1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-11-1998

Nelson v. Amer Dredging Co

Precedential or Non-Precedential:

Docket 96-3724

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Recommended Citation

"Nelson v. Amer Dredging Co" (1998). 1998 Decisions. Paper 106.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/106
Filed May 11, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 96-3724 

JOSH NELSON, 

 Petitioner 

v. 

AMERICAN DREDGING COMPANY 

and SIGNAL MUTUAL INSURANCE CO. 

Appeal from the Decision of the 

Benefits Review Board 

BRB No. 96-0360 

ALJ No. 94-LHCA-3277 

OWCP No. 03-0025285 

Argued: November 6, 1997 

Before: BECKER, Chief Judge, ROTH, Circuit Judge and 

DIAMOND,1 District Judge 

(Opinion Filed: May 11, 1998) 

 David M. Linker, Esquire 

 (ARGUED) 

 Freedman and Lorry, P.C. 

 400 Market Street 

 Suite 900 

 Philadelphia, PA 19106 

 Attorney for Petitioner 

_________________________________________________________________ 

1. Honorable Gustave Diamond, Senior United States District Judge for 

the Western District of Pennsylvania, sitting by designation. 
 Francis M. Womack, III, 

 Esquire (ARGUED) 

 Weber Goldstein Greenburg 

 & Gallagher 

 One Evertrust Plaza 

 9th Floor 

 Jersey City, NJ 07032 

 Attorney for Respondents 

OPINION OF THE COURT 

DIAMOND, District Judge. 

Claimant/petitioner, Josh Nelson, was injured in the 

course of his employment with respondent/appellee, 

American Dredging Company ("ADC"), and filed a claim for 

compensation under the Longshore and Harborworkers 

Compensation Act ("Act"), 33 U.S.C. S901 et seq. (1986). 

ADC contested the claim on the ground that Nelson's injury 

was not covered by the Act. After a hearing, the 

Administrative Law Judge ("ALJ") held that the Act did not 

cover Nelson's injury and denied compensation. The 

Benefits Review Board ("Board") affirmed the ALJ's decision, 

and Nelson appealed to this court pursuant to 33 U.S.C. 

S921(c). 

The decision of the ALJ affirmed by the Board included 

the denial of Nelson's motion to enforce a settlement 

agreement, the rejection of his contention that ADC had 

waived its right to challenge coverage under the Act, and a 

ruling that Nelson's injuries were not covered by the Act. 

We will affirm the Board's affirmance of the ALJ's refusal to 

enforce the alleged settlement agreement and his rejection 

of Nelson's contention that ADC had waived its right to 

challenge coverage under the Act; however, we will reverse 

and remand the Board's affirmance of the ruling that 

Nelson's injuries were not covered under the Act. 

Background Facts and Procedural History 

The operative facts in this matter are not in dispute. The 

American Dredging Company was a marine contractor 

 2 
whose business operations included the renourishment/ 

reclamation of beaches to repair erosion and storm damage 

and to prevent such damage in the future. Josh Nelson was 

employed by ADC as an assistant foreman/bulldozer 

operator. 

On September 1, 1992, Nelson was injured as the result 

of a work-related accident. At the time of the accident, he 

was working on a beach reclamation project ("project") 

which ADC had been performing for about two months on 

Fenwick Island, Delaware, under a contract with the state 

of Delaware. The project consisted essentially of widening 

the beach by adding sand to it. The sand was obtained 

from the ocean floor approximately ten miles from the 

beach by a hopper dredge, a self-propelled vessel named 

Atlantic American. The sand was deposited in the hold of 

the vessel which then transported it to a mooring buoy 

located several hundred yards from the beach where ADC 

had constructed an underwater pipeline to the beach. The 

sand in a slurry form was unloaded from the vessel and 

deposited on the beach by pumping it through this pipeline.2 

_________________________________________________________________ 

2. ADC's vice-president of finance described this operation as follows: 

 A. The hop... this picture here on page six is the hopper dredge 

 with pipeline attached to what we call a mooring buoy. The 

 mooring buoy is the vehicle by which the pipeline runs from the 

 buoy to the shore and along the shore. The dredge goes into the 

 ocean, to what we call the borrow area, which is an area that's 

 identified by the government that has the type and nature of 

 sand that they wish to put on the beach, and in effect, with drag 

 heads and suction pumps, suck[s] this sand off the ocean floor 

 and into the hopper. This hopper contains 4,000 cubic yards of 

 sand when it's filled. After it fills that, it then sails from the 

 borrow area to the buoy and attaches a flexible pipeline to the 

 barge ... 

