On June 11, 2013, I mentioned the Joseph Tracy case, in which the federal Ninth Circuit Court of Appeals held that the Longshore Act did not apply in the territorial waters of foreign countries or their adjoining land areas. I mentioned that the Ninth Circuit’s holding was at odds with the existing precedent of the U.S. Department of Labor’s Benefits Review Board, and there was uncertainty as to what the other federal circuits and the Benefits Review Board would do with this issue going forward.
On June 17, 2013, the U.S. Supreme Court denied a petition for a writ of certiorari in the Tracy case, so this uncertainty will not be resolved at the present time.
While we’re on the subject of situs and what the courts outside of the Ninth Circuit will do with the issue of foreign territorial waters, there are some brief points that I’d like to make in response to recurring situs questions. This involves, in addition to the foreign territorial waters in the Ninth Circuit, the question of what other bodies of water are not navigable waters of the United States.
If we can identify the water in question as not navigable right at the beginning of a coverage analysis, we thereby save ourselves the trouble of identifying whether we are in a federal circuit that requires that an “other adjoining area” actually be contiguous with the water, whether the site of the injury had the necessary geographic and functional nexus with the water, whether that structure on pilings is a “pier”, whether Perini coverage may apply, and all of the other questions that may come up in a Section 3(a) situs analysis.
Section 3(a) of the Longshore Act (33 U.S.C. 903(a)) states that “… 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 ….”
In Longshore Act cases the courts interpret the phrase “navigable waters of the United States” under the relatively straightforward “navigable in fact” test. That is, is the waterway used, or capable of being used, to carry interstate or international commerce?
This is a manageable test as these things go, but sometimes you have to take a close look at the facts.
For example, a large, landlocked, and apparently intrastate lake such as Lake Cayuga in New York State is a “navigable waterway of the United States” because on closer examination it is connected to the Erie Canal by a waterway capable of carrying commerce. But, keeping in mind this exception, lakes, regardless of how large and commercial, that are completely within one state are not navigable waters of the United States
There are other bodies of water that can be confidently (as far as this is ever possible with any issue under the Longshore Act) classified as non-navigable.
For example, man-made or naturally occurring reservoirs dammed at both ends by permanent dams, entirely within one state, are not navigable waters of the United States. They do not carry interstate commerce.
Bodies of water permanently withdrawn from adjacent rivers and located within industrial or manufacturing installations, for example, to be used in heating and cooling systems, are not navigable waters of the United States. Navigability ends at the point at which the water is withdrawn from the navigable source.
For that matter, Section 3(a) says “upon the navigable waters”. It is probable that work performed under the ocean floor, such as tunnel digging, would not be considered “upon” the water, and such work would thus fail to meet Longshore Act coverage on the question of situs.
A slightly more difficult question involves locations where navigable waters run into marshy areas that are shallow and overgrown with vegetation. It is difficult to pinpoint where the waterway becomes non-“navigable”. At some point, though, vessels can no longer proceed and the means of transportation must be replaced by specialized boats or portable structures erected and dismantled at the job site. At some point the situs becomes non-navigable.
The essential characteristic for situs is navigability and the key element is interstate or international commerce.
ABOUT THE AUTHOR
John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers’ Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation. Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of AEU's Longshore Insider.