AEU Longshore Blog ISSUE: Insurance Requirement

Since I recently discussed the fact that many state guarantee funds will not pay Longshore Act benefits in the event of an insurance carrier default due to insolvency, or will pay only to a limited or conditional degree, and I also recently discussed what typically happens in the immediate aftermath of an insurance carrier insolvency from the perspective of an insured, it seemed like an appropriate time to revisit the fundamentals of the Longshore Act’s insurance requirement.

There is extensive language in the Longshore and Harbor Workers’ Compensation Act which addresses the insurance requirement. Below is a summary:

  • If you are a (maritime) employer, then Longshore Act insurance is mandatory.
  • If your company doesn’t have it, then the injured worker has an election of remedies; he can accept his compensation benefits or he can sue your company.
  • If your company doesn’t have it, you may be prosecuted criminally, and your corporate officers have joint and several liability for criminal prosecution.
  • If your company doesn’t have it, then your corporate officers have personal, joint and several liability to the injured worker.
  • You have two choices: obtain an insurance policy from an insurance carrier authorized by the U.S. Department of Labor to provide USL&H coverage, or obtain U.S. Department of Labor authorization to self-insure.

While the above summary seems relatively straightforward, it can still be confusing to maritime employers about how, when, or if they need obtain the proper insurance coverage. There are three questions that are most frequently asked:

  1. When do I need Longshore Act insurance?

If you are a maritime employer employing maritime workers, then you need workers’ compensation coverage under the Longshore and Harbor Workers’ Compensation Act. Whether or not you employ maritime workers depends on whether the workers meet the status (33 U.S.C. 902(3)) and situs (33 U.S.C. 903(a)) provisions of the Longshore Act.

Very briefly, maritime “status” is an occupational concept and encompasses many jobs in addition to the traditional occupations of longshoreman, shipbuilder, ship repair worker, and ship breaker.  It includes all workers who build, maintain, and repair the tools, buildings and equipment necessary to the handling of cargo and the building/repairing of ships.  There is no “moment of injury test” for status.  Even a small percentage of regularly assigned maritime duties produce a full-time maritime worker for purposes of Longshore Act coverage.

Very briefly, “situs” is a geographic and functional concept that is determined by location as of the time of an injury.  You meet situs by being injured over navigable waters, by being injured on an enumerated location such as a dry dock, pier, wharf, terminal, building way, or marine railway, or in another adjoining area customarily used by an employer for maritime work.

So, very generally, a worker is a maritime worker if he or she does maritime work in a maritime area.

33 U.S.C. Section 904(a) – “Every employer shall be liable for and shall secure the payment to his employees of the compensation payable under Sections 907, 908, and 909.” 

  1. Where can I get Longshore Act insurance?

Section 932 of the Longshore Act (see below) gives the maritime employer two choices: buy insurance from an insurance carrier authorized by the U.S. Department of Labor or obtain the U.S. Department of Labor’s authorization to self-insure.

33 U.S.C Section 932 – “Every employer shall secure the payment of compensation under this Act –

(a)(1) By insuring and keeping insured the payment of such compensation with any stock company or mutual company or association, or with any other person or fund, while such person or fund is authorized (A) under the laws of the United States or of any State, to insure workers’ compensation, and (B) by the Secretary, to insure payment of compensation under this Act; or

(2) By furnishing satisfactory proof to the Secretary of his financial ability to pay such compensation and receiving an authorization from the Secretary to pay such compensation directly.”

  1. What happens if I need Longshore Act insurance and I don’t have it?

In the case of an uninsured employer, the company and its corporate officers are in a very vulnerable situation, as outlined in sections 905(a) and 938(a) of the Longshore Act shown below. The injured worker has an election of remedies that can be very costly for the employer.  There is potential criminal liability, and most importantly, the corporate officers have personal liability, jointly and severally, with the corporation.  The President, Secretary, and Treasurer of an uninsured employer are in a very bad place.

