The Jones Act v. Longshore

​Which workers’ compensation act applies: the Longshore and Harbor Workers’ Compensation Act or the Jones Act? The Jones Act and the LHWCA are mutually exclusive. Thus, when dealing with a “water-based” (as opposed to “land-based”) LHWCA claim, it must be determined if the claim falls within the criteria of LHWCA coverage, or belongs more properly under the Jones Act. Of course, the claim might not belong under either jurisdiction and should be decided under a state workers’ compensation act.

The Jones Act (The Merchant Marine Act, 1920, 46 U.S.C. § 688), in pertinent part, reads as follows:
Any 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 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. ... 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.

Admiralty jurisdiction and the coverage of the Jones Act depends only on a finding that the injured was “an employee of the vessel, engaged in the course of his employment” at the time of his injury. The fact that a Jones Act petitioner’s injury occurred on land is not material. 46 U.S.C. § 740; Senko v. La Crosse Dredging Corp., 352 U.S. 370, 373 (1957).

The LHWCA, at 33 U.S.C. § 902(3), specifically excludes from its coverage a master or member of a crew of any vessel:
The term “employee” means 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, but such terms does not include--(g) a master or member of a crew of any vessel[.]

Despite the fact that a Jones Act “seaman” and a “crew member” excluded from the Longshoreman’s Act are one and the same (in other words that the statutes are mutually exclusive) disputes still arise about which Act has jurisdiction. A huge amount of case law has developed on this topic – including specific common law tests to determine (for example) whether an employee of a floating casino (e.g. riverboat gambling) can recover under the LHWCA, the Jones Act, or state workers’ compensation law. Claims must be analyzed on a case-by-case basis to determine the applicability of the LHWCA, the Jones Act, or state compensation law.

Greg Lois is the managing partner of LOIS LLC and dedicates his practice to defending employers and carriers in New York and New Jersey workers' compensation claims. Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016 & 2017 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or glois@loisllc.com