PREVIEW

Personal Injury

Personal Injury

Statistics

Graph 6.1 shows that the frequency for injuries has increased substantially since 2012. The average cost, in common with some of the other claims categories accounted for above, has been relatively stable. Again, it is the frequency that is a warning sign. The increased frequency may be explained by a greater awareness of the right to make a claim and secondly the level of the potential financial compensation. There are, however, many other factors in operation. These include greater demands on the individual on board the vessel, an increase in stress-related conditions and the erosion of social interaction in the lifestyle at sea. Seafarers are under pressure to deliver high performance for sustained periods and they have fewer outlets for the vital social and leisure activities enjoyed by their counterparts ashore.
The top 10 individual most expensive injury claims over the past 10 years were in the following claim categories:

 

 

Average claim cost and frequency
Claims 5,000–3,000,000 (USD)

Period: 2005 - 2014
Type of vessel:  Bulk carriers, containers and tankers 
Type of claim: Injury
As per 5/10/2015

The frequency for claims above USD 5,000 is increasing.
 

Distribution of cost (USD) 2013-2014

Average claim cost and frequency
Claims 1–3,000,000 (USD)

Period: 2005 - 2014
Type of vessel:  Bulk carriers, containers and tankers 
Type of claim: Injury
As per 5/10/2015

Total amount of claims are declining which inidates that the frequency for claims below USD 5,000 is decreasing. 

Number of claims (USD) 2013-2014

 

 

 

Injury claims

Statistics show that slips and falls are the biggest concern on all three types of vessel studied. The locations on board where most injuries occur are the cargo deck area, machinery room and open deck areas. Most injuries happen during routine maintenance, which normally requires a work permit and risk assessment. There should be procedures in the SMS which address these tasks.. The concern is that these procedures have been ignored. The three most common claim types are slips and falls, being struck by a falling object and being caught in machinery. This is similar across all three types of vessel. One concern is that almost 60% of all slips and falls occur on container vessels. The reason for this might be that there are a lot of stevedores involved in loading a container vessel and a great deal of equipment lying on deck when containers are being secured.
Slips

 

 

 

 

Case studies

First case study
The vessel was in port and the Master planned to carry out a rescue boat drill because no drill had been completed since the vessel was delivered about a month earlier. The weather was favourable and the harbour authority had given the vessel clearance to launch and manoeuvre the rescue boat in the harbour. The personnel assigned to the rescue boat in an emergency were the Chief Officer, Bosun, Oiler, and the Third Engineer. The Chief Officer was in charge of organising the drill. He had joined the vessel in the shipyard about two months before delivery. During that time he had watched the shipyard complete a rescue boat drill but had not been involved himself. Before the drill commenced the Chief Officer had a short briefing with all available crew and the Master. After the briefing, the crew assigned to the rescue boat embarked. The Master informed the rescue boat crew that the safety pin should be removed before the rescue boat was waterborne. He did not state at what precise height the pin should be removed but assumed the crew would remove it just before the boat was waterborne. The Chief Officer pulled the slewing wire until the boat was positioned so it could be lowered. He then pulled the lowering wire until the boat was three metres above the surface, where he removed the safety pin. At the same time the slewing wire, which was hanging free, somehow got caught in the release lever for the hook and caused the boat to drop into the water. The boat was quickly retrieved and the injured crew received medical attention.

Causes:
The manager had received no specific instructions in using the training manual, SMS, PMS or any other manual on how the rescue boat should be launched. In SOLAS chapter III regulation 35.3 there is a requirement for detailed instructions in the training manual on how the rescue boat should be launched. In the Chief Officer’s statement he stated that this was the first time he was involved in a rescue boat drill even though he had been a Chief Officer for more than a year and been at sea since 2002. It is important to be aware that there is a SOLAS chapter III reg 3.3.6 requirement that the rescue boat should be launched every month or a minimum of every three months.

Second case study
It was morning and the Bosun and three other AB’s had planned to remove some rust and paint from one of the cargo holds. The Bosun started to scrape the parts he could reach from the tank top and when this was done a ladder was rigged to reach areas higher up. The Bosun and the AB’s were working at different areas in the cargo hold. The Bosun climbed up the ladder he had rigged. Suddenly a thud was heard and the AB’s saw the Bosun lying on the tank-top on his back, the Bosun’s chair and safety harness was lying by his legs. One of the AB’s raised the alarm and the Master sounded the emergency alarm and mustered the emergency team by the hold. The crew managed to secure the Bosun on a stretcher and take him to the vessel’s hospital bay. He was bleeding from his head, ears and nose and had fractured his legs and right wrist. He was conscious and in great pain. The vessel made contact with Maritime Rescue Coordination Centre and a helicopter was dispatched to the vessel. At this time the vessel was about 200 miles from land and it took the helicopter about 4 hours to arrive.

