Texports Stevedore Co., Inc. v. SECRETARY OF LABOR, US, 73-1620 Summary Calendar.

• Decision Date: 13 November 1973
• Docket Number: No. 73-1620 Summary Calendar.,73-1620 Summary Calendar.
• Citation: 484 F.2d 465
• Parties: TEXPORTS STEVEDORE COMPANY, INC., Petitioner, v. SECRETARY OF LABOR, U. S. DEPARTMENT OF LABOR, and Occupational Safety and Health Review Commission, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

484 F.2d 465 (1973)

TEXPORTS STEVEDORE COMPANY, INC., Petitioner, v. SECRETARY OF LABOR, U. S. DEPARTMENT OF LABOR, and Occupational Safety and Health Review Commission, Respondents.

No. 73-1620 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

September 20, 1973.

Rehearing and Rehearing Denied November 13, 1973.

Neil Martin, Owen W. Cecil, Houston, Tex., for petitioner.

William S. McLaughlin, Executive Sec., Occupational Safety & Health Review Commission, Washington, D. C., Major J. Parmenter, Regional Sol., U. S. Dept. of Labor, Dallas, Tex., Jean A. Staudt, Walter H. Fleischer, Dept. of Justice, Washington, D. C., for respondents.

David H. Burrow, Houston, Tex., for other interested parties.

Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

Rehearing and Rehearing En Banc Denied November 13, 1973.

PER CURIAM:

Texports Stevedore Company, Inc. seeks a review of the Occupational Safety and Health Review Commission's determination that Texports violated the Occupational Safety and Health Act of 1970, 29 U.S.C.A. 651 et seq., by failing to take the necessary precautions to prevent cargo from falling during unloading.

In June, 1971, the cargo barge MBL 880 was tied alongside the vessel SUCRE in the Houston, Texas Ship Channel. The barge was loaded with rectangular bales of pulp wood, consisting of eight bundles banded together, weighing approximately 4,200 pounds. They were stacked in tiers two bales high with open areas of 15 feet in the fore and aft ends of the barge to accommodate a fork lift truck used in the unloading operation.

Texports' stevedoring superintendent made a two minute inspection of the cargo by standing on the deck of the SUCRE and looking down about 12 feet through the hatch of the barge where he could see 12 bales on the top tier. He determined that the bales were not leaning. None of the dunnage was visible to the Superintendent.

Four stevedores began the unloading operation in the after end of the barge. When the bales were being unloaded from the top tier, one of the blades of the fork lift went under the metal band around a bale while the other blade went outside of the band, causing the bale to fall upon and disable the fork lift. No one was hurt at that time.

Mechanic Quinn, who was called to repair the fork lift, climbed down into the barge and while he was engaged in the repair work, a bale from the upper tier fell down and severely injured him. Tug boats had passed by in the channel and may have rocked the barge during the unloading process. After the stevedores had left the after end of the barge, another bale fell from the top tier.

Inspections by OSHA officials following the accident disclosed that the bales of cargo were leaning and were not interlocked. Moreover, the dunnage was short and no dunnage had been used to stabilize the top layer.

Texports was cited by the Secretary of Labor for a serious violation of the Act for failing to comply with the provisions of 29 C.F.R. 1918.83(b) which required it to take sufficient precautions when necessary to prevent the...