The Fifth Circuit Revisits the Definition of ‘Vessel’ Under the Longshore and Harbor Workers' Compensation Act
In August 2016, the United States Fifth Circuit Court of Appeals decided Baker v. Director, OWCP, et al., a decision which offers another useful interpretation of the definition of a "vessel" under the Longshore and Harbor Workers' Compensation Act (LHWCA). Baker v. Director, Office of Workers' Compensation Programs, No. 15-60634, 2016 WL 4427111 (5th Cir. Aug. 19, 2016) (not yet released for publication).
James Baker worked at Gulf Island Marine Fabricators, LLC (Gulf Island), as a marine carpenter for approximately eight months. Baker was assigned to Gulf Island's waterside marine fabrication yard in Houma, Louisiana, and was allegedly injured while constructing a housing module for use on a tension leg offshore oil platform (TLP) named "Big Foot." Baker filed a claim for disability benefits under the LHWCA, arguing he was entitled to benefits because he qualified as a "shipbuilder" under the LHWCA. Whether Baker qualified as a shipbuilder required the Fifth Circuit to directly address whether Big Foot, a TLP, was a "vessel" as contemplated by the LHWCA.
The Fifth Circuit began by underscoring the definition of the term "vessel" under the Rules of Construction Act, which courts uniformly apply in considering whether a structure is a vessel under the LHWCA: "The word 'vessel' includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water." Relying on two decisions of the United States Supreme Court, namely Stewart v. Dutra Construction Co., 543 U.S. 481 (2005) and Lozman v. City of Riviera Beach, 133 S. Ct. 735 (2013), the Fifth Circuit concluded that Big Foot was not a vessel under the LHWCA.
In 2005, the Supreme Court decided Stewart v. Dutra Construction Co. and, in doing so, considered whether the "Super Scoop," a massive floating platform from which a clamshell bucket was suspended beneath the water, qualified as a vessel under the LHWCA. The Supreme Court concluded that the Super Scoop was a vessel, noting that its primary function was to move through Boston Harbor under its own power, digging the ocean floor as it moved, which required the Super Scoop to carry machinery, equipment, and a crew over water. More specifically, the Supreme Court explained that the Super Scoop had "characteristics common to seagoing vessels, such as a captain and crew, navigational lights, ballast tanks, and a crew dining area," and had a "limited means of self-propulsion."
In 2013, the Supreme Court again considered what qualified as a vessel in Lozman v. City of Riviera Beach. There, the Supreme Court concluded that a "floating home," which essentially was a houseboat, was not a vessel. The Supreme Court in Lozman ruled that "but for the fact that it floats, nothing about Lozman's home suggests that it was designed to any practical degree to transport persons or things over water." The Supreme Court distinguished Lozman's houseboat from the Super Scoop in Stewart, noting that the Super Scoop "was regularly, but not primarily, used (and designed in part to be used) to transport workers and equipment over water." According to the Supreme Court, however, Lozman's houseboat was not regularly used to transport people or goods over water, as it had no rudder or other steering mechanism, its hull was unraked, it had a rectangular bottom 10 inches below the water, and it had no special capacity to generate or store electricity.
In light of Stewart and Lozman, the Fifth Circuit in Baker concluded that Big Foot was not a vessel, and thus that Baker was not entitled to LHWCA benefits as a shipbuilder. The Fifth Circuit noted that, like the houseboat in Lozman, Big Foot had no means of self-propulsion, had no steering mechanism or rudder, and had an unraked bow. Furthermore, Big Foot could be moved only when under tow, and after being towed to the Outer Continental Shelf (OCS), it was not anticipated that Big Foot would relocate for approximately 20 years. The Fifth Circuit also noted that although Big Foot was required to carry a captain and crew when under tow, those individuals were present only to ensure Big Foot was safely towed to its permanent location on the OCS. In sum, the Fifth Circuit reasoned that "a reasonable observer, looking to Big Foot's physical characteristics and activities, would not consider it designed to a practical degree for carrying people or things over water."
The Fifth Circuit's decision in Baker serves as another useful interpretation of what is considered a "vessel" for purposes of the LHWCA.