Why Amending the Defense Base Act with H.R. 5721 Is a Bad Idea

On November 17, 2014, Representative Stephen F. Lynch (MA) introduced H.R. 5721, the Overseas Security Personnel Fairness ActRep. Lynch’s news release states that the purpose of H.R. 5721 is to “remove a significant penalty in federal law that currently prohibits the families of overseas federal contractors who are killed in the line of duty from receiving full death benefits if the deceased employee is unmarried with no children or other dependents.”  To achieve his its goal, H.R. 5721 proposes an amendment to the Defense Base Act (“DBA”).  Ultimately, H.R. 5721 appears destined to fail.

The Reason for H.R. 5721:

Representative Lynch proposed H.R. 5721, the Overseas Security Personnel Fairness Act, to address an issue that arose from the September 2012 terrorist attack on the U.S. Consulate in Benghazi, Libya.  Glen Doherty, a security contractor and former Navy SEAL, was killed during the attack.  He was unmarried, with neither children nor other dependents.  Yet, he had activated a mandatory Defense Base Act insurance policy before deploying to Libya wherein he had designated a beneficiary.

The Text of H.R. 5721:

The Overseas Security Personnel Fairness Act is short.  It states, in full:

A BILL

To amend the Defense Base Act (42 U.S.C. 1651 et seq.) to require death benefits to be paid to a deceased employee’s designated beneficiary or next of kin in the case of death resulting from a war-risk hazard or act of terrorism occurring on or after September 11, 2001.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1.  SHORT TITLE.

This Act may be cited as the “Overseas Security Personnel Fairness Act”.

SECTION 2.  DEFENSE BASE ACT AMENDMENTS RELATING TO DEATH BENEFITS

The Defense Base Act (42 U.S.C. 1651 et seq.) is amended by adding at the end of the following new section:

“SEC. 6. DEATH BENEFITS.

“(a) In General.–In the case of a person covered by this Act who dies as a result of a war-risk hazard or act of terrorism, if there is no person eligible for a death benefit of the deceased under section 9 of the Longshore and Harbor Workers’ Compensation Act (33 U.S.C. 909), then the benefits provided under section 9(b) of such Act to a widow or widower of the deceased shall be paid–

“(1) to a beneficiary designated by the deceased; or

“(2) if there is no designated beneficiary, to the next of kin of the estate of the deceased under applicable State law.

“(b) Payment of Benefits.–Benefits found to be due under this section shall be paid from the compensation fund established pursuant to section 8147 of title 5, United States Code.

“(c) War-Risk Hazard Defined.–In this section, the term ‘war-risk hazard’ has the meaning provided in section 201(b) of the War Hazards Compensation Act (42 U.S.C. 1711(b)).

“(d) Effective Date.–The death benefit payable under this section shall apply with respect to deaths occurring on or after September 11, 2001.”.

Implicated Statutory Schemes:

Phew.  There is a lot going on in H.R. 5721.  It references the Defense Base Act, the Longshore and Harbor Workers’ Compensation Act, the War Hazards Compensation Act, and by reference to 5 U.S.C. 8147, the Federal Employees’ Compensation Act.

To understand what H.R. 5721 is doing, start at section 9 of the Longshore Act.  In the event of a work-related death of an employee covered by the Longshore Act, benefits are paid according to section 9.  Potential beneficiaries are defined by statute, with some classes of beneficiaries (e.g., widow and kids) preferred over other classes of beneficiaries (e.g., parents).  If a preferred class exists, then the preferred class takes benefits to the exclusion of the less preferred classes.

The Defense Base Act is an extension of the Longshore Act that applies to overseas federal contractors.   It has equal force for citizens of the United States and non-citizens, non-residents of the United States.  The DBA applies the Longshore Act exactly as the Longshore Act is written, except where the Defense Base Act says differently.

H.R. 5721 proposes adding a section to the DBA that would create more potential death benefits beneficiaries.  But the new beneficiaries would only receive benefits if (1) there are no statutory beneficiaries as defined by the Longshore Act and (2) the death was caused by a “war-risk hazard.”

