The Basics of the Longshore Act & Available Remedies for Injured Maritime Workers

The Longshore and Harbor Workers’ Compensation Act (“LHWCA” or the “Longshore Act”) is a federal workers’ compensation scheme designed to provide coverage to maritime employees who are injured or killed in an incident “occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining areas customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel).” 33 U.S.C. § 903(a).

Generally, under the Act, the statute of limitations for a traumatic injury is one year and is governed by the discovery rule. Id. at § 913(a). Occupational diseases receive a longer statute of limitations period of two years. Id. at § 913(b). Additionally, the Longshore Act possesses generous tolling provisions that extend to “any person, in a suit brought at law or in admiralty to recover damages in respect of injury . . . on the ground” that the person should have pursued a Longshore Act claim. See id. at § 913(d).

            The Longshore Act mandates that employers provide coverage accordingly.

Every employer shall be liable and shall secure the payment to his employees . . . In the case of an employee of a subcontractor, only if such subcontractor fails to secure the payment of compensation shall the contractor be liable for and be required to secure payment of compensation. A subcontractor shall not be deemed to have failed to secure the payment of compensation if the contractor has provided insurance for such compensation for the benefit of the contractor.

Id. at § 904(a).

By contrast with the Jones Act, which is a comparative fault-based, the LHWCA is no fault—“[c]ompensation shall be payable irrespective of fault as a cause of the injury.” Id. at § 904(b).

There is no potential conflict of compensation schemes in Texas. Under Texas law, “a person covered by a method of compensation established under federal law” is not subject to the Texas Workers’ Compensation Act, at all. Id. (citing Tex. Lab. Code Ann. § 406.091(a)(2)).

Remedies are governed by statute. An injured employee/representative of the deceased is entitled to compensation benefits for 1) two-thirds of the employee’s average weekly wage for each week while undergoing medical treatment; and then, 2) either: a) two-thirds of the worker’s loss of wages, or b) the loss of the employee’s wage-earning capacity. See id. at §§ 906–910.