Page 68 - Layout 1

10 Appendices

Appendix (iii)

Speciic issues with stevedores in the USA

Keith Letourneau

Stevedore work in the United States can easily create This result follows because joint and several liability principles
personal injury liability exposure for an unwary shipowner. under U.S. maritime law shift the risk of uncollectibility from

The leading United States Supreme Court case setting forth an innocent plaintiff to a culpable tortfeasor. The LHWCA’s

the obligations of a vessel owner is Scindia Steam Navigation compensation bar essentially transforms the stevedore into
Co. v. De Los Santos, 451 U.S. 156 (1981). Scindia stands for a judgment proof defendant. Additionally, the stevedore’s

two important propositions.worker’s compensation carrier generally intervenes in any

Firstly, as a general matter, the shipowner may relysuit against shipowners or charterers to recover medical care
upon the stevedore to avoid exposing stevedores to costs expended on the stevedore’s behalf. Consequently, the

unreasonable hazards. However, under U.S. maritime law and shipowner, rather than the stevedore employer, bears the brunt

the U.S. Longshore and Harbor Workers Compensation Act of fault attributable to the stevedore, despite Scindia’s irst
(“LHWCA”), a shipowner cannot recover against a stevedore proposition. Secondly, Scindia holds that the shipowner, the

employer for any injuries that occur to a stevedore. stevedore employer, and his stevedore employees the duty of

Moreover, in the event that the shipowner breaches one of exercising due care under the circumstances. Thus, while the
its duties to the stevedore resulting in injury, the stevedore primary responsibility for the stevedore’s safety ostensibly

can sue the shipowner for negligence. Under joint and rests with the stevedore’s employer, the shipowner also owes a

several liability principles that apply pursuant to U.S. standard of care to the stevedore. That standard encompasses
maritime law, if we hypothesize that the shipowner is 10% at three duties to stevedore servicing the vessel:

fault, the stevedore 20%, and the stevedore employer 70%, 1. The ‘Turnover Duty’
the shipowner nonetheless would be responsible for 80% of 2. The ‘Active Control Duty’

the damages awarded.3. The ‘Duty to Intervene’

1. The ‘Turnover Duty’Preventative measures

The ‘Turnover Duty’ requires the shipowner to furnishShipowners may wish to consider some preventative

a reasonably safe ship, and to warn the stevedores of measures before arriving in a US port. To ward off potential

hazards from gear, equipment, tools and the workspace to liability exposure in the event a stevedore claims injury,
be used during cargo operations “that are known to the shipowners may be able to satisfy their Turnover Duty

ship or should be known to it in the exercise of reasonable obligations through the use of a checklist identifying

care.” However, the shipowner is not obligated to warn the potentially hazardous conditions, perhaps coupled with a
stevedores about hazards that are open and obvious, or simple vessel diagram showing the main deck, cargo holds

dangers that “a reasonably competent stevedore should and other areas where the stevedores are scheduled to work.

anticipate encountering.” For example, in a recent case,Prior to the vessel’s arrival in port, one of vessel’s oficers
the Fifth Circuit Court of Appeals (which governs federal should carefully inspect each of these areas, and note on the

proceedings in Texas, Louisiana and Mississippi) found that a checklist any potentially hazardous conditions, for example,

stevedore, who was injured because of an open and obvious with respect to hatchways, latches, ladders, lighting, twist
defect in a stow of steel coils in the cargo hold, could not locks, wires, cables, equipment lying about, rusty conditions

recover against the shipowner, operator or charterer. In that of deck and handhold surfaces, etc. The checklist could note

case, one of the steel coils fell from atop the stow onto the where any repairs are being conducted, and the scope of
stevedore resulting in the loss of a leg. The court found that the project (to place the stevedore on notice of not only

a “vessel owner has no legal duty to prevent or alleviatewhere repair work is ongoing, but where repair work is

an unsafe condition in the cargo hold resulting from an being considered). Provided vessel workspaces are in good
improper stow when the condition is open and obvious to condition, it may make sense to take a series of digital

the stevedore workers.”photographs of the spaces where stevedores will work,

including access ladders, to document the condition during

www.swedishclub.com66