United States: Fifth Circuit Holds Floating Offshore Tension Leg Platform Not A Vessel Under LHWCA

Case: Baker v. Dir., OCWP
United States Court of Appeals for the Fifth Circuit
No 15-60634, 2016 U.S. App. LEXIS 15297 (08/19/16)

Baker appealed the denial of benefits under the Longshore and Harbor Workers' Compensation Act, (LHWCA) and alternatively, under the LHWCA by extension through the Outer Continental Shelf lands Act, (OCSLA). Baker worked for the preceding eight months as a marine carpenter at a waterside marine fabrication yard. He was injured while building a housing module to be installed onto a newly built tension leg offshore oil platform designated as Big Foot. After formal hearing, an Administrative Law Judge found Baker was not covered under the LHWCA because he was not engaged in maritime employment as a shipbuilder based on the determination that Big Foot is not a "Vessel" under the LHWCA. Baker was next denied benefits under OCSLA because his employment lacked the required causal link with production operations on the OCS. After affirmation by the Benefits Review Board, Baker filed his appeal with the Fifth Circuit to review the vessel status of Big Foot.

To be entitled to LHWCA benefits, the injured must be a maritime employee as defined by 33 USCA 902(3). The Act defines maritime employment to include ship repairmen, shipbuilders, and ship breakers. Thus, entitlement to LHWCA benefits turns upon vessel determination. The Fifth Circuit affirmed the BRB's denial of benefits on the grounds that Big Foot is not a vessel under the direction of Stewart v. Dutra Constr. Co., 543 U.S. 481, (2005); and Lozman v. City of Riviera Beach, 133 S. Ct. 735, (2013). Like all vessel-status analyses that have come before, the outcome is heavily dependent on the factors of each case. The Baker case is no different.

Under Dutra, 1 USCA 3, requires only that a watercraft be used, or capable of being used, as a means of transportation on water to qualify as a vessel, but that does not have to be the primary purpose of the watercraft. Accordingly, a floating dredge was found to qualify as a vessel based on its characteristics. The dredge in Dutra was designed to "regularly" move through waterways digging up the bottom and transporting sediment, crew, and equipment as it fulfilled its purpose. Subsequently, in Lozman, the United States Supreme Court retracted the expansive definition employed by Dutra and focused more on the physical characteristics the watercraft possesses. Accordingly, the Supreme Court found that an ordinary houseboat does not fulfill the requirements to be labeled a vessel. The houseboat was moved 4 times over a seven year span, and it was not designed to be moved with any regularity. It was not designed to transport anything over water. It lacked any means of self propulsion or rudder system. Finally, the houseboat's bottom sat 10 inches below the surface and lacked a raked bow to aid in navigation.

Like Lozman's houseboat, Big Foot lacks any suggestion that it was designed to any practical degree to "regularly" transport persons or things over water. Big Foot is a typical TLP, or type of offshore platform used in deep water oil production. It is designed to be permanently anchored 200 miles form the Louisiana coast to the seafloor bed by 16 miles of "tendons." Big Foot is to serve as a permanent work platform for the expected 20-year life of the oil field. It is not designed to regularly, or even occasionally, transport goods or people after it is placed into service. After Big Foot is assembled, it is only intended to travel over water once within the next twenty years; the voyage to its operational location on the OCS. While Big Foot can float, it does not have any means of self-propulsion, thrusters, steering, or a raked bow. For the limited time that it is in tow, Big Foot is manned by a crew to control Big Foot during the voyage. The US Coast Guard classified Big Foot as a "Floating OCS Facility," and the Fifth Circuit held Big Foot was not a vessel. Baker was precluded from receiving LHWCA benefits.

Unsurprisingly, the court found OCSLA was inapplicable to Baker's claim, because he lacked the requisite substantial nexus between his injury and extractive operations on the OCS to qualify for LHWCA benefits as extended by OCSLA. Pac. Operators Offshore, LLP v. Valladolid, 565 U.S. 207, 132 S. Ct. 680, 685 (2012). Baker failed to establish a significant causal link between his injury and his employer's natural resource extraction operations on the OCS. Id. at 691. Baker's employer merely fabricated housing units for OCS structures. Therefore, his job was much too attenuated from the oil and gas activities required to trigger coverage under OCSLA. Baker's employment was located solely on land, and did not require him to travel to the OCS at all.

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