Willey v. Orion Marine Construction, Inc.

Filing 30

ORDER: Defendant Orion Marine Construction, Inc.'s Motion for Judgment on the Pleadings as to Count IV of Plaintiff's Complaint for § 905(b) Negligence (Doc. 19) is GRANTED. The Clerk is directed to enter judgment in favor of Defendant Orion Marine Construction, Inc., terminate all pending motions and close this case. Signed by Judge Charlene Edwards Honeywell on 7/9/2018. (JJH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
RICHARD ORIN WILLEY,
Plaintiff,
v.

Case No: 8:17-cv-1216-T-36AAS

ORION MARINE CONSTRUCTION,
INC.,
Defendant.
___________________________________/
ORDER
This matter comes before the Court upon the Defendant Orion Marine Construction, Inc.’s
Motion for Judgment on the Pleadings as to Count IV of Plaintiff’s Complaint for § 905(b)
Negligence (Doc. 19), and Plaintiff’s response in opposition (Doc. 27). In the motion, Defendant
argues that Plaintiff's claim fails the “situs test” required under the Longshore Harbor Workers’
Compensation Act, and therefore it is entitled to judgment as a matter of law. Under federal law,
an injury must occur on the navigable waters of the United States, which includes the “high seas,”
to sustain a claim under the Act. Because the “high seas” do not include foreign territorial waters,
and Plaintiff alleges that his injury occurred in the Dominican Republic, the Defendant is entitled
to judgment as a matter of law. The Court, having considered the motion and being fully advised
in the premises, will grant Defendant Orion Marine Construction, Inc.’s Motion for Judgment on
the Pleadings as to Count IV of Plaintiff’s Complaint for § 905(b) Negligence.
I.

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Statement of Facts 1

The following statement of facts is derived from the Complaint, (Doc. 1), the allegations of
which the Court must accept as true and view in the light most favorable to the plaintiff in ruling
on the instant Motion for Judgment on the Pleadings. Interline Brands, Inc. v. Chartis Specialty
Ins. Co., 749 F.3d 962, 965 (11th Cir. 2014).

Plaintiff, Richard Orin Willey, a United States citizen, worked for Defendant Orion Marine
Construction, Inc. (“Orion”), a Florida corporation. Doc. 1 at ¶¶ 1-4. On May 30, 2014, Willey
sustained injuries during his employment with Orion while he was working on the construction of
a dock facility in the Dominican Republic. Id. at ¶¶ 3-4, 29. Willey fell while on navigable waters
of the Dominican Republic when he was attempting to cross from a tug to a barge. Id. at ¶ 4.
On May 23, 2017, Willey filed a four-count complaint alleging various causes of action,
including one for negligence under the Longshore Harbor Workers’ Compensation Act,
(“LHWCA” or the “Act”), 33 U.S.C. § 905(b). Doc. 1. Willey dismissed the first three counts and
only the LHWCA §905(b) claim remains. See Docs. 24, 26. Willey alleges that he is entitled to
damages under LHWCA § 905(b) because Orion negligently operated the tug and the barge which
caused his injuries. Doc. 1 at ¶¶ 29-30.
II.

Legal Standard

Federal Rule of Civil Procedure 12(c) permits a party to move for judgment on the
pleadings. In evaluating a motion for judgment on the pleadings, a court will accept the facts in
the complaint as true and view them in the light most favorable to the nonmoving party. See
Cunningham v. Dist. Attorney's Office for Escambia County, 592 F.3d 1237, 1255 (11th Cir. 2010).
“Judgment on the pleadings is proper when no issues of material fact exist, and the moving party
is entitled to judgment as a matter of law based on the substance of the pleadings and any judicially
noticed facts.” Interline Brands, Inc. v. Chartis Specialty Ins. Co., 749 F.3d 962, 965 (11th Cir.
2014). If there is a material dispute of fact, judgment on the pleadings must be denied. Perez v.
Wells Fargo N.A., 774 F.3d 1329, 1335 (11th Cir. 2014).
III.

