Chao v. Transocean Offshore

*District Judge of the Eastern District of Louisiana, sitting by
designation.
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 00-60535
ELAINE CHAO, SECRETARY OF LABOR, U.S. DEPARTMENT OF LABOR,
Plaintiff-Appellee,
VERSUS
TRANSOCEAN OFFSHORE, INC.,
Defendant-Appellant
Appeal from the United States District Court
For the Southern District of Mississippi
January 9, 2002
Before KING, Chief Judge, DAVIS, Circuit Judge, and VANCE*,District
Judge.
W. EUGENE DAVIS:
Defendant-Appellant, Transocean Offshore, Inc.(Transocean),
owner of the M/V DISCOVERER ENTERPRISE, appeals from a judgment of
civil contempt and award of attorneys fees and costs to the
Secretary of Labor. The judgment resulted from Transocean’s
refusal to honor a warrant obtained by the Occupational Safety and

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Health Administration (OSHA) to inspect the work areas of Ingalls
Shipbuilding, Inc.’s (Ingalls) employees who were working aboard
Transocean’s vessel at Ingalls’ drydock. The issue we must decide
is whether OSHA had jurisdiction to inspect the decks of the M/V
DISCOVERER ENTERPRISE, an “inspected vessel” and subject to
inspection by the United States Coast Guard. The cases Transocean
relies upon hold that OSHA regulations do not apply to permit OSHA
to inspect vessels to evaluate working conditions of seamen on
those vessels. However, those cases are distinguishable from
today’s case because here OSHA was inspecting the workplace of
shipyard workers as authorized by statute and its regulations. We
therefore affirm the judgment of the district court.
I.
On February 23, 1999, OSHA inspectors appeared at the shipyard
of Ingalls in Pascagoula, Mississippi to inspect the work areas of
Ingalls’ employees. Shipyard employees engaged in ship repair and
renovation work typically perform their work aboard vessels owned
by parties other than their employer. The OSHA inspectors planned
to inspect the workplace of the Ingalls ship repair personnel
aboard vessels in the Ingalls’ drydock. On March 9, 1999, when the
inspectors began to inspect the area where the M/V DISCOVERER
ENTERPRISE was in dry dock, the vessel’s owner, Transocean, refused
to authorize OSHA personnel to board its vessel.
In April 1999, the district court granted the Secretary of the
Department of Labor’s (the Secretary) application for an

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Administrative Inspection Warrant to inspect the vessel.
Transocean moved to quash the warrant arguing that OSHA had no
jurisdiction over the vessel. The district court denied the Motion
to Quash. On April 30, 1999, OSHA inspectors sought to execute the
warrant which directed them to inspect Ingalls’ workplace aboard
the M/V DISCOVERER ENTERPRISE and Transocean refused to honor the
warrant.
Over a year later the district court issued an order finding
Transocean in civil contempt and directed the Secretary to submit
documentation supporting an award of attorneys fees and costs.
Before that award was rendered, Transocean filed a Notice of Appeal
from the Order of Civil Contempt. This court remanded the case to
the district court to determine sanctions and attorneys fees. On
remand the district court determined that the Secretary’s
affidavits supported the requested award of $2,339.74 for costs and
fees and it rendered judgment in that amount. Pursuant to our
remand order, the record from the district court was transmitted to
this court for review.
II.
The only significant issue in this appeal is whether OSHA had
jurisdiction to board the M/V DISCOVERER ENTERPRISE, as the warrant
dictated, to inspect the workplace of Ingalls’ employees.
Transocean relies on a number of cases from this circuit
holding that the Coast Guard has exclusive jurisdiction to regulate
the working conditions of seamen aboard vessels and OSHA has no

