As has been indicated by previous articles, OSHA applies to uninspected vessels with certain limitations on fishing vessels since the Coast Guard has issued requirements applicable to them.
A recent case involved an injury to an uninspected fishing vessel processor crew member who was engaged in removing a "plug" (hatch cover) from the refrigeration hold so that cargo could be unloaded at a dock in Alaska. He was not wearing a hard hat. Two issues involving application of OSHA regulations were raised. The first involved the operation of the crane and the second related to where the injured person was required to wear a "hard hat".
The crane involved was a single boom, single whip hydraulically operated crane equipped with a hook from which the safety latch had been removed. OSHA stated that it was not a derrick crane, the nearest type of crane defined in 29 CFR 1910, and therefore regardless of the crane's usage, 29 CFR 1910.181 would not apply.
The OSHA Seattle Regional office further said that no existing regulation would cover the operation of that type of crane.
In the same letter opinion, they indicated that crew members on the fishing vessel were not covered under the longshoring regulations because they were not employees as defined in 29 CFR 1918.3(d) to which longshoring standards apply.
The "hard hat" issue involved whether either 1910.132 or 1918.105 applied. Both require the wearing of head protective equipment. The individual was a fish processor and not a seaman involved in the navigation or operation of the vessel itself. When he became involved in opening the cargo hold preparatory to unload the vessel at the dock, the OSHA Seattle regional office concluded that he was doing longshoring activities. 29 CFR part 1918 regulates longshoring activities but as already noted, crew members are specifically excluded from the requirements of this part since they are not deemed employees by definition in 1918.3(d).
After considerable discussion with the OSHA Regional Office and their Washington D.C. headquarters, OSHA stated that the exclusion of crew members from the application of longshoring regulations only excludes crew members involved in the navigation and operation of the vessel. In other words, even though a processor was a Jones Act seaman, he was not a crew member excluded from the application of longshoring regulation if he was involved in an operation typically performed by longshoremen.
Although not relevant to the hard hat issue in this case, the discussion went further to determine what, if any, regulatory requirements would apply to a seaman (a person who was not a processor but was employed to navigate or operate a vessel) on an uninspected vessel who was involved in longshoring operations. In examining this question, one must start in general standards, part 1910. In 1910.5(c), Application of Standards, it states that "if a particular standard is specifically applicable to a condition, practice, means, method, operation or process, it shall prevail over any different general standard which might otherwise be applicable." Thus, in a longshoring operation, part 1918 must be examined to see if it applies. Examination of the definition of employees in 1918.3(d) indicates that crew members who are involved in the operation and navigation of the vessel (as defined by OSHA) are excluded from the application of this part. Since part 1918 does not apply to seamen crew members, there is no "particular standard [that] is specifically applicable". Therefore part 1910 does apply and can be examined to see if there is a general standard which applies.
As is apparent, OSHA defines crew members in a limited way so as to exclude from this category people not involved in the operation (navigation) of the vessel itself. This will continue to be a confusing issue because of the tendency of maritime people and the courts to consider all seamen, not just those involved in the navigation of the vessel, as crew members.