If the Act is to be opened for Amendment, there are other key issues currently the subject of conflict in the jurisprudence that can be addressed.
- The definition of “adjoining” in section 3(a) can be clarified. Currently in the federal Fourth and Fifth Circuits, the word means touching or contiguous with navigable waters in order for a location to be considered a covered situs. In every other circuit, the word means in the neighborhood or vicinity of navigable waters, and the courts apply varying versions of functional and geographic connection tests. This can be fixed one way or the other.
- Currently, Defense Base Act appeals from the Benefits Review Board in some cases go to federal district courts while others go to the federal courts of appeal, depending on the law of the federal circuit. This can be fixed and made uniform.
- Section 33(g) can be amended to correct current Board case law to the effect that the “gross” amount of a third-party settlement rather than the “net” amount is to be used to determine whether the injured worker has met his prior written approval obligation under section 33(g)(1). The Board says use the gross amount. It should be the “net” amount.
- Case law and U.S. Department of Labor proposed regulations can be corrected regarding the phrases “currently receiving” and “newly awarded” in determining what maximum weekly rate applies. The Average Weekly Wage/applicable maximum rate set at the date of injury should apply throughout the claim.
- Maybe an amendment can clear up the question of whether the navigable waters of the United States includes the high seas, and under what conditions, if any, and also whether navigable waters includes the territorial waters and adjoining land areas of foreign countries.
- Finally, here’s a real long shot. Repeal the Longshore Act’s exclusion of “a master or member or a crew of a vessel” in Section 2(3)(G) and the pertinent language in Section 3(e) regarding a credit to the Longshore employer for a Jones Act recovery. Then also repeal the Jones Act’s liability provision granting the negligence remedy to seamen. Presumably, this would result in seamen, including the apparently impossible to define at the margins “crewmembers” of “vessels” being covered under the Longshore Act for workplace injuries.
Seamen, and others on board vessels doing seamen’s work, would still have the general maritime law remedies of unseaworthiness and maintenance and cure. The crewmembers formerly covered by the Jones Act would also have the Longshore Act’s Section 905(b) remedy against the vessel for vessel negligence. They would also still have the Death on the High Seas Act remedy. And they would also have the Longshore Act’s Section 33 remedy against negligent third parties.
What would be accomplished is that employers who don’t own or operate vessels would no longer have to contend with the “Uncertainty Zone”, the overlap between the Longshore Act and the Jones Act where liability often can go either way. This would simplify insurance liability issues and reduce litigation.
There are many other conflicts in interpretation, such as the treatment of “per diem” in calculating the average weekly wage, the coverage issue of workers “transiently and fortuitously” over navigable waters when injured, meeting the evidentiary burden of establishing suitable alternate employment, attorney fees pre- and post-controversion, the “manifest” requirement in occupational disease cases under section 8(f), and so forth that maybe it is better not to try to resolve by legislative amendment.
This concludes my list of potential Longshore Act Amendments.
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.