33 U.S.C. Section 905(a) – “… if an employer fails to secure payment of compensation as required by this Act, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under the Act, or to  maintain an action at law or in admiralty for damages on account of such injury or death.  In such action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, or that the employee assumed the risk of his employment, or that the injury was due to the contributory negligence of the employee.”

 33 U.S.C. Section 938(a) – “Any employer required to secure the payment of compensation under this Act who fails to secure such compensation shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than $10,000, or by imprisonment for not more than one year, or by both such fine and imprisonment; and in any case where such employer is a corporation, the President, Secretary, and Treasurer thereof shall be also severally liable to such fine and imprisonment as herein provided for the failure of such corporation to secure the payment of compensation, and such President, Secretary, and Treasurer shall be severally personally liable, jointly with such corporation, for any compensation or other benefit which may accrue under the said Act in respect to any injury which may occur to any employee of such corporation while it shall so fail to secure the payment of compensation as required by Section 932 of the Act.”

The Longshore Act insurance requirement can be daunting for those employers that are unclear as to whether or not it applies to their business. An insurance professional with expertise in the maritime industry, specifically USL&H coverage, can be of tremendous benefit in making that determination.


John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers’ Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation.  Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of the AEU Longshore Blog.

ISSUE: Longshore Act Facts and Figures – Summary of Key Provisions Part One

Jack_crop 72dpiMaximum/Minimum Weekly Compensation Rates

10/01/2014 – 09/30/2015 – $1,377.02/$344.26

10/01/2013 – 09/30/2014 – $1,346.68/$336.67

10/01/2012 – 09/30/2013 – $1,325.18/$331.30

10/01/2011 – 09/30/2012 – $1,295.20/$323.80

Types of Disability – Weekly Compensation Rate

Permanent Total (PTD) @ 2/3 x Average Weekly Wage (AWW) (10/1 annual adjustment)

Temporary Total (TTD) @ 2/3 x AWW

Permanent Partial (PPD)

Loss of Wage Earning Capacity (LWEC) @ 2/3 (AWW – post injury WEC)

Scheduled Award (Sec. 8(c)) @ 2/3 x AWW x scheduled # of weeks

Survivor’s – 50% x AWW for one (widow(er) or child) (10/1 annual adjustment)

50% x AWW plus 16 2/3 x AWW for widow(er) and child(ren)

20%-25% for dependent parents, grandparents, brothers, sisters if no widow, widower, or children

Examples of Sec. 8(c) schedule

100% of arm = 213 weeks

100% of leg = 288 weeks

100% hand = 244 weeks

100% foot = 205 weeks

100% loss of hearing – binaural = 200 weeks

Example – 20% permanent impairment to leg = 20% x 288 weeks x weekly compensation rate

Key Reporting Forms

LS-1, Request for Treatment

LS-202, Employer’s First Report of Injury

LS-206, Report of First Payment

LS-207, Notice of Controversion

LS-208, Notice of Final Payment

LS-203, Claim for Compensation

LS-18, Pre-Hearing Statement

LS-200, Report of Earnings

LS-262, Claim for Death Benefits

LS-201, Notice of Injury

Concurrent Jurisdiction

Concurrent States – AL, AK, CA, CT, DE, GA, IL, MA, MI, MN, MO, NC, NY, RI, SC, TN, WV, WI

Exclusive States – FL, HI, IN, KY, LA, ME, MD, MS, NJ, OH, OK, OR, PA, TX, VA, WA

Longshore Act extensions

Defense Base Act – 42 U.S.C. 1651

Outer Continental Shelf Lands Act – 43 U.S.C. 1331

Nonappropriated Fund Instrumentalities Act – 5 U.S.C. 8171

Time Limits for Filing a Claim

Sec. 913(a) – claim must be filed within one year of the awareness of the relationship between the injury or death and employment

Sec. 913(b)(2) – claim for occupational disease must be filed within two years

Delayed Running Times for Filing a Claim

State Act claim being paid – Sec. 13(a) (BRB case law)

Lawsuit terminated – Sec. 913(d)

No Form LS-202 filed by employer – Sec. 930(f)

Incompetent or minor claimant – Sec. 913(c)

