Recreational Vessel Exclusion of Longshore Act Addressed by 11th Circuit
In re: Complaint of Brizo LLC v. Carbajal, 2021 U.S. App. LEXIS 32400 *, 2021 WL 5029390 (11th Cir. Oct. 29, 2021).
33 U.S.C. § 902 (3)(F) of the Longshore Act excludes from its coverage “individuals employed to build any recreational vessel under sixty-five feet in length, or individuals employed to repair any recreational vessel, or to dismantle any part of a recreational vessel in connection with the repair of such vessel” but only if such employees are afforded coverage under an applicable state workers’ compensation statute. There are few if any opinions addressing this provision of the LSHWCA. The Eleventh Circuit in an unpublished opinion recently has.
While cleaning the hull of a yacht, a commercial diver was killed when a member of the crew of the vessel, M/V HONEY, a yacht 164 feet in length, engaged the bow thrusters. Eastern Marine Services, a commercial diving company, sent an email to the owner of the vessel informing them that its next hull cleaning was coming up and gave an estimated date when it would take place. Luis Gorgonio Ixba, the diver assigned by Eastern Marine, arrived but failed to inform anyone on the vessel of his arrival and immediately began his dive. Noticeably, he also failed to put up the diving flag.
The captain left the vessel without knowing the diver was under the yacht and left the Chief Mate in charge. Prior to engaging the bow thruster to move the vessel closer to the dock to load jet skis, the Chief Mate, nonetheless, checked for bubbles but saw none. He engaged the thruster killing the diver. The personal representatives filed a wrongful death suit in Florida state court. In response, the vessel owner filed for Limitation of Liability in the Southern District of Florida in which the personal representatives filed claims.
Following discovery, the trial court granted summary judgment for the vessel owner. First, the trial judge held that the decedent was an employee covered by the Longshore Act, citing Roach v. M/V Aqua Grace, 857 F.2d 1575 (11th Cir. 1988), and that general maritime law applied to the claim against the vessel owner. Judge Rosenberg determined that the Pennsylvania Rule applied because the decedent violated a Florida statute which requires all divers to “prominently display a divers-down flag in the area in which diving occurs" In re Complaint of Brizo, LLC, 437 F. Supp. 3d 1212, 1216 (S.D. Fl. 2020) (citing Florida Statute section 327.331), and a federal diving regulation 29 C.F.R. § 1910.421 governing commercial diving operations. Failing to rebut the presumption of the Pennsylvania Rule, summary judgment for the vessel owner was appropriate.
To refute the applicability of that rule, the claimants asserted that the Longshore Act did not apply because “recreational vessels” are exempt from the Longshore Act, pursuant to 33 U.S.C. § 902 (3)(F). However, such vessels are exempt from the Longshore Act only if coverage is provided under state law. Florida workers’ compensation law, Fla. Stat. § 440.09(2), expressly eschews coverage for disability or death under the Longshore Act, Jones Act, Defense Base Act, and Federal Employer’s Liability Act.
Next, the trial court held that Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156 (1981) did not apply but held the vessel owner owed no duty under the circumstances in further support of granting the Motion for Summary Judgment.
On appeal, the Eleventh Circuit panel affirmed but did not address the application of the Pennsylvania Rule. The court first addressed whether the vessel was exempt from the Longshore Act. The parties did not dispute the decedent satisfied the situs test; and based on prior precedent a commercial diver satisfies the status test. The recreational vessel exclusion only applies to such vessels if state law applies. The appeals court took a different course on whether this exemption applied and determined that the decedent was an “independent contractor with no controlling employer” based on the sworn interrogatory response of Eastern Marine Services (2021 WL 5029390 at *3) and that Florida workers compensation law excludes independent contractors not engaged in the construction industry from its coverage. Accordingly, the decedent could not be covered by state law. Thus, the Longshore Act applied to the recreational vessel.
The appellate panel then addressed the standard for negligence under 33 U.S.C. § 905(b) which applies to harbor workers repairing vessels either on deck or underwater Id. at *4. Scindia only requires the vessel owner to fulfill limited duties, the “turnover duty,” and “active control duty.” The decedent, in failing to inform the vessel or crew of his presence and commencing the work, prevented the owner of the vessel from fulfilling the “turnover duty” to prepare the vessel for the work. There can be no further complaint in failure to fulfill any duties. Accordingly, summary judgment is affirmed.
