Petition for Writ of Certiorari — Kopczynski v. Jacqueline

\

94-1618 ™ Pres]

APR 10 1985

| ALEXANDER STEVaa

eee: CLERK

No.

In the Supreme Court

OF THE

United States

OcroBER TERM 1984

Gary Aan Kopczynsk1,

Petitioner,

VS.

THE JACQUELINE, DocuMENTATION No. 519060,

Her Enetnet, Tackie, APPURTENANCES,

Erc., 1n Rem,

Szawarp Marine Services, Inc.,

et al.,

Respondent.

PETITION FOR WRIT OF CERTIORARI — JONES

ACT CLAIM FROM THE COURT OF APPEALS

UNITED STATES DISTRICT COURT

NINTH CIRCUIT

JEFFREY A. KopozynskI

1025 N. Brand Boulevard,

Suite 310

' Glendale, California 91202

Telephone (818) 500-1631

Attorney for Petitioner

Gary Alan Kopczynsks

Bowne of Los Angeles, Inc., Law Printers. (213) 742-6600.

QUESTIONS PRESENTED

1. Whether the Occupational Safety and Health Act has

jurisdiction to regulate the working conditions of employees

aboard uninspected vessels? Or, whether, under Section

4(b) of the O.S.H. Act, the regulatory authority of the

Coast Guard in Maritime matters preempts O.S.H.A.’s

statutory authority to regulate a hazard aboard a vessel

not addressed by the Coast Guard?

More specifically, in the instant case, whether the De-

fendants, Seaward Marine Services, violation of Title 29,

C.F.R. Chapter 17, Safety and Health Standards for Mari-

time Employment, Subsection 1915.44, (subsequently re-

designated 1915.74) “access to vessels” preeludes the im-

position of comparative negligence on Plaintiff as per 45

U.S.C. § 51, et seq., (the Federal Employer’s Liability Act)

as incorporated by 46 U.S.C. §§ 688, et al. (the Jones Act).

Prior to deciding the questions presented hereinabove, a

preliminary question regarding the interpretation of Sec-

tion 4(b)(1) of the O.S.H. Act, 29 U.S.C. § 653(b)(1)

(1982), is necessary to determine whether Section 4(b) (1)

requires an actual exercise of delegated statutory aathor-

ity. If so, then the absence of an actual exercise of regu-

latory authority, i.e., the regulation of boarding or depar-

ture procedures pertaining to uninspected vessels, would

necessitate the applicability of O.S.H.A. regulations to

prevent a twilight zone of nonregulated activities.

ii

TABLE OF CONTENTS

Page

Questions Presented .......... 226... cece ete eens i

ND ees csi. aaa ea ldee es 1

I oS Sar a UO, nes sik Weare 1

I ces nas he rts eae ey eo pe Ye Bark eee 2

I coy rie ne edn es Go ges eee lp Bama 4

Se ce 2a ante by sani Beata gods 7

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APPENDIX

A. Opinion of The United States Court of Appeals,

for the Ninth Circuit, No. 83-6108, 83-6152: D.C.

We, Gr OD, ois oe Shee kn cens ees Helin A-1

Bi Coan aa eee 6 ea ae, B-1

C. Donovan v. Red Star Marine Services, Inc., 739

F.2d 774 (2nd Cir. 1984) Complete Text.......... C-1

D. Plaintiff’s marked for Exhibit as No. 62, Code of

Federal Regulations, Title 29, Chapter XVII,

Occupational Safety and Health Administration,

Sabsections 1915.4— Definitions and 1915.74 —

SI i a i IN ci D-1

E. Plaintiff's marked for Exhibit as No. 62, Code of

Federal Regulations, Title 32, Section XII —

Contractor Industrial Labor Relations, Subsec-

tion 12-000 — Scope of Section, Subsection 12-501

— Safety and Health Regulations and Subsection

12-502 — Applicability ......................... E-1

F. Plaintiff’s marked for Exhibit 63 as Cal/OSHA

Regulations, Section 3273 — Duty to Provide Safe

Working Place

iii

TABLE OF AUTHORITIES

is

Statutes

Federal Employers Liability Act, 45 U.S.C. §$ 51, et

pid Act, The, 46 U.S.C. §688 ............. 2, 3

Occupational Safety and Health Act, 1970, 29 U. s. 0. A.

§ 653(b)(1) (1982) ...... } eee SS

Title 29, Code of Federal Dendietions Cason 17,

Safety and Health Standards for Maritime Employ-

ment, §§ 651-678, Subsection 1915.44(195.74) ...... 4,5

Case

Donovan v. Red Star Marine Services, Inc. 739 Fed.2d

OI NG ED WV nec nce ces c vs cca errr. |

In the Supreme Court

OF THE

United States

Ocroser Term 1984

Gary ALan Kopcozynsk1,

Petitioner,

vs.

Tue Jacquetine, Documentation No. 519060,

Her Enornz, Tacxiz, APPURTENANCES,

Erc., 1x Rem,

Szawarp Martnz Senrvices, Inc.,

et al.,

Respondent.

PETITION FOR WRIT OF CERTIORARI — JONES

ACT CLAIM FROM THE COURT OF APPEALS

UNITED STATES DISTRICT COURT

NINTH CIRCUIT

OPINIONS BELOW

The opinion of the Court of Appeals for the Ninth Circuit

is reported at 742 F.2d 555 (1984).

JURISDICTION

The judgment of the Court of Appeals for the Ninth

Circuit was made and entered on September 11, 1984, and

a copy therof is appended to this Petition in the Appendix.

Further, the order of the Court of Appeals for the Ninth

Cireuit denying a Petition for Rehearing was made and

entered on January 10, 1985, and a copy thereof is appended

to this Petition in the Appendix.

The statutory basis for the Federal Court jurisdiction is

based on 46 U.S.C. §§ 688, et al., and 45 U.S.C. $6 51, et seq.

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

STATEMENT

The trial of this case involved the following facts. Plain-

tiff, Gary Alan Kopezynski, was employed by Seaward

Marine Services as a Diver/Tender. His duties as a Diver/

Tender included specifically, working aboard the vessel,

The Jacqueline, and performing all duties aboard the Jac-

queline, as well as those duties directly connected to the

cleaning operations of the Jacqueline and Seaward Marine

Services.

On August 25, 1981, the Jacqueline was moored to the

fuel dock in San Diego Harbor. At this point in time,

Plaintiff was assisting in the refueling operations of said

vessel. This included, though was not limited to, emptying

certain 55 gallon drums of fuel and/or hydraulic oil that

had been stored on the decks of the Jacqueline.

At the time of the incident giving rise to the original com-

plaint, due to the tide, the aft-work deck of the Jacqueline

was six to eight feet below the surface level of the dock.

At periods of low or mean tide, due to the discrepancy

between the aft-work deck of the Jacqueline and the surface

level of the dock, the customary means of access between

the aft-work deck of the Jacqueline and the dock involved

climbing up onto the safety railing of the Jacqueline and

lifting oneself out onto the surface of the dock. No gang-

ways, ladders or Jacob ladders were provided by the De-

fendants to assist Plaintiff in the performance of his duties.

Plaintiff, while involved in the off loading procedure, was

standing on the safety rail of the vessel when he slipped

and fell, thereby suffering the injuries complained of.

Plaintiff could not have carried out his orders to off load the

55 gallon drums without standing on the rail. This was a

customary procedure when the tide caused the aft-work deck

to be lower than the surface level of the dock.

On February 5, 1982, Plaintiff filed a complaint against

the Defendant under the laws of admiralty, as modified

by the Jones Act, 46 U.S.C. § 688, for the injuries resulting

from the shipboard accident occurring on August 25, 1981.

The case was tried on June 21, 1983, before a jury in the

United States District Court, Southern District of Cali-

fornia. A jury verdict was returned for Plaintiff on

July 12, 1983, in the amount of: $692,308.00 — compensa-

tory damages; $55,301.00— maintenance and cure; and,

$325,000 — punitive damages. The compensatory dam-

ages, however, were reduced by 35% for comparative negli-

gence of Plaintiff.

Notice of Appeal was filed by the Defendants on August 8,

1983, and Notice of Cross-Appeal by Plaintiff was filed on

August 19, 1983, appealing from the judgment, and orders

entered by the trial court.

The decision of the United States Court of Appeals Ninth

Cireuit upheld the applicability of comparative negligence

and reversed the award of punitive damages, finding them

. licabl

4

ARGUMENT

A Petition for Rehearing was made by Plaintiff/Ap-

pellant on the issue of the applicability of comparative neg-

ligence wherein the Defendants violated the Federal Em-

ployers Liability Act (FELA) as incorporated by the Jones

Act.

Section 53 of the FELA provides in part:

“No such employee (of a common carrier by rail-

road) who may be injured or killed shall be held to

have been guilty of contributory negligence in any

case where the violation of such common carrier of

any statute enacted for the safety of employees con-

tributed te the injury or death of such employee.”

The OSHA shipyard employment regulations, more speci-

fically, 29 C.F.R. 4 1915.74, promulgated under the authority

of the Occupational Safety and Health Act, 29 U.S.C. §§

651-678 provides in part that:

“The employer shall not permit employees to board

or leave any vessel, except a barge or river towboat,

until the following requirements have been met: (1)

Whenever practicable, . gangway of not less than 20

inches walking surface, of adequate strength, main-

tained in safe repair and safely secured shall be used.

If a gangway is not practicable, a substantial straight

ladder, extending at least 36 inches above the upper

landing surface and adequately secured against shift-

ing or slipping shall be provided. When conditions are

such that neither a gangway nor a straight ladder can

be used, a Jacobs ladder meeting the requirements of

paragraph (d)(1) and (2) of this section may be used.”

The Defendants stipulated in the Pretrial Conference

Order to being in violation of the requirements hereinabove

set forth. Further, the testimony of crew members and

ee |

5

supervisors directly involved with the Jacqueline confirms

the absence of any gangway, ladder, Jacobs ladder or simi-

lar appliance to be used in safely entering or leaving the

Jacqueline.

The Defendants, however, have argued that the above

cited safety regulations are not applicable to this case.

