Clary v. Ocean Drilling and Exploration Co.

• Decision Date: 15 January 1980
• Docket Number: No. 77-1984,77-1984
• Citation: 609 F.2d 1120
• Parties: 7 O.S.H. Cas.(BNA) 2209, 1980 O.S.H.D. (CCH) P 24,227 James T. CLARY, Plaintiff-Appellant, v. OCEAN DRILLING AND EXPLORATION CO., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1120

609 F.2d 1120

7 O.S.H. Cas.(BNA) 2209, 1980 O.S.H.D. (CCH) P 24,227

James T. CLARY, Plaintiff-Appellant, v. OCEAN DRILLING AND EXPLORATION CO., Defendant-Appellee.

No. 77-1984.

United States Court of Appeals, Fifth Circuit.

Jan. 15, 1980.

Jarrell E. Godfrey, Jr., New Orleans, La., John Sturgeon, Ferriday, La., for plaintiff-appellant.

James E. Diaz, Lafayette, La., for defendant-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before COLEMAN, Chief Judge, RONEY and FAY, Circuit Judges.

RONEY, Circuit Judge:

The plaintiff seaman in this case lost a jury verdict. His appeal asserts as error several trial court rulings against the admission of certain testimony and other evidence. In affirming the judgment which was grounded on a jury finding of no negligence and no unseaworthiness, we make one significant decision. We hold that the Occupational Safety and Health Act (OSHA), 29 U.S.C.A. § 651 Et seq., does not apply to the working conditions of seamen on vessels operating on the high seas.

James T. Clary, a roustabout on a submersible drilling vessel, suffered knee injuries when he tripped over a retaining wall on the rig. Stipulated by the parties to be a seaman, Clary sought recovery under the Jones Act and under the general maritime law.

Asserting negligence and unseaworthiness, Clary alleged that it was a violation of OSHA regulations not to have the eight inch high one-fourth inch steel plate, which was welded to the deck and which he tripped over, color coded yellow so as to make it more visible. The trial court, however, refused to allow plaintiff to introduce into evidence the OSHA regulations pertaining to lighting, housekeeping, and color coding of stumbling hazards. The court correctly ruled on sound reasoning that OSHA regulations do not apply to vessels in navigation. Clary v. Ocean Drilling & Exploration Co., 429 F.Supp. 905 (W.D.La.1977).

The OSHA regulations proffered into evidence by plaintiff do not apply to working conditions of seamen on vessels in navigation for three reasons. First, the Act itself provides that

Nothing in this chapter shall apply to working conditions of employees with respect to which other Federal agencies . . . exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.

29 U.S.C.A. § 653(b)(1). The Coast Guard is a federal agency exercising statutory authority over the working conditions of seamen. Coast Guard regulations cover, among other things, standards governing the safety and health of persons working on vessels. 46 C.F.R. §§ 1.01-196.85 (1978). Plaintiff argues, however, that at the time of the mishap the Coast Guard had only issued a notice of a proposed rulemaking to regulate working conditions on vessels located on the outer shelf, and this notice alone did not constitute an "exercise of jurisdiction" sufficient to preempt application of OSHA regulations to such vessels. Southern Pacific Transportation Co. v. Usery, 539 F.2d 386 (5th Cir. 1976), Cert. denied, 434 U.S. 874, 98 S.Ct. 221, 222, 54 L.Ed.2d 154 (1977); Southern Railway Co. v. OSHRC, 539 F.2d 335 (4th Cir.), Cert. denied, 429 U.S. 999, 97 S.Ct. 525, 50 L.Ed.2d 609 (1976); Baltimore & Ohio Railroad v. OSHRC, 179 U.S.App.D.C. 97, 548 F.2d 1052 (D.C. Cir. 1976). The district court correctly observed that the notice, 40 Fed. Reg. 33681 (1975), merely specified the Coast Guard's intention to adopt Marine Occupational Safety and Health Standards for offshore mobile drilling units and would thus only amend those regulations already promulgated by the Coast Guard relating to safety standards on vessels. See Clary v. Ocean Drilling & Exploration Co., 429 F.Supp. at 909.

Second, the Occupational Safety and Health Review Commission has consistently taken the view that the Coast Guard has jurisdiction over the safety and health of seamen, and thus has disclaimed an intention to promulgate standards applicable to seamen. Ruling that OSHA regulations "apply only to longshoremen and not to crews of vessels, Jones Act seamen," the court in National Marine Service, Inc. v. Gulf Oil Co., 433 F.Supp. 913, 919 (E.D.La.1977), observed:

The Occupational Safety & Health Review Commission has consistently recognized that the Coast Guard retains authority, to the exclusion of OSHA, to regulate the safe working conditions of "seamen", as distinguished from "longshoremen". See Prudential Lines, 1975, OSHRC Docket No. 10820, 3 BNA OSHC 1532; T. Smith & Son, 1974, OSHRC Docket No. 2240, 2 BNA OSHC 1177. See also, Transamerican Trailer Transport, 1974, OSHRC Docket No. 4786, 2 BNA OSHC 3007; California Stevedoring & Ballast Company, 1974, OSHRC Docket No. 1132, 1 BNA OSHC 1757.

In Secretary of Labor v. Prudential Lines, Inc., 3 BNA OSHC 1532, 1533 (1975), the Review Commission held that seamen were subject only to the authority of the United States Coast Guard and rejected the Secretary of Labor's attempt to assert OSHA jurisdiction over seamen.

Third, the regulations proffered by Clary do not appear to apply to a special purpose drilling vessel in navigation in the Gulf of Mexico. The regulations pertain to construction work, 29 C.F.R. §§ 1926.10, 1926.25, 1926.26, 1926.56, 1926.605; shipbreaking, 29 C.F.R. § 1910.15; ship repairing, 29 C.F.R. §§ 1915.1, 1915.51(a); and shipbuilding, 29 C.F.R. §§ 1916.1...