Article: Eleventh Circuit decision reaffirms narrow turnover duty of owners
21 January 2020
The Longshoreman and Harbor Workers’ Compensation Act (LHWCA) is a US statute which provides compensation for longshoremen and harbour workers injured on the job. Generally, the LHWCA preserves 'the rightful expectation of the vessel that the stevedore will perform his task properly without supervision by the ship.' Once stevedoring operations have begun, the owner has no duty to supervise or inspect the work and must only take care to prevent unreasonable hazards. A 905(b) action allows the injured longshoreman to file an action against a negligent shipowner. A ship owner owes certain duties, known as the 'Scindia duties', to a a §905(b) worker:
- the turnover duty
- the 'active control duty'
- the 'duty to intervene.'
The case discussed below is an important decision for members as it establishes the open and obvious defense to the turnover duty.
The Eleventh Circuit Court of Appeals has reiterated the narrow scope of the turnover duty on a claim brought by an injured longshoreman related to an incident that occurred in the Port of Savannah. Purvis v. Maersk Line A/S, No. 19-12041, 2020 WL 40184, __ F. App’x __ (11th Cir. Jan. 3, 2020).
In Purvis, the longshoreman was injured when an open manhole cover latch fell on his head as he ascended through the manhole for at least the second time. The longshoreman alleged that this injury occurred because Maersk violated its Scindia duties when it turned over its ship to the stevedore firm for loading operations in the Port of Savannah. Specifically, the longshoreman theorised that Maersk either turned over the ship with a defective hatch cover, or turned over the ship with the hatch cover not properly latched, therefore allowing it to fall on the longshoreman causing injuries.
In affirming the District Court’s grant of summary judgment, the Eleventh Circuit found that the longshoreman had failed to establish that the latching mechanism on the ship was in any way defective. In the lower court, the only evidence submitted by the injured longshoreman was an iPhone video taken by longshoreman’s counsel manipulating the hatch cover and latch, resulting in the hatch cover falling on the third manipulation. The Eleventh Circuit held that the evidence was insufficient to show that there was anything wrong with the locking pin or hatch cover such that an ordinary competent longshoreman could not carry on his cargo operations in a safe and prudent manner.
Of broader applicability to practitioners, the appellate panel found that even if Maersk did leave the hatch door in an upright position without it being latched, the injured longshoreman could have remedied that issue when he was on the same level as the door on the lashing. Even given dark conditions, the Eleventh Circuit still found that a reasonably competent longshoreman could have seen if the hatch was engaged through visual inspection - so an experienced longshoreman could remedy the open and obvious hazard. This decision marks the Eleventh Circuit’s clearest embrace of the open and obvious defense to a Section 905(b) turnover duty claim.
The full text of the Purvis decision is available on the Eleventh Circuit’s website here. The club would like to thank Maersk’s lawyer, Mr Todd Baiad of Bouhan Falligant, for the summary of this decision.