By Captain Kirk Greiner
We have written about the application of OSHA standards to uninspected vessels. In the Spring 1993 issue of the EXPERT, we wrote about an unpublished decision in the Federal District Court, Western District of Washington, that held while OSHA had jurisdiction over uninspected fishing vessels, its standards applicable to industrial stairs, specifically relating to their inclination, were not applicable.
The case involved an injury to a seaman on a fish processor who slipped on a set of stairs which were inclined at an angle of 60. 29 CFR 1910.24 limits the inclination of industrial stairs to 50. This 50 standard is also consistent with other standards set forth in various maritime industry standards.
The court's holding was based on an OSHA Notice of Proposed Rulemaking (NPRM) on Walking and Working Surfaces presented by the defense. The NPRM stated that OSHA does not currently regulate "ship's stairs." It then proposed regulations which required "ship's stairs" be inclined between 50 and 70. Giving weight to administrative determinations, the court held that OSHA regulations for industrial stairs did not apply to these stairs. The plaintiff's motion for summary judgment was dismissed.
After talks with the drafter of the NPRM, I concluded that the court did not have all of the information before it. The purpose of this article is not to rehash the court's decision but to offer new information for those who may have to face this situation again. After the Coast Guard published new regulations on fish and fish processors, it became clear that OSHA no longer had jurisdiction over all aspects of occupational safety on these vessels. After consultations with the Coast Guard, OSHA's Seattle region published Instruction CPL 2.6B. In it they addressed the areas over which they had jurisdiction and those which had been preempted by the Coast Guard.
Among those areas listed over which OSHA has authority are "stairs - except for seaman."
But aren't all crewmembers "seamen?"
Certainly they are "Jones Act" seamen but OSHA has their own definition of who is a seaman for determining the application of their regulations. A person involved in the navigation of the ship is an OSHA "crew member" or "seaman." Factory workers are not. OSHA Seattle Regional Instruction CPL 2.6B dated October 7, 1994, section H(11) states:
In situations where the individual(s) exposed to a hazard is a member of the crew engaged in activities relating to the safe navigation of the vessel or is a licensed merchant mariner [acting under the authority of his license], such individual(s) may be exempted from definition as an "employee".
Therefore, the standard set forth in 29 CFR 1910.24 regarding industrial stairs would apply where a processing person used them, but not when a person engaged in the navigation of the vessel used them.
It also leads to the conclusion not related to stairs that when a person who is a processor is engaged in longshoring activities such as transferring cargo, the OSHA longshoring regulations apply (29 CFR part 1918), not withstanding 1918.3(d) which states:
The term employee means any longshoremen, or other person engaged in longshoring operations or related employments, within the Federal Maritime jurisdiction the navigable waters of the United States, other than the master, ship's officers, crew of the vessel . . .
This interpretation by OSHA has yet to be tested by a court. If any of our readers become aware of such a determination, we would appreciate that information so that we may publish it.
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