Shipowner Violates Scindia’s “Active Control” Duty; Liable to Longshoreman for Over $1MM in Damages

In a recent personal injury lawsuit, Kiwia v. M/V OSLO BULK 9, a stevedore was awarded $1MM for his injuries under 33 U.S.C. § 905(b) of the Longshore and Harbor Workers’ Compensation Act (LHWCA).

Kiwia v. M/V OSLO BULK 9 – Background

Faustine Kiwia was hired by Coastal Cargo as a longshoreman without any prior experience. He was given classroom training on the day of hire and then received on the job training under more experienced longshoremen.

Only a few days into his employment, he was assigned to work aboard the M/V OSLO BULK 9, unloading cargo in the Port of New Orleans. During unloading operations, it began to rain and cargo operations were suspended. Kiwia was working on a barge alongside the ship and in order to get back to the dock, had to climb a Jacobs ladder on the side of the ship, which was attached to the ship’s hand rail. When Kiwia reached the top of the ladder, he put his right (dominate) hand on the top of the hatch coaming. Without giving any warning to the longshoremen, the ship’s crew began closing the hatch cover. The cover rolled over Kiwia’s hand, severing three fingers.

Kiwia was paid benefits under the LHWCA and sued the shipowner under Section 905(b) of the Act. The LHWCA carrier, represented by Mouledoux, Bland, Legrand & Brackett, intervened in the suit to both assert a direct claim under Burnside and assert a lien under Bloomer.

The Court’s Ruling

The case was tried without a jury before Judge Jane Triche Milazzo. She held that the shipowner breached the active-control duty under Scindia because the crew failed to give a warning to the longshoremen that they were closing the hatch cover, and failed to ensure there were no personnel in the area who could be injured. The Judge found the shipowner was 50% at fault due to the actions of its crew, and the stevedore employer was 50% at fault for not providing sufficient training to Kiwia.

The Court did not place any degree of fault on Kiwia himself. Because of the significant injury to his hand, Kiwia could not return to longshore employment and would need continuing medical treatment. The Judge found Kiwia could return to some other employment earning as much as he had at the time of the accident, so he was not entitled to an award to future lost wages. Past lost wages of $45,908.50 were awarded. Past medical expenses of $80,964.50 were awarded, but she did not award future medical expenses, based on a lack of evidence to support those awards. The Court awarded Kiwia $950,000.00 in general damages.

Judgment was entered in favor of Kiwia for $964,730.45 and in favor of the intervenor, American Longshore Mutual Association, Ltd., in the amount of $112,142.55. The shipowner has appealed the judgment to the U.S. Fifth Circuit.

Kiwia v. M/V OSLO BULK 9, No. 20-96, 2021 U.S. Dist. LEXIS 100077 (E.D. La. May 24, 2021)

Federal Marine Terminals, Inc. v. Burnside Shipping Co., 394 U.S. 404, 89 S.Ct. 1144 (1969)

Bloomer v. Liberty Mutual Insurance Company, 445 U.S. 74, 100 S.Ct. 925 (1980)