Baldwin Haspel Burke & Mayer LLC

Maritime Update: Longshore Act exemption and application explained in wrongful death of diver

Bill Schwartz -  Posted on by Baldwin, Haspel, Burke & Mayer

On October 29, 2021, the federal 11th Circuit Court of Appeals (covering Alabama, Florida and Georgia) rendered its decision in the case of “In re: Complaint of Brizo LLC v. Carbajal”.  In that case they determined that a diver who died while providing services to a recreational vessel was still covered by the Longshore Act (33 USC 901 et seq).   They further concluded that the vessel owner had not violated any Scindia duties and therefore was not liable under Section 905(b).   Last, they concluded under general maritime law principles there was no proof of any breach of duty to the diver.

Facts:

The pertinent facts of this case were that Brizo owned the M/V Honey, a 164-foot yacht or recreational vessel.  Brizo contracted with Eastern Marine Services, a commercial diver company, to clean its hull.   On June 21, 2017, Eastern Marine sent an e-mail to Captain Smart of the M/V Honey, stating that the vessel’s next hull cleaning “was coming up approximately 6/26 [at] 7:00 P.M.,” which was five days later. The email, however, informed Captain Smart that this was just an estimated date, subject to change as: “our schedules constantly change, so the date and time is at best a rough approximation, thanks for understanding the dynamics of our world.” There was no further communication from Eastern Marine regarding the upcoming cleaning and Captain Smart did not mention to his crew that the hull was due to be cleaned in the near future.

Eastern Marine selected Ixba to be the diver to clean Brizo’s vessel. On June 27th, which was one day after the approximate date Eastern Marine had projected to Captain Smart, Ixba arrived to clean the yacht. At the time of Ixba’s arrival, all crew members were inside the vessel. Even though Eastern Marine divers customarily notify a crew member when they are about to commence diving operations, sadly Ixba never did so. Instead, he approached the vessel without identifying himself or notifying the crew members on the vessel that he had arrived and was about to begin his dive. Because he then immediately entered the water without ever announcing his presence, no member of the crew was even aware that he was under the boat. Adding to the lack of precautions taken by Ixba, he also failed to mark his presence in the water with a diver flag, as required by regulation.

Unaware of Ixba’s presence, Captain Smart had disembarked the vessel after Ixba had begun his dive, leaving Chief Mate Marks in charge. Unaware that anyone was diving under his boat and needing to move the boat closer to the dock to load some jet skis, Chief Mate Marks began the process of activating a bow thruster on the yacht. Before activating the thruster, Marks walked around the vessel and looked into the water—he saw no bubbles. Seeing no danger, Marks activated the thruster, tragically killing Ixba.

Lower Court Decision:

In the decision rendered in the lower trial court, the Judge rejected the contention by the diver’s family that he was not covered by the Longshore statute. The court acknowledged that an exemption from the Longshore Act potentially exists for work on recreational vessels.  But, it also noted that “[t]he exemption only applies when the worker or accident at issue is covered by a state worker’s compensation law. 33 U.S.C. § 902(3)(F).”   While there was no dispute that the M/V Honey was a recreational vessel. And, the employer presented evidence that the decedent diver was “a self-employed independent contractor without a controlling employer.” Florida law specifically excluded “independent contractor[s] who [are] not engaged in the construction industry” from the definition of “employee” in its workers’ compensation law. The lower court therefore ruled there was no proof that the decedent diver’s family was entitled to state compensation benefits.

Having found that that the Longshore Act covered this accident, the trial court then considered the duties a vessel owes a contract harbor worker under the Longshore statute.  The court concluded that Brizo did not violate any duty owed the diver and it granted Brizo summary judgment.

The Appeal:

On appeal, the 11th Circuit first addressed whether the diver was entitled to coverage by the Longshore Act.  For the Longshore Act to apply, a worker ordinarily must satisfy both a “situs” requirement and a “status” requirement. The “situs” test requires that the worker’s injury occur “upon the navigable waters of the United States.” It is undisputed that the diver was injured on “navigable waters” and that the situs requirement is therefore satisfied.

