LHWCA 905(b) POST SCINDIA:

A REAL AND IMPACTFUL DEFENSE TOOL

POST 1972 AMENDMENT TO LWHCA

In 1972, Congress amended The Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901–950, commonly referred to as “LHWCA“

• Increase in statutory benefits longshore workers receives from employer
• This improved the condition of the longshore community but it negatively impacted the vessel owners by substantially increasing the compensation lien.
• Abolished longshore worker’s pre-existing right to sue vessel owners for warranty of seaworthiness
• Liability now based on NEGLIGENCE as opposed to unseaworthiness
• Intended to shift responsibility from the vessel to party best able to prevent injuries: the stevedore-employer

SCINDIA: THE NEW NEGLIGENCE STANDARD

• Seminal Supreme Court case of Scindia Steam Nav. Co., Ltd. v. De Los Santos, 451 U.S. 156 (1981), created new legal standard.
• The Fifth Circuit has stated that, “[a]n injured longshoreman must navigate the channels of the Longshore And Harbor Workers’ Compensation Act before he can drop anchor in the vessel owner’s pocketbook and claim his booty.” Stass v. American Commercial Lines, Inc., 720 F.2d 879, 880 (5th Cir. 1983).
• Three (3) NARROW duties owed to longshoreman
  • Turnover Duty
  • Active Control Duty
  • Duty to Intervene
• Plaintiff must prove the breach of one of these three duties to prevail.
• Duties apply to:
  • Vessel Owners
  • Container Ships
  • Bulk Cargo Ships
  • Charterers

905(b) A FORMIDABLE DEFENSE TOOL

Not typical negligence standard!

• A heightened standard is applied to the longshore workers of “EXPERT AND EXPERIENCED”
• A real tool that can be utilized during SUMMARY JUDGMENT
• DISTINCTION WITH A DIFFERENCE:
  • Burden remains with the Plaintiff to prove NARROW duty
  • Courts focus more on the conduct of the plaintiff as oppose to the defendant.

STATUS REQUIREMENT

• Although 905(b) claims are typically filed by longshoreman they are not the only ones permitted to pursue claims.
• In order to pursue a LHWCA 905(b) claim you must satisfy a status test.
• “The status test define[s] an employee as ‘any person engaged in maritime employment.‘” Bienvenu v. Texaco, Inc., 164 F.3d 901, 904 (5th Cir. 1999)(quoting 33 U.S.C. § 902(3)).
• Lynn v Heyl & Patterson, Inc., 483 F Supp 1247 (W.D. Pa. 1980)

Employee who was injured by operation of barge-mounted crane while employed as ironworker on construction site located along bank of river could not invoke 905(b) as basis for suit against crane barge since employee was not engaged in maritime employment and was not therefore person “covered under” Longshore And Harbor Workers’ Compensation Act for purposes of 905(b).

• Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249 (1977)
  • The Supreme Court held that the plaintiff, who was a checker was an “employee” under the LHWCA, because his job duties, which included checking and marking items of cargo as they were unloaded from containers, were “an integral part of the unloading process as altered by the advent of containerization.”
• 905(b) also applies to independent contractors working aboard a vessel. Hudson v. Schlumberger Tech. Corp., 452 Fed. Appx. 528 (5th Cir. La. 2011).
• Samples of independent contractors:
  • Independent contractor employed to determine the effect of rust on the thickness of vessel tank walls was entitled to 905(b) claim. Hill v. Texaco, Inc., 674 F.2d 447, 451 (5th Cir. 1982).
  • Independent contractor employed to provide seismic services aboard a vessel was eligible to bring a 905(b) claim. Hudson v. Schlumberger Tech. Corp., 452 Fed. Appx. 528 (5th Cir. La. 2011).

905(b) STATUTE OF LIMITATIONS AND LACHES

LHWCA does not provide a specific period in which suit must be filed.

Courts generally hold that the three (3) year statute of limitation that applies to maritime torts also applies to 905(b) claims. Poore v. Conagra Foods, Inc., 2011 U.S. Dist. LEXIS 102650 (N.D. Okla. Sept. 12, 2011).

However not bringing a claim within 3 years in not fatal as the court can still apply the doctrine of laches.

• Thibodeaux v. Vamos Oil & Gas Co., 555 F. Supp. 2d 711 (W.D. La. 2008)
  • Although 905(b) suit was not filed within 3 years the court could still apply the doctrine of laches.
  • Under the doctrine the plaintiff bears the burden of showing excusable delay or lack of prejudice to the defendant.
  • Court ruled that Plaintiff satisfied doctrine of laches.

905(b) IS PERTINENT TO WHOM?

