Crowley American Transport, Inc.

Plain-English summary

Crowley used heavy Capacity tractors to move trailers short distances on and off cargo barges, generally at speeds no greater than 25 miles per hour. OSHA cited the company under the general duty clause for not requiring seat belts after a tractor went through a guardrail and fell 20 feet, killing the driver. Judge Nancy J. Spies held that the Secretary did not prove that normal Capacity-tractor operation exposed drivers to being thrown around or ejected, or that seat belts would materially reduce that risk. The fatal event was an unusual plunge and the record did not show that a seat belt would have prevented it. Without expert testimony, studies, statistics, or persuasive accident evidence, the compliance officer's general belief that seat belts are safer was insufficient, so the citation was vacated.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1).
• Outcome: Serious general-duty seat-belt citation vacated with no penalty.
• Key point: General public knowledge about highway seat belts does not by itself prove a workplace hazard or effective abatement for specialized low-speed terminal tractors.

Full text (OSHRC public release)

                                                               

Secretary of Labor,
Complainant,

              v.                                   OSHRC Docket No. 97-1231

Crowley American Transport, Inc.,
Respondent.


Appearances:

      Michael K. Hagan, Esq.                       Robert Parrish, Esq.
      Dana Ferguson, Esq.                          Michael A. Garfield, Esq.
              U. S. Department of Labor                    Moseley, Warren, Prichard & Parrish
              Office of the Solicitor                      Jacksonville, Florida
              Atlanta, Georgia                                       For Respondent
                       For Complainant

Before: Administrative Law Judge Nancy J. Spies

                                    DECISION AND ORDER
      Crowley American Transport, Inc., contests a one-item citation issued to it by the

Secretary on July 7, 1997, alleging a serious violation of the general duty clause, §5(a)(1) of the
Occupational Safety and Health Act. Crowley operates a marine terminal in Jacksonville,
Florida. The citation alleges that Crowley failed to require drivers of Capacity brand tractors to
wear seat belts while moving trailers onto and off of barges.
Occupational Safety and Health Administration (OSHA) compliance officer Joann Garner
inspected Crowley’s worksite following the report of an employee fatality on January 24, 1997.
Crowley employee Scott Scuncio was killed while operating a Capacity tractor. Upon
completion of Garner’s investigation, the Secretary issued the citation which gave rise to this
proceeding.
Crowley admits jurisdiction and coverage. A hearing was held in this matter on March
12 and 13, 1998, in Jacksonville, Florida. The parties have filed post-hearing briefs. Crowley
contends that the Secretary failed to establish any of the elements of a §5(a)(1) violation. The
undersigned finds that the Secretary failed to establish the hazard, i.e., that as the Capacity tractor

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was operated, its drivers were exposed to a hazard of being thrown around inside of the tractors
or thrown from the tractors in the event of an accident. The citation is, therefore, vacated.
The Citation
The Secretary alleges that Crowley committed a serious violation of §5(a)(1), which
provides:
SEC. 5. (a) Each 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[.]

    In the citation, the Secretary alleges Crowley violated §5(a)(1) by exposing employees

"to the hazards associated with the failure to use seatbelts," specifically stating:
On January 24, 1997, employees who drive Capacity Trucks were not wearing
seatbelts while moving trailers from the San Juan Barge, exposing the employees
to the hazard of being thrown around in the vehicle or thrown from the vehicle in
the case of accident.

                                         Background
    Crowley operates a marine terminal located at 1163 Talleyrand Avenue in Jacksonville,

Florida. One-, two-, or three-level cargo barges dock at Crowley’s terminal and are then loaded
or unloaded. The barges carry trailers which eventually are to be hauled over-the-road by semi-
tractor trailer trucks (Tr. 19-24, 27, 89-90). The barges are referred to as "ro-ro" vessels (short
for "roll-on/roll-off"), meaning that the trailers are hauled onto and off of the barge by tractors,
and are not loaded and unloaded by cranes (Tr. 19). Crowley’s worksite consists of a terminal
and a yard. The yard, referred to as the Trumball yard, is located across Talleyrand Avenue from
the terminal and contains parked and moving tractors and vehicles. The dock and ramp area of
the terminal consists of three levels of ramps and platforms over which the operators of the
Capacity tractors gain access to all levels of the docked barges. The Capacity tractor drivers are
referred to as the barge crew (Tr. 26-29, 115-116). The longest distance a Capacity tractor would
be required to travel with a trailer is a quarter of a mile (Tr. 272).
Crowley uses Capacity brand tractors (also referred to as yard jockeys, trailer jockeys,
and hustlers) to hook up to the trailers in order to load and unload the barges (Tr. 18-20, 124).
Capacity tractors weigh over 26,000 pounds (Tr. 392).

