Naporano Iron & Metal Company

Plain-English summary

Naporano ran a scrap metal terminal at Port Newark, New Jersey, where barge-mounted cranes loaded scrap onto vessels and occasionally unloaded steel rails. After an inspection, OSHA cited two serious violations of the longshoring crane standard: no load indicating device on either crane, 29 C.F.R. § 1918.74(a)(9), and an unguarded crane swing radius, 29 C.F.R. § 1918.74(a)(10). Naporano argued it was a marine terminal governed by Part 1917 rather than the longshoring rules in Part 1918, that the cranes were permanent parts of the barges and so exempt, that its combination of load charts, boom angle alarms, and radio communication worked as well as a load indicating device, and that no employees were exposed to the swinging crane. The judge rejected each argument, finding the barges were vessels, that the foot of the gangway marked the boundary where Part 1918 applied, that the cranes were not permanent equipment, and that the company's alternative measures could not reliably prevent an overload. Both items were affirmed as serious. The judge assessed the proposed penalties of $2,750 for the missing device and $1,925 for the unguarded swing radius.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1918.74(a)(9); 29 C.F.R. § 1918.74(a)(10)
• Outcome: Both items of serious citation 1 affirmed; penalties of $2,750 and $1,925 assessed
• Key point: For cranes on barges servicing a vessel, Part 1918 longshoring rules apply seaward of the foot of the gangway, and the load indicating device requirement calls for an actual device, not an equivalent combination of operational practices.

Full text (OSHRC public release)

                          United States of America
         OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                     1120 20th Street, N.W., Ninth Floor
                        Washington, DC 20036-3419

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC DOCKET NO. 95-1133
:
NAPORANO IRON & METAL :
COMPANY, :
:
Respondent. :

APPEARANCES:

   Nancee Adams-Taylor, Esquire                  Ronald H. DeMaria, Esquire
   New York, New York                            Newark, New Jersey
   For the Complainant.                          For the Respondent.

Before: Chief Judge Irving Sommer

                                 DECISION AND ORDER

   This is a proceeding before the Occupational Safety and Health Review Commission (“the

Commission”) pursuant to section 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C.
§ 651 et seq. (“the Act”). The Occupational Safety and Health Administration (“OSHA”) inspected
a Port Newark, New Jersey scrap metal facility operated by Respondent Naporano Iron & Metal
Company (“Naporano”) on February 13 and March 3, 1995; as a result, Naporano was issued one
serious and one “other” citation.1 Naporano contested only the serious citation, which alleges
violations of 29 C.F.R. §§ 1918.74(a)(9) and 1918.74(a)(10). The hearing addressing this matter was
held on April 10 and 11, 1996, and both parties submitted post-hearing briefs.
Background

   1
     The initial inspection took place after an accident involving one of Naporano’s employees,

while the one on March 3 was due to OSHA’s decision to expand the inspection to the entire facility;
however, the citations issued were unrelated to the accident.
 2

   Naporano has operated its scrap metal facility since 1980. Part of the operation consists of

loading scrap metal onto vessels, and, occasionally, unloading steel rails from vessels, by means of
two cranes which are mounted on separate barges; the barges are tied to the pier, while the vessel
being loaded or unloaded is tied to the barge housing the crane performing the operation, and
employees access the barges and the vessels via gangways going from the pier to the barges and the
barges to the vessels, respectively. The scrap metal which is loaded is delivered to the pier by truck
and dumped into a pan, after which the crane raises the pan and dumps its contents into the cargo
hold of the vessel; the scrap metal consists of either shredded metal or heavy melting scrap (“HMS”),
and although both may be placed in the same cargo hold they are stored and loaded separately. The
steel rails are unloaded in bundles by means of employees in the cargo hold of the vessel putting
lifting slings around the bundles and then radioing the crane operator to lift the load.2
When OSHA compliance officer (“CO”) William DuComb inspected the site he determined
neither crane had a load indicating device (“LID”) as required by 29 C.F.R. 1918.74(a)(9), and that
one of them was not guarded while operating as required by 29 C.F.R. 1918.74(a)(10). Naporano
contends Part 1918 does not apply as it is a marine terminal operator governed by Part 1917 and has
moved to dismiss the citation. It also contends that even if Part 1918 does apply, 1918.74(a) is not
applicable to its cranes. Finally, it contends it used an alternative as effective as an LID and that a
“device” is not required, and that employees were not exposed to the crane when it was operating.
Whether Part 1918 Applies to Naporano’s Cranes
Part 1918, the OSHA regulations applying to longshoring, has been in effect since 1974.
“Longshoring operations” mean the “loading, unloading, moving, or handling of cargo, ship’s stores,
gear, etc., into, in, on, or out of any vessel on the navigable waters of the United States.” 29 C.F.R.
1918.3(I). “Vessel” includes “every description of watercraft or other artificial contrivance used or
capable of being used as a means of transportation on water, including special purpose floating
structures not primarily designed for or used as a means of transportation on water.” 29 C.F.R.
1918.3(e). 29 C.F.R. 1918.74(a) applies to the use of cranes, “whether hoisted aboard a vessel for
use thereon or used to service a vessel from the dock, shore, or another vessel, and in the use of any

