Section 905(b) and the Longshore Act: The Vessel-Negligence Claim a Longshore Worker Still Has

The Short Answer

If you were injured doing maritime work but you're not a seaman in the Jones Act sense — if you're a longshoreman, a harbor worker, a ship repairman, a shipbuilder, a tankerman loading or unloading a vessel, or any of several other categories of maritime worker — your federal compensation framework is the Longshore and Harbor Workers' Compensation Act. The Act provides no-fault workers'-compensation benefits paid by your employer. In exchange, you generally cannot sue your direct employer in tort. The bargain is the same one most workers'-compensation regimes make: guaranteed benefits in exchange for the loss of the right to sue.

But the Longshore Act preserves a critical exception. Section 905(b) of the Act keeps alive your right to sue the vessel owner for negligence — even when the vessel owner is the company that hired your employer for the job, even when the negligent decisions ran through the same operation that your employer was running, and even when the no-suit rule otherwise looks airtight. Section 905(b) is the source of nearly every personal-injury suit a longshore worker brings against a vessel.

What does "vessel owner negligence" mean under §905(b)? The Supreme Court answered that question in 1981 in Scindia Steam Navigation Co. v. De Los Santos. The opinion set out three distinct duties a vessel owner owes — the turnover duty, the active control duty, and the duty to intervene. Those three duties, together, define the negligence cause of action §905(b) preserves.

This page is the cluster pillar for the Longshore Act and its §905(b) negligence claim. Each of the three Scindia duties has its own sister page, linked below. This page covers the framework, the coverage tests, the structure of the §905 trade-off, the extension of the Act to the Outer Continental Shelf, and the relationships between the LHWCA and the other federal regimes for maritime injuries.

The Framework at a Glance

1. The Longshore Act (33 U.S.C. § 901 et seq.) is a federal workers' compensation statute for longshoremen, harbor workers, ship repairers, shipbuilders, and certain other maritime workers.
2. Section 905(a) bars suits against the direct employer in exchange for guaranteed benefits — the standard workers'-compensation trade-off.
3. Section 905(b) preserves suits against the vessel owner for negligence. This is the exception that produces almost every longshore personal-injury lawsuit.
4. The Scindia three-duty framework (1981) defines what "vessel owner negligence" means: the turnover duty, the active control duty, and the duty to intervene.
5. OCSLA extends the LHWCA to injuries occurring as a result of operations on the U.S. Outer Continental Shelf — covering platforms, spars, TLPs, and other OCS structures. Citizenship is not a coverage element.
6. The anti-waiver rule (33 U.S.C. § 915) voids any agreement to waive LHWCA coverage. The criminal coverage rule (33 U.S.C. § 938(a)) makes failure to secure coverage a federal offense.

Who the Longshore Act Covers

LHWCA coverage depends on two tests: a status test (who you are, what work you do) and a situs test (where you do it).

The Status Test

The Act covers "employees" engaged in "maritime employment." The category is broad. It includes:

• Longshoremen — workers who load and unload cargo from vessels
• Harbor workers — workers performing maintenance, repair, or other work on vessels in port
• Ship repairmen — workers repairing vessels (afloat or in dry-dock)
• Shipbuilders — workers building new vessels
• Ship-breakers — workers dismantling vessels for scrap
• Marine terminal operators' employees — workers handling cargo at marine terminals
• Tankermen and barge handlers — workers loading and unloading liquid cargoes
• Certain marine construction workers — depending on the work location and connection to navigable waters

Excluded from coverage are masters and members of the crew of a vessel — those workers are Jones Act seamen, not LHWCA employees. The line between an LHWCA longshore worker and a Jones Act seaman is the source of considerable litigation; whether you fall on one side or the other depends on the Chandris / Sanchez tests for seaman status.

The Situs Test

The Act covers work performed on the navigable waters of the United States — but also on adjoining areas customarily used for loading, unloading, repairing, dismantling, or building vessels. The 1972 amendments expanded the situs test to reach landward areas like marine terminals, piers, wharves, and dry-docks. The key question is whether the work area has a maritime function and a connection to vessels.

When the work happens on the Outer Continental Shelf — on a fixed platform, spar, jack-up rig, or other structure attached to the seabed — coverage runs through a different mechanism: the Outer Continental Shelf Lands Act extends the LHWCA to OCS injuries. (See below.)

The Section 905 Trade-Off

The Longshore Act's exclusive-remedy structure is set out in Section 905, and the structure has two parts that work together.

