AEU Longshore Blog ISSUE: More Questions

Here are some more examples of the types of questions that come up on a regular basis.

Question Number 6

Is there USL&H exposure in a contract to construct or renovate a waterside restaurant?

Section 2(3)(B) of the Longshore Act states that individuals employed by a club, camp, recreational operation, restaurant, museum, or retail outlet are excluded from coverage.  This exclusion is based on the identity and nature of the employing enterprise.  Direct employees of, for example, a restaurant are excluded from Longshore Act coverage even though they may be on a covered situs doing work that meets the test for maritime status.

Another example is the employee of a floating casino who is engaged in what could be considered ship repair work.  Even though this employee meets situs and status, his employer is a recreational operation and so he is excluded from Longshore coverage.

This exclusion does not cover employees of contractors coming on to the property.  The contractors do not have the benefit of the exclusion since the exclusion only applies to clubs, camps, recreational operations, restaurants, museums, or retail outlets.  So you’ve got to know who the employer is.

Question Number 7

Are road pavers working on a highway that passes through a marine terminal covered by the Longshore Act?

These workers meet situs since they are working at a marine terminal.  So you have to take a close look at what they are doing to determine if they might also meet status.  Since these are construction workers we have the questions that typically come up concerning these types of workers:  are they working on an inherently maritime structure or project, and is there ongoing maritime activity at the location.  These questions are within the broader status question of whether their work is integral or essential to traditional maritime activity.

There is ongoing maritime activity in the area where they are working since it’s an active marine terminal.

But are they working on an inherently maritime structure or project?  In this particular case, the roadway was part of the state highway system.  The section being paved happened to be passing through the terminal.  There is nothing inherently maritime about a roadway, so this would be a no, so their case for status is weakened.

Is their work integral or essential to maritime operations?  In this case, the road passed through the terminal property, but it was part of the state highway system and had not been designed to serve the terminal operation.  In other words, use of this roadway at that location was not essential to ongoing terminal operations.

These workers probably would not meet status for Longshore Act coverage.

Question Number 8

Are maintenance workers whose job it is to cut grass, trim bushes and trees, pull weeds, and do general landscaping work at an oil loading/unloading and storage facility covered by the Longshore Act?

Again, we can assume that these workers are on a covered situs, so the question is whether or not they meet maritime status.  In this case, the work that they are doing does not affect the buildings and equipment that are involved in the loading and unloading.  Their job is to keep the property looking neat and professional.  I think that we can confidently conclude that these workers would not be covered by the Longshore Act, since their work is not integral or essential to the ongoing traditional maritime activity.

Question Number 9  

Very frequently the issue of coverage for truck drivers is raised.  These scenarios also sometimes implicate the issue of the application of the so called “vendor” exclusion in section 2(3)(D).  We can address both issues at the same time, if we consider the case of the truck driver who works for a food distributor.

First, section 2(3)(D):

“The term ‘employee’ means any person engaged in maritime employment … but such term does not include – individuals who (i) are employed by suppliers, transporters, or vendors, (ii) are temporarily doing business on the premises of an employer described in paragraph (4) (maritime), and (iii) are not engaged in work normally performed by employees of that employer under this act;”

In our case the truck driver works for a food distributor.  Its customers provide catering services to offshore drilling rigs.  The driver makes deliveries to docks for offshore delivery by other companies.  The driver transports the supplies from the employer’s inland warehouse to staging areas at the docks.

At the docks, the claimant truck driver typically helps the dock employees unload the truck by pushing pallets to the back of the truck where they can be  manually unloaded by dock workers, and if the dock workers use a forklift or crane, the truck driver attaches straps from the pallets to the crane or forklift.

Does this driver meet “status” for coverage under the Longshore Act?

First, assuming for the moment that he meets status is he excluded from coverage by the “vendor” exclusion?  He meets the first two elements, i.e., he is employed by a vendor, transporter, or supplier, and he is temporarily on the premises of a maritime employer.  But what about the third element:  To be excluded from Longshore coverage he cannot engage in work “normally performed by employees of the employer” (maritime work or otherwise).  All three elements must apply in order for the exclusion to apply.

So, in this case, the vendor exclusion does not apply.  The truck driver is doing work normally performed by the dock workers.

So the exclusion does not apply.  Does the driver meet status?

In the actual case, the U.S. Department of Labor’s Benefits Review Board reversed an award of benefits by an Administrative Law Judge and found that the driver did not meet status.

Rather than characterizing the driver’s activity as part of the first step or as an intermediate step in the loading process, the Board found that his duties constituted the last step in land transportation.  His job was to deliver food supplies from an inland warehouse to a staging area at the docks.  Moving the pallets or fastening crane straps was the last step in the process of land transportation.  The food supplies at this point had not yet crossed the invisible line and entered the process of marine cargo handling.

Interesting case.  I think I mentioned that the Longshore Act is never dull.

 

 

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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 the AEU Longshore Blog.

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