CALIFORNIA STEVEDORE AND BALLAST COMPANY

OSHRC Docket No. 1483

Occupational Safety and Health Review Commission

April 11, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter presents the issues of whether Judge Jerry W. Mitchell erred in (1) allowing Complainant (Labor) to amend his citation and complaint to allege a violation of Section 5(a)(1) n1 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act") rather than the occupational safety and health standard at 29 C.F.R. 1918.51(a); (2) affirming the 5(a)(1) violation in contravention of the rule that a 5(a)(1) charge is inappropriate when a specific standard is applicable; and (3) affirming a citation alleging a non-serious violation of 29 C.F.R. 1918.85(b)(6). n2

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 This section provides that "[e]ach employer -- (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." 29 U.S.C. 654(a)(1).

n2 Review was also directed on the issue of whether the procedures followed by Labor in its inspection of California Stevedore's workplace conformed to Sections 8(a) and 8(f)(1) of the Act. Without deciding whether the inspection procedures conformed to Section 8(a), we note that California Stevedore raised no timely objection to such procedures, and accordingly waived any rights it may have had under this section. Scientific Coating Co., Inc.,

As to Section 8(f)(1), we have held that the provisions of this section do not limit the broad authority to conduct inspections granted to Labor by Section 8(a). Aluminum Coil Anodizing Co., The inspection in this case was conducted early in the morning after representatives of employees had notified Labor the previous evening that a potentially serious hazard existed. To hold that Labor must delay conducting an inspection under such circumstances until the employee complaint is reduced to writing would be contrary to the objectives of the Act.

[*2]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Alleged Serious Violation of Section 5(a)(1)

Respondent, (California Stevedore) was discharging cargo from the S.S. SAMOA BEAR in the Port of San Francisco. Prior to removing cargo from the No. 4 cargo hold, a pontoon over this hold had to be displaced. The pontoon weighed 5 tons.

On a number of prior occasions, California Stevedore had discharged cargo from the SAMOA BEAR and her sister ships. A boom forward of the cargo hold, with a rated capacity of ten tons, was normally used to lift the pontoon. This boom, however, was unavailable for use on this occasion. California Stevedore's superintendent therefore decided to use the gear aft of the hatch. There were two aft booms, each marked for a safe working load of five tons. This rating was also listed in the cargo gear certification papers. The five ton rating, however, applies only when the booms are used in a free-swinging manner. On this occasion, they were coupled together in an arrangement known as union purchase, in which the fall of each boom was secured to a common hook. The lifting capacity of this arrangement would depend [*3] on the angle between the falls, and would consequently depend on the height to which an object was lifted. In the longshoring industry, however, it was understood that the capacity of booms rigged in union purchase should be considered to be half that of one of the booms used individually.

Thus, California Stevedore attempted to lift the five ton pontoon with gear having a capacity of approximately 2 1/2 tons. When the lift was attempted, the gear failed and the pontoon fell to the deck. Several of California Stevedore's employees were on the deck in the area where the pontoon fell, but nobody was injured.

On these facts, California Stevedore was cited for a violation of 29 C.F.R. 1918.51(a). n3 Prior to the hearing, however, Labor moved to amend its charge to allege a 5(a)(1) violation. Respondent did not object, and the Judge allowed the amendment.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 This standard states:

Neither the safe working load as specified in the cargo gear certification papers, nor any safe working load marked on the booms shall be exceeded. Any limitations imposed by the certification authority shall be adhered to.

[*4]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

We have held that a 5(a)(1) charge is not appropriate when a specific standard is applicable. Brisk Waterproofing Co., Inc. Advance Air Conditioning, Inc., Labor, however, claims that the standard does not apply when the booms are rigged in union purchase. We agree. The record establishes that the safe working load marked on the booms and listed in the cargo gear certification is a reliable measure of boom capacity only when the booms are used in a free swinging manner. When the booms are rigged in union purchase, these safe working loads provide a starting point from which the capacity of the arrangement can be calculated, but are not themselves a reliable indicator of the safe working load of the combination. Thus, the standard does not apply. n4

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 Accordingly, we reject the Judge's conclusion that the standard, as well as Section 5(a)(1), was violated.

[*5]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

We also hold that the Judge acted properly in allowing the amendment. The amendment did not change the factual basis of the charge, but only the section of the Act alleged to have been violated. The motion to amend was made well in advance of the hearing, and no objection was made until after the hearing. The hearing proceeded under the amended charge, and California Stevedore fully participated in the trial of all issues relevant to the alleged 5(a)(1) violation. Under these circumstances, the amendment was clearly not prejudicial and was therefore properly allowed. Murro Chemical Co., Inc.,

We affirm the Judge's finding of the 5(a)(1) violation. The record establishes that it is well known in the longshoring industry that two booms rigged in union purchase should be considered to have a capacity half that of one of the booms unsed individually. California Stevedore's superintendent himself recognized this. The record also establishes that it is a recognized hazard in the longshoring industry to overload lifting [*6] gear. While it does not appear that California Stevedore actually knew that the gear was overloaded, n5 its familiarity with this type of ship and its equipment compels the conclusion that it should have known this. In this regard, it is relevant that it was California Stevedore's usual practice to use gear with a capacity of ten tons to remove this pontoon.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n5 California Stevedore's superintendent testified that, prior to the lift, he estimated the weight of the pontoon to be 2 1/2 tons.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Furthermore, it is clear that the violation was likely to cause death or serious harm. The probable result of overloading lifting gear to the extent shown here is that the gear will fail, and the load will fall. That is indeed what happened. Several of California Stevedore's employees were in the area where the pontoon fell, and would almost certainly have suffered death or serious harm had they been struck.

We turn now to the assessment of an appropriate penalty. We note that California Stevedore is a relatively [*7] large longshoring company, with approximately 245 employees. It has a history of prior violations, including one serious violation. The gravity of the violation was high. Several employees were exposed to a high probability of death or serious harm. Finally, we agree with the Judge that California Stevedore's good faith is questionable. In this regard, we note that another failure of the ship's lifting gear had been experienced on the day prior to this accident. While this prior occurrence was not California Stevedore's fault, it should have suggested that a higher degree of care be exercised than is shown by this record. The Judge assessed a penalty of $900, and we find his assessment to be appropriate.

Alleged Non-Serious Violation of 29 C.F.R. 1918.85(b)(6) n6

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n6 The standard states, in pertinent part:

(b) No container shall be loaded aboard or discharged from any vessel by means of hoisting by ship's cargo handling gear or by shore crane or derrick unless the following conditions have been met:

(6) In the case of loaded inbound containers from foreign ports, they shall, if they have not been weighed, have the calculated weight posted in the manner prescribed by subparagraph (5) of this paragraph. All loaded inbound containers from foreign ports shall be subject to random sample weight checks at a time satisfactory to the Administration. . . . When such checks indicate a pattern of significant and continuing inaccuracy or when the provisions of subparagraph (7) of this paragraph are not met, such suitable means as are acceptable to the Administration to protect the safety of the workers involved shall be taken during discharge to assure safety. . .

[*8]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Some of the cargo being discharged from the SAMOA BEAR was containerized cargo inbound from Australia. At the direction of Labor's compliance officer, California Stevedore had one of the containers weighed by a public weighmaster. A placard on the container indicated a weight of 43,600 pounds. The ship's cargo stowage plan listed its weight at 41,180 pounds. The public weighmaster measured the weight of the container to be 47,420 pounds. n7

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n7 The Judge concluded that the weighmaster's certificate indicated that the container weighed 63,440 pounds. This figure is shown on the certificate as the gross weight. This gross weight, however, includes the weight of the vehicle on which the container was placed when it was weighed. The weight of the container itself is shown on the weighmaster's certificate as the net load.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Labor's theory was that the standard was violated because the calculated weight was not posted on the [*9] container. n8 The standard, however, only requires that the calculated weight be posted if the container was not weighed at its port of origin. We cannot conclude from the discrepancy between the posted weight and the weight measured by the public weighmaster that the container was not weighed. The difference, amounting to roughly 10%, has not been shown to be outside the range of error to be expected in this type of measurement. Indeed, we note that the standard itself contemplates that such discrepancies will exist. We vacate this citation because Labor has failed to satisfy its burden of proof. Armor Elevator Co.,

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n8 The calculated weight is the sum of the weights of the empty container and all its contents. In order to comply with the standard by posting the calculated weight, a list of the contents must also be posted. 29 C.F.R. 1918.85(b)(5). It is undisputed that no such list was posted.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Accordingly, the Judge's decision [*10] is modified to vacate the citation for violation of 29 C.F.R. 1918.85(b)(6). In all other respects, the decision of the Judge is affirmed. It is so ORDERED.