While voluntary compensation is being paid, one year from last payment – Sec. 913(a)

No time limit – sec. 49 discrimination claims – Sec. 948(a)

No time limit – claims for medical treatment


LS-202, First Report of Injury – must be filed within 10 days – penalty up to $11,000 per occurrence

Late payment of compensation – 10% – Sec. 914(e)

Late payment of compensation under an Award – 20% – Sec. 914(f)

Failure to insure – up to $10,000


Sec. 904(a) – every employer must insure the payment of compensation; if subcontractor fails to insure, then contractor liable

Sec. 905(a) – if employer fails to insure, the injured employee has an election of remedies (tort or compensation)

Sec. 932 – USL&H insurance carrier must be authorized by U.S. Department of Labor

Sec. 932 – USL&H self-insurer must be authorized by U.S. Department of Labor

Sec. 938(a) – criminal liability, and joint and several liability for corporate officers


Jones Act crewmembers – Sec. 932(3)(G)

Government employees – federal, state, local

Recreational vessel amendment – check with an AEU expert

1984 amendment exclusions – Secs. 902(3)(A)-(F) – check with an AEU expert

Intoxication – sole cause – Sec. 903(c) – check with an AEU expert

Willful intent to injure or kill – 903(c) – check with an AEU expert

Small vessel facility exemption – Sec. 903(d) – check with an AEU expert

Next – Part Two – What to do if an accident occurs

John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers Compensation Programs, as the Chief, Branch of Insurance and Financial Management, and the Acting Director, Division of Longshore and Harbor Workers’ Compensation. Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of the AEU Longshore Blog.


ISSUE: A Brief History of the Longshore Act – Part Two

II. 1927 – 1972Jack_crop 300dpi

In 1927, finally convinced that the only way to provide workers’ compensation protection for land based workers injured over navigable waters was to enact a federal law, Congress passed the Longshoremen’s and Harbor Workers’ Compensation Act.  Section 903(a) set out the coverage, “…only if the disability or death results from an injury occurring upon the navigable waters of the U.S. (including any dry dock)” and no recovery was available under state law. 

Jurisdictional confusion ensued: Congress didn’t exactly solve the problem in 1927.  A major treatise writer characterized the period following enactment as one of “impenetrable confusion”.  It also was described by the Supreme Court as plagued by a “twilight zone” of coverage problems (Davis v. Department of Labor, 317 U.S. 249 (1942)).  A later Supreme Court used the phrase “jurisdictional monstrosity” in its discussion of coverage issues under the Longshore Act (Sun Ship Inc. v. Pennsylvania, 447 U.S. 715 (1980)).

NOTE:  The Davis Court described the situation in a way that is still relevant today.  “These marginal cases fall within a “twilight zone” in which the employees must have their rights determined case by case…. This Court can do no more than bring some order out of the remaining judicial chaos as marginal situations come before us.”  There is never a shortage of marginal cases.

The problem with Congress’ water’s edge solution was that workers were constantly walking in and out of coverage during the course of the workday.  This result was contrary to the goal of nationwide uniformity in maritime matters.  Courts constantly struggled to make sense of the jurisdictional confusion caused by these workers who were land based but worked over water.

The persistent problem of concurrent state and federal jurisdiction arose during this period as courts applied state laws to workers even on occasions when the worker was injured over the water (the Davis case) if the court found that the worker’s activity was “maritime but local”, while in other cases courts found federal law applied to injuries on land.  No one was sure who was covered when or where.

Concurrent state and federal jurisdiction was finally conclusively recognized by the Supreme Court, which found that the Longshore Act “supplemented” rather than supplanted state workers’ compensation laws (Sun Ship, Inc. v Pennsylvania, 447 U.S. 715 (1980)).

Other problems with the 1927 Longshore Act began to surface.  Although the Longshore Act and the Jones Act were mutually exclusive, the courts continued to confuse longshoremen with seamen.  In Seas Shipping v. Sieracki, 328 U.S. 85 (1946), the Supreme Court created the right of a longshoreman to sue a ship owner, who was not his employer, under the warranty doctrine of unseaworthiness.  (This was a seaman’s right, and in a much later Supreme Court decision (McDermott v. Wilander, 498 U.S. 337 (1991)) the Court attributed this result to the Sieracki Court’s confusing longshoremen with seamen.)

