In 2001, Claimant William Kealoha was injured while working as a ship laborer.  Kealoha fell 25 to 50 feet off a barge onto a steel floor.  He sustained numerous injuries, including blunt trauma to the head, chest, and abdomen and sustained numerous broken bones.  In 2003, Kealoha attempted suicide by shooting himself in the head.  Kealoha subsequently sought compensation under the Longshore & Harbor Workers’ Compensation Act for his head injuries resulting from his self-inflicted gunshot wound.


The presiding administrative law judge initially denied benefits on the grounds that Kealoha’s suicide attempt was not the “natural and unavoidable” result of his fall and other, more significant factors led to his suicide attempt.  Alternatively, the ALJ found that Claimant’s suicide attempt precluded recovery for compensation under Section 3(c) because Claimant’s injury was caused by his willful intention to injure or kill himself.    On appeal to the Benefits Review Board, the BRB reversed the ALJ, holding that application of the “natural and unavoidable” standard was improper.  Further, the BRB indicated that the ALJ failed to address whether Kealoha’s illness was so severe that he lacked capacity to form willful intent and failed to address whether the stress caused by Kealoha’s upcoming deposition as to his underlying accident contributed to his stress.


The BRB instead held that the “irresistible impulse” standard was applicable.  Under this standard, an employee’s injury is compensable when the employee takes his life through an “uncontrollable impulse or in a delurk or frenzy without conscious volition to produce death.”  On remand, the ALJ found that Claimant planned his suicide and that his suicide attempt was intentional and not the result of an irresistible impulse.


The Ninth Circuit reversed, holding that “a suicide or injuries from a suicide attempt are compensable under the Longshore Act when there is a direct and unbroken chain of causation between a compensable, work-related injury and the suicide attempt.”  The Ninth Circuit further held that a claimant need not demonstrate an irresistible impulse and noted that this standard better reflected the Longshore Act’s focus on causation and not on fault.  The matter was remanded to the BRB or the OALJ for further application under this standard.


Kealoha v. Director, OWCP and Leeward Marine

President Trump Waives Jones Act in Response to Relief Efforts in Puerto Rico

The Merchant Marine Act of 1920, more commonly known as the Jones Act, was passed to promote and maintain the American merchant marine by, in part, regulating maritime commerce in U.S. territorial waters and between U.S. ports.  For nearly 100 years, the Jones Act has required that U.S. flag ships, constructed in the U.S., owned by U.S. citizens, and crewed by U.S. citizens or permanent residents be used to transport all goods over water between U.S. ports.  The Act also provides seaman the right to recover for personal injuries sustained in the service of his vessel.


Waivers to the Jones Act’s restriction limiting the transportation of good between U.S. ports to U.S. built, owned, and operated vessels can be granted when in the interest of the national defense.  Typically, these waivers have been allowed during times of national emergency.  Such a waiver was granted following Hurricane Katrina in 2005 to foreign vessels carrying oil and natural gas.  Recently, a similar waiver was granted for the Southeastern states following Hurricanes Harvey and Irma.


On September 28, 2017, President Trump authorized a waiver for all products bound to ports in Puerto Rico to aid in the worsening crisis on the Island following the destruction caused by Hurricane Maria.

New Version of Nautical Rules of the Road Published

The United States Coast Guard has published a new amalgamated version of the nautical Rules of the Road to improve the readability and understanding of the navigation rules (commonly called “Rules of the Road”). The version combines the Rules of the Road and associated regulations. This edition shows the rules in a one-page format—as opposed to the previous two page, side-by-side. Rule differences are shown in either a two-column table or in bracketed text. Italics text is used to differentiate the Inland Rules from the International Rules. This new edition is available online.


Claimant, a citizen of the Marshall Islands, was employed as a civilian defense contractor based in the Kwajalein Atoll, which houses the U.S. Army Space and Missile Defense Command’s Ronald Reagan Ballistic Missile Defense Site.  Claimant was hired as a painter and was given a four-day overnight assignment to paint and repair the Gagan Island pier.  While on Gagan Island, Claimant and co-workers resided in Employer’s trailer, which had limited space and food.  Claimant, as was culturally customary for Marshallese, engaged in reef fishing after hours to catch and eat the fish within the local body of water.  The DBA employer had a policy of prohibiting reef fishing during work hours.  While reef fishing on Gagan Island after hours, Claimant slipped and fell, cutting his right foot.  This injury became infected and ultimately resulted in the amputation of Claimant’s right leg below his knee.


Claimant sought benefits pursuant to the Defense Base Act as an extension of the Longshore & Harbor Workers’ Compensation Act.  The Employer denied benefits asserting that the zone of special danger did not apply to local nationals, but only to foreign nationals.  The ALJ and BRB disagreed with Employer and awarded benefits.  On appeal, the Ninth Circuit affirmed the award of benefits.


The Ninth Circuit held that the plain language of the DBA does not distinguish between employees sent abroad from their home country and local nationals.  Further, the court held that Congress implicitly endorsed applications of the zone of special danger to local nationals, citing to O’Leary, the United States Supreme Court case that first articulated the zone of special danger in 1951.  Further O’Leary and its progeny did not distinguish between employees sent abroad and local nationals, as Claimants’ domiciles are never broached in those cases.  The Ninth Circuit, however, did note in dicta that if Claimant were injured at home in his living room instead of injured during a four-day overnight work assignment on an uninhabited island with restricted access, then the zone of special danger would not likely apply.


Chugach Management Services v. Jetnil & Director, OWCP