The Mendez court noted that "at most that the RED HAWK is theoretically capable of maritime transport, but not practically capable." Mendez is a recent example of the critical nature of the vessel question if the structure is not a vessel, the plaintiff cannot sue under the Jones Act. Lozman was recently followed in Mooney v. W&T Offshore Inc., 2013 U.S. Dist. LEXIS 30091 (E.D. La. 2013). Mooney alleged he was a Jones Act seaman because the tension-leg platform (TLP) operated by his employer was a "vessel." The court disagreed and dismissed the suit, relying on Lozman: "a reasonable observer looking at the structure's physical characteristics and activities, would not consider the vessel as being designed for carrying people or things over water." The court compared the TLP to floating gas production platforms and floating casinos, which do not qualify as vessels under current law; it was permanently moored to the seafloor. Under Lozman's "reasonable observer" test, vessel status was denied. Jurisdiction under the LHWCA strict interpretation of "adjoining area" for jurisdiction under the LHWCA (the LHWCA applies to "adjoining areas" used for maritime activity); New Orleans Depot Services, Inc. v. Director OWCP, 718 F.3d 384 (5 Fifth Circuit Winchester case which held that an adjoining area (a stevedore's gear room about ½ mile outside the fence boundary of the Port of Houston) need not be directly contiguous to navigable waters. NODSI employee Juan Zepeda was injured in the "Chef Yard" facility in New Orleans. NODSI repaired shipping containers and chassis. Chef Yard, with access to the Chef Menteur Highway and rail transportation, is a small industrial park located about 300 yards from the Intracoastal Canal. delivered to and taken from the Yard by truck with no access to the canal. An administrative law judge held the Yard was close enough to navigable waters for jurisdictional purposes. The Benefits Review Board affirmed. The Fifth Circuit overruled Winchester with a plain language approach to interpreting the Act: "The plain language of the LHWCA requires that coverage situs actually adjoin navigable waters" and not be "in the general geographic proximity of the waterfront." of the LHWCA? limits but how far does the LHWCA go seaward? The question was recently addressed in Keller Foundation v. Tracy, 696 F.3d 835 (9 was injured while employed in the ports of Singapore and an Indonesian ship yard. Previous lower court decisions had determined that the LHWCA did not apply to workers injured on foreign territorial waters. But more recently, in Weber v. S.C. Loveland Company, 28 BRBS 321 (1994), a longshoreman injured on a barge in Kingston, Jamaica, was held to be covered under the LHWCA because the worker was a U.S. citizen, employer was U.S. based, and the vessel was under the American flag. In U.S. includes the high seas, but drew the line where those high seas intersect with foreign territorial waters, and held that in the absence of clear congressional intent to include injuries in foreign territorial waters in Section 903(a), there is a presumption that the LHWCA does not apply extraterritorially. In another 2012 landmark decision, the Court extended the Outer Continental Shelf Lands Act (OCSLA), to land injuries. (Congress enacted OCSLA in the 1950s and extended the LHWCA to claims that fall under the OCSLA.) Valladolid, 132 S. Ct. 680 (2012) ("Valladolid"). The outer continental shelf (OCS) is a subsea area that begins offshore from the coastal states where their territorial waters end. Juan Valladolid was killed while performing maintenance work at the employer's onshore oil and gas processing facility in Ventura County, California. Ninety-eight percent of his other duties were on OCS platforms. His widow filed for benefits under OCSLA, which provides benefits for injury or death to an employee occurring "as a result of operations connected with the exploration, development, removal and transportation of natural resources from the seabed and subsoil of the outer continental shelf." For many years, courts had held OCSLA had a situs requirement limiting jurisdiction to injuries occurring on the OCS. In Valladolid, the Court extended OCSLA coverage to work-related injuries occurring away from the OCS, provided the work has a "substantial nexus" to the employer's operations on the OCS. Before January 2012, Federal Courts disagreed about OCSLA jurisdiction. The Fifth Circuit refused to extend OCSLA to injuries outside the OCS. The Third Circuit took a broader view, applying OCSLA even to land injuries, if the injury would not have occurred "but for operations" on the OCS. Valladolid rejected these views and adopted the Ninth Circuit's "substantial nexus" test. Practitioners need to follow subsequent cases to probe the landward limits of OCSLA jurisdiction. Valladolid will likely result in more claims for land/ near-land injuries under OCSLA that were formerly covered under state law. defining the parameters of jurisdiction under the Jones Act, the LHWCA and the OCSLA. Employers and their counsel must remain current on these and subsequent decisions given the risks and substantial dollars at stake. |