Vessel Negligence Claims Under § 905(b): When a Longshore Worker Can Sue the Ship

If you were hurt working on or alongside a ship, you may have two claims. One is your Longshore claim against your employer. It pays part of your lost wages and your medical care, no matter who was at fault. The other is a negligence lawsuit against the ship. Federal law, 33 U.S.C. § 905(b), lets a longshoreman or harbor worker sue the vessel when its owner, operator, or crew caused the injury, and you can bring that suit while you collect Longshore benefits.

The lawsuit against the vessel is how you recover money for pain and suffering and your past and future lost earnings and earning capacity. Longshore benefits pay neither. The catch is that you must prove the vessel’s negligence. The U.S. Supreme Court has described three general duties shipowners owe to longshore workers, and the vessel may be liable if you establish that it breached one of these duties and that breach caused your injury.

You generally have three years from the injury to file, or two if the ship belongs to the United States. But do not wait: The ship may leave port within days, and the crew and evidence leave with it. And an award of Longshore benefits speeds up the timeline before the employer gets the right to recover.

Do you have a claim against the ship?

In Hampton Roads, Section 905(b) actions usually come from three groups of workers:

Longshoremen handling cargo at the container terminals in Norfolk and Portsmouth, at Newport News Marine Terminal, and on the coal piers.
Ship repair workers who are employed by a contractor and sent aboard a vessel their employer doesn’t own. That includes Navy ships and commercial ships in for repair.
Other harbor workers who go aboard to do a job, such as line handlers, crane operators, and cargo checkers.

What caused the injury matters more than your job title. A claim against the vessel is worth a phone call when one of these was involved.

A gangway, ladder, or handrail that gave way or was missing.
A hatch cover or deck plate that shifted, or an opening left unguarded.
The ship’s crane, winch, or gear failed, or a crew member ran it carelessly.
A hold or walkway handed over with a hidden hazard, such as a hole, nail, or missing grating.
Oil, grease, or ice in a part of the ship the crew controlled or had promised to clean up.
Rotten or broken decking that no one on the ship inspected.

If what hurt you belonged to your employer, such as the stevedore’s forklift, the claim probably isn’t against the ship. You may still have a case against someone else, and I cover that near the end.

What § 905(b) lets you sue the vessel for

The key sentence in the statute is short. A covered worker whose injury was “caused by the negligence of a vessel” may “bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title.” Section 933 is the part of the Longshore Act that governs claims against anyone other than your employer. The rest of Section 905(b) sets three limits.

Negligence only. Before Congress amended the statute in 1972, an injured longshore worker could recover by showing the ship was unseaworthy, which did not require proof of carelessness. That’s no longer true.
Your employer doesn’t have to pay the ship back. The vessel cannot pass the loss back to your employer. Section 905(b) states that a vessel found liable for negligence cannot claim indemnity or contribution against your employer.
It is the only claim against the ship. Your remedy against the vessel for your injury is limited to what section 905(b) allows.

The definition of “vessel” is broader than the hull. Section 902(21) defines it to include not only the vessel’s owner, but also its agent, operator, charterer, master, officer, or crew member. That matters in Hampton Roads, where one company may own the ship, a second charters it, and a third manages. Part of the early work in these vessel negligence actions is determining who was responsible for the thing that hurt you.

The three duties a vessel owner owes you

Section 905(b) says “negligence” and stops. Case law defines its meaning. The U.S. Supreme Court decision in Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156 (1981) explained the duties that vessel owners owe to longshoremen. A later decision, Howlett v. Birkdale Shipping Co., 512 U.S. 92 (1994), summarized these three general duties: the turnover duty, active control, and the duty to intervene.

The turnover duty

When loading and unloading begins, the vessel owner must turn over a reasonably safe ship to the stevedore, including equipment and appliances. The law reasons that the vessel owner is best positioned to know the ship’s condition at this time. Both Fourth Circuit cases below are turnover cases.

As part of this turnover duty, the vessel owner must also warn the stevedore of hidden hazards or defects it knows about or should know about. But the warning duty is narrow. It only covers hazards the stevedore is likely to run into during cargo handling and that a competent stevedore would not see or expect on his own. Further, unless it has actual knowledge, the shipowner need not supervise the loading or inspect the finished stow.