They argue that Title 29, Code of Federal Regulations was

enacted to protect individuals employed as longshoremen

and not seamen. Further, although Plaintiff performed

many duties for the Defendants while employed by them,

because he was designated a seaman, he is not entitled to

the same health and safety protections afforded other em-

ployees in the same maritime industry performing the same

duties.

In addition to denying the applicability of OSHA regula-

tions at trial, the Defendants argued that: Because the

United States Coast Guard retains regulatory power over

the working conditions of seamen; and, because The

Jacqueline is an uninspected vessel, no specific Coast Guard

regulations are applicable to the case herein.

The issue as to the applicability of the safety statutes

and the preclusion of any consideration of Plaintiff's com-

parative negligence was raised at several times during the

pretrial proceedings and at the trial of this case. Prior to

trial, Plaintiff’s counsel moved the Trial Court In Limine,

to preclude the Defendants from raising the issue of com-

parative negligence based on their violation of safety stan-

dards applicable to Plaintiff. The trial court denied the

motion. During the trial, Plaintiff attempted to introduce

evidence regarding the applicability of these safety statutes

and said evidence was precluded by ruling of the trial court.

At the close of Plaintiff's case in chief, Plaintiff on July 6,

1983, made a Motion for a Directed Verdict on the issues of

contributory negligence. Said motion was denied. During

6

the presentation of jury instructions, Plaintiff’s counsel

requested that jury instructions Numbers 74, 75 and 76 be

given to the jury. These instructions relative to the applic-

ability and existence of safety statutes were denied. Fin-

ally, after final argument, Plaintiff’s counsel again objected

to the issue of comparative negligence going before the

jury. The Trial Judge, by this time aware of Plaintiff’s

position, nevertheless instructed the jury on the issue of

comparative negligence.

If Federal OSHA is divested of jurisdiction to regulate

the working conditions of seamen abroad uninspected ves-

sels, there will be no governmental agency regulating the

safety of employees aboard said vessels. Further, if Fed-

eral OSHA is divested of jurisdiction to regulate the work-

ing conditions of seamen aboard uninspected vessels, this

may result in numerous unnecessary injuries and even

deaths.

If the present Ninth Circuit decision in this matter re-

garding the Coast Guard jurisdiction is allowed to stand

and interpreted to mean that OSHA has no jurisdiction

with respect to uninspected vessels, a twilight zone of non-

regulation will exist into which will fall unprotected em-

ployees.

The seriousness of the present situation is supported by

the facts and judicial reasoning behind the case of Donovan

v. Red Star Marine Services, Inc., 739 Fed. 2d 774 (2nd Cir.

1984), a copy of which is appended hereto. This case was

decided just four weeks after the instant case, arose out of

facts and circumstances similar yet, reached a different

conclusion. In said case, the Court upheld the applicability

of OSHA regulations to uninspected vessels. The Court

found that the Coast Guard does not exercise and has not

exercised any statutory authority vis-a-vis the work place

of employees aboard uninspected vessels. Red Star, supra,

ed ee

7

at 777. The Court further found that, in spite of numerous

requests by the Coast Guard to obtain additional grants

of authority from Congress in order to regulate more com-

prehensibly the uninspected fleet, the Coast Guard is limited

to regulation of life-saving and firefighting equipment, back-

fire flame control, ventilation, the reporting of casualties

and the licensing of operators. Red Star, supra, at 777.

Finally, reviewing Supreme Court Rules, Rule 17, Con-

siderations Governing Review on Certiorari, it is stated

that the first reason important enough for the Supreme

Court to consider granting a review is “(a) When a Federal

Court of Appeals has rendered a decision in conflict with

the decision of another Federal Court of Appeals on the

same matter ;”.

In the instant case, we have this very same situation. It

is our belief that the Second Circuit has correctly analyzed

both sides of the issue. The opinion therein was based on

well documented evidence and accurately reflects the mag-

nitude of the problem and the only plausible solution.

CONCLUSION

For the reasons set forth above, it is respectfully sub-

mitted that this Petition should be granted.

Dated: April 2, 1985

Jerrrey A. Kopczynski

Attorney for Petitioner

APPENDIX A

OPINION

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GARY ALAN KOPCZYNSKI,

Plaintiff-Appellee/Cross-Appellant,

v

THE JACQUELINE, Documentation Number 519060,

Her Engine, Tackle, Appurtenances, etc.,

In Rem; SEWARD MARINE SERVICES, INC.,

a California Corporation,

SEAWARD MARINE SERVICES, INC.,

a Virginia Corporation,

ABC DOE CORPORATION, WENDY WEBBER,

JIM WALKER and TIM ORSAC,

individually, In Personam,

Defendants-Appellants/Cross-Appellees.

On Appeal from the United States District Court

for the Southern District of California

The Honorable Edward J. Schwartz, Presiding

Argued and submitted July 3, 1984

FILED SEPTEMBER 11, 1984

PHILLIP B. WINBERRY

Clerk, U.S. Court of Appeals

Nos. 83-6108, 83-6152

D.C. No. CV 82-0123-S(T)

Before: ANDERSON, TANG, and FERGUSON, Circuit

Judges. J. BLAINE ANDERSON, Circuit Judge:

Gary Kopezynski brought an admiralty action against

Seaward Marine Services for injury he sustained while

employed as a crew member on The Jacqueline. Claims

were brought for negligence under the Jones Act, 46 U.S.C.

§ 688, unseaworthiness, maintenance and cure, and punitive

A-2

damages. The jury found in Kopezynski’s favor on all but

the unseaworthiness claim. Seaward appeals claiming that

punitive damages are not recoverable under the Jones Act.

Kopezynski cross-appeals asserting that his Jones Act

award should not have been reduced by the amount of his

comparative negligence; the district court should have

found The Jacqueline unseaworthy as a matter of law; and

attorney’s fees should have been awarded as an item of

maintenance and cure. We affirm on all issues except the

district court’s award of punitive damages, which we re-

verse.

I

BACKGROUND

Kopezynski was employed by Seaward as a “diver/

tender” on The Jacqueline. The Jacqueline is a converted

World War II landing craft used in connection with ship

husbandry, in particular cleaning and maintaining ships’

hulls. Kopezynski’s duties included underwater inspection

and operation of hull scrubbing equipment, assisting other

divers, operation of the various specialized machinery on

The Jacqueline, and performance of seaman’s duties on

the vessel such as piloting and maintenance.

On August 25, 1981, The Jacqueline was moored at the

Shell Fuel Dock in San Diego Harbor. Kopezynski was

assisting in refueling operations. This task included emp-

tying 55-gallon drums containing hydraulic oil and other

fuel into the ships’ tanks. Once empty, the drums were

man-handled back onto the dock.

On the day of refueling, the tide was exceptionally low.

This placed the aft work deck, from which the operation

took place, six to eight feet below the dock. Due to the

transfer of oil from the drums, oil was on the deck, creating

slippery working conditions. Either to off-load a drum or

to get up on the dock, Kopezynski stood on the safety rail-

A-3

ing located four feet above the deck. He slipped, straddled

the rail, and injured his back. Using the safety railing to

step off of the vessel was a common practice of The Jac-

queline’s crew.

At first being considered a harbor worker, Kopezynski

received over $17,000 in longshoremen’s benefits over a 10-

month period. On February 5, 1982, Kopezynski filed this

action. His complaint sought redress based on the mari-

time rights of seamen, and his workers’ compensation bene-

fits were terminated four months later.

The trial was held in June and July of 1983. On July 12,

the jury returned special verdicts finding Seaward neg-

ligent, awarding $450,000 in compensatory damages to Kop-

ezynski after his 35% comparative negligence was taken

into account; it awarded $55,301 on the maintenance and

cure claim; and it concluded that Seaward had acted

wantonly and maliciously and granted $325,000 in punitive

damages. The jury did not find the vessel unseaworthy.

The court entered judgment accordingly.

It

ANALYSIS

A. Comparative Negligence

Kopezynski contends that the district court should not

have reduced his compensatory damage award under the

Jones Act by the amount the jury found him to be com-

paratively negligent, 35%. We disagree.

The Jones Act provides:

Any seaman who shall suffer personal injury in the

course of his employment may, at his election, main-

tain an action for damages at law, with the right of

trial by jury, and in such action all statutes of the

United States modifying or extending the common-law

A4

right or remedy in cases of personal injury to railway

employees shall apply ....

46 U.S.C. § 688. The relevant statutes governing personal

injury suits by railway employees, and thus incorporated

into the Jones Act, are found in the Federal Employer’s

Liability Act, 45 U.S.C. $§ 51-60. See, e.g., Nygaard v. Peter

Pan Seafoods, Inc., 701 F.2d 77, 79 (9th Cir. 1983).

The general rule in personal injury actions brought in

admiralty (both under the Jones Act and general maritime

law) and under the FELA is that contributory negligence is

not a complete bar to recovery but it does operate to reduce

the amount of the damage award. 45 U.S.C. §53; see

Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 428-429

(1939); DuBose v. Matson Navigation Co., 403 F.2d 875,

878 (9th Cir. 1968).

Section 53 of the FELA also provides that contributory

negligence, or more appropriately in today’s terms, com-

parative negligence, may not be considered “in any case

where the violation by [the employer] of any statute en-

acted for the safety of employees contributed to the injury

or death of such employee.” See Kernan v. American Dredg-

ing Co., 355 U.S. 426, 485 (1958) (citing Coray v. Southern

Pacific Co., 335 U.S. 520, 524 (1949)). Kopezynski argues

that Seaward’s violation of certain safety regulations con-

tributed to his injury, and therefore his comparative negli-

gence should not have reduced his damage award.

Surprisingly, there is little case law construing the effect

of § 53 in maritime personal injury action. In one of the few

cases that addressed the issue, the court stated that if a

maritime employer violated safety statutes analogous to the

Safety Appliances and Boiler Inspection Acts, 45 U.S.C. §§

1-43, which clearly apply to § 53’s proviso, see Coray, 335

U.S. at 524, then the seaman’s negligence will not reduce

the damage award. Neal v. Saga Shipping Co., 8.A., 407

nee

A-5

F.2d. 481, 485-486 (5th Cir.), cert. denied, 395 U.S. 986

(1969). The court concluded, however, that the injured

party was a longshoreman to whom the Jones Act did not

apply. In another case the court reserved the question be-

cause it found no violation of a safety statute occurred.

