OSHA UPDATE

 When a person is injured aboard a vessel, one of the critical issues to resolve is, "were any lows or regulations violated?" There are basically two federal agencies which may have jurisdiction an two areas of regulations which may apply. Coast Guard regulations may be found in 33 CFR, and 46 CFR. OSHA regulations are found in 26 CFR.

The occupational Safety and Health Administration (OHSA) was created by Occupational Safety and Health Act of 1970. The Act applied to all employment, even if there was only a single employee, performed in a work place in Anne State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, the outer shelf lands, and some other areas.

OSHA defines its jurisdictional boundaries within a state to include its territorial waters which extend three nautical miles from the coastline, except in the Gulf of Alaska where the territorial waters extend three marine leagues or approximately nine miles (Seattle Regional Instruction CPL 2.6A dated August 12,1992).

The scope of the Act, however, was limited by Section 4(b) (1), (29 USC 653 (b)(1)), which states:

Nothing in this chapter shall apply to working conditions of employees with respect to which other Federal Agencies…exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.

Thus in the case of vessels, OSHA would have jurisdiction if there is one employee, the vessel was within the geographic area of jurisdiction, and no other federal agency had preempted them under the 4(b)(1) section.

The Coast Guard is another federal agency which may exercise occupational safety and health jurisdiction and thereby preempted OSHA on vessels. Note that before preemption occurs, another agency not only needs to have jurisdiction, but must exercise that jurisdiction. At this point, several definitions must be understood,. An "inspected vessel" means one that the Coast Guard has inspected and has issued a current Certificate of Inspection. The routine boarding of a vessel by the Coast Guard to assure compliance with certain laws does not make the vessel an "inspected vessel". Common classes of vessel normally "inspected" are passenger vessels carrying more than six passengers, tankers, and cargo vessels.

"Uninspected vessels" are defined in 46 USCA 2101(43) as those vessels not subject to inspection and not issued a Certificate of Inspection by the Coast Guard and which are not recreational vessels. Common classes of vessels which are "uninspected" are tugs under 300 GT, inland dredges, inland barges, fishing vessels, fish tenders under 500 GT, and fish processors under 5000 GT.

A table setting forth the requirements for inspection is found at the beginning of many of the Subchapters of 46 CFR. One such table is 46 CFR. One such table is 46 CFR Table 24.05-1(a) found in Subchapter C, Uninspected Vessels.

In order to clarify the regulatory status of some vessels, OSHA and the Coast Guard entered into a Memorandum of Understanding (MOU) published in the Federal Register, Vol. 48, No. 54, March 18, 1083. This MOU acknowledged that the Coast Guard had preempted OSHA with respect to "inspected" vessels. It did not address "uninspected" vessels although by their omission, it can be read that this class of vessels remains under OSHA jurisdiction.

An interesting aside to the issue of who has jurisdiction is the ongoing attempt by the Washington state Department of Labor and Industries (WISHA) to regulate the Washington "inspected" ferries operated by the Washington Department of Transportation. By memorandum to Jim Arvan, WISHA Chief Compliance Officer from Thornton Wilson, Assistant Attorney General, dated April 1, 1980, it was opined that since the Coast Guard regulations did not relate directly to employee safety, the Coast Guard rules did not limit the department’s authority under WISHA. A similar opinion was issued in a memorandum to Dale Cheek, Director Division of Labor Standards and Safety, State of Alaska from Wilson L. Condon, Attorney General, State of Alaska, dated February 16, 1982 with regard to that state’s owned and operated vessels. However, those opinions were overtaken by the OSHA/-Coast MOU in 1983.

Subsequently, in the State of Washington, the Department of Labor and Industries issued seven violations against the Department of "Transportation for failure to comply with WISHA. By order dated August 1, 1986, the Board ruled that WISHA had been preempted by the United States Coast Guard and lacked jurisdiction.

That matter has not yet ended since WISHA is seeking jurisdiction as an employer through the state legislature.

With respect to "uninspected" vessels, which agency has occupational and health jurisdiction has not always been clear. Early court decisions favored Coast Guard preemption of OSHA even on "uninspected" vessels because the Coast Guard clearly regulated even "uninspected" vessels. However the regulation of "uninspected" vessels did not relate to occupational safety and health and, in my opinion, these decisions were clearly incorrect.

The one most frequently cited cases in support of the inapplicability of OSHA is Kopczynski v The Jacqueline, 742 F.2d 555 (9th Cir 1984). In Kopczynski, a Jones Act seaman was injured as he attempted to step from the vessel to the dock. Relying on Corray v. So. Pacific Co., 335 U.S. 520, 69 S.Ct 275 (1949), the plaintiff is Kopczynski argued that the jury’s determination of his comparative fault could not be used to reduce his award because his employer was in violation of various regulations. However, plaintiff mistakenly relied upon OSHA regulation which expressly apply only to longshoring activities, not work performed by Jones Act seamen. Kopczynski, 742 F2d at 559; 29 CFR 1915.2(b) specifically exempts crew members from "employee" category. Had plaintiff used the proper regulation, 29 CFR 1910, the result of his claim would very likely have been different as indicated by subsequent cases. Thus, Kopczynski is confined to the fact that OSHA longshoring regulations do not apply to Jones Act seamen.

Several subsequent decisions have supported the view that OSHA’s jurisdiction over "uninspected" vessels has not been preempted. In Donovan v Red Star Marine Service, Inc, 739 F2d 774 (2nd Cir 1984), cert. Denied, 470 U.S. 1003 [12 OSHC 1304](1985), it was held that "OSHA possessed statutory authority to regulate the working conditions of employees aboard uninspected vessels." The case involved noise hazards on tugs. As recently as July 13, 1992, OSHA has issued citations on tugs for noise, lack of guards, obstruction of passageways, and locked exit doors (OHSA Bellevue, WA inspection #109421685 of Crowley Invader class tugs).

