This discussion will focus on liability and workers’ compensation coverage issues for injured employees involved in bridge maintenance, repair, construction, and demolition. The discussion will be broken down into two parts. Part one will cover maintenance, service, and repair work on an existing, in-use highway or rail bridge. Part two will cover new bridge construction or bridge demolition over navigable waters.
In each of the sections, we will cover bridge issues as they relate to the following categories:
- Longshore Act Situs
- Longshore Act Status
- State Act
- Maritime Employers Liability (MEL)
Part One: Completed, In-Use Bridges
Longshore Act Situs
The Longshore Act was extensively amended in 1972, in part to extend coverage landward for certain maritime employees. The pre-Amendment coverage provision, section 903(a), stated, “Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock) …”.
Workers were covered by the Longshore Act only if they worked “upon” the navigable waters of the U.S. or on a dry dock. This was a situs test only. There was no “status” requirement for coverage before the 1972 Amendments.
The current version of section 903(a) states, “… compensation shall be payable under this Act in respect of disability or death of an employee, but only if the disability or death results from an injury occurring 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).”
In neither version of section 903(a) are bridges mentioned. Completed bridges were not included in the amended section 903(a) when certain locations were enumerated as covered sites. Bridges are not “enumerated sites”.
Can a bridge be a covered Longshore Act situs other than as an enumerated site? The courts generally, but of course not always, cite the U.S. Supreme Court’s decision in Nacirema Operating Co. v. Johnson 396 U.S. 212 (1969) for the principle that completed bridges are extensions of land and are not covered sites.
In most cases, these workers on completed bridges will be covered by state act workers’ compensation laws. But this is the Longshore Act, so there are always qualifications and conditions. Keep reading if there are any vessels involved in the job or if the work is designed to aid the flow of maritime commerce.
Longshore Act Status
We recognize that work on completed bridges usually does not meet situs. What about status? Of course, if the worker does not meet situs, the status discussion is academic since you must meet situs and status for coverage.
The conventional (but not unanimous) view is that work on completed bridges is land-based and is not “maritime” employment; these bridge workers do not meet status for Longshore Act coverage. But, again, be alert for any conditions that may implicate Longshore Act coverage, such as vessels involved, work “upon” the navigable waters, or relationship to maritime commerce.
General principle – work servicing, repairing and maintaining completed, in-use bridges is most likely covered by state act workers’ compensation laws, absent “maritime” circumstances.
Maritime Employers Liability (MEL)
Any time vessels are involved in a project, you must be alert to possible liability under the Jones Act and the General Maritime Law (GML) for workers who can establish vessel crewmember status. We’ll discuss below how the expanded definitions of “vessel” and “crewmember” have affected all areas of marine construction.
Part Two: New Bridge Construction or Bridge Demolition
This discussion is more complicated. We are no longer talking about a complete, in-use bridge. We are dealing with incomplete sections being built out from land and possibly with sections being built out over the water.
Longshore Act Situs
We are no longer discussing completed bridges. In fact, we are no longer discussing bridges or bridge workers at all. Instead, we are discussing situs for “maritime” construction workers. These workers will typically be working from vessels, from land, from temporary structures such as trestles and scaffolds, and from sections of the incomplete projects over the water.
Let’s take the easy one first. Workers operating from vessels meet both situs and status under the Supreme Court’s decision in Director, Office of Workers’ Compensation Programs, U.S. Department of Labor v. Perini North River Associates, 459 U.S. 297 (1977). A worker injured upon the navigable waters in the course of employment is a maritime employee and does not have to meet status. Situs confers status under the carryover of the pre-1972 Amendment test for coverage (unless a specific statutory exclusion applies). After Perini is considered, the situs issue gets more complicated because the rulings from the courts have not been consistent.
Note: It may seem odd at first impression that we are questioning maritime situs for a location that is typically self-evidently over and surrounded by water. The workers are probably wearing life jackets, and when they look down, they’ll see ships passing. But section 903(a) requires 1) work “upon” the navigable waters, or, 2) work on an enumerated site (adjoining pier, wharf, dry dock, terminal, building way, or marine railway), or 3) work on an “other adjoining area customarily used” by an employer in loading, unloading, repairing, dismantling, or building a vessel.
Generally, we’ve recognized that a completed bridge is not a covered situs as it is an extension of land and is not an enumerated site under section 903(a). So, in what ways can an incomplete, under-construction bridge meet situs?
You could argue that all bridges serve a maritime purpose. While they are being built, the construction sites necessarily affect maritime commerce in the surrounding waters, and the design of the completed bridge must always account for maritime commerce. In fact, bridges are typically designed with the purpose in mind of facilitating the inevitably affected maritime commerce.
So, we have workers who are frequently over but not floating “upon” the navigable waters. These same workers are also frequently “upon” the water working from vessels. These workers are also spending some work time at the construction site unloading the construction materials, including most likely from vessels (this latter point will be important when we discuss status and Caputo.) There are sufficient circumstances here to qualify the work site as an “other adjoining area” to meet situs under section 903(a). It is clearly a maritime environment.
