U.S. Fifth Circuit Affirms Decision Finding Violation of “Active Control Duty” under Scindia

On July 28, 2022, the U.S. Fifth Circuit affirmed a finding by the United States District Court for the Eastern District of Louisiana that an ocean-going ship violated the “active control duty” articulated by the U.S. Supreme Court in Scindia Steam Navigation Co. v. de los Santos, 451 U.S. 156 (1981). In Scindia, the Court found that a vessel owner owes three distinct duties to a longshoreman, commonly referred to as the “turnover duty,” the “active control duty,” and the “duty to intervene.” As to the active control duty, the Supreme Court stated:

It is also accepted that the vessel may be liable if it actively involves itself in the cargo operations and negligently injures a longshoreman or if it fails to exercise due care to avoid exposing longshoremen to harm from hazards they may encounter in areas, or from equipment, under the active control of the vessel during the stevedoring operation.

We reported on the District Court’s ruling on July 7, 2021. Following a bench trial, the District Judge found that the vessel’s failure to give a warning that the ship’s crew was about to close the vessel’s hatch covers was the cause of an injury to the longshoreman, whose hand was caught in the cover, resulting in three fingers being amputated.

In a per curium opinion, the Fifth Circuit found no clear error by the District Court in weighing the evidence that the vessel owner breached the “active control” duty by its failure to warn the longshoremen its crew was closing the hatch covers and that the failure to give a warning was the cause of the accident and injury.

The vessel owner also contested the general damages award of $950,000 as being excessive. The Fifth Circuit found there was no basis for finding the award to be excessive under the law.

Kiwia v. Bulkship Management, A.S., No. 21-30353 (5th Cir. July 28, 2022)