B-R Dredging Co. v. Rodriguez, 564 S.W.2d 693, 695 (Tex.

1978). Finding the regulations proffered by Kopcezynski to

be inapplicable, we also reserve the the issue of how and

when the violation of a safety statute or regulation might

preclude consideration of an injured seaman’s comparative

negligence in a Jones Act cause.

Kopezynski argues that Seaward violated two sets of

related regulations : the OSHA Shipyard Employment Reg-

ulations governing the use of gangways or ladders for ac-

cess to a vessel, 29 C.F.R. § 1915.74; and the Defense

Acquisition Regulations, 32 C.F.R. § 12-501, which provide

that the OSHA Shipyard Regulations are applicable to

defense contractors.

The district court correctly found these regulations do

not govern the operation of The Jacqueline. The OSHA

Shipyard Employment Regulations were promulgated

under the authority of the Occupational Safety and Health

Act, 29 U.S.C. §§ 651-678, and the Longshoreman’s and

Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901-950.

The Occupational Safety and Health Act provides that:

Nothing in this chapter shall apply to working condi-

tions of employees with respect to which other Federal

agencies . . . exercise statutory authority to prescribe

or enforce standards or regulations affecting occu-

pational safety or health.

29 U.S.C. §653(b)(1). The Coast Guard is the primary

federal agency which exercises authority over the working

conditions of seamen. 14 U.S.C. § 2.

A-6

In turn, the LHWCA’s scope is limited. It protects the

rights of “employees” which are defined as a:

longshoreman or other person engaged in longshoring

operations, and any harbor worker including a ship

repairman, ship builder, and ship breaker, but such

term does not include a master or member of any crew

of any vessel, or any person engaged by the master to

load or unload or repair any small vessel under 18 tons

net.

33 U.S.C. §902(3).

The Shipyard Employment Regulations themselves rec-

ognize this limited scope:

This part does not apply to matters under the control

of the United States Coast Guard within the scope of

Title 52 of the Revised Statutes and Acts supplemen-

tary or amendatory thereto ... including, but not

restricted to, the master, ship’s officer, crew members,

design, construction and maintenance of the vessel, its

gear and equipment....

29 C.F.R. § 1915.2(b).

Kopezynski is a crew member of The Jacqueline and

brought this action based on his status as a seaman. The

regulations governing the safety of habor workers and

longshoremen do not apply. See Donovan v. Texaco, Inc.

720 F.2d 825, 826-829 (5th Cir. 1983) ; Taylor v. Moore-Mc-

Cormack Lines, Inc., 621 F.2d 88, 92-93 (4th Cir. 1980) ;

Clary v. Ocean Drilling & Exploration Co., 609 F.2d 1120,

1122 (5th Cir. 1980).

B. Maintenance and Cure

Kopezynski contends that as a matter of law the district

court should have granted him attorney’s fees in conjunc-

tion with his maintenance and cure award. We are not

persuaded.

Saw sat A oe 00

A-7

Maintenance and cure is the obligation of a ship-owner

to care for a seaman injured during the course of maritime

employment. See Vaughan v. Atkinson, 369 U.S. 527, 531-

532 (1962) ; Crooks v. United States, 459 F.2d 631, 632-633

(9th Cir. 1972). In Vaughan, the Supreme Court heid that

attorney’s fees incurred in order to secure a maintenance

and cure award may be recovered in addition to the usual

items such as medical care, food, and lodging. Here, the

district court followed the approach of the circuit courts

that have construed the scope of Vaughan and interpret it

to allow attorney’s fees only when the failure to provide

maintenance and cure was arbitrary, recalcitrant or un-

reasonable. Icandela v. American Dredging Co., 659 F.2d

11, 15 (2d Cir. 1981) ; Gaspard v. Taylor Diving & Salving

Co., 649 F.2d 372, 375 (5th Cir. 1981), cert. denied, 455 U.S.

907 (1982) ; see Vaughan, 369 U.S. at 530-531. We approve.

In an instruction and special interrogatory, the district

court requested the jury to decide whether Seaward was

“willful and arbitrary in failing to pay maintenance and

cure,” to which it responded in the answer to the interrog-

atory, “No.” We see no reason to disturb that finding.

Kopezynski originally received workman’s compensation

benefits as a longshoreman or harbor worker. Four months

after Kopezynski filed this action as a seaman under the

Jones Act, the benefits were terminated. The jury could

have reasonably concluded that the failure to provide

further maintenance and cure once the benefits were ter-

minated was not unreasonable due to the uncertain nature

of Kopezynski’s status.

C. Unseaworthiness

In its answer to a special interrogatory, the jury found

that The Jacqueline was not unseaworthy. Kopezynski

contends that the district court should have directed i

verdict in his favor on this issue; the jury instructions

A38

regarding the law of unseaworthiness were inadequate ; and

the district court erroneously excluded evidence pertaining

to this claim. We find these contentions to be without merit.

At the outset, we note that Kopyezynski is not entiled to

independent recoveries for his negligence and unseaworth-

iness claims. 1B Benedict on Admiralty, § 21 at 3-3 (1983).

Comparative negligence principles apply to each theory, id.,

§ 25 at 3-92, so his compensatory remedy would be the same

under either claim. There may, however, be a distinction

between the two theories in the area of punitive damages, as

discussed in the next section. We therefore discuss

Kopezynski’s argument on this issue, even though his claim

is under general principles moot because Seaward does not

question the propriety of Kopezynski’s compensatory dam-

age award.

Kopezynski failed to move for judgment notwithstanding

the verdict, so we will not pass on the question whether a

directed verdict was mandated by the evidence. 5A Moore’s

Federal Practice, J 50.12 at 50-108 (1984).

Kopezynski’s attack on the jury instructions consists of

the conclusory statement that they were “inadequate” for

such a complex area of the law. First, Kopzynski did not

object to the court’s failure to give the instructions he pro-

posed. He therefore lost his right to raise this issue on

appeal. Fed. R. Civ. P. 51; see Robert Waikiki U-Drive,

Inc. v. Budget Rent-A-Car, Inc., 732 F.2d 1403, 1410 (9th

Cir. 1984). Second, Kopezynski’s conclusory contention of

“inadequacy” does not provide us with a sufficient basis on

which to review the instructions. Objections to jury instruc-

tions must be specific, see F ed. R. Civ. P. 51, and so should

claims of error in that respect be on appeal.

Last, Kopezynski argues that the district court errone-

ously excluded evidence of the regulations discussed earlier.

As stated, they are not applicable.

A-9

D. Punitive Damages

On cross-appeal, Seaward contends that as a matter

of law the district court should not have awarded punitive

damages. This presents a novel question in this circuit and

we agree with Seaward that such damages are not recover-

able in this case.

Initially, it must be emphasized that we are presented

only with the question whether punitive damages are

recoverable under the Jones Ac*. As just discussed, the

jury did not find that The Jacqueline was unseaworthy

under general maritime law and we see no reason to disturb

that conclusion. Therefore, we offer no opinion on whether

punitive damages may be recovered on an unseaworthiness

claim. See Dyer v. Merry Shipping Co., 650 F.2d (5th

Cir. 1981) (Fifth Circuit concluding that a finding of unsea-

worthiness may support a punitive damage award) ; Holmes

v. J. Ray McDermott & Co., 734 F.2d 1110, 1118 (5th Cir.

1984) (willful failure to pay maintenance and cure can

support punitive damage award); cf. Note, Punitive Dam-

ages in Admiralty, 18 Hastings L.J. 995, 1002 (1967) (puni-

tive damages based on unseaworthiness claim not avail-

able).

We have discussed how the Jones Act incorporates by

reference the standards of the FELA. Prior to enactment

of the Jones Act in 1920, it had been established that only

compensatory damages were available in FELA actions.

Michigan Central Railroad Co. v. Vreeland, 227 U.S. 59,

71-72 (1913) ; Gulf, Colorado and Santa Fe Railway Co. v.

McGinnis, 228 U.S. 173, 175-176 (1913) ; see Kozar v. Chesa-

peake and Ohio Railway Co., 449 F.2d 1238, 1240-1243 (6th

Cir. 1971).

We find this limitation of recovery applicable to this

case. In Merry Shipping, the Fifth Circuit recognized that

punitive damages may not be available under the Jones

A-10

Act because under it recovery is limited to “pecuniary”

losses, even though the court did hold that an unseaworthi-

ness claim may support such an award. 650 F.2d at 626.

This circuit also limits Jones Act damage awards to pecu-

niary osses. Nygaard v. Peter Pan Seafoods, Inc., 701 F.2d

77, 80 (9th Cir. 1983). Punitive damages are non-pecuniary.

Under our precedent, therefore, they may not be awarded

on a claim of negligence based on the Jones Act. Any

argument that they should be available ought to be ad-

dressed to Congress. See id. (citing DoCarmo v. F. V.

Pilgrim I. Corp., 612 F.2d 11, 13 n.3 (1st Cir. 1979), cert.

denied, 446 U.S. 956 (1980)). In reaching this result, we

find support in a persuasive article discussing the legislative

history and case law of the Jones Act. Dahlquist, Punitive

Damages Under the Jones Act, 6 Maritime Lawyer 1-36

(1981).

ITI.

CONCLUSION

We affirm the judgment in all respect except the punitive

damage award, which we reverse.

AFFIRMED IN PART; REVERSED

and REMANDED IN PART.

APPENDIX B

ORDER

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GARY ALAN KOPCZYNSKI,

Plaintiff-Appellant/Cross-Appellant,

vs.

THE JACQUELINE, Documentation Number 519060,

Her Engine, Tackle, Appurtenances, etc.,

In REM, SEAWARD MARINE SERVICES, INC.,

a California Corporation,

SEAWARD MARINE SERVICES, INC.,

a Virginia Corporation,

ABC DOE CORPORATION, WENDY WEBBER,

JIM WALKER and TIM ORSAC,

individually, In Personam,

Defendants-Appellants/Cross-Appellees.

