No. 99-2457



Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Benson E. Legg, District Judge.

Argued: June 6, 2000

Decided: August 2, 2000

Before WILKINSON, Chief Judge, MURNAGHAN, Circuit Judge,
and Henry M. HERLONG, Jr., United States District Judge
for the District of South Carolina, sitting by designation.


Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Murnaghan and Judge Herlong joined.



LOS, Baltimore, Maryland, for Appellant. Benjamin Rader

Baltimore, Maryland, for Appellee. ON BRIEF: Roger A. Doumar,
John B. Bratt, LAW OFFICES OF PETER G. ANGELOS, Baltimore,
Maryland, for Appellant.



WILKINSON, Chief Judge:

This case presents the question of whether appellant Douglas F.
White was a borrowed servant of appellee Bethlehem Steel. The dis-
trict court found that he was a borrowed servant, and thus an
employee of Bethlehem Steel for purposes of the Longshore and Har-
bor Workers' Compensation Act (LHWCA). Because the LHWCA
mandates that an employee's sole remedy with regard to his employer
is through the LHWCA, the court dismissed White's tort action. See
33 U.S.C. S 905(a) (1994). Because White was under the authoritative
direction and control of Bethlehem Steel at the time of his injury, we
affirm the dismissal of his suit.


For twenty-six years, Douglas White worked as a heavy equipment
operator for C.J. Langenfelder & Son, Inc. Langenfelder rented its
construction equipment and the employees who operated that equip-
ment to various companies, among them Bethlehem Steel. Of the
approximately 500 employees who worked for Langenfelder, about
100 were assigned to Bethlehem Steel.

Langenfelder and Bethlehem Steel had a contract specifying the
terms of agreement between the two companies. The contract stated
that Langenfelder would maintain "exclusive direction, supervision
[and] control" over its workers. While the contract between the two
parties expired on December 31, 1993, it apparently continued to gov-
ern the parties' relationship at the time of the incident in question.
Although Langenfelder paid its employees' wages and insurance, it
passed those costs through to Bethlehem Steel.


For all but two weeks of White's twenty-six year tenure, he worked
at Bethlehem Steel. Langenfelder would tell White where to report
within Bethlehem Steel. Approximately one-eighth of the time, White
was assigned to the New Ore Pier within the Bethlehem Steel yard.
At the New Ore Pier, only Bethlehem Steel employees supervised
White. When White arrived at the pier, a Bethlehem Steel foreman
would tell him where to go. If a work-related problem arose, Bethle-
hem Steel supervisors would resolve it. Over the course of White's
twenty-six years at the pier, no Langenfelder employee ever super-
vised his work. Bethlehem Steel also reserved the right to reject any
Langenfelder employee at any time. If Bethlehem Steel dismissed a
Langenfelder employee, Langenfelder would have no choice but to
terminate that individual.

On August 24, 1995, White was working on the M/V JUNIPER,
which was berthed at the New Ore Pier. After his shift ended, White
attempted to exit a hold of the JUNIPER by ladder. As he climbed the
ladder, he slipped and fell, injuring himself. White maintains that his
injury was caused by a lack of light in the hold. White received work-
ers' compensation for his injury under the LHWCA.

White also sued Bethlehem Steel, alleging that the company was
negligent for allowing him to remain in the hold after dark without
any light source, for failing to supervise him adequately, and for fail-
ing to provide him with any assistance in exiting the hold. The district
court dismissed White's action, reasoning that although the LHWCA
allows an employee to pursue personal injury actions against third
parties, it does not allow an employee to maintain a tort action if the
employee is a borrowed servant. The district court then concluded
that White was a borrowed servant of Bethlehem Steel due to the con-
trol that Bethlehem Steel supervisors exercised over him, the length
of his tenure at Bethlehem Steel, and the pass-through arrangement
by which Bethlehem Steel would effectively pay his wages and insur-
ance. The court further concluded that the ability of Bethlehem Steel
to exclude him from the work site effectively gave the company the
power to fire him. White now appeals.




