Occupational Safety Afloat

In January, 2002, the U.S. Supreme Court in Chao v. Mallard Bay Drilling Co., ruled that the Occupational Safety and Health Administration (OSHA), has regulatory authority over uninspected vessels. This caused alarm in the maritime community, but it was not really that big a change. The decision mainly confirmed the understanding that has been in place between OSHA and the Coast Guard since 1983. The Coast Guard regulates safety and working conditions on the boats that it inspects: OSHA regulates workplace safety elsewhere, including vessels. The decision does not preclude the Coast Guard from continuing to work with uninspected vessels, such as its voluntary dockside examinations. It does mean, however, that if there is a serious accident or injury onboard, there may well be an investigation by both the Coast Guard and an OSHA field representative. In the future, it may also mean that OSHA drafts specific regulations concerning safety on the water.

The bottom line is that OSHA applies if the Coast Guard does not inspect. If it is a USCG inspected vessel, then OSHA does not have jurisdiction. The Coast Guard inspects nautical school vessels, offshore supply vessels, sailing school vessels, seagoing barges, seagoing motor vessels, steam vessels, tank vessels, fish processing vessels, fish tender vessels, Great Lakes barges, oil spill vessels, and some passenger vessels. The Coast Guard does not inspect six packs (less than 100 gross tons, with 6 or fewer passengers for hire, whether or not crewed or chartered) and twelve packs (greater than or equal to 100 gross tons, with 12 or fewer passengers for hire, whether or not crewed or chartered).

For all employers, including uninspected passenger vessels, OSHA requires that the employer provide employment that is "free from recognized hazards that are causing or likely to cause, death or serious physical harm to his employees." To date, OSHA has not issued regulations that apply specifically to uninspected vessels. There are regulations concerning vessels that arise in marine terminals. For instance, since boarding a floating vessel is a known hazard, OSHA requires that safe access using approved boarding devices. Those regulations require an adequate gangway, 33-inch-high hand rails, and proper illumination. The regulations prohibit suspended loads from passing over the gangway and require employers to address slippery work areas. In the event of an OSHA investigation, violations of these regulations might well be cited in for an uninspected vessel - in most instances, however, they will not truly apply.

Ultimately, if there was a serious injury aboard your boat, you want to be able to say to the Coast Guard, OSHA investigator or the jury, that there was no reasonable way to have expected or prevented the injury. It was not, as the OSHA guideline says, "a recognized hazard." In a lawsuit, this means that the injury was not "foreseeable." It is a good idea to take advantage of the Coast Guard's voluntary inspections and to repair or replace hazardous equipment. If, despite you're your precautions, someone gets seriously injured, contact your insurer and get a good lawyer. Even if the injury cannot be prevented, unnecessary liability probably can.