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Rights of Workers Injured on a Barge

By Nicholas Papain, Esq.

A construction worker injured while working on a pier, bridge or permanently moored barge may be able to recover damages in addition to those provided under Worker’s Compensation coverage. Under Worker’s Compensation law and under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), an employee is barred from bringing a cause of action in court against his employer. However, the worker may be able to also bring a lawsuit alleging claims under New York’s Labor Law against the owner of the property where the injury occurred or against the general contractor in charge, if they were not the worker’s employer.

Thus, in a recent decision in a New York appellate court, it was determined that a worker on a barge permanently moored to a pier on the Gowanus Bay that operated as a power plant could bring a lawsuit alleging claims under the Labor Law against the owner of the barge. In that case, the worker was employed by a subcontractor who had men on the barge to perform major repairs to the power plant. The worker was injured after he was not given the proper equipment to lower himself approximately 15 feet to the base of an exhaust well to do welding work. The absence of proper safety equipment caused the plaintiff to fall and suffer injury.

As a result of the accident, plaintiff was awarded benefits under the LHWCA because he was injured on “navigable” waters. The LHWCA establishes a comprehensive federal workers’ compensation program that provides longshoremen and harbor workers and their families with medical, disability, and survivor benefits for work-related injuries and death regardless of fault. While workers who receive workers’ compensation payments from their employers for injuries sustained in the course of their employment are precluded from seeking any other remedy against their employers, an injured worker may be able to bring an action in negligence or under the Labor Law against a third-party owner of the property where the injury occurred or a general contractor, without losing his or her worker-compensation rights.

The worker in this case was able to prevail on a claim under New York Labor Law § 240(1), which creates a duty upon property owners to provide safety equipment to protect workers against falling from a height. Notably, the responsibility of owners and general contractors to an injured worker is absolute in cases of height-related injuries.

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