LHWCA Section 905(b) and Scindia: The Confused Tale of a Legal Pendulum

• Author: Thomas C. Galligan - Brian C. Colomb
• Position: Interim President of LSU and the Dean of the LSU Paul M. Hebert Law Center - Practices in Lafayette, Louisiana, and is primarily involved in the representation of plaintiffs in personal injury and wrongful death cases
• Pages: 306-348

Louisiana Law Review Louisiana Law Review

Volume 80

Number 2

Winter 2020

Article 9

4-22-2020

LHWCA Section 905(b) and Scindia: The Confused Tale of a Legal LHWCA Section 905(b) and Scindia: The Confused Tale of a Legal

Pendulum Pendulum

Thomas C. Galligan

Louisiana State University Law Center

, tgalligan@lsu.edu

Brian C. Colomb

Follow this and additional works at: https://digitalcommons.law.lsu.edu/lalrev

Part of the Workers' Compensation Law Commons

Repository Citation Repository Citation

Thomas C. Galligan and Brian C. Colomb,

LHWCA Section 905(b) and Scindia: The Confused Tale of a

Legal Pendulum

, 80 La. L. Rev. (2020)

Available at: https://digitalcommons.law.lsu.edu/lalrev/vol80/iss2/9

This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital

Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital

Commons. For more information, please contact kreed25@lsu.edu.

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LHWCA Section 905(b) and Scindia: The Confused

Tale of a Legal Pendulum

Thomas C. Galligan

Brian C. Colomb**

“Opinion is like a pendulum and obeys the same law. If it goes

past the centre of gravity on one side, it must go a like distance on

the other; and it is only after a certain time that it finds the true

point at which it can remain at rest.” — Arthur Schopenhauer1

TABLE OF CONTENTS

Introduction—A Pendulum Swings ............................................. 306

I. Legal Background—A Page or Two of History........................... 312

II. Section 905(b)—Five Frustrating and

Flabbergasting Sentences ............................................................. 314

III. Scindia Steam Navigation Co., Ltd. v. De Los Santos—

The Pendulum Keeps Swinging Away from

LHWCA Worker Recovery.......................................................... 318

IV. The Turnover Duties .................................................................... 327

V. The Active Control Duties ........................................................... 337

VI. The Duty to Intervene .................................................................. 338

Copyright 2020, by THOMAS C. GALLIGAN and BRIAN C. COLOMB.

Thomas C. Galligan is the Interim President of LSU and the Dean of the

LSU Paul M. Hebert Law Center. He is also the Dodson and Hooks Endowed

Chair in Maritime Law, the James Huntington and Patricia Kleinpeter Odom

Professor of Law, and a Professor Emeritus, Colby-Sawyer College.

** Brian C. Colomb practices in Lafayette, Louisiana, and is primarily

involved in the representation of plaintiffs in personal injury and wrongful death

cases. Mr. Colomb has been a frequent lecturer and speaker at CLE programs on

the issue of maritime punitive damages, and he is published in the area of maritime

punitive damages.

1. 1 ARTHUR SCHOPENHAUER, PARERGA AND PARALIPOMENA: A COLLECTION

OF PHILOSOPHICAL ESSAYS 48 (T. Bailey Saunders trans., Cosimo, Inc. 2007).

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306 LOUISIANA LAW REVIEW [Vol. 80

VII. Potential Defendants in a Section 905(b) Action ......................... 339

A. Dual Capacity Employers ...................................................... 340

B. Scindia Extended ................................................................... 340

VIII. Recommendations and Conclusion—

Stop the Pendulum ....................................................................... 342

INTRODUCTION—A PENDULUM SWINGS

This Article is about a pendulum swing. It is about the shift in the

liability of a vessel2 to a longshore worker3 injured while working on or

around the vessel. The Longshore and Harbor Workers’ Compensation

Act (LHWCA), originally passed in 1927, gives maritime workers, who

are not seamen,4 workers’ compensation claims against their employers.

The LHWCA worker, however, has the right to sue the vessel on which he

or she worked in tort. For many years, the pendulum swung in favor of the

longshore worker by providing the worker with a strict liability claim for

injuries caused by the vessel’s unseaworthy condition.5 In 1972, Congress

swung the pendulum back the other way when it enacted 33 U.S.C.A.

§ 905(b), eliminating the unseaworthiness claim6 for a longshore worker

2. In a later Part, we will discuss who the potential defendants might be in

such a case. They include the vessel owner, a bareboat or demise charterer, a time

charterer, a voyage charterer, and an owner pro hac vice. See 33 U.S.C. § 902(21)

(2018). The vessel may also be liable in rem. Thus, throughout, we will refer to

the “vessel” as the defendant.

3. When we use the phrase “longshore worker” or “LHWCA worker,” we

mean someone covered by the Longshore and Harbor Workers’ Compensation

Act (LHWCA), 33 U.S.C. § 901–50.

4. 33 U.S.C. § 902(3)(G).

5. Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 164

(1981) (citing Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946)) (“Prior to 1972,

a longshoreman injured while loading or unloading a ship could receive

compensation payments and also have judgment against the shipowner if the

injury was caused by the ship’s unseaworthiness or negligence.”).

6. A seaworthy vessel is one that is reasonably fit for its intended use. To be

seaworthy, the vessel must be a reasonably fit place to live and work.

Concomitantly, an unseaworthy vessel is one that is not reasonably fit for its

intended use. Thus, unseaworthiness is a condition of the ship—the condition of

not being reasonably fit. See, e.g., FRANK L. MARAIST, THOMAS C. GALLIGAN,

JR., CATHERINE M. MARAIST, & DEAN A. SUTHERLAND, ADMIRALTY IN A

NUTSHELL 239 (7th ed. 2017). It is a type of strict liability. Id. at 240. The

defendant need not have actual or constructive knowledge of the condition. A