AEU Longshore Blog ISSUE: Insurance Requirement

Since I recently discussed the fact that many state guarantee funds will not pay Longshore Act benefits in the event of an insurance carrier default due to insolvency, or will pay only to a limited or conditional degree, and I also recently discussed what typically happens in the immediate aftermath of an insurance carrier insolvency from the perspective of an insured, it seemed like an appropriate time to revisit the fundamentals of the Longshore Act’s insurance requirement.

There is extensive language in the Longshore and Harbor Workers’ Compensation Act which addresses the insurance requirement. Below is a summary:

  • If you are a (maritime) employer, then Longshore Act insurance is mandatory.
  • If your company doesn’t have it, then the injured worker has an election of remedies; he can accept his compensation benefits or he can sue your company.
  • If your company doesn’t have it, you may be prosecuted criminally, and your corporate officers have joint and several liability for criminal prosecution.
  • If your company doesn’t have it, then your corporate officers have personal, joint and several liability to the injured worker.
  • You have two choices: obtain an insurance policy from an insurance carrier authorized by the U.S. Department of Labor to provide USL&H coverage, or obtain U.S. Department of Labor authorization to self-insure.

While the above summary seems relatively straightforward, it can still be confusing to maritime employers about how, when, or if they need obtain the proper insurance coverage. There are three questions that are most frequently asked:

  1. When do I need Longshore Act insurance?

If you are a maritime employer employing maritime workers, then you need workers’ compensation coverage under the Longshore and Harbor Workers’ Compensation Act. Whether or not you employ maritime workers depends on whether the workers meet the status (33 U.S.C. 902(3)) and situs (33 U.S.C. 903(a)) provisions of the Longshore Act.

Very briefly, maritime “status” is an occupational concept and encompasses many jobs in addition to the traditional occupations of longshoreman, shipbuilder, ship repair worker, and ship breaker.  It includes all workers who build, maintain, and repair the tools, buildings and equipment necessary to the handling of cargo and the building/repairing of ships.  There is no “moment of injury test” for status.  Even a small percentage of regularly assigned maritime duties produce a full-time maritime worker for purposes of Longshore Act coverage.

Very briefly, “situs” is a geographic and functional concept that is determined by location as of the time of an injury.  You meet situs by being injured over navigable waters, by being injured on an enumerated location such as a dry dock, pier, wharf, terminal, building way, or marine railway, or in another adjoining area customarily used by an employer for maritime work.

So, very generally, a worker is a maritime worker if he or she does maritime work in a maritime area.

33 U.S.C. Section 904(a) – “Every employer shall be liable for and shall secure the payment to his employees of the compensation payable under Sections 907, 908, and 909.” 

  1. Where can I get Longshore Act insurance?

Section 932 of the Longshore Act (see below) gives the maritime employer two choices: buy insurance from an insurance carrier authorized by the U.S. Department of Labor or obtain the U.S. Department of Labor’s authorization to self-insure.

33 U.S.C Section 932 – “Every employer shall secure the payment of compensation under this Act –

(a)(1) By insuring and keeping insured the payment of such compensation with any stock company or mutual company or association, or with any other person or fund, while such person or fund is authorized (A) under the laws of the United States or of any State, to insure workers’ compensation, and (B) by the Secretary, to insure payment of compensation under this Act; or

(2) By furnishing satisfactory proof to the Secretary of his financial ability to pay such compensation and receiving an authorization from the Secretary to pay such compensation directly.”

  1. What happens if I need Longshore Act insurance and I don’t have it?

In the case of an uninsured employer, the company and its corporate officers are in a very vulnerable situation, as outlined in sections 905(a) and 938(a) of the Longshore Act shown below. The injured worker has an election of remedies that can be very costly for the employer.  There is potential criminal liability, and most importantly, the corporate officers have personal liability, jointly and severally, with the corporation.  The President, Secretary, and Treasurer of an uninsured employer are in a very bad place.

