The Fifth Circuit Restates Three Duties Vessel Owners Owe Longshore Employees

by King, Krebs & Jurgens, PLLC
Contact

[author: James D. Bercaw]

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 stevedoeres 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.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© King, Krebs & Jurgens, PLLC | Attorney Advertising

Written by:

King, Krebs & Jurgens, PLLC
Contact
more
less

King, Krebs & Jurgens, PLLC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.