Claims Under Longshoremen and Harbor Workers Compensation Act

The Louisiana Association for Justice has recently published a maritime article written by LLF attorney Richard Martin in the Louisiana Advocate. The article is called “Claims Under 33 U.S.C. § 905b.” Here’s the article:

CLAIMS UNDER 33 U.S.C. § 905b

The Longshoremen and Harbor Workers Compensation Act, 33 U.S.C. § 905(b), (“LHWCA”), provides a limited statutory cause of action on behalf of injured maritime workers (i.e. longshoremen and harbor workers) against vessel owners for negligence in maritime tort. There are three duties incumbent on the vessel owner. These are the: (1) “turnover” duty, (2) “active control” duty, and (3) duty to intervene.1

1. Eligibility

Eligibility for benefits under the LHWCA requires satisfaction of the dual maritime “situs” and “status” requirements.2  The status element requires that the employee claiming benefits be engaged in maritime employment.3 Thus, the LHWCA covers any employer whose work contributes to the movement of cargo on navigable waters.”4 Accordingly, if the employee was injured while on actual navigable waters, in the course of his employment, then he is engaged in maritime employment and satisfies the status test.5 If the employee was not injured on actual navigable waters, then he is engaged in “maritime employment” (i.e. has maritime status) only if his work is directly connected to the commerce carried on by a ship or vessel.

2. The “Turnover” Duty

The turnover duty refers to the vessel owner’s obligation before or at the commencement of the stevedore or independent contractor’s operations.6 Pursuant to this duty, a vessel owner must “exercise ordinary care under the circumstances to turn over the ship and its equipment in such a condition” that an independent contractor can carry on operations “with reasonable safety.” The owner must warn the independent contractor of “latent or hidden dangers which are known to the vessel owner or should have been known to it; however, the duty to warn of hidden dangers is narrow. It does not include dangers which are either: (1) open and obvious or (2) dangers a reasonably competent stevedore” or independent contractor should anticipate encountering.
To establish a breach of this duty, a plaintiff must establish that the vessel owner failed to furnish a reasonably safe vessel, equipment and workspace, or “failed to warn on turning over the ship of hidden defects of which” they should have known.7 Crucially, any allegations concerning breach of the turnover duty must concern the allegedly hazardous condition at the time the independent contractor began operations.8

3. The “Active Control” Duty

A vessel owner “may be liable under Scindia’s active control duty if it actively involves itself in cargo operations or fails to protect contractors from hazards in areas under the active control of the vessel.”9 To determine whether an area is in the active control of the vessel owner, the Fifth Circuit “generally considers whether the area in question is within the contractor’s work area and whether the work area has been ‘turned over’ to the contractor.”10

4. The Duty to Intervene

The duty to intervene to protect longshoremen from dangers that arise during the course of their work “is a narrow one.”11 Establishing the duty requires the plaintiff to show not only actual knowledge of the dangerous condition, but also “something more.”12 This something more requires a showing that the vessel owner also had: “(1) actual knowledge that the [defect] posed an unreasonable risk of harm and (2) actual knowledge that it could not rely on the [independent contractor] to protect its employees and that if unremedied the condition posed a substantial risk of injury.”13

1 Scindia Steam Nav. Co., Ltd. v. De Los Santos, 451 U.S. 156 (1981).
2 Coastal Production Servs., Inc. v. Hudson, 555 F.3d 426, 431 (5th Cir. 2009).
3 33 U.S.C. § 902(3).
4 Chesapeake and Ohio Ry. Co. v. Schwalb, 493 U.S. 40, 44 (1989).
5 DOWCP v. Perini North Rivers Assoc., 459 U.S. 297 (1983).
6 Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92, 98 (1994).
7 Randolph v. Laiesz, 896 F.2d 964, 970 (5th Cir. 1990).
8 Howlett v. Birkdale Shipping Co., 512 U.S. 92, 98 (1994).
9 Fontenot v. McCall’s Boat Rentals, Inc., 227 F.App’x 391, 402 (5th Cir. 2007).
10 Id. at 403
11 Futo v. Lykes Bros. S.S. Co., 742 F.2d 209, 216 (5th Cir. 1984).
12 Greenwood v. Societe Francaise De, 111 F. 3d 1239, 1249 (5th Cir. 1997).
13 Id. at 1248.

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