Recently, attorney Lee J. Bloomfield, presented a seminar entitled: “Don’t Miss the Boat: Basics of Maritime Personal Injury Law in 45 Minutes”
From the seminar papers, we are producing a blog series. This is the last and eigth blog post of this series. This post includes a conclusion, of this series, and discusses The Longshore and Harbor Workers’ Compensation Act.
The Longshore and Harbor Workers’ Compensation Act
If an injured employee does not have the requisite Jones Act status, he or she probably will be covered under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. 901 et.(LHWCA). The LHWCA and the Jones Act are mutually exclusive remedial statutes that seq. cover maritime employees. The LHWCA, by its terms, excludes from coverage “a master or member of any vessel.” 33 U.S.C. § 902(3)(G). The Jones Act, by its terms, applies to “seamen,” but does not define that term. It has been held that the LHWCA’s reference to “master or member of the crew” is a refinement of the term “seaman.” Chandris, Inc. v. Latsis, 515 U.S. 347, 356 (1995).
The LHWCA is a scheme of workers’ compensation established by federal law which covers maritime workers. It is administered by the Secretary of Labor who is authorized to prescribe rules and regulations for its operation. Additionally, the Secretary is authorized to appoint deputy commissioners who administer the LHWCA in various compensation districts across the country. Injuries occurring in Tennessee are generally handled out of the Employment Standards Administration, Office of Workers’ Compensation Programs (OWCP) in Jacksonville, Florida.
The LHWCA specifically provides that compensation shall be payable for the disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States, including any adjoining pier, wharf, dry-dock, terminal, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel. 33 USC Sec. 903 (a). It is also provided that no compensation is payable when the injury is occasioned solely by the intoxication of the employee, or by the willful intention of the employee to injure or kill him or herself. Id. at Sec. 903 (c).
A covered employee is defined to mean any person engaged in maritime employment, including any longshore worker or other person engaged in longshore operations, and any harbor worker. Id. at Sec. 902 (3). Specifically excluded from coverage by the statute are individuals employed exclusively to perform office, clerical, or secretarial work, individuals employed by a recreational operation or restaurant, and several other categories of workers. These exclusions apply if the employee is covered under a state workers’ compensation system. Also specifically excluded are masters or members of the crew of any vessel (who, of course, are covered under the Jones Act). Id.
The LHWCA specifically defines an employer as a person, any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States, including any adjoining pier, wharf, dry-dock, terminal, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel. Id. at 902 (4).
In order to be covered under the LHWCA, an employee injured on navigable waters does not have to establish that he or she was engaged in maritime employment as that term is used in Sec. 902(3). Director, Office of Workers’ Compensation Programs, U.S. Dept. of Labor v., 459 U.S. 297 (1983). A worker injured in the course of his or her Perini North River Associates employment on navigable waters is engaged in maritime employment only if his or her presence on the water at the time of the injury was neither transient nor fortuitous. Bienvenu v. Texaco, Inc., 164 F.3d 901 (5th Cir. 1999).
Pursuant to § 905 (b), a LHWCA employer in certain situations can be liable to an employee injured as a result of its negligence as vessel owner.
Conclusion
Getting back to the hypothetical, what scheme, Tennessee comp, the Jones Act, or the LHWCA, covers your client? If you chose Tennessee comp you have made the wrong decision, which potentially could be disastrous for both your client and you. Under the fact scenario presented, the client is covered under either the Jones Act or the LHWCA. In my opinion, you have a good shot at the Jones Act and a tort recovery. If coverage is under the LHWCA, the client may be entitled to more generous benefits than under Tennessee comp and may have a tort claim on the basis of vessel negligence under § 905 (b). Please don’t miss the boat.
