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.

AEU Longshore Blog ISSUE: Questions and Answers

There’s one thing (at least) that you can say about the Longshore and Harbor Workers’ Compensation Act.  It’s never dull.

Questions come up everyday as brokers and underwriters, claims specialists and even attorneys, seek to resolve uncertainties, particularly in the areas of coverage and jurisdiction.

I’ve selected some of the recent inquiries that I’ve seen, and I’ve offered my brief, initial thoughts on these questions.  They have been selected because variations of these questions arise regularly.

Question Number 1

Are foreign workers coming temporarily to the United States to do work that meets status and situs covered under the Longshore Act?

The answer, of course, is yes.  And the fact that the employer is a foreign corporation does not change this.  Any employer, foreign or domestic, can be an “employer” under the Longshore Act.  For purposes of situs and status the nationality of the employer or employee is not relevant, nor is the duration of the work assignment or contract.

Question Number 2

Are river pilots covered under the Longshore Act?

My answer here is an easy one, and it is the same as the answer to many other coverage questions that arise under the Act.  The answer is, “it depends”.  If these pilots can establish seaman status then they would be covered under the Jones Act (tort recovery based on negligence) and the General Maritime Law (warranty of seaworthiness and maintenance and cure, transportation and wages).  The Longshore Act expressly excludes seamen, or members of the crew of any vessel, in Section 902(3)(G).  If the pilots cannot meet seaman status under the Chandris v. Latsis test, because, for example, they do not satisfy the duration requirement (30% rule) in relation to any vessel or fleet of vessels under common control or ownership, then they would most likely be covered by the Longshore Act pursuant to Director, Office of Workers’ Compensation Programs, U.S. Department of Labor v. Perini, 459 U.S. 297 (1983), since they are working over the navigable waters.

Question Number 3

Are construction workers coming onto a waterfront terminal property to repair buildings damaged by a storm covered by the Longshore Act?

Under the principle that it is very difficult to ask any coverage question under the Longshore Act and get an unqualified “yes” or “no” answer, my answer here is a conditional yes.  There are several considerations that apply.  We know that not only are the traditional maritime workers who load and unload cargo, and who build or repair ships, covered by the Act, but workers who build, repair, or maintain the buildings and equipment used in such traditional maritime activities are covered.  Construction worker coverage cases often involve two questions:  does the work being done involve an inherently maritime structure, and at the time of the work is there on going maritime activity taking place?  Two “yes” answers will get you coverage, but one or two “no” answers complicates the issue.

NOTE:  You can tell if you are dealing with a true Longshore Act expert if they are unable to answer even the most seemingly simple question with a straightforward yes or no.

Question Number 4

Are workers such as union representatives visiting and touring a maritime job site covered by the Longshore Act?

The best I can do with this one is, probably not but there’s a catch.  Even though these workers are on a covered situs, they also must meet maritime status under the Act.  In other words, their jobs must be integral or essential to the ongoing maritime activity.  To put it another way, would non-performance of their job interrupt or interfere with the maritime activity?  Under this test, these workers probably do not meet status.  What’s the catch?  Perini again, which holds that if they are over the water on the job they do not have to meet status.  Situs over the water confers status.  So there may be some limited Longshore Act exposure there.

NOTE:  An insurance broker may ask, “Am I covered under the Longshore Act if I meet with my insured at their terminal or shipyard”?  It’s the same answer.  Probably not, but watch out for Perini.

NOTE:  I don’t think that the so-called “vendor” exclusion in Section 902(3)(D) would apply to these workers, since they are not employed by either a vendor, supplier, or transporter.

Question Number 5

Is work on domestic U.S. military bases covered under the Defense Base Act (DBA)?

Finally, an easy one, but again there’s a catch.  The DBA only applies outside the continental United States, which for the DBA includes Alaska and Hawaii.  The Act also applies in all U.S. Territories (or small “t” territories for that matter).  The exception is that the DBA does not apply on Guam under the terms of a U.S. Department of Labor waiver.

What’s the catch?  There have been instances (well, at least one that I know of), where the U.S. Government contract, to be performed outside the continental U.S.,  involved the reporting and brief training of employees stateside before they left to go overseas.  It seems that the DBA may apply in this narrow instance.  So, there goes our unqualified answer.

So that’s the first five.  I’ve got a lot more examples of recurring questions, and I’ll list more in the future.

 

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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.