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OSHA on the OCS? Fifth Circuit Affirms Preemption of OSHA Regulations on OCS MODU

The 5th Circuit, in Thomas v. Hercules Offshore Services, L.L.C.[1], concluded per curiam that the Occupational Safety and Health Administration (“OSHA”) safe workplace regulations had been preempted by the United States Coast Guard (“USCG”) regulations for injuries occurring on the Outer Continental Shelf (“OCS”) on a foreign-flagged jack-up drilling rig (or as the opinion described the rig, a “mobile offshore drilling unit” (“MODU”) in the parlance of the USCG’s OCS regulations at 33 CFR Subchapter N and 46 CFR Subchapter I-A).  As a result, the owners of the MODU were not negligent for injuries sustained by a galley hand who tripped and fell over a raised doorsill that was constructed in compliance with the USCG’s specific regulations for accommodation space specifications (46 C.F.R. §§108.197, 205).[2]

Plaintiff in Hercules was a galley hand on the Hercules 264 MODU operating on the OCS in the Gulf of Mexico offshore of Louisiana.[3]  In 2013 while working aboard the Hercules 264, the plaintiff tripped and fell after her foot struck a raised doorsill between her state room and connected bathroom.[4] The doorsill was 2 inches high and 3.5 inches wide.[5]  After the fall, plaintiff suffered from pain and was taken ashore for medical treatment where she was diagnosed with lumbar strain and a right hip contusion.[6] Hercules paid maintenance and cure (“M&C”) to the Plaintiff from the date she reported her injury.[7]

Prior to Plaintiff’s employment with Hercules, plaintiff failed to disclose to Hercules two prior car accidents resulting in injuries to her back. Plaintiff, however, was able to pass the pre-employment physical exam required prior to her employment with Hercules.

Approximately 1.5 years after Plaintiff suffered her injuries she filed her lawsuit against Hercules in the Middle District of Louisiana alleging claims for negligence under the Jones Act, unseaworthiness under general maritime law, and a claim for M&C benefits, alleging inter alia that the construction/layout of the doorsill violated OSHA workplace safety regulations.[8] Shortly after filing its Answer, Hercules filed two separate motions for summary judgment.[9] One motion challenged whether Hercules was liable under the theories presented by the Plaintiff and the second motion challenged whether the Plaintiff was entitled to M&C payments due to her failure to disclose previous injuries on her employment application.[10] The district court granted both of Hercules motions and dismissed the Plaintiff’s claims.[11]

On appeal the 5th Circuit addressed the following issues ruled on by the District Court: (1) whether the Hercules 264 was a USCG “inspected” vessel such that the OSHA regulations were preempted; (2) whether the district court erred in finding that there was no evidence supporting plaintiff’s claims for negligence under the Jones Act and unseaworthiness under general maritime law; and (3) whether the Plaintiff is entitled to M&C after failing to disclose previous injuries to Hercules on her employment application.

Of the most import are the 5th Circuit’s discussions on issues 1 and 2.

OSHA’s Regulations Preempted on Foreign-Flagged MODU

With respect to the first issue, whether OSHA regulations are preempted by the USCG regulations because the Hercules 264 was an “inspected” vessel or an “uninspected” vessel, Plaintiff challenged the District Court’s ruling that the vessel was an “inspected” vessel and therefore the OSHA regulations were preempted. The 5th Circuit disagreed with the Plaintiff.

By way of context, 46 U.S.C. 3301 sets forth a listing of 15 “types” of vessels that are subject to inspection by the USCG, and this list does not include MODUs/jackup vessels specifically.  Plaintiff relied on the absence of MODUs from the list to argue that the Hercules 264 was “uninspected” and that OSHA regulations were thus not preempted under the Supreme Court’s holding in Chao v. Mallard Bay Drilling, Inc, 534 U.S. 235, 122 S. Ct. 738, 742 (2002) (USCG regulations preempt OSHA regulations for “inspected” vessels, but not for “uninspected” vessels unless the USCG has exercised its authority vis-à-vis the “uninspected” vessel type “either by promulgating specific regulations or by asserting comprehensive regulatory authority over a certain category of vessels.”).  And although Plaintiff did not specifically argue this point, it bears noting that the Hercules 264, as a foreign-flagged MODU, would not be directly subject to USCG regulatory flag-state jurisdiction; the USCG only asserts limited coastal state authority over foreign-flagged MODUs operating on the OCS pursuant to 33 CFR Subchapter N.  However, under its coastal state jurisdiction, the USCG has authority to inspect foreign-flagged MODUs engaged in OCS operations (33 C.F.R. § 140.101) for compliance with (inter alia) the USCG’s design/construction requirements for US-flagged MODUs at 46 CFR Part 108; the MODU’s own flag-state’s certifications/safety requirements (provided those requirements are as strict or stricter than the USCG;’s requirements for US-flagged MODUs); and/or International Maritime Organization (IMO) MODU Code compliance (33 C.F.R. § 143.207).  In turn, the USCG issues “certificates of compliance” (“COC”) for foreign-flagged MODUs that satisfy these requirements.  33 CFR §143.210.  These COCs are valid for two years, subject to re-inspection 9-15 months after initial issuance.  See CG-543 Policy Letter 11-06.

