In a recent Longshore and Harbor Workers’ Compensation Act (Longshore Act) case, Brizo LLC v. Carbajal, the United States Court of Appeals for the Eleventh Circuit analyzed and ruled on the seldom invoked recreational vessel exclusion of the Longshore Act, 33 U.S.C. §901 et seq. to hold that the exclusion is inapplicable where state compensation law does not apply.

33 U.S.C. § 902 (3)(F) of the Longshore Act excludes from its coverage “individuals employed to build any recreational vessel under sixty-five feet in length, or individuals employed to repair any recreational vessel, or to dismantle any part of a recreational vessel in connection with the repair of such vessel” but only if such employees are afforded coverage under an applicable state workers’ compensation statute (emphasis added).

Brizo LLC v. Carbajal – Background

While cleaning the hull of a yacht, a commercial diver, Mr. Luis Gorgonio Ixba, was tragically killed when a member of the crew of the vessel, M/V HONEY, a yacht 164 feet in length, engaged the bow thrusters. Luis Gorgonio Ixba, the diver assigned by Eastern Marine, arrived but failed to inform any one on the vessel of his arrival and immediately began his dive. Of particular note, he failed to put up the diving flag, the purpose of which is to indicate to those on the surface that a diver is down.

The captain left the vessel without knowing the diver was under the yacht and left the Chief Mate in charge. The Chief Mate needed to move the vessel closer to the dock to load jet skis. Prior to engaging the bow thrusters, the Chief Mate checked for bubbles but saw none. He then engaged the thruster killing the diver.

The personal representatives filed a wrongful death suit in Florida state court. In response, the vessel owner filed for Limitation of Liability in the Southern District of Florida where Decedent’s personal representatives filed additional claims. Following discovery, the trial court granted summary judgment for the vessel owner on the issue of liability.[1]  The trial judge held that the Decedent was an employee covered by the Longshore Act citing Roach v. M/V Aqua Grace, 857 F.2d 1575 (11th Cir. 1988). As such, the Decedent’s third-party negligence claim is governed exclusively by that act and the limited Scindia duties were applicable rather than the general duty of reasonable care afforded in general maritime tort cases. Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156 (1981). The Trial Court ruled granting the motion for summary judgment; ruling in effect that the vessel owner owed no duty under these circumstances.

The Appeal

On appeal, the court addressed whether the vessel was exempt from the Longshore Act. It was undisputed that Decedent diver was injured on “navigable waters” satisfying situs; and based on prior precedent a commercial diver commissioned to scrape barnacles from the hull of a docked vessel satisfies the status test. Again arguing that the Longshore Act does not apply, Decedent’s personal representatives argued “recreational vessels” are exempt from the Longshore Act, pursuant to 33 U.S.C. § 902 (3)(F). Vessel owner argued the portion of that statute omitted from Decedent’s argument; that the exclusion only applies to employees working on recreational vessels only “if [they] are subject to coverage under a State workers’ compensation law.”

The Court held that the record was devoid of any evidence or argument from Decedent that the claim is covered by state worker’s compensation law. The Court did note however that Decedent’s Employer stated in a sworn interrogatory response that Decedent actually “was a Truly Self-Employed Independent Contractor with no Controlling Employer.” (2021 WL 5029390 at *3) The Court concluded that Florida workers compensation law excludes independent contractors not engaged in the construction industry from its coverage. Accordingly, the Decedent could not be covered by state law. Thus, the recreational vessel exclusion is inapplicable and the Longshore Act is applicable.

The appellate panel also addressed the standard for negligence under 33 U.S.C. § 905(b) which applies to harbor workers repairing vessels either on deck or underwater. The Scindia duties only require the vessel owner to fulfill limited duties:

1. the turnover duty
2. the active control duty, and
3. a duty to intervene.

The Court held that Decedent in failing to inform the vessel or crew of his presence and commencing the work prevented the owner of the vessel from fulfilling the “turnover duty” to prepare the vessel for the work. Thus, the Court found that there can be no further complaint in failure to fulfill the remaining duties where the vessel has not been formally “turned over” to the harbor worker.

Although the facts of this case are tragic with regard to the loss suffered by Mr. Ixba and his family, the Appellate Court agreed with the District Court that the vessel owner was not liable under the circumstances for the harm that befell Mr. Ixba. The Decedent’s failure to act ultimately prevented the vessel’s crew from even having the chance to extend the duties required by law.[2]  Accordingly, summary judgment was affirmed preventing recovery by Dependent’s personal representatives from the vessel owner.

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[1] As part of its reasoning for summary judgment, Judge Rosenberg determined that the Pennsylvania Rule applied. The Pennsylvania in very basic terms establishes that if a party is in violation of a statutory regulation, that party bears the burden of proof of showing that that violation was not the cause of harm. The Decedent violated a Florida statute which requires all divers to “prominently display a divers-down flag in the area in which diving occurs.” (In re Complaint of Brizo, LLC, 437 F. Supp. 3d 1212, 1216 [S.D. Fl. 2020], citing Florida Statute section 327.331) and a federal diving regulation, 29 C.F.R. § 1910.421 governing commercial diving operations. Note that the Pennsylvania Rule originated and typically applies to vessels in cases of allision and collision. Several courts have held that held that the Pennsylvania rule may not apply in Jones Act Cases: Wills v. Amerada Hess Corp., 379 F.3d 32 (2d Cir. 2004); Poulis-Minott v. Smith, 388 F.3d 354 (1^st Cir. 2004). On appeal, the Eleventh Circuit panel affirmed summary judgment but did not address the application of the Pennsylvania Rule.

[2]  The Appellate Court alternatively held that even if the Longshore Act did not apply, that no jury could reasonably conclude under general maritime law that Brizo negligently caused the accident. The Court applied the same reasoning applied to the Scindia duties.