002 Coverage & Jurisdiction

COVERAGE

WHO IS COVERED BY THE ACT?

Jurisdiction under LHWCA has two elements:

• First, a work-related injury or occupational disease while performing a covered function (i.e., maritime employment) ("status").

• Second, the employment must be on a covered situs (the navigable waters or an adjoining area).

Thus, a pizza delivery driver injured while making a delivery to the dock would not be covered (no status).

Uncertanties created by the many "maritime" job functions and Congress's vague reference to "adjoining areas" generate considerable litigation

Exclusions from coverage

Any person engaged by a master to load or unload or repair any small vessel under eighteen tons net

Ask yourself the following:

Did the injury take place on the navigable waters or an adjoining area?

and

Was the employee performing a maritime function?

and

Is there a specific statutory exclusion to coverage (aquaculture worker, etc.)?

THE JURISDICTIONAL GODS

SITUS and STATUS

The Ancient Romans believed that

Longshore Act coverage came directly

from the gods

and

.. and when both of these gods

found themselves in the same place....

Today we know differently.

STATUS

Section 2(3) defines an “employee” to be:

any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker.

The terms “maritime employment” or “harbor-worker” are not further defined by the Act.

In Caputo, the Supreme Court said, “[t]he language of the 1972 Amendments is broad and suggests that we should take an expansive view of coverage. Indeed, such a construction is appropriate for this remedial legislation.

The Status Analysis

Critical inquiry: What is the nature of the employment activity being performed by that employee.?

Look at both the job being performed at the time of the injury, as well as the overall job duties.

Even if not engaged in maritime employment at the exact moment of injury, the overall nature of job duties may bestow status

In Fleischmann v. Director, OWCP, 137 F.3d 131 (2d Cir. 1988), the 2d Circuit said the phrase “harbor-worker” means marine construction workers because it “is reasonable and preserves the purposes of the statute.” Fleishmann was a pile driver working on a bulkhead damaged by a series of storms. He fell from a dock, landing neither in the water nor on solid ground.

The Second Circuit found that marine construction workers fall within the definition of a “harbor-worker” and conferred jurisdiction over the case.

More Examples

Case:Pittman Mechanical Contractors, Inc. v. Director, OWCP, 35 F.2d 122 (4th Cir. 1994).

Facts:Claimant was employed as a pipe welder to construct pipelines for a pier. The project involved removing the old pipelines and replacing them with new pipelines. The pipelines were used to load fuel, steam, and water onto vessels when they are docked at the pier.

Holding: Installation and repair of equipment necessary for the loading process is maritime employment.

Case:Weyher-Livsey Constructors, Inc. v. Director, OWCP, 27 F.3d 985 (4th Cir. 1994).

Facts:Claimant was pipe fitter to building power plant at Navy shipyard. The power from the plant would be used almost exclusively at the shipyard. Any excess power generated would be sold commercially outside the shipyard.

Holding: Connection to loading and unloading of vessel too tenuous to support a finding of coverage under the LHWCA

The Situs Requirement

The 72 Amendments put a list of covered facilities (“any adjoining pier, wharf, dry dock, terminal, building way, marine railway”) and a general description of other areas that are covered (“other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel”) in the Act

Playboy's Miss November, 1972 in 1972..(not the full picture)

What is an “other adjoining area” under the LHWCA?

• Some courts have required that the adjoining area be contiguous to the area being used to load and unload vessels
• Other courts look at the functional relationship between the adjoining area and the employer’s operations.
• Unlike the status test which focuses on the activities of the particular employee in question, the situs test focuses on the employer’s use of the adjoining area.
• Inquiry focuses on the current use of the area; not future intended use

Third Circuit, a functional relationship test applies.

Employee injured on public street moving cargo from one terminal to another was covered.

In Nelson, an unimproved beach used for the loading and unloading of sand was an 'adjoining area'.

Playboy's Miss November

1972 in 2001

The Fifth Circuit follows a broader test

In Texports Stevedore Co. v. Winchester, the court held: Although ‘adjoin’ can be defined as ‘contiguous to’ or ‘to border upon,’ it also is defined as ‘to be close to’ or ‘to be near.’ ‘Adjoining’ can mean ‘neighboring.’ To instill the term its broader meanings is in keeping with the spirit of the congressional purposes.

So long as the site is close to or in the vicinity of navigable waters, or in a neighboring area, an employee’s injury can come within the LHWCA. To require absolute contiguity would be to reenact the hard lines that caused longshoremen to move continually in and out of coverage.

Whether an injury occurred on a covered situs is very much fact-dependent and the law of the Circuit.

Next: Concurrent Jurisdiction

Captain Smith and the Senior Officers of the Titanic

A master or member of a crew of any vessel (generally these people are covered under the Jones Act)

This is Board member Jim Devine,

New York Container Terminal, handcrafting his classic wooden Kayak

Individuals employed to build any recreational vessel under sixty-five feet in length or individuals employed to repair any recreational vessel or to dismantle any part of a recreational vessel in connection with the repair of such vessel

Individuals employed exclusively to

perform office clerical, secretarial,

security or data processing work

Aquaculture workers (commercial fishermen and the like)

The Roman god "Situs" was

thought to keep vigil over

the harbors...

Suppliers, transporters, or vendors who are temporarily on the employer's premises and are not engaged in the same type of work as the employer.

Status ensured the safety

of those who labored on

piers and wharfs..

Individuals employed by a club, camp, recreational operation, restaurant or museum or retail outlet.

Individuals employed by a marina who are

not engaged in construction, replacement,

or expansion of such marina

Similarly, a stevedore injured while driving a tractor-trailer in the middle of Kansas would not be covered (no situs).

• The Supreme Court reiterated that an employee must either be in an enumerated occupation or engaged in the loading or unloading of a vessel

• The . . . expansive view of maritime employment is also inconsistent with our prior cases under the 1972 Amendments to the LHWCA.

• But Congress did not seek to cover all those who breathe salt air. Its purpose was to cover those workers on the situs who are involved in the essential elements of loading and unloading

• While ‘maritime employment’ is not limited to the occupations specifically mentioned in §2(3), neither can it be read to eliminate any requirement of a connection with the loading or construction of ships.

• The ‘maritime employment’ requirement is an occupational test that focuses on loading and unloading.

• The Amendments were not meant ‘to cover employees who are not engaged in loading, unloading, repairing, or building a vessel, just because they are injured in an area adjoining navigable waters used for such activity.’

Sally, the Jurisdiction Hound

Nelson v. American Dredging Co. - unusual case decided on the basis of was loading or unloading. Claimant was bulldozer driver in beach replenishment project. Sand was pumped from a barge to the shore. Claimant spread the sand over the beach. Third Circuit found that he was engaged in the loading and unloading of a “vessel” (the barge) and its “cargo” (the sand) and, thus, covered