New LHWCA Compensation Rates Announced

The Bureau of Labor Statistics has determined the national average weekly wage to be $718.24, a 2.17% increase over the current NAWW of $703.00. Therefore, effective October 1, 2016, the new minimum compensation rate under the LHWCA will be $359.12, up from the current $351.50, and the maximum compensation rate will be $1,436.48, up from the current $1,406.00.

Veteran District Director Announces Retirement

Richard V. Robilotti, District Director for the Second Compensation District, announced his retirement from the United States Department of Labor effective October 31, 2016. Mr. Robilotti, who began his career with the Department of Labor on January 15, 1973, has been a unquestioned force in the administration of the LHWCA and the DBA for the past 43 years. It is a well-earned retirement, but both his knowledge and probing voice will be missed by many who work with the Department. We wish him the very best in his retirement.

Fifth Circuit: Maritime Carpenter Not Covered by LHWCA

The Fifth Circuit recently issued a new decision addressing the limits of jurisdiction under the Longshore and Harbor Workers’ Compensation Act.  The claimant, a maritime carpenter, was allegedly injured at the employer’s waterside fabrication yard in Houma, La.  At the time of the incident, the claimant was assisting in the construction of a housing module that was to be incorporated into a tension leg offshore oil platform in the Gulf of Mexico.  The claimant filed a claim under the LHWCA, alleging he was covered by the Act as a shipbuilder, or in the alternative that he was covered by its extension under the Outer Continental Shelf Lands Act.


Following a formal hearing, the Administrative Law Judge determined that the claimant was not covered by the Act and denied benefits.  The Claimant appealed to the Benefits Review Board, which affirmed the ALJ’s decision.  The Claimant appealed again to the U.S. Fifth Circuit Court of Appeals.


The Fifth Circuit evaluated the purpose of the housing module as an eventual component part of the platform.  The Court turned to the Supreme Court’s Lozman and Dutra decisions to determine what constitutes a “vessel”.  Because the platform was not practically intended for maritime transportation, it did not qualify as a vessel.  Further, because the housing module was not a vessel, the claimant was not engaged in maritime employment as a shipbuilder at the time of the incident and therefore did not meet the “status” requirement of the LHWCA.  The Court then turned to the Supreme Court’s recent decision in Pacific Operators Offshore v. Valladolid to determine whether he was covered under OCSLA.  In Valladolid, the Supreme Court held that for a claimant to be covered under OCSLA, he must establish a “substantial nexus” between the injury and extractive operations on the OCS.  The Fifth Circuit concluded that the claimant’s onshore job of building a dining quarters for an offshore platform was too attenuated from OCS operations and therefore he was not covered by the OCSLA.  The Court affirmed the denial of benefits.


Baker v. Gulf Island Marine Fabricators, LLC

Eleventh Circuit Considers Challenge to Admiralty Jurisdiction in Florida Drainage Canal Injury

On August 3, 2016, the United States Eleventh Circuit Court of Appeals issued its decision in Tundidor v. Miami-Dade County, a case highlighting an interesting limitation on the federal district courts’ original admiralty jurisdiction.  The plaintiff, Tundidor, sued Miami-Dade County after striking his head on a low hanging water line while on a pleasure boat traveling on a drainage canal.  Tundidor brought his claim in admiralty and the County moved to dismiss for lack of jurisdiction.


Noting that federal courts have original jurisdiction over admiralty and maritime tort cases that have a nexus to traditional maritime activity and that occur on navigable waters, the court explained that navigable waters are those capable of use in commerce.  The court further explained that “navigable waters of the United States” as opposed to “navigable waters of the States” is an important distinction to make as the test for navigability for admiralty jurisdiction purposes requires both navigability in fact and an interstate nexus.  See 1 Thomas J. Schoenbaum, Admiralty and Maritime Law § 3-3 (5th ed. 2015).


Agreeing with the other federal appellate courts that have considered the question, the Eleventh Circuit determined that when artificial obstructions block interstate commercial travel, admiralty jurisdiction will not lie.  Here, due to artificial obstructions, the drainage canal could not be navigated outside of the State of Florida.


The Eleventh Circuit concluded that there was no admiralty jurisdiction over the suit and affirmed the decision of the district court.


Tundidor v. Miami-Dade Cty.