Can a Longshoreman obtain workers' compensation benefits under the Longshore and Harbor Workers' Compensation Act (LHWCA) and pursue a strict-liability civil claim against his employer under New York Labor Law?

Scaffold Law claims.

New York Labor Law §§ 200, 240(1) & 241(6) specifically states that it applies to

All contractors and owners and their agents . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.

Case law has made it clear that even “inspecting” a work site, if the inspection was incidental to the actual work tasks being performed there, could bring a worker under the Scaffold Act.

Plaintiff’s Proofs in a Scaffold Claim.

To prevail in such a claim, which pierces the immunity offered employers under the Workers’ Compensation Law (NY WKC) the plaintiff must show

he was subjected to an elevation-related risk which the statute was designed to obviate and that there was a causal connection between a violation of the statute and the injury sustained.

Failure to provide safety devices to prevent falls is prime facie evidence of violation and the strict liability standard will apply. See Zimmer v. Performing Arts, 65 N.Y.2d 513 (1985).

Longshore Act Jurisdiction: Employee’s “Status” and “situs.”

The LHWCA set forth the requirements for coverage. “Status” refers to the nature of the work performed; “situs” refers to the place of performance. The employee claiming benefits under the LHWCA must be engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, including any harbor-worker including a ship repairman, shipbuilder, and ship-breaker. There are specific exclusion which apply to status.

The jurisdictional trigger for a claim under the LHWCA is an injury upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel). Jurisdictional questions based on issues of situs are fact-sensitive.

“Over water”

Maritime employment is more than simply work done over navigable water. To be compensable under the Act, the employee’s proximity to navigable water must be more than simply “incidental” or “fortuitous’ – the nature of the work must somehow be linked to the water. The Supreme Court has instructed that the test of whether a claimant is engaged in maritime employment is whether they are required to perform their employment duties upon navigable waters, and “not simply because they are injured in a historical maritime locale.”

“Over land”

“Situs” includes land that is not contiguous to the navigable water, provided certain conditions are met:

  1. the suitability of the site for maritime purposes,
  2. the use of adjoining properties,
  3. proximity to the navigable waterway,
  4. whether or not the site is as close to the waterway as is feasible, given all of the circumstances.

These conditions all focus on the functional relationship of the of the land, rather than the specific location of the injury site. Jurisdictional questions arising from location facts need to be reviewed on a case-by-case basis.

Federal preemption.

The cases applying preemption are varied but clearly delineate one overriding factor in applying the bar: was the injury on a vessel or not? The Longshore and Harbor Workers’ Compensation Act’s exclusive remedy provision (33 U.S.C. § 905) limits the exposure of the Longshore employer from civil suit. In exception to the statutory bar, the Federal Act allows for the injured worker to make a claim at law against the owner of the vessel involved. 33 U.S.C. 905(b).  The injured worker must show the negligence of the vessel owner in causing the alleged injury. 33 U.S.C. 905(b)

This distinction in the Act between immunity from suit but lack of immunity for vessel-owners is key to understanding the split of cases either allowing or disallowing a third-party (civil) claim under New York’s draconian Labor Law §§200, 240(1), and 241(6). 

Immunity from suit.

To get immunity from suit, the employment must meet the standards of “status and situs” as set forth in the Longshore and Harbor Workers’ Compensation Act (33 U.S.C. 901 et seq). Merely working “near” navigable water is not enough (for example, a claim by an injured plaintiff fell into edge of waters of East River as result of accident, accident did not occur on navigable waters, and thus court properly denied defendants’ motion in action under CLS Labor §§ 200, 240(1) and 241(6) to amend their answers to assert defenses based on federal Longshore and Harbor Workers Act. See Posillico v Laquila Constr., 265 App Div 2d 394, 696 NYS2d 507 (1999, 2d Dept).

Where the employer can show that the employment was indeed a “Longshore” employment, immunity for suit has been upheld. In an action by commercial diver who allegedly sustained decompression injuries while working on underwater construction project in New York Harbor, causes of action under CLS Labor §§ 200, 240, 241, 431 and 435 and common law negligence principles were preempted by federal maritime law because the incident occurred in navigable waters, underwater construction is substantially related to traditional maritime activity, and federal maritime law imposes a standard of reasonable care and doctrine of comparative negligence. Hartley v City of New York, 163 Misc 2d 540, 621 NYS2d 789 (1994, Sup).

Courts routinely dismiss longshoreman’s actions pursuant to Labor Law § 240 because state law may not be applied where it would conflict with federal maritime law. Emanuel v Sheridan Transp. Corp., 779 NYS2d 168 (2004, App Div, 1st Dept); Irvin v Amerada Hess Corp., 191 App Div 2d 478, 594 NYS2d 324 (1993, 2d Dept)(criticized in Eriksen v Long Island Lighting Co., 236 App Div 2d 439, 653 NYS2d 670[1997, 2d Dept])(court precluded application of CLS Labor §§ 200, 240(1) and 241(6) in action to recover for injuries sustained while plaintiff was engaged in backfilling to strengthen dock and bulkhead); Eriksen v Long Island Lighting Co., 236 App Div 2d 439, 653 NYS2d 670 (1997, 2d Dept); Rigopoulos v State, 236 App Div 2d 459, 653 NYS2d 667 (1997, 2d Dept). 

No Immunity from suit for Vessel Owners.

The immunity from suit that the Longshore Act affords employers is not extended to vessel owners. See 33 U.S.C. 905(b). In action for injuries sustained by plaintiff while on floating raft on navigable waters, where raft was anchored to land-based transfer station and work at issue was repair to land structure, strict liability provisions of Labor Law were not preempted by federal maritime law. Two recent cases (Lee v Astoria Generating Co., L.P., 13 NY3d 382, [2009] and Cammon v City of New York, 95 NY2d 583 [2000], reargument den., 96 NY2d 793, 725 NYS2d 642, 749 NE2d 211[2001]) demonstrate that if the construction worker is injured on a floating raft, barge or other vessel, he can file a civil claim and have the strict liability provisions of the Labor Law apply.

In Lee, supra, the Court found that because the “platform” the construction worker was working on had been tugged on water, was capable of being used as means of transportation on water, and, although stationed at a particular facility, was not permanently anchored or moored, it had not lost its status as a vessel. Therefore, under 33 U.S.C. 905(b) the immunity from suit does not apply and the employer could be third-partied into a civil claim. Similar cases abound. Eldoh v Astoria Generating Co., L.P., 81 App Div 3d 871, 917 NYS2d 289 (2011, 2d Dept); McAllister v G&S Investors, 358 F Supp 2d 146 (2005, ED NY).

Port Authority.

There is a twenty-year old reported decision discussing whether a Port Authority employee, working in New Jersey at the time of loss, could make a civil claim against his employer and rely on New York’s strict liability statutes (Labor Law). In that case, the Court would not apply CLS Labor § 240 to action arising from incident in which plaintiff, who was New York domiciliary, fell from ladder while working at Newark International Airport, which was owned by defendant bi-state agency since (1) plaintiff sought to apply statute as rule of conduct, and (2) choice of law rules mandated application of less stringent law of situs of incident. Aviles v Port Auth., 202 App Div 2d 45, 615 NYS2d 668 (1994, 1st Dept), app withdrawn 84 NY2d 1008, 622 NYS2d 919, 647 NE2d 125 (1994). Please note that this case does not involve a Longshoreman or Longshore (maritime) activity.

Greg Lois is the managing partner of LOIS LLC, a 19-attorney law firm dedicated to defending employers and carriers in New York and New Jersey workers' compensation claims. Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or glois@lois-llc.com