  . . may  elect to                      claim compensation under this chapter, or                      to  maintain  an  action  at  law  or  in                      admiralty for damages  on account of such                      injury or death.  . . .  For  purposes of                      this  subsection,  a contractor  shall be                      deemed the employer of  a subcontractor's                      employees only if the subcontractor fails                      to  secure the payment of compensation as                      required by section 904 of this title.            Thus,  a  contractor  is  entitled  to  so-called  "statutory            employer"  immunity   under  section   905(a)  only   if  the            contractor is compelled by  section 904(a) to secure workers'            compensation  for the  subcontractor's employees  because the            subcontractor fails to do so and the contractor actually does            secure the payment.   Louviere v. Marathon Oil Co.,  755 F.2d                                  ________    ________________            428, 429-30 (5th Cir. 1985).                                         -21-                      Clearly,  then,  the  statutory  employer  immunity            provisions of the  LHWCA and  the PRWCA are  different.   Cf.                                                                      ___            Garcia v. Friesecke, 597 F.2d 284, 293 (1st Cir.) (explaining            ______    _________            differences    between    Puerto    Rico   Supreme    Court's            interpretation of PRWCA, which grants immunity to contractors            who  require  subcontractor  to acquire  insurance,  and  the            former  1st Circuit  interpretation of  the PRWCA,  which did            not), cert.  denied, 444  U.S. 940  (1979).   It is far  less                  _____________            clear, however, that they  are in "conflict."  We  think they            are  not.  As we decided supra, the United States is entitled                                     _____            to immunity  as  an  "employer"  within  the  meaning  of  11            L.P.R.A.   20 against a Puerto Rico negligence action brought            by this  employee who  was  both insured,  and has  recovered            compensation,  under Puerto  Rico's Act.   Even  assuming the            United  States  would  fail were  it  to  try  to invoke  the            statutory  employer immunity  created  by  section  905(a),11            this shows only that  the federal statute does not go  so far            as Puerto  Rico's to bar third-party actions by employees who            come  within its  own program.   The  LHWCA does  not express            disapproval  of  a state's  affording  a  different or  wider            employer's immunity in the case of its own insureds.                                               ____________________            11.  Whether the United States  would not be federally immune                                                  ___            is by  no  means  clear  on  this record.    To  qualify  for            immunity,  the United  States  would have  to  show that  (a)            Vigilantes failed to secure LHWCA compensation as required by            section 904;  and (b) the  United States  itself secured  the            payment  of such compensation.  The facts pertaining to these            issues were not developed below.                                         -22-                      Conflict  is  lacking  because,   although  section            905(a)  does  not  give   the  United  States  immunity  from                               ____            appellant's  suit, neither  does  it take  away the  immunity                                                 ____  ____            separately  created by  Puerto Rico's  workmen's compensation            laws.   The last  sentence of  section 905(a)  seems crucial:            "For  purposes  of this  subsection,  a  contractor shall  be             __________________________________            deemed the  employer of  a subcontractor's employees  only if            the subcontractor fails to secure the payment of compensation            as required by section 904 of this title." 33 U.S.C.   905(a)            (emphasis added).   On its  face, section  905(a) limits  the            extent of immunity for contractors only "for purposes of this            subsection."  That  is, a contractor cannot  invoke the first            sentence  of section 905(a)     which limits the liability of            an "employer"  who complies with 33  U.S.C.   904(a)     as a            shield  against  liability to  employees  of  a subcontractor            unless   the   subcontractor   actually   fails   to   secure            compensation.  Section 905(a) does not refer  to or otherwise            implicate immunities granted by  other federal or state laws.            In this case, the United States did not invoke section 905(a)            as a defense  against appellant's action.  Instead,  it found            shelter  in a  Puerto Rico  statute, 11 L.P.R.A.    21.   So,            while section 905(a) does not confer immunity upon the United            States  here,   neither   does  it   facially  prohibit   the            application of immunity created by Puerto Rico law.                                         -23-                      Moreover, the legislative history of section 905(a)            contains no evidence that Congress intended to preempt state-            law rules of  statutory employer immunity when  the LHWCA and            state  acts have  concurrent jurisdiction.   