Photographer Aboard Ship is Not a Maritime Employee

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SandBar 6:3, October, 2007 Photographer Aboard Ship is Not a Maritime Employee Peru v. Sharpshooter Spectrum Venture LLC, 2007 U.S. App. LEXIS 15238 (9th Cir. June 27, 2007). Terra Bowling, J.D. The United States Court of Appeals has ruled that a photographer injured while working aboard the USS Missouri, a World War II battleship moored at Pearl Harbor, may be excluded from receiving compensation under the Longshore and Harbor Workers’ Compen sation Act (LHWCA). Background The USS Missouri is open to the public. A photography company, Sharpshooter Spectrum Venture (Sharpshooter), specializes in taking pictures of visitors aboard the ship and then offering the photos for sale on a nearby pier. Cheryl Peru, a photographer and assistant manager for Sharpshooter, was working aboard the ship when she hit her head while ascending a ladder. She sustained head and neck injures that prevented her from continuing in her job. Peru applied for workers compensation benefits from Sharpshooter’s insurance, but was denied by its claims adjuster. Peru then filed a claim under the LHWCA with the Department of Labor’s Office of Workers’ Compensation Programs. An administrative law judge denied her claim, citing a section of the LHWCA that excludes employees of a “museum.” The judge noted that Peru would also fall within the LHWCA’s exclusion of employees of “retail outlets.”1 Peru appealed to the Benefits Review Board (BRB), which agreed that Peru was excluded from LHWCA coverage as an employee of a retail outlet, since the company sold the photographs on the pier and Peru participated in the sales of the photographs. Peru appealed the case to the Ninth Circuit, claiming that she was entitled to benefits under the LHWCA. The Ninth Circuit recognized that the LHWCA covers certain land-based maritime employees and employees that are not eligible under LHWCA are generally covered by state workers’ compensation laws. According to the court, a worker applying for benefits under the LHWCA must establish both a “status” and a “situs” requirement. The “situs” requirement means that the worker must be on navigable waters or certain adjoining land areas. Peru met that requirement by being aboard the Missouri. The “status” requirement means that the employee must qualify as a certain type of employee to be covered by the Act. Some employees are specifically excluded. Sharpshooter argued that Peru fell under the exclusion of “individuals employed by a club, camp, recreational operation, restaurant, museum, or retail outlet.”2 To determine whether Peru fell under the exclusion, the Ninth Circuit examined the definition of “retail outlet” for purposes of the LHWCA. After looking at the plain language of the statute, the court decided that a reasonable definition for “retail outlet” would be “any place where items are sold directly to consumers.”3 The court reasoned that this definition was consistent with the legislative history and policy of the LHWCA. To determine whether Peru was an employee of a retail outlet, the court ascertained that it had to examine not only the identity of the employer, but also the employee’s specific work environment and duties. Although the court agreed with the ALJ and the BRB that Peru falls within the retail outlet exclusion, a more extensive analysis was necessary because Peru’s work duties and Sharpshooter’s operations were not purely retail in nature. For instance, although Sharpshooter does sell photographs from a pier, it also shoots and processes photographs. Additionally, Peru’s position of assistant manager meant that she had duties outside of selling pictures, such as shooting photographs and processing film. Although Peru did perform those duties, the court ultimately found that she was excluded under the LHWCA, because “neither SSV, as an employing entity, nor any of its employees, appear to engage in core traditional maritime activities.”4 Conclusion Although the Ninth Circuit found that Peru fell within the “retail outlet” exclusion, the court noted that she was not entirely excluded from collecting under the LHWCA. The LHWCA provides that the exclusion applies only if employees “are subject to coverage under a State workers’ compensation law.”5 The court remanded the case to the BRB to determine whether Peru would be covered by state workers’ compensation. If the BRB determines that she is ineligible for those benefits, Peru will be eligible for benefits under the LHWCA. Endnotes 1. 33 U.S.C. A7 902(3)(B). 2. Id. 3. Peru v. Sharpshooter Spectrum Venture LLC, 2007 U.S. App. LEXIS 15238 12 (9th Cir. 2007). 4. Id. at 20. 5. 33 U.S.C. A7 902(3).
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SandBar 6:3, October, 2007

Photographer Aboard Ship is Not a Maritime Employee
Peru v. Sharpshooter Spectrum Venture LLC, 2007 U.S. App. LEXIS 15238 (9th Cir. June 27, 2007).

