Here is a list of topics that will be addressed in the next group of postings. If anyone has any suggestions that they’d like to add please let me know.
– Concurrent Jurisdiction (State act/Longshore Act)
– Bridge Work
– Lump Sum Settlements (section 908(i))
– Special Fund Assessment (section 944)
– Insolvency and Default (section 918(b))
– War Hazards Compensation Act
– Fights, Horseplay, and the Presumptions (section 920)
– Medical Marijuana
– 1984 Amendment Coverage Exclusions (section 902(3))
– Loss Control Challenge
– Special Guest Blogs
PART TWO – Top Ten Longshore Act Questions.
Longshore Act Question Number 4 – What Is a Vessel? What Is a Crewmember?
This is the last of the Top Ten Longshore Act Questions. Check out all the others in previous posts.
In Question number 5, we summarized some of the differences between the Jones Act and the Longshore and Harbor Workers’ Compensation Act, and we mentioned that there is a problem for maritime employers in recognizing the coverage differences between the two. Question number 4 is related. It deals with the two elements that you need for Jones Act exposure, a vessel and a crewmember.
What is a vessel?
Unfortunately, neither the Longshore and Harbor Workers’ Compensation Act nor the Jones Act defines exactly what a vessel is, although the question is central to many key issues under both laws.
The Longshore Act’s attempt at a definition is typically self referential. Section 902(21) (33 U.S.C. 902(21)) states, “Unless the context requires otherwise, the term ‘vessel’ means any vessel upon which or in connection with which any person entitled to benefits under this Act suffers an injury or death arising out of or in the course of his employment,…”
We do know from the case law that whatever “vessel” means, it means the same thing under both statutes.
And we have a recent Supreme Court decision to help define the term (Stewart v. Dutra Construction Co.). The Court had to decide if the “Super Scoop” was a vessel. This was part of the dredging apparatus used to excavate the Ted Williams Tunnel under Boston Harbor. It did not have an engine or other navigational equipment, and it only moved 30 to 50 feet each day on its own by manual manipulation of its anchor chains and cables. It was primarily a work platform for dredging equipment.
An engineering employee was injured when the “Super Scoop” was bumped by one of the adjacent sand scows, and the Court had to decide if the Jones Act applied, which depended on whether the Super Scoop was a vessel.
The Court went back to the early Rules of Construction Act, 1 U.S.C. section 3 (1873), to decide that a vessel was anything practically capable of being used as a means of transportation on water. This is a broad definition, and seems to include anything that floats and that is not permanently affixed to land.
For example, a floating, or jack up, offshore oil rig is a vessel while a platform permanently fixed to the seabed is not. Likewise, a floating casino permanently affixed to land and incapable of movement is not a vessel, but a floating casino moored long term, even indefinitely, to land but still capable of being moved, even on very rare occasions, can be a vessel.
It’s an important question because the answer will go a long way toward determining whether you’ve got a workers’ comp case or a Jones Act lawsuit.
At present, it seems that the Stewart decision has broadened the definition of “vessel” to include all manner of special purpose structures, work platforms, and docked facilities which prior to Stewart had presented arguments for non vessel status.
Remember: the issue of identification of a “vessel” is frequently a fact intensive inquiry requiring careful analysis. Approach the question cautiously.
What is a crewmember?
Would you be surprised to learn that neither the Longshore Act nor the Jones Act provides a helpful definition? The case law at least tells us that the meaning of “seaman” in the Jones Act is the same as the meaning of “master or member of a crew” in the Longshore Act.
Section 902(3)(G) of the Longshore Act excludes from coverage “a master or member of a crew of any vessel”. So we know that to be covered under the Jones Act you have to be a seaman, or in other words a master (captain) or member of a crew of a vessel. And if you are, then you are excluded from Longshore Act coverage.
So what is a crewmember? As we mentioned in an earlier posting, (Longshore Act question number 5), the Jones Act uses an occupational test for coverage, depending on the worker’s relationship to a vessel. It is not necessary that the worker contribute to the navigation of the vessel, but only that he contribute to the function of the vessel or the accomplishment of its mission, and that he have an employment relationship to a vessel or group of vessels under common ownership or control that is substantial in terms of both duration and nature.
Obviously these terms are general and open to interpretation, and in many instances it is difficult to determine whether coverage lies under the Jones Act or under the Longshore Act.
All you can do when the issue arises is to analyze all aspects of the occupation in question to determine whether the worker is in fact a sea based worker with primary allegiance to the vessel or is a land based worker who happens to spend some time aboard vessels. Remember, the courts us a 30% rule of thumb. It is not conclusive, but if a worker spends less than 30% of his total working time on board a vessel or in the service of the vessel then he is probably not a Jones Act seaman.
Remember, in order for the Jones Act to apply you need a vessel and you need a crewmember.