     Case: 12-60289        Document: 00512403882          Page: 1     Date Filed: 10/10/2013




                         REVISED OCTOBER 10, 2013

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                                                Fifth Circuit

                                                                             FILED
                                                                           October 8, 2013
                                        No. 12-60289
                                                                            Lyle W. Cayce
                                                                                 Clerk

BPU MANAGEMENT, INCORPORATED/SHERWIN ALUMINA COMPANY;
LIBERTY MUTUAL INSURANCE COMPANY,

                                                    Petitioners
v.

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR; DAVID MARTIN,

                                                    Respondents



                             Petition for Review of an Order
                              of the Benefits Review Board


Before DAVIS and JONES, Circuit Judges, and MILAZZO*, District Judge.
W. EUGENE DAVIS, Circuit Judge:
      Petitioner BPU Management Inc./Sherwin Alumina Co. (“Sherwin”)
employed Respondent David Martin (“Martin”) as a dockworker at its waterside
ore processing facility. When Martin was injured in one of the facility’s
underground ore transport tunnels, the Benefits Review Board (“BRB”) ordered
Sherwin to pay Martin benefits under the Longshore and Harbor Workers’
Compensation Act (“LHWCA” or “the Act”). Because we conclude that the

      *
          District Judge of the Eastern District of Louisiana, sitting by designation.
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                                       No. 12-60289

underground transport tunnel where Martin was injured is not used in the
vessel-unloading process, Martin’s injury did not occur on a LHWCA-covered
situs. We therefore GRANT Sherwin’s Petition for Review of the BRB’s decision,
and REMAND to the BRB to dismiss Martin’s claim.
                                              I.
      Sherwin operates an alumina processing facility on the Texas Gulf Coast,
the primary purpose of which is the production of industrial alumina from raw
bauxite.** Like many industrial production sites, Sherwin’s alumina facility is
situated along a navigable waterway so that vessels can easily unload feedstock
materials and load finished product.
      Because Sherwin’s facility includes both its manufacturing and its
loading/unloading operations. Bauxite unloaded from ships is moved directly into
the alumina production process. Sherwin’s operation begins when raw bauxite
is unloaded from vessels at docks in Sherwin’s deep water port using an
“overhead conveyor system.” The overhead conveyor system carries the bauxite
over a street and fence separating the dock area from the alumina processing
facility. There the conveyor deposits the bauxite into one of several dozen “bins”
located in a large covered storage area. The bauxite remains in the storage area
until it is needed; this varies from a few weeks to a period of years. Once a
particular grade of bauxite is selected for alumina extraction, a small gate
located in the floor beneath the appropriate bin or pile is opened to drain the
bauxite into a large, underground “reclaim system.” There the bauxite is
mechanically sifted through a “screw feeder,” which breaks down the bauxite
into smaller pieces and deposits it on the “reclaim conveyor belt.” From there,
the reclaim conveyor belt transports and drops the bauxite onto the “cross-tunnel
conveyor.” In turn, the cross-tunnel conveyor transports the selected bauxite to


      **
           Bauxite is the principal ore of aluminum.

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                                      No. 12-60289

the “rod mill,” where it is further pulverized as part of the manufacturing
process.*** In the course of conveyor belt transport, bauxite often spills off the
cross-tunnel conveyor onto the floor and must occasionally be shoveled back onto
the conveyor.
       From 1997 to 2006, Sherwin employed David Martin as a dockworker.
Though Martin’s primary duty was to ensure that ships were properly docked
and loaded or unloaded, he ordinarily spent several hours each month cleaning
the cross-tunnel of debris. On February 15, 2006, Martin was in the cross-tunnel
shoveling fallen bauxite back onto the conveyor when he injured his lower back.
       Martin was allegedly unable to return to his job with Sherwin and filed a
claim seeking benefits under the LHWCA. At the benefits hearing, the ALJ
concluded that the cross-tunnel where Martin was injured is a LHWCA-covered
situs because it is “linked to buildings where vessels were loaded and unloaded.”
As such, the ALJ found that Sherwin was responsible to Martin for benefits
under the LHWCA.
       Sherwin appealed the ALJ’s order to the BRB, arguing that the cross-
tunnel is not a LHWCA-covered situs. However, the BRB rejected Sherwin’s
argument, reasoning that the cross-tunnel has a substantial nexus with the
bauxite-unloading process. Because the cross-tunnel is underneath the storage
area, which adjoins and has a “functional relationship with navigable waters,”
the BRB concluded that it is a LHWCA-covered situs. Accordingly, the BRB
affirmed the ALJ’s decision, and Sherwin now petitions for review.
                                            II.




