ALVIN B. RUBIN, Circuit Judge:
In a negligence action, regulations promulgated under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (1976) ("OSHA"), provide evidence of the standard of care exacted of employers, but they neither create an implied cause of action nor establish negligence per se. While they are evidence of a general standard of care due employees, they establish no standard of care due third persons. Therefore, in this negligence action, we reject the argument that the failure of a third party that was not the plaintiff's employer to follow OSHA regulations establishes that third party's negligence. Because we accept the trial judge's conclusions based on the other claims of negligence and because there are no other factual disputes, we affirm the judgment denying recovery.
The trial judge found these facts. Mission Viking ("MV") owned a cargo ship. It contracted with Avondale Shipyards to do part of the work necessary to convert the ship so that it could be used in drilling oil wells. It engaged other contractors to do other parts of the necessary work. Thus, it contracted directly with Technical Sea Services to outfit the vessel.
The ship's equipment included pedestal cranes. As part of its service to MV, Avondale furnished a qualified crane operator to make lifts for all work crews participating in the conversion whether employed by Avondale or by one of the other contractors that had contracted directly with MV. The established procedure was for the contractor who needed a lift to provide workers to hook the load and to direct its movement by signaling the crane operator.
Anthony Melerine, Jr., was employed by Technical as a welder and fitter. As part of Technical's work, it was necessary to move a heavy mooring bitt from one side of the ship to the other. Melerine's foreman, Ronald Macalusa, directed him to help Macalusa in moving the bitt. Macalusa asked the Avondale crane operator, Louis Easter, to lift and move the bitt with the crane. From Easter's station as crane operator, he could not see the bitt, so Melerine acted as signalman.
Once the load was raised off the deck, Easter had a full view of it, except for a short time when it passed behind some boards. While the load was passing behind these boards, it caught on something. Melerine again signaled Easter to stop, and Easter did. Still standing on the scaffold, Melerine grasped the line and tried to pull the load free. When he succeeded in doing so, the line quivered and struck the scaffold, causing Melerine to fall backward and injure his back. Melerine sued Avondale for negligence.
Because Melerine was not a seaman but a ship repairman, 33 U.S.C. § 905(b), and because Avondale was neither the shipowner nor the employer of Melerine, the action is grounded on general maritime law; and the duty owed by Avondale to Melerine is the usual negligence duty of reasonable care under the circumstances. See 1 M. Norris, The Law of Maritime Personal Injuries § 2, at 4-5 (3d ed. 1975); id. § 63, at 117-18.
Melerine contends that Avondale, through its employee, Easter, was negligent both in law and in fact. He bases his negligence in law argument on Easter's alleged violation of the following: (1) an OSHA regulation requiring that a tag line
Melerine bases his negligence in fact argument on two grounds. The first is that Easter was negligent in failing to use his "knowledge, authority, and responsibility" to prevent or prohibit what Melerine contends was an "inherently unsafe" lifting operation. The second, related to but more
The trial judge did not evaluate these contentions separately. However, in that part of his judgment labeled "Conclusions of Law," he found: "[a]t all pertinent times [Easter] acted in a prudent and reasonable manner"; "[t]here was no negligence on the part of any Avondale employee or any other person for whom Avondale can be held legally responsible"; and "[t]he sole proximate cause of the accident was the action of the foreman, Macalusa, in directing Melerine to guide the crane line around the platform by using his hands, instead of using a tagline." We first discuss Melerine's contention that the trial judge was in error because Easter violated the OSHA regulations and ANSI standard and that this alleged violation constituted negligence per se.
OSHA was adopted "to assure ... safe and healthful working conditions." 29 U.S.C. § 651(b). The Secretary of Labor enforces its requirements by citations for violations of the safety and health standards promulgated by him under the Act's authority and by assessing fines for these violations. The Occupational Safety and Health Review Commission ("OSHRC") reviews challenges to these enforcement actions.
Melerine does not, therefore, contend that the OSHA regulations create a civil cause of action against Avondale. He urges instead that their violation establishes Avondale's negligence per se in a cause of action given him by general maritime law. See Lowe v. General Motors Corp., 624 F.2d 1373, 1379-81 (5th Cir. 1980).
