September 30, 2015 Articles

Vessel Owner Liability and the Limitation of Liability Act

To what extent is an owner liable in a negligent longshoreman's death?

By Philip Brickman

The U.S. District Court for the Southern District of Florida recently rendered a memorandum opinion concerning a claim under 33 U.S.C. § 905(b) of the Longshoremen and Harbor Workers’ Compensation Act (LHWC) that was submitted in an ongoing limitation proceeding that had been filed under the Limitation of Liability Act, 46 U.S.C. §§30501, et seq, by Seaboard Spirit Limited, owner of the M/V Seaboard Spirit, Seaboard Marine, LTD., operator and owner pro hac vice of the Seaboard Spirit, and Seaboard Ship Management, Inc., the vessel manager of the Seaboard Spirit (hereinafter collectively referred to as “petitioners” or “vessel owners”). On or about May 4, 2011, the plaintiff, an experienced longshoreman, was acting as the striker for a gang of longshoremen hired by a stevedoring company to offload the Seaboard Spirit’s cargo. The striker is in charge of safety during unloading operations. His responsibilities include checking the cargo to ensure that all of the securing gear has been removed and subsequently giving the order to move forward with the offloading. The striker also acts as the eyes and ears for the longshoremen during discharge operations. In this case, the plaintiff and other longshoremen were unloading a cargo of containers from the Seaboard Spirit. During offloading operations, the plaintiff was pinned between a cargo container and the ship’s bulkhead when a container shifted, causing the plaintiff’s death.

The plaintiff alleges that the cargo shifting and resulting loss was due to the petitioners’ breach of the turnover duty by turning over a vessel with defective and overly tensioned lashing chains, without wheel shocks and with the cargo stowed improperly on a ramp. The petitioners contended that the plaintiff’s death was not caused by or contributed to by any fault, to design, neglect or want of care on the part of the petitioner/vessel owner and/or the vessel. Further, the incident and resulting loss was occasioned and occurred without the privity or knowledge, which is required to obtain a judgment against a vessel owner in limitation.

The court reviewed the evidence, including testimony of four fact witnesses, expert witnesses, and video of the incident itself. The court noted that the incident occurred while the plaintiff was involved in discharging one of the cargo containers at the time he was killed. The court ultimately found that the proximate cause of the plaintiff’s death was that he positioned himself in a pinch point when giving his fellow longshoremen the hand signal to proceed with moving the container. Even his fellow longshoremen determined that his position was both unsafe and inexplicable for those cargo operations. Expert testimony also provided that the plaintiff could, and should, have positioned himself in a safer location during the cargo move.

The court explained that the vessel owners owed three duties to the longshoremen that work on the ships pursuant to the case. Scindia Steam Navigation Co., Ltd. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614 (1981). The first duty, which is also called the turnover duty, relates to the condition of the ship upon the commencement of stevedoring operations. It is also known as the “turnover duty.” The second duty is applicable in situations where stevedoring operations have begun and provides that a shipowner must exercise reasonable care to prevent injuries to longshoremen in areas that remain under active control of the vessel. The third duty, called the duty to intervene, concerns the vessel’s obligation with regard to cargo operations in areas under the principal control of the independent stevedore.

Because the court had previously granted summary judgment in favor of the petitioners as to the claimant’s allegations that petitioners violated the active control duty and the duty to intervene, the plaintiff’s only avenue for liability against the petitioners could only be on the grounds that they had breached the turnover duty. However, the court noted that the turnover duty only attaches to latent hazards, which are defined as hazards that are not known to the stevedore and that would be neither obvious to nor anticipated by a skilled stevedore in the competent performance of his work. Consequently, a vessel owner has a duty to warn a stevedore of any hazards on the ship, or with respect to its equipment, that are not known by the stevedore and would not be obvious to or anticipated by him if reasonably competent in the performance of his work. There is an exception to this duty is known as the “open and obvious” exception. This applies to hazards that are, or should be, open and obvious to the stevedore if reasonably competent in the performance of his work.

Here, the court held that the petitioners did not breach their turnover duty to the plaintiff because the proximate cause of the plaintiff’s death was his own decision to stand in the wrong place, and known to be dangerous, during cargo operations. There were no latent defects with the cargo stow or the cargo area that gave rise to a breach of the vessel owner’s turnover duty. Because the plaintiff could not prove negligence on the part of the vessel or the petitioners, the court did not need to address the issue of privity or knowledge with regard to the incident. As such, final judgment was rendered in favor of the petitioners’ and dismissed the plaintiff’s claim.

The Seaboard Spirit case provides a well written and thorough application of the turnover duty set out in the Scindia Steam case in connection with a pending limitation of liability action. It also demonstrates that stevedores are not without responsibility for their own actions when discharging cargo from a vessel.

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