This statutory/regulatory context frames the issue faced by the 5th Circuit in Thomas. As the 5th Circuit noted, “[i]t is undisputed [under Chao] that if a vessel is an inspected one, then the Coast Guard regulations preempt OSHA’s regulations. . . . However, if the vessel is an uninspected one, the Supreme Court has explained that OSHA’s regulations are not preempted unless the USCG has exercised its authority “either by promulgating specific regulations or by asserting comprehensive regulatory authority over a certain category of vessels.”[12] The Plaintiff in Thomas argued that because the Hercules 264 did not fit the 15 statutorily specified vessel types subject to USCG inspection, OSHA regulations applied under Chao.

The Fifth Circuit, however, focused on the other two avenues (besides “inspected” status under the plain terms of §3301) whereby the Coast Guard regulations preempt OSHA: when the “Coast Guard has exercised its authority “either by [1] promulgating specific regulations or [2] by asserting comprehensive regulatory authority over a certain category of vessels.”[13] In addressing this issue, the 5th Circuit specifically stated,

The Supreme Court has noted that “the Coast Guard has exercised its statutory authority to regulate a number of specific working conditions on certain types of uninspected vessels. For example, the Coast Guard regulates drilling operations that take place on the outer continental shelf.” . . . Moreover, the Coast guard has issued regulations [i.e. the regulations at 46 CFR Part 108, contingently applicable to foreign-flagged MODUs pursuant to 33 CFR 143.207] with respect to the design and equipment standards for mobile offshore drilling units, including the construction of accommodation spaces on those units. See 46 C.F.R. § 108.197. The regulations also include design requirements with respect to wash spaces, toilet spaces, and shower spaces. See 46 C.F.R. § 108.205. We are persuaded that the promulgation of these regulations constitutes an exercise of the Coast Guard’s authority sufficient to preempt OSHA’s regulations.[14]

Based on the above analysis, the 5th Circuit addressed the importance of USCG’s regulations and authority on the OCS, and held that MODUs (even foreign-flagged MODUs) engaged in operations on the OCS are sufficiently within the “comprehensive regulatory authority” exercised by the USCG on the OCS to preempt OSHA regulations.

Negligence and Unseaworthiness

After rejecting the applicability of OSHA regulations, the Fifth  Circuit went on to find that there was no evidence of negligence on Hercules’ part because the Plaintiff could not show or point to evidence showing “(1) violation of a USCG regulation; (2) evidence that there had been other incidents of tripping over the raised doorsill; or (3) expert testimony that the raised doorsill was an unsafe condition.”[15] Based on the negligence standard under the Jones Act, that the “seaman must bring evidence showing an unsafe condition exited and that the owner either knew or should have known about it.”[16] Based on the finding of a lack of evidence, the 5th Circuit upheld the District Court’s granting of summary judgment.[17]

Similarly, the District Court found that the Plaintiff had failed to present any evidence, beyond her own opinion that the 2 inch high doorsill was defective and unsafe. Notably, the court noted that the doorsill did not violate any applicable USCG regulations and “[i]ndeed, it was undisputed that the USCG regulations may require higher doorsills than the one at issue at various locations on the Hercules 264.”[18]

