BRB No. 97-1602
JOSEPH FIDALGO )
)
Claimant-Petitioner ) DATE ISSUED: 08/17/1998
)
v. )
)
NORTHEAST AUTO MARINE )
)
and )
)
NEW JERSEY MANUFACTURERS )
INSURANCE COMPANY )
)
Employer/Carrier- )
Respondents ) DECISION and ORDER
Appeal of the Decision and Order Denying Benefits of Ainsworth H. Brown,
Administrative Law Judge, United States Department of Labor.
Philip J. Rooney (Israel, Adler, Ronca & Gucciardo), New York, New York,
for claimant.
Christopher J. Field (Weber, Goldstein, Greenberg & Gallagher), Jersey
City, New Jersey, for employer/carrier.
Before: HALL, Chief Administrative Appeals Judge, SMITH and McGRANERY,
Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order Denying Benefits (97-LHC-39) of
Administrative Law Judge Ainsworth H. Brown rendered on a claim filed pursuant to
the provisions of the Longshore and Harbor Workers' Compensation Act, as amended,
33 U.S.C. §901 et seq. (the Act). We must affirm the findings of fact
and conclusions of law of the administrative law judge which are rational,
supported by substantial evidence, and in accordance with law. O'Keeffe v.
Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C.
§921(b)(3).
Claimant was injured on November 14, 1995, when the car he was driving in the
course of his employment was struck on the side by another car, resulting in
injuries to claimant's neck, shoulders, upper back, elbow and right ankle.
Claimant sought permanent partial disability benefits under the Act.
In his Decision and Order, the administrative law judge reviewed claimant's
duties relating to automobiles that were brought into the port by ship and unloaded
onto employer's dock, and found that claimant's duties of charging the cars' air
conditioners with freon, vacuuming the cars' air conditioning system, and moving
the cars to a quality inspector do not constitute maritime employment. Therefore,
the administrative law judge found that claimant was not a covered employee under
the Act, 33 U.S.C. §902(3), and he denied benefits.
On appeal, claimant contends that the administrative law judge erred in
denying coverage, asserting that he was involved in the intermediate steps of
moving cargo for further transshipment. Employer responds, urging affirmance of
the administrative law judge's decision.
While maritime employment is not limited to the occupations specifically
enumerated in Section 2(3) of the Act, 33 U.S.C. §902(3), claimant's
employment must be an integral or essential part of the chain of events leading up
to the loading, unloading, building, dismantling or repairing of a vessel. See
Northeast Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249, 6 BRBS 150
(1977); see generally Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S. 40, 23
BRBS 96 (CRT)(1989); SeaLand Service, Inc. v. Rock, 953 F.2d 56, 25 BRBS 112
(CRT)(3d Cir. 1992); Peter v. Hess Oil Virgin Islands Corp., 903 F.2d 935,
reh'g denied, 910 F.2d 1179 (3d Cir. 1990), cert. denied, 498 U.S.
1067 (1991). Coverage extends to workers who, although not actually loading and
unloading vessels, are involved in the intermediate steps of moving cargo between
ship and land transportation. P.C. Pfeiffer Co., Inc. v. Ford, [Ford]
444 U.S. 69, 11 BRBS 320 (1979).
The facts in Ford indicate the extent of coverage where a claimant is
engaged in intermediate steps in longshore activities. Claimant Ford was injured
on a dock while securing military vehicles, unloaded earlier, to railroad cars for
further transshipment. Claimant Bryant, in a consolidated case, was injured while
unloading a bale of cotton from a dray wagon onto a pier warehouse for subsequent
loading. Both claimants were held covered because they were engaged in
intermediate steps in moving cargo between ship and land transportation. The
Supreme Court reasoned that if the goods had been taken directly from the ship to
the train, or from the truck directly to a ship, the claimants' activities would
have been performed by longshoremen and that the only ground to distinguish
claimants from those who do such "direct" loading would be the "point of rest"
theory previously rejected in Caputo. Ford, 444 U.S. at 82, 11 BRBS
at 328.
The leading post-Ford case involving steps in the loading process in
the Third Circuit, within whose jurisdiction this case arises, is Novelties
Distribution Corp. v. Molee, 710 F.2d 992, 15 BRBS 168 (CRT)(3d Cir. 1983),
cert. denied, 465 U.S. 1012 (1984). In Molee, employees of Maher
Terminals unloaded lumber from ships, and placed it alongside the dock. The
claimant, an employee of Novelties, a warehouse and distribution company,
supervised the removal of the lumber from the dock to the warehouse. The court
held that the claimant was engaged in covered employment as the lumber had not yet
passed into land transportation but was still in the terminal area. The fact that
the claimant was an employee of the land-based company is not determinative of
coverage if the claimant's duties are integral to the movement of cargo between
land and sea transportation. See also Lewis v. Sunnen Crane Service, Inc.,
31 BRBS 34 (1997).
In Odness v. Import Dealers Service Corp., 26 BRBS 165 (1992), the
claimant worked for an employer that received shipments of vehicles at the port of
Los Angeles for further distribution to auto dealers. The cars were unloaded and
temporarily stored at the pier, then brought by truck to employer's facility where
they were washed, detailed, and checked over. After preparation, the cars were
loaded onto rail cars or trucks for shipment to distributors. The claimant spent
90 percent of his time maintaining the car wash facility, but contended that the
work he performed in surveying vehicles for damage, moving them from the terminal
and preparing the cars prior to loading for shipment to dealers, as well as
maintenance of equipment used in these activities, was covered work as it involved
intermediate steps in unloading the vehicles and readying them for further
transshipment.
