ISSUE: Remedies

How about a short review of some of the coverage issues that arise between the boundaries that separate the Longshore Act from other remedies available to the injured worker?  Some of these issues come up constantly and have been the subject of previous postings, while others arise less frequently.

1.  LONGSHORE ACT/JONES ACT  –  The Longshore Act in section 902(3)(G) excludes crewmembers of any vessel and the Jones Act only covers crewmembers of a vessel.  So, the two laws are mutually exclusive in their coverage.

The Longshore Act tests for coverage are Situs (geography and function) and Status (nature of duties).  You must be a land based maritime worker working in a maritime area as defined in the Act and the case law.  The Jones Act test for coverage is Occupational.  The worker must have an employment relationship to a vessel, or group of vessels under common control that is substantial in terms of both duration and nature, and his duties must contribute to the mission or function of the vessel.

The Longshore Act is a workers’ compensation statute administered by the U.S. Department of Labor.  The statute provides the benefit rates and federal regulations govern administration.  The Jones Act is a tort remedy based on negligence, enforced by filing a complaint in court.  The worker is entitled to a jury trial, and the potential recovery can far exceed workers’ compensation benefits.

Longshore Act insurance must be obtained from an insurance carrier licensed by the U.S. DOL, or the employer must obtain DOL’s approval to be self-insured.  Jones Act insurance coverage is liability coverage usually provided in the vessel owner’s protection and indemnity policy, or by adding the maritime coverage endorsement to the workers’ compensation and employer’s liability policy, or by adding a marine liability endorsement to the commercial general liability policy.

There is a coverage overlap.  The federal Fifth Circuit Court of Appeals has said:  “Thus, despite our continued insistence that a Jones Act ‘seaman’ and a ‘crew member’ excluded from the Longshore Act are one and the same (in other words that the statutes are mutually exclusive), we recognize that in a practical sense, a ‘zone of uncertainty’ inevitably connects the two Acts”.   Many cases can go either way.  NOTE:  There is a rule of thumb that the courts use: if a worker spends less than 30% of his work time aboard a vessel then he is probably not a Jones Act seaman.

2.  LONGSHORE ACT/STATE WORKERS’ COMPENSATION The U.S. Supreme Court has held that the Longshore Act does not supplant state workers’ compensation laws, it supplements them.  The Longshore Act and a state compensation law can apply simultaneously to the same injury.

It’s up to state law.  There are “concurrent” states and there are “exclusive” states.  Here’s a very unofficial list:

  1. Concurrent states:  AL, AK, CA, CT, DE, GA, IL, IN(?), KY(?), MA, MI, MN, MO, NC, NY, PA, RI, SC, TN, VA, WV, WI
  2. Exclusive states:  FL, HI, LA, ME(?), MD, MS, NJ, OH, OK, OR, TX, WA

The Longshore Act and the state acts are all workers’ compensation statutes.  In concurrent states, the worker will typically file claims under both the Longshore Act and the state act.  This entails double costs for the employer.

Insurance is purchased from a licensed insurance carrier or the employer can apply to be approved as a self-insurer by the regulator.

There is an overlap in coverage in the form of simultaneous coverage in concurrent states.  There is double work and expense for the employer in claims administration and reporting, insurance compliance, litigation, benefits, etc.

3.  LONGSHORE ACT/FEDERAL EMPLOYERS’ LIABILITY ACT (FELA) -FELA covers employees of interstate railroads.  It is the Jones Act for railroad employees.  In fact, FELA was passed in 1908, and its remedy provisions were incorporated in the Jones Act in 1920.

FELA covers railroad employees.  The Longshore Act covers land based maritime employees.

FELA is a tort remedy based on negligence.  It is the same as the Jones Act.  The Longshore Act is workers’ compensation.

Like the Jones Act, it is tort liability versus workers’ compensation statutory benefits.

In theory there is no overlap in coverage with the Longshore Act.  But it can be tricky for the railroads.  A railroad worker who meets situs and status under the Longshore Act is covered by the Longshore Act.  He does not have a FELA remedy.  It is not concurrent.  It is either/or.  The problem is that there is a practical overlap, depending on where the line is to be drawn between overland transportation and “longshoring operations”.  The lesson is that railroads need Longshore Act insurance coverage.