Congress amended            sections 4(a) and  5(a) of  the LHWCA, 33  U.S.C.     904(a),            905(a),  to   legislatively  overturn  the   Supreme  Court's            decision  in Washington  Metropolitan Area  Transit Auth.  v.                         ____________________________________________            Johnson, 467 U.S. 925  (1984).  See H.R. Conf. Rep. No. 1027,            _______                         ___            98th   Cong.,  2d   Sess.  24   (1984),  reprinted   in  1984                                                     _________   __            U.S.C.C.A.N.  2734,  2774;12  Griffis,  850  F.2d  at   1091;                                          _______                                            ____________________            12.  The relevant portion of  the Joint Explanatory Statement            of the Committee of Conference reads:                           The  Senate  bill addresses  several                      issues  growing out  of the  liability of                      employers and third  parties for  damages                      or compensation. . . .                           The Conference substitute deals with                      the  issues  of overlapping  and indirect                      liability  and  of  exclusive  remedy  as                      follows:                      . . . .                           Third, the substitute addresses that                      issue  of immunity in the situation where                      an employee  of a subcontractor  brings a                      third party action against the contractor                      for a work-related  injury.  The  Supreme                      Court  in  Washington  Metropolitan  Area                                 ______________________________                      Transit Authority v.  Johnson, 104  S.Ct.                      _________________     _______                      2827  (1984),  changed key  components of                      what  had  widely  been regarded  as  the                      proper  rules  governing  contractor  and                      subcontractor   liability   and  immunity                      under   the  Longshoremen's   and  Harbor                      _________________________________________                      Workers' Compensation Act.                      _________________________                           The   Conference   substitute,    in                      disapproving  WMATA v.  Johnson, achieves                                    _____     _______                      the following: First,  the obligation  of                      the contractor to secure compensation for                                         -24-            Garvin v. Alumax of  South Carolina, Inc., 787 F.2d  910, 916            ______    _______________________________            (4th Cir.), cert. denied,  479 U.S. 914 (1986).   The Supreme                        ____________            Court in Washington Metropolitan  Area Transit had held that,                     _____________________________________            under section 5(a) before it was amended in 1984, contractors            were  entitled to immunity as "employers" so long as they had            not  defaulted  on their  obligation  under  section 4(a)  to                                            ____________________                      the  employee of  the subcontractor  is a                      contingent one, which  is triggered  only                      upon the failure of the  subcontractor to                      secure    compensation   for    its   own                      employees.      Second,  the   contractor                      remains  amendable [sic]  to suit  by its                      subcontractors'   employees   in    those                      instances   where    the   subcontractor-                      employer  has   fulfilled  its  statutory                      obligation to secure compensation for its                      employees.    Third,  however, where  the                      subcontractor   defaults    in   securing                      compensation,    thus    triggering   the                      contractor's  obligation, and  the latter                      fulfills that  obligation, the contractor                      is deemed an  "employer" for purposes  of                                               ________________                      section  5(a)  and therefore  entitled to                      _____________                      immunity from suit by the subcontractor's                      employees.    Fourth,  if the  contractor                      utilizes a "wrap-up" insurance  policy to                      provide   insurance   coverage  for   the                      benefit      for      satisfying      the                      subcontractor's  primary   obligation  to                      secure compensation, the contractor still                      remains  amenable to suit by employees of                      the  subcontractor;  the contractor  does                      not  enjoy  the   immunity  afforded   by                                                  _____________                      Section 5(a) of the Act.                      _______________________                           . . .  WMATA, the conferees believe,                                  _____                      does  not  comport  with the  legislative                      intent  of the Act nor its interpretation                      from 1927  to 1983.  The  case should not                      have any precedential effect.            H.R.  Conf. Rep. No. 1027, 98th Cong., 2d Sess. 23-24 (1984),            reprinted  in  1984  U.S.C.C.A.N.  2734,   2773-74  (emphasis            _________  __            added).                                         -25-            secure  back-up  compensation  for  subcontractor  employees,            regardless  of  whether  or  not  the subcontractor  actually            failed to  secure compensation  for its  own employees.   467            U.S.  at  936-40.    Three  months  after  the  Court  issued            Washington  Metropolitan  Area   Transit,  Congress   amended            ________________________________________            sections  4(a) and 5(a) to  narrow the scope  of section 5(a)            immunity by making it available to contractors only where the            subcontractor  defaults  in  securing  compensation  and  the            contractor is obliged by  the amended section 4(a) to  secure            it instead.   See Longshore and  Harbor Workers' Compensation                          ___ ___________________________________________            Act Amendments  of 1984, Pub.  L. No.  98-426,   4,  98 Stat.            _______________________            1639, 1641 (1984).13          We  find  no  evidence  in  the                                            ____________________            13.  That amendment provided:                      Sec. 4.  (a) Section 4(a)  is amended  to                      read as follows:                           "Sec. 4. (a) Every employer shall be                      liable  for and shall  secure the payment                      to  his  employees  of  the  compensation                      payable under  sections 7, 8, and  9.  In                      the  case   of  an  employer  who   is  a                      subcontractor, only if such subcontractor                      fails   to   secure   the    payment   of                      compensation  shall   the  contractor  be                      liable for and be required  to secure the                      payment of compensation.  A subcontractor                      shall not  be  deemed to  have failed  to                      secure the payment of compensation if the                      contractor  has  provided  insurance  for                      such compensation for the benefit  of the                      subcontractor.".                           (b)  Section  5(a)  is   amended  by                      adding  at the end  thereof the following                      new  sentence:  "For  purposes   of  this                      subsection, a contractor shall  be deemed                      the   employer   of   a   subcontractor's                      employees only if the subcontractor fails                                         -26-            legislative history,  however, of  an intent to  supplant all            state-law statutory  employer  immunity doctrines  where  the            LHWCA   and  state   compensation  schemes   have  concurrent            jurisdiction.   See Garvin,  787  F.2d at  916-17.   Congress                            ___ ______            expressly stated  that the amendment's purpose  was to change            the rules  governing "immunity  under the  Longshoremen's and            Harbor Workers' Compensation Act,"  the "immunity afforded by            Section 5(a) of the Act,"  and the definition of  "'employer'            for purposes  of section  5(a)."   Congress  did not  mention            state-created  immunity  or state  law  workers' compensation            laws.   Absent such evidence, we  see no reason to  find that            Congress  intended   such  a  sweeping  preemption  of  state            workers' compensation  laws, a  change that  would contradict            the general  presumption that the LHWCA  "supplements, rather            than  supplants,  state  compensation  law"   where  the  two            overlap.   Sun Ship,  447 U.S. at  720.  Because  neither the                       ________            text  nor  legislative  history  of  section  905(a)  support            appellant's contention that it conflicts with Puerto Rico law            in  this situation, we find no preemption and thus affirm the            district   court's  application   of  Puerto   Rico  workers'            compensation law without regard for the LHWCA.                                            ____________________                      to  secure the payment of compensation as                      required by section 4.".            Pub. L. No. 98-426,   4, 98 Stat. 1639, 1641 (1984).                                          -27-                      Our holding today  is consistent with the  decision            of  the Fourth Circuit in Garvin v. Alumax of South Carolina,                                      ______    _________________________            Inc., 787 F.2d  910 (4th  Cir.), cert. denied,  479 U.S.  914            ____                             ____________            (1986),  which held  that  section 905(a)  does not  conflict            with, and hence does not preempt, the statutory employer rule            of  South  Carolina  workers'  compensation  law,  when  both            regimes apply  concurrently and  the injured worker  brings a            common-law negligence claim against a contractor.  The Garvin                                                                   ______            court found  that a contractor was entitled to immunity under            South  Carolina  law and  was  not entitled  to  the immunity            extended by section 905(a), as amended in 1984.                      There is nothing in that amendment or its                      legislative history, however, to indicate                      a congressional intention to restrict the                      application of state created  immunity of                      contractors  in  situations in  which the                      state  statute   traditionally  had  been                      applied.                           