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On January 24, 1997, driver Scott Scuncio drove his Capacity tractor up to the second
level ramp to unload a trailer from the barge that was in the dock. As Scuncio approached a
turnaround area at the top of the ramp, he pulled forward to make a turn so that he could back up
into a lane on the barge and align with one of the trailers. At this point the driver would usually
reverse his tractor, but Scuncio apparently was unable to shift gears into reverse. Instead, the
tractor went forward, jumped a low curb, crashed through a guardrail, and fell to the concrete
dock 20 feet below. Scuncio was killed in the fall. He was not wearing a seat belt at the time of
the accident (Tr. 9, 234-235).
At the hearing, the Secretary and Crowley reached certain stipulations which were
entered into the record. The stipulations are as follows (Tr. 239-241):
 There are no written established traffic patterns at the worksite.

 Six to ten Capacity tractors are at the platform/ramp/barge area at any one time. There
are over-the-road vehicles in other areas of the worksite.

 The work is noisy.

 Capacity drivers work up to 16 hours at a time.

 Capacity drivers drive up the ramp on the left most of the time.

 Each Capacity tractor has a seat belt assembly.

 Certification training is performed as a staged operation using empty loads with one
driver at a time during daylight hours.

 Crowley does not instruct drivers that they must use seat belts. Crowley does not enforce
a seat belt policy requiring the use of seat belts.

 Crowley maintains its Capacity tractors in good working order.

 At the time of the accident, the curb and the guardrail on the two platform levels were
within OSHA regulations.

 Crowley’s drivers drive the Capacity tractors across Talleyrand Avenue to and from the
yard without wearing seat belts.

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When driving up and down the ramps, the Capacity drivers drive on the left-hand side.
The ramps to the two platforms are 25 feet wide, with two lanes across. There is no center
dividing line (Tr. 28-29, 224). The second level platform measures approximately 90 feet from
the edge nearest the barge to the edge farthest from the barge. The third level platform measures
approximately 70 feet from those same points (Tr. 30-31).
The drivers drive forward up the ramps and use the platform space to turn, preparatory to
backing up to either hook up or unhook a trailer. One driver estimated that 70% of the time spent
driving a Capacity tractor is spent in reverse (Tr. 48).
The fourth gear in each of the Capacity tractors is blocked so that the maximum speed the
tractors can be driven is approximately 25 m.p.h. (Tr. 136, 223, 288, 329, 406).1 The maximum
speed the Capacity tractors can be driven in reverse is approximately 6 m.p.h. (Tr. 254).
In 1989, two Crowley vehicles collided at the Jacksonville Port Authority (Tr. 136-137,
173, 287). During that time period, Crowley was aware that the Secretary was attempting to
promulgate a standard requiring drivers of vehicles used in marine terminal operations to wear
seat belts (Tr. 385).
On December 20, 1989, Crowley issued a memorandum to its employees stating (Exh. C-
7, p. 8 of 20):
Safety shall be used at all times in all company owned vehicles used on company
business . . . Any injury sustained when safety belts are not in use may be cause
for disciplinary action.

    Please advise all applicable employees in your respective areas of responsibility
    of this requirement.

    On March 13, 1990, Crowley issued a second memorandum stating (Exh. C-7, p. 9 of

20):

    Please by advise[d] it is our policy that [ ] Safety Belts shall be used at all times in
    all company vehicles used on company business.

