Circuit Court for Baltimore City Case No.: 24X16000585
C.J., Graeff, Eyler, James R. (Senior Judge, Specially
Assigned), JJ. [*]
JAMES R., J.
Jackson Crowe, and his wife, Veronica Crowe, filed suit in
the Circuit Court for Baltimore City against CSX
Transportation, Inc. (CSX), and nineteen other defendants,
seeking damages under the Federal Employer's Liability
Act (FELA), 45 U.S.C. §§ 51-60, in pertinent part,
alleging that Mr. Crowe was exposed to asbestos during his
employment with CSX and that such exposure caused him to
develop malignant mesothelioma.
filed a motion to dismiss or, in the alternative, for summary
judgment, arguing that Mr. Crowe's claim for damages
against CSX under FELA was barred because the Longshore and
Harbor Workers' Compensation Act (LHWCA), 33 U.S.C.
§§ 901-950, provided his exclusive remedy against
CSX for employment-related claims. Following oral argument,
the circuit court granted CSX's motion and entered
judgment in favor of CSX. This appeal followed.
Crowe presents two issues for our review, which we have
rephrased as follows:
1. Did the circuit court err in concluding that Mr.
Crowe's FELA claim against CSX is barred by the LHWCA?
2. Assuming the 1972 Amendments to the LHWCA apply to Mr.
Crowe's claims, does he meet the "status"
requirement of a maritime employee under the 1972 Amendments
to the LHWCA?
reasons stated below, we conclude that the 1972 Amendments
apply to Mr. Crowe; Mr. Crowe was a maritime worker within
the meaning of the Amendments; and the LHWCA provides the
exclusive remedy. Thus, the circuit court did not err in
entering judgment in favor of CSX. We affirm the judgment of
the circuit court.
1960 to 1969, Mr. Crowe was employed by Western Maryland
Railway, predecessor to CSX,  as a railway operator and foreman
at the Port Covington railyard and port facility in
Baltimore, Maryland. The operations at that location
consisted of loading and unloading ships; storing the freight
in warehouses; and shipping the goods to customers via
railcars and trucks. Mr. Crowe's job duties included
supervising the loading of freight from the warehouses onto
railcars and trucks. According to Mr. Crowe, twice per year
between 1960 and 1969, burlap bags of raw asbestos arrived by
ship at Port Covington. Dockworkers unloaded the burlap bags
of asbestos from ships using a metal hook. The hook
frequently tore holes in the burlap bags, allowing raw
asbestos to spill from the bags. Dockworkers loaded the bags
of asbestos onto pallets and delivered them to warehouses for
storage. The bags of asbestos could remain in the warehouses
for up to one month before they were shipped out on railcars
supervising the railroad workers who loaded the stored bags
of asbestos onto railcars and trucks, he was in close contact
with the workers handling bags of asbestos, including torn
bags. On occasion, Mr. Crowe participated in physically
moving the freight. Mr. Crowe was exposed to asbestos fibers
in the warehouse and during the loading of the asbestos bags
onto railcars and trucks.
August 30, 2016, Mr. Crowe was diagnosed with malignant
mesothelioma, allegedly caused by his exposure to asbestos
fibers from 1960 to 1969. On December 21, 2016, he and Mrs.
Crowe brought a personal injury action in circuit court under
case, the circuit court did not specify whether it granted
CSX's motion to dismiss or motion for summary judgment.
The motion papers were supported by answers to
interrogatories and deposition testimony. When, as here, a
trial court considers materials outside the complaint, we
ordinarily treat a motion to dismiss as a motion for summary
judgment. We review the grant of the motion "without
deference for legal correctness." Floyd v. Mayor
& City Council of Baltimore, 463 Md. 226, 241
(2019), reconsideration denied (May 16, 2019).
Because a circuit court's decision to grant summary
judgment is a question of law, our review is de
novo. Vito v. Grueff, 453 Md. 88, 104 (2017).
was enacted to provide a tort remedy for railroad employees
who were injured in the course of their employment caused by
the negligence of the employer. Merrill v. Chicago &
Illinois Midland Ry., 751 F.Supp. 770, 772 (C.D. Ill.
1990). FELA, 45 U.S.C. § 51 provides, in part:
Every common carrier by railroad while engaging in ...