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jurisdiction to inspect or regulate those conditions. See Clary v.
Ocean Drilling and Exploration Co., 609 F.2d 1120 (5th Cir. 1980),
Donovan v. Texaco, Inc., 720 F.2d 825 (5th Cir. 1983); Mallard Bay
Drilling, Inc. v. Herman, 212 F.3d 898 (5th Cir. 2000), writ
granted, 121 S.Ct. 1075 (2001).
In Clary, the plaintiff seaman sued for injuries he received
aboard a drilling barge on which he was working. He alleged
violations of OSHA regulations in that a steel plate welded to the
deck was not color coded, as required by OSHA regulations. This
court affirmed the district court’s refusal to permit the plaintiff
to introduce the OSHA regulations into evidence because “OSHA
regulations do not apply to working conditions of seamen on vessel
in navigation.” 609 F.2d 1121. We reasoned that the Coast Guard
was a federal agency with authority over the working conditions of
seamen. Id. at 1122.
In Mallard Bay, Mallard appealed the order of OSHA affirming
a citation issued against it for violating OSHA regulations. The
violation arose out of an explosion which occurred aboard a
drilling barge while the crew was trying to regain control of the
well after a blowout. We vacated the citation and reversed.
Consistent with Clary, we held that OSHA regulations do not apply
to working conditions of seamen on a vessel in navigation and that
OSHA therefore had no jurisdiction to issue the citation against
the vessel owner. 211 F.3d at 900-01.

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After a careful review of the above cases we are satisfied
that they do not control today’s case. First, the warrant did not
direct OSHA to inspect the workplace of seamen; rather it directed
OSHA to inspect the workplace of shipyard employees aboard the M/V
DISCOVERER ENTERPRISE. Second, OSHA’s jurisdiction to adopt safety
regulations for ship building and ship repair employees is
uncontradicted. Congress expressly authorized such regulations,
See 33 U.S.C. § 941.
Third, we agree with the Fourth Circuit’s reasoning in
upholding OSHA’S authority to investigate working conditions of
ship repairmen on a vessel.
[W]here differing workforces occupy a single space at separate
times, and where each workforce is clearly regulated in its
“natural” environment by a separate regulatory body, OSHA’s
regulatory power is not displaced as to the workers who
otherwise fall within its ambit. Thus, as Taylor indicates,
it is not inconsistent to find that Coast Guard regulations
govern seamen in the course of their duties on ship while also
finding that OSHA regulations control standards relating to
the working environments of longshoremen while they are
engaged in their assigned duties within the body of the ship.
Reich v. Muth, 34 F.3d 240, 244 (4th Cir. 1994).
Transocean also argues that because its own equipment aboard
the vessel - along with Ingalls’ equipment - was subject to
inspection, it was justified in dishonoring the warrant because of
its concern that OSHA would use the inspection to issue citations
to Transocean. We agree with the district court that individuals
cannot violate court orders because they are concerned about what

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an investigation may disclose. A warrant is valid if it is
supported by probable cause and it describes the area to be
searched with reasonable particularity. See Marshall v. Barlow’s,
Inc., 436 U.S. 307, 320-323(1978). Because OSHA had jurisdiction to
exert enforcement authority over the workplace of Ingalls’
employees, the merits of any charges that might be brought based on
the inspection are not proper subjects of litigation in a challenge
to the warrant. Marshall v. Burlington Northern, Inc., 595 F.2d
511, 513(9th Cir. 1979).
III.
We also reject Transocean’s argument that because it acted in
good faith in refusing to honor the subpoena so that it could avail
itself of judicial remedies, the district court erred in finding it
in civil contempt. Good faith is not a defense to civil contempt;
the question is whether the alleged contemnor complied with the
court’s order. Whitfield v. Pennington, 832 F.3d 909 (5th Cir.
1987). Transocean was obliged to obey the court’s order unless it
obtained a stay of that order. Transocean obtained no stay and had
no absolute right to a stay. Donovan v. Fall River Foundry Co.,
Inc., 696 F.2d 524 (7th Cir. 1982).
IV.
For the reasons stated above, the judgment of the district
court is affirmed.
AFFIRMED.

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