   2
     Naporano has unloaded steel rails only four or five times, all since mid-1994, pursuant to a

special order.
 3

other crane or derrick not a part of a vessel’s permanent equipment, but used in longshoring
operations.” Part 1917, the regulations applicable to marine terminals, has been in effect since 1983.
Part 1917, pursuant to 29 C.F.R. 1917.1(a), applies to “employment within a marine terminal as
defined in § 1917.2(u), including the loading, unloading, movement or other handling of cargo, ship’s
stores or gear within the terminal or into or out of any land carrier, holding or consolidation area, or
any other activity within and associated with the overall operation and functions of the terminal, such
as the use and routine maintenance of facilities and equipment.” 29 C.F.R. 1917.2(u) defines “marine
terminal” as “wharves, bulkheads, quays, piers, docks and other berthing locations and adjacent
storage or contiguous areas and structures associated with the primary movements of cargo or
materials from vessel to shore or shore to vessel including structures which are devoted to receiving,
handling, holding, consolidation and loading or delivery of waterborne shipments and passengers,
including areas devoted to the maintenance of the terminal or equipment.”
CO DuComb, the regional maritime specialist in his region at the time of the inspection,
testified that while Part 1917 applied to Naporano’s terminal operations it did not apply to the cranes
because they were sitting on barges berthed at the terminal and 1917 ends at the edge of the pier, or
the foot of the gangway. (Tr. 8-14; 64-67; 108-10). Paul Rossi, a specialist in OSHA’s Office of
Maritime Safety Standards, agreed. He testified that 1918 is a water-based standard, while 1917 is
a land-based standard, and that Naporano’s operations were covered by both; the cranes on the
barges were covered by 1918 because they were on water, and Naporano’s land operations, such as
those involving its trucks and scrap piles, were covered by 1917. (Tr. 112-20; 176-88).
In addition, the Secretary notes the preamble to the final rule covering Part 1917 states that:
The coverage of Part 1917 includes all shoreside activities within a marine terminal --
except those which are specifically exempted in the standard, as outlined in greater
detail below. In clarifying the boundary between Part 1917 and Part 1918, OSHA’s
shipboard longshore regulations, the Agency has set the foot of the gangway to mark
the limit to which Part 1918 may be applied landward. Similarly, Part 1917's
jurisdiction extends out to the ship no further than this point of the gangway.
48 Fed. Reg. 30,891 (1983).
Based on the foregoing, I conclude Part 1918 applied to the cranes. In so concluding, I have
noted Naporano’s assertion that there is no clear demarcation between the two parts. I have also
noted the administrative law judge decision cited by Naporano, in which the judge found the
 4