 Q. Could you show the Judge? 

 A. [Referring to a photo in evidence] This is the buoy, and this is 

 the dredge, and this is the pipeline. It attaches this pipeline to 

 its pumps and then in effect pumps the sand out of the hopper 

 through the pipeline and along to the beach through an 

 underwater pipe. The reason this dredge is used in this 

 particular case is because the borrow area is farther away from 

 3 
The flow of the sand through the pipeline and its 

distribution on the beach were controlled by moving the 

pipeline along the beach, by adding sections thereto, and 

by a system of valves on the pipeline. The final distribution 

and grading of the sand were done with a bulldozer. ADC 

was paid for this project on the basis of the number of 

cubic yards of sand added to the beach. 

Nelson operated the bulldozer, which he used not only to 

distribute and grade the sand on the beach but also to 

maneuver and otherwise work the pipeline as it unloaded 

the sand from the hopper dredge. It was his job to move the 

pipeline from place to place along the beach, add sections 

to it, and manipulate the valves to facilitate the unloading 

process. This required him to operate the bulldozer in the 

ocean waters and frequently to work knee deep in those 

waters on the pipeline. Nelson was supervised by a foreman 

on the beach who in turn was supervised by a foreman 

located on the dredge with whom communications were

maintained by radio. The accident which gave rise to this 

suit occurred when Nelson, who was operating his 

bulldozer on the beach about fifty feet from the water's 

edge, slipped and fell as he was dismounting the machine 

in order to change a pipeline valve. 

At all times relevant to this case, the hopper dredge was 

in the navigable waters of the Atlantic Ocean off of Fenwick 

Island beach. The beach was used solely for recreational 

purposes; there were no docks, wharves, piers or other 

such structures on which vessels could berth on or near it. 

Following Nelson's injury, ADC filed a report of injury 

under the Act, acknowledging (1) that the injury o ccurred 

during the course of Nelson's employment and (2) that the 

_________________________________________________________________ 

 the shore than the pipeline length would allow. The long -- you 

 know, if it is ten miles away, you can't pump ten miles, so you 

 go with a hopper dredge out ten miles, and fill it with sand and 

 bring it in. This distance is probably several hundred yards. 

 Q. Indicating from the buoy to the shoreline. 

 A. To the shoreline. 

App. 98-99. 

 4 
nature of ADC's business was "marine contractor." ADC 

voluntarily paid benefits under the Act from October 1992 

until June 1993 when a dispute arose as to the nature and 

extent of Nelson's disability, and, with the exception of a 

period between November 8 and December 14, 1993, 

compensation was terminated pending an impartial medical 

examination. 

After his benefits were terminated, Nelson filed a claim 

under the Act, and when the parties were unable to resolve 

their differences during an informal reconciliation process, 

a formal hearing before an ALJ was requested. 

At the hearing before an ALJ on January 13, 1995, 

Nelson's counsel appeared and informed the ALJ that the 

parties had reached "an agreement in principle," and that 

a stipulation pursuant to S8(i) of the Act, 33 U.S.C. 

S908(i)(1), would be forthcoming once certain matters were 

resolved. He indicated that these matters included the 

specific amounts of outstanding welfare liens, medical bills 

which were paid and had to be reimbursed, and the 

allocation of attorney's fees. Nelson's counsel also explained 

to the ALJ that Nelson and counsel for ADC were not

present at the hearing because the agreement in principle 

had been reached, but that the parties still were in the 

process of working out the details of the agreement and 

they needed 45 days to complete the stipulation and submit 

it for the ALJ's consideration. A non-lawyer representative 

of the respondent insurance carrier was present and

concurred in the statements made by the Nelson's attorney. 

After a brief colloquy with Nelson's counsel wherein the 

general provisions of the contemplated settlement were 

summarized, the ALJ postponed further proceedings for 45 

days to provide the parties with time to submit aS8(i) 

application for settlement. 

Nelson's counsel subsequently forwarded a proposedS8(i) 

stipulation to counsel for ADC who then notified the ALJ 

that a settlement had not been reached, because, inter alia, 

there had been no agreement concerning ADC's 

responsibility for past and future medical expenses. Nelson 

filed a motion to enforce settlement and attached a copy of 

the unexecuted S8(i) stipulation, but the ALJ entered an 

 5 
order denying the motion and scheduling a formal hearing 

for April 27, 1995. 

Following the April 27 hearing, ADC moved for judgment 

on the ground that Nelson had failed to satisfy the

requirements for coverage under the Act. Nelson responded 

that he had met the coverage requirements and further that 

ADC had waived the issue of coverage by paying benefits 

under the Act and failing to raise this issue at the informal 

level before the District Director. 

On November 9, 1995, the ALJ rendered a decision 

denying Nelson's claim for benefits on the sole ground that 

he had failed to satisfy the requirements for coverage under 

the Act. 

Nelson appealed to the Board, which affirmed the ALJ as 

indicated supra. 

