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OSHA regulations apply to uninspected vessels, but can they be used by an injured seaman as negligence per se in the Jones Act?

The purpose of this article is to look at the current law to determine if (1) Occupational Safety and Health Act (OSHA) [29 CFR], standards, rules and regulations apply to “uninspected” vessels and (2) if so, can they be used by a lawyer for an injured seaman as negligence per se under the Jones Act [46 U.S.C. Section 688, et seq. and was recently codified in October, 2006 at 46 U.S.C. Section 30104 et seq.]?

We are all aware that the United States Coast Guard (USCG) has regulations that apply to USCG “inspected” vessels. An example of “uninspected vessel” for instance would be a tugboat/towboat as defined under 46 U.S.C. 2101 (43). Though this type of vessel is “documented”, or put another way has a Certificate of Documentation by the USCG, it is not required to be an “inspected” vessel. By the term “inspected”, I do not mean to say that the USCG cannot board the vessel at anytime they desire to inspect it as they clearly have the power to do; but they only have certain regulations that apply to “uninspected’ vessels such as PFD requirements, lighting requirements, waste requirements, etc.

Historically, OSHA has been confined to land based “workplace” activities. It was not until the landmark decision of Chao v. Mallard Bay Drilling, Inc., 534 U.S. 235, 122 S. Ct. 738 (2002), by the United States Supreme Court. that OSHA regulations where decided to actually be applied to vessels. To understand the rational of the Mallard Bay decision, it is important to review pertinent parts of the decision.

Mallard Bay involved an oil and gas explosion on a barge less than three miles off the coast of Louisiana. The USCG investigated the accident but found no violation of any USCG regulation and further found that the barge was an “uninspected vessel” under 46 U.S.C. 2101 (43). Specifically, the USCG found that “although [the barge] held a USCG Certificate of Documentation, it had never been inspected by the USCG and is not required to hold a Certificate of Inspection or be “inspected” by the USCG.” After the USCG rendered its report, OSHA cited Mallard Bay for violations of OSHA. Mallard Bay challenged the citations on two grounds:

(1) the barge was not a “workplace” under the Act and (2) that the USCG had exclusive authority to prescribe and enforce standards concerning occupational safety and health on vessels in navigable waters. The Administrative Law Judge rejected both of these arguments and upheld the citations. The Fifth Circuit of the United States Courts of Appeal reversed the Administrative Law Judge’s decision holding the USCG did have jurisdiction over the regulation of working conditions of seaman aboard barges and OSHA was, therefore, pre-empted by the USCG regulations on both “inspected” and “uninspected vessels”. The Fifth Circuit explained that the USCG had exercised its authority to issue safety regulations for uninspected vessels in some areas and, therefore, there was pre-emption.

Due to a split in the Circuit Courts of Appeal below the Supreme Court, it granted Certiorari to resolve the conflicts. The Supreme Court, without dissent, reversed the Fifth Circuit holding:

The OSH Act imposes on covered employers a duty to provide working conditions that "are free from recognized hazards that are causing or are likely to cause death or serious bodily harm" to their employees, as well as an obligation to comply with safety standards promulgated by the Secretary of Labor. Id at 241.
…
The parties do not dispute that OSHA's regulations have been pre-empted with respect to inspected vessels, because the Coast Guard has broad statutory authority to regulate the occupational health and safety of seamen aboard inspected vessels, 46 U.S.C. Sec. 3306 (1994 ed. and Supp. V), and it has exercised that authority. Indeed, the Coast Guard and OSHA signed a "Memorandum of Understanding" (MOU) on March 17, 1983, evidencing their agreement that, as a result of the Coast Guard's exercise of comprehensive authority over inspected vessels, OSHA "may not enforce the OSH Act with respect to the working conditions of seaman aboard inspected vessels” 48 Fed. Reg.11365. The MOU recognizes that the exercise of the Coast Guard's authority--and hence the displacement of OSHA jurisdiction--extends not only to those working conditions on inspected vessels specifically discussed by Coast Guard regulations, but to all working conditions on inspected vessels, including those "not addressed by the specific regulations." Ibid. Thus, as OSHA recognized in the MOU, another agency may "exercise" its authority within the meaning of §4(b)(1) of the OSH Act either by promulgating specific regulations or by asserting comprehensive regulatory authority over a certain category of vessels.

