REVISED - June 12, 2000
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
MALLARD BAY DRILLING, INC.,
ALEXIS HERMAN, SECRETARY OF LABOR, UNITED
STATES DEPARTMENT OF LABOR,
Appeal from the Occupational Safety and
Health Review Commission
June 2, 2000
Before POLITZ and DAVIS, Circuit Judges, and
W. EUGENE DAVIS, Circuit Judge:
Mallard Bay Drilling, Inc. ("Mallard") appeals
the order of the Occupational Safety and Health Review Commission affirming
a citation issued against it by the Occupational Safety and Health Administration
("OSHA"). The order affirmed the decision of the Administrative Law Judge,
which found that Mallard's drilling barge -- the MR. BELDON -- was a "workplace"
within the meaning of the Occupational Safety and Health Act ("OSH Act")(2)
and that OSHA's jurisdiction was not preempted by the Coast Guard's regulatory
authority over vessels. For the reasons that follow, we reverse.
On June 16, 1997, four Mallard employees were
killed and two others seriously injured in an explosion on the MR. BELDON,
a Mallard drilling barge. On that date, the MR. BELDON was drilling an
oil well on Little Bayou Pigeon, a navigable waterway within the territorial
waters of Louisiana. The explosion occurred while crew members tried to
regain control of the well after a blow out. The Coast Guard took the lead
role in investigating the explosion. Based on the information collected
by the Coast Guard, OSHA issued a citation against Mallard charging three
violations of the OSH Act. Mallard did not challenge the merits of the
allegations; rather, it asserted that OSHA lacked authority to regulate
working conditions aboard the MR. BELDON. It also argued that the MR. BELDON
was not a "workplace" within the meaning of Section 4(a) of the OSH Act.(3)
The ALJ affirmed the citation, finding that
the MR. BELDON was a "workplace," that Mallard's employees were not seamen,
and that OSHA's jurisdiction was not preempted by the Coast Guard's regulatory
authority over vessels. Mallard then filed a Petition for Discretionary
Review with the Occupational Safety and Health Review Commission, which
was denied. Mallard now appeals.
Mallard contends that the United States Coast
Guard has exclusive jurisdiction over the regulation of working conditions
of seamen aboard vessels such as the MR. BELDON, thus precluding OSHA's
regulation under Section 4(b)(1) of the OSH Act.(4)
As our discussion below demonstrates, precedents from this Court compel
us to agree.
By its own terms, the OSH Act does not 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."(5)
Under 14 U.S.C. § 2, the Coast Guard
"shall administer laws and promulgate and enforce regulations for the promotion
of safety of life and property on and under the high seas and waters subject
to the jurisdiction of the United States covering all matters not specifically
delegated by law to some other executive department...."
It is uncontested that the Coast Guard had
jurisdiction to investigate the marine casualty in this case, pursuant
to 46 U.S.C. § 6301. The dispute concerns whether
the Coast Guard's jurisdiction is exclusive. Our case law is controlling
on this point. Pursuant to the statutory grant of authority recited above,
the Coast Guard has exclusive authority over the working conditions of
seamen. See Clary v. Ocean Drilling and Exploration Co.,
609 F.2d 1120 (5th Cir. 1980); Donovan v. Texaco, Inc.,
720 F.2d 825 (5th Cir. 1983). "OSHA regulations do not apply
to working conditions of seamen on vessels in navigation."
720 F.2d at 826, 827 (emphasis added); see alsoClary, 609 F.2d at
As in Clary, the "vessel" in this case
is a drilling barge. The employees working on the MR. BELDON are "seamen"
under our case law. See Colomb v. Texaco, Inc., 736
F.2d 218 (5th Cir. 1984);
Producers Drilling Co. v. Gray,
361 F.2d 432 (5th Cir. 1966). The safety procedures at issue
in this case relate to "working conditions" of seamen.
In Clary, the plaintiff seaman brought
suit for injuries sustained aboard a drilling barge on which he was working.
609 F.2d at 1121. He alleged that OSHA regulations were violated because
the steel plate welded to the deck (which he tripped over) was not color
coded yellow so as to make it more visible. Id. This Court ruled
that the district court was correct in refusing to allow the plaintiff
to introduce the OSHA regulations into evidence because "OSHA regulations
... do not apply to working conditions of seamen on vessels in navigation...."
at 1122. We reasoned that the Coast Guard was the federal agency with statutory
authority over the working conditions of seamen, and that its regulations
included standards governing the safety and health of persons working on
vessels. Id. Because Clary is indistinguishable from the
case at bar, its holding controls our decision.
