Maritime Advisory Committee for Occupational Safety and Health (OSHA)
7/27/04 Tugs to be Inspected - By
voice vote, the U.S. Senate adopted the Coast Guard and Maritime
Transportation Act of 2004 (H.R. 2443). The measure will now be forwarded
to the President for signature. The text is included in the
Conference Report. Most U.S towing
vessels will become subject to USCG inspection [thus eliminating OSHA
jurisdiction] once regulations are issued.
Lifting
Evaluation - OSHA uses the NIOSH Lifting Equation to evaluate lifting
tasks. While they do not have a regulation specifically related to lifting,
they have the ability to issue citations under Section
5(a)(1) of the OSH Act, commonly referred to as the General Duty Clause.
Lifting
problems - The linked page from OSHA's website illustrates a number of
problems areas involving heavy lifting such as poultry processing plants
where workers have to lift boxes in excess of 50 pounds.
Ergonomic
Enforcement - OSHA's policy on evaluating and enforcing ergonomic
hazards under the General Duty clause.
Ship's Stairs:
The application of OSHA to the construction and maintenance of ship's stairs
has been in dispute for some time. The Seattle District Federal Court rules
many years ago that OSHA standards did not apply to stairs. The basis for
this opinion was an Advance Notice of Proposed Rule Making which said that
OSHA had no standards for "ships stairs." See my article #5 below. In order
to put this issue to rest, I made a formal request to OSHA headquarters in
Washington, DC asking for an opinion.
They responded that "all provisions of 29 CFR 1910.24 apply to fixed
industrial stairs on [uninspected] vessels, but that OSHA would use their
discretion in enforcing them. Click HERE to
view the letter.
To Whom Do OSHA Standards Apply: The Seattle
Region of OSHA in a CPL2.6C raised the question in section G as to whether
or not all standards applied to all seamen. This issue arose in connection
with stairs - see Section H2d(6)ff, OSHA headquarters in Washington, DC has
ruled that "OSHA regulations are applicable to the working conditions of all
workers including crew members [on uninspected vessels]." See the end of the
second paragraph in the Rules section of the OSHA letter linked to this
paragraph.
Chao v
Mallard Bay Drilling on January 9,2002, the United States Supreme
Court unanimously reversed the Fifth Circuit and held that OSHA has
jurisdiction over uninspected vessels.
Donald Cook vs John
Ancich et al C99-5353FDB - In an Order on Plaintiff's Motions for
Partial Summary Judgment for Negligence Per Se and Contributory Negligence
submitted by George Luhrs, a Seattle attorney, Judge Burgess of the USDC
Western District, Tacoma, Washington held that "29 CFR
1910.(I) is a safety statute, enacted for the benefit of a class of workers,
to which plaintiff belongs, designed to protect workers from head injuries,
there was no excuse for defendant's violation and injury resulted. Under
FELA negligence standards incorporated by the Jones Act, the defendant is
liable as a matter of law and no deduction for contributory negligence will
be allowed." (August 23, 2000)
Mallard
Bay Drilling v Secretary of Labor - (REVERSED
BY THE SUPREME COURT - see above) On June 2, 2000, the Fifth
Circuit Court of Appeals, citing their previous holdings, continued to hold
that OSHA does not have jurisdiction over uninspected vessels. This
is in direct conflict to the Ninth Circuit's opinion in Herman v
Tidewater below. (see Chao v Mallard Bay Drilling
Supreme Court decision above)
OSHA regulations and
interpretations
- Uninspected vessels (fishing vessels, tugs and some barges) fall under
OSHA's jurisdiction. (Ergonomics, lifting, material data safety sheets,
record keeping, walking surfaces, stairs etc.) This link is to OSHA.
Searches may be done on various types of vessels to determine how OSHA
regulates them or on specific inspections and violations given.
Memorandum of Understanding (MOU) between the Coast Guard and OSHA March 4, 1983 acknowledging that the
Coast Guard had sole jurisdiction over inspected vessels.
Herman v
Tidewater Pacific, Inc., Ninth Circuit Court of Appeals, November 24,
1998 confirming that
OSHA has jurisdiction over uninspected vessels.
OSHA definition of
"seaman" set forth in a letter ruling of interpretation.
Seattle Regional Instruction
TEXT PDF -
CPL 2.6C, June 12, 1998 - Jurisdiction of OSHA/Coast Guard
Directorate of Compliance, Occupational Safety and
Health, CPL 2-1.20, November 8, 1996,
Jurisdiction of OSHA/Coast Guard
Condor OSHA Guides - Attorney William Brewster has a cite on OSHA standards and news with further OSHA links which may be of assistance.
Lifting - OSHA's use of the NIOSH lifting standard is addressed in the technical manual.