Questions regularly arise with regard to Longshore Act coverage for dredging operations. These operations present several key coverage issues worth discussing.
Dredging is usually done to remove sediment and debris in the process of creating new harbors and/or deepening existing harbors, channels, and waterways for the benefit of maritime commerce. It is also done in connection with repair or construction of bridges and piers, environmental cleanup, replenishing sand on recreational beaches, harvesting of aquatic species, seabed mining, flood prevention, and any number of other purposes. Dredging is done on all bodies of water, from ocean waters to inland rivers, lakes, and reservoirs.
It is becoming more important as the need for improvement of infrastructure becomes crucial. International ocean carriers are utilizing larger ships which require deeper channels, bigger harbors and berths, and higher bridges.
There are many types of dredging contrivances, including submerged vehicles, amphibious wheeled as well as tracked vehicles, and all sorts of special purpose platforms.
The varied jobs and mixed duties of employees along with the wide assortment of apparatus used in dredging operations puts us squarely within the so-called “Uncertainty Zone” where workers’ compensation exposure under the Longshore and Harbor Workers’ Compensation Act overlaps with maritime employers’ liability for injury or illness to crew members of vessels.
What is the “Uncertainty Zone”?
The federal Fifth Circuit Court of Appeals has observed, “Thus, despite our continued insistence that a Jones Act ‘seaman’ and a ‘crew member’ excluded from the Longshore Act are one and the same (in other words that the statutes are mutually exclusive) we recognize that in a practical sense, a ‘zone of uncertainty’ inevitably connects the two Acts.”
The Jones Act and other seamen’s remedies are only available to crew members (seamen), and the Longshore Act excludes crew members (seamen).
The broader the definition of “vessel” has become, however, and the less seaman status has to do with going to sea or vessel navigation, the more difficult it has become to sort out coverage issues in the Uncertainty Zone. Clearly, there are coverage issues at the fringes of seaman status as well as the issue of what constitutes a vessel, and these issues are confronted directly in a typical dredging operation.
Situs and Status
For the purpose of distinguishing employer liability issues, there are questions of situs, vessel status, and worker status.
First, let’s briefly consider situs. Liability under federal maritime law (the Jones Act, the General Maritime Law, the Admiralty Extension Act, the Death on the High Seas Act, Section 905(b), etc.), requires activity on the navigable waters of the United States which involves traditional maritime activity or has the potential to disrupt maritime commerce. Liability under the Longshore and Harbor Workers’ Compensation Act also requires maritime employment on or near the navigable waters of the United States.
Dredging of one kind or another can occur wherever there is water. But we’re interested in the “navigable waters of the United States”. For our purpose that means water that carries, or is capable of carrying, interstate or international commerce. This does not include land-locked intrastate lakes, sections of rivers or reservoirs that are dammed or closed off at both ends, industrial tanks or treatment facilities that are comprised of water that has been removed from a navigable body, and similar bodies of water that cannot carry interstate commerce.
Note: If the dredging activity is being conducted on a body of water that does not constitute “navigable waters of the United States”, then the workers are most likely covered by state act workers’ compensation.
So, situs is the first box to check when considering issues of federal maritime liability, and the question is whether or not the waterway carries or is capable of carrying interstate or international commerce. For the rest of this discussion, we’ll assume that our activity is occurring on the navigable waters of the United States.
Next, maritime liability usually requires the presence of a vessel. The United States Supreme Court has considered the vessel question twice in the past twelve years, and one of the cases involved a dredging operation. In the case of Stewart v. Dutra Construction Company, (543 U.S. 481 (2005)) the Supreme Court considered whether the Super Scoop, at that time the world’s largest dredge, was a vessel. The Super Scoop is a massive floating platform from which a clamshell bucket is suspended beneath the water. The bucket removes silt from the ocean floor and dumps the sediment onto one of two scows that float alongside. It navigates short distances by manipulating its anchors and cables. Otherwise it is towed into position.
The holding in the case was that the Super Scoop is a vessel. Dredges had frequently been held to be vessels prior to the Stewart case, but the issue continued to arise. Now, explicitly we can assume that dredges are vessels.
