"Maritime Employee" Compensation Exposure
By Allen E. Graham

Vessel owners and operators are familiar with the maintenance, cure and the Jones Act as avenues of recovery for injuries to seamen. However, other non-seamen personnel serving at shipyards, docks and harbors in connection with vessel loading and/or repairs, are usually covered under a workers' compensation scheme known as the United States Longshore and Harbor Workers' Compensation Act ("LHWCA").

The Longshore Act, as it's commonly known, is based upon the State of New York's workers' compensation scheme as it existed in 1920 when the LHWCA was adopted by Congress. The LHWCA requires an employer to pay for injuries arising out of and in the course of employment. The employer must pay compensation to an injured employee and to pay all medical bills and expenses which are causally related to the work related injury regardless of the legal cause of the injury or disability. As a trade off, the employer is immune from tort liability and litigation for work related injuries to its employees. The LHWCA is similar to state Workers' Compensation schemes in purpose and methodology. However, it is significantly different from most state workers' compensation schemes in scope, application and also from an economic standpoint.

Prior to 1972, an injured worker would only be covered by the LHWCA if he was injured "upon navigable waters." This created the undesirable circumstance of a worker walking in and out of LHWCA jurisdiction while performing the same job (e.g. unloading). In 1972 and again in 1984, the LHWCA was amended to extend its coverage landward in hopes of providing a more uniform application of the Act. Currently, there are two basic requirements for jurisdiction and coverage under the LHWCA:

1 . Situs The injury must occur, 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;

2. Status The employee must be engaged in "maritime employment" including any longshoremen or other person engaged in Longshore operations, and any harbor worker including a ship repairman, shipbuilder and shipbreaker.

Absent the above jurisdictional requirements, the claimant will not be entitled to Longshore benefits and must look to the general maritime law, a state's workers' compensation laws or other remedies. Again, seamen are excluded from coverage under the LHWCA. While the LHWCA was written with traditional longshoremen loading large cargo vessels in mind, it has been held to apply to workers' involved in those activities aboard charter vessels and sportfishing vessels.

Good Luck and Safe Boating!