ISSUE: High Seas, Foreign Waters

Jack_crop 72dpiYogi Berra might have said this.  “Some questions always come up, because they don’t come up that often.”   You know.  Sort of like, “Nobody goes there anymore.  It’s too crowded”.

Questions continue to come up with regard to U.S. workers going overseas, either on the high seas or in foreign waters, to do work that would meet the maritime “status” requirement for Longshore Act coverage if done on or adjoining the navigable waters of the United States in the conventional sense.

We are assuming that these high seas/foreign waters workers meet “status”, so this is strictly a “situs” issue.

It has been a safe bet that the Longshore Act applies on the “high seas”, subject to conditions such as contacts with the U.S. and the temporary nature of the work assignment.  The problem has been, and still is, with regard to foreign territorial waters.

We have the U.S. Department of Labor’s Benefits Review Board’s decision in Weber v. S.C. Loveland Co., 35 BRBS 75 (2001) aff’d on recon., 35 BRBS 190 (2002) for the proposition that the Longshore Act coverage extends to the territorial waters of foreign countries.  The Board’s rationale is based on the language of section 39(b) of the Longshore Act, which authorizes the Secretary of Labor to establish compensation districts to include the high seas, and provides for judicial jurisdiction for proceedings involving injuries occurring on the high seas.  The Board also cited the trend in Admiralty law to extend federal maritime jurisdiction into foreign waters to provide uniform coverage for American workers.

But in Keller Found./Case Found. v. Tracy, 696 F.3rd 835 (9th Cir. 2012), the federal Ninth Circuit Court of Appeals (states of WA, OR, MT, ID, CA, NV, AZ, AK, HI) accepts the proposition that the Longshore Act applies on the high seas, but the court states, “we hold that foreign territorial waters and their adjoining ports and shore based areas are not the ‘navigable waters of the United States’”.  The court cited the strong presumption that enactments of Congress do not apply extraterritorially, and did not find strong enough intent in the Longshore Act to overcome this presumption.

To further muddy the waters, in Kollias v. D.G. Marine Maintenance, 29 F.3rd 67 (2nd Cir. 1994) the federal Second Circuit (states of NY, CT, VT) opined that the Longshore Act covers injuries on the high seas without qualification and that in section 39(b) the court found Congressional intent to overcome the general presumption against extraterritoriality.

So what’s our best guess today with regard to American workers overseas performing maritime employment?

  1. In the Ninth Circuit the Longshore Act applies on the high seas subject to conditions, but not in the territorial waters of other countries.
  2. Outside of the Ninth Circuit, the Longshore Act applies on the high seas also subject to conditions, but the issue of coverage in foreign territorial waters is uncertain.
  3. Will Circuits other than the Ninth follow the rationale of the Board in Weber (and for that matter will the Board continue to follow its own precedent in the wake of Tracy), or will the Circuits split? It may be worth noting that the Board did not disturb its opinion in Weber when Tracy went through on its way to the Ninth Circuit. Rather, the Board distinguished Tracy in that Mr. Tracy was based overseas from 1998 to 2002, not temporarily, and his trips did not begin and end in the U.S. This prolonged foreign assignment did not meet the conditions of Weber for Longshore Act coverage.
  4. Until the issue of situs in foreign territorial waters is clarified, maritime employers whose cases are likely to end up in a Circuit other than the Ninth should get Longshore Act coverage for their employees who are going overseas to perform maritime work.

Note:  if the overseas work is on a U.S. military base or pursuant to a government contract, be thinking about the Defense Base Act.

Note:  Will your case end up in the Ninth Circuit?  The location of the Office of Workers’ Compensation Program’s District Director who serves the Order of the Administrative Law Judge controls jurisdiction.  Cases are usually assigned to the District Director closest to the injured worker’s residence.

The jurisprudence is somewhat sparse, but not non-existent, but unfortunately what exists is not uniform.

So, once again we look to Yogi Berra, who almost certainly never said, “When you come to a fork in the road – take it.”

When there’s any doubt, play it safe and get coverage.

Notwithstanding the above discussion, some aspects of overseas coverage are clear.  The navigable waters of the United States includes the Territories and the territories, such as Guam, American Samoa, the U.S. Virgin Islands, the Commonwealth of the Northern Marianas, Gilbert and Solomons (not Sullivans), etc.

Note:  The Longshore Act does not apply in Puerto Rico, but the Defense Base Act does.  The Defense Base Act does not apply in Guam, but the Longshore Act does.

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: Situs: High Seas, Foreign Territorial Waters

Jack_crop 72dpiThere is one current Longshore Act coverage question that I don’t feel comfortable with.

The question is usually along the lines of, “We’re sending workers overseas to do ship repair work (or some other work that meets Longshore Act ‘status’). Will the Longshore Act apply?” So, it’s a “situs” question, involving overseas work.

Things used to be uncertain enough with regard to this issue. Now the federal Ninth Circuit Court of Appeals has issued an opinion that clarifies the issue in the Ninth Circuit (states of WA, OR, MT, ID, CA, NV, AZ, AK, HI) but emphasizes the open nature of the question everywhere else.

Before the Ninth Circuit’s decision in Joseph Tracy v. Keller Foundation, Inc./Case Foundation Co. and ACE USA/ESIS v. Global Offshore Int’l, Inc. and Liberty Mutual Insurance Co.; and Director, Office of Workers’ Compensation Programs, the issue of whether the Longshore Act applied on the high seas and the territorial waters of other countries was difficult but manageable; there was just enough doubt to justify the opinion that an employer with Longshore Act workers on the high seas and in foreign territorial waters and adjoining areas should get Longshore coverage just to be safe.

