There are several federally-based, admiralty-orientated, personal injury remedies for recovery:
general maritime common law
Death on the High Seas Act
Jones Act (Merchant Marine Act)
Longshore and Harbor Workers' Compensation Act (LHWCA)
However, the LHWCA and the Jones Act account for the overwhelming number of claims and are summarized below.
The Jones Act was passed in 1920. It is a maritime negligence statute that gives seamen a right of recovery against a ship or employer. Admiralty jurisdiction and coverage under 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 an injury occurred on land is not material. General admiralty law does not require that a "seaman" aid in navigation; it is only necessary that a person be engaged on board a vessel in furtherance of its purpose.
Longshore and Harbor Workers' Compensation Act (LHWCA)
The LHWCA was passed in 1927 with major revisions in 1972 and 1984. It is a compensation statute that covers "maritime workers" but excludes members of the crew of a vessel.
When considering "coverage" under the LHWCA, there are three major groupings: 1) employment is considered a longshore/harbor worker or other "maritime" worker and clearly covered under the LHWCA; 2) employment is maritime in nature, but more properly classified as a seaman attached to a vessel and entitled to recovery under the Jones Act; 3) employment is not considered as maritime and covered under a state workers compensation act.
The LHWCA defines "employer" as "an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including an 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."
The LHWCA defines "employee" as "any person engaged (in whole or in part) in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, ship builder, and shipbreaker, but such term does not include a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net or any officer or employee of the United States or any agency thereof or any state or foreign government or any political subdivision thereof."
In 1984, Congress amended the act to limit shoreside coverage when the following individuals are covered under a state act:
office clerical, secretarial, security, or data processing work
employed by a club, camp, recreational operation, restaurant, museum, or retail outlet
employed by a marina who are not engaged in construction, replacement, or expansion (except for routine maintenance)
employed by suppliers, transporters, or vendors who are temporarily on the maritime site and not performing any portion of the maritime employer's work
build, repair, dismantle recreational vessels under 65 feet
Note: The American Recovery and Reinvestment Act of 2009 (ARRA) “stimulus bill” effective February 17, 2009 amends the USL&H Act to expand the exclusion to the Act by eliminating the 65 feet vessel size restriction for repair and dismantling work.
The exclusion continues to apply to individuals employed to “build” any recreational vessel under 65 feet. Refer to NCCI Circular FYI-CW-2009-01.
New Regulation, December 2011
Regulations Implementing the Longshore and Harbor Workers' Compensation Act: Recreational VesselsA Rule by the Labor Department on 12/30/2011
Also refer to NCCI Circular FYI-CW-2012-01.
Status and Situs
The requirements for "coverage" under the LHWCA rests on two tests: "status" refers to the nature of the work performed; "situs" refers to the place of performance. Situs was expanded in 1972 to include an "adjoining area" concept which has been broadly interpreted to include land that is not contiguous to the navigable water, provided certain conditions are met:
1) the suitability of the site for maritime purposes,
2) the use of adjoining properties,
3) proximity to the navigable waterway
4) whether or not the site is as close to the waterway as is feasible, given all of the circumstances.
The LHWCA does not define "navigable waters" so it is up to case law to determine. Courts usually view navigable waters as those that form a continuous body of water capable of sustaining interstate or international commerce, as opposed to land-locked body of water completely within a state.
Case hearings and appeals process start with the Office of Administrative Law Judges, the Benefits Review Board, the appropriate circuit court (not district court), and end with the US Supreme Court.
Exemption from LHWCA
An employer may request an exemption from the Longshore and Harbor Workers Compensation Act if it is engaged in building, repairing, or dismantling exclusively small vessels. For Indiana employers, they may contact:
U.S. Department of Labor
Mickey Leland Federal Building
1919 Smith Street, Suite 870
Houston, TX 77002
Phone: (713) 209-3235
District Director: Brad Soshea
Regional Director: E. Martin Walker
As of 07/21/09 per website of U.S. Department of Labor, Employment Standards Administration, Division of Longshore and Harbor Workers' Compensation
Extensions to LHWCA
Defense Base Act was enacted by Congress in 1941 to extend the provisions of the LHWCA to employees of American contractors performing public works for the U.S. government outside the continental United States.
Nonappropriated Fund Instrumentalities Act was enacted by Congress in 1952 to extend the provisions of the LHWCA to civilian employees working on U.S. military bases throughout the world who are not paid with funds appropriated by Congress.
Outer Continental Shelf Lands Act (OCSLA) was enacted in 1953 to extend the provisions of the LHWCA to employers and employees exploring, removing, and transporting natural resources found on the outer continental shelf of the United States.