Uninspected vessels such as [the barge in question], however, present an entirely different regulatory situation. Nearly all of the Coast Guard regulations responsible for displacing OSHA's jurisdiction over inspected vessels, as described in the MOU, do not apply to uninspected vessels like [the barge in question]. See 46 U.S.C. Sec. 2101(43).

Rather, in the context of uninspected vessels, the Coast Guard's regulatory authority--and exercise thereof--is more limited. With respect to uninspected vessels, the Coast Guard regulates matters related to marine safety, such as fire extinguishers, life preservers, engine flame arrestors, engine ventilation, and emergency locating equipment. See 46 U.S.C. Sec. 4102 (1994 ed. and Supp. V); 46 CFR pts. 24-26 (2000). Because these general marine safety regulations do not address the occupational safety and health concerns faced by inland drilling operations on uninspected vessels, they do not pre-empt OSHA's authority under § 4(b)(1) in this case.

Indeed, as the Court of Appeals acknowledged, many of these general Coast Guard regulations for uninspected vessels do not even apply to stationary barges like [the barge at issue].

In addition to issuing these general marine safety regulations, the Coast Guard has exercised its statutory authority to regulate a number of specific working conditions on certain types of uninspected vessels. For example, the Coast Guard regulates drilling operations that take place on the outer continental shelf. See 43 U.S.C. Sec. 1333(a)(1); 33 CFR pt. 142 (2000). And it is true that some of these more specific regulations would, pursuant to § 4(b)(1), pre-empt OSHA regulations covering those particular working conditions and vessels. But [Mallard Bay] has not identified any specific Coast Guard regulations that address the types of risk and vessel at issue in this case: namely, dangers from oil-drilling operations on uninspected barges in inland waters.

Simply because the Coast Guard has engaged in a limited exercise of its authority to address certain working conditions pertaining to certain classes of uninspected vessels does not mean that all OSHA regulation of all uninspected vessels has been pre-empted. See 29 U.S.C. Sec. 653 (b) (1) (pre-emption only extends to working conditions "with respect to which " other federal agencies have exercised their authority (emphasis supplied). Because the Coast Guard has neither affirmatively regulated the working conditions at issue in this case, nor asserted comprehensive regulatory jurisdiction over working conditions on uninspected vessels, the Coast Guard has not "exercise[d]" its authority under § 4(b)(1). Chao at 243, 245.

After holding that OSHA has jurisdiction over “uninspected vessels”, the Mallard Bay court further held:

We think it equally clear that [the barge] was a "workplace" as that term is defined in § 4(a) of the Act. The vessel was located within the geographic area described in the definition: "a State," 29 U.S.C. Sec. 653 (a), namely, Louisiana. Nothing in the text of § 4(a) attaches any significance to the fact that the barge was anchored in navigable waters. Rather, the other geographic areas described in § 4(a) support a reading of that provision that includes a State's navigable waters: for example, § 4(a) covers the Outer Continental Shelf, and sensibly extends to drilling operations attached thereto. (Emphasis supplied). Mallard Bay at 245.

Hence, it is now clear that, after Mallard Bay, OSHA is not pre-empted by the USCG regulations and can apply its standards to “uninspected" vessels.

The second question is not so easy. That is, if an injured seaman is injured due to a violation of an OSHA regulation, can his counsel utilize that as negligence per se under the Jones Act? To answer this inquiry a brief explanation of negligence law is necessary.

First, it is clear that counsel can always attempt to offer evidence, through a qualified expert, what the standards in the industry are from OSHA. For example, OSHA standards require, in some instances, a ladder to be present and utilized to go from one level down or up to another level if the “break in elevation” is more than 19 inches. Therefore, a lawyer faced with a factual case where someone fell from one barge to another in a made tow, would offer testimony that the standards in the industry require a ladder and, if there was no ladder, then the company was negligent.

