Pasha Maritime Services, and its successors

Plain-English summary

Pasha Maritime Services was unloading vehicles from the roll-on/roll-off vessel Blue Hawk. OSHA observed employees walking on the midship vehicle ramp, including one longshoreman who was passed by a shuttle van while no signalman was directing traffic. The ramp had no physical barrier separating pedestrian and vehicle routes, even though Pasha admitted the ramp was wide enough for one. The judge rejected Pasha's argument that the rule applied only to cargo vehicles, finding that its plain language covers pedestrian exposure to any vehicle traffic during roll-on/roll-off operations. Pasha's written procedure prohibited walking on external ramps and called for shuttle buses, a gangway, and signalmen, but workers disregarded the rule and the company did not prove effective communication, monitoring, or discipline. The serious violation was affirmed, and the proposed $1,500 penalty was reduced to $500 because exposure was brief, accident probability was low, and Pasha had acted in good faith.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1918.86(c) (separation of pedestrian and vehicle traffic on roll-on/roll-off vessel ramps)
• Outcome: Affirmed. The serious ramp-separation violation was affirmed with a $500 penalty.
• Key point: When a vessel ramp can accommodate physical separation, written traffic procedures do not replace the barrier required by the standard, especially when those procedures are not effectively enforced.

Full text (OSHRC public release)

                                                                  United States of America
                               OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                                        1244 North Speer Boulevard, Room 250
                                                              Denver, Colorado 80204-3582


Phone: (303) 844-3409                                                                                           Fax: (303) 844-3759



        SECRETARY OF LABOR,
                              Complainant,

                                   v.                              OSHRC DOCKET NO. 99-2244
        PASHA MARITIME SERVICES, and its
        successors,
                               Respondent.



APPEARANCES:

            For the Complainant:
                     Stephanie E. Russell, Esq., Office of the Solicitor, U.S. Department of Labor, Los Angeles, California

         For the Respondent:
                  Johnathan L. Wolff, Esq., Timothy M. Gill, Esq., Kelly Gill, Sherburne & Herrera, San Francisco,
California

Before:                 Administrative Law Judge: Benjamin R. Loye

                                               DECISION AND ORDER

            This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C.
Section 651 et seq.; hereafter called the “Act”).
            Respondent, Pasha Maritime Services, and its successors (Pasha), at all times relevant to this
action maintained a place of business on the Vessel BLUE HAWK, where it was engaged in
stevedoring. On October 27, 1999 the Occupational Safety and Health Administration (OSHA)
conducted an inspection of Pasha’s BLUE HAWK work site. As a result of that inspection, a “serious”
citation alleging violation of §1918.86(c) of the Act, together with proposed penalties was issued to
Pasha. By filing a timely notice of contest Pasha brought this proceeding before the Occupational
Safety and Health Review Commission (Commission).
            On March 20, 2000, a hearing was held in San Diego, California. At the hearing, OSHA
Compliance Officer (CO) John Cantrell testified, without contradiction, that Pasha is an employer
engaged in stevedoring, and is subject to the requirements of the Act (Tr. 9-10).
        The parties have submitted briefs addressing the violation alleged at citation 1, item 1, and this
matter is ready for disposition.


                                              Alleged Violation
        Serious citation 1, item 1 alleges:
29 CFR 1918.86(c): Ramps used for pedestrian access shall meet the requirements of 1918.25. Such
ramps shall provide a physical separation between pedestrian and vehicular routes. When the design of
the ramp prevents physical separation, a positive means shall be established to prevent simultaneous use
of the ramp by vehicles and pedestrians.

        a)     Mid and aft ship ramp aboard the roll on/roll off ship named "Blue Hawk": The employer
        did not provide longshoremen with designed walkways on the aft or mid ship ramps on the
        vessel "Blue Hawk."