CONCURBY: CLEARY; MORAN (In Part)

CONCUR:

CLEARY, COMMISSIONER, concurring: I concur with Commissioner Van Namee's disposition of this case.

In footnote 2 of the lead opinion it is noted that the issue of whether the procedures followed by the Secretary of Labor in his inspection of California Stevedore's workplace conformed with the requirements of section 8(a) and (f)(1) of the Act need not be decided. The reason given for not deciding the issue is that California Stevedore failed to object in a timely fashion to the Secretary's procedures and accordingly waived any rights it may have had under these sections. This reason is sound, but I would add that in my view the contentions concerning any failure of the Secretary to comply with section 8(a) and (f) border on the frivolous. n9 I would expressly adopt the Judge's conclusions that the inspection was properly conducted and that the Secretary complied with the section 8(f)(1) requirements, which concern the handling of employee complaints, and requests for special inspections. [*11] Concerning section 8(a), see Accu-Namics, Inc., No. 477 (May 30, 1974), petition for review docketed, No. 74-2979, 5th Cir., July 26, 1974. See generally Brennan v. Buckeye Indus. Inc., 374 F. Supp. 1350 (S.D. Ga. 1974).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n9 On the evening before the inspection, the Secretary's compliance officer, who made the inspection, was informed by both the former and current Business Agents of Local 10, International Longshoremen's and Warehousemen's Union, of the failure of the 60-ton boom at the No. 4 hatch aboard the S.S. Samoa Bear. The compliance officer inspected the Samoa Bear the following morning. Upon his arrival at the vessel, he looked for but did not find California Stevedore's superintendent. He boarded the Samoa Bear and met one of the company's "walking bosses" near the No. 4 hatch. The compliance officer explained the purpose of his visit and invited the walking boss to accompany him on the "walk-around" part of his inspection. The "walking boss" declined the invitation.

While the compliance officer was making his inspection, the upper wire pendant on the vang guy for the aft port boom parted allowing the boom to swing to starboard. This failure resulted in the pontoon at the No. 4 hatch, then being removed, to crash down onto the starboard aft winch at the No. 4 hatch. The pontoon came to rest partly on the winch and partly on the hatch coaming. California Stevedore's superintendent arrived on the scene immediately after the failure and discussed the accident with the compliance officer. After the discussion he left the hatch area and the compliance officer went to see the vessel's Chief Officer to review the cargo gear register.

[*12]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, CHAIRMAN, concurring in part and dissenting in part: The Commission's affirmance of the dismissal below of the charge that respondent failed to comply with the occupational safety and health standard codified at 29 C.F.R. 1918.85(b)(6) is correct and I concur therewith. Its finding, however, that respondent seriously violated 29 U.S.C. 654(a)(1) is wrong and I therefore dissent therefrom.

Respondent, a California corporation engaged in longshoring activities, was inspected by complainant after being alerted of possible hazards by both the former and present business agent of the employees' union. n10 It is uncontroverted, however, that the inspector failed to formally present his credentials before commencing the inspection. I believe this failure invalidates the inspection and the citation based thereon.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n10 Review was also directed on whether complainant's failure to present at inspection a copy of these agents' complaint as required by 29 U.S.C. 657(f)(1) should result in dismissal of the proceeding. Because dismissal should result from complainant's failure to comply with the provisions of 29 U.S.C. 657(a), infra, this issue need not be reached.

[*13]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

29 U.S.C. 657(a) n11 provides that

[i]n order to carry out the purposes of this Act, the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized --

(1) to enter [an employer's worksite] . . . and

(2) to inspect and investigate . . ." (emphasis added)

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n11 Complainant's regulation codified at 29 C.F.R. 1903.7(a) effectually requires the same provisions set forth in 29 U.S.C. 657(a). It should be noted that administrative agencies must adhere to regulations promulgated thereby. See United States v. Wilbur, 427 F. 2d 428 (9th Cir. 1970); Service v. Dulles, 354 U.S. 363 (1957); Vitarelli v. Seaton, 359 U.S. 199 (1959).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

This section was inserted in order that government inspectors would have a right to enter employers' worksites n12 so as to effectuate the purposes of the Act. See Legislative History of the Occupational Safety and Health Act, S. Rep. [*14] No. 91, 91st Cong., 2d Sess. (1970); also see Secretary v. Accu-Namics, Inc., 8 OSAHRC 890 (1974).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n12 During House debate on substituting H.R. 19200 for H.R. 16785, Congressman Steiger stated that ". . . until the inspector has presented his credentials, he is not empowered to enter a business or workplace," Page 107 of the Legislative History of the OSH Act, 91st Cong., 2d Sess. (1970).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Important also, however, was Congress' consideration that employers be protected against unreasonable searches and seizures provided for in the fourth amendment, and as determined applicable to administrative inspections. See Camera v. Municipal Court, 387 U.S. 523 (1967); See v. Seattle, U.S. 541 (1967).

Two rights were thus the basis for including this section. One of these: the right of employers to be warned so as to afford them minimal due process protection against clandestine type searches, has been violated here. n13

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - [*15] - - -

n13 Additionally, even complainant recognizes an additional importance for complying with 657(a). OSHA Chief, John H. Stender, warned employers about bogus OSHA inspectors demanding immediate payments from employers for alleged violations. He stated that OSHA compliance officers are required to show credentials. See CCH Employment Safety & Health Guide (1975).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Additionally, I find no qualifying language in 657(a) permitting inspectors to forego the mandates therein. n14 Respondent objected at trial n15 that this evidence was tainted because of the inspector's failure to present his credentials. Dismissal should therefore have been granted thereon. n16

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n14 The same language in 657(a) was never qualified in any of the bills before Congress. See p.p. 529, 599, 629, 659, 679, 721, 1006, of the Leg. Hist. of the OSH Act. supra, footnote 12.

n15 Commissioner Van Namee states that respondent failed to timely object to complainant's failure to present credentials, and he therefore believes the issue has been waived. I disagree. As a basis therefor, my colleague cites Secretary v. Scientific Coating Co., Inc., 12 OSAHRC 337 (1974), wherein he states:

"Respondent did not move either before or at trial to suppress evidence based on . . . the requirements of [29 U.S.C. 657(a)]. . . . This issue was raised for the first time in the direction for review. Accordingly, we do not consider it."

Assuming arguendo that this issue must be raised "before or at trial," respondent complied therewith by raising the issue at trial. See, e.g., p.p. 29-30 of the Transcript.

n16 For further discussions about the requirements of 29 U.S.C. 657(a), see Secretary v. Scientific Coating Co., Inc., supra; Secretary v. Accu-Namics, Inc., 8 OSAHRC 890 (1974); Secretary v. Ron M. Fiegen, Inc., 9 OSAHRC 999 (1974).

[*16]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

I must also take exception to the Commission's permission for complainant to amend the charge from 29 U.S.C. 654(a)(2) to 29 U.S.C. 654(a)(1).

Respondent was cited for allegedly violating 29 U.S.C. 654(a)(2) by failing to comply with the occupational safety and health standard condified at 29 C.F.R. 1918.51(a), which provides that

[n]either the safe working load as provided in the cargo gear certification papers, nor any safe working load marked on the booms shall be exceeded. Any limitations imposed by the certification authority shall be adhered to.

