Marina Dock Age, July/August 2002

Does the Longshore and Harbor Workers Act Apply to You?
You may be surprised
by Mark Yearn

Many marinas nationwide conduct their business operations based on the assumption that they do not qualify under the Longshore and Harbor Workers’ Compensation Act. This belief developed primarily from the amendment to the Act in 1984 that attempted to remove marinas and their employees from protection.

Background

Enacted in 1927, the Act’s original intent was to provide protection to land-based workers injured while temporarily onboard a vessel in the navigable waters of the United States. However, this meant that longshoremen essentially walked out of the protection of the Act every time they left a ship.

In 1972, Congress amended the Act to expand coverage to encompass injuries occurring on piers and adjacent land used for the loading and unloading of ships. This forced the recreational marine industry to purchase Longshore protection for every employee, from receptionist, to janitor, to dock builder.

In 1984, Congress again attempted to clarify the scope of protection under the Act and amended it to include all longshoremen and harbor-workers, including ship-repairmen, shipbuilders, and ship breakers.

The 1984 amendment excludes employees who are performing clerical duties; employed by a camp, club, recreational operation, restaurant, museum, or retail outlet; employed by a marina but not engaged in the construction, replacement, or expansion of the marina; employed to build, repair, or dismantle any recreational vessel under 65'.  

These employees are exempt from the Act as long as there is a State Workers’ Compensation policy. If these benefits aren’t available, then the employee falls under the protection of the Act.  

Do I qualify?

To fall under the protection of the Act, you must meet the following criteria:

Navigable water — Your facility must be located on a navigable water or tributary of the U.S. A safe interpretation of “navigable water” is a waterway where interstate commerce or international commerce may occur.

Your operation may be located on a landlocked body of water; however, if the body of water is located within the boundaries of two states, the waterway can be deemed as being used for interstate commerce, and therefore qualifies as a navigable water, making your marina subject to the Act.

If your operation is located on a landlocked lake contained within one specific state, you do not qualify under the Act’s protection. However, if your lake has access to any tributary leading to coastal or interstate waters, the Act applies.

Construction, replacement, and expansion of a marina facility — If any of your employees are involved in these operations at any time your marina falls under the Act. This has been interpreted to include storage buildings, repair buildings, or other such structures, on property, or adjacent property, located on navigable waters.  

Driving piles, replacing dock supports, replacing dock planking and walkways, upgradng your facility to meet ADA requirements, or simply expanding the operations, all place your marina operation under the protection of the Act.

Servicing vessels in excess of 65 feet — The servicing of any vessel 65 feet and over places your facility under the protection of the Act. The courts have determined that once your facility qualifies for protection, all employees are protected. A marina facility cannot “walk in and out” of the protection of the Act. Continue »