New Orleans Depot Services, Incorporated v. Director, Office Of Worker's Compensation Programs

718 F.3d 384 (5th Cir. 2013)

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Nature of the Case

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Facts

P, filed a claim for LHWCA benefits against one of his prior employers, New Orleans Marine Contractors (D), to recover benefits for his hearing loss due to continuous exposure to loud noises. NOMC (D) contended that D was a subsequent maritime employer and that D rather than NOMC (D) was the responsible party. P, filed a claim for LHWCA benefits against one of his prior employers, New Orleans Marine Contractors (D), to recover benefits for his hearing loss due to continuous exposure to loud noises. NOMC (D) contended that D was a subsequent maritime employer and that D rather than NOMC (D) was the responsible party. The Chef Yard is located approximately 300 yards from the Intracoastal Canal and surrounded by other companies having nothing to do with maritime-type industries. P's employees had no access to the Intracoastal Canal and all of the equipment P serviced was delivered to the Chef Yard by truck. Completed repairs were picked up by truck or rail, and no containers were loaded with cargo while in D's custody. The ALJ concluded that D'sI Chef Yard employees' work repairing ocean containers was 'a process which was a significant maritime activity' necessary for loading and unloading cargo. The ALJ concluded that the location, some 300 yards from the Intracoastal Canal, satisfied the situs requirement that the injury occur in an area 'adjoining navigable waters.' The ALJ held that the repair and maintenance work P performed on these containers was closely related to loading or unloading vessels and constituted 'maritime employment' which satisfied the status test under the Act. The BRB affirmed the ALJ's order. A divided panel of this court affirmed the BRB. D petitioned for in banc review.