UNITED STATES COURT OF APPEALS
For the Fifth Circuit
ELAINE CHAO, SECRETARY OF LABOR, U.S. DEPARTMENT
TRANSOCEAN OFFSHORE, INC.,
Appeal from the United States District Court
For the Southern District of Mississippi
January 9, 2002
Before KING, Chief Judge, DAVIS, Circuit Judge,
and VANCE(1),District Judge.
W. EUGENE DAVIS:
Defendant-Appellant, Transocean Offshore,
Inc.(Transocean), owner of the M/V DISCOVERER ENTERPRISE, appeals from
a judgment of civil contempt and award of attorneys fees and costs to the
Secretary of Labor. The judgment resulted from Transocean's refusal to
honor a warrant obtained by the Occupational Safety and Health Administration
(OSHA) to inspect the work areas of Ingalls Shipbuilding, Inc.'s (Ingalls)
employees who were working aboard Transocean's vessel at Ingalls' drydock.
The issue we must decide is whether OSHA had jurisdiction to inspect the
decks of the M/V DISCOVERER ENTERPRISE, an "inspected vessel" and subject
to inspection by the United States Coast Guard. The cases Transocean relies
upon hold that OSHA regulations do not apply to permit OSHA to inspect
vessels to evaluate working conditions of seamen on those vessels. However,
those cases are distinguishable from today's case because here OSHA was
inspecting the workplace of shipyard workers as authorized by statute and
its regulations. We therefore affirm the judgment of the district court.
On February 23, 1999, OSHA inspectors appeared
at the shipyard of Ingalls in Pascagoula, Mississippi to inspect the work
areas of Ingalls' employees. Shipyard employees engaged in ship repair
and renovation work typically perform their work aboard vessels owned by
parties other than their employer. The OSHA inspectors planned to inspect
the workplace of the Ingalls ship repair personnel aboard vessels in the
Ingalls' drydock. On March 9, 1999, when the inspectors began to inspect
the area where the M/V DISCOVERER ENTERPRISE was in dry dock, the vessel's
owner, Transocean, refused to authorize OSHA personnel to board its vessel.
In April 1999, the district court granted
the Secretary of the Department of Labor's (the Secretary) application
for an Administrative Inspection Warrant to inspect the vessel. Transocean
moved to quash the warrant arguing that OSHA had no jurisdiction over the
vessel. The district court denied the Motion to Quash. On April 30, 1999,
OSHA inspectors sought to execute the warrant which directed them to inspect
Ingalls' workplace aboard the M/V DISCOVERER ENTERPRISE and Transocean
refused to honor the warrant.
Over a year later the district court issued
an order finding Transocean in civil contempt and directed the Secretary
to submit documentation supporting an award of attorneys fees and costs.
Before that award was rendered, Transocean filed a Notice of Appeal from
the Order of Civil Contempt. This court remanded the case to the district
court to determine sanctions and attorneys fees. On remand the district
court determined that the Secretary's affidavits supported the requested
award of $2,339.74 for costs and fees and it rendered judgment in that
amount. Pursuant to our remand order, the record from the district court
was transmitted to this court for review.
The only significant issue in this appeal
is whether OSHA had jurisdiction to board the M/V DISCOVERER ENTERPRISE,
as the warrant dictated, to inspect the workplace of Ingalls' employees.
Transocean relies on a number of cases from
this circuit holding that the Coast Guard has exclusive jurisdiction to
regulate the working conditions of seamen aboard vessels and OSHA has no
jurisdiction to inspect or regulate those conditions. 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); Mallard Bay Drilling,
Inc. v. Herman, 212 F.3d 898 (5th Cir. 2000), writ granted,
121 S.Ct. 1075 (2001).
In Clary, the plaintiff seaman sued
for injuries he received aboard a drilling barge on which he was working.
He alleged violations of OSHA regulations in that a steel plate welded
to the deck was not color coded, as required by OSHA regulations. This
court affirmed the district court's refusal to permit the plaintiff to
introduce the OSHA regulations into evidence because "OSHA regulations
do not apply to working conditions of seamen on vessel in navigation."
609 F.2d 1121. We reasoned that the Coast Guard was a federal agency with
authority over the working conditions of seamen. Id. at 1122.
In Mallard Bay, Mallard appealed the
order of OSHA affirming a citation issued against it for violating OSHA
regulations. The violation arose out of an explosion which occurred aboard
a drilling barge while the crew was trying to regain control of the well
after a blowout. We vacated the citation and reversed. Consistent with
Clary, we held that OSHA regulations do not apply to working conditions
of seamen on a vessel in navigation and that OSHA therefore had no jurisdiction
to issue the citation against the vessel owner. 211 F.3d at 900-01.
After a careful review of the above cases
we are satisfied that they do not control today's case. First, the warrant
did not direct OSHA to inspect the workplace of seamen; rather it directed
OSHA to inspect the workplace of shipyard employees aboard the M/V DISCOVERER
ENTERPRISE. Second, OSHA's jurisdiction to adopt safety regulations for
ship building and ship repair employees is uncontradicted. Congress expressly
authorized such regulations, See 33 U.S.C. § 941.
Third, we agree with the Fourth Circuit's
reasoning in upholding OSHA'S authority to investigate working conditions
of ship repairmen on a vessel.
[W]here differing workforces occupy a single
space at separate times, and where each workforce is clearly regulated
in its "natural" environment by a separate regulatory body, OSHA's regulatory
power is not displaced as to the workers who otherwise fall within its
ambit. Thus, as Taylor indicates, it is not inconsistent to find
that Coast Guard regulations govern seamen in the course of their duties
on ship while also finding that OSHA regulations control standards relating
to the working environments of longshoremen while they are engaged in their
assigned duties within the body of the ship.
Reich v. Muth, 34 F.3d 240, 244 (4th
Transocean also argues that because its own
equipment aboard the vessel - along with Ingalls' equipment - was subject
to inspection, it was justified in dishonoring the warrant because of its
concern that OSHA would use the inspection to issue citations to Transocean.
We agree with the district court that individuals cannot violate court
orders because they are concerned about what an investigation may disclose.
A warrant is valid if it is supported by probable cause and it describes
the area to be searched with reasonable particularity. See Marshall
v. Barlow's, Inc., 436 U.S. 307, 320-323(1978). Because OSHA had jurisdiction
to exert enforcement authority over the workplace of Ingalls' employees,
the merits of any charges that might be brought based on the inspection
are not proper subjects of litigation in a challenge to the warrant. Marshall
v. Burlington Northern, Inc., 595 F.2d 511, 513(9th Cir. 1979).
We also reject Transocean's argument that
because it acted in good faith in refusing to honor the subpoena so that
it could avail itself of judicial remedies, the district court erred in
finding it in civil contempt. Good faith is not a defense to civil contempt;
the question is whether the alleged contemnor complied with the court's
order. Whitfield v. Pennington, 832 F.3d 909 (5th Cir. 1987). Transocean
was obliged to obey the court's order unless it obtained a stay of that
order. Transocean obtained no stay and had no absolute right to a stay.
Donovan v. Fall River Foundry Co., Inc., 696 F.2d 524 (7th Cir.
For the reasons stated above, the judgment
of the district court is affirmed.
1. District Judge of the
Eastern District of Louisiana, sitting by designation.