Claimant, a crane mechanic, filed a Section 905(b) suit after being injured while working on an offshore drilling rig. His injury occurred when he fell through an open ladder cover. The injury prevented his return to work as a crane mechanic, but his employer paid him crane mechanic wages while he worked in a clerical capacity. After a magistrate trial, the owner of the drilling rig was found to have failed to exercise ordinary care and committed negligence per se by violating 33 C.F.R. § 142.87. Pursuant to that regulation, “[o]penings in decks accessible to personnel must be covered, guarded, or otherwise made inaccessible when not in use. The manner of blockage shall prevent a person’s foot or body from inadvertently passing through the opening.” The district court determined that Claimant was 50% at fault for his injuries, and that his employer and its carrier were entitled to reimbursement for benefits payments advanced to Claimant while he worked in the clerical capacity.
On appeal, Claimant argued that his comparative fault should not have been considered in a Longshore and Harbor Workers’ Compensation Act case. The United States Court of Appeals for the Fifth Circuit dispatched this argument by citing Neal v. Saga Shipping Co., 407 F.2d 481, 486 (5th Cir. 1969) (plaintiffs who are not Jones Act seaman do not enjoy the benefit of the rule barring application of contributory negligence in Jones Act cases). Further, the court rejected Claimant’s argument that the negligence per se finding required allocating all fault to the rig owner. While 33 C.F.R. § 142.87 “requires that there be covers for such openings and makes vessels generally responsible for ensuring that the covers remain closed outside of the brief periods when openings are in use”…”[i]t does not require that deck openings be fool proof, or relieve a longshoreman of his own duty of care regarding coverage of a deck opening he has just used.”
Baham v. Nabors Offshore Corp., No.10-30924, 2011 WL 4928979 (5th Cir. Oct. 18, 2011).
(Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
