Are employees of a dinner cruise operation covered by the Longshore and Harbor Workers’ Compensation Act (the Act) for on the job injuries? Or are they excluded from coverage by virtue of Section 2(3)(B) (33 U.S.C. 902(3)(B))?
Section 2(3)(B) states that “individuals employed by a club, camp, recreational operation, restaurant, museum, or retail outlet” are employees excluded from coverage under the Act.
There are many individual classes of employees involved in a dinner cruise operation, which presumably involves a vessel. There are captains, mates, deckhands, engineers, maintenance workers, cooks, waiters, bartenders, dishwashers, service and supply workers, security, sales, clerical, etc.
There are choices of remedies for on-the-job injuries, including the Jones Act, the general maritime law, the Longshore Act, and state act workers’ compensation.
There are a lot of moving parts. To address the question of whether a dinner cruise employee is excluded from coverage under Section 2(3)(B), we’ll start with some general principles and some assumptions.
- Whether or not the exclusion applies probably depends on the nature of the employing enterprise rather than the duties of the employee. This means that an employee who is doing what otherwise would be maritime employment, such as vessel maintenance, but is employed by a “recreational operation” would likely be excluded from the Act’s coverage under Section 2(3)(B).This is not certain however.There has not been very much case law on this issue regarding recreational operations and section 2(3)(B).
- Those employees who qualify for the seaman’s remedies under the Jones Act and the general maritime law are excluded from the Act’s coverage by virtue of Section 2(3)(G), and they are most likely also excluded from state act workers’ compensation.
- Those employees who work on board the dinner cruise vessels, but who do not qualify as crewmembers would most likely be covered by the Act by virtue of Perini (work over the water) unless they are excluded under one of the statutory exclusions.
- A dinner cruise operation owns vessels, and in fact, this is where most of the employees’ duties are involved (or are in connection with);
- Many of the employees most likely qualify as crew members, from the captain down to the waiters;
- Most of the rest of the employees are likely covered by the Act either because they are involved in maritime employment such as ship maintenance or repair or loading and unloading, or in the alternative because they are working over the water (Perini);
- Some of the employees, who do not qualify as crew, and who are not covered by the Act because their job duties do not include maritime work, and who work only on land, may be covered by state act workers’ compensation.
Limited Case Law
With these general principles and assumptions in mind, is a dinner cruise a “recreational operation” as the term is used in Section 2(3)(B)?
I don’t know of any case law directly on point. By way of a very broad analogy, there is the case of Bazor v. Boomtown Belle Casino, a federal Fifth Circuit Court of Appeals case in which the Fifth Circuit reversed the U.S. Department of Labor’s Benefits Review Board (BRB) and found that the claimant was excluded under Section 2(3)(B). The claimant was involved in traditional maritime employment in the vessel construction phase of a floating casino. The U.S. Department of Labor’s Benefits Review Board (BRB) found that he was covered by the Act due to the nature of his duties, but the Fifth Circuit ruled that he was excluded because he was employed by a “recreational operation”. The case, and the application of the exclusion, in the opinion of the Fifth Circuit, turned on the nature of the employing enterprise rather than the duties of the employee.
So, if a floating casino is a “recreational operation” under Section 2(3)(B), is a dinner cruise also a recreational operation? At least in the Fifth Circuit? I don’t think we know for sure.
It isn’t clear what a “recreational operation” is. We can probably assume that operations that rent kayaks, canoes, paddleboards, scuba gear, etc., are recreational operations. And the same would be true for waterparks and other like activities located on or near the water.
But I would not have a lot of faith going forward that, even in the Fifth Circuit, a dinner cruise operation would be considered “recreational” for application of Section 2(3)(B). Also, outside of the Fifth Circuit, I would not assume that in all cases the question turns only on the nature of the employing enterprise without regard to the employee’s duties.
My best guess is that dinner cruise employees are not subject to the Section 2(3)(B) exclusion, because a dinner cruise is not a recreational operation but more of a traditional maritime activity involving a vessel in navigation.
Fortunately, there is a solution to this type of coverage uncertainty issue. If there is any doubt whatsoever, get insurance coverage under the Longshore Act.
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.