Thereafter complainant determined that this standard did not apply to the underlying factual allegation here, and so therefore moved to amend the charge to 29 U.S.C. 654(a)(1), which provides that each employer

shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

The lead opinion concludes that no prejudice resulted therefrom because the factual basis for the charge remained the [*17] same, and also that the objection thereto was untimely. n17 This conclusion reflects a total disregard of the importance of the citation under this remedial statute.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n17 Commissioner Van Namee concludes that the objection to the amendment was not made until after the hearing. I disagree. The court below concluded that the issue was raised during the pre-trial conference. Respondent stated therein that

". . . [he] was of the opinion that we were to defend against the citation as issued . . . which has been subsequently changed by the Secretary's attorney. . . ."

In my opinion, this statement from a respondent appearing pro se constitutes raising an issue in a manner that objects to complainant's amendment.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

29 U.S.C. 658(a) mandates that

[e]ach citation shall be in writing . . . [;] shall describe with particularity the nature of the violation . . . [shall provide] a reference to the provision of the Act, standard, rule, regulation, or order alleged[ly] . . . violated . . . [;] shall fix a reasonable [*18] [abatement] time . . . . (emphasis added)

As I stated in my recent dissent in Secretary v. Everhart Steel Construction Co., 16 OSAHRC 696 (1975), the citation is a unique document. 29 U.S.C. 659(a) requires employers to decide irrevocably whether or not to contest within 15 working days of receipt of the notification of proposed penalties.

If no notice of contest is filed, employers, except for jurisdictional matters, n18 are precluded from any further hearing on the matter. See Secretary v. Florida East Coast Properties, Inc., 6 OSAHRC 404 (1974); Brennan v. OSAHRC and Bill Echols Trucking Company, 487 F. 2d 230 (5th Cir. 1973); Brennan v. OSAHRC and Interstate Glass Co., 487 F. 2d 438 (8th Cir. 1973); 29 U.S.C. 659(a).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n18 See, e.g., Secretary v. Phoenix, Inc., Legore Quarries Division, 1 OSAHRC 355 (1972).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Due process during this crucial 15 day period requires that complainant inform employers of the fundamental aspects of the charge. I submit that any amendment which substantively [*19] alters the legal basis of the charge violates minimal due process.

Employers need this information in order to be able to decide whether or not to irrevocably give up all rights to contest. I do not believe the due process mandate should be diluted by calling it a pleading, and therefore easily amendable.

The motion here should have been denied.

[The Judge's decision referred to herein follows]

MITCHELL, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq. ) (the Act hereinafter) contesting a Citation issued by the Secretary of Labor (Complainant) against California Stevedore and Ballast Company (Respondent) under the authority vested in Complainant by Section 9(a) of the Act.

A workplace described as "discharging 20 foot containers and general cargo abroad "SS SAMOA BEAR" located at "Pier 27, San Francisco, California . . ." was inspected on August 13, 1972 by a Compliance Safety and Health Officer (CSHO) on behalf of the Secretary of Labor. During the inspection certain alleged violations of safety standards were noted. A Citation for Serious Violation and a Citation covering two (2) items [*20] of non-serious violations were issued on August 24, 1972. The safety standards allegedly violated were promulgated by the Secretary of Labor pursuant to Section 6 of the Act by publication in the Federal Register and are now codified at Title 29, Code of Federal Regulations, Part 1918.

The alleged violations are described in the respective Citations as follows with the standard allegedly violated quoted immediately following the violation:

Citation for Serious Violation 1 --

Employer exceeded the safe working load, as specified in the cargo gear certification papers and as marked on the cargo booms, of the cargo gear at the No. 4 cargo hold aft when attempting to hoist a pontoon weighing five long tons when gear was rigged in union purchase.

Abate -- Immediately upon receipt of this citation.

Standard -- 29 CFR 1918.51(a) as adopted by 29 CFR 1910.16 Subpart F -- Ship's Cargo Handling Gear -- 1918.51 General requirements. (a) Neither the safe working load as specified in the cargo gear certification papers, nor any safe working load marked on the booms, shall be exceeded. Any limitations imposed by the certificating authority shall be adhered to.

Citation 1 for non-serious [*21] violation --

Item 1 -- Employer using steel vang guy pulley blocks with frozen sheaves, rendering them visibly unsafe at cargo holds No. 2, 3, 4 and 6.

Abate -- Immediately upon receipt of this citation.

Standard -- 29 CFR 1918.51(b) as adopted by 29 CFR 1910.16 Subpart F -- Ship's Cargo Handling Gear -- 1918.51 General requirements. (b) Any component of cargo handling gear, including tent gantlines and other associated rigging, which is visibly unsafe shall not be used until made safe.

Item 2 -- Employer discharging inbound, loaded containers without proof of weight nor had weight been calculated and posted on the containers.

Abate -- 15 days.

Standard -- 29 CFR 1918.85(b)(6) as adopted by 29 CFR 1910.16 Subpart H -- Handling Cargo -- 1918.85 Containerized cargo. (b) No container shall be loaded aboard or discharged from any vessel by means of hoisting by ship's cargo handling gear or by shore crane or derrick unless the following conditions have been met: . . . (6) In the case of loaded inbound containers from foreign ports, they shall, if they have not been weighed, have the calculated weight posted in the manner prescribed by subparagraph (5) of this paragraph. [*22] All loaded inbound containers from foreign ports shall be subject to random sample weight checks at a time satisfactory to the Occupational Safety and Health Administration, which may be at any time up to unloading the contents of the container at the terminal or until the container is delivered unopened to the land carrier. When such checks indicate a pattern of significant and continuing inaccuracy or when the provisions of subparagraph (7) of this paragraph are not met, such suitable means as are acceptable to the Bureau to protect the safety of the workers involved shall be taken during discharge to assure safety and such means shall be continued until the Occupational Safety and Health Administration is satisfied by experience thereunder that correct weights will be furnished.

Pursuant to the enforcement procedure provided in Section 10(a) of the Act, Respondent was duly advised by a Notification of Proposed Penalty dated August 24th of the proposal to assess a penalty of $700.00 in connection with the Citation for Serious Violation and $70 and $0 in connection with Items 1 and 2, respectively, of Citation 1 for non-serious violations. In a timely manner Respondent contested [*23] the "citations and proposed penalties." A complaint was filed by Complainant and answered by Respondent.

The case was assigned to this Judge and trial was initially set for December 21st. Instructions to participants were mailed to each party on October 25th setting dates for the filing of certain information. Subsequently Complainant filed a motion for postponement, Respondent did not object to the requested postponement. The trial was postponed to January 18th. The dates for filing and exchanging the requested information were substantially met except that Complainant filed a list naming five additional witnesses the day before the trial. Prior to the trial Complainant also sought and was granted an amendment to the complaint. Complainant was also granted an order for the taking of a discovery deposition of Respondent's Stevedore Superintendent. Respondent's response to all of these actions by Complainant was a single tardy letter questioning some of Complainant's tactics. Trial convened on January 18th and occupied two fall days.

PROCEEDINGS AND EVIDENCE

When the hearing convened Complainant was represented by legal counsel and Respondent was represented by [*24] its Safety Superintendent, who is not an attorney. During the pre-trial it was developed that Respondent's Safety Superintendent had previously participated in three (3) proceedings before the Commission -- two with an attorney and one where he represented Respondent alone. Nevertheless, procedures to be followed during the trial were thoroughly explained to Respondent's representative during an extensive pre-trial.

The Business Agent of Local 10, ILWU, (one of the unions representing Respondent's employees) was present at the commencement of the pre-trial and stated that depending on how the testimony developed, he "might like to ask a question or two." He departed from the trial later in the day and did not return at any subsequent time during the two day trial.

During the pre-trial conference the parties submitted a Stipulation containing 23 separate agreements of fact and law which was admitted as Complainant's Exhibit C-1. Also as a result of the pre-trial conference, Complainant's counsel conceded that two of the witnesses named in the latest list would not be called. Additionally, Respondent's representative was assured that if it appeared necessary to him after he heard [*25] the testimony of Complainant's witnesses that time was needed to meet that testimony, a reasonable continuance would be granted.