We are often asked if workers performing duties on casino boats, whether as employees of the casino working the gambling tables or contractors engaged in construction or repairs, are subject to the LHWCA or the Jones Act (admiralty law). This is a legal question which the ICRB cannot determine. According to the WC Board Guide to Workers Compensation, "Currently, riverboat casino employees may be treated as seamen under the Jones Act. Riverboat casino employees who have been injured and are unsure of their rights should contact an attorney familiar with worker’s compensation and with the Jones Act."
Note: Since the issuance of the Guide, an Indiana based federal court also recently analyzed the issue and basically held that because the Indiana boats were moored and did not travel on the open waters, the Jones Act was inapplicable. Reference Howard v. Southern Illinois Riverboat Casino Cruises, Inc., 364 F.3d 854, 857 (7th Cir. 2004).
Here's an excerpt related to the casino boat issue:
"2. The Future Classification of Floating Casinos
Next I would like to discuss floating casinos. As I mentioned earlier, the advent of floating casinos is creating many issues for employees, employers and insurance companies. One commentator has noted that "[h]idden from the neon lights and the excitement of the gaming tables, lawyers representing casino owners in the booming business of river boat and dockside gambling are spinning their own legal roulette wheel." Increased proliferation of floating casinos and insurance issues is causing some casino owners to buy increased levels of insurance in anticipation of the possibility for higher jury awards in Jones Act claims.
Added to this business boom is the current state of the law. Under Pavone a casino's status will depend on whether or not it is permanently moored. Further, under the Papai reading of the fleet doctrine, the concept of vessels is limited to a group with the same owner or controller. Papai could help owners of floating casinos avoid costly negligence law suits by dealers, waitresses and other workers who are injured while working aboard docked vessels. For example, owners of river boat casinos may start to lease their workers, "fostering an already growing trend to lease maritime workers."
The intersection of these various areas can be fully appreciated through the posturing of a simple question of: How do you analyze a Blackjack dealer who is injured at work?
First, based on Wilander, the dealer would meet the first prong of the seaman status test because he or she contribute to the vessel's mission, which is gambling. However, the next issue is whether the casino leaves the dock. If it does, then the dealer would be exposed to the perils of the sea. If not, then this situation would be analogous to Pavone, where the plaintiff was found not to be a seaman. Finally, if the casino leased the dealer who worked on various vessels not owned or operated by the same organization, then he or she would not qualify as seaman.
Therefore, as you can see, a number of factual situations create the mosaic of potential coverage under the Jones Act in these situations. Further case law must develop, however, for now if you are injured while working on a floating casino, most courts would find you a Jones Act seaman and not a LHWCA claimant. Therefore, counsel must be careful to look at the vessel's characteristics together with the employee's current duties to determine if they are sea-based or land-based."
NOTE: The Jones Act and LHWCA are subject to interpretation by the courts. Therefore, the determination of appropriate coverages is the responsibility of the insured and carrier. We can, however, explain the premium charges and how to get coverage (endorsements to use).
Coverage under the assigned risk plan (WCIP) is only available to those employers required to obtain such coverage by the laws of the state.
Accordingly, since state act coverage is inherent in all LHWCA and admiralty classifications, only those employers eligible for workers compensation coverage can obtain LHWCA or admiralty coverage through the WCIP as these coverages are not available without state act exposure or on an "if any" basis.
As the standard WCIP policy specifically excludes any federal workers compensation laws as well as federal occupational disease laws, i.e., employees subject to LHWCA or the Jones Act, coverage for these employees is only available by endorsement to the policy.
Coverage under the Jones Act also may be provided through a Protection and Indemnity (P&I) policy. In general, a P&I policy is a liability policy which covers the liability incurred resulting from the operation of ships, including the liability for injuries incurred by the master and members of the crew. So, a P&I policy is designed to cover more than just liability for injuries to the master or members of the crew of a vessel. The Maritime Coverage Endorsement was not intended as a substitute for P&I coverage, but as a vehicle for providing coverage for exposure resulting from injuries to the master or member of the crew when the exposure is of an incidental nature and P&I coverage is not available. This situation would typically arise when the insured does not own a vessel, but none-the-less has some exposure to admiralty law.
P&I coverage is an ocean marine form that provides legal liability coverage for marine exposures. For example, if a third party or his property is injured in a collision with the insured's vessel, the P&I policy will respond to a claim. It also provides coverage for liability incurred as a result of injury to the master or member of the crew. The exclusion on endorsement WC 00 02 01 is designed to prevent pyramiding of coverage to prevent any injured party from an attempt to stack coverages since the endorsement does apply to bodily injury by accident.