However, the jury has the right to totally disregard this expert testimony and hold that the company was not negligent. But what if the lawyer explains to the judge that (1) since OSHA applies to the situation, i.e., it is an “uninspected” vessel; and (2) OSHA requires a ladder to be present in the situation; and (3) since there was no ladder present; (4) that is a violation of law and the jury must be instructed that the company committed negligence per se? That is a horse of a different color.

Negligence per se is a violation of a statute, ordinance, law, etc. To easily understand the legal differences between negligence and negligence per se, I am going to leave maritime law for a moment to use two very simple examples:

Example # 1:

There is a law that requires a vehicle to stop at a red light. A vehicle approaches a green light but the light turns yellow and, just before the vehicle enters the intersection, the light turns red and the driver hits a pedestrian crossing the street a hundred feet down from the intersection because the driver could not slow down enough in time to avoid the collision. That injured person’s lawyer could ask the judge to instruct the jury that, if it believed the driver actually went through a red light, then they could find the driver had committed negligence per se which was a proximate cause of the event. This is true even if the driver could not see the pedestrian crossing.

Example #2:

There is a law that requires a vehicle to stop at a red light. A vehicle approaches a green light, and as he approaches the intersection, the driver sees a pedestrian crossing the street a hundred feet further down the road, nevertheless, to “make the light”, the driver “punches it” and makes the light successfully but cannot stop in time to avoid hitting the pedestrian. The injured person’s lawyer could not ask the judge to instruct the jury that, if it believed the driver actually went through a red light, then they could find the driver had committed negligence per se, instead, the lawyer would be forced to argue that the person was negligent in failing to act as a reasonably prudent driver would have acted under similar circumstances and hope the jury finds the driver negligent. This, unlike Example #1, becomes much harder if the driver did not see the crossing pedestrian as he was entering the intersection.

Hence, you can readily see that the availability (or not) of negligence per se for an OSHA violation for an injury on an “uninspected” vessel could be a very forceful tool for the attorney representing the injured seaman under the Jones Act. But is it available? Since the Mallard Bay decision, at Gordon & Elias, L.L.P., we have had three (one from Mississippi, one from Louisiana and one from Ohio) Jones Act cases where the facts gave us an opportunity to allege an OSHA violation; however, they all settled before a trial and, therefore, we did not get to find out if the trial judge would have instructed the jury on negligence per se. On each occasion, the adept maritime company’s counsel asserted the following language from OSHA to sway the judge that the OSHA violation could not serve as a basis for negligence per se. The OSH Act specifically states:

29 U.S.C. (b) (4) reads:
Nothing in this chapter shall be construed to supersede or in any manner affect any workmen's compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment. (Emphasis supplied).

Since the Mallard Bay decision in 2002, only one Federal Court of Appeals has rendered a decision on the issue. In Johnson v. Arctic Storm, Inc., 99 Fed Appx. 799, 800-01, 2004 WL 1153687 (C.A. 9th Cir. Wash. 2004), the Ninth Circuit held that the above language forestalled the application of negligence per se in a Jones Act situation because it would expand the liabilities of an employer. Depending on your point of view, this is either a good decision or a bad decision. Personally, it is especially disturbing since it comes from the Ninth Circuit which is a circuit that usually tends to favor the rights of injured persons and has been especially liberal in its application of the Jones Act in favor of the seaman. The remaining eleven circuits have yet to rule after the Mallard Bay decision and a practitioner still can make a good faith argument that the Arctic Storm case was decided incorrectly.

In conclusion, the forecast is that other circuits will fall in line with the Ninth Circuit and, ultimately, a mariner will not be able to utilize negligence per se in an OSHA violation but still will be able to introduce evidence of the OSHA regulation to try to prove the way things ought to have been. This is surely another curious result in maritime law as the Captain / Master / maritime company will still be subject to fines from OSHA for an OSHA violation on an “uninspected” vessel.

About the author: This article was written by Steve Gordon of Gordon & Elias, L.L.P. a law firm specializing in protecting the rights of injured seaman throughout the world both for offshore injuries as well as injuries sustained in territorial waters and inland waterways of the United States. For more information, visit www.offshoreinjuries.com.

We wish you calm seas.