It was a safe bet that the Longshore Act applied on the high seas, subject to conditions such as contacts with the United States and the temporary nature of the work assignment. And with regard to foreign territorial waters, although no federal circuit court had ruled on the question, we did have the Benefits Review Board’s decision in Weber v. S.C. Loveland Co. (28 BRBS 321 (1994)) for the proposition that Longshore Act coverage extended to the territorial waters of foreign countries. The Board’s rationale was based on the language of Section 39(b) of the Longshore Act, which authorizes the Secretary of Labor to establish “compensation districts, to include the high seas” and provides for judicial jurisdiction for proceedings involving injuries occurring on the high seas. Also the Board cited what it perceived as the trend in admiralty law to extend jurisdiction into foreign waters to provide uniform coverage for American workers, especially when all contacts, except for the site of the injury, are with the U.S. and the duration is temporary.

But now we have the Ninth Circuit’s decision in Tracy. The Court accepts the proposition that the Longshore Act applies on the high seas, but states, “… we hold that foreign territorial waters and their adjoining ports, and shore based areas are not the ‘navigable waters of the United States’ as the Act defines that phrase.” (Sorry, the Act does not define that phrase.) The Ninth Circuit also said that, “A determination that the Act applies to the high seas, where no single nation is sovereign, cannot compel the conclusion that Congress also intended the Act to apply to the territorial sea, internal waters, and adjoining land of other nations, ….” The Ninth Circuit cited the “strong presumption that enactments of Congress do not apply extraterritorially.”

So, now we know that at least for the Ninth Circuit the Longshore Act will not apply in foreign territorial waters, since the “situs” requirement for coverage is not met.

But how will this question be decided in the other Circuits? And the Board’s last word on the issue is Weber, which applies the Longshore Act in foreign territorial waters. In the Ninth Circuit, the Board will follow Tracy, but what will the Board do everywhere else, and what will the other circuits do? Who knows at this point?

While we have a clear decision in the Ninth Circuit, we have increased uncertainty with regard to injuries occurring within the jurisdiction of the other federal circuits. And it’s not easy to explain how, under a law which derives its rationale from the Admiralty and Commerce clauses of the federal Constitution and the need for uniformity in maritime matters, you will possibly get different answers to the same question in the different federal circuits (not that this situation is unique to this issue).

What’s the best answer today?

In the Ninth Circuit, the Longshore Act applies on the high seas subject to conditions, but not in the territorial waters of other countries.

In circuits outside of the Ninth, the Longshore Act probably applies on the high seas subject also to conditions, but we don’t know about the issue of foreign territorial waters. Will the other circuits follow the rationale of the Benefits Review Board in Weber, or will they follow the Ninth Circuit’s rationale in Tracy, or will they split?

Time will tell. In the meantime, maritime employers outside of the Ninth Circuit who are sending Longshore workers to foreign territorial waters or adjoining areas should get Longshore Act coverage for those workers. Where there’s any doubt at all, get coverage.

ISSUE: Recurring Question

Some questions come up over and over again.  One such question involves foreign workers and/or foreign employers in the United States.  Does the Longshore Act cover foreign workers?  Does the Longshore Act apply to foreign companies?  The answers are yes.

If we look at the definitions and coverage provisions in the Act we do not find anything that pertains to nationality or citizenship, with one minor exception.

Section 2(3) (33 U.S.C. 902(3)) defines “employee” as, “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 …”. 

Section 2(4) defines “employer” as, “an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel)”.

Section 3 is the Coverage provision.  Section 3(a) states, “… 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 (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel).”

Section 3(b) states that, “No compensation shall be payable in respect of the disability or death of an officer or employee of the United States, or any agency therof, or of any State or foreign government, or any subdivision thereof.”

So that’s it.  Section 2(3) is the “status” provision, and Section 3(a) is the “situs” provision.  Together they provide the tests for coverage for employees under the Longshore Act.  A maritime employer is any employer who employs a worker who meets the “status” and “situs” tests.

With the exception of employees of a foreign government, there is no nationality or citizenship component to Longshore Act coverage.

If a domestic U.S. company hires foreign workers to work in the U.S., either permanently or temporarily, these workers are covered by the Longshore Act if they meet the status and situs tests.

If a foreign company sends foreign workers to work in theUnited States, either permanently or temporarily, these workers are covered by the Longshore Act if they meet the status and situs tests.

All employees, working in maritime employment on covered sites as specified in Section 3(a), and not specifically excluded somewhere else in the Act, are covered.  Nationality or citizenship is not part of the coverage analysis.  It all comes down to status and situs, period.

Now bear in mind that we’ve been discussing the coverage issue of foreign workers working in the U.S. The coverage issue presented by U.S. citizens working overseas or on the high seas is an entirely separate question.  We discussed this back on August 21, 2009, and we will have the opportunity to pick up the issue again when the Ninth Circuit issues its decision in the pending appeal of Joseph Tracy v. Keller Foundation, Inc./Case Foundation Co. and ACE USA/ESIS v. Global Offshore Int’l, Inc., Liberty Mutual Insurance Co., and Director, Office of Workers’ Compensation Programs (Ninth Circuit Nos. 11-71703, 11-71800)(Yes, that is a long caption with a lot of parties).  This case involves aU.S. citizen performing maritime work in Singapore and Indonesia.  One issue is, “Does the Longshore Act cover an American citizen injured on foreign territorial waters in the course of his maritime employment?”

Finally, congratulations to David Widener, who has been selected for the position of Longshore District Director in the U.S. Department of Labor’s Houston district office.  Dave, formerly with The American Equity Risk Services (AERS),ALMA’s claims unit, and most recently with the Department of Labor as a Claims Examiner in the DOL’s Houston office, is an excellent choice.