LONGSHORE WORKERS

The Longshore Harbor and Workers Compensation Act ("LHWCA") provides benefits much like a workers compensation statute for persons injured working in a maritime context, not necessarily on a vessel.  LHWCA benefits for injury are specifically defined and the procedure for obtaining benefits is much like a State Workers Compensation statute.
 
There are circumstances in longshore situations where an injured person may bring a claim for benefits beyond longshore benefits, and including general damages for pain and suffering and disability.  There are circumstances where a claim may be brought directly against a vessel owner, or employer and vessel owner in the case of employer's ownership of the vessel.  We do represent injured persons for this type of injury, so-called "third party" claims, and we can assist injured longshore workers in finding competent longshore legal counsel for the longshore portion of a claim.
 
The three circumstances under which an injured longshore worker may bring a third party claim are identified under §905(b) of the LHWCA, and in the case of Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 167; 1981 AMC 601, 609-610 (1981).  If a vessel owner and/or employer/vessel owner breaches any one of three duties, a third party claim may be brought in appropriate circumstances.  These duties include:  (1) the "turnover" duty; (2) the "active involvement" duty: and (3) the duty to "intervene." 
 
The turnover duty requires a vessel to exercise ordinary care under the circumstances to turn over the ship and its equipment, as well as appliances of the ship, in such a condition that an expert and experienced stevedoring contractor, mindful of the dangers arising from the hazards of ship's service, would be able to, by the exercise of ordinary care, carry on cargo operations with reasonable safety to persons and property.  A corollary of the turnover duty requires the vessel to warn stevedores of any hazards on the ship or with respect to the ship's equipment, so long as the hazards are known to the vessel, or should be known, in the exercise of reasonable care, and would likely be encountered by a stevedore, and would not be obvious to or anticipated by the worker.
 
The "active involvement" duty arises in situations where the vessel / vessel owner / employer is actively involved in cargo operations and negligently injures a longshoreman, or fails to exercise the due care to avoid exposing longshoremen to harm from hazards they may encounter in specific areas on the vessel or from equipment under the active control during the stevedoring operations.
 
Third, a duty to "intervene" may arise in certain limited circumstances where there is an apparent or known likelihood of injury, and the owner / employer is in a position to intervene to prevent injury.
 
Third party actions may provide substantial additional benefits to longshoremen beyond the amounts of money paid under the LHWCA, which generally pays set, limited amounts for wage loss and partial temporary or permanent disability.  We analyze longshore cases to see if they are appropriate for third party actions and, if so, consider bringing a third party action under a contingency fee agreement.  At the same time, we will work with longshore legal counsel and coordinate the third party claim with the pursuit of longshore benefits.  In most circumstances, longshore benefits paid will be credited against the amount recoverable on the third party claim. 
 

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