FILED JANUARY 10, 1985

PHILLIP B. WINBERRY

Clerk, U.S. Court of Appeals

Nos. 83-6108, 83-6152

D.C. No. CV 82-0123-S(I)

Before: ANDERSON, TANG, and FERGUSON, Circuit

Judges.

The panel as constituted in the above case has voted to

deny the petition for rehearing and to reject the sugges-

tion for a rehearing en banc.

The full court has been advised of the suggestion for

en banc rehearing, and no judge of the court has requested

a vote on the suggestion for rehearing en banc. Fed. R.

App. P. 35(b).

The petition for rehearing is denied and the suggestion

for a rehearing en banc is rejected.

The motion of Barbara Munden to file an amicus curiae

is DENIED.

The motion to stay issuance of the mandate is DENIED.

APPENDIX C

UNITED STATES COURT: OF APPEALS

For tue Seconp Crecuit

Cal. No. 727, 728 — August Term 1983

(Argued : Februray 9, 1984 Decided: July 10, 1984)

Docket Nos. 83-4158, 4168

Raymonp J. Donovan, SecrEtaBy oF Lasor,

Petitioner/Cross-Respondent,

Vs.

Rep Starz Marine Services, Inc.,

Respondent/Cross-Petitioner.

Before:

Van GraaFEILAND and Tress, Circutt Judges,

and Rez, Chief Judge*.

Cross-petitions by the Secretary of Labor and Red Star

Marine Services, Inc., from a final order of the Occupa-

tional Safety and Health Review Commission, in an action

by the Secretary against Red Star for violation of 29

C.F.R. § 1910.95. The Commission held that, although the

Occupational Safety and Health Administration had ob-

tained valid ex parte warrants to inspect the tugboat

STAMFORD, it did not have jurisdiction over the working

conditions of “seamen,” aboard uninspected vessels.

Affirmed in part, Reversed in part, and Remanded.

JamEs E. Cuup, Attorney, United States Department

of Labor (Francis X. Lilly, Deputy Solicitor of Labor ;

Frank A. White, Associate Solicitor for Occupational

Safety and Health; Dennis K. Kade, Counsel for Ap-

pellate Litigation; Shelley D. Hayes, Attorney, Wash-

ington, DC, of counsel), for Petitioner/Cross-Respon-

dent.

*The Hon. Edward D. Re, Chief Judge, United States Court of

International Trade, sitting by designation.

0-2 |

James M. Kenny, New York, New York (McHugh,

Leonard & O’Conor, New York, New York, of counsel),

for Respondent/Cross-Petittioner. j

:

5

Re, Chief Judge:

By cross-petitions, both parties appeal from a final order

of the Occupational Safety and Health Review Commission

(Commission) which held that, although the Occupational i

Safety and Health Administration (OSHA obtained a valid

ex parte warrant, it did not have jurisdiction over the F

working conditions of “seamen” aboard an “uninspected

vessel.” In general terms, this case presents a jurisdic- i.

tional conflict between two federal agencies, OSHA and

the Coast Guard.

The two questions presented are: (1) whether OSHA 4

has jurisdiction over the “working conditions” of employees

aboard uninspected vessels' operating on navigable waters,

or whether the Coast Guard, a sister federal agency, had

“actually exercised” its authority over the working con-

ditions of employees aboard uninspected vessels operating

on navigable waters; and (2) whether the ex parte warrants j

obtained by OSHA in this case were valid.

Since we hold that OSHA has jurisdiction over the work-

ing conditions of employees aboard uninspected vessels,

and that the ex parte warrants were valid, we remand the

case for further proceedings consistent with this opinion.

1Chapter 1 of 46 Code of Federal Regulations and the recent

amendments to Title 46, United States Code, enacted by Pub. L.

98-89, 97 Stat. 500 (1983), classify vessels according to factors such

as weight, purpose, and method of propulsion. One type of vessel

classified pursuant to Title 46 is an “uninspected vessel,” which is

a term used to denote that it is not subject to the Coast Guard’s

inspection and Certification authority. 46 U.S.C. § 2101(43). :

C-3

The Facts

Red Star Marine Services, Inc. (Red Star) operates a

tugboat and marine towing service along the eastern sea-

board of the United States. Its fleet includes the tugboat

“STAMFORI ,” which was inspected by an OSHA Com-

pliance Officer on the 27th and 29th of May, 1980. The

inspection, prompted by an employee complaint, was con-

ducted pursuant to an ex parte warrant issued by a United

States Magistrate after Red Star had refused the Com-

pliance Officer’s request to inspect the tugboat for safety

and health violations. As a result of that inspection, the

Secretary of Labor, the statutory head of OSHA, cited Red

Star with violations of the Occupational Safety and Health

Act of 1970, 84 Stat. 1590, 29 U.S.C. § 651, et. seq., (1982)

(OSH Act). In particular, the Secretary alleged violation

of 29 C.F.R. § 1910.95, in that, Red Star had failed to pro-

vide protection against excessive noise levels, and had failed

to administer a continuing bearing conservation program.

The Administrative Proceedings

Red Star contested the Secretary’s allegations and pur-

sued the available administrative remedies. Subsequent to

the first hearing, in a decision dated July 13, 1982, the

OSHA Administrative Law Judge (ALJ) upheld the Sec-

retary’s actions, and rejected Red Star’s contentions that

OSHA lacked jurisdiction, and that the warrants were

invalid. Red Star petitioned the Commission for discre-

tionary review. On review, the Commission upheld the

validity of the warrants, and remanded, for reconsidera-

tion by the ALJ, the question of jurisdiction in light of

Dillingham Tug & Barge Corp., ___--_- _ OSAHRC

, 10 O.S.H. Cas. (BNA) 1859, 1982 O.S.H. Dec.

(CCH) 7 26,166 (1982). In Dillingham, the Commission

found that “the Coast Guard has prescribed, and it enforces,

regulations that govern the working conditions of seamen

aboard both inspected and uninspected vessels operating

C-4

on navigable waters.” Id. at ___, 10 O.S.H. Cas. (BNA)

at 1861, 1982 O.S.H. Dec. (CCH) at 32,996. Hence, since

“section 4(b)(1) precludes the Secretary from enforcing

the OSH Act with respect to [the] working conditions” of

“seamen” aboard vessels operating on the navigable waters,

the Commission held that the Coast Guard had exclusive

jurisdict 1. Id. at , 10 O.S.H. Cas. (BNA) at

1860,1° 0O.S.H. Dec. (CCH) at 32,995.

Pursuant to the remand order, a second hearing, which

consisted largely of the testimony of a Coast Guard

officer, was held on February 9, 1983. Based upon that

testimony, the regulations found in 46 C.F.R., Chapter I,

and the Commission’s decision in Dillingham, the ALJ

reversed his prior decision, and held that since the Coast

Guard had jurisdiction, OSHA could not enforce its

regulations in this case. Since the Commission did not act

upon the Secretary’s petition for discretionary review of

the decision on remand, on June 23, 1983, by operation

of section 12(j) of the OSH Act, 29 U.S.C. § 661(i), the

ALJ’s decision became a final order of the Commission.

Pursuant to sections 11(a) & (b) of the OSH Act, 29

U.S.C. §§ 660 (a) (b) (1982), the Secretary seeks judi-

cial review of the determination that OSHA does not have

jurisdiction over the working conditions of “seamen”

aboard uninspected vessels. Red Star, by cross-petition,

seeks review of that part of the Commission decision which

upheld the validity of the ex parte warrant.

Standard of Review

The OSH Act applies to all employment performed in

workplaces located within the several states; the District

of Columbia; Puerto Rico; the Virgin Islands; Samoa,

Guam, Wake and Johnston Islands; the Trust Territory of

the Pacific Islands; and on the Outer Continental Shelf

lands. Section 4(a), 29 0.S.C. § 653(a). Unless engaged in

ee ee ny

C-5

the field of nuclear or atomic energy, a private employer

is not exempt from the OSH Act. The only exception is

when a sister federal agency is vested with the statutory

authority to prescribe or regulate occupational safety or

health matters within its purview. Section 4(b)(1), 29

U.S.C. § 653(b) (1).

In this case, the Commission vacated OSHA’s citation

of the STAMFORD for noncompliance with its occupa-

tional noise regulation, on the ground that the Coast Guard

comprehensively regulates the working conditions of em-

ployees aboard uninspected vessels on navigable waters.

In Marshall v. Northwest Orient Airlines, Inc., 574 F.2d 119

(2d Cir. 1978), this Court considered the question of the

exemption pursuant to section 4(b)(1), and held that it is

a mixed question of “law and fact.” Zd. at 122.

The applicable standard of review for questions of fact

is specified in section 11(a) of the OSH Act, 29 U.S.C.

§ 660(a), which provides that the findings of the Commis-

sion “if supported by substantial evidence on the record

considered as a whole, shall be conclusive.” Jd. As to

questions of law, however, the court is free to determine

whether the Commission’s legal conclusion is “in accord-

ance with law.” 5 U.S.C. § 706(2)(a). It is, of course, the

function of the court to ascertain the meaning of the

pertinent legislation, and to give effect to the legislative

purpose. Nevertheless, judicial authority teaches that,

even in cases of statutory interpretation and application,

appropriate weight must be given to the interpretation of

a statute by the agency charged with its administration.

Udall v. Tallman, 380 U.S. 1, 16-17 (1965). Accord Tyson

v. Maher, 523 F.2d 972, 974 (2d Cir. 1975). This standard

has been followed by other circuits in an occupational

health and safety context. See Dunlop v. Rockwell Inter-

national, 540 F.2d 1283, 1289-90 (6th Cir. 1976) (deferring

to the Commission’s construction of the Act despite the

ce ee oe ee

C-6

Secretary’s contrary view). Accord GAF Corp. v. OSHRC,

561 F.2d 913, 915 (D.C. Cir. 1977) (deferring to administra-

tive interpretation of OSHA regulations when the Secre-

tary and the Commission agreed).

Jurisdiction

The first question presented requires the interpretation

of section 4(b)(1) of the OSH Act, 29 U.S.C. § 653(b) (1)

(1982). This section provides that:

Nothing in this chapter shall apply to working

conditions of employees with respect to which other

Federal agencies, and State agencies acting under

section 2021 of Title 42, exercise statutory authority

to prescribe or enforce standards or regulations af-

fecting occupational safety or health.

