TOPIC 5 EXCLUSIVENESS OF REMEDY AND THIRD PARTY LIABILITY
5.1 EXCLUSIVITY OF REMEDY
Section 5(a) of the LHWCA provides:
The liability of an employer prescribed in section 4 shall be
exclusive and in place of all other liability of such employer to the
employee, his legal representative, husband or wife, parents,
dependents, next of kin, and anyone otherwise entitled to recover
damages from such employer at law or in admiralty on account of
such injury or death, except that if an employer fails to secure
payment of compensation as required by this Act, an injured
employee, or his legal representative in case death results from the
injury, may elect to claim compensation under the Act, or to
maintain an action at law or in admiralty for damages on account of
such injury or death. In such action the defendant may not plead as
a defense that the injury was caused by the negligence of a fellow
servant, or that the employee assumed the risk of his employment,
or that the injury was due to the contributory negligence of the
employee. For purposes of this subsection, a contractor shall be
deemed the employer of a subcontractor's employees only if the
subcontractor fails to secure the payment of compensation as
required by section 4.
33 U.S.C. § 905(a).
5.1.1 Exclusive Remedy
Section 5(a), which provides that an employer's liability under the LHWCA is "exclusive," precludes
injury-related tort claims brought pursuant to state law. Texas Employers' Ins. Ass'n v. Jackson,
820 F.2d 1406, reh'g granted en banc, 828 F.2d 1 (5th Cir. 1987), cert. denied, 490 U.S. 1035 (1989)
(decision includes discussion of when state actions and federal proceedings not explicitly provided for by the LHWCA are preempted by the scope of the LHWCA).
However, an intentional tort claim was not subject to the exclusive remedy provision of the LHWCA in Taylor v. Transocean Terminal Operators, Inc., 785 So.2d 860 (La. App. 4th Cir.), cert.
denied, 793 So.2d 1243 (La.), cert. denied, ___ U.S. ___,
122 S.Ct. 547 (2001) ("Because the LHWCA provides benefits only for injuries caused by (1) accidents, (2) occupational disease and (3) willful acts of third persons (and "third persons" does not include employers), and an intentional tort by an employer fits none of those three categories, the LHWCA does not provide any benefits for injuries caused by an
intentional tort by an employer. ...[I]t logically follows that LHWCA's exclusive remedy provision does not apply to employer intentional torts either.").
The court in Taylor had posed the issue presented as a purely legal one: "In the case of an
intentional tort by (or attributable to) the employer, is the "exclusive remedy" provision of the LHWCA, 33 U.S.C. § 905, applicable so that the employee may recover only compensation benefits and is barred
from bringing a tort action against the employer?" The court then noted that Louisiana workers' compensation law has an intentional tort exception and went
on to address the LHWCA:
The complicating factor with respect to the LHWCA is that the LHWCA does not have a specific provision expressly stating that an employer's intentional tort is an exception to the statue's "exclusive remedy" provision. Nevertheless, over the last twenty
years, a number of court decisions, from Louisiana and from other jurisdictions, have stated that an employer's intentional tort is an exception to the exclusive remedy provision
of the LHWCA and that, is such cases, the employee may bring a tort action against the employer. The decisions so stating included recent ones from Louisiana's First
and Fifth Circuit Courts of Appeal. See Malbrough v. Halliburton Logging Services, Inc., 97-0378
(La.App. 1 Cir. 4/8/98), 710 So.2d 1149, 1152; Gauthe v. Asbestos Corp., 97-941 (La.App. 5 Cir. 1/27/98), 708 So.2d 761. Other decisions so stating include ones from
the federal district courts for the Eastern and Western Districts of Louisiana. See Johnson
v. Odeco Oil & Gas Co., 679 F. Supp. 604, 606-607 (E.D. La. 1987); Sharp v. Elkins,
616 F.Supp. 1561, 1565 (W.D.La. 1985)
The position that an intentional tort presents an exception to the exclusive remedy provison of the LHWCA is not new. Two cases so stated at least twenty years ago. See Austin
v. Johns-Manville Sales Corp., 508 F.Supp. 313, 316 (D.Me.1981); Houston v. Bechtel Associates, 522 F.Supp. 1094, 1096 (D.D.C. 1981). See also Espadron v. Baker-Houghs, Inc.,
97-1951 (La. App. 4 Cir. 4/22/98) 714 So.2d 60,62 (plaintiff, while entitled to LHWCA compensation benefits "may not bring a claim against [his employer]
for non-intentional tort.
