Melerine v. Avondale Shipyards, Inc.

Decision Date23 October 1981
Docket NumberNo. 80-3379,80-3379
Citation659 F.2d 706
Parties10 O.S.H. Cas.(BNA) 1075, 1981 O.S.H.D. (CCH) P 25,735 Anthony J. MELERINE, Jr., Plaintiff-Appellant, Continental Insurance Company, Intervenor-Appellant, v. AVONDALE SHIPYARDS, INC., Defendant-Appellee. . Unit A *
CourtU.S. Court of Appeals — Fifth Circuit

Samuel S. Dalton, Jefferson, La., Jack Peebles, Metairie, La., for melerine.

Tyler S. Posey, Emery Voorhies, New Orleans, La., for Continental.

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Robert M. Contois, Jr., New Orleans, La., for defendant-appellee.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before RUBIN, RANDALL and TATE, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

In a negligence action, regulations promulgated under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (1976) ("OSHA"), provide evidence of the standard of care exacted of employers, but they neither create an implied cause of action nor establish negligence per se. While they are evidence of a general standard of care due employees, they establish no standard of care due third persons. Therefore, in this negligence action, we reject the argument that the failure of a third party that was not the plaintiff's employer to follow OSHA regulations establishes that third party's negligence. Because we accept the trial judge's conclusions based on the other claims of negligence and because there are no other factual disputes, we affirm the judgment denying recovery.

The trial judge found these facts. Mission Viking ("MV") owned a cargo ship. It contracted with Avondale Shipyards to do part of the work necessary to convert the ship so that it could be used in drilling oil wells. It engaged other contractors to do other parts of the necessary work. Thus, it contracted directly with Technical Sea Services to outfit the vessel.

The ship's equipment included pedestal cranes. As part of its service to MV, Avondale furnished a qualified crane operator to make lifts for all work crews participating in the conversion whether employed by Avondale or by one of the other contractors that had contracted directly with MV. The established procedure was for the contractor who needed a lift to provide workers to hook the load and to direct its movement by signaling the crane operator.

Anthony Melerine, Jr., was employed by Technical as a welder and fitter. As part of Technical's work, it was necessary to move a heavy mooring bitt from one side of the ship to the other. Melerine's foreman, Ronald Macalusa, directed him to help Macalusa in moving the bitt. Macalusa asked the Avondale crane operator, Louis Easter, to lift and move the bitt with the crane. From Easter's station as crane operator, he could not see the bitt, so Melerine acted as signalman.

After Easter raised the crane boom, Melerine and Macalusa hooked the lifting line to the bitt, and Easter took up the slack on the line. Melerine and Macalusa then realized that, as the lifting line traveled across the ship while carrying the bitt, it would approach a scaffold that had been erected on the deck. Melerine then signaled Easter, the crane operator, to stop the lift, and Easter complied. On Macalusa's instructions, Melerine climbed the scaffold to guide the line away from it, if necessary, after the lift was resumed. Melerine then took a position in clear view of Easter, almost directly in front of him. Easter then, on Melerine's signal, began the lift.

Once the load was raised off the deck, Easter had a full view of it, except for a short time when it passed behind some boards. While the load was passing behind these boards, it caught on something. Melerine again signaled Easter to stop, and Easter did. Still standing on the scaffold, Melerine grasped the line and tried to pull the load free. When he succeeded in doing so, the line quivered and struck the scaffold, causing Melerine to fall backward and injure his back. Melerine sued Avondale for negligence.

Because Melerine was not a seaman but a ship repairman, 33 U.S.C. § 905(b), and because Avondale was neither the shipowner nor the employer of Melerine, the action is grounded on general maritime law; and the duty owed by Avondale to Melerine is the usual negligence duty of reasonable care under the circumstances. See 1 M. Norris, The Law of Maritime Personal Injuries § 2, at 4-5 (3d ed. 1975); id. § 63, at 117-18. 1

Melerine contends that Avondale, through its employee, Easter, was negligent both in law and in fact. He bases his negligence in law argument on Easter's alleged violation of the following: (1) an OSHA regulation requiring that a tag line 2 be used in moving a load likely to require guidance, 29 C.F.R. § 1915.66(c) (1980); 3 (2) an OSHA regulation requiring the use of a qualified signalman in moving a load when the hoist operator cannot see the load, id. § 1915.66(k); 4 and (3) a professional organization's standard for crane operations, American National Standards Institute ("ANSI") Safety Standards for Cranes, Derricks, Hoists, Hooks, Jacks, and Slings (Standard B30.4) § 5-3.1.3(d) (1973). 5 He argues that Easter's alleged violation of these OSHA regulations and the ANSI standard constituted negligence per se.

