In addition to providing for the expenditure of billions of dollars to stimulate the American economy, the 2009 American Recovery And Reinvestment Act limits the reach and scope of the Longshore and Harbor Workers Compensation Act, 33 U.S.C. Sec. 901, et seq. (the "LHWCA").
The LHWCA was originally enacted in 1927 to provide a compensation scheme for a class of workers commonly referred to as "longshoremen", land-based employees who worked for, on or around vessels. During 1927, every state in the Union had enacted their own workers' compensation law, but—in 1927—state law coverage excluded maritime workers.
Like other workers' compensation schemes, the LHWCA required employers to provide compensation to injured employees, "irrespective of fault." Employers in turn were: (a) allowed to provide significantly lesser amounts of benefits than typical tort damages; and (b) granted immunity from tort liability regardless of the degree of fault.
In 1984, Congress amended the LHWCA to exclude certain types of workers, including: clerical workers (Section 902(3)(A)); workers at camps, restaurants, or retail outlets (Section 902(3)(B)); marina workers (Section 902(3)(C)); workers employed by vendors or suppliers (Section 902(3)(D)); aquaculture workers (Section 902(3)(E)); and builders and repairers of recreational vessels (Section 902(3)(F)).
The reason for this amendment was that by the 1980's virtually all state workers' compensation laws provided coverage to maritime employees and Congress sought to minimize overlap between the federal and state compensation statutes.
The 2009 amendment to the LHWCA focuses exclusively on Section 902(3)(F).
Prior to 2009, Section 902(3)(F) excluded:
(F) individuals employed to build, repair or dismantle any recreational vessel under sixty-five feet in length;
Today, Section 902(3)(F) reads:
(F) individuals employed to build any recreational vessel under sixty-five feet in length, or individuals employed to repair any recreational vessel, or to dismantle any part of a recreational vessel in connection with the repair of the vessel;
Based upon the plain meaning of this change to Section 902(3)(F), it is clear that Congress intends to:
- limit the scope of the LHWCA to recreational boat builders to those working on vessels in length of 65 feet or greater;
- exclude altogether those workers involved in the repair of all vessels, irrespective of length; and
- exclude those workers involved in the dismantling of vessels, irrespective of length, provided that the dismantling is connected to the repair of a vessel.
The issue of overlap between the LHWCA, the Jones Act, 46 U.S.C. Sec. 688, et seq. and state workers' compensation schemes remains a constant source of confusion. Union and corporate special interests have and continue to jockey for position in seeking further changes to these and other statutes affecting maritime workers and their employers.
We will continue to provide timely updates on any significant legislative changes as they occur.
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