LONGSHORING, CRANES and OSHA as applied to uninspected vessels (Fall 97 issue)

This article is about the application of 29 CFR 1918, Safety and Health regulations for Longshoring to fishing vessels and the personnel who work aboard them.

As background information, the reader should be aware of the jurisdictional issues in general. Under a Memorandum of Understanding published in the 48 Federal Register 11366 March 17, 1983, it was agreed between OSHA and the Coast Guard that the Coast Guard had preempted OSHA with regard to "inspected" vessels. These are vessels that have a Certificate of Inspection. Tugs, fishing vessels, and inland freight barges are not inspected vessels. Courts have agreed generally that commercial uninspected vessels are subject to OSHA jurisdiction when within State waters and the Outer Continental Shelf Lands as defined in the Outer Continental Shelf Lands Act. On the West Coast, State territorial waters extend three miles from the coast.

This was modified with regard to fishing vessels in 1988 by the Commercial Fishing Industry Vessel Safety Act of 1988. As a result of this Act, authority over fishing vessels is now shared by the Coast Guard and OSHA. While a Memorandum of Understanding has not been issued on the division of authority, some OSHA regional offices have published instructions that identified with specificity this division.

A year ago, the Assistant Secretary for Occupational Safety and Health issued OSHA Instruction CPL 2-1.20 dated November 8, 1996 which set forth the division of authority as well as OSHA authority over other uninspected vessels. This instruction contained more details that will not be addressed in this article. Readers desiring more information should request a copy of the instruction from either the local OSHA office, or from the Department of Labor, Office of the Assistant Secretary for Occupational Safety and Health, Washington, DC 20210.

The longshoring regulations contained in part 1918 apply when longshoring activities are being undertaken. However, if there is no standard for a particular condition in the longshoring regulations, the general regulations in part 1910 apply.

Longshoring operations are defined in 1918.3(I) as "the loading, unloading, moving or handling of cargo, ship's stores, gear, etc., into, in, on, or out of any vessel on the navigable waters of the United States. Another term which is frequently addressed is "gangway", and that "means any ramp-like or stair-like means of access provided to enable personnel to board or leave a vessel, including accommodation ladders, gangplanks and brows" (1918.3(k).

To analyze the application of these regulations, let's examine a recent case. The owner of a fishing tender, an uninspected vessel, tied up at a dock in Alaska, had a hydraulic crane mounted on a pedestal on the side of the vessel which was moored to a high dock. The crane, used to load and offload cargo and supplies, had been leaking hydraulic oil for over a year. An OSHA certified inspector had not inspected it and it had no certification or registry. As part of the inspection, it would have been examined for hydraulic oil leaks and the cause of those leaks would have been corrected. There were vertical ladders on the face of the dock. But there was no way to safely get from the ladder to the deck of the boat. A cutout on the bulwark or portable steps from the deck to the top of the bulwark opposite the ladder would have made a safe means of boarding.

The vessel had been recently cleaned and there was no oil on the deck or on the crane structure. The master went ashore to call his wife. While he was gone, the crew operated the crane to bring aboard ship's stores. Oil leaked on the crane structure and the deck.

The master returned to the vessel and descended the vertical ladder on the face of the dock. Because there was no other means furnished him to board the boat, he stepped over onto the structure of the crane and while working himself around the crane to the crane ladder, he slipped on oil on the crane. He fell about six feet to the deck, landed on his feet but slipped further on oil on the deck and landed on his back on a hatch coaming sustaining spinal injury and permanent disability.

Three main issues were involved, adequate access, the faulty condition of the crane that was the source of oil, and the presence of oil on the deck.

In examining these issues, it should be determined whether or not 1910 and 1918 applied, and if so, what violations existed.

Prior to the trial, I had a discussion with the Regional Director of OSHA in Anchorage. There are only three field inspectors for all OSHA activities in Alaska. Before they can cite a vessel for an OSHA violation that did not involve an accident, they must observe the violation. If a crane which is used in longshoring is not certified, they must see it in use to cite the vessel for a violation of the requirement for certification (I'll address that below). His office printed out a list of all violations applicable to the fishing industry. Among them were violations for using an uncertified crane, performing longshoring work without hard hats, and inadequate access to the vessel. He said that after an initial flurry of citations for use of uncertified cranes, most of the fishing industry vessels had gotten their cranes certified. He added that there was a new group of fishing industry boats that were not complying with many of the regulations. These were the boats that had been sold at sheriff's sale. The new owners were fueling them up and proceeding north without following many of the safety requirements.

As one can see from the definition of "longshoring" most fishing industry vessels do engage in longshoring activities and therefore fall under 29 CFR 1918 when doing so. 29 CFR 1918.12 states "The employer shall not use the vessel's cargo handling gear until he has ascertained that the vessel has a current and valid cargo gear register and certificates . . ." On those vessels not holding a valid Certificate of Inspection issued by the Coast Guard . . . only persons currently accredited by OSHA under 29 CFR 1819 may issue these documents. Annual thorough inspections by an accredited person are required under 1919.15(c).

Therefore, in the case cited, the crane was in violation of OSHA certification requirements that was causal in the accident. Had it been inspected, the cause of the oil leaks would have been corrected. A number of courts will not permit an expert to testify that there was a violation of a statute or regulation stating that it invades the province of the trier of fact. However, those same judges will normally allow an expert to cite the regulations as an example of the reasonable standard of care.

The second issue was whether or not there was a duty under the OSHA regulations to provide a suitable means of access. One of the considerations is whether of not the injured person was a protected person under the regulation. Under a ruling by OSHA published elsewhere in this newsletter, none of the crew members of an uninspected vessel fall under the exclusion in the definition of an employee set forth in 1918.3(d). However, since the master was not engaged in longshoring operations, he may not be a person protected under the regulation at the time of his fall. None-the-less, the OSHA standard should be able to be cited as a reasonable standard that should have been followed, or as an example of the reasonably safe standard of the marine industry.

Lastly, while it is well recognized that the presence of oil on a deck makes a vessel unseaworthy, oil originating during longshoring operations which is not cleaned up violates 1918.91(c). Again, though a judge may not let an expert state that, reference to it as a standard of care is appropriate.

Defense attorneys first will attempt to say that OSHA doesn't apply. When a court rules that does apply, it is then argued that 1918 should not apply when those injured are crewmembers because they are not employees under the definition. This, according to OSHA, is not true on uninspected vessels (see accompanying article). It requires an astute and well-prepared attorney to meet these arguments. The duty falls on him, not the expert. But the expert, when working for the plaintiff, must be aware of the background so as to properly phrase his answers so as not to invade the province of the trier of fact.

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