• Owners of cargo ships
• Owners of cruise vessels
• Owners of bulk carriers
  • Giganti v. Polsteam Shipping Co., 997 F. Supp. 2d 182 (E.D.N.Y. 2013)
  • Longshore worker was injured during the discharge of sugar
  • Summary judgment granted pursuant to 905(b)
• Woodward v. Logistec Ltd., 164 F. Supp. 2d 941 (N.D. Ohio 2001)
  • Longshore worker injured when aluminum ingots stacked in the forward portion of the ship fell as the ship’s cargo was being unloaded
  • Summary judgment granted pursuant to 905(b)

CHARTERERS AND 905(b)

Bareboat/Demise and Voyage/Time charterers are susceptible to 905(b) claims if it can be shown they have operational control and commit negligent acts.

Initial inquiry is to look at charter party to determine whether there are any traditional responsibilities of the vessel owner that may have been transferred by the terms of the charter party

• Hayes v. Wilh Wilhelmsen Enterprises, Ltd., 818 F.2d 1557 (11th Cir. Fla. 1987)
  • Time charterer was not liable for injuries sustained by longshoreman when he slipped on fluid which leaked from hoses of hydraulically operated cargo doors of vessels, since maintenance of cargo doors was not within scope of responsibility assumed by charterer under clause which provided that charterers were responsible for discharge of cargo and owner had responsibility to maintain vessel.

In re Natures Way Marine, LLC, 2013 U.S. Dist. LEXIS 166827 (S.D. Ala. Nov. 25, 2013)

• Charterer could be liable pursuant to 905(b) if the evidence demonstrated that they were in control of the area where the incident occurred.

WHAT CONSTITUTES A VESSEL UNDER 905(b)? MOST ANYTHING THAT FLOATS

905(b) allows action against vessel owner.

BUT WHAT IS A VESSEL??

• According the Supreme Court under the LHWCA the word “vessel” includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water. Stewart v Dutra Constr. Co., 160 L Ed 2d 932 (2005).

Cases

• Stewart v Dutra Constr. Co., 160 L Ed 2d 932 (2005).
  • Dredge for removing silt from ocean floor navigated short distances by manipulating its anchors and cables was a vessel since it was practically capable of maritime transportation, regardless of whether dredge was in motion at particular time or was primarily used for transportation.

WHAT CONSTITUTES A VESSEL UNDER 905(b) CONTINUED…

• Rosetti v Avondale Shipyards, Inc., 821 F2d 1083 (5^th Cir. 1987)
  • Unfinished ship was not “vessel” for purposes of claim under § 905 of Longshore and Harbor Workers’ Compensation Act where vessel was approximately 80 percent to 85 percent complete and although hull was afloat on navigable waters, vessel itself was not navigable, majority of navigation equipment was not installed, dock trials and sea trials had not taken place, and no crew had been assigned and thus vessel was not capable of navigation or its special purpose or use on or in water as required to establish maritime jurisdiction.
• Ducrepont v Baton Rouge Marine Enterprises, Inc., 877 F2d 393 (5th Cir. 1989)
  • Barge was not “vessel” within meaning of LHWCA where although originally navigable subsequently the barge platform was firmly moored to provide painting services, was not used for navigation, was seldom moved, and when moved required assistance of motorized vessel.

TURNOVER DUTY

“Courts have noted that the turnover duty is a NARROW ONE because to subject vessels to suit for injuries that could be anticipated and prevented by a competent stevedore would threaten to upset the balance Congress was careful to strike in enacting the 1972 amendment to the LHWCA.” Romero v. Cajun Stabilizing Boats, Inc., 501 F. Supp. 2d 816 (W.D. La. 2007).

Vessel does not need to be in a “PERFECTLY SAFE CONDITION”

Vessel not liable for injuries caused by an “OPEN AND OBVIOUS CONDITION”

MOST COMMONLY LITIGATED SCINDIA DUTY

Cases:

• Plaintiff slipped while climbing down angle-iron supports into engine room. Presence of anti-corrosive substance not uncommon and court granted summary judgment. Romero v. Cajun Stabilizing Boats, Inc., 501 F. Supp. 2d 816 (W.D. La. 2007).
• Vessel owner has no duty to warn of the presence of slippery soybean residue because it was common and should have been anticipated. Stass v. American Commercial Lines, Inc., 720 F.2d 879 (5th Cir. La. 1983)

TURNOVER DUTY IN PRACTICE

Case without breach of Turnover Duty

• IN RE: M/V SEABOARD SPIRIT, et al, Case No. 11-23841-CIV (S.D. Fla.)
  • Longshore worker was killed during discharge operations after the vessel had been turned over to the stevedores.
  • Worker failed to remove single lashing chain prior to ordering container being removed.
  • Claimants alleged there was a defect in the lashing gear and that container improperly stowed on ramp.
  • Court held that there was not a breach of turnover duty as lashing chain attached to a container was an open and obvious condition that is readily encountered.
• Horton v. Maersk Line, Ltd., 603 Fed. Appx. 791 (11th Cir. 2015)
  • During loading operations a twist-lock fell from a container and struck the longshore worker.
  • District Court ruled that vessel did not breach turn over duty as no evidence introduced that twist-lock was defective, or evidence presented that established either that the alleged defect in the twist-lock was a latent hazard, or that the vessel owner should have identified the alleged defect in the exercise of reasonable care.