33 U.S.C. Section 905(a) – “… if an employer fails to secure payment of compensation as required by this Act, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under the Act, or to  maintain an action at law or in admiralty for damages on account of such injury or death.  In such action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, or that the employee assumed the risk of his employment, or that the injury was due to the contributory negligence of the employee.”

 33 U.S.C. Section 938(a) – “Any employer required to secure the payment of compensation under this Act who fails to secure such compensation shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than $10,000, or by imprisonment for not more than one year, or by both such fine and imprisonment; and in any case where such employer is a corporation, the President, Secretary, and Treasurer thereof shall be also severally liable to such fine and imprisonment as herein provided for the failure of such corporation to secure the payment of compensation, and such President, Secretary, and Treasurer shall be severally personally liable, jointly with such corporation, for any compensation or other benefit which may accrue under the said Act in respect to any injury which may occur to any employee of such corporation while it shall so fail to secure the payment of compensation as required by Section 932 of the Act.”

The Longshore Act insurance requirement can be daunting for those employers that are unclear as to whether or not it applies to their business. An insurance professional with expertise in the maritime industry, specifically USL&H coverage, can be of tremendous benefit in making that determination.

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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.

ISSUE: 2015- Part Two- Benefits Review Board

As I noted last time, calendar year 2015 was a routine year for Longshore Act litigation.  There were no cases decided at the U.S. Supreme Court and no new conflicts were created among the federal courts of appeal.

Previously, I noted some calendar year 2015 cases from the federal courts of appeal that contained interesting (to me) issues.  This time I’ll look at some cases from the U.S. Department of Labor’s Benefits Review Board (BRB).

First, there were significant changes in the composition of the Benefits Review Board in the past year.

Betty Jean Hall was named Chairman and Chief Administrative Appeals Judge in April 2015 (she had been Acting Chair since the retirement of Nancy Dolder in April 2014).

Roy P. Smith retired in September 2014 and Regina C. McGranery retired in May 2015.

Greg J. Buzzard was appointed Administrative Appeals Judge in December 2014.

Ryan C. Gilligan was appointed Vice Chair and Administrative Appeals Judge in May 2015.

Jonathan Rolfe was appointed Administrative Appeals Judge in July 2015.

Judith S. Boggs (August 2004) completes the roster of the Members of the Board along with Judges Hall, Buzzard, Gilligan, and Rolfe.

Benefits Review Board

John Myshka v. Electric Boat Corporation, BRB No. 14-0161, 1/13/15

In this case, the claimant, a welder, settled claims for a lump sum under section 8(i) for hand injuries in 2001, underwent carpal tunnel release surgery, and returned to work.  He again began complaining of hand problems and filed new claims.  Medical evidence showed a permanent partial impairment to the right arm of 5% and to the right fourth finger of 2%.

The Administrative Law Judge (ALJ), noting that these impairment ratings were less than the ratings assigned at the time of the 2001 settlement, ruled that the claimant had failed to establish his prima facie case and denied the claim.  The ALJ reasoned that since the claimant’s condition appeared to be better in 2011 than it had been in 2001, he failed to establish the necessary harm or injury element for his prima facie case.

The BRB reversed and remanded.  It found that, “Uncontroverted evidence establishes that the claimant satisfies both elements of his prima facie case – he sustained a harm (right carpal tunnel syndrome) and working conditions existed that could have caused the harm”.  The claimant testified that his hand condition had worsened.

You can understand the ALJ’s reasoning.  If the impairment rating to the hand was better in 2011 than it had been in 2001 then it could not have been aggravated by continued employment.

The BRB stated:  “Contrary to the Administrative Law Judge’s reasoning, the fact that the claimant may have a lower impairment rating after his recovery from carpal tunnel release surgery than the rating assigned … in 1999 does not establish the absence of a work injury occurring in 2011.”

The case was remanded to the ALJ to reconsider the issue of prima facie case, the application of the section 20(a) presumption, the aggravation rule, and the “Nash doctrine”.  The Nash doctrine is an extra-statutory credit doctrine which gives the employer in scheduled award cases a dollar for dollar credit for previous scheduled awards for the same body part.