As a concluding matter during the pre-trial, Respondent's representative moved to vacated the Citation and penalties. The motion was denied.

Complainant called the Operations Superintendent of American President Lines, owner of SS SAMOA BEAR, as a witness. This witness has 20 years experience aboard vessels and in cargo work around the San Francisco Bay area. Prior to his present employment, he worked about 16 months as a Stevedoring Superintendent for Respondent. From this experience he is familiar with the class of vessels which includes SS SAMOA BEAR. His testimony is that the center or "floater" pontoon at No. 4 hatch on SS SAMOA BEAR weighs approximately 4 1/2 long tons. It is normally removed by using the cargo booms at the forward end of the hatch. He does not recall that the after gear was ever used to remove the "floater" pontoon. The forward cargo booms at No. 4 hatch aboard SS SAMOA BEAR are of 10 ton capacity while the booms at the after end of that hatch are shorter and are only good for lifting about 3 1/2 long tons.

Complainant's [*26] second witness is a member of the longshore gang which was working at No. 4 hatch aboard SS SAMOA BEAR on August 13, 1972. His position in the gang was winch driver. At the time the pontoon was dropped on that date he was serving as hatch-tender for the winch driver at the aft end of No. 4 hatch. His function was to give the winch driver signals concernin the lowering of the loads onto the dock. No did not need to signal the winch driver with regard to loads going into or coming out of the hatch since the winch driver was high enough to see the progress of the load in the hatch and over the deck.

This witness heard the wires (falls) start to "sing" on the winch drums as the pontoon was lifted. In his experience the "singing" meant that the load being handled was heavy. He jumped back under the overhang of the deck above so as to be protected. As the load (the pontoon) was over the hatch coaming and about level with the cargo van on deck the "lazy guy" and the "preventer guy" failed. The pontoon dropped on the hatch coaming and winch and the boom smashed into the midships house.

Complainant's next witness is also a member of the longshore gang working cargo at No. 4 hatch [*27] on SS SAMOA BEAR on August 13, 1972. His position is that of a "holdman" who handles cargo in the hold. On the day in question this witness was sent into the hold with his partner to uncover in preparation for cargo work. The after booms, of 5 ton capacity, were in use. The witness and his partner hooked the four legs (wires) on the pontoon bridle to the corners of the pontoon and told the winch driver to hoist away. When the wires tightened in lifting the pontoon it sounded to the witness as though some of the gear was going "to give." He and his partner moved away from the hatch square to be clear of danger. When the pontoon was about high enough for the winch driver to slack off on his midship runner the guy on the midship boom gave away and the boom swung around and hit the midship house. The pontoon dropped and wedged partly on top of the winch at the aft starboard corner of No. 4 hatch and partly on the hatch coaming. Sometime after the accident -- within an hour or two -- one of the vessel's sailors stencilled "five tons" on the pontoon. It was not marked before the accident.

Following the accident the gang in which the witness was working was transferred [*28] to No. 3 hatch. While rigging the gear at that hatch some one mentioned that a sheave on a guy to wing the boom out was not turning. This witness observed the CSHO making notes with a pencil during the time they were rigging No. 3 hatch.

The Compliance Safety and Health Officer (CSHO) was called as Complainant's third witness. He testifies that he received two calls on the night of August 12th. One was from a former business agent of Local 10, ILWU, and the other was from the Business Agent of Local 10. Each called reported the failure of the 60-ton boom at No. 4 hatch aboard SS SAMOA BEAR. In each case the caller informed the witness that there were no injuries and the witness responded that he would visit the vessel the next day.

When he arrived aboard SS SAMOA BEAR the following morning he met one of Respondent's walking bosses near No. 4 hatch. Although he looked for him he did not see Respondent's superintendent on the pier nor aboard the vessel as he proceeded to No. 4 hatch. The CSHO explained his reason for being there to the walking boss and invited him to accompany him during his inspection of the area around the 60-ton boom failure. The walking boss declined. [*29] The witness inspected the area and the boom at the forward end of No. 4 hatch and then moved aft along the offshore side of the hatch where he crossed to the inshore side through an athwartship passageway in the midship house.

As he neared the forward end of the inshore passageway he heard the wires "singing" on the winch drums and realized that a very heavy load was being lifted. At some point in this operation he realized that the load was too heavy. He elected to remain under the protection of the deck above rather than proceed onto the open deck. As the load was raised higher to clear the cargo vans stowed on deck, the witness observed that the midship wire made a high angle with the horizontal. Suddenly the load dropped striking the starboard aft winch at No. 4 hatch. The load, a pontoon, came to rest partly on the winch and partly on the hatch coaming. At the same time the port aft boom swung to starboard and smashed into the forward end of the midship house. No one was injured.

This witness discussed the gear failure with Respondent's superintendent who arrived on the scene immediately after the failure at about the same time as the witness. After a [*30] few words Respondent's superintendent departed. One of Respondent's Walking Bosses who was also present at this time stated that he had told Respondent's superintendent that the pontoon was too heavy and should be left in the hatch. The superintendent told the walking boss to take it out anyhow.

Subsequent inspection revealed that the upper wire pendant on the vang guy for the aft port boom had carried away allowing the boom to swing to starboard. The upper sheave of the lower block on the port vang guy was rusty and frozen so that it could not turn. The upper sheave in the upper vang guy block of this gear was also frozen. The wire which failed appeared to be in good condition. No other gear at No. 4 hatch failed at the time of this casualty. There was no indication or marking on the pontoon to show its weight.

After inspection of the casualty at the aft end of No. 4 hatch this witness visited with the vessel's Chief Officer and examined the vessel's cargo gear inspection register. The Chief Officer advised the CSHO that the pontoon had been weighed in Australia and found to weigh 5 long tons. He also stated that he only permitted 2 1/2 tons to be lifted by the after gear [*31] at No. 4 hatch. The cargo gear inspection register showed that the safe working load of booms at the aft end of No. 4 hatch was 5 long tons if each boom was used as a "swinging boom." The safe working load is considerably less when the two booms are rigged together in "union purchase." The witness advised the Chief Officer that he would inspect all of the vessel's gear with regard to frozen sheaves.

When he witness reached No. 5 hatch to commence his inspection of the sheaves he found that some of the vessel's crew were already at work freeing the sheaves. During this subsequent inspection a total of six additional sheaves were found to be rusty and frozen so that they could not turn. In some cases it was obvious that the wire of the guy had slid over the sheave rather than the sheave rolling. In each case except one the frozen sheave was the upper sheave of the lower vang guy block. The starboard aft vang guy block at No. 4 hatch had the same sheave frozen as was found in the port vang guy which carried away. Several of the frozen sheaves were found in gear being used by Respondent's employees.

Prior to leaving SS SAMOA BEAR this witness observed the discharge of [*32] a cargo container (van) from No. 4 hatch upper tween deck. The container was inbound from Australia. The placard on the container showed a gross weight of 43,600 pounds but did not show anything else. There was no indication nor calculation of the weight of the container based on a listing of the weight of its contents. The vessel's cargo list records the weight of the particular container in question as 41,180 pounds. The cargo container was weighed at the request of this witness and found to have an actual gross weight of 63,440 pounds and a net weight of 47,420 pounds.

This witness explains the manner in which the computed the proposed penalties. Respondent was given 10% credit for good faith and 20% credit for history. No credit was given for size. These same credits were applied to the Citation for Serious Violation and Item 1 of the non-serious Citation. An additional 50% credit was given in connection with Item 1 for prompt abatement. This witness testifies that Respondent has been cited for eleven violations of safety standards during the period from June of 1971 through June of 1972. One of the eleven standards violated was allegedly serious and another of the [*33] eleven has been held by an Administrative Law Judge to note be a violation. The remaining nine all became final violation orders. He also testifies that Respondent has a good overall safety program.

