Longshore Act May Cover Injured Workers On or Near Navigable Waterways
By Steven Schletker
Kentucky has 1,090 miles of navigable waterways (second only to Alaska), 11 public river ports, over 160 private marine terminals and 9 ferry operations.1 Workers injured within the scope of their employment on or near navigable waterways may fall within the jurisdiction of the Longshore and Harbor Workers’ Compensation Act, the Jones Act or general maritime law. The worker’s job duties and the nature of the employer’s busi- ness determine the appropriate compensation system. This article will discuss issues and potential causes of action to consider when contacted by a worker injured on or near navigable waterways.
The Longshore Act
The Longshore Act covers disability or death of an employee occurring upon the navigable waters of the United States, including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel.2 It is a no fault based system of workers’ compensation. Injured workers are entitled to two-thirds of their aver- age weekly wage and necessary medical treatment until maximum medical improvement is reached. If a worker suffers permanent injury (one per- sisting after maximum medical improvement), disability benefits are based upon what part of the body is affected. Injury to a scheduled part of the body (arms, hands, fingers, legs, toes) results in compensation being paid for a specific number of weeks. Injury to a non-scheduled part of the body (neck, shoulders, back, hips) affords the injured worker the opportunity to obtain benefits for life, based upon two-thirds of the loss of weekly earn- ings capacity.
Longshoremen perform work such as loading, unloading and cleaning barges, dry dock welding and conveyor belt system repair. To establish juris- diction under the Longshore Act, the worker must establish situs and status for a covered employer.
It is not necessary for an employee to be on-board a barge, towboat or dock to be covered under the Longshore Act. The 1972 Amendments to the Longshore Act extended coverage landward and broadened coverage to include workers not typically thought to be Longshoremen. Courts apply a functional relationship test of a work site to the loading/unloading or repair process rather than limiting Longshore situs to areas in physi- cal contiguity with navigable waters. Longshore coverage has been extended to a truck driver mov- ing metal taken from a barge that was stored in a scrap field3 and a mechanic injured in a gear room located five blocks from the nearest dock. 4
The term “employee,” as defined by the Longshore Act, includes any person engaged in maritime employment, including ship repair, ship- builder, and ship-breaker.5 As with the interpreta- tion of Longshore situs, some courts have liberally interpreted Longshore status. Claimants who have been found to satisfy the maritime employment prong of the jurisdictional test include a worker who participated in vessel unloading activity 15 percent of the time6 and a bulldozer operator who occasionally participated in load-outs.7 Congress has specifically excluded from Longshore cover- age individuals employed exclusively to perform office clerical, secretarial, security, or data pro- cessing work and individuals employed by a club, camp, recreational operation, restaurant, museum, or retail outlet.8 Floating casinos have been held to fall within the recreational operation exception to coverage under the Longshore Act.9
To be a Longshore employer, a company must have at least one worker engaged in mari- time employment, in whole or in part, upon the navigable waters of the United States, including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in load- ing, unloading, repairing, or building a vessel.10 If a company has even one employee engaged in Longshore employment on a covered situs, it is a Longshore employer.
Claims for Longshoremen injured in Kentucky are filed with the United States Department of Labor, Em- ployment Standards Administration, Office of Workers’ Compensation Programs, Jacksonville District Office. A Longshore claim is initially adjusted before a Department of Labor Claims Examiner. If an amicable agreement cannot be reached to resolve the case at or before an Informal Conference, the case is transferred to the Office of Administrative Law Judges for the purposes of conducting a Formal Hearing.
In addition to compensation benefits, the Longshore Act and gen- eral maritime law provide additional remedies to injured Longshoremen. An employee with a claim for dam- ages against a party other than his/her employer may receive Longshore compensation from the employer and bring a negligence action against a third party.11 33 U.S.C. § 905(b) af- fords a worker injured by the neg- ligence of a vessel, the opportunity to receive Longshore compensation benefits and, under limited circum- stances, maintain an action against the vessel, even if the vessel is owned by the employer.
