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Article: Eleventh Circuit decision confirms use of open and obvious defense

20 May 2020

Introduction

The Longshoreman and Harbor Workers’ Compensation Act (LHWCA) is a US statute which provides compensation for longshoreman and harbour workers injured on the job. Generally, once stevedoring operations have begun, the owner has no duty to supervise or inspect the work and must only take care to prevent unreasonable hazards. A ship owner owes certain duties, known as the 'Scindia duties', to such workers including:

  1. the turnover duty
  2. the 'active control' duty
  3. the duty to intervene


The case discussed below is an important decision for members as it confirms the open and obvious defense to the turnover duty (discussed in a previous article, linked on the right).


Summary

The United States Court of Appeals for the Eleventh Circuit has affirmed judgement in favor of a shipowner for an injured longshoreman’s claim under § 905(b) of the Longshore and Harbor Workers' Compensation Act.  Troutman vs Seaboard Atlantic Ltd, No. 19-10533, 2020 WL 2462547, ___ F. 3d ___ (11th Cir. May 13, 2020).  The Troutman decision confirms the availability of the 'open and obvious' defense to a shipowner’s potential turnover duties in the Eleventh Circuit.

In Troutman, the longshoreman fell from a walkway on the upper deck of the ship where he had been lashing containers, sustained injuries, and brought a claim against a shipowner and its charterer. An elevated walkway ran along the bottom of one of the bays and directly above the other. The record indicated that the injured longshoreman had worked on that vessel over 20 times previously and knew other instances when the elevated walkway was protected by a rope fence. On the day of the incident, and contrary to previous practice, the stevedore elected to load the upper bay before the lower one because of a delay in readying the containers. There was no rope fence protecting the walkway that day when the longshoreman was injured. Record evidence indicated that he knew that the walkway was unsafe without the rope fence. The district court granted summary judgment.

On appeal, the Eleventh Circuit addressed a question of first impression within the Circuit: 

'when, if ever, a negligence claim for breach of the shipowner’s duty to turn over a vessel in safe condition properly lies where the plaintiff was injured by an open and obvious hazard.'

The Court, in analysing this issue, looked at previous precedent under the Longshore Harbor Workers’ Compensation Act. Answering the question affirmatively, the Eleventh Circuit held that, although not absolute, the open and obvious defense can be applied as a matter of law in cases brought by longshoremen under 905(b) of the Longshore Workers’ Compensation Act.

The decision in Troutman continues the Eleventh Circuit trend of narrowly defining the duties a shipowner owes to longshoremen after the vessel has been turned over. It also clarifies that the open and obvious defense applies to cases brought under 905(b) and can allow the court to grant summary judgment where those facts are not in dispute. The full text of the Troutman decision is available here.

The club would like to thank Mr Todd Baiad of Bouhan Falligant, for the summary of this decision.