Id.

The Commission agrees that a correct interpretation of

section 4(b)(1) requires an actual exercise of delegated

statutory authority. We differ with the Commission, how-

ever, on the issue of whether the Coast Guard has actually

exercised the authority conferred. Thus, the question

presented does not involve an ordinary question of fact,

but rather, the interpretation and application of the stat-

utes and regulations applicable to the authority and re-

sponsibilities of the Coast Guard.

It is undisputed by the parties that the Coast Guard

possesses extensive statutory authority, and is the agency

primarily responsible for maritime safety. Section 2 of

Title 14 provides that the Coast Guard “shall administer

laws and promulgate and enforce regulations for the pro-

motion of safety of life and property on and under the

high seas and waters subject to the jurisdiction of the

United States covering all matters not specifically dele-

gated by law to some other executive department ... .”

ne tnt Canine andere

ree - |

C-7

Id. Numerous sections of Title 4€ of the United States

Code also grant specific authority to the Coast Guard.

See, e.g., 46 U.S.C. §§ 3301-18 (governing inspection of

vessels). The proposition that Congress intended the

Coast Guard to be primarily responsible in the area of

maritime safety is suported by the legislative history of

the recent amendments to Title 46, H.R. Rep. No. 338,

98th Cong., 1st Sess., reprinted im 1983 U.S. Code Cong.

& Ad. News 924.

It is equally clear, however, and also undisputed by the

parties, that the Coast Guard does not exercise and has

not exercised any statutory authority to regulate noise

hazards aboard uninspected vessels such as the STAM-

FORD. In fact, the Coast Guard has historically viewed

its autherity to regulate uninspected vessels as limited to

the regulation to regulate uninspected vessels as limited to

the regulation of life-saving and fire fighting equipment,

backfire flame control, ventilation, the reporting of ca-

sualties and the licensing of operators. In the past, the

Coast Guard had made several attempts to obtain addi-

tional grants of authority from Congress in order to

regulate more comprehensive the uninspected fleet. See,

e.g., Marine Safety Program: Hearings on H.R. 3486 before

the Subcomm. on Coast Guard and Navigation of the

House Comm. on Merchant Marine and Fisheries, 98th

Cong., 1st Sess. 466-68 (1983) (statement of Admiral

James C. Gracey, Commander, U.S. Coast Guard). Indeed,

in his testimon; before the House Subcommittee on Coast

Guard and Navigation, Admiral Gracey, Commandant

of the Coast Guard, specifically requested addition-

al authorities over uninspected vessels: “We .. . need

some statutory authority [to regulate uninspected vessels].

We don’t have that now.” Jd. at 467. Congressional

inaction on this suggestion, most notably the failure to

provide additional authority to regulate towing vessels,

clearly evidences an unwillingness to expand the Coast

0-8

Guard’s authority over the uninspected fleet. Hence, it

cannot be questioned that there is a significant distinction

between “uninspected” vessels and “inspected and certifi- |

cated” vessels, in that the regulations affecting “inspected

and certificated” vessels are more numerous, extensive, |

and pervasive than those affecting “uninspected” vessels.

Notwithstanding an exhaustive search, we have been

unable to discover any provision in the United States .

Code, or the Code of Federal Regulations, which ad- .

dresses the Coast Guard’s authority to regulate noise

hazards above uninspected vessels. We do, however, take

judicial notice of the fact that the Coast Guard has issued

recommendations on the control of excessive noise in

Navigation and Vessel Inspection Circular 12-82, dated )

June 2, 1982. It is important to note that this circular was .

promulgated after the events which led to this litigation,

and, by its terms, was directed toward inspected and not |

uninspected vessels.

Thus, we are faced with the question whether, under

section 4(b) of the OSH Act, the regulatory authority of |

the Coast Guard in maritime matters preempts OSHA’s )

statutory authority to regulate a hazard aboard a vessel )

not addressed by the Coast Guard. )

Although not in issue, the Secretary concedes that the

pervasive regulations by the Coast Guard of safety and .

health matters aboard inspected vessels eliminates or |

excludes OSHA’s jurisdiction over those vessels.? The

In accordance with a “Memorandum of Understanding” signed :

by the Commandant of the Coast Guard and the Assistant Secretary

for Occupational Safety and Health, Department of Labor, the

Secretary has taken the position, that “the Coast Guard has issued

comprehensive standards and regulations concerning the working

conditions of seamen aboard inspected vessels,” and that OSHA

may not enforce its regulations with respect to “seamen” aboard

inspected vessels.

aaa

C-9

Secretary, however, maintains that the Coast Guard has

not “comprehensively exercised,” within the meaning of

section 4(b), statutory authority as to the working condi-

tions, particularly noise hazards, of “seamen” aboard un-

inspected vessels. The Secretary contends that compre-

hensive regulation is required to justify an industry-wide

exemption from OSHA regulation. On the other hand,

Red Star contendes that the Coast Guard has exercised

jurisdiction over some matters affecting the health and

safety of its “seamen” aboard the STAMFORD, an unin-

spected vessel, and that preemption may occur even though

the Coast Guard has chosen to regulate less stringently than

OSHA.

Were this to be a case of first impression, it would seem

clear that noise is a “working condition” within the plain

meaning of section 4(b)(1), and that the Coast Guard

has not “exercised” statutory authority over noise aboard

uninspected vessels. It would follow, therefore, that the

OSHA regulations would apply. Similar issues, however,

have been presented to a number of circuit and district

courts which have not interpreted section 4(b)(1) con-

sistently.

In Marshall v. Northwest Orient Airlines, Inc., supra,

this Court held that section 4(b)(1) was not intended “to

eliminate OSHA’s jurisdiction merely on the basis of

hypothetical conflicts,” nor “designed to provide whole-

sale exceptions for entire industries.” Jd. at 122. Accord-

ingly, this Court held that “a sister agency must actually

be exercising a power to regulate safety conditions in

order to preempt OSHA.” Jd. (emphasis in original).

Other circuits have agreed with the interpretation that

the term “exercise,” as used in section 4(b)(1) of the Act,

requires an actual, concrete assertion of regulatory

authority as opposed to a mere possession of authority.

C-10

Furthermore, the decisions teach that section 4(b)(1) was

not intended to create industry-wide exemptions based on

isolated or narrow exercises of statutory authority. In

Southern Ry. Co. v. OSHRC, 539 F.2d 335 (4th Cir.), cert.

denied, 429 U.S. 999 (1976), the Fourth Circuit demon-

strated that this. view of section 4(b)(1) was indeed the

intent of Congress. Id. at 336-37. See also Southern Pacific

Transp. Co. v. Usery, 539 F.2d 386, 390 (5th Cir. 1976),

cert. denied, 434 U.S. 874 (1977); Baltimore & Ohio B.R.

Co. v. OSHRC, 548 F.2d 1052, 1054 (D.C. Cir. 1976). We

agree that the term “exercise,” as used in section 4(b) (1)

of the Act, requires more than isolated regulations peri-

pherally affecting the working condition of employees.

Red Star cites authority for the proposition that, be-

cause of pervasive regulation by the Coast Guard of work-

ing conditions on board vessels in navigation, there is,

for “seamen,” an industry-wide exemption from OSHA

regulation. We reject this contention. First, the authorities

relied upon are distinguishable, and, furthermore, most

of the opinions cited did not address the considerable varia-

tion in the pervasiveness of Coast Guard regulation be-

tween inspected and uninspected vessels.

In Donovan v. Texaco, Inc., 720 F.2d 825 (5th Cir. 1983),

the question was whether section 11(c) of the OSH Act

could be enforced as to “seamen.” Although the Fifth

Cireuit deferred to the Commission’s opinion in Dilling-

ham, which held that OSHA lacked jurisdiction over the

working conditions of “seamen” aboard uninspected ves-

sels, it also found an actual conflict with the Coast Guard’s

scheme of regulation. The court held that “the parallel

but divergent protective plan of 11(c) would be precisely

the sort of duplication [by sister federal agencies] that

the Congress meant to forbid by enacting Section 4(b) (1)

of OSHA.” Id. at 829.

C-11

The Texaco opinion was based in part on an earlier

Fifth Cireuit opinion, Clary v. Ocean Drilling ¢ Exzplora-

tion Co., 609 F.2d 1120 (5th Cir. 1980), which not only

deferred to Commission precedent, but also based its de-

cision on a ground independent of section 4(b)(1), Clary

involved a Jones Act suit in which the plaintiff alleged

he was injured as a result of several violations of OSHA

regulations. These violations, he argued, constituted neg-

ligence per se. The court examined those regulations and

concluded that they were intended to cover only certain

specific situations, and did not apply to the situation which

occasioned the plaintiff’s injury. 7d. at 1122.

In support of its position, Red Star also refers to the

following language quoted from Taylor v. Moore-McCor-

mack Lines, Inc., 621 F.2d 88 (4th Cir. 1980) :

The Coast Guard has responsibility for the safety of

“seamen” under the regulations issued by it, whereas

the Department of Labor, under OSHA, has statutory

responsibility for the safety of longshoremen at work

under regulations issued by it. The respective re-

sponsibilities, thus established, are exclusive. This

exclusivity is expressly declared in connection with

longshoring; it is implicit so far as seamen are con-

cerned.

Id. at 93. In Taylor, the question was whether certain

Coast Guard regulations applied to “longshoremen,” not

whether OSHA regulations applied to “seamen” aboard

uninspected vessels. Again, the court did not consider the

void or lacunae which existed by virtue of the lack of

pervasive Coast Guard regulation of working conditions

of employees aboard uninspected vessels. Hence, Taylor

cannot be said to have precedential authority.

Finally, Red Star relies on the following quotation from

Barger v. Mayor & City Council of Baltimore, 616 F.2d

C-12

730 (4th Cir.), cert. denied, 449 U.S. 834 (1980): “In 29

C.F.R. § 1910.5(b), the Labor Department placed outside

the reach of the regulations employees whose occupa-

tional safety and health are within the statutory jurisdic-

tion of other federal agencies. The Coast Guard is em-

powered to lay down health and safety rules for Jones

Act seamen... .” Jd. at 732. It is clear that 29 C.F.R.

