ISSUE: Update – Top Ten Longshore Act Questions – Question Number 4 – What Is a Vessel? – What Is a Crewmember?

Jack_crop 72dpiLongshore Act question number 4 was discussed on the AEU Longshore Blog back on March 31, 2010.  It’s finally occurred to me that the previous discussion needs to be updated.

What is a vessel?

Neither the Longshore and Harbor Workers’ Compensation Act nor the Jones Act defines exactly what a vessel is, although the question is central to key issues under both laws.

The Longshore Act’s definition in section 2(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 ….”

Parenthetical Note:  Section 2(21) quoted above refers to an injury or death “arising out of or in the course of employment….”  Section 2(2), which defines “injury”, states “arising out of and in the course of employment….”  Usually the distinction between “and” and “or” is significant.  But in this context is it a distinction without a difference?  Is it just a case of careless phrasing?  That’s for an other day.

So, “vessel” is defined in the Longshore Act as “any vessel”.  That’s no help.

We do know from the case law that whatever “vessel” means, it means the same thing under both the Longshore Act and the Jones Act and general maritime law.

Back on March 31, 2010, I mentioned the then recent U.S. Supreme Court case of Stewart v. Dutra Construction Co., a vessel status case involving the Super Scoop dredge at work digging a tunnel in Boston Harbor.  The Court found that the dredge was a vessel, by a broad application of 1 U.S.C. section 3 (1873), which defines a vessel as, ‘every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water”.  The decision seemed to suggest that anything that floats and is not permanently affixed to land was a vessel.

There has been new case law on the vessel question from the U.S. Supreme Court, and thus the need for this update.

On January 15, 2013, the Supreme Court decided the case of Lozman v. City of Riviera Beach, Florida.  The issue was whether Mr. Lozman’s floating home was a vessel, subject to Admiralty jurisdiction.  The federal Eleventh Circuit Court of Appeals had held that it was a vessel, using Stewart’s reasoning.  The Supreme Court reversed, holding that the floating home was not a vessel, interpreting the language of 1 U.S.C. section 3 through the eyes of a reasonable observer looking at the practical characteristics of the craft or contrivance.  As a result, we have a new vessel status test based on this case.

The test is whether, through the eyes of a reasonable observer, the contrivance is practically, not theoretically, designed as a means of transportation of people or things over water.  Of course, this is a case by case test.

The Court itself recognized the nature of the test.  It admitted that its approach “is neither perfectly precise nor always determinative….  Nonetheless, we believe the criterion we have used, taken together with our examples of its application here, should offer guidance in a significant number of borderline cases….  Moreover, borderline cases will always exist.”

So, good luck with the Lozman reasonable observer looking for practical capability based on design characteristics test.

What Is a Crewmember?

For the issue of crewmember status, we’re still using the test from the Supreme Court’s 1995 Chandris v. Latsis, Inc. decision.  There hasn’t been anything more recent.

To qualify as a crewmember, the employee must:

  1. Contribute to the function of the vessel or to the accomplishment of its mission, and
  2. Have an employment connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both duration and nature.

For the “duration” part of the second prong of the test, there is a 30% rule of thumb.  If you spend less than 30% of work time “in the service of a vessel” then you are probably not a crewmember.

The substantial “nature” part of the employment connection test is more problematic.  This test has not worked too well.

In spite of language in Chandris paying lip service to the necessity of separating land based workers from those sailors who go to sea, in the judicial language, the “perils of the sea” has been replaced by the watered down “perils of the maritime work environment” or similar terminology as a necessary element for seaman status.

We’ve certainly seen many examples of live at home “seamen” qualifying for the seamen’s remedies under the Jones Act and the general maritime law.  Construction workers on all manner of special purpose vessels, ship repair and maintenance workers, and even cargo handlers, all of whom in no sense of the word are exposed to the “perils of the sea”, can qualify as daily commuting crewmembers.

There is a recent example of this from the federal Fifth Circuit Court of Appeals (states of TX, LS, MS).  In the case of Larry Naquin v. Elevating Boats Inc. a ship repair supervisor was determined by the jury in district court to be a seaman, and this finding was affirmed by the appellate court.  The injured worker’s job was ship repair and he worked nearly exclusively on moored vessels in a shipyard canal.  He rarely went to sea.

He met the 30% test, because as a ship repair worker he obviously spent most of his time on the ships he was repairing.  To find that ship repair work meets the “substantial nature” employment relationship requirement of the Chandris test, however, for a worker who rarely goes to sea, seems very broad.  Clearly a worker has an employment relationship with a vessel that he is building or repairing, just as an airplane mechanic has a relationship with the airplane he is repairing, but that doesn’t make the mechanic a pilot.

So, it seems to me that Lozman may have somewhat narrowed the application of the vessel status test, or at least didn’t expand it; some things that float may not be vessels.  But the test for crewmember status is becoming more broadly interpreted.

Paradoxically, the Supreme Court’s rejection of the “voyage test” for seaman status, and the Chandris requirement for a substantial employment relationship in terms of duration have prevented workers who actually do go to sea in ships from achieving crewmember status.  Workers such as harbor pilots, divers, and oilfield industry service contractors who typically work on successive short contracts on different vessels often have trouble meeting the 30% test with a single vessel or group of vessels under common ownership.

Maybe one of these days we’ll have a better test for crewmember status.

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.

Longshore Act Question Number 4 – What is a Vessel? What is a Crewmember?

PART ONE – Future Posts

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.