Note: This does not rule out the circumstances where a barge or work platform is permanently affixed to the seabed, and thus not “in navigation”, for use in a dredging operation. If you do not have a vessel then you do not have crewmembers with seamen’s remedies. In this case, you have workers’ compensation exposure, most likely under the Longshore Act.
Note: The vessel question again went to the Supreme Court in 2013 in the case of Lozman v. The City of Riviera Beach, Florida. This case gives us our present test for vessel status. Essentially the test is whether, viewed through the eyes of a reasonable observer, the contrivance is practically capable of serving as a means of transportation of people or things over water.
This test would seem to encompass most of the contrivances used in dredging operations, since they are designed to and do in fact carry people and/or equipment over water.
So, on our second issue of federal maritime liability, if you are involved in a dredging operation you are most likely working from or in connection with a vessel.
We are discussing vessels performing dredging operations on the navigable waters of the United States. That leaves the third, and most difficult, issue. Do the workers have the status of crewmembers eligible for the seamen’s remedies, or are they land-based maritime workers covered for workers’ compensation under the Longshore Act but excluded from the seamen’s remedies?
Welcome to the Uncertainty Zone.
This is familiar territory for the AEU Longshore Blog; issues of coverage between the seamen’s remedies and the Longshore Act have been discussed on several occasions, including a discussion of both vessel status and crew member status.
There was a time when dredge workers typically slept at and commuted from home each day, were paid by the hour, belonged to land-based unions, performed no navigation functions, and never “went to sea” in the traditional sense. These workers were more likely to be considered land-based maritime workers covered by the Longshore Act than crew members entitled to the seamen’s remedies.
Then, as the test for crew member status, outlined by the U.S. Supreme Court in the case of Chandris, Inc. v. Latsis, (115 S.Ct. 2172 (1995)) came to be more broadly interpreted, involvement in navigation of the vessel ceased to be necessary for crew member status, and the “perils of the sea” was replaced by the “perils of a marine environment”.
Maritime construction workers building bridges, piers, and other structures who work from floating construction platforms now have a good case for crewmember status. In a notable recent case from the federal Fifth Circuit Court of Appeals, a ship repair worker operating a land-based crane in a shipyard channel, who virtually never went to sea, was found to be a crew member of his employer’s vessels (Larry Naquin v. Elevating Boats, Inc., (5th Circuit, March 2014) discussed in an April 7, 2015 post on the AEU Longshore Blog)).
To complicate matters, the choice of remedy is with the injured worker. He can file a lawsuit seeking recovery for negligence or unseaworthiness under his seamen’s remedies, or he can file a workers’ compensation claim with the U.S. Department of Labor (DOL) under the Longshore Act. He can even file these claims simultaneously, inconsistently (but permissibly) claiming status under two mutually exclusive remedies.
Further complicating matters, the choice of forum may determine the outcome of the coverage issue. The DOL may tend toward finding entitlement for an injured worker under the Longshore Act as a land-based maritime worker, while a jury may be convinced that the same worker is a crew member. It may come down to which forum is first to issue a final Order adjudicating status in these Uncertainty Zone cases that can go either way.
There are peripheral jobs involved in dredging operations, where workers are working landside rather than from vessels. This is where the question of “harbor worker” comes up. The phrase is not defined in the Act, but it is listed as a covered occupation (and it’s in the title!). While these workers may have weaker claims to crew member status, we have the related problem of distinguishing state act workers’ compensation from Longshore Act exposure. An extreme example is the case of Nelson v. American Dredging Co., 143 F.3d 789 (3rd Circuit, 1998), in which a bulldozer operator distributing sand dredged up from the ocean floor on a recreational beach was found to meet situs and status under the Longshore Act.
These dredging cases present coverage difficulties for claims specialists. Did the injury occur on or around navigable waters? Was a vessel involved? Is the injured worker covered under the Longshore Act, or state act workers’ compensation, or is he a crew member? These issues arise every day, and there are few bright lines.
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.