LHWCA Section 905(b): Suing the Vessel Owner for a Dock or Shipyard Injury

If you are a dock, harbor, or shipyard worker, your LHWCA benefits pay your medical bills and a slice of your wages, but they stop well short of what the injury actually cost you, no pain and suffering, and only a capped share of lost earnings. The most valuable thing you can learn after a vessel injury is that a separate claim can recover the rest, that it runs against the ship and not your employer, and that exactly how much of it you keep depends on a lien rule almost no one explains.

This article is for general informational purposes only and does not constitute legal advice. Whether a vessel was negligent is fact-specific, so consult a licensed maritime attorney about your situation.

Key Facts at a Glance

• Section 905(b) lets a worker covered by the LHWCA sue a negligent vessel as a third party (Source: Cornell LII, 33 U.S.C. § 905).
• LHWCA benefits do not pay for pain and suffering or full lost earning capacity; a 905(b) claim can (Source: Calderon Law Firm).
• You must prove the vessel was negligent; unseaworthiness was eliminated as a remedy for these workers in the 1972 amendments (Source: AEU Longshore).
• The vessel’s duties come from Scindia Steam Navigation Co. v. De Los Santos: turnover, active control, and the duty to intervene (Source: Justia, Scindia v. De Los Santos).
• The turnover duty to warn of latent hazards is narrow, and an open and obvious hazard generally defeats it (Source: Justia, Howlett v. Birkdale Shipping Co.).
• Your own partial fault reduces, but does not bar, a 905(b) recovery (Source: Lueder, Larkin & Hunter).
• Your compensation carrier holds a lien on the third-party recovery and a credit against future benefits (Source: Cornell LII, 33 U.S.C. § 933).

Why 905(b) Is the Most Valuable Thing a Longshore Worker Can Know

The LHWCA is a no-fault bargain: you get benefits without proving fault, but in exchange you generally cannot sue your employer, and the benefits are capped. Section 905(b) is the exception that restores real leverage, because it preserves your right to sue a negligent third party, most often the owner of the vessel you were working on, for full tort damages (Source: Jones Act Law). For a worker with a serious or permanent injury, the gap between benefits alone and benefits plus a 905(b) recovery can be enormous. This guide explains what the claim adds, who you can sue, the three duties you must prove and the defenses against them, how much of the recovery your comp carrier takes back, and the deadlines, with worked examples throughout.

What Is a Section 905(b) Claim?

It is a third-party negligence lawsuit against a vessel, brought under Section 905(b) of the Longshore Act. The statute provides that when a covered worker is injured by the negligence of a vessel, that worker may bring an action against the vessel as a third party (Source: Cornell LII, 33 U.S.C. § 905). It exists because the LHWCA limits your employer’s liability to no-fault benefits in exchange for immunity from suit, but it deliberately leaves intact your right to sue a negligent third party such as the vessel owner (Source: Lueder, Larkin & Hunter). A 905(b) claim is available only to LHWCA-covered workers who are not seamen; a seaman with a vessel injury would instead proceed under the Jones Act and could also claim unseaworthiness, a remedy 905(b) workers no longer have (Source: Cornell LII, 46 U.S.C. § 30104).

What Does a 905(b) Claim Add Over LHWCA Benefits?

This is the heart of it. LHWCA benefits cover medical care and a capped portion of lost wages, but they do not compensate for pain and suffering, mental anguish, or the full value of lost earning capacity; a successful 905(b) vessel-negligence claim can recover all of those (Source: Calderon Law Firm). The table below places the three routes a maritime worker might have side by side, so the value of a 905(b) claim is clear in context.

Element	LHWCA benefits only	Section 905(b) tort claim	Jones Act (seamen only)
Who it is against	Your employer	The negligent vessel	Employer + vessel owner
Fault required	No (no-fault)	Yes (vessel negligence)	Negligence or unseaworthiness
Pain and suffering	Not covered	Recoverable	Recoverable
Lost earning capacity	Capped wage benefit	Full value	Full value
Unseaworthiness	N/A	No (eliminated in 1972)	Yes
Source	§ 908	Calderon	§ 30104

Who Can You Sue, and Who Counts as the “Vessel”?