During cross-examination Respondent established that the witness did not reduce the informational calls concerning the failure of the 60-ton boom to writing and deliver a copy to Respondent. 29 CFR 1903.11 was referred to at this point and Respondent moved to vacate the proceedings. The motion was taken under advisement with the right reserved to the parties to fully brief the issue.

Complainant called the San Francisco Area Director for the Occupational Safety and Health Administration as its concluding witness. He qualified as somewhat of an expert by reason of experience with regard to gear rigging practices and the effect of certain rigging situations. He is familiar with the rigging lay-out aboard SS SAMOA BEAR from routine inspections made by him aboard her over the years in his previous employment. He also actually visited her on the day following the casualty at the aft end of No. 4 hatch and observed the rigging involved.

He testifies that overloading gear [*34] by picking up too much weight is the most common cause of gear failures on vessels. Closely connected with this cause is "tightlining" of the gear during movement of the load. The higher the load is raised the greater the amount of stress transferred to the vang guys. In each case, whether overloading or tightlining, excessive stress is created in the grar, particularly the vang buy for the midship boom. Rigging two booms together in "union purchase" where the two falls are married, as was the case at No. 4 aft aboard SS SAMOA BEAR on August 13th, reduces the safe working load of the grear 50% from that allowable on the booms used as swinging booms.

His testimony is that a frozen sheave in a vang guy will cause excessive chafing and wear of the moving wire portion of the guy which is drug across the frozen sheave. If the sheave turned the chafing would not occur. This excessive wear occurs each time the boom is positioned or moved and reduces the wires holding power through the breaking of individual strands of the wire. This damages and weakens the wire causing greater probability of failure under stress.

On cross-examination he testifies that prior to commencing work on [*35] a vessel the stevedore must determine that the vessel has a "current and valid Cargo Gear Register." He also admits that there were no safety devices installed aboard SS SAMOA BEAR which would indicate when the gear was overloaded.

Respondent called one of its Stevedore Superintendents as its only witness. He was serving in that capacity aboard SS SAMOA BEAR on August 13th. He is an experienced mariner having spent 15 years sailing in various licensed capacities aboard British merchant vessels. He boarded SS SAMOA BEAR shortly after 0700 on August 13th and made an inspection of her decks and cargo gear. He also visited her Chief Officer and checked her Cargo Gear Register. That register shows that her cargo gear was last inspected in February 72 and that the last quadrennial inspection occurred about 12 months prior to the last annual inspection.

He did not see the CSHO until about a minute after the pontoon was dropped. They each arrived at the scene of the casualty at about the same time. The casualty was discussed and then they jointly visited the vessel's Chief Officer to review the Cargo Gear Register. The weight of the pontoon was discussed and they were informed [*36] by the Chief Officer that it weighed 5 long tons. This weight was subsequently stencilled on the pontoon by the vessel's crew.

Subsequently this witness accompanied the CSHO in an inspection of the vang guy blocks. They discovered approximately 6 lead blocks that were frozen. In his view these were not hazardous because they only move when the booms are being positioned. Once the booms are spotted for discharge the vang guys are stationary. He agrees that the sheaves should run freely but insists that the wires are lubricated and therefore will slide over the frozen sheave without damage to the wire.

His testimony is that the upper pendant of the vang guy had a breaking strength of 30 tons while the breaking strength of the cargo runner in use was only 17 tons. The upper pendant actually parted about 1 to 1 1/2 inches below the swage at the upper end of the vang pendant. In the view of this witness the pendant is somewhat weakened during manufacture by the swaging process which sets up unusual stresses at that point.

He agrees that the greatest cause of cargo gear failure results from tightlining. He also agrees that the presence of the cargo van on deck on the inshore [*37] side of the vessel made it necessary to raise the pontoon higher during discharge to the dock and thereby increased the stress on the vang guys. The additional height necessary to clear the van also increased the angle between the two cargo runners joined in union purchase and thus approached nearer to tightlining, adding to the stress on the vang guys.

His experience on SS SAMOA BEAR and her sister vessels led him to believe that the pontoon in question weighed about 2 1/2 long tons and could thus be removed by the after gear at No. 4 aft while rigged in union purchase. He admits, however, that the pontoon was normally removed by using the forward gear which has a capacity of 10 tons. That gear was not available for use on August 13th. His testimony is that if he had known of the actual weight of the pontoon, he would have removed it by using the aft starboard boom as a swinging boom He also states that the aft gear at No. 4 hatch has a safe working load of a "little over three tons" when rigged in union purchase. His general testimony is however, that rigging gear in union purchase reduces its safe working load by 50%.

Subsequent to the conclusion of the trial each [*38] party submitted initial and reply briefs. In addition Complainant filed proposed Findings of Fact and Conclusions of Law.

DISCUSSION

Respondent's Motion to Dismiss

Respondent's motion to dismiss or vacate was first mentioned in a letter received just before the trial. The issue was again raised during the pre-trial conference as well as during the trial and is reviewed in Respondent's brief. It appears that Respondent is asserting one general and two or three specific reasons for such a dismissal which may be summarized as follows:

(1) Complainant's counsel has used arbitrary power to mislead, has concealed information and has used dilatory tactics which have confused Respondent's representative;

(2) The Compliance Safety and Health Officer (CSHO) boarded SS SAMOA BEAR in response to a complaint but did not reduce the complaint to writing and deliver a copy to Respondent;

(3) The CSHO did not present his credentials to Respondent before commencing the inspection thereby not acting consistently with the basic fairness of due process; and

(4) The CSHO cited Respondent for violation of a specific standard which was quoted in the complaint initially and then subsequently [*39] amended to show violation of the general duty clause appearing in Section 5(a)(1) of the Act.

As a preliminary matter it is noted that Respondent's representative is not an attorney. This fact was made known on the record at the outset of the pre-trial conference. It has not, however, been to Respondent's detriment. It is apparent from the record, (Vol. I, pg 15), that the representative is experienced in these matters. He has participated in at least three previous trials such as the instant one. In two of those proceedings Respondent's present representative shared responsibility with an attorney. In the third case he represented Respondent without an attorney. Certainly a fair amount of experience in this new field of law and apparently the manner in which Respondent, the largest stevedore company in the Northern California area, chooses to be represented.

There is nothing in this record which serves to validate the allegations summarized in subparagraph (1) immediately above. Each of these allegations have been more than adequately met by the explanation of Complainant's counsel or by the circumstances appearing in the record. Sufficient notice has been given by Complainant [*40] with regard to each proceeding. The postponement of the hearing was properly sought and granted with Respondent's concurrence. There is no indication that Complainant has been dilatory in any manner or that anything has been concealed by Complainant. Nor is there any showing of confusion on the part of Respondent's representative which has been to the prejudice or detriment of Respondent's rights. In fact, Respondent's representative concedes on the record that Respondent has received full opportunity to defend against the evidence put in by Complainant. (Record Vol II, pg 181).

On the night before the August 13th inspection the CSHO received two telephone calls notifying him of the failure of the jumbo boom at the forward end of No. 4 hatch aboard SS SAMOA BEAR. These calls came from a former business agent and from the business agent of Local 10 of a union representing some of Respondent's employees. There is no showing as to whether these men were working aboard SS SAMOA BEAR or whether they were employed by Respondent. Respondent argues that these phone calls are "complaints" which must, under Section 8(f)(1) of the Act, be reduced to writing and submitted to [*41] Respondent no later than the time of the ensuing inspection. Admittedly the two calls involved here were not reduced to writing. The calls were made late on a Saturday evening and the inspection was made the following morning. However, at the time the CSHO arrived near No. 4 hatch aboard SS SAMOA BEAR he advised Respondent's supervisor present at the scene (the walking boss in the absence of Respondent's superintendent) that he was there to investigate the failure of the jumbo boom. The CSHO invited that supervisor to accompany him on the inspection. The supervisor declined. The subsequent failure of the gear at the aft end of No. 4 hatch occurred in the hearing and presence of the CSHO while he was still at the hatch.

