ISSUE: Situs, Navigable Waters of the United States

Jack_crop 72dpiOn June 11, 2013, I mentioned the Joseph Tracy case, in which the federal Ninth Circuit Court of Appeals held that the Longshore Act did not apply in the territorial waters of foreign countries or their adjoining land areas. I mentioned that the Ninth Circuit’s holding was at odds with the existing precedent of the U.S. Department of Labor’s Benefits Review Board, and there was uncertainty as to what the other federal circuits and the Benefits Review Board would do with this issue going forward.

On June 17, 2013, the U.S. Supreme Court denied a petition for a writ of certiorari in the Tracy case, so this uncertainty will not be resolved at the present time.

While we’re on the subject of situs and what the courts outside of the Ninth Circuit will do with the issue of foreign territorial waters, there are some brief points that I’d like to make in response to recurring situs questions. This involves, in addition to the foreign territorial waters in the Ninth Circuit, the question of what other bodies of water are not navigable waters of the United States.

If we can identify the water in question as not navigable right at the beginning of a coverage analysis, we thereby save ourselves the trouble of identifying whether we are in a federal circuit that requires that an “other adjoining area” actually be contiguous with the water, whether the site of the injury had the necessary geographic and functional nexus with the water, whether that structure on pilings is a “pier”, whether Perini coverage may apply, and all of the other questions that may come up in a Section 3(a) situs analysis.

Section 3(a) of the Longshore Act (33 U.S.C. 903(a)) states that “… 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 ….”

In Longshore Act cases the courts interpret the phrase “navigable waters of the United States” under the relatively straightforward “navigable in fact” test. That is, is the waterway used, or capable of being used, to carry interstate or international commerce?

This is a manageable test as these things go, but sometimes you have to take a close look at the facts.

For example, a large, landlocked, and apparently intrastate lake such as Lake Cayuga in New York State is a “navigable waterway of the United States” because on closer examination it is connected to the Erie Canal by a waterway capable of carrying commerce. But, keeping in mind this exception, lakes, regardless of how large and commercial, that are completely within one state are not navigable waters of the United States

There are other bodies of water that can be confidently (as far as this is ever possible with any issue under the Longshore Act) classified as non-navigable.

For example, man-made or naturally occurring reservoirs dammed at both ends by permanent dams, entirely within one state, are not navigable waters of the United States. They do not carry interstate commerce.

Bodies of water permanently withdrawn from adjacent rivers and located within industrial or manufacturing installations, for example, to be used in heating and cooling systems, are not navigable waters of the United States. Navigability ends at the point at which the water is withdrawn from the navigable source.

For that matter, Section 3(a) says “upon the navigable waters”. It is probable that work performed under the ocean floor, such as tunnel digging, would not be considered “upon” the water, and such work would thus fail to meet Longshore Act coverage on the question of situs.

A slightly more difficult question involves locations where navigable waters run into marshy areas that are shallow and overgrown with vegetation. It is difficult to pinpoint where the waterway becomes non-“navigable”. At some point, though, vessels can no longer proceed and the means of transportation must be replaced by specialized boats or portable structures erected and dismantled at the job site. At some point the situs becomes non-navigable.

The essential characteristic for situs is navigability and the key element is interstate or international commerce.

Longshore Act Question Number 14

What Are the Navigable Waters of the United States?

The answers to two previous questions have referenced the “navigable waters of the United States” as part of the “situs” requirement for Longshore Act coverage in section 903(a). So it’s overdue that we come up with an answer to question number 14 in the series of Top Ten Longshore Act questions.

The Longshore Act does not define “navigable waters of the United States”. You may have had occasion to come across definitions used by the U.S. Army Corps of Engineers, the U.S. Coast Guard, or in the provisions of various environmental statutes such as the Clean Water Act.

The Longshore Act does not use any of these definitions. In a Longshore Act adjudication before the U.S. Department of Labor’s Benefits Review Board, the definition of navigable waters will be taken from the case of The Daniel Ball, 10 Wall. 557, 19 L.Ed. 999 (1871), in which the Supreme Court stated,

(Rivers) are navigable in fact, when they are used, or susceptible of being used, in their ordinary condition, as highways of commerce, over which trade and travel are or may be conducted … and they constitute navigable waters of the United States, in contradistinction from the navigable waters of the State, when they form in their ordinary condition by themselves, or by uniting other waters, a continued highway over which commerce is or may be carried on with other states or foreign countries.

This so called “navigable in fact” test means that the water at the site of the injury is capable of carrying cargo in interstate or international commerce or joins up with other waters that are capable of carrying cargo in interstate or international commerce.

The key is a connection or “nexus” with interstate commerce.

This is why the Croton Reservoir, in New YorkState, is not a navigable water of the United States. It is a landlocked body of water entirely within one state.

This is also why Cayuga Lake, also within New YorkState, is a navigable water of the United States. It is connected to the Erie Canal system.

The question of whether a body of water is a navigable water of the United States under the Longshore Act can sometimes present a complicated factual issue.

Just look for interstate or international commerce.

Top Ten Longshore Questions

As I’ve said, over the years the same Longshore questions have been coming up again and again, and now with AEUs Longshore BLOG there’s a source where these questions can be answered. So here’s my list of the “Top Ten” recurring Longshore questions:

16. Does the Longshore Act apply only to U.S. citizens?

15. Does the Longshore Act apply overseas?

14. What are the “navigable waters of the United States”?

13. What is a subdivision of a state government?

12. Can you exclude corporate officers under the Longshore Act?

11. Can small employers opt out of the Longshore Act?

10. How do you measure the 10 day rule for paying Formal Awards under §914(f)?

9. Does the Longshore Act apply in Guam? In Puerto Rico? In the Virgin Islands? In

the Commonwealth of the Northern Marianas?

8. What does “joint and several” liability mean? And what does “several not joint”

liability mean? And why is this very important?

7. Why is Longshore Act insurance so expensive?

6. Is the Longshore Act fair to employers?

5. What’s the difference between the Longshore Act and the Jones Act?

4. What is a vessel? What is a crewmember?

3. What is the difference between state act comp and the Longshore Act?

2. Where can I buy Longshore Act insurance?

1. Do I need Longshore Act insurance?

The answers to these, and any other questions introduced by BLOG visitors, will be offered in upcoming postings. In the meantime, if there’s a particular question you are interested in please leave a comment with your question.