LIABILITY UNDER A VESSEL’S ACTIVE CONTROL DUTY

By Caitlin Morgenstern of Koch & Schmidt posted in Longshore and Harbor Worker’s Compensation Act on Friday, September 2, 2016.

In Kitchens v. Solt Tankers B.V., the plaintiff suit against the defendant alleging claims under § 905(b) of the Longshore and Harbor Worker’s Compensation Act (LHWCA). The plaintiff alleged that he was injured while he descended the defendant’s vessel’s stairs. The plaintiff further alleged that walkway where he was injured was dimly lit and extremely slick.

Under section 905(b) of the LHWCA, it is now well accepted that ship owners have three narrow duties to longshoreman: (1) a turnover duty, (2) a duty to exercise reasonable care in the areas of the ship under the active control of the vessel, and (3) duty to intervene. Under the active control duty, “[t]je vessel has a duty to exercise due care to void exposing longshoremen to harm from hazards they may encounter in areas, or from equipment, under the active control of the vessel during the stevedoring operation.” Liability is not relieved when the hazard is open and obvious. Liability under the active control duty is premised on the presence or existence of a “hazard” under the active control of the vessel.

The court stated that the record reflected that neither plaintiff nor any witness observed any type of substance-open, obvious, or otherwise-on the area where plaintiff slipped. I addition, there was no circumstantial evidence that there was a hazard on the walkway where he slipped. The court also noted that the lack of a non-skid surface alone is sufficient to give rise to a finding of liability under the active control duty exception. Further, in the absence of an agreement to the contrary, the vessel does not have a general duty to provide adequate lighting for longshoreman. As a result, the court held that the plaintiff failed to produce any evidence of a hazard on the vessel’s walkway.