Longshoremen / 3rd Party Claims
The Longshore & Harbor Workers' Compensation Act (LHWCA) provides for the payment of compensation benefits for disability or death of an employee coming under it, if the disability or death results from an injury occurring upon the navigable waters of the United States. An 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 is included in the "navigable waters" category. Thus, maritime workers whose cargo activities in connection with the vessel carry them to dockside at the time of injury are covered under the 1972 amendments to the Act. Exceptions to coverage are:
- A master or member of a crew of any vessel (this eliminates all seamen or members of the ship's company who have their Jones Act remedy for recovery)
- Any person engaged by the master to load or unload or repair any small vessel under eighteen tons
- An officer or employee of the United States or any agency thereof or of any state or foreign government, or of any political subdivision thereof
- No compensation is payable if the injury was occasioned solely by the intoxication of the employee or by the willful intention of the employee to injure or kill himself or another
By amendment of September 28, 1984, where a person is employed in ship building, repairing or breaking services and his employer is the owner, owner pro hac vice, agent, operator, or charterer of the vessel, the injured person has no right of action for tort against his employer. His exclusive remedy is under the Longshore and Harbor Workers' Compensation Act.
In 1984, the term "employee" was redefined as "any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor worker including a ship repairman, ship builder and ship breaker but such term does not include:
- Individuals employed exclusively to perform office, clerical, secretarial, security or data processing work
- Individuals employed by a club, camp, recreational operation, restaurant, museum or retail outlet
- Individuals employed by a marina and who are not engaged in construction, replacement, or expansion of such marina
- Aqua culture workers
- Individuals employed to build, repair or dismantle any recreational vessel under sixty-five feet in length
- A master or member of a crew of any vessel
- Any person engaged by a master to load or unload or repair any small vessel under eighteen tons
In Northeast Marine Terminal Co. v. Caputo, 432 U. S. 249, 97 S.Ct. 2348, 53 L.Ed. 2d 320 (1977), the Supreme Court clarified the extent of coverage of the 1972 amendments with relation to the area and work activities encompassed by the LHWCA. This case involved two workers, one a checker and the other a terminal laborer. Pursuant to the 1972 amendments to the LHWCA, situs under the Act includes navigable waters and 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. In addition to situs, the status of workers covered under the Act encompassed those "engaged in maritime employment" which included "any longshoreman or other person engaged in longshoring operations and any harbor worker including a ship repairman, ship builder, or ship breaker". The plaintiffs in Caputo were held to come within the coverage of the LHWCA, both with regard to situs and status.
There are basically three criteria which must be met in order for the plaintiff to recover on a claim under 905 B of the LHWCA:
- The plaintiff must be a person covered by the LHWCA
- The plaintiff must have suffered an injury on or in connection with a vessel
- The injury must be caused by the negligence of the vessel, its owner, operator, charterer, agent or crew member
Under the dual capacity doctrine, a person covered by the LHWCA can bring an action against a vessel under 905 B even if his employer, who was answerable in compensation benefits, owed the vessel, provided the worker was injured by "vessel" as opposed to "employer." Jones and Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 103 S.Ct. 2554, 76 L.Ed. 2d 768 (1983); Smith v. M/V Captain Fred, 546 F.2d 119 (5th Cir. 1977); Eagle Picher Industries Inc. v. U.S., 846 F.2d 888 (3rd Cir. 1988). Note that in 1984 Congress amended 905 B to eliminate the negligence acting against the injured person's employer for the negligence of a vessel, even if the employer was the owner, operator or charterer of the vessel if the injured person was employed "to provide ship building, ship repairing, or ship breaking services". In Gay v. Barge 266, 915 f.2d 1007 (5th Cir. 1990) the court held that in order to classify as an employee for purposes of determining whether a claim under 905 B is barred, an analysis of the employee's overall duties or assignments for a significant time interval must be undertaken to determine whether the employee's permanent duties or interim duties over an appreciable period of time are such that the employee would be a covered ship builder, ship repairer or ship breaker within the meaning of 902 (3).
