2009 American Recovery And Reinvestment Act Amends Longshore And Harbor Workers Compensation Act

In addition to providing for the expenditure of billions of

dollars to stimulate the American economy, the 2009 American

Recovery And Reinvestment Act limits the reach and scope of the

Longshore and Harbor Workers Compensation Act, 33 U.S.C. Sec. 901,

et seq. (the "LHWCA").

The LHWCA was originally enacted in 1927 to provide a

compensation scheme for a class of workers commonly referred to as

"longshoremen", land-based employees who worked for, on

or around vessels. During 1927, every state in the Union had

enacted their own workers' compensation law, but—in

1927—state law coverage excluded maritime workers.

Like other workers' compensation schemes, the LHWCA required

employers to provide compensation to injured employees,

"irrespective of fault." Employers in turn were: (a)

allowed to provide significantly lesser amounts of benefits than

typical tort damages; and (b) granted immunity from tort liability

regardless of the degree of fault.

In 1984, Congress amended the LHWCA to exclude certain types of

workers, including: clerical workers (Section 902(3)(A)); workers

at camps, restaurants, or retail outlets (Section 902(3)(B));

marina workers (Section 902(3)(C)); workers employed by vendors or

suppliers (Section 902(3)(D)); aquaculture workers (Section

902(3)(E)); and builders and repairers of recreational vessels

(Section 902(3)(F)).

The reason for this amendment was that by the 1980's

virtually all state workers' compensation laws provided

coverage to maritime employees and Congress sought to minimize

overlap between the federal and state compensation statutes.

The 2009 amendment to the LHWCA focuses exclusively on Section

902(3)(F).

Prior to 2009, Section 902(3)(F) excluded:

(F) individuals employed to build, repair or dismantle any

recreational vessel under sixty-five feet in length;

Today, Section 902(3)(F) reads:

(F) individuals employed to build any recreational vessel

under sixty-five feet in length, or individuals employed to repair

any recreational vessel, or to dismantle any part of a recreational

vessel in connection with the repair of the vessel;

Based upon the plain meaning of this change to Section

902(3)(F), it is clear that Congress intends to:

limit the scope of the LHWCA to recreational boat builders to

those working on vessels in length of 65 feet or greater;

exclude altogether those workers involved in the repair of all

vessels, irrespective of length; and

exclude...

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