Using Longshore as a Defense to Jurisdiction in New Jersey

New Jersey Excludes Longshoremen from Coverage.

New Jersey is one of the few exclusionary states: pursuant to New Jersey’s Workers’ Compensation Act, specifically section 36 (N.J.S.A. 34:15-36), if a petitioner has claim under the Longshore and Harbor Workers’ Act she can not make a claim for benefits under New Jersey’s Act. The state judge lacks have the discretion to decide whether or not the Federal claim is valid. Even if the state judge could, once the claimant accepts Longshore benefits, the New Jersey court loses jurisdiction as per Section 36.

Section 36 of the New Jersey Act sets forth definitions for eligibility for benefits, and specifically carves our “anyone eligible for benefits under the Longshore Act” by defining employees as

any natural person exclusive of . . . employees eligible under the federal “Longshore and Harbor Workers’ Compensation Act,” 44 Stat. 1424 (33 U.S.C.s.901 et seq.), for benefits payable with respect to accidental death or injury, or occupational disease or infection.

Therefore, understanding the basics of how jursidiction is established for a Lonsghore claim is essential in defending cases in New Jersey, with its long coastline, many maritime employments, and one of the largest and most active ports in the world.

How is jurisdiction established under the LHWCA?

The Longshore and Harbors Workers’ Compensation Act (“LHWCA”) covers longshore/harbor workers and other “maritime” workers. The Act has also been applied to certain other workers under the Defense Base Act.

“Status” and “situs.”

The LHWCA set forth the requirements for coverage. “Status” refers to the nature of the work performed; “situs” refers to the place of performance.

Status.

The employee claiming benefits under the LHWCA must be engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, including any harbor-worker including a ship repairman, shipbuilder, and ship-breaker. There are specific exclusion which apply to status.

Situs.

The jurisdictional trigger for a claim under the LHWCA is an injury 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). Jurisdictional questions based on issues of situs are fact-sensitive.

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Greg Lois is the managing partner of LOIS LLC, a 21-attorney law firm dedicated 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@lois-llc.com