The active control duty

Once the stevedoring work starts, the vessel remains liable if it actively involves itself in cargo operations and negligently injures you. Think of a crew member running the ship’s crane who swings a load into you, or a crew member who opens a hatch cover while your gang is still working beside it.

The ship also has to use due care in the areas and with the equipment it keeps under its own control while you work. One example is a passageway the crew keeps to itself, but that you have to cross to reach the hold.

Some courts also put a failed repair under this duty, where the crew is told about a problem, tries to fix it, and gets it wrong or doesn’t do it. The Fourth Circuit treated a broken promise to fix a hazard as a turnover case in Bunn, which I cover below, and said the label does not limit the rule.

The duty to intervene

This duty is the narrowest of the three. After cargo or repair operations begin, an injured employee of the stevedore can hold the vessel owner liable for harm from open and obvious dangers if, and only if, the shipowner had actual knowledge of the danger and actual knowledge that the stevedore was not going to fix it or work around it. The Supreme Court’s phrase for that kind of decision by the stevedore is “obviously improvident.” In Scindia itself, the stevedore kept using a winch whose brake had been slipping for two days. This is the hardest of the three to prove, because you need evidence of what the ship’s officers knew.

How the Fourth Circuit applies these duties

Virginia is in the Fourth Circuit, so a suit filed in federal court in Norfolk or Newport News follows its decisions. Two of them show how the turnover duty works.

In Lincoln v. Reksten Management, 354 F.3d 262 (4th Cir. 2003), a longshoreman loading frozen chicken in Charleston was hurt when his right foot and leg went through rotted wooden deck boards. His expert, a ship’s captain, said rot like that can be found by sounding the boards with a hammer. The ship’s expert answered that inspecting deck boards that closely would be “impractical and unreasonable.” The Fourth Circuit vacated summary judgment for the shipowner, holding that on that evidence “the vessel might have been negligent in the maintenance, upkeep, and especially the inspection of the deck in question, so that, in the exercise of reasonable care, it might have discovered the defect” in time to warn the stevedore. The turnover duty is about the condition of the ship you are handed, and a defect that ordinary inspection would have caught is the vessel’s problem.

In Bunn v. Oldendorff Carriers GmbH & Co. KG, 723 F.3d 454 (4th Cir. 2013), a longshoreman loading coal slipped on untreated ice in the Port of Baltimore in February 2007. The ship’s chief officer had told the stevedore’s supervisor more than five hours earlier that the crew would salt and sand between the holds. The crew cleared a path to one hatch and left the ice around the hatch where Bunn fell.

The trial judge ruled that a shipowner who “voluntarily and affirmatively undertakes to remedy an unsafe condition, but fails to do so” can be liable even where the hazard was otherwise open and obvious. The jury found the ship negligent, set Bunn’s damages at $1,863,750, and put 15 percent of the fault on him. The Fourth Circuit affirmed, two judges to one, and decided the case under the turnover duty. If the ship said it would fix something and did not, do not assume the obviousness of the danger ends your case.

If you were partly at fault

Virginia courts follow contributory negligence in ordinary injury cases, which means a person who is even slightly at fault may not recover. A § 905(b) suit is a maritime case and works differently. Your own share of the fault reduces what the ship owes by that percentage. Bunn is the example. The jury put 15 percent of the fault on him, and he still recovered.

The ship also cannot cut its share by pointing at your employer. If the stevedore was careless too, the vessel still owes the full amount less your own percentage. Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256 (1979).

Shipyard and ship repair workers: who you can and cannot sue

Some shipbuilders and stevedores own or operate the vessels where longshoremen and harbor workers get hurt. The general rule is that you can sue your employer in its role as vessel owner and still collect Longshore benefits. Lawyers call this the dual capacity doctrine. The statute then takes that right away from two groups of workers.

First, if you were hired to do stevedoring work, you cannot sue your employer as vessel owner when the people who caused your injury were also doing stevedoring work for that vessel. The second sentence of the subsection says so.

Second, you have no action against your employer as vessel owner if you were employed to provide shipbuilding, repairing, or breaking services. When your shipyard owns the vessel, Longshore benefits are your remedy against the yard. Congress made that bar absolute in 1984. Before then, it applied only when a fellow repair worker caused the injury, as in Richardson v. Norfolk Shipbuilding & Drydock Corp., 621 F.2d 633 (4th Cir. 1980). Two sandblasters working on the U.S.S. Nashville were hurt when a crane operator on the yard’s own barge dropped their work tray. All three men worked for the yard, and all three were doing repair work, so the suit against the yard was barred.

