ISSUES: Updates and Situs

Here is a collection of comments and notes that refer back to previous discussions.

ONE  – United States Circuit Courts of Appeal – We know that there are disagreements on Longshore Act issues among the various federal courts of appeal, and one of these days I may get ambitious enough to try to summarize the more prominent circuit conflicts.  In the meantime, keep in mind that the circuit in which the injury occurred determines which court will decide the appeal, and the U.S. Department of Labor’s Benefits Review Board usually applies the law of the appropriate federal circuit when adjudicating cases before it.  So here’s a breakdown of the U.S. Circuit Courts of Appeal:

First Circuit – Maine, New Hampshire, Rhode Island, Massachusetts, Puerto Rico

Second Circuit – New York, Connecticut, Vermont

Third Circuit – Pennsylvania, New Jersey, Delaware, U.S. Virgin Islands

Fourth Circuit – Maryland, Virginia, West Virginia, North Carolina, South Carolina

Fifth Circuit – Louisiana, Texas, Mississippi

Sixth Circuit – Ohio, Kentucky, Tennessee, Michigan

Seventh Circuit – Wisconsin, Illinois, Indiana

Eighth Circuit – Minnesota, Iowa, Missouri, Arkansas, Nebraska, South Dakota and North Dakota

Ninth Circuit – Washington, Oregon, Montana, Idaho, California, Nevada, Arizona, Alaska, Hawaii

Tenth Circuit – Wyoming, Utah, Colorado, Kansas, Oklahoma, New Mexico

Eleventh Circuit – Alabama, Georgia, Florida

The location of the injury can make a big difference in the outcome of a litigated Longshore case.

TWO U.S. Department of Labor – I recently listed significant changes that have occurred in the management of the Office of Workers’ Compensation Programs in the U.S. Department of Labor.  Positions are starting to be filled, and people are moving around.  DOL has just announced that Eric Richardson, the District Director in the Longshore Division’s Long Beach district office is moving to Washington, DC to replace Miranda Chiu as Chief, Branch of Policies and Procedures.  As you may recall, Miranda had announced her retirement to be effective the end of March but then agreed to stay on temporarily in the position of Acting Director when Director Mike Niss retired at the end of February.  Stay tuned.

THREE – Jones Act – I think that the last word is now in with regard to the bogus issue of whether the Jones Act hindered the clean up effort in the aftermath of the Deepwater Horizon explosion and oil spill.  The President Obama appointed, non-partisan National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling confirmed in its final report that the Jones Act did not prevent foreign vessels from assisting with the clean-up.

FOUR – Medical Marijuana – Back on 09/08/2010 I expressed the opinion that the legalization of the medical use of marijuana appeared to be a developing trend among the various states.  At that time I found fourteen states where the medical use of marijuana is legal (Alaska, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington).  You can now add Arizona and the District of Columbia to the list, but subtract Montana, which is in the process of repealing its medical marijuana law.  Delaware and Florida appear to be getting close to legalization.  So we’ll see how it goes, since more than a dozen states still have bills aimed at legalization pending in their legislative processes.

FIVE – Situs – It seems that recently we have stressed “status” when discussing contested issues of Longshore Act coverage and neglected “situs”.  For example, the discussion of truck drivers on 01/20/2011, the discussion of the case involving the nurse on 12/22/2010, and recent references to the Caputo principle of part time maritime work equaling full time Longshore Act exposure all related to the issue of occupational status under the Act. 

So, now, just a brief reminder that you must separately satisfy both the “status” and the “situs” tests for Longshore Act coverage.  The injury must occur 1) over the navigable waters (discussed on 09/29/2009), or 2) on an enumerated site (pier, wharf, dry dock, terminal, building way, or marine railway), or 3) in an “other adjoining area” customarily used by an employer for maritime activity.

Unlike “status”, “situs” is determined at the moment of injury.

If the worker is not injured upon navigable waters or on an enumerated site, then the issue is whether the injury occurred on an “other adjoining area”.  So, what is an “other adjoining area”?

As usual, this is a case by case determination, but there are a few general principles that can help the analysis.

The situs does not have to be used exclusively or even primarily for maritime purposes, as long as it is customarily used for significant maritime activity.  And the maritime use does not have to be continuous, but under certain circumstances can be intermittent.

If a particular area is associated with items used as part of the loading/unloading or shipbuilding/ship repair processes it need not itself be directly involved in loading/unloading a vessel or in shipbuilding or ship repair, or even physically connected to the point at which those processes take place.  For example, a shed used to store longshoremen’s gear located several blocks away from the nearest gate to the terminal and outside the property line of the port may be a covered site.  Also, a garage away from the water’s edge used to store and repair heavy equipment used in loading/unloading may also be a covered site.

Except for the federal Fourth Circuit Court of Appeals (states of Maryland, Virginia, West Virginia, North Carolina, and South Carolina), where “adjoining” literally means “lying next to”, the site does not have to touch navigable water.  It can be in the vicinity, or neighboring area of navigable waters, as long as it has a reasonable geographic and functional connection with customary maritime activity on those navigable waters.

The federal Ninth Circuit Court of Appeals (states of Washington, Oregon, Montana, Idaho, California, Nevada, Arizona, Alaska, and Hawaii) sometimes uses its so-called “Herron factors” to determine whether a particular site is an “other adjoining area”.  This involves an analysis of the particular suitability of the site for maritime use, whether adjoining properties are devoted primarily to use in maritime commerce, the proximity of the site to the water, and whether the site is as close to the water as is feasible given all of the circumstances.  Several other federal courts of appeal take a similar approach, combining an analysis of geography and function.

Multi-use facilities or manufacturing sites may include covered and non-covered areas and usually require a complex analysis to determine whether the site of the injury is in a covered area.

Finally, because of the occupational analysis under Caputo, walking in and out of coverage is usually not an issue in “status” cases.  A maritime employee, however, who leaves a maritime site during the course of his employment and is injured in a non-covered area is not covered by the Longshore Act.

I’m not sure how helpful this has been, but at least take it as a reminder that both “status” and “situs” must be satisfied for Longshore Act coverage.

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