Hejduk v. STARBOUND 1995 AMC 1377 (USDC District of Alaska March 8, 1993)
This case involved a fish processor who was injured when he placed his hand in a "trolley" or "fish press" used to adjust a tray of butchered fish just as the fish were being compressed.
Plaintiff moved for a summary judgment citing violation of OSHA regulation 29 CFR 1910.212, General Requirements for All Machines, which he claimed constituted negligence per se.
Plaintiff cited Donavan v Red Star Marine Services, Inc. 1985 AMC 46, 739 F.2d 774 (2 Cir. 1984) which held that OSHA had authority to regulate working conditions on uninspected vessels and the amicus brief of the U. S. Coast Guard in Sec'y of Labor v. Alaska Trawl Fisheries, No. 89-1017 (OSHRC 1989) saying the Coast Guard does not exercise jurisdiction over "factory" operations on uninspected fish processing vessels such as the STARBOUND. The amicus brief was filed after the enactment of the Commercial Fishing Industry Safety Act of 1988, Pub. L. 100-424, (CFISA) and addressed the Coast Guard's authority under that Act.
The court examined CFISA and the Coast Guard regulations issued thereunder. With the exception of one provision, the court found that the implementation of 46 USC 4502 was consistent with the Coast Guard's reading of the statute to control nautical safety and not work place safety aboard vessels in general. The exception is 46 CFR 28.215 which requires "suitable hand covers, guards, or railing in way of machinery which can cause injury to personnel" in all spaces aboard the vessel.
The court went on to find that Coast Guard regulation covered the factory operations and that under 29 USC 653(b)(1) OSHA had been preempted. Motion for summary judgement denied.
Defendants had moved to exclude consideration of the OSHA regulation. The court, in denying this motion stated that while the court would not consider violation of OSHA's regulatory standards as establishing defendants' negligence, it would be inappropriate to prospectively proscribe any reference to the regulations whatsoever. For example, the OSHA regulations might be used to establish the feasibility of a particular means of guarding the trolley/press if defendants contest it. Cf., Rule 407, Federal Rules of Evidence.
The court did not say that OSHA was preempted by the Coast Guard for all regulatory control of the workplace, but only with respect to machinery guards and rails. The reader is directed to OSHA's Seattle Region Instruction CPL 2.6B which outlines the division of authority for each agency.
Today, this case would more properly have cited a violation of Coast Guard regulation 46 CFR 28.215. One advantage to the plaintiff of the Coast Guard standard is that it is not geographically restricted as are OSHA regulations. Another would be to avoid the argument of whether a violation of the regulation constituted negligence per se.
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