There’s a big difference. And for maritime employers, it is frequently difficult to recognize the difference between the two Acts and to choose correctly between them.
The Jones Act provides seamen with a personal injury negligence remedy, and the Longshore and Harbor Workers’ Compensation Act is a workers’ compensation statute. The two are mutually exclusive in their coverage. The Jones Act covers seamen (masters or members of a crew of a vessel) and the Longshore Act covers land based maritime workers.
As a practical matter there’s an overlap in coverage that causes problems for employers who must have the correct insurance coverage and for injured workers who must choose the correct remedy.
The courts struggle with this. The federal Fifth Circuit Court of Appeals has observed, “Thus, despite our continued insistence that a Jones Act ‘seaman’ and a ‘crew member’ excluded from the Longshore Act are one and the same (in other words that the statutes are mutually exclusive) we recognize that in a practical sense, a ‘zone of uncertainty’ inevitably connects the two Acts” .
The Longshore Act has a status and a situs requirement for coverage. Section 902(3) provides that 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. Section 903(a) states that a claim must occur upon the navigable waters of the United States or on an adjoining landward area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel. Coverage includes a wide range of occupations, in addition to the traditional maritime occupations of longshoreman and shipbuilder, and includes maintenance and repair workers, construction workers, contractors of all kinds, and everyone whose work requires them to be on the navigable waters.
The Jones Act uses an occupational test for coverage, related to a worker’s relationship to a vessel. The worker’s duties must contribute to the function of the vessel or to the accomplishment of its mission, and the worker must have an employment connection to a vessel in navigation, or to an identifiable group of vessels under common ownership, that is substantial in both duration and nature.
Is a worker land based (Longshore Act) or is he sea based with his employment relationship connected to a vessel (Jones Act)? This is a fact intensive inquiry, and frequently it can go either way. Courts often resort to a 30% rule of thumb. If a worker spends less than 30% of his total work time aboard a vessel or in the service of the ship then he is probably not a Jones Act seaman.
There’s a big difference here.
The Longshore Act is administered by the U.S. Department of Labor. It provides for no fault, prompt payment of statutory wage replacement benefits and medical treatment. It is designed to be predictable for the employer and quick for the worker. The Department of Labor offers informal dispute resolution services, formal adjudication at the Office of Administrative Law Judges, administrative appeals to the Benefits Review Board, and judicial review by appeal to the United States Circuit Courts of Appeal.
The Jones Act is a negligence remedy, enforced by filing a complaint in court. There is the right to a jury trial. There is no government agency involved. Factors for recovery include pain and suffering, past and future wage loss, past and future fringe benefit value, medical expenses, loss of quality of life, and a host of other damage measures. Note: The stakes were raised a bit higher recently when the U.S. Supreme Court held that punitive damages may be available under the general maritime law if an employer or carrier willfully or wantonly denies maintenance and cure to a seaman.
A Jones Act recovery can be much greater than a workers’ compensation benefit. An injured worker can be expected to seek his Jones Act rights even if there is only a small possibility that he could qualify as a seaman. The injured worker can be expected to seek recovery under both the Jones Act and the Longshore Act, either simultaneously or sequentially.
The worker must be aware of the time limits for filing his claims and the possible effects that filing a claim under one Act may have on his rights under the other Act. The courts have acknowledged this: “Well recognized are the difficulties faced by the injured maritime workers who must choose whether and by what means they will pursue remedies that in substantive theory are perfectly mutually exclusive (the Compensation Act which for present purposes applies to all but seamen, and the Jones Act, which applies only to seamen), but which seem in practice to frequently overlap each other’s borders”. The court could fairly have included maritime employers among those faced with this difficulty.
The courts have not achieved uniformity on the application of such issues as res judicata and collateral estoppel – that is, when and how a claim under one Act will be affected or precluded by a claim under the other Act. It does seem likely that the acceptance of voluntary payments under the Longshore Act will not preclude a Jones Act suit by the injured worker. A final Order of a court, however, which adjudicates the factual issue of seaman status, awarding damages under the Jones Act will likely preclude a Longshore Act claim. Likewise, a final administrative Award under the Longshore Act, which fully adjudicates the worker’s non-seaman status, will likely preclude a subsequent Jones Act suit.
So what’s the difference between the Jones Act and the Longshore Act? The Jones Act gives seamen a negligence remedy and the Longshore Act is a workers’ compensation law for land based maritime workers. You’re either one or the other since the two laws are mutually exclusive, but it’s often hard to tell where an injured worker belongs.
And the broader the definition of vessel becomes, and the less seaman status has to do with vessel navigation, the more problematic it will be sorting out coverage issues in the “uncertainty zone”. This is an area where it is advisable to consult experts, either an organization that specializes in maritime insurance coverages or an experienced maritime attorney.
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.