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.
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 (see below).
Over the past 40 years, containerization has meant that traditional longshoring operations – loading and unloading cargo – has moved inshore. This technological change means that “the container is the modern substitute for the hold of a vessel.” International Terminal Operating Co. v. Blundo, 432 U.S. 249 (1977). The Supreme Court has instructed that the Longshore Act was intended to be adapted to these conditions. Therefore, coverage will be found under the Act not based on what the employee was doing at the exact time of loss – the specific job he was doing at that time – but rather, upon the workers’ overall status. Northeast Marine Terminal v. Caputo, 432 U.S. 249 (1977).
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). 33 U.S.C. § 903(a). Jurisdictional questions based on issues of situs are fact-sensitive.
Maritime employment is more than simply work done over navigable water. Bienvenu v. Texaco, Inc., 124 F.3d 692 (5th Cir. 1997), reconsidered en banc at 164 F.3d 901 (5th Cir. 1999). To be compensable under the At, the employee’s proximity to navigable water must be more than simply “incidental” or “fortuitous” – the nature of the work must somehow be linked to the water. The Supreme Court has instructed that the test of whether a claimant is engaged in maritime employment is whether they are required to perform their employment duties upon navigable waters, and “not simply because they are injured in a historical maritime locale.” Director, OWCP v. Perini North River Assocs., 459 U.S. 297, 324 (1983).
“Situs” includes land that is not contiguous to the navigable water, provided certain conditions are met:
- the suitability of the site for maritime purposes,
- the use of adjoining properties,
- proximity to the navigable waterway,
- whether or not the site is as close to the waterway as is feasible, given all of the circumstances.
These conditions all focus on the functional relationship of the of the land, rather than the specific location of the injury site. See Brady-Hamilton Stevedore Co. v. Herron, 568 F.2d 137, 141 (9th Cir.1978). Jurisdictional questions arising from location facts need to be reviewed on a case-by-case basis.
Does Longshore Coverage Apply?
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