The target is the negligent vessel, and the Longshore Act defines “vessel” broadly: it includes the vessel’s owner, owner pro hac vice, agent, operator, charterer or bareboat charterer, master, officer, and crew (Source: Lueder, Larkin & Hunter). That breadth matters, because the company that controlled the vessel and created the hazard may not be the entity whose name is on the hull. As a rule you cannot use 905(b) to sue your own employer, since the employer’s liability is limited to LHWCA benefits, but there is an important exception covered below when the employer is also the vessel owner. For example, a dock worker hurt by a defective crane permanently mounted on a barge owned by Company A, while employed by stevedore Company B, sues Company A as the vessel; identifying that correct defendant early is one of the first tasks in a 905(b) case.

What Are the Three Scindia Duties You Must Prove?

To win, you must show the vessel breached one of three specific duties the Supreme Court defined in Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156 (1981) (Source: Justia, Scindia v. De Los Santos). The table below lays out the three duties together with the standard of proof and the defense the vessel will raise, the full liability picture in one place.

Element of the 905(b) case	When it applies	What you must show / effect	Example or note
Turnover duty	Condition of the ship when work begins	A latent hazard the vessel knew or should have known and failed to fix or warn of	A corroded ladder that breaks during operations (source)
Active control duty	Areas the vessel still actively controls during operations	The vessel controlled the area and failed to use reasonable care	An oily passageway under the vessel’s control (source)
Duty to intervene	Cargo operations under the stevedore’s control	The vessel knew of a dangerous condition and that the stevedore was unreasonably failing to fix it	Crew watches a winch malfunction repeatedly and says nothing (source)
Standard of proof	Every 905(b) case since 1972	Negligence, not unseaworthiness; an unsafe ship alone is not enough	1972 amendments eliminated unseaworthiness for these workers (source)
Open and obvious defense	Raised by the vessel against the turnover duty	Counter it by showing the hazard was latent or the vessel kept control	Turnover duty to warn is narrow (Howlett, 512 U.S. 92)

Do You Have to Prove the Vessel Was Negligent?

Yes, and this is a defining limit. Before 1972, longshore workers could sue a vessel on a strict-liability theory of unseaworthiness, but the 1972 amendments to the Longshore Act eliminated that remedy for these workers; a 905(b) claim now requires proof that the vessel was actually negligent under one of the Scindia duties (Source: AEU Longshore). The Supreme Court reaffirmed in Howlett v. Birkdale Shipping Co. that negligence, not unseaworthiness, is the controlling standard where longshore workers are concerned, and that subjecting vessels to liability for hazards a skilled stevedore should anticipate would upset the balance Congress struck in 1972 (Source: Justia, Howlett v. Birkdale Shipping Co.). That is why 905(b) cases turn so heavily on what the vessel actually knew and controlled, rather than on the mere fact that the ship was unsafe.

What Is the “Open and Obvious” Hazard Defense?

It is the vessel’s most common defense, and you should expect it. In Howlett, the Supreme Court treated the vessel’s turnover duty to warn of latent hazards as narrow: the duty attaches only to hazards that are not known to the stevedore and that a skilled stevedore would neither find obvious nor anticipate in the competent performance of its work (Source: Justia, Howlett v. Birkdale Shipping Co.). The practical consequence is that if the hazard was open and obvious, the vessel will argue it had no duty to warn, because an experienced longshore crew should have seen and avoided it. That defense is not automatic, it interacts with the active-control and intervene duties, and a hazard the worker was effectively forced to confront can still support liability, but it is the argument a vessel raises first. A strong 905(b) case is built to show the hazard was latent, or that the vessel retained control, precisely to take this defense off the table.

What If You Were Partly at Fault?

Partial fault does not end your claim. In a 905(b) action the maritime rule of comparative negligence applies, and the older defenses of assumption of risk and contributory negligence as complete bars do not; any negligence on your part simply reduces your recovery in proportion to your share of fault (Source: Lueder, Larkin & Hunter). For example, if a jury values the case at $1,000,000 and assigns you 20 percent of the fault, you still recover $800,000. That is far more favorable than a system that would deny recovery outright for any fault, and it means a partial mistake of your own, common in fast-moving cargo operations, should not discourage a strong claim.

Can You Sue Your Own Employer Under 905(b)?

