An interesting question came up recently involving the issue of “situs” under the Longshore Act. I thought that I’d discuss it here and in the process review the whole “situs” concept. Looking back over previous discussions, it seems that I’ve spent more time on “status” than on “situs” anyway.
For reference, here are some previous topics:
11/23/09 – Can You Exclude Corporate Officers?
01/20/11 – Coverage – Truck Drivers
04/13/11 – Coverage – Divers
07/19/11 – Part Time Coverage
09/13/11 – Coverage – Railroad Workers
08/28/09 – Does the Longshore Act Apply Overseas?
09/29/09 – What Are Navigable Waters of the U.S.?
09/23/10 – Perini Coverage
06/10/10 – Oil Spill Dilemmas
07/13/10 – Coverage – Bridges
So, first some general principles with regard to “situs” and then I’ll get to that interesting question.
(33 U.S.C. 903(a)) 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)
– “Situs” is determined by the nature of the location of the injury as of the time of the injury.
– It matters which federal Circuit the injury arose in. In the Fourth Circuit (VA, SC, NC, MD, WV) “other adjoining area” usually means an area that is contiguous to or actually touches the water, while the other Circuits use an analysis that involves both geography and function to determine “situs”.
– There is case law holding that the Longshore Act applies on the high seas within certain limitations and conditions.
– “Navigable waters of the United States” most simply means water that carries or is capable of carrying interstate or international commerce.
– The “enumerated sites” in section 903(a) (pier, wharf, dry dock, terminal, building way, marine railway) probably do not have to be customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel in order to qualify as covered sites, but again this could vary in degree among the federal Circuits.
– Distance from the water is not necessarily determinative. You can be over a mile away from the water, or otherwise in the vicinity of navigable waters, and “situs” will depend on why you’ve located there, the use of the surrounding properties, what’s between you and the water, and what your functional relationship with the water is.
– The Longshore Act applies in Guam, the U.S. Virgin Islands, and the Commonwealth of the Northern Marianas, but does not apply in Puerto Rico.
– Both “situs” and “status” must be separately satisfied for Longshore Act coverage.
– Mixed use properties (for example, loading/unloading and manufacturing) can be tricky. If there are separate, distinct facilities for both maritime and non-maritime use within the same property boundaries, you may have both covered and non-covered sites. A property can be adjacent to navigable waters and still not be a covered “situs” if it is not customarily used for maritime activity.
Those are some general principles with regard to “situs”. Now, here’s a question that came up recently.
A container repair facility operates along a highway and basically across the street from a navigable river. The containers that it works on arrive and depart exclusively by truck from a port that is eight miles away down the highway. Is this facility a covered “situs”?
It does adjoin a navigable water (the river), and it is used for maritime activity (container repair). Its container repair employees do meet the “status” requirement for Longshore Act coverage.
So is it a covered “situs”? In my opinion, it is not. Although it satisfies the geographic nexus part of the “situs” test since it is right across the street from the navigable river, does it meet the “function” test? My assumption here is that both geography and function must be in relation to the same body of water. This facility’s function is related to the port where the containers come from, which is eight miles away from the facility. Although distance from the water is not necessarily determinative, I think that eight miles is too far to satisfy the geographical nexus requirement.
So, this container repair facility satisfies the geography test in relation to the river and the function test in relation to the port, which is eight miles away. Since in my opinion both tests must be satisfied in relation to one (the same) body of water, this facility is not a covered “situs”, even though it is conducting maritime activity along a navigable waterway.
Actually, what at first appears to be an anomalous concept, that is, a container repair facility located next to a navigable waterway that is not a Longshore Act covered situs, is clearly supported in the case law (see, for example, Cunningham v Bath Iron Works Corp.
, 37 BRBS 76 (2003).
Summary – you can have a functional relationship to one body of navigable water that is too far away – and a geographical relationship to a different navigable body of water that you do not use – result – you do not meet the “situs” requirement for Longshore Act coverage.
It’s a pretty interesting situation.
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.