U.T.S., A DIVISION OF UNIVERSAL MARITIME SERVICE CORP.
OSHRC Docket No. 4956
Occupational Safety and Health Review Commission
September 9, 1976
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor
Joseph Grainger, for the employer
OPINIONBY: BARNAKO
OPINION:
DECISION
BARNAKO, Chairman:
An April 30, 1974 decision of Review Commission Judge John S. Patton is before this Commission for review pursuant to 29 U.S.C. 661(i). Judge Patton found Respondent in violation of 29 C.F.R. 1918.43(e) n1 and assessed a penalty of $500. For the reasons which follow, we affirm his decision.
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n1 The standard states, in pertinent part:
Any beam or ponton left in place adjacent to a section through which cargo, dunnage, equipment, or any other material is being worked, shall be lashed, locked, or otherwise secured so that it cannot be displaced by accident. . .
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The facts are these: In response to an accident report, an inspection of Respondent's longshoring operations in the Port of New York was conducted on September 21, 1973. The inspection revealed that a 2000-pound hatch beam beneath which employees were working [*2] had accidentally been lifted out of its socket and had fallen into the hatch. The accident resulted in minor injuries to three of Respondent's employees. The beam was equipped with latches to hold it in place. However, the latches had not been locked; the locks had been broken. Prior to the accident, Respondent had tied the beam down by hand with three inch manilla rope in order to hold it in place. No device such as a "Spanish line lash" was used to tighten the line. The rope had a capacity to hold 1,600 to 1,800 pounds but could stretch.
On these facts, Respondent was cited for a violation of 29 C.F.R. 1918.43(e). The Secretary issued the citation 18 days after the inspection.
The threshold issue raised by Respondent is whether the citation was issued with reasonable promptness as required by Section 9(a) of the Act. n2 Judge Patton's ruling that the citation was timely issued correctly anticipated our decision in Coughlan Construction Company, 20 OSAHRC 641, BNA 3 OSHC 1636, CCH OSHD para. 18,436 (1975). There we held that a citation can be vacated because of a delay in issuance if the employer is prejudiced as a result. Respondent has neither alleged nor adduced [*3] evidence to prove prejudice. In addition, as Respondent admits, reasonable promptness is a technical defense. The delay in this case was not so unreasonable as to allow a technical defense to preclude a decision on the merits. Thus, the Judge properly concluded that the citation was issued with reasonable promptness.
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n2 Section 9(a) states, in pertinent part:
If, upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a requirement of section 5 of this Act, of any standard, rule or order promulgated pursuant to section 6 of this Act, or of any regulations prescribed pursuant to this Act, he shall with reasonable promptness issue a citation to the employer.
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We have reviewed the record and find that the preponderant evidence supports the Judge's conclusion that Respondent violated the cited standard. Since the standard requires beams to be secured so they "cannot be displaced by accident," the fact that the beam was accidentally displaced establishes [*4] prima facie proof of a violation. Respondent contended that lashing is only required to hold a beam in place. As the Judge properly concluded, more is required; the beam must be secured so as to prevent accidental displacement.
Furthermore, we find the violation to be serious within the meaning of Section 17(k) of the Act. n3 Although in the present case employees suffered only minor injuries as a result of the accident caused by the inadequately secured beam, it is obvious that a one-ton beam falling into a hold where employees are working is likely to result in death or serious physical harm. The Commission has consistently affirmed serious citations in similar circumstances. California Stevedore and Ballast Company, 4 OSAHRC 642, BNA 1 OSHC 1305, CCH OSHD para. 16,520 (1973), aff'd. 517 F.2d 986 [3 OSHC 1174] (9th Cir. 1975); Crescent Wharf and Warehouse, 2 OSAHRC 1318, BNA 1 OSHC 1219, CCH OSHD para. 15,687 (1973); Northeast Stevedoring Company, Inc., 13 OSAHRC 105, 2 BNA 1332, CCH OSHD para. 19,001 (1974).
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n3 Section 17(k) states:
For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.
[*5]
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The element of knowledge necessary in order to find a serious violation is also satisfied here. n4 The Judge found that Respondent recognized that the absence of locks on the latches created an unsafe condition. Moreover, Respondent knew or should have known that manilla rope can stretch, thus failing to insure that the beam could not be accidentally displaced. Thus, Respondent knew or had reason to know of the violative condition.
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n4 Commissioner Cleary notes that the precedents holding that the Secretary must establish knowledge in order to prove a serious violation were not unanimous decisions. See, for example, D.R. Johnson Lumber Co., 17 OSAHRC 426, BNA 3 OSHC 1124, CCH OSHD para. 17,695 (1974).
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Finally, we consider the $500 penalty assessed by the Judge to be appropriate. Respondent is large, the gravity is high, and it had violated the cited standard and a similar prohibition in effect prior to this Act, a number of [*6] times at other locations. Respondent did take some precautions to prevent an accident. In light of these factors, we affirm the penalty assessed by the Judge.
Accordingly, the Judge's order is affirmed for the reasons assigned herein. It is so ORDERED.
DISSENTBY: MORAN
DISSENT:
MORAN, Commissioner, Dissenting:
The citation should be vacated because it was not issued with "reasonable promptness" as required by 29 U.S.C. § 658(a) and because the evidence is insufficient to establish that respondent violated 29 C.F.R. § 1918.43(e).
It is clear that in adopting 29 U.S.C. § The inspection of respondent's worksite in this case took place on September 21, 1973, and the citation was issued 18 days later on October 9, 1973 - 15 days later than Congress intended. Furthermore, complainant has not justified this delay by any semblance of "exceptional [*7] circumstances."
My colleagues, however, find that the citation was timely issued on the basis that the delay in issuance was not shown to be prejudicial. This, of course, is contradictory. Moreover, Congress did not relieve the Secretary of the requirement in section 658(a) in those cases where an employer does not establish that he was prejudiced by the delay.
The evidence adduced in this case shows that on the date of the incident a vessel containing tiered bags of cocoa forward of the hatch coaming of the No. 2 lower hold was being unloaded. The third beam from the forward end of the No. 2 hatch was discovered by respondent's supervisory personnel not [*8] to have workable safety clips or pins to lock it into place in two beam sockets. To secure the beam in the sockets, respondent tied both ends downward to rings on the ship's skin with 3" manila rope. The lines were inspected by respondent's terminal manager and accepted as safe. The beam was apparently lifted from its sockets when the crane cable snagged the beam while hoisting cargo and, as a result, the beam fell.
In considering whether respondent violated 29 C.F.R. § 1918.43(e), it is necessary to closely analyze the standard's requirements vis a vis respondent's conduct. The standard requires that "[a]ny beam . . . shall be lashed, locked, or otherwise secured so that it cannot be displaced by accident." (Emphasis added.) The respondent did lash the beam into the sockets with rope. As respondent's terminal manager testified the purpose of tying the beam down was "to prevent if from coming out of the socket on the side of the hatch." The sockets supported the weight of the beam, and the purpose of the rope was not to support the dead weight of the beam. n5 This comports with the standard's requirement of preventing displacement. The standard does not require that [*9] the lashing be done with any particular material or that it be tightened with a "Spanish line lash." In sum then, respondent complied with the standard insofar as it provided lashing to prevent displacement of the beam.
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n5 Therefore, the majority's comparison of the weight of the beam with the capacity of the rope is irrelevant.
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The above analysis brings me to the focal point of my disagreement with the majority, which is their statement that:
"Since the standard requires beams to be secured so they 'cannot be displaced by accident,' the fact that the beam was accidentally displaced establishes prima facie proof of a violation . . . . [T]he beam must be secured so as to prevent accidental displacement." (Emphasis added.)
In other words, regardless of the efforts an employer might take to secure a beam, he is liable for any accident that might displace that beam. Not only is such a requirement contrary to law, but it defies common sense. As respondent so sensibly observes in its brief:
"It can be safely [*10] assumed that no beam can be so secured so that it will be impossible under all circumstances to displace it. Even a beam secured by locking devices can be displaced if the force of a rising draft which catches it is sufficient."
It is now well-settled that the Act does not impose strict liability on employers. Horne Plumbing and Heating Company v. OSAHRC, 528 F.2d 564 (5th Cir. 1976); Brennan v. OSAHRC and Hanovia Lamp Division, Canrad Precision Industries, 502 F.2d 946 (3d Cir. 1974); REA Express, Inc. v. Brennan, 495 F.2d 822 (2d Cir. 1974); Secretary v. Engineers Construction, Incorporated, 20 OSAHRC 348 (1975). Accordingly, it obviously follows that a standard cannot make employers guarantors for insuring that accidents will not occur. However, that is exactly what my colleagues are doing by their literal interpretation of 29 C.F.R. § 1918.43(e). This is error and "amount[s] to the imposition of a strict liability standard, which the Act neither authorizes nor intends, and [is] therefore 'not in accordance with the law.'" Horne Plumbing and Heating Company v. OSAHRC, supra at 568.
Briefly stated, an employer's duty is qualified by the requirement [*11] that it be achievable rather than a mere vehicle for strict liability. Brennan v. OSAHRC and Raymond Hendrix, d/b/a Alsea Lumber Company, 511 F.2d 1139 (9th Cir. 1975); National Realty and Construction Company, Inc. v. OSAHRC, 489 F.2d 1257, 1266 (D.C. Cir. 1973). In other words, an employer must take reasonable precautions to protect against hazards. See Cape and Vineyard Division of the New Bedford Gas and Edison Light Company v. OSAHRC, 512 F.2d 1148 (1st Cir. 1975). In this case, the respondent's lashing of the beam to prevent its displacement was consistent with the standard's requirement. Except for the accident, it cannot be said that this precaution was inadequate. Liability cannot be based upon the occurrence of the accident, however, without applying an improper standard of strict liability. Viewing the circumstances as they existed prior to the accident, it is apparent that respondent's precautionary measures were reasonable.
Finally, I am constrained to comment on the majority's finding that the respondent possessed the requisite knowledge of the violation on the basis of the Judge's finding that "Respondent recognized that the absence of locks [*12] on the latches created an unsafe condition." Although the Judge's finding is correct, it does not support the majority's conclusion. As respondent's terminal manager testified, recognition of the hazard was the very reason that action was taken to tie down the beam. Unfortunately, my colleagues fail to recognize that the terminal manager also testified that "[b]efore the accident, I had no doubt that we acted in a proper procedure." This is yet another example of the erroneous use hindsight by Messrs. Barnako and Cleary to hold this employer liable under a concept of strict liability.