HomeLibraryMaritime LawWhat Is A 905(b) Claim And How Can It Help Me Get Compensation For My LHWCA Injury?

What Is A 905(b) Claim And How Can It Help Me Get Compensation For My LHWCA Injury?


If you are a longshoreman or dockworker and you are injured while at work on or near the water, under maritime law your medical expenses will usually be covered by a 905(b) claim under the Longshore and Harbor Workers’ Compensation Act (LHWCA).  You will also receive a portion of your wages while you are unable to work.

However, this amount is marginal.  After a serious on-the-job injury, you may be left with substantial expenses that are not covered.  And, in general, the LHWCA does not allow recovery for pain and suffering, lost fringe benefits, lost earning capacity and other damages. But, there are exceptions.

While the LHWCA provides protects the employer from traditional lawsuits filed by employees, section 905(b) of the LHWCA allows you to file a “third-party claim” against any third-party company that may be responsible in whole or in part for your accident.

dock longshore harborYou may pursue a traditional lawsuit against that third party in court and you may collect full damages for your injury, including pain and suffering, medical expenses, lost wages, lost earning capacity, lost fringe benefits and other losses.  The percentage of the damages that are covered is limited to a percentage of the blame that the third-party holds for your injury.

Section 905(b) of the LHWCA offers one exception to the rule forbidding an employee from suing his employer.  An employee may file a traditional tort lawsuit against his employer “in its capacity as a vessel owner” if both of the following are true:

  • The employer was also the owner and operator of a vessel on which the employee was injured.
  • The injury was caused by your employer’s negligence “in its capacity” as the vessel owner.

Pursuing a 905(b) claim against your employer does not affect your other benefits under the LHWCA

 

Section 905(b) of Longshore & Harbor Workers Compensation Act

In 1972, legislators made changes to the LHWCA that have proved advantageous for maritime workers. The LHWCA amendments, as detailed in section 905(b), allows injured longshoremen to file an action against a shipowner if the owner was negligent. This form of legal recourse provides injured workers with an additional means of seeking compensation for damages after they are injured on the job.

Prior to 1972, when longshore workers were injured on the job, they could seek only the recompense – medical benefits and disability – that the LHWCA allows. However, with the amendments and the reinstatement of section 905(b), longshore workers now have the opportunity to obtain a settlement award via a third-party claim.

Bringing a 905(b) Claim

In order for a shipowner to be liable for a worker’s damages under a 905(b) claim, the shipowner must be considered negligent under the law. Injured workers who fall under the LHWCA can file a 905(b) claim if they can prove the following four elements:

  • Duty – the shipowner had a legal duty to protect you from harm.
  • Breach – the owner failed to uphold the duty.
  • Injury – you sustained actual injuries.
  • Causation – the owner’s negligence caused your injury.

Ship Owners’ Limited Liability

Bringing a claim is actually much more complicated than it seems at first glance. Legal nitty-gritty, poorly defined standards of care for ship owners and hordes of red tape exacerbate matters. The claims also can be tough because employers are normally immune from lawsuits brought from workers; 905(b) only allows for a narrow window of opportunity for longshore workers.

In fact, under 905(b), there are only three scenarios in which a shipowner can be liable for a worker’s damages, which include:

  • turnover duty (relates to the condition of ship when the owner turns it over to the employer);
  • active-control duty (the shipowner has to exercise reasonable care to prevent injuries that are still under the vessel’s control); and
  • duty to intervene (relates to the owner’s responsibility to intervene and rectify any dangerous situations that the employer does not or cannot fix).

Given the complex nature of these cases, speak with a maritime attorney to determine your eligibility.

Damages under a 905(b) Claim

If you do qualify for a 905(b) claim, you can collect damages such as:

  • loss of earning capacity;
  • medical expenses;
  • emotional injuries;
  • loss of enjoyment in life;
  • pain and suffering; and
  • loss of society and funeral benefits if the worker’s injuries were fatal.

To discuss your accident and opportunities for compensation, contact our maritime lawyers at The Young Firm to set up a free, no-obligation case evaluation – 866-666-5129.

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