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. e du/thir dc ir c uit_1998/106Filed 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 an d 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 de signation.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 th e course of his employment with respondent/appellee, American Dredging Company ("ADC"), and filed a clai m for compensation under the Longshore and Harborworkers Compensation Act ("Act"), 33 U.S.C. S901 et seq. (1 986). 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 inclu ded

the denial of Nelson's motion to enforce a settleme nt agreement, the rejection of his contention that ADC had waived its right to challenge coverage under the Ac t, and a ruling that Nelson's injuries were not covered by t he Act.
We will affirm the Board's affirmance of the ALJ's refusal to enforce the alleged settlement agreement and his re jection of Nelson's contention that ADC had waived its righ t to challenge coverage under the Act; however, we will reverse and remand the Board's affirmance of the ruling tha t Nelson's injuries were not covered under the Act.

Background Facts and Procedural History

The operative facts in this matter are not in dispu te. The American Dredging Company was a marine contractor

2whose business operations included the renourishmen t/

reclamation of beaches to repair erosion and storm damage and to prevent such damage in the future. Josh Nels on was employed by ADC as an assistant foreman/bulldozer
operator.

On September 1, 1992, Nelson was injured as the res ult
of a work-related accident. At the time of the acci dent, he was working on a beach reclamation project ("projec t") 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 w idening the beach by adding sand to it. The sand was obtain ed from the ocean floor approximately ten miles from t he beach by a hopper dredge, a self-propelled vessel n amed Atlantic American. The sand was deposited in the ho ld of the vessel which then transported it to a mooring b uoy 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 p ipeline.2

___________________________________________________ ______________

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

A. The hop... this picture here on page six is the hopper dredge with pipeline attached to what we call a moo ring buoy. The mooring buoy is the vehicle by which the pip eline runs from the buoy to the shore and along the shore. The d redge goes into the ocean, to what we call the borrow area, whic h is an area that's identified by the government that has the ty pe 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 o ff 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 flexi ble pipeline to the barge ...

Q. Could you show the Judge?

A. [Referring to a photo in evidence] This i s the buoy, and this is the dredge, and this is the pipeline. It att aches 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 u sed in this particular case is because the borrow area i s farther away from

3The 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 theret o, and by a system of valves on the pipeline. The final di stribution and grading of the sand were done with a bulldozer. ADC was paid for this project on the basis of the numbe r of cubic yards of sand added to the beach.

Nelson operated the bulldozer, which he used not on ly to distribute and grade the sand on the beach but also to maneuver and otherwise work the pipeline as it unlo aded the sand from the hopper dredge. It was his job to move the pipeline from place to place along the beach, add s ections 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 th ose waters on the pipeline. Nelson was supervised by a foreman on the beach who in turn was supervised by a forema n located on the dredge with whom communications were maintained by radio. The accident which gave rise t o this suit occurred when Nelson, who was operating his bulldozer on the beach about fifty feet from the wa ter's edge, slipped and fell as he was dismounting the ma chine in order to change a pipeline valve.

At all times relevant to this case, the hopper dred ge was in the navigable waters of the Atlantic Ocean off o f Fenwick Island beach. The beach was used solely for recreat ional purposes; there were no docks, wharves, piers or ot her
such structures on which vessels could berth on or near it.

Following Nelson's injury, ADC filed a report of in jury under the Act, acknowledging (1) that the injury o ccurred during the course of Nelson's employment and (2) t hat the

___________________________________________________ ______________

the shore than the pipeline length would all ow. The long -- you know, if it is ten miles away, you can't pum p ten miles, so you go with a hopper dredge out ten miles, and f ill it with sand and bring it in. This distance is probably sever al hundred yards.

Q. Indicating from the buoy to the shoreline

.

A. To the shoreline.

App. 98-99.

