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One if by Land, Two if by Sea: Differentiating Between Maritime and Non-Maritime Workers on Offshore Wind Installations
Wednesday, October 21, 2020

A variety of offshore contractors are required to construct, operate and maintain offshore facilities, often utilizing special purpose vessels. With the rise and rapid progression of the development of the offshore wind industry in the United States, including the advent of US Jones Act-compliant offshore wind vessels,[1] operators and other entities within the supply chain should be aware not only of Jones Act cabotage laws[2] but also of the varying legal regimes applicable to employees working offshore in the construction, repair, and operation of wind farms and facilities. Offshore wind operations can involve Jones Act seamen, maritime employees, and other, non-maritime employees. Whether a worker falls under the Jones Act or the Longshore and Harbor Workers Compensation Act (LHWCA) will dictate the rights and remedies of these workers in the case of injury or accident and also affect indemnities and insurance obligations. Understanding the classifications of offshore workers is crucial for risk management concerns and insurance coverage needs.

A provision of the Merchant Marine Act of 1920, commonly known as the Jones Act, grants seamen who are injured in the course and scope of their employment the right to sue their employer for personal injury damages. Whether a worker qualifies as a Jones Act seaman is subject to a two-part test: (1) the worker must contribute to the function of a vessel and (2) the worker must have a connection to the vessel (or a fleet of vessels) that is substantial in both nature and duration.[3] With this test in mind, it is clear that the captain and crew of an offshore supply vessel would qualify as Jones Act seamen. On the contrary, an engineer aboard a fixed offshore wind installation, more or less permanently attached to the seabed, may not be considered a seaman, because he or she has no permanent connection to a vessel in navigation. On the other hand, a contract worker assigned to operate equipment on a barge or other floating work platform presents a less clear case. His or her status as a seaman will depend on the vessel status[4] of the watercraft and the worker’s connection to same. In these gray area cases, seaman status will be a highly fact-intensive inquiry depending on the totality of the circumstances and the worker’s ultimate connection to the vessel.

A Jones Act seaman can bring the typical tripartite causes of action against his or her employer: (1) maintenance and cure; (2) unseaworthiness; and (3) Jones Act negligence. A Jones Act employer owes an absolute duty to provide maintenance and cure to a seaman who is injured or becomes ill and such claims arise regardless of fault. The negligence claim also exists independently of the seaman’s claims of unseaworthiness under the general maritime law.[5] In addition to claims against his or her employer, the seaman may bring general maritime law tort claims against third-party non-employers.

If an employee does not qualify as a Jones Act seaman, the employee could potentially fall under the LHWCA in two situations. To qualify as an LHWCA employee, a worker must meet both the “status” and “situs” tests of the LHWCA. In short, the employee must: (1) engage in maritime employment; and (2) be injured upon the navigable waters of the United States. If the employee meets these two prongs, the LHWCA provides for payment of medical, surgical, and other treatment, as well as disability benefits, including temporary or permanent disability. The LHWCA, however, is the worker’s exclusive remedy against his or her employer.[6] The LHWCA typically includes longshoremen, harbor workers, stevedores, and other workers at ports and marine terminals, as well as shipbuilders and ship repairmen. Likewise, the Outer Continental Shelf Lands Act (OCSLA) extends the benefits conferred by the LHWCA to employees working on the Outer Continental Shelf in the exploration and development of natural resources.[7] With respect to the offshore wind industry, current law does not make clear that the OCSLA, and by extension the LHWCA, would apply to offshore wind projects, because the OCSLA was passed with the extraction of oil, gas, and other resources from the seabed and subsoil in mind. Simply put, offshore wind projects obviously do not “extract” from the seabed or subsoil, thus it is arguably undecided whether the exclusive remedy provisions of the LHWCA would apply to maritime employees working on offshore wind projects. Nonetheless, assuming the LHWCA and its regime apply to offshore wind developments, in addition to those statutorily mandated payments, an LHWCA employee injured on a vessel may bring what is known as a 905(b) claim against a vessel owner for vessel negligence.[8]

Lastly, if an employee does not qualify as a seaman or other maritime worker, a non-maritime employee would be covered by the applicable state workers’ compensation laws if the LHWCA did not apply. These non-maritime workers could be management personnel or other employees who visit offshore wind installments on an occasional basis. Although a non-maritime employee would be unable to pursue a cause of action against his or her employer, if the employee becomes injured while aboard a third party’s vessel, the employee could file suit for vessel negligence. Every vessel owner owes a duty of reasonable care to passengers aboard its vessel;[9] therefore, should a non-maritime employee suffer injury, the vessel owner could be liable for violating this duty. Further, if injured on a fixed facility owned or operated by a third party, the worker may have a tort claim under the applicable state law.

In sum, the classification of these various employees is crucial for determining their rights with respect to litigation in the case of injury or accident. In tandem, these classifications also affect contractual indemnities and insurance coverage and could preclude coverage under certain policies. For these reasons, players in the offshore wind industry should remain mindful of these classifications when considering project development, insurance needs, indemnity obligations, and risk management.

[1] See Kirk Moore, Edison Chouest to build first Jones Act offshore wind service vessel, WorkBoat (Oct. 1, 2020); Kirk Moore, ‘Superfeeder’ design offers Jones Act solution for offshore wind developers, WorkBoat (June 15, 2020).

[2] See The Jones Act and Outer Continental Shelf Lands Act in the Context of Offshore Wind.

[3] See Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995).

[4] A “vessel” is broadly defined as anything capable of being used as a means of transportation on water. 1 U.S.C. § 3. In the 2013 U.S. Supreme Court case Lozman v. City of Riviera Beach, the Court narrowed the definition of vessel and set forth the “reasonable observer” test — whether a reasonable observer, looking to the watercraft’s physical characteristics and activities, would consider it designed to a practical degree for carrying people or things over water. 568 U.S. 115, 121 (2013).

[5] See Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 527 (1938).

[6] See 33 U.S.C. §§ 901, et seqSee also Nations v. Morris, 483 F.2d 577, 588 (5th Cir.), cert. denied, 414 U.S. 1071 (1973).

[7] OCSLA extends US law to the subsoil and seabed of the Outer Continental Shelf, including “all artificial islands, and all installations and other devices permanently or temporarily attached to the seabed, which may be erected thereon for the purpose of exploring for, developing, or producing resources therefrom, or any . . . other device (other than a ship or vessel) for the purpose of transporting such resources.” 43 U.S.C. § 1333.

[8] Under the dual-capacity doctrine, if an entity is both the vessel owner and the employer of the injured LHWCA employee, the employee may bring suit against the employer in its capacity as vessel owner.

[9] Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 632 (1959).

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