       ***
            Once the manufacturing process is completed, the alumina is sent by a separate
series of conveyor belts to alumina silos, then to the dock, and finally to a loading tower.

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                                             No. 12-60289

         We conduct a de novo review of the BRB’s legal conclusions.**** The
question of LHWCA situs is ordinarily a mixed question of law and fact.*****
“However, where, as in this case, the facts are not in dispute, ‘[LHWCA]
coverage is an issue of statutory construction and legislative intent,’ and should
be reviewed as a pure question of law.”******
                                                   III.
         The sole question we must decide in this case is whether the cross-tunnel
where Martin was injured is a covered situs under the LHWCA.
         The LHWCA extends coverage to employees only if their injury occurred
on a covered situs. This situs is defined in 33 U.S.C. § 903(a), and extends
coverage to “injur[ies] occurring upon the navigable waters of the United States
(including any adjoining 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).” In the instant case,
Martin’s injury did not occur on navigable waters or in one of the LHWCA’s
enumerated areas. Therefore, Martin’s injury only satisfies the situs
requirement if he shows his injury occurred in an “other adjoining area
customarily used by an employer in loading[ or] unloading . . . a vessel.”*******
         In a recent en banc decision of this court, New Orleans Depot Services, Inc.
v. DOWCP, we explained precisely what the LHWCA’s other-adjoining-area situs
provision requires: “[A]n ‘other adjoining area’ must satisfy two distinct situs
components: (1) a geographic component (the area must adjoin navigable

         ****
                 Andrepont v. Murphy Exploration & Prod. Co., 566 F.3d 415, 417 (5th Cir. 2009).
         *****
                  New Orleans Depot Servs., Inc. v. DOWCP, 718 F.3d 384, 387 (5th Cir. 2013) (en
banc).
         ******
                   Id. (quoting DOWCP v. Perini North River Assocs., 459 U.S. 297, 300, 305 (1983)).
         *******
             See id. It is undisputed that Sherwin’s facility is not used for “repairing,
dismantling, or building a vessel.” See 33 U.S.C. § 903(a).

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waters) and (2) a functional component (the area must be ‘customarily used by
an employer in loading [or] unloading . . . a vessel’).”********
                                                   A.
       Turning first to the geographic component of the situs test, the LHWCA
only covers injuries in an area which “adjoins” navigable waters.********* In New
Orleans Depot, we specifically rejected a broad definition of “adjoins” and found
that the word should be given its ordinary meaning: “contiguous with” or
“abutting upon.”********** Therefore, an area is only adjoining navigable
waters—and within the reach of the LHWCA—if it borders on or is contiguous
with navigable waters.*********** Here, the employer’s entire facility including the
location where Martin was injured adjoins navigable water. Martin has therefore
satisfied the geographic prong of the situs test.
                                                   B.
       Proceeding to the functional prong, the situs of Martin’s injury is only a
LHWCA-covered “other adjoining area” if it is “customarily used” for unloading
vessels.************ To satisfy the situs inquiry’s functional prong, the site of the
injury need not be “exclusively” or “predominantly” used for unloading—only
customarily.************* Moreover, we look to the general purpose of the area rather




       ********
                  718 F.3d at 389–90 (quoting 33 U.S.C. § 903(a)).
       *********
                   See 33 U.S.C. § 903(a).
       **********
                    See 718 F.3d at 390–94.
       ***********
                     Id.
       ************
             See 33 U.S.C. § 903(a). No one alleges that Sherwin’s facility is used for any
of the LHWCA’s other enumerated activities: vessel loading, repair, construction, or
dismantling.
       *************
                       See Coastal Prod. Servs., Inc. v. Hudson, 555 F.3d 426, 435 (5th Cir. 2009).