According to the War Hazards Compensation Act, a “war-risk hazard” includes:

(1) the discharge of any missile (including liquids and gas) or the use of any weapon, explosive, or other noxious thing by a hostile force or person or in combating an attack or an imagined attach by a hostile force or person; or

(2) action of a hostile force or person, including rebellion or insurrection against the United States or any of its allies; or

(3) the discharge or explosion of munitions intended for use in connection with a war or armed conflict with a hostile force or person as defined [in the WHCA] (except with respect to employees of a manufacturer, processor, or transporter of munitions during the manufacture, processing, or transporting thereof, or while stored on the premises of the manufacturer, processor, or transporter); or

(4) the collision of vessels in convoy or the operation of vessels or aircraft without running lights or without other customary peacetime aids to navigation; or

(5) the operation of vessels or aircraft in a zone of hostilities or engaged in war activities.

So, if a death is caused by one of these things, and there are no other beneficiaries, then a beneficiary designated by the deceased could receive benefits.  But not from the employer or carrier.  And not from the Special Fund maintained by the Division of Longshore and Harbor Workers’ Compensation Act–the agency that administers the Defense Base Act.  Instead, the designated beneficiary would be paid by the Employees’ Compensation Fund, which is the fund managed by the Division of Federal Employees’ Compensation–the agency that administers the War Hazards Compensation Act.

Why H.R. 5721 Won’t Work:

Really, a law review essay could be written about the reasons why H.R. 5721 will not work.  For this blog post, I will pose just a few of the problems:

First, why is Representative Lynch trying to amend the Defense Base Act instead of amending the War Hazards Compensation Act–and only the WHCA?  If the Defense Base Act does not apply to a particular claimant, yet the injury was caused by a “war-risk hazard,” then that claimant may file a claim for benefits pursuant to Section 101(a) of the WHCA.  If H.R. 5721 requires payment out of the Employees Compensation Fund instead of payment from a Defense Base Act insurer pursuant to a DBA insurance policy, then the problem that Representative Lynch is trying to solve should be limited to the WHCA.  In my opinion, H.R. 5721 goes out of its way to amend the DBA when the DBA should not have been implicated in the first place.

Second, what about aliens and nonnationals?  Section 2(b) of the Defense Base Act, which addresses death benefits to foreign nationals, limits beneficiaries to the “surviving wife and child or children, or if there be no surviving wife or child or children, to surviving father or mother….”  Does H.R. 5721 have any affect on the rights of aliens and nonnationals who may also designate a beneficiary?

Third, why is H.R. 5721 limited only to “war-risk hazard” deaths?  Based on the language used, H.R. 5721 would not apply to the death of a DBA contractor unless the death was caused by a “war-risk hazard” or act of terrorism.

Fourth, retroactive to September 11, 2001?  This would involve reopening closed cases where the applicable statute of limitations–section 13 of the Longshore Act–has long expired.

The Better–and Simpler–Course of Action:

Instead of amending the Defense Base Act, Representative Lynch should have taken a closer look at the War Hazards Compensation Act.  Section 101(a) allows WHCA benefits when an employee specified in section 1(a)(5) of the DBA is injured or killed, yet no compensation is payable with respect to the injury or death.  Further, section 102(a) of the WHCA provides information for the payment of death benefits, stating that “the scale of compensation benefits and the provisions for determining the amount of compensation and the payment thereof as provided in sections 8 and 9 of the Longshoremen’s and Harbor workers’ Compensation act . . . can be applied under the terms and conditions set forth therein . . . .”

All things considered, Representative Lynch could achieve the same result by amending only section 102 of the WHCA.  Although the Division of Federal Employees’ Compensation may have a headache or two applying the amendment, at least Representative Lynch could avoid turning the Defense Base Act on its ear with respect to death benefits.

Conclusion:

I doubt that H.R. 5721 will pass, despite the sympathetic reasons that led to Representative Lynch’s introduction of the Bill.  Still, though, Representative Lynch could consider proposing new legislation in the future that amends section 102 of the WHCA, thus accomplishing the same results.

Finally, here is a hyperlink to the Glen Doherty Memorial Foundation.  With the holiday season upon us, it is a good time for donating to the foundation.

