This is the story of my personal battle with the Fifth Circuit's recent decision in International-Matex Tank Terminals v. DOWCP, No. 1860662 (5th Cir. 2019) (King, Higginson, Duncan).
Dewayne Victorian, an assistant shift foreman for International-Matex Tank Terminals (IMTT), was injured while assisting with a "tank-t0-tank transfer" at an IMTT-owned oil-and-gas storage facility on the Mississippi River.Victorian filed a claim with the Department of Labor under the Longshore and Harbor Workers’ Compensation Act (“Act”), 33 U.S.C. § 901 et seq. An ALJ found that Victorian qualified for compensation under the Act, and the Benefits Review Board affirmed the ALJ's findings. The Fifth Circuit denied IMTT's petition for review.
The Court addressed several issues in its opinion, but I'm going to focus on the Court's discussion of the meaning of "terminal" in 33 U.S.C. 903(a)--the Act's so-called "situs" requirement. That provision limits the Act's coverage to injuries that
ocurr[ed] 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, dismantling, or building a vessel).
The Act doesn't define "terminal," and until this case, the Fifth Circuit hadn't either. For guidance, the ALJ looked to an OSHA regulation, Webster’s Dictionary, and a state commission's definition that the Supreme Court called "useful" back in 1977. Here's the pertinent OSHA definition:
wharves, bulkheads, quays, piers, docks and other berthing locations and adjacent storage or adjacent areas and structures associated with the primary movement of cargo or materials from vessel to shore or shore to vessel including structures which are devoted to receiving, handling, holding, consolidating and loading or delivery of waterborne shipments or passengers.
29 C.F.R. § 1917.2. The regulation further explains that “[t]he term does not include production or manufacturing areas nor does the term include storage facilities directly associated with those production or manufacturing areas.” Id. The dictionary the ALJ cited defines “terminal” as “‘[o]f, relating to, situated at, or forming an end or boundary,’ ‘relating to or occurring at the end of a section or series,’ ‘either end of a transportation line, as a railroad.’ ” See Webster's II New Riverside University Dictionary 1194 (1988). Finally, definition from the 1977 Supreme Court opinion provides:
an area which includes piers, which is used primarily for the moving, warehousing, distributing or packing of waterborne freight or freight to or from such piers, and which, inclusive of such piers, is under common ownership or control.
Ne. Marine Terminal Co. v. Caputo, 432 U.S. 249, 268 n.30 (1977) (citation omitted).
Applying these definitions, the ALJ concluded that the facility where Victorian (the claimant in the case) was injured is a “terminal” under the Act. The Board affirmed, holding that the definitions relied on by the ALJ “describe[d] both the physical attributes of the area and the maritime purpose of the docks, pipelines and storage tanks at employer’s Gretna facility, which is to move waterborne shipments from vessel to shore and product from shore to vessel.”
The Fifth Circuit found "no error in this analysis"
Like the Board, we conclude that the definitions of “marine terminal” on which the ALJ relied are pertinent. The Act employs the undefined word “terminal” as a “maritime term of art,” and therefore we must give the term its “established” meaning in the maritime industry. McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 342, 111 S.Ct. 807, 112 L.Ed.2d 866 (1991). The definition relied on in Caputo was, as the Supreme Court explained, a “useful indicator[ ] of the terminology used by the industry.” 432 U.S. at 268 n.30, 97 S.Ct. 2348. Similarly, the OSHA definition—found in Part 1917 of the Department of Labor regulations concerning “marine terminals”—provides relevant evidence of established industry usage of the term. See generally29 C.F.R. § 1917.1(a) (providing “[t]he regulations of this part apply to employment within a marine terminal as defined in § 1917.2”). Of particular relevance here, the definition “includ[es] structures which are devoted to receiving, handling, holding, consolidating and loading or delivery of waterborne shipments.” Id.§ 1917.2 (emphases added); accord Caputo, 432 U.S. at 268 n.30, 97 S.Ct. 2348 (a terminal is an area “used primarily for the moving, warehousing, distributing or packing of waterborne freight” (emphases added))
The Fifth Circuit did add in a footnote, however, that because the Act uses "terminal" as "a maritime term of art," the generic dictionary definition the ALJ had relied on was "less helpful."
