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High Court Says Barges, Tugs Fall Under OSHA Safety Rules

The U.S. Supreme Court ruled Wednesday that federal regulators can impose strict worker safety standards on barges and tugboats.

The court rejected arguments that the industry was being double-regulated by the Coast Guard and the Occupational Safety and Health Administration.

The court also held that marine workplaces such as oil rigs are not different from traditional businesses.

The 8-0 decision opens about 68,000 vessels to tighter scrutiny.

Marine employers can be fined for dangerous working conditions.

OSHA, in charge of U.S. workplace safety since 1970, should not be barred from regulating the industry, the Bush administration told the court last fall.

About 100 people are killed on barges and other vessels annually, and an estimated 600 people are injured.

"I think it's a very good decision," said Tony Buzbee , a Friendswood attorney representing workers at Horizon Offshore Contractors who have filed a lawsuit seeking to make company's vessels asbestos-free. The case is pending.

"We owe it to these offshore workers to see that they have a safer workplace," Buzbee said.

"Clearly it's very dangerous work for these people, who are getting injured on a daily basis."

Buzbee agreed with the justices in their rejection of the claim that the industry would now be double-regulated by the Coast Guard and OSHA.

Jim Brown, a partner in the Houston maritime law firm Legge, Farrow, Kimmitt, McGrath & Brown, said, "It could get confusing." His firm usually represents owners and operators of vessels.

"You could have two different authorities regulating different locations and operations on the same vessel," Brown said.

Generally, Brown said, OSHA regulations for workplace safety are more stringent than Coast Guard regulations.

The Supreme Court case arose from a 1997 explosion that killed four workers on a 190-foot barge in a Louisiana swamp.

Mallard Bay Drilling contested OSHA's authority to impose fines.

The company argued that Congress intended for the Coast Guard to handle marine safety, not another agency.

Justice John Paul Stevens said for vessels like the one in this case, Coast Guard regulations generally cover items such as life preservers, fire extinguishers, signaling lights and cooking and lighting systems.

"Simply because the Guard has engaged in a limited exercise of its authority to address certain working conditions . . . does not mean that all OSHA regulation of all uninspected vessels has been pre-empted," Stevens wrote.

The Coast Guard does closely regulate some marine working environments.

This ruling applies only to so-called uninspected vessels like barges, fishing vessels and tugboats.

The Supreme Court decision reverses a ruling by the 5th U.S. Circuit Court of Appeals, which said OSHA had no jurisdiction over the industry.

It is too early to know the impact of Wednesday's ruling, Buzbee said.

"I don't know what the reaction of the OSHA people will be," he said "It's a lot more work for them, obviously, but I think it's essential."

The Supreme Court decision may have a big impact on the offshore and inland tow industries, attorney Jim Brown said, "but we'll have to wait and see how it plays out.

"It's a real fact-specific opinion. It will depend, for example, on what exactly the Coast Guard has actively regulated on a given type of vessel," Brown said.

Brown said that OSHA has always been focused on land-based regulations, "which don't always transfer to a marine vessel environment."

Justice Antonin Scalia did not participate in the case.

The case is Chao vs. Mallard Bay Drilling, 00-927.

 

David Kaplan
January 10, 2002