Does the Longshore and Harbor Workers’ Compensation Act (LHWCA) cover an employee injured on the high seas or in foreign territorial waters in the course of his maritime employment? In other words, are the high seas or foreign waters considered to be “navigable waters of the United States” as that phrase is used in the LHWCA in order to constitute a covered situs under section 3(a) (33 U.S.C. 903(a))?
NOTE: The Act does not define “high seas” or “foreign territorial waters” or, for that matter, as we noted during the discussions in Parts One and Two, it also does not clearly define “navigable waters of the United States.”
High Seas: Charting the Limits of Coverage
Section 39(b) of the Act (33 U.S.C. 939(b)) states, “The Secretary shall establish compensation districts, to include the high seas and the areas within the United States to which this Act applies …”.
“High seas” we can take to mean simply the international waters beyond a nation’s sovereign territorial waters. The U.S. Supreme Court describes a nation’s territorial water as “… nearest to the nation’s shores or its internal waters … subject to the complete sovereignty of the nation ….” (United States v. Louisiana, 394 U.S. 11 (1969)) For example, the Death on the High Seas Act (DOHSA) is applicable beyond a marine league, or three nautical miles, from the coastline of the United States.
The question of whether the LHWCA applies to injuries or deaths occurring on the high seas appears to be settled, although there may be conditions.
Those federal circuit courts of appeal that have addressed the issue have held that the Longshore Act applies on the high seas. (Cove Tankers Corp. v. United Ship Repair, 683 F.2nd 38 (2nd Cir. 1982); Reynolds v. Ingalls Shipbuilding Div., Litton Systems, Inc., 788 F.2nd 264 (5th Cir. 1986), cert. denied 479 U.S. 885 (1986); Kollias v. D & G Marine Maintenance, 29 F.3rd 67 (2nd Cir. 1994), cert. denied 513 U.S. 1146 (1995).
Kollias v. D & G Marine Maintenance: Defining the Reach of Navigable Waters
In Kollias, the Second Circuit held that the term “navigable waters” includes the high seas “without qualification”. The Ninth Circuit, in Keller Foundation/Case Foundation; ACE/ESIS v. Joseph Tracy; Global International Offshore Ltd.; Liberty Mutual Insurance Company; Director, Office of Workers’ Compensation Programs, United States Department of Labor (2012), acknowledged the proposition that the Longshore Act applies on the high seas. So, at least, let’s consider this to be settled. For the purposes of the situs provisions of section 3(a) of the Longshore Act, the high seas qualify as “navigable waters of the United States.” If an employee is injured on the high seas and he meets the maritime employment status requirement of section 2(3), then he will be covered by the LHWCA unless a specific statutory exclusion applies. There is one reservation regarding an overly broad application of this principle, which I will mention below.
Foreign Waters: When American Law Crosses Oceans
What about foreign territorial waters and surrounding land areas? Could this meet “situs” for coverage under the LHWCA?
In Weber v. S.C. Loveland Co., 28 BRBS 321 (1994), the U.S. Department of Labor’s Benefits Review Board (BRB) reversed the decision of an Administrative Law Judge (ALJ) and found coverage under the LHWCA for a longshoreman who was injured in Montego Bay, Port of Kingston, Jamaica while unloading grain from a vessel that had been loaded in New Orleans. In Weber, the injured worker was a U.S. citizen who spent 90-95% of his work time in the U.S. and customarily traveled overseas from the U.S. for temporary assignments, returning immediately to the U.S.
The BRB relied on three principles in finding coverage in the Weber case:
- It noted the language in existing federal circuit court cases that the LHWCA applied on the high seas.
- It noted what it considered to be a trend in admiralty law under the Jones Act and DOHSA to apply U.S. law in foreign waters.
- It cited the policy under the U.S. Constitution concerning the goal of uniform coverage and protection for American workers working in foreign waters when all contacts except the site of the injury are with the U.S.
In Weber, the BRB applied the LHWCA in foreign territorial waters; however, based on the facts of the case, the BRB will likely limit the application of the LHWCA in foreign waters to American workers overseas on temporary assignments in the future.
Tracy in Singapore: Not All Who Set Sail Have Situs
Then Mr. Tracy came along. Tracy was a U.S. citizen injured in Singapore in the course of employment that arguably met “status” under the LHWCA. (It turned out that he did not meet “status” because he was found to be a seaman excluded from the Longshore Act under section 2(3)(G), but we’re just looking at the “situs” issue as it was dealt with in his case.) Mr. Tracy was on a four to six-month assignment as a barge anchor foreman on a pipe-laying barge in Singapore, mostly supervising the loading of construction equipment. He also traveled to Indonesia for a few weeks and then returned to Singapore.
On the situs issue, the BRB found that Mr. Tracy was not covered by the LHWCA because, unlike Mr. Weber, Mr. Tracy’s overseas assignments were not of short duration. He spent several months on prolonged foreign assignments and traveled from one foreign country to another. When the Tracy case went to the Ninth Circuit on appeal, the Court made an explicit finding that “… foreign territorial waters and their adjoining ports and shore-based areas are not ‘the navigable waters of the United States’ …” for the purposes of section 3(a) of the LHWCA.
The Ninth Circuit stressed the principle that there is a strong presumption against extraterritorial application of U.S. statutes, which is rebutted only by clear indications of Congressional intent. The Court found no such language in the LHWCA.
No other federal circuit court of appeals has ruled on the issue of situs as it relates to foreign territorial waters.
Unsettled Waters: Situs, Citizenship, and Coverage Abroad
So, where are we? I think that the LHWCA applies on the high seas, but there is a possible issue with the Second Circuit’s “without qualification” terminology. Suppose the “high seas” are “navigable waters of the United States” under section 3(a). Does Director, Office of Workers’ Compensation Programs, U.S. Department of Labor v Perini North River Associates, 459 U.S. 297 (1983), apply to cover all employees working over the high seas (who are not seamen or otherwise excluded from LHWCA coverage)? Would this include foreign citizens with no contact with the United States? This seems very broad.
A more conservative approach might be to take the conditions established by the BRB in the Weber case for coverage in foreign waters and apply them instead to injuries occurring on the high seas. That is, the high seas constitute navigable waters of the United States under the LHWCA for U.S. citizens on temporary assignments (weeks, not months) where all contacts are with the U.S. except for the site of the injury.
As for foreign territorial waters, the only federal court of appeals that has ruled on the issue has held that foreign waters are not “navigable waters of the United States”. So, the question is settled in the Ninth Circuit.
However, outside of the Ninth Circuit, Weber remains a precedent in the BRB. What will the attitude of the U.S. Department of Labor and the BRB be when the next foreign waters case comes up outside of the Ninth Circuit? Will the BRB apply its precedent and find LHWCA coverage, or will it follow the reasoning of the Ninth Circuit?
Jurisdictional Drift: Where Coverage Remains Unclear
It would not be the first time that BRB applied one principle in the Ninth Circuit and another principle in the other Circuits. For example, in all Circuits except for the Ninth, the BRB holds that an informal conference is a strict prerequisite for an employer to pay an attorney fee under section 28(b), while in the Ninth Circuit, a literal informal conference is not required under that Circuit’s precedent.
I think that when more case law clarifies this issue, it will turn out that the LHWCA will not apply in foreign territorial waters along the lines of the Ninth Circuit’s analysis. Still, it will apply on the high seas subject to the type of conditions considered by the BRB in the Weber case, i.e., U.S. citizen or permanent resident on the high seas temporarily, where all contacts except for the site of the injury are with the U.S.
Since there are serious consequences for an uninsured employer under the LHWCA the safest approach might be to assume that coverage may apply in foreign territorial waters in cases arising outside of the Ninth Circuit until more circuits decide the issue.
