Vessel Under Extensive Repair is Not In Navigation

Cataracts allegedly caused by exposure to electric arc welding in a worker permanently assigned to a vessel under repair are covered under the Act, according to the Benefits Review Board.
 
The claimant was hired under a “crew member agreement” on July 21, 2008, to work aboard the Pacific Glacier, which had returned to port for repairs following a fire some months before.  While in drydock, the fire damage was repaired, but the Pacific Glacier also underwent various upgrades including enlarging the wheelhouse and moving it up one level, adding sponsons, and removing and replacing electronics as part of a system upgrade.  When hired, the claimant was told he was only helping to rebuild the ship, he would not be a member of the crew when the Pacific Glacier returned to sea.  During the repairs, the claimant worked as a fire watch for welders, did stripping, painting and cleaning, and loaded and unloaded equipment with a forklift and crane.  Unexpectedly, at the conclusion of the repairs, the employer hired the claimant for sea duty, and he went to sea for the employer for about the next 10 months.
 
Not long after the claimant stopped working for the employer, he learned he had vision problems.  He filed a claim alleging that he developed cataracts as a result to exposure to electric arc welding during his fire watch duties aboard the Pacific Glacier.  The administrative law judge found the claimant’s cataracts were caused, at least in part, by his employment while the vessel was in the shipyard.  The ALJ also found jurisdiction under the Act, because the Pacific Glacier was “not in navigation” during its repair time in the shipyard, when the claimant’s exposure occurred.
 
The Board affirmed the finding that the vessel was not in navigation; the employer did not contest the medical causation issue.  As to whether a vessel under repair is “in navigation,” the Board explained that the “question in all cases is whether the watercraft’s use for maritime transportation is a practical possibility or merely a theoretical one.”  Further, “[s]hips being transformed over extended periods of time through ‘major’ overhauls or renovations may lose their status as vessels in navigation until they are rendered capable of maritime transport.”  Whether a vessel remains in navigation during repairs is a factual question.  The Board explained that “[i]n assessing whether a vessel is in navigation, ‘the focus should be upon the status of the ship, the pattern of the repairs, and the extensive nature of the work contracted to be done.’”  The Board accepted the ALJ’s finding that the repairs were “extensive” and exceeded those necessary to return the vessel to sea.  The repairs and improvements took more than a year to complete and involved major system upgrades and structural modifications, which involved changes to the dimensions and buoyancy of the hull.  These changes made navigation improbable during the time of these repairs.  Further, much of the crew transferred to other vessels.  “For these reasons, the administrative law judge concluded that the pattern of the repairs, the extensive nature of the repair work, and the status of the ship all supported a finding that the Pacific Glacier was not in navigation at the time of claimant’s injury.”

Tounkara v. Glacier Fish Company, BRB No. 15-0217 (1/28/16)