CASES INVOLVING BREACH OF TURNOVER DUTY

• Revak v. Interforest Terminal UMEA AB, 2009 U.S. Dist. LEXIS 41249 (E.D. Pa. 2009)
• Longshore worker was injured by a bundle of wood that fell on him after a vessel owned sling broke as the timber was being hoisted from the cargo-hold of a ship.
• Summary Judgment denied because evidence presented that vessel knew or should have known of possible defect with sling which would not have been known to longshoreman through the exercise of reasonable care.
• Toups v. Marine Transp. Servs., 2000 U.S. Dist. LEXIS 12033 (E.D. La. Aug. 15, 2000)
• Longshore worker claimed that vessel owner’s failure to provide a ladder or a gangway caused his injury and that defendant’s failure to provide a reasonably safe means of access left him no option but to attempt boarding by climbing the tires.
• Summary Judgment denied because question of fact whether gangway was available and a reasonable alternative method to board vessel.

OH SAY CAN YOU SEE

Common issue that arises in litigation is whether the vessel or stevedore is responsible for lighting??

• The Law:
  • “It is the duty of the stevedore, not the shipowner to provide adequate lighting.” Raappana v. Inui S.S. Co., 2008 U.S. Dist. LEXIS 67327 (W.D. Wash. 2008).
  • Maintaining adequate lighting during cargo operations “is the responsibility of the stevedore.” Dow v. Oldendorff Carriers GMBH & Co., KG, 387 Fed. Appx. 504 (5th Cir. La. 2010).
• Safety and Health Regulations for Longshoring at 29 C.F.R. 1918.92(e) provides: Illumination– Entry into darkened areas. Employees shall not be permitted to enter dark holds, compartments, decks or other spaces without a flashlight or other portable light. The use of matches or open flames is prohibited.

ACTIVE CONTROL DUTY

The Active Control duty is triggered once stevedoring operations have commenced but owner is not required to supervise, inspect, or monitor contractor’s work.

Thus, the vessel “may be liable if it actively involves itself in the cargo operations and negligently injures a longshoreman or if it fails to exercise due care to avoid exposing longshoremen to harm from hazards they may encounter in areas, or from equipment, under the active control of the vessel during the stevedoring operation.” Scindia, 451 U.S. at 167.

Simply observing cargo operations, as may be customarily done by the ship’s crew does not rise to the level of “active control.” See, Bonds v. Mortensen and Lange, 717 F.2d 123, 127, n.4 (4th Cir. 1983); Manuel v. Cameron, 103 F.3d 31, 34 (5th Cir. 1997).

• Test to whether owner retains Active Control over contractor’s work:

1. Whether the area in question is confined to contractor’s work area
2. Whether the work area has been turned over to the contractor
3. Whether vessel owner controls methods and operational details of contractor’s work

ACTIVE CONTROL IN PRACTICE

Example:

Ship’s crane operated by crew member malfunctions causing injury to longshore worker

Case with no breach Active Control

• Price v. Atl. Ro-Ro Carriers, 45 F. Supp. 3d 494 (D. Md. 2014)
  • During longshore operations oil obviously present on tween deck during cargo operations and then a forklift driver lost control while driving over oil and injured a nearby longshoreman.
  • Plaintiff argued that defendant had active control since they had the power to stop operations or make changes dictated by safety-related concerns.
  • Court ruled that defendant did not have active control as they did not manage the ship’s tween deck, or direct the stevedore’s discharge operation.

Case involving breach of Active Control Duty

• Garry v. Exxon Mobil Corp., 2004 U.S. Dist. LEXIS 20981 (E.D. La. 2004)
  • Plaintiff, was a labor foreman employed by a completion and outfitting contractor. He and his crew were performing cleaning duties aboard the vessel; while working to remove fluids from a compartment, the worker was injured in a fall.
  • Summary Judgment denied because there was evidence at the time of the accident that the Plaintiff was reporting to supervisors associated with the vessel and taking orders from them.  Therefore raising an issue as to owners active control in operations.

DUTY TO INTERVENE

Like the Turnover Duty the Duty to Intervene is a NARROW ONE. Futo v. Lykes Bros. Steamship Co., 742 F.2d 209 (5th Cir. La. 1984).

Applies after cargo operations have begun and unlike Active-Control Duty “concerns the vessel’s obligations with regard to cargo operations in areas under the principal control of the independent stevedore.” Scindia, 451 U.S. at 167-178).

Under the Duty to Intervene the ship-owner has a duty to intervene to protect the longshoremen only if he has ACTUAL KNOWLEDGE that the ship or its gear poses a danger to the longshoremen and that the stevedore is failing, unreasonably, to protect the longshoremen. . .

Constructive knowledge does not subject the owner to this duty. Courts have repeatedly held that the duty to intervene requires that a plaintiff show “something more” than the vessel owners mere knowledge of a dangerous condition. Futo v. Lykes Bros. Steamship Co., 742 F.2d 209 (5th Cir. La. 1984).

