U.S. - Occupational Safety and Health Administration Trumps U.S. Coast Guard Jurisdiction

February 2002

In June 1997, four employees of Mallard Bay Drilling ("Mallard") were killed and two others seriously injured in an explosion on a Mallard barge, a vessel which was not subject to Coast Guard inspections. The barge was drilling an oil well in a navigable waterway within the territorial waters of Louisiana. The Coast Guard took the lead in the investigation, but did not charge Mallard Bay with violating any of its regulations. Based on information collected by the Coast Guard, the U.S. Labor Department’s Occupational Safety and Health Administration ("OSHA") issued citations against Mallard charging three violations of the Occupational Safety and Health Act of 1970 ("the Act").

Mallard challenged OSHA’s authority to regulate working conditions on the barge. The U.S. Administrative Law Judge upheld the citations, finding that the barge was a workplace within the meaning of the Act, that Mallard’s employees were not seamen and that OSHA’s authority was not pre-empted by the Coast Guard’s regulation of vessels. Mallard appealed the decision to the U.S. Court of Appeals (5th Circuit).

In June 2000, the appellate court vacated the OSHA citations, holding that an uninspected oil drilling barge in a navigable waterway within state territorial waters was a "vessel," over which the Coast Guard had exclusive jurisdiction, not a "workplace," subject to OSHA regulation. The Fifth Circuit based its decision on a finding that the barge’s personnel were seamen and the Coast Guard had exclusive authority over working conditions.

OSHA appealed the Fifth Circuit’s broad application of the pre-emptive force of Coast Guard regulations to the U.S. Supreme Court ("Supreme Court"). In Elaine L. Chao, Secretary of Labor, Petitioner v. Mallard Bay Drilling, Inc.*, the Supreme Court, in an 8-0 decision, reversed the Fifth Circuit.

Supreme Court Justice Stevens held that the Coast Guard’s exclusive jurisdiction over the regulation of seamen’s working conditions aboard vessels such as Mallard Bay’s uninspected drilling barge did not automatically preempt OSHA’s regulation of such vessels under Section 4(b)(1) of the Act.

The Supreme Court found that the Coast Guard had not exercised its preemption authority under the Act, because it had neither "affirmatively regulated" the working conditions at issue in the case, nor asserted "comprehensive regulatory jurisdiction" over working conditions on uninspected vessels. The Court decided that, unlike the comprehensive regulation of inspected vessels, mere possession by the Coast Guard of unexercised authority or minimal exercise of some authority over certain conditions on uninspected vessels is insufficient to preempt all OSHA regulation of all uninspected vessels. The Court found that, with respect to uninspected vessels, the Coast Guard’s general maritime safety regulations do not address the occupational safety and health concerns faced by inland drilling operations on uninspected vessels, and, thus, do not preempt OSHA’s authority under Section 4(b)(1) of the Act.

The Court also found that the drilling barge was a "workplace" under Section 4(a) of the Act because it was located within a geographic area described in the Act - a State - and the Act attaches no significance to the fact that it was anchored in navigable waters.

LESSON LEARNED:

Even though owners of uninspected vessels may have complied with all applicable Coast Guard regulations, now they must also ensure that they comply with all applicable OSHA regulations, including any applicable notification and reporting requirements.

 

With thanks to John G. Ingram and Alan M. Weigel of Healy & Baillie, LLP, New York for preparing this article.

* (No. 00-927) (January 9, 2002)