As a practical matter, there’s an overlap in coverage that challenges employers who must have the correct insurance coverage and for injured workers who must choose the correct remedy.
The Jones Act and General Maritime Law (GML) provide a “seaman” or “a crewmember of a vessel” with a personal injury remedy based on negligence (Jones Act) or vessel unseaworthiness (GML). The LHWCA is a workers’ compensation statute. The two are mutually exclusive in their coverage. The Jones Act and GML only cover seamen and the LHWCA covers land-based maritime workers and specifically excludes seamen
The courts, employers, employees, and insurance carriers all struggle with the uncertainty on a regular basis. The federal Fifth Circuit Court of Appeals has observed, “Thus, despite our continued insistence that a Jones Act ‘seaman’ and a ‘crew member’ excluded from the Longshore Act are one and the same (in other words that the statutes are mutually exclusive) we recognize that in a practical sense, a ‘zone of uncertainty’ inevitably connects the two Acts.”
This is the problem with the coverage uncertainty. The employer must consider that it is in the paradoxical position of having potential liability to employees concurrently under two mutually exclusive remedies, with no resolution until there is a final adjudication in one or the other forum. The separate adjudicatory systems allow an injured employee to concurrently file a claim for workers’ compensation benefits as a land-based maritime worker and also to file a lawsuit under the Jones Act wherein he makes the contrary claim, i.e., that he is a crewmember of a vessel.