The Longshore and Harbor Workers’ Compensation Act: The Line Where State Workers’ Compensation Coverage Ends

The historical context surrounding the passage of the Longshore and Harbor Workers’ Compensation Act (Longshore Act) sheds light on the scope and purpose of the Longshore Act itself. In the early 1900s, states across the country adopted workers’ compensation stat- utes. Under these state workers’ compensation statutes, generally, in the event a worker was injured during the course and scope of their employment, regardless of who was at fault for such injuries, workers were due statutory medical and indemnity benefits from their employer. Under these same workers’ compensation statutes, in- jured employees were barred from civilly pursuing their employers for any associated negligence.

While state workers’ compensation statutes provided a clear statutory scheme for compensating employees injured within each state, the U.S. Supreme Court’s decision in Southern Pacifi c Co. v. Jensen, 244 U.S. 205 (1917) made it clear that state workers’ compensation laws did not apply to workers on the navigable waters of the United States. The states’ authority to legislate work- ers’ compensation stopped at the edge of the navigable waters of the United States, at what came to be called the “Jensen Line.” See, Id.

Pursuant to Article III, Section 2, Clause 1 of the United States Constitution, the federal government has jurisdiction over “all Cases of admiralty and maritime Jurisdiction.” 28 U.S.C. § 1333 provides that district courts have “original jurisdiction, exclusive of the courts of the States” over “[a]ny civil case of admiralty or mari- time jurisdiction.” Recognizing that state workers’ com- pensation statutes failed to legislate beyond the Jensen Line, in 1927, Congress passed the Longshore Act to fill the gaps and create a statutory scheme to compensate employees who are injured upon the navigable waters of the United States.

For an employee to be covered under the Longshore Act, an employee must have the appropriate “status” and “situs.” See, P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 73-74; See also, Northeast Marine Terminal v. Caputo, 432 U.S. 249 (1977). “The ... situs test provides compensa- tion for an ‘employee’ whose disability or death ‘results from an 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 load- ing, unloading, repairing, or building a vessel).’” See, P.C. Pfeiffer Co. v. Ford, 444 at 73. To determine whether a specific adjoining area is an appropriate “situs” to support longshore jurisdiction, courts are often required to make fact-intensive inquiries and determinations concerning the location of the work at issue.

“The status test defines an employee as ‘any person engaged in maritime employment, including any long- shoreman or other person engaged in longshoring opera- tions, and any harborworker including a ship repairman, shipbuilder, and shipbreaker ....’ § 2(3), 33 U.S.C. § 902(3).” Id. A worker has appropriate status if “a sig- nifi cant portion of his regularly assigned duties requires that he perform work related to traditional longshore- men operations or harbor work,” even if the worker has “incidental duties” unrelated to maritime employment. Smart v. Marathon Seafood, 444 So.2d 48 (Fla. 1st DCA 1983). In other words, to determine if an employee has appropriate status, courts must engage in a fact-intensive inquiry regarding the scope of the employees’ work du- ties. Id. Only workers with appropriate status and situs can pursue benefits under the Longshore Act.

The Longshore Act contains numerous statutory ex- ceptions that would prevent coverage from attaching to a worker who otherwise has appropriate status and situs. For a worker to be covered under the Longshore Act, the worker must meet the statutory definition of an “employee” and must not meet any of the statutory exceptions barring coverage. Specifically, a worker is not an “employee” under the Longshore Act if they are otherwise covered by a state workers’ compensation act and they are:

A. individuals employed exclusively to perform office clerical, secretarial, security, or data processing work;

B. individuals employed by a club, camp, recreational operation, restaurant, museum, or retail outlet;

C. individuals employed by a marina and who are not engaged in construction, replacement, or expansion of such marina (except for routine maintenance);

D. individuals who (i) are employed by suppliers, trans-porters, or vendors, (ii) are temporarily doing business on the premises of an employer described in para- graph (4), and (iii) are not engaged in work normally performed by employees of that employer under this chapter;

E. aquaculture workers;

F. individuals employed to build any recreational ves- sel under sixty-five feet in length, or individuals employed to repair any recreational vessel, or to dismantle any part of a recreational vessel in con- nection with the repair of such vessel;

G. a master or member of a crew of any vessel; or

H. any person engaged by a master to load or unload or repair any small vessel under eighteen tons net; 33 USC § 902.

While not an exhaustive list of exceptions to coverage, it is important to note the Longshore Act does not cover an “employee of the United States, or an agency thereof, or of any State of foreign government, or any subdivision thereof” or any injury that “was occasioned solely by the intoxication of the employee or by the willful intention of the employee to injure or kill himself or another.” 33 U.S.C. § 903.

If situs and status exist and the Longshore Act governs an injury, generally, a Longshore Act claimant is initially responsible for their attorneys’ fees and costs. Pursuant to 33 U.S.C. § 928 “if the employer or carrier declines to pay any compensation on or before the thirtieth day after receiving written notice of a claim for compensa- tion … a reasonable attorney’s fee against the employer or carrier … shall be paid directly by the employer or carrier to the attorney for the claimant in a lump sum after the compensation order becomes final.” 33 U.S. Code § 928. “If the employer or carrier pays or tenders payment of compensation without an award” a carrier or employer can still be liable for a claimant’s attorneys’ fees and costs under the Longshore Act if the matter is set “for an informal conference,” the claimant obtains a favorable recommendation, and “the employer or carrier refuse to accept such written recommendation, within fourteen days after its receipt by them.” Id. Under such circumstances, “if the compensation thereafter awarded is greater than the amount paid or tendered by the employer or carrier” the employer/carrier may be responsible to claimant’s attorneys for a reasonable attorney’s fee. Id.

Maritime workers often operate in potentially danger- ous working environments. Maritime workers may be limited in the safety measures they are permitted to take so they can effectively perform their work duties and protect their fellow workers. While a maritime worker must meet numerous “tests” and avoid numerous excep- tions to be covered under the Longshore Act, generally the Longshore Act provides maritime workers with com- pensation in the event of injury, regardless of fault, where injured maritime workers would otherwise be without redress. To effectively litigate under the Longshore Act, it is important to understand how to establish Longshore Act jurisdiction and how employer/carriers may be liable for claimants’ attorneys’ fee exposure.