Jones Act jurisdiction is invoked when a worker moves beyond the wa- ter’s edge, boards a vessel or identifi- able fleet of vessels and performs ser- vices while the vessel is underway. Any seaman who suffers personal injury in the course of his/her employment may maintain an action for damages at law with the right of trial by jury.12 The test of seaman status under the Jones Act is an employment-related con- nection to a vessel in navigation. The test is met where the trier of fact finds that (1) a plaintiff contributed to the function of, or helped accomplish the mission of, a vessel; (2) the plaintiff’s contribution was limited to a par- ticular vessel or identifiable group of vessels; (3) the plaintiff’s contribu- tion was substantial in terms of its (a) duration or (b) nature; and (4) the course of the plaintiff’s employ- ment regularly exposed the plaintiff to the hazards of the sea.13 Examples of Jones Act seaman occupations include deckhand, pilot, engineer (on-board mechanic) and cook. Jones Act sea- man status is typically denied to work- ers aboard floating casinos that have been moored to the shore in a semi- permanent or indefinite manner.14
Under the Jones Act, seamen are afforded rights parallel to those of railway employees under the FELA. Injured seamen are entitled to a recovery under the Jones Act if the employer’s negligence is the cause, in whole or in part, of the injury. A Jones Act plaintiff must establish the em- ployer’s negligence under the ordinary prudence standard. Once negligence is established, the plaintiff benefits from a reduced standard for causation between the employer’s negligence and the employee’s injury.15
Jones Act seamen also have the opportunity to pursue an ac- tion against the vessel owner under the seaworthiness doctrine. A vessel owner has an absolute duty to main- tain a seaworthy ship and is strictly liable for personal injuries suffered by crewmembers caused by a vessel’s unseaworthiness.16
If liability is established under the Jones Act or unseaworthiness is es- tablished under general maritime law, the plaintiff may recover a full array of damages. These include lost earnings to date and decreased earnings capac- ity in the future; reasonable expenses of necessary medical care and reason- ably likely future medical expenses; pain and suffering experienced and reasonably likely to be experienced in the future.
Jones Act seaman are also entitled to maintenance (a small per diem) and cure (medical treatment) until maximum medical improvement is reached. Maintenance and cure are payable regardless of whether the ship owner is at fault and whether the seaman’s employment caused the injury or illness.17
The opportunity to practice mari- time cases is not limited to attorneys practicing on the Atlantic, Pacific and Gulf coasts. Workers injured on or near navigable waterways, including the Ohio, Mississippi, Kentucky, Ten- nessee, Licking and Big Sandy Rivers, may be entitled to a recovery that greatly exceeds state workers’ com- pensation benefits. A careful examina- tion of an injured worker’s job duties and the nature of the employer’s business will help identify the proper compensation system and causes of action to maximize potential recovery.
1. Ky. Trans. Cabinet, Freight Planning Newsletter (Aug. 2006).
2. 33 U.S.C. § 903(a).
3. Waugh v. Matt’s Enterprises, Inc., 33 BRBS 9 (1999).
4. Stratton v. Weedon Engineering Co., 35 BRBS 1 (2001) (en banc).
5. 33 U.S.C. § 902(3).
6. Shives v. CSX Transp., (In re CSX Transp., Inc.), 151 F.3d 164 (4th Cir. 1998).
7. Zeringue v. McDermott, Inc., 32 BRBS 275 (1998).
8. 33 U.S.C. § 902(3)(A)(B)(C).
9. Boomtown Belle Casino v. Bazor, 313 F.3d 300 (5th Cir. 2002).
10. 33 U.S.C. § 902(4).
11. 33 U.S.C. § 933(a).
12. 46 U.S.C. § 30104.
13. Chandris, Inc. v. Latsis, 515 U.S. 347 (1995).
14. Pavone v. Mississippi Riverboat Amuse- ment Corp., 52 F.3d 560 (5th Cir. 1995); Watson v. Ind. Gaming Co. LP, 337 F. Supp. 2d 951 (E.D. KY 2004).
15. Gautreaux v. Scurlock Marine, 107 F.3d 331 (5th Cir. 1997).
16. Churchwell v. Bluegrass Marine, Inc., 444 F.3d 898 (6th Cir. 2006).
17. Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 527 (1938).