Premier Bulk Stevedoring, LLC

Plain-English summary

Premier Bulk Stevedoring used a shipboard crane to move rolls of paper from a dock into a vessel's cargo hold. OSHA alleged that the crane operator could not see the signalman guiding the draft's movement and cited the longshoring rule that prohibits hoisting a draft unless the operator can see the draft or a signalman. The judge interpreted “hoisted” according to its ordinary meaning of lifted or raised, noting that other longshoring rules separately refer to hoisting and lowering. The undisputed evidence showed that the operator could see the paper-roll draft when lifting it from the dock, so Premier Bulk complied with the cited rule. Summary judgment was granted to Premier Bulk, the remaining citation item was vacated, and no penalty was assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1918.81(i)
• Outcome: One item withdrawn by OSHA and the remaining crane-visibility item vacated, with no penalty assessed.
• Key point: Under the cited longshoring rule, “hoisted” means lifted or raised and does not extend to lowering a draft into a vessel's hold.

Full text (OSHRC public release)

UNITED
STATES OF AMERICA

OCCUPATIONAL
SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY
OF LABOR,

Complainant,

v.

Docket
No.
23-0539

PREMIER
BULK STEVEDORING, LLC
,

Respondent.

MEMORANDUM
OPINION AND ORDER

Pending in the above-styled action is
Respondent Premier Bulk Stevedoring, LLC’s Motion for Partial
Summary Judgment 1
and the Secretary of Labor’s response in opposition. For the
reasons indicated infra , the Court concludes there is no
genuine dispute as to material fact that 29 C.F.R. § 1918.81(i) was
not violated by Premier Bulk, and therefore, Premier Bulk is entitled
to judgment as a matter of law with respect to Citation 2, Item 1. 2

Citation 2, Item, 1 asserts Premier Bulk
violated 29 C.F.R. § 1918.81(i), the standard governing Slinging
under the Handling cargo regulations, when “[d]rafts were hoisted
when the winch or crane operator could not clearly see the draft
itself or the signals of the signalman who was observing the draft’s
movement[.]” (Compl. Ex. A.) More specifically, Citation 2, Item, 1
asserts Premier Bulk “exposed employees to struck hazards in that
employees were involved in longshoring activities hoisting material
from the pier into the hold of a ship with the use of a shipboard
crane without the crane operator being able to see the signalman
who was guiding the draft's movement .” ( Ibid. ) (emphasis
added).

The cited standard mandates that “No draft
shall be hoisted unless the winch or crane operator(s) can
clearly see the draft itself or see the signals of a signalman who is
observing the draft’s movement.” 29 C.F.R. § 1918.81(i)
(emphasis added). The cited standard does not define “hoisted.”
“Thus, the term “hoisted” is ambiguous because the standard
does not define it. The Secretary has also not published any Standard
Interpretations or Directives regarding the meaning of “hoisted,”
and the standard's preamble also does not define it.

A
fundamental canon of statutory construction is that, unless otherwise
defined, words will be interpreted as taking their ordinary,
contemporary, common meaning. Burns
v. Alcala ,
420 U.S. 575, 580–581 (1975). “The term ‘[hoisted],’ being
left undefined by the statute, carries its ordinary meaning,”
Crawford
v. Metro. Gov't of Nashville & Davidson Cnty., Tenn. ,
555 U.S. 271, 276 (2009) (citation omitted) (applying Webster's New
International Dictionary and Random House Dictionary to ascertain the
meaning of an undefined word). As Premier Bulk notes, the ordinary
meaning of “hoisted” is to “lift” or “raise.” See
Merriam-Webster dictionary,
https://www.merriam-webster.com/dictionary/hoisted
(last visited Dec. 11, 2024); see also
https://www.dictionary.com/browse/hoist
(last visited Dec. 11, 2024) (same).

The
Part 1918 standards repeatedly use the words “hoisting” and
“lowering” separately to convey different meanings. Section
1918.51(d)(2) states, “[e]xcept for eye splices in the ends of
wires, each wire rope used in hoisting
or lowering
in guying derricks, or as a topping lift, preventer, segment of a
multi-part preventer, or pendant, shall consist of one continuous
piece without knot or splice[.]” 29 C.F.R. § 1918.51(d)(2)
(emphasis added). Section 1918.62(b)(9) uses the same language.
“Except for eye splices in the ends of wires and endless rope
slings, each wire rope used in hoisting
or lowering ,
or bulling cargo, shall consist of one continuous piece without knot
or splice.” 29 C.F.R. § 1918.62(b)(9) (emphasis added). Section
1918.66(c)(2) states, “[e]xcept in an emergency, the hoisting
mechanism of all cranes or derricks used to hoist personnel shall
operate only in power up and power down, with automatic brake
application when not hoisting
or lowering .”
29 C.F.R. § 1918.66(c)(2) (emphasis added). Section 1918.53(j)
states, “[w]inches shall not be used when one or more control
points, either hoisting
or lowering ,
are not operating properly.” 29 C.F.R. § 1918.53(j) (emphasis
added). Section 1918.85(f)(1)(i)(C) states that the “speed of
hoisting or lowering is moderated when heavily ladened containers are
encountered.” 29 C.F.R. § 1918(f)(1)(i)(C) (emphasis added.)
However, section 1918.81(i), unlike other Part 1918 standards, does
not
use the phrase “hoisting or lowering.”