So, to recap: According to the Court's own description, its task in construing the word "terminal" in section 903(a) was to give the word its established meaning in the maritime industry. Though its review of the Board's decision in this regard was de novo, the Court did not start from scratch. Instead of conducting its own examination of the established meaning of "terminal" in the maritime industry, the Court simply asked whether the definitions relied on by the ALJ were "pertinent" to that inquiry. Concluding that they were, the Court affirmed.
In my view, that approach raises more questions than it answers. Why, for example, assume that the definitions the ALJ relied on are indicative of the established meaning of the term in the maritime industry? Is it really safe to assume that the definition the Supreme Court found "useful" in 1977 remains equally helpful today? If so, is it because we are interested in the "established" meaning as of 1977? the time Congress passed the LHWCA? the time the state commission proffered the definition itself? Something else?
What about the OSHA regulation? It was initially promulgated in 1997 and was most recently updated in 2011. So are we looking for the "established meaning" at one of those dates, or is the Court assuming that OSHA was itself looking back to the meaning established in 1977, the time the LHWCA was passed, or some other time?
Along similar lines, why are the OSHA and Supreme Court definitions pertinent while the dictionary isn't? The Court says it's because the dictionary definition is generic, while the Court's goal is to identify the specialized meaning of the "term of art" unique to the maritime industry. But doesn't that just beg the question? The Court never tells us why generic definitions aren't relevant while state-commission definitions that the Supreme Court found "useful" more than forty years ago and an agency definition promulgated twenty-two years ago are.
Adding to the mystery, neither the OSHA regulation nor the Supreme Court's 1977 decision defines "terminal" at all! Both define a different term: "marine terminal." Are we to assume that the terms are interchangeable? Really? As a child of the textualist revolution who knows more about moieties than he does about the established meanings of maritime terms of art, I find it uncomfortable--painful even--to make such assumptions. It gives me the same sort of low-level dread I get when I realize on my way to the office that I left my front door unlocked.
At this point, I probably should have put the opinion down and gone for a walk, called my grandmother, or made a White Russian and watched The Big Lebowski with my Irish Terrier, Rufus. But of course I did none of those things. Instead, I dug deeper into the opinion, hoping to convince myself I was obsessing over nothing. "Don't worry," I told myself, "the Court isn't really defining terminal; it's just saying the ALJ's definitions are pertinent to the established industry meaning. That's not so bad, is it?" Feeling a bit more at ease, I thought, "Get a grip, man! The Court is just working with what the ALJ and the parties gave it. You can't expect every opinion to be a one hundred page exegesis! What was the Court supposed to do? Hold an evidentiary hearing on the meaning of 'terminal' in the maritime industry? Give me a break!" (Though I legitimately wonder sometimes why courts don't do this more often)
But alas, my troubles were far from over. Before I had finished chuckling at myself, it hit me like a ton of bricks: These definitions contradict each other! One requires common ownership, the other excludes structures used for manufacturing; one includes structures used primarily for warehousing, the other doesn't; one sweeps in structures used primarily for the delivery of passengers, the other doesn't mention passengers at all; one is limited to structures that include piers, the other is apparently agnostic on piers. What is the Court going to do when, God forbid, some poor maritime employee is injured on a structure that would qualify as a terminal under except that it isn't under common ownership? Or a structure that is a textbook terminal except it doesn't have a pier? Then what?! What kind of "established" industry meaning is this?
Just when I was at my very lowest and thought things couldn't get any worse, I spotted a problem that made all the rest seem like child's play. Not only were the definitions inconsistent with each other, they might also be ... it's hard for me to type this ... inconsistent with the statute itself. I'm sorry, but I simply cannot bear this burden alone, so, yes, I'm going to spell it out. If you reread section 903(a), you'll notice that "terminal" is just one of several covered situses Congress listed. Others include "pier[s], whar[ves], [and] dry dock[s]." The logical implication is that a terminal, piers, wharves, and dry docks are distinct structures. Yet, the Supreme Court's supposedly "useful" definition defines "marine terminal" as an area "which includes piers." But wait, didn't we just establish that piers and terminals are distinct?
The OSHA regulation is even more problematic. In addition to "piers," it includes "wharves" and "docks" in the definition of "marine terminal" as well. Again, however, section 903 lists wharf, pier, dry dock, and terminal separately, implying that they are distinct structures.
Is it possible to square each of these definitions with the statutory text? Perhaps it is. But you have to admit, it would require some ingenuity. Maybe the ALJ, the Board, and/or the Court had a ready answer to these concerns. I assume they did, in fact. Diabolically, however, they refused to share it, leaving me perplexed and broken.