Beyond LHWCA Benefits: Injured Longshore Workers’ Third-Party Suits

Injured or sickened longshore and harbor workers may be able to sue third parties.

The federal Longshore and Harbor Workers’ Compensation Act or LHWCA, provides benefits to longshore and harbor workers injured in the course of employment. The LHWCA operates like a state workers’ compensation scheme by providing a covered maritime longshore worker injured at work with an exclusive legal remedy against the employer, regardless of who was at fault.

This means that a longshore worker (or his or her survivors in a death case) cannot normally collect both LHWCA benefits and sue the employer for the injury or occupational illness; only the LHWCA award is available vis-à-vis the employer.

The LHWCA does allow a lawsuit against a nonemployer third party for work-related harm in two situations. (The longshore worker does not need to elect between the LHWCA benefit and the third-party lawsuit; he or she may pursue both.)

A Section 905(b) suit is allowed for “negligence of a vessel” that the worker was working on or “in connection with.” A vessel negligence suit can be filed against the vessel’s “owner, owner pro hac vice, agent, operator, charger or bare boat charterer, master, officer, or crew member” for maritime negligence that caused the longshore worker’s injury or illness.

If the employer is also the vessel owner (or any of the other players who may be sued), the injured worker may sue his or her employer in its capacity as a negligent vessel owner and not as an employer, despite the LHWCA claim. (However, this is not permitted if the employee was engaged in “shipbuilding, repairing, or breaking service.”)

Section 905(b) cases involve three kinds of negligence: vessel owner (or other listed responsible party) breach of the duty to provide the ship in a safe condition or warn of hidden dangers; breach of the duty to prevent worker injury when the owner is in active control of the ship; or breach of the duty to intervene to protect workers from known danger during operations.

An injured longshore worker may also bring a Section 933 lawsuit against a third party (other than the vessel owner) under federal or state law. Examples of such potential claims include:

• Negligence of a contractor or nonemployer on the work site
• Product liability claim against the manufacturer, distributor or seller of defective or dangerous equipment
• Negligent repair or maintenance of equipment
• Negligent ship loading that caused harm to the unloader
• And more

An LHWCA claim pays benefits for medical expenses, partial wage replacement, disability and vocational rehabilitation, depending on the circumstances. (In death cases, qualified survivors receive partial wage replacement and funeral expenses.)

A third-party suit may allow damage types unavailable in an LHWCA claim. For example, depending on the lawsuit and jurisdiction, damages may be allowed for interest, diminished earning capacity, pain and suffering, emotional harm, loss of consortium or enjoyment of life, and more, plus potential punitive damages, meant to punish the defendant and deter others from similar behavior.

This article only introduces an incredibly complex area of law. It is important for an injured longshore worker to discuss the injury and surrounding circumstances with an experienced maritime attorney as early as possible so as to get guidance about filing claims and notices on time and not waiving potential rights. In addition, legal counsel can communicate with the involved insurance companies on behalf of the worker.

A longshore and harbor worker lawyer will also investigate the situation using engineering or medical experts who can help determine liability.

From its office in Seattle, the maritime attorneys at Kraft Davies Olsson PLLC, represent injured harbor and longshore workers in LHWCA and third-party claims.

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