Standard of Review 

This court has appellate jurisdiction pursuant to 33 

U.S.C. S921(c). The standard of review is "limited to a 

determination of whether the Board acted in conformance 

with applicable law and within its proper scope of review." 

Sea-Land Service, Inc. v. Rock, 953 F.2d 56, 59 (3d Cir. 

1992) (quoting Curtis v. Schlumberger Offshore Service, Inc., 

849 F.2d 805, 807 (3d Cir. 1988)). "When factual findings 

are at issue, we ... make an independent factual review to 

determine whether the Administrative Law Judge's findings 

were supported by substantial evidence ...." Id. (citing 

Janusziewicz v. Sun Shipbuilding & Dry Dock Co., 677 F.2d 

286, 290 (3d Cir. 1982)). 

Discussion 

The Settlement Agreement and Waiver Issues 

Nelson's contention that the Board erred in affirming the 

ALJ's refusal to enforce the alleged settlement agreement 

and his rejection of Nelson's contention that ADC waived its 

right to challenge coverage are without merit. 

 6 
In ruling on the ALJ's refusal to enforce settlement, in 

addition to finding several fatal procedural defects in 

Nelson's petition for review before the Board, the Board 

found that the ALJ committed no error since the record was 

devoid of evidence of a completed settlement agreement 

between the parties and further because no settlement 

application had been submitted to the ALJ in accordance 

with the regulations found in 20 C.F.R. SS702.241-702.243. 

Nelson v. American Dredging Company and Signal Mutual 

Insurance Company, 30 BRBS 205, 208 (1996). 

20 C.F.R. S702.243(a) provides in its pertinent part: 

 (a) When the parties to a claim for compensation ... 

 agree to a settlement they shall submit a complete 

 application to the adjudicator ["district director or 

 administrative law judge (ALJ)" S702.241]. The 

 application shall include all of the information outlined 

 in S702.242 .... 

Section 702.242(a) and (b) of the regulations provide in 

their pertinent parts: 

 (a) The settlement application shall be a self-sufficient 

 document which can be evaluated without further 

 reference to the administrative file. The application 

 shall be in the form of a stipulation signed by all 

 parties .... 

 (b) The settlement application shall contain the 

 following: 

 (1) A full description of the terms of the settlem ent 

 which clearly indicates, where appropriate, the 

 amounts to be paid for compensation, medical

 benefits, survivor benefits and representative's fees 

 which shall be itemized as required by S702.132. 

20 C.F.R. S702.242(a), (b)(1). 

No such application ever was filed with the ALJ. Nelson 

argues, nevertheless, that the record demonstrates that an 

enforceable agreement had been reached by the parties, 

and, referring to rulings of this court which recognize a 

federal district court's equitable jurisdiction to enforce 

settlement agreements based upon oral representations 

 7 
made by the litigants before it, urges this court to adopt a 

similar rule under the Act. See generally Green v. John H. 

Lewis & Co., 436 F.2d 389, 390 (3d Cir. 1970); Good v. 

Pennsylvania Railroad Co., 384 F.2d 989, 990 (3d Cir. 

1967). 

The Board was correct in affirming the ALJ. The 

applicable regulations cited by the Board in its ruling 

prescribe in detail the procedures for, and the necessary 

contents of, settlement applications under the Act. The 

parties never complied with these regulations. In view of the 

detailed requirements and formal procedures specified in 

the regulations promulgated under the Act for effectuating 

a settlement, a serious question arises as to whether under 

any circumstances an adjudicator or a court properly may 

enforce a settlement agreement which does not comply with 

those regulations. We need not resolve that question at this 

time, however, because the parties never reached a 

settlement agreement. There was at most an "agreement in 

principle" to settle, which never matured. 

Nelson's counsel at the January 13, 1995, hearing stated 

only that the parties had "reached an agreement in 

principle to resolve this case." He advised the ALJ that 

there were details to be worked out and requested 45 days 

within which to accomplish this and to provide the ALJ 

with an appropriate S8(i) stipulation of settlement. The 

areas upon which final agreement had not been reached 

were quite material and included the amount of 

outstanding liens in addition to such items specifically 

required by 20 C.F.R. S702.242(b)(1), supra, as the

apportionment of medical expenses and the amount of the 

attorney's fees which Nelson would be required to bear. 

When asked by the ALJ to elaborate on his assertion that 

the parties had reached an "agreement in principle," 

counsel for Nelson stated: 

 No. We reached an agreement as to the amount of the 

 money that's going to be in the 8(i). When I say 

 "principle," the only issue we haven't discussed which 

 is complete discussion (sic) is attorney fee thing as to 

 how we're going to handle that. But we have a 

 consensus on that. But Mr. Womack [counsel for ADC] 

 8 
 doesn't have the authority yet on that from Signal 

 [ADC's insurance carrier and a co-respondent in this 

 case]. 