When it was argued that the above cited cases were dicta, the court in Taylor responded:
The courts' opinions make clear that each adopted the position that an intentional tort constitutes an exception to the LHWCA's exclusive remedy provision prior to turning to the issue of whether there was, in fact, an intentional tort present in the cases before them. If they had considered the LHWCA's exclusive remedy provisions to be applicable even
to cases of employer intentional torts, then they would not have had any need to go on to decide whether there was, in fact, an intentional tort. The fact that, in each case, the courts found that there was no intentional tort simply reflects how strictly they applied the exception for intentional torts. See, e.g., Austin,
508 F.Supp. At 316 ("Nothing short of a specific intent to injure the employee falls outside of the scope of the [LHWCA]"); Johnson, 679 F.Supp. At 606-607 (willful and wanton misconduct not sufficient to make exception applicable). In any event, even if we were to accept the characterization of these decisions both local and national, both state and federal, both recent and long-established and, perhaps most strikingly, apparently uncontradicted by any other caselaw.
A railroad employee, who is covered by the LHWCA, may not pursue an action under the Federal Employers' Liability Act (FELA), 45 U.S.C.A. § et seq. Chesapeake & Ohio
Ry. v. Schwalb, 493 U.S. 40 (1989); Etheridge v. Norfolk & Western Railway Co., 9 F.3d 1087 (4th Cir. 1993); Hayes v. CSX Transp., Inc., 985 F.2d 137 (4th Cir. 1993).
In Johnson v. Odeco Oil & Gas Co., 864 F.2d 40, 44 (5th Cir. 1989), despite the plaintiff's
contention that the employer made a conscious decision to commit an intentional tort by not evacuating employees from a drilling platform in the Gulf of Mexico during a hurricane, the court concluded that the
employee was limited to an exclusive remedy under the LHWCA.
The exclusivity provision of Section 5(a), coupled with Section 14(e), which imposes assessments for late compensation payments, operates to bar a claimant's state cause of action for intentional or bad
faith wrongful refusal to pay benefits under the LHWCA. Atkinson v. Gates, McDonald & Co., 838 F.2d
808, 812, 21 BRBS 1 (CRT) (5th Cir. 1988). See Grantham v. Avondale Indus., 964 F.2d 471, 473-74
(5th Cir. 1992). Compare Hall
v. C & P Tel. Co., 809 F.2d 924, 926 (D.C. Cir. 1987) (finding state tort claim based on employer's intentional refusal to make timely compensation payments preempted by
the LHWCA); Sample v. Johnson, 771 F.2d 1335, 1345-47, 18 BRBS 1 (CRT) (9th Cir. 1985), cert.
denied, 475 U.S. 1019, 1206 (1986) (holding state wrongful refusal to pay claim barred by exclusivity and
penalty provisions of the LHWCA).
See 2A Larson, The Law of Workmen's Compensation § 68.34(c), 13-145 (1992) (The majority
view is that "the presence in the statute of an administrative penalty for the very conduct on which the tort suit is based ... evidences a legislative intent that the remedy for delay in payments, even vexatious delay,
shall remain within the system in the form of some kind of penalty."). Accord Barnard v. Zapata-Haynie
Corp., 975 F.2d 919, 921 (1st Cir. 1992).
