Multi-Jurisdictional Workers’ Compensation

United States Longshore and Harbor Workers’ Compensation Act

Established 1927

1908 Federal WC Act covered certain “federal” employees but not maritime workers

1914 Jensen died while unloading vessel over Navigable water-he was a longshoremen at time of injury on Navigable waters

On appeal, state WC claim rejected:‒ States were without power to extend WC remedy to Longshoremen injured on a

gangplank between ship & pier. Federal jurisdiction over “maritime matters”‒ Longshoremen injured on the seaward side of a pier were left without a

compensation remedy; Longshore injured on the pier were protected by state compensation Acts.

Congress enacted a federal system in 1927 – The United States Longshore and Harbor Workers Compensation Act- as a “gap filler” to injuries occurring upon the navigable waters of the United States by workers that were not Jones Act Seamen.

Southern Pacific v. Jensen

USL&H – The Act

Section 903. Coverage“Compensation shall be payable under this Act ……from injury 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)”

All waters of the United States with tidal influence

Waterways engaged in maritime commerce

Adjoining piers, wharf (1972 amendment)

USL&H – Navigable Waters

USL&H - Situs

Navigable Waters, or Adjoining pier Wharf Dry Dock Terminal Building Marine Railway

USL&H - Situs

Navigable Waters, or Adjoining area customarily

used by an employer‒ Loading‒ Unloading‒ Repairing‒ Building a vessel

USL&H - Status

Any person engaged in maritime employment including: longshoring operations ship repairman shipbuilder ship breaker

USL&H - Status

Clerical, secretarial, security, data processing **

Camp, club, restaurant, museum, retail outlet or recreational operation employees

Marina employees not engaged in construction of marina (maintenance excepted)

Suppliers, transporters or vendors temporarily on premises

Aquaculture workers

**only if employees are subject to state workers’ compensation law.

USL&H - Status

building, repairing or dismantling recreational vessel under 65 feet in length**

repairing or dismantling recreational vessel **

master or member of acrew of any vessel

person engaged by master to load or unload or repair any small vessel under 18 tons net

**only if employees are subject to state workers’ compensation law.

Recreational Vessels and the USL&H Act

131 footer(excludes repair or dismantling)

29 footer

USL&H - Employer

“The term ‘employer’ means an employer 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, building way, marine railway or other adjoining area customarily used by an employer in loading, unloading, repairing or building a vessel)”

Perini 459 US 297 (1983)Bienvenu 164 F 3rd 901 (5th cir 1999)Morganti 415 F. 3d.407 (2nd Cir 2005)

USL&H - Employer

Governments: officer or employee of

United States, or agency thereof, or any state or foreign

government, or any subdivision thereof

USL&H - Subcontractors

Section 904. Liability for Compensation“In the case of an employer who is a subcontractor, only if subcontractor fails to secure the payment of compensation shall the contractor be liable for and be required to secure the payment of compensation.”

Secure means to insure or self insure.

USL&H – Legal Entities

Members (covered, no waiver possible) Managers (covered, no waiver possible) Employees (covered)

Executive Officers (covered, no waiver possible) Employees (covered)

Partners and Individuals (not covered)

USL&H – Special Fund

Tax based on % of indemnity payments and use of fund Federal Tax Multiplier on Retros Non “F” Multiplier on State Act classes

USL&H – Related Acts

L&H benefits for civilian employees working on US military bases throughout the world who are not paid with funds appropriated by Congress

L&H benefits to all workers whose duties are performed while out on the Outer Continental Shelf exploring/extracting natural resources, who are not seaman

L&H benefits to employees of contractors performing public works construction outside the US, US Territories, possessions and at military bases outside US

Continental Shelf (source: Office of Naval Research)

Regional Planning Areas on the Outer Continental Shelf

Multi-Jurisdictional Workers’ Compensation

SIMPLE SUMMARYHow To Determine The Exposures

Around docks, piers, vessels, cargo, but are not assigned to specific vessels, you have an USL&H Act exposure

Around specific vessel, or designated fleet, whether permanently assigned or not, you have an Admiralty exposure

USL&H – Dual Capacity

Section 905(b) Exclusiveness of Liability Breach the duty to be seaworthy

causes injury to Longshoreman. Employee may bring action (in rem)

against vessel as third party Injury caused by negligence of

employer in it’s capacity as vessel owner

Multi-Jurisdictional Workers’ Compensation

Admiralty Law &

Merchant Marine Act (The Jones Act)

Admiralty Law

Federal Law Governing Navigation and Shipping Judiciary Act of 1789 Gives Federal Courts Jurisdiction Developed From British Admiralty Courts in American Colonies Primarily Local Matter, State Court Jurisdiction Law of Ships Flag Determines Source of Law

Admiralty Law Obligation to Injured/Sick

Transportation Wages Maintenance Cure

1903 The Osceola, 189 U.S. 158

Merchant Marine Act (The Jones Act)

1920Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.

To pay transportation, wages, maintenance and cure

Vessel must be “reasonably fit for her intended purpose”

Vessel owner has duty to provide a seaworthy vessel

‒ Breach of this duty with resulting injury leads to claim for “unseaworthiness”

in rem claim against the vessel - Federal Jurisdiction

Maritime Employers Responsibilities

Unseaworthiness can be instantaneous

Admiralty Extension Act

Extended admiralty jurisdiction to shoreside if injury or illness caused by a vessel through its maritime operations.

