He does not eat or sleep on the barges. While falling into one of the enumerated employment categories of the LHWCA (See 33 USC 902(3)), does not automatically preclude Weaver from qualifying as a Jones Act seaman, the actual nature of his work does. As noted by the Supreme Court in Southwest Marine v. Gizoni, coverage under the LHWCA or the Jones Act depends on the nature of the employee’s work rather than job title.

Specifically, Section 902(2) of the LHWCA defines an injury as an “accidental injury or death arising out of and in the course of employment, . . . and includes such injury caused by the willful act of a third person directed against an employee because of his employment.” LHWCA, 33 U.S.C. § 902(2). A “person” is defined as an “ individual, partnership, corporation, or association.”

Case: 3:16-cv-00343-wmc Document #: 13 Filed: 07/25/16 Page 6 of 30 7 The term “employer” is identified as: an employer any of whose employees are employed in maritime employment, in whole or in part, 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, or building a vessel). 33 U.S.C. § 902(4). C. The LHWCA Borrowed Employee Doctrine.

For purposes of the statute, § 905(b) liability may only be imposed on the “owner, owner pro hac vice, agent, operator, charter or bare boat charterer, master, officer, or crew member.” See 33 U.S.C. § 902(21). Plaintiff’s claim against TOTE fails.

Like Wisconsin and California, the federal Longshore Act defines a covered “injury” as one “arising out of” and occurring “in the course of” employment. See 33 U.S.C. § 902(2); see also 33 U.S.C. § 905(a) (exclusivity provision). The substantive provisions of this act are substantially similar to Wisconsin’s WCA.

At the time Baker was brought, such negligence actions in tandem with LHWCA actions were not allowed by statue. This was therefore a good reason to not allow an amendment and grounds for futility of amendment, because the exclusive remedy at that 2 See 33 U.S.C. § 902- 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. Case 3:07-cv-04755-JSW Document 85 Filed 05/16/2008 Page 12 of 15 REPLY TO PLANTAGENET DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR AN ORDER GRANTING LEAVE TO FILE A SECOND AMENDED COMPLAINT -13- Case No.