Longshore Act Questions - Coverage
Sep 28, 2016
- Jack Martone, The American Equity Underwriters, Inc.
There’s one thing (at least) that you can say about the Longshore and Harbor Workers’ Compensation Act. It’s never dull.
Questions come up everyday as brokers and underwriters, claims specialists and even attorneys, seek to resolve uncertainties, particularly in the areas of coverage and jurisdiction.
I’ve selected some of the recent inquiries that I’ve seen, and I’ve offered my brief, initial thoughts on these questions. They have been selected because variations of these questions arise regularly.
Question Number 1
Are foreign workers coming temporarily to the United States to do work that meets status and situs covered under the Longshore Act?
The answer, of course, is yes. And the fact that the employer is a foreign corporation does not change this. Any employer, foreign or domestic, can be an “employer” under the Longshore Act. For purposes of situs and status the nationality of the employer or employee is not relevant, nor is the duration of the work assignment or contract.
Question Number 2
Are river pilots covered under the Longshore Act?
My answer here is an easy one, and it is the same as the answer to many other coverage questions that arise under the Act. The answer is, “it depends”. If these pilots can establish seaman status then they would be covered under the Jones Act (tort recovery based on negligence) and the General Maritime Law (warranty of seaworthiness and maintenance and cure, transportation and wages). The Longshore Act expressly excludes seamen, or members of the crew of any vessel, in Section 902(3)(G). If the pilots cannot meet seaman status under the Chandris v. Latsis test, because, for example, they do not satisfy the duration requirement (30% rule) in relation to any vessel or fleet of vessels under common control or ownership, then they would most likely be covered by the Longshore Act pursuant to Director, Office of Workers’ Compensation Programs, U.S. Department of Labor v. Perini, 459 U.S. 297 (1983), since they are working over the navigable waters.
Question Number 3
Are construction workers coming onto a waterfront terminal property to repair buildings damaged by a storm covered by the Longshore Act?
Under the principle that it is very difficult to ask any coverage question under the Longshore Act and get an unqualified “yes” or “no” answer, my answer here is a conditional yes. There are several considerations that apply. We know that not only are the traditional maritime workers who load and unload cargo, and who build or repair ships, covered by the Act, but workers who build, repair, or maintain the buildings and equipment used in such traditional maritime activities are covered. Construction worker coverage cases often involve two questions: does the work being done involve an inherently maritime structure, and at the time of the work is there on going maritime activity taking place? Two “yes” answers will get you coverage, but one or two “no” answers complicates the issue.
NOTE: You can tell if you are dealing with a true Longshore Act expert if they are unable to answer even the most seemingly simple question with a straightforward yes or no.
Question Number 4
Are workers such as union representatives visiting and touring a maritime job site covered by the Longshore Act?
The best I can do with this one is, probably not but there’s a catch. Even though these workers are on a covered situs, they also must meet maritime status under the Act. In other words, their jobs must be integral or essential to the ongoing maritime activity. To put it another way, would non-performance of their job interrupt or interfere with the maritime activity? Under this test, these workers probably do not meet status. What’s the catch? Perini again, which holds that if they are over the water on the job they do not have to meet status. Situs over the water confers status. So there may be some limited Longshore Act exposure there.
NOTE: An insurance broker may ask, “Am I covered under the Longshore Act if I meet with my insured at their terminal or shipyard”? It’s the same answer. Probably not, but watch out for Perini.
NOTE: I don’t think that the so-called “vendor” exclusion in Section 902(3)(D) would apply to these workers, since they are not employed by either a vendor, supplier, or transporter.
Question Number 5
Is work on domestic U.S. military bases covered under the Defense Base Act (DBA)?
Finally, an easy one, but again there’s a catch. The DBA only applies outside the continental United States, which for the DBA includes Alaska and Hawaii. The Act also applies in all U.S. Territories (or small “t” territories for that matter). The exception is that the DBA does not apply on Guam under the terms of a U.S. Department of Labor waiver.
What’s the catch? There have been instances (well, at least one that I know of), where the U.S. Government contract, to be performed outside the continental U.S., involved the reporting and brief training of employees stateside before they left to go overseas. It seems that the DBA may apply in this narrow instance. So, there goes our unqualified answer.
So that’s the first five. I’ve got a lot more examples of recurring questions, and I’ll list more in the future.
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.