Everett Watson v. Fluor Daniel Corporation and The Insurance Company of the State of Pennsylvania, BRB No. 13-0374, 14-0183, 2/25/15

In this Defense Base Act case the claimant had multiple pre-existing heart related conditions.  He underwent surgery, had a pacemaker implanted, and did not return to work.  He claimed that his worsening heart condition was due to the conditions of his employment in Afghanistan.

An Administrative Law Judge found that the claimant failed to satisfy his prima facie case.  His condition was the same after as it had been before his employment.  His heart condition was not caused, contributed to, or aggravated by his employment.

In the alternative, the ALJ found that, assuming that the claimant had established his prima facie case, the section 20(a) presumption of causation was invoked, and the presumption was rebutted by the employer’s production of substantial evidence that the heart condition was not work related.  The ALJ found that based on the record as a whole, the heart condition was not work related.  The claim was denied.

The BRB affirmed this denial.  The ALJ had discussed all of the medical evidence and explained which medical reports and opinions he relied on and why.  The BRB noted that, “It is well established that an Administrative Law Judge is entitled to weigh the medical evidence and draw his own inferences therefrom.”

Randall Stovall v. Total Terminals International and 10 others, BRB No. 14-0266, 14-0266A, 2/27/15

This is a typical West Coast multi-employer case where identity of the responsible employer is an issue.  This case involved review of an ALJ’s rejection of a section 8(i) lump sum settlement application.

The claimant and one of the defendants (Total Terminals International (TTI)) submitted an application for a lump sum settlement under section 8(i) of the Act.  The ALJ disapproved the settlement on the grounds that it did not include the signatures of all the parties to the claim (i.e., all of the potentially liable employers).

The ALJ cited the Longshore regulations at 20 C.F.R. 702.242, which states that a complete section 8(i) application “be in the form of a stipulation signed by all parties”.

The BRB reversed the ALJ’s action and remanded.  It pointed out that the ALJ’s rationale was erroneous.  Any potentially liable employer may opt to settle separately with the claimant.  The claimant and TTI sought to settle only claims against TTI.  The reference in the regulations on which the ALJ relied means only those parties to the individual claim addressed in the settlement application.

The BRB also noted that there is no credit for settlements with other employers in a non-scheduled award case for the employer found ultimately liable.

Raymond Babick v. Todd Pacific Shipyards, BRB No. 14-0177, 3/30/15

In this case the BRB discussed the shifting burdens of proof in a discrimination claim under section 49 (33 U.S.C. section 48(a)).The claimant had a total of 7 accidents between 2005 and February 2010.  Following his latest accident the claimant returned to work, was given an unsatisfactory performance report and was suspended for 3 days for violation of a safety rule.

The ALJ found that the claimant established a prima facie case of discrimination, which the employer failed to rebut, awarded back wages, and levied a $4,000 penalty.

Section 48(a) prohibits an employer from discharging or discriminating (treating like individuals differently) against an employee because he has claimed compensation.  The remedy is reinstatement and lost wages.

The BRB resolved existing ambiguities in the case law and adopted a “shifting burden (of proof)” analysis in section 48(a) claims.

First, the initial burden is on the claimant to establish his prima facie case and demonstrate that his employer committed a discriminatory act motivated by discriminatory animus or intent.

Next, this gives rise to a rebuttable presumption that the employer was motivated at least in part by the claimant’s claim filing.  The burden then shifts to the employer to prove that it was not motivated, even in part, by the claimant’s exercise of rights under the Act.  This burden, to rebut the presumption, is one of production of substantial evidence only (not persuasion by a preponderance of the evidence at this stage).

Finally, if the presumption is rebutted, the burden of proof shifts back to the claimant to prove his claim of discrimination by a preponderance of the evidence.

Note:  The insurance company is not a party to discrimination claims.