Section 8(f)(1) provides in pertinent part:

(f)(1) Any employees or representatives of employees who believe that a violation of a safety or health standard exists that threatens physical harm, or that an imminent danger exists, may request an inspection by giving notice to the Secretary or his authorized representative of such violation or danger. Any such notice shall be reduced to writing, shall set forth with reasonable particularity the grounds [*42] for the notice, and shall be signed by the employees or representative of employees, and a copy shall be provided the employer or his agent no later than at the time of inspection . . . (Emphasis added.)

Based on the admitted failure of the CSHO to deliver a written copy of the notice concerning the failure of the jumbo gear, Respondent would have the Citations dismissed. The section does not support such a result. The purpose of the section is to give the employees an opportunity to request a special inspection when they think a dangerous situation exists. The furnishing of a written copy of the notice was for the benefit of the Secretary so that he would have sufficient facts available to determine whether an inspection was necessary. The Congressional Committee was concerned with the possibility of employees harassing an employer by requesting frequent inspections. This in turn would overload the Secretary's inspectors with unnecessary inspections. To obviate this as far as possible the notice was required to be in writing. The Committee report specifically notes that even though the notice is to be in writing, "The Committee intends that notification may [*43] first be made by telephone, and that where an immediate harm is threatened, such as in an imminent danger situation, the Secretary should not wait receipt through the mail of the written notification before beginning his inspection." (Legislative History of the Occupational Safety and Health Act of 1970, pgs 151, 152, 172 and 520; Committee Report pgs 11, 12 and 32.) There is nothing in the legislative history which would indicate that failure to give a copy of the notice to the employer should invalidate the ensuing inspection. In fact the indications are that the copy for the employer is a courtesy only so that he will have notice of the condition complained of. So long as the employer receives such notice no later than at the time of the inspection, the provisions of Section 8(f)(1) are safisfied.

The oral advice of why he was there given to Respondent's walking boss by the CSHO on his arrival at No. 4 hatch fulfills the notice requirement. As noted above the subsequent casualty at the after end of the hatch occurred in the presence of the CSHO while he was inspecting the previous gear failure. Section 8(a) and 17(f) of the Act provide for inspections without prior notice [*44] during regular working hours. The CSHO was present during regular working hours on August 13th and thus was fully entitled to inspect any existing work conditions including the casualty occurring in his presence. There is nothing in the circumstances under which this inspection was made which invalidates the inspection.

Likewise, the failure of the CSHO to present his credentials in a formal manner does not invalidate the inspection. There is no indication of any prejudice accruing to Respondent from the manner in which the CSHO identified himself. It is obvious on this record that Respondent's representatives at the scene were fully aware of the identity of the CSHO and the reason for his presence. Members of the longshore gangs also knew why he was present. Although the CSHO did not meet with Respondent's superintendent until immediately after the casualty at No. 4 aft, he had already spoken with Respondent's walking boss. In these circumstances it is concluded that the identity and purpose of the CSHO were sufficiently established to satisfy the requirements of 29 CFR 1903.7(a).

Complainant's amendment of the original complaint was accomplished in a proper manner. [*45] Respondent did not object to the amendment when proposed and has not shown any prejudice to its position from permitting the amendment. The Citation and the original complaint alleges that Respondent exceeded the safe working load of the cargo gear at the aft end of No. 4 hatch aboard SS SAMOA BEAR. The amended complaint alleges failure of Respondent to provide a place of employment free from recognized hazards asserting that such failure results from hoisting a 5 ton load on booms rigged in union purchase when the safe working load of the booms was 5 tons. Proof of either of these propositions is essentially the same except that under the amendment Complainant must also show that the hazard involved in a recognized hazard. The amendment actually increases Complainant's of proof. The complaint as amended also satisfies the primary purpose of pleadings. It clearly advises Respondent of the allegations against it and affords the opportunity to defend against them. In any event Respondent's representative concedes on the record that Respondent has been afforded full opportunity to defend against the evidence offered. Thus there is no prejudice shown and no reason to dismiss [*46] on this ground. All of the reasons advanced by Respondent having failed, the motion to dismiss is denied.

Citation for Serious Violation

This Citation, as originally written, alleged violation of 29 CFR 1918.51(a). That section provides that neither the safe working load specified in the cargo gear certificate nor any safe working load marked on the booms shall be exceeded. This Citation, as recited in the complaint, was subsequently amended so as to allege violation of Section 5(a)(1) of the Act -- the general duty clause -- in that Respondent failed to provide its employees a place of employment free from recognized hazards. Alternative theories of this failure are proposed in the amendment.

The cargo gear in question here is the two booms at the after end of No. 4 hatch aboard SS SAMOA BEAR. They are rated with a safe working load of 5 tons. This rating applies when they are used separately as swinging booms. When they are married in union purchase their safe working load is reduced by 50% so that they can only hoist a load of 2 1/2 tons. On August 13, 1972, the forward 10 ton booms and the jumbo boom at No. 4 hatch were not useable due to an earlier casualty [*47] to the jumbo boom.

In preparing for discharge of cargo Respondent's superintendent instructed Respondent's walking boss to remove the center pontoor at No. 4 hatch. The walking boss protested that it was too heavy for the gear but was told by the superintendent to take it out "anyway." The longshore gang hooked on to the pontoon with the after gear which was rigged in union purchase. When the pontoon was about half-way between the hatch and the vessel's side the upper pendant on the vang guy of the midship boom carried away. The midship boom smashed into the forward end of the midship house, dropping the pontoon onto the aft starboard winch and the hatch coaming. Fortunately no one was injured by the dropped load or the flying parted vang guy.

Respondent's superintendent testifies that he thought the pontoon weighed about 2 1/2 tons and that the gear in use was capable of hoising approximately 3 tons. There was no marking on the pontoon to show its weight. Subsequent to the casualty the pontoon was found to weigh 10,000 pounds. Respondent has worked cargo aboard SS SAMOA BEAR and her sisters on many occasions (in excess of 390) and thus has experience with the capacity of [*48] each of the various sets of her cargo gear as well as with the weights of her pontoons. Respondent's superintendent admits he has worked aboard her several times and states that he cannot remember removing the pontoon in question with the after gear at No. 4. The 10 ton booms at the forward end are normally used. He admits that the cause of the gear failure was overloading of the gear which placed excessive strain on the vang guys. Such overloading coupled with tightlining during movement of a pontoon over the cargo container on deck is the primary cause of gear failure.

In this particular instance the cargo runners were heard to "sing" in such a manner as to indicate a heavy load during the hoisting of the pontoon. At a point just before the gear failure at least three of the witnesses concluded that the load was too heavy. Each witness promptly betook himself to a place of safety before the failure. Respondent would point to these men as having failed in a duty to halt the load before the gear failure. This does not follow. The evidence shows that the load was in full view and sound of the winch driver and thus would ordinarily not require a signal from anyone [*49] with regard to movements of the load until it was over the dock. Respondent cannot avoid its responsibility in this manner by passing that responsibility to its employees.

The evidence is clear. The cargo gear failed because the pontoon was too heavy for safe use of the gear. The vang guy pendant parted because excessive strain was placed on it in attempting to lift the pontoon high enough to clear the cargo van stowed on deck. Respondent's past experience with this class of vessel and gear and particularly the extensive experience of Respondent's superintendent should have alerted them to the hazard. The superintendent was even warned of the danger before the hoisting began. The warning should have caused him to question the weight of the pontoon. The booms were clearly marked with their safe working load of 5 tons. He knew that rigging them in union purchase reduced that safe working load by 50%. Other safe means of removing the pontoon (the floating crane subsequently used) was readily available. Even in the face of these things the superintendent ignored all of them and ordered the pontoon removed with the 5 ton booms.