Causes:
The hook on the Bosun’s chair had broken and the Bosun fell. The safety harness had not been secured correctly.

Third case study
The vessel was alongside waiting to prepare for drydocking. The vessel carried cranes with grabs that weighed 10 tonnes and were more than 4m high which were used during cargo operations. During the daily safety meeting the superintendent informed personnel that four grabs were to be taken ashore. The Chief Officer had carried out a risk assessment of the operation and was monitoring the operation from the vessel. The plan was to land the grabs in the open position onto a trailer on the quay. An AB was operating the crane for lifting the grabs. Two cadets, the Third Officer, two ABs and the vessel’s Superintendent were on the quay. The Chief Officer had instructed the two cadets to help only if specifically needed. The ABs were instructed to remove the wires when the grab was safely secured on the trailer. The AB operating the crane landed the grabs on the trailer in the open position with the bucket in a forward and aft direction. As soon as the grab was landed on the trailer one
of the cadets climbed onto the grab to release the wires. The Superintendent shouted to the cadet to get down at once. It could be seen that when the grab was on the trailer it was approximately 10 metres high, which was above the height restriction at the shipyard and on the roads, and so it was necessary to change the plan. The decision was made to lay the bucket in the closed position with one side resting on the trailer bed. The bucket was closed and the grab was lifted and swung to reposition the bucket in an athwart ship direction. When the grab was landed it was secured by thick wooden planks below the bucket sides. Once the grab was stable the cadet once again climbed up on the grab to release the two hoisting wires from the crane. At this time the Superintendent was focusing on another task and the other ABs and cadet were working with tensioning wires on the trailer and so did not that the cadet had once again climbed up. The cadet removed the wires from the grab. He had secured his safety harness to the grab but then released the safety harness when he was climbing down, relying on the fact that he had secured a rope to the top of the grab to assist him while climbing down. The grab appeared to be stable but in fact was top heavy with a centre of gravity about one third the way down from the top of the grab, as it was in the closed position. While the cadet was climbing down from the grab it suddenly moved and fell into the water with the cadet. The Third Officer threw a lifebuoy to the cadet in the water. He was taken to the hospital where he was diagnosed with serious injuries and internal bleeding.

Causes:
The cadet had been told not to climb onto the trailer but had apparently not understood the risks involved. It is essential to ensure that only crew members are involved in difficult and dangerous jobs and that all on board are made thoroughly aware of the risks.

Fourth case study
It was morning, the weather was good with a northerly force 3-4 wind and the vessel was proceeding at 14 knots. The Chief Engineer, First Engineer and Third Engineer were scheduled to carry out routine maintenance on one of the ballast pumps. They dismantled the pump and removed the shaft and impeller, while the nuts on the pump case had also been removed. This had been prepared in advance. The shaft had been secured in a threaded hole with a chain to an eyebolt. The engineers used a five-ton SWL chain block, which was secured in a monorail, and the shaft was raised so the engineers could work on it more easily. The shaft was to be moved so another chain block could be attached. While waiting for the chain block the engineers began to inspect the shaft and rotated it a couple of times. Suddenly the shaft dropped from the eyebolt and the Third Engineer’s hand was severed. The First Engineer was also seriously injured and his hand was crushed. The vessel diverted to the nearest harbour. Medical assistance was established with an MRCC and a helicopter was dispatched, which arrived three hours later. At the time of the accident the injured crewmembers were wearing safety shoes, gloves, boiler suits and helmets, but this obviously did not protect them in the circumstances they encountered. It could not be completely established why the eyebolt was unscrewed. The lifting appliances were certified and approved for the lifted weight and they were not damaged.

Causes:
The engineers stated that they had secured the bolt tightly. The immediate cause of the accident according to the company’s own report suggests that the bolt unscrewed because it was not tightened correctly, the engineers were in a hurry and more than one person was rotating the shaft. Because of the accident’s severity, the injured crewmembers could not continue working at sea.

