§ 933. — Compensation for injuries where third persons are liable.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 33USC933]
TITLE 33--NAVIGATION AND NAVIGABLE WATERS
CHAPTER 18--LONGSHORE AND HARBOR WORKERS' COMPENSATION
Sec. 933. Compensation for injuries where third persons are
liable
(a) Election of remedies
If on account of a disability or death for which compensation is
payable under this chapter the person entitled to such compensation
determines that some person other than the employer or a person or
persons in his employ is liable in damages, he need not elect whether to
receive such compensation or to recover damages against such third
person.
(b) Acceptance of compensation operating as assignment
Acceptance of compensation under an award in a compensation order
filed by the deputy commissioner, an administrative law judge, or the
Board shall operate as an assignment to the employer of all rights of
the person entitled to compensation to recover damages against such
third person unless such person shall commence an action against such
third person within six months after such acceptance. If the employer
fails to commence an action against such third person within ninety days
after the cause of action is assigned under this section, the right to
bring such action shall revert to the person entitled to compensation.
For the purpose of this subsection, the term ``award'' with respect to a
compensation order means a formal order issued by the deputy
commissioner, an administrative law judge, or Board.
(c) Payment into section 944 fund operating as assignment
The payment of such compensation into the fund established in
section 944 of this title shall operate as an assignment to the employer
of all right of the legal representative of the deceased (hereinafter
referred to as ``representative'') to recover damages against such third
person.
(d) Institution of proceedings or compromise by assignee
Such employer on account of such assignment may either institute
proceedings for the recovery of such damages or may compromise with such
third person either without or after instituting such proceeding.
(e) Recoveries by assignee
Any amount recovered by such employer on account of such assignment,
whether or not as the result of a compromise, shall be distributed as
follows:
(1) The employer shall retain an amount equal to--
(A) the expenses incurred by him in respect to such
proceedings or compromise (including a reasonable attorney's fee
as determined by the deputy commissioner or Board);
(B) the cost of all benefits actually furnished by him to
the employee under section 907 of this title;
(C) all amounts paid as compensation;
(D) the present value of all amounts thereafter payable as
compensation, such present value to be computed in accordance
with a schedule prepared by the Secretary, and the present value
of the cost of all benefits thereafter to be furnished under
section 907 of this title, to be estimated by the deputy
commissioner, and the amounts so computed and estimated to be
retained by the employer as a trust fund to pay such
compensation and the cost of such benefits as they become due,
and to pay any sum finally remaining in excess thereof to the
person entitled to compensation or to the representative; and
(2) The employer shall pay any excess to the person entitled to
compensation or to the representative.
(f) Institution of proceedings by person entitled to compensation
If the person entitled to compensation institutes proceedings within
the period prescribed in subsection (b) of this section the employer
shall be required to pay as compensation under this chapter a sum equal
to the excess of the amount which the Secretary determines is payable on
account of such injury or death over the net amount recovered against
such third person. Such net amount shall be equal to the actual amount
recovered less the expenses reasonably incurred by such person in
respect to such proceedings (including reasonable attorneys' fees).
(g) Compromise obtained by person entitled to compensation
(1) If the person entitled to compensation (or the person's
representative) enters into a settlement with a third person referred to
in subsection (a) of this section for an amount less than the
compensation to which the person (or the person's representative) would
be entitled under this chapter, the employer shall be liable for
compensation as determined under subsection (f) of this section only if
written approval of the settlement is obtained from the employer and the
employer's carrier, before the settlement is executed, and by the person
entitled to compensation (or the person's representative). The approval
shall be made on a form provided by the Secretary and shall be filed in
the office of the deputy commissioner within thirty days after the
settlement is entered into.
(2) If no written approval of the settlement is obtained and filed
as required by paragraph (1), or if the employee fails to notify the
employer of any settlement obtained from or judgment rendered against a
third person, all rights to compensation and medical benefits under this
chapter shall be terminated, regardless of whether the employer or the
employer's insurer has made payments or acknowledged entitlement to
benefits under this chapter.
(3) Any payments by the special fund established under section 944
of this title shall be a lien upon the proceeds of any settlement
obtained from or judgment rendered against a third person referred to
under subsection (a) of this section. Notwithstanding any other
provision of law, such lien shall be enforceable against such proceeds,
regardless of whether the Secretary on behalf of the special fund has
agreed to or has received actual notice of the settlement or judgment.
(4) Any payments by a trust fund described in section 917 of this
title shall be a lien upon the proceeds of any settlement obtained from
or judgment recorded against a third person referred to under subsection
(a) of this section. Such lien shall have priority over a lien under
paragraph (3) of this subsection.
(h) Subrogation
Where the employer is insured and the insurance carrier has assumed
the payment of the compensation, the insurance carrier shall be
subrogated to all the rights of the employer under this section.
(i) Right to compensation as exclusive remedy
The right to compensation or benefits under this chapter shall be
the exclusive remedy to an employee when he is injured, or to his
eligible survivors or legal representatives if he is killed, by the
negligence or wrong of any other person or persons in the same employ:
Provided, That this provision shall not affect the liability of a person
other than an officer or employee of the employer.
(Mar. 4, 1927, ch. 509, Sec. 33, 44 Stat. 1440; June 25, 1938, ch. 685,
Secs. 12, 13, 52 Stat. 1168; Pub. L. 86-171, Aug. 18, 1959, 73 Stat.
391; Pub. L. 92-576, Sec. 15(f)-(h), Oct. 27, 1972, 86 Stat. 1262; Pub.
