Monday, January 29, 2018

Is a Worker on an Island Longshore?

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 Anybasis 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.