James Baker, Jr. v. Gulf Island Marine Fabricators, LLC; Director, Office of Workers’ Compensation Programs, United States Department of Labor, BRB No. 14-0344, 7/14/15

In this Outer Continental Shelf Lands Act (OCSLA) case the claimant worked as a carpenter at the employer’s land based facility fabricating topside living quarters to be incorporated onto the tension leg oil platform Big Foot. The first issue concerned whether the tension leg platform was a vessel and thus whether the claimant’s job would be considered shipbuilding.

The BRB affirmed the ALJ’s finding that the Big Foot was not a vessel but rather would end up as a fixed platform for oil extraction on the outer continental shelf (OCS).

So the claimant is not covered under the Longshore Act as a shipbuilder.  But is he covered under the OCSLA since he is involved in platform construction?

The ALJ and BRB cited the Supreme Court’s decision in Pacific Operators Offshore, LLP v. Valladolid, 132 S. Ct. 680 (2012), noting that the OCSLA covers injuries occurring “as the result of operations conducted on the outer Continental Shelf for the purpose of exploring for, developing, removing, or transporting by pipeline the natural resources … of the subsoil and seabed of the (OCS)” (43 U.S.C. section 1333(b)).  The worker is covered if his activities are the “result” of the OCS operations, i.e., they have a substantial nexus to the OCS operations, or there is a significant causal link between the injury and the employer’s on-OCS operations conducted for the purpose of extracting natural resources from the OCS.

The ALJ found, and the BRB affirmed, that the living quarters being constructed were not unique to OCS operations and the claimant’s employer would have no role in the installation or operation of the platform on the OCS.  Thus the “significant causal link” to the employer’s on-OCS operations was missing.

The claimant is not covered under the OCSLA.

I’ll pick up the rest of the 2015 cases from the BRB next time.

 

 

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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.

ISSUE: 2015

Calendar year 2015 was an unexceptional year for Longshore Act litigation.  There were no cases decided at the U.S. Supreme Court, and no new conflicts were created or exacerbated among the federal courts of appeal.

There were, however, some interesting (to me) cases at the federal courts of appeal and the U.S. Department of Labor’s Benefits Review Board (BRB) which dealt with recurring issues, restated general principles, and added to Longshore Act jurisprudence in an orderly manner.

First, here are some cases from the federal courts of appeal, and I note a principal issue in each that I found interesting.

Federal Circuit Courts of Appeal

Michael Alexander v. Express Energy Services Operating, L.P., Fifth Circuit, 5/7/15

This was an appeal in a Jones Act case in which the United States District Court for the Eastern District of Louisiana granted summary judgment to the employer on the issue of seaman status.

The plaintiff worked in the employer’s plug and abandonment department, plugging decommissioned oil wells on fixed platforms off the coast of Louisiana.  About 35% of the jobs involved adjacent lift boats holding permanent cranes.

The federal district court granted summary judgment, so the issue of seaman status did not go to a jury.  The court found that the plaintiff failed, as a matter of law, to meet the temporal prong of the test for seaman status established by the U.S. Supreme Court in Chandris, Inc.  v. Latsis  (515 U.S.. 347, 1995).

Counting only the time that he actually worked on the barges, the plaintiff failed to meet the requirement that he have a substantial employment relationship with a vessel or fleet of vessels under common ownership or control that was significant in terms of duration.  He spent less than 30% of his work time on vessels.

Although 35% of the jobs he was involved with included lift boats, this did not equate to the plaintiff spending 35% of his time on those lift boats.  The plaintiff asked the court to count all of his jobs that used an adjacent vessel toward the Chandris temporal requirement without regard to how much time he himself spent on the vessel.

The court did not agree.  “It is not sufficient under Chandris that Alexander was merely near a vessel on more than 30% of his jobs or that he performed some incidental work on a vessel on those jobs; to be a seaman, he must show that he actually worked on a vessel at least 30% of the time.”

The appeals court affirmed the district court’s order granting summary judgment and dismissing Alexander’s claims.