Section 905(a) — The Bar on Suits Against the Employer

Section 905(a) makes the LHWCA the exclusive remedy against the worker's direct employer for any work-related injury. The worker cannot sue the employer in tort. In exchange, the worker is entitled to LHWCA benefits — medical care, disability compensation, vocational rehabilitation, and death benefits — without having to prove the employer was at fault.

The bar is comprehensive as to the employer. A negligent stevedore that loads cargo unsafely and injures one of its own employees cannot be sued by that employee for the negligence. The employee's recovery against the stevedore is limited to LHWCA benefits.

Section 905(b) — The Preservation of Suits Against the Vessel

Section 905(b) preserves a different cause of action: a negligence suit against the vessel (and, by extension, the vessel owner) — even when the vessel owner is a different company from the worker's employer, and even when the vessel owner's negligent decisions happened in the course of the same operation the employer was conducting.

The reasoning: when a vessel owner hires a stevedore (or other contractor) to perform work on its vessel, the contractor's workers are still entitled to a vessel that's reasonably safe, to ongoing reasonable care when the vessel owner stays involved, and to an intervention if the vessel owner observes a clear hazard the contractor is going to ignore. The LHWCA bargain — guaranteed benefits in exchange for the no-suit rule — runs between the worker and the worker's employer. It doesn't run between the worker and the vessel owner. Section 905(b) preserves the vessel-owner negligence claim that the Act would otherwise be silent on.

The practical importance is enormous. A longshore worker injured by a vessel-owner's defect — a defective walking surface, an unsafe piece of equipment, an unsafe instruction from a vessel-owner supervisor — has a negligence claim that can produce damages well beyond LHWCA benefits. Cases that resolve under §905(b) routinely produce recoveries that LHWCA benefits alone could not approach.

The Scindia Three-Duty Framework

Before 1981, the question of what a vessel owner's "negligence" actually meant under §905(b) was unsettled. Different circuits applied different rules. The Supreme Court resolved the question in Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156 (1981). The opinion identified three distinct duties:

The Turnover Duty

The turnover duty governs the moment the vessel is handed over to the stevedore or other contractor for the work. The vessel must be in a reasonably safe condition. Hidden defects must be disclosed. Gear, equipment, tools, and the work space turned over with the vessel must be reasonably safe. The principal defense to a turnover-duty claim is that the defect was "open and obvious" — a defense available against this duty but not against the others.

Read the depth treatment: The turnover duty — what the duty requires, the "open and obvious" defense and its limits, and how courts apply the doctrine.

The Active Control Duty

The active control duty governs ongoing operations. The default rule from Scindia is that the vessel owner has no general obligation to monitor the contractor's work. The active control duty is the principal exception. It arises when the vessel owner retains control of an area or piece of equipment, actively involves itself in the work, or has by custom or contract assumed responsibility for a particular safety condition. The "open and obvious" defense is not available against the active control duty — a doctrinal point the cases (Manuel v. Cameron Offshore Boats, Duplantis v. Zigler Shipyards) confirm and that defendants regularly try to ignore.

Read the depth treatment: The active control duty — the three triggers, the unavailability of the "open and obvious" defense, and how courts apply the doctrine.

The Duty to Intervene

The duty to intervene is the narrowest of the three. It arises when a hazard develops during operations, the vessel owner gains actual knowledge of the hazard, and the vessel owner has actual knowledge that the contractor — in obviously improvident judgment — intends to proceed with the work in the face of the hazard. When both conditions are met, the vessel owner must intervene. The Fifth Circuit's Randolph v. Laeisz is the principal articulation.

Read the depth treatment: The duty to intervene — the two-part Randolph test, the actual-versus-constructive-knowledge distinction, and the "obviously improvident judgment" standard.

How the Three Duties Fit Together

The three duties are not mutually exclusive. A particular injury may implicate one, two, or all three. Plaintiffs typically plead all three theories in the alternative; defendants typically focus their summary-judgment briefing on the duty most vulnerable to attack — often the turnover duty, where the "open and obvious" defense is available. The plaintiff's job is to keep the alternatives alive. Losing on the turnover duty because the defect was open and obvious does not mean losing on the active control duty — the defense isn't available there. Losing on the active control duty because the vessel owner wasn't actively involved does not mean losing on the duty to intervene — that duty operates independently when the vessel owner had actual knowledge of a clear hazard.

This is the "three-layer" architecture that makes §905(b) cases survivable. The defense has to win on every layer to defeat the claim. The plaintiff only has to keep one layer alive.