Facts
        CO Cantrell testified that on October 27, 1999 Pasha was engaged in Ro-Ro operations
(wherein vehicles are driven on to and off of the vessel aboard which they are transported) at its BLUE
HAWK work site (Tr. 13). Cantrell testified that there was no physical separation delineating
pedestrian and vehicular routes on either the midship or the aft ramps of the BLUE HAWK (Tr. 12, 18).
Cantrell testified that on two occasions during his inspection he observed employees using vehicular
ramps to access the vessel (Tr. 13). On the first occasion, Cantrell observed two Pasha employees
walking up the midship ramp (Tr. 13-14). Later Cantrell observed and photographed another Pasha
employee, Travis Torres, walking up the same midship ramp (Tr. 20; Exh. C-2). Cantrell testified that
he watched one round of vehicles being discharged down the midship ramp immediately before Torres
came up the ramp (Tr. 53). Moreover, Cantrell testified, as Torres began to walk up the ramp, a van
shuttling drivers back on board passed Torres on the ramp (Tr. 115). Cantrell stated that he did not see
a signal man in the vicinity, and that it was clear there was no one directing traffic at the time he
observed Torres (Tr. 113-14).
        Cantrell testified that he had conducted an inspection of another of Pasha’s work sites between
six months and a year previously (Tr. 29). Cantrell stated that during the earlier inspection he had
spoken to Pasha’s operations manager, Chris Jensen, about the need for physical barriers between
vehicular lanes and pedestrian walkways (Tr. 29). Jensen was with Cantrell on October 27, 1999 when
they observed Torres walking up the ramp. Cantrell stated that Jensen told him at that time that
employees shouldn’t be walking up the ramps, but that it was impossible to monitor all the employees to
ensure that they were doing what they were supposed to do (Tr. 25-27; Exh. C-2).

                                                      2
       Bengt Andersson, Pasha’s safety manager (Tr. 60), admitted that there were no barriers to
protect pedestrians from vehicular traffic on the midship ramp (Tr. 82). Andersson admitted that it had
not been determined that it was infeasible to install such barriers; the ramps were, in fact, wide enough
to accommodate a physical separation (Tr. 83). Nonetheless, Andersson stated that Pasha had
determined that physical barriers were unnecessary, because it could keep pedestrian traffic off the
ramps by other means (Tr. 84).
       Andersson testified that discharging is normally set up so that there is only one way traffic on
each ramp (Tr. 64). If passenger vans carrying longshoremen are coming up the midship ramp, as
pictured in Complainant’s Exhibit 2, all discharged vehicles should be going down the stern ramp (Tr.
65). According to Pasha’s operation plan: “External ramps are not to be used for pedestrian traffic.
Shuttle Buses will drive aboard the vessel or the gangway will be used for pedestrian traffic.” (Exh. R-2,
#5). Andersson testified that signalmen are assigned to direct traffic and to prevent pedestrians from
walking up the ramp (Tr. 94). Andersson was not on the BLUE HAWK site on October 27, 1999, but
he testified that the conditions described by Cantrell were contrary to Pasha’s standard operating
procedures (Tr. 65, 95; Exh. R-2).
       Harmon Huff, Pasha’s marine superintendent (Tr. 99), was present on the day of the inspection,
and testified that traffic flow on the BLUE HAWK was set up so that vans bringing the drivers on board
came up one ramp, while vehicles were discharged down the other (Tr. 99-100). Huff testified that a
signalman was used on October 27, 1999 (Tr. 103). Huff was not on the midship ramp at the time of
the alleged violation, and admitted that it was possible that the signal man might have “vanished for a
few minutes and then came back.” (Tr. 107).
Discussion
       The cited standard provides:

       Roll-on roll-off (Ro-Ro) operations. . . (c) Pedestrian traffic. Stern and side port ramps also
       used for pedestrian access shall meet the requirements of §1918.25. Such ramps shall provide a
       physical separation between pedestrian and vehicular routes. When the design of the ramp
       prevents physical separation, a positive means shall be established to prevent simultaneous use of
       the ramp by vehicles and pedestrians.