4.  LONGSHORE ACT/OUTER CONTINENTAL SHELF LANDS ACT (OCSLA) – The OCSLA is an extension of the Longshore Act, extending Longshore Act benefits to the oil and gas workers on the U.S. outer continental shelf. You are covered by one or the other, but picking which one can be tricky.

Once again, the test for Longshore Act coverage is maritime situs and status (navigable waters of the U.S.).  The OCSLA covers workers engaged in the exploration for, development, and production of oil and gas on the U.S. outer continental shelf.

Both are workers’ compensation statutes.  The OCSLA extends Longshore Act benefits to the OCS.

They are mutually exclusive laws requiring separate insurance coverage.

There ordinarily is no overlap, but you’ve got plenty of choices.  Work on fixed oil and gas platforms in state waters is not maritime employment and it is not OCSLA.  It is state act workers’ compensation.  Work on the OCS in oil and gas production, exploration, and development is OCSLA, not Longshore.  Maritime employment on the navigable waters of the U.S. is Longshore Act.  Note:  Work on floating rigs may be Jones Act, because floating drilling rigs and production platforms are vessels.  Another Note:  Coverage depends on where the worker is and what is he doing.  (There is a circuit conflict on the “where the worker is” part between the 3rd, 9th and 5th circuits.  The 5th circuit says that the injury must occur on the OCS, the other two circuits say that there is no situs requirement for compensation under OCSLA.  The injury must only be as a result of operations on the OCS, so you can have OCSLA exposure in locations other than on the outer continental shelf.

5.  LONGSHORE ACT/EMPLOYER TORT LIABILITY – Section 905(a) of the Longshore Act states:  The employer’s liability shall be “exclusive and in place of all other liability of such employer to the employee….”  The employer is immune from suits “at law or in admiralty”.  It doesn’t necessarily mean what it says; “at law or in admiralty” does not include other workers’ compensation laws, so you have concurrent jurisdiction with the states. 

There are numerous exceptions in state laws, and it seems like there are more all the time, giving injured workers a tort remedy against the employer outside of the employer’s workers’ compensation immunity.  This is a bigger problem for maritime employers in concurrent states, since strictly Longshore claims still give the employer the section 905(a) immunity.

6.  LONGSHORE ACT/ SECTION 905(b) – Workers covered by the Longshore Act have a federal maritime tort remedy against the vessel owner based on vessel negligence.  This is true even if the vessel owner is also the employer (dual capacity) but the injury must be caused by negligence in vessel operations, not stevedoring.  This remedy is not available to the employee who is employed to provide shipbuilding, ship repair, or ship breaking services.

This is a maritime tort remedy.  The injury must occur on a vessel on navigable waters or possibly on immediately adjoining areas.  It is in addition to the worker’s compensation remedy.   This is the remedy given to longshore workers when the 1972 amendments took away the unseaworthiness remedy mistakenly given to them by the Supreme Court in the Sieracki case.

7.  NONAPPROPRIATED FUND INSTRUMENTALITIES ACT (NAFIA)/DEFENSE BASE ACT – Section 8172 of the NAFIA says, “In case of disability or death resulting from injury … occurring to an employee of a NAFI … who is:

(1)     not a citizen or permanent resident of the United States or a territory or possession of the United States; and

(2)     employed outside the continental United States;

compensation shall be provided in accordance with regulations prescribed by the Secretary of the military department concerned and approved by the Secretary of Defense or regulations prescribed by the Secretary of Transportation, as the case may be. 

So overseas NAFI employees do not get NAFIA benefits.

Section 1651(1)(a) of the Defense Base Act says that the DBA applies to any employee engaged in any employment at any U.S. military base outside the continental U.S.

Each Act says that it is the exclusive remedy for the worker.

What about the case of a non-citizen NAFI worker working on a U.S. military base outside of the U.S.?  He is covered by NAFIA.

8.  LONGSHORE ACT/ FEDERAL EMPLOYEES COMPENSATION ACT (FECA) – FECA is the workers’ compensation law that covers employees of the federal government.  These workers are excluded from the Longshore Act.   There is no overlap.  You are one or the other.

Leave a Reply