IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 92-4380

_______________

NOEL E. MUNGUIA,

Petitioner,

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,

UNITED STATES DEPARTMENT OF LABOR,

Respondent,

VERSUS

CHEVRON U.S.A. INC.,

Respondent.

_________________________

Petition for Review of an Order of

the Benefits Review Board

_________________________

August 20, 1993

Before JOHNSON, SMITH, and EMILIO M. GARZA, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Noel Munguia appeals a decision of the Benefits Review Board

(the "Board") of the United States Department of Labor, rejecting

his claim for benefits under the Longshore and Harbor Workers'

Compensation Act (the "Act"), 33 U.S.C. § 901 et seq. (1988), for

injuries sustained while in the emp loy of Chevron, U.S.A., Inc.

("Chevron"). We affirm the Board's decision, but for reasons

different from those relied upon by the Board.2 I.

Mungu ia had been employed by Chevron as a roustabout and

relief pumper-gauger for nine years. At the time he was injured,

he had been assigned as a pumper-gauger to Chevron's South and

Southwest Pass oil field for over two years. The field includes

about 200 producing oil wells drilled in an area eighteen miles

long on both sides of, and a short distance from, the Mississippi

River. Each well is situated on a stationary platform built in the

marsh or on water and is accessible only by water.

Munguia worked for seven days, then was off duty for seven

days. When on duty, he was provided sleeping quarters and meals in

a bunkhouse, near which Chevron maintained a group of oil storage

tanks, called a tank battery. A number of vessels, varying from

eight to twelve, were anchored at the tank battery, including small

boats of various kinds (Lafitte skiffs, Boston whalers, and Joboats) fitted with outboard motors and other small ves sels that

could transport one or two workers and their equipment. There was

also at least one larger vessel, a wire-line barge, aboard which

equipment needed for work on wells was permanently stored. Chevron

maintained this small fleet for the sole purpose of enabling its

employees to service the production field.

On the day he was injured, Munguia was assigned to work with

a gas specialist checking a number of wells for gas leaks. They

proce eded in a Lafitte skiff to check the valves on the wellcontrol unit for leaks. One of them would close the valve, and the

other would listen for leaks. Munguia injured his back while1 The Director is a party to the litigation of disputed claims under the

Act at all stages of the litigation. See Ingalls Shipbuilding Div., Litton

Systems, Inc. v. White , 681 F.2d 275, 281-88 (5th Cir. 1982), overruled on

other grounds

, Newpark Shipbuilding & Repair, Inc. v. Roundtree , 723 F.2d 399,

406-07 (5th Cir. 1984) (en banc).

3 attempting to close a frozen master valve.

II.

Munguia's claim was referred for disposition to an

administrative law judge ("ALJ"). Concluding that Munguia

satisfied the "status" requirement of the Act and that the parties

had not contested the "situs" requirement, the ALJ awarded Munguia

his requested compensation benefits. Chevron appealed the decision

to the Board.

Citing the transcript of the evidentiary hearing before the

ALJ, the Board disagreed with the ALJ's statement that Chevron had

not raised the situs issue. Addressing the merits, the Board then

concluded that the scope of Munguia's emp loyment did not satisfy

the situs requirement, and it reversed the ALJ's decision on that

ground. Munguia, joined by the Director of the Office of Worker's

Compensation Programs (the "Director"), appeals. 1

III.

Our review of Board decisions is limited to considering errors

of law and ensuring that the Board adhered to its statutory

standard of review, namely, whether the ALJ's findings of fact are

supported by substantial evidence and consistent with the law. 33

U.S.C. § 921(b)(3); Miller v. Central Dispatch, Inc.

, 673 F.2d 773,2 Although the ALJ and, to a lesser extent, the Board phrase this twopart inquiry in terms of jurisdiction rather than coverage, it should be noted

that jurisdiction is presumed under the Act. See 33 U.S.C. § 920(a); New

Orleans (Gulfwide) Stevedores v. Turner , 661 F.2d 1031, 1038 (5th Cir. Unit A

Nov. 1981). The presumption is, of course, rebuttable, but the burden of

establishing jurisdiction (or the lack thereof) does not lie with the

claimant.

4 778 (5th Cir. Unit A 1982).

In order to demonstrate coverage under the Act, a worker must

satisfy both a situs and a status test; in the words of the

statute, he must show that, at the approximate time he incurred

disabilit y or death, he was "engaged in maritime employment," 33

U.S.C. § 902(3), and that his injury "occurr[ed] upon the navigable

waters of the United States

. . . ." I d. § 903(a) (1982). S ee

also Herb's Welding, Inc. v. Gray

, 470 U.S. 414, 415- 16 (1985). 2

These threshold inquiries were the focus of dispute before both the

ALJ and the Board.

