One
of the most common questions we receive in our office is:
“Is a worker who works in a non-maritime job
on an island and commutes by any form of boat eligible for Longshore benefits?”
First,
we have to give the standard disclaimer that we are not attorneys, so what I am
about to offer is not a legal opinion but an “insurance” opinion and that it
assumes that the location is in “navigable” waters, i.e. not on a
landlocked lake wholly within a single state (see the Longshore
situs video
if you need more information on that).
The
first part of the answer has nothing to do with Longshore. Any employees
who operate a vessel, be it a 16ft. skiff, a 50ft ferry or acts as a crewman
will typically leapfrog over Longshore straight into Jones Act and the other
admiralty coverages and will require coverage in the form of Maritime Employers
Liability (MEL) or the crew coverage provided by a Protection & Indemnity
(P&I) policy, dependent on the details of the operation.
But,
if the employee does not operate the vessel or act as a crewman, the good news
is that I have never seen employees who simply “rides” the vessel as a
passenger ever be held as either Longshore or Jones
Act/Admiralty. But, there are Two big HOWEVERS coming up here.
·
If they load product or supplies aboard the vessel, they
would be “loading or unloading” the vessel and thus Longshore.
·
If they help catch a line or tie up the boat, they could
be Longshore.
Even
if they do neither of those, that does not stop a smart attorney from filing a
Longshore claim, and no Longshore coverage also equals no Longshore
defense. Even if the employer wins, it can still cost them well into 6
figures to win in federal court.
It
is unlikely an injured employee will bring an Admiralty or Longshore claim for
a minor injury, but it will come from the major carrier end, probably soft
tissue injury. You should be able to add Longshore on an “If Any”
basis or allocate a small amount of payroll for a small cost. Therefore,
allowing you to obtain Longshore coverage and also an unlimited defense cost
policy. This not only protects the client properly but also provides the
agent/broker with vital E&O protection.
The
vessel P&I policy should also be extended to cover the liability for any
employees aboard, including the crew if not already covered, or a MEL policy
purchased again to provide necessary defense and E&O protection.
For more information on MEL policies and what they cover see MEL Myth or Mystery? and Protection & Indemnity.
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