demarcation between the two parts ambiguous and vacated the citation for that reason.3 However,
the facts there were very different from those presented here, and, in any case, administrative law
judge decisions have no precedential value. Regardless, the excerpt from the preamble to Part 1917
along with the facts of this case and the language of Parts 1917 and 1918 above convince me that
Naporano’s barges were vessels within the meaning of 1918.3(e), that the edge of the pier, or the foot
of the gangway going from each barge to the pier, was the demarcation point between Parts 1917 and
1918, and that Part 1918 applies in this case.4 I am also persuaded Naporano had fair notice of the
applicability of Part 1918 and of the cited standards, particularly since Part 1917 has essentially the
same standards. See 1917.45(I)(2) and 1917.46(a)(1). Naporano’s motion to dismiss is denied.
Whether 1918.74(a) Applies to Naporano’s Cranes
Naporano’s contention that 1918.74(a) does not apply to its cranes is based on the language
of that paragraph, set out above, which indicates that cranes that are permanent parts of vessels are
not covered by the standard. Naporano asserts the cranes are permanent parts of the barges as they
are never removed and the barges were custom built to hold them. (Tr. 210). However, the record
shows the cranes did not come with the barges but were hoisted onto them and that the cranes sit on
12-inch-high mats on which they can move fore and aft. (Tr. 94-95; 211; 241-42). I conclude the
cranes are not permanent parts of the barges and that 1918.74(a) applies to them.
Citation 1, Item 1
This item alleges a violation of 1918.74(a)(9), which provides in pertinent part as follows:
Unless exempted by the provisions of paragraph (a)(9)(viii) of this section, every
crane used to load or discharge cargo into or out of a vessel shall be fitted with a load
indicating device or alternative device in proper working condition which shall meet
the following criteria: (i) The type or model of any load indicating device which is
used may be such as to provide (a) a direct indication in the cab of actual weight
hoisted or a means of determining this by reference to crane ratings posted and visible
to the operator, except that the use of a dynamometer or simple scale alone will not
meet this requirement; or (b) an automatic weight moment device or computer

   3
  This decision, Boston Towing and Transp. Co. (No. 93-2035, 1995), is digested at 17 BNA

OSHC 1327.
4
The excerpt from the preamble is Appendix B to the Secretary’s brief. OSHA Instruction
STP 2-1.112, which is Exhibit A to Naporano’s brief, contains similar language.
 5

   providing indications in the cab according to the radius and load at the moment; or
   alternatively (c) a device may be used which shall prevent an overloaded condition.
   It is undisputed Naporano did not have LID’s on its cranes and that it did not meet any of the

standards’s exemptions. However, as noted above, Naporano contends that an actual device is not
required and that it used an alternative system as effective as an LID. As to its first contention,
Naporano notes the language of 1917.46(a)(1), which states, in pertinent part, as follows:
Except as provided in paragraph (a)(1)(viii) of this section, every crane after October
3, 1984 shall be fitted with a load indicating device or alternative device in proper
working condition which shall meet the following criteria: (i) The type or model of
any load indicating or alternate device which is used shall provide: (A) A direct
indication in the cab of actual weight hoisted or a means of determining this by
referencing a weight indication to crane ratings posted and visible to the operator,
except that the use of a dynamometer or simple scale alone will not meet this
requirement; or (B) Indications in the cab according to the radius and load at the
moment; or (C) A direct means to prevent an overload from occurring.
Naporano asserts the purpose of both standards is to prevent overloads and that a fair reading
of them shows they require either an LID or some alternate means, not necessarily a device, of
preventing overloads. While I agree the purpose of the standards is identical, I disagree a specific
device is not required; in my view, the language of the standards makes it clear a device is required.
This conclusion is supported by the paragraphs following the standards, which further detail the
requirements of LID’s or alternate devices. See 1917.46(a)(1) (ii)-(vii) and 1918.74(a)(9)(ii)-(vii).
It is also supported by the testimony of CO DuComb, whose extensive experience in the maritime
industry includes familiarity with crane safety requirements, and Paul Rossi, who graduated from the
U.S. Merchant Marine Academy and had six years of experience in the maritime industry before
joining OSHA’s Office of Maritime Safety Standards, where he has worked for over ten years; they
testified that the standards require an actual device that tells the operator the weight of the load
and/or prevents an overload by cutting off the crane’s operation. (Tr. 8-14; 37-40; 59-64; 102-03;
112-28; 159-61; 172-76). Naporano’s contention is accordingly rejected.5

   5
     In so doing, I have noted Naporano’s assertion that the International Cargo Gear Bureau

(“ICGB”), the agency that certified its cranes each year, advised it that LID’s were not required. As
I read them, the certificates indicate only that the cranes were not fitted for LID’s and that their
accuracy was therefore not applicable. See C-7-10, OSHA Forms 71. Moreover, CO DuComb and
(continued...)
 6