As a result of the Sieracki case, vessel owners found themselves liable to longshoremen for damages based on conditions caused partially or entirely by the stevedore employer.  This situation was addressed in a case that gave the ship owner the right to sue the stevedore employer for indemnification for losses paid by the ship owner to injured longshoremen on the basis of the contractual express or implied warranty of workmanlike service from the stevedore employer.  So now stevedore employers had their workers’ compensation loss and then their indemnification liability to the ship owner, (Ryan Stevedoring v. Pan-Atlantic Steamship Corp., 350 U.S. 124 (1956)).

Finally, in 1969, the Supreme Court pointedly invited Congress to amend the Longshore Act.  The dissent in Nacirema Operating Co. v. Johnson, 396 U.S. 212 (1969) protested the incongruity and unfairness of having coverage determined by “where the body falls” and argued instead that the Act was “status oriented, reaching all injuries sustained by longshoremen in the course of their employment”.  There were a total of four injuries in Johnson.  The only injured worker who recovered Longshore Act benefits was the one knocked into the water.  The majority stated that, “The plain fact is that Congress chose the line in Jensen separating water from land at the edge of the pier.  The invitation to move that line landward must be addressed to Congress, not to this Court.”

So, a number of factors had accumulated to put pressure on Congress to make changes in the Longshore Act:

1. The Sieracki seamen problem (unseaworthiness remedy for longshoremen);
2. The Ryan doctrine (warranty liability for stevedore employers);
3. The coverage uncertainties;
4. The $70 per week maximum Longshore Act rate was too low for the relatively highly paid maritime workers;
5. Technology – much of the work done by longshoremen and shipbuilders had moved on to land (crane’s servicing ship’s holds, containerization and pre-fabrication).

It was time for changes.

III. 1972 – 1984

The Longshore Act was significantly amended in 1972.  Among many other changes, Congress accepted the Supreme Court’s invitation and moved the jurisdiction line.  It replaced the water’s edge of 1927 with a two part status and situs test.  The amendments moved coverage landward to “adjoining areas” (situs) for “harbor workers” and others engaged in “maritime employment” (status). 

The 1972 amendments also overruled Sieracki and Ryan.  Remember, the years from 1946 to 1972 saw increasing controversy over the circular liability/double recovery problems of Sieracki/Ryan.   This circular liability situation was eliminated by the 1972 amendments in §905(b), which substituted negligence for unseaworthiness as the longshoreman’s remedy against vessels.  The injured worker could no longer sue the vessel owner for unseaworthiness.  If there was an award under a third party negligence suit (where the vessel owner is the third party), then the stevedore employer is repaid for the compensation benefits that he’s paid.  Also, the stevedore employer could not be sued by the vessel owner for indemnification.  So, the 1972 amendments eliminated the ship owner’s liability to the longshoremen for unseaworthiness and the stevedore’s liability to the ship owner for unworkmanlike service causing injury to workers.  (Under §905(b) of the Longshore Act, the longshoremen still have a negligence action under somewhat limited conditions against the vessel for full recovery.  Any recovery is a credit against compensation paid by the employer, so the longshoremen do not recover twice.)

In passing the 1972 amendments, Congress again sought the goal of a uniform, nationwide compensation system to apply regardless of whether maritime workers were injured on a vessel or in work areas adjoining navigable waters.  The amendments moved the line landward to include not only the traditional injuries on “navigable waters”, but also to so called enumerated areas described as “any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining areas customarily used  by an employer in loading, unloading, repairing, or building a vessel.”  Of course, the precise location and identification of what and where are the “situs” boundary lines – specifically what is an adjoining area – continues to be a subject of much judicial debate.