                 Status and Situs:

To satisfy the “status” requirement, the worker “must be ‘engaged in maritime employment’ within the meaning of § 2(3) of the Act.” The Longshore Act defines a covered employee as “any person engaged in maritime employment, including … any harbor-worker including a ship repairman, shipbuilder, and shipbreaker.”  The Circuit Court noted that they had held that a diver commissioned to scrape barnacles from the hull of a docked vessel falls within this definition.  They therefore concluded this diver satisfied the status test.

                  Standard of Care:

The appeals court then addressed the standard for a recovery under 33 USC 905(b) against the vessel.  A vessel owner owes a harbor worker three duties under the U.S. Supreme Court decision of Scindia: (1) a duty to turn over the ship to the worker in a safe manner, after which duties arise to (2) exercise reasonable care in the areas of the ship under the active control of the vessel and (3) intervene in certain circumstances upon awareness of an actual danger to the worker.   While often applied in the context of stevedoring operations involving injury of longshoremen, these Scindia duties also apply when harbor workers perform repairs underwater or on board the ship.

The turnover duty required a vessel to “ ‘exercise ordinary care under the circumstances’ to turn over the ship and its equipment and appliances ‘in such condition that an expert and experienced stevedoring contractor, mindful of the dangers he should reasonably expect to encounter, arising from the hazards of the ship’s service or otherwise, will be able by the exercise of ordinary care’ to carry on cargo operations ‘with reasonable safety to persons and property.

The active-control duty required a vessel owner to exercise reasonable care to prevent injuries to harbor workers in areas that are under the vessel owner’s active control.

The duty to intervene required a vessel owner to intervene if “during [contractor] operations, the vessel owner becomes aware that the ship or its gear poses a danger to the [worker] and that the [contractor] is failing, unreasonably, to protect the [worker].”

The family of the diver was not able to dispute that he began work and entered the water without notifying the crew of his presence. Nor did they dispute that the crew never turned over any portion of the vessel to him.   The Court was not aware of any legal authority supporting the notion that the active control duty may be triggered when a worker begins work without notifying the crew of his presence and denies the vessel an opportunity to satisfy its turnover duty. To so hold would effectively impose a general duty on vessels to exercise reasonable care to protect harbor workers in contravention of the statutory scheme and binding precedent.

The appellate court noted that the 1972 amendments to the Longshore Act shifted responsibility for preventing injuries away from vessels and onto employers, and noting that “[s]ubjecting vessels to suit for injuries that could be anticipated and prevented by a competent stevedore would threaten to upset the balance Congress was careful to strike…”  They therefore concluded the district court correctly held Brizo did not breach any Scindia duty owed to Ixba and affirmed the grant of summary judgment for Brizo.

                 General Maritime Law on Negligence:

In addition, the 11th Circuit found that even if the Longshore Act did not apply, meaning that general negligence principles apply, no triable issues of fact had been raised regarding the vessel’s negligence under maritime law.  To plead negligence, a plaintiff must allege that (1) the defendant had a duty to protect the plaintiff from a particular injury; (2) the defendant breached that duty; (3) the breach actually and proximately caused the plaintiff’s injury; and (4) the plaintiff suffered actual harm.  “[T]he benchmark against which a shipowner’s behavior must be measured is ordinary reasonable care under the circumstances.”  A plaintiff “cannot succeed on a maritime negligence claim against a vessel owner unless that vessel owner had actual or constructive notice of a risk-creating condition.”

The court noted here the vessel lacked actual or constructive notice of a risk-creating condition.   Brizo had no notice of any particular day that a diver would perform the hull cleaning and certainly no reason to believe that the diver, about to place himself in harm’s way under the hull of the ship, would elect not to alert the crew prior to performing this hazardous assignment. As a result, the 11th Circuit Court concluded “No reasonable jury could find a breach of the vessel’s duty to exercise reasonable care under these circumstances.”

Click here to review the case.

Please feel free to contact Jill Willhoft, Bill Schwartz or Dave Carrigee if you wish to discuss this decision in greater detail.


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