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

voluntarily paid benefits under the Act from Octobe r 1992 until June 1993 when a dispute arose as to the natu re and extent of Nelson's disability, and, with the except ion of a period between November 8 and December 14, 1993, compensation was terminated pending an impartial me dical

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," an d that a stipulation pursuant to S8(i) of the Act, 33 U.S. C. S908(i)(1), would be forthcoming once certain matte rs were resolved. He indicated that these matters included the specific amounts of outstanding welfare liens, medi cal bills which were paid and had to be reimbursed, and the allocation of attorney's fees. Nelson's counsel als o explained

to the ALJ that Nelson and counsel for ADC were not present at the hearing because the agreement in pri nciple had been reached, but that the parties still were i n 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 repres entative of the respondent insurance carrier was present and concurred in the statements made by the Nelson's at torney. After a brief colloquy with Nelson's counsel wherei n the general provisions of the contemplated settlement w ere summarized, the ALJ postponed further proceedings f or 45 days to provide the parties with time to submit aS8 (i) application for settlement.

Nelson's counsel subsequently forwarded a proposedS 8(i) stipulation to counsel for ADC who then notified th e ALJ that a settlement had not been reached, because, in ter 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 enter ed an

5order denying the motion and scheduling a formal he aring

for April 27, 1995.

Following the April 27 hearing, ADC moved for judgm ent on the ground that Nelson had failed to satisfy the requirements for coverage under the Act. Nelson res ponded that he had met the coverage requirements and furth er that ADC had waived the issue of coverage by paying bene fits under the Act and failing to raise this issue at th e informal

level before the District Director.

On November 9, 1995, the ALJ rendered a decision denying Nelson's claim for benefits on the sole gro und that he had failed to satisfy the requirements for cover age under

the Act.

Nelson appealed to the Board, which affirmed the AL J as indicated supra.

Standard of Review

This court has appellate jurisdiction pursuant to 3 3 U.S.C. S921(c). The standard of review is "limited to a
determination of whether the Board acted in conform ance 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 Serv ice, Inc., 849 F.2d 805, 807 (3d Cir. 1988)). "When factual fi ndings are at issue, we ... make an independent factual re view to determine whether the Administrative Law Judge's fi ndings were supported by substantial evidence ...." Id. (c iting Janusziewicz v. Sun Shipbuilding & Dry Dock Co., 67 7 F.2d 286, 290 (3d Cir. 1982)).

Discussion

The Settlement Agreement and Waiver Issues

Nelson's contention that the Board erred in affirmi ng the ALJ's refusal to enforce the alleged settlement agr eement and his rejection of Nelson's contention that ADC w aived its right to challenge coverage are without merit.

6In ruling on the ALJ's refusal to enforce settlemen t, in

addition to finding several fatal procedural defect s in Nelson's petition for review before the Board, the Board

found that the ALJ committed no error since the rec ord was devoid of evidence of a completed settlement agreem ent between the parties and further because no settleme nt application had been submitted to the ALJ in accord ance with the regulations found in 20 C.F.R. SS702.241-7 02.243. Nelson v. American Dredging Company and Signal Mutu al Insurance Company, 30 BRBS 205, 208 (1996).

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

(a) When the parties to a claim for compensa tion ... agree to a settlement they shall submit a co mplete application to the adjudicator ["district di rector or administrative law judge (ALJ)" S702.241]. T he application shall include all of the informa tion outlined

in S702.242 ....

Section 702.242(a) and (b) of the regulations provi de in their pertinent parts:

(a) The settlement application shall be a se lf-sufficient

document which can be evaluated without furt her reference to the administrative file. The ap plication 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 s ettlem ent which clearly indicates, where appropriate, the amounts to be paid for compensation, medical benefits, survivor benefits and representati ve'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. Ne lson argues, nevertheless, that the record demonstrates that an enforceable agreement had been reached by the parti es, and, referring to rulings of this court which recog nize a federal district court's equitable jurisdiction to enforce settlement agreements based upon oral representatio ns

7made by the litigants before it, urges this court t o 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 Ci r. 1967).

