I’m three miles away from the water. I can’t possibly need USL&H insurance!”
Don’t be too sure. Let’s talk about situs, again (see previous discussions, for example, October 12, 2011
By way of introduction, AEU offers a 4 hour class in the Longshore Act which is approved for Continuing Education credits for producers and CSRs in many states.
During the class, the coverage concept of “situs” is discussed at length.
In the process of discussing situs, a misconception occasionally arises to the effect that at a certain distance from the water there is a line where the Longshore Act stops. The distance varies, but for example the idea is that, “the Longshore Act stops 100 feet from the water.” It should be so easy.
The question can be framed as, “How far is too far?” In other words, is there some distance that is automatically too far from navigable waters to even be considered as a possible “other adjoining area” under Section 3(a) of the Act? Is there an invisible line at some point where the usual geographic and functional analyses are no longer necessary simply because of the distance involved?
Let’s start at the beginning. Section 3(a) of the Longshore Act, the situs provision, states, “Except as otherwise provided in this section, 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).”
In previous discussions, we’ve seen how various courts use their own versions of geographic and functional analyses to determine whether a location is an “other adjoining area”. Typical are the so-called “Herron factors” used by the federal Ninth Circuit Court of Appeals. These include consideration of the particular suitability of the site for maritime uses, whether adjoining properties are devoted primarily to maritime commerce, proximity of the site to the waterway, and whether the site is as close to the waterway as feasible given all of the circumstances in the case.
The purpose is to determine whether the general location of the injury, not the pinpoint spot where it happened, but the surrounding area, is characterized by maritime activity, i.e., loading and unloading of ships and building, dismantling and repair of vessels.
And we’ve also seen that the federal Fourth Circuit Court of Appeals uses a different approach. In the Fourth, “adjoining” means adjoining. That is, to be considered an “other adjoining area”, a site has to be adjacent to or contiguous with the water.
So, everywhere except the Fourth Circuit, we are looking at a two part functional and geographic analysis which takes into account several factors, of which distance from the water is only one. If the claimant is not injured on navigable waters or on an enumerated site (pier, wharf, dry dock, terminal, building way, or marine railway), the question is whether the injury occurred in an “other adjoining area” which is in the vicinity, neighborhood, or general area of navigable waters (geography) and is customarily used for maritime activity related to that navigable water (function).
Let’s assume for the rest of this discussion that the area in question has a functional connection with maritime activity, for example, a container repair yard or tool maintenance and storage facility. Typically it seems that these types of operations are moved back from the water because of space limitations at the terminals (space needed for storing cargo). So, we can consider the remaining test, geography.
Logically, at some point from each body of water the geographic analysis must become stretched to the breaking point. You have maritime activity, performed by workers who meet the status test for coverage, in an area that is simply too far from the water to constitute an “other adjoining area”. Simple rules are good. Courts use them. For example, if you spend less than 30% of your time working on board a vessel then you are probably not a Jones Act seaman. If you worked 75% of the preceding year in your regular employment, then you get credit for 100% in your average weekly wage calculation. So how about, three miles away is automatically not a covered situs under Section 3(a)?
It’s not so simple. In a recent case involving a maritime facility over 3 miles away from the water, the Court engaged in a Herron type analysis of the area, including consideration of the use of surrounding properties and site selection considerations. It would have been easy to say, “Three miles is too far – there is no geographic nexus.” But we don’t have that automatic line.
Don’t take anything for granted. A distance test, even one at the fringe or extreme, would be helpful, but distance from the water, any distance, is only one factor to be considered in a situs analysis. Each case has its own specific facts, and each case must be analyzed on its own. Always bear in mind that the courts interpret the Longshore Act liberally, and this extends to questions of coverage.
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.