OSHA authorizes the Secretary of Labor to promulgate health and safety regulations for employees of employers "engaged in a business affecting commerce." 29 U.S.C. § 655. Under another statute, the Longshoremen's and Harbor Workers' Compensation Act ("LHWCA"), the Secretary of Labor is empowered to promulgate health and safety regulations to protect specified maritime employees. 33 U.S.C. § 941(a). The two OSHA regulations at issue in this case were originally promulgated under the authority of the LHWCA and were later adopted by the Secretary of Labor as OSHA regulations pursuant to 29 U.S.C. § 655(a). See Dravo Corp. v. OSHRC, 613 F.2d at 1229-30; Brown & Root, Inc., 9 Occ. Safety & Health Cas. (BNA) 1407, 1408-09 (Rev. Comm'n 1981); 29 C.F.R. §§ 1910.1, .11, .13. But the Secretary adopted only the substantive safety and health provisions of the LHWCA regulations: he did not adopt that portion stating the scope of their coverage.
Whether OSHA regulates only the obligation of the employer to provide safe work conditions for his employees or also states a standard of care due third persons has been the subject of "complex dispute."
In Southeast Contractors, Inc. v. Dunlop, 512 F.2d 675 (5th Cir. 1975) (per curiam), we reversed a decision of the OSHRC and adopted the opinion of OSHRC Chairman Moran, who had dissented from the OSHRC's decision. In his dissent, Chairman Moran stated:
1 Occ. Safety & Health Cas. (BNA) 1713, 1716 (Rev. Comm'n 1974) (citations omitted) (italics in original). In Horn v. C.L. Osborn Contracting Co., 591 F.2d 318, 321 (5th Cir. 1979), aff'g 423 F.Supp. 801 (M.D.Ga.1976), we followed Southeast Contractors and Chairman Moran's dissent and affirmed the district court's conclusion that OSHA
423 F.Supp. at 808 (citation omitted). And in Barrera v. E.I. duPont de Nemours & Co., we stated that OSHA creates duties "only between employers and their employees." 653 F.2d at 920 (italics added).
The coverage of the OSHA regulations applicable in this case is, therefore, different from the coverage of the LHWCA regulation applied in Arthur v. Flota Mercante. In Arthur, we construed an LHWCA regulation
The OSHA tag line regulation does not, therefore, define the duty owed by Avondale and Easter, its employee, to Melerine, the employee of another company. The trial judge correctly refused to use it to establish negligence per se. Instead he found that, although a person exercising due care would have directed Melerine to use a tag line, Technical's foreman, Macalusa, was the person responsible for failing to require Melerine to do so. Macalusa and Melerine selected the load, attached the crane's line to it, signaled Easter, and directed him where to place the load. Even if, as Melerine asserts in his brief, Macalusa and Melerine were unaware of the danger of their conduct, and Easter "was the only person participating in the lifting operation who had knowledge of the risk and danger involved,"
Finally, Melerine relies on an alleged violation of the ANSI standard that makes the crane operator responsible for operations under his direct control. Unlike many other ANSI standards, this one was never adopted as part of any OSHA regulation on ship repairing. See 29 C.F.R. § 1915.5. Thus it is not a "legislative enactment," W. Prosser, supra note 9, § 36, at 192, so it could not establish Avondale's negligence per se. See Muncie Aviation Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178, 1180-81 (5th Cir. 1975); Dorsey v. Yoder Co., 331 F.Supp. 753, 768 & n.2 (E.D.Pa.1971) (collecting cases), aff'd mem., 474 F.2d 1339 (3d Cir. 1973).
Having decided that Avondale was not negligent in law, we now deal with Melerine's second contention, that Avondale was negligent in fact. This contention must surmount the clearly-erroneous hurdle set by Fed.R.Civ.P. 52(a).
Melerine contends that, as a matter of reasonable prudence, Easter should have appreciated Melerine's hazardous exposure and "closed down his crane." He bases this contention on the ground that both the lifting operation itself, which Melerine says was "inherently unsafe," and the OSHA regulations and ANSI standard discussed above
The American Petroleum panel, of course, could not have overruled Southeast Contractors, e.g., Ford v. General Motors Corp., 656 F.2d 117, 120 (5th Cir. 1981), and in fact it pointed out that its statements on this labeling regulation were dicta, 581 F.2d at 508.