Jones Act Claim Dismissed on Summary Judgment

Plaintiff worked as a relief captain for Defendant. He maintained that he was injured as a result of an accident aboard Defendant’s vessel, or that Defendant was negligent or provided an unseaworthy vessel. Defendants moved for summary judgment on the grounds that Plaintiff could not establish the necessary elements of his case.

Plaintiff alleged that he was injured while chipping with a needle gun at the instruction of the vessel’s captain. Upon learning that he could not have been injured on the date he alleged because he was not working aboard Defendant’s vessel on that date, he claimed new potential dates of injury. Still, the vessel logs did not show that Plaintiff did any chipping work. Additionally, although Plaintiff testified that the vessel’s captain ordered him to do the work and a tankerman saw him performing the work, the vessel’s captain said he did not order the work and would not have ordered the work for various reasons, and the tankerman said he never saw Plaintiff doing the work in question. No injury was ever reported by Plaintiff to Defendant until the instant suit, and no injury was reported to any medical provider.

In reviewing the facts in a light most favorable to the non-moving party, the Court found that Plaintiff did not create any genuine issues of material fact regarding his claims of negligence, unseaworthiness or maintenance and cure. Based upon Plaintiff’s inconsistent testimony regarding the date of the accident, the lack of corroboration by witnesses, and Plaintiff’s failure to report any injury, the Court held that Plaintiff could not prove that he had any accident or suffered any injury while working aboard Defendant’s vessel. The Court therefore granted Defendant’s Motion for Summary Judgment.

Glaze v. Higman Barge Lines, Inc., 2014 WL 5393355 (E.D. La. 2014).

Marine Safety Alerts

On October 9, 2014 the U.S. Coast Guard issued two Marine Safety Alerts that are of particular interest to barge fleeting, terminals and repair facilities situated on the navigable waters of our state. These Alerts do not break new ground, but are worthy of review.

Safety Alert 11-14 addresses barge fleet lighting. The Coast Guard reminds industry that in the last 12 years there have been at least 44 collisions by recreational vessels with moored barges that have resulted in 26 fatalities and 44 injuries in the Eight District, which includes the Mississippi River and its tributaries. Lighting of the moored barges was a factor in most of these casualties. The intent of the Alert is to not only to remind fleet and terminal operators of the importance and necessity of proper, sufficient lighting, but to remind boaters of the dangers present when operating near and around barge fleets.

Rule 30 of the Inland Rules of the Road, “Anchored Vessels and Vessels Aground”, was amended in July of this year to incorporate barge lighting requirements that were previously found in other regulations. Part (h) requires that barges projecting into a buoyed or restricted channel, any barge moored so that it reduces a navigable channel to less than 80 meters (263 ft.), barges moored in groups of two or more wide, and every barge not moored parallel to a dock or the bank must carry two unobstructed all around white lights of an intensity to be visible for at least one nautical mile. Part (j) requires that such lights be placed on the outboard corners or extremities of single and groups of barges so as to mark their perimeters.

That these requirements are clearly spelled out in the Rule has significance from a legal liability perspective. In the general maritime law, the alleged violator of a statutory rule intended to prevent marine casualties is presumed at fault and the burden is on the alleged violator to prove not only that its violation was not a contributing cause of the casualty, but that it could not have been a cause. This is a heavy burden to carry. Diligent adherence to these regulations is a must.

Safety Alert 10-14 speaks to preventing barge explosions. This alert was issued in response to recent casualties from explosions aboard barges in tank cleaning, stripping and gas-freeing operations. The Coast Guard’s review of such events has shown that their cause is typically not limited to one party, but by the combined lapses on the part of vessel personnel, facility personnel and shoreside managers.

Those in the industry are well aware that the Coast Guard requires each such facility to have in place Operations Manuals. 33 CFR §154.300, 310, et. seq., sets forth in detail the necessary contents of the Manual. The list is lengthy, but essentially must set out the business of the facility, types of vessels and cargo being worked and handled, operating procedures and emergency response protocols. Each facility must have a Manual approved by the Captain of the Port. Having found that the most common causal factor associated with tank barge explosions is the failure to follow key Operating Manual procedures, the Coast Guard expects strict compliance.