Discussion

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a. Willey’s Declaration is Inappropriate for Consideration
At the outset, the Court notes that Plaintiff filed the Declaration of Richard Orin Willey,
(the “Declaration”), Doc. 27-1, in opposition to Orion’s Motion. 2 Under Federal Rule of Civil
Procedure 12, “[i]f, on a motion under Rule...12(c), matters outside the pleadings are presented to
and not excluded by the court, the motion must be treated as one for summary judgment under
Rule 56.” Fed. R. Civ. P. 12(d). The rule requires that “[a]ll parties...be given a reasonable
opportunity to present all the material that is pertinent to the motion.” Id. Given that the standard
for motions for judgment on the pleadings is akin to motions to dismiss, the Declaration is proper
for consideration only if it meets one of the exceptions to Rule 12(d). The only applicable
exception in this case would be that the Declaration is central to Willey’s claim and its authenticity
is not in dispute. 3 See Esys Latin Am., Inc. v. Intel Corp., 925 F. Supp. 2d 1306, 1314 (S.D. Fla.
2013) (citing Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002)).
Because the Court must either confine its consideration to the pleadings in its evaluation
of the Motion, or convert the Motion into one for summary judgment, the Court will not consider
the Declaration. It is not “central” to Willey’s claim as contemplated by Rule 12(d); instead, it is
responsive to the Motion. See id. (declining to consider a declaration filed in opposition to a motion
for judgment on the pleadings and finding that it was merely responsive to the motion as opposed
to being central to the complaint). See also Adamson v. Poorter, No. 06–15941, 2007 WL 2900576,
at *3 (11th Cir. 2007) (“A document is not central merely because it is directly responsive to a

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Orion did not move for leave to file a reply or to strike the Declaration.
There are two additional exceptions to this rule; when the court takes judicial notice of relevant
public documents attached as exhibits under specific circumstances, Bryant v. Avado Brands,
Inc., 187 F.3d 1271, 1276-79 (11th Cir. 1999); and when the court determines that the parties
made all of the arguments and submitted all of the documents they would have presented had
they received sufficient notice. Property Management & Investments, Inc. v. Lewis, 752 F.2d
599, 605 (11th Cir. 1985).
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factual allegation.... [T]he foundation for a defendant’s ability to introduce central documents at
the motion to dismiss stage is that when a plaintiff files a complaint based on a document but fails
to attach that document to the complaint, the defendant may so attach the document....”) (internal
quotation marks omitted). In any event, the Declaration does not create a disputed material fact
regarding Willey’s satisfaction of the situs requirement. 4
b. Willey’s injury does not meet the Act’s situs requirement
The Act creates a comprehensive workers’ compensation scheme which holds employers
liable for securing the payment of compensation to qualified maritime employees injured in the
course of their employment, irrespective of fault. See Dir., Off. of Workers' Compen. Programs,
U.S. Dept. of Lab. v. Perini N. River Associates, 459 U.S. 297, 326 (1983); 33 U.S.C. § 904. This
liability is “exclusive and in place of all other liability of such employer to the employee.” 33
U.S.C. § 905(a). But section 905(b) of the Act authorizes certain covered employees to bring an
action against the vessel as a third party if their employment injury was caused by the negligence
of the vessel. Id. at § 905(b).
A plaintiff must satisfy four elements to receive compensation under the LHWCA. Brooker
v. Durocher Dock and Dredge, 133 F.3d 1390, 1392 (11th Cir. 1998). First, he must be injured in
the course of employment. 33 U.S.C. § 902(2). Next, the employer must have employees engaging
in maritime employment. Id. at § 902(4). Third, the plaintiff must have been engaged in maritime
employment (referred to as the “status requirement”). Id. at § 902(3); Perini N. River Assocs., 459
U.S. at 317. Last, the injury must occur on the navigable waters of the United States including

