Abruska

MEMORANDUM *

While performing longshoreman’s work aboard the Baranof Trader, Joseph Abruska fell overboard and sustained serious injuries. After recovering statutory damages from his employer, pursuant to the Longshore and Harbor Workers’ Compensation Act (“LHWCA” or “Act”), 33 U.S.C. §§ 901-950 , he sought damages in negligence from the vessel, pursuant to section 5 of the Act, 33 U.S.C. § 905 (b). Because Abruska produced evidence sufficient to establish a triable issue of fact as to both claims, the district court erred in granting summary judgment to Defendants North-land Vessel Leasing Co., Naknek Barge, LLC, and Northland Services Inc. (collectively “Defendants” or “the vessel”). 1 We therefore reverse and remand for further trial proceedings.

I.

All three defendants are potentially liable as “the vessel” for purposes of the Act. See § 902(21) (defining “vessel” as, inter alia, the vessel’s owner, owner pro hac vice, or charterer). The fact that Abruska recovered statutory damages from North-land Services, acting as his employer, pursuant to § 905(a) does not bar his claim for negligence against Northland Services, acting as “the vessel”, pursuant to § 905(b). See Jones &…

dissenting:

I conclude that the district court’s summary judgment is not reversible on either the issue of common-law negligence or negligence per se, and therefore respectfully dissent.

Prior to 1972, a longshoreman injured while unloading a ship could recover directly from a shipowner, even if the condition that caused his injury was created by the stevedore. See Scindia Steam Navigation Co., Ltd. v. De Los Santos, 451 U.S. 156, 164-65 , 101 S.Ct. 1614 , 68 L.Ed.2d 1 (1981). When Congress amended the Longshore and Harbor Workers’ Compensation Act (Act) in 1972, it “radically changed this scheme of things.” Id. The amendments “substantially increased” the compensation payments an injured longshoreman could recover from the stevedore, while expressly limiting the shipowner’s liability in section 905(b). Id. at 165 , 101 S.Ct. 1614 .

Abruska has already recovered from the stevedore. To recover further, Abruska must demonstrate that his is an “exceptional case, under Scindia, in which the shipowner remains liable as a ‘deep pocket’ defendant, when it turns the vessel over to the stevedore for loading.” Bandeen v. United Carriers (Panama), Inc., 712 F.2d 1336, 1341 (9th Cir.1983).…