Too many casualties in the fishing industry, including amputations and death, are caused by unguarded machinery parts catching a worker’s fingers, limbs, clothing, or hair. Long hours with little rest, the fast pace of work, and rolling seas increase the risk when the moving parts of a machine are not properly guarded from human contact during operation and properly shut down during maintenance. Coast Guard regulations on machine guarding are very clear and the courts tend to rule accordingly.
In Fuszek v. Royal King Fisheries, Inc., 98 F.3d 514 (1996), the Ninth Circuit Court of Appeals found that a seaman is entitled to full damages, and not subject to reduced damages for comparative negligence, when the employer violates U.S. Coast Guard regulation. In Mr. Fuszek’s case, the question was not whether the machine was guarded, for all admitted and agreed that it was not guarded. The question was whether Mr. Fuszek’s award for damages should be diminished due to what the defendants claimed was Mr. Fuszek’s comparative negligence.
As per Section 3 of the Federal Employers’ Liability Act (FELA), the Jones Act (46 USC 30104) grants seamen the same rights as railroad employees. Therefore, under the Jones Act, ordinarily, if a seaman is found to be comparatively negligent, his or her award may be decreased in accordance with percentage of negligence. 45 USC 53, Section 53 states, “In all actions…brought against any such common carrier by railroad under or by virtue of any of the provisions of this chapter to recover damages for personal injuries to an employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: Provided, that no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.” In other words, comparative negligence under the Jones Act is not an issue when a Coast Guard safety regulation has been violated by the employer. In effect, Congress has provided a penalty against an employer if that employer does not follow the regulations designed to protect the worker.
In MacDonald v. Kahikolu Ltd., 442 F.3d 1199 (9th Cir. 2006), wherein Mr. MacDonald contended that Kahikolu Ltd. violated Coast Guard safety regulations, the court cited Kernan v. American Dredging Co., 355 U.S. 426, 78 S.Ct.394, 2 L.Ed.2d 382 (1958), which ruled that, “…under the Jones Act, a violation of a statue or Coast Guard regulation that causes injury or death of an employee creates liability ‘in the absence of any showing of negligence….'”
These cases bring home the point that, under the Jones Act, if an employer violates a federal statute or a Coast Guard regulation such as the one on machine guarding, and that that violation plays any part, no matter how small, in the injury of an employee, comparative negligence becomes moot, and the employee may recover full damages.
There are numerous codes and regulations for machine guarding. 46 CFR Section 28.215(b) is a U.S. Coast Guard regulation which states, “Suitable handcovers, guards, or railing must be installed in way of machinery which can cause injury to personnel, such as gearing, chain or belt drives, and rotating shafting. This is not meant to restrict necessary access to fishing equipment such as winches, drums, or gurdies.”
46 USC 4502(b)(2)(G) states in some detail the safety standards required to be met onboard a fishing vessel, including in subsection (G), that equipment on the vessel must minimize the risk of injury to the crew during vessel operations if a risk of serious injury exists that can be eliminated or mitigated by that equipment.
Occupational Safety and Health Administration (OSHA) addresses machine guarding requirements in 26 CFR 1910.212-219, with the general requirements listed in section 212. Lockout/tagout procedures are addressed at OSHA 29 CFR 1910.147 and 29 CFR 1910.147 App. A.
Various states have regulations addressing machine guarding. For instance, WAC 296-24-15001 (Washington State), “Machine Guarding,” states that, at the point of operation which exposes an employee to potential injury, a machine guard must be in place “to prevent the operator from having any part of the employee’s body in the danger zone during the operating cycle.” This applies whether formal standards have been set or not. In WAC 296-24-15007, we read, “All power-driven machinery shall be stopped and brought to a complete standstill before any repairs or adjustments are made, or pieces of material or refuse removed, except where motion is necessary to make adjustment.”
The National Institute for Occupational Safety and Health (NIOSH) tracks the various causes of fishing-related deaths on the Commercial Fishing Incident Database (CFID). According to NIOSH, the annual fatality rate among commercial fishers for 2000-2010 averaged 124 per 100,000 workers. This is very high, considering that the average annual fatality rate of all U.S. workers combined is 4 per 100,000. Ten percent of these fishing-related fatalities were attributed to on-board injuries, some of which resulted from unguarded machinery; we may surmise that the injury rate is higher than the fatality rate.
NIOSH has developed various “Engineering Solutions” which can be retrofit to certain mechanical devices, such as an emergency stop for winches. Through the NIOSH Commercial Fishing Safety Research Program, fishers, fisheries, and other organizations may access NIOSH safety information and safety recommendations.
All of these codes and regulations reflect common sense. A running, unguarded machine is an accident waiting to happen, even when the employee uses all caution possible. In the fishing industry, work is usually time sensitive and employees are under pressure to work quickly. There have been instances where employers have not adhered to safety regulations or supplied sufficient work and safety training. Choosing speed (profit) in the short run may lead to loss of profit in the long run, due to preventable employee injury and even tragic loss of life.
The law recognizes no excuse for an employer furnishing unguarded machinery, and thus these codes and regulations serve to protect those employed in the fishing industry. That said, it must be stressed that protection through the mandatory application of reasonable preventative practices is far superior than applying the law after the fact.