Longshore Act Question Number 1- Do I Need Longshore Act Insurance?

If you go to the U.S. Department of Labor’s website (dol.gov), find your way under Agencies to Office of Workers’ Compensation Programs and then to the Division of Longshore and Harbor Workers’ Compensation, you will see that one of the questions that DOL tries to answer is, “Do I Need Longshore Act Insurance”.

 Here is DOL’s answer in its entirety:

 “The requirement to have Longshore insurance varies from situation to situation, and from state to state. The best way to determine the need is to talk directly with your nearest Longshore district office, so that you can explain the specifics of your work site and employment situation.”

 At first look, it doesn’t seem like a very helpful answer.

 But on second look, it starts to seem like the only sensible answer.

 There are too many variables, too many subtle regional differences in judicial interpretation, too many occupations, too much geography, and too much factual analysis to permit anything like a single coherent answer to this question.  Even an attempt to list a short list of general principles runs the risk of achieving brevity at the cost of confusion and distortion.

 The best answer is to discuss particular situations with an expert.  The downside in the law for the uninsured employer is too serious to take any chance on getting it wrong.

 But, bearing all of this in mind, I’ll at least review the statutory provisions.

 Section 902(3) (33 U.S.C. 902(3)) of the Longshore Act is the “status” provision.  It states,

 “The term ‘employee’ means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor worker including a ship repairman, shipbuilder, and ship breaker….”

 Section 903(a) is the “situs” provision.  It states,

 “… compensation shall be payable under this Act in respect of disability or death of an employee, but only if the 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, dismantling, or building a vessel).”

 Words and expressions that are undefined and open to interpretation such as “longshoring operations”, “harbor worker”, “other adjoining area”, and “customarily used” lead to uncertainty, misunderstanding, and  litigation.

 So, since we’re in this far, let’s try some general observations and principles. 

 In broad terms, to be covered by the Longshore Act an injury must occur upon the navigable waters of the United States, including dry docks, or on a landward area covered by the situs provisions of section 903(a) if the work is maritime in nature under the status provision of section 902(3) and not specifically excluded by the exclusion provisions of sections 902 and 903.

 Some very few of the many factors that come into play:

–         if an injury occurs on the navigable waters or a dry dock (pre-1972 amendment coverage) then it is covered by the Longshore Act regardless of the nature of the work;

–         to satisfy the “status” requirement it is necessary that an employee spend only part of his time (and it could be a small part) in indisputably maritime activity;

–         intermediate steps in moving cargo between ship and land transportation are covered (the first point of rest off the vessel is not necessarily where the unloading process ends);

–         “situs” is determined by the nature of the place of work at the time of the injury;

–         both the “situs” and “status” requirements must be met for coverage;

–         to be considered a covered situs a location must have a maritime nexus, but it need not be used exclusively or even primarily for maritime purposes;

–         see blog posting Question Number 5 for a discussion of what is a navigable water of the United States;

–         mixed use locations, such as facilities that contain both loading/unloading operations as well as manufacturing operations, present complicated situs issues;

–         an injury occurring on a bridge permanently affixed to land does not occur on a covered situs (but be careful if the facts change; for example, an employee working from a work platform on the water could be covered);

–         an oil and gas platform permanently affixed to the seabed in state territorial waters is not a maritime situs (it is considered to be an artificial island);

–         railroad employees normally covered by the Federal Employers Liability Act could be covered instead by the Longshore Act if they meet situs and status;

–         section 902(3)(A)-(H) contains express exclusions from coverage.  These exclusions are very narrowly construed, and will be the subject of a future posting.  Refer to the May 27, 2009, blog posting for a brief discussion of the section 902(3)(A) exclusion of clerical, secretarial, security, and data processing employees.

This could go on indefinitely.  I better quit while I’m ahead (at least I think I’m ahead).

 So, once again and finally, in view of the consequences of needing the coverage and not having it, play it safe.  If you’ve got anyone working anywhere near the water, you should be thinking about the Longshore Act and consulting with an expert.

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