Terra Bowling, J.D.

The United States Court of Appeals has ruled that a photographer injured while working aboard the USS Missouri, a World War II battleship moored at Pearl Harbor, may be excluded from receiving compensation under the Longshore and Harbor Workers’ Compen sation Act (LHWCA).

Background
The USS Missouri is open to the public. A photography company, Sharpshooter Spectrum Venture (Sharpshooter), specializes in taking pictures of visitors aboard the ship and then offering the photos for sale on a nearby pier. Cheryl Peru, a photographer and assistant manager for Sharpshooter, was working aboard the ship when she hit her head while ascending a ladder. She sustained head and neck injures that prevented her from continuing in her job.
      Peru applied for workers compensation benefits from Sharpshooter’s insurance, but was denied by its claims adjuster. Peru then filed a claim under the LHWCA with the Department of Labor’s Office of Workers’ Compensation Programs. An administrative law judge denied her claim, citing a section of the LHWCA that excludes employees of a “museum.” The judge noted that Peru would also fall within the LHWCA’s exclusion of employees of “retail outlets.”1 Peru appealed to the Benefits Review Board (BRB), which agreed that Peru was excluded from LHWCA coverage as an employee of a retail outlet, since the company sold the photographs on the pier and Peru participated in the sales of the photographs.
      Peru appealed the case to the Ninth Circuit, claiming that she was entitled to benefits under the LHWCA. The Ninth Circuit recognized that the LHWCA covers certain land-based maritime employees and employees that are not eligible under LHWCA are generally covered by state workers’ compensation laws. According to the court, a worker applying for benefits under the LHWCA must establish both a “status” and a “situs” requirement. The “situs” requirement means that the worker must be on navigable waters or certain adjoining land areas. Peru met that requirement by being aboard the Missouri. The “status” requirement means that the employee must qualify as a certain type of employee to be covered by the Act. Some employees are specifically excluded.
      Sharpshooter argued that Peru fell under the exclusion of “individuals employed by a club, camp, recreational operation, restaurant, museum, or retail outlet.”2 To determine whether Peru fell under the exclusion, the Ninth Circuit examined the definition of “retail outlet” for purposes of the LHWCA. After looking at the plain language of the statute, the court decided that a reasonable definition for “retail outlet” would be “any place where items are sold directly to consumers.”3 The court reasoned that this definition was consistent with the legislative history and policy of the LHWCA.
      To determine whether Peru was an employee of a retail outlet, the court ascertained that it had to examine not only the identity of the employer, but also the employee’s specific work environment and duties. Although the court agreed with the ALJ and the BRB that Peru falls within the retail outlet exclusion, a more extensive analysis was necessary because Peru’s work duties and Sharpshooter’s operations were not purely retail in nature. For instance, although Sharpshooter does sell photographs from a pier, it also shoots and processes photographs. Additionally, Peru’s position of assistant manager meant that she had duties outside of selling pictures, such as shooting photographs and processing film. Although Peru did perform those duties, the court ultimately found that she was excluded under the LHWCA, because “neither SSV, as an employing entity, nor any of its employees, appear to engage in core traditional maritime activities.”4

Conclusion
Although the Ninth Circuit found that Peru fell within the “retail outlet” exclusion, the court noted that she was not entirely excluded from collecting under the LHWCA. The LHWCA provides that the exclusion applies only if employees “are subject to coverage under a State workers’ compensation law.”5 The court remanded the case to the BRB to determine whether Peru would be covered by state workers’ compensation. If the BRB determines that she is ineligible for those benefits, Peru will be eligible for benefits under the LHWCA.

Endnotes
1.   33 U.S.C. A7 902(3)(B).
2.   Id.
3.   Peru v. Sharpshooter Spectrum Venture LLC, 2007 U.S. App. LEXIS 15238 *12 (9th Cir. 2007).
4.   Id. at *20.
5.   33 U.S.C. A7 902(3).