“The admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable waters, not withstanding what such damage or injury be done or consummated on land.”

Other Admiralty Extensions

The Seamen

Answer: Seamen

Person is: Permanently assigned to or performs

a substantial part of his work upon A vessel in navigation (or to an

identifiable group of such vessels) and

Contributes to the function or mission of the vessel

Two Prong Test to satisfy the criteria of:“employment related connection to a vessel in navigation”

‒ First: “Employees duties must contribute to the function of the vessel or to the accomplishment of its mission.”

‒ Second: “Seamen must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature.”

“A worker who spends less than about 30% of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act.”

US Supreme Court: Chandris, Inc. et al. V. Antonios Latsis, 513 US 945,115 S.Ct. 2172 (1995)

Seamen Status

U.S Two U.S. Supreme cases specific to “in navigation”

Vessel need not be in motion to qualify as a vessel. It is relevant whether vessel is used or “capable” of being used in maritime transportation either in theory or practical means

Vessel was in drydock, still in navigation even though it is not accomplishing a “transportational” function. Contribution to vessel’s function or accomplishment of its mission must be substancial in duration and nature-created the 30% test.

“In Navigation” Examples

“Mission of the Vessel”

McDermott International, Inc. v. Wilander, 498 U.S. 337 (1991)

“…we believe that the requirement that an employee’s duties must ‘contribute to the function of the vessel or of the accomplishment of its mission’ captures well an important requirement of seaman status. It is not necessary that a seaman aid in navigation or contribute to the transportation of the vessel, but a seaman must be doing the ship’s work”

“Mission of the Vessel” Examples

Overlaps-Dual Jurisdiction

Divers Pile drivers-marine construction Seafood processors on vessels Oil spill responders Entertainment vessels Biological observers

Southwest Marine, Inc. v. Gizoni, 502 U.S 81 (1991)

Papai v. Harbor Tug 9th Cir. (1997)

SUMMARYRegardless of fault, employer has duty to provide….1. Transportation2. Wages3. Maintenance4. Cure

Employee can claim against the vessel for unseaworthiness

Allows employee suits against employer for negligence.

Admiralty Law and the Jones Act

Merchant Marine Act (The Jones Act)

Allows employee (crew member) suits against employer

Allows for trial by jury and remedy for wrongful death

in personam claim against employer/vessel owner - Local Jurisdiction

Standard Workers Compensation Policy

Insurance Solutions

USL&H Endorsement

Maritime Employers Liability Endorsement

Voluntary Compensation Maritime Endorsement

Protection and Indemnity Policy

Standard Workers’ Compensation Policy

Item 3A: Statutory State Act Coverage

Item 3B: Employer Liability Limits (905b)

Item 3C: Other States Coverage

USL&H and all amendatory acts thereto

FELA: Federal Employers Liability Act

Injury to master or member of the crew of any vessel

USL&H Coverage Endorsement

Amends USL&H exclusion in standard policy

Statutory USL&H benefits in schedule of states listed

Premium increase for non “F” class multipliers

Section 905(b); dual capacity addressed under part two - employers liability

No coverage for Defense Base Act, etc….

Maritime Employers Liability Coverage Endorsement

Transportation, Wages, Maintenance and Cure - Excluded (unless a premium charge is shown in schedule. Paragraph 14)

Territorial limitation: (paragraph A.3. and A.6.)

Covers Master or Member of Crew (removes exclusion 10)

Excludes coverage under Protection & Indemnity policy (added exclusion 13)

Provides “in rem” coverage (paragraph D.)

Bodily injury by disease includes illness

Defense in addition to limits, unless amended

Maritime Employers Liability Coverage Endorsement

Scheduled description of operations

Transportation, wages, maintenance and cure

Per accident limit

Per disease aggregate limit

Voluntary Compensation – Maritime Endorsement

Insurance company volunteers to pay scheduled benefits

Bodily injury to master or member of crew

Work subject to endorsement is scheduled

Schedule of benefits listed (State Act or USL&H Act)

Release insured and carrier of all responsibility for injury

Transfer rights of recovery to carrier

cooperate with carrier in enforcing rights of recovery

Protection and Indemnity Policy

Covers loss of life or injury, or illness of any person, including crew (line 14, 15 & 16)

Employer

Owner and or operator of vessel

Covers removal of wreck (line 19)

Excludes compensation acts (line 44 & 45)

Insurance Solutions

Penalties for Failure to Insure

Penalties - USL&H Act

Employer subject to one year in jail

Employer can be fined up to $10,000

President, secretary and treasurer severally personally liable for compensation to injured.

Benefits payable to injured worker, out of pocket

Loss of exclusive remedy (employee suit allowed)

Broker error and omission claim

Penalties - Maritime

Transportation, wages, maintenance and cure paid out of pocket

Defense of negligence and or unseaworthiness claims out of pocket

Payment of judgement out of pocket

Broker error and omission

Putting it all TogetherO. Rickey Harris ; LongshoremanInsurance.com Phone 205-221-5466 Fax 866-497-8606

Call us for your Longshoreman and Jones Act Questions and Coverages. Licensed from Coast to Coast