The Board was correct in affirming the ALJ. The applicable regulations cited by the Board in its ru ling prescribe in detail the procedures for, and the nec essary contents of, settlement applications under the Act. The parties never complied with these regulations. In v iew of the detailed requirements and formal procedures specifi ed in the regulations promulgated under the Act for effec tuating a settlement, a serious question arises as to wheth er under any circumstances an adjudicator or a court properl y may enforce a settlement agreement which does not compl y with those regulations. We need not resolve that questio n at this time, however, because the parties never reached a settlement agreement. There was at most an "agreeme nt in principle" to settle, which never matured.

Nelson's counsel at the January 13, 1995, hearing s tated 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 4 5 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 reach ed were quite material and included the amount of outstanding liens in addition to such items specifi cally 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 b ear.

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 discu ssed 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 f or ADC]

8doesn'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 t own.

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

It will take about two weeks. But he's agree able to the format that we have worked out, and the Clai mant will not bring any other claims under any other a cts.

App. 14-15 (emphasis supplied).

These were material matters under the Act. As a res ult 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 sett le. This never was consummated, and as a consequence there w as no settlement agreement, formal or informal, for th e ALJ to

enforce.

Little need be said on the waiver issue. Nelson was well aware at least as early as the January 13, 1995, he aring, a full three months prior to the final hearing on A pril 27, 1995, that ADC was raising coverage questions. In f act, 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 f or Nelson

stated:

There are serious questions in this case of jurisdiction and extent of disability. And --

Judge Romano: Jurisdiction under the Longsho re Act you mean?

Mr. Linker: Yes. It was not raised by the em ployer at the informal level, but it is being raised n ow. It's a serious -- in my view, it's a serious questi on in this case. And under the circumstances, we have

recommended to the Claimant and Claimant's - - referred counsel to us that the matter be re solved on an 8(i) basis.

9App. 15.

In affirming the ALJ, the Board found that the cove rage issue had been timely raised and properly considere d 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 sup port of its rulings.

I. The Coverage Issue

We proceed now to address the principal issue in th is case; i.e., whether Nelson's injuries are covered b y the Act.

The Applicable Law

Prior to 1972, coverage existed under the Act only for injuries sustained upon the "navigable waters of th e 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 t he injury and the `status' of the injured" to determine eligi bility 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 employe e, but only if a disability or death results from an inj ury occurring upon navigable waters of the United States ( including any adjoining pier, wharf, dry dock, termina l, 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 situ s, Congress enacted a so-called "status" requirement a nd 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:

10The term "employee" means any person engaged in

maritime employment, including any longshore man or other person engaged in longshoring operatio ns 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 na vigable waters of the United States (including any a djoining pier, wharf, dry dock, terminal, building wa y, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, o r 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 sam e 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 har borworker such as a ship repairman, shipbuilder, and s hipbreaker, the scope of `maritime employment' [remain s] ... imprecise." Sea-Land Service, 953 F.2d at 60 (citin g 33 U.S.C. S902(3)).

While the statutory definition is somewhat imprecis e, the Court has held that the scope of maritime employmen t clearly includes those employees "on the situs invo lved in the essential or integral elements of the loading o r 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. I n Caputo,

the Court observed:

The language of the 1972 amendments is broad and suggests that we should take an expansive vi ew of the

11extended coverage. Indeed, such a constructi on is

appropriate for this remedial legislation. T he Act"must be liberally construed in conformance with i ts purpose, and in a way which avoids harsh and incongru ous 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. Perin i 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 navi gable water at the time of his injury and then proceeded to find that the actual situs of the injury, the beach at F enwick Island, neither adjoined navigable waters nor was u sed 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 Steve dore Co. v. Herron, 568 F.2d 137, 141 (9th Cir. 1978), held should be considered in determining if the site of an inju ry, 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 o r where loading, unloading or any other activity incidental to commerce or shipbuilding could have occurred and th us 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 th at 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 fin ding that claimant was not injured on a covered situs. Initially, we note that the site is "adjoining" and "co ntiguous" to navigable water; it cannot seriously be cont ended that
the Atlantic Ocean off the coast of Delaware is not navigable water or that it is not used for m aritime

