Maritime employers, brokers, and claims professionals often find that Longshore terminology sounds familiar until a claim puts those words to the test. Terms such as situs, status, injury, compensation, and navigable waters carry precise legal meanings that can shape coverage, liability, and claim outcomes. This overview highlights several of the Longshore Act terms and conditions that matter most in practice. Jack Martone, Senior Vice President, AEU Advisory Services, at The American Equity Underwriters, draws on decades of Longshore experience in this overview, including 27 years with the U.S. Department of Labor’s Office of Workers’ Compensation Programs.
Where Familiar Terms Take on Specialized Meaning
The Longshore and Harbor Workers’ Compensation Act (LHWCA or Longshore Act) (33 U.S.C. sections 901 et seq.) is a federal workers’ compensation law. It covers maritime employees working over the navigable waters of the United States, or on certain enumerated sites, or on other adjoining areas customarily used for maritime activity. It covers injuries and illnesses arising out of and in the course of employment (AOE/COE) and imposes a mandatory insurance requirement on maritime employers.
In addition to longshoremen, shipbuilders, ship repair workers, and other traditional maritime workers, the Longshore Act covers dozens of occupations in the construction, service, maintenance, technical, and other fields.
The Longshore Act includes words and phrases whose meanings are “terms of art” specific to their LHWCA context. We will review some Longshore language.
It is a federal statute, enacted by the U.S. Congress in 1927 and significantly amended in 1972, 1984, and 2009. It is administered by the U.S. Department of Labor, Office of Workers’ Compensation Programs (DOL) (OWCP). DOL administration provides three levels of dispute resolution and formal adjudication proceedings. Informal dispute resolution and medical management occur at the District Office (DO) level before a District Director (DD). Formal hearings and adjudication of unresolved issues occur at the Office of Administrative Law Judges (OALJ) with appeals to the Benefits Review Board (BRB) (the Board).
The LHWCA has been extended by the Defense Base Act (42 U.S.C. 1651) to cover any employee engaged in employment outside the continental U.S. (1) at any military base acquired from a foreign government after January 1, 1940; or, (2) upon lands used by the U.S. for military purposes in any Territory or possession; or, (3) upon any public work in any Territory or possession if such employee is working under the contract of a contractor with the U.S.; or, (4) under a contract with the U.S. or an Agency thereof, or any subcontract to such a contract, for the purpose of “public work”; or, (5) under a contract approved and financed by the U.S. or any agency thereof, or any subordinate contract under the Mutual Security Act of 1954 (or its successor the Foreign Assistance Act of 1961); or, by an American employer providing welfare or similar services for the benefit of the Armed Forces.
The LHWCA has also been extended by the Outer Continental Shelf Lands Act (OCSLA) (43 U.S.C. 1331). The OCSLA extends the provisions of the Longshore Act to disabilities or death resulting from any injury occurring as the result of operations for the purpose of exploring for, developing, removing or transporting by pipeline the natural resources of the subsoil and seabed of the outer continental shelf. Although the language of the OCSLA references the subsoil and seabed, it is anticipated that the OCSLA will be applied to wind and other renewable energy activities.
The U.S. Supreme Court has defined the OCS as “The gently sloping plain which underlies the seas adjacent to most land masses, extending seaward from shore to the point at which there is a marked increase in the gradient of the decline and where the continental slope leading to the true ocean bottom begins ….” Think about 200 miles from the end of state waters. State waters extend from the shoreline out to 3 nautical miles, except for Florida and Texas, where state waters extend to 9 nautical miles before the OCS begins.
It has also been extended by the Nonappropriated Fund Instrumentalities Act (5 U.S.C. 8171) to cover civilian employees on domestic U.S. military bases in the post exchanges, service clubs, etc.
The Longshore Act covers maritime employees. Maritime employees must meet two conditions for coverage. They must meet a maritime situs requirement at the time of the injury, and they must meet an occupational status test.
Situs in section 3(a) is met if the injury occurred during work over navigable waters, or on an “enumerated site” listed as “… any adjoining pier, wharf, drydock, terminal, building way, marine railway …”, or “… other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel.”
Situs is based on a functional and geographic relationship with navigable waters of the United States. For cases arising within the jurisdiction of two federal Courts of Appeal (the Fifth and the Fourth) the location of the injury must “adjoin” navigable waters in the sense that some part of the perimeter of the employer’s property must touch or be contiguous with the navigable water. In all other circuits, “adjoin” does not mean literally touching the water.
The meaning of navigable waters of the United States, as used in the Longshore Act, is based on the “navigable in fact” test, set out by the U.S. Supreme Court in the case of The Daniel Ball, 10 Wall 557, 19 L.Ed. 999 (1871). It defines navigable waters as “… used, or are susceptible of being used in their ordinary condition as highways for commerce… when they form in their ordinary condition 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 ….” So, the key is interstate or international commerce.
Status is an occupational concept which covers numerous occupations in addition to the traditional maritime occupations of longshoreman, ship builder, or ship repairmen. Status is met if the occupation in question is “integral” or “essential” to ongoing maritime activity, such that failure would interrupt or hinder the maritime activity. It is an occupational test and not based on duties at the moment of injury. If any part of a worker’s duties is maritime then he is a full-time maritime employee under the Longshore Act. A maritime employer is any employer who employs at least one maritime employee.
Then there is Perini coverage. The U.S. Supreme Court held in Director, OWCP v. Perini North River Associates (Churchill), 459 U.S. 297 (1983), that Congress, in amending the Longshore Act in 1972 to expand coverage landward, did not intend to withdraw coverage from workers injured upon navigable waters. The result is that any work upon the navigable waters regardless of “status” is covered by the Longshore Act.
Coverage does not apply if one of several statutory exclusions applies (sections 2(3)(A-H), 3(b)). For example, the Longshore Act excludes federal, state, or local government employees, and it excludes the master or member of the crew of any vessel (Jones Act seamen). The 1984 amendments added occupational and other exclusions, such as clerical, secretarial, security, or data processing employees, marina employees, employees of clubs, camps, recreational operations, restaurants, museums, or retail outlets, transporters and vendors, and employees engaged in aquaculture. As amended in 2009, the Longshore Act also excludes employees employed to repair recreational vessels of any length, and to build recreational vessels under 65 feet in length. All these exclusions contain their own terms and conditions, and they tend to be narrowly construed.
Section 2(3)(G) excludes from Longshore Act coverage the “master or member of a crew of any vessel”. This exclusion applies to seamen covered by the Jones Act (Merchant Marine Act of 1920). The Longshore Act covers land based maritime employees and the Jones Act only covers seamen, so the two remedies are mutually exclusive in their coverage. Unfortunately, there is an overlap in coverage in an “Uncertainty Zone” or gray area where many workers’ duties can go either way, and the coverage issue is not resolved until the worker’s status is finally adjudicated in either a court of law or at the DOL.
The Longshore Act contains several rebuttable presumptions in section 20. The presumptions are procedural tools that shift the burden of proof. For example, Section 20(a) provides a presumption for the injured worker that an injury arose out of employment, and section 20(b) provides a presumption that timely notice of a claim was given. These presumptions may be rebutted by the production of substantial evidence to the contrary. Substantial evidence is “sufficient to support a rational conclusion by a reasonable person”, or any fact that would reasonably cast doubt on an issue. If the presumption is rebutted, it drops from the case, then the contested issue is decided based on consideration of the preponderance of all relevant evidence.
The Longshore Act contains a statutory employer provision in section 4(a). “In the case of an employer who is a subcontractor, only if such subcontractor fails to secure the payment of compensation shall the contractor be liable for and be required to secure the payment of compensation.”
The statutory employment provision should be distinguished from the common law concept of “borrowed servant,” “borrowed employee,” or “borrowing employer” by which an employee of a nominal employer may be considered the employee of a different employer based on the circumstances of the workplace.
Compensation is defined in section 2(12) as “… the money allowance payable to an employee or to his dependents as provided for in this Act, …”.
Average Weekly Wage and Disability Analysis
For example, an injured worker’s weekly compensation rate for permanent total disability and temporary total disability is two-thirds of his Average Weekly Wage. Section 10 governs the calculation of an injured worker’s average weekly wage. Permanent disability can be converted to partial disability if Suitable Alternate Employment (SAE) based on a Wage Earning Capacity (WEC) can be established.
Suitable Alternate Employment, in the formulation of the Benefits Review Board, consists of realistic job opportunities within the geographical area where the claimant resides, which the claimant, by virtue of his age, education, work experience, and physical restrictions, is capable of performing.
Sections 10(a) and 10(b) provide a formula: the AWW is calculated by dividing the total “wages” of the injured worker during the 52 weeks preceding the injury by the number of days “so employed” to get the “average daily wage”; the average daily wage is then multiplied by either 260 for a five day a week worker or 300 for a six day a week worker to get the average annual earnings. Section 10(d) provides that the average annual earnings is then divided by 52 and the result is the AWW.
Section 10(c) is used if neither 10(a) nor 10(b) can be used. The object is to arrive at an AWW that reasonably and fairly represents the worker’s annual earning capacity at the time of the injury.
The weekly maximum and minimum compensation rates are adjusted each October 1, based on the National Average Weekly Wage, announced each year by DOL’s Bureau of Labor Statistics. The maximum weekly rate is twice the NAWW, and the minimum weekly rate is one-half the NAWW. As of October 1, 2025, the maximum weekly rate is $2,082.70 and the minimum is $520.68.
Injury, AOE/COE, and Vessel Negligence
Section 2(2) provides that, “the term ‘injury’ means accidental injury or death arising out of and in the course of employment, …” (AOE/COE).
AOE/COE comprises two separate requirements. The injury must arise out of the employment and must also occur within the time and space boundaries of the employment. The latter refers to the time, place, and circumstances of the injury. The injury must be in the course of an activity whose purpose is related to the employment.
Section 905(b) provides a federal maritime tort remedy for employees covered by the LHWCA for injury caused by vessel negligence (except for shipbuilding, ship repair, or shipbreaking employees where the employer is the vessel owner, operator, or charterer). For other than these employees, the vessel owner may be liable to employees in its dual capacity as employer/vessel owner if the injury occurred as a result of negligence in vessel operations.
Section 32 provides that an employer may self-insure its obligations under the Act if it obtains authorization to do so from the DOL. Alternatively, a maritime employer must secure its obligations with an insurance carrier authorized by DOL.
DOL administers the Special Fund. The Special Fund was established by section 44 of the Longshore Act in 1927. It was originally funded by Congressional appropriations and through payments into the Fund by insurance carriers and self-insured employers in death cases with no eligible survivors. It is administered by the Secretary of Labor, and the custodian is the U.S. Treasury. It is currently funded by the annual assessment of authorized carriers and authorized self-insured employers established by the 1972 Amendments. Disbursements can only be made as specified by section 44(i).
In many states, coverage under the Longshore Act is concurrent with state workers’ compensation laws. In Sun Ship, Inc. v. Commonwealth of Pennsylvania, et al., 447 U.S. 715 (1980), the U.S. Supreme Court held that the Longshore Act did not supplant state workers’ compensation laws. Rather, the Longshore Act supplemented state laws. Many states have amended their insurance laws to reflect exclusive jurisdiction, i.e., generally, if a worker is covered by a federal law such as the Longshore Act then that worker is not covered by state law. Lists of concurrent and exclusive states can be found elsewhere in articles published in the Longshore Insider.
We have by no means exhausted this subject, but this discussion should illustrate that you should be careful when reading a statute. Frequently, the colloquial or “plain” language may not mean exactly what it appears to say.
This section offers a brief recap of the Longshore Act terms discussed in this blog. It is meant to serve as a quick review only, not as a complete legal explanation of each term. Because courts may interpret these words differently depending on the facts and circumstances of a given case, readers should not treat these summaries as exhaustive. For a deeper explanation and added context, read the full blog.
Situs: The place where the injury happened. Under the Longshore Act, coverage often depends on whether the injury occurred over navigable waters, on an enumerated site, or in another adjoining area used for maritime activity.
Status: The worker’s occupational connection to maritime activity. Status turns on whether the work is integral or essential to ongoing maritime operations, not simply what the worker was doing at the moment of injury.
Navigable waters: Waters used, or capable of being used, as highways for interstate or international commerce. The term carries a specific legal meaning under the Act.
Enumerated site: A specifically listed maritime location such as a pier, wharf, drydock, terminal, building way, or marine railway.
Adjoining area: An area near navigable waters customarily used for loading, unloading, repairing, dismantling, or building a vessel. Courts do not interpret this term the same way in every case, so the full blog provides needed context.
Maritime employee: A worker who meets the Act’s coverage requirements based on occupation and location. The term can reach beyond traditional waterfront job titles.
Maritime employer: An employer with at least one maritime employee performing covered work.
Perini coverage: A principle recognizing that work performed on navigable waters may be covered even when the usual status analysis would otherwise be disputed. Read the full blog for the legal context behind this rule.
Exclusions: Statutory categories of workers left out of Longshore coverage. These exclusions are fact specific and are generally construed narrowly.
Master or member of a crew: A worker treated as a seaman under the Jones Act rather than a land based maritime employee under the Longshore Act.
Uncertainty Zone: A gray area in which a worker’s duties may raise questions about whether Longshore or Jones Act coverage applies.
Presumptions: Procedural rules in section 20 that can shift the burden of proof on issues such as whether an injury arose out of employment or whether notice was timely given.
Substantial evidence: Evidence sufficient to support a rational conclusion by a reasonable person and rebut a presumption.
Statutory employer: A contractor that may become liable for compensation if a subcontractor fails to secure required coverage.
Borrowed employee or borrowed servant: A worker who may be treated as the employee of another employer based on the actual working relationship. This is different from statutory employer status.
Compensation: The money allowance payable to an injured employee or eligible dependents under the Act.
Average Weekly Wage: The earnings measure used to calculate compensation benefits. Section 10 provides different methods depending on the worker’s employment pattern, so the full blog should be read for context.
Suitable Alternate Employment: Realistic job opportunities within the worker’s geographic area that the worker can perform given age, education, work experience, and physical restrictions.
Wage Earning Capacity: A measure used to assess what a worker can still earn after an injury and how partial disability may be evaluated.
Injury: An accidental injury or death arising out of and in the course of employment. Under the Act, that phrase has a defined legal meaning.
Arising out of and in the course of employment: A two part standard addressing both the connection between the injury and the employment and whether the injury occurred within the time, place, and circumstances of the work.
Section 905(b): The provision that allows certain covered workers to bring a vessel negligence claim in addition to receiving compensation benefits, subject to important limits explained in the full blog.
Self insurance: Authorization for an employer to secure its Longshore obligations directly through the Department of Labor rather than through an outside carrier.
Special Fund: A Department of Labor administered fund established under the Act for specified statutory payments and obligations.
Concurrent jurisdiction: A situation in which Longshore coverage and state workers’ compensation law may both apply. Because the result can vary by state and by facts, the full blog provides the better context.