Namely, the Longshoreman and Harbor Workers’ Compensation Act (LHWCA) is a US statute which provides compensation for longshoremen and harbor workers injured on the job.
Generally, it protects 'the rightful expectation of the vessel that the stevedore will perform his task properly without supervision by the ship.'
Once stevedoring operations have begun, the owner has no duty to supervise or inspect the work and must only take care to prevent unreasonable hazards.
A 905(b) action allows the injured longshoreman to file an action against a negligent shipowner. A ship owner owes certain duties, known as the 'Scindia duties', to a a §905(b) worker:
- the turnover duty
- the 'active control duty'
- the 'duty to intervene.'
Now, the Standard Club informs of a case of an important court decision, establishing the open and obvious defense to the turnover duty.
Specifically, in Purvis, a longshoreman was injured when an open manhole cover latch fell on his head as he ascended through the manhole for at least the second time.
The longshoreman alleged that this injury occurred because Maersk violated its Scindia duties when it turned over its ship to the stevedore firm for loading operations in the Port of Savannah.
The longshoreman theorized that Maersk either turned over the ship with a defective hatch cover or turned over the ship with the hatch cover not properly latched, therefore allowing it to fall on the longshoreman causing injuries.
In affirming the District Court’s grant of summary judgment, the Eleventh Circuit found that the longshoreman had failed to establish that the latching mechanism on the ship was in any way defective.
As Maersk’s lawyer, Mr Todd Baiad of Bouhan Falligant, advises, the only evidence submitted by the injured longshoreman in the lower court was an iPhone video taken by longshoreman’s counsel manipulating the hatch cover and latch, resulting in the hatch cover falling on the third manipulation.
The Eleventh Circuit held that the evidence was insufficient to show that there was anything wrong with the locking pin or hatch cover such that an ordinary competent longshoreman could not carry on his cargo operations in a safe and prudent manner.
The appellate panel found that even if Maersk did leave the hatch door in an upright position without it being latched, the injured longshoreman could have remedied that issue when he was on the same level as the door on the lashing.
Even given dark conditions, the Eleventh Circuit still found that a reasonably competent longshoreman could have seen if the hatch was engaged through visual inspection - so an experienced longshoreman could remedy the open and obvious hazard.
As the Standard Club notes, this decision marks the Eleventh Circuit’s clearest embrace of the open and obvious defense to a Section 905(b) turnover duty claim.