1
All of the witnesses who testified regarding the maximum speed of the Capacity tractors agreed that 25 m.p.h. was
a reasonable estimate. Witnesses also estimated the maximum speed as being 18 (Tr. 60), 19 (Tr. 60, 256), and 27
m.p.h. (Tr. 254). Twenty-five m.p.h. is accepted as the most credible estimate.

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The evidence is overwhelming and undisputed that Crowley’s safety belt policy was
universally ignored within hours of its issuance. Terry Rountree had been a Capacity driver for
Crowley for almost 10 years at the time of the hearing (Tr. 16). He testified that he wore a seat
belt for "about two hours" after the new seat belt policy was announced (Tr. 81). Samuel Clark,
a driver with 12 years of experience at the time of the hearing, testified that he had never worn a
seat belt at Crowley (Tr. 267). Kerry Boatwright, who began driving for Crowley in 1989, stated
that when he first went to the barge crew, he wore a seat belt for less than a day after he was told
to do so by one of the other barge crew drivers. Boatwright soon noticed that none of the other
barge crew members was wearing a seat belt, and he stated that he realized that the other driver
"was pulling my leg," (Tr. 245) and was "getting a joke" (Tr. 247).
Robert McFeeley, Crowley’s manager of loss prevention and hazardous material, stated
that in 1989 and 1990 he monitored the drivers’ use of seat belts and attempted to enforce the
policy for "a month or two" (Tr. 295).2 McFeeley conceded that although the seat belt policy
was never rescinded, Crowley is aware that none of its Capacity drivers wear seat belts and
Crowley does nothing to enforce the policy (Tr. 287, 293).
Crowley gave two primary reasons for its unwillingness to enforce the seat belt policy:
(1) when backing up to load or unload a trailer, the drivers have to bend forward and turn in their
seats to see where they are going (Tr. 243, 266, 386). The driver "almost [has] to come out of the
seat to look out the window on the blind side," and the seat belt restricts his movement (Tr. 95);
and (2) the seat belts are subject to a ratcheting effect which eventually causes the seat belt to
become uncomfortably tight across the drivers’ thighs (Tr. 243). Rountree explained that the
tractors "are solid axle Capacitys with no springs on the rear, and every small bump that you hit
jars, and the seat belt just gets tighter and tighter" (Tr. 95). A third consideration is that in the
event that the tractor overturns or goes into the water, the wearing of a seat belt could impede an
emergency exit from the cab of the tractor, resulting in a more serious injury or death (Tr. 96,
354, 386-388).

2
The testimony of the Capacity drivers establishes that the seat belt policy was never effectively enforced beyond
the first day it was issued.

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The drivers who testified were questioned regarding their history of accidents while
driving Capacity tractors. Rountree stated that he had once hit a trailer while backing up. He
was not hurt or jostled (Tr. 51). Boatwright testified that he had bumped into curbs and that he
had once backed into a telephone pole, knocking it over, but that he was not hurt (Tr. 231-232).
Bartley Brocato stated that he once ran into his supervisor’s personal vehicle in the Trumball
yard, but that he was not hurt (Tr. 250). Brocato was also involved in an accident five years prior
to the hearing in which another driver going forward struck the trailer that Brocato was backing
into a barge lane. Brocato was not hurt, but the other driver "was bruised up" (Tr. 251). Brocato
described another accident he witnessed a year and a half prior to the hearing, in which two
tractors collided, but he did not know if the drivers were hurt (Tr. 252).
Six or seven months prior to the hearing, Samuel Clark hit the overhead ramp of the
barge with his tractor while going 10 to 15 m.p.h. Clark was thrown from his seat onto the
steering wheel and suffered chest injuries. The record does not indicate whether Clark lost any
work time as a result of his injuries (Tr. 259). Clark also backed into a trailer stand going 5
m.p.h. and hurt his lower back. He missed approximately two days of work (Tr.260, 262).
Discussion
In order to establish a violation of the general duty clause,
[T]he Secretary must show that (1) a workplace condition or activity presented a
hazard, (2) the employer or industry recognized it, (3) it was likely to cause
serious physical harm, and (4) a feasible and useful means of abatement existed
by which to materially reduce or eliminate it.