OCSLA Extends the Longshore Act to the Outer Continental Shelf

The Outer Continental Shelf Lands Act (43 U.S.C. § 1331 et seq.) extends federal law to fixed platforms, spars, jack-up rigs, and other structures attached to the seabed beyond state waters — including the Gulf of Mexico's deepwater platforms and the Gulf-side mineral and energy infrastructure. OCSLA does several things at once, but for purposes of the LHWCA, the principal effect is this: OCSLA extends the Longshore Act to injuries occurring as a result of operations conducted on the OCS. A worker injured on a Gulf of Mexico platform is covered by the LHWCA to the same extent a worker injured at a Louisiana marine terminal would be.

Several features of the OCSLA extension deserve emphasis.

The Geographic Limit — U.S. Waters Only

OCSLA extends the Longshore Act to the United States Outer Continental Shelf — not to the continental shelves or territorial waters of other countries. A worker injured on a rig in foreign waters, or on a continental-shelf platform under another country's sovereignty, is outside the OCSLA–LHWCA framework entirely. The Act doesn't reach the injury, §905(b) doesn't apply, and the Scindia three-duty framework does not govern. What governs instead is a different doctrinal frame: the Jones Act's foreign-seaman provision (46 U.S.C. § 30105) operates as a choice-of-law rule rather than a bar, often allowing the case to proceed in U.S. court under the law of the country where the incident occurred or the country of the worker's citizenship. Foreign common-law and statutory remedies that mirror U.S. maritime negligence and unseaworthiness can carry the case forward, but the LHWCA framework that governs domestic cases does not extend to a foreign continental shelf.

Citizenship Is Not a Coverage Element

LHWCA coverage on the OCS does not depend on the worker's nationality. A foreign citizen working on a U.S. OCS platform is covered to the same extent a U.S. citizen would be. This becomes important in cases involving foreign workers — particularly when a foreign-flagged company tries to argue that its foreign worker is somehow outside the U.S. compensation regime because of contract terms or country of residence.

But Only U.S. Waters and the U.S. OCS

The LHWCA — and OCSLA's extension of it — reach the navigable waters of the United States, the adjoining maritime areas, and the U.S. Outer Continental Shelf. They do not reach injuries that occur in another country's territorial waters or on another country's continental shelf. A foreign citizen injured on a foreign rig in foreign waters — a New Zealand mechanic on a Nigerian rig in Nigerian waters, for example — is outside the LHWCA's geographic reach. The case may still be filed in a U.S. federal court, but the substantive law that governs is not the LHWCA. Choice-of-law analysis — often through Section 30105(c) of the Jones Act, where the worker is a seaman, or through ordinary maritime choice-of-law principles — directs the case to the law of the country where the injury occurred, the law of the flag state, or the law of the worker's nationality. The LHWCA's reach stops at the U.S. boundary.

The Anti-Waiver Rule (§ 915)

Section 915 of the LHWCA voids any agreement by an employee to waive compensation under the Act. The provision is a public-policy backstop against contractual maneuvers designed to push the worker out of LHWCA coverage. A foreign forum-selection clause that, in effect, replaces LHWCA coverage with a different country's labor regime runs squarely into §915. The clause may be enforceable for other purposes; it cannot lawfully transfer the worker's federal compensation rights out of the Act.

Criminal Coverage Failure (§ 938(a))

Section 938(a) makes it a federal criminal offense for a covered employer to fail to secure LHWCA coverage. A covered employer that hasn't obtained coverage isn't merely civilly exposed — it's potentially criminally liable. The provision is rarely the basis for a prosecution, but it operates in the background of every case involving a foreign employer that has chosen not to obtain U.S. coverage. The argument that the LHWCA "doesn't apply" because the foreign employer never bought a U.S. policy fails — the failure to obtain coverage doesn't excuse the obligation; it's an additional violation.

The Longshore Act Compared

The LHWCA does not exist in isolation. It sits inside a broader framework of federal and state law governing maritime injuries.

Jones Act (for seamen)

The Jones Act provides a different remedy for a different class of maritime workers: seamen. A seaman is a worker whose duties contribute to the function of a vessel and who has a substantial connection to a vessel in navigation, substantial in both duration and nature. The post-2021 Sanchez test (in the Fifth Circuit) operates within the older Chandris framework.

A Jones Act seaman has access to a federal negligence cause of action against the employer, the right to maintenance and cure, the right to recover for unseaworthiness, and the right to a jury trial. The Jones Act framework is meaningfully more favorable to the worker than the LHWCA framework — but it's only available if you are a seaman.

The line between seaman and longshore worker is heavily litigated. See Sanchez: seaman vs. longshore worker for the Fifth Circuit's four-factor test and The Chandris substantial-connection test for the Supreme Court framework that test sits inside.

State Workers' Compensation

State workers'-compensation statutes generally do not apply to maritime workers — federal law preempts state law in this area. There is a "twilight zone" of cases where coverage under both regimes is arguable, but the default rule for clearly maritime work is federal coverage under the LHWCA.

General Maritime Law

General maritime law — the body of federal common law governing vessels, seamen, cargo, and related matters — provides additional theories of recovery in some cases. The "three-layer" architecture of plaintiff briefing in difficult §905(b) cases is sometimes built out as Jones Act / §905(b) / general maritime, with each layer providing an independent path to recovery if the others fail.

Death on the High Seas Act (DOHSA)

DOHSA (46 U.S.C. § 30301 et seq.) provides an exclusive federal remedy for deaths occurring on the high seas — generally beyond three nautical miles from U.S. shore. When DOHSA applies, it displaces state-law remedies and limits the recoverable damages. The procedural posture of a DOHSA case differs in important ways from a standard §905(b) case.

What This Means If You Were Hurt

If you've been injured working on or around a vessel, dock, marine terminal, OCS platform, or any maritime worksite — and your work doesn't qualify you as a Jones Act seaman — your federal framework is the LHWCA. A few practical points:

1. You're entitled to LHWCA benefits regardless of fault. Medical care, disability compensation, vocational rehabilitation, and death benefits flow through the LHWCA system. Your direct employer (or its insurer) pays these benefits. The benefits are guaranteed; you don't have to prove anyone was negligent to receive them.

2. You probably also have a §905(b) negligence claim against the vessel owner. If the vessel owner is a different company from your direct employer — which is often the case in stevedoring, ship repair, and marine construction — Section 905(b) preserves your right to sue the vessel owner for negligence. The Scindia three-duty framework defines what that negligence claim looks like.

3. The §905(b) claim is where the real recovery usually lives. LHWCA benefits provide a floor, but they cap at statutory rates that bear little relationship to actual damages in a serious-injury case. The §905(b) negligence claim against the vessel owner is where lost earning capacity, pain and suffering, and other non-economic damages can be recovered.

4. Plead all three Scindia duties in the alternative. The defense will focus its briefing on the duty most vulnerable to attack. Keeping all three duties alive — and pointing out that the open-and-obvious defense doesn't apply to the active control duty — is critical to surviving summary judgment.

5. Don't accept that you're "not a seaman" without scrutiny. The line between seaman and longshore worker is heavily contested. If your work has any meaningful vessel-based component, the Sanchez / Chandris analysis is worth running before defaulting to the LHWCA framework. Jones Act remedies are meaningfully better when they apply.

6. Foreign workers on U.S. waters and the OCS are still covered. LHWCA coverage does not depend on citizenship. Foreign employers that try to argue their foreign workers are outside the U.S. compensation regime run into §915 (anti-waiver) and §938(a) (criminal coverage failure) — both of which the Fifth Circuit and other courts have used to keep the federal compensation framework intact.

When the Case Has Layered Complications

Many LHWCA cases involve more than a clean §905(b) negligence claim. They have additional complications layered on top: a foreign vessel owner that triggers personal-jurisdiction and choice-of-law analysis; an OCS platform that brings federal-versus-state-law and OCSLA situs questions; a contested seaman-status finding that determines whether the LHWCA or the Jones Act governs in the first place; a forum-selection clause attempting to send the case offshore; a maintenance-and-cure cut-off in a parallel Jones Act claim.

When §905(b) work runs alongside complications like these, the briefing across the layers has to coordinate. Choices in the Scindia analysis can shape what's available elsewhere in the case. Choices in the seaman-status briefing can determine whether §905(b) even applies. The architecture matters.

See complex maritime cases for case history on §905(b) and Longshore Act matters that involved multiple doctrines at once, foreign defendants, jurisdictional fights, or trial-level damages.

Related Reading on This Site

• The turnover duty — Depth treatment of the first Scindia duty.
• The active control duty — Depth treatment of the second Scindia duty.
• The duty to intervene — Depth treatment of the third Scindia duty.
• Sanchez: seaman vs. longshore worker — The Fifth Circuit's four-factor test for seaman status (the doctrine that determines whether you're in the LHWCA framework or the Jones Act framework).
• Longshore Act vs. the Jones Act — Which regime applies, and what each one is worth.
• The Chandris substantial-connection test — The Supreme Court framework Sanchez sits inside.
• § 30105: the Jones Act foreign-seaman provision — How OCSLA platforms interact with the Jones Act's foreign-seaman provision.