DUTY TO INTERVENE IN PRACTICE

Goal is to organize evidence and illicit testimony that vessel did not have actual knowledge of any defect that would poses a danger to longshoreman.

Case where no breach of Duty to Intervene

• Goldsmith v. Swan Reefer A.S., 173 Fed. Appx. 983 (3d Cir. 2006)
  • The longshoreman was injured when a crane that was unloading cargo from a ship caused a container to hit the longshoreman and knock him overboard.
  • As to the ship owner, the longshoreman contended that it breached its duty to intervene because it knew or should have known that the stevedore’s practice of unloading with two cranes was dangerous.
  • The court affirmed the district court’s holding that the ship owner did not have a general duty under 905(b) to supervise the stevedore operations. Nor did the ship owner’s contract with the stevedore impose a duty to safeguard the longshoremen in the performance of their duties

Case where breach of Duty to Intervene

• O’Hara v. Weeks Marine, Inc., 294 F.3d 55 (2d Cir. 2002)
  • Steel partitions used to pour concrete fell into the water when a sling on the crane that had been transporting them broke and Plaintiff sustained hernia trying to retrieve the items from the water.
  • Summary Judgment denied because material fact whether agent of vessel should have known whether the Plaintiff lifting a heavy object without mechanical assistance was a risk.

EXCEPTION TO DUAL EMPLOYMENT DOCTRINE

In 1984, Congress amended 905(b) to limit dual employment exception

Now under 905(b), there are restrictions on the right to sue with respect to certain classifications of employees. An injured employee cannot bring an action in tort against his employer that is the owner of the vessel where the employee is engaged in one of the “harbor worker” occupations, such as shipbuilding, repairing, or breaking services.

OSHA AND APPLICABILITY TO VESSELS

OSHA rules and regulations only apply to the stevedore employer and not the VESSEL. 29 C.F.R. 1915.3

The rules applicable to the vessel are United States Coast Guard rules and regulations which preempt OSHA.

• Carbo v. Chet Morrison Servs., LLC, 2013 U.S. Dist. LEXIS 152979 (E.D. La. Oct. 23, 2013)
  • Plaintiff’s expert opined that the vessel violated OSHA rules and regulations.
  • Court held that the OSHA statute specifically states that it authority does not apply to working conditions over which other federal agencies “exercise statutory authority to prescribe and enforce standards.” 29 U.S.C. § 653(b)(1). Under 14 U.S.C. § 2, Congress provides the USCG with such statutory authority to create and enforce regulations needed to promote the safety of vessels; therefore, OSHA regulations are pre-empted where USCG regulations apply.
• Francois v. Diamond Offshore Co., 2013 U.S. Dist. LEXIS 23724 (E.D. La. Feb. 21, 2013)
  • Defendant moved to exclude expert testimony that vessel violated OSHA
  • Court ruled that USCG regulations preempted OSHA and thus expert was excluded from testifying regarding OSHA violations by the vessel.

905(b) AND NO CONTRACTUAL INDEMNITY BETWEEN STEVEDORES AND VESSEL

The 1972 amendment to 905(b) eliminated the stevedore’s obligation, to indemnify a ship-owner or it charterers, even in situations involving contractual indemnification. See generally Scindia Steam Nav. Co. v. De los Santos, 451 U.S. 156, 165 (1981); Diamond Offshore Co. V. A & B Builders, 302 F.3d 531, 541 (5th Cir.2002).

905(b) specifically, states:

In the event of injury to a person covered under this Act caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 33 of this Act [33 USC § 933], and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void.

INDEMNIFICATION PROVISION

_____________ shall defend, indemnify and hold harmless ___________, its employees, agents, successors, and affiliated companies against losses, damages, suits, expenses, claims and demands, including court costs and legal fees involving claims for death or personal injury or property damage, including pollution clean-up or damages, arising out of or in any way related to, directly or indirectly, the work contemplated by the Agreement, but not to the  extent such  loss or damage is caused solely by the negligent act or omission of _________, its agents or employees. A determination of partial invalidity of this indemnification under the provisions of the Longshore and Harbor Workers’ Compensation Act of 1972 shall have no effect  on  the validity of any portion thereof not held invalid, nor shall a determination or declaration of invalidity of this indemnification as a whole affect the validity of this Agreement in its entirety.

• This is a copy of a stevedoring agreement still in use. Please note that the indemnity provision effectually acknowledge the anti-indemnity requirement of 905(b).

OUTER CONTINENTAL SHELF INDEMNITY EXEMPTION

LHWCA 905(c) provides an indemnity exemption for those workers entitled to receive benefits under the Outer Continental Shelf Lands Act (43 U.S.C. 1333) LHWCA 905(c) states as follows:

Nothing contained in subsection (b) of this section shall preclude the enforcement according to its terms of any reciprocal indemnity provision whereby the employer of a person entitled to receive benefits under this Act by virtue of section 4 of the Outer Continental Shelf Lands Act (43 U.S.C. 1333) and the vessel agree to defend and indemnify the other for cost of defense and loss or liability for damages arising out of or resulting from death or bodily injury to their employees.