The Board held that although coverage is extended to employees involved in the
intermediate steps of moving cargo between ship and land transportation, citing
Ford, the claimant was not covered as his work related to the land
transportation and sale of the vehicles and was not an integral part of the
unloading process. Odness, 26 BRBS at 171. The Board noted that while
washing cars was essential to their further shipment and sale, it does nothing to
further the unloading process, which was completed prior to the time that the
vehicles were transported to employer's facility. Thus, the Board held that
claimant's car washing duties involved the preparation of the vehicles for sale
after unloading is completed and this work was not part of a longshoring
operation.[1] Id. With regard to the
claimant's remaining activities, the Board held that the visual damage survey and
marking the cars for final destination did not facilitate, affect or contribute to
the unloading process. Odness, 26 BRBS at 170. Moreover, driving tractors
from the port to employer's facility was not a covered activity because it involved
picking up stored cargo for further transshipment, citing Dorris v. Director,
OWCP, 808 F.2d 1362, 19 BRBS 82 (CRT)(9th Cir. 1987)(claimant was not engaged
in maritime employment where his regular duties consisted of driving a truck
transporting containers to and from the terminal).[2]
In the present case, employer's facilities are directly at the port. Mr.
Vogt, executive vice-president of Northwest Auto Marine Terminal (employer)
testified that: employer is a port processor facility, which provides support
services to import and export manufacturers of automobiles; cars are unloaded by
employees of stevedoring companies and a damage survey is done; the custody of the
automobiles or cargo changes to employer after the marine damage survey; the
stevedores involved with unloading or loading the ships are contracted for by
either the manufacturer of the cargo or the steamship line, not employer; and that
upon completion of the damage survey, employer's insurance is liable for the state
of the automobiles. H. Tr. at 53-61. Employer's employees then move the cars
around the facility according to what needs to be done to the car, and the cars are
equipped, and repaired if damaged. After the vehicles are prepared and ready to
be delivered to a dealer, the manufacturer notifies employer what each vehicle's
destination is, and it is placed in a load line for a trucking company to pick up.
H. Tr. at 62. Mr. Vogt testified that an employee with claimant's job would drive
a car into the warehouse where another employee would "fix" the car. When the job
finished, claimant would drive the car out of the warehouse on the other side to
complete his duties in preparing the car, and then it would be moved by someone
else to the load line or a parking area.
Claimant testified that the vehicles are driven off the ship by employees of
the stevedoring companies and placed in the yard of employer. H. Tr. at 32. An
employee of employer will scan the cars to determine whether it needs air
conditioning, a radio, an arm rest, etc. The cars are then rearranged by what they
need to have done to them. Claimant's duties included removing the cars from the
lot designated as needing air conditioning and placing it in line to enter the
service bay with the required equipment (air conditioner, radio, etc.), putting it
on a ramp and disconnecting the battery. H. Tr. at 20-21. Then, he would go back
to the first car in line to exit the service bay and fill the air conditioner with
freon, check for leaks, and take it to the quality control inspector. H. Tr. at
21. After the inspector approved the car, claimant would return the car outside
to the yard, where it would be picked up and placed in the shipping yard (broken
up into individual parking spots for the different dealers) by other employees. H.
Tr. at 22-23.
As claimant correctly notes, the fact that he works for the land-based company
and not the stevedoring company is not determinative of the coverage issue.
Molee, 710 F.2d at 992, 15 BRBS at 168 (CRT). Nonetheless, we hold that
the administrative law judge properly found that claimant was not engaged in
maritime employment. Like the claimant in Odness, claimant's duties in the
instant case involve the preparation of the vehicles for sale. In fact, claimant
testified that "I only do air conditioning." H. Tr. at 22. Unlike the claimants
in Ford and Molee, claimant's duties are not integral to the movement
of cargo between sea and land in the terminal area. Rather, as demonstrated by
claimant's testimony and that of Mr.Vogt, claimant's duties solely involve the
preparation of the cars for shipment to dealers for sale. Therefore, this case in
indistinguishable from Odness and claimant's duties do not constitute
intermediate steps integral to the moving of cargo.[3] Odness, 26 BRBS at 165. Thus, we affirm the administrative
law judge's denial of benefits.[4]
Accordingly, the Decision and Order of the administrative law judge denying
benefits is affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
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Footnotes.
1)Similarly, the claimant in Zube v. Sun Refining & Marketing
Co., 31 BRBS 50 (1997), was denied coverage when the Board rejected claimant's
contention that the storage tanks from which he obtained his product for land
transport were not simply a "point of rest" but marked the product's exit from
maritime commerce and its transfer into land transportation, since delivery to the
owner who placed it into overland transportation was complete at that point.
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2)The claimant also testified he moved cars at the port four
times a year. The Board held that while such work is arguably maritime in nature,
in Odness it was too episodic, and moreover, the administrative law judge
discredited claimant's testimony on this count. Odness, 26 BRBS at 171.
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3)Claimant also was occasionally responsible for driving BMW's
to the dealer for the same type of preparation work done that was at the terminal
and then driving the car back to employer's facility for washing or to be stored
for pick-up. We reject claimant's contention that this duty, as well as his duties
driving the vehicles from around the terminal area, both during his regular work
day and during overtime at nights and on weekends, constitutes maritime employment
as this argument overlooks the fact that the purpose of claimant's work is to
prepare vehicles for sale. See H. Tr. at 46-47; see generally
Dorris, 808 F.2d at 1362, 19 BRBS at 82 (CRT).
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4)Consequently, we reject claimant's attorney's request for a fee
for work performed before the Board.
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NOTE: This is an UNPUBLISHED LHCA Document.
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