Section 902(3) of the Act, embodying the "maritime employment"

status requirement, has been deemed "an occupational test t hat

focuses on loading and unloading." P .C. Pfeiffer Co. v. Ford

, 444

U.S. 69, 80 (1979). While certain enumerated categories of

employees )) e.g., longshoremen and harbor workers )) are

automatically included within section 902(3)'s ambit, coverage may

also extend to other employees. A string of Supreme Court

decisions addressing this issue has left it "clearly decided that,

aside from the specified occupations, land-based activity occurring

within the § 903 situs will be deemed maritime only if it is an

integral o r essential part of loading or unloading a vessel."3 See also Herb's Welding , 470 U.S. at 423 ("Congress did not seek to

cover all those who breathe salt air. Its purpose was to cover those workers

on the situs who are involved in the essential elements of loading and

unloading; it is `clear that persons who are on the situs but not engaged in

the overall process of loading or unloading vessels are not covered.'"

(Quoting Northeast Marine Terminal Co. v. Caputo , 432 U.S. 249, 267 (1977).).

4 As the legislative history states, "[t]he Committee does not intend to

cover employees who are not engaged in loading, unloading, repairing, or

building a vessel, just because they are injured in an area adjoining

navigable waters used for such activity." S. R EP. N O. 1125, 92d Cong., 2d Sess.

13 (1972); H. R. R EP. N O. 1441, 92d Cong., 2d Sess. 11 (1972).

5 Chesapeake & Ohio R. R. v. Schwalb , 493 U.S. 40, 45 (1989). 3

The status test was added in the 1972 amendments to the Act,

the purpose of which was to extend coverage to those injured in

maritime employment on certain areas adjoining previously-covered

sites but not actually on navigable waters

. It thus "became

necessary to describe affirmatively the class of workers Congress

desired to compensate," Caputo

, 432 U.S. at 264, and the status

requirement was born. 4 But because Congress presumed that an

employee injured upon navigable waters in the course of his

employment had always been covered, and would remain covered, the

Supreme Court has held that the a dded status requirement defines

only the scope of the landward coverage extended by the 1972

amendments. See Director v. Perini N. River Associates , 459 U.S.

297, 317-19 (1983).

Thus the current status test, as our caselaw recognizes,

presents a dual inquiry. Under P erini

, an employee may be engaged

in maritime employment if he was inju red in the course of his

employment while on navigable waters. If he was not on navigable

waters at the time of his injury, however, he may satisfy the5 The Court relied for this result upon its earlier conclusion in

Rodrigue v. Aetna Casualty & Sur. Co. , 395 U.S. 352, 360 (1969), that fixed

platforms are not vessels but are properly analogized to islands. Thus, an

injury incurred while working thereon did not constitute an injury upon

navigable waters and was not covered under the Act. See Gray , 470 U.S. at 416

n.2, 421-23.

6 status test only if his work "is directly connected to the commerce

carried on by a ship or vessel, under Gray ." F onte not v. AWI,

Inc. , 923 F.2d 1127, 1130 (5th Cir. 1991).

It is undisputed that Munguia injured himself while working on

one of th e fixed well platforms in the Southwest Pass field. In

Herb's Welding

, the Supreme Court held that a welder injured while

working on just such a fixed platform was not engaged in "maritime

employment " and therefore was not covered by the Act. 5 Because

Munguia's injury transpired on a platform almost identical to that

at issue in H erb's Welding

, any resort Munguia might have had to

the first prong of the status test is necessarily foreclosed by

that precedent.

We are left, therefore, with the functional test of maritime

employment commended to us by the Court: Munguia's work will be

deemed maritime " only if it is an integral or essential part of

loading or unloading a vessel." S chwalb

, 493 U.S. at 45. In

Schwalb

, of c ourse, the Court extended the Act's coverage to

"[s]omeone who repairs or maintains a piece of unloading

equipment," id. at 47, but it reaffirmed the essential nexus to the

loading and unloading processes.

IV.6 Although he found no fixed percentage of time that Munguia had spent

loading and unloading supplies, the ALJ relied upon our adoption in two cases

of the Caputo test to extend coverage to employees who "spend at least some of

their time in indisputably longshoring operations." Caputo , 432 U.S. at 273.

