Longshoreman is Injured. Who is Responsible?

Last month the First Judicial District Court of Appeal for Illinois reached its opinion in Ballard v. American Commercial Lines, Inc., et al.  The case is of interest, not because it arose out of an unusual set of circumstances, but because its circumstances are not unusual.  Ballard was injured while involved in work activities of the type that occur every day in every port in our country.  The case is of interest because it provides us with an understanding of the rights of the injured dock worker and the potential liabilities of dock owners.

Ballard was employed by R&G Maintenance.  One of his duties was to periodically inspect the hulls and decks of barges for cracks or holes, then patch and weld them as needed.  Ballard was injured while repairing one of nine barges moored at Louisiana Dock Company’s dock.  He was welding a crack on the hull of a barge while lying on his stomach with his right foot hanging over the stern of the barge.  A towboat owned by Louisiana Dock Company had moved an adjacent barge from the dock, leaving a gap between the barges.  The remaining barges then shifted together, crushing Ballard’s foot.  Ballard sued the owner of the barge, ACBL; the owner of the towboat, Louisiana Dock; and Louisiana Dock in its capacity as dock owner.

Ballard sued, claiming the defendants were negligent under Illinois common law and under the Longshore and Harbor Workers Act (“the Act”).

Ballard alleged the tugboat defendants were negligent for failure to properly secure the barges when the leaving lines were removed, for failing to sound the loudhailer on the towboat to warn persons repairing the barges that the towboat was about to perform a maneuver which might agitate the surface of the water, causing movement of the barges under repair; and for failure to properly secure a moored barge.

Ballard alleged defendants ACL, ACBL and LDC were negligent for, 1) failing to publish and implement safety guidelines for its employees and for ship repair workers, 2) failing to furnish leaving lines of adequate length and in sufficient numbers of separate lines, 3) failing to furnish and install permanent wooden or steel fenders on the south shoring wall of the LDC dock, 4) failing to furnish fenders (bumpers) to be attached to the bows of barges moored at the LDC dock, 5) failing to furnish “deadheads” at adequate intervals to prevent the bows and sterns of barges from coming in contact with one another, 6) failing to furnish “Jacob’s ladders” and securement devices for such ladders at the LDC dock for use by ship repair workers, 7) failing to furnish spacers to be hung between the barges, 8) failing to provide direct supervision of ship repair workers, 9) failing to assess potential dangerous work conditions at the LDC dock, and 10) failure to correct potential dangerous work conditions at the LDC dock.

Ballard testified that he had worked on barges at the LDC dock thirty or forty times.  He testified that his employer trained him to weld cracks, but provided no safety training other than to be careful.  The owner of R&G testified that the defendants did not supervise Ballard’s work.  Other R&G employees testified that it was R&G’s responsibility to inspect the barges, that there were always towboats in motion near the dock stirring up the water causing the barges to move, that the barges always move and that they check the moorings before working on the barges.  There was no unusual activity on the day in question; nothing was happening that was out of the ordinary.

The manager of LDC testified that the towboat crew checks the moorings and that the mooring lines purposely have some slack in order to allow for natural movement of the barge and to not pop the lines.  He also testified that LDC does not supervise contractors like R&G, and no LDC employees were present on the day in question.

Ballard’s expert witness, a retired U.S. Coast Guard Officer, testified that he was not aware of any regulation, rule, or industry standard which imposes a duty on dock owners to monitor and adjust lines for the safety and protection of employees of independent repair contractors like R&G.  He also testified that if Ballard had not hung his foot over the side of the barge, the accident would never have occurred.

The defendants filed motions for summary judgment, arguing that they owed Ballard no duty of care under the Act or the general maritime law.  The trial court granted the motions, stating that Ballard had failed to identify the defendants’ duty under the Act or general maritime law to supervise him or the regular work being performed.  Continuing, the court stated that R&G was an independent contractor and was responsible for supervising the plaintiff.  The plaintiff in this case has not pointed to any duty that the defendants breached in this case and fail to show that the defendants knew, or should have known, that plaintiff was engaged in an “unsafe practice.”  The Court also found that Ballard’s accident was caused by his own negligence.

Interestingly, Ballard amended his Complaint and dropped his claims under the Act and chose to bring his claim against the towboat under the general maritime law.  The trial court found that any claims that Ballard had against any vessel, not just the barge on which he was working when injured, had to be brought pursuant to the Act.  Because he had voluntarily relinquished all claims under the Act, the trial court found that it had no jurisdiction over the towboat and dismissed all claims against it.

The Court of Appeal affirmed the lower court’s decision.  It noted that the elements of negligence under general maritime law are essentially the same as land based negligence under the common law.  To state a claim for relief under general maritime law, the plaintiff must demonstrate that there was a duty owed by the defendant to the plaintiff, breach of that duty, injury sustained by the plaintiff, and a causal connection between the defendant’s conduct and the plaintiff’s injury.

The Court ruled that Ballard presented no evidence the LDC had a duty to moor the barges or monitor mooring lines in a manner to avoid them from bumping during repair operations, and that none of the cases cited by Ballard establish that LDC owed Ballard a duty to inspect the moorings to prevent barges from bumping into one another during repair operations.

Thus, Ballard’s case was dismissed.  It should be noted that Ballard’s decision to dismiss his claims against the vessels under the Act and substitute a claim against them under the general maritime law was an unwise strategy.  The Court of Appeal ruled that as a longshoreman, Ballard’s only permissible claim against any vessel was under the Act, and that he had no valid cause of action against the vessels under the general maritime law.