 The person who he's dealing with is not in town. 

 I've spoken to my client generally about the format of 

 the agreement, and I told him I can't (sic) him a sum 

 certain because I don't have the printout from welfare. 

 And they've told me to get a current medical printout. 

 It will take about two weeks. But he's agreeable to the 

 format that we have worked out, and the Claimant will 

 not bring any other claims under any other acts. 

App. 14-15 (emphasis supplied). 

These were material matters under the Act. As a result of 

their omission, it is obvious that the parties had not arrived 

at a settlement agreement by January 13, 1995, but,

indeed, only at "an agreement in principle" to settle. This 

never was consummated, and as a consequence there was 

no settlement agreement, formal or informal, for the ALJ to 

enforce. 

Little need be said on the waiver issue. Nelson was well 

aware at least as early as the January 13, 1995, hearing, 

a full three months prior to the final hearing on April 27, 

1995, that ADC was raising coverage questions. In fact, 

counsel for Nelson cited the "jurisdictional" issue as one of 

his reasons for recommending to his client that the case be 

settled on an S8(i) basis. At the hearing counsel for Nelson 

stated: 

 There are serious questions in this case of jurisdiction 

 and extent of disability. And -- 

 Judge Romano: Jurisdiction under the Longshore Act 

 you mean? 

 Mr. Linker: Yes. It was not raised by the employer at 

 the informal level, but it is being raised now. It's a 

 serious -- in my view, it's a serious question in this 

 case. And under the circumstances, we have 

 recommended to the Claimant and Claimant's -- 

 referred counsel to us that the matter be resolved on 

 an 8(i) basis. 

 9 
App. 15. 

In affirming the ALJ, the Board found that the coverage 

issue had been timely raised and properly considered by 

the ALJ. See 30 BRBS at 206. We agree. See 20 C.F.R. 

S702.336(a) and S702.317, cited by the Board in support of 

its rulings. 

I. The Coverage Issue 

We proceed now to address the principal issue in this 

case; i.e., whether Nelson's injuries are covered by the Act. 

The Applicable Law 

Prior to 1972, coverage existed under the Act only for 

injuries sustained upon the "navigable waters of the United 

States (including any ... dry dock ...)." 33 U.S.C. S903 (1970 

ed.). In 1972, Congress amended the Act and imposed a 

two-part test which looks to "both the `situs' of the injury 

and the `status' of the injured" to determine eligibility for 

compensation. Northeast Marine Terminal Co., Inc. v. 

Caputo, 432 U.S. 249, 265 (1977). 

The situs requirement was expanded by an amendment 

to provide: 

 ... Compensation shall be payable under this Act in 

 respect of disability or death of an employee, but only 

 if a disability or death results from an injury occurring 

 upon 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). 

33 U.S.C. S903(a). 

In conjunction with the expanded definition of situs, 

Congress enacted a so-called "status" requirement and thus 

restricted coverage for disability under the Act to

employees, defined as persons engaged in "maritime 

employment." Caputo, 432 U.S. at 264. The pertinent

amendment provides: 

 10 
 The term "employee" means any person engaged in 

 maritime employment, including any longshoreman or 

 other person engaged in longshoring operations and 

 any harbor-worker including a ship repairman, 

 shipbuilder and shipbreaker .... 

33 U.S.C. S902(3). Finally, the term "employer" was defined: 

 The term "employer" means an employer any of

 whose employees are employed in maritime 

 employment, in whole or in part, 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, or building a 

 vessel). 

33 U.S.C. S902(4). 

The 1972 amendments thus broadened the scope of the

geographic requirement under the Act and at the same time 

imposed an occupational requirement, each of which has a 

distinct and consistent meaning. P.C. Pfeiffer Co., Inc. v. 

Ford, 444 U.S. 69, 78 (1979). This court has noted that 

although Congress did partially identify the scope of 

maritime employment as "including a longshoreman or

other person engaged in such operations and any harborworker such as a ship repairman, shipbuilder, and shipbreaker, the scope of `maritime employment' [remains] ... 

imprecise." Sea-Land Service, 953 F.2d at 60 (citing 33 

U.S.C. S902(3)). 

While the statutory definition is somewhat imprecise, the 

Court has held that the scope of maritime employment 

clearly includes those employees "on the situs involved in 

the essential or integral elements of the loading or 

unloading process." Chesapeake and Ohio Ry. Co. v. 

Schwalb, 493 U.S. 40, 46 (1989). The Supreme Court 

repeatedly has emphasized that the broad language 

employed in the 1972 amendments indicates that an 

expansive view of the legislation is appropriate. In Caputo, 

the Court observed: 

 The language of the 1972 amendments is broad and 

 suggests that we should take an expansive view of the 

 11 
 extended coverage. Indeed, such a construction is 

 appropriate for this remedial legislation. The Act"must 

 be liberally construed in conformance with its purpose, 

 and in a way which avoids harsh and incongruous 

 results." Voris v. Eikel, 346 U.S. 328, 333, 98 L.Ed. 5, 

 74 S.Ct. 88 (1953). 

Id., 432 U.S. at 268. See also Director, Office of Workers' 

Compensation Programs, U.S. Dept. of Labor v. Perini North 

River Associates, 459 U.S. 297, 315-16 (1983). 

II. The Situs Test 

The ALJ ruled that Nelson did not satisfy the situs test. 

He first found that Nelson was not actually on navigable 

water at the time of his injury and then proceeded to find 

that the actual situs of the injury, the beach at Fenwick 

Island, neither adjoined navigable waters nor was used in 

any way to facilitate or further maritime commerce or 

transportation. In arriving at this conclusion, he applied 

the factors which the court in Brady-Hamilton Stevedore Co. 

v. Herron, 568 F.2d 137, 141 (9th Cir. 1978), held should 

be considered in determining if the site of an injury, which 

did not occur on navigable water as such, qualified as an 

"adjoining area" under the Act. He also deemed it 

significant that there were no piers, bulkheads, or other 

facilities on the beach where vessels could berth or where 

loading, unloading or any other activity incidental to 

commerce or shipbuilding could have occurred and thus 

concluded that the beach was only a "natural" or 

"recreational area." 

All of this led the ALJ to rule that the site "was not, and 

could not be, used for any maritime purpose" and that 

therefore it failed the "situs test under S3(a) of the Act." 

In affirming the ALJ, the Board stated: 

 We affirm the Administrative Law Judge's finding that 

 claimant was not injured on a covered situs. Initially, 

 we note that the site is "adjoining" and "contiguous" to 

 navigable water; it cannot seriously be contended that 

 the Atlantic Ocean off the coast of Delaware is not 

 navigable water or that it is not used for maritime 

 12 
 commerce. That an injury occurs in an area adjacent 

 to navigable waters does not end the situs inquiry, as 

 the area must be "customarily used by an employee 

 [sic] for loading, unloading, repairing, dismantling or 

 building a vessel." In this case, the record is devoid of 

 evidence supporting a finding that the site of claimant's 

 injury was used for traditional maritime purposes. 

 Rather, it is uncontroverted that the site of claimant's 

 injury is an unimproved beach fronting the ocean. 2 We, 

 therefore, affirm the ALJ's finding that claimant was 

 not injured on a covered situs. 

Nelson, 30 BRBS at 207. [The text of footnote 2 appears 

below]. Although the Board rejected the ALJ's finding that 

the Atlantic Ocean at Fenwick Island was not a navigable 

water way and that it was not used for maritime commerce, 

it nevertheless found that the area did not qualify as a S3(a) 

situs. It reasoned that not only must the area be adjacent 

to navigable waters but it also must be "customarily used 

by an employee [sic] for loading, unloading, repairing, 

dismantling or building a vessel." It then concluded that 

"[i]n this case, the record is devoid of evidence supporting 

a finding that the site of claimant's injury was used for 

traditional maritime purposes. Rather, it is uncontroverted 

that the site of claimant's injury is an unimproved beach 

fronting the ocean." Id. The Board further reasoned: 

 2. Claimant argues that his work involved unloading 

 sand from a dredge, see status discussion, infra, and 

 that the beach thus falls within S3(a) due to the 

 "discharge" of sand from the vessel. Claimant's Brief at 

 13. We do not agree that the discharge of sand onto 

 the beach makes it an area "customarily" used for 

 unloading a vessel, since the customary use of the 

 beach is recreation. See also Sidwell v. Express 

 Containers Services, Inc., 74 F.3d 1134, 29 BRBS 138 

 (CRT) (4th Cir. 1995) (an adjoining area must be a 

 "discreet structure or facility, the very raison d'etre of 

 which is its use in connection with navigable waters"). 

 (emphasis added). 

Id. at n.2. 

We disagree with the Board's rationale and its reading of 

that portion of S3(a) of the Act. The Board construed the 

 13 
language to mean that the customary use of the beach had 

to be for some maritime purpose. But the word 

"customarily" in S3(a) modifies the phrase "adjoining area ... 

used by an employer," not simply the phrase "adjoining 

area." The Board's construction would eliminate the phrase 

"used by an employer" from the amendment so that it

would read "or other adjoining area customarily used in 

loading, unloading, repairing, dismantling or building a 

vessel." Of course, if that were the language employed by 

Congress, the Board's conclusion that in order for a site to 

be an "other adjoining area" covered by the Act, such area 

must customarily be used, in effect, by the maritime 

industry for some maritime purpose would be more tenable. 