The LHWCA is a no-fault federal compensation scheme designed
to give protection to injured maritime workers while at the same time
affording employers some degree of predictability with regard to
those workers' recoveries. See Rodriguez v. Compass Shipping Co.,
451 U.S. 596, 616 (1981). Covered employees cannot bring a per-
sonal injury action against their employer; their only remedy with
regard to their employer is through the LHWCA. See 33 U.S.C.
S 905(a). In 1972, Congress substantially increased the level of no-
fault compensation. During the debate on the 1972 amendments, mar-
itime employers took the position that they could provide higher ben-
efits "only if the LHWCA were to again become the exclusive remedy
against [the employer] as it had been intended since its passage in
1927 . . . ." Peter v. Hess Oil Virgin Islands Corp., 903 F.2d 935, 948
(3d Cir. 1990) (internal quotation marks omitted). Thus, a central pur-
pose of these changes to the LHWCA was to "minimize the need for
litigation as a means of providing compensation for injured work-
men." Rodriguez, 451 U.S. at 616; see also Peter, 903 F.2d at 952
("The Act is premised on the notion that employers will accept the
burden of no-fault compensation recovery in exchange for predictable
liability for injuries suffered by workers.").

While the LHWCA does not explicitly adopt the borrowed servant
doctrine, the word "employer" in 33 U.S.C.S 905(a) encompasses
both general employers and employers who "borrow" a servant from
that general employer. See Huff v. Marine Tank Testing Corp., 631
F.2d 1140 (4th Cir. 1980); Peter, 903 F.2d at 938-39; Gaudet v.
Exxon Corp., 562 F.2d 351 (5th Cir. 1977). A person can be in the
general employ of one company while at the same time being in the
particular employ of another "with all the legal consequences of the
new relation." See Standard Oil Co. v. Anderson, 212 U.S. 215, 220
(1909). In order to determine whether an employee is a borrowed ser-
vant, courts "must inquire whose is the work being performed . . . by
ascertaining who has the power to control and direct the servants in
the performance of their work." Id. at 221-22. The Supreme Court
noted, however, the importance of "distinguish[ing] between authori-


tative direction and control, and mere suggestion as to details or the
necessary cooperation." Id. at 222.

The authority of the borrowing employer does not have to extend
to every incident of an employer-employee relationship; rather, it
need only encompass the servant's performance of the particular work
in which he is engaged at the time of the accident. See id. at 220;
McCollum v. Smith, 339 F.2d 348, 351 (9th Cir. 1964). When the bor-
rowing employer possesses this authoritative direction and control
over a particular act, it in effect becomes the employer. In that situa-
tion, the only remedy of the employee is through the LHWCA.


In order to determine direction and control, a court may look at fac-
tors such as the supervision of the employee, the ability to unilaterally
reject the services of an employee, the payment of wages and benefits
either directly or by pass-through, or the duration of employment.
Ultimately, any particular factor only informs the primary inquiry --
whether the borrowing employer has authoritative direction and con-
trol over a worker.

In Huff v. Marine Tank Testing Corp., this court confronted the
same issue presented in the case at bar. We held that the employee
was a borrowed servant because he was "for all practical purposes"
an employee of the borrowing company. Huff, 631 F.2d at 1144. In
Huff, the plaintiff technically worked for Perry Welding Company,
but did all of his actual labor for Allied Towing Corporation. In sup-
port of the holding that Huff was a borrowed servant of Allied's, we
noted that the jobs performed were entirely Allied's work, that Huff
was under Allied's supervision, that Huff was subject to discharge by
Allied, and that Huff worked at Allied the entire time he was techni-
cally employed by Perry. In reaching this conclusion, the Huff court
implicitly adopted the test that we explicitly adopt today by focusing
on factors that determine whether the borrowing employer can control
and direct the employee. See id. at 1143-44; see also Parker v. Joe
Lujan Enterprises, 848 F.2d 118, 120 (9th Cir. 1988) (adopting the
"authoritative direction and control" test from Standard Oil in the
workers' compensation context).