Fifth case study
The container vessel was berthed port side with cargo operation commencing shortly after arrival. The weather was good - clear with no discernable wind. During cargo operation the Chief Officer was in charge and the Second
and Third Officers were working six on - six off watches, with one AB assisting in the cargo operation and another AB with ISPS (International Ship and Port Facility Security) duty on the gangway. The loading plan was presented to the Chief Officer by the terminal supervisor and two gantry cranes were planned to assist in the cargo operation. The Chief Officer presented the lashing plan to the terminal supervisor. When a container was lifted from the quay the stevedores working at the front and rear of the container fitted the twist lock to the container’s corners. When this was done the gantry crane lifted the container to its allocated position. At the required location the crane operator adjusted the alignment before setting down the container onto the container below. The twist locks automatically locked to the container below when it was put in position. At this time there were two stevedores attaching lashings to containers and they were standing underneath the containers as they were being loaded. The Second and Third Officers were carrying out the handover of the cargo watch when they heard a scream. The officers saw a stevedore lying on one of the hatch covers. They quickly gave him first aid and raised the alarm. The Second Officer went to the vessel’s hospital for the stretcher and the Master informed the terminal about the accident. About ten minutes later the terminal’s own emergency response team arrived and gave the stevedore first aid while waiting for an ambulance. The ambulance shortly arrived and the stevedore was taken to hospital. It took about 50 minutes from the time of the accident until the stevedore was in the ambulance. The stevedore was conscious and had a gash on his head. Close to him was a twist lock and his safety helmet which was not broken, but was scratched. The gantry crane still had the container attached and the Second Officer saw that one of the twist locks was missing. The twist lock had dropped from a height of about eight metres.

Causes:
The twist locks had not been secured correctly by the stevedores and the stevedore was standing underneath the container, which is very unsafe. 

 

Prevention

Many accidents can be prevented if vessels keep good housekeeping and ensure that maintenance is carried out as required. The following procedures will assist the officers in identifying hazardous areas before the accident happens. These suggestions should be implemented into the managers ISM (International Safety Management) Code.
• Follow a checklist, which identifies potentially hazardous conditions, including a simple vessel diagram showing the main deck, cargo holds and other areas where the stevedores are scheduled to work.
• Before arrival, the Chief Officer should inspect each hazardous area including, but not limited to the condition of hatchways, latches, ladders, lighting, twist locks, wires, cables, cargo equipment, cranes and rusty conditions of deck.
• Stevedores should be informed about any planned or ongoing maintenance in the area they will be operating.
• The Chief Officer should take digital pictures of inspected spaces.
• The Chief Officer should present the stevedores with the checklist before cargo operation commences.
• If the vessel provides any equipment for the cargo operation e.g. twist locks, lashing chains, or hooks, this equipment should be regularly inspected, serviced, and replaced as necessary. Any inspection and maintenance should be recorded in the vessel’s PMS (Planned Maintenance System).
• The Master should ensure that critical equipment such as cranes are regularly inspected and working properly.

 

Specific issues with stevedores in the USA

Stevedore work in the United States can easily create personal injury liability exposure for an unwary shipowner. The leading United States Supreme Court case setting forth the obligations of a vessel owner is Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156 (1981). Scindia stands for two important propositions. Firstly, as a general matter, the shipowner may rely upon the stevedore to avoid exposing stevedores to unreasonable hazards. However, under U.S. maritime law and the U.S. Longshore and Harbor Workers Compensation Act (“LHWCA”), a shipowner cannot recover against a stevedore employer for any injuries that occur to a stevedore. Moreover, in the event that the shipowner breaches one of its duties to the stevedore resulting in injury, the stevedore can sue the shipowner for negligence. Under joint and several liability principles that apply pursuant to U.S. maritime law, if we hypothesize that the shipowner is 10% at fault, the stevedore 20%, and the stevedore employer 70%, the shipowner nonetheless would be responsible for 80% of the damages awarded.

This result follows because joint and several liability principles under U.S. maritime law shift the risk of uncollectibility from an innocent plaintiff to a culpable tortfeasor. The LHWCA’s compensation bar essentially transforms the stevedore into a judgment proof defendant. Additionally, the stevedore’s worker’s compensation carrier generally intervenes in any suit against shipowners or charterers to recover medical care costs expended on the stevedore’s behalf. Consequently, the shipowner, rather than the stevedore employer, bears the brunt of fault attributable to the stevedore, despite Scindia’s first proposition. Secondly, Scindia holds that the shipowner, the stevedore employer, and his stevedore employees the duty of exercising due care under the circumstances. Thus, while the primary responsibility for the stevedore’s safety ostensibly rests with the stevedore’s employer, the shipowner also owes a standard of care to the stevedore. That standard encompasses three duties to stevedore servicing the vessel:
1. The ‘Turnover Duty’
2. The ‘Active Control Duty’
3. The ‘Duty to Intervene’

1. The ‘Turnover Duty’

The ‘Turnover Duty’ requires the shipowner to furnish a reasonably safe ship, and to warn the stevedores of hazards from gear, equipment, tools and the workspace to be used during cargo operations “that are known to the ship or should be known to it in the exercise of reasonable care.” However, the shipowner is not obligated to warn the stevedores about hazards that are open and obvious, or dangers that “a reasonably competent stevedore should anticipate encountering.” For example, in a recent case, the Fifth Circuit Court of Appeals (which governs federal proceedings in Texas, Louisiana and Mississippi) found that a stevedore, who was injured because of an open and obvious defect in a stow of steel coils in the cargo hold, could not recover against the shipowner, operator or charterer. In that case, one of the steel coils fell from atop the stow onto the stevedore resulting in the loss of a leg. The court found that a “vessel owner has no legal duty to prevent or alleviate an unsafe condition in the cargo hold resulting from an improper stow when the condition is open and obvious to the stevedore workers.”