See also Howard v. Rebel Well Serv. , 632 F.2d 1348, 1350 (5th Cir. 1980);

Boudloche v. Howard Trucking Co. , 632 F.2d 1346, 1347-48 (5th Cir. 1980),

cert. denied , 452 U.S. 915 (1981). In Boudloche , we found coverage where the

claimant spent only 21⁄2% to 5% of his time in longshoring activities; in

Howard , we held that the status requirement could be satisfied even though a

claimant had spent less than 10% of his time in ship repair. Curiously, the

ALJ also cited, as support, Thornton v. Brown & Root, Inc. , 707 F.2d 149, 152-

53 (5th Cir. 1983), cert. denied , 464 U.S. 1052 (1984), despite the fact that

Thornton applied the too-expansive "realistically significant relationship to

maritime employment" test expressly rejected in Herb's Welding

, 470 U.S. at

418-19, 423.

7 The record evinces some confusion as to the precise duties

Munguia was performing at the time of his injury. According to the

ALJ,

Claimant testified that he loaded and unloaded

supplies from crew boats to tank batteries. The supplies

Claimant said he unloaded were heavy equipment such as

generators, motors, compressors, 500 pound drums of soap,

chemicals and hay. Claimant said all the materials

arrived only by boat and he would at times navigate the

boat to other tank batteries. Claimant testified that no

one else was specifically hired by Employer to load and

unload equipment off and on the supply boats. Claimant

also testified that he had to operate a crane at times to

of f -load equipment from the supply boats. Claimant

testified that he spent 90% of his time working on the

waterway and of that time, 50% of his time would be spent

loading and unloading.

Apparently accepting Munguia's version of his employment

activities, t he ALJ found the status requirement satisfied,

distinguishing Herb's Welding on the basis that "Claiman t spent

some of his time loading and unloading supplies from boats, in

essence an action that the Act considers inherently maritime." 6

The above-described activities Munguia testified to as part of

his employment background with Chevron. Specifically, his

testimony related to his specific duties as a roustabout (class "B"8

and later, class "A") f or Chevron from 1970, the start of his

employment, to sometime in 1977, when, according to both his own

testimony and that of his supervisor, James Burchfield, Munguia

assumed the duties of a relief pumper -gauger. For approximately

the last two and one-half years prior to his injury, then, Munguia

was performing, as a relief pumper-gauger, functions quite

different from those relied upon by the ALJ in finding coverage.

The ALJ's confusion in this respect compels our conclusion

that substantial evidence did not support his factual findings and

that they therefore are undeserving of the de ference generally

accorded such findings. In contrast to the ALJ's recitation,

Mungu ia's duties as a relief pumper-gauger involved little or no

loading and unloading of boats. Our previous consideration of

Munguia's Jones Act appeal accurately described his activities:

Each day Munguia was assigned to duty at various

places in the field. If he was not assigned to work at

the tank battery but to work on t he various wells,

Munguia took a boat, either alone or with another worker,

and visited a number of the multiple small platforms

within the field. He loaded onto the boat the tools and

equipment he would need for the day and then navigated

the boat to and from the various platforms. At each

platform he unloaded the tools and equipment needed to do

the work required at that platform. Approximately ninety

percent of his time was spent eit her traveling to, or

working on, the field platforms and other structures in

the water.

Munguia , 768 F.2d at 651.

Additionally, there was testimony by Clement Malley, Chevron's

production foreman for the South Pass field, that the tank

batteries were supplied by three small contract crew boats (for

s mall items) and two larger "lugger" boats, which operated th ree9

days a week and delivered heavy equipment, drums of chemicals and

soap, and hay (for soaking up small oil spills). Although Munguia

c laimed that, as a roustabout, he occasionally would help unload

the se boats, Malley testified that Chevron contracted with two

different employers for crews to man these boats and perform the

off-loading themselves.

As for the individual wells serviced by Munguia, customarily

no heavy equi pment was delivered to them. When working as a

pumper-gauger, moreover, Munguia took to the wells only those tools

and supplies he neede d to perform his platform-related mission.

Unlike the ALJ, we find little to distinguish this case from Herb's

Welding . Like that of Mr. Gray, Munguia's work

had nothing to do with the loading or unloading process,

nor is there any indication that he was even employed in

the maintenance of equipment used in such tasks. Gray's

welding work was far removed from traditio n al LHWCA

activities, notwithstanding the fact that he unloaded his

own gear upon arriving at a platform by boat. He built

and maintained pipelines and the platforms themselves.

There is nothing inherently maritime about those tasks.

