Academic journal article Defense Counsel Journal

Is the Turnover Duty Real, or Just Unseaworthiness in Disguise?

Academic journal article Defense Counsel Journal

Is the Turnover Duty Real, or Just Unseaworthiness in Disguise?

Article excerpt

THE JOB of the longshoreman - loading and unloading cargo-carrying vessels - always has been hazardous. In fact, longshoremen traditionally have been four times more susceptible to injury than the average manufacturing worker. Recognizing these hazards, Congress enacted the Longshore and Harbor Workers' Compensation Act in 1927, which is codified at 33 U.S.C. [sections] 901-950, to provide financial assistance to longshoremen injured in the course of their duties. In addition, for a long time courts have offered longshoremen a third-party cause of action against shipowners for unseaworthiness - a no-fault remedy.

In 1972 Congress enacted the Longshoremen's and Harbor Workers' Compensation Act Amendments of 1972, which were designed to upgrade the benefits, protect additional classes of workers, and specify a cause of action against third parties.(1) The last of these changes became 33 U.S.C. [section] 905(b) of the act, which took away the action against a vessel for unseaworthiness but retained a cause of action based on negligence. This negligence action is referred to as a Section 905(b) action.

The unseaworthiness action had been based on the absolute liability principle that the vessel and all its appurtenances must be reasonably fit for their intended purpose,(2) and it originally was accorded only to seaman in recognition of the hazards of their job.(3) Seas Shipping Co. v. Sieracki(4) in 1946 extended the cause of action to longshoremen.

"Sieracki Seaman," as these longshoremen were called, could recover as long as the unfit vessel caused the injury, regardless of whether the shipowner had knowledge of the defect or breached any standard of care. Even when the dangerous condition was brought into play by the stevedore, the longshoreman's employer, the vessel still was liable for unseaworthiness.(5) At the same time, however, courts allowed the vessel in most cases to recover its damages from the stevedore for breaching its duty of workmanlike performance.(6)

So, in effect, the longshoreman recovered his damages from the stevedore, but it took two actions and heavy litigation costs to settle longshoremen's claims. Congress concluded that the money wasted on litigation could be better used in compensating injured workers'

Congress re-examined the purpose behind' the unseaworthiness remedy and determined that it was no longer appropriate for longshoremen, stating in the House report:

In reaching this conclusion, the committee has noted that the seaworthiness concept was developed by the courts to protect seamen from the extreme hazards incident to their employment which frequently requires long sea voyages and duties of obedience to orders not generally required of other workers. The rationale which justifies holding the vessel absolutely liable to the seamen if the vessel is unseaworthy does not apply with equal force to longshoremen and other non-seamen working on board a vessel while it is in port.(7)

Congress chose to limit longshoremen to claims based on negligence, deciding that the health and safety of longshoremen would be adequately protected by the same cause of action available to their land-based counterparts. The legislation attempted to place longshoremen in no worse a position regarding their rights against a vessel than that of land-based workers, while at the same time relieving a vessel of liability to longshoremen, except in the case of negligence. Congress felt that the land-based standard of negligence adequately protected workers, although it required them to prove that the vessel was at fault in order to hold the vessel liable for injuries.

After enactment of the 1972 amendments, the federal courts of appeals fumbled with differing interpretations of the negligence standard in longshoreman personal injury cases for nine years, until the U.S. Supreme Court in 1981 defined the negligence standard to be applied in Section 905(b) actions in Scindia Steam Navigation Co. …

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