12commerce. That an injury occurs in an area a djacent

to navigable waters does not end the situs i nquiry, as the area must be "customarily used by an emp loyee [sic] for loading, unloading, repairing, dis mantling 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 pur poses. Rather, it is uncontroverted that the site o f claimant's injury is an unimproved beach fronting the o cean. 2 We, therefore, affirm the ALJ's finding that cla imant was not injured on a covered situs.

Nelson, 30 BRBS at 207. [The text of footnote 2 app ears below]. Although the Board rejected the ALJ's findi ng that
the Atlantic Ocean at Fenwick Island was not a navi gable water way and that it was not used for maritime com merce, it nevertheless found that the area did not qualify as a S3(a) situs. It reasoned that not only must the area be a djacent to navigable waters but it also must be "customaril y used by an employee [sic] for loading, unloading, repair ing, dismantling or building a vessel." It then conclude d that "[i]n this case, the record is devoid of evidence s upporting a finding that the site of claimant's injury was us ed for traditional maritime purposes. Rather, it is uncont roverted 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 un loading sand from a dredge, see status discussion, i nfra, and that the beach thus falls within S3(a) due t o the "discharge" of sand from the vessel. Claiman t's Brief at 13. We do not agree that the discharge of sa nd onto the beach makes it an area "customarily" use d for unloading a vessel, since the customary use of the beach is recreation. See also Sidwell v. Exp ress Containers Services, Inc., 74 F.3d 1134, 29 BRBS 138 (CRT) (4th Cir. 1995) (an adjoining area mus t be a "discreet structure or facility, the very ra ison d'etre of which is its use in connection with navigabl e waters"). (emphasis added).

Id. at n.2.

We disagree with the Board's rationale and its read ing of that portion of S3(a) of the Act. The Board constru ed the

13language to mean that the customary use of the beac h had

to be for some maritime purpose. But the word "customarily" in S3(a) modifies the phrase "adjoini ng area ... used by an employer," not simply the phrase "adjoin ing

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 use d in loading, unloading, repairing, dismantling or build ing a vessel." Of course, if that were the language emplo yed by Congress, the Board's conclusion that in order for a site to be an "other adjoining area" covered by the Act, su ch area must customarily be used, in effect, by the maritim e industry for some maritime purpose would be more te nable. But the dispositive question in S3(a) is not whethe r the beach "customarily is used" for "loading, unloading ..." but rather whether "an employer customarily" uses the b each for loading, unloading ...."

ADC is a maritime employer within the meaning of th e Act. It is in the business of dredging channels and reclaiming beaches. A fair reading of the uncontrad icted testimony of Nelson and of ADC's chief financial of ficer 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 i n the beach reclamation business. The Fenwick Island proj ect was typical in that the sand used to rebuild the be ach had

to be obtained from a "borrow" area from thefloor o f the ocean at a point which was beyond the reach of the pipeline which ADC used to pump this sand onto the beach bei ng 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 transpor ted the sand to the pipeline. The sand then was pumped from the hopper dredge through the pipeline and unloaded ont o the beach. The Fenwick Island beach was an area contigu ous to navigable waters. And it and similar beaches cus tomarily 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 Nel son was injured.

14Based on the foregoing, we believe that the beach a t

Fenwick Island qualified as an adjoining area custo marily used by at least one maritime employer to unload it s vessel.