McCorpen Defense Upheld

As a final note, the 5th Circuit also affirmed the District Court’s granting of
Hercules’ McCorpen defense, cutting off its obligation to continue paying Plaintiff M&C.  The McCorpen defense requires proof of 3 elements: (1) the seaman intentionally misrepresented or concealed medical facts; (2) the nondisclosed facts were material to the employer’s decision to hire the seaman; and (3) a link between the withheld information and the injury that is the subject of the complaint.  The Thomas court found that Plaintiff had lied on her pre-employment physical questionnaire regarding prior back and neck problems – stemming from two different prior motor vehicle accidents – and that Hercules had materially relied on this representation as part of its hiring decision, thus satisfying elements 1 & 2.  Plaintiff attempted to argue that because she had passed her actual physical (including a functional capacity evaluation with respect to back/neck flexibility/strength), but the court rejected this argument (as it has in prior decisions) on the basis that the false written response itself was material to Hercules’ hiring decision.  Id. at pp. 9-10 (citing Brown v. Parker Drilling Offshore Corp., 410 F.3d 166, 171 (5th Cir. 2005)).  And as to the third prong, the court found that the prior undisclosed injuries (lower back and neck pain with radiating pain in her extremities) were causally linked to her injuries allegedly sustained in her fall on the MODU (herniated discs).

The Fifth Circuit’s Thomas decision is an important clarification of what had previously been a thorny question of law regarding OSHA’s authority on the OCS.  However, Thomas only answers the question with respect to MODUs; the more problematic question has historically been (and presumably will remain) how/whether OSHA regulations apply on fixed OCS facilities:

[When] an injury occurs on a drilling rig located on a platform on the Outer Continental Shelf, the outcome [viz. OSHA preemption] is not so clear. OCSLA, by its own terms, contemplates that OSHA regulations may apply to operations conducted on the OCS: 43 U.S.C. § 1347(d) provides that “[n]othing in this subchapter shall affect the authority provided by law to the Secretary of Labor for the protection of occupational safety and health….” And OSHA states that it “shall apply with respect to employment performed in a workplace in … Outer Continental Shelf lands defined in the Outer Continental Shelf Lands Act ….” 29 U.S.C. § 653(a).

Mang v. Parker Drilling Offshore, L.L.C., 2001 WL 179920, at *2 (E.D. La. Feb. 22, 2001).  Indeed, the Fifth Circuit had previously (historically) refused to directly address the issue: “We doubt seriously that these issues can be adequately addressed and correctly resolved in the context of this dispute between two private parties and in the absence of both of the two public agencies primarily interested.”  Mott v. ODECO, 577 F.2d 273 (1978). However, presumably due in part to the intervening regulatory actions by the USCG (and in particular those following the DEEPWATER HORIZON/Macondo disaster), the Fifth Circuit has confirmed (for MODUs) that OSHA regulations are in fact preempted.  And this same outcome may potentially hold true for fixed-OCS facilities, to the extent they are specifically subject to USCG jurisdiction (33 C.F.R. § 140.103). Indeed, one district Court has squarely held – notwithstanding its acknowledgment that the 5th Circuit had refused to resolve the precise issue – that OSHA regulations do not apply on fixed platforms:

It appears that OSHA regulations do not provide any avenue for relief for the Plaintiff or any person similarly employed on an offshore oil platform. In [Mott] the Fifth Circuit expressly declined to decide whether OSHA regulations applied to offshore platforms…Since that time, district courts, as well as OSHA itself, have taken the position that OSHA regulations do not apply to work that is performed from an offshore platform. See Petri v. Kestrel Oil & Gas Properties L.P., 2012 WL 2153498, at *2 and n. 1 (S.D.Tex. Jan.4, 2012). Instead, the Coast Guard has regulatory authority over rigs and oil production on the OCS. Id. (citing 43 U.S.C. § 1333(d)(1)).

English v. Wood Grp. PSN, Inc., , 2015 WL 5061164, at *8 (E.D. La. Aug. 25, 2015).  In the wake of Thomas, this issue will remain to be resolved in the face of the OSHA-specific provisions of OCSLA, and whether/to what extent they are at odds with the USCG’s Subchapter N regulations.

[1] Case No. 17-30638 (5th Cir. March 2, 2018).

[2] The court also did address other issues, notably the McCorpen defense in relation to the plaintiff’s claims for maintenance and cure finding that the District Court did not err in finding the McCorpen defense applicable. See Thomas v. Hercules Offshore Services, L.L.C., Case No. 17-30638 (5th Cir. March 3, 2018).

[3] See Hercules, at 2.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id. at 3-4.

[13] Id. at 4 (citing Chao, 122 S. Ct. at 743).

[14] Id. at 5 (citing Chao, 122 S. Ct. at 743).

[15] Id. at 7.

[16] Id. at 6 (citing Perry v. Morgan Guar. Trust Co. of N.Y., 528 F.2d 1378, 1379 (5th Cir. 1976).

[17] Id. at 7.

[18] Id. at 7.