Melerine bases his negligence in fact argument on two grounds. The first is that Easter was negligent in failing to use his "knowledge, authority, and responsibility" to prevent or prohibit what Melerine contends was an "inherently unsafe" lifting operation. The second, related to but more specific than the first, is that Easter's alleged violation of the OSHA regulations and ANSI standard, even if insufficient to establish that Easter was negligent per se, nevertheless is evidence that Easter was negligent.

The trial judge did not evaluate these contentions separately. However, in that part of his judgment labeled "Conclusions of Law," he found: "(a)t all pertinent times (Easter) acted in a prudent and reasonable manner"; "(t)here was no negligence on the part of any Avondale employee or any other person for whom Avondale can be held legally responsible"; and "(t)he sole proximate cause of the accident was the action of the foreman, Macalusa, in directing Melerine to guide the crane line around the platform by using his hands, instead of using a tagline." We first discuss Melerine's contention that the trial judge was in error because Easter violated the OSHA regulations and ANSI standard and that this alleged violation constituted negligence per se.

OSHA was adopted "to assure ... safe and healthful working conditions." 29 U.S.C. § 651(b). The Secretary of Labor enforces its requirements by citations for violations of the safety and health standards promulgated by him under the Act's authority and by assessing fines for these violations. The Occupational Safety and Health Review Commission ("OSHRC") reviews challenges to these enforcement actions. 6 The Act was designed to achieve compliance through these prescribed compliance procedures. B & B Insulation, Inc. v. OSHRC, 583 F.2d 1364, 1371 (5th Cir. 1978). It provides, therefore, that it neither enlarges nor diminishes "common law or statutory rights, duties, or liabilities." 29 U.S.C. § 653(b)(4). This means that neither its express provisions nor the regulations adopted pursuant to its authority create a civil cause of action against either a plaintiff's employer or a third party who is not the plaintiff's employer. Barrera v. E.I. duPont de Nemours & Co., 653 F.2d 915, 920 (5th Cir. 1981); Jeter v. St. Regis Paper Co., 507 F.2d 973, 976-77 (5th Cir. 1975) (collecting and discussing cases), noted in B & B Insulation, Inc. v. OSHRC, 583 F.2d at 1371 n.11. 7

Melerine does not, therefore, contend that the OSHA regulations create a civil cause of action against Avondale. He urges instead that their violation establishes Avondale's negligence per se in a cause of action given him by general maritime law. See Lowe v. General Motors Corp., 624 F.2d 1373, 1379-81 (5th Cir. 1980). 8 To establish that a defendant's violation of a statute or regulation is negligence per se, a plaintiff must prove "th(e) violation of a statute which is intended to protect the class of persons to which the plaintiff belongs against the risk of the type of harm which has in fact occurred." Marshall v Isthmian Lines, Inc., 334 F.2d 131, 134 (5th Cir. 1964). 9 If the plaintiff thus establishes the defendant's negligence, he must then prove that the violation of the statute or regulation was the proximate cause of his harm. E.g., Arthur v. Flota Mercante, 487 F.2d 561, 564 (5th Cir. 1973); Canterbury v. Spence, 464 F.2d 772, 790 & n.100 (D.C. Cir.) (collecting cases), cert. denied, 409 U.S. 1064, 98 S.Ct. 560, 34 L.Ed.2d 518 (1972); W. Prosser, supra note 9, § 36, at 200-01. The threshold issue, therefore, is whether Melerine was a member of the class that the OSHA regulations were intended to protect. To resolve this issue we must look at the basis for these regulations.

OSHA authorizes the Secretary of Labor to promulgate health and safety regulations for employees of employers "engaged in a business affecting commerce." 29 U.S.C. § 655. Under another statute, the Longshoremen's and Harbor Workers' Compensation Act ("LHWCA"), the Secretary of Labor is empowered to promulgate health and safety regulations to protect specified maritime employees. 33 U.S.C. § 941(a). The two OSHA regulations at issue in this case were originally promulgated under the authority of the LHWCA and were later adopted by the Secretary of Labor as OSHA regulations pursuant to 29 U.S.C. § 655(a). See Dravo Corp. v. OSHRC, 613 F.2d at 1229-30; Brown & Root, Inc., 9 Occ. Safety & Health Cas. (BNA) 1407, 1408-09 (Rev. Comm'n 1981); 29 C.F.R. §§ 1910.1, .11, .13. But the Secretary adopted only the substantive safety and health provisions of the LHWCA regulations: he did not adopt that portion stating the scope of their coverage. 10...

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