The Board, however, cites Sidwell v. Express Contai ners Services, Inc., 71 F.3d 1134 (4th Cir. 1995), cert. denied, ___ U.S. ___, 116 S.Ct. 2570 (1996), for the propos ition that in order for an adjoining area to qualify as a situ s it "... must be a `discrete structure or facility', ...." I t is true that the court in Sidwell, applying the canon of statuto ry construction noscitur a sociis, concluded that the "other adjoining area" referred to in S3(a) must be like t he 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 possib le exception of the building way, the court found to b e 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 p receded the phrase "other adjoining area" were not referred to in that section as "areas." The Sidwell court opined t hat by using the term "other adjoining area" the drafters of the amendment thereby were referring back to the enumer ated structures; i.e., pier, wharf, dry dock, as areas. But giving the word "area" its plain meaning as we are require d to do in construing the statute,3 wefind that it does not denote

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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 unambiguou s 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, 10 9 S.Ct. 1026 (1989); see also Connecticut Nat. Bank v. Germain, 5 03 U.S. 249, 253-254, 117 L.Ed.2d 391, 112 S.Ct. 1146 (1992).

The plainness or ambiguity of statutory lang uage is determined by reference to the language itself, the specif ic context in which

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

whole. Estate of Cowart v. Nicklos Drilling Co., 50 5 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 (1 991).Robinson, 519 U.S. ___, 136 L.Ed.2d at 813.

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

indeed sometimes within a building or other structu re.

Webster's Third New International Dictionary (1993) at p.
115 defines "area" as:

a piece of level ground, a level or relative ly level piece of unoccupied or unused ground; ... a clear or open space of land; ... a definitely bounded piec e 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 definitel y bounded part or section of a building set aside for a specific use or purpose; ... any particular extent of spa ce or surface. (emphasis supplied).

The American Heritage Dictionary of the English Lan guage (1976) at p. 69 similarly defines "area" as:

1. A flat, open, or unoccupied piece of grou nd. 2. A part of the earth's surface; region. 3. A distinc t part or section, as of a building, set aside for a s pecific function .... 4. The range or scope of anyth ing: the whole area of finance. 5. The yard of a buil ding; an

areaway ....

There is nothing in the definition of the word "are a," therefore, which suggests that by its use in S3(a) the
drafters intended that it refer back to and be modi fied by any of the preceding enumerated sites which happen to be structures. Contrary to the Board's holding, an uni mproved beach falls within the plain meaning of the word "a rea" 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 co nclude that Congress intended by this indirect means to pr ovide coverage under the Act only for injuries which occu r on certain definable structures. Instead, it is more c onsistent with that purpose and "the broader context of the s tatute as a whole," Robinson, 519 U.S. at ___, 136 L.Ed.2d at 813, to conclude that Congress intended primarily by thi s language to ensure that the area where an injury oc curs be on or adjacent to navigable waters.

16Accordingly, we hold that under the facts and

circumstances of this case the beach at Fenwick Isl and constituted an adjoining area where ADC customarily unloaded (sand from) its vessels. As such it consti tuted 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 be ach renourishment project. The purpose of the pr oject was to put sand on the beach area. It had nothin g whatsoever to do with maritime commerce or t he construction or repair of vessels. Nelson's work was not maritime in nature. His job was to move mate rial (sand and pipes) with a bulldozer. It was not rela ted to
maritime commerce.

App. 156.

In affirming the ALJ, the Board rejected Nelson's argument that a considerable and important aspect o f 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 unloa ding process, we agree with the Administrative Law Judge t hat 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 bu lldozing duties were integral to employer's beach ren ourishment project rather than longshoring activities, we affirm the Administrative Law Judge's determination tha t these duties are insufficient to confer coverage u nder 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 undisp uted that the hopper dredge on the Fenwick Island projec t

17obtained sand from the ocean floor approximately 10 miles

from Fenwick Island beach. Approximately 4,000 cubi c yards of sand at a time were loaded into the hold o f the vessel. At this point that sand literally became th e "load" being carried by that vessel. When this self-propel led 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 litera lly was
"unloaded" as much as it would have been had it bee n bagged and removed from the vessel by a crane and c argo
nets.

