Opinions of the United
1998 Decisions                                                                                                             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Precedential or Non-Precedential: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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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. XX-XXXXXXX

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

.

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, 

, 59 (3d Cir.
1992) (quoting Curtis v. Schlumberger Offshore Service, Inc.,

, 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 ...." 

v. Sun Shipbuilding & Dry Dock Co., 

, 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., 

, 390 (3d Cir. 1970); Good v.
Pennsylvania Railroad Co., 

, 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. 

, 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.

                                  

.

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, 

, 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." 

. 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, 

, 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 harbor-
worker such as a ship repairman, shipbuilder, and ship-
breaker, the scope of `maritime employment' [remains] ...
imprecise." Sea-Land 

(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, 

, 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, 

, 333, 

,
       

(1953).

at 268. See also Director, Office of Workers'
Compensation Programs, U.S. Dept. of Labor v. Perini North
River Associates, 

, 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, 

, 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." 

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., 

, 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).

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., 

(4th Cir. 1995), cert. denied,
___ U.S. ___, 

(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 so-
called 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." 

.

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. ___,

(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., 

, 240, 

, 

(1989);
         see also Connecticut Nat. Bank v. Germain, 

, 253-254,
         

, 

(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., 

, 477, 

, 

(1992); McCarthy v. Bronson, 

, 139, 

, 

(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 

, 6 BRBS at 150; 

, 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.' " 

. Maritime
employment clearly includes employees "involved in the essential or
integral elements of the loading or unloading process." Schwalb, 

(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. 

, 6
BRBS at 165. See also 

, 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 

:

       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.

, 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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