It was necessary, of course, for the                      Congress in  the  LHWCA to  deal in  some                      fashion  with  employer  immunity.   That                      statute has exclusive application  in the                      District of Columbia and to most injuries                      suffered on  the navigable waters  of the                      United  States.    In  those  areas,  the                      Congress was free to determine for itself                      under   what   circumstances  a   general                      contractor  would  be  immune  from  tort                      actions by employees of  a subcontractor,                      but nothing done in the Congress suggests                      that  it  intended  to modify  immunities                      provided  general  contractors  by  state                      workmen's  compensation laws,  when those                      laws are applicable. . . .                            The South Carolina rule  of immunity                      of  a  contractor   in  the  position  of                      [defendant] is different from  that under                      the LHWCA, but  not in conflict  with it,                      for   Congress   has  not   purported  to                                         -28-                      prescribe  the  immunity   rules  to   be                      applied by states in actions brought upon                      state law claims.             Id.  at 916-17.  Because  plaintiff had a  state-law cause of            ___            action, the LHWCA immunity  rule did not apply and  hence did            not conflict with the  South Carolina rule.  Id.   Similarly,                                                         ___            the Virginia Supreme Court held that where both the LHWCA and            Virginia workers' compensation act apply to an injured worker            who brings a state-law  negligence suit against a contractor,            the Virginia statutory employer  immunity rule, which is also            essentially the same  as Puerto Rico's,  is not preempted  by            section 905(a).   McBride  v. Metric Constructors,  Inc., 239                              _______     __________________________            Va. 138, 387 S.E.2d 780 (1990).                      We  recognize  that  under significantly  different            circumstances  the question  of  whether  the LHWCA  preempts            state-law defenses of statutory employer  immunity might have            a different answer.   See, e.g., Gates v. Shell Oil, 812 F.2d                                  ___  ____  _____    _________            1509, 1513-14 (5th Cir.), cert. denied, 494  U.S. 1017 (1990)                                      ____________            (holding  that  the  Louisiana  statutory  employer  rule  is            inapplicable  to a  federal statutory  claim under  the Outer            Continental  Shelf  Lands  Act  by  injured  offshore  worker            because it is  "inconsistent," within meaning of  43 U.S.C.              1333,  with   the  federal  LHWCA  rule);   Ward  v.  Norfolk                                                        ____      _______            Shipbuilding  &  Drydock  Corp.,  770  F.  Supp.  at  1121-22            _______________________________            (applying LHWCA statutory employer rule instead of  state-law            rule where  injured worker had a  "general [federal] maritime                                         -29-            negligence cause of action"  against a contractor); Kramer v.                                                                ______            Bouchard Transp.  Co., 741  F. Supp. 1023,  1025-26 (E.D.N.Y.            _____________________            1990)  (applying federal  rule where  LHWCA bar  on indemnity            actions  between  vessel  owner  and employer,  33  U.S.C.               905(b), conflicted with state U.C.C. rule); see also Lewis v.                                                        ________ _____            Modular  Quarters, 487  U.S.  1226,  1226-27 (1988)  (denying            _________________                                     _______            certiorari  to  508  So.  2d  975  (La.  1987))  (White,  J.,            __________  __            dissenting, arguing that  Supreme Court  should have  granted            certiorari to settle the  question whether the LHWCA preempts            state-law statutory employer immunity  rules).  But the above            cases are all factually distinguishable from ours, which fits            squarely within the rules of Garvin and McBride.                                         ______     _______                                        III.                                         III.                      In summary, (1)  the district court properly  found            that, under Puerto Rico law, appellee United States is immune            from appellant's  negligence action; and (2)  for purposes of            immunity the  district court  properly chose to  apply Puerto            Rico  law,  instead of  section 905(a)  of the  Longshore and            Harbor Workers' Compensation Act,  because under the facts of            this  case the federal act  does not preempt  the Puerto Rico            statutory employer doctrine.  We affirm the grant of  summary            judgment for appellee United States.                      Affirmed.  No costs.                      ________   ________                                                      -30-
