Archived - Decision: 95-016 CANADA LABOUR CODE PART II OCCUPATIONAL SAFETY AND HEALTH

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Review under section 146 of the Canada Labour Code, Part II,

of a direction issued by a safety officer

Decision No.95-016

Applicant: E. Skowronek

Manager - Health & Safety

British Columbia Maritime Employers Association

Vancouver, B.C.

Respondent: Ron Jackson

Safety Coordinator

Local 508

International Longshoremen's & Warehousemen's Union

Mis en cause: John Haswell, Safety Officer, and

Geoffrey S. Vale, Safety Officer (now retired)

Canadian Coast Guard

Nanaimo, B. C.

Before: Bertrand Southière

Regional Safety Officer

Human Resources Development Canada

A hearing was held in Nanaimo on August 9, 1995. In attendance were:

- John Haswell, Ship safety, Canadian Coast Guard Safety Officer

- Jack McCarthy, Ship safety, Canadian Coast Guard

- Graham Constable, Ship safety, Canadian Coast Guard

- Geoff Vale, Argus Marine Surveyors

- Eric Skowronek, British Columbia Maritime Employers Association

- Dianne Richards, British Columbia Maritime Employers Association

- Stephen Cutler, Saga Forest Carriers

- Gerry Lutz, Westcan Terminals Ltd. & Westcan Stevedoring Ltd.

- Mike G. Fothergill, Empire International Stevedores Ltd.

- Alan Russell, Local 508

- Wayne Sargent, Safety Co-ordinator International Longshoremen's & Warehousemen's Union

- Ron Jackson, Local Safety Rep., Local 508

- Ken Arson, Canadian Stevedoring Co. Ltd.

Background

On April 10, 1995, there was a refusal to work aboard the M. V. Saga

Spray at Nanaimo "C" Berth. As a result, Safety Officer G. Vale of the

Steamship Inspection Office, Canadian Coast Guard, issued a direction

upholding the refusal to work. The following day, April 11, 1995, his

supervisor, F. M. Bullen rescinded the direction at the request of the

employer. On April 25, 1995, Ron Jackson, Safety Co-ordinator, Local

508, requested that F. M. Bullen's decision be reviewed. A preliminary

decision, No. 95-007 (appendix 1), was issued May 23, 1995.

A conclusion of this preliminary decision was that the original

direction from G. Vale as well as the appeal by the employer were still

valid. However, in the meantime, Mr. Vale retired from the Canadian

Coast Guard and it was thought that he would be unavailable to explain

the reasons motivating his decision. Accordingly, it was decided to

issue an essentially identical direction to a similar ship, the M. V.

Saga Crest, which direction was issued by Safety Officer John Haswell,

certificate #2652, on June 28, 1992. This direction, essentially

similar to the direction issued by G. Vale to the Saga Spray, reads as

follows:

0930 HRS

No. 045WEDNESDAY JUNE 28, 1995

AT NANAIMO "B" BERTH

TO: MASTER/OWNERS "SAGA CREST" VOY(?)9

IT WAS NOTED THAT THE EMERGENCY STOP "COWCATCHER" NOS 1 & 2 GANTRY CRANES, WHEN OPERATED, ONLY STOPS THE CRANE WHILE THE EMERGENCY STOPIS ACTUATED. THIS IS TO BE CHANGED "PRIOR TO THE VESSEL RETURNING TO CANADA" SO THAT WHEN THE EMERGENCY STOP IS ACTUATED THE CRANE REMAINS STOPPED (I.E. IS RESET FROM THE CONTROL CAB). THE REFUSAL TO WORK IS UPHELD.

(signed) JOHN HASWELL

Tackle inspector

This direction was appealed on July 5, 1995, by the British Columbia

Maritime Employers Association on behalf of the employer, Westcan

Stevedoring Limited and the ship's representatives, Saga Forest

Carriers International (Canada) Inc.

Additional information

The two vessels in question are bulk carriers; as a matter of interest,

the Saga Crest measures close to 200 metres in length and has a summer

displacement of about 57,000 metric tonnes; she was launched in

December 1993. Each of these vessels is fitted with two 40 Long Ton

SWL gantry cranes which are used for loading and unloading the ship.

Rails installed along each side of the deck of the ships allