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Situs Of Injury Under The Longshore Act

Authored by Attorneys F. Nash Bilisoly and Spencer Guld, nbilisoly@vanblacklaw.com and sguld@vanblacklaw.com

Under the Longshore and Harbor Workers Compensation Act (“LHWCA”), a worker injured over water clearly falls under the Act, no matter his occupation. If the individual is injured on land, he is covered only if his occupation is “maritime” in nature and does not work too far away from the water to qualify for LHWCA coverage.

The most litigated and ambiguous issue of the LHWCA is in the situs section, with particular emphasis on the catch-all “other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel” language, as it could have many potential meanings. The Supreme Court has never enunciated what an “other adjoining area” is under the LHWCA. Two different tests arose, one under the 9th (West Coast) and 5th Circuits (Gulf Coast), and the other under the 4th Circuit (Atlantic Coast), to determine if an injury occurring outside the easily defined boundaries of a terminal or shipyard would be covered.

The first inquiry, originally adopted by the 9th and 5th Circuits, was known as the “functional relationship” or “totality of the circumstances approach,” with its specific inquiries as to the purpose and suitability for maritime use, focused on the function, not the physical location, of the area in question.

            The 4th Circuit, in Sidwell v. Express Container Service, declined to follow that approach, as neither, in its opinion, followed the language of the statute.  The Sidwell decision held that an area is “adjoining” navigable waters only if it actually “adjoins” navigable waters; that is, if it is “contiguous with” or otherwise “touches” such waters.  If there are other areas between the navigable waters and the area in question, the latter area simply is not “adjoining” the waters under any reasonable definition of that term.  Therefore, an “other adjoining area” as to which coverage extends must be like a pier, wharf, dry dock, terminal, building way, or marine railway, that is, a “discrete shore side structure or facility.”  Finally, the asserted area must be customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel, as the statute provides.

The 4th Circuit’s delineation of the zone of coverage is clearly more restrictive in that it requires virtually a direct connection between the water and the place of employment and injury while the 5th and 9th Circuits only required that the area be used in maritime employment, no matter where it actually was.   Because of the difference in applicable tests a court will follow depending on the state/jurisdiction you are in, it is important for an employer to know of these unique differences.

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