The court granted Ingram's motion to dismiss the barge washer’s claim in this case because the barge washer was injured by a condition he was hired to fix.
The barge washer filed suit against Ingram claiming he was injured while cleaning caustic soda residue from a barge owned by Ingram. He claimed he sustained chemical burns and slip and fall injuries while inside the barge. The barge washer was employed by T.T. Barge, a barge cleaning company on the Mississippi River. Ingram hired T.T. Barge to clean caustic soda from the barge in question.
Ingram warned that there was caustic soda in the barge before the job started. For example, both Ingram’s order form and T.T. Barge’s job sheet identified the barge’s last cargo as “caustic.” Ingram delivered the barge to T.T. Barge and no Ingram employees remained on the barge or at the facility. The barge had all required paperwork and chemical placards onboard. T.T. Barge also photographed the barge prior to cleaning.
Additionally, the barge washer admitted in his deposition that he knew there was caustic soda residue in the barge before starting the job. Here is an excerpt of his deposition testimony:
A. Yes. I was – we were informed that we had a caustic soda barge that was frozen, that was iced up, and that we were gonna go inside the barge and try to break the ice up inside of it to get it clean.
The barge washer also testified he used a hose to break up the frozen caustic soda before entering the barge.
The barge washer’s claim was covered by the Longshore and Harbor Workers’ Compensation Act (LHWCA). The LHWCA is a federal workers’ compensation law that provides rights and remedies for certain maritime workers like longshoremen or ship repairers. An injured worker covered by the LHWCA may seek workers’ compensation benefits from his/her employer and also sue vessel owners for negligence under certain circumstances. The right of covered persons to sue vessel owners arises exclusively under 33 U.S.C. § 905(b). This is commonly referred to as a 905(b) claim.
A covered maritime worker must overcome certain legal obstacles to successfully pursue a 905(b) claim. Below are the three paths that must be considered:
whether the vessel owner failed to warn on turning over the vessel of hidden defects of which the vessel owner should have known;
whether the injury was caused by hazards under the control of the ship;
whether the vessel owner failed to intervene in the stevedore’s operations when the vessel owner had actual knowledge both of the hazard and that the stevedore, in the exercise of obviously improvident judgment, means to work on in the face of it and therefore cannot be relied upon to remedy.
The above list is commonly referred to as the Scindia duties. See Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156 (1981).
Ingram moved to dismiss the barge washer’s claim because Ingram argued the barge washer could not point to any fact to satisfy any of the Scindia duties. The court agreed and dismissed the barge washer’s claim against Ingram.
The court’s analysis focused on the turn over duty (factor one). The barge washer apparently did not brief any of the other duties so the court declined to address them.
With respect to the turnover duty, the court emphasized that courts have repeatedly confirmed that a vessel owner is not required to warn or repair a harmful condition which causes injury to a person hired to repair the condition. For example, one court previously confirmed that a barge cleaner hired to clean soybeans from the deck of a barge does not have a claim of negligence against the vessel owner for slipping in the soybeans he was hired to clean up.
Based upon the above, the court found that the barge washer did not have a negligence claim against Ingram.
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The case citation for the decision is In the Mater of Ingram Barge Company, LLC, Civil Action No. 20-00313 (M.D.LA August 10, 2022).
A publicly available copy of the decision can be accessed through the following link: