TEXPORTS STEVEDORE COMPANY, INC.
OSHRC Docket No. 18
Occupational Safety and Health Review Commission
January 18, 1973
Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners.
OPINIONBY: BURCH
OPINION:
BURCH, COMMISSIONER: On December 10, 1971, Judge David H. Harris issued his decision and order in the captioned case, affirming the Secretary's citation for serious violation, vacating the proposed penalty of $700, and assessing a penalty of $800.
On January 12, 1972, Chairman Moran directed that the decision of the Judge be reviewed by the Commission in accordance ith section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., 84 Stat. 1590, hereinafter referred to as "the Act").
The Commission has reviewed the entire record, including the briefs and exceptions of the parties. We adopt the Judge's Findings of Fact and Conclusions of Law.
Accordingly, it is ordered that the Judge's decision is hereby affirmed in all respects.
DISSENTBY: MORAN
DISSENT:
MORAN, CHAIRMAN, dissenting: This case was initiated only two months after the effective date of the Act at a time when it appeared that every industrial accident triggered an investigation by the Labor Department's Occupational Safety and Health Administration (OSHA) and every such investigation resulted in a citation for some kind of violation.
In this case, an employee was injured when a bale fell upon him during the process of unloading cargo from a barge.
The accident happened on June 30, 1971, at or about 10:20 a.m., while the employee, an experienced mechanic, was repairing a forklift truck then located in an open space in the hold of a barge. The hold was loaded with bales of pulpwood, stacked two high. The forklift had broken down approximately 15 minutes before the accident. The barge at that time was in the water on the channel side of a motor vessel which was moored to a dock.
Approximately one-half hour after the accident, two OSHA compliance officers conducted an inspection of the premises. Subsequently, the Secretary of Labor, pursuant to Section 9(a) of the Act, caused a citation to be issued to the respondent on the basis of the above facts alleging a violation of Section 5(a)(2) of the Act for noncompliance with the Safety and Health Regulations for Longshoring published in Volume 29 of the Code of Federal Regulations, specifically, Section 1504.83(b). n1
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n1 The cited regulation was redesignated on December 30, 1971, and is now found at 29 C.F.R. 1918.83(b).
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The standard allegedly violated provides as follows:
(b) In breaking down, precautions shall be taken, when necessary, to prevent the remaining cargo from falling.
To establish a violation of this requirement, its two essential elements must be proved:
(1) it was necessary that precautions be taken to prevent the remaining cargo from falling, and
(2) this was not done by respondent.
The complainant's case begins with the fact that a bale fell upon a workman and concludes that it would not have happened had the respondent taken precautions to prevent the cargo from falling. There is nothing else to substantiate the alleged violation.
The evidence reveals that the exact time when the respondent is alleged to have been in violation was simultaneously with or prior to the moment the bale fell upon the mechanic.
Except for the fact that a bale fell, there was no evidence in this record from which a violation could be established at any such time. The only witnesses who observed the cargo prior to the accident agreed that it was stowed properly.
The 5th Circuit Court of Appeals, in construing the regulation at issue in this case, held in the case of Scott v. SS Ciudad de Ibague, 426 F. 2d 1105, 1112 (5th Cir. 1970) that:
A reasonable inspection by the stevedoring foreman had failed to disclose any defect in the stow, and no defect was observable by the longshoremen who were removing the cargo. Under these circumstances the stevedoring contractor had no reason to take extraordinary precautions in breaking down the cargo. The mere fact that the sacks of coffee fell is simply not enough to convict the stevedore of a violation of either the statute or the regulation.
The evidence in the case under consideration is strikingly similar to the above-cited case.
This case is not only contrary to this Court decision, but to several recent decisions of this Commission which in essence have ruled that the mere happening of an accident is insufficient to establish a violation of the Act. (Secretary of Labor v. Hanovia Lamp Division, OSAHRC No. 89, December 13, 1972; Secretary of Labor v. Koppers Company, Inc., OSAHRC No. 402, August 21, 1972; Secretary of Labor v. American Roof Slab Company, Inc., OSAHRC No. 219, July 5, 1972).
[The Judge's decision referred to herein follows]
HARRIS, JUDGE, OSAHRC: This is an action under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. et seq. (hereinafter the Act), to review a citation issued by the Secretary of Labor (hereinafter Secretary) pursuant to Section 9(a) of the Act and a proposed assessment of penalty thereon issued pursuant to Section 10(a) of the Act.
The citation (P-1), issued on August 5, 1971, alleges that Texports Stevedore Company, Inc., the employer, (hereinafter Texports), in a workplace under its ownership, operation or control, namely the barge MBL 880 (hereinafter barge) tied up outboard of a vessel named Sucre at City Dock 46 in the City of Houston, Texas, was in violation of the Act in that it violated regulation 29 CFR 1910.16/1504.83(b). Under the column headed "Description of alleged violation" appears the statement "Employee struck by falling cargo (Kenneth W. Quinn 6-30-71)" and under the column headed "Date on which alleged violation must be corrected" appears the statement "Corrected." The citation alleges that the violation charged is a "serious violation" within the meaning of Section 17(k) of the Act.
A "Notification of Proposed Penalty" (P-2), issued on the same date, August 5, 1971, proposes assessment of a penalty in the sum of $700 against Texports.
Texports filed a Notice of Contest on August 12, 1971, in which it contested both the citation (P-1) and the proposed penalty (P-2). Texports acknowledged that it received the citation and the Notification of Proposed Penalty on August 5, 1971, and the Secretary acknowledged receipt of the Notice of Contest (Tr. 5).
It was stipulated that Texports posted the citation (P-1) and the Notification of Proposed Penalty (P-2) on or about August 9, 1971, in its gear room and in the office of its Chief Superintendent and that notice of the time and place of the hearing was served upon its employees (Tr. 5).
The within matter was referred to the Occupational Safety and Health Review Commission for hearing pursuant to Section 10(c) of the Act on August 17, 1971, and on August 26, 1971, the undersigned was appointed and the within matter asigned to him for hearing pursuant to Section 12(e) of the Act.
Pursuant to notice and by agreement of the parties, a prehearing conference and the hearing were held on September 21, 1971, in Houston, Texas.
Having heard the testimony of the witnesses and having considered the same together with the exhibits and the stipulations, representations and admissions of the parties, it is concluded that the substantial evidence, on the record considered as a whole, supports the following findings of fact.
FINDINGS OF FACT
1. Texports, a corporation organized under the laws of the State of Texas, with its principal office in the city of Houston, Texas, was, at all times mentioned herein, engaged in the business of supplying longshoring and stevedoring services for the loading and unloading of cargo into and from vessels of all types while in the port of Houston, Texas. Such cargo included cargo originating from and destined for delivery to various points in different states in the United States and in foreign countries. The said longshoring and stevedoring services included the furnishing of the labor of stevedores and the supplying of various types of cargo moving machinery (Tr. 5-6).
2. Based on the number of paid man-hours in 1971, Texports is the fourth largest of about 20 stevedoring companies, employing 100 or more stevedores on an average daily basis in Houston, Texas (Tr. 5-6; 116-117).
3. Texports employs 13 regular daily full-time employees and 121 stevedores on an average daily basis (Tr. 5-6).
4. The citation (P-1) and the Notice of Proposed Penalty (P-2) were posted on August 9, 1971, at Texports gear room and at the office of its Chief Superintendent. Notice of the time and place of the hearing were served upon the employees of Texports (Tr. 5).
5. No employee of Texports expressed a desire to participate in the proceedings in response to an invitation to be announced at the hearing other than Kenneth W. Quinn (Tr. 12-15).
6. The barge MBL 880, loaded with bales of pulpwood, each bale consisting of 8 bundles of pulpwood banded together, lay on the channel side of the motor vessel Sucre which was moored to Dock No. 46, Houston, Texas (Tr. 16-17; 30; 122).
7. Barge MBL 880 was moored to the port side of the Sucre so that its bow faced the stern of the ship (Tr. 58; 111-112; 129).
8. The bales of pulpwood, roughly rectangular in shape, each weighing 4200 lbs., were loaded into the barge at and by Champion Paper Company (Tr. 58-59; 72) and were in tiers, two bales high with a clear space 15 feet square left in the fore and aft ends of the barge to accomodate a fork lift machine (Tr. 56; 57; P-3; P-4).
9. On June 29, 1971, Texport's Superintendent of Stevedoring ordered a forklife machine lowered into the aft hold of the barge MBL 880. The machine was put into the hold at about 4 p.m. on that day. He did not inspect the stow at that time (Tr. 127; 136; 140).
10. At about 7:30 a.m. on June 30, 1971, a gang of longshoremen, members of Local 872, ILA, began to unload bales of pulpwood from the forward hatch of the barge for lifting and loading into the #4 hold of the Sucre (Tr. 65; 111; 117; 141).
11. The work of unloading the after end of the barge began at about 10 a.m. on June 30, 1971 (Tr. 31; 136).
12. Texport's Superintendent of Stevedoring was present at approximately 10 a.m. on June 30, 1971, when the after hatch cover of the barge, which had apparently been replaced when the forklift machine was lowered into the hold the day before, was rolled back (Tr. 136; 141).
13. The Superintendent, standing on the deck of the Sucre, inspected the condition of the stow of the pulpwood bales in the after hold of the barge (Tr. 141-142; 147; 148; 150).
14. The Superintendent's inspection took about 2 minutes (Tr. 149) from a point 12 feet above the deck of the barge and about 15 feet 6 inches from the top of bales in the barge's hold (Tr. 148-149) covering an area, through the open hatch, of about 25 feet by 30 feet (Tr. 147; 148-149) which exposed to view 12 bales in 3 rows extending from the open space left in the hold for the forklift, forward toward the bow of the barge (Tr. 149).
15. The Superintendent, after observing the cargo (Tr. 137) and not observing any leaning bales determined that the stow was proper, and sent the men into the hold (Tr. 139; 142; 145-146).
16. The dunnage was not visible to the Superintendent from his vantage point on the deck of the Sucre (Tr. 143).
17. After sending the men into the after hold of the barge to commence the unloading, the Superintendent left to attend to other duties (Tr. 144).
18. At the time of his inspection of the stow in the after hold of the barge at about 10 a.m. on June 30, 1971, the Superintendent saw no need to take any precautions (Tr. 59; 147).
19. If the Superintendent had noticed a leaning bale he would have forbidden the men to go into the hold of the barge and issued orders to unload from the forward end of the barge or if this could not be done, to return the barge to the place where it came from (Tr. 145).
20. Having determined that the cargo was in good shape the Superintendent left no instructions with the men with regard to precautions to keep the cargo from falling (Tr. 144).
21. According to the Superintendent, if any cargo started falling, the work would be stopped, the men removed from the hold of the barge, precautions would be taken to secure the cargo and a decision made to remove all of the cargo from the other end of the barge (Tr. 147).
22. After the Superintendent's inspection of the stow in the after hold of the barge at about 10 a.m. on June 30, 1971, four stevedores, all members of Local 1273, ILA (Tr. 42), commenced the work of unloading the bales of pulpwood (Tr. 29-30; 31, 55).
23. Three or four bales had been discharged from the barge to the ship without incident when Stevens, the stevedore who was operating the forklift, jiggled his machine in order to free the forks which had become caught in one of the bales on the upper tier (Tr. 31; 34; 38) as a result of which the bale fell and damaged the forklift (Tr. 44; 49-50; P-3A3).
24. During the time the men were in the after hold of the barge, several tugs passed in the channel causing the barge to rock (Tr. 60; 62).
25. When the forklift was disabled by the fallen bale, Texport's mechanic was sent for to make the necessary repairs (Tr. 31).
26. The stevedores remained in the after hold of the barge and several made an effort to get the forklift working again (Tr. 31-32; 45-46).
27. The mechanic was in hatch #3 aboard the Sucre when Texport's Superintendent called down to him to repair the forklift aboard the barge (Tr. 66).
28. After observing, from the deck of the Sucre, that the forklift needed some chain links, the mechanic telephoned Texport's shop for the parts and climbed down into the barge (Tr. 66-67).
29. The mechanic examined the cargo from the deck of the Sucre (Tr. 69). The stow looked tight and "square" to him before he climbed down into the barge (Tr. 70; 73).
30. No precautions to tie, block or secure the cargo had been taken when the mechanic climbed down among the men in the hold of the barge (Tr. 69-70; 84; 85; 91; 104; 126).
31. While the mechanic was engaged in repairing the forklift another bale fell from the upper tier in the barge, striking and severely injuring him (Tr. 32; 34-35; 50; 54; 60; 68; P-3B).
32. No force was exerted against the bale which fell and struck the mechanic (Tr. 44).
33. From 10 to 15 minutes elapsed between the time the bale which damaged the forklift fell and the falling of the bale which injured the mechanic (Tr. 51).
34. The stevedore gang foreman order the men out of the barge after the mechanic was removed and no further work was done in the after hold of the barge on that day (Tr. 37; 39; 40; 41-42; 51).
35. A third bale fell from the upper tier after the mechanic had been removed and the men had left the barge without any force being exerted against it (Tr. 45-46; 47-48; 50; P-3C).
36. No instructions to secure the remaining cargo to keep it from falling were given the stevedores in the after hold of the barge after the first bale which disabled the forklift fell from its place (Tr. 36; 49; 59).
37. Precautions should have been taken to prevent bales in the upper tier on the barge from falling (Tr. 92: 106).
38. The condition of the cargo on the barge, after the fall of the first bale, was analagous to one where the cargo had shifted (Tr. 121). Some of the bales were leaning (Tr. 83; 102; 118; 142; P-3; P-4).
39. A wave from any passing vessel could have moved the cargo aboard the barge as shown in P-3 (Tr. 124) which, except for the bales which had been removed, represents the way the cargo looked when the mechanic climbed down into the barge after being summoned by Texports' Superintendent (Tr. 66; 71-72).
40. The president of Local 1273, ILA, was present at the scene of the occurrence aboard the barge MBL 880 on June 30, 1971, and had actual knowledge thereof (Tr. 20; 26; 42; 100).
41. The work of longshoremen is hazardous and these workers have one of the highest accident frequency rates in the United States (Tr. 115; 134).
42. There is no evidence that Texports issued any instructions to the foremen of stevedore gangs supplied to it by Locals of the ILA to cease work and report any falling or shifting of cargo to its Superintendent of Stevedores.
43. There is no evidence that Texports organized, sponsored or participated in any means of educating or instructing longshoremen in procedures to improve safety conditions in and about their places of employment.
44. There is no evidence of any past violation of any safety or health regulations by Texports (Tr. 109).
45. The failure to take precautions to prevent the remaining cargo in the after hold of barge MBL 880 from falling after the dislodging of the bale which damaged the forklift hereinabove, in view of the type of the bales of pulpwood, their size, weight and shape, under the conditions hereinabove described, created a substantial probability that death or serious physical harm could result.
CONCLUSIONS OF LAW
1. At all times mentioned herein Texports was and is an employer engaged in a busines affecting commerce within the meaning of Section 3 of the Act and the Occupational Safety and Health Review Commission has jurisdiction of the parties and of the subject matter herein.
2. Pursuant to Section 6(a) of the Act, the Secretary, on May 29, 1971, adopted 29 CFR 1504, an established Federal Standard in effect on and before April 28, 1971, 29 CFR 1910.16. That standard was effective at all times mentioned herein as to those employers subject to the Longshoremen's and Harbor Workers' Compensation Act, as amended 33 U.S.C. 941, et seq.
3. Texports was, prior to May 28, 1971, and at all other times mentioned herein, an employer subject to the Longshoremen's and Harbor Workers' Compensation Act, as amended, and was and is subject to the aforesaid Safety and Health Regulations promulgated by the Secretary of Labor.
4. 29 CFR 1504, provides, among other things, as follows:
§ 1504.83 Stowed cargo, tiering and breaking down.
(b) In breaking down, precautions shall be taken, when necessary, to prevent the remaining cargo from falling.
5. Texports is chargeable with knowledge of the fact that the remaining cargo in the barge had become unstable after the fall of the first bale of pulpwood which disabled the forklift machine.
6. Texports was in violation of 29 CFR 1504.83(b) on June 30, 1971, in that it failed to take necessary precautions to prevent the remaining cargo in the after hold of the barge MBL 880 from falling.
7. The determination by the Area Director of the Occupational Safety and Health Administration that the said violation should be considered a serious violation is supported by the evidence.
8. The proposed penalty in the sum of $700 which includes favorable consideration based upon good faith, under the circumstances herein, is inappropriate.
ORDER
In view of the foregoing and having duly considered the gravity of the violation, the good faith of Texports and its history of previous violations and good cause therefore appearing hereinabove, it is
ORDERED, That:
1. The citation herein (P-1), issued by the Secretary of Labor, be and the same is hereby affirmed.
2. The proposed penalty of $700 (P-7), be and the same is hereby vacated.
3. Texports be and it is hereby assessed and required to pay a penalty of $800.