Respondent attempts to distinguish Clary
by arguing that this Court, in ruling that OSHA lacked authority to regulate
the working conditions of seamen, did not specifically consider whether
its holding applied equally to uninspected and inspected vessels. Thus,
respondent argues that Clary does not bind our decision as to the
uninspected vessel at issue in today's case.
The vessel in Clary was a drilling
barge -- the same type of vessel at issue in this case -- and there is
no indication from Clary that the barge in that case was inspected.
Further, the broad language of Clary does not turn on any such distinction.(6)
Furthermore, the Coast Guard is no stranger
to uninspected vessels. It is expressly authorized to issue safety regulations
for uninspected vessels for: (1) the number, type and size of fire extinguishers;
(2) the type and number of life preservers; (3) flame arrestors, backfire
traps; (4) ventilation of engine and fuel tank compartments; and (5) the
number and types of alerting and locating equipment for vessels on the
high seas. 46 U.S.C. § 4102. Further, the Coast Guard has issued a
number of safety regulations for uninspected vessels, including those related
to: life preservers and other lifesaving equipment; emergency alerting
and locating equipment; fire extinguishing equipment; backfire flame control;
ventilation of tanks and engine spaces; cooking, heating, and lighting
systems; safety orientation and emergency instructions; action required
after an accident; and signaling lights. See 46 C.F.R. §§
25.01 et seq; 46 C.F.R. §§ 26.01 et seq. Thus,
the Coast Guard has authority to issue safety regulations for uninspected
vessels, as well as inspected vessels, and it has in fact exercised this
authority.(7) The fact that the MR. BELDON
is an uninspected vessel is therefore no basis upon which to distinguish
In Donovan, this Court revisited the
applicability of OSHA regulations to the working conditions of seamen.
720 F.2d 825. Although Donovan's facts are distinguishable from
the facts of this case, we made it perfectly clear that we were reaffirming
the principles we laid down in Clary. We stated that "[i]t is the
law of this circuit that OSHA regulations do not apply to working conditions
of seamen on vessels in navigation ...." Id. at 826. "Nothing in
OSHA shall apply to working conditions of seamen on vessels." Id.
at 827. "[T]he Coast Guard's comprehensive regulation and supervision of
seamen's working conditions [creates] an industry-wide exemption [from
OSHA] for seamen serving on vessels operating on navigable waters." Id.
We gave a number of reasons in Donovan
for our conclusion that the Coast Guard's jurisdiction is exclusive in
this area: "Section 4(b)(1) evidences a general Congressional intent to
forbid overlapping regulation of working conditions in any given
industry by multiple federal agencies. Such redundant control programs
offer little except confusion, governmental proliferation, and stultification
of enterprise." Donovan, 720 F.2d at 827. We explained that overlapping
regulation "might well produce [the] ... anomaly ... of steaming in and
out of OSHA coverage." Donovan, 720 F.2d at 829. "[A] single, uniform
set of rules should govern the maritime workplace. Because of OSHA's geographic
limitations ... this cannot be those of OSHA ....[thus] we conclude that
it must be those of the Coast Guard." Donovan, 720 F.2d at 829.
Because OSHA has no jurisdiction in this matter,
we need not address Mallard's contention that the MR. BELDON was not a
"workplace" within the meaning of Section 4(a) of the OSH Act.(8)
For the reasons stated above, we hold that
OSHA lacked authority to regulate the working conditions of the employees
aboard the MR. BELDON; rather, such authority rests solely with the United
States Coast Guard. Our precedents are clear on this point and admit of
no exception for this case. Thus, the citation OSHA issued against Mallard
is VACATED, and the order of the Occupational Safety and Health Review
Commission is REVERSED and judgment is RENDERED in favor of Mallard.
1. The Honorable
Jane A. Restani, Judge, U.S. Court of International Trade, sitting by designation.
2. 29 U.S.C.
§ 651 et seq.
3. 29 U.S.C.
4. 29 U.S.C.
5. 29 U.S.C.
6. The additional
finding in Clary that the OSHA regulations cited by the plaintiff
did not apply to a special purpose vessel does not supplant Clary's
holding that the OSH Act "does not apply to the working conditions of seamen
on vessels operating on the high seas," which Clary described as
the "one significant decision" made therein. 609 F.2d at 1121, 1122.
a drilling barge is not self-propelled, some of these regulations, by their
nature, do not apply to the MR. BELDON. However, this does not change the
fact that the Coast Guard has exercised its authority to issue safety regulations
for uninspected, as well as inspected, vessels.
Section 4(a), the OSH Act applies "with respect to employment performed
in a workplace in a State." 29 U.S.C. § 653(a).