If you were injured working on the docks or engaging in some other type of maritime activity, but you are not considered a seaman then your claim will most likely be controlled by the Longshore Harbor Worker’s Compensation Act (also known as the “LHWCA”). This Act limits an employer’s liability to statutory benefits which the employer pays regardless of negligence in return for immunity from getting sued by the injured employee, the injured employee retains the right to bring a tort action against a third party.
Section 905(b) of the LHWCA creates a cause of action against a vessel owner is for its negligence. The term “vessel” under the LHWCA is defined to include the vessel’s owner, owner pro hac vice, agent, operator, charterer or bare boat charterer, master, officer, or crew member.
In order to recover under 905(b), you must show the following:
(1) that the vessel had a duty to protect against the hazard;
(2) breach of that duty;
(3) injury; and
(4) that the injuries and damages were proximately caused by the negligence of a vessel.
Similar to other maritime claims, the doctrine of assumption of risk and contributory negligence do not apply in a Section 905(b) claims. Rather, any negligence on the part of the claimant only serves to reduce the recoverable damages.
Damages under a 905(b) claim generally include:
(1) medical and rehabilitation expenses;
(2) loss of earning capacity;
(3) loss of family and personal services;
(4) pain and suffering;
(5) psychological and emotional injuries;
(6) loss of enjoyment of life;
(7) permanent disability and disfigurement;
(8) in the case of a death, loss of society to dependents; and
(9) prejudgment interest.
Vessel owners generally owe three primary duties longshore workers. The first duty is known as the “turnover duty.” This duty relates to the condition of the ship when longshore workers start the stevedoring operations. The second duty is called the “active control” duty. This duty is in effect when stevedoring operations are underway and such operations are with the active control of the vessel. In these situations, the vessel owner is required to use reasonable care to prevent injury to longshoremen in areas that are under the control of the vessel. The third duty is the “duty to intervene.”
There are a lot of nuances to making a 905(b) claim and to making sure that all at fault parties are held accountable for their actions. In light of these nuances, it is best that you hire a lawyer that is familiar with the LHWCA and knows how to properly analyze your case. For a free case evaluation, please feel free to contact us.