• Becker v. Tidewater Inc., 586 F.3d 358 (5th Cir. La. 2009
  • Plaintiff was injured while working as part of a crew of boat outfitted for well-stimulation services. A steel hose cut through the intern’s legs when the boat captain pulled away from an oil rig without a warning in order to avoid an impact with the rig.
  • The court ruled that reciprocal indemnity provisions of a time-charter maritime contract between the employer and the boat owner obligated the employer to indemnify the boat owner fully for the plaintiff’s injuries because the agreement was valid under 905(b) since the plaintiff was engaged in mineral exploration, was a non-seaman, was injured on the outer continental shelf while employed in mineral production

905(b) AND THE BENEFITS OF BEING AN ADDITIONAL INSURED

Nothing prevents a stevedore from including a vessel owner as an additional insured on its liability policy. M-I L.L.C. Civil Action v. Masse Contr., Inc., 2008 U.S. Dist. LEXIS 21654, (E.D. La. 2008); LeBlanc v. Global Marine Drilling Co., 193 F.3d 873 (5th Cir.1999).

CAUTION: Please read carefully the terms of the policy because many stevedoring insurance policies do not cover claims occurring on a vessel.

LONGSHORE LIEN AND ATTEMPTING TO SETTLE A CASE

LHWCA § 933 provides the employer has a subrogation right to be reimbursed from the worker’s net recovery from a third party for the full amount of compensation benefits already paid. See, e.g., Allen v. Texaco, Inc., 510 F.2d 977, 979-80 (5th Cir. 1975).

Moreover, the employer may intervene in the worker’s suit and assert a lien on the worker’s recovery to the extent of the compensation benefits it has paid. Id.

Claimant cannot settle suit independent of LHWCA lien.  Peters v. North River Ins. Co. of Morristown, NJ, 764 F.2d 306 (5th Cir. 1982).

Section 33(g) requires a Claimant to obtain Employer’s written consent via a form LS-33 before the settlement is executed when the settlement with a third party is for a sum less than the amount the Employer is obligated to pay under Section 33(f).

LS-33 must be filed in the district director’s office within 30 days after the settlement is finalized.

LONGSHORE LIEN AND SPLITTING THE PIE UNDER SECTION 33(e) and (f)

No reduction of lien for employer’s negligence.  Albert v. Paulo, 552 F.2d 1139 (5th Cir.), reh’g denied en banc, 557 F.2d 823 (1977).

No reduction of lien for claimant’s negligence.  Hayden v. Kerr-McGee, 787 F. 2d 1000 (5th Cir. 1986).

Reduction for attorney fees and costs.

LONGSHORE LIEN RECOUPING

It is also established that the employer is entitled to recoup from a third-party recovery the entire amount of the benefits paid without a reduction for its proportionate share of the litigation expenses and attorneys’ fees incurred by the worker. Peters v. North River Ins. Co., 764 F.2d 306 (5th Cir. La. 1985).

 The compensation lien, however, attaches to the worker’s net recovery. See Ochoa v. Employers National Insurance Co., 724 F.2d 1171, 1177 (5th Cir.).

Thus, a combination of the express provisions of the Act and the cases construing it establishes that when the worker recovers from a third party by judgment or compromise, the funds are distributed as follows: (1) the worker retains his litigation expenses and a reasonable attorneys’ fee; (2) the employer receives from the recovery a credit for any compensation liability not yet satisfied and reimbursement for compensation already paid; and (3) the worker retains what is left, if anything. Ochoa, 724 F.2d at 1177.

In LHWCA cases relatively common occurrence when you have a lien well in excess of six figures but the case might be only worth five figures.

SOLAS ORIENTATION

EXISTING LAW – OSHA, 29 CFR 1918.85 – Containerized cargo operations

• Occupational Safety and Health Act (OSHA) Part 19 – Longshoring standards
• Accurate gross weight of all export containers must be made known to equipment operators at U.S. ports before the containers are lifted
• OSHA places the burden of obtaining accurate container weights on the employers of the equipment operators

§ 1918.85 states in pertinent part:

(2) For a loaded container:

• (i)The actual gross weight shall be plainly marked and visible to the crane or other hoisting equipment operator or signalman, or to every supervisor or job boss on site and in charge of the operation; or

• (ii) The cargo stowage plan or equivalent permanently recorded display serving the same purpose, containing the actual gross weight and the serial number or other positive identification of that specific container, shall be provided to the crane or other hoisting equipment operator and signalman, and to every supervisor and job boss on site and in charge of the operation.

• Every outbound container received at a marine terminal ready to load aboard a vessel without further consolidation or loading shall be weighed to obtain the actual gross weight, either at the terminal or elsewhere, before being hoisted.

• (i) When container weighing scales are found at a marine terminal, any outbound container with a load consolidated at that terminal shall be weighed to obtain the actual weight before being hoisted.