In re inspection of Norfolk Dredging Co., 783 F2d 1526 (11th Cir 1986), Reh denied 790 F.2d 688, Cert denied, 109 S.Ct 271 (1987) the court said, "the issues [of jurisdiction] turn on difference between "inspected" and "uninspected" vessels…We conclude that the Coast Guard’s regulation of safety aboard uninspected vessels is so circumscribed that it does not preempt OSHA’s jurisdiction…"

The only case which could be found which applies to fishing industry vessels is an unreported Alaskan case, Barbara Munden v Ultra-Alaska, Case No. 3KO-81-491Civ., filed in the Superior Court for the State of Alaska, Third Judicial District at Kodiak. The case involved an injured party who worked on the processing line of the "uninspected" fish processing barge NEPTUNE. In a well reasoned decision dated April 11, 1985, "the court therefore finds that OSHA Regulations are applicable to this matter."

With respect to fishing industry vessels, Public Law 100-24 [H.R. 1841] inacted September 9, 1988 has changed jurisdiction with respect to some of these vessels. Discussions with Coast Guard personnel who had a hand in drafting the Coast Guard regulations indicate that it was not their intent to preempt OSHA in the factory areas of processing vessels. Meetings were held between OSHA and the Coast Guard to hammer out another MOU relating to preemption on fishing industry vessels. However, because of the press of other more important issues, it is not anticipated that the MOU will be forth coming in the immediate future.

The fishing industry regulations promulgated under this Act were published in the Federal Register on August 14, 1991 as 46 CFR Part 28. This Part falls in Subchapter C, Uninspected Vessels.

It is clear that the "inspected" – "uninspected" vessel classification is no longer the dividing line between Coast Guard and OSHA authority. Although a new MOU has not been published, OSHA’s Seattle Regional Administrator has published guidelines with respect to the division of jurisdiction (Seattle Regional Instruction CPL 2.6A). The division between OSHA jurisdiction and Coast Guard jurisdiction on the same uninspected vessel will depend on whether the hazard or condition is regulated by the Coast Guard in 46 CFR 28. If it is, OSHA is preempted. If not, OSHA continues to assert jurisdiction. This is an unusual approach and I know of no other area in which OSHA has shared jurisdiction within the same enfironmental area or surroundings. See Southern Ry Co. v Occupational Saf. & H. Review Comm 539 F2d 335 (1976) and Southern Pacific Transportation Co. v Usery 539 F.2d 386 (1976). The applicability of OSHA authority on processing vessels may be questioned in the courts. If it is, the outcome will be reported in Maritime & Environmental Consultants newsletter the EXPERT. Those interested in a discussion of the preemption issue with respect to the Commercial Fishing Industry Vessel Safety Act of 1988 may wish to read Secretary of Labor v. Alaska Trawl Fisheries Zinc (15 OSHA 1699) in which the Commission upheld the authority of OSHA over fishing and processing vessels. However, at the time this decision was issued, the Coast Guard had not promulgated regulations under the Act.

The Coast Guard has not published any guidelines on the division of authority between them and OSHA in the fishing industry. Discussions with Coast Guard headquarters indicate that a Memorandum of Understanding between the two agencies on this issue will not be forthcoming in the immediate future.

Activities of longshoremen and stevedores, who are not crew members on inspected vessels are under OSHA jurisdiction although if an injury results from a failure of ship’s equipment, both agencies may have jurisdiction. While this has always been the accepted practice between the two agencies, a new twist has recently been added. OSHA recently issued a citation against Samson Tug & Barge when longshoremen were observed operating a fork lift on a Coast Guard inspected Samson barge. They said measures had not been taken to prevent the lift truck from rolling off the barge,. The railing consisting of pipe stanchions and a single strand of wire was deemed inadequate. Samson is contesting the citation on the basis that the Coast Guard has preempted OSHA on inspected barges [refer to the MOU] . Resolution of the conflict is expected shortly and will probably be a sharing of responsibility in spite of the MOU.

In the recent Washington State Supreme Court decision in Inland Boatmen’s Union v Department of Transportation (358524-5 September 17, 1992) that court decided that the Department of Labor an Industries (DLI) could regulate the Coast Guard inspected and certificated State owned ferries under the Washington Industrial Safety and Health act (WISHA). The DLI had issued several citations to the Department of Transportation for violations of State standards on railing, asbestos danger, excessive noise and lack of safety programs. The Department of Transportation successfully contested the violations before the industrial appeals judge arguing that since these vessels were inspected by Coast Guard that OSHA and thus the DLI were preempted. Upon appeal to superior Court, the decision was reversed holding that federal law did not preempt the regulation of the ferries by the state. Upon further appeal directly to the Supreme Court, the decision of the Superior Court was upheld. The court held that there must be an implicit intent to preempt in order of the federal government to preempt the entire field of maritime safety. Upon finding there was none, the court then went on to see if there was an actual conflict between Coast Guard regulations and WISHA regulations in regard to the specific citations. Finding none, the court held, "that federal law does not preempt Washington worker safety laws aboard the Washington state ferries."

In summary, with the exception of the fishing industry vessels, OSHA has been preempted by the Coast Guard on "inspected" vessels but retains jurisdiction on uninspected vessels within the territorial waters of the states and territories. On fishing industry vessels, each agency has asserted jurisdiction over some of the vessels. OSHA is clearly preempted in those areas regulated under 46 CFR 28. However, the extent of preemption may go further.