Jurisprudence under the U.S. Longshore and Harbor Workers’ Compensation Act (LHWCA, or Longshore Act), (33 U.S.C. 901 et seq.) requires the attention of the U.S. Supreme Court. There are disagreements among the federal circuit courts of appeal on key issues that should be resolved.
The Supreme Court has ruled on cases that resolved important circuit splits within the past few years. It has settled whether punitive damages are available under the General Maritime Law in an action based on injuries due to an unseaworthy vessel (punitive damages are not available, Dutra Group v. Batterton, 139 S.Ct. 2275 (2019)). It has also resolved whether there is a situs of injury requirement in the Outer Continental Shelf Lands Act (OCSLA), i.e., must an injury occur on the outer continental shelf of the U.S. (O.C.S.) to be covered. It does not. The injury must have a “substantial nexus” to activities on the O.C.S.; the injury can occur anywhere (Pacific Operators Offshore L.L.P. v. Valladolid, 565 U.S. 207 (2012)).
On the other hand, unfortunately, the Court has recently declined to accept a case that could have resolved a Defense Base Act jurisdictional conflict. Currently, in some circuits, appeals from Benefits Review Board (BRB) decisions go to federal district court, while in other circuits, the appeals go to the circuit court of appeals. Obviously, this conflict should be resolved.
Two conflicts in need of resolution involve situs and high seas/foreign waters.
There are other Circuit conflicts that can be discussed, but these are the two that involve the most basic questions of coverage.
The location of the injury, or “situs,” and maritime “status” are necessary elements for coverage under the Longshore Act. Section 903(a) reads: “… 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, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel).” (I added the emphasis)
Note: Before we proceed further, I will be referring to the federal Circuit Courts of Appeal decisions. Here is a breakdown of the federal circuits by state:
- First Circuit – ME, NH, RI, MA, Puerto Rico
- Second Circuit – NY, CT, VT
- Third Circuit – PA, NJ, DE, US Virgin Islands
- Fourth Circuit – MD, VA, WV, NC, SC
- Fifth Circuit – LA, TX, MS
- Sixth Circuit – OH, KY, TN, MI
- Seventh Circuit – WI, IL, IN
- Eighth Circuit – MN, IO, MO, AR, NE, SD, ND
- Ninth Circuit – WA, OR, MT, ID, CA, NV, AZ, AK, HI
- Tenth Circuit – WY, UT, CO, KS, OK, NM
- Eleventh Circuit – AL, GA, FL
- DC Circuit
In the aforementioned phrase from section 903(a), what does the word “adjoining” mean? Does it mean contiguous with or touching navigable waters? Or does it mean in the vicinity or general location of an overall area customarily used for maritime activity? Of course, the answer to this question will depend on which federal Court has jurisdiction of the claim.
In Sidwell v. Express Container Services, 71 F.3d 1134 (1995), the Fourth Circuit decided that “adjoining” means touching. In Brady-Hamilton Stevedores v. Herron, 568 F.2nd 137 (1978), the Ninth Circuit decided that touching the water at some point was not necessary. The Court outlined its “Herron” factors for determining situs. It evaluated the maritime nature of neighboring properties, properties intervening between the location of the injury and the water, and the factors that led the employer to choose its location. All other circuits except for the Fourth, as noted above, agreed with the Ninth in deciding that “adjoining” does not mean contiguous with. As we shall see, this would suddenly change.
For example, SeaLand Services v. Director, Office of Workers’ Compensation Programs, U.S. Department of Labor (Fleischmann), 540 F.2nd 629 (Third Circuit, 1976), had also decided that “adjoining” does not mean touching. For many years, all Circuits except the Fourth evaluated “situs” by considering the relationship of geographical and functional factors to the water, with actual contiguity not being required and with no distance from the water being too far as a matter of law. The Fifth Circuit used one of the more liberal approaches to situs. That is, until April 29, 2013, when New Orleans Depot Services, Inc. v. Director, OWCP, U.S. D.O.L., et al. (Zepeda), led the Fifth Circuit to abruptly change its definition of “adjoining.” It suddenly decided that “adjoining” meant touching. So, there we have it. The Fourth and Fifth Circuits disagree with all the other Circuits that have ruled on the definition of “adjoining.” Eventually, a case with situs at issue will have to be accepted for review by the Supreme Court, and “adjoining” can finally be defined.
High Seas/Foreign Waters
High Seas/Foreign Waters is another example to discuss. Does the Longshore Act apply on the high seas? Does it apply in the territorial waters and adjoining land areas of foreign nations? Again, these questions involve not so much a stark conflict among the federal Circuits, but rather a lack of clarity.
In Weber v. S C Loveland Co., 35 BRBS 75 (2001), the U.S. Department of Labor’s (DOL) BRB held that “the navigable waters of the U.S.” include the high seas and foreign territorial waters when all contacts except the site of the injury are with the U.S. This was a case where an American worker traveled temporarily to Jamaica for a short-term assignment.
In Kollias v. D & G Marine Maintenance, 29 F.3d 67 (1994), the federal Second Circuit held that the Longshore Act covers injuries on the high seas without qualification, citing section 939(b) for the proposition that Congress intended to cover injuries on the high seas, overcoming a presumption against extraterritorial application of U.S. statutes.
Note: Section 939(b) states, “Establishing compensation districts. The Secretary shall establish compensation districts, to include the high seas and the areas within the United States to which this Act applies …”.
In Keller Foundation/Case Foundation v. Tracy, 696 F.3d 835 (2012), the Ninth Circuit held that foreign territorial waters are not “navigable waters of the U.S.” under the Longshore Act, affirming a BRB decision that injuries occurring in Indonesia and Singapore were not covered. This case involved a long-term American overseas contractual worker and not the worker overseas “temporarily” that the BRB had considered in Weber.
So, where are we on this issue? Maybe it’s safe to say that the Longshore Act applies on the high seas without qualification, as the Second Circuit indicated in Kollias. But maybe there are conditions, such as American workers leaving the U.S. for a temporary assignment and returning to the U.S. And what does “temporary” mean? The Ninth Circuit held in Keller that “navigable waters of the U.S.” do not include foreign territorial waters. However, that was in the context of a long-term overseas assignment. Would the holding be the same if a short-term overseas assignment were involved, such as the BRB found covered in Weber?
Just as with the issue of situs discussed above, the BRB will apply the law of the federal circuit that has jurisdiction of the claim. The best we can do right now is make assumptions, such as in the Ninth Circuit, the Longshore Act applies on the high seas without conditions, and does not apply in foreign territorial waters. While outside the Ninth Circuit, the Longshore Act applies on the high seas and, at the BRB at least, may apply in foreign waters in temporary Weber circumstances. Obviously, this uncertainty should be resolved.