But the dispositive question in S3(a) is not whether the 

beach "customarily is used" for "loading, unloading ..." but 

rather whether "an employer customarily" uses the beach 

for loading, unloading ...." 

ADC is a maritime employer within the meaning of the 

Act. It is in the business of dredging channels and

reclaiming beaches. A fair reading of the uncontradicted 

testimony of Nelson and of ADC's chief financial officer at 

the April 27, 1995, hearing, the only witnesses who

testified, supports the following: ADC performed a number 

of these beach reclamation projects, and thus was in the 

beach reclamation business. The Fenwick Island project 

was typical in that the sand used to rebuild the beach had 

to be obtained from a "borrow" area from thefloor of the 

ocean at a point which was beyond the reach of the pipeline 

which ADC used to pump this sand onto the beach being 

reclaimed. Therefore, ADC employed a hopper dredge to 

dredge the sand from the borrow area and to load it into 

the hopper of the dredge vessel which then transported the 

sand to the pipeline. The sand then was pumped from the 

hopper dredge through the pipeline and unloaded onto the 

beach. The Fenwick Island beach was an area contiguous 

to navigable waters. And it and similar beaches customarily 

were used by ADC, an employer, to unload its hopper

dredge vessel. In fact, this had been done on this job for 

approximately two months prior to the time when Nelson 

was injured. 

 14 
Based on the foregoing, we believe that the beach at 

Fenwick Island qualified as an adjoining area customarily 

used by at least one maritime employer to unload its vessel. 

The Board, however, cites Sidwell v. Express Containers 

Services, Inc., 71 F.3d 1134 (4th Cir. 1995), cert. denied, 

___ U.S. ___, 116 S.Ct. 2570 (1996), for the proposition that 

in order for an adjoining area to qualify as a situs it "... 

must be a `discrete structure or facility', ...." It is true that 

the court in Sidwell, applying the canon of statutory 

construction noscitur a sociis, concluded that the "other 

adjoining area" referred to in S3(a) must be like the socalled areas which are listed in that section; i.e.,"... any 

adjoining pier, wharf, dry dock, terminal, building way, 

marine railway ...," each of which, with the possible 

exception of the building way, the court found to be a 

"discrete structure or facility." Sidwell, 71 F.3d at 1139. 

We respectfully decline to adopt this construction of the 

statute. The structures identified in S3(a) which preceded 

the phrase "other adjoining area" were not referred to in 

that section as "areas." The Sidwell court opined that by 

using the term "other adjoining area" the drafters of the 

amendment thereby were referring back to the enumerated 

structures; i.e., pier, wharf, dry dock, as areas. But giving 

the word "area" its plain meaning as we are required to do 

in construing the statute,3 wefind that it does not denote 

_________________________________________________________________ 

3. The Supreme Court recently referred to this rule of statutory 

construction in Robinson v. Shell Oil Co., 519 U.S. ___, 117 S.Ct. ___, 

136 L.Ed.2d 808 (1997): 

 Our first step in interpreting a statute is to determine whether 

the 

 language at issue has a plain and unambiguous meaning with 

 regard to the particular dispute in the case. Our inquiry must 

cease 

 if the statutory language is unambiguous and "the statutory scheme 

 is coherent and consistent." United States v. Ron Pair Enterprises, 

 Inc., 489 U.S. 235, 240, 103 L.Ed.2d 290, 109 S.Ct. 1026 (1989); 

 see also Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-254, 

 117 L.Ed.2d 391, 112 S.Ct. 1146 (1992). 

 The plainness or ambiguity of statutory language is determined by 

 reference to the language itself, the specific context in which 

that 

 language is used, and the broader context of the statute as a 

whole. 

 Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 477, 120 

 L.Ed.2d 379, 112 S.Ct. 2589 (1992); McCarthy v. Bronson, 500 U.S. 

 136, 139, 114 L.Ed.2d 194, 111 S.Ct. 1737 (1991). 
Robinson, 519 U.S. ___, 136 L.Ed.2d at 813. 

 15 
a building or structure as such, but rather an open space, 

indeed sometimes within a building or other structure. 

Webster's Third New International Dictionary (1993) at p. 

115 defines "area" as: 

 a piece of level ground, a level or relatively level piece 

 of unoccupied or unused ground; ... a clear or open 

 space of land; ... a definitely bounded piece of ground 

 set aside for a specific use or purpose; ... the enclosed 

 space or site on which a building stands; ... a clear or 

 open space within a building; .. a definitely bounded 

 part or section of a building set aside for a specific use 

 or purpose; ... any particular extent of space or 

 surface. (emphasis supplied). 