In Brown v. Forest Oil Corp., 29 F.3d 966 (5th Cir. 1994),
the employee had signed an "Insurance Waiver Agreement" with the employer who did not have LHWCA coverage. The evidence was to the effect that neither party knew that the work in question was covered under the LHWCA rather than under a state workers compensation act. The employee sued under Section 905(a) and also filed a federal breach of contract suit against the employer. However, the Fifth Circuit found that the breach of contract claim must fail because the contract was void under the LHWCA. Alternatively, the claimant argued that there was fraud and misrepresentation. However, the Fifth Circuit noted that to prevail on these grounds,
a claimant must prove that the employer intended to defraud the claimant, or gain an unfair advantage and a resulting loss, or damages.
Although the LHWCA allows an employee to pursue personal injury actions against third parties, it does not allow an employee to maintain a tort action if the employee is a borrowed servant. The word
"employer" in Section 905(a) encompasses both general employers and employers who "borrow" a servant from that general employer. White v. Bethlehem Steel Corp., 222 F.3d 146 (4th Cir.
2000); see Huff v. Marine Tank Testing Corp., 631 F.2d 1140 (4th Cir. 1980); Peter v. Hess Oil Virgin
Islands Corp., 903 F.2d 935 (3d Cir. 1990); Gaudet v. Exxon Corp., 562 F.2d 351 (5th Cir. 1977).
A person can be in the general employ of one company while at the same time being in the particular employ of another "with all the legal consequences of the new relation." See Standard Oil Co. v. Anderson, 212
U.S. 215 (1909). In order to determine whether an employee is a borrowed servant, courts must inquire whose work is being performed. This can be done by ascertaining who has the power to control and direct
the servants in the performance of their work. However, it is important to distinguish between authoritative direction and control, and the mere suggestion as to details or the necessary cooperation. Anderson.
The authority of the borrowing employer does not have to extend to every incident of an employer-employee relationship; rather, it need only encompass the employee's performance of the particular work
in which he is engaged at the time of the accident. Anderson; McCollum v. Smith, 339 F.2d 348, 351 (9th
Cir. 1964). When the borrowing employer possesses this authoritative direction and control over a particular act, it in effect becomes the employer. In that situation, the only remedy for the employee is
through the LHWCA. White. In order to determine direction and control, a court may look at factors such
as the supervision of the employee, the ability to unilaterally reject the services of an employee, the payment of wages and benefits either directly or by pass-through, or the duration of employment. Ultimately, any
particular factor only informs the primary inquiry-whether the borrowing employer has authoritative direction and control over a worker. White.
5.1.2 Right to Sue Employer If No Coverage
Under Section 5(a), an employer's exclusive liability stemming from employment-related injuries
is compensation benefits under the LHWCA. If the employer fails to secure payment of compensation
under the LHWCA, however, the right of immunity is lost and the claimant may elect to claim compensation
or bring a suit at law or in admiralty for damages against the employer. In such a suit, moreover, the
employer may not rely on the defenses of the negligence of a fellow servant, assumption of risk, or
contributory negligence.
The Supreme Court in Chesapeake & Ohio
Railway Co. v. Schwalb, 493 U.S. 40, 23 BRBS
96 (CRT) (1989), held that railroad workers injured while maintaining or clearing equipment that is used
to load and unload coal from ships are covered by the LHWCA and not the Federal Employers Liability
Act (FELA), which provides a negligence cause of action. In Kelly
v. Pittsburgh & Conneaut Dock Co.,
900 F.2d 89 (6th Cir. 1990), the plaintiff-employee's personal injury action under the FELA was
foreclosed because his exclusive remedy was provided by the LHWCA, notwithstanding concurrent
jurisdiction.
The entry of an order by the judge approving a settlement agreement under the LHWCA
constitutes a finding that the injuries suffered are compensable under the LHWCA, barring the injured party
from pursuing a Jones Act suit for the same injuries. Sharp v. Johnson Bros. Corp., 973 F.2d 423, 426-27,
26 BRBS 59 (CRT) (5th Cir. 1992), cert. denied, 508 U.S. 907 (1993). See Vilanova v. United States,
851 F.2d 1, 21 BRBS 144 (CRT) (1st Cir. 1988), cert. denied, 488 U.S. 1016 (1989) (Congress did
not intend to give injured workers two chances to maximize their compensation award).