One more note to belabor the point: Let’s consider the test for what gives a court admiralty or “maritime” jurisdiction. It’s a “location plus” test requiring a location on the navigable waters plus the potential to disrupt maritime commerce or a relationship with traditional maritime activity (Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995). Also, while a bridge construction or repair may or not be a “maritime” contract, the test for “maritime” is whether the parties expect vessels to play a substantial role (In Re Larry Doiron, 879 F.3d 568 (5th Cir. 2018).
There should be room in section 903(a)’s “other adjoining area” requirement for a location that is certainly “adjoining” and/or over navigable waters, has a relationship to maritime commerce, which it is temporarily disrupting, and is customarily used for loading and unloading. Plus, vessels will most likely play a substantial role.
Unfortunately, the Department of Labor Benefits Review Board (BRB), and to a more inconsistent extent, the courts, have often had difficulty finding situs on a bridge construction project. The cases tend to be all over the place, including somewhat conflicting conclusions in the federal circuit courts of appeal.
I don’t have the space here to survey and summarize the cases, but let’s just leave the situs issue for bridge construction with the conclusion that, unfortunately, there is unpredictability where I don’t believe that there should be. I realize that this is unsatisfactory. There is simply not enough consistency in the jurisprudence to allow the drawing of generally applicable conclusions.
Longshore Act Status
In discussing maritime status for bridge builders, I will refer to some of the thoughts involved in the discussion of the situs issue above. The BRB has stubbornly tended to resist a finding of maritime status for bridge construction workers, and it has twice been reversed on this issue at the federal circuit court level. It has occasionally found the loading and unloading of construction materials to constitute maritime employment, but it has more often found against status. Remember Perini. Maritime status is not needed for workers working “upon” the navigable waters, from vessels, or for that matter, anything floating. The Longshore Act covers this.
Then, there’s Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249 (1977) and many subsequent cases, all for the proposition that if any part of a worker’s regular duties is maritime, then that worker is a maritime worker for his entire employment. “Status” is not a moment-of-injury test. There is no minimum amount or percent of time needed. For example, in our context, a worker who spends 10% of his time unloading construction materials onto a work vessel is covered by the Longshore Act throughout his employment.
I referred above to the lack of space to survey the case law, but I can’t resist at least an admittedly barely relevant survey. The BRB’s Longshore Deskbook cites 18 cases in a discussion of bridge builders. Five cases are pre-1972 Amendments, and four, including a decision by the U.S. Supreme Court (Davis v. Department of Labor, 317 U.S. 249 (1942)), found coverage for bridge construction workers. There are four Circuit Court of Appeals cases cited, two of which found coverage while two did not. There are nine BRB cases cited. One found coverage under Perini, seven found no coverage (two of which were reversed at the Court of Appeals), and one found coverage based on loading/unloading.
I do not recommend drawing comprehensive conclusions from this survey; there are too many competing concepts applied to a variety of scenarios over a long period of time by courts that are not in agreement. Essentially, you’re starting over with each new bridge case. You might say that for new scenarios, you will cross that bridge when you come to it.
So, our discussion of Longshore Act situs for new bridge construction and demolition projects came to an unsatisfactory conclusion. And now, our discussion of Longshore Act status has come to a similarly unsatisfactory conclusion. The easy answer is to make sure that you have Longshore Act coverage for workers on bridge building/demolition projects.
We’ll have a bit more clarity here. There will be significant liability for injuries to employees under the Jones Act and the General Maritime Law. As a general principle, all the crane barges, and in fact, floating (or temporarily spudded) work platforms of all kinds, will be considered vessels. Employees working on or from these vessels will have a good chance to establish crew member status under the Jones Act and GML. Both the owners/operators of these vessels and the employers who don’t own or operate any vessel may (very likely will) have MEL liability.
We have arrived at a very unsatisfactory conclusion.
- Do you need state act workers’ compensation coverage for bridge workers generally? Yes.
- Do you need Longshore Act coverage for these same workers? Yes.
- Do you need MEL coverage for most of these same workers? Yes.
This is frustrating because at the final adjudication, the worker will either be covered by workers’ compensation or will be a crew member. In virtually all instances, the two are mutually exclusive. The Longshore Act and virtually all state act workers’ compensation laws exclude crew members, and MEL only covers crewmembers. Unfortunately, until that final adjudication, there is uncertainty. The choice of the remedy belongs to the employee, and the system permits that employee to pursue mutually exclusive remedies simultaneously. For example, he or she can file a Jones Act lawsuit claiming crew member status while at the same time file a claim with the U.S. Department of Labor under the Longshore Act claiming to be a non-crew maritime worker.
Final note: I’ve spent a lot of space discussing questions with few clear answers. Troubled waters? Ok, if you insist. I have a solution. Bridges over navigable waters are covered Longshore Act sites, and the workers (all of them except for crew members) meet Longshore Act status. You’re welcome.