CAN I EXEMPT MY WORKERS OR MYSELF FROM LONGSHOREMAN INSURANCE COVERAGE?

EXEMPTIONS AND A HISTORY LESSON: Prior to the enactment of the 1972 Amendments to the Act, in order to be covered by the Act, a claimant had to prove that his injury occurred upon the navigable waters of the United States, including any dry dock. In 1972, Congress amended the Act to add the status requirement of Section 2(3) and to expand landward the sites covered under Section 3(a). In Director, OWCP v. Perini North River Associates, 459 U.S. 297, 15 BRBS 62 (CRT)(1983), the United States Supreme Court determined that Congress expanded coverage with their amendment, and did not withdraw coverage under the Act from workers injured on navigable waters who would have been covered by the Act before 1972. The Court said that when a worker is injured on actual navigable waters while in the course of his employment on those waters, he is a maritime employee under Section 2(3). Regardless of the nature of the work being performed, such a claimant satisfies both the situs and status requirements and is covered under the Act, unless he is specifically excluded from coverage by another statutory provision. The Court considered "these employees to be "engaged in maritime employment' not simply because they are injured in a historically maritime locale, but because they are required to perform their employment duties upon navigable waters." 3 Perini, 459 U.S. at 324, 15 BRBS at 80 (CRT).

When the Act was amended and coverage was expanded in 1972, many small marinas and boat builders went out of business due to the higher costs of Longshoreman insurance premiums. A cry went up from those business folks affected, and Congress heeded that cry (a mere 12 years after the 1972 amendments!). With the 1984 amendments, Congress excluded certain workers from coverage:

An officer or employee of the United States or any of its agencies.
An employee of any state.
An employee of any municipality.
The agent of any foreign country.
An employee whose injury is caused solely by his intoxication.
An employee whose injury occurs as a result of his attempt to injure or kill himself or another.
Office clerical, secretarial, security, or data processing personnel who perform non-maritime tasks exclusively.
Personnel working for a club, camp, recreational operation, restaurant, museum, or retail outfit.
Personnel employed by a marina including those taking reservations, servicing boats, preparing and serving food, or performing routine tasks.
Personnel working for suppliers, transporters, or vendors temporarily doing business on the premises of a maritime employer, but who are not engaged in work normally performed by the employees of the maritime employer. This would include a teamster delivering a load of steel to a shipyard; however, an employee of a subcontractor performing a peripheral part of the shipbuilding or ship repair process at the shipyard would be covered.
Aquaculture workers, which includes personnel who clean, process, or can fish and fish products, and a commercial enterprise involved in the controlled cultivation and harvest of aquatic plants and animals.
Personnel working on the construction, repair, or dismantling of any recreational vessel under 65 feet in length.
NOTE: one exception to exclusions 7 through 12 is that the individual must be eligible for state workers' compensation benefits.
A master or member of a crew of any vessel (Jones' Act).
Any person engaged by a master to load, unload, or repair any vessel under 18 tons net.
Unfortunately for dock builders, they were not included in the list of those excluded from coverage under the Longshoreman Act. Hence, dock builders or marine contractors who build docks behind private homes, or do any kind of marine construction, even if they are working in two feet of "navigable water" (or less!) have Longshoreman exposure, and under the law, must have Longshoreman insurance coverage. Failure to have coverage is against the law, and carries serious consequences for an employer who fails to satisfy the insurance requirement:

The Act provides that an employer who fails to satisfy the insurance requirement shall be guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not more than $10,000 or by imprisonment for not more than one year, or by both.
Where the employer is a corporation, the President, Secretary, and Treasurer shall be severally liable to such fine and imprisonment, and also liable, jointly and severally with such corporation, for any compensation or other benefit which may accrue under the Act.
An uninsured employer may also be subject to civil suit by an injured employee pursuant to Section 5 of the Act. The injured worker or his legal representative may elect to claim compensation under the Act, or to maintain an action at law or in admiralty for damages on account of the injury. In such action, the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, or that an employee assumed the risk of his employment, or that the injury was due to the contributory negligence of the employee.

Having Longshoreman coverage is expensive, but not having it could turn out to be more expensive than merely paying the insurance premiums. Unless and until the law is amended again, employers whose employees are working on the navigable water (and are not specifically excluded under the current statute) need Longshoreman coverage. In the State of Florida, The Department of Labor, in conjunction with the State of Florida Workers' Compensation Compliance Bureau, is working to ensure that those businesses with Longshoreman exposure have the correct insurance coverage.