And on previous occasions we discussed the coverage “uncertainty zone” that exists as a practical matter between the Longshore Act and the Jones Act.
Some of these same issues come up with regard to a coverage analysis of railroad workers.
And the discussion of railroad workers involves a practical overlap between the Longshore Act and, not the Jones Act, but an other liability statute, the Federal Employers Liability Act (FELA) (45 U.S.C. section 51 et seq, 1908).
So let’s talk about railroad workers.
First, some of the points we made relative to truck drivers also apply to railroad workers.
1) With regard to “status”, section 902(3) of the Longshore Act defines the term “employee” as “any person engaged in maritime employment ….”
2) Sections 902(3)(A) – (H) as well as various provisions of section 903 contain express exclusions from Longshore Act coverage. None of these exclusions mentions “railroad worker”.
3) So, whether or not a railroad worker is covered by the Longshore Act depends on the same issues of status and situs that apply to any other employee.
4) A worker whose duties are an integral or essential part of the loading/unloading process has status under the Longshore Act.
5) If any part of a worker’s regular duties is maritime then that worker is a maritime employee covered by the Longshore Act.
6) The first stop off the vessel for cargo is not necessarily the end of the unloading process. All intermediate steps in moving the cargo around and between the terminals, warehouses, and temporary storage facilities are part of the unloading process until the cargo finally directly enters into overland transshipment.
So, just to be redundant, any employee who meets status and situs under the Longshore Act is covered under the Longshore Act, and just because he works for a railroad doesn’t mean that he’s not covered. In fact, it turns out that railroads have definite Longshore Act exposures.
The Supreme Court made this clear in Chesapeake & Ohio Railway v Schwalb, 493 U.S. 40 (1989). Railroad workers who actually load and unload rail cargo are covered by the Longshore Act, and also covered are those workers who maintain, repair, and generally clean up around the equipment used in the loading and unloading process. These workers are integral or essential to the maritime activity. And it’s important, because since these workers are covered by the Longshore Act they do not have the FELA remedy against their railroad employer based on the Longshore Act’s section 905(a) exclusivity provision.
But there are other workers in the chain of railroad transportation. Could these workers also be covered by the Longshore Act?
Let’s take as our model a typical railroad operation. Railroad cars filled with coal, for example, are brought over the inland rails to a switching yard. The switching yard either services various continuing destinations, such as loading docks, or may be itself located at dockside. The loading docks are also owned by the railroad. At the switching yard the incoming rail cars are broken down and reassembled into new trains depending on their continuing destination. The new trains carrying coal are then pulled to the docks by train operating personnel who lock the coal filled cars into mechanical dumpers. Railroad coal dock employees then operate the dumpers to dump coal onto the conveyor belts that carry the coal directly to the ships. The train operating employees then bring the rail cars back to the switching yard, sometimes loaded with new incoming cargo (This may sound familiar. It is based on the facts in Stowers v. Consolidated Rail Corporation, 985 F.2nd 292 (6th Cir. 1993)).
The actual loading equipment is operated and maintained by loading dock employees. The employee that is the subject of our discussion works in the switching yard, brings the cars to the dock, positions them for unloading/loading and them brings them back to the switching yard.
Is the switching yard activity part of overland commerce? Is it an intermediate step in the loading/unloading process? Is it traditional railroad employment and is this relevant? Specifically, are the employees who reassemble the cars at the switching yard and pull them to the docks and back covered by the Longshore Act?
These are good questions. The Federal Sixth Circuit Court of Appeals in Stowers decided that these were not maritime employees, but it was a close case, and it could go the other way in other Circuits.
As we noted in the discussion of truck drivers, at some point the cargo has been unloaded and has entered land transportation, or has left overland transport and has entered the loading process; that point may not be easy to recognize in a multi-stage, multi-location process. But there is a limit, and the point at which the mode of transportation/commerce changes is a good place to look for it.
So try to identify the final step at which the cargo is put into land commerce (or removed from land commerce in the other direction). Where is the line to be drawn between overland transportation and “longshoring operations”? As the Stowers court put it, “As the unique facts of each case are presented, the line must be drawn somewhere.” So, good luck with that.
One view – the switchyard workers have no direct role in loading/unloading. They just drive the trains, which is railroad work performed at switchyards all over the country, not just those where the next stop happens to be a waterside dock. This is generic railroad work, not maritime employment. The cargo remains in land commerce (or enters it) at the point that it is loaded (unloaded) directly from the ships. The actual loading/unloading is performed by loading dock employees.
Another view – The switching yard activity is an intermediate step essential to the maritime process of loading/unloading and those workers have status under the Longshore Act. The coal has left inland commerce at the switching yard.
Remember, there’s a lot at stake for the worker and for the employer. If the worker is covered by the Longshore Act, he loses his personal injury FELA negligence remedy since under section 905(a) of the Longshore Act, workers’ compensation is his exclusive remedy.
And as we saw with the Jones Act, the actual status of the worker may not be decided until the jury in a FELA civil suit or a U.S. Department of Labor Administrative Law Judge specifically decides that issue.
Note: this discussion has centered on the issue of “status”. Remember that “situs” must be separately satisfied for Longshore Act coverage.
Summary: railroads clearly have a Longshore Act exposure. Where that exposure starts and stops is uncertain.
Conclusion: if there is any doubt, buy insurance.