Here, the district court applied a nine-part test to determine
whether White was a borrowed servant of Bethlehem Steel. See, e.g.,
Alday v. Patterson Truck Line, Inc., 750 F.2d 375, 376 (5th Cir.
1985). This court in Huff did not adopt that nine-part inquiry, and we
decline to do so now. A nine-part probe provides insufficient guid-
ance to prospective litigants about the application of a legal standard,
as the Fifth Circuit itself has intimated. See Gaudet, 562 F.2d at 357.
But see Billizon v. Conoco, Inc., 993 F.2d 104 (5th Cir. 1993) (apply-
ing the nine-part test). The authoritative direction and control inquiry
will more efficiently resolve a plaintiff's borrowed servant status than
a nine-factor balancing calculus.


White contends that he was not the borrowed servant of Bethlehem
Steel, and that the district court erred in dismissing his tort suit. We
disagree. Applying the authoritative direction and control test to his
employment situation, we hold that White was a borrowed servant of
Bethlehem Steel.

The very fact that White is bringing this lawsuit against Bethlehem
Steel is strong evidence of the extent of Bethlehem Steel's control
over him. White is suing for breach of a duty of care, which presumes
that Bethlehem Steel had a duty in the first place. Indeed, White's
complaint admits that he was working under "the supervision and
participation of Defendant Bethlehem Steel Corporation, its agents,
servants and/or employees" (emphasis added). Moreover, White
alleges that Bethlehem Steel's failure to supervise was itself a negli-
gent act. White cannot have it both ways. Although undoubtedly a
worker can bring a personal injury action against a third party, the
nature of White's allegations are evidence in and of themselves that
Bethlehem Steel was supervising and controlling him.

White argues, however, that since the expired contract continued to
govern, and since the contract specifically acknowledged that Lan-
genfelder employees would remain under the direction and control of
Langenfelder itself, a genuine issue of material fact exists that must
be presented to the jury. We disagree. The overwhelming weight of
the undisputed evidence in this case, much of it from White himself,
shows that Bethlehem Steel maintained authoritative direction and


control over White. In actual practice, White worked just as if he were
a Bethlehem Steel employee. Bethlehem Steel supervised him over a
twenty-six year period, Bethlehem Steel assigned him to the ships
where he would work, Bethlehem Steel paid his wages and insurance
premiums in pass-through form, and Bethlehem Steel could effec-
tively fire him by excluding him from the job site. Indeed, White in
his deposition repeatedly acknowledged that Langenfelder never
supervised him during the quarter-century he worked at the pier.

The fact that an expired contract said something different does not
change the true nature of the relationship. See, e.g., Gaudet, 562 F.2d
at 357-59 (granting summary judgment in favor of the borrowing
employer, despite the existence of a contract proclaiming that the
original employer maintained control, because the other undisputed
facts showed that the employee was a borrowed servant). Allowing
a case this clear to go to the jury would undercut the value of the
worker's compensation system, which is predicated on a no-fault
regime and quick recovery. See Artis v. Norfolk & Western Railway
Co., 204 F.3d 141, 144 (4th Cir. 2000) (The LHWCA and other work-
ers' compensation statutes "are designed to provide quick [and] cer-
tain relief for work related injuries.") (internal quotation marks
omitted). A trial on such undisputed facts would harm the very work-
ers who are injured by creating incentives for employers to distrust
the workers' compensation system and to work against its operation.


White was under the authoritative direction and control of Bethle-
hem Steel while he worked at the New Ore Pier. Consequently, he
was a borrowed servant and the LHWCA is his exclusive remedy.
Accordingly, the judgment of the district court dismissing his tort suit