LHWCA, OCSLA, and Injuries Within State Waters

LHWCA, OCSLA, and Injuries Within State Waters

By: Kevin Phillips

Edited by: Tiffany Morales

Romero v. Y & S Marine, LLC, No. 13-4873, 2014 WL 2993032 (E.D. La July 2, 2014).This Motion for Summary Judgment resolves whether an action for recovery in tort, based upon an injury which occurred in Louisiana state waters, may proceed under the Longshore and Harbor Workers’ Compensation Act (LHWCA) as extended by the Outer Continental Shelf Land Act (OCSLA), general maritime law, or the Louisiana Workers’ Compensation Act (LWCA). The court held that it may proceed under general maritime law.Plaintiff, Romero, was injured in Louisiana’s Black Bay, which is state territorial waters, while transferring from a vessel to an oil platform. Plaintiff alleges that the injury was caused by negligence on the part of the vessel in “failing to provide a safe means of ingress/egress and by breaching the warranty of seaworthiness,” as well as the platform “failing to prevent an unreasonably dangerous transfer and failing to have appropriate ingress/egress equipment.” Plaintiff was employed as a Class A Operator by Wood Group PSN, Inc. which had a Master Service Agreement (MSA) with Defendant Helis Oil and Gas Co, LLC (Helis) declaring that Helis would be treated as the statutory employer. Helis also owned the platform. Defendant Y & S Marine owned the vessel. Both vessel and platform owners were sued in their capacity as owners of the location of the injury. Helis argued that both their subcontractor status and the MSA provided immunity from such suit by means of the LWCA which would provide the sole remedy to recover from an employer for an injury. Plaintiff was denied a remedy under the LHWCA. However, Plaintiff successfully argued that the suit was not brought pursuant to workers’ compensation principals but pursuant to general maritime law principals.To succeed in bringing a claim under the LHWCA the injury upon which the claim is based must meet the situs and status requirements or the expanded test provided by OCSLA. Here, situs, or location, was easily met as the injury occurred on or adjacent to navigable waters. The court relied on Herb’s Welding Inc. v. Gray, 470 U.S. 414 (1985), in holding that as a matter of law “fixed platform workers employed in state territorial waters were not ‘maritime employees’ for the purpose of meeting the LHWCA’s status test.” Plaintiff, a Class A Operator injured in Louisiana state waters, fails the status test. The court then considered the OCSLA expansion which “extends the LHWCA to workers involved in natural resource exploration and extraction on the outer continental shelf.” The court relied on Pac. Operators Offshore, LLP v. Valladolid, 132 S. Ct. 680 (2012), to show that “OCSLA extends LHWCA workers’ compensation coverage to any injury, regardless of where it happens, as long as it occurs ‘as a result of operations conducted on the outer Continental Shelf.’” Accordingly, the court held that to be included in this expansion Plaintiff “would have to establish a ‘substantial nexus’ between his injury and his employer’s extractive operations on the [outer continental shelf].” Plaintiff did not do this because he could not establish a link between his working in Black Bay and “any offshore operations by his employer on the [outer continental shelf].”The court found that plaintiff could pursue a general maritime tort claim. To bring a general maritime tort claim the injury upon which it is based must (1) have happened “on navigable water or the party must show that a vessel on navigable water caused the injury” and (2) have been the result of being engaged in a traditional maritime activity. The court found that even if Plaintiff was on the platform, the first prong has been met, as a vessel upon navigable waters was involved in the injury. Further, the second prong was met, as a vessel ferrying a person and docking are traditional maritime activities. As such, the immunity from suit provided by state workers’ compensation acts does not apply per Thibodaux v. Atl. Ritchfeild Co., 580 F.2d 841 (5th Cir. 1978). The court held that if one defendant is found to be engaged in a traditional maritime activity, a general maritime tort claim can be brought against all co-defendants whose actions are connected with the injury.