Yogi 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?
- In the Ninth Circuit the Longshore Act applies on the high seas subject to conditions, but not in the territorial waters of other countries.
- 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.
- 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.
- 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.
ABOUT THE AUTHOR
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 AEU's Longshore Insider.