905(b) Vessel Owner Negligence- What duties does the vessel
owner owe ship yard workers

AN OVERVIEW - - THE LHWCA APPLIES TO LONGSHOREMEN AND SHIP YARD WORKERS

The LHWCA compensates employees for injuries occurring on navigable waters of the United States, which includes 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. 33 U.S.C.A. § 903(a).

For those employees eligible to receive the benefits under the Act, the LHWCA benefits represent the injured workers' exclusive remedy against the employer. Id. at § 905(a). Meaning, these employees can not sue their employer. There sole remedy against their employer is Longshore Act benefits.

One exception to the exclusive remedy doctrine which applies to ship repair workers is when the employer has a dual capacity. That is, the employer owns and vessel and employs the ship yard workers. In these circumstances the ship yard worker can sue their employer under this dual capacity doctrine.

VESSEL OWNER DUTIES OWED TO SHIP YARD WORKERS IN THE NINTH CIRCUIT

In the Ninth Circuit Court of Appeals (California, Oregon, Washington, Alaska and Hawaii) a ship owner owes to a ship repair worker duties under the LHWCA. These duties were first laid out by the US Supreme Court in 1981. Since then, the Ninth Circuit has fine-tuned these duties. If the vessel owner breaches these duties, then the ship yard worker can receive tort / civil damages. These damages can be much, much generous than Longshore Act workers compensation benefits. Thus, if you are a seriously injured ship yard worker - this is very, very important to you and your family.

A VESSEL OWNER'S DUTY IS DIVIDED INTO SIX CATEGORIES

1. TURNOVER DUTY OF SAFE CONDITIONS.

The duty is breached when the vessel owner fails to turnover a reasonably safe vessel, equipment, and work space so a reasonably competent worker can safely perform his tasks. The vessel must exercise ordinary care under the circumstances to have the ship and its equipment in such condition that an expert and experienced ship repair worker will be able by the exercise of reasonable care to carry on its cargo operations with reasonable safety to persons and property.

Although a shipowner is not required to turn over a vessel free of all hazards, the vessel must be free of hazards that would prevent an expert and experienced ship repair worker from carrying on his operation in a reasonably safe manner. In other words, any obvious hazard must not present an unreasonably dangerous work environment to experienced ship repair worker exercising reasonable care.

The turnover duty, at a minimum, requires a vessel to provide a safe means of access. This includes safe gangways, safe ramps and safe ladders. This includes having uncovered and unguarded hatches.

2. TURNOVER DUTY TO WARN

The duty is breached when the vessel owner fails to warn the ship repair worker of non-obvious hazardous conditions. The vessel must warn the ship repair employer of any hazards on the ship or with respect to its equipment that are known to the vessel or should be known to it in the exercise of reasonable care, that would likely be encountered by the ship repair employees in the course of their ship repair operations and that are not known by the ship repair company and would not be obvious to or anticipated by him if reasonably competent in the performance of their work.

3. ACTIVE INVOLVEMENT DUTY

The duty is breached when the vessel owner actively involves itself in repair work and negligently injures a ship worker or repairman. The vessel may be liable if it actively involves itself in the ship repair operations and negligently injures a ship repair employee.

4. ACTIVE CONTROL DUTY

The duty is breached when the vessel owner fails to exercise due care to avoid exposing ship workers to harm from hazards they may encounter in areas, or from equipment under the active control of the vessel during the work. The vessel may be liable if it fails to exercise due care to avoid exposing ship repair employees to harm from hazards they may encounter in areas, or from equipment, under the active control of the vessel during the ship repair operation.

5. DUTY TO INTERVENE

The duty is breached when the vessel owner fails to intervene and correct a condition posing an unreasonable risk or harm when the vessel owner had actual knowledge of the danger and knows he cannot rely on the ship worker to correct the situation. This duty arises when 1) the vessel is aware of the condition, 2) the vessel should realize the condition presents an unreasonable risk of harm to the ship repair worker, and 3) the vessel knows that the ship repair worker, as a result of an "obviously improvident" judgment, has failed to remedy the situation.

6. DUTY TO SUPERVISE AND INSPECT The duty is breached when the vessel owner fails to discover dangerous conditions that develop within the confines of the ship repairman's work if imposed by contract, positive law, or custom.

BEACH OF THESE DUTIES IS ORDINARILY A JURY QUESTION

The question whether a defendant acted reasonably is ordinarily a question for the trier of fact (i.e., the jury).

BE SURE TO HIRE A SEASONED LHWCA THIRD PARTY LAWYER

LHWCA benefits are very unfair. Because of this, all seriously injured LHWCA workers need to have their case analyzed by a seasoned LHWCA third party lawyer. A third party work injury case is one where you sue someone else other than your employer for your injuries.

One thing is clear. There are very, very few lawyers that have a firm grasp on Longshore Act third-party law. If you are a seriously injured ship yard worker - - be sure that you consult with a lawyer that has experince with third party cases and 905(b) Vessel Owner Negligence cases.

About the Author

William Turley is an attorney in San Diego, California. He is Past President of Consumer Attorneys of San Diego. He teaches lawyers the law. You can learn more about 905(b) Vessel Owner cases and and how to win your third party LHWCA case at http://www.turleylawfirm.com/library/san-diego-longshore-act-lawyer-on-the-lhwca.cfm and Turleylawfirm.com

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William Turley




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