Work on the water needs different paper.

Running a work boat or barge: the Jones Act line

Once your people work from a vessel, a second federal system can come into play. The longshore act excludes "a master or member of a crew of any vessel" (33 U.S.C. 902(3)(G)). Seamen look to the Jones Act instead: under 46 U.S.C. 30104, an injured seaman, or the personal representative of a seaman who dies from the injury, may bring a civil action against the employer with the right of trial by jury.

Who counts as a seaman comes from the Supreme Court. In Chandris, Inc. v. Latsis (1995), the Court set two requirements:

1. The worker's duties contribute to the function of the vessel or to the accomplishment of its mission.
2. The worker has a connection to a vessel in navigation, or to an identifiable group of such vessels, that is substantial in both duration and nature.

The Court gave a rule of thumb: a worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman. It called that figure no more than a guideline and said departures can be justified in appropriate cases. It also described the Jones Act and the longshore act as mutually exclusive compensation regimes, drawing a line between land-based and sea-based maritime workers.

For a dock builder with a crane barge and a skiff, a deckhand who works aboard the barge and a carpenter who steps onto it for a day may fall into different systems. Tell me who operates and rides your vessels, and how often. When I build the submission, I list crew separately from shore-side payroll and schedule the vessels apart from your land equipment.

Over-water job sites: safety gear and permits

On dock, pier and seawall files I ask for your safety program and your permits. Two sets of rules come up again and again.

OSHA's working-over-water rule

29 CFR 1926.106 applies where employees work over or near water and the danger of drowning exists. It calls for U.S. Coast Guard-approved life jackets or buoyant work vests, inspected before and after each use for defects that would alter their strength or buoyancy; defective units may not be used. Ring buoys with at least 90 feet of line must be readily available for rescue, no more than 200 feet apart. At least one lifesaving skiff must be immediately available where employees work over or adjacent to water.

Permits for docks, piers and fill

• Section 10 of the Rivers and Harbors Act of 1899: Army Corps of Engineers permits are required for structures or work in or affecting navigable waters of the United States, unless the activity is exempt or authorized by a general permit (33 CFR 320.2, 322.3).
• Section 404 of the Clean Water Act: Corps permits are required for discharges of dredged or fill material into waters of the United States. Placing pilings needs one when it has or would have the effect of a fill discharge (33 CFR 323.3).
• California: The Coastal Commission says development in the coastal zone generally may not start until a coastal development permit is issued, by the Commission or by a city or county with a certified Local Coastal Program. In the ports of Port Hueneme, Long Beach, Los Angeles and San Diego, the port governing bodies exercise similar permit authority. Outside California, coastal permit rules vary by state.

Permit conditions can bear on your pollution exposure and can be written into your contract, so send me the permit and the contract with your submission.