Where a claimant works for a subcontractor, the subcontractor enjoys the Section 5(a) immunity
from suit. The United States Supreme Court held in Washington Metropolitan Area Transit Authority
v. Johnson, 467 U.S. 925 (1984), that a general contractor which purchased compensation insurance
covering its subcontractors could enjoy the Section 5(a) immunity. In enacting the 1984 Amendments,
Congress specifically disapproved of Johnson,
amending Section 5(a) to provide that a general contractor
is considered an "employer," and thus enjoys Section 5(a) immunity only where
the subcontractor actually fails to provide compensation under the LHWCA and
the general contractor thereafter provides the
compensation benefits. Frederick v. Mobil Oil Corp., 765 F.2d 442 (5th Cir. 1985); Louviere v.
Marathon Oil Co., 755 F.2d 428, 17 BRBS 56 (CRT) (5th Cir. 1985). (See Topic 4, supra).
The Board in Rice v. McKendree United Methodist Church, 6 BRBS 242 (1977) (Order),
directed that the judge, at a hearing where Section 5 was in issue, was limited to deciding the question of
employer's insurance coverage when the claimant had moved the issues be so limited. By proceeding with
other issues in the case, the judge may have forced the claimant to elect his remedy against the employer.
5.1.3. Contractor/Subcontractor
(See Topic 4.)
5.2 THIRD PARTY LIABILITY
5.2.1 Generally
Section 5(b) of the LHWCA prescribes:
In the event of injury to a person covered under this Act caused by
the negligence of a vessel, then such person, or anyone otherwise
entitled to recover damages by reason thereof, may bring an action
against such vessel as a third party in accordance with the
provisions of section 33 of this Act, and the employer shall not be
liable to the vessel for such damages directly or indirectly and any
agreements or warranties to the contrary shall be void. If such
person was employed by the vessel to provide stevedoring
services, no such action shall be permitted if the injury was caused
by the negligence of persons engaged in providing stevedoring
services to the vessel. If such person was employed to provide
shipbuilding, repairing, or breaking services and such person's
employer was the owner, owner pro hac vice, agent, operator, or
charterer of the vessel, no such action shall be permitted, in whole
or in part or directly or indirectly, against the injured person's
employer (in any capacity, including as the vessel's owner, owner
pro hac vice, agent, operator, or charterer) or against the
employees of the employer. The liability of the vessel under this
subsection shall not be based upon the warranty of seaworthiness
or a breach thereof at the time the injury occurred. The remedy
provided in this subsection shall be exclusive of all other remedies
against the vessel except remedies available under this Act.
33 U.S.C. § 905(b).
Section 5(b) permits a claimant to sue a vessel for negligence. A claimant may not base a suit
against a vessel on the strict liability theory of the warranty of seaworthiness. A vessel sued for negligence
may not seek indemnity from the employer, thus preserving the employer's Section 5(a) immunity.
Castorina v. Lykes Bros. Steamship Co., 758 F.2d 1025, 1033, 17 BRBS 68 (CRT) (5th Cir.), cert.
denied, 474 U.S. 846 (1985); see McCarthy v. The Bark Peking, 716 F.2d 130, 133 n.1, 15 BRBS 182,
186 n.1 (CRT) (2d Cir. 1983), cert. denied, 465 U.S. 1078 (1984); Christensen v. Georgia-Pacific Corp,
___ F.3d ___ (No. 00-35922) (9th Cir. Nov. 9, 2001).
In Rodriquez v. Bowhead Transportation Co., 270 F.3d 1283 (9th Cir. 2001), the Ninth Circuit held
that under Section 905(b), a "time charterer" can be sued as a "vessel." The court stated, "Our
cases make no distinction between charters and shipowners as far as who is
a 'vessel' under the LHWCA."
