Our insured provides Surf Instruction. One of their employees was injured while holding 2 surfboards. One under each arm along shoreline. IW braced himself for the impact of strong wave, resulting in him dislocating shoulder. The WC Carrier is denying coverage stating WC does not apply to surf instructors and the Jones Act applies. In reviewing the Jones Act, that seems to be related to employees working on sea vessels and not merely a surf instructor. Question: 1. Would WC apply to this injured surf instructor? 2. If WC does not apply, do you know of endorsements or other type of policies that may apply for an injured surf instructor while injured on the job?
I tried uploading the WC policy but the file is too large. I am attaching a portion of the policy.
Thank you for your assistance.
Hawaii Subscriber
In maritime employment subject to the Jones Act, 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…(B) individuals employed by a club, camp, recreational operation, restaurant, museum, or retail outlet; … (33 USCS §902).
The act specifies that "employee" does not include individuals employed by a club, camp, recreational operation, restaurant, museum, or retail outlet; this would be our surf instructor. The fact that the instructor works for a recreational operation removes him from coverage under LHWCA. Also, coverage applies "only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel)" which again does not apply to our surf instructor.
Under HRS §386-7, the workers' comp laws apply "to employees and employers engaged in interstate and foreign commerce and to employees in maritime employment and their employers not otherwise provided for by the laws of the United States."
A surfboard, defined in Merriam-Webster as "a long narrow buoyant board (as of lightweight wood or fiberglass-covered foam) used in the sport of surfing," is equipment. It is not used, or indeed capable of being used, as a method of water transport. Surfboards are insured under business or personal property policies and do not require watercraft coverage.
Since the Jones Act does not apply to the injured surf instructor, the Hawaii Revised Statutes concerning Workers' Compensation would apply. There is no exclusion in the workers compensation policy that applies to the surf instructor.
You might also find the following article concerning the LHWCA and the Jones Act helpful: Longshore and Harbor Workers Compensation Act and the Jones Act.