       The violation. It is undisputed that Pasha was engaged in Ro-Ro operations. It is undisputed
that there was no physical barrier on the midship ramp, though the design of the ramp did not prevent
the physical separation of pedestrian and vehicle traffic.




                                                     3
       The evidence establishes that the ramp was used for both vehicle and pedestrian traffic. On two
occasions, CO Cantrell observed pedestrians using the ramp to access the vessel. When longshoreman
Torres was photographed on the ramp, the ramp was concurrently used by Pasha’s shuttle van, which
passed Torres on the ramp as it drove aboard the BLUE HAWK.
       Pasha maintains that the cited standard is intended to apply only to the discharge of vehicular
cargo, and so is inapplicable in the cited circumstances. In addition, Pasha maintains that its operating
procedures, which prohibit pedestrian traffic on ramps and provide for a signal man at each ramp to
ensure the proper flow of traffic and personnel, satisfy the requirements of the standard.
       Applicability only to discharge of “cargo.” In support of its position, Pasha cites the
preamble to the final rule, which states at 62 Fed.Reg. 40152, at 40177:

       Final 1918.86, titled "Roll-on roll-off (Ro-Ro) operations," which was a new section in the
       proposal, addresses operations aboard Ro-Ro vessels. . . In such operations, personnel [lashing
       cargo] are exposed to being struck by vehicular traffic. In addition, other employees involved
       with loading or unloading wheeled cargo, both drivers and pedestrians, are exposed to traffic
       hazards. This section addresses the hazards attributable to this process, in which employees and
       vehicles are in closely confined and marginally illuminated space.

       Initially, this judge notes, that if a statute does not create ambiguity on its face as to the intent
of Congress it is neither necessary nor proper to look to secondary sources to discern the intent of the
standard. Unarco Commercial Products, 16 BNA OSHC 1499, 1991-93 CCH OSHD ¶30,294 (No. 89-
1555, 1993); Alaska Trawl Fisheries, Inc., 15 BNA OSHC 1699, 1991-93 CCH OSHD ¶29,758 (No.
89-1192, 1992). The language of §1918.86(c) is clear on its face, stating that during Ro-Ro
operations, the employer shall provide a physical separation between pedestrian and vehicular routes.
Nothing in the standard limits the requirement depending on the type of vehicular traffic to which
pedestrians are exposed, or the direction in which the traffic is moving. Because there is no facial
ambiguity in the standard, it is inappropriate to look to the standard’s preamble for such a limitation.
       Moreover, the interpretation suggested by Pasha would lead to an absurd result. As noted by
the Secretary in her brief, the hazard to employees addressed by the standard, i.e, being struck by
moving vehicles in a closely confined area are the same, regardless of the direction in which the
vehicle traffic is moving. The injuries a pedestrian would sustain from impact with a shuttle van
would be no less severe than those sustained from impact with a car being discharged.
       Finally, the language Pasha relies on does not support Pasha’s interpretation. The phrase
“other employees involved with loading or unloading wheeled cargo, both drivers and pedestrians, are
exposed to traffic hazards” is sufficiently broad to cover the circumstances cited here.