4

The Declaration mirrored the allegations in the Complaint and added the following facts: Orion
owned the vessels which both bore the United States flag, Doc. 27-1 at ¶ 5; Willey’s job in the
Dominican Republic was temporary; he was filling in for another Orion employee, id. at ¶ 6; and
during the nine years he worked for Orion, 90 percent of his work was in United States’
territorial waters. Id. at ¶ 7.
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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 (known as the “situs” requirement). 33 U.S.C. § 903(a); Brooker, 133 F.3d at 1392.
After its inception, Congress broadened the Act’s coverage to extend to maritime activities
occurring on land near the water. See Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S. 40, 46
(1989). And case law has interpreted the term “navigable waters of the United States” to include
the “high seas.” See Kollias v. D & G Marine Maintenance, 29 F.3d 67, 75 (2d Cir. 1994) (holding
that the term “navigable waters” includes the high seas without qualification). “[T]he high seas
are...international waters not subject to the dominion of any single nation.” United States v.
Louisiana, 394 U.S. 11, 23 (1969), decision supplemented, 394 U.S. 836 (1969), decision
supplemented sub nom. United States v. State of La., 525 U.S. 1 (1998).
Where, as in this case, the facts are not in dispute, satisfying the situs requirement under
the Act is an issue of law. See New Orleans Depot Services, Inc. v. Dir., Off. of Worker's Compen.
Programs, 718 F.3d 384, 387 (5th Cir. 2013) (citing Perini North River Associates, 459 U.S. at
300) (“[W]here, as in this case, the facts are not in dispute, ‘[LHWCA] coverage is an issue of
statutory construction and legislative intent,’ and should be reviewed as a pure question of law.”).
Orion challenges whether Willey’s allegations satisfy the Act’s situs requirement. Orion
relies on Keller Found/Case Found. v. Tracy, 696 F.3d 835 (9th Cir. 2012), for the proposition
that the United States’ “navigable waters” do not include foreign territorial waters and their
adjoining ports and shore-based areas. Doc. 19 at 4. In Keller, the plaintiff, who worked primarily
overseas, suffered an injury while working on a barge in Malaysia. Id. at 840. He filed a benefits
claim under the Act, asserting coverage based on his assignment on a barge in Mexico, and in ports
in Indonesia and Singapore. Id. Plaintiff appealed the administrative law judge’s denial of

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coverage. Id. Keller made an argument analogous to Willey’s—that the navigable waters of the
United States include the “high seas” which therefore includes “foreign territorial waters”—in
support of coverage. Id. at 843. The Ninth Circuit rejected this argument; it relied on the
presumption against extraterritoriality, examined the plain language of the statute, and concluded
that “foreign territorial waters and their adjoining ports and shore-based areas are not the
“navigable waters of the United States” as the Act defines that phrase. Id. at 846.
Keller recognized Congress’ intent to extend the reach of the Act’s coverage to the high
seas but found “no indication at all, much less a clear indication, that Congress meant ‘navigable
waters of the United States’ to include territorial waters of foreign sovereigns.” Id. at 844 (citing
Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247 (2010)). Keller is persuasive, particularly in light
of the Eleventh Circuit’s silence on the issue. 5
Willey argues that the Supreme Court has instructed courts to take an expansive view of
the Act’s coverage citing Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 274 (1977).
He also relies on cases from the Department of Labor Benefits Review Board, the agency charged
with interpreting the Act. He argues that it has found coverage under the Act for injuries occurring
on the high seas, in foreign waters and on foreign land. Doc. 27 at 2 (citing Reynolds v. Ingalls
Shipbuilding Division, Litton Systems, Inc., 788 F.2d 264, 270 (5th Cir. 1986), cert. denied, 479
U.S. 885 (1986); 6 Cove Tankers Corp. v. United Ship Repair, 683 F.2d 38 (2d Cir. 1982); and

