move the twenty-ton component into position than could a truck.
The bulk of Mr. Lynn's work aboard the barge involved coordinating his activities with the crane operator and preparing the crane to raise the iron components. This work did not affect in any way the navigation of the vessel. Laying boards to create a gangplank for the barge likewise did not involve navigation. Those activities that could be characterized as navigational in nature knocking out the restraining pins on the barge's anchoring devices, attaching and detaching the barge from the tugboat, checking the depth of the channel on two or three occasions, and signalling to the crane operator to lower the boom constituted an insignificant portion of the plaintiff's daily work. Moreover, Mr. Lynn performed some of these tasks voluntarily. The tugboat had both a captain and a deckhand. Johnson Towing Company had not hired the plaintiff to do any work on the vessel, and he was not under the command of the captain. The ironworker crew boarded the tugboat solely for transportation. During those trips, a few simple jobs were performed by any available man. Voluntarily participating in such activities did not make the plaintiff a seaman. See Klarman v. Santini, 503 F.2d 29, 33 (2d Cir. 1974), cert. denied, 419 U.S. 1110, 95 S. Ct. 785, 42 L. Ed. 2d 807 (1975) (auxiliary policeman on board police patrol vessel as observer denied seaman status even though injured while helping to free sloop that had run aground).
Maintenance and Cure
Admiralty courts have long recognized a seaman's right to receive maintenance and cure from his employer for injuries sustained in the service of a vessel. This remedy covers only seamen, however, and not longshoremen or others working in a harbor area. See 1B Benedict on Admiralty § 44, at 4-11 (7th ed. rev. 1976); G. Gilmore & C. Black, The Law of Admiralty § 6-7, at 282 (2d ed. 1975). This Court's finding that Dennis Lynn does not qualify for seaman status under the Jones Act likewise precludes him from pursuing a claim for maintenance and cure.
Through the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-950 (1976 & Supp.1977) (hereinafter referred to as the "LHWCA"), Congress sought to provide adequate financial security for persons who sustain injuries while engaged in maritime employment. See H.R.Rep.No. 92-1441, 92d Cong., 2d Sess., reprinted in (1972) U. S. Code Cong. & Admin. News, pp. 4698, 4698-99. The LHWCA establishes a detailed schedule of benefits for injured workers and the families of deceased workers. See 33 U.S.C. §§ 906-910 (1976). Section 4 of the LHWCA, 33 U.S.C. § 904 (1976), imposes liability for compensation benefits on the injured worker's employer, "irrespective of fault as a cause for the injury."
The statute also establishes a procedure for obtaining a compensation award. Employees initially must file a claim for benefits with the deputy commissioner, Office of Workers' Compensation Programs, United States Department of Labor, for the district in which the injury occurs. LHWCA § 13, 33 U.S.C. § 913 (1976). Upon the application of any interested party, the deputy commissioner refers the case to an administrative law judge, who conducts a hearing and enters an order. LHWCA § 19, 33 U.S.C. § 919 (1976). An adversely affected party may appeal this order first to the Benefits Review Board, United States Department of Labor, and then to the United States Court of Appeals. LHWCA § 21, 33 U.S.C. § 921 (1976). Congress did not give the United States District Courts a role in the adjudication of compensation claims. See, e.g., Jacksonville Shipyards, Inc. v. Perdue, 539 F.2d 533, 537 (5th Cir. 1976), vacated, 433 U.S. 904, 97 S. Ct. 2967, 53 L. Ed. 2d 1088 (1977), on remand, 575 F.2d 79 (5th Cir. 1978). Thus, we have no jurisdiction to hear the plaintiff's claim for compensation under the Longshoremen's and Harbor Workers' Compensation Act.