    As to Naporano’s second contention, the record shows that during crane operation there was

radio communication between the operator and the lead man and that in each crane’s cab there was
a load chart, boom angle indicator and an alarm that sounded if the boom went below a specified
angle. The testimony of CO DuComb and Paul Rossi was that all these measures but the alarm were
required by other standards and that they were in any case inadequate to prevent an overload as they
did not tell the operator the weight being lifted; they also testified that while they knew of no
overloads occurring during Naporano’s operations they believed it was possible the cranes’ capacity
could be exceeded and that serious injury could result. (Tr. 32-43; 58-62; 67-69; 73-82; 97-100; 104-
05; 108; 121-76; 180-85). Naporano asserts the above measures together with the way in which
loading and unloading was done prevented the possibility of overloads as effectively as an LID.
Michael Henderson, the facility’s terminal manager for over ten years, testified the rails were
unloaded with a maximum of four bundles per lift, which was 28 metric tons, and that the average
lift for rails was 17 metric tons.6 He said the lead man selected the bundles to be lifted out of the
hold, and, once the lifting slings were in place, radioed the operator to lift the load; he also said the
cranes were operated at the maximum boom angle of 65 degrees for unloading, that unloading was
not possible at a lesser angle due to the 70-foot width of the vessels and the location of the hold in
approximately the middle of the vessel, and that the cranes’ capacity at 65 degrees was 75,000
pounds. Henderson further testified that shredded metal and HMS, while kept in separate piles and
loaded separately, were both handled the same way; an excavator picked up a maximum of five
grapples of material and put it in a dump truck for delivery to the pier, the truck dumped it into a
pan, and the crane lifted the pan and dumped the metal into the hold of the vessel. He noted the
grapples used held 148 cubic feet each, that shredded metal and HMS weighed 70 and 45 pounds per
cubic foot, respectively, and that the maximum weights of shredded metal and HMS loads were

    5
     (...continued)

Paul Rossi testified that ICGB only tests the devices which are on the cranes it certifies and does not
advise employers whether their cranes meet all applicable OSHA requirements. (Tr. 84; 250).
6
These lifts would equal 62,720 and 38,080 pounds, respectively.
 7

51,975 and 33,400 pounds, respectively.7 He also noted the pans used for shredded metal weighed
21,000 pounds while those used for HMS weighed 28,000 pounds, that the crane booms operated
at 65 degrees for loading shredded metal and from 63 to 65 degrees for HMS, and that the cranes’
capacity at 63 degrees was 69,500 pounds. Henderson said the grapples, trucks and pans prevented
the possibility of overloads as the maximum capacity of the trucks was 800 cubic feet and 70,000
pounds and the pans could only hold five grapples of material, and that there had been no overloads
during any of Naporano’s loading or unloading operations. (Tr. 197-208; 213-23; 227-41).
In view of the record, Naporano’s system was not as effective as an LID in preventing the
possibility of an overload. Henderson’s own testimony was that the weight of a maximum load of
shredded metal plus the weight of the pan would total almost 73,000 pounds, and he conceded a
cubic foot of shredded metal could weigh more than 70 pounds. Further, while Henderson testified
that shredded metal was loaded with a boom angle of 65 degrees, he said HMS was loaded with the
boom angle from 63 to 65 degrees and that the boom angle alarm was set to go off at 63 degrees.
Finally, Henderson said that the boom angle had to be 65 degrees to unload from a 70-foot-wide
vessel because otherwise the boom would not be over the hold, and that while the vessels into which
shredded metal and HMS were loaded averaged 100 feet in width they had been up to 120 feet wide.
(Tr. 204-08; 216-17; 220; 228-41). This indicates the boom had to have been less than 65 degrees
when loading shredded metal and HMS in order to reach the holds of the wider vessels and that due
to the weight of the shredded metal loads an overload could have resulted.8 An overload could also
have resulted during the unloading of the rails, since, as CO DuComb testified, the load could have
gotten hung up on the coaming of the vessel’s cargo hold as it was being raised; he also testified that

