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REVISED - June 12, 20000
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 99-60124
___________________________
MALLARD BAY DRILLING, INC.,
Petitioner,
VERSUS
ALEXIS HERMAN, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF
LABOR,
Respondent.
___________________________________________________
Appeal from the Occupational Safety and
Health Review Commission
___________________________________________________
June 2, 2000
Before POLITZ and DAVIS, Circuit Judges, and RESTANI.*
W. EUGENE DAVIS, Circuit Judge:
Mallard Bay Drilling, Inc. ("Mallard") appeals the order of
the Occupational Safety and Health Review Commission affirming a
citation issued against it by the Occupational Safety and Health
Administration ("OSHA"). The order affirmed the decision of the
Administrative Law Judge, which found that Mallard's drilling barge
-- the MR. BELDON -- was a "workplace" within the meaning of the
Occupational Safety and Health Act ("OSH Act")1 and that OSHA's
*The Honorable Jane A. Restani, Judge, U.S. Court of International Trade,
sitting by designation.
129 U.S.C. § 651 et seq.

jurisdiction was not preempted by the Coast Guard's regulatory
authority over vessels. For the reasons that follow, we reverse.
I.
On June 16, 1997, four Mallard employees were killed and two
others seriously injured in an explosion on the MR. BELDON, a
Mallard drilling barge. On that date, the MR. BELDON was drilling
an oil well on Little Bayou Pigeon, a navigable waterway within the
territorial waters of Louisiana. The explosion occurred while crew
members tried to regain control of the well after a blow out. The
Coast Guard took the lead role in investigating the explosion.
Based on the information collected by the Coast Guard, OSHA issued
a citation against Mallard charging three violations of the OSH
Act. Mallard did not challenge the merits of the allegations;
rather, it asserted that OSHA lacked authority to regulate working
conditions aboard the MR. BELDON. It also argued that the MR.
BELDON was not a "workplace" within the meaning of Section 4(a) of
the OSH Act.2
The ALJ affirmed the citation, finding that the MR. BELDON was
a "workplace," that Mallard's employees were not seamen, and that
OSHA's jurisdiction was not preempted by the Coast Guard's
regulatory authority over vessels. Mallard then filed a Petition
for Discretionary Review with the Occupational Safety and Health
Review Commission, which was denied. Mallard now appeals.
II.
229 U.S.C. § 653(a).
2

Mallard contends that the United States Coast Guard has
exclusive jurisdiction over the regulation of working conditions of
seamen aboard vessels such as the MR. BELDON, thus precluding
OSHA's regulation under Section 4(b)(1) of the OSH Act.3 As our
discussion below demonstrates, precedents from this Court compel us
to agree.
By its own terms, the OSH Act does not apply to "working
conditions of employees with respect to which other Federal
agencies...exercise statutory authority to prescribe or enforce
standards or regulations affecting occupational safety or health."4
Under 14 U.S.C. § 2, the Coast Guard "shall administer laws and
promulgate and enforce regulations for the promotion of safety of
life and property on and under the high seas and waters subject to
the jurisdiction of the United States covering all matters not
specifically delegated by law to some other executive
department...."
It is uncontested that the Coast Guard had jurisdiction to
investigate the marine casualty in this case, pursuant to 46 U.S.C.
§ 6301. The dispute concerns whether the Coast Guard's
jurisdiction is exclusive. Our case law is controlling on this
point. Pursuant to the statutory grant of authority recited above,
the Coast Guard has exclusive authority over the working conditions
of seamen. See Clary v. Ocean Drilling and Exploration Co., 609
329 U.S.C. § 653(b)(1).
429 U.S.C. § 653(b)(1).
3

F.2d 1120 (5th Cir. 1980); Donovan v. Texaco, Inc., 720 F.2d 825 (5th
Cir. 1983). "OSHA regulations do not apply to working conditions
of seamen on vessels in navigation." Donovan, 720 F.2d at 826, 827
(emphasis added); see also Clary, 609 F.2d at 1121.
As in Clary, the "vessel" in this case is a drilling barge.
The employees working on the MR. BELDON are "seamen" under our case
law. See Colomb v. Texaco, Inc., 736 F.2d 218 (5th Cir. 1984);
Producers Drilling Co. v. Gray, 361 F.2d 432 (5th Cir. 1966). The
safety procedures at issue in this case relate to "working
conditions" of seamen.
In Clary, the plaintiff seaman brought suit for injuries
sustained aboard a drilling barge on which he was working. 609
F.2d at 1121. He alleged that OSHA regulations were violated
because the steel plate welded to the deck (which he tripped over)
was not color coded yellow so as to make it more visible. Id.
This Court ruled that the district court was correct in refusing to
allow the plaintiff to introduce the OSHA regulations into evidence
because "OSHA regulations ... do not apply to working conditions of
seamen on vessels in navigation...." Id. at 1122. We reasoned
that the Coast Guard was the federal agency with statutory
authority over the working conditions of seamen, and that its
regulations included standards governing the safety and health of
persons working on vessels. Id. Because Clary is
indistinguishable from the case at bar, its holding controls our
decision.
Respondent attempts to distinguish Clary by arguing that this
4