§ 1910.5(b) is simply a restatement of section 4(b)(1) of

the OSH Act. It does not in any way alter our view that

mere possession of statutory authority is insufficient to

preempt OSHA, and that section 4(b)(1) requires an

actual, concrete exercise of that authority. We, therefore,

hold that noise aboard an uninspected vessel is a working

condition which is not regulated by the Coast Guard.

We realize that our holding is contrary to the opinion

expressed by the Commission in Dillingham. In preclud-

ing OSHA jurisdiction in Dillingham, the Commission re-

jected the distinction between inspected and uninspected

vessels, and justified its view on the basis of the few

Coast Guard regulations that applied to uninspected ves-

sels.

In our view, isolated Coast Guard regulations, such as

the load line statute, 46 U.S.C. § 88, do not constitute an

exercise of statutory authority by the Coast Guard, within

the meaning of section 4(b)(1), sufficient to oust OSHA

of jurisdiction to regulate working conditions for employ-

ees aboard uninspected vessels.

While the regulations cited by the Commission in Dil-

lingham are safety regulations which pertain to the “sea-

worthiness” of vessels and the safety of those aboard,

they only incidentally regulate the working conditions of

employees. Examples of safety regulations only incidental

to the regulation of working conditions are: regulations

on the use of petroleum gas, 46 C.F.R. 4 25.45-1; ven-

C-13

tilation requirements, 46 C.F.R. § 25.40-1; backfire flame

control, 46 C.F.R. § 25.35-1; and fire extinguishers, 46

C.F.R. § 25.30. Other regulations merely govern qualifica-

tions for a particular employment, for example, the man-

ning requirements found in 46 C.F.R. § 157, and not the

working conditions of that employment.

It would do violence to the clear intent of Congress to

hold that these instances of Coast Guard regulation of

working conditions aboard uninspected vessels would serve

to deny an entire class of employees the protection of

major safety legislation such as the OSH Act. There can

be no doubt that it was the intent of Congress “to assure

so far as possible every working man and woman in the

Nation safe and healthful working conditions... .” 29

U.S.C. § 651(b). Accord Marshall v. Western Electric, Inc.,

565 F.2d 240, 245 (2d Cir. 1977). It is also beyond ques-

tion that section 4(b)(1) of the OSH Act should be in-

terpreted and applied “to achieve the maximum protection

for the industrial workers of the Nation.” Southern Ry.

Co., 539 F.2d at 338. As recognized by the Supreme Court

of the United States, Congress has historically been es-

pecially protective of “seamen”:

{[Wlorkers at sea have been the beneficiaries of ex-

traordinary legislative solicitude, undoubtedly prompt-

ed by the limits upon their ability to help themselves.

The statutes of the United States contain elaborate

requirements with respect to such matters as their

medicines, clothing, heat, hours and watches, wages

and return transportation to this country if destitute

abroad.

Southern Steamship Co. v. NLRB, 316 U.S. 31, 39 (1942)

(citation omitted). That this solicitude is longstanding

may be noted from many of the provisions of Title 46,

Subtitle II, Part G, 46 U.S.C. §§ 10101-11507 (Supp. 1983),

C-14

entitled “Merchant Seamen Protection and Relief,” which

date back well over a century.

To agree with the views expressed by Red Star would

result in this Court mandating the status quo. As a prac-

tical matter, this would mean that neither OSHA nor the

Coast Guard would exercise authority over the uninspected

vessel fleet, to the detriment of those employees exposed

to the hazard of excessive noise.

In light of the extensive tradition of congressional con-

cern for mariners, Congress could not have intended that

employees aboard uninspected vessels be deprived of the

protections accorded the vast majority of American workers

by the OSH Act, and those protections offered employees

aboard inspected and certificated vessels. It is clear that

the Coast Guard’s regulation of uninspected vessels is

limited to only a few areas. Consequently, it cannot be

said that it is exercising jurisdiction sufficient to regulate

comprehensively the working conditions of employees

aboard uninspected vessels.

Since the Coast Guard is not exercising statutory author-

ity within the meaning of section 4(b)(1) of the OSH Act,

we hold that OSHA possesses statutory authority to regu-

late the working conditions of employees aboard uninspect-

ed vessels. Hence, OSHA may regulate noise hazards

aboard uninspected vessels.

Ez Parte Warrant

The second question presented requires that we deter-

mine whether the Secretary was empowered to obtain the

ex parte warrant which authorized the OSHA Compliance

Officer to inspect the STAMFORD. The Secretary contends

that the version of regulation 1903.4, which was in effect

at the time the STAMFORD was inspected, authorized

OSHA to obtain ex parte warrants. Red Star’s assertion

C-15

that the Secretary was not authorized necessitates an

examination of the history of this regulation.

To effectuate the strong congressional policy that every

person employed in the United States be afforded a safe

working environment, the Secretary of Labor, as statutory

head of OSHA, was expressly granted the authority to

enter and inspect workplaces for occupational hazards

“during regular working hours and at other reasonable

times. . . .” Section 8(a), 29 U.S.C. § 657(a)). Section

8(g)(2), 29 U.S.C. § 657(g) (2), of the OSH Act also author-

izes the Secretary to promulgate rules and regulations

necessary to implement this statutory authority.

In 1971, proposed regulation 1903.11, predecessor of regu-

lation 1903.4, was promulgated pursuant to section 8(g).

Pursuant to the regulation, a compliance officer was to

report the employer’s denial of voluntary access to the

Area Director, who was to consult with both the Regional

Administrator and the Regional Solicitor for the purpose

of “promptly seek[ing] appropriate compulsory process.”

36 Fed. Reg. 8,376, 8,378 (May 5, 1971). -The proposed

regulation was subsequently renumbered and adopted, con-

taining a minor alteration which directed the compliance

officer to “take appropriate action, including compulsory

process, if necessary.” Jd. at 17,851 (Sept. 4, 1971) (current

version at 29 C.F.R. § 1903.4 (1983)).

Subsequent to the adoption of regulation 1903.4, OSHA

issued a series of Compliance and Field Operations Man-

uals. These manuals, which provide guidance to OSHA

compliance officers in enforcing the OSH Act, contained

explicit provisions to the effect that inspection warrants

would be obtained in appropriate circumstances without

advance warning to the affected employer. For example,

2(i) of the original 1972 version of the manual stated that:

“Te]xcept in unusual circumstances ..., there shall be no

C-16

advance warning to the employer of the fact either that a

warrant has been secured or that inspection will take place

pursuant to the warrant.” In 1976, the manual was amended

and excluded 2(f), which dealt with situations where a

compliance officer did not have to obtain permission to

inspect, but, retained 2(i) with one modification, the term

“compulsory process” was substituted for that of “war-

rant.”

In Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978), the

issue before the Supreme Court was the constitutionality

of OSHA’s practice of nonconsensual warrantless inspec-

tions made pursuant to regulation 1903.4. The Court held

that, although no serach warrant or other process is ex-

pressly required by the OSH Act, OSHA’s practice of

compelling compliance by nonconsensual warrantless in-

spections violated the Fourth Amendment. Id. at 324.

Since the present case deals with an inspection pursuant

to an ex parte warrant issued by a United States magis-

trate, and not a nonconsensual warrantless inspection held

unconstitutional in Barlow’s, an extended discussion of the

validity of warrantless inspections is not required. See

Camara v. Municipal Court, 387 U.S. 523 (1967) and See v.

Seattle, 387 U.S. 541 (1967).

However, in Barlow’s the Supreme Court, in comment-

ing on the alternatives to nonconsensual warrantless in-

spections, appeared to interpret the words “compulsory

process,” as contained in 29 C.F.R. § 1903.4 (1977), as not

including ex parte warrants. See 436 U.S. at 318. These

comments by the Supreme Court, pertaining to whether

compulsory process includes ex parte warrants, are gener-

ally conceded by federal courts to be dicta. Nevertheless,

in Cerro Metal Products v. Marshall, 467 F.Supp. 869 (E.D.

Pa. 1979), aff’d, 620 F.2d 964 (3d Cir. 1980), the district

court found that the Supreme Court’s comments in Bar-

Aaa Sak SEER NE

C-17

low’s properly interpreted regulation 1903.4, and held that

the Secretary was not empowered to seek ex parte warrants.

Id. at 872. On December 22, 1978, in response to a prelim-

inary injunction issued in the Cerro Metal case, and while

the Cerro Metal proceedings were still pending, the Secre-

tary published a regulation which amended 29 C.F.R.

§ 1903.4. See 43 Fed. Reg. 59,838 (Dec. 22, 1978). The

regulation which amended 29 C.F.R. § 1903.4 expressly

provided that “compulsory process” included the seeking

of ex parte warrants, 29 C.F.R. § 1903.4(d). The Secretary

published this regulation without meeting the notice and

comment provisions of the Federal Administrative Pro-

cedure Act 5 U.S.C. § 553, pursuant to the exemption for

“interpretative rules and statements of policy.” Id. (d) (2).

In Cerro Metal, however, District Judge Pollak ruled

that since the amendment of December 22, 1978 would

“substantially affect[ ] the rights of those over whom the

agency exercises authority,” it was actually a substantive

regulation, and, therefore, was invalidly promulgated. Id.

at 879-80 (quoting Pickus v. United States Board of Parole,

507 F.2d 1107, 1114 (D.C. Cir. 1974)). A panel of the Court

of Appeals for the Third Circuit, with Chief Judge Seitz

dissenting, affirmed. The majority opinion stated that the

district court correctly distinguished between interpretative

and legislative rules, and found that the regulation in ques-

tion was a legislative rule “masquerading” as an interpre-

tative rule. 620 F.2d at 981. This view was followed by the

Fifth Circuit in Donovan v. Huffines Steel Co., 645 F.2d

288, 289 (5th Cir. 1981), aff’g mem. Marshall v. Huffines

Steel Co., 438 F.Supp. 995 (N.D. Tex. 1979), and Smith

Steel Casting Co. v. Donovan, 725 F.2d 1032, 1034 (4th Cir.

1984). Red Star cites these cases and contends that they

express the correct view.