So, if a P&I policy holder also holds a standard WC policy, coverage under the WC policy does not extend beyond that provided by the P&I policy. This limitation is clearly set forth in the Maritime Coverage Endorsement, WC 00 02 01A, section C.13. which states:
"This insurance does not cover: 13. bodily injury coverage by a Protection & Indemnity Policy or similar policy issued to you or for your benefit..."
Finally, unlike state act coverage, no one can exclude themselves from the provisions of the federal compensation acts. This includes executive officers and others who may have excluded themselves from state act coverage.
Policies for employers whose operations are subject to the LHWCA must contain the appropriate endorsement in order for state act benefits to be extended to those employees otherwise excluded from such benefits. The endorsements for LHWCA and the extension acts are as follows:
If coverage is requested under...
then use endorsement...
||WC 00 01 06 A|
|Defense Base Act
||WC 00 01 01 A|
|Nonappropriated Fund Instrumentalities Act
||WC 00 01 08 A|
|Outer Continental Shelf Lands Act
||WC 00 01 09 A|
Classifications for insurance under LHWCA may either be loaded or non-loaded. Loaded classifications are followed by the letter "F", which designates a Federal coverage classification, and already include the premium for operations subject to the LHWCA. Non-loaded classifications are those for operations which are not normally subject to the act and whose rates do not include the premium associated with the federal classifications. The manual rates and minimum premiums for those employees subject to the act, but otherwise classified under non-loaded codes, are increased by the percentage shown on the state rate pages. These increased rates apply only to the payroll of those employees determined to be eligible under the act.
As with the standard policy, the limits of liability may be increased in accordance with the Basic Manual Rule 3.A.14. - Limits of Liability (old Rule VIII), and Item W-8015 - Additional Coverages Under the WCIP.
Policies for employers whose operations are subject to admiralty law must contain the appropriate endorsement to obtain coverage. The endorsements for admiralty coverage are as follows:
If coverage is requested under...
then use endorsement(s)...
|Jones Act - Admiralty: Program I
||WC 00 02 01 A|
|Jones Act - Admiralty: Program II
||WC 00 02 03 and WC 00 02 01A|
The classifications for operations subject to admiralty law fall into two programs. Program I provides statutory liability under workers compensation law in any state listed in Item 3.A. as well as employer's liability for damages under admiralty law up to a limit of $100,000 in most states. Program II provides the same coverage as Program I, but in addition, it provides Voluntary Compensation, where the carrier will offer a settlement of a claim based on a state act benefits, as if the claim was subject to such law.
Note: Voluntary compensation does not provide workers compensation coverage and is available only to employments specifically excluded from workers compensation law, e.g., seamen. Its purpose is to provide the benefits of a designated compensation law to exempt employees. However, it shall not provide benefits in excess of the statutory requirements as set forth in either the Voluntary Compensation and Employers Liability Coverage Endorsement, WC 00 03 11 A or the Voluntary Compensation Maritime Coverage Endorsement, WC 00 02 03.
Employers liability insurance for policies either under Program I or II is $100,000 for the accident limit which applies to all bodily injury arising out of any one accident, and $100,000 for the disease limit for all bodily injury by disease. Increased limits of liability are not available under the WCIP or Item W-8015 - Additional Coverages Under the WCIP.
The common law of the sea (referred to as general maritime law or admiralty law) holds that vessel owners owe “transportation, wages, maintenance, and cure" to masters or members of the crew in the event of injury or illness during the voyage, regardless of whether the injury or illness is work-related. Also, seamen can sue the vessel owner for damages resulting from the unseaworthiness of the ship. Exclusion C. 14 Transportation, Wages, Maintenance and Cure is deleted by showing a corresponding premium in item 2 of the endorsement. No advisory rates are filed for this extension of coverage so carriers should treat this as an (a)-rated premium segment.
Admiralty (Jones Act) and railroad workers (FELA) have their own endorsements and set of limits. Increased limits for standard Part Two Employers Liability Insurance is calculated using one increased limits table (Rule 3.A.14.b., pages R28 & R29, old Rule VIII.A.2.b, page R36) and increased limits for admiralty and FELA are calculated using another table (Rule 3.A.14.b.4., page R29, old Rule XIII.D.2, page R54). They are totally independent of one another. It is not necessary to have the same limits for each on the same policy.
The International Risk Management Institute website at IRMI.com contains an expert commentary list of articles on maritime and admiralty.