Court, in ruling that OSHA lacked authority to regulate the working
conditions of seamen, did not specifically consider whether its
holding applied equally to uninspected and inspected vessels.
Thus, respondent argues that Clary does not bind our decision as to
the uninspected vessel at issue in today's case.
The vessel in Clary was a drilling barge -- the same type of
vessel at issue in this case -- and there is no indication from
Clary that the barge in that case was inspected. Further, the
broad language of Clary does not turn on any such distinction.5
Furthermore, the Coast Guard is no stranger to uninspected
vessels. It is expressly authorized to issue safety regulations
for uninspected vessels for: (1) the number, type and size of fire
extinguishers; (2) the type and number of life preservers; (3)
flame arrestors, backfire traps; (4) ventilation of engine and
fuel tank compartments; and (5) the number and types of alerting
and locating equipment for vessels on the high seas. 46 U.S.C. §
4102. Further, the Coast Guard has issued a number of safety
regulations for uninspected vessels, including those related to:
life preservers and other lifesaving equipment; emergency alerting
and locating equipment; fire extinguishing equipment; backfire
flame control; ventilation of tanks and engine spaces; cooking,
heating, and lighting systems; safety orientation and emergency
instructions; action required after an accident; and signaling
5The additional finding in Clary that the OSHA regulations cited by the
plaintiff did not apply to a special purpose vessel does not supplant Clary's
holding that the OSH Act "does not apply to the working conditions of seamen on
vessels operating on the high seas," which Clary described as the "one
significant decision" made therein. 609 F.2d at 1121, 1122.
5

lights. See 46 C.F.R. §§ 25.01 et seq; 46 C.F.R. §§ 26.01 et seq.
Thus, the Coast Guard has authority to issue safety regulations for
uninspected vessels, as well as inspected vessels, and it has in
fact exercised this authority.6 The fact that the MR. BELDON is an
uninspected vessel is therefore no basis upon which to distinguish
Clary.
In Donovan, this Court revisited the applicability of OSHA
regulations to the working conditions of seamen. 720 F.2d 825.
Although Donovan's facts are distinguishable from the facts of this
case, we made it perfectly clear that we were reaffirming the
principles we laid down in Clary. We stated that "[i]t is the law
of this circuit that OSHA regulations do not apply to working
conditions of seamen on vessels in navigation ...." Id. at 826.
"Nothing in OSHA shall apply to working conditions of seamen on
vessels." Id. at 827. "[T]he Coast Guard's comprehensive
regulation and supervision of seamen's working conditions [creates]
an industry-wide exemption [from OSHA] for seamen serving on
vessels operating on navigable waters." Id. at 826.
We gave a number of reasons in Donovan for our conclusion that
the Coast Guard's jurisdiction is exclusive in this area:
"Section 4(b)(1) evidences a general Congressional
intent to forbid overlapping regulation of working
conditions in any given industry by multiple federal
agencies. Such redundant control programs offer
little except confusion, governmental proliferation,
6Because a drilling barge is not self-propelled, some of these regulations,
by their nature, do not apply to the MR. BELDON. However, this does not change
the fact that the Coast Guard has exercised its authority to issue safety
regulations for uninspected, as well as inspected, vessels.
6

and stultification of enterprise." Donovan, 720
F.2d at 827.

We explained that overlapping regulation "might well
produce [the] ... anomaly ... of steaming in and out
of OSHA coverage." Donovan, 720 F.2d at 829.
"[A] single, uniform set of rules should govern the
maritime workplace. Because of OSHA's geographic
limitations ... this cannot be those of OSHA
....[thus] we conclude that it must be those of
the Coast Guard." Donovan, 720 F.2d at 829.
Because OSHA has no jurisdiction in this matter, we need not
address Mallard's contention that the MR. BELDON was not a
"workplace" within the meaning of Section 4(a) of the OSH Act.7
III.
For the reasons stated above, we hold that OSHA lacked
authority to regulate the working conditions of the employees
aboard the MR. BELDON; rather, such authority rests solely with the
United States Coast Guard. Our precedents are clear on this point
and admit of no exception for this case. Thus, the citation OSHA
issued against Mallard is VACATED, and the order of the
Occupational Safety and Health Review Commission is REVERSED and
judgment is RENDERED in favor of Mallard.
7Under Section 4(a), the OSH Act applies "with respect to employment
performed in a workplace in a State." 29 U.S.C. § 653(a).
7