Basic principles governing a vessel's duty to longshoremen are found in Scindia Steam Navigation
Co. v. De Los Santos, 451 U.S. 156 (1981), which includes two tenets: (1) as a general matter, the
shipowner may rely on the stevedore to avoid exposing longshoremen to unreasonable hazards, and (2)
the vessel owes to the stevedore and his longshore employees the duty of exercising due care under the
circumstances. See Masinter v. Tenneco Oil Co., 867 F.2d 892, 896 (5th Cir. 1989), modified on other
grounds, 929 F.2d 191, recalled, reformed, 934 F.2d 67 (5th Cir. 1991) (three exceptions temper the
broad statement of vessel immunity).
The Scindia Court provided
guidance as to the primary factors of the shipowner's duty to a longshoreman.
First, "the shipowner has a "turnover duty," which is to warn the longshoremen
of hazards from gear, equipment, tools and workspace to be used in cargo
operations 'that are known to the ship or
should be known to it in the exercise of reasonable care.'" See England v. Reinauer Transportation Cos.,
194 F.3d 265, 270 (1st. Cir. 1999), quoting Scindia Steam, 451 U.S. at
167. Second, "the vessel is
liable for a breach of its "active control duty" if it 'actively involves itself
in the cargo operations and negligently injures a longshoreman' or 'if it fails
to exercise due care to avoid exposing longshoremen to
harm from hazards they may encounter in areas, or from equipment, under the active
control of the vessel
during the stevedoring operation.'" See id.
And third, "under the "duty to intervene," the shipowner has
a duty only if 'contract provision, positive law, or custom' dictates 'by way
of supervision or inspection [that the shipowner] exercise reasonable care to
discover dangerous conditions that develop within the
confines of the cargo operations that are assigned to the stevedore.'" See id.
In Kirsch v. Plovidba, 971 F.2d 1026, 1029-30 (3d Cir. 1992), the Third Circuit held that a
shipowner was liable for injuries of longshore workers who failed to avoid obvious danger only if the
shipowner should have expected workers could not, or would not, avoid danger and conduct cargo
operations reasonably safely; see also Gay v. Barge 266, 915 F.2d 1007 (5th Cir. 1990) (whether
shipowner breached its duty to intervene in the face of actual knowledge of the stevedoring crew's use of
a board for a gangway which was the proximate cause of Gay's accident and injury); Randoph v. Laeisz,
896 F.2d 964 (5th Cir. 1990) (actual knowledge of a dangerous condition [damaged gangway] does not
in and of itself render the vessel's failure to act negligent); Helaire v. Mobil Oil Co., 709 F.2d 1031, 1038-39 (5th Cir. 1983) (clarifies the shipowner's duty to intervene in cargo operations conducted by an
independent stevedore based on actual knowledge of dangerous conditions and the stevedore's failure to
remedy the situation).
In Heavin
v. Mobil Oil Exploration & Producing Southeast, 913 F.2d 178, 180 (5th Cir. 1990),
an employee injured on a drilling platform used by three different oil companies filed a tort action against
two of the companies after receiving compensation benefits from the third company. The suit was defended
on the theory, which the court adopted, that the oil companies formed a joint venture to operate the
platform, that the injured worker was an employee of the joint venture, and that the joint venture had
immunity from negligence actions as an employer under the LHWCA.
Prior to the 1984 Amendments, the LHWCA provided that the vessel would not be liable if the
person was employed by the vessel to provide stevedoring, shipbuilding, or repair services and the injury
was caused by the negligence of persons engaged in providing such services. The 1984 Amendments
continue this provision for persons providing stevedoring services.