[interstate commerce] ... shall be liable in damages to any
person suffering injury while he is employed by such carrier
in such commerce, ... resulting in whole or in part from the
negligence of any of the officers, agents or employees of
such carrier, or by reason of any defect or insufficiency,
due to its negligence, in its cars, engines, appliances,
machinery, track, roadbed, works, boats, wharves, or other
retained a fault system. The basis of liability is
negligence, but it abolished the common law defenses of
contributory negligence, assumption of the risk, and the
fellow servant rule. Consolidated Rail Corp. v.
Gottshall, 512 U.S. 532, 542-543 (1994). "The FELA
law is a hybrid. It hovers ambivalently between workers'
compensation law and the common law tort of negligence. It is
neither, but it partakes of characteristics of both."
CSX Transp., Inc. v. Miller, 159 Md.App. 123, 129
(2004). FELA was enacted in 1906, at a time when few states
had workers' compensation laws, and thousands of railroad
workers were being injured, maimed, and killed on the
railways. Id. at 130. "FELA has been defended
as more advantageous to railroad employees than an act
patterned on workers' compensation statutes." Philip
D. Oliver, Once Is Enough: A Proposed Bar of the
Injured Employee's Cause of Action Against A Third
Party, 58 Fordham L. Rev. 117, 172 (1989). We have
recognized that "although the FELA is not a workers'
compensation act, the social forces that produced it and the
generating spirit that drives it resonate with the language
and philosophy of workers' compensation principles."
CSX Transp., Inc. v. Miller, 159 Md.App. at
1920s and before the LHWCA was enacted in 1927, a longshore
worker injured on the land side of a port facility was
generally covered by state workers' compensation
statutes. A worker injured on the seaward side generally had
no remedy. In Southern Pacific Co. v. Jenson, 244
U.S. 205 (1917), the Supreme Court held that a state had no
power to extend a compensation remedy to workers on the
seaward side. The LHWCA was enacted to provide benefits to
seaside workers. "The LHWCA is remedial legislation
intended to provide a remedy to workers injured during
longshoring activities." Merrill, 751 F.Supp.
at 775; 33 U.S.C. § 903. The LHWCA was enacted to
provide federal workers' compensation benefits to
maritime workers who sustained injuries upon "navigable
waters" but were not covered by federal admiralty and
did not have other remedies. Northeast Marine Terminal
Co. v. Caputo, 432 U.S. 249, 257-58 (1977);
Merrill, 751 F.Supp. at 775. The LHWCA provides for
the payment of compensation "in respect of disability or
death" caused by an injury that occurred on navigable
waters. 33 U.S.C. §903.
the LHWCA's coverage was interpreted to exclude maritime
workers who suffered injuries on land. See Nacirema
Operating Co. v. Johnson, 396 U.S. 212, 223 (1969).
Under the caselaw prior to 1972, the "situs"
determined the applicability of the LHWCA, and the dividing
line was the water's edge. This created "anomalous
and inconsistent results" in the coverage available to
injured longshore workers. P. C. Pfeiffer Co. v.
Ford, 444 U.S. 69, 72 (1979); Merrill, 751
F.Supp. at 775. See, e.g., Davis v. Department of Labor
and Industries of Washington, 317 U.S. 249 (1942).
1972, Congress amended the LHWCA and expanded the definition
of "navigable waters of the United States" to
include areas such as adjoining piers, docks and terminals
customarily used in the loading, unloading, building and
maintenance of ships. Caputo, 432 U.S. at 263-64.
See 33 U.S.C. § 903(a). The 1972 Amendments
thereby extended the location or "situs"
requirement under the LHWCA to include maritime employees
injured on water and land. Id.
same time, Congress also enacted a "status"
requirement for employees to qualify for compensation under
the LHWCA. P.C. Pfeiffer Co., 444 U.S. at 73-74; 33
U.S.C. § 902(3). The status test broadened the
definition of persons covered by the LHWCA to include workers
"engaged in maritime employment."
The Act now extends coverage to more workers by replacing the
single-situs requirement with a two-part situs and status
standard. The newly broadened situs test provides
compensation for an "employee" whose disability or
death "results from an injury occurring 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, or building a
vessel)." § 3(a), 33 U.S.C. § 903(a). The
status test defines an employee as "any person engaged
in maritime employment, including any longshoreman or other
person engaged in longshoring operations, and any
harborworker including a ship repairman, shipbuilder, and