In Scindia Steam Navigation Co. v. de los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed. 2d 1 (1981) the court explained the general duties owed a ship owner to maritime workers:
- The ship owner must exercise ordinary care under the circumstances to have the ship and its equipment in such condition that an expert and experience stevedors will be able by the exercise of reasonable care to carry on its cargo operations with reasonable safety
- The ship owner must warn the stevedore of any hidden dangers on the ship, or with its equipment, of which the ship owner is or should be aware in the exercise of reasonable care, that would likely be encountered by the stevedore, that are not known by the stevedore and that would not be obvious to or anticipated by him if reasonably competent in the performance of his work
- Once stevedoring operations have begun, the ship owner is entitled to rely on the stevedore and generally owes no duty to inspect or supervise the cargo operations or discover dangerous conditions that develop. However, if the ship owner learns that a hazardous condition exists and the stevedore will not or cannot correct the danger and the longshoreman cannot avoid it, the ship owner has a duty to intervene in the operations to eliminate or neutralize the hazard. Further, the vessel has a continuing duty to exercise reasonable care with regard to the condition of the vessel if the owner actively participates in the operations, maintains control over the area, or such a duty is imposed by a contract, law, or custom
What emerged from the Scindia decision was the basic principle that responsibility for the safety of the longshoreman primarily rests upon the stevedore, and the majority of litigation following the Scindia decision deals with injuries that occurred after stevedoring operations had begun. Under these circumstances, there are basically three basis of liability:
- The failure to warn of hidden defects
- Injuries caused by the failure to intervene in the stevedoring operations; and
- Injuries that are caused while the vessel is still under the control of the vessel owner or charterer. See Helaire v. Mobil Oil co., 709 F.2d 1031 (5th Cir. 1983)
With respect to the duty to warn, attention has been placed upon the effect of an open and obvious condition. What appears to have emerged from the case law is the rule that an obvious condition may not give rise to a duty on the part of a ship owner to warn the maritime worker of the condition; whoever, it may constitute a breach of the duty to provide a reasonably safe ship and equipment to the stevedore to conduct its operations particularly if the hazard is under the control of the ship. *See Treadaway v. Societe Anonyme Lewis/Dreyfus, 894 F.2d 161 (5th Cir. 1990); Myers v. M/V Eugenio C., 919 F.2d 1070 (5th Cir. 1990); Martinez v. Korea Shipping Corp. Ltd., 903 F.2d 606 (9th Cir. 1990); Massinter v. Tenneco Oil Co., 867 F.2d 892 (5th Cir. 1989).
With respect to liability for injuries caused by the failure of a vessel owner to intervene in the stevedoring operations, the Fifth Circuit in Randolph v. Laeisz, 896 F.2d 964 (5th Cir. 1990) held a vessel only has a duty to intervene if it has actual knowledge that a condition poses an unreasonable risk of harm; actual knowledge that it cannot rely on the stevedore to protect its employees; and that if the condition is un-remedied, it poses a substantial risk of injury. In drawing a distinction between knowledge of the condition and knowledge of the dangerousness of the condition, the court held knowledge of the condition in and of itself did not render the failure to intervene negligent. Consequently, before the duty to intervene arises, plaintiff must demonstrate the ship owner has actual knowledge of the condition that poses an unreasonable risk of harm to the longshoreman and of actions by the stevedore that are obviously improvident under the circumstances.
With respect to injuries that are caused while the vessel is still under the control of the vessel owner or charterer, courts have held that the charterer is not liable under 905 B for the negligence of the vessel unless the cause of the harm is within the charterer's traditional spear of control and responsibility, or has been transferred thereto by the clear language of the charter agreement. Kerr McGee v. Ma/Ju Marine Services, 830 F.2d 1332 (5th Cir. 1987); Zepherine v. Conoco Oil Co., 884 F.2d 212 (5th Cir. 1989).
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