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Legal Perspective – What Is An Open and Obvious Hazard?

There are many popular videos out there that captivate the public’s fascination with abandoned places. For boaters, the videos that focus on ships probably hold particular interest. Now and then, I get asked by young people about poking abandoned vessels near their homes. And I always discourage them. It’s not because I don’t like to see kids have fun or feed their curiosity. It’s more about being concerned for them running into legal issues ranging from trespass to larceny.
I also discourage them for concerns about their safety. Decommissioned vessels present their fair share of hazards. Despite the lure of old engine order telegraphs whose bells haven’t signaled full speed ahead for fifty years, many older vessels present serious dangers. This includes hazards from machinery spaces, hazardous chemicals, rusted catwalks, asbestos, and more.
On ships that sit abandoned with their cargo holds not properly cordoned off, one could encounter a frightful four-story fall to a tank top four decks below. Such hazards are genuine enough when a vessel is active, but even worse with a poorly-lit dormant vessel that has been left to deteriorate.
Some shipboard hazards could be considered plain to see, like a flange on a pump shaft. All the same, thoughtful designers still appreciate the importance of guards to protect the fingers of the unwary when that flange looks like nothing more than a blur. Sometimes, these types of marine hazards are not so open and obvious. Steel vessels can present dangers in the form of confined spaces with oxygen levels too low to sustain life – for instance, warships with heavily partitioned crawlspaces that were once part of torpedo protection schemes. That’s a hazard that would not be “open and obvious.” Maybe for a marine chemist, it would be obvious, but not for the average person without awareness training.
This concept of a hazard being “open and obvious” is an important one in maritime law, given that some shipboard hazards are apparent, while others can be more difficult to see. In a recent case, a federal court examined this issue of “open and obvious” hazard. The setting involved a walkway spanning a ship’s cargo hold.
A longshoreman was securing containers for a stevedoring company. He fell off a walkway that spanned two container bays and he sustained injury. There was no rope guard in place on the day of the accident. He brought a lawsuit under the Longshore Harbor Workers’ Compensation Act (LHWCA).
The longshoreman’s lawsuit claimed that the vessel’s interests were negligent. This was based on failing to turn over a safe vessel to the stevedore company and failing to exercise ordinary care to keep the vessel in a reasonably safe condition. The lower court ruled for the vessel’s interests.
In these settings, courts confront something known as a turnover duty. This involves presenting shoreside personnel with a safe ship. It means a vessel owner has to use reasonable care to turn over a vessel in such a state that an expert and experienced longshoreman would enjoy reasonable safety while carrying out the duties of the job. The lower court’s decision here was appealed. In round two, the higher court supported the decision of the lower court.
The higher court held that the vessel interests had not breached the turnover duty in the case of the hazard being “open and obvious.” That was how the higher court characterized the walkway. The court felt that a reasonably competent stevedore could have avoided the risk by first loading the lower bay. That would have reduced the 8-foot gap that one could fall. As such, the longshoreman’s claim for negligence under the Longshore Harbor Workers’ Compensation Act was dismissed.
What’s the lesson here? Vessels, large and small alike, could pose a wide range of hazards to the unwary. On small vessels, many hazards might be seen as straightforward. As vessels get larger and their spaces and systems become more complex, some hazards are not always obvious. But when it comes to those open and obvious hazards, the law places a greater burden on an individual to identify the danger at hand.

Ref: Troutman v. Seaboard Atlantic et al, No. 19-10533 – D.C. Docket No. 1:18-cv-21586-UU, Appeal from the U.S. District Court for the Southern District of Florida (May 2020)