It would seem that the issue of OSHA jurisdiction aboard vessels changes from day to day. A new court order issued from chambers in Federal District Court in Anchorage says it does not apply to fish processing vessels- we will discuss that later.
In analyzing whether or not OSHA applies, one must determine several factors.
First, determine whether the commercial vessel is inspected for the purpose of Coast Guard regulation. 46 USC 3301. An uninspected commercial vessel is defined by 46 USC 2101 (43) as one not required to be inspected under 46 USC 3301. If it is an inspected vessel, OSHA has been preempted and has no jurisdiction. See the intra-agency Memorandum of Understanding published in the Federal Register March 18, 1983.
Second, at the time of the incident, was the vessel in the territorial waters of the United States - within three miles from shore except one league in the Gulf of Mexico. If it is beyond the territorial waters, OSHA may not apply as a matter of law since OSHA jurisdiction is geographically limited. However, it is interesting to note that in Sec'y of Labor v Alaska Trawl Fisheries, No. 89-1017 (OSHRC 1989), the Administrative Judge made the following comments:
The Respondents' final argument in support of its Motion to Dismiss is that the activity of the vessel was conducted on the high seas, outside the jurisdiction of any state and, as a result, there was no place within a state. While catching and processing of fish took place on the high seas, the facts disclosed that ancillary actives were carried on the port of Dutch Harbor, Alaska. Thus, the ship made trips to port to deliver processed fish, to pick up fuel and supplies, to change crews, and to undergo repairs, all of which functions were part and parcel of the Respondents' business. In-so-much as some of the work took place in the Port, OSHA had jurisdiction over this employment.
Third, determine what type of vessel it is if uninspected. It is fairly clear that if the commercial vessel is not a fishing vessel, and meets the above criteria, it is subject to OSHA jurisdiction. Fourth, if it is a fishing vessel, fish processing vessel or fishing tender, the date of the accident may be determinative, assuming the above criteria are met.
On September 9, 1988, the Commercial Fishing Vessel Safety Act of 1988 Pub.L. 100-424, ("CFVSA") amended Chapters 41 and 45 of Title 46, USC and added a new Chapter 106. The Coast Guard issued regulations under this authority which became effective September 15, 1991, Fed. Reg. Vol. 56, No. 157, 40364.
As reported in the Spring 1993 issue of the EXPERT newsletter, Federal District Court Judge Zilly in Seattle issued an Order dated December 16, 1992 denying a Motion for Summary Judgement, which, although denying the notion on other grounds, stated that OSHA did apply in a case in which a deck hand on a crab boat was injured on February 14, 1988. The date of the accident preceded the effective data of CFVSA.
In the case of LESZEK HEJDUK vs THE STARBOUND et al, being tried in Federal District court, Anchorage, Alaska, a worker in the factory processing area of the fish processing vessel STARBOUND was injured on August 17,1989. It was claimed that the machinery on which he was injured did not have proper guards in violation of OSHA requirements. The data of the accident was after CFVSA had become law, but well before the effective date of Coast Guard regulations. In an Order from Chambers issued March 8th, 1993, Judge Sedwick denied a Motion for summary Judgement holding that OSHA had been preempted by the Coast Guard. Case A91-371 CIV.
The court acknowledged that before preemption can occur, "29 USC 653(b)(1) requires an actual exercise of authority over the relevant working conditions by another agency".
In denying the application of OSHA standards, the court focused on whether the Coast Guard had exercised its authority.
In an Administrative case. Sec'y of Labor v Alaska Trawl Fisheries, No. 89-1017 (OSHRC 1989), the Coast Guard submitted an unpublished amicus brief which was produced by the Plaintiff in the instant case. The Coast Guard took the position that they had not exercised authority over "factory" operations on uninspected vessels such as the STARBOUND. Although the date of the amicus brief is not know, it was written after the issuance of the proposed Coast Guard regulations under CFVSA and before the final rules were published. The Court gave little if any weight to the amicus brief stating there was no indication that it represented the position of the Coast Guard.
The court then went on to analyze the statute (the regulations were not yet in effect at the time of the accident). The court focused on 46 U.S.C. 4502 which stated in parts:
(b)(1) [T]he Secretary of Transportation shall prescribe regulations requiring installation, maintenance and use of equipment in paragraph (2) . . .
(b)(2)(G) other equipment required to minimize the risk of injury to the crew during vessel operations, if the Secretary determines that a risk of serious injury exists that can be eliminated or mitigated by that equipment.
The court than went on to interpret that statute based on the regulations promulgated by the Court Guard almost two years after the date of the accident. The 46 CFR 28.215 states:
(a) Each space on board a vessel must meet the requirements of the section.
(b) Suitable hand covers, guards, or railing must be installed in way of machinery which can cause injury to personnel, such as gearing, chain or belt drives, and rotating shafting...
The court stated that "the regulation is obviously applicable to that space on the fish processor like the F/T STARBOUND where its 'factory' operates, for it applies to all spaces aboard a ship".
Although admitting that "CFVSA [is] more readily construed to be directed at safety of traditional nautical operations than safety of workers in factory spaces which simply happen to be aboard a ship", the court gave the statute the broadest interpretation which, it said, is consistent with the Coast Guard regulations. Thus it found that the Coast Guard has preempted OSHA on uninspected fish processing vessels.
With regard to this case, I think the court's approach is flawed. The preemption of OSHA by another agency requires two conditions, authority and exercise of that authority. The court combined the two distinct conditions and that muddied its thinking. The statute provided jurisdiction although I do not here attempt to determine the extent of the jurisdiction. The exercise of the authority cannot occur until regulations are issued. They were issued in 1991 while the accident occurred two years previous to the enactment. Thus clearly at the time of the accident, the Coast Guard had not exercised jurisdiction. The court in its interpretation of the CFVSA never found any action by the Coast Guard to enforce the statue other than the commencement of the regulatory process. Exercise of authority cannot be determined by analyzing the statute in isolation. The preempting agency must have taken action and have clear standards to enforce.
Looking at it another way, the court stated that were it "confronted by a case in which a vessel owner were (sic) arguing that the Coast Guard could not regulate the guarding of machinery which happened to be in the 'factory' area on a ship like the F/T STARBOUND, this court would find itself constrained to reject the argument". If the court meant that it would grant a Motion for Summary Judgement based on violation of the Coast Guard regulation which it used to find an exercise of authority by the Coast Guard in this accident, I'm sure that defendant would have a substantial argument that the standards which the plaintiff sought to apply were not in effect at the time.
Whether or not OSHA has been totally preempted on fishing vessels, processing vessels or fish tenders for accidents occurring after September 12, 1991, will undoubtedly be litigated again. If one was to accept this court's findings, OSHA would be out of business on commercial fishing industry vessels. Those readers who have knowledge of such cases are requested to advise us of them so that they may be shared with our readers.
As noted in previous articles, OSHA Seattle Regional Instruction CPL 2.6A issued August 12, 1992 interpreted the areas of jurisdiction of OSHA and the Coast Guard aboard commercial fishing and fish processing vessels which are consistent with the view that OSHA, and not the Coast Guard, regulates industrial areas of fish processors.
Further, in an Advanced Notice of Proposed Rule Making published in the
Federal Register August 3, 1992 entitled Ergonomic Safety and Health Management;
Proposed Rule, OSHA has stated that they are considering standards which would
regulate general industries and certain specific industries such as maritime.
Clearly they think they continue to have some jurisdiction and the Coast Guard
has agreed with them.