Rights of Maritime Workers Who Are Found Not to be a Seaman and the Remedies Available
A. THE LONGSHORE AND HARBOR WORKERS' COMPENSATION ACT ("LHWCA")
The Longshore and Harborworkers Compensation Act ("LHWCA"), 33 U.S.C. § 901 et seq., created a federal workers' compensation program for employees of stevedores, shipyards and other maritime employers. Additionally, with some limitations, covered employees have the right to sue third-parties for their work-related injuries.
General Benefit Entitlements
The LHWCA is a statutory no-fault compensation scheme designed to compensate injured maritime workers who are not covered by the Jones Act. In general, the employer must pay medical expenses plus 66-2/3% of the workers average weekly income during temporary disability periods, and statutory compensation rates for permanent disability (partial or total) or death. Lost income is calculated on the employee's "average weekly wage". As to your medical care, you are allowed to select your own doctor.
Who is a Covered Worker - the Situs and Status Tests
1. The Situs Test
Under 33 USC § 902(4), coverage under the LHWCA extends to employees who are employed in "maritime employment" in whole of in part upon navigable waters of the United States, including adjoining piers, wharves, drydocks, terminals "or other adjoining area customarily used by an employer in loading, unloading, repairing or building a vessel."
2. Status Test
In addition to showing that the injury occurred on a defined maritime situs, the worker must also show that he/she fits within the statute's test of being a "maritime worker". In Director, Office of Workers' Compensation Programs v. Perini North River Associates, 459 U.S. 297 (1983) the Supreme Court held that a marine construction worker, who clearly was not a seaman, but who was injured while doing work while on a boat on the Hudson River, was doing maritime employment sufficient to be covered by the LHWCA.
THIRD PARTY CLAIMS UNDER § 905(b) AND § 933 OF LHWCA FOR DAMAGES CAUSED BY NEGLIGENCE BY SOMEONE OTHER THAN YOUR EMPLOYER
Under certain circumstances, Section 905(b) and Section 933 of the LHWCA permit third party suits against those entities which are not the injured maritime worker's employer. Section 933 permits suits against entities which are not vessel owners, while Section 905(b) permits such claims against owners of vessels, if the vessel negligently causes an injury. There are some important limitations on the right to bring a third-party suit, however. Most importantly, with one exception, discussed below, lawsuits are prohibited against the employer under Section 905(a) of LHWCA. The sole remedy against the employer, generally, is the no-fault compensation benefits the statute provides. As to the third party recovery, however, it is subject to the employer's or compensation carrier's lien, meaning the carrier has to be repaid from the tort action recovery what it paid to the employee in compensation and medical benefits. After that payback, the excess of the recovery is distributed to the injured worker.
Standard of Care of Vessel Owner under § 905(b)
A shipowner owes the duty to act reasonably towards maritime workers on its ship. Although the worker's employer has the primary responsibility for safety to longshore workers, the shipowner still can be liable for certain of its actions. A shipowner owes four duties to maritime workers covered by the Longshore Act, the violation of any of which may support a third party claim against the vessel owner. Scindia Steam Navigation Co. v. de los Santos, 451 U.S. 156 (1981).
Turnover duty. The vessel owner must turn the vessel and its equipment over to the maritime subcontractor in such condition that an experienced subcontractor will be able, by the exercise of reasonable care, to carry on its operations with reasonable safety.
Duty to warn. The vessel owner has a duty to warn the maritime subcontractor of any hazards on the vessel or with respect to its equipment, that are known to the vessel or should be known by the exercise of reasonable care, that would not be known by the subcontractor and would not be obvious to or anticipated by it.
The Active Operations Duty. Once the maritime subcontractor begins his work, the vessel owner has no duty to supervise the work or inspect the areas assigned to the subcontractor, but the owner has a duty to act reasonably where it is itself actively performing operations.
Duty to Intervene. The vessel owner has a duty to protect maritime employees on its vessel after the subcontractor begins its operations if the owner becomes aware that the ship or its gear pose an unreasonable risk to the workers, or that the subcontractor is acting unreasonably in failing to protect workers against danger, and the owner knows or should know that the subcontractor will not correct the condition.