Longshore and Harbor Workers’ Compensation Act
Longshoremen and Repair Workers
Longshoremen have physically demanding and dangerous jobs. For the most part they load and unload ships safely and efficiently. When things go wrong however, longshoreman injuries on ships and docks can be devastating and deadly. Longshoremen work every day around big, heavy, moving cargo and cargo loading equipment. Loading and unloading large quantities of cargo with heavy equipment, in a marine environment, is dangerous and requires skill and safety.
Clark & Zedella History with Longshoremen
For decades Clark & Zedella has represented longshoremen in tragic accident and death cases. We are close to the longshoremen and their community. We personally know longshoremen, their wives, husbands, kids and grandkids. We care deeply about their lives and when injured about their livelihoods, wages, and careers. We take their cases very seriously and when necessary we tackle the largest shipping companies, foreign and domestic, in hard fought legal battles to obtain just and fair compensation for the injured.
The Longshore & Harbor Workers’ Compensation Act
If a longshoreman is injured, he or she is entitled to workers’ compensation as the remedy.
33 U.S.C. 903 states in part: ….”compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring 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, dismantling, or building a vessel…”
Section 904 (b) states that “compensation shall be paid irrespective of fault as a cause of the injury. The only defenses to liability for benefits are if the injury was caused solely by intoxication of the injured employee or by his or her willful intent to kill or injure himself or another.”
Thus, if a worker meets the test that qualifies the worker as a longshoreman and he or she is injured on the job, workers’ compensation, under the Longshore Act, is practically automatic.
Clark & Zedella History with Longshoremen and their Third-Party Cases
At Clark & Zedella we have specialized in third party cases under the Longshore Act for decades. These cases are highly technical, difficult and expensive to litigate. Very often the cases are filed against foreign shipping companies and have technical, complex and difficult issues in regard to parties and jurisdiction.
When a longshoreman is injured, his or her remedy is workers’ compensation under the Act. Rarely, if the facts are right, the longshoreman may have a third-party case against the vessel itself or other third parties. If there is negligence of the vessel the longshoreman may bring an action against the vessel owner or operator to recover damages.
To make the case, the longshoreman, through experienced maritime lawyers, has to navigate through a maze of limitations and a minefield of legal and factual technicalities and hurdles, not the least of which is the ship environment itself and the hazards that caused the injury.
These cases are not easy and third-party Longshore Act cases require maritime lawyers who know how to litigate them. At Clark & Zedella we have successfully won countless third-party cases for longshoremen when in the beginning it looked like there was no liability case and workers’ compensation was the sole remedy for the injured worker. We have recovered millions of dollars for longshoremen in damages when their careers have been shortened or lost.
The Vessel Owners’ Duties of Care to the Longshoreman
One appellate court has stated “an injured longshoreman must navigate the channels of the LHWCA before he can drop anchor in the vessel owner’s pocketbook and claim his booty.” To guide in this navigation the United States Supreme Court has provided a treasure map of sorts, outlining the three duties owed by the vessel owner to workers. These duties are: (1) the “Turnover Duty,” (2) the “Active Control Duty,” and (3) the “Duty to Intervene.” These duties were set out by the Supreme Court in Scindia Steam Nav. Co. v. de los Santos and Howlett v. Birkdale Shipping Co., S.A.. On the face of it the duties seem straightforward. In practice, however, application of facts that stem from the ship environment, to the duties, to find liability is difficult.
The law books are full of cases where inexperienced and untrained lawyers were thrown out of Court after the Court found they had not made the case for their longshoreman clients under the legal duties.
The Turnover Duty
Importantly, a shipowner is entitled to rely on the expertise of a competent stevedoring or repair contractor to avoid exposing longshore and repair workers to unreasonable danger. Under the Scindia case a shipowner’s liability for unsafe conditions in the working areas of the vessel is limited to warning the contractor of hidden dangers of which the shipowner knew or should have known, and to provide working areas that are reasonably safe so that competent stevedores and repair contractors could carry out their operations using reasonable safety.
