Since a recent decision of the U.S. Department of Labor’s Benefits Review Board (BRB) has discussed this issue, our answers to Longshore’s Top Ten questions will start with number 15.
Does the Longshore Act apply on the high seas and in the territorial waters of other nations?
The answer is, “YES”, without qualification or condition. Except for the qualifications and conditions.
According to the BRBs discussion in the case of J.T. v. Global International Offshore, Limited and Liberty Mutual Insurance Company and Keller Foundation/Case Foundation and ACE U.S.A., BRB Nos. 08-0119 and 08-0119A (7/29/09), it is clear that:
The Longshore and Harbor Workers’ Compensation Act, in 33 U.S.C. 939(b), allows the Secretary of Labor to establish a compensation district covering the high seas;
The Longshore Act applies to any injury or death occurring on the high seas during a voyage between U.S. ports with a planned deviation onto the high seas;
The Longshore Act applies to any injury or death occurring during sea trials on the high seas;
The Longshore Act applies to any injury or death occurring on the high seas during a voyage between U.S. ports with an unplanned deviation onto the high seas;
The Longshore Act applies to any injury or death occurring in the territorial waters of another nation when all contacts, except for the site of injury, are with the U.S. (claimant is a citizen of the U.S., employer is based in the U.S., the ship is under American flag, there is a temporary overseas assignment, and the injured worker meets the status requirement of the Act);
The trend in Admiralty Law is to extend coverage into foreign waters to provide uniform coverage for American workers.
This brings us to the J.T. case and some clarification from the BRB. In this case the injured worker was based overseas for a prolonged period (1998- 2002), and his work assignments did not begin and end in the U.S. They began and ended in foreign waters (Singapore, Malaysia, and Indonesia). So in this case of a prolonged foreign assignment where jobs commenced and terminated from and to foreign countries, the situs requirement for Longshore Act coverage was not met.
So we’ll have to wait for future cases to narrow the gap between temporary overseas assignments and prolonged foreign assignments.
For now: Does the Longshore Act apply overseas? Yes.