The Alert reminds operators to ensure that personnel are thoroughly trained and credentialed, proper ventilation be in effect, that the barge/vessel is properly grounded and that spark-producing equipment be removed, prohibit vessels operating nearby so as to avoid the introduction of a source of vapor ignition, and the barge/vessel be certified safe by a Certified Marine Chemist before any hot work is conducted or closed spaces entered.

Much of what is contained in these Alerts may be self-evident to those who are engaged daily in these practices. However, being familiar with a practice is no guarantee that the persons engaged will not start taking for granted that procedures are being followed. An isolated lapse can lead to serious injury and property damage. Thus, reminders such as these Alerts help to insure that all personnel remain vigilant.

These Marine Safety Alerts may be found by visiting the U.S. Coast Guard 8th District website, www.uscg.mil/d8/.

BRB Weighs Widow Status, Remands for Justifiable Cause and Conjugal Nexus Determination

Decedent worked as a crane operator for twenty years, including six years for Employer.  He retired in 2004 because of orthopedic problems.  In 2008, Decedent was diagnosed with lung cancer.  Following his death in 2009, which was caused by non-small cell lung carcinoma with contributing causes of chronic obstructive pulmonary disease, hypertension, and pulmonary embolus, Claimant filed a claim for death benefits.  The issue was whether Claimant qualified as a “widow” under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”).

Pursuant to Section 2(16) of the LHWCA a “widow” includes a decedent’s wife who was “living with or dependent for support upon [the decedent] at the time of [the decedent’s] death; or living apart for justifiable cause or by reason of [the decedent’s] desertion at such time.”

The administrative law judge (“ALJ”) determined that Claimant was not a “widow.”  According to the ALJ, Claimant and Decedent had legally separated; there was no evidence of reconciliation; and the conjugal nexus had severed when Decedent filed for divorce.

On appeal to the Benefits Review Board, Claimant argued that she was a “widow” because she was dependent upon Decedent for support or, alternatively, she was living apart from Decedent for justifiable cause.  Claimant alleged she was dependent because of her receipt of the community portion of Decedent’s retirement pension, and Decedent’s continued health insurance coverage for Claimant.  The problem, however, was that Claimant did not raise this argument in front of the ALJ.  Accordingly, Claimant was required to show that she lived apart from Decedent for “justifiable cause” and that a “conjugal nexus” remained between Decedent and Claimant at the time of Decedent’s death…five years after they began living separate and apart from one another.

The alleged “justifiable cause” for living separate and apart was that Decedent had abused Claimant and that Decedent consumed too much alcohol.  The ALJ did not make a “specific finding regarding any justifiable cause for the separation, and addressed only whether a conjugal nexus existed at the time of death.”  Because the justifiable cause analysis was incomplete, the BRB vacated the ALJ’s denial of benefits and remanded the case with specific instructions:

On remand, if the administrative law judge finds evidence that, at the time of decedent’s death, there no longer was justifiable cause for claimant and decedent to be living apart, see Henderson, 204 F.2d at 179, claimant cannot be decedent’s widow and benefits should be denied.  If, however, he finds that the original justification persisted to the date of death, then he must consider whether the conjugal nexus had been severed.

The BRB also had instructions for the ALJ with respect to the conjugal nexus inquiry:

On remand, the administrative law judge must assess the weight and credibility of this, and any other, relevant testimony and evidence, as well as resolve conflicts in the evidence, in order to determine if claimant’s conduct maintained or severed her conjugal nexus with decedent.  The administrative law judge should re-examine the case precedent in view of the proper focus on claimant’s actions in maintaining or severing the conjugal nexus.  If the administrative law judge finds that the conjugal nexus between claimant and decedent had been severed, claimant is not decedent’s “widow,” and she is not entitled to death benefits.  If the administrative law judge finds that a conjugal nexus between the two existed at the time of decedent’s death, then claimant is decedent’s “widow” under the Act.  He then must address whether decedent’s death was work-related such that claimant is entitled to death benefits.

Johnston v. Hayward Baker, BRB No. 14-0032 (2014).