ISSUE: Recurring Question

Some questions come up over and over again.  One such question involves foreign workers and/or foreign employers in the United States.  Does the Longshore Act cover foreign workers?  Does the Longshore Act apply to foreign companies?  The answers are yes.

If we look at the definitions and coverage provisions in the Act we do not find anything that pertains to nationality or citizenship, with one minor exception.

Section 2(3) (33 U.S.C. 902(3)) defines “employee” as, “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 2(4) defines “employer” as, “an employer any of whose employees are employed in maritime employment, in whole or in part, 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, or building a vessel)”.

Section 3 is the Coverage provision.  Section 3(a) states, “… 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).”

Section 3(b) states that, “No compensation shall be payable in respect of the disability or death of an officer or employee of the United States, or any agency therof, or of any State or foreign government, or any subdivision thereof.”

So that’s it.  Section 2(3) is the “status” provision, and Section 3(a) is the “situs” provision.  Together they provide the tests for coverage for employees under the Longshore Act.  A maritime employer is any employer who employs a worker who meets the “status” and “situs” tests.

With the exception of employees of a foreign government, there is no nationality or citizenship component to Longshore Act coverage.

If a domestic U.S. company hires foreign workers to work in the U.S., either permanently or temporarily, these workers are covered by the Longshore Act if they meet the status and situs tests.

If a foreign company sends foreign workers to work in theUnited States, either permanently or temporarily, these workers are covered by the Longshore Act if they meet the status and situs tests.

All employees, working in maritime employment on covered sites as specified in Section 3(a), and not specifically excluded somewhere else in the Act, are covered.  Nationality or citizenship is not part of the coverage analysis.  It all comes down to status and situs, period.

Now bear in mind that we’ve been discussing the coverage issue of foreign workers working in the U.S. The coverage issue presented by U.S. citizens working overseas or on the high seas is an entirely separate question.  We discussed this back on August 21, 2009, and we will have the opportunity to pick up the issue again when the Ninth Circuit issues its decision in the pending appeal of Joseph Tracy v. Keller Foundation, Inc./Case Foundation Co. and ACE USA/ESIS v. Global Offshore Int’l, Inc., Liberty Mutual Insurance Co., and Director, Office of Workers’ Compensation Programs (Ninth Circuit Nos. 11-71703, 11-71800)(Yes, that is a long caption with a lot of parties).  This case involves aU.S. citizen performing maritime work in Singapore and Indonesia.  One issue is, “Does the Longshore Act cover an American citizen injured on foreign territorial waters in the course of his maritime employment?”

Finally, congratulations to David Widener, who has been selected for the position of Longshore District Director in the U.S. Department of Labor’s Houston district office.  Dave, formerly with The American Equity Risk Services (AERS),ALMA’s claims unit, and most recently with the Department of Labor as a Claims Examiner in the DOL’s Houston office, is an excellent choice.

Issue – Coverage for Work on Bridges

Work done on and around bridges is the subject of recurring questions with regard to coverage under the Longshore and Harbor Workers’ Compensation Act.  So at the risk of doing more harm than good, I’ll try to summarize some general principles as I understand them.

SITUS

1)      The current version of Section 903(a) of the Longshore and Harbor Workers’ Compensation Act 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).”  You must be working over the navigable waters of the U.S., or on one of the listed enumerated sites, or in an “other adjoining area” customarily used for maritime activity.

2)      Section 903(a) prior to the 1972 amendments to the Longshore Act stated, “Compensation shall be payable under this chapter 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 dry dock)….”  Prior to the 1972 amendments, workers were covered only if they worked over the navigable waters of the U.S. or on a dry dock.  This was a situs test only.  There was no status test prior to the ’72 amendments.  If you were over the water you were covered.

3)      Note that in neither version are bridges mentioned, either prior to the 1972 amendments when coverage was limited to injuries occurring over the water or on dry docks, or after the 1972 amendments when coverage was extended landward to the enumerated sites or other adjoining areas customarily used for maritime activity.  Bridges were not considered to be covered sites prior to the 1972 amendments (they were considered to be extensions of land) and were not included in the 1972 amendments when certain locations were enumerated as covered.

4)      “Perini” coverage is still good law.  In Director, OWCP v. Perini North River Associates, 459 U.S. 297 (1983), the U.S. Supreme Court held that Congress, in amending the Act to expand coverage landward in 1972, did not intend to withdraw coverage from workers injured on navigable waters who would have been covered by the Act prior to the amendments (situs test only).  If you would have been covered pre-1972 amendments (injured over the water) then you are covered under current law.  But working on bridges permanently affixed to land is not considered working over the water, as bridges are considered to be extensions of the land.  So, generally speaking, bridge workers do not have Longshore coverage by virtue of Perini.

Since work on bridges permanently affixed to land is generally not covered under the Longshore Act, since a bridge is not a covered site and was not covered prior to the 1972 amendments, what are some of the circumstances that might provide exceptions to this general proposition?

1)      What if the bridge worker is not working on the bridge itself, but rather working from a barge or work platform floating on the water?  Here you could have Longshore coverage, since the worker is working over the water and not on a bridge permanently fixed to land.

2)      What if the bridge is incomplete, not yet permanently attached to land, and the worker is working on a section surrounded by water?  You could have Longshore Act coverage.

3)      What if the bridge is incomplete and the worker is working on the partially built section jutting out over the water?  At least two federal circuit courts of appeals might consider that to be a pier, i.e., an enumerated situs in section 903(a).  (You know, a pier, what James Joyce would call a disappointed bridge).

4)      What if the bridge is “floating”, that is, not permanently affixed to land?  You might have Longshore Act coverage.