The Secretary, on the other hand, contends that regula-

tion 1903.4 was always intended to include authority to seek

C-18

ex parte warrants; that the Supreme Court’s comments in

Barlow’s were non-binding dicia; and that, in the alterna-

tive, the December 22, 1978 regulation effectively clarified

the confusion caused by the Supreme Court’s dicta in

Barlow’s.

Upon careful review of this important question, we are

persuaded by the contentions of OSHA, and disagree with

Red Star on several grounds. Furthermore, we feel that

both the majority opinion of the Court of Appeals and the

District Court in Cerro Metal misinterpreted the Supreme

Court’s discussion of regulation 1903.4 in Barlow’s. In

Barlow’s, the Supreme Court only held that OSHA’s prac-

tice of nonconsensual warrantless inspections violated the

Fourth Amendment. It did not hold that OSHA did not

have the statutory authority to seek ex parte warrants.

Indeed, in footnote 15 of the Barlow’s opinion, the Court

stated: “Insofar as the Secretary’s statutory authority is

concerned, a regulation expressly providing that the Secre-

tary could proceed ex parte to seek a warrant or its equiva-

lent would appear to be as much within the Secretary’s

power as the regulation currently in force and calling for

‘compulsory process.’” Jd. at 320 n.15. Furthermore, in

discussing the alleged threat that obtaining warrants would

pose upon the efficient administration of OSHA, the

Supreme Court stated that “the Secretary should never

have adopted [regulation 1903.4], particularly when the

Act does not require it.” Jd. at 319. The confusion stems

from the Court’s interpretation of the words “compulsory

process” as not including ex parte warrants. Clearly, these

comments were non-binding dicta, and we disagree with

the view that it was integra’ to the Supreme Court’s hold-

ing. See Cerro Metal, 467 F.Supp. at 876. While we, of

course, agree that the dicta of the nation’s highest Court

merits the greatest deference, we also heed the admonition

of Chief Justice Marshall that:

C-19

general expressions, in every opinion, are to be taken

in connection with the case in which those expressions

are used. If they go beyond the case, they may be

respected, but ought not to control the judgment in a

subsequent suit, when the very point is presented for

decision. .. .

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399 (1821),

quoted in, Re, Stare Decisis, 79 F.R.D. 509, 512 (1978).

Accordingly, we respectfully decline to follow the Supreme

Court dicta since upon plenary consideration, a different

result is warranted.

We agree with the view expressed by Chief Judge Seitz

in his dissent in Cerro Metal that “the phrase ‘compulsory

process’ in § 1903.4 is certainly broad enough to encom-

pass ex parte warrants [and that,] the ordinary meaning

of that phrase includes ex parte warrants.” 620 F.2d at

983 (Seitz, C.J., dissenting). We also agree that dropping

2(f) from the 1976 manual only meant that a compliance

officer must first seek the owner’s permission before in-

specting the premises. It did not mean that the use of ex

parte warrants was not contemplated by the 1976 manual.

This is supported by the retention of 2(i) in subparagraph

(8), pertaining to the element of surprise, which repre-

sented a fall-back position in case warrants were required.

Indeed, as stated by Chief Judge Seitz, the Supreme

Court’s .wcta in Barlow’s when “[vJiewed in light of

_ [OSHA’s] litigation strategy . . . makes sense.” Id. at

1984,

Other circuits which have faced this problem have held

that OSHA had the authority to seek ex parte warrants,

but indicate that the 1978 amendment was necessary for

the Secretary to continue to seek them. For example, in

Rockford Drop Forge Co. v. Donovan, 672 F.2d 626 (7th

Cir. 1982), Rockford challenged OSHA’s ex parte inspec-

C-20

tion of its premises, claiming that it had no power to

obtain an ex parte warrant since the 1978 amendment was

invalid due to noncompliance with section 4(b) of the

Administrative Procedure Act. In holding both the war-

rant and the amendment valid, the court stated that the

Secretary “took advantage of the Supreme Court’s sug-

gestion” when it promulgated the 1978 amendment, and

that the 1978 amendment was “approved in advance” by

the Supreme Court. Jd. at 630. Similarly, the Tenth

Circuit in Marshall v. W & W Steel, Inc., 604 F.2d 1322

(10th Cir. 1979), held that since the 1978 amendment was

an interpretative rule, OSHA had the authority to obtain

an ex parte warrant in that case. Jd. at 1325-26.

Although we are of the opinion that it was not neces-

sary for the Secretary to amend regulation 1903.4 in order

to seek ex parte warrants, we do believe that the Secre-

tary’s 1978 action is indicative of the position that he has

taken consistently and merits discussion. While it is un-

fortunate that Congress has provided little guidance in

distinguishing interpretative from substantive rules, the

case law in this circuit looks to whether a rule “changed

existing rights and obligations.” Lewis-Mota v. Secretary

of Labor, 469 F.2d 478, 482 (2d Cir. 1972); Noel v. Chap-

man, 508 F.2d 1023, 1030 (2d Cir.) cert. denied, 423 U.S.

824 (1975) ; Viacom Int'l Inc. v. FCC, 672 F.2d 1034, 1042

(2d Cir. 1982). Only rules that do not change “existing

rights and obligations” are considered interpretative.

In our view, at the time the 1978 amendment was pub-

lished, the Secretary was authorized by statute and regu-

lation to seek the ex parte warrants, and the sole effect

of the 1978 amendment was to dispel the uncertainty

caused by the dicta in Barlow’s. The 1978 amendment was

therefore nothing more than what it purported to be, an

C-21

interpretative rule and statement of policy which had

no substantive effect on the Secretary’s administrative

authority and responsibility under the statute. Nor did

it alter the rights and duties of any person affected by

the OSH Act. This view was expressed by the Ninth Cir-

cuit in Stoddard Lumber Co., Inc. v. Marshall, 627 F.2d

984, 990 (9th Cir. 1980), and by the Western District of

Virginia, which held that the Secretary had always main-

tained the position that “compulsory process” included

ex parte warrants. Matter of Establishment Inspection

of Seaward Int’l. Inc., 510 F.Supp. 314, 317 (W.D. Va.

1980), aff'd mem. sub nom Marshall v. Seaward Int’l Inc.,

644 F.2d 880 (4th Cir. 1981).

It is manifest that the Secretary, despite the perhaps

infelicitous rewording of the manuals, had no intention to

relinquish or renounce the authority to seek ex parte

warrants. These changes were made simply to accommo-

date the procedure of compelling nonconsensual warrant-

less inspections, found unconstitutional in Barlow’s, by

replacing “warrant” with the broader and more inclusive

words, “compulsory process.” Thus, we find that, “com-

pulsory process,” as used by the Secretary in the regula-

tion and in subsequent revisions of the manual, was al-

ways intended to encompass both the seeking of ex parte

warrants, and actions to compel compliance with the non-

consensual warrantless inspections declared unconstitu-

tional in Barlow’s.

Hence, we hold that pursuant to its statutory authority

and regulations, OSHA was authorized to seek ex parte

inspection warrants at the time the STAMFORD was

inspected, and that the ex parte inspection warrants ob-

tained by OSHA in this case were valid.

C-22

Conclusion

In view of the foregoing, it is the holding of the court

that noise is a “working condition,” and, since the Coast

Guard is not exercising jurisdiction over the working con-

ditions of employees aboard uninspected vessels operating

on navigable waters, OSHA may exercise its jurisdiction.

Therefore, that part of the order on appeal which states

that OSHA does not have jurisdiction, is Reversep.

Since we also hold that the ez parte warrants obtained

by OSHA in this case were valid, that part of the order on

appeal which states warranties were valid, is ArrimMep.

The case is Remanvep for further proceedings consis-

tent with this opinion.

APPENDIX D

Title 29 — Labor

§ 1915.74

use of such guards is made impracticable by the work ac-

tually in progress.

(c) When employees are working around open hatches

not protected by coamings to a height of 24 inches or around

other large openings, the edge of the opening shall be

guarded in the working area to height of 36 to 42 inches,

except where the use of such guards is made impracticable

by the work actually in progress.

(d) When employees are exposed to unguarded edges of

decks, platforms, flats, and similar flat surfaces, more than

5 feet above a solid surface, the edges shall be guarded by

adequate guardrails meeting the requirements of § 1915.71

(j) (1) and (2), unless the nature of the work in progress or

the physical conditions prohibit the use or installation of

such guardrails.

(e) When employees are working near the unguarded

edges of decks of vessels afloat, they shall be protected by

personal flotation devices, meeting the requirements of

§ 1915.154(a).

(f) Sections of bilges from which floor plates or gratings

have been removed shall be guarded by guardrails except

where they would interfere with work in progress. If these

open sections are in a walkway at least two 10-inch planks

placed side by side, or equivalent, shall be laid across the

opening to provide a safe walking surface.

(g) Gratings, walkways, and catwalks, from which sec-

tio:1s or ladders have been removed, shall be barricaded

with adequate guardrails.

$1915.74 Access to vessels.

(a) Access to vessels afloat. The employer shall not

permit employees to board or leave any vessel, except a

D-2

barge or river towboat, until the following requirements

have been met:

(1) Whenever practicable, a gangway of not less than 20

inches walking surface of adequate strength, maintained in

safe repair and safely secured shall be used. If a gangway

is not practicable, a substantial straight ladder, extending

at least 36 inches above the upper landing surface and

adequately secured against shifting or slipping shall be

provided. When conditions are such that neither a gangway

nor a straight ladder can be used, a Jacob’s ladder meeting

the requirements of paragraphs (d)(1) and (2) of this sec-

tion may be used.

(2) Each side of such gangway, and the turn table if

used, shall have a railing with a minimum height of ap-

proximately 33 inches measured perpendicularly from rail

to walking surface at the stanchion, with a mild rail. Rails

shall be of wood, pipe, chain, wire or rope and shall be kept

taut at all times.

(3) Gangways on vessels inspected and certificated by

the U.S. Coast Guard are deemed to meet the foregoing

requirements, except in cases where the vessel’s regular

gangway is not being used.

(4) The gangway shall be kept properly trimmed at all

times.

(5) When a fixed tread accommodations ladder is used,

and the angle is low enough to require employees to walk

on the edge of the treads, cleated duckboards shall be laid

over and secured to the ladder.