Kokosing Construction Co., Inc., 17 BNA OSHC 1869, 1872 (No. 92-2596, 1996).
The Secretary argues that it has established the four elements of a §5(a)(1) hazard by
showing that (1) it is general knowledge that operating vehicles at maximum speeds of 25 m.p.h.
presents a hazard to drivers of being thrown around inside the vehicle or of being thrown from
the vehicle in the event of an accident; (2) Crowley’s 1989 implementation of its seat belt policy
demonstrates that the company recognized the hazard; (3) the hazard of being thrown around
inside of or being thrown from a vehicle could cause death or serious physical injury; and (4) the
Capacity tractors were already equipped with seat belts so that a feasible means of abatement
existed.

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Crowley counters that (1) the Secretary failed to provide any empirical evidence that
operating a vehicle at 25 m.p.h. presents a hazard to the driver of being thrown around inside of
or thrown from the vehicle; (2) that the 1989 implementation of the seat belt policy was done in
anticipation of a new OSHA standard that would require drivers for marine terminal operations
to wear seat belts, and was not in recognition of an actual hazard3; (3) the Secretary did not prove
that failure to wear seat belts in the Capacity tractors could result in death or serious physical
injury, and that, in fact, the wearing of seat belts increases the risk of injury4; and (4) that use of
seat belts is not economically feasible because the time that it would take a driver to buckle and
unbuckle his seat belt (estimated to be 18 to 20 times an hour) would double or triple the amount
of time it takes the barge crew to load or unload a barge.5
Did a Hazard Exist?
[W]hen citing a violation of the general duty clause, the Secretary
must establish that the cited condition actually poses a hazard to
employees. . . . [T]he general duty clause, while intended to protect
employees from hazards that have yet to be addressed by
standards, is not intended to replace standards as an enforcement
mechanism.

Waldon Healthcare Center, 16 BNA OSHC 1052, 1060 (No. 89-2804, 1993).
The only non-employee witness called by the Secretary was OSHA compliance officer
Joann Garner. Garner testified that the hazard she identified was "that the driver is driving a

3
The Secretary gave notice of proposed rule making, OSHA’s Occupant Protection in Motor Vehicles regulation,
55 Fed. Reg. 28728, on July 12, 1990. The final rule was never promulgated.
4
Although Crowley argues that the wearing of seat belts increases the risk of hazards due to restricting the driver’s
view while in reverse and to the ratcheting effect, Crowley did not properly assert the affirmative defense of greater
hazard.
5
Because the undersigned has determined that the Secretary failed to establish that a hazard existed, it is not
necessary to address this element. However, it is noted that Crowley adduced no credible evidence supporting its
contention that the use of seat belts would significantly increase its production time. David Holman, Crowley’s
director of staff operations, stated that during the aborted implementation of the seat belt policy in 1989-90, the
barge crews’ functions "doubled in time" (Tr. 304). Holman could not state over what period of time the functions
doubled (Tr. 306), and conducted no studies and cited no statistics in support of his assertion (Tr. 307).
Considering the uncontradicted testimony that the drivers ignored the seat belt policy either immediately or within
hours of its taking effect, Crowley’s contention that the enforcement of the policy would result in increased
production time is rank speculation.