• (ii) If the terminal has no scales, the actual gross weight may be calculated from the container’s contents and the container’s empty weight. The weights used in the calculation shall be posted conspicuously on the container, with the name of the person making the calculation, and the date.

29 CFR § 1917.71 Terminals handling intermodal containers or roll-on roll-off operations.

• (b)(3) Every outbound loaded container which is received at a marine terminal ready to load aboard a vessel without further consolidation or loading shall be weighed to obtain the actual gross weight, either at the terminal or elsewhere, before being hoisted.

• OSHA regulations do not define “actual gross weight”

• No reported decisions addressing the criteria for compliance with “actual gross weight” requirement

• OSHA regulations do not expressly provide that estimated weighbridge weight constitutes “actual gross weight” (OSHA) or “verified gross mass” (SOLAS

NEW LAW – AMENDED SOLAS

• AMENDMENTS TO THE INTERNATIONAL CONVENTION FOR THE SAFETY OF LIFE AT SEA (SOLAS), 1974, AS AMENDED
• CHAPTER VI CARRIAGE OF CARGOES AND OIL FUELS
• Part A General Provisions
  Regulation 2 – Cargo information
• The following new paragraphs 4 to 6 are added after existing paragraph 3:
  • “4 In the case of cargo carried in a container*, except for containers carried on a chassis or a trailer when such containers are driven on or off a ro-ro ship engaged in short international voyages as defined in regulation III/3, the gross mass according to paragraph 2.1 of this regulation shall be verified by the shipper, either by:

     1. weighing the packed container using calibrated and certified equipment; or

    2. weighing all packages and cargo items, including the mass of pallets, dunnage and other securing material to be packed in the container and adding the tare mass of the container to the sum of the single masses, using a certified method approved by the competent authority of the State in which packing of the container was completed.

Regulation 2 – Cargo information

5. The shipper of a container shall ensure the verified gross mass** is stated in the shipping document. The shipping document shall be:

.1 signed by a person duly authorized by the shipper; and

.2 submitted to the master or his representative and to the terminal representative sufficiently in advance, as required by the master or his representative, to be used in the preparation of the ship stowage plan***.

6. If the shipping document, with regard to a packed container, does not provide the verified gross mass and the master or his representative and the terminal representative have not obtained the verified gross mass of the packed container, it shall not be loaded on to the ship.

PURPOSE OF AMENDED SOLAS – INCREASED SAFETY

• Mis-declared container weight can affect the stability of trucks, terminal equipment and vessels, putting equipment and equipment operators in danger. 
• Not uncommon for accident investigations to reveal inaccurate weight information disclosed by shippers which are shown on cargo manifests.
• The purpose of SOLAS Chapter VI, Regulation 2 is to ensure that all container weights are declared accurately to reduce the occurrence of accidents, especially those caused by overweight containers.

VERIFICATION OF LOADED CONTAINER WEIGHT IS MANDATORY

• As of 1 July 2016, loaded container weight must be verified before the container may be permitted to be loaded on board ship under SOLAS.
• The container weight may be determined by two methods:
  1) weighing the container after it has been packed or
  2) weighing all the contents of the container (including pallets, dunnage, and other packing material) and adding the container’s tare weight. OCEMA tariff item – carrier’s will stand by weight painted on their containers.

ESTIMATED WEIGHTS NOT PERMITTED

• SOLAS does not provide that estimated weight is permissible and implanting guidelines expressly state that estimated weights are prohibited.
• There is no provision in SOLAS for any margin of error or tolerance.
• Approval and certification of weighing equipment is not uniform, in Florida only commercial scales (used for goods sold by weight) are regulated by Florida Bureau of Weights and Measures

PROVIDING ACCURATE WEIGHTS IS THE SHIPPER’S RESPONSIBILITY

• The shipper (or a third party under the shipper’s responsibility) is required to provide accurate weight to the carrier and terminal, either electronically or on paper.
• Weighing equipment must meet national certification and calibration requirements.
• Weight verification must be ‘signed’: a specific person must be named and identified as having verified the accuracy of the weight calculation on behalf of the shipper.
• The information and signature may be transmitted electronically, and the signature may consist of the last name of the responsible person in capital letters.
• A carrier may rely on this signed weight verification as being accurate.

WHO IS THE “SHIPPER”

The shipper’ is a legal entity or person named on the bill of lading or equivalent multimodal transport document as shipper, and/or who (or in whose name or on whose behalf) a contract of carriage has been concluded with a shipping company

THE SHIPPER MAY BE ANY OF THE FOLLOWING:

• The beneficial cargo owner (i.e. the owner of the goods, the exporter);
• The non-vessel-operating common carrier;
• Consolidator
• NVOCC’s are shippers and carriers at the same time. They need to pass on to the VOCC carrying the goods the verified weight provided to them by the shipper identified in the bill of lading they issue.
• LCL – shipper’s provide VGM to NVOCC
• Costs associated with repacking etc. borne by shipper who provided inaccurate VGM

VGM AGENTS

Where the ‘shipper’ identified in the bill of lading does not have control over the cargo it must make arrangements to obtain and provide a verified gross mass in compliance with Amended SOLAS.

