Longshoremen Injuries

A LONGSHOREMAN as defined under U.S. federal law, is a person engaged in maritime employment, specifically in longshoring operations. This includes any individual who spends at least some of their time in the loading, unloading, moving, or handling of cargo on piers or ships. The definition encompasses workers who perform tasks traditionally associated with longshoremen, such as moving cargo directly from ships to land transportation or vice versa.

A maritime worker who does not qualify as a Jones Act seaman and/or fits within the definition listed above is likely covered by the Longshore and Harbor Workers’ Compensation Act (LHWCA). A LHWCA covered maritime worker injured on a vessel while at work can: (1) file a claim for federal workers’ compensation benefits from his or her employer, and (2) file a negligence lawsuit against the operator of the vessel on which he or she was working.

A maritime worker is either a seaman covered by the Jones Act or a nonseaman covered by the LHWCA. You can’t be both. Most of the time it’s easy to determine whether a maritime worker is a seaman or nonseaman. For example, a deckhand on a towboat is a seaman and a longshoreman transferring cargo to and from a ship is covered by the LHWCA. Sometimes, however, classifying a maritime worker can be a complicated question of fact and hotly contested in maritime cases. This complicated scenario often occurs when a worker is both working on a vessel and transferring cargo to and from a vessel. What factors to consider when making this classification will be discussed in a future article.

LHWCA Compensation

When a LHWCA maritime worker is injured within the course and scope of employment, he/she is entitled to federal workers’ compensation from his/her employer under the LHWCA.

The LHWCA is similar to state workers’ compensation programs except that the LHWCA tends to be more financially beneficial for workers. Further, the U.S. Department of Labor administers the claims process for LHWCA workers’ compensation claims whereas a state handles its own workers’ compensation program.

Section 905(b) Negligence Claim Against Vessel Owner

If a maritime worker is covered by the LHWCA at the time of his/her injury, then he/she may also have a Section 905(b) negligence claim against the owner or operator of the vessel he/she was working on or for. Unlike injured seamen, LHWCA workers do not have unseaworthiness claims against vessel owners. Negligence under Section 905(b) is the only available claim against a vessel owner.

A LHWCA Section 905(b) negligence claim is different from typical negligence claims. Specifically, a LHWCA covered maritime worker pursuing a negligence claim against a vessel owner must establish the vessel owner breached one of three unique duties applicable to vessel owners under the LHWCA: (1) the turnover duty, (2) the duty to exercise reasonable care in the areas of the ship under the active control of the vessel owner, and (3) the duty to intervene.

These three duties are discussed below.

1. The turnover duty

A vessel owner must exercise reasonable care before a maritime worker or the maritime worker’s employer begins the operation on the vessel. The vessel owner must use reasonable care to have the vessel and its equipment in such condition that an expert and experienced maritime employer / maritime worker would be able to carry on its work on the vessel with reasonable safety to persons and property. This means that the vessel owner must warn the maritime worker or his/her employer of a hazard on the ship, or a hazard with respect to the vessel’s equipment, if:

the vessel owner knew about the hazard or should have discovered it in the exercise of reasonable care, and
the hazard was one likely to be encountered by the maritime worker or his/her employer in the course of the operations in connection with the vessel, and
the hazard was not known to the maritime worker or his/her employer and would not be obvious to or anticipated by a reasonably competent maritime worker/employer. Even if the hazard was one that the maritime worker’s employer knew about or that would be anticipated or obvious to the employer, the vessel owner must exercise reasonable care to avoid the harm to the maritime worker if the vessel owner knew or should have known the maritime worker’s employer would not or could not correct the hazard and the maritime worker could not or would not avoid it.

2. Duty to exercise reasonable care in the areas of the ship under the active control of the vessel owner

The standard of care a vessel owner owes to a maritime worker after his/her employer began its operations on the vessel is different from the standard of care governing the vessel owner’s actions before the employer began its vessel operations.

If, after the maritime worker’s employer began operations on the vessel, the vessel owner actively involved itself in those operations, it is liable if it failed to exercise reasonable care in doing so, and if such failure was the cause of the maritime worker’s injuries.

If, after the maritime worker’s employer began operations on the vessel, the vessel owner maintained control over equipment or over an area of the vessel on which the maritime worker could reasonably have been expected to go in performing his/her duties, the vessel owner must use reasonable care to avoid exposing the maritime worker to harm from the hazards he/she reasonably could have been expected to encounter from such equipment or in such area.

3. Duty to intervene

If, after the maritime worker’s employer began its operations on the vessel, the vessel owner learned than an apparently dangerous condition existed or has developed in the course of those operations, the vessel owner must use reasonable care to intervene to protect the maritime worker against injury from that condition if the maritime worker’s employer’s judgment in continuing to work in the face of such a condition was so obviously improvident that the vessel owner should have known that the condition created an unreasonable risk of harm to the maritime worker.