The Legal Duty of Presenting a Safe Vessel
People sometimes debate the question of whether a vessel is safest in an anchorage or at sea. The comfort of being in a snug harbor is almost proverbial. A tranquil bay is clearly safer than contending with six-foot seas off Montauk. On the other hand, in the approach of severe weather, operators of large vessels will sometimes send their fleets out to sea. This prevents the possibility of breaking loose from moorings or getting battered against a rocky shoreline. Obviously, the answer to this enduring question depends on the size of the vessel and its ability to ride things out, as well as the nature of the threat posed by staying in port.
But in some ways, there’s something to be said for the safety of being out at sea, particularly with larger vessels. One or two people are on a quiet and dimly lit bridge. There’s plenty of water beneath the keel. A watch engineer and a wiper might be holding things down on the 0400 to 0800 watch in the engine room, thinking of what they’ll have for breakfast when their relief arrives. There’s not a ship in sight for miles and a minimum number of people up and about who could get into accidents.
In contrast, being in a busy port could drive certain risk factors up. There’s a greater chance of accidents with so many people scurrying about, from contractors to company representatives. Cargo-handling people come on board. Diesel mechanics and electricians come and go. Personnel from port authorities and marine safety agencies want to see the ship’s papers. Compared to the battened-down ship quietly plodding along its course on the open sea with hardly a mouse stirring about, the vessel in port can present a number of risk factors.
This was illustrated in a case involving a longshore worker who was injured aboard a ship. While making his way down a ladder, a piece of rebar he was holding in his hand came into contact with a floodlight. He suffered an electrical shock. The floodlight was provided by the ship owner.
The trial court awarded the worker $3.3 million, together with damages for loss of consortium. The lawsuit was brought under the Longshore and Harbor Workers’ Compensation Act, or LHWCA. The LHWCA works similarly to state workers’ compensation programs, covering maritime workers who do not qualify as members of a vessel crew.
Crewmembers have to pass certain legal tests to show that they contribute to the mission of a vessel. In contrast, the LHWCA covers those outside this circle of crewmembers, such as yard workers, diesel mechanics, welders, cargo handling personnel, and similar roles.
The $3.3 million award was appealed by the ship owner on the grounds that jury instructions were in error. The jury had been instructed that one of the duties owed to a longshoreman by the vessel owner is the turnover duty of a safe condition. This means that the vessel owner had to use reasonable care to turn over the vessel and its equipment in a condition such that an experienced longshoreman would be able to work on the vessel with reasonable safety to persons and property by exercising reasonable care.
But there was more to the definition, which was problematic to vessel interests. Included in the definition was the fact that the vessel owner had to take reasonable steps to inspect the vessel and equipment. The vessel owner argued that the jury instructions were flawed because they would have effectively meant an ongoing duty to inspect. Despite this argument, the appeals court ruled in favor of the longshore worker, upholding the decision of the lower court.
In revisiting the question of whether a vessel is safer in port or at sea, one realizes that there are equally abundant hazards in both settings. It’s only that their nature is different. In port, a vessel presents many occupational safety issues in terms of having all sorts of personnel on board running around doing all types of maintenance and repair work. The setting involves open hatch covers, deep cargo holds, and sometimes reduced crew coverage. On the other hand, a vessel at sea can face serious hazards in terms of the elements of nature. One can see that all such hazards warrant respect.
Ref: Murray v. Southern Route Maritime SA; Synergy Maritime PVY LTD, APL Ireland M/V, D.C. No. 2:12-cv-01854RSL, United States Court of Appeals for the Ninth Circuit August 31, 2017
Tim is a NY-based maritime attorney and has taught law at SUNY Maritime College. Erol is a graduate of CUNY School of Law and Farmingdale State College.