'Open and obvious' defence will help shipowners

The acceptance of the US Court of Appeals for the Fifth Circuit Court that some dangers and unstable conditions should be "open and obvious" to stevedores injured during ships' cargo discharge will be welcomed by ship owners. The Fifth Circuit, which covers Louisiana, Mississippi and Texas, sustained this defence in the recent Kirksey v. Tonghai Maritime case.

Whilst unloading the M/V Tonghai, longshoreman Kirksey was severely injured by a falling four-ton steel coil, leading to amputation of his right leg above the knee. He sued both vessel owner and charterer, both UK Club members, in federal court in Texas, before a highly sympathetic judge.

Under the Longshore and Harbor Workers Compensation Act (LHWCA), an owner has a duty to ensure that he turns over his ship and equipment in a condition whereby an experienced stevedore can perform his job in reasonable safety. He must warn the stevedore of latent or hidden dangers, take reasonable care to avoid negligence and exercise a limited duty to intervene.

Although the cargo stow, which had shifted during the voyage, had arrived in port in a condition showing open and obvious hazards, the judge in the initial trial ignored this fundamental defence, accepting Kirksey's argument that the stow was "unreasonably dangerous" and that he should have been warned about it. The judge awarded Kirksey $1.9 million damages.

The UK Club felt compelled to appeal this case as the plaintiff's claim would set precedents for further suits from longshoremen. If the judge's opinion and ruling were allowed to stand, one of the fundamental liability defences provided by LHWCA----that the hazardous condition of the cargo stow should be open and obvious to a stevedore----would lapse. This would effectively resurrect the strict liability regime for ship owners which had been abolished by LHWCA .

The UK Club's Bodily Injury team worked closely with counsel in crafting the appeal on behalf of charterer and owner. The Fifth Circuit agreed that the judge's decision could not stand, concluding that owner and charterer had no obligation to warn of a stow danger that was open and obvious.

The case is highlighted in the October issue of Bodily Injury News, published on behalf of the UK P&I Club by Thomas Miller (Americas) Inc.

Bodily Injury News, edited by Louise Livingston, also contains articles on medical issues, maintenance and cure, the application of the Death on the High Seas Act and comparative fault as a defence in maritime law. They were contributed by Bodily Injury team members Karen Hildebrandt, Jana Bryon and Dee O'Leary of TMA's New Jersey and San Francisco offices.

A third of all claims made against the UK P&I Club are for personal injury. More than half of such claims for over $100,000 are brought in the American courts.

-ends-