CONSEQUENCES OF NON COMPLIANCE FOR SHIPPERS

• Commercial and operational penalties including:
  • shipping delays
  • demurrage charges
  • administrative charges
  • repacking costs
  • weighing costs

CONSEQUENCES OF NON COMPLIANCE FOR SHIPPERS

• Containers without a verified gross mass loaded on board can result in the detention of the container by the U.S. Coast Guard.
• Containers with a false or inaccurate verified gross mass certificate loaded on board can result in the detention of the container by the U.S. Coast Guard.
• No direct action or fines against the shipper by the US Coast Guard, commercial penalties only.

CONSEQUENCES FOR CARRIERS

• Containers without a verified gross mass loaded on board can result in the detention of the vessel or detention of non compliant containers.
• SOLAS VGM compliance will be the responsibility of vessel charterers under most charter parties, such as the following clause contained in the New York Produce Exchange charter party:
  • Prior to loading, Charterers or their agents shall furnish Master in good time, before cargo operations with shippers’ declared weights for containers. Charterers also to be responsible for any damages, consequences, delays and expenses as may arise in port or at sea from lack of container weights and/or discrepancies between manifest and actual container weights.

CALIBRATED, CERTIFIED EQUIPMENT – CERTIFICATION OF SCALES BY FLORIDA BUREAU OF WEIGHTS AND MEASURES AND SCALE MANUFACTURERS

• Florida Bureau of Weights and Measures periodically audits calibration of commercial scales (used to weigh materials sold by weight).

• Warehouse scales up to 5,000 lbs are not considered commercial.

• Scale owner/operators rely more on regular certifications issued by scale manufacturers such as Fairbanks, Rice Lake and Mettler Toledo, which are more up to date.

• Scales can be affixed to cranes, forklifts, top picks, but scale manufacturers have indicated that they will not certify the accuracy of scales affixed to hydraulic top picks.

• FBW&M certification does not expire- sometimes takes them more than a year to update testing of scale calibration.

• FBW&M has no certified method for calculating container VGM other than simple arithmetic of adding weights of contents to container tare weight.

USCG ENFORCEMENT OF SOLAS

• U.S. Coast Guard is responsible for enforcing SOLAS
• The container weight verification law to be enforced in the same way USCG enforces other aspects of SOLAS:
  • 1) the Coast Guard would detain cargo found without a VGM on a foreign-flag vessel until it is cleared by the country of origin or
  • 2) the USCG Captain of the Port could hold U.S. export cargo if it didn’t include an accurate VGM or had no VGM.
• The Coast Guard could weigh containers at U.S. ports and compare that weight against the VGM received by the carrier in foreign or U.S. ports.
• A container without a VGM could be put a hold until a VGM is obtained.
• No USCG action against the shipper, but the carrier would pass on to the shipper the costs it has incurred.
• U.S. Coast Guard may ensue if carrier does not have verified gross mass for each loaded container on board its ship.

VERIFICATION OF LOADED CONTAINER WEIGHT

• There are no certified “weighers” under SOLAS
• SOLAS does not require any assessment or registration of a scale operator
• Calibration certifications can be obtained from scale manufacturers

SHIPPER PREPARATION

• Identify vendors (warehouses, terminals, ports) with appropriate weighing equipment.
• Florida Bureau of Weights and Measures can identify vendors with certified calibrated equipment
• Ask carriers, terminals, truckers, and forwarders about VGM weighing charges
• Consult with freight forwarders, NVOCC’s, carriers, terminals and truckers to determine if they have access equipment that is calibrated and certified
• Review transportation contracts (with shippers, carriers, NVOCC’s, forwarders, truckers) to identify who is responsible for weighing the cargo / loaded container and associated charges

• Inquire whether the port or the terminal operator will provide VGM of loaded containers passing through their gates on behalf of shippers or whether they will only provide weight to the shipper without verification

• Review insurance coverage to determine additional coverage to protect against damages arising from  inaccurate VGMs.

INSTRUCTIONS TO SHIPPERS:

• Booking confirmations should include notification to shippers that they are responsible for providing the VGM document to their forwarder / NVOCC / carrier before the vessel loading date
• The VGM document will include container number, seal number, number of pieces loaded, tare weight of container and total weight of all material inside the container – the total is the Gross Mass of the container.
• The scale used for weighing the cargo must have a current certificate of calibration from scale manufacturer, a copy of which should be on hand to if the accuracy of the weight is questioned.
• Remind shippers that there are two ways of calculating the VGM:
  • 1) Weigh the container after it is loaded;
  • 2) Weigh all packages, packing and dunnage material and add the tare weight of the container.

