US Court rules that ship owners do not have a turnover duty for cargo stow

25 July 2008

AN IMPORTANT decision by the US Fifth Circuit Court of Appeals has been reported by the Clubs New Orleans correspondents, Phelps Dunbar. The Court concluded that ship owners are not liable for injuries to US port longshoremen caused by an open and obvious defect in the cargo stow. The court also ruled that an owner has no duty to warn the stevedore of heavy weather encountered by their vessels.
Kirksey v. Tonghai Maritime, No. 07-40616 (5th Cir. July 15, 2008) (Higginbotham, Davis and Demoss) involved a longshoremans claim under Section 905(b) of the Longshoremens and Harbor Workers Compensation Act (LHWCA) against the vessel owner, operator and charterer (vessel owner). Longshoreman Kirksey suffered serious injury when a steel coil fell from the stow crushing his leg and hand. The vessel had encountered heavy weather and some of the steel coils were leaning, creating a danger to the workers. The condition of the stow as open and obvious was never questioned.
At trial, Judge Samuel B. Kent of the Southern District of Texas found that the unstable condition of the stow made the ship dangerous to the unloading longshoremen and that the vessel owner had failed to hand the ship to the stevedore in a safe state for unloading. The trial court further held that the open and obvious condition of the stow was not a defence, because the longshoreman had no reasonable alternative but to unload. Finally, it was found that the vessel owner had a duty to tell the stevedore that the vessel had encountered Force Nine winds at sea. The trial court entered judgment against the vessel owner for more than US$1.9 million.
The Fifth Circuit disagreed, finding in favour of the vessel owner. Relying on the United States Supreme Courts decisions in Scindia Steam Nav. Co., Ltd. v. De Los Santos, 451 U.S. 156 (1981) and Howlett v. Birkdale Shipping Co., 512 U.S. 92 (1994). The court:
 found that a longshoreman cannot recover damages from the vessel owner when his injuries are caused by an open and obvious defect in the cargo stow. This holding will impede attempts to circumvent the limitations on recovery against vessel owners under Section 905(b).
 ruled that the no reasonable alternative exception generally applies only to dangerous conditions in the ships equipment or to conditions created by the ship owners negligence and not to a cargo stow.
 clarified that under Howlett, there is no duty to warn that the vessel encountered heavy weather that created the risk of cargo movement.
The full decision can be found at
If you would like additional information please contact Kathleen Hopkins Alsina of Phelps Dunbar LLP on [email protected] or Thomas R. Nork on [email protected].