The so-called Turnover Duty, as defined in the Howlett case, requires a vessel to exercise ordinary care under the circumstances to turn over the ship and its equipment in such a condition that an expert and experienced stevedoring company (mindful of the dangers they should reasonably expect to encounter) will be able to carry on cargo or repair operations with reasonable safety to persons and property. Under this duty, certain dangers that may be hazardous to unskilled workers (other than experienced stevedores and longshoremen) need not be corrected or made safe if expert and experienced stevedores could safely work around them. In other words, a ship that is unsafe in some respects can be turned over to the stevedores and longshoremen without liability as long as the danger is obvious and skilled stevedores can work around it.
Open and Obvious Dangers and Hazards
Some courts have held the shipowner is not liable for open and obvious hazards even if the shipowner knows of them. In some cases, the injured longshoreman must show that an open and obvious hazardous condition was not the kind of hazard that a stevedoring or repair contractor could be expected to cope with safely during cargo operations.
On the other hand, some courts say the turnover duty includes mitigating open and obvious hazards if the ship reasonably knowns that the longshoremen cannot work around the hazard and the longshoreman’s only alternative is to work in the face and presence of the hazard.
Duty to Warn at Turnover
A shipowner has a duty to adequately warn a contractor of hazardous conditions in the ship and its equipment that would likely be encountered by the stevedore and longshoremen and would not be obvious to him. The Howlett court held that the shipowner must warn the stevedore of any known or knowable hazards of the ship or its equipment that (1) would likely be encountered by the stevedore in the course of his cargo operations, that (2) would not necessarily be known by the stevedore, and that (3) would not otherwise be obvious to or anticipated by the stevedore if reasonably competent in his work.
The Howlett Court said, the duty to warn attaches only to latent hazards, defined as hazards that are not known to the stevedore and that would not either be obvious to nor anticipated by a skilled stevedore in the competent performance of his work.
Some courts have also found liability for failure to warn of hazards relative to or in the cargo.
Active Control / Active Operations Duty
The Scindia limitations on a shipowner’s liability do not apply unless the vessel operator has turned over control of the work to the stevedore that resulted in injury to the longshore worker. The ship will remain liable for direct negligence of ship crewmembers in conducting their own operations that injure the longshoreman and negligence in oversight or instruction of contractors and their employees. If the ship’s crew has active involvement and control of ship’s spaces and equipment the vessel can be held liable for negligent acts.
If the ship has been turned over to the stevedore, the active control doctrine does not apply. In some cases, the lines are blurred as the vessel may have officers and crew working in the area being loaded by the stevedores and longshoremen and they may act or have knowledge of hazards.
Duty to Intervene
The ship operator has a duty to intervene in operations conducted by the stevedore, longshoremen and repair contractors if it has actual knowledge that the operations are being conducted in a manner that presents an unreasonable risk of harm to longshoremen or repair workers.
Evidence Issues in Longshore Third-Party Cases
The Need to Call Early
Very often maritime lawyers like Clark & Zedella don’t get a call on an injury or death until cargo operations are finished and the vessel has left port. Many of the vessels are operated by foreign companies and are in and out of port quickly. Unless there is an investigation by a regulatory authority, evidence and be lost, changed or destroyed before it can be gathered. Often the injured longshoreman or repair worker is incapacitated or knocked out and will not have the ability or presence of mind to gather evidence.
In many ports, the taking of photographs is highly restricted or impermissible. Eyewitness testimony is often not reliable and at times longshoremen work alone while lashing or unlashing cargo and there are no witnesses.
This makes proving a case difficult in many injury accidents. If you are a longshoreman and you have been injured it is crucial that you do everything possible to preserve evidence including the identity of witnesses, report the accident, get written accident reports and call a maritime lawyer immediately.
If maritime lawyers like our firm at Clark & Zedella are engaged early they can demand that evidence be protected and not destroyed. In some cases, a demand can be made to the shipowner and operator to allow an early inspection of the vessel including taking of photos and video to document dangerous and hazardous conditions before they change, are repaired or modified.
Kinds of Longshore Third-Party Cases
At Clark & Zedella we have litigated many kinds of longshore third-party cases.