The Amendments increase protection for shipbuilding employers (who might be considered
temporary vessel owners) by preventing claimants who provide shipbuilding, repairing, or breaking services
from employing the dual capacity doctrine and providing that such claimants may not maintain a suit against
their employer or any employees of the employer. Easley v. Southern Shipbuilding Corp., 965 F.2d 1 (5th
Cir. 1992). Cf. New v. Associated Painting Servs., 863 F.2d 1205 (5th Cir. 1989). See Joint
Explanatory Statement of the Conference Committee, H.R. Rep. No. 98-1027,
98th Cong. 2d Sess., 23-24, reprinted in Vol. A BRBS 5-69, 5-71; 1984 U.S. Code
Cong. & Ad. News 2772, 2774.
The 1984 Amendments to Section 5(b) apply to any injury after the enactment date.
5.2.2 Indemnification
In Smith v. United States, 980 F.2d 1379, 1381 (11th Cir. 1993), the court specifically followed
Pippen v. Shell Oil Co., 661 F.2d 378, 14 BRBS 66 (5th Cir. 1981),
in holding that "a suit by a third party
against the employer based on a contract of indemnity would not be an action
'on account of' the injury, see § 5(a), but on account of the contract of indemnity." The Fifth Circuit further
noted that § 5(b)
prohibited indemnity actions by vessels only and that the prohibition did not
extend to non-vessels or
shipyards, as in this case. See for example, Fontenot v. Dual Drilling Co., 179 F.3d 969 (5th Cir. 1999),
cert. denied, ___ U.S. ___,
120 S.Ct. 616 (1999),(in this claim of a non-seaman casing worker on a platform
on the Outer Continental Shelf, offshore Louisiana, submission of employer fault
was not
prohibited by LHWCA § 905(b) since employer here is not a vessel defendant).
Once an employee's status in maritime employment within the meaning of the LHWCA is
established, the employer is immune from a vessel owner's indemnification demands. Boudreaux v.
American Workover, Inc., 680 F.2d 1034, 14 BRBS 1013 (5th Cir. 1982), cert. denied, 459 U.S. 1170
(1983).
In Cove Tankers Corp. v. United Ship Repair, 683 F.2d 38, 14 BRBS 916 (2d Cir. 1982),
after
an extensive discussion of the term "navigable waters of the United States," the
court limited the issue presented to whether the LHWCA can ever be applied when
an injury occurs on the high seas. Based on
the special facts of this case, i.e., injuries sustained while employees were
performing traditional ship repair functions on a U.S. flag vessel sailing from
one American port to another, which deviated into territorial
waters of a foreign nation, the Second Circuit concluded that the employees were covered by the
LHWCA and indemnification was barred by Section 5(b).
Whether an ALJ
has jurisdiction to determine the merits of certain contractual rights and
liabilities arising
from an indemnification agreement between an employer and borrowing employer,
and a waiver of
subrogation, turns on the interpretation of that portion of Section 19(a) of
the LHWCA stating that an ALJ
has authority "to hear and determine all questions in respect of such claims." Temporary Employment
Services v. Trinity Marine Group, Inc., ___ F.3d ___ (5th Cir. 2001). Here the Fifth Circuit found that
the contract dispute was not integral to the longshore compensation claim and that the ALJ did not have
statutory authority to determine this issue.
5.2.3 Dual Capacity Status of Maritime Employer
The legislative history of Section 5(b) demonstrates that a vessel is treated as a distinct entity from
its owner. The owner may in fact be an employer within the meaning of the LHWCA. Jones & Laughlin
Steel Corp. v. Pfeifer, 462 U.S. 523, 530-31 (1983). In Taylor v. Bunge Corp., 845 F.2d 1323, 1327
(5th Cir. 1988), the Fifth Circuit observed
that the LHWCA "creates a harmonious scheme, guaranteeing
both that the exclusive remedy against the employer is the employee's action
for statutory benefits, and that, in the event of a longshoreman's recovery against
a third party, the employer's lien prevents double
recovery."
In Taylor, the employee and the vessel (also the employee's employer) entered into a settlement
of a third party claim which provided that the vessel would indemnify the employee against the employer's
lien for compensation benefits paid. The court held that the compensation carrier, which sought to recover
under the lien against the settlement proceeds, was not precluded from doing so by either the dual capacity
of the employer-owner or the indemnification terms of the settlement. Id. at 1329-30. See Eagle-Picher
Indus. v. United States, 937 F.2d 625, 628 (D.C. Cir. 1991).
