Fifth Circuit Addresses Both Vessel Owner and Time Charterer Liability Under Section 905(b)

In Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156 (1981), the Supreme Court defined a vessel’s duty to longshoremen, holding that the vessel owner must provide work space, equipment, and tools in a condition that allows a stevedore, acting with reasonable care, to carry on his operations with reasonable safety.  The stevedore must be warned of hidden dangers that the owner knows or should know about in the exercise of reasonable care, but the owner does not have to monitor the stevedoring operations for dangerous conditions that develop during the work relationship unless the vessel owner becomes aware of the danger.  Courts have outlined three instances where vessel owner liability may be established in favor of the longshoreman: (1) if the vessel owner fails to warn on turning over the ship of hidden defects of which he should have known; (2) for injury caused by hazards under the control of the ship; and (3) if the vessel owner fails to intervene in the stevedore’s operations when he has 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 on to remedy it.  E.g., Greenwood v. Societe Francaise De, 111 F.3d 1239, 1245 (5th Cir. 1997).

An individual or entity operating as a time charterer can also be subject to liability to a longshoreman.  See, e.g., Kerr-McGee v. Ma-Ju Marine Servs., Inc., 830 F.2d 1332, 1338-39, 1343 (5th Cir. 1987).  A time charter’s liability differs from a vessel owner’s liability in that the charterer is liable only for negligence in its time-charterer capacity.  Courts must look to the relationship between the time charterer and the vessel, which is generally determined by the charter agreement with the vessel.  Apart from the charter agreement, the time charterer will be liable for its responsibilities in the sphere of control over the commercial activities rather than the condition of the vessel.

In a recent unpublished case, the Fifth Circuit was called upon to determine whether a district court’s grant of summary judgment against an injured longshoreman was appropriate.  In Hudson v. Schlumberger Tech. Corp., No. 11-30076, 2011 WL 6089714 (5th Cir. Dec. 6, 2011) (unpublished), Plaintiff was injured as he was spooling seismic lines when he allegedly tripped in an uncovered “pad-eye” hole, injuring his knee.  He admitted that he knew that some of the pad-eyes were uncovered, but he could not identify the uncovered holes because of poor lighting and a film of sea water covering the deck.  Plaintiff filed suit pursuant to Section 905(b) of the Longshore and Harbor Workers’ Compensation Act against his employer, Schlumberger Technology Corporation (“STC”), the vessel owner, Alpha Marine Services, Inc. (“Alpha”), and its time charterer, BP Exploration and Production, Inc. (“BP”).

The Fifth Circuit determined that, with respect to Alpha, Scindia applied, rejecting Plaintiff’s argument that he was owed a duty of exercising reasonable care under the circumstances.  See Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625 (1959).  Under the Scindia analysis, Claimant could not prove any of the three instances where liability would attach to the vessel owner.  Alpha did not fail to warn Plaintiff about any hidden defects.  Plaintiff conceded that Alpha pointed out the pad-eye problem.  As for the second instance, Alpha did not have control of the area in which Plaintiff was working at the time of the injury.  Finally, Plaintiff could not establish that Alpha knew that he was exercising obviously improvident judgment by performing his work in lieu of the pad-eye issue; thus, Plaintiff could not satisfy the third instance of vessel owner liability.

Plaintiff could not prove time charterer negligence either.  The time charter agreement provided that the vessel owner would maintain superintendence over the day-to-day problems; would maintain control and command of the vessel; and shall be responsible for safe operation and navigation of the vessel.  Because Plaintiff could not prove any violation on the parts of the vessel owner or the time charterer, the Fifth Circuit affirmed the district court’s grant of summary judgment.

Hudson v. Schlumberger Tech. Corp., No. 11-30076, 2011 WL 6089714 (5th Cir. Dec. 6, 2011) (unpublished).