There was nothing unique about this case, nor was it a particularly close case, although the plaintiff’s argument was somewhat creative.  I just find most cases dealing with seaman status under the Jones Act to be interesting.  And these Jones Act cases are relevant to Longshore Act coverage issues because of the “uncertainty zone” of coverage between the two Acts.

While we’re on the subject of seaman status and appeals from the Eastern District of Louisiana:

Joseph R. Wilcox; Lisa Wilcox v. Wild Well Control, Incorporated; Superior Energy Services, Incorporated, Fifth Circuit, July 24, 2015

This was another seaman status case.  The plaintiff was employed by Max Welders as a welder on offshore oil platforms.  At the time of his injury he was working on a decommissioning job during which he would be living on a barge owned by Wild Well.  The parties agreed that for this two month contract he was the borrowed employee of Wild Well Control, Inc.

Although he could not meet the Chandris test for crewmember status during his overall employment with Max Welders, the claimant argued that his status as a seaman should be measured by the time he spent as a borrowed employee of Wild Well Control on the theory apparently that his status as a borrowed employee was equivalent to a new job or permanent reassignment to new duties.  The Fifth Circuit affirmed the district court’s dismissal of the Jones Act claims, indicating that it looked at the entirety of the plaintiff’s employment with both the nominal and borrowing employers rather than his duties only for the two month contract where he was a borrowed employee.

Another nice try, but another summary judgment for the employer.

Battelle Memorial Institute et al. v. Dicecca et al., First Circuit, 7/6/15

This was a Defense Base Act case in which the Zone of Special Danger was applied to cover a fatal injury suffered while the employee was traveling by taxi to a grocery store overseas in Tbilisi, Georgia.  The accident arose out of the conditions of employment, i.e. the conditions and obligations of employment in a dangerous locale and foreseeable risks associated with that employment.

Patrick Novak, et al. v. United States of America, Ninth Circuit, 7/30/15

In this case, the Ninth Circuit affirmed the district court’s dismissal of an action challenging the constitutionality of the Jones Act’s cabotage provisions (which prohibit foreign competition in the domestic shipping market).

The plaintiffs, several individuals as well as a corporation, reside in Hawaii and claimed pecuniary damages.  They alleged that the Jones Act impaired interstate trade between Hawaii and the mainland to such an extent that it violated the U.S. Constitution through an unlawful restraint of trade and interstate commerce.

The district court ruled that the plaintiffs failed to establish jurisdictional “standing” to challenge the Jones Act.

The Ninth Circuit, in affirming the district court’s dismissal, noted that even if the plaintiffs were able to establish standing they would still not prevail.  Enactment of the Jones Act was within the authority of Congress to regulate interstate commerce under the Commerce Clause (Article I, Section 8).

Another victory for supporters of the Jones Act.

Bahri Chirag and Dangwal Sandeed v. MT Marida Marguerite Schiffahrts; Marida Tankers, Inc.; and Heidmar Inc.; XYZ Ship Owner and XYZ Ship Employer, Second Circuit, 3/11/15

In this maritime negligence action the Second Circuit reviewed a district court’s dismissal of the case on the basis of forum non conveniens.  The standard of review is abuse of discretion.

In this case, the district court dismissed the action without first establishing personal jurisdiction over the defendants and without addressing maritime choice of law principles.

The plaintiffs were citizens of India suing a German defendant, a Marshall Islands defendant, and a U.S. defendant that the Court noted would most likely turn out not to be a proper party upon additional discovery.

The district court’s ruling was based on the following factors: 1) since the plaintiffs were residents of India and not U.S. citizens, there was less deference to their choice of forum, 2) an alternative forum existed in Germany, where one defendant was a German entity and another had stipulated to jurisdiction, and 3) both private and public interests weigh in favor of litigating the case in an alternate forum.

By “private interests” the court meant that the documentary evidence was in Germany, the ship’s owner and operator were based in Germany, the employment contracts were entered into in India, the crew consisted of 19 Indians, 2 Bangladeshis, and 1 Ukrainian, the plaintiff’s injuries were caused by Somali pirates, witnesses were located all over the globe (not in the U.S.), etc.

