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The Fifth Circuit Restates Three Duties Vessel Owners Owe Longshore Employees

Posted in LHWCA, Ports & Cargo Shipping

Under Section 905(b) of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), a vessel owner owes three duties to longshore employees. In October 2012, the Fifth Circuit granted a summary judgment dismissing serious personal injury claims a cargo supervisor filed under LHWCA because the defendants had not breached any of these three duties. In doing so, the Court restated the law applicable to the claims of discharging stevedores based on conditions of the cargo stow, providing a legal primer on the recurring issues concerning the vessel owner’s duties under these circumstances.

In Sobrino-Barrera v. Anderson Shipping Co., No. 11-20826 (5th Cir. Oct. 23, 2012), a cargo supervisor employed by stevedore Gulf Stream Marine was injured during cargo discharge operations from the M/V GRETA. The injury was allegedly caused by the faulty stowage of the cargo of steel pipes. This raised the question of whether the vessel owner breached any of its duties to Sobrino-Barrera, the injured longshore worker.

It is settled that a vessel owner owes longshore employees three duties under LHWCA § 905(b): (1) a duty to turn over the vessel to the stevedore in a reasonably safe condition or to warn the stevedore of any hidden dangers of the vessel or its equipment; (2) a duty of reasonable care to prevent injuries to longshore employees in work areas under the active control of the vessel; and (3) a limited duty to intervene in the stevedore’s operations. The summary judgment evidence on each of the three duties is briefly discussed below.

As an initial matter, the Court concluded that the GRETA’s cargo at the discharge port was an open and obvious condition based on the deposition testimony of Sobrino-Barrera and a fellow employee. Because the “turnover duty” only implicates hidden (non-obvious) defects in the ship and its equipment, no “turnover duty” was owed.

The Court also rejected Sobrino-Barrera’s argument that the ship’s participation in the cargo plan at the load port rendered the cargo within the vessel’s active control at the discharge port. “Involvement in the cargo plan does not constitute active control.”

Lastly, the Court concluded that the vessel interests had no duty to intervene in the cargo discharge operations. The duty to intervene is extremely limited and arises only after the vessel has both “actual knowledge” of a dangerous condition and “actual knowledge” that the stevedore in the exercise of “obviously improvident judgment has failed to correct that dangerous condition.” There was no evidence that the vessel interests knew that the cargo presented a danger to Sobrino-Barrera and his crew. Moreover, Sobrino-Barrera’s deposition testimony indicated that prior to his accident the stevedore had followed its normal and customary procedures in discharging the cargo. Accordingly, there was no duty to intervene on the part of the vessel.