(6) When the lower end of a gangway overhangs the

water between the ship and the dock in such a manner that

there is a danger of employees falling between the ship and

the dock, a net or other suitable protection shall be rigged

at the foot of the gangway in such a manner as to prevent

employees from falling from the end of the gangway.

D-3

(7) If the foot of the gangway is more than oue foot away

from the edge of the apron, the space between them shall

be bridged by a firm walkway equipped with railings, with a

minimum height of approximately 33 inches with midrails

on both sides.

(8) Supporting bridles shall be kept clear so as to permit

unobstructed passage for employees using the gangway.

(9) When the upper end of the means of access rests on

or flush with the top of the bulwark, substantial steps prop-

erly secured and equipped with at least one substantial

handrail approximately 33 inches in height shall be pro-

vided between the top of the bulwark and the deck.

(10) Obstructions shall not be laid on or across the

gangway.

(11) The means of access shall be adequately illuminated

for its full length.

(12) Unless the construction of the vessel makes it im-

possible, the means of access shall be so located that drafts

of cargo do not pass over it. In any event, loads shall not

be passed over the means of access while employees are on

it.

(b) Access to vessels in drydock or between vessels.

Gangways meeting the requirements of paragraphs (a)

(1), (2), (9), (10), (11) of this section shall be provided

for access from wingwall to vessel or, when two or more

vessels, other than barges or river towboats, are lying

abreast, from one vessel to another.

(c) Access to barges and river towboats. (1) Ramps

for access of vehicles to or between barges shall be of ade-

quate strength, provided with side boards, well maintained

and properly secured.

D4

(2) Unless employees can step safely to or from the

wharf, float, barge, or river towboat, either a ramp in

accordance with the requirements of paragraph (a)(7) of

this section shall be provided. When a walkway is impracti-

cable, a substantial straight ladder, extending at least 36

inches above the upper landing surface and adequately

secured against shifting or slipping, shall be provided.

When conditions are such that neither a walkway nor a

straight ladder can be used, a Jacob’s ladder in accordance

with the requirements of paragraph (d) of this section may

be used.

(3) The means of access shall be in accordance with the

requirements of paragraphs (a) (9), (10), and (11) of this

section.

(d) Jacobs ladders. (1) Jacob’s ladders shall be of the

double rung or flat tread type. They shall be well main-

tained and properly secured.

(2) A Jacob’s Jadder shall either hang without slack from

its lashings or be pulled up entirely.

§ 1915.75 Access to and guarding of dry docks and marine

railways.

The provisions of this section shall apply to ship repair-

ing, shipbuilding and shipbreaking.

(a) A gangway, ramp or permanent stairway of not less

than 20 inches walking surface, of adequate strength, main-

tained in safe repair and securely fastened, shall be pro-

vided between a floating dry dock and the pier or bulkhead.

(b) Each side of such gangway, ramp or permanent

stairway, including those which are used for access to wing

walls from dry dock floors, shall have a railing with a mid

rail. Such railings on gangways or ramps shall be approxi-

mately 42 inches in height; and railings on permanent

stairways shall be not less than approximately 30 or more

D-5

than approximately 34 inches in height. Rails shall be of

wood, pipe, chain, wire, or rope, and shall be kept taut at all

times.

(c) Railings meeting the requirements of paragraph (b)

of this section shall be provided on the means of access to

and from the floors of graving docks.

(d) Railings approximately 42 inches in height, with a

mid rail, shall be provided on the edges of wing walls of

floating dry docks and on edges of graving docks. Sections

of the railings may be temporarily removed where neces-

sary to permit line handling while a vessel is entering or

leaving the dock.

(e) When employees are working on the floor of a float-

ing dry dock where they are exposed to the hazard of falling

into the water, the end of the dry dock shall be equipped

with portable stanchions and 42 inch railings with a mid

rail. When such a railing would be impracticable or ineffec-

tive, other effective means shall be provided to prevent men

from falling into the water.

(f) Access to wing walls from floors of dry docks shall

be by ramps, permanent stairways or ladders meeting the

applicable requirements of § 1915.72.

(g) Catwalks on stiles of marine railways shall be no

less than 20 inches wide and shall have on at least one side

a guardrail and midrail meeting the requirements of

§ 1915.71(j) (1) and (2).

§ 1915.76 Access to cargo spaces and confined spaces.

The provisions of this section apply to ship repairing,

shipbuilding and shipbreaking except that paragraph

(a) (4) of this section applies to ship repairing only.

APPENDIX E

1 JULY 1976 12:1

SECTION XII

CONTRACTOR INDUSTRIAL LABOR RELATIONS

12-000 Scope of Section. This Section (i) deals with gen-

eral policies regarding contractor industrial labor relations,

so far as they relate to Government contracts, (ii) sets forth

certain pertinent labor laws and requirements, indicating in

connection with each its applicability and any procedures

thereunder; and (iii) prescribes the contract clauses with

respect to each labor law or requirement. Labor standards

and clauses which are applicable only to construction con-

tracts are treated separately in Section XVII, Part 7.

12-000

ARMED SERVICES PROCUREMENT REGULATION

1 JULY 1976 12:19

CONTRACTOR INDUSTRIAL LABOR RELATIONS

Part 5— Safety & Health Regulations for Ship Repair-

ing & Shipbuilding

12-501 Safety and Health Regulations. The Secretary of

Labor has promulgated Safety and Health Regulations for

Ship Repairing and Shipbuilding pursuant to the authority

of Public Law 85-742, 72 Stat. 835 (approved August 23,

1958) amending section 41 of the Longshoremen’s and

Harbor Workers’ Compensation Act (33 U.S.C. 941). These

regulations are set forth in Title 29, Code of Federal Regu-

lations, Subtitle B, Part 1501 and Part 1502.

12-502 Applicability. These regulations apply to ship

repair and shipbuilding or related work, as defined therein,

performed within the Federal maritime jurisdiction on the

navigable waters of the United States, including any dry

dock or marine railway.

E-2

12-503 Contract Clause. The Master Contract for the

Repair and Alteration of Vessels (DD ASPR Form 731)

includes a clause entitled “U.S. Department of Labor Safe-

ty and Health Regulations for Ship Repairing” directing

the attention of the contractor to the applicability of these

regulations. Similar clauses should be izciuded in shipbuild-

ing and ship conversion. couiracts.

12-514 Administratiecz and Enforcement. The responsibi-

lity for compliance with the U.S. Department of Labor

Regulations is placed upon employers, any of whose em-

ployees are engaged in any ship repair, shipbuilding, or

related employment aboard any vessel upon the navigable

waters of the United States, including any dry dock or

marine railway. Consequently, prime contractors or sub-

contractors, or both, may be responsible for compliance

with these regulations. Insofar as the Government is con-

cerned, the responsibility for the administration and en-

forcement of these regulations is with the U.S. Department

of Labor. Contractors or employees who inquire concerning

applicability or interpretation of the foregoing regulations

shall be advised that rulings concerning such matters fall

within the jurisdiction of the U.S. Department of Labor and

shall be given the address of the appropriate field office of

the Bureau of Labor Standards of the U.S. Department of

Labor.

12-504

ARMED SERVICES PROCUREMENT REGULATION

APPENDIX F

GENERAL INDUSTRY SAFETY ORDERS

TITLE 8 § 3273

(Register 79, No. 29 — 7-21-79) (p. 432.69)

3273. Working Area.

(a) Permanent floors and platforms shall be free of dan-

gerous projections or obstructions, maintained in good re-

pair, and reasonably free of oil, grease, or water. Where

the type of operation necessitates working on slippery

floors, such surfaces shall be protected against slipping by

using mats, grates, cleats, or other methods which provide

equivalent protection. Where wet processes are used drain-

age shall be maintained and false floors, platforms, mats,

or other dry standing places provided.

(b) Permanent roadways, walkways, and material stor-

age areas in yards shall be maintained free of dangerous

depressions, obstructions, and debris.

(c) Platforms, runways, ramps, or other elevated work-

ing levels, except catwalks, that are 30 inches or more above

the floor, ground, or other working area shall be no less

than 2 feet wide and have no less than 6% feet clear head-

room. In existing installations where an overhead hazard

exists due to clearances of less than 6% feet above ramps,

runways, platforms, or other elevated work areas, such

work area shall be relocated and the obstruction removed.

If these procedures are impracticable, a suitable warning

shall be placed near the obstruction to notify employees of

its presence. Where the nature of the hazard is such that

padding will increase safety, it shall be insta led.

(d) Catwalks shall be no less than 18 inches wide and

have 6144 feet clear headroom. When installed along in-

clined conveyors, crane booms, etc., where because of

structural or load conditions it is unreasonable to comply

with basic ramp standards, catwalks may have a slope

exceeding 18 degrees.

F-2

EXCEPTIONS: (1) When required location dictates, a

catwalk may have less overhead clearance if a warning and

padding are provided as in (c).

(2) In bowling alleys at pin-spotting and pin-setting ma-

chines, catwalks shall be no less than nominal 8 inches wide

and provided with an adequate handrail if the sides are not

protected by another structure.

‘(e) Where the type of process or operation, exclusive of

repair and maintenance, is such that there are hazards to

employees from materials falling through platform or run-

way openings, the openings shall be limited to a size that

prevents materials falling through the openings.

(f) Where platform or runway gratings are used as

work areas during repair or maintenance, there shall be

provided at such areas suitable safeguards to prevent tools

or materials falling on employees below. Such safeguards

may be netting suspended below the work area, canvas,

planking on the surface of the grating, or barricaded or

sheltered areas below the work area.

(g) Where it is necessary to lubricate or adjust prime

movers, machines, or equipment, which extends below the

floor line, sufficient work spaces shall be provided for the

safe performance of the work.

(h) Permanently installed prime movers, machines, and

equipment shall be located and guarded so that transported

material does not strike either the moving parts of ma-

chines or the employees at their operating positions.

(i) Machines or equipment shall be located and guarded

so that the product, waste stock, or material being worked

or processed does not endanger employees.

(j) Where machinery or equipment is installed in a pit

and there are shear hazards between the pit edges and parts

of the machine or equipment, skirt guards shall be installed

to remove such hazards, or such other device used to pro-

vide equivalent protection.

A at

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