From the undisputed facts it is clear that Nelson w as a vital part of the unloading process. With the aid o f his bulldozer he moved the pipeline up and down the bea ch in order strategically to deposit; i.e., to unload, th e sand; he waded knee deep into the ocean waters to adjust val ves and add sections to the pipeline; and finally he moved the sand from where it was pumped in those waters adjacent t o 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 unloa ding process, but, instead was part of the process of re building the beach, it is abundantly clear that in all other respects Nelson was directly and intimately involved in unlo ading the hopper vessel. This was more than enough to con stitute maritime employment.4

The fact that all of this was done in connection wi th, 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 ba sis in the case law or logical reasoning to support the pr oposition

___________________________________________________ ______________

4. It is sufficient that Nelson "spen[t] `at least some of [his] time in indisputably longshoring operations.' " Pfeiffer, 4 44 U.S. at 75. Maritime employment clearly includes employees "involved in the essential or integral elements of the loading or unloading proce ss." Schwalb, 493 U.S. 46 (1989).

18that what otherwise would constitute the act of unl oading

a vessel becomes a non-unloading, and thus a non-co vered, act because of the ultimate use to which the produc t being unloaded is put. Neither Caputo nor Schwalb nor Gar mon 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 stor ed
bauxite and from which it drew this aluminum ore as it was needed in the manufacturing process. The bauxit e was transported by ship to state-owned docks where stat e employees unloaded it and ultimately delivered it t o 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 th e 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 cl aimant was not engaged in the unloading process because hi s "operating duties were not necessitated by unloadin g operations but by employer's use of bauxite in the process of manufacturing aluminum." On appeal the Benefits Review Board affirmed, concluding "... claimant's b ulldozing duties were integral to employer's manufacturing pr ocess rather than to longshoring activities ...."

The critical factual differences between Garmon's a nd Nelson's activities are too obvious to require anal ysis 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 Garm on remanded the case for the ALJ to address the conten tion that claimant's duties in cleaning the employer's c onveyor belts and retrieving bauxite from the floor and ret urning it to those belts were part of the unloading process, stating

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

focuses on claimant's overall duties; thus, an empl oyee 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 BRB S at 328." Garmon, 28 BRBS at 49.

Garmon thus strongly supports Nelson's position and illustrates precisely the point that all of a claim ant's work activities must be considered in determining whethe r he was engaged in maritime employment.

In Schwalb, the claimants were employees of a railr oad working at a terminal where coal was being loaded f rom railway cars onto ships. The claimants were injured either while cleaning or while repairing equipment that wa s used in the loading process. The Supreme Court reversed the Supreme Court of Virginia which had held that claim ants were not engaged in maritime employment when they w ere 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 ma intaining or repairing equipment essential to the load ing or unloading process are covered by the Act. Su ch employees are engaged in activity that is an integral part of and essential to those overall proce sses. That is all that S902(3) requires. Coverage is not l imited to employees who are denominated "longshoremen" or who physically handle the cargo. ...

Schwalb thus also supports Nelson's position, becau se he was even more directly involved in the loading/unlo ading process than were the claimants in Schwalb.

Caputo, supra, also cited by the Board in support o f its holding that at the time of his injury Nelson was n ot engaged in maritime employment, provides scant auth ority for that ruling. In Caputo the court upheld coverag e for a terminal laborer who was injured while rolling a do lly loaded with cheese onto a consignee's truck, the ch eese previously having been unloaded from a vessel on na vigable waters. The Court also upheld coverage for another claimant who was injured as he was marking the carg o removed from a container which had been unloaded fr om a

20vessel. 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 f acts
and circumstances of this case that at the time Nel son was injured he was engaged in maritime employment on a covered situs within the meaning of the Act. The Bo ard's rulings to the contrary were not in conformance wit h the applicable law; accordingly, we will reverse the Bo ard's ruling with regard to the coverage question and rem and it for proceedings consistent with this opinion. In al l 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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