THE UNITED STATES LONGSHORE AND HARBOR WORKERS COMPENSATION ACT (USL&H WCA)
The United States Longshore and Harbor Workers Compensation Act (USL&H) is an important term to know. It is a federal workers compensation law that applies to maritime employees who work on or over navigable waters in or adjacent to the United States. The workers subject to this Act might also be eligible for state workers compensation benefits depending upon the individual state law. There are some states which allow for concurrent or dual jurisdictional benefits (AL, AK, CA, CT, GA, IL, MA, MI, MN, MO, NC, NY, RI, SC, TN, WV, WI.) Meaning an injured employee can seek workers compensation benefits in either or both the federal Longshore Harbor Worker’s Act and the State Worker’s Compensation Act. It is vitally important to check your state’s recent worker compensation laws to determine if your state is a dual jurisdictional state. That being said, the Longshore Act typically does not apply to sailors, seamen, masters and crews of any ship, vessel or watercraft and conversely a longshoreman typically is not eligible for coverage under the Jones Act or the Merchant Marine Act because they are not seamen. As a result, USL&H was needed to fill the coverage gap for this class of workers. The specific federal law addressing USL&H is found in US Code (1946), Title 33, Sections 901-950, as amended by Public Law 92-576.
Who is Covered
The definition of a covered employee is very important because the United States Longshore and Harbor Workers Compensation Act (USL&H) was designed to provide coverage for a group of employees not adequately protected by state or maritime laws. It covers workers who load or unload vessels and repair or build vessels and perform these operations and duties on or over navigable waters of the United States of America. This includes any adjoining pier, wharf, dry dock, terminal, marine railway or similar facility normally used to load or unload ships and vessels and to repair or build vessels. Occupations eligible for coverage include, but are not limited to, longshore and harbor workers, shipbreakers, shiprepair persons and shipbuilders. Occupations not eligible for coverage include seamen, sailors, masters and members of a crew of any vessel, as well as clerical, office, automation support and security personnel. Several limitations apply to the size and types of vessels to which the Act applies.
- It does not apply to operations at recreational facilities, such as country clubs, resorts or children’s camps, including religious, boy scout or girl scout camps.
- It does not apply to small vessels, defined as less than 18 tons, even if the occupation is eligible.
- It does not apply to any workers engaged in repair of recreational vessels, provided they are subject to coverage under a state workers’ compensation law.
- Note: This change took effect in February 2009 as part of the American Recovery and Reinvestment Act of 2009. The Act previously did not apply to recreational vessels less than 65 feet in length.
Employees involved in aquaculture, including those engaged in cultivating and harvesting aquatic plants and animals, are not covered by the Act, even though they work over navigable waterways in some cases. In summary, not everyone who works on or over navigable waters is eligible for coverage by USL&HWCA. Only employees in the specific occupations and categories indicated having duties directly related to the covered operations are eligible for coverage.
Why is the United States Longshore and Harbor Workers Compensation Act (USL&H) important? The Longshore Act in §932 requires that every maritime employer obtain Longshore Act coverage from an insurance carrier authorized by the U.S. Dept. of Labor, or obtain the authorization of the U.S. Dept. of Labor to self-insure. If an employer fails to meet this insurance requirement, the following provisions apply:
“If an employer fails to secure payment of compensation as required by this Act, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under the Act, or to maintain an action at law or in admiralty for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, or that the employee assumed the risk of his employment, or that the injury was due to the contributory negligence of the employee” [§ 905(a)].
“Any employer required to secure the payment of compensation under this Act who fails to secure such compensation shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than $10,000, or by imprisonment for not more than one year, or by both such fine and imprisonment” [§ 938(a)].
“where such employer is a corporation, the president, secretary, and treasurer thereof shall be also severally liable, jointly with such corporation, for any compensation or other benefit which may accrue under the said Act” [§ 938(a)].
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United States Longshore and Harbor Workers Compensation Act Jurisdiction
The determination of whether a particular claim falls within the coverage of the Longshore Act is based upon:
SITUS: Injury or death resulting from an accident occurring on the navigable waters of the United States, or any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used in the loading, unloading, repairing, dismantling, or building of a vessel.
STATUS: Any person who is performing maritime employment and is not specifically excluded from coverage under the Longshore Act. This would include: Longshore workers and others engaged in longshoring operations such as winch operators, hold workers, marine clerks, dock workers, forklift operators, and warehouse workers performing tasks as an integral part of the loading and unloading process. Also, any Harbor Worker including but not limited to ship repairers, shipbuilders, ship-breakers, pile drivers, and workers constructing piers, sewer outfalls, or any facility used as an aid to navigation or maritime commerce.
Exclusions to Coverage:
- An officer or employee of the United States or any of its agencies.
- An employee of any state.
- An employee of any municipality.
- The agent of any foreign country.
- An employee whose injury is caused solely by his intoxication.
- An employee whose injury occurs as a result of his attempt to injure or kill himself or another.
- Office clerical, secretarial, security, or data processing personnel who perform non-maritime tasks exclusively.
- Personnel working for a club, camp, recreational operation, restaurant, museum, or retail outfit.
- Personnel employed by a marina including those taking reservations, servicing boats, preparing and serving food, or performing routine tasks
- Personnel working for suppliers, transporters, or vendors temporarily doing business on the premises of a maritime employer, but who are not engaged in work normally performed by the employees of the maritime employer. This would include a teamster delivering a load of steel to a shipyard; however, an employee of a subcontractor performing a peripheral part of the shipbuilding or ship repair process at the shipyard would be covered.
- Aquaculture workers, which includes personnel who clean, process, or can fish and fish products, and a commercial enterprise involved in the controlled cultivation and harvest of aquatic plants and animals.
- Personnel working on the construction, repair, or dismantling of any recreational vessel under 65 feet in length.
- NOTE: one exception to exclusions 7 through 12 is that the individual must be eligible for state workers’ compensation benefits.
- A master or member of a crew of any vessel (Jones’ Act).
- Any person engaged by a master to load, unload, or repair any vessel under 18 tons net.
Navigable Waters: A simplified definition can be interpreted as, “those waters must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used in their ordinary condition as highways for commerce … by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other states or foreign countries…”
What is a Vessel: A simplified definition can be interpreted as, “Any contrivance, seen through the eyes of a reasonable observer, that is practically capable of serving as a means of transportation for people or things over water.”
Notice must be given to the employer within 30 days after the date of the injury or death or within 30 days of the date that the employee (or dependent) becomes aware that there is a relationship between the injury, or death, and employment.
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