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than requiring “every square inch of an area” to be used for a maritime
activity.**************
         In the instant case, the BRB concluded that the cross-tunnel where Martin
suffered his injury is used in the unloading process and therefore has a
functional relationship with navigable waters. According to the BRB, the surface
storage buildings above the cross-tunnel are connected to the docks by conveyor
belts and are therefore a part of Sherwin’s unloading process. Because the
storage buildings are used in unloading bauxite and do not house manufacturing
facilities, the BRB reasoned that the cross-tunnels beneath the buildings are
necessarily involved in the unloading process.
         However, the BRB’s analysis mischaracterizes the nature of the cross-
tunnels and their connection to the unloading process. Specifically, the fact that
surface-level storage buildings are connected to the unloading process does not
automatically render everything above and below the buildings a part of the
unloading process. Such a generalization ignores the operational realities of a
sophisticated multi-tier facility and arbitrarily attributes to one distinct area the
functions of another. Moreover, the correct question is not whether Sherwin’s
cross-tunnels are used for manufacturing, but whether the cross-tunnels are
customarily used for unloading a vessel. If the tunnels are not used for
unloading a vessel, then Martin’s injury did not occur in a LHWCA-covered
situs.
         As this court has previously recognized, “the primary purpose of . . .
loading and unloading [is] to get cargo on or off the [vessel].”*************** Moreover,



         **************
                 See id. The LHWCA situs inquiry is not “a game of hopscotch” in which “[t]he
bathrooms in an otherwise ‘adjoining area’ would not be covered, [or the] pavement that
although clearly within the area, had not been walked on by stevedores loading and unloading
a vessel.”
         ***************
                           Owens v. SeaRiver Maritime, Inc., 272 F.3d 698, 704 (5th Cir. 2001).

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the mere act of loading, unloading, moving, or transporting something is not
enough: “Nothing intrinsic in any of these activities establishes their maritime
nature, rather it is that they are undertaken with respect to a ship or
vessel.”*************** Thus, “the essential elements of unloading a vessel” are
“taking cargo out of the hold, moving it away from the ship’s side, and carrying
it immediately to a storage or holding area.”*************** Although maritime
unloading necessarily requires some nexus with a vessel, the Supreme Court has
rejected a definition of unloading which stops the moment a vessel’s cargo is
unloaded onto the dock.***************
        Several courts have considered the extent to which an activity is part of
the vessel-unloading process. In Chesapeake & Ohio Ry. Co. v. Schwalb, the
Supreme Court determined that where a conveyor belt is used to load coal onto
a ship, employees who clean up fallen coal beneath the conveyor are involved in
the unloading process.*************** Because the unloading operations would soon
cease if the loading area was not maintained, the Court reasoned that such
employees are “essential to the loading . . . process.”***************
       Martin argues that Schwalb controls here, but the facts of the instant case
are distinguishable from Schwalb because as we explain below, Martin was not
injured while participating in unloading a vessel or conduct essential to that
activity. At least two decisions from other circuits involving facts similar to the


       ***************
                   Fontenot v. AWI, Inc., 923 F.2d 1127, 1131 (5th Cir. 1991). See also Herb’s
Welding, Inc. v. Gray, 470 U.S. 414, 424 (1985) (“We have never read ‘maritime employment’
to extend so far beyond those actually involved in moving cargo between ship and land
transportation.”) (emphasis added).
       ***************
                         Northeast Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249, 267 (1977).
       ***************
                         See id. at 266–67.
       ***************
                         493 U.S. 40, 47 (1989).
       ***************
                         Id.