Usually not, but there is a notable exception. As a rule, your employer is shielded by the LHWCA’s exclusive-remedy bar, so you cannot bring a 905(b) suit against it. The exception is the “dual capacity” situation: when your employer is also the owner or operator of the vessel, for example a marine construction company using its own barges, you may sue that company in its capacity as the vessel owner rather than as your employer (Source: Louisiana Law Review). The statute also contains specific carve-outs, such as barring a 905(b) action where a worker employed by the vessel to provide stevedoring services is injured by the negligence of fellow stevedoring workers, and barring shipbuilding or repair workers from suing the vessel when their employer is the vessel owner (Source: Cornell LII, 33 U.S.C. § 905). Sorting out which capacity and which carve-out applies is a fact-intensive question worth careful review.

How Much Does the Compensation Carrier Take Back From Your Recovery?

This is the part almost no guide explains, and it decides what you actually keep. Because your LHWCA carrier has already paid you benefits, Section 33 of the Longshore Act gives that carrier a lien on your third-party recovery and a credit against future benefits: the carrier is generally reimbursed for the compensation and medical benefits it paid, out of your 905(b) recovery, and it can offset the remainder against benefits it would otherwise owe you going forward (Source: Cornell LII, 33 U.S.C. § 933). As a worked example: suppose your 905(b) case settles for $600,000, and your carrier paid $150,000 in benefits to date. The carrier asserts its lien and is reimbursed from the recovery (often reduced by its share of attorney’s fees and costs), and any net surplus is credited against future benefits, meaning the carrier may not owe further compensation until that surplus is exhausted. The lien is negotiable in practice, and how it is handled materially changes your net, which is exactly why the third-party recovery and the comp claim have to be coordinated rather than run blind.

How Much More Is a 905(b) Claim Worth Than Benefits Alone?

Enough to change a life, because the benefit side is capped and the tort side is not. LHWCA disability is paid at two-thirds of your average weekly wage up to a federal maximum, which for October 2025 through September 2026 is $2,082.70 per week, about $108,300 per year, with no payment at all for pain and suffering (Source: U.S. Department of Labor). A 905(b) tort recovery, by contrast, has no such cap: it can include the full value of lost earning capacity beyond the weekly maximum, future medical needs, and pain and suffering and mental anguish (Source: Calderon Law Firm). For a younger worker with a permanent injury, the difference between a capped weekly benefit and an uncapped award for a lost career plus the human cost of the injury is often the difference between getting by and being made whole, which is why identifying a viable vessel defendant is so consequential.

A Worked Example: A Turnover-Duty Case

Picture how it comes together. A longshore worker steps onto a vessel to begin discharging cargo and falls because a walkway grating was corroded through, a condition that existed before operations began and was not visible under accumulated dunnage. First, this fits the turnover duty: the vessel should have maintained and inspected the grating and either repaired it or warned of it before turning the ship over for cargo work (Source: Scindia, 451 U.S. 156). Second, the vessel will argue the hazard was open and obvious, so the worker’s case is built to show it was latent, hidden under the dunnage and not anticipable by a skilled stevedore, which is the Howlett line (Source: Howlett, 512 U.S. 92). Third, if the worker was 10 percent careless, the recovery is reduced by that share, not eliminated. And whatever the gross recovery, the comp carrier’s Section 33 lien is resolved against it to determine the net. The benefits alone would have paid a capped weekly check; the 905(b) claim reaches the full loss.

How Long Do You Have to File a 905(b) Claim?

A 905(b) lawsuit is a maritime tort, and the general maritime statute of limitations is three years from the date of injury (Source: Cornell LII, 46 U.S.C. § 30106). That deadline runs separately from the administrative deadlines for your LHWCA benefit claim, which has its own shorter notice and filing requirements (Source: Cornell LII, 33 U.S.C. § 908). One coordination trap is worth flagging: under Section 33, accepting certain compensation arrangements or letting the carrier’s rights mature can affect your control over the third-party action, so the comp claim and the 905(b) claim should be managed together from the start. Because physical evidence aboard a vessel and the memories of a rotating crew fade quickly, the practical advice is the same as in any maritime case: preserve the evidence and act well before any deadline approaches.

Frequently Asked Questions

What is a Section 905(b) claim?

It is a third-party negligence lawsuit that an LHWCA-covered worker can bring against a negligent vessel, on top of their no-fault LHWCA benefits (Source: Cornell LII, 33 U.S.C. § 905).