5)      What if you are working on a structure temporarily affixed to a bridge?  You might have Longshore Act coverage.  You are over the water and not working on a permanently affixed extension of land.

6)      Etc.

Note that we have only been discussing coverage for bridge work in the context of “situs”.  We’ve concluded that bridges are not covered sites under the Longshore Act unless there is something about the “bridge” that may constitute an exception to the principle of bridge as extension of land.  But what if you think that you meet the situs requirement but aren’t sure if Perini coverage applies?

STATUS

Longshore Act coverage issues require a discussion of status as well as situs.  Status is usually a secondary consideration in bridge cases.  If you meet the situs element for coverage along the lines of the exceptions suggested above then you will usually satisfy status by virtue of Perini.

But what about status?   Is work on a bridge considered maritime employment?  It depends. You need a strong maritime connection of some kind to have an argument for coverage under the status criteria.  For example, what effect will the work have on water borne commerce?  If you can make a strong argument that the purpose of the work is to aid, regulate, or otherwise influence maritime commerce, such as work on a drawbridge that will improve the flow of commerce, then you may have “status”.  In some federal circuits, but not all, if you are unloading construction materials at the job site this may give you status.

So that about sums it up.  Work on bridges is covered under state workers’ compensation statutes, but maybe it’s covered under the federal Longshore Act, or both (see previous discussion involving concurrent jurisdiction). 

A useful approach might be to start by assuming that work on a bridge is covered by state act workers’ compensation and then look for any of the circumstances that might possibly involve Longshore Act exposure; that is, it’s not really a bridge (a completed structure permanently affixed to land), you are working over the water, and/or are arguably engaged in maritime employment (loading and unloading).

But remember, as with most coverage issues, consider all of the facts.  If you have only one half of the facts then you only have a 50% chance of reaching the most likely to be correct conclusion. 

In view of the previous discussions with regard to the consequences to the company and corporate officers of being uninsured, if there is any doubt whatsoever as to coverage requirements, it is wise to be covered for both state and federal exposures.

Longshore Act Question Number 1- Do I Need Longshore Act Insurance?

If you go to the U.S. Department of Labor’s website (dol.gov), find your way under Agencies to Office of Workers’ Compensation Programs and then to the Division of Longshore and Harbor Workers’ Compensation, you will see that one of the questions that DOL tries to answer is, “Do I Need Longshore Act Insurance”.

 Here is DOL’s answer in its entirety:

 “The requirement to have Longshore insurance varies from situation to situation, and from state to state. The best way to determine the need is to talk directly with your nearest Longshore district office, so that you can explain the specifics of your work site and employment situation.”

 At first look, it doesn’t seem like a very helpful answer.

 But on second look, it starts to seem like the only sensible answer.

 There are too many variables, too many subtle regional differences in judicial interpretation, too many occupations, too much geography, and too much factual analysis to permit anything like a single coherent answer to this question.  Even an attempt to list a short list of general principles runs the risk of achieving brevity at the cost of confusion and distortion.

 The best answer is to discuss particular situations with an expert.  The downside in the law for the uninsured employer is too serious to take any chance on getting it wrong.

 But, bearing all of this in mind, I’ll at least review the statutory provisions.

 Section 902(3) (33 U.S.C. 902(3)) of the Longshore Act is the “status” provision.  It 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….”

 Section 903(a) is the “situs” provision.  It states,

 “… 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).”

 Words and expressions that are undefined and open to interpretation such as “longshoring operations”, “harbor worker”, “other adjoining area”, and “customarily used” lead to uncertainty, misunderstanding, and  litigation.

 So, since we’re in this far, let’s try some general observations and principles. 

 In broad terms, to be covered by the Longshore Act an injury must occur upon the navigable waters of the United States, including dry docks, or on a landward area covered by the situs provisions of section 903(a) if the work is maritime in nature under the status provision of section 902(3) and not specifically excluded by the exclusion provisions of sections 902 and 903.

 Some very few of the many factors that come into play:

-         if an injury occurs on the navigable waters or a dry dock (pre-1972 amendment coverage) then it is covered by the Longshore Act regardless of the nature of the work;

-         to satisfy the “status” requirement it is necessary that an employee spend only part of his time (and it could be a small part) in indisputably maritime activity;

-         intermediate steps in moving cargo between ship and land transportation are covered (the first point of rest off the vessel is not necessarily where the unloading process ends);

-         “situs” is determined by the nature of the place of work at the time of the injury;

-         both the “situs” and “status” requirements must be met for coverage;

-         to be considered a covered situs a location must have a maritime nexus, but it need not be used exclusively or even primarily for maritime purposes;

-         see blog posting Question Number 5 for a discussion of what is a navigable water of the United States;

-         mixed use locations, such as facilities that contain both loading/unloading operations as well as manufacturing operations, present complicated situs issues;

-         an injury occurring on a bridge permanently affixed to land does not occur on a covered situs (but be careful if the facts change; for example, an employee working from a work platform on the water could be covered);

-         an oil and gas platform permanently affixed to the seabed in state territorial waters is not a maritime situs (it is considered to be an artificial island);

-         railroad employees normally covered by the Federal Employers Liability Act could be covered instead by the Longshore Act if they meet situs and status;

-         section 902(3)(A)-(H) contains express exclusions from coverage.  These exclusions are very narrowly construed, and will be the subject of a future posting.  Refer to the May 27, 2009, blog posting for a brief discussion of the section 902(3)(A) exclusion of clerical, secretarial, security, and data processing employees.

This could go on indefinitely.  I better quit while I’m ahead (at least I think I’m ahead).

 So, once again and finally, in view of the consequences of needing the coverage and not having it, play it safe.  If you’ve got anyone working anywhere near the water, you should be thinking about the Longshore Act and consulting with an expert.