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instant case demonstrate why Schwalb does not control. The Eleventh Circuit,
in Bianco v. Georgia Pacific Corp., found that the portions of a large riverside
industrial gypsum facility used for bagging gypsum and slicing sheetrock were
not related to the facility’s vessel-unloading activities.*************** Bianco involved
a multi-stage process for unloading and production comparable to the instant
case.*************** First, raw gypsum was unloaded from the ship by a conveyor belt
into a hopper.*************** Then, a second conveyer belt carried the gypsum to a
Transfer House, where it proceeded to a third conveyor belt to be poured into a
rock shed.*************** The gypsum would remain in storage inside the rock shed
until it was needed for the production of sheet-rock or gypcrete.*************** When
it was needed for production, the gypsum would be “crushed, screened, [and]
baked” before it was sent to a production department.*************** The employee
suffered two injuries in the sheet-rock production department of the
facility.*************** The court held that, it was inappropriate to find that the
employer’s entire facility was an “adjoining area,” irrespective of the activities
occurring in different areas. The court reasoned that it “would effectively be
writing out of the statute the requirement that the adjoining area be
‘customarily used by an employer in loading, unloading, repairing, dismantling,
or building a vessel.’”***************

       ***************
                         304 F.3d 1053, 1058 (11th Cir. 2002).
       ***************
                         See id. at 1053.
       ***************
                         Id.
       ***************
                         Id.
       ***************
                         Id.
       ***************
                         Id.
       ***************
                         Id.
       ***************
                         Id. at 1060 (internal citations omitted).

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      Another case, perhaps even closer to the facts of today’s case, the Eighth
Circuit considered whether part of an industrial coal-loading facility—whose
entire purpose was to load coal onto vessels—was customarily used in the
loading process.*************** Specifically, an employee sought LHWCA benefits
after being injured in an area that temporarily stored loaded coal cars before
they were released down an incline to the ship-loading conveyor.*************** The
employee’s job duties were limited to placing the cars in the Barney Yard and
setting their handbrakes to secure them in place.*************** After the cars were
secured, a separate crew would release them to be sent down an incline where
the coal was loaded.*************** Reasoning that the loading process did not begin
until the coal cars were identified and released towards the area where coal was
physically loaded, the court concluded that the car storage area was not
customarily used in the loading process.***************
      The Supreme Court has not provided a firm definition of unloading in this
context, but its decision in P.C. Pfeiffer Co. v. Ford provides the most
guidance.*************** Specifically, the P.C. Pfeiffer Court was concerned with
whether two workers were involved in unloading vessels and thereby engaged
in “maritime employment.”*************** The Court reasoned that the traditional
longshoreman’s job was only to “transfer[] goods between ship and land
transportation,” the Court concluded that anyone participating in this unloading

      ***************
                        See In re Norfolk Southern Ry. Co., 592 F.3d 907, 914 (8th Cir. 2010).
      ***************
                        Id.
      ***************
                        Id. at 910.
      ***************
                        Id. at 914.
      ***************
                        See id.
      ***************
                        444 U.S. 69, 79–80 (1979).
      ***************
                        Id. at 77–82.

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process was engaged in maritime employment.*************** In determining the
point at which the unloading process had been completed, the Court’s line was
clear: the LHWCA covers all of the unloading activities in the chain of
transferring cargo from vessel to land transport, but it does not cover the
activities of a person whose “responsibility is only to pick up stored cargo for
further trans-shipment.”*************** The employees in Pfieffer were both injured
while preparing cargo for further transport.*************** The first employee,
Diverson Ford, injured a finger on his left hand as he fastened military vehicles
onto railroad flatcars for land shipment; the second employee, Will Bryant, was
injured while unloading a bale of cotton into a pier warehouse, where it would
later be moved out of the warehouse to a ship for transportation.*************** The
Court held that both men were injured before the cargo had been surrendered
for land transport—before the unloading process had been completed.
      The P.C. Pfeiffer Court’s rationale suggests a clear rule in the usual case
where cargo is unloaded for ultimate shipment over land: Vessel-unloading
includes the transfer of cargo from ship to shore only until it is surrendered for
land transport. Because a shoreside industrial facility such as Sherwin’s does not
utilize any land transport, we must determine what part of Sherwin’s bauxite
intake process is the appropriate analog for the surrender of cargo to land
transport.
      We read Pfeiffer to hold that the surrender of cargo for land transport
marks the end of the maritime unloading process because it is the point where




      ***************
                        Id. at 80–82.
      ***************
                        Id. at 83.
      ***************
                        Id. at 71–72.
      ***************
                        Id.

