Case Type: Longshore & Harbor Workers’ Compensation Act (LWWCA)
The LHWCA is similar to land-based workers’ compensation laws. If it applies to you and you suffer an injury, then you are automatically entitled to certain Financial benefits no matter who caused your injury.
Benefits and Compensation Under the LHWCA
The federal government estimates that about 500,000 workers qualify for benefits pursuant to the Longshore and Harbor Workers’ Compensation act every year. You, and other dock and harbor workers, may be able to recover:
- Medical expenses, including compensation for doctors’ appointments, surgeries, and hospital stays.
- Two thirds of your weekly salary (up to a maximum amount set by law ) if you are disabled. You may continue to recover this compensation until you’re able to work again. Compensation is also available if you have suffered a permanent disability.
If your loved one has died and was covered by Longshore and Harbor Workers’ Compensation Act, then you may also be entitled to benefits. Those benefits may include compensation for medical expenses and half of your loved ones average weekly income for the rest of your life or until you remarry.
905(B) Cases and Injury Claims Against The Shipowner
A 905(B) is a unique kind of offshore injury case. The section of the LHWCA that addresses these claims is 33 U.S.C.A. 905(B). However, most people just refer to these claims as “905(B)” cases. Under this part of the LHWCA, titled ‘negligence of vessel,” if your injury was caused by the negligence of the owner or operator of a vessel, then you can bring a claim against the vessel owner. This is similar to a “third party” claim under land-based law.
Our offshore injury lawyers have handled a lot of 905(b) claims. Unfortunately, we often see that injured offshore workers, and even their attorneys, fail to identify that this claim exists. The result? A lot of money is left on the table. The maritime companies and their insurance companies certainly don’t mind paying less money on claims, and therefore they do not go out of their way to educate their employees about these claims.
Here is where things get trickier. Section 905(B) does not come out and say what you must provide in order to win your third-party cases. To learn that, one must be familiar with a case the United States Supreme Court decided back in 1981, called Scindia Steamship Navigation Co., Ltd. v. De Los Santos.
Three Types of 905(B) Claims
In the Scindia case, the Supreme Court basically created three types of claims you can bring under 905(B), named after duties placed on ship owners with respect to these claims:
- Turnover Duty
- Active control Duty
- Duty to intervene
All these claims are very narrowly defined, and generally they are more difficult to win than your average offshore injury case.
In a turnover case, you must prove the ship owner turned the ship over to the stevedore (or repair, or whatever) company in a dangerous condition, which was a cause of the injury. For example: the ship owner a new about a defect in a crane aboard its vessel, which caused your injury, but didn’t do anything to fix the crane or warn you or your company about the problem.
In an active control case, you must show the ship owner retained control over part of the operations on the vessel, and did something that caused your injury. For example: the ship owner involves itself in stevedore operations aboard its vessel by having its employees operate a crane on the vessel, and the crane strikes a stevedore and injures him.
In a duty to intervene case, you must show the ship owner was aware of a dangerous condition and that you were not aware of it, and the dangerous condition caused your accident. This is similar to a turnover case, discussed above.
Keep in mind, as a general rule you can keep collecting LHWCA benefits, while at the same time pursuing a 905(b) case. However there are certain exceptions when you can forfeit your third-party case by collecting LHWCA benefits, but details of this are beyond the scope of this article.