Section 905(b) - Vessel Owners' Negligence, Part I

Section 905(b) - Vessel Owners' Negligence, Part I
Section 5(b) of the Longshore Act, 33 U.S.C. 905(b), allows an injured maritime worker to bring a third party tort lawsuit against a vessel owner for vessel negligence.

Section 5(b) states:
“In the event of injury to a person covered under this Act caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 33 of this Act … If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel.  If such person was employed to provide ship building, repairing, or breaking services and such person’s employer was the owner, owner pro hac vice, agent, operator, or charterer of the vessel, no such action shall be permitted, in whole or in part or directly or indirectly against the injured person’s employer … The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this Act.”

In the case of Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156 (1981), the U.S. Supreme Court articulated the somewhat limited duties owed by a vessel owner under section 5(b).

There are three separate duties imposed.  The first, called the “turnover duty”, relates to the condition of the vessel upon the commencement of stevedoring operations.  The second, called the “active control duty”, provides that a vessel owner must exercise reasonable care to prevent injuries to longshoremen in areas that remain under the active control of the vessel. The third, called the “duty to intervene”, concerns the vessel owner’s obligation with regard to cargo operations in areas under the principal control of the stevedore.

The vessel owner’s duties are narrower than under ordinary tort principles, such as when a maritime worker is suing a negligent third party (but not a vessel) under section 33(a).  The rationale for this is that the primary responsibility for the safety of the longshoremen rests with the stevedore employer.
Turnover duty
It is the duty of the vessel owner to exercise ordinary care under the circumstances to turn over the vessel and its equipment in such condition that an experienced stevedore can carry on stevedoring operations with reasonable safety.  Also included is the duty of the vessel owner to warn the stevedore of latent or hidden dangers which are, or should be, known to the vessel owner.

The vessel owner’s duty to warn is limited because the vessel owner is not obligated to warn of dangers which are open and obvious or those which a competent stevedore should anticipate encountering and be able to deal with safely.  The duty to warn attaches only to latent hazards.

The vessel owner has the right to rely on the stevedore’s competence to safely conduct cargo operations.  Thus, the vessel owner is not required to turn over a vessel free from all hazards.  Rather, the vessel must be free of hazards which prevent an expert and experienced maritime employer from carrying on his operations in a reasonably safe manner.

To summarize, the vessel owner has the turnover duty to provide a reasonably safe vessel and to warn of hidden dangers, but not dangers that are open and obvious.  The vessel owner does not have an obligation to inspect and supervise cargo operations for the benefit of the longshoremen.  That is the stevedore employer’s job.

The turnover duty defines the vessel owner’s obligation before and at the commencement of cargo operations; the “active control duty” comes next.

The “active control duty”
The vessel’s active control duty defines the vessel owner’s obligation after cargo operations have begun, in those areas remaining under the control of the vessel owner.  Liability under this duty depends on whether the vessel owner negligently exposes a longshoreman to hazards – even avoidable, open or obvious ones – in areas controlled by the vessel owner during cargo operations.

It is a question of fact as to whether the vessel owner retains control over a particular area.  For example, courts will consider whether the area in question is within the stevedore’s work area, whether the work area in question has been turned over to the stevedore, and whether the vessel owner controls the methods and details of the stevedore’s work.

The “duty to intervene”
The narrowest of the vessel owner’s duties under section 5(b) is the “duty to intervene”. A vessel owner has the duty to intervene in cargo operations only when it has actual knowledge of a dangerous condition and actual knowledge that the stevedore, in the exercise of poor judgment, has failed to correct the dangerous condition.

To establish a breach of the duty to intervene, an injured worker must show that: 1) the vessel owner had actual knowledge that a condition or operation posed an unreasonable risk to safety, 2) the vessel owner had actual knowledge that it could not rely on the stevedore to protect its employees, and 3) if uncorrected, the condition posed a substantial risk of causing injuries.

The vessel owner only acquires a duty to intervene when the stevedore decides to continue working in the face of a dangerous condition.

The section 5(b) negligence remedy was added to the Longshore Act as part of the 1972 Amendments.  In 1946, the U.S. Supreme Court had (mistakenly) given longshoremen the right to sue a vessel for unseaworthiness under the general maritime law (Seas Shipping v. Sieracki, 328 U.S. 85 (1946)).  The 1972 Amendments corrected this mistake by removing vessel liability to longshore workers under the general maritime law and substituting section 5(b)’s federal maritime tort remedy.

The 1984 Amendments to the Longshore Act changed section 5(b) to protect shipbuilding employers who are also vessel owners.  Workers who provide shipbuilding, repairing, or breaking services cannot sue their vessel owner employers under section 5(b).

There is a “dual capacity” employment situation recognized under section 5(b) that provides a narrow solution to a specific problem that arises when a vessel owner directly employs longshoremen or other maritime workers (other than shipbuilders, ship repairers, and ship breakers).  In this instance, the employee has his right to workers’ compensation benefits from the employer in its capacity as a Longshore Act maritime employer, and he has his right to a negligence remedy against the employer in its capacity as vessel owner.

For “dual capacity” liability for vessel negligence, the negligence must occur as a result of vessel operations.

The section 5(b) negligence remedy is available not only to longshoremen; the standards are the same for any worker covered by the Longshore Act who is injured as a result of vessel negligence.

This post has been a very broad review of the section 5(b) remedy. In the coming weeks, we will expand on this information by reviewing some section 5(b) cases that apply these general principles in actual situations.
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