I have a rather large queue of cases to digest and disseminate, so excuse the delay. I will still call it a "new" Longshore case, because, well, it is.
One oft-litigated issue in maritime injury cases is the situs and status test. Longshore and harbor workers have a different worker compensation scheme than other maritime workers who have a different compensation scheme than land based workers. As such, courts and litigants need to determine which compensation scheme covers a particular injury in order to bring that claim in the proper forum and understand which special rules apply to their injury. In this case, the special rule is the Longshore Act's "last employer rule" which basically puts the last employer on the hook for a claimant's injury even if it was sustained during their employ with a different employer.
So, what happens when a worker has a heart attack while on a boat, but had earlier worked on a boat in a drydock, and on a boat in two foreign ports? Is he covered by the Longshore Act?
The Ninth Circuit's most recent decision on this issue is in Keller Foundation v. Tracy. The opinion was authored by Judge Ikuta and it can be viewed here. The facts are simple: a maritime worker suffered a heart attack that resulted from cumulative trauma from prior employers. The Administrative Law Judge found that at the time of his injury, the claimant was not covered by the Longshore Act (his assignments didn't satisfy the status test -is he a harbor worker - or the situs test - did the injury occur in the longshore area). The Benefits Review Board affirmed.
On appeal, the Ninth Circuit reviewed, in great detail, the facts of the claimants' various job assignments - all of which, it ultimately concluded, where maritime in status and not Longshore in status. As to some injuries which occurred on foreign territorial waters, the Court found that the Longshore Act did not extend to foreign territorial waters as those waters are not "navigable waters of the United States."
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