Preventative measures
Shipowners may wish to consider some preventative measures before arriving in a US port. To ward off potential liability exposure in the event a stevedore claims injury, shipowners may be able to satisfy their Turnover Duty obligations through the use of a checklist identifying potentially hazardous conditions, perhaps coupled with a simple vessel diagram showing the main deck, cargo holds and other areas where the stevedores are scheduled to work. Prior to the vessel’s arrival in port, one of vessel’s officers should carefully inspect each of these areas, and note on the checklist any potentially hazardous conditions, for example, with respect to hatchways, latches, ladders, lighting, twist locks, wires, cables, equipment lying about, rusty conditions of deck and handhold surfaces, etc. The checklist could note where any repairs are being conducted, and the scope of the project (to place the stevedore on notice of not only where repair work is ongoing, but where repair work is being considered). Provided vessel workspaces are in good condition, it may make sense to take a series of digital photographs of the spaces where stevedores will work, including access ladders, to document the condition during the pre-arrival walk through. To complete the turnover process, upon arrival in port, the chief mate could present the checklist to the stevedore foreman, and the two could walk the vessel where the stevedores will work noting any areas of concern. If the vessel provides any equipment employed during stevedore work, for example, twist locks, lashing chains, hooks, etc., such equipment should be regularly inspected, serviced, and replaced as necessary, with documentation provided (or perhaps at least made available) to the stevedores evidencing the condition of such equipment at the start of stevedore operations.

2. The ‘Active Control Duty’

The ‘Active Control Duty’ is breached if the shipowner “actively involves itself in the cargo operations and negligently injures a stevedore” or “if it fails to exercise due care to avoid exposing stevedores to harm from hazards they may encounter in areas, or from equipment, under the active control of the vessel during the stevedoring operation.

Preventative measures
Before stevedore activities commence, the Master or Chief Mate may wish to instruct the crew to stay completely clear of loading or unloading operations, leaving such work to the stevedore gangs. By doing so, shipowners may avoid the ‘Active Control Duty’ in its entirety.

3. The ‘Duty to Intervene’

Lastly, under the ‘Duty to Intervene’, a shipowner owes a duty to intervene 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.” The ‘Duty to Intervene’ may be implicated if the Master or Chief Officer is contractually obligated to supervise cargo operations, or if vessel equipment used during such operations is not operating properly, for example, ship’s winches or cranes.

 Preventative measures
Numerous accidents have occurred over the years involving vessel cranes while operated by stevedores. Generally, such cases have involved the failure to properly maintain crane components and equipment in good operating order. Shipowners should consider tasking their technical superintendents to ensure that ship’s cranes are regularly inspected and serviced, and current on all class certifications.Often times, the charter agreement allocates responsibilities for cargo stowage to the charterer “under the Master’s supervision,” and sometimes the vessel owner and charterer have entered into an Inter-Club Agreement, or incorporated it by reference into the charter. These arrangements may affect how a case brought by the stevedore against both the shipowner and charterer will be defended, but do not necessarily alter whether the stevedore may bring suit against both parties in the first instance. To avoid assisting the stevedore by pointing fingers at each other, it is important at the inception of such a suit, to work out the defence arrangements between shipowner and charterer if at all possible. The shipowner’s duty to intervene does not extend to open and obvious transitory conditions:
1. created entirely by the stevedore
2. under its control, or
3. relating wholly to the stevedore’s own gear and operations

Summary

In summary, while the stevedoring company is purportedly the party primarily responsible for the safety of the stevedore in the USA, in the event of an accident resulting in personal injury or death, owners face considerable liability exposure should the vessel breach one of the three Scindia duties (Turnover, Active Control, or Duty to Intervene), especially because any liability of the stevedore company is attributable to the culpable defendant(s) under U.S. maritime law. The best method to obviate such liability is to institute regular procedures to satisfy or avoid breaching these duties: inspect vessel equipment and spaces; document any potentially hazardous conditions; convey this information to the stevedore prior to commencing cargo operations; stay out of active cargo operations; and service and inspect the ship’s cranes regularly

Preventative measures specific for USA

• The Master or Chief Officer may wish to instruct the crew to stay completely clear of loading or unloading operations, leaving such work to the stevedore gangs so the ‘Active Control Duty’ is not breached.
• The ‘Duty to Intervene’ may be implicated if the Master or Chief Officer is contractually obligated to supervise cargo operations, or if vessel equipment used during such operations is not operating properly, for example, ship’s winches or cranes.

  

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