That bar protects your employer and nobody else. If you work for a repair contractor and you are hurt aboard a ship another company owns, you can sue that vessel under the same three duties.

Navy ships are the common example in Hampton Roads. If a private contractor employs you and you are hurt aboard a public vessel of the United States, your negligence claim is against the United States under the Public Vessels Act, 46 U.S.C. § 31102, and the Suits in Admiralty Act. The court applies the same § 905(b) duties. Two things change. A judge decides the case without a jury, and you have two years to file.

One group is outside all of this. Civilian employees of the federal government, including the Navy’s own workforce at Norfolk Naval Shipyard, are excluded from the Longshore Act by § 903(b). Their remedy is the Federal Employees’ Compensation Act. I don’t handle these claims, but can refer you to someone who does.

What the lawsuit does to your Longshore benefits (Section 933)

You must read sections 905(b) and 933 together. The latter governs every third-party claim under the LHWCA. Four parts of it matter to you.

You do not have to choose. Section 933(a) lets you take LHWCA benefits and sue the vessel.
But a formal award of LHWCA benefits starts the clock. Under § 933(b), accepting compensation under a formal award assigns your third-party right to damages to the employer unless you sue within six months. If the employer then does not sue within 90 days, the right to bring the action returns to you. The payment of voluntary benefits does not start that clock.
The employer gets paid back. Section 933(e) lets the employer recover its expenses, medical, and the present value of future compensation out of the recovery, with the excess going to you. Where you bring the suit, § 933(f) means the employer owes only the difference between the compensation due and your net recovery after reasonable litigation costs. In other words, the employer gets a credit against future Longshore benefits based on what you net from the ship’s negligence.
Settle without approval and you can lose your benefits. If you settle with the vessel for less than your compensation entitlement without the prior written approval of your employer and its carrier, § 933(g) terminates your benefits. Get the approval in writing before you sign. If you settle for more than your entitlement, or win at trial, you still have to give your employer notice. Failing to do so gives it a way to end your benefits.

How LHWCA and section 905(b) vessel negligence claims run together

I look at the two claims this way. One usually pays sooner, and the other usually pays more. Because it’s no-fault, LHWCA benefits can start quickly and cover wage loss benefits and medical treatment. On the other hand, the § 905(b) case often takes longer and requires proof of the vessel’s negligence, but it can pay for losses the Longshore Act never will.

The Longshore carrier will watch the tort case because it has a stake in the recovery; it should want you to succeed, although in my experience that’s not always the case. Remember – do not sign anything in one case without understanding its effect on another.

Deadlines

You have three years from the injury to file a § 905(b) suit against a private vessel. 46 U.S.C. § 30106. If the ship belongs to the United States, you have two. 46 U.S.C. § 30905.

A cargo ship is in port for a few days. When it sails, the crew who saw what happened, the deck log, and the broken ladder may go with it. In the first week a lawyer can send the owner a letter demanding that it preserve the evidence, get the stevedore’s accident report and photographs, and find out which companies owned, chartered, and managed the ship. A year later that work is much harder, and some of it can’t be done at all.

If your case is not against a ship

If you are a seaman rather than a longshore or harbor worker, § 905(b) is not the path to recovery; your negligence remedy is the Jones Act. If you aren’t sure whether your claim belongs under the Longshore Act or Virginia workers’ compensation, start with my comparison of the two.

If the company that hurt you was an equipment manufacturer, trucking company, or another contractor on the pier or dock, you may still have a negligence claim. Section 933 applies to that claim too, including the lien and the approval rule for settlements.

Helping Injured Longshoremen in Virginia

If you are an injured longshoreman or a lawyer with a Longshore client and a possible claim against a vessel, call me: 757-810-5614.

I started my career on the insurance side, and I now represent injured workers in Longshore and Virginia workers’ compensation claims. If you were hurt on a ship in Norfolk, Portsmouth, Newport News, or anywhere else in Hampton Roads, call me before the ship leaves and before you sign anything. I’ll help you determine whether you have a claim against the vessel and what it would do to your Longshore benefits.