Friday, February 23, 2018

In a recent issue of WorkBoat, Tim covers the subject of turnover
duty. The matter involved a lawsuit for injuries brought by a
longshore worker. The shoreside worker had been injured when he
was going down a ladder after boarding a vessel. In the realm of
maritime law, such shoreside workers (shipyard welders,
mechanics, longshoremen, stevedores, harbor pilots, docking
pilots, dockbuilders, shoreside marine construction personnel,
marine surveyors, inspectors, and other people whose duties are
not legally related to the operation of a vessel as a
Jones Act crew
member) are covered by the Longshore & Harbor Workers'
Compensation Act. It operates more like workers' comp coverage.
The Jones Act, in contrast, affords coverage to shipboard personnel
who sustain injury in the course of their employment as a member
of a vessel crew who contributes to its function.

Supreme Court Chief Justice Harlan Stone articulated one of the
cornerstones of Jones Act protection in Wilander, 498 U. S. 354,
"The liability of the vessel or owner for maintenance and cure,
regardless of their negligence, was established long before our
modern conception of contract. But it, like the liability to indemnify
the seaman for injuries resulting from unseaworthiness, has been
universally recognized as an obligation growing out of the status of
the seaman and his peculiar relationship to the vessel... "

But on shore, the LHWCA is more likely to apply.

A Shipowner’s Turnover Duty
by Tim Akpinar

Sometimes a vessel seems to be safest at sea. Although the
sheltered waters of a harbor may present fewer hazards than the
heavy seas of winter storms, there’s something to be said for being
underway. It’s here that a ship is battened down tightly. A minimum
number of people are stirring about. In contrast, a ship in port is
often a hub of bustling activity. Hatch covers are open. People go in
and out of cargo holds and machinery spaces. This poses risks
that a ship at sea doesn’t face.

Having so many shoreside people moving about a vessel raises a
concept known as “turnover duty,” which covers a vessel owner’s
duty toward those who come aboard. This was recently addressed
in a lawsuit by a longshore worker under the Longshore and Harbor
Workers’ Compensation Act, or LHWCA. The LHWCA covers people
who are not Jones Act “seamen,” such as longshore workers and
shipyard workers.

In the case at hand, the worker was descending a ladder. He was
holding a piece of rebar that came into contact with a floodlight
provided by the vessel owner. After experiencing electrical shock, he
sued for injuries, alleging that the vessel owner was negligent in
turning over a ship with a faulty floodlight. The district court originally
awarded over $3.3 million to the worker and $270,000 to his wife for
loss of consortium. The vessel owner appealed, asserting that the
lower court made an error in its jury instructions about turnover duty.

Read more about the decision in:

The lower court instructed jurors as follows: One of the duties
vessel owners owe to longshoremen is called “the turnover duty of
safe condition.”  The vessel owner has the duty to use reasonable
care to turn over the vessel and its equipment in such condition that
an expert and experienced longshoreman would be able, by the
exercise of reasonable care, to carry on his work on the vessel with
reasonable safety to persons and property.

The court also included that the vessel owner had a duty to take
reasonable steps to inspect the vessel and its equipment. The
vessel owner argued that these instructions were flawed because
they improperly expanded the vessel owner’s obligation to inspect
the ship and equipment, stating that the duty is to the
longshoremen rather than the stevedoring company, and imposing
an ongoing duty to inspect. Despite these arguments, the higher
court ruled in favor of the longshore worker and deemed that the
lower court’s jury instructions were proper.

Reference: Murray v. Southern Route Maritime SA et al, D.C. No. 2:
12-cv-01854RSL, U.S. Court of Appeals Ninth Circuit 2017

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