By “public interests” the court noted that the case would place a heavy administrative burden on the U.S. court, and the heart of the dispute was essentially foreign.  The U.S. had no real interest in the subject matter of the dispute.

This is not an unusual scenario.  Plaintiffs prefer U.S. courts.

Huntington Ingalls Industries v. Eason, Fourth Circuit.

This is a case involving a scheduled award for a knee injury and a subsequent claim for partial disability benefits during a flare up of the knee symptoms.  I won’t say anything here about the case because I’m going to be discussing this issue when I resume my list of landmark Longshore cases at the U.S. Supreme Court and the decision in Potomac Electric Power Co. (PEPCO) v. Director, Office of Workers’ Compensation Programs, 449 U.S. 268 (1980).

Ceres Marine Terminals, Inc. v. Director, Office of Workers’ Compensation Programs, U.S. Department of Labor, et al. (Wallace), Fourth Circuit, 8/13/15

In this unpublished case we have an illustration of the Aggravation Rule.  There is no requirement that the aggravating second injury fundamentally or permanently alter the claimant’s underlying condition.  A worsening of symptoms due to working conditions is sufficient.

Mark Barto v. Shore Construction,LLC; McDermott, Incorporated, Fifth Circuit, 9/4/15

In this case, the Fifth Circuit affirmed a district court’s damages award, and in the process offered a discussion with regard to the general damages and future lost wages components of a Jones Act damages award, and a determination of whether back surgery was merely palliative or was curative in the context of entitlement to “cure”.

Following successful back surgery but with permanent restrictions, in reviewing the district court’s damage award for pain and suffering, the Fifth Circuit made the point that the damages measure does not focus on pain only, but on permanent restrictions on the plaintiff’s normal life routines.  The plaintiff had testified in detail about all of the things he liked to do that he would no longer be able to do.

With regard to future lost wages, which are generally based on a seaman’s work life expectancy i.e., the average number of years that a person of a certain age will both live and work, the district court based its finding on a consideration of the testimony of competing expert economists and the court has considerable discretion here.

On the issue of responsibility for payment for back surgery, the court noted that the point of maximum “cure” depended on whether a particular medical procedure is merely palliative in nature, and serves only to relieve pain and suffering, or whether it is curative.

The purpose of the surgery in this case was to remove pressure from the nerve sac, which was causing at least some of the plaintiff’s pain.  The removal of pressure from the nerve sac would thereby better the plaintiff’s physical condition by curing the root cause of his pain rather than merely correcting the symptom (pain).  The surgery was therefore curative rather than merely palliative in nature.  The surgery also corrected a physical abnormality that existed in the plaintiff’s body (pressure on the nerve sac) and thereby bettered his physical condition by restoring it to a normal, healthy condition.

The court noted that in a maintenance and cure dispute, doubts are resolved in favor of the seaman.  “Where there are ambiguities or doubts as to a seaman’s right to receive maintenance and cure they are to be resolved in favor of the seaman”, quoting from Vaughan v. Atkinson, 369 U.S. 527 (1962).

The Fifth Circuit also discussed its “maximum recovery rule”.  It will decline to reduce damages where the amount awarded is not disproportionate to at least one factually similar case from the relevant jurisdiction.  This rule becomes operable if the award exceeds 133% of the highest previous recovery for a factually similar case.

It looks like most of the interesting Longshore Act cases at the federal appeals courts for 2015 were Jones Act or General Maritime Law cases.

For next time, calendar year 2015 cases at the Benefits Review Board.

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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.

ISSUE: Landmark Cases, Part 1

There are decisions of the U.S. Supreme Court that are referred to as “landmarks”.  These landmark decisions are significant events in history in their own right.  They address/resolve/create national issues and controversies in the areas of constitutional and criminal law, politics, economics, and social, cultural, and religious practices and values.

Some of these Court opinions are unanimously decided; some are closely divided with strong dissenting opinions.  They all become the “law of the land”.

There have been many landmark Supreme Court decisions in our nation’s history.  Here are a few examples I would choose:

Marbury v. Madison

Gibbons v. Ogden

Dred Scott v. Sandford

Plessy v. Ferguson

Brown v. Board of Education

Griswold v. Connecticut

Roe v. Wade

Gideon v. Wainwright

Miranda v. Arizona

Schenck v. United States

The Longshore Act has its own landmark cases that are far reaching and enduring on their own relative scale.

My candidate for one of the foremost of these is Northeast Marine Terminal Co., Inc., et al. v. Caputo, et al.

The Caputo case was decided on June 17, 1977.  It was one of a series of cases that reached the Supreme Court seeking its interpretation of the provisions of the extensive 1972 Amendments to the Longshore Act.  Language from the Caputo decision is still regularly quoted in Longshore jurisprudence as authority on key issues.

The facts of the case, consolidating the claims of two New York City longshoremen, are not complicated.  The case involves typical maritime activities on the waterfront, although at the time of the injuries containerization was a brand new cargo handling technique and land side exposure was a brand new concept under the 1972 Amendments.

The coverage issues created by the 1972 Amendments are well known.  The Amendments changed what had simply been a “situs” test for coverage (the injury had to occur over the navigable waters of the U.S. (including any dry dock)) to a test involving not only an expanded landward situs but also a maritime “status” test for workers in the newly expanded landside coverage areas.  It was not at all clear in the immediate aftermath of the Amendments exactly who and what was now covered landside.

The Court had to “determine the reach of the ’72 Amendments.”  In doing so it established principles that are still followed today.

Probably the most often quoted excerpt from the Caputo decision is the following:  “The language of the Amendments is broad and suggests that we should take an expansive view of the extended coverage.  Indeed, such a construction is appropriate for this remedial legislation.”  Furthermore, “The Act ‘must be construed in conformance with its purpose, and in a way which avoids harsh and incongruous results.’” (Quoting in turn from Voris v. Eikel, 346 U.S. 328 (1953))

To make a long story short, longshoreman Ralph Caputo was injured while assigned duties on the day of his injury as a “terminal laborer” loading cargo on to a truck.  Longshoreman Carmelo Blundo was injured while unloading cargo not directly from a vessel but from a container located on a pier used only for stripping and stuffing containers and for storage rather than for loading and unloading vessels.  Neither longshoreman was injured in the act of removing cargo from a vessel and placing it dockside.

In deciding the issues of what today would be obvious examples of maritime employment covered by the Longshore Act, the Court used this early case (the injuries occurred in April 1973; the effective date of the 1972 Amendments was November 26, 1972) to resolve several important early questions.

Note:  Situs was met, since the injuries occurred in a terminal area contiguous with navigable waters.  The issue was the maritime status of the workers.

The Court acknowledged one of the primary purposes of the 1972 Amendments:  Congress intended to provide continuous coverage to amphibious workers such as longshoremen who, without the Amendments, would be covered for only part of their activity (the part over the water).  The problem of workers walking in and out of coverage back and forth over the water during the workday had been a significant contributing factor in producing the ’72 Amendments.

So in the Caputo decision the Court resolved the problem in what today we recognize as the uniform treatment principle that if any part of a worker’s regular duties is indisputably maritime in nature then that worker has 100% maritime status under the Longshore Act.  There is no walking in and out of “status”.

The employer in Caputo raised the “point of rest” theory as a defense.  They argued that the injured workers were handling cargo that had already reached its “point of rest” at dockside and thus were no longer involved in loading/unloading.  The Court rejected this theory in light of the expansive purposes of the Amendments and the realities of the longshoring occupation.

Today we recognize this in the principle that all workers who contribute to or facilitate the loading/unloading process are covered by the Longshore Act.  This includes all intermediate steps between the vessel and land transportation.

There is no “moment of injury” test for maritime employment status.  There is no “point of rest” for cargo at its first stop off the vessel.  The Longshore Act is a remedial statute which is to be liberally interpreted. These are the principles involved when we refer to the Caputo decision.

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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.