SHIP'S STAIRS AND OSHA   (Spring 93)

By Captain Kirk Greiner


In a case involving a slip and full of a crew member descending stairs aboard a fishing vessel, plaintiff moved for summery judgment stating that the stairs, inclined 60ْ, violated OSHA requirements for industrial stairs.1 (Although inclined stairs on vessel are nautically called ladders, the author will use the term stairs so as to differentiate between vertical ladders and inclined ladders.)

There were two significant issues before the court. First, did OSHA have the authority to regulate stairs on the uninspected fishing vessel, and secondly whether these stairs violated the standard for industrial stairs in 29 CFR 1910.24 which limited the inclination to 50ْ.

In addressing the first issue, the court first reviewed Kopczynski v The JACQUELINE, 742 F. 2d 555 (9th Cir,1984). The court found that the Circuit Court of Appeals relied heavily on the scope of the regulations which were those applicable harbor workers and longshoremen and found that those OSHA regulations did not apply to seamen. The plaintiff had apparently cited a violation of 29 CFR 1918, OSHA's Longshoring regulations and not to 29 CFR 1910, the general regulations. Subsequent decisions have called into question the validity of Kopczynski when applied to fact situations such as that before this court. The Court than turned to Donovan v Red Star Marine Services, Inc., 739 F. 2nd 774 (2nd Cir. 1984), cert denied, 470 US 1003(1985). In that case, the appellant court found that the Coast Guard had exercise its authority over the working conditions on uninspected vessels before OSHA was preempted and it had not done so. It even questioned whether the Coast Guard had authority citing the testimony of the Coast Guard Commandant before a congressional hearing on marine safety in which he stated "We.... need some statutory authority [to regulate uninspected vessels]. We don't have that now." Id at 777.

In this case, the court reviewed several other opinions before concluding, "that OSHA has jurisdiction to regulate such stairways" on fishing vessels. Thus OSHA jurisdiction was established.

The next issue the court addressed was whether the standard for industrial stairs set forth in 29 CFR 1910.24 applied to stairs on vessels and thus limits their slope to 50ْ.

In 1990, OSHA published a Notice of Proposed Rulemaking (NPRM) on Walking and Working surfaces.2 A NPRM is nothing more than the notice required under the Administrative Procedure Act that a government agency is proposing to issue a regulation and affording the public the opportunity to comment on it. The proposal is still pending.

In the NPRM, OSHA stated that one of the proposed standards is to "address areas not covered in existing standards."

In unfortunate and ambiguous language, the preamble states that "OSHA is .... proposing three paragraphs which have no counterparts in existing section 1910.24 [one of which is] ship's stairs. . . OSHA believes. . . that these types of stairways need to be addressed because of their increased use and because applying the general fixed stair requirements would be inappropriate."3. A later comment in the preamble states, " Ships stairs and alternating tread type are not addressed by the existing subpart D."4

What are ship's stairs. Are they any stairs on a vessel? "Ship's stairs" are defined in proposed section 1910.21 as "a stairway equipped with treads and stair rails with a slope greater than 50ْ from the horizontal. It is sometimes referred to as a ships ladder." Thus the term does not encompass all stairs on ships, but merely those above 50ْ up to 70ْ in slope. The preamble also states that they "are also used by the drafter, the term "ship's stairs" was chosen to delineate stairs of more than 50ْ slope either on vessels or ashore. Indeed, in the proposed new regulations 1910.25 (e)(1), it states "Ship's stairs shall be installed at a slope between 50ْ and 70ْ " (emphasis added). Thus whatever standard was proposed, it would only apply to stairs with a slope in excess of 50ْ .

In the order denying the Motion for Summary Judgment, Judge Zilly addressed the issue " Did OSHA regulations regarding fixed industrial stairs apply to the ship's ladder from which plaintiff fell? " In deciding that they did not apply, Judge Zilly, deferred to OSHA's own interpretation of its regulations, citing the above NPRM and said they did not. "The Court finds that OSHA's interpretation of its regulations to exclude ship's ladders from its definition of fixed industrial stairs is reasonable" said the court.

Is this really what OSHA said? A close reading of the NPRM indicates that OSHA merely said that it did not currently regulate "ship's stairs" which are only those stairs over 50ْ in slope. Thus, standards for industrial stairs set forth in 29 CFR 1910.24 would still apply to stairs on uninspected vessels that are not inclined more than 50ْ.

The Court narrowed its interpretation later in the Order, stating, "the court finds that OSHA regulations do not encompass the stairway involved in plaintiffs injury . " (emphasis added). That stairway was one of more than 50ْ. Than OSHA's industrial stair standards can and should be applied to existing stairways inclined up to 50ْ.

The logic of OSHA in proposing stairways of more than 50ْ does not seem reasonable. The steeper the stairway, the less tread in available to the heel of a person descending the stairs. At some inclination, a person has to face the stairs while descending as they would on a vertical ladder in order for their foot to have enough tread for adequate contact friction. Prior to this, it has been relatively easy for a user to know which way he or she should face since vertical ladders do not have hand rails. However, if the new regulations were to be adopted, that distinction would be lost and a user may descend a "ship's stair" facing away from it when, because of the steepness, inadequate tread is available to safely descend in that manner.

The out come for the present is that OSHA still applies the industrial stair standard to stairs 50ْ or less in slope on uninspected vessels but there are no regulatory requirements on stairs over 50ْ in slope.

ENDNOTES

1. Joseph Mauler v. F/V. CENTAURUS. U.S. District Court, Western District of Washington at Seattle, docket C90-5467Z

2. 55 FR 13360

3. 55 FR 13371 left column 5th paragraph

4. 55 FR 13371 center column top

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