Claims Guides A vessel owner’s guide to claims under The Longshore & Harbor Workers’ Compensation Act

This Claims Guide will focus on the basics of the law behind US stevedore injury claims and provide some guidance on avoidance and immediate response to those claims as and when they arise. Stevedore injuries in US are covered under the Longshore & Harbor Workers’ Compensation Act, (the “Act” or the “LHWCA”).

As any shipowner who calls to ports Who does the act apply to? regularly in the United States knows, The Act applies to stevedores loading one of the largest exposures faced in and unloading the vessel, including the United States is for personal injury terminal operators, lashers, claims. One primary category of such and those longshoremen working claims is those brought by stevedores on the dock assisting in the loading injured aboard vessels. and unloading process. This includes The LHWCA is a Workers’ terminal employees driving containers Compensation Statute providing in a container . compensation to injured longshoremen, stevedores and harbor Who is not covered by the act? workers for injuries they suffer in the chandlers, Government officials, course of their employment. Although including US Coast Guard, US the LHWCA provides compensation Customs and Border Patrol Officers, benefits paid by the injured worker’s ship’s agents, and other temporary employer for accidents arising during most Section 905(b)claims under the visitors to the vessel are not covered the course of employment, potentially Act are brought against shipowners by the LHWCA. As a good rule of shipowners also face exposure – are commonly termed the “Scindia thumb, anyone who is involved in the under the LHWCA for suits brought Duties”. This stems from the case of traditional longshoring or stevedoring by injured stevedores for accidents Scindia Steam Navigation v. De Los operations, such as loading and suffered aboard a vessel. The Santos,(“Scindia”), in which the United unloading , containers, and damages component to these suits States Supreme Court described three lashing containers, will be covered. includes not only past and future lost general duties which a shipowner owes wages (to the extent applicable) but to a longshoreman working aboard also damages for pain and suffering What are the parameters the shipowner’s vessel: arising from the accident. of liability? Shipowners face exposure to claims under Section 905(b) of the Act, which provides that vessel owners are liable to “persons covered under this Act [for injuries] caused by the negligence of a vessel…” The obligations of a shipowner towards longshoremen and stevedores – and in relation to which Claims Guides

(a) The Turnover Duty (b) The Active Control Duty If the shipowner is aware of the defective condition, there is a duty to Firstly, the shipowner must use Secondly, once the employer takes intervene when “it should know that reasonable care to turn over the vessel over, the shipowner must exercise the stevedore would not or could not to the employer in such condition that reasonable care to prevent injuries adequately remedy the dangerous the expert and experienced employer to longshoremen in areas that condition.” The intervention duty is able, by the exercise of reasonable remain under the active control of requires the ship to take affirmative care, to carry on its operations with the vessel. The shipowner may be steps to rectify hazardous conditions reasonable safety to persons and liable to a stevedore under the active even though they did not exist at property. The shipowner must also control duty only when the vessel the point of “turnover,” at least warn the employer of any hazards substantially controlled or was in where the ship has actual knowledge that should be known to the vessel charge of (i) the area in which the and the condition is not obvious. but are not open and obvious to the hazard existed, (ii) the equipment Accordingly, in order to trigger the stevedore. The shipowner has no which caused the injury, or (iii) the duty to intervene, the shipowner must general duty by way of supervision specific activities the stevedore have gained actual knowledge post- or inspection to exercise reasonable undertook. Cases involving the turnover that the stevedore was not care to discover dangerous conditions active control duty usually deal with exercising reasonable care to protect that develop during the course of situations where the vessel crew is its employees. cargo operations that are assigned assisting in cargo operations, whether to the stevedore. Consequently, by use of vessel equipment or by use Thus, when a stevedore was injured the shipowner is not liable to the of vessel personnel. In this regard, when he used cargo nets, instead of longshoremen for injuries caused by ship’s equipment, if utilised in cargo ropes, to discharge cartons of cocoa dangers unknown to the shipowner operations, must be free from defect butter, his suit was dismissed. The and which he had no duty to discover and in good working order. Where plaintiff argued that the shipowner for himself. the vessel’s crew is instructing the should have known that this method stevedore, it must do so in a safe was unsafe and it should have Most LHWCA cases brought against and prudent manner. intervened after observing this vessel owners involve the turnover clearly imprudent method of duty. However, many of the conditions (c) Duty to Intervene discharge. The court disagreed, which could cause these injuries Thirdly, if the vessel has knowledge stating that a shipowner merely needs are legally deemed the fault of the of the danger and should anticipate to keep his ship and equipment stevedore, and not the shipowner. For that the employer will not, or cannot, in a safe condition, not to interfere example, the lighting on a ship is not a correct the danger, then the vessel in normal cargo operations. hidden defect as a matter of law. The must intervene and eliminate or responsibility for illuminating the work neutralize the hazard. The duty to area falls on the stevedore rather than intervene “concerns the vessel’s the shipowner, because it is subject to obligations with regard to operations separate federal regulation. in areas under the principal control of the independent stevedore.” The shipowner has a duty to intervene to protect the longshoreman if “the stevedore’s judgment was so obviously improvident that the owner, if it knew of the defect and that the stevedore was continuing to use it, should have realized the defect presented an unreasonable risk of harm. ”The duty to intervene applies“ only when the shipowner has actual knowledge both of the dangerous condition and of the stevedore’s unreasonable conduct in dealing with the dangerous condition.” Claims Guides