The
“inclusion of the word ‘lowering’ in these other Part 1918
standards combined with its absence from section 1918.81(i) can only
demonstrate an intent to distinguish between the terms and exclude
‘lowering’ from the requirements of section 1918.81(i). “This
conclusion comports with the rule of construction that where a term
is carefully employed in one place and excluded in another, it should
not be implied where excluded.” Diamond
Roofing Co. v. Occupational Safety & Health Rev. Comm'n ,
528 F.2d 645, 648 (5th Cir. 1976). 3
“If the regulation missed its mark, the fault lies in the wording
of the regulation—a matter easily remedied under the flexible
regulation promulgating structure, 29 U.S.C.A. s 655(b) & (e); 29
CFR Part 1911, with no need to press limits by judicial construction
in an industrial area presenting infinite operational situations.”
Id. ,
528 F.2d at 648–49.

In
its previous order, the Court concluded that “a violation of
section 1918.81(i) can only occur while a draft is being hoisted ,
meaning while it is being ‘lifted’ or ‘raised,’ and not
during some undefined ‘hoisting process,’ as the Secretary
urges.” See
Order Denying Sec’y’s Mot. P. Summ. J. at p. 9. The Court affirms
that ruling again today.

It
is undisputed that the crane operator could see the load of paper
rolls when he hoisted it off the dock on September 11, 2022, to load
Cargo Hold #2 on the M/V WESERBORG. See
Michael Douglas 30(b)(6) deposition transcript at pp. 45-46, 74
(submitted 11/18/24 as Exhibit A to the Secretary’s Statement of
Undisputed Facts in Support of Motion for Partial Summary Judgment);
Nicholas DeAngelis deposition transcript at pp. 37-38 (submitted
1/17/25 as Exhibit A to the Secretary’s Statement of Additional
Material Facts in Opposition to Premier Bulk’s Motion for Summary
Judgment).

As
stated in paragraph no. 6 of the Secretary’s January 17, 2025,
Statement of Additional Material Facts in Opposition to Premier
Bulk’s Motion for Summary Judgment, the Secretary’s expert
Nicholas DeAngelis agrees that the crane operator could see the draft
when he lifted it from the dock. Therefore, the Court concludes there
is no genuine dispute that the crane operator could see the draft
when he lifted it from the dock, and therefore, there is no genuine
dispute that Premier Bulk was in compliance with section 1918.81(i).
Thus, Premier Bulk is entitled to judgment as a matter of law in its
favor. Accordingly,

IT
IS HEREBY ORDERED THAT
the
Premier Bulk’s motion for partial summary judgment on Citation 2,
Item 1 is GRANTED ,
Citation 2, Item 1 is VACATED ,
and no penalty is assessed.

IT
IS FURTHER ORDERED THAT
since all issues in dispute have now been resolved, the trial is
CANCELLED .

SO
ORDERED .

/s/

JOHN
B. GATTO, Judge

Dated:
May 12, 2025

Atlanta,
GA

1
The Court will not repeat the legal standard for summary judgment
motions again since it was outlined in the Court’s Order denying
the Secretary’s motion for partial; summary judgment.

2
The Secretary has already withdrawn Citation 1, Item 1.

3
The
Eleventh Circuit was created when the Fifth
Circuit
split on October 1, 1981. See
Fifth
Circuit
Court of Appeals Reorganization Act of 1980, P.L. 96-452, 94 Stat.
1995. The Eleventh Circuit has adopted the case law of the former
Fifth Circuit handed down as of September 30, 1981, as its governing
body of precedent. Bonner
v. City of Prichard ,
661 F.2d 1206, 1209 (11th Cir. 1981). This body of precedent is
binding unless and until overruled by the Eleventh Circuit en banc.
Id.
Further,
the decisions of the continuing Fifth Circuit's Administrative Unit
B are also binding on the Eleventh Circuit, while Unit A decisions
are merely persuasive. Dresdner
Bank AG v. M/V Olympia Voyager ,
446 F.3d 1377 (11th Cir. 2006).