They are also performed on land, and their nature is not

significantly altered by the marine environment,

particularly since exploration and development of the

Continental Shelf are not themselves maritime commerce.

Herb's Welding

, 470 U.S. at 425 (citations and footnotes omitted).

Munguia's testimony to the effect that small Jo-boats

occasionally were used to carry small amounts of soap and chemicals

between tank batteries does not alter our analysis. While loading

and unloading of ships was undeniably required in order to complete

these tasks, that fact alone does not warrant our concluding that

Munguia thereby engaged in "marit ime employment." As we have

previously stated,7 Munguia was, on occasion, required to clean the boats and perform

minor maintenance work such as changing wheels or propellers. The record

reflects that Munguia spent only 5% to 6% of his working hours doing such

maintenance work. On one occasion, he worked on the wire-line barge when it

was being used to raise a sunken Jo-boat.

10 the unloading and loading, and construction activities

that the Court recogniz es as the focus of the maritime

employment test

. . . can be unconnected with maritime

commerce.

. . . For example, an employee might unload

one train, and load another; or an employee might engage

in construction activities, but build an airplane instead

of a ship. Nothing intrinsic in any of these activities

established their maritime nature, rather it is that they

are undertaken with respect to a ship or vessel. When

the tasks are undertaken to enable a ship to engage in

maritime commerce, then the activities become "maritime

employment."

Fontenot , 923 F.2d at 1131 (footnotes omitted).

Because the transfer of small amounts of supplies between tank

batteries by Munguia and his fellow roustabouts was undertaken ))

like Gra y's activities in H erb's Welding )) to further the nonmaritime-related purpose of servicing and mai ntaining the fixed

platform wells, the mere fact that Munguia may have loaded and

unloaded them onto his skiff cannot confer coverage. Likewise, the

incidental boat repairs performed by Chevron roustabouts )) even if

considered a part of Munguia's pumper-gauge r duties 7 )) were

intended to further the maintenance of the wells, not the loading

and unloading o f cargo. C f. Schwalb

, 493 U.S. at 47 (extending

cove r age to employees injured "while maintaining or repairing

equipment essential to the loading or unloading process " (emphasis

added)).

In short, Munguia's daily activities as a pumper-gauger were

intrinsical ly related to the servicing and maintenance of fixed8 "Cargo. The load (i.e. freight) of a vessel, train, truck, airplane

or other carrier." B LACK'S L AW D ICTIONARY 213 (6th ed. 1990). While we do not view

the issue as dispositive, we discern in the Court's emphasis on the loading

and unloading test for "maritime employment" at least an implicit requirement

that what is loaded be "cargo." See, e.g., Ford , 444 U.S. at 84 (advancing a

definition of maritime employment "that reaches any worker who moves cargo

between ship and land transportation"); Caputo , 432 U.S. at 267 (describing

the essential elements of unloading a vessel as "taking cargo out of the hold,

moving it away from the ship's side, and carrying it immediately to a storage

or holding area").

Thus, Munguia's transfer by boat of soap and chemicals from the tank

batteries to the well platforms does not constitute the loading and unloading

of cargo but rather the mere trans-shipment of supplies previously unloaded.

The committee reports accompanying the Act's 1972 amendments are plain on this

point:

The Committee does not intend to cover employees who are not

engaged in loading, unloading, repairing, or building a vessel,

just because they are injured in an area adjoining navigable

waters used for such activity. Thus, employees whose

responsibility is only to pick up stored cargo for further transshipment would not be covered . . . .

Caputo , 432 U.S. at 266 n.27 (quoting S

. R EP. N O. 1125, at 13; H

. R

. R EP. N O. 1441,

at 10-11).

11 platform wells )) wells, moreover, almost indistinguishab le from

those built and maintained by Gray

. Like Gray's welding

activities, Munguia's tasks involve "nothing inherently maritime."

Herb's Welding

, 470 U.S. at 425. Any contact Munguia may have had

with cargo wa s fleeting, unrelated to maritime commerce, and

usually at a time by which these supplies no longer possessed the

properties normally associated with "cargo." And as the Court has

stated, "[w]e have never read `maritime employment' t o extend so

far beyond those actually involved in moving cargo between ship and

land transportation." Id. at 424 (emphasis added). 8

Because Munguia has failed to demonstrate that he was engaged

in maritime employment when he was injured, he cannot meet the

status requirement for coverage under the Act. We therefore do not

address the question of situs, relied upon as dispositive by the12

Board, but substitute our reasoning for that of the Board and

AFFIRM.