The American Heritage Dictionary of the English Language 

(1976) at p. 69 similarly defines "area" as: 

 1. A flat, open, or unoccupied piece of ground. 2. A part 

 of the earth's surface; region. 3. A distinct part or 

 section, as of a building, set aside for a specific 

 function .... 4. The range or scope of anything: the 

 whole area of finance. 5. The yard of a building; an 

 areaway .... 

There is nothing in the definition of the word "area," 

therefore, which suggests that by its use in S3(a) the 

drafters intended that it refer back to and be modified by 

any of the preceding enumerated sites which happen to be 

structures. Contrary to the Board's holding, an unimproved 

beach falls within the plain meaning of the word "area" as 

defined above. 

In addition, we find it to be inconsistent with the

remedial purpose of the 1972 amendments of the Act and 

the liberal construction they are to be given to conclude 

that Congress intended by this indirect means to provide 

coverage under the Act only for injuries which occur on 

certain definable structures. Instead, it is more consistent 

with that purpose and "the broader context of the statute 

as a whole," Robinson, 519 U.S. at ___, 136 L.Ed.2d at 813, 

to conclude that Congress intended primarily by this 

language to ensure that the area where an injury occurs be 

on or adjacent to navigable waters. 

 16 
Accordingly, we hold that under the facts and 

circumstances of this case the beach at Fenwick Island 

constituted an adjoining area where ADC customarily

unloaded (sand from) its vessels. As such it constituted a 

covered maritime situs under the Act. 

III. The Status Requirement 

The ALJ also found that Nelson did not satisfy the status 

requirement. In the words of the ALJ, Nelson 

 was employed as a bulldozer operator on a beach 

 renourishment project. The purpose of the project was 

 to put sand on the beach area. It had nothing 

 whatsoever to do with maritime commerce or the 

 construction or repair of vessels. Nelson's work was not 

 maritime in nature. His job was to move material (sand 

 and pipes) with a bulldozer. It was not related to 

 maritime commerce. 

App. 156. 

In affirming the ALJ, the Board rejected Nelson's 

argument that a considerable and important aspect of his 

job activity had to do with unloading sand from the dredge 

vessel, Atlantic American. It held: 

 Despite claimant's attempts to characterize his 

 bulldozing activity as integral to the unloading process, 

 we agree with the Administrative Law Judge that the 

 bulldozing activities performed by claimant for 

 employer in this case involved the movement of sand as 

 part of the process of rebuilding the beach, rather than 

 maritime commerce. Inasmuch as claimant's bulldozing 

 duties were integral to employer's beach renourishment 

 project rather than longshoring activities, we affirm the 

 Administrative Law Judge's determination that these 

 duties are insufficient to confer coverage under the Act. 

 See Caputo, 432 U.S. at 249, 6 BRBS at 150; Schwalb, 

 493 U.S. at 40, 23 BRBS at 96 (CRT); Garmon v. 

 Aluminum Company of America-Mobil Works, 28 BRBS 

 46, 49 (1994). (emphasis added). 

We do not subscribe to this reasoning. It is undisputed 

that the hopper dredge on the Fenwick Island project 

 17 
obtained sand from the ocean floor approximately 10 miles 

from Fenwick Island beach. Approximately 4,000 cubic 

yards of sand at a time were loaded into the hold of the 

vessel. At this point that sand literally became the "load" 

being carried by that vessel. When this self-propelled vessel 

then transported its load a distance of 9 miles on the 

Atlantic Ocean to the pipeline buoy, that ship was in 

maritime commerce, and we would add, as much so as it 

would have been had it transported its load of sand from 

Myrtle Beach, South Carolina. When that load was 

transferred from the hopper dredge onto the Fenwick Island 

beach by pumping it through the pipeline, it literally was 

"unloaded" as much as it would have been had it been 

bagged and removed from the vessel by a crane and cargo 

nets. 

From the undisputed facts it is clear that Nelson was a 

vital part of the unloading process. With the aid of his 

bulldozer he moved the pipeline up and down the beach in 

order strategically to deposit; i.e., to unload, the sand; he 

waded knee deep into the ocean waters to adjust valves and 

add sections to the pipeline; and finally he moved the sand 

from where it was pumped in those waters adjacent to the 

beach to the shore and then graded the sand on the beach 

with his bulldozer. Even if we assume arguendo that this 

final grading was not an integral part of the unloading 

process, but, instead was part of the process of rebuilding 

the beach, it is abundantly clear that in all other respects 

Nelson was directly and intimately involved in unloading 

the hopper vessel. This was more than enough to constitute 

maritime employment.4 

The fact that all of this was done in connection with, and 

for the ultimate purpose of, the renourishing of a beach is 

wholly irrelevant to a determination of the nature of the 

work which was being done by Nelson. There is no basis in 

the case law or logical reasoning to support the proposition 

_________________________________________________________________ 

4. It is sufficient that Nelson "spen[t] `at least some of [his] time in 

indisputably longshoring operations.' " Pfeiffer, 444 U.S. at 75. Maritime 

employment clearly includes employees "involved in the essential or 

integral elements of the loading or unloading process." Schwalb, 493 

U.S. 46 (1989). 

