As usual, many coverage questions produce conditional opinions, and the best you can come up with is a best guess at a most likely outcome.
But questions with regard to divers tend to be even more difficult than usual. You could say that their duties and circumstances of employment are diverse. There’s a broad spectrum of employment ranging from land based dock building and repair, to harbor based maintenance and ship repair, to the largest offshore oil and gas operations, and back to inland industrial storage tank and reservoir work and over to self-employed independent contractors hired temporarily for their specific expertise. One end of the spectrum is land based Longshore Act workers’ compensation and the other end is Jones Act service to a vessel. But there’s a large middle ground.
To review the tests for coverage:
The Longshore Act contains a status and situs requirement. You must be engaged in maritime employment involving shipbuilding, ship repair, ship breaking, or the loading or unloading of cargo, or any activity integral to those operations. This includes constructing, repairing and maintaining the buildings and equipment used in these operations. There is no moment of injury test. Any regular part of a worker’s duties that is maritime in nature confers full time Longshore Act status.
The Longshore Act also contains a separate situs provision. The injury must occur over the navigable waters of the United States, or on any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in maritime employment. Situs is determined as of the moment of injury.
There is a two part test for Jones Act crewmember status: the worker must contribute to the mission or function of the vessel, and he must have an employment relationship to a vessel or fleet of vessels under common control that is substantial in terms of both nature and duration.
The two coverages are mutually exclusive since the Longshore Act explicitly excludes Jones Act seamen and the Jones Act only covers seamen, but as we have seen, a large “uncertainty zone” between the Acts causes an overlap where coverage questions constantly arise.
As one judge put it, “It is impossible to define the phrase ‘member of a crew’ in general terms: the words are colloquial and their fringe will always be ragged. Perhaps the best hope is that, as the successive variants appear, they will finally serve rudely to fix the borders”, (Hawn v American S.S. Co., 107 F.2nd 999 (2nd Cir. 1939)). This is quoted from a 1939 decision, and we are still fixing the borders.
Many divers actually have mixed duties. When they are not diving they are performing other tasks such as loading/unloading, maintenance, repair, etc. This makes it very difficult in the broad middle of the employment spectrum to predict whether you have a Longshore Act or a Jones Act exposure.
First, let’s remove some divers from the Longshore Act on the basis of situs. Large water tanks under industrial facilities, sewage treatment plants, land locked reservoirs, etc. are not navigable waters of the U.S. (and probably not “other adjoining areas”). So, no Longshore Act coverage (and for the same reasons, probably not Jones Act).
The diver who works from land in dock and pier construction and repair is most likely a harbor worker covered by the Longshore Act.
The diver who works from barges or floating work platforms engaged in the construction and repair of land based marine facilities is probably still covered by the Longshore Act, although we are getting further along the spectrum toward the Jones Act.
The diver who works in a harbor from a vessel doing such things as building artificial reefs, maintaining and repairing buoys and markers, and inspecting vessels is further down the spectrum and has probably just gone past the middle into Jones Act coverage.
The diver who lays underwater cable from a cable laying vessel, or who works off a floating platform in oil and gas exploration and production is most likely on the Jones Act crewmember side.
Frequently, it comes down to the nature of the worker’s relationship to a vessel (remember the test is a relationship that is substantial in terms of nature and duration). In an attempt to simplify the analysis and application of the coverage tests, the courts frequently use a 30% rule of thumb. If the worker spends less than 30% of his total work time on the vessel then he is probably not a Jones Act crewmember. This usually includes time spent traveling to and from the vessel, and these close cases always involve a detailed accounting of the worker’s time.
The crucial issue in cases involving divers frequently seems to be the “substantial employment relationship to a vessel in terms of duration” portion of the two part test. The “contribute to the mission or function of the vessel” and the “substantial employment relationship to a vessel in terms of nature” are the easy parts for the typical diver.
In view of the relatively short length of many diving contracts, there is a suggestion that the courts will relax the “substantial duration” test somewhat for divers. One federal circuit has held that 10 days is not too brief to constitute substantial duration as a matter of law, and another has affirmed that 4 weeks satisfies the substantial duration test. For the “substantial duration” part of the test, the 30% rule is important.
Due to the uncertainty inherent in many coverage issues involving divers, the bad news is that maritime employers often find themselves fully insuring workers separately under two mutually exclusive statutes. Nonetheless, it is a good idea to carry both coverages in any uncertain situation to be on the safe side.