                                                     4
         Adequacy of Pasha’s operating procedures. Pasha maintains that the Secretary has not
established a violation because its operating procedures satisfy the requirements of the standard. This
judge disagrees.
         When a standard contains an exception to its general requirement, the burden of proving that the
exception applies lies with the party claiming the benefit of the exception. Falcon Steel Co., 16 BNA
OSHC 1179, 1991-93 CCH OSHD ¶30,059 (No. 89-2883, 89-3444, 1993). Moreover, exemptions to
the sweep of remedial legislation must be narrowly construed and limited to effect only the remedy
intended. Pennsuco Cement and Aggregates, Inc., 8 BNA OSHC 1379 (No. 15462, 1980). The
Secretary correctly notes that the cited standard is a performance standard, and requires a physical
separation between vehicular and pedestrian routes. No alternatives to physical barriers are allowed,
unless the design of the ramp renders physical barriers infeasible. Pasha admits that physical barriers
could have been installed; Pasha was not, therefore, entitled to take advantage of the exemption in the
standard.
         Nonetheless, it is true that Pasha’s written procedures prohibit pedestrian traffic on the external
ramps, and require longshoremen to use shuttle buses or the gangway to access the vessel. The
procedures further provide for the assignment of signalmen to prevent pedestrians from using the
vehicle ramps. Had Pasha’s written policies been followed, no longshoremen would have been
exposed to a hazard, and no citation would have been issued. CO Cantrell himself indicated that the
absence of physical barriers, in and of itself, would not result in a citation where there was no
documented employee exposure (Tr. 29). As the record shows, however, Pasha’s operating
procedures were not followed. Employees did use the external ramps for vessel access, and in at least
one case, used the ramp at the same time it was being used by vehicular traffic.
         Though not argued by Pasha, its introduction of a work rule designed to prevent employee
exposure to the cited hazard raises the issue of employee misconduct. Under Commission precedent,
however, the mere existence of a work rule designed to prevent violation of an OSHA standard is
insufficient to vitiate a proven violation of that standard. The employer must also show that it
adequately communicated those work rules to its employees; took reasonable steps to discover
violations of those work rules; and effectively enforced those work rules when they were violated. New
York State Electric & Gas Corporation, 17 BNA OSHC 1129, 1995 CCH OSHD ¶30,745 (91-2897,
1995).
         Pasha introduced a copy of its “gangway talk” for the BLUE HAWK job, which includes the
instruction not to use external ramps for transit, and the requirement that the shuttle bus or gangway be


                                                      5
used for accessing the vessel (Exh. R-4). Huff testified that the ship boss, Augie Reyes, gave the
gangway talk (Tr. 78-79). Huff testified that he was sure longshoremen have been verbally
admonished not to walk up the ramp, but did not have any personal knowledge of any verbal discipline
(Tr. 90). Nor was Huff aware of any other disciplinary measures taken by Pasha to discourage
pedestrian use of the vehicle ramps (Tr. 90-91). Pasha employees disregarded the prohibition against
using the ramps as pedestrian routes when there was not vehicular traffic, suggesting that the rule was
not, in fact, enforced. At the time of the violation, though there was vehicular traffic on the ramp,
there was no signalman present to prevent pedestrian access (Tr. 113-14). Operations manager Jensen
told CO Cantrell that it was impossible to monitor all the employees to ensure that they followed
proper procedures (Tr. 26-27, 113-14).
       Pasha failed to demonstrate that it had effectively communicated and/or enforced its work rule
prohibiting the use of external ramps as pedestrian walkways, and therefore, has not shown that Travis
Torres’ conduct was unpreventable.
       The violation is established.
Penalty
       A penalty of $1,500.00 was proposed.
       CO Cantrell testified that an employee in a vehicle lane could have his foot run over, or be
struck by a vehicle. An employee struck by a car or van would probably suffer broken bones (Tr. 33).
The violation, therefore, was properly classified as “serious.” Cantrell believed the probability of such
an accident occurring was low (Tr. 34-35). The Secretary offered no evidence that Pasha had received
citations for any prior violations of the Act. Cantrell stated that he gave Pasha full credit for good faith
(Tr. 35).
       One employee was exposed to the cited hazard for the seconds it took the shuttle van to pass
him. Although it was in technical violation of the standard, Pasha had enacted alternative practices
which, if followed, would have eliminated the hazard addressed by the standard. CO Cantrell believed
that Pasha acted in good faith . Taking into account the relevant factors, this judge finds that a penalty
of $500.00 is appropriate.
                                                    ORDER

1.     Citation 1, item 1, alleging violation of 29 CFR 1918.86(c) is AFFIRMED, and a penalty of $500.00 is ASSESSED.



                                                            /s/
                                                            Benjamin R. Loye

                                                        6
                          Judge, OSHRC
Dated: June 1, 2000




                      7