Case law examples of Scindia Duties A longshoreman that fell and A missing ladder rung is an open sued a vessel for negligence after and obvious condition. The plaintiff A court held there was no attempting to walk across a board longshoreman missed the lower violation of the turnover duty to made of dunnage in a cargo hold had rung of a ladder, falling and injuring a longshoreman who fell through his lawsuit dismissed. The court held himself. The court dismissed a darkened open hatch while that the ship had no duty to warn plaintiff’s argument that the poor returning there to retrieve keys two about an obvious hazard in the work lighting conditions created a “hidden hours after cargo operations had area that a competent longshoreman defect”, noting that the plaintiff ceased, because the longshoreman would have been expected to could have equipped themselves retained responsibility as to lighting discover while performing his duties. with a torch, thus adequately and because he should have had Accordingly, the presence of the addressing what was an “open a flashlight dunnage, which was often used and obvious” condition. The court A shipowner was not liable to to fill empty spaces in cargo-holds, further ruled that the open hatch a stevedore who slipped and fell was an “open and obvious” hazard, was rendered a “hidden defect” only while loading cargo aboard a ship in one that met the exception for the because the plaintiff proceeded to a hold. The oil spillage which caused purposes of dismissing the claim work in lighting conditions so poor the fall was held to be an open and Open gratings on walkways are that he was unable to see the ladder obvious condition and the shipowner usually “open and obvious”. Thus, he was climbing was absolved from liability, as he a shipowner did not breach any could have reasonably relied on the duty of care under Scindia when an stevedore to either clean the spillage employee of a stevedore was injured up or ensure others would do so in a fall through an open grating before continuing in operations. in a catwalk in a darkened area of Further, the stevedores themselves the ship. The gap in the grating, were required to keep a proper according to the court, lookout to notice any open was an open and obvious condition and obvious conditions that an experienced longshoreman could have easily corrected by closing the cover Claims Guides

Can the employer be counted Conclusion on to contribute? Scindia provides shipowners with a No. By statute, the employer is not roadmap to both take the appropriate liable to the vessel for such damages, actions when arriving in the United either directly or indirectly, and any States to avoid accidents and agreements or warranties to the defend claims should they arise. contrary are considered void. If the Familiarisation with the three Scindia stevedore was employed by the vessel duties is therefore critical. It is to provide stevedoring services, recommended that if a stevedoring no action by Owners against the injury occurs on a Member’s vessel stevedore shall be permitted, even if in the United States, they should: the injury was caused by the negligence a) Immediately inform the Club, of persons engaged in providing either directly or via the local stevedoring services to the vessel. correspondent; However, it is important to note that Personal injury litigation in the b) Immediately preserve any offending the injured worker’s employer generally United States differs from almost equipment or material; pays for the worker’s medical costs everywhere else in the world. There is and two thirds of the worker’s average c) Conduct an investigation of the area no statutory limit to an award for pain weekly wage in the first instance. The in which the injury occurred to see and suffering and these awards are employer will therefore possess a if any of the conditions which usually left up to sympathetic juries for these amounts, which it will assert may have caused the accident to decide. Therefore, diligence must against any recovery made by the were “open and obvious”; be used to ensure that vessels arriving worker against the shipowner. This lien d) Conduct interviews of all crew as in the United States comply with cannot be contested, although most advised by the Club or its advisors; the requirements of Scindia and to employers are willing to negotiate. The undertake all necessary investigations presence of this lien must consequently e) Take and preserve any photographs of any stevedoring accidents be accounted for when evaluating these and other evidence at the scene immediately after they occur. cases and certainly when attempting to of the accident This Guide was prepared by John reach an amicable resolution of them. Ensuring that all documentation and Karpousis of US attorneys Freehill Every effort should therefore be made physical evidence is preserved with Hogan & Mahar and to whom to keep the employer advised respect to any alleged condition is the Managers are most grateful. as the claim progresses. critical with respect to United States litigation. Finally, maintaining close communication with the stevedoring company could be critical to monitor the status of any injured stevedore.

The West of England Ship Owners Mutual Insurance Association (Luxembourg)

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