JUDGE RULES THAT EMPLOYEE OF YACHT COMPANY FALLS IN THE JURISDICTION OF THE LONGSHORE ACT

LUIS E. DEJESUS V. VIKING YACHT COMPANY, INC
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Excerpts

Employer’s position

in this case is simply explained. Mr. DeJesus was performing repair work on a vessel that was built by the parent company as a recreational vessel when he suffered the injury involved in this case on February 2, 2010. It argues that the Act was amended on February 9, 2009 by the American Recovery and Reinvestment Act of 2009 (ARRA) and the amendment eliminated coverage from the Act for employees that repair “recreational vessels.”

33 U.S.C. § 902(3)(F)(2099). Since the injury occurred after the effective date of this statutory

amendment, employer maintained,“the claim falls under Florida State workers’ compensation and not under the Longshore and Harbor Workers’ Compensation Act.”

Employer also argues that its facilities were used exclusively for repair and warrantee work on Viking build boats which were used for recreational or pleasurable activities. Claimant obviously believes the jurisdictional question involved in this case is not so easy to resolve. It is his position that he performed repair on boats covered by the Act and noncovered recreational boats while working for the employer. He therefore contends that all of his repair work for the employer is covered by the Act. He initially notes that it is important to understand that the employer operates marine repair facilities and is a separate subsidiary of a company that is a shipbuilder of recreational vessels, emphasizing that the employer is not a shipbuilder. He argues that since the employer used the Viking built boats at its facilities for promotional and commercial purposes, the vessels were no longer recreational vessels and the employer “lost its qualifying exclusion under” the statutory amendment and the newly promulgated regulations pertinent to the amendment. 33 U.S.C § 902(3)(F)(2009); 20 C.F.R. §§701.501 and 701.502.

Conclusion

The employer also argued that its facilities were used exclusively for repair and warrantee work on Viking build boats which were used for recreational or pleasurable activities. The evidentiary record does not support this position. The facilities also were open to the public

and the employer simply did not know how or for what purpose all of the owners used the

vessels that were being repaired there. Employer also acknowledged that its employees

performed repair or service work on the boats owned by its parent company and some of the

local Viking dealers that were used for seas trials for potential customers and boat show

purposes. The evidence establishes that not all of the vessels on which the claimant and

similarly situated employees perform repair were used exclusively for recreational purposes.

Had the employer maintained its facilities exclusively for service or repair of recreational

vessels, its employees would have been excluded from the Act. However, it chose to commingle

the recreational boats with vessels used for non-recreational purposes thereby affording its repair workers continuing coverage under the Act. Thus, I find

the claimant’s job related injury on February 2, 2010 falls within coverage of the Act

rather than Florida workers’ compensation