Case Name:  In re Norfolk Southern Railway Company
Date Decided: January 27, 2010
Court: United States Court of Appeals, Eighth Circuit
Judge: Judge Hansen
Citation: 2010 WL 290439 (C.A.8(Mo.))

Background:
Railroad switchman brought action against his employer in state court under the FELA, Federal Employers’ Liability Act, seeking compensation for an injury sustained while working at a coal-loading facility for defendant, Norfolk Southern Railway Company.

David Demay, an employee of Norfolk Southern was injured while working at a Coal Terminal. Demay filed a lawsuit under FELA in state court, and Norfolk Southern removed the lawsuit from state court to federal court claiming the action was governed by the LHWCA, Longshore and Harbors’ Workers’ Compensation Act.

The terminal is a facility that Norfolk Southern uses to load coal onto four areas, three yards anda pier. Arriving loaded coal cars are stored in one of the yards and then brought into another yard as they unload. Once in the other yard the coal is dumped onto conveyors which move the coal to Pier 6 to be deposited into the holds of oceangoing containers.

Demay was a railroad switchman/conductor employed by Norfolk Southern. Demay was temporarily working at the terminal when he was injured. Specifically, his duty was to place the rail cars in the yard and set their handbrakes to keep them in place. Other workers later, would release the cars, sending them down the incline to the rotary dumpers. Demay was injured after falling off a car while climbing down.

The district court determined the action was governed by FELA and remanded the case back to state court.

Norfolk Southern appealed.

Issue:
Did the District Court properly determine that the employee’s claim was governed by FELA and not LHWCA?

Held:
 Demay argued that because the district court remanded the case to state court based on the prohibition of removal in §1445(a), the district court effectively remanded based on lack of subject matter jurisdiction which would preclude this Court from reviewing the remand order.

This Court found that 1445(a) was not jurisdictional however, and found they had jurisdiction under the claim.

Norfolk Southern also argued that the coal loading process was initiated when a permit is issued by Norfolk for the ship describing the tonnage and number of coal cars for the vessel. Therefore, Demay is covered under the LHWCA.

However, this Court found that neither Demay or any member of his crew released the cars and sent them down the incline towards the dumpers, which rotate the coal cars and dump coal onto conveyors that move the coal onto the pier.

This Court found that because Demay’s crew merely worked with the cars before the loading process they were not within the maritime situs requirement under the LHWCA.

Accordingly this Court affirmed the lower court’s judgment and held that Demay’s claim was governed by the FELA.

Comment:
Whether the LHWCA or FELA governs a railroad employee’s work is determined by examining the status  in which the employee performs his work.  To determine whether an injured employee was working at a maritime “status” the injury must occur upon the navigable waters of the US (including any adjoining pier, wharf, dry dock, terminal, building, marine railway, etc).

Because the employee’s course of employment was strictly confined to a holding yard, he did not meet the maritime status required to bring the action under the LHWCA.

Steve Gordon