When a longshoreman is injured aboard a ship, there may be more than one source of compensation. The Longshore and Harbor Workers’ Compensation Act (LHWCA) generally provides benefits through the worker’s employer or its insurance carrier, while Section 905(b) of the LHWCA may allow a separate negligence claim against the vessel.
That distinction is important. A longshoreman injured because of an unsafe gangway, open hatch, defective ladder, dangerous deck condition, or other vessel hazard may have rights beyond a standard workers’ compensation claim.
At Gilman & Allison, LLP, our Texas longshore injury lawyers represent maritime workers injured aboard ships and at ports throughout Texas.
Does the LHWCA Pay Longshore Workers After an Injury?
The Longshore and Harbor Workers’ Compensation Act is a federal workers’ compensation law covering many longshoremen and other maritime employees.
For a covered injury, LHWCA benefits may include:
- Medical treatment
- Temporary disability benefits
- Permanent disability benefits
- Vocational rehabilitation in appropriate cases
- Death benefits for eligible survivors
Generally, an injured longshoreman does not have to prove that the employer was negligent to receive LHWCA benefits.
But receiving Longshore benefits does not necessarily mean the worker has no other claim.
If a vessel’s negligence caused the injury, Section 905(b) may provide an additional claim against the vessel.
Can a Longshoreman Sue the Ship?
Potentially, yes.
Section 905(b) of the LHWCA allows an injured maritime worker to bring an action against a vessel when the worker’s injury was caused by the vessel’s negligence.
This is commonly referred to as a Section 905(b) vessel negligence claim.
Unlike the worker’s LHWCA compensation claim, however, a § 905(b) case requires proof of negligence. The fact that an accident occurred aboard a ship does not automatically make the vessel liable.
The central question becomes whether the vessel breached a legal duty owed to the injured longshore worker.
What Duties Does a Vessel Owe Longshore Workers?
The United States Supreme Court’s decision in Scindia Steam Navigation Co. v. De Los Santos established a framework for evaluating vessel negligence claims involving longshore workers.
These cases generally involve three categories of vessel duties:
The Turnover Duty
Before cargo operations begin, the vessel must exercise reasonable care regarding the condition of the ship and its equipment so that an experienced stevedore can perform cargo operations with reasonable safety.
The vessel may also have a duty to warn the stevedore of certain hazards that are known or should be known to the vessel but would not be obvious to a competent stevedore.
A turnover-duty claim may arise when a dangerous condition existed before stevedoring operations began.
The Active Control Duty
Even after cargo operations are underway, the vessel may remain responsible for areas or equipment over which it retains active control.
If vessel personnel continue controlling a particular area, piece of equipment, or operation and their negligence causes an injury, the injured longshoreman may have a § 905(b) claim.
The Duty to Intervene
A vessel generally may rely on the stevedore to conduct cargo operations safely. Under certain circumstances, however, the vessel may have a duty to intervene when it becomes aware of a dangerous condition during stevedoring operations.
Whether that duty arises depends heavily on the facts.
What Shipboard Hazards Can Lead to a Section 905(b) Claim?
Longshoremen work around heavy cargo, moving equipment, elevated surfaces, vessel machinery, and constantly changing shipboard conditions.
Potential vessel-negligence cases can involve:
- Unsafe gangways and accommodation ladders
- Open or unsecured hatches
- Defective ladders
- Slippery or contaminated decks
- Missing handrails or guardrails
- Dangerous passageways
- Poor lighting
- Defective vessel equipment
- Falling objects
- Unsafe cargo stowage
- Dangerous conditions inside cargo holds
- Winches and other deck machinery
- Vessel-controlled cranes or equipment
- Hazards created by vessel crew members
The existence of one of these conditions does not automatically establish liability. An investigation must determine who created the hazard, who controlled the area, when the condition developed, who knew about it, and whether the vessel breached a duty recognized under maritime law.
Who Pays: The Employer or the Vessel?
In some cases, both may have separate legal obligations, but for different reasons.
The longshore employer or its LHWCA insurance carrier generally provides statutory workers’ compensation benefits for a covered occupational injury.
A negligent vessel, on the other hand, may potentially be responsible for damages through a third-party § 905(b) lawsuit.
That distinction can significantly affect the compensation available to an injured worker.
A vessel-negligence claim may potentially seek damages that are different from the benefits available through the LHWCA compensation system, depending on the facts and applicable law.
What If the Vessel Owner Is Also the Longshoreman’s Employer?
These cases can become substantially more complicated when the same company acts as both the injured worker’s employer and the vessel owner.
Maritime law distinguishes between conduct performed in an employer capacity and conduct attributable to the company in its vessel capacity.
This is sometimes called the dual-capacity doctrine.
A worker generally cannot avoid the LHWCA’s employer-immunity provisions merely by labeling ordinary employer negligence as vessel negligence. The alleged negligent conduct must be attributable to the defendant’s responsibilities as vessel owner rather than simply its role as the worker’s employer.
This distinction can become a major issue in § 905(b) litigation.
What Evidence Matters After a Longshore Shipboard Injury?
Evidence aboard a commercial vessel can disappear quickly.
The vessel may leave Texas within hours or days. Cargo operations continue. Equipment gets moved. Hatches are closed. Gangways are repositioned. Decks are cleaned. Crew members may travel internationally.
Important evidence may include:
- Photographs and videos
- Surveillance footage
- Vessel logs
- Incident reports
- Safety meeting records
- Inspection records
- Maintenance records
- Cargo plans
- Stevedoring records
- Vessel manuals and procedures
- Crew statements
- Longshore worker statements
- Communications between the vessel and stevedore
- Records identifying who controlled the area or equipment
Prompt investigation and preservation of evidence can be especially important when the vessel is foreign-flagged or expected to leave the United States.
What If the Injured Worker Is Actually a Seaman?
The LHWCA and Jones Act generally protect different categories of maritime workers.
A worker who qualifies as a seaman may have claims under the Jones Act and general maritime law rather than a traditional longshore § 905(b) claim.
Job titles alone do not necessarily answer the question.
Courts look at the worker’s actual employment relationship and connection to a vessel or identifiable fleet of vessels. Determining whether someone is a seaman, longshoreman, harbor worker, or another type of maritime worker can therefore be one of the most important issues following an accident.
Texas Section 905(b) and Longshore Injury Lawyers
Texas longshoremen work aboard vessels throughout the Houston Ship Channel, Port of Houston, Galveston, Texas City, Freeport, Beaumont, Port Arthur, Corpus Christi, and other Texas ports and terminals.
When a longshore worker is seriously injured aboard a vessel, the case should be evaluated for more than just LHWCA benefits.
A dangerous gangway, hatch, ladder, cargo hold, deck, passageway, or piece of vessel equipment may raise questions about third-party vessel negligence under Section 905(b).
Gilman & Allison, LLP represents longshoremen and maritime workers injured aboard vessels throughout Texas. Our maritime attorneys investigate the worker’s status, vessel ownership, control of the accident area, applicable maritime duties, and potential sources of recovery.
If you were injured while loading, unloading, working aboard, boarding, or leaving a vessel, contact Gilman & Allison, LLP for a free consultation about your rights under the LHWCA and federal maritime law.