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vehicle and being thrown around inside of the truck in case they hit something or each other or
the rails or whatever" (Tr. 134). Garner based this determination of a hazard on "general
knowledge," Crowley’s past history of accidents6, the fact that Crowley had instituted a seat belt
policy in 1989, and the number of vehicles involved in the operation (Tr. 134-135).
Garner testified that by "general knowledge," she meant that everybody knows that "[a]ny
kind of vehicle that’s driven, the potential is there for hazards, striking other vehicles, running
into something, turning over, anything like that" (Tr. 172). Garner also stated her opinion that,
"Two vehicles hitting each other even if they were just going five miles an hour potentially could
cause serious harm" (Tr. 136).
In her post-hearing brief, the Secretary asserts that the accident that killed Scuncio is
additional proof of the hazard. It is well-established that "it is the hazard, not the specific
incident that resulted in injury . . . that is the relevant consideration in determining the existence
of a recognized hazard." Kelly Springfield Tire Co., 10 BNA OSHC 1970 (No. 78-4555, 1982),
aff’d 729 F.2d 317 (5th cir. 1984). It is true, however, that an accident may convincingly
demonstrate that a condition presents a hazard to employees. See Coleco Industries, Inc., 14
BNA OSHA 1961, 1964 (No. 84-546, 1991). Here, the accident does not sufficiently relate to
the cited hazard.
Although the Secretary defines the hazard to be the possibility of being thrown around
inside of or from the vehicle, she also describes it as a "failure to use seatbelts." There is no real
suggestion that use of a seat belt would have prevented Scuncio’s death (See Sec. brief footnote
7). Scuncio plunged over the side of the platform in what must be regarded as an improbable and
very unfortunate accident. Proof that a hazardous incident can occur under "a freakish or utterly
implausible concurrence of circumstances" is insufficient to establish a hazard. See Waldon
Healthcare Center, 16 BNA OSHC at 1060. Scuncio’s tragic accident triggered OSHA’s
investigation, but it is irrelevant to the determination of whether the cited hazard existed.

6
Garner relied on three accidents reported to her during her investigation: the 1989 collision that occurred at the
Jacksonville Port Authority, an incident where an employee "almost ran into a reefer trailer," and an incident
involving "brake failure which OSHA had no facts on" (Tr. 173). There is no evidence that any of the drivers were
thrown around inside of or thrown from their vehicles as a result of these accidents. No evidence of lost work time
was adduced for any of the drivers involved in these incidents.

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The Secretary presented no expert testimony regarding hazards resulting from a collision
between two tractors traveling at a maximum speed of 25 m.p.h. She offered no empirical
evidence to support her claim that the use of seat belts in a vehicle such as the Capacity tractor
would reduce the potential for injury in the event of such a collision. The testimony of the drivers
establishes that, on those occasions when they do collide with another vehicle or object, they
were not thrown around or out of the vehicle, or at least not to a degree that would be different if
a seat belt had been worn.
Garner believes that it is safer to wear seat belts any time one is in a moving vehicle, and
it is a belief shared by many. Seat belts are required to be worn in moving vehicles on the public
roadways in all fifty states. Interstate travelers are frequently greeted with roadside signs telling
them to buckle up as they traverse our highways. To Garner, the belief that driving without seat
belts constitutes a hazard is "general knowledge"; it has (fortunately) become a national tenet that
seat belts save lives. The rationale for wearing seat belts in vehicles capable of traveling at high
speeds on public roadways does not, however, necessarily apply to vehicles that make frequent
stops, travel a quarter of a mile at the most at one time, and are capable of a maximum speed of
only 25 m.p.h.
Clark, the driver who sustained chest injuries when he was thrown onto the steering
wheel when his tractor hit the overhead ramp of the barge, stated (Tr. 265):
Well, I’m glad I wasn’t wearing [a seat belt] because I felt like if I had been
wearing the type belts that’s in there, which is a lap belt, my injuries would have
been more severe than what they was. I would have had maybe stomach injuries,
kidney injuries, or, you know, I would have had severe stomach injuries.

   Clark’s assertion, like so many others in this case, is unsupported by expert testimony,

studies, or statistics. His testimony is instructive, however, in showing that the use of seat belts
is not universally regarded as a useful means of abatement. Clark believes that the use of seat
belts would have exacerbated his injuries. Garner maintains that using seat belts is always safer
than not using them.
Both the Secretary and Crowley rely on the ipse dixit of their witnesses. Neither side is
convincing, but it is the Secretary who must meet the burden of proof. She has failed to do so
here. Without some evidence other than the compliance officer’s sense that seat belts should be

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worn, the Secretary cannot prove that a hazard existed. The citation alleging a serious violation
of §5(a)(1) is vacated.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Federal Rule of Civil Procedure 52(a).
ORDER
Based upon the foregoing decision, it is hereby ORDERED that:
1. Item 1 of Citation No. 1, alleging a serious violation of §5(a)(1) for failing to require
drivers of Capacity tractors to wear seat belts, is vacated and no penalty is assessed.

                                                  NANCY J. SPIES
                                                  Judge

Date: June 14, 1999

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