The opinion of the court was delivered by: BONSAL
Plaintiffs have moved for a preliminary injunction in connection with an action brought against the defendant Grace Lines for a permanent injunction against violations by defendant of the provisions of § 41 of the Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C. § 941, et seq.) and the Safety and Health Regulations for Longshoring (29 C.F.R.) promulgated thereunder. Jurisdiction is based on 41(e) of the Act.
The motion for a preliminary injunction is limited to alleged violations by the defendant of § 9.43(e) of the Regulations, which provides as follows:
'The boom or pontoon left in place adjacent to a section through which cargo is being worked shall be lashed, locked or otherwise secured.'
On October 16, 1962 an accident occurred on one of defendant's vessels, the S.S. SANTA TERESA, causing the death of one longshoreman and injury to two others. At that time the Bureau of Labor Standards, U.S. Department of Labor, issued notice of violations of § 9.43(e). Thereafter, on January 28, 1963, an agreement was entered into between the Bureau and the defendant in which the defendant admitted the violations of § 9.43(e) on October 16 and consented to an entry of a cease and desist order by the Bureau, which order was duly made and filed on January 30, 1963.
The plaintiffs charge that since the aforesaid agreement the defendant has violated regulation 9.43(e) on three occasions, the first occurring on January 29, 1963 after the execution of the agreement and the day before the cease and desist order, and the second and third occurring on March 15, 1963.
A hearing was held on plaintiff's motion for a preliminary injunction on April 10, 12 and 16, 1963, in the course of which both sides presented witnesses and introduced exhibits.
Before treating the alleged violations, it is appropriate to consider the regulation which the Government contends has been violated by the defendant since the real dispute is the interpretation of that regulation.
The purpose of the regulation is quite clear and is dramatically demonstrated by the accident which occurred on the Grace ship on October 16, 1962. If booms or pontoons are left in place in a working area without being lashed, locked or otherwise secured, the danger exists that during the cargo operations, due either to the action of the boom and its hook or to the carelessness of some longshoreman, they may become displaced and fall into the area where men are working.
The language of the regulation is also clear. 'Adjacent to a section' means just what it says. If part of a hatch cover is taken off, the pontoons on either side of the opening are adjacent. A beam is similarly adjacent if it is the first beam on either side of the working area.
The words 'lashed, locked or otherwise secured' are equally clear. Secure means 'to make fast: tie down'. Webster's Third New International Dictionary, p. 2053 (1961). As this is a safety regulation, it quite properly establishes an objective standard, leaving no room for interpretation which might vary depending on the nature of the cargo operations being carried on or the skill or expertise of those in charge. It is designed to protect longshoremen from accidents, including those caused by faulty human judgment.
The standard being objective, must also be absolute, applying with like force to all stevedores, both great and small, and regardless of their safety records or their solicitude for their employees.
Turning to the alleged violations:
Alleged violation of January 29, 1963.
On January 29, 1963 a senior maritime safety consultant, during an official inspection visit on defendant's vessel SANTA TERESA, issued Notice of Violation, No. 1872, charging a violation of § 9.43(e). Service of the Notice was acknowledged by the Grace Line official in charge of cargo operations on Pier 58, North River. The description of the violation was that 'the beam in place adjacent to section through which cargo was being discharged was not lock (sic), lashed or otherwise secured, #2 hatch tween deck'. There seems no dispute that this reefer beam was not locked, lashed or otherwise secured at the time of the cargo operations. The witnesses for the defendant testified that the reefer beam was large, weighing approximately 2700 lbs., and that it was fitted into sockets on the sides of the coaming. Because of this, the defendant contends the reefer beam was secured. In addition, defendant advances certain subjective arguments, such as a longshoreman would not have worked underneath the beam if he thought ...