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The Eleventh Circuit has addressed whether the Act covers a claimant’s injury with regard to
the “adjoining area” portion of the situs requirement. See, e.g., Bianco v. Georgia Pacific Corp.,
304 F.3d 1053 (11th Cir. 2002); Ramos v. Dir., OWCP, 486 Fed. Appx. 775, 777 (11th Cir.
2012).
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In Hudson v. Schlumberger Tech. Corp., 452 Fed. Appx. 528, 533 (5th Cir. 2011), the court
noted that Reynolds was overruled by Stewart v. Dutra Construction Co., 543 U.S. 481, 496
(2005) on grounds other than whether navigable waters included the high seas.
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Weber v. S.C. Loveland Co., 28 BRBS 321 (DOL Ben.Rev.Bd.), 1994 WL 712512 (Nov. 29,
1994)).
Decisions of the Benefits Review Board are entitled to deference. See Mississippi Coast
Marine, Inc. v. Bosarge, 637 F.2d 994, 999 (5th Cir. 1981), reh'g denied and opinion modified,
657 F.2d 665 (5th Cir. 1981) 7 (“In questions of statutory interpretation, this [Court of Appeals] is
required to give substantial deference to the interpretations of the administrative body charged
with responsibility for applying the Act[.]”). See also Mazariegos v. Off. of U.S. Atty. Gen., 241
F.3d 1320, 1327 n. 4 (11th Cir. 2001) (citing Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984) (“[T]he interpretation of the statute by an agency entitled to
administer it is entitled to deference so long as it is reasonable.”). But the cases upon which
Plaintiff relies are not binding on this Court and are otherwise unpersuasive.
Courts have acknowledged that Congress created an expansive view of the term “navigable
waters of the United States” to permit a more uniform application of the Act. See Kollias, 29 F.3d
at 75. The Kollias court concluded that the presumption against extraterritoriality applied, id. at
72, but that it was overcome by Congress’ clear indication that it intended the Act to apply outside
the United States. Id. at 73. But it did not go so far as to extend that term to specifically include
foreign waters and ports. See Keller Found/Case Found, 696 F.3d at 844 (noting that plaintiff’s
argument that the “high seas” included foreign waters was an extension of the law that neither it
nor any other circuit had previously adopted).
In Reynolds, the United States Court of Appeals for the Fifth Circuit extended coverage to
a claimant injured during a ship’s sea trials on the high seas. The court stated that employers should

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In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) the Eleventh
Circuit adopted as binding precedent all the decisions of the former Fifth Circuit handed down
prior to the close of business on September 30, 1981.
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not be able to avoid liability by shifting into non-covered territory. It held that navigable waters
may include the high seas because the term embodies the same distinction under the Act as it does
under admiralty, i.e., the distinction between state waters and waters of the United States, and not
between territorial waters and the high seas. 788 F.2d at 269–270. The court stated that had
Congress wished to limit the Act’s coverage, it could have used the term “territorial waters” instead
of “navigable waters.” Id. at 270.
In Cove Tankers Corp., the United States Court of Appeals for the Second Circuit extended
coverage to one worker injured, and another killed, while working on an employer’s ship on the
high seas. It noted that the injuries occurred onboard a vessel bearing the United States flag which
moved from one United States port to another with no deviation, scheduled or otherwise, into the
territorial waters of any foreign nation. 683 F.2d at 41. The court held that the Act should apply in
some cases to waters farther than United States territorial waters to prevent employers from
avoiding liability merely by deviating into non-covered territory. Id. at 42. The court found it
significant that the claimants would not be covered by a state workers’ compensation scheme, that
there was no planned deviation of the ship into a foreign port, and that the trip was not planned for
the high seas. Id.
In Weber, the Benefits Review Board allowed coverage under the Act for a longshoreman
who was injured in a Jamaican port while unloading grain from a vessel that had been loaded in
New Orleans. 28 BRBS 321 at *1. He testified that 90 to 95 percent of his work occurred within
the United States. Id. The Benefits Review Board reversed the administrative law judge’s denial
of the claim based on the claimant’s failure to meet the situs requirement. Id. at *9. The Benefits
Review Board traced the history of the Act and its expansion and reviewed the treatment of injuries
occurring in foreign territorial waters under other federal admiralty statutes by various courts. Id.

