W.B. v. Sea-Logix, L.L.C., and Signal Mutual Indemnity Ass'n, BRB No. 06-0908, 41 BRBS 89 (Aug. 23, 2007).

This decision arises from an appeal of a decision of the ALJ saying that claimant, designated as a truck driver, did not meet status requirements of the Longshore Act (33 U.S.C.S. § 901 et seq.) even though there were three job activities that should at least constitute the intermediate step of moving cargo between ship and land transportation (see status requirements at 33 U.S.C.S. § 902(3)). Those activities were transporting containers between a marine terminal and a Port of Oakland railhead and transporting to other marine terminals within the port and to employer's warehouse adjacent to the marine terminal. The Board found those activities were covered employment.

The ALJ also denied coverage because the activities were incidental and not a substantial portion of the work.  The BRB reversed based on the principle enunciated in Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 53 L. Ed. 2d 320, 97 S. Ct. 2348, 6 BRBS 150(CRT) (1977), that found that in order to fulfill the status requirement, the claimant need only spend "at least some of [his or her] time" in covered employment, Caputo, 432 U.S. at 273, 6 BRBS at 165.

The ALJ further erred in embracing a principle long rejected by our Supreme Court, the "point at rest" theory.  This theory would only cover those employees who moved cargo from the vessel to its initial point of rest on the pier or terminal area and vice versa.  The Supreme Court, long ago, however, settled on the principle of extending coverage to workers who are involved in the intermediate steps of moving cargo between ship and land transportation, see P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 75-76, 62 L. Ed. 2d 225, 232, 100 S. Ct. 328, 333-334, 11 BRBS 323, 328 (1979), Caputo, 432 U.S. at 276-279, 6 BRBS at 166-169.  More precisely, delivery activities to the point at which the cargo leaves the port are covered activities.

The ALJ also erred by placing too much weight on the electronic release of cargo out of the port when the Supreme Court emphasized that it is the nature of the work activity that is paramount in determining the status requirement.

The Board agreed that too much emphasis was placed on legal custody to deny coverage.

The Board also wrote that union membership, in this case, of the Teamsters, is not so broadly interpreted as standing for the proposition, contrary to a ruling in Triguero v. Consolidated Rail Corp., 932 F.2d 95 (2d Cir. 1991).  That ruling considered membership in the Longshoremen's Union a factor in granting status.  The fact of membership in the Teamsters and not in the ILWU should not have been considered a factor in denying coverage. 

More particularly, the Board analyzed the three work activities that the ALJ rejected as covered work activities. 

The first was the "land bridge" job of moving containers from storage in a marine yard to the railhead.  The Board found that the ALJ must have embraced the already rejected "point of rest" theory to come to rejecting this activity as covered.  The Board, however, explained that our Supreme Court in Caputo and Ford, found that intermediate transportation between the ship and rail is covered.  In this case the activity that occurred exclusively within the Port of Oakland, and never leaving the Port of Oakland, was an intermediate step and thus was covered.  The Board found that it was the railhead that actually commenced the landward journey, not the storage in the marine yard.

The second activity of moving cargo in the Port of Oakland from one marine facility to another was covered according to he Board. This movement never left on its landward journey so again it was covered.  The fact that it was only performed once per month did not disqualify it from coverage.

The third activity of moving containers, both loaded and unloaded between the Marine terminal and the employer's adjacent warehouse was also found by the Board to be covered.  Relying on Childs v. Western Rim Co., BRB No. 91-1622, 27 BRBS 208 (Sept. 17, 1993), the Board found that the activities of moving containers and chassis between the marine yard and warehouse remain in the stream of maritime commerce and is, again, an intermediate step between sea and land transportation.

The decision removes the doubt of coverage to those truckers that sometimes or even for the most part perform their duties delivering to landward sites.  If there are activities that also involve transportation in the port area, be it to a railhead, other terminals or to adjacent marine warehouses, then coverage will be afforded.  To add to that, these activities need only be performed at least some of the time but more than episodically, momentarily, or incidentally.

© Copyright 2008 by Matthew Bender & Co., Inc., a member of the LexisNexis Group. All rights reserved. This article, written by By Steven M. Birnbaum, Law Offices of Steven M. Birnbaum, San Rafael, California, originally appeared in the Benefits Review Board Service Longshore Reporter, Release 699.