Context in the Act:
When used in this Act—
(1) The term “person” means individual, partnership, corporation, or association.
(2) The term “injury” means accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accidental injury, and includes an injury caused by the willful act of a third person directed against an employee because of his employment.
(3) The term “employee” means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker, but such term does not include —
(A) individuals employed exclusively to perform office clerical, secretarial, security, or data processing work;
(B) individuals employed by a club, camp, recreational operation, restaurant, museum, or retail outlet;
(C) individuals employed by a marina and who are not engaged in construction, replacement, or expansion of such marina (except for routine maintenance);
(D) individuals who (i) are employed by suppliers, transporters, or vendors, (ii) are temporarily doing business on the premises of an employer described in paragraph (4), and (iii) are not engaged in work normally performed by employees of that employer under this Act;
(E) aquaculture workers;
(F) 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;
(G) a master or member of a crew of any vessel; or
(H) any person engaged by a master to load or unload or repair any small vessel under eighteen tons net;
DOL 2002 Judge’s Benchbook
1.11.11 Aquaculture workers
The 1984 Amendments to the LHWCA specifically exclude from coverage anyone who is employed as an “aquaculture worker” as long as that person is “subject to coverage under a State workers’ compensation law.” 33 U.S.C. � 902(3)(E). Aquaculture workers are defined as those employed by commercial enterprises involved in the controlled cultivation and harvest of aquatic plants and animals, including the cleaning, processing, or canning of fish and fish products, the cultivation and harvesting of shellfish, and the controlled growing and harvesting of other aquatic species. 20 C.F.R. § 701.301(a)(12)(iii)(E).
The legislative history indicates that
[t]he conferees understand that, to date, the definition of maritime employment has never been interpreted to mean the cleaning, processing or canning of fish and fish products. But to foreclose any future problem of interpretation, the term “aquaculture operations” should be understood as including such activities.
H.R. Conf. Rep. 98-1027, 98th Cong., 2d 23 (1984).
A fish spotter is not an aquaculture worker. Zapata-Haynie Corp. v. Barnard, 933 F.2d 256 (4th Cir. 1991), aff’g 23 BRBS 267 (1990). This occupation does not involve the controlled cultivation and harvesting of animals. Also, the claimant in that case was not involved in the processing of the caught fish. See also, Ward v. Director, OWCP, 684 F.2d 1114 (5th Cir. 1982), cert. denied sub nom Zapata-Haynie Corp. v. Ward, 459 U.S. 1170 (1983)(Fish spotter pilot is covered under the LHWCA.).
See�Hutchinson v. Mavar Shrimp & Oyster Co., 14 BRBS 48 (ALJ) (1982) (laborer in a canning facility who handles and moves roller baskets containing canned pet food to a cooker is clearly involved in the processing and canning operation, and his duties bear no significant relationship to maritime activity.).
See�also Loggins v. Newport Shrimp Co., 20 BRBS 814 (ALJ) (1988) (utility worker who was assisting in the unloading of squid from a boat was engaged exclusively in the business of cleaning, processing and canning fish, and is thus an excluded aquaculture worker). See also Green v. C.J. Langenfelder and Son, Inc., 30 BRBS 77 (1996)(on remand the Board instructed the ALJ to consider aquaculture issue if by using the Board’s guidelines, ALJ concluded that “seaman” exclusion did not apply to employee attempting to fix conveyor belt onboard oyster harvester dredge).
But see Ljubic v. United Food Processors, 30 BRBS 143 (1996) (maintenance supervisor who maintained/repaired equipment on the dock of a cannery was not excluded from coverage as a aquaculture worker, because his work constituted “traditional maritime employment” and workers engaged in both maritime and non-maritime employment “cannot walk in and out of coverage”).
[ED. NOTE: Remember: A worker engaged in longshoring activity during at least a portion of his working day is covered under the LHWCA since to exclude him would be to reinstate the same degree of shifting and fortuitous coverage that Congress intended to eliminate. Brady-Hamilton Co. v. Herron, 568 F.2d 137, 140 (9th Cir. 1978).]
