Q: What is USL&H?
USL&H refers to the United States Longshore and Harborworkers' Compensation Act. This is a federal workers' compensation law enacted to provide benefits for employees in the event of their injury or death when working on or near navigable waters of the U.S. and engaged in maritime employment. The Act excludes certain employment, such as masters and crew members of vessels.
Q: Does my Washington state L&I coverage include USL&H insurance?
No. Workers' compensation coverage provided by the Washington State Department of Labor & Industries (L&I) does not provide coverage for the USL&H Act. Similarly, a policy providing USL&H coverage does not provide Washington state workers' compensation benefits.
Q: Where can I find information about state workers' compensation coverage for Washington?
Information about state workers' compensation coverage can be found on the Washington State Department of Labor & Industries (L&I) website. The Washington USL&H Assigned Risk Plan does not provide any state coverage. See the Washington Department of Labor and Industries website for information for state coverage.
Q: Who needs USL&H coverage?
Here are some sources of information to help determine your coverage needs, but you may need to consult your own maritime attorney to help evaluate your situation:
Q: How do I apply for coverage?
Applications and additional details on applying for coverage are available on this website under the "Apply" tab. All applications must be submitted directly to Alaska National Insurance Company, the designated servicing carrier. Applications are only accepted from insurance producers who are licensed by the state of Washington and who are acting as a broker for the employer. Licensed producers who do not meet broker bond requirements should contact Alaska National Insurance Company for information on accessing the Washington USL&H Assigned Risk Plan.
Q: Is the Washington USL&H Assigned Risk Plan (WARP) the only option for USL&H coverage in Washington?
No. In fact, applicants to the assigned risk plan are only eligible for coverage if they are unable to secure USL&H coverage through the private insurance market. We recommend employers contact their own insurance broker to determine what insurance companies might be able to provide USL&H coverage. A complete list of insurance companies authorized to provide USL&H coverage can be found on the U.S. Department of Labor website: Authorized Carriers
Q: Is Maritime Employers' Liability (MEL) available through the assigned risk plan?
Coverage may be available for employers who have incidental MEL exposure. Check here for more information: M.E.L. coverage under the Washington USL&H Assigned Risk Plan
Q: Is work on recreational vessels subject to the USL&H Act?
It depends. The USL&H Act § 902 excludes "individuals employed to build any recreational vessel under sixty-five feet in length, or individuals employed to repair any recreational vessel, or to dismantle any part of a recreational vessel in connection with the repair of such vessel..." However, the USL&H Act includes individuals building recreational vessels 65' or longer or dismantling a recreational vessel when it is not in connection with the repair of that vessel.
Work, such as repair or installation of equipment, on recreational vessels may be subject to the USL&H Act if the vessel is chartered with a skipper or crew on "more than an infrequent basis" or chartered as a bareboat with more than 12 passengers. Additionally, workers who perform work on both recreational vessels under 65’ and commercial vessels may be subject to the USL&H Act, even for those periods of time when they are working on recreational vessels under 65’.
Regulations that define "recreational vessel" can be found by referencing § 701.501 "Definitions and Use of Terms" for the USL&H Act as published by the Office of Workers' Compensation Programs, Department of Labor.
Q: Is USL&H coverage available through WARP for employees while working in foreign ports?
No. The Ninth Circuit Court of Appeals ruled that, although the USL&H Act applies on the high seas subject to certain conditions, the Act does not apply to U.S. workers while working in the territorial waters of other countries. Therefore, USL&H coverage is not available through WARP for work in foreign ports. A copy of the Ninth Circuit decision (Keller v. Tracy) can be downloaded here: USL&H Act Does Not Extend To Foreign Ports.
Q: How much does it cost for USL&H insurance coverage?
The cost is based on the nature of an employer's business operations. Premium charges are primarily based on payroll and rates per $100 of payroll as shown in the rate pages (see "Rates & Class Codes" tab on this website). An estimate of the cost can only be determined by submitting an application to Alaska National Insurance Company where an employer's operations, insurance coverage options, claim history and eligibility are reviewed by an underwriter who can then provide an estimated premium. Additional cost information can be found in the "Miscellaneous Values" and detailed "Premium and Payroll Rules" which can be downloaded here "Premium and Payroll Rules" or by using the link located on the "Apply" tab on this website.
Q: Where can I find a copy of the USL&H Act?
The U.S. Department of Labor provides this information on their website: U.S. Department of Labor, USL&H Act
Q: What are the penalties for an employer who fails to secure authorized coverage for the USL&H Act?
