In a past blog post, we discussed the dinner cruise operator’s liability for on-the-job injuries to employees. This time, let’s get more ambitious and consider ocean-going cruise lines.
Ocean-going cruise ships are amazing floating cities, with potentially thousands of passengers, almost as many employees, and an army of contractors keeping the whole venture afloat.
In this article, we’ll review the various exposures for workplace injuries faced by the owner/operator of a typical cruise ship.
For our purposes, we are only interested in liability for injured employees, so a few exclusions apply to this discussion:
Who is considered an employee of the cruise line?Employees of the cruise line who qualify as crew members will be covered for injury, illness, or death (Jones Act, General Maritime Law remedies of unseaworthiness and maintenance and cure, Death on the High Seas Act, the Moragne remedy for wrongful death, etc.) under the vessel owner’s P&I policy.
But there are many workers who do not qualify as crew members, or who are contractors and not employees of the vessel owner. These employees are engaged in activities such as casino operations, entertainment, restaurant operations, retail outlets, pilots, sales, medical, and so on.
The first question would be whether these contract employees qualify as crew members of the vessel.
This is the test for crew status:
Most of the contractor employees probably pass A and B1, but some may have a problem with the substantial duration requirement. This is where a “30% test” comes in. An employee who spends less than 30% of his work time on board a vessel or fleet of vessels under common ownership or control will have trouble establishing crew status. Many of these contractor employees may move around from cruise line to cruise line on a succession of different short-term jobs, and thus fail to establish 30% in relation to one vessel or fleet of vessels.
Is crew status affected by citizenship of the employee or where the cruise vessel is operated?
Even though many cruise vessels are not U.S. owned or operated, and many crew members and other employees are not U.S. citizens, this does not affect the issue of LHWCA coverage for on-the-job injuries. The LHWCA covers workers who meet the maritime tests for “situs” and “status”, unless an express exclusion applies, and none of the exclusions is based on citizenship or nationality.
What about the contractor employees who don’t pass the crew status test? What is their protection for workplace injuries?
Since they don’t qualify for the crew member remedies, the protection for them is workers’ compensation – either state act or the Longshore and Harbor Workers’ Compensation Act (LHWCA).
The LHWCA would seem most likely, since these employees are working over the navigable waters in the course of their employment, so they are covered under the Supreme Court’s Perini decision.
But would any of the LHWCA statutory exclusions apply?
For example, section 2(3)(B) of the LHWCA excludes individuals employed by “retail” outlets. There are many retail operations being conducted on a typical cruise ship. If these retail employees cannot qualify as crew members, the LHWCA retail exclusion would likely apply, and they would be covered by state act workers’ compensation.
Note: A condition of the LHWCA exclusions in Section 2(3)(A)-(F) is that the employee must be covered under state act workers’ compensation. If for some reason they are excluded under their state act, then the exclusion does not apply and they are back under the LHWCA.
Section 2(3)(B) also excludes individuals employed by a “recreational” operation. Arguably, the cruise ship casino employees, if not employed by the vessel owner as crew members, would have a claim to LHWCA coverage by virtue of Perini (Director, Office of Workers’ Compensation Programs, U.S. Department of Labor v. Perini North River Associates, 459 U.S. 297 (1983)), which ruled that injuries over the navigable waters of the U.S. in the course of employment are covered, but could arguably be excluded as employees of a recreational operation.
While we’re on the subject of the LHWCA exclusions, let’s consider other groups of employees whose crew member qualification may come into question.
Food service employees
Section 2(3)(B) also excludes individuals employed by a “restaurant”, so the same considerations apply as for the casino and retail employees. If not employed by the vessel owner and thus crew, they might have a claim to LHWCA coverage under Perini, unless the restaurant exclusion applies.
Do they meet the test for crew status? Are they self-employed independent contractors and thus not employees, so not covered by workers’ compensation? Do they fit any of the other Section 2(3) exclusions? The circumstances of their employment must be analyzed.
Land-based contractors coming on and off the vessel
Let’s assume that these employees do not meet the test for crew status, so they will be covered either by the LHWCA or by state act workers’ compensation. This includes workers loading and unloading cargo (such as passenger’s baggage), maintenance and repair personnel, security, delivery services, marketing, clerical, and data processing employees, etc. Since we are assuming that these workers do not meet the test for crew status, we must distinguish coverage between either the LHWCA or state act workers’ compensation.
Employees loading/unloading baggage
The loading and unloading of cargo and passenger’s baggage is typically done by a stevedore contractor whose longshoremen employees would be covered by the stevedore’s LHWCA insurance. If it is done by cruise line employees, then this would be a LHWCA exposure for the cruise line.
Contractors making deliveries to the vessel
Less clear cut is the status of the numerous contractors making deliveries to the vessel. One question would be whether these employees are excluded by the so-called “vendor” exclusion of Section 2(3)(D). Workers who meet three conditions may be excluded from LHWCA coverage. Excluded workers must be:
Those workers delivering a product to the vessel and then leaving would normally comprise those workers excluded by this provision. Those employees who provide any type of service while they are on the vessel would arguably not be excluded.
Maintenance and repair employees
Most of the maintenance and repair employees either employed by the vessel owner or by a contractor, and who do not qualify as crew members, should be considered covered by the LHWCA. Maintenance could be anything from working on the engines to fixing the plumbing or changing light bulbs.
The status of security personnel presents a frequently raised coverage issue. Section 2(3)(A) excludes workers employed exclusively in office security work, a narrow exclusion. Those security guards working, at least some of the time, outside of a business office will be covered by the LHWCA if they meet “status” for maritime employment, i.e., if their work is integral or essential to maritime activity (in this case, the loading and unloading of passengers, cargo, equipment and baggage onto a cruise ship). I think that these security guards are covered by the LHWCA.
That same section 2(3)(A) provision that probably does not exclude most of the security guards probably does exclude those employees who exclusively perform the other office occupations listed – namely, secretarial, clerical, and data processing.
If, however, any of these employees regularly, even if infrequently, leave the office to go aboard the vessel, then the exclusion may not apply.
On-board medical staff
The same case-by-case analysis of whether any of the exclusions apply as noted above would also apply to on board medical staff. Are they crew? Are they contractors? Are they self-employed independent contractors?
Vessel owners may be liable to workers covered by the Longshore and Harbor Workers’ Compensation Act (except for workers employed as shipbuilders, ship repairers, or shipbreakers injured through vessel negligence under section 905(b) (33 U.S.C. section 905(b)). Also, under certain “dual capacity” circumstances, the vessel owner may be liable to its own employees under section 905(b) for injuries resulting from vessel operations. In some jurisdictions, the vessel may owe a duty to provide a seaworthy vessel to non-crewmembers on board the vessel and doing the work of a seaman under the Sieracki Seaman remedy.