LHWCA 905(b) POST SCINDIA:
A REAL AND IMPACTFUL DEFENSE TOOL
POST 1972 AMENDMENT TO LWHCA
- 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
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.
- 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).
- 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 (5th 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.
“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
- 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:
- Whether the area in question is confined to contractor’s work area
- Whether the work area has been turned over to the contractor
- Whether vessel owner controls methods and operational details of contractor’s work
ACTIVE CONTROL IN PRACTICE
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.
_____________ 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.
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