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at *6. It concluded that the Courts of Appeals for the Second and Fifth Circuits’ extension of the
Act to injuries occurring on the high seas, and of other courts’ extension of coverage to seamen or
United States citizens injured or killed in foreign territorial waters under the Jones Act, 46 U.S.C.
§ 688 et seq., and the Death on the High Seas Act, 46 U.S.C. § 762 et seq., justified the Act’s
coverage of the claimant’s injury in a port in Jamaica. Id. at *9. See also Grennan v. Crowley
Marine Services, Inc., 116 P.3d 1024, 1030 (Wash. App. Div. 1 2005) (relying on Weber and
holding that plaintiff, a United States citizen based in the United States, who sustained an injury
in the territorial waters of a foreign nation met the Act’s situs requirement). Willey argues that this
case is analogous to his, and requests that the Court adopt its reasoning and interpret the Act’s
definition of navigable waters to include foreign territorial waters.
Upon examining the legislative history of the Act, the policy considerations underlying the
extension of the Act’s coverage to the high seas, as well as comparing the facts of this case with
those of cases in which coverage has been afforded to injuries occurring in foreign territorial waters
as cited above, the Court concludes that the Act does not cover Willey’s injuries. As noted in
Mitola v. Johns Hopkins U. Applied Physics Laboratory, 839 F. Supp. 351, 362 (D. Md. 1993),
the courts in the Reynolds and Cove Tankers Corp. cases stressed the “fortuity of the plaintiff
workers’ presence on the high seas” and emphasized that the facts of those cases were “highly
unusual” and involved “special facts” upon which the courts rested their analyses. Id.
The Mittola court found that a plaintiff did not meet the situs requirement where his journey
on the vessel both contemplated and necessitated his presence on the high seas. Id. Unlike Reynolds
and Cove Tankers Corp. where the plaintiff just “happened to have been” on the vessel when it
entered foreign territorial waters or deviated from its course on a voyage between two U.S. ports,
the claimant in Mittola was part of a research mission destined for the high seas. Id. at 363. Under

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those facts, the court declined to expand coverage of the Act. Id. Although recent case law has
made it clear that the Act includes the “high seas,” the Mittola court’s analysis is persuasive as to
whether the Act warrants an even further expansion of the term “navigable waters of the United
States” to include foreign territorial waters. See also Marroquin v. Am. Trading Transp. Co., Inc.,
711 F. Supp. 1165, 1168 (E.D.N.Y. 1988) (distinguishing Reynolds and Cove Tankers Corp., and
finding that plaintiff’s injury did not meet the Act’s situs requirement because injury while on a
vessel scheduled to sail through the Panama Canal made his presence on the high seas neither a
fortuitous occurrence nor a deviation).
IV.

Conclusion

The Court, having giving due deference to the Benefit Review Board’s interpretation of
the Act, and reviewing the available case law, concludes, as in Keller, that the term “navigable
waters of the United States” which includes the “high seas” does not include foreign territorial
waters. Since Willey sustained his injury while in the waters of the Dominican Republic, his claim
does not meet the situs requirement of the Act and Orion is entitled to judgement in its favor as a
matter of law. Because Willey dismissed his remaining claims before this Court, no other matters
remain for this Court’s consideration.
Accordingly, it is ORDERED AND ADJUDGED:
1.

Defendant Orion Marine Construction, Inc.'s Motion for Judgment on the Pleadings

as to Count IV of Plaintiff’s Complaint for § 905(b) Negligence (Doc. 19) is GRANTED.
2.

The Clerk is directed to enter judgment in favor of Defendant Orion Marine

Construction, Inc., terminate all pending motions and close this case.

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DONE AND ORDERED in Tampa, Florida on July 9, 2018.

Copies to:
Counsel of Record and Unrepresented Parties, if any

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