If a claimant's employer happens also to own the vessel, the claimant can receive compensation
benefits from the employer as well as sue the employer "qua vessel" for negligence in its capacity as
vessel owner. Jones & Laughlin
Steel Corp. v. Pfeifer, 462 U.S. at 532; Peter v. Hess Oil Virgin Islands
Corp., 903 F.2d 935, 948 (3d Cir. 1990), cert. denied, 498 U.S. 1067 (1991); Roach v. M/V Aqua
Grace, 857 F.2d 1575, 1579 (11th Cir. 1988); Tran v. Manitowoc Eng'g Co., 767 F.2d 223, 226 (5th
Cir. 1985).
A time-charterer is not liable for vessel negligence under Section 5(b) unless the cause of the harm
is within the charterer's traditional sphere of control and responsibility, or has been transferred thereto by
the clear language of the charter agreement. Kerr-McGee Corp. v. Ma-Ju Marine Servs., 830 F.2d 1332
(5th Cir. 1987).
In Levene v. Pintail Enterprises, 943 F.2d 528 (5th Cir. 1991), cert. denied, 504 U.S. 940
(1992), the Supreme Court considered whether a vessel owner owed any duties other than those
enumerated in Scindia, 451 U.S. 156,
to its non-stevedore employees when working on a separate barge. Pintail occupied
the dual capacity as employer and vessel owner. The injured worker, a heavy equipment
operator, contended that Pintail was not immune from a negligence action under
the LHWCA since
immunity applied only to injured stevedores performing "stevedoring services" within
the meaning of Section
5(b).
The Fifth Circuit reasoned that nothing in Section 5(a) grants immunity to employers only if a
worker is performing stevedoring operations and that the employer enjoyed full immunity from suit by a
non-stevedoring employee. As a vessel owner, Pintail had no responsibility for, or duty of, ordinary care
while temporarily in "constructive control" over a barge work area and thus could not be found negligent
for resulting injuries.
5.3 INDEMNIFICATION IN OCSLA CLAIMS
Section 5(c) of the LHWCA provides:
In the event that the negligence of a vessel causes injury to a
person entitled to receive benefits under this Act by virtue of
section 4 of the Outer Continental Shelf Lands Act (43 U.S.C.
1333), then such person, or anyone otherwise entitled to recover
damages by reason thereof, may bring an action against such
vessel in accordance with the provisions of subsection (b) of this
section. Nothing contained in subsection (b) of this section shall
preclude the enforcement according to its terms of any reciprocal
indemnity provision whereby the employer of a person entitled to
receive benefits under this Act by virtue of section 4 of the Outer
Continental Shelf Lands Act (43 U.S.C. 1333) and the vessel agree
to defend and indemnify the other for cost of defense and loss or
liability for damages arising out of or resulting from death or bodily
injury to their employees.
33 U.S.C. § 905(c).
Section 5(c) was added by the 1984 Amendments to allow vessels on the Outer Continental Shelf
to enforce contractual indemnity agreements with employers. See Campbell v. Sonat Offshore Drilling, 979
F.2d 1115, 1125 (5th Cir. 1992) (reciprocity requirement of § 5(c)
is satisfied between casing service contractor and owner of drilling vessel where
agreements to indemnify each other are unambiguous and
completely reciprocal); Fontenot v. Mesa Petroleum Co., 791 F.2d 1207, 1213 n.3 (5th Cir. 1986)
(owner of a drilling vessel and a petroleum company entered into a reciprocal
agreement to indemnify each
other "for injuries sustained by [their own] personnel, contractors and property" which is precisely the type
of mutual provision envisioned in and sanctioned by § 5(c)).
The 1984 Amendments to Section 5(c) apply to any injury after the enactment date.