 18 
that what otherwise would constitute the act of unloading 

a vessel becomes a non-unloading, and thus a non-covered, 

act because of the ultimate use to which the product being 

unloaded is put. Neither Caputo nor Schwalb nor Garmon 

cited by the Board in support of this concept, does so. 

In Garmon, the claimant's employer manufactured 

aluminum. The employer had a building where it stored 

bauxite and from which it drew this aluminum ore as it 

was needed in the manufacturing process. The bauxite was 

transported by ship to state-owned docks where state 

employees unloaded it and ultimately delivered it to the 

floor of the storage building, where it was stored by 

claimant's employer for up to three months until it was 

needed in the manufacturing process. Claimant was a

bulldozer operator employed by the aluminum 

manufacturer. His job was to bulldoze into piles the bauxite 

previously deposited on the floor of his employer's storage 

building by state employees where it was held until

ultimately it was transferred within the employer's

manufacturing facility for use in the manufacturing

process. Under those facts, an ALJ held that the claimant 

was not engaged in the unloading process because his 

"operating duties were not necessitated by unloading 

operations but by employer's use of bauxite in the process 

of manufacturing aluminum." On appeal the Benefits 

Review Board affirmed, concluding "... claimant's bulldozing 

duties were integral to employer's manufacturing process 

rather than to longshoring activities ...." 

The critical factual differences between Garmon's and 

Nelson's activities are too obvious to require analysis 

beyond noting that Garmon's duties commenced after the 

state employees had completed the unloading of the bauxite 

and had delivered it to Garmon's employer. Nelson, on the 

other hand, was at the exit end of a pipeline 

contemporaneously performing functions essential to the 

unloading of sand from a vessel by this pipeline. 

It is significant, moreover, that the Board in Garmon 

remanded the case for the ALJ to address the contention 

that claimant's duties in cleaning the employer's conveyor 

belts and retrieving bauxite from the floor and returning it 

to those belts were part of the unloading process, stating 

 19 
that "[t]he Supreme Court has held that the status test 

focuses on claimant's overall duties; thus, an employee is 

covered under the Act if he spends `at least some' of his 

time in loading and unloading. Caputo, 432 U.S. at 273, 6 

BRBS at 165. See also Ford, 444 U.S. at 337, 11 BRBS at 

328." Garmon, 28 BRBS at 49. 

Garmon thus strongly supports Nelson's position and

illustrates precisely the point that all of a claimant's work 

activities must be considered in determining whether he 

was engaged in maritime employment. 

In Schwalb, the claimants were employees of a railroad 

working at a terminal where coal was being loaded from 

railway cars onto ships. The claimants were injured either 

while cleaning or while repairing equipment that was used 

in the loading process. The Supreme Court reversed the 

Supreme Court of Virginia which had held that claimants 

were not engaged in maritime employment when they were 

injured. The Court stated at 493 U.S. 47: 

 Although we have not previously so held, we are quite 

 sure that employees who are injured while maintaining 

 or repairing equipment essential to the loading or 

 unloading process are covered by the Act. Such 

 employees are engaged in activity that is an integral 

 part of and essential to those overall processes. That is 

 all that S902(3) requires. Coverage is not limited to 

 employees who are denominated "longshoremen" or 

 who physically handle the cargo. ... 

Schwalb thus also supports Nelson's position, because he 

was even more directly involved in the loading/unloading 

process than were the claimants in Schwalb. 

Caputo, supra, also cited by the Board in support of its 

holding that at the time of his injury Nelson was not 

engaged in maritime employment, provides scant authority 

for that ruling. In Caputo the court upheld coverage for a 

terminal laborer who was injured while rolling a dolly 

loaded with cheese onto a consignee's truck, the cheese 

previously having been unloaded from a vessel on navigable 

waters. The Court also upheld coverage for another 

claimant who was injured as he was marking the cargo 

removed from a container which had been unloaded from a 

 20 
vessel. In each instance, the claimant's activities were 

much more indirect and further removed from the 

unloading process than were Nelson's. 

For the foregoing reasons, we hold that under the facts 

and circumstances of this case that at the time Nelson was 

injured he was engaged in maritime employment on a 

covered situs within the meaning of the Act. The Board's 

rulings to the contrary were not in conformance with the 

applicable law; accordingly, we will reverse the Board's 

ruling with regard to the coverage question and remand it 

for proceedings consistent with this opinion. In all other 

respects, the Board's rulings will be affirmed. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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