Seth Blackledge August 17 2022 Legal regimes covering maritime and non-maritime employee status Wilson Elser | Shipping & Transport - USA Seth Blackledge Shipping & Transport IntroductionClaims by Jones Act seamenClaims by maritime workers who are not Jones Act seamenClaims by non-maritime workersCommentIntroductionA variety of offshore businesses and contractors are required to construct, operate and maintain offshore facilities, often utilising special purpose vessels. With the progression of the of the offshore industry in the United States, including the advent of offshore wind vessels compliant with the Merchant Marine Act 1920 (the Jones Act),(1) operators and other entities within the supply chain should be aware not only of the Jones Act, but also of the varying legal regimes applicable to employees working offshore in the construction, repair and operation of offshore facilities.Offshore operations can involve Jones Act seamen, maritime employees and other, non-maritime employees. Whether a worker falls under the Jones Act or the Longshore and Harbor Workers Compensation Act (LHWCA) will dictate the rights and remedies of these workers in the case of injury or accident and also affect indemnity and insurance obligations for the employers and contractors. Understanding the classifications of offshore workers is crucial for determining the rights and remedies for these employees.A provision of the Jones Act grants seamen who are injured in the course and scope of their employment the right to sue their employer for personal injury damages. Qualifying as a Jones Act seaman requires a two-part test – namely, the worker must:contribute to the function of a vessel; andhave a connection to the vessel, or a fleet of vessels, that is substantial in both nature and duration.(2)With this in mind, one clear example of Jones Act seamen are the captain and crew of an offshore supply vessel.On the contrary, an engineer aboard a fixed offshore installation, more or less permanently attached to the seabed, may not be considered a seaman, because the worker has no permanent connection to a vessel in navigation. Nevertheless, a contract worker assigned to operate equipment on a barge or other floating work platform presents a murkier issue. That worker's status as a seaman will depend on the vessel status of the watercraft and the worker's connection to that vessel, if it qualifies as such.(3) In these cases, seaman status will be a highly fact-intensive inquiry depending on the totality of the circumstances and the worker's ultimate connection to a vessel.Claims by Jones Act seamenA Jones Act seaman can bring the typical tripartite causes of action against their employer:maintenance and cure;unseaworthiness; andJones Act negligence.A Jones Act employer owes an absolute duty to provide maintenance and cure to a seaman who is injured or becomes ill and such claims arise regardless of fault. The negligence claim also exists independently of the seaman's claims of unseaworthiness under the general maritime law.(4) In addition to claims against their employer, the seaman may bring general maritime law tort claims against third-party non-employers.Claims by maritime workers who are not Jones Act seamenIf an employee does not qualify as a Jones Act seaman, the employee could potentially fall under the LHWCA in two situations. To qualify as an LHWCA employee, a worker must meet both the "status" and "situs" tests of the LHWCA. In short, the employee must:engage in maritime employment; andbe injured upon the navigable waters of the United States.(5)If the employee meets these two prongs, the LHWCA provides for payment of medical, surgical and other treatment, as well as disability benefits, including temporary or permanent disability.The LHWCA, however, is the worker's exclusive remedy against their employer.(6) The LHWCA typically includes longshoremen, harbor workers, stevedores and other workers at ports and marine terminals, as well as shipbuilders and ship repairmen. Likewise, the Outer Continental Shelf Lands Act (OCSLA) extends the benefits conferred by the LHWCA to employees working on the Outer Continental Shelf in the exploration and development of natural resources. OCSLA extends US law to the subsoil and seabed of the Outer Continental Shelf, including:all artificial islands, and all installations and other devices permanently or temporarily attached to the seabed, which may be erected thereon for the purpose of exploring for, developing, or producing resources therefrom, or any . . . other device, other than a ship or vessel, for the purpose of transporting such resources.(7)In addition to those statutorily mandated payments, an LHWCA employee injured on a vessel maintains the right to sue a vessel in rem(8) through what is known as a "905(b) claim" against a vessel owner for vessel negligence. This 905(b) claim is specifically authorised by the terms of the LHWCA.(9)Claims by non-maritime workersLastly, if an employee does not qualify as a seaman or other maritime worker, a non-maritime employee would be covered by the applicable state workers' compensation laws if the LHWCA did not apply. These non-maritime workers could be management personnel or other employees who visit offshore installments on an occasional basis. Although a non-maritime employee would be unable to pursue a cause of action against their employer, if the employee becomes injured while aboard a third party's vessel, the employee could file suit in rem for vessel negligence. Every vessel owner owes a duty of reasonable care to passengers aboard its vessel; therefore, should a non-maritime employee suffer injury, the vessel owner could be liable for violating this duty.(10) Further, if injured on a fixed facility owned or operated by a third party, the worker may have a tort claim under the applicable state law.CommentThe classification of these various employees is crucial for determining their rights with respect to litigation in the case of injury or accident. In tandem, these classifications also affect contractual indemnities and insurance coverage and could preclude coverage under certain policies. For these reasons, employers, contractors and laborers should remain mindful of these classifications when considering project development, insurance needs, indemnity obligations and risk management.For further information on this topic please contact Seth Blackledge at Wilson Elser by telephone (+1 312 704 0550) or email ([email protected]). The Wilson Elser website can be accessed at www.wilsonelser.com.Endnotes(1) See Merchant Marine Act 1920, 46 US Code (USC) section 50102.(2) See Chandris, Inc v Latsis, 515 US 347, 368 (1995).(3) A "vessel" is broadly defined as anything capable of being used as a means of transport on water (1 USC section 3). In the 2013 US Supreme Court case Lozman v City of Riviera Beach (568 US 115, 121 (2013)), the Court narrowed the definition of vessel and set forth the "reasonable observer" test: whether a reasonable observer, looking to the watercraft's physical characteristics and activities, would consider it designed to a practical degree for carrying people or things over water.(4) See Calmar SS Corp v Taylor, 303 US 525, 527 (1938).(5) See 33 USC sections 901 et seq.(6) Ibid.(7) See 43 USC section 1333.(8) An action against a vessel in rem treats the vessel as if it were its own defendant under the doctrine of personification, assuming proper jurisdiction exists over the vessel.(9) See 33 USC section 905(b).(10) Kermarec v Compagnie Generale Transatlantique, 358 US 625, 632 (1959).