Builders and Contractors Exchange
Weekly Bulletin: 30 Aug 2004
Investigating and Reporting Accidents on Floating Equipment
By: Katharina Brekke Powers
Many contractors in the Hampton Roads area work on the water or on the waterfront and own or use work barges, crane platforms, small boats, and other types of floating equipment. Usually, these are classified as "uninspected vessels" by the Coast Guard. One issue that may come up when there is an accident aboard one of these "uninspected vessels" is who has jurisdiction to investigate the accident and to what agencies must the contractor report the accident. This issue was addressed in 2002 by the Supreme Court when it decided that both the Coast Guard and the Occupational Safety and Health Administration ("OSHA") had jurisdiction over a workplace accident and fatality occurring on an uninspected vessel (drilling barge).
In short, the Supreme Court held that: (1) general marine safety regulations issued by the Coast Guard did not preempt OSHA's jurisdiction over working conditions on an uninspected vessel conducting inland drilling operations, where the Coast Guard regulations did not address the occupational safety and health risks specifically posed by inland drilling operations on uninspected vessels; and (2) the oil and gas exploration barge which was anchored in state territorial waters was a "workplace" for purposes of OSHA jurisdiction. Chao v Mallard Bay Drilling, Inc., 534 U.S. 235, 122 S.Ct. 738, 151 L.Ed. 2d 659 (2002).
The incident in question involved an explosion upon a drilling barge ("Rig 52") which killed or injured several workers. The incident qualified under United States Coast Guard regulations, as a "marine casualty" because it involved a commercial vessel operating "upon the navigable waters of the United States." 46 CFR § 4.03-1 (2000). The report issued by the Coast Guard made factual findings concerning the crew's actions, however, since the barge was regarded as an uninspected vessel, no Coast Guard regulations were violated.
However, based largely on information obtained from the Coast Guard concerning this incident, the OSHA cited the owner of the drilling barge for three violations of the Occupational Safety and Health Act of 1970 (OSH Act or Act), 84 Stat. 1590, as amended, 29 U.S.C. § 651 et seq. (1994 ed. and Supp. V), and the Act's implementing regulations. The citations alleged that the owner of the drilling barge "failed promptly to evacuate employees on board the drilling rig; failed to develop and implement an emergency response plan to handle anticipated emergencies; and failed to train employees in emergency response." No. 97-1973, 1998 WL 917067, * (OSHRC, Dec. 28, 1998).
The owner of the drilling barge attempted to challenge OSHA's jurisdiction, arguing that Rig 52 could not be regarded as a "workplace" under the Act, and that the Coast Guard had exclusive authority to prescribe and enforce occupational safety and health standards on vessels like Rig 52. However, the Supreme Court found not only that the drilling barge was a workplace under the Act, but also that the Coast Guard did not have exclusive jurisdiction since it had not exercised its statutory authority to prescribe or enforce occupational safety and health standards or regulations. Thus, OSHA has authority to regulate safety on uninspected vessels - those not subject to comprehensive Coast Guard regulation. Until such time that the Coast Guard exercises its statutory authority to prescribe or enforce occupational safety and health standards or regulations, these violations must be reported to OSHA. Owners of floating equipment should be cognizable of this issue when reporting work place accidents aboard uninspected vessels, and if in doubt report the incident to both the Coast Guard and the OSHA.
Questions?
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This article is meant to bring awareness to this topic and is not intended to be used as legal advice.