What does a 905(b) claim add over my LHWCA benefits?

It can recover what the benefits do not pay: pain and suffering, mental anguish, and the full value of lost earning capacity beyond the capped weekly benefit (Source: Calderon Law Firm). To see if you have one, get a free case review.

Do I have to prove the vessel was negligent?

Yes. Unseaworthiness was eliminated for these workers in 1972, so you must prove the vessel breached one of the three Scindia duties (Source: AEU Longshore).

What if the hazard was open and obvious?

The vessel will argue it had no duty to warn, because Howlett makes the turnover duty narrow; a strong case shows the hazard was latent or that the vessel kept control of the area (Source: Justia, Howlett v. Birkdale Shipping Co.).

What if I was partly at fault?

Comparative negligence applies, so your own fault reduces your recovery proportionally but does not bar it (Source: Lueder, Larkin & Hunter).

Can I sue my own employer under 905(b)?

Generally no, but you can if your employer was also the vessel owner, in which case you sue it in its vessel-owner capacity (Source: Louisiana Law Review).

Will my compensation carrier take part of my recovery?

Yes. Under Section 33, the carrier holds a lien for the benefits it paid and a credit against future benefits, which reduces your net (Source: Cornell LII, 33 U.S.C. § 933).

How long do I have to file?

Generally three years for the maritime tort, separate from your LHWCA benefit-claim deadlines (Source: Cornell LII, 46 U.S.C. § 30106).

The Bottom Line

For a dock, harbor, or shipyard worker, a Section 905(b) claim is often the single most valuable avenue available, because it reaches the damages your LHWCA benefits leave on the table: pain and suffering and the full value of your lost earning capacity, uncapped, where the benefit maximum is about $108,300 a year. It runs against the negligent vessel rather than your employer, survives your own partial fault, and is built on the three Scindia duties, with Howlett’s open-and-obvious defense the vessel’s first answer. Two realities shape the net result: you must prove negligence, not just an unsafe ship, and your compensation carrier’s Section 33 lien claws back part of the recovery. Identify the right vessel defendant, build the case to show a latent hazard or vessel control, coordinate the comp lien, and mind the three-year clock.

References and Sources

1. LHWCA exclusive remedy and vessel liability (Section 905), 33 U.S.C. § 905: Cornell Legal Information Institute
2. LHWCA compensation for disability, 33 U.S.C. § 908: Cornell Legal Information Institute
3. Compensation where third persons are liable (lien/credit), 33 U.S.C. § 933: Cornell Legal Information Institute
4. Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156 (1981): Justia U.S. Supreme Court Center
5. Howlett v. Birkdale Shipping Co., 512 U.S. 92 (1994): Justia U.S. Supreme Court Center
6. Jones Act, 46 U.S.C. § 30104: Cornell Legal Information Institute
7. Maritime statute of limitations, 46 U.S.C. § 30106: Cornell Legal Information Institute
8. LHWCA maximum compensation rate, effective October 1, 2025: U.S. Department of Labor, OWCP
9. Section 905(b) vessel negligence and the Scindia duties: AEU Longshore
10. Section 905(b) claims, vessel definition, comparative negligence: Lueder, Larkin & Hunter
11. When a worker can sue a ship owner; value over benefits; Scindia examples: Calderon Law Firm
12. What a 905(b) claim is: Jones Act Law
13. Section 905(b) and the Scindia construct (dual capacity): Louisiana Law Review

Editorial Standards and Review

This article follows a zero-hallucination policy. The statute and the two controlling Supreme Court decisions, Scindia Steam Navigation Co. v. De Los Santos and Howlett v. Birkdale Shipping Co., are cited to the U.S. Code and U.S. Supreme Court opinions; the lien and credit rule to 33 U.S.C. Section 933; the benefit maximum to the Department of Labor’s current bulletin; and the practical scope of recovery and defenses to experienced maritime practitioners. The worked examples are illustrative and not specific cases. The article distinguishes a 905(b) vessel-negligence claim, available to LHWCA-covered workers who are not seamen, from a Jones Act claim available to seamen. OffshoreInjuryHelp.com is an informational resource, not a law firm, and does not provide legal representation; it connects injured maritime workers and their families with experienced maritime attorneys. Learn more on our Editorial Standards page. Last reviewed: June 1, 2026.