Is the turnover duty real, or just unseaworthiness in disguise?

• Author: Kammer, David D.

THE JOB of the longshoreman - loading and unloading cargo-carrying vessels - always has been hazardous. In fact, longshoremen traditionally have been four times more susceptible to injury than the average manufacturing worker. Recognizing these hazards, Congress enacted the Longshore and Harbor Workers' Compensation Act in 1927, which is codified at 33 U.S.C. [sections] 901-950, to provide financial assistance to longshoremen injured in the course of their duties. In addition, for a long time courts have offered longshoremen a third-party cause of action against shipowners for unseaworthiness - a no-fault remedy.

In 1972 Congress enacted the Longshoremen's and Harbor Workers' Compensation Act Amendments of 1972, which were designed to upgrade the benefits, protect additional classes of workers, and specify a cause of action against third parties.(1) The last of these changes became 33 U.S.C. [section] 905(b) of the act, which took away the action against a vessel for unseaworthiness but retained a cause of action based on negligence. This negligence action is referred to as a Section 905(b) action.

The unseaworthiness action had been based on the absolute liability principle that the vessel and all its appurtenances must be reasonably fit for their intended purpose,(2) and it originally was accorded only to seaman in recognition of the hazards of their job.(3) Seas Shipping Co. v. Sieracki(4) in 1946 extended the cause of action to longshoremen.

"Sieracki Seaman," as these longshoremen were called, could recover as long as the unfit vessel caused the injury, regardless of whether the shipowner had knowledge of the defect or breached any standard of care. Even when the dangerous condition was brought into play by the stevedore, the longshoreman's employer, the vessel still was liable for unseaworthiness.(5) At the same time, however, courts allowed the vessel in most cases to recover its damages from the stevedore for breaching its duty of workmanlike performance.(6)

So, in effect, the longshoreman recovered his damages from the stevedore, but it took two actions and heavy litigation costs to settle longshoremen's claims. Congress concluded that the money wasted on litigation could be better used in compensating injured workers'

Congress re-examined the purpose behind' the unseaworthiness remedy and determined that it was no longer appropriate for longshoremen, stating in the House report:

In reaching this conclusion, the committee has noted that the seaworthiness concept was developed by the courts to protect seamen from the extreme hazards incident to their employment which frequently requires long sea voyages and duties of obedience to orders not generally required of other workers. The rationale which justifies holding the vessel absolutely liable to the seamen if the vessel is unseaworthy does not apply with equal force to longshoremen and other non-seamen working on board a vessel while it is in port.(7)

Congress chose to limit longshoremen to claims based on negligence, deciding that the health and safety of longshoremen would be adequately protected by the same cause of action available to their land-based counterparts. The legislation attempted to place longshoremen in no worse a position regarding their rights against a vessel than that of land-based workers, while at the same time relieving a vessel of liability to longshoremen, except in the case of negligence. Congress felt that the land-based standard of negligence adequately protected workers, although it required them to prove that the vessel was at fault in order to hold the vessel liable for injuries.

After enactment of the 1972 amendments, the federal courts of appeals fumbled with differing interpretations of the negligence standard in longshoreman personal injury cases for nine years, until the U.S. Supreme Court in 1981 defined the negligence standard to be applied in Section 905(b) actions in Scindia Steam Navigation Co. v. De Los Santos.(8) Time has shown, however, that even the Supreme Court's Scindia standard lacks clarity. The courts of appeals still fumble with the standard of negligence.

This article examines the first duty of Scindia - the so-called turnover duty - and will show that it is not only inconsistently applied but, in fact, that some decisions have diluted the standard so much that it has become analogous to a cause of action for unseaworthiness, which was forbidden by the 1972 amendments. Because such decisions are not only erroneous but lead to a lack of stability and predictability in longshoremen's actions, the Supreme Court must affirmatively step in and clarify its Scindia holding.

Unseaworthiness Remedy

In the early days of American admiralty law, courts recognized that the traditional remedies of maintenance and cure were the extent of a vessel's liability for personal injury to those working in the service of a vessel.(9) The concept of unseaworthiness was available only in two contexts - first, in the context of mariners suing for wages as an excuse to a charge of desertion, and second, in the context of maritime insurance and the carriage of goods at sea.(10) It was not until the late 1800s that courts began to award recoveries for personal injuries based on a form of unseaworthiness, but this form was quite different from that recognized today because it was inextricably intertwined with the concept of negligence - the breach of a duty of care.

In City of Alexandria," decided in 1883, the federal district court for the Southern District of New York held that a vessel was not liable for "negligence which did not render the ship or her appliances unseaworthy." Thus, seaworthiness had no independent standing as a remedy.

In 1903 the Supreme Court decided The Oceola,(12) in which it implied that it supported the departures from maintenance and cure by the lower courts and backed the independent seaworthiness remedy. While it is doubtful that the Court referred to a cause of action separate from negligence, the decision was looked to in the years that followed to support that proposition.

In Carlisle Packing Co. v. Sandanger,(13) decided in 1922, the Supreme Court recognized a cause of action for seaworthiness by its acceptance of this jury instruction: "We think the trial court might have told the jury that without regard to negligence, the vessel was unseaworthy when she left the dock . . . and that if thus unseaworthy and one of the crew received damage as a direct result thereof, he was entitled to recover compensatory damages."

Finally, in Mahnich v. Southern Steamship Co.,(14) decided in 1944, the Supreme Court put to rest any doubt that the warranty of seaworthiness does not depend at all on the negligence of the vessel. It noted that the ship was "unseaworthy in the sense that it was inadequate for the purpose for which it was ordinarily used. . . . Its inadequacy rendered it unseaworthy, whether the mate's failure to observe the defect was negligent or unavoidable."

While these cases tended to state what the warranty of seaworthiness was not, cases in the following years defined what it was. In Sieracki, decided two years after Mahnich, the Court re-emphasized the independence of the unseaworthiness remedy and stated that unseaworthiness is "essentially a species of liability without fault," and it went on to state that under unseaworthiness "the liability is neither limited by conceptions of negligence nor contractual in character," rather it "is a form of absolute duty owing to all within the range of its humanitarian policy." Sieracki was a landmark for longshoremen because it brought them under the coverage of the unseaworthiness doctrine.

Longshore actions increased so markedly after Sieracki that the Supreme Court chose to refine its standard for unseaworthiness slightly in Mitchell in 1960. Describing the doctrine of unseaworthiness, the Court said:

[T]he owner is [not] obligated to furnish an accident-free ship. The duty is absolute, but it is a duty only to furnish a vessel and appurtenances reasonably fit for their intended use. The standard is not...