L. 98-426, Sec. 21, Sept. 28, 1984, 98 Stat. 1652.)
Amendments
1984--Subsec. (b). Pub. L. 98-426, Sec. 21(a), substituted
``Acceptance of compensation under an award in a compensation order
filed by the deputy commissioner, an administrative law judge, or the
Board shall operate as an assignment to the employer of all rights of
the person entitled to compensation to recover damages against such
third person unless such person shall commence an action against such
third person within six months after such acceptance'' for ``Acceptance
of such compensation under an award in a compensation order filed by the
deputy commissioner or Board shall operate as an assignment to the
employer of all right of the person entitled to compensation to recover
damages against such third person unless such person shall commence an
action against such third person within six months after such award''
and inserted at end ``If the employer fails to commence an action
against such third person within ninety days after the cause of action
is assigned under this section, the right to bring such action shall
revert to the person entitled to compensation. For the purpose of this
subsection, the term `award' with respect to a compensation order means
a formal order issued by the deputy commissioner, an administrative law
judge, or Board.''
Subsec. (e)(2). Pub. L. 98-426, Sec. 21(b), struck out ``, less one-
fifth of such excess which shall belong to the employer'' after ``or to
the representative''.
Subsec. (f). Pub. L. 98-426, Sec. 21(c)(1), inserted ``net'' before
``amount recovered''.
Pub. L. 98-426, Sec. 21(c)(2), inserted at end ``Such net amount
shall be equal to the actual amount recovered less the expenses
reasonably incurred by such person in respect to such proceedings
(including reasonable attorneys' fees).''
Subsec. (g). Pub. L. 98-426, Sec. 21(d), designated existing
provisions as par. (1), substituted ``If the person entitled to
compensation (or the person's representative) enters into a settlement
with a third person referred to in subsection (a) of this section for an
amount less than the compensation to which the person (or the person's
representative) would be entitled under this chapter, the employer shall
be liable for compensation as determined under subsection (f) of this
section only if written approval of the settlement is obtained from the
employer and the employer's carrier, before the settlement is executed,
and by the person entitled to compensation (or the person's
representative)'' for ``If compromise with such third person is made by
the person entitled to compensation or such representative of an amount
less than the compensation to which such person or representative would
be entitled to under this chapter the employer shall be liable for
compensation as determined in subsection (f) of this section only if the
written approval of such compromise is obtained from the employer and
its insurance carrier by the person entitled to compensation or such
representative at the time of or prior to such compromise on a form
provided by the Secretary and filed in the office of the deputy
commissioner having jurisdiction of such injury or death within thirty
days after such compromise is made'', inserted at end ``The approval
shall be made on a form provided by the Secretary and shall be filed in
the office of the deputy commissioner within thirty days after the
settlement is entered into.'', and added pars. (2) to (4).
1972--Subsecs. (b), (e)(1)(A). Pub. L. 92-576, Sec. 15(f), (g),
inserted ``or Board'' after ``deputy commissioner''.
Subsec. (g). Pub. L. 92-576, Sec. 15(h), substituted ``if the
written approval of such compromise is obtained from the employer and
its insurance carrier by the person entitled to compensation or such
representative at the time of or prior to such compromise on a form
provided by the Secretary and filed in the office of the deputy
commissioner having jurisdiction of such injury or death within thirty
days after such compromise is made'' for ``if such compromise is made
with his written approval''.
1959--Subsec. (a). Pub. L. 86-171 inserted ``or a person or persons
in his employ'' after ``employer'' and substituted ``he need not elect
whether'' for ``he may elect, by giving notice to the deputy
commissioner in such manner as the Secretary may provide,''.
Subsec. (b). Pub. L. 86-171 inserted ``unless such person shall
commence an action against such third person within six months after
such award''.
Subsec. (c). Pub. L. 86-171 struck out ``, whether or not the
representative has notified the deputy commissioner of his election''
after ``third person''.
Subsec. (d). Pub. L. 86-171 reenacted subsec. (d) without change.
Subsec. (e). Pub. L. 86-171 substituted ``Secretary'' for
``Commission'' in par. (1)(D) and inserted in par. (2) ``less one-fifth
of such excess which shall belong to the employer''.
Subsec. (f). Pub. L. 86-171 struck out ``or the representative
elects to recover damages against such third person and notifies the
Secretary of his election and'' before ``institutes'' and substituted
``subsection (b) of this section'' for ``section 913 of this title'' and
``Secretary'' for ``Commission''.
Subsec. (g). Pub. L. 86-171 corrected reference to ``subsection
(e)'' to read ``subsection (f)''.
Subsecs. (h), (i). Pub. L. 86-171 redesignated subsec. (i) as (h)
and struck out former subsec. (h) that permitted the deputy commissioner
to make an election for a minor or to authorize the parent or guardian
to make the election.
1938--Subsec. (b). Act June 25, 1938, Sec. 12, inserted ``under an
award in a compensation order filed by the deputy commissioner'' and
struck out ``, whether or not the person entitled to compensation has
notified the deputy commissioner of his election'' at end of sentence.
Subsec. (e). Act June 25, 1938, Sec. 12, redesignated par. (1)(C) as
par. (1)(C) and (D) and included in said par. (1)(D) the present value
of the cost of benefits furnished.
Subsec. (i). Act June 25, 1938, Sec. 13, added subsec. (i).
Effective Date of 1984 Amendment
Amendment by Pub. L. 98-426 effective Sept. 28, 1984, and applicable
both with respect to claims filed after such date and to claims pending
on such date, see section 28(a) of Pub. L. 98-426, set out as a note
under section 901 of this title.
Effective Date of 1972 Amendment
Amendment by Pub. L. 92-576 effective 30 days after Oct. 27, 1972,
see section 22 of Pub. L. 92-576, set out as a note under section 902 of
this title.
Section Referred to in Other Sections
This section is referred to in sections 905, 907 of this title;
title 30 section 932.