VGM SUBMISSION METHODS

• EDI through VERMAS (Verified Gross Mass Message)
• Carrier Web Portal
• Email/Fax

USCG EQUIVALENCY BULLETIN

• Agreement must be reached with weighing vendor that it is authorized to provide VGM to carrier on behalf of shipper.
• Shipper still obligated to provide VGM, if violation of SOLAS found because estimated weight provided shipper will be liable. Indemnification provision in agreement with weighing vendor would be required to extend liability to weighing vendor for certifying the weight as VGM.

CMA CGM

• Tolerance – 1 ton difference between shipper VGM and terminal weight will be allowed.
• The shipper’s VGM will be utilized in stow plan unless there is more than a 1 ton difference from the terminal weight.
• VGM must go to the carrier, cannot be transmitted by shipper to terminal directly
• Extra charges associated with SOLAS compliance may include additional THC (if terminal weight is to be relied upon); trucking if trucker is to go to private weighbridge to obtain weight ticket; weighing charge.

SOUTH CAROLINA PORTS AUTHORITY – 5/5/16

• Port will provide shippers estimated weight, backing out estimated weight of truck, fuel, genset for a $25 fee
• SCPA does not certify the accuracy of the weight it provides
• SCPA will not provide VGM to carrier on behalf of shipper
• Shipper retains the obligation to provide certification of verified weight to ocean carrier
• 3^rd Method of calculating VGM – using estimated weight from weighbridge.  This position is based on SPCPA’s belief that such an estimated weight complies with the OSHA regulation cited in the USCG equivalency bulletin
• Defers to carriers to determine whether to use Method 3 over Method 2 (which should be more accurate as it does not include any estimated weight)
• Does not comment on whether ocean carrier can justifiably accept a VGM from a terminal or scale operator knowing that it is an estimated weight – USCG is silent on this issue

INSURANCE

• Check with broker as to coverage for VGM liability
• Expanded general liability, errors and omissions, defense, demurrage and freight, and third party liability coverage may be needed
• No coverage for intentional mis-declaration of VGM (VGM declared less than true weight to avoid detection of overweight container)

FORWARDER COMPLIANCE WITH AMENDED SOLAS

• Receive documented VGM from the shipper.
• Identify by name the ‘authorized person’ from the shipper.
• Transmit completed VGM message or form to the carrier .
• Maintain documents of showing VGM backup provided by the shipper or
• Procure written instructions from the shipper to weigh the loaded container or the cargo and packing materials .
• Arrange to have the cargo and packing materials or the loaded container weighed and receive documentary evidence of the verified weight.
• Identify by name the ‘authorized person’ from the shipper.
• Transmit completed VGM message or form to the carrier.
• Maintain documents of showing VGM backup provided by the shipper.

CO-LOADING

• If a container is packed by multiple parties or at different locations, the shipper that will be shown on the bill of lading is responsible for obtaining documents verifying the weight of the cargo and packing materials from each party or location.

• Shipper should receive from any third party that has done some or all of the container loading verified weights of all the items the third party has loaded and backup documentation proving scale calibration and accurate weight.

• Good practice to get document from third parties showing date and time identifiable items (cargo, dunnage, securing materials, etc.) were loaded and weighed using the identifiable certified and calibrated equipment.

NVOCC  – Less than Container Load cargo

• Obtain the documented VGM from the shippers
• Obtain the name of the ‘authorized person’ from the shipper
  or
• Weigh all cargo on receipt before loading into container

NOTICE OF FEES OR CHARGES FOR WEIGHING SERVICES

• Carriers and NVOCCs must provide customers 30 day notice of new charges
• New administrative charges associated with SOLAS compliance and charges for weighing services should be published in carrier tariffs by June 1 to be effective July 1

TRUCKERS

• Ask whether VGM was provided to carrier
• If not provided, procedure at port terminal for receiving container without VGM
• Require notation on dispatch that VGM was provided by shipper to carrier
• Amend tariff to include charges for stop at weigh bridge; weighing at terminal

IMPORTERS

• Make seller / shipper aware of responsibility for delays, demurrage, all costs if container is not loaded due to lack of VGM
• Include VGM requirement in Purchase Order terms

INDEMNIFICATION AGREEMENTS

• NVOCC and Freight Forwarder terms and conditions should include indemnification provisions addressing VGM requirement of SOLAS
• NCBFAA terms and conditions have been updated to address SOLAS VGM requirements to indemnify forwarder or NVOCC – communicate those new terms to customers.
• VGM indemnification provision of NCBFAA Terms & Conditions of Service can only be utilized by NCBFAA Regular Members or those who have paid an annual license fee of $1,000 to the NCBFAA.
• Master Service Agreements should identify party responsible for performing and documenting VGM.

NOTICE TO CUSTOMERS

• Whether or not weighing service will be provided for LCL cargo received for consolidation
• If so, maximum cargo weight and dimensions available scale can handle
• Charge for weighing service
• List of alternative weighing options for cargo that exceeds scale weight, dimension capacity
• VGM deadlines, i.e. FCL – day of loading at customer’s facility; LCL – day truck picks up cargo from customer’s facility