When all of these circumstances are considered [*50] it is obvious that a recognized hazard not only existed but was recognized by Respondent's employees. That hazard is hoisting too heavy a load on the cargo gear -- particularly when it was necessary to hoist the extra heavy load high enough to clear a cargo van eight feet high stowed on deck. This extra height actually compounded the danger by greatly increasing the stress on the vang guys. Respondent, through its superintendent, was certainly warned of this danger when the walking boss protested hoisting the pontoon. The warning was ignored and the casualty resulted. The ensuing casualty was exactly that which is expected when cargo gear is overloaded. Fortunately, the results were not as disastrous as could be expected. The violation is established under the general duty theory as well as under violation of 29 CFR 1918.51(a) theory.

This violation, as found above, clearly satisfies the criteria set forth in Section 17(k) of the Act. There is obviously a very substantial probability that death or serious physical harm will result from overloading a set of cargo booms. As noted by the professional men who testified, gear failure is most frequently caused by such [*51] overloading. When the failure occurs the heavy load is dropped and the gear which parts under heavy strain flies about the deck posing great and unavoidable danger to all of the longshoremen unfortunate enough to be working around and in the hatch. It must be, and is, concluded that this violation is serious in nature.

The appropriateness of a penalty assessed under the Act is determined by giving due consideration to the criteria contained in Section 17(j) of the Act. That section requires consideration of the size of Respondent's business, the gravity of the violation, Respondent's good faith and the history of any prior violations. Respondent is one of the largest, if not the largest, stevedore company in northern California with a daily average of 245 employees. More than 100 employees were working aboard SS SAMOA BEAR at the time of the casualty on August 13th. Respondent's weekly payroll averages $225,000.00. Respondent has a safety program which includes safety instructions and booklets as well as safety meetings. Respondent's good faith, at least as demonstrated by its superintendent at the scene on August 13th, is not of the highest order. Respondent's prior history [*52] shows citations for violations of eleven (11) separate safety and health standards prior to the incident which is the subject of this proceeding. One such violation was serious and one was found by an Administrative Law Judge to not be a violation. The gravity of this violation is of a high order because of the unpredictable result and danger arising when overloaded cargo gear carries away.

Giving due consideration to the foregoing items it is concluded that a penalty of $900.00 is appropriate under these particular facts.

Item 1 -- Citation for non-serious violation

This item alleges that Respondent used steel vang guy pulley blocks with frozen sheaves rendering them visibly unsafe at four of the cargo holds aboard SS SAMOA BEAR on August 13, 1972. There is clear evidence that at least six or seven separate sheaves were frozen. The witnesses differ as to whether the frozen sheaves were in the vang guy blocks or were in the vang guy lead blocks. This disagreement is really immaterial since both are an integral part of the cargo gear. The exhibits resolve the issue, however, since they show that the frozen sheaves were in the vang guy blocks.

The CSHO observed accumulations [*53] of rust on the sheaves and climbed up to the blocks and tested them by hand. Seven of the sheaves were frozen. There is no showing as to how many additional sheaves had visible accumulations of rust but were not forzen. The evidence is that rust is usually present to some degree aboard vessels. It is concluded that an accumulation of rust alone does not necessarily establish that a sheave is frozen or visibly unsafe.

The standard prohibits use of any component of cargo handling gear which is visibly unsafe until it is made safe. Vang guy blocks are "used" only to position the booms before cargo handling. Once the booms are spotted the blocks are no longer used as rolling or moving parts of the gear. Thus, even if a sheave was observed to have a heavy accumulation of rust, and was actually frozen, it would not be in "use" once the booms are spotted. The casualty involved here occurred at some time after the booms were spotted and use of the vang guy blocks had ceased. As an aside, it should be noted that the vang guy pendant which parted was not affected in any manner by the frozen sheave in the vang guy block.

Under the applicable standards (29 CFR 1918.51 [*54] and 1918.12 referred to in 1918.51) Respondent's superintendent is obligated to ascertain that a vessel has a current and valid cargo gear register before using her cargo handling gear. This is exactly what he did aboard SS SAMOA BEAR on August 13th. After observing the register he made a visual inspection of her decks before turning the longshoremen to. He thus fully complied with the requirements of 1918.12.

After full consideration of the foregoing discussion it is concluded that Complainant has failed to prove violation of the cited standard. The gear was not visibly unsafe. The Citation and proposed penalty are vacated.

Item 2 -- Citation for non-serious violation

This Item alleges that Respondent violated 29 CFR 1918.85(b)(6) by discharging inbound loaded containers without proof of weight and without the weight having been calculated and posted on the containers. That standard prohibits the discharge of loaded inbound containers from foreign ports unless they have been weighed or have the calculated weight posted on them. When the calculated weight is posted the posting must show a listing of the accurate weights of all the contents including the empty container [*55] weight and the source and date of the calculation.

Respondent argues that there is considerable confusion with reference to this standard and would interpret it differently than Complainant. In furtherance of this argument Respondent introduced a document which allegedly contains additional interpretations. There is no real showing of the source or legal effect of the document. In any event, it does not support Respondent's position. The cited standard is unambiguous. (See the wording quoted hereinabove at pages 810-811.) The standard clearly states that if a loaded inbound container has not been weighed its weight must be calculated and posted on the container. The posted calculation must include a listing of the accurate weight of the contents and of the empty container together with the source and date of the calculation. There is nothing confusing or vague about this requirement. If the container has been weighed then its weight certificate is enough. If not, the calculation must be posted. This is not an oppressive requirement. Certainly it is in the best interest of everyone involved to know the exact gross weight of the contaner. Not only to protect the longshoremen, [*56] but to be sure the container itself is not structurally overloaded or that the capacity of the cargo gear handling it is not exceeded.

The instant matter is an excellent example of why this standard is necessary. When questioned by the CSHO neither Respondent's superintendent nor the representative of the vessel could tell him whether the specific container had been weighed. The placard on the container showed a gross weight of 43,600 pounds (19.5 long tons). The vessel's cargo list showed its weight to be 41,180 pounds (18.4 long tons) and the vessel's cargo plan 19 long tons (42,560 pounds). When the container was weighed at the request of the CSHO it was found to weigh 63,410 pounds (28.3 long tons) gross and 47,420 pounds net. Thus its true weight was actually about 9 tons more than shown on the placard posted on the container at the time of discharge. This range of weight difference could be disastrous. If longshoremen using cargo gear rated at 20 tons (which they could with the weight posted on the placard) or even 25 tons capacity had attempted to hoist this container the gear would very likely have failed. This, even though they were apparently well within [*57] the gears rated capacity. This is the exact situation which compliance with the standard should avoid.

The violation of 29 CFR 1918.85(b)(6) is clearly established by the evidence. Under the circumstances involved it is classed as a non-serious violation. This Item of the non-serious Citation is affirmed. Considering the Section 17(j) criteria and particularly because Respondent must, to a very great extent, rely upon the vessel owner to post accurate weights on the containers, I conclude that there is no reason to assess a penalty in connection with this Item. The affirmance of the Citation should be sufficient emphasis to effectuate the purpose of the Act and encourage Respondent's future compliance.

Consequently, based upon the evidence adduced and after due consideration of the briefs and other submissions by each party, I make the following:

FINDINGS OF FACT

1. Respondent, California Stevedore and Ballast Company, is a California Corporation maintaining a place of business at Pier 27-29 in San Francisco, California. At all times relevant hereto Respondent was engaged in longshoring operations and related employments as those terms are defined at 29 CFR 1910.16(b)(1) [*58] and (2). (Stipulation P's 1 & 2.)

2. The vessels loaded and unloaded by Respondent and its employees arrive from foreign or out of state ports or are destined for foreign or out of state ports. At all times relevant hereto Respondent was engaged in a business affecting commerce within the meaning of Section 3 of the Act (Stipulation P3.)

3. On August 13, 1972 Respondent was engaged in discharging cargo from SS SAMOA BEAR while she lay starboard side to Pier 27 at San Francisco. Respondent had over 100 employees working aboard her on that date at Numbers 2, 3, 4 and 6 cargo holds. These employees are represented by Locals 91 and 10 of the International Longshoremen's and Warehousemen's Union as their authorized representative. (Stipulation P's 8 and 9, Record Vol I, pg 134 and Vol II, pg 15.) A representative of Local 10 appeared at the beginning of the trial but departed during the first day and did not return.