Congress extended coverage to workers in areas adjoining navigable waters, but it did not intend to extend coverage to everyone who happened to be in a maritime area.  The amendments added the “status” requirement to the newly expanded “situs” test.  The intent was to cover workers who perform some portion of an “integral part” of a maritime activity such as loading/unloading of cargo or ship building or ship repair.  Section 902(3) 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.” 

Note:  The authors of the preeminent textbook on admiralty reference the fact that the status requirement is not limited to the occupations listed in §902(3), but that those trades are only part of the larger group of activities that make up maritime employment.  In fact, they state, “the almost infinite range of the conditions of waterfront employment has been detailed in thousands of cases”.  (Gilmore & Black, The Law of Admiralty, 2nd Ed.)

The key is that compensation should not depend on the fortuitous circumstance of whether the injury occurred on land or over water.  There should be a uniform system applicable to workers who have a “realistically significant relationship to traditional activity involving navigation and commerce on navigable waters”.  (Odom Construction Co., Inc. v. U.S. Department of Labor, 622 F.2d. 110 (5th Cir. 1980) quoting Weyerhauser Co. v. Gilmore, 528 F.2d. 957 (9th Cir. 1975)).

There continue to be differences among the federal circuit courts as to the meaning of the terms “adjoining areas” and “customarily used” and the parameters of the “status” test.  The term “harbor worker” was not defined and continues to be open to interpretation.

Note:  In addition to the jurisdictional changes, the 1972 amendments created the Special Fund assessment, added a cost of living adjustment to weekly compensation paid for permanent disability or related death, changed the requirements for second injury fund relief, protected stevedore employers from indemnity liability to ship owners, and took the responsibility for formal hearings away from the U.S. Department of Labor’s Deputy Commissioners and placed formal adjudicative procedures with the Office of Administrative Law Judges and the Benefits Review Board under the Administrative Procedures Act.

Next Part Three – 1984 to Present

ISSUE: A Brief History of the Longshore Act – Part One

I.      1910 – 1927Jack_crop 72dpi

         General Maritime Law

         U.S. Constitution

         Social Conscience

II.   1927 – 1972

         Longshoremen’s and Harbor Workers’ Compensation Act

         Twilight Zone and Coverage Confusion


III.  1972 – 1984

         Evolution – Out of the Water and On to the Land

         Status and Situs

         Administrative Changes

IV.   1984 – Present



          Uncertainty Zone – Longshore Act, State Acts, Jones Act, FELA


The brief history of the Longshore and Harbor Workers’ Compensation Act (33 U.S.C. §§901) begins in 1927, when the original Act was passed, and includes significant amendments in 1972 and 1984, but the story of the circumstances and events that led to the passage of the Longshore Act begins much earlier.  It involves the history of international maritime commerce and the general maritime law, the U.S. Constitution, social and cultural movements in the United States, the roles of Congress and the Courts in the U.S. system, the limits of state and federal authority, and the continuing development of workers’ compensation law in the United States.

Before there were workers’ compensation laws and liability remedies such as the Jones Act there was the General Maritime Law.  This is international, judge made law that the U.S. courts apply and interpret.  In the event of injuries, seamen covered by the general maritime law are provided with the remedies of maintenance and cure and of general damages under the warranty of unseaworthiness.  The concept of maintenance and cure has been traced back to the Rules of Oleron in the thirteenth century and by tradition probably goes back to the Roman era.  These seamen’s rights were formally adopted in the United States by the Supreme Court in Harden v Gordon, 11 F.Cas. 480 (1823), and defined by the Court in The Osceola, 189 U.S. 158 (1903). 

NOTE:  In Harden v Gordon Chief Justice Story officially adopted seamen as wards of the court, describing them this way, “Seamen are generally poor and friendless, and acquire habits of gross indulgence, carelessness, and improvidence.”  To this day, courts are very solicitous of the rights of seamen.

General damages under the contractual warranty of unseaworthiness are based on transportation and lost wages, and maintenance and cure provides for housing, food and medical care until maximum medical improvement.  There are no tort damages for pain and suffering, loss of consortium, etc. and no right to a jury trial.  Recovery is not based on negligence, but on the condition of the vessel as not reasonably fit for its intended purpose.