The complaint asserts a claim for damages arising from the alleged unseaworthiness of the crane barge that the defendant had leased from McDonough Marine Company. The plaintiff cannot obtain relief on such a claim. Section 5(b) of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 905(b) (1976), provides that "(t)he liability of the vessel . . . shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred." See Simko v. C & C Marine Maintenance Co., 594 F.2d 960, 962 n.1 (3d Cir. 1979). Although abolishing the doctrine of unseaworthiness, Congress did furnish maritime workers with a right of action against vessels. Section 5(b) also states that "(in) the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person . . . may bring an action against such vessel as a third party . . . and the employer shall not be liable to the vessel for such damages directly or indirectly . . . ." See generally H.R.Rep.No. 92-1441, 92d Cong., 2d Sess., reprinted in (1972) U. S. Code Cong. & Admin. News, pp. 4698, 4703-04. Section 2(21) of the LHWCA, 33 U.S.C. § 902(21) (1976), defines "vessel" as "any vessel . . . and said vessel's owner, owner pro hac vice, agent, operator, charter or bare boat charterer, master, officer, or crew member." Heyl and Patterson, Inc. had exclusive possession and control of the crane barge, and therefore, it was the owner pro hac vice of that vessel. See Griffith v. Wheeling-Pittsburgh Steel Corp., 610 F.2d 116 (3d Cir. 1979); Blair v. United States Steel Corp., 444 F.2d 1390 (3d Cir. 1971), cert. denied, 404 U.S. 1018, 92 S. Ct. 681, 30 L. Ed. 2d 666 (1972). In Griffith v. Wheeling-Pittsburgh Steel Corp., 521 F.2d 31, 40-44 (3d Cir. 1975), cert. denied, 423 U.S. 1054, 96 S. Ct. 785, 46 L. Ed. 2d 643 (1976), the Third Circuit held that an injured employee may sue a vessel for negligence under section 5(b) even though his employer is the owner pro hac vice of that vessel. Mr. Lynn's complaint contains allegations of negligence concerning the condition of the crane barge, so we will interpret the claim of unseaworthiness as a negligence claim. See Fed.R.Civ.P. 8(f).
Although section 5(b) of the LHWCA permits some injured persons to file suit against vessels, it explicitly limits the availability of this right of action to "person(s) covered under" the Longshoremen's and Harbor Workers' Compensation Act. Coverage extends only to persons who meet both a situs and a status requirement. See Northeast Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249, 264-81, 97 S. Ct. 2348, 53 L. Ed. 2d 320 (1977). The situs test is satisfied if the injury occurred on "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, or building a vessel)." LHWCA § 3(a), 33 U.S.C. § 903(a) (1976). The status requirement focuses on the type of work that the person was performing when the injury occurred. See P. C. Pfeiffer Company, Inc. v. Ford, 444 U.S. 69, 100 S. Ct. 328, 62 L. Ed. 2d 225 (1979). The statute's umbrella protects only those "engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker." LHWCA § 2(3), 33 U.S.C. § 902(3) (1976).
Mr. Lynn can successfully navigate past the situs obstacle. He sustained his injury on an embankment that adjoined the Ohio River while constructing a barge haul system. Once complete, this system would be used to unload barges. We find that the work site had a sufficient nexus with maritime operations to come within the scope of the admiralty jurisdiction of the United States and the coverage of the LHWCA.
The plaintiff's claim founders, however, on the status requirement. A person qualifies for coverage only if he was engaged in "maritime employment" at the time that the accident occurred. See Note, Shoreside Coverage Under the Longshoremen's And Harbor Workers' Compensation Act, 18 B.C.Ind. & Com.L.Rev. 135, 159 (1976). For example, in Jacksonville Shipyards, Inc. v. Perdue, 539 F.2d 533 (5th Cir. 1976), vacated, 433 U.S. 904, 97 S. Ct. 2967, 53 L. Ed. 2d 1088 (1977), on remand, 575 F.2d 79 (5th Cir. 1978), the Fifth Circuit deprived a welder of coverage even though he normally did ship repair work. On the day of the accident, his employer sent him to an unused marine facility within the shipyard to assist in tearing down a building. During the demolition work, the welder was struck in the head by steel fragments from a falling beam. The Benefits Review Board held that the LHWCA did cover this employee. 539 F.2d at 537. The Fifth Circuit reversed, concluding:
Under no reasonable view was Skipper performing ship repair work at the time of his injury, nor was he carrying out any other of the types of work which the statute specifies as "maritime employment." We further hold that this salvage gang was not engaged in any work sufficiently similar to the statutory categories to be seen as a type of shoreside employment which was fairly within Congress' intent despite not being named in the 1972 Amendments. As we have already indicated, we refuse to attach controlling weight to an employee's regular job classification. . . . We look only to his duties at the time of the injury, and these were decidedly not within the contemplation of the statute.