4. On the night of August 12, 1972, the Compliance Safety and Health Officer (CSHO) received two telephone calls advising him of the failure of a jumbo boom at No. 4 hatch aboard SS SAMOA BEAR. The first caller was a former business agent of Union Local 10 and the [*59] second caller was the business agent from the same Local. The CSHO visited SS SAMOA BEAR on the morning of Sunday, August 13th to inspect the casualty. When he boarded the vessel he did not see Respondent's superintendent about the dock or vessel, but did talk to one of Respondent's walking bosses and explain why he was there. The walking boss was offered the opportunity to accompany the CSHO on the inspection but declined. (Record Vol I, pgs 132-133 and Vol II, pg 30.)

5. While inspecting the jumbo gear which had failed, the CSHO circled No. 4 hatch. The jumbo gear and the regular 10 ton booms at the forward end of No. 4 were not useable for cargo operations. The cargo booms at the aft end of No. 4 hatch were being used by a longshore gang composed of Respondent's employees. After circling the hatch and immediately before leaving the starboard passageway of the midship house for the open deck at No. 4 hatch aft, the CSHO heard the winches making a sound which indicated to him that a very heavy load was being hoisted. He stopped within the safety of the passageway. Suddenly the load dropped and the midship boom smashed into the forward end of the midship house. [*60] No one was injured. (Record Vol I, pgs 87, 105, 134-135 and 146-147 and Vol II, pg 32-33 and 152-153.)

6. The load being hoisted at the time of the gear failure was the center pontoon from the upper tween deck of No. 4 hatch. The weight of the pontoon was not marked or indicated on the pontoon until after the casualty. It was subsequently found to weigh 5 long tons. (Record Vol I, pgs 64-65, 104-105, 109, 117-118 and 151, Vol II, pgs 136-137.)

7. At the time of the casualty a cargo container, 8 feet high, was stowed on the starboard side of the main deck at the after corner of No. 4 hatch in such a position as to require hoisting of the pontoon over the top of the container during discharge. (Record Vol I, pgs 62, 100, 107-108, 154 and Vol II, pgs 154 and 180.)

8. Subsequent inspection revealed that the cause of the gear casualty at No. 4 aft was the carrying away of the upper vang guy pendant on the midship boom. The pendant parted about 1 1/2 inches below the swage at the upper end of the pendant. This parting of the pendant allowed the midship boom to swing to starboard, dropping the pontoon, and striking the forward end of the midship house. (Record Vol I, pgs 65-66 [*61] and 147-148.)

9. Following the casualty the upper sheave in the lower vang guy block on the port, after boom at No. 4 hatch was found to be frozen and uable to turn. In addition, six other similar sheaves located in gear at other hatches were also found to be frozen. In each case the frozen sheave was the upper sheave of the lower vang guy block. (Record Vol I pgs 149-153, Vol II, pg 7.)

10. The cargo gear in use at the after end of No. 4 hatch aboard SS SAMOA BEAR on August 13th had a rated safe working load of 5 tons. This safe working load, which was marked on the booms and recorded in the vessel's cargo register, was limited to use of each boom as a swinging boom. At the time of the casualty the booms were rigged in union purchase and thus their joint safe working capacity was reduced by 50% to 2 1/2 tons. (Record Vol. I, pgs 150, 166-168 and Vol II, pgs 15, 43, 65-66, 81, and 175-176.)

11. On August 13, 1972 Respondent's employees discharged a loaded container inbound from a foreign port from SS SAMOA BEAR. The container had not been weighed nor did the placard on it show a calculation of its weight in accordance with the requirements of 29 CFR 1918.85(b)(6). [*62] The placard showed a gross weight of 19.5 long tons whereas the container was found to actually weigh 28.3 long tons. The cargo list showed the container as weighing 18.4 long tons and the cargo plan as weighing 19 long tons. (Exhibits C-17 and R-B, Record Vol I, pgs 174-176 and Vol II, pgs 5 and 123.)

12. As a result of the inspection of Respondent's work site aboard SS SAMOA BEAR, a Citation for Serious Violation and a Citation covering two items of non-serious violations were issued to Respondent on August 24, 1972 alleging violations of specific safety standards. On the same date a Notification of Proposed Penalty was also sent to Respondent proposing assessment of a penalty of $700.00 in connection with the Citation for Serious Violation and $70.00 in connection with Item 1 of the Citation for non-serious violations. The violations alleged are set forth above at pages 3 and 4. (File Citation, Notification of Proposed Penalty and Stipulation P's 4 and 5.)

13. Respondent filed a timely notice contesting the Citations and Proposed Penalties. (File, Stipulation P's 6 and 7.)

14. Subsequently Complainant moved to amend the complaint so as to allege that the serious violation [*63] was a violation of the general duty clause, Section 5(a)(1) of the Act, rather than a specific safety standard. (File.) Respondent received full opportunity to defend against this amended allegation and the proof offered thereon. (Record Vol II, pg 181.)

15. Prior to August 13, 1972, Respondent was inspected by a Compliance Safety and Health Officer on several occasions. Citations were issued for violation of at least eleven (11) separate standards, one of which was serious. All but one of the Citations has become final. The other Citation was held by an Administrative Law Judge to not be a violation (Record Vol II, pgs 17-20 and 56-60.)

16. Respondent maintains a good safety program and conducts safety meetings with its employees. (Record Vol II, pgs 9, 160-162).

CONCLUSIONS OF LAW

1. At all times material hereto, Respondent, California Stevedore and Ballast Company, was an employer engaged in a business affecting commerce within the meaning of Section 3 of the Occupational Safety and Health Act of 1970. On September 15, 1972, Respondent filed a letter contesting the Citations and penalties proposed in connection with the violations herein. Respondent thereby [*64] brought itself and the subject matter of this proceeding within the jurisdiction of the Occupational Safety and Health Review Commission. Respondent has stipulated to this jurisdiction. (Stipulation P7.)

2. Complainant's amendment of the complaint was properly granted and gave Respondent full knowledge of the allegations against it with full opportunity to defend against the allegations and proof offered by Complainant.

3. The inspection of Respondent's workplace was properly conducted in substantial compliance with the requirements of the Act. The failure of the Compliance Safety and Health Officer to reduce the notice of the failure of the jumbo gear to writing does not invalidate the inspection. Respondent received notice of the reason for the CSHO's presence through his advice to Respondent's walking boss who served as Respondent's representatives when Respondent's superintendent was unavailable. The requirements of Section 8(f)(1) of the Act have been satisfied.

4. The hoisting of the pontoon using the cargo gear at the after end of No. 4 hatch rigged in union purchase was a violation of Section 5(a)(1) of the Act in that the hazard involved in hoisting an excessive [*65] load on a union purchase rig is and should be easily recognized by all who were involved. The hazard was actually recognized by Respondent's walking boss. This violation is a serious violation within the meaning of Section 17(k) of the Act. Under the circumstances here a penalty of $900.00 is appropriate.

5. The seven (7) sheaves of the vang guy blocks found to be frozen in Finding 9 do not constitute a visibly unsafe condition. Their existence is not a violation of 29 CFR 1918.51(b). Item 1 of the non-serious Citation and the penalty proposed in connection therewith are vacated.

6. The improper display of the weight on the cargo container as found in Finding 11 was in violation of 29 CFR 1918.85(b)(6). Item 2 of the non-serious violation and the proposed penalty of $0 is affirmed.

ORDER

Based upon the foregoing Findings and Conclusions and for good cause shown, it is hereby

ORDERED that:

1. The Citation for serious Violation be, the same hereby is, AFFIRMED and a penalty of $900.00 is assessed in connection therewith;

2. Item 1 of the Citation for non-serious violation and the $70.00 penalty proposed in connection therewith be, and the same hereby is, VACATED; [*66] and

3. Item 2 of the Citation for non-serious violation and the $0 penalty proposed in connection therewith be and the same hereby is, AFFIRMED.