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the longshoreman’s duty to unload and move the cargo ceases.*************** Not
coincidentally, the point of surrender is also the point at which the receiving
party takes responsibility for the cargo.*************** In the instant case, the point
at which Sherwin’s dock employees cease moving bauxite and deposit it for
another “party” to retrieve is when the bauxite is delivered into the storage area.
Once the ore is deposited into storage, it is Sherwin’s engineering employees who
manage and control the bauxite’s further movement. Because Sherwin’s dock
employees no longer exercise control over bauxite in storage, the delivery of
bauxite into storage is the functional equivalent of the surrender of cargo for
land transport.
      The operational layout of Sherwin’s bauxite processing system reinforces
the conclusion that the vessel-unloading process is complete long before bauxite
reaches the cross-tunnels. Although incoming bauxite is deposited on top of the
bauxite stockpiles, bauxite used in production is extracted from the bottom of the
stockpiles. Therefore, because Sherwin stockpiles bauxite for periods of months
and years, it would be inaccurate to describe this stored bauxite as a mere step
in the vessel-unloading process. Also relevant is the fact that the alumina
manufacturing process begins—which would suggest any vessel-unloading is
finished—the instant bauxite is funneled from the stockpiles into the reclaim
system. In fact, bauxite only enters the cross-tunnel where Martin was injured
after it sits in a long-term storage stockpile, migrates to the bottom of its
respective ore pile, is specifically selected by Sherwin’s process engineers for
production, is crushed in the screw feeder, and is finally transported towards the




      ***************
                        See id. at 79–84.
      ***************
                        See id.

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                                             No. 12-60289

metal-extraction facility. Ore at this stage is clearly no longer being “unloaded”
from a vessel in any sense of the word.***************
       Martin responds by insisting that shoveling ore debris in the cross-tunnel
is part of unloading because it is “essential to the [un]loading . . .
process.”*************** Specifically, Martin contends that if the cross-tunnel area
was not routinely cleaned of debris, the cross-tunnel would theoretically fill up
with ore, the conveyor would have to be shut down, the stockpile areas would
eventually fill up, and no more ore could be unloaded from vessels. While
unloading does embrace those activities on which the unloading process directly
depends—such as cleaning the unloading area and maintaining the unloading
equipment—this is not one of those areas. The record indicates that an
extraordinary amount of additional bauxite could be deposited in outdoor storage
before unloading would have to cease.*************** Cleaning an area so far removed
from    any        unloading        operations     is   not   “integral    to   the   unloading
process.”***************
       Because the delivery of shipped cargo into Sherwin’s storage area is the
functional equivalent of surrendering the cargo to a receiving land carrier, we
conclude that this is where the vessel-unloading process ends. Thus, we hold



       ***************
                   See Sidwell v. Va. Int’l Terminals, Inc., 372 F.3d 238, 244 (4th Cir. 2004)
(“The LHWCA requires a direct and immediate role in the loading or unloading process.”); see
also Bianco, 304 F.3d at 1058 (“”Here, the . . . production plant was not an ‘area’ used either
exclusively, or even customarily, for a maritime purpose or for significant maritime activity.”);
In re Norfolk Southern Ry. Co., 592 F.3d 901. Note also that because a longshoreman involved
in unloading ore at Sherwin’s dock is not required to enter and exit the cross-tunnels, the
LHWCA’s concern for shifting coverage does not apply here.
       ***************
                         See Schwalb, 493 U.S. at 47.
       ***************
                  Specifically, uncontradicted testimony established that Sherwin’s additional
storage areas could accommodate more than a million tons of bauxite ore, while those storage
areas only contained about a quarter of a million tons of ore at the time of the formal hearing.
       ***************
                         See Schwalb, 493 U.S. at 47.

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that Sherwin’s underground cross-tunnels are not customarily used for
unloading vessels and do not satisfy the LHWCA’s functional prong. Accordingly,
Martin fails to satisfy the LHWCA’s situs test.
                                     IV.
      For the reasons stated above, the Petition for Review is granted and the
case is remanded to the BRB to enter an order dismissing Martin’s claim for
benefits under the LHWCA.


PETITION GRANTED and REMANDED.




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