   7
     By my calculation, 148 times 5 times the per pound weights of shredded metal and HMS

actually equal 51,800 and 33,300, respectively.
8
Henderson indicated the boom did not have to be over the hold because the pans tipped to
unload their contents and could therefore be some distance from the hold. However, it seems clear
the scrap metal could not be loaded into the holds of the wider vessels with the boom angle at 65
degrees, and Henderson himself said HMS was loaded with the boom angle from 63 to 65 degrees.
Also, while Henderson indicated loads were regulated by the amount of material making up each load,
there was no evidence of a procedure to ensure shredded metal loads were within the cranes’ capacity
when the boom angle was less than 65 degrees. (Tr. 238-41).
 8

although the lead man in the hold could radio the operator in this situation the lead man might not
be paying attention, while an LID would give the operator a direct readout of the load weight. (Tr.
62; 67-69; 99-100). This citation item is affirmed as a serious violation.
The Secretary proposed a penalty of $2,750.00 for this item. CO DuComb initially
recommended a penalty of $5,000.00 because of the severity of the hazard, the number of persons
exposed to it, and the frequency of the exposure; however, reductions of 20 percent, 15 percent and
10 percent were given in consideration of the company’s size, good faith and history, resulting in a
reduced penalty of $2,750.00. (Tr. 47-48; 51-53; C-13). Based on the record, the proposed penalty
is appropriate and is accordingly assessed.
Citation 1, Item 2
This item alleges a violation of 1918.74(a)(10), which provides as follows:
Accessible areas within the swing radius of the outermost part of the body of a
revolving crane shall be temporarily guarded by ropes or other suitable means during
cargo operations, so as to prevent an employee being in a position to be caught
between the body of the crane and fixed parts of the vessel or of the crane itself.
CO DuComb testified that during his inspection he saw an individual on one of the barges
while the crane was swinging around; the person’s location was such that he was exposed to the
hazard of being struck by the crane or being caught between the counterweight and the crane body.
The CO pointed out the condition to Michael Henderson, who indicated the person was a Naporano
employee and then agreed to put up barricades to guard the swing radius of the crane. (Tr. 48-51;
88-91). Michael Henderson testified that during normal operations no one was on the barge but the
crane operator and that the only person who got within the swing radius of the crane while it was
operating was the mechanic; he said the mechanic had to be there to grease a gear, that this job had
to be done from time to time and could only be done while the crane was turning slowly, and that the
mechanic was aware the crane was turning and was also in radio contact with the operator.
Henderson also testified employees used the barge to go to and from the pier and the vessel and that
the worker the CO saw was picking up scrap metal spillage, which occurred periodically, but that the
crane did not operate at these times. (Tr. 211-13; 224-27; 242-45).
Naporano’s contention, as noted above, is that employees were not exposed to the cited
condition. However, the CO was emphatic that the crane was operating and that the employee he
 9

saw was exposed to the hazard of being struck by the crane or caught between the counterweight and
the crane body. (Tr. 49; 89-90). Further, notwithstanding his testimony set out above, Henderson
essentially conceded that the employees who picked up spillage were occasionally exposed to the
cited hazard and that the foreman, who he said went constantly to and from the pier and the vessel
during loading operations, was also exposed to the condition. (Tr. 224-47; 243-45). This item is
affirmed as a serious violation, and the proposed penalty of $1,925.00 is assessed.9
Conclusions of Law
1. Respondent, Naporano Iron & Metal Company, is engaged in a business affecting
commerce and has employees within the meaning of section 3(5) of the Act. The Commission has
jurisdiction of the parties and of the subject matter of the proceeding.
2. Respondent was in serious violation of 29 C.F.R. §§ 1918.74(a)(9) and (a)(10).
Order
Based on the foregoing Findings of Fact and Conclusions of Law, it is ordered that:
1. Items 1 and 2 of serious citation 1 are affirmed, and penalties of $2,750.00 and
$1,925.00, respectively, are assessed.

                                                    Irving Sommer
                                                    Chief Judge

Date:

    9
    The CO’s initially-recommended penalty of $3,500.00 was reduced to $1,925.00 upon his

consideration of the same factors noted supra. (Tr. 50-51; C-13).