Longshoreman’s Claim Against Vessel Owner

Assume that you own a commercial vessel and decide that it is time to put her in drydock and have work done on the hull. While the work is underway a welder is injured and sues you for his injuries.  As vessel owner, what duties do you owe the welder? What defenses do you have? These were the issues that the court was recently called upon to sort out in a case filed in the federal court in New Orleans.

In Blanchard v. Weeks Marine, Inc., plaintiff was injured while working on a barge at Weeks shipyard in Bourg, La.  Plaintiff, a welder, was working alone and removing wasted steel from the stern of the barge.  He pulled on a steel plate that suddenly and unexpectedly “fell into his hands” injuring him.  As welder in a shipyard working on vessels, plaintiff was considered a longshoreman eligible for Longshore and Harbor Worker’s Compensation Act benefits from his employer.   In addition to providing the injured longshoreman the right to make a claim for benefits from his employer, the LHWCA also provides the injured longshoreman the right to bring a lawsuit, pursuant to the general maritime law, against the owner of a vessel for acts of negligence. Weeks moved to dismiss the claim for the reason that it did not violate any duty it owed Blanchard. The Court granted Weeks’ Motion and provided the following analysis.

Section 905(b) makes clear that the vessel owner may not be sued when the injury was caused by the negligence of those performing stevedoring services.  The primary responsibility for the longshoremen’s safety rests with the stevedore.  In 1981 the Supreme Court in the Scindia case recognized limited circumstances where a vessel owner may be liable to a longshoreman injured during stevedoring operations:

1) if the vessel owner fails to ward on turning over the ship of hidden defects of which he should have known. (turnover duty)

2) for injury caused by hazards under the control of the ship. (active control duty)

3) if the vessel owner fails to intervene in the stevedore’s operations when he has actual knowledge of both 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.  (duty to intervene)

The turnover duty requires a vessel owner to exercise due care under the circumstances to have the vessel and its equipment in such a condition that a worker can perform his duties with reasonable safety.  A vessel owner may be held liable for a breach of the turnover duty if the vessel owner fails to warn on turning over the ship of hidden defects of which it knew or should have known.  Here the Court made short work of this issue.  It found that the ship owner cannot be held liable merely because a condition of the ship that requires repair or inspection injures the person hired to inspect or repair that condition.  The ship owner has no duty to remove the hazards that are the intended object of the repairs or that are otherwise open and obvious.  The Court found that the steel plate that fell onto plaintiff was part of the agreed scope of repair and that Weeks had not violated its “turnover duty”.   To hold otherwise “would be manifestly unfair because it would hold Weeks responsible for risks that were inherent in carrying out the contract”.

The Court also found that Weeks had not violated the “active control duty”.  The active control duty makes a vessel owner liable for injuries that arise out of its attempts to “actively involve itself in the stevedoring operations”.  Blanchard argued that because Weeks’ supervisors were regularly involved in inspecting and reviewing the progress of repairs that they exercised sufficient control over the work area and thus were responsible.  The Court stated that to determine whether a vessel owner retains active control over the contractor’s work it needs to consider whether the area in question is within the contractor’s work area, whether the work area has been turned over to the contractor and whether the vessel owner controls the methods and operative details of the stevedore’s work.  The Court found that the fact that Weeks’ supervisors would check the progress of the work and designate additional repairs does not establish that they retained control of that portion of the barge.

In rejecting Blanchard’s claim that Weeks failed in its duty to intervene, the Court found no evidence that Weeks had knowledge of a hazard that posed an unreasonable risk of harm or that it could not rely upon Blanchard’s employer to protect him.  The Court found that the entire situation was controlled by Blanchard’s employer and to find a violation of the duty to intervene under these circumstances would essentially require Weeks be a guarantor of the safety of its contractor’s employees.   Thus Weeks was exonerated.

This is not a landmark decision. However it provides a comprehensive, step by step analysis of the vessel owner’s responsibilities to those non-seamen workers who may be injured while aboard.  For this reason it is worthy of review.

Blanchard v. Weeks Marine, Inc., No. 13-5089, slip op. (E.D. La. Apr. 11, 2014).