There is a complex history of the general maritime law in the federal courts in the U.S. under the courts’ Admiralty jurisdiction.  But it’s the story of the workers who fell in the gap between the general maritime law and the states’ workers’ compensation laws in the U.S., between state and federal jurisdiction, and between Congress and the Courts that we are interested in.

I.    1910 – 1927

Historical context: The end of the nineteenth and the beginning of the twentieth centuries were periods of social unrest and humanitarian movements in the United States, involving protests over working conditions and the rights of workers in the wake of the abuses of the nineteenth century’s Industrial Revolution.  Following is a very partial list of the violent protests, union organizing, labor strife, etc., which characterized the transition from the Industrial Revolution to the Progressive Era:

1886 – Hay Market Square massacre – bomb explodes among protesters demanding an 8 hour workday;

1886 – American Federation of Labor founded;

1890 – United Mine Workers formed;

1894 – American Railway Union (Eugene V. Debs) strikes the Pullman Company;

1900 – ILGWU founded;

1903 – Mary Harris “Mother” Jones leads a week long march of child mill workers from Pennsylvania to New York;

1908 – Demonstrations in New York for the end of sweatshops and child labor;

1911 – Triangle Shirt Waist Company fire in New York kills 146 sweatshop workers,  mostly young girls.

The time had come for laws assuring workers of prompt, no fault wage replacement and medical treatment for work related injuries.  Workers’ compensation laws represented a compromise between employers and employees.  Workers gave up the right to sue their employers for negligence in a civil suit and in return the employer was required to pay statutory benefits for lost wages and medical costs regardless of fault.  Workers get a range of benefits available more quickly than from civil lawsuits and employers get predictability as to their liability for work related injuries as well as freedom from lawsuits.  Where a workers’ compensation remedy is available it is usually the worker’s exclusive remedy against his employer.

Constitutional problem: The states passed workers’ compensation laws.  But problems arose regarding the states’ authority to legislate workers’ compensation for workers over the navigable waters. 

The U.S. Constitution, in Article III, Section 2(Admiralty Clause) and in Article I, Section 8 (Commerce Clause), gives the federal Congress exclusive jurisdiction in all admiralty and maritime matters for the sake of nationwide uniformity and consistency.

This was the basis of the U.S. Supreme Court’s decision in Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917).  The states’ authority to legislate workers’ compensation stopped at the edge of the navigable waters of the United States, at what came to be called the “Jensen Line”.

What Does “Navigable Waters of the United States” Mean?

The concept of “navigability” has different meanings in different contexts (Kaiser Aetna v. U.S., 444 U.S. 164 (1979)).   In George v. Lucas Marine Construction Co. (28 BRBS 230 (1994), affirmed 86 F.3d. 1162 (9th Cir. 1996), the U.S. Department of Labor’s Benefits Review Board held that the appropriate test for navigability under the Longshore Act was the “navigability in fact” test established in admiralty law.  The Board cited the case of The Daniel Ball 10 Wall. 557, 19 L.Ed. 999 (1871), and quoted the Supreme Court’s definition of navigable:

“Those rivers must be regarded as public navigable rivers in law which are navigable in fact.  And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.  And they constitute navigable waters of the U.S. within the meaning of the Acts of Congress, in contra distinction from the navigable waters of the states, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water.”

In other words – navigable waterways of the United States are used for, or are capable of being used as arteries of interstate or international commerce.

Following Jensen, Congress tried twice to leave workers’ compensation to the states by amending the “Savings to Suitors” clause of the Judiciary Act of 1789.  (“Savings to Suitors” – if you had a common law cause of action in state courts before the Judiciary Act established the federal court system then you still had it after.)  Both times the Supreme Court ruled that these attempts were unconstitutional delegations of power to the states.  (Knickerbocker Ice Co. v. Stewart, 253 U.S. 219 (1922) and Washington v. Dawson & Co., 264 U.S. 219 (1924)).

We were ready for the Longshoremen’s Act.

Next – Part Two – the Longshoremen’s and Harbor Workers’ Compensation Act is passed.