The requirement for employers to secure coverage is in §932 of the USL&H Act and the penalties for non-compliance are found in §938 of the USL&H Act. If the employer is not insured, an injured employee may elect, pursuant to §905 of the USL&H Act to either claim compensation under the Act or sue for damages for his/her injury under general tort law. In addition, corporate officers may be held personally liable for payment of compensation and subject to fine or imprisonment for failure to secure coverage. An example of multi-million dollar liability for a vessel owner failing to secure USL&H coverage can be found in McLay v. M/V Sahara, which can be downloaded here: Repercussions for Failing to Secure Authorized USL&H Act Coverage.
Q: Where can I find a list of navigable waters?
The USL&H Act states that the Act applies to disability or death resulting from an injury occurring upon the navigable waters of the United States, but there is no determinative list of navigable waters covered under the USL&H Act. Often the U.S. Coast Guard list of “navigability determinations” is used as a guide, but navigability determinations made by the Coast Guard are only for the purpose of exercising Coast Guard authority and jurisdiction. They should not be construed as determinative of jurisdiction for USL&H purposes.
There is a plethora of court decisions that discuss whether an injury occurred on navigable waters as contemplated by the Act. Courts have held that bodies of water much smaller than lakes and rivers may constitute navigable waters; even shallow streams that are traversable only by canoe have met the test. An insurance broker, along with legal counsel, can provide advice to an employer as to whether the Act applies to the employer's business activities.
Q: Are wavier of subrogation and/or alternate employer endorsements available through the Washington USL&H Assigned Risk Plan?
A waiver of subrogation endorsement and an alternate employer endorsement are required for Human Resource companies. Subject to certain underwriting restrictions these endorsements are available as an option for other employers. Additional information on endorsements is provided in this download: "Endorsements".
Q: What are some of the distinctions between contractors and subcontractors for purposes of the USL&H Act?
Under§904(a) of the USL&H Act, a contractor might be held liable for a subcontractor’s employees if the subcontractor fails to secure the required USL&H coverage. As such it is important to determine when a subcontractor relationship exists when determining liability under the USL&H Act.
For the contractor’s statutory-employer protections of Section 904(a) of the USL&H Act to apply to a subcontractor, there must be (1) a third party, (2) a contractor, and (3) a subcontractor status with a “two contract” relationship. This is where a contractor passes along part of its own contractual obligation to a subcontractor. In other words, the contractor is one who has a contractual obligation to a third party, a portion of which he subcontracts to another, his subcontractor. In this circumstance, the USL&H insurance purchased by the contractor might protect the subcontractor.
For example: A vessel owner contracts with a shipyard for maintenance and repair of the vessel. The shipyard performs most of the work but hires an independent contractor to perform electrical work on the vessel. If an employee of the electrical contractor is injured, the shipyard’s USL&H insurer might pay benefits on behalf of the electrical contractor if the contractor did not purchase its own USL&H insurance.
The above example should not be construed to apply to all situations. There are many factors that a court or the Benefits Review Board would consider in determining whether a contractor’s USL&H insurance coverage would protect a subcontractor.
A Benefits Review Board Decision further describes some of the distinctions between contractors and subcontractors and can be downloaded here: Boyd v. Newport News.
You should consult with a knowledgeable marine insurance broker or maritime attorney to determine the USL&H insurance needs for contractors and subcontractors.
Q: What is the “vendor” exclusion stated in Subsection 902(3)(D) of the USL&H Act?
Subsection 902(3)(D) of the USL&H Act states that a vendor’s employee is not subject to the USL&H Act if the employee is (i) is temporarily performing services on the premises of a maritime business; (ii) is not engaged in work normally performed by employees of that maritime business; and (iii) is covered by a state’s workers’ compensation program.
The Congressional Record developed during the adoption by Congress of the supplier, transporter, and vendor exclusions to the USL&H Act emphasizes that these exclusions are to be narrowly construed.
Regardless of the language of this Subsection applying to services, courts and administrative agencies have inconsistently interpreted the exclusion to the sale of products as well as services. Because of these rulings, there is no situation where the vendor exclusion would be applied with certainty.
The Benefits Review Board in Daul v. Petroleum Communications, Inc., C.A.5 1999, 196 F.3d 611; BRB No. 97-1055, stated that the vendor exclusion applies to an employer and its employee whose primary purpose is to sell a product. The BRB stated that if the primary purpose of the employer is to sell a service, the vendor exclusion would not apply. (This is inconsistent with the wording of the USL&H Act vendor exclusion.)
The US Department of Labor Longshore Deskbook describes:
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