The semi-annual AEU Safety and Claims Forum is coming up this October in San Francisco. These outstanding educational and networking events are attended by those with safety and claims responsibilities for ALMA Members as well as invited guests.
A question occurred to me: are the safety and claims professionals employed by shipyards, cargo handlers, terminal operators, and other maritime employers covered by the Longshore Act?
As we know, the elements of “situs” and “status” have to be separately satisfied for Longshore Act coverage. This discussion only considers the question of “status” for these workers under Section 2(3) of the Act.
Status – General Principles
Section 2(3) states, “The term ‘employee’ means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker ….”
Are these employees engaged in “maritime employment”? Are their occupations maritime in nature?
A worker satisfies the status requirement of section 2(3) if he is an employee engaged in work which is integral to the loading, unloading, constructing, or repairing of vessels. To satisfy this requirement he need only spend at least some of his time in indisputably covered operations. There is no moment of injury test for status; coverage is determined by the nature of the employee’s overall duties.
Status is not limited to those employees directly loading/unloading, building or repairing vessels. Workers who repair or maintain the buildings, facilities, and equipment involved in these operations can also be covered.
Status does not distinguish between management and non-management personnel.
As noted above, in order to meet the status test for coverage a worker’s duties must be integral or essential to the maritime operation.
For those workers in other than the traditional maritime occupations of longshoreman, shipbuilder or ship repair worker, this somewhat elastic concept of “integral” or “essential” often involves questions of (1) whether the worker’s duties, if not performed, would impede or interrupt the cargo or shipbuilding/repair operation, and/or (2) whether the worker is in a position to cause the operation to come to a halt.
We’ve seen cases where janitors, trash collectors, mechanics, security personnel, union officials, roofers, truck drivers (under some circumstances), and other building, repair, and maintenance workers met status. We’ve seen other cases where terminal courtesy van drivers, car washers, nurses, cooks, truck drivers (under other circumstances), and more peripheral janitorial and maintenance workers have not met status.
We’ve also seen “harbor worker” cases where, instead of the test of whether or not the workers’ duties are integral or essential to cargo handling or shipbuilding/repair, the employees’ duties are considered in relation to their importance in furtherance of maritime commerce. Work around breakwaters, piers, seawalls, even drawbridges, or as harbor pilots, divers, or even airborne fish spotters, can meet the status test.
But the most common and prevalent test for “status” is the consideration of duties essential or integral to the cargo or shipbuilding/repair operations.
Safety and Claims
The employees that attend the AEU Forums have a wide variety of job titles, job duties, and responsibilities. The best approach would be to select each employee in turn and conduct a detailed occupational analysis of the overall job duties to make an educated guess as to that employee’s coverage under the Act. But we’ll have to be content with a general discussion of general principles to get a general idea of the maritime “status” of this group of safety and claims workers.
So let’s say that the typical safety professional at a shipyard or terminal is routinely involved in accident investigation, inspection of equipment and procedures, regulatory compliance, cargo security, employee training, maintenance of logs and schedules, and even emergency medical duties and emergency repairs or maintenance of equipment. Claims professionals are also involved in accident investigation, but they usually enter the picture after the fact in handling medical, legal, and administrative aspects of claims.
Are any of these duties integral or essential to the maritime operation? Are any of these duties indisputably maritime in nature? Are these workers typically authorized to call a halt to operations if they discover an unsafe condition? Or even more directly, is their approval or sign off needed before operations can commence?
It seems to me that the typical safety professional at a shipyard or terminal can make a strong case for Longshore Act status. Any number of their many varied duties can meet the “essential” test, such as cargo security, equipment maintenance, and general safety oversight. If some, or several, of their regular duties were not performed, I believe that the maritime operation would be significantly and negatively affected.
For the claims professionals, however, it may be a different story. They are subject to the same integral or essential test for meeting status. But these employees typically become involved after operations have occurred and have resulted in an injury. They are not in a position to interrupt or halt operations, and the non-performance of their duties would not affect the operations which have already taken place. Generally, in my opinion, claims professionals probably don’t meet “status” under section 2(3).
But, claims guys, don’t take it personally. While your jobs may not be “integral” in the section 2(3) “status” sense of the word, they certainly are essential to getting injured workers proper medical care, getting them back to work, and to saving your employer a lot of money in the process.
So based on a quick look, first impression I would say that in my opinion many safety professionals in the maritime industry meet “status” for coverage under the Longshore Act, while most claims professionals do not.
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.