Pacific Operators Again

Pacific Operators Again

A comment on my blog from yesterday in one of the LinkedIn groups asked whether this logic might also apply to the Longshore and Harbor Workers' Compensation Act.

The wording in OCSLA §1333(c) limits recovery to injuries occurring “as a result of” operations on the OCS.  The Longshore and Harbor Workers' Compensation Act limits recovery to disability resulting from an injury “occurring upon” the navigable waters of the United States or an adjacent maritime site.  (There is also a status requirement).

Thus OCSLA is cause driven but the LHWCA is a location driven statute.

This reminds me that I wrote, in the context of shore workers: -

“It does not seem to matter whether it was his employer’s pipe, nor whether the employer had extractive operations on the OCS, according to the text of the statute.”

The words underlined are flat out wrong.  There needs to be an employer with “extractive operations”, not in OCSLA, but in the LHWCA.

Section 1331(c) applies the Longshore and Harbor Workers' Compensation Act to injuries occurring, as we have seen, “as a result of” operations on the OCS.  The disability or injury must be to “an employee”.  The section then continues:

“ For the purposes of the Longshore and Harbor Workers' Compensation Act, (actually it read in 1953 “Longshoremen’s”), under this section –

(1) the term ‘employee’ does not include a master or member of a crew of any vessel, or an officer or employee of the United States or any agency thereof or of any State or foreign government, or of any political subdivision thereof;

(2) the term ‘employer’ means an employer any of whose employees are employed in such operations…”

“[S]uch operations” refers to §1331(b), “any operations conducted on the outer Continental Shelf for the purpose of exploring for, developing, removing or transporting by pipeline the natural resources, or involving rights to the natural resources of the subsoil or seabed of the outer Continental Shelf…”

Section 2. (3) of the Longshore and Harbor Workers' Compensation Act tells us that

“the term “employee” means any person engaged in maritime employment,” (and then goes on to include longshoremen, among others and exclude crewmembers among others.)

Section 2. (4) tells us that:

“the term “employer” means an employment any of whose employees are employed in maritime employment,” and then lists the geographic area for that employment.

The definitions in the Longshore and Harbor Workers' Compensation Act have always been subject to criticism.  Both the terms “employer” and “employee” are defined in relation to “maritime employment”, a term that is nowhere defined, and appears somewhat circular.

Under §3 (Coverage), (a) compensation is payable to employees.  Under §4 (Liability for Compensation), (a) “Every employer shall be liable for and shall secure the payment to his employees”.

An employer must therefore have operations on the OCS for the Act to apply.  Note that the injured employee does not have to be an OCS worker; at least one co-employee must be.

For example, the employer is bringing damaged material from the rig for repair; the material is unloaded (LHWCA, anyone?), and then moved to a machine shop.  Two workers, an employee and an independent contractor’s employee, are injured moving it on to the bench for repair.  It would seem, assuming that there is this mysterious “substantial nexus” between OCS activity, that the employee will be covered by OCSLA and the other worker limited to state workers’ compensation.  Add to this delicious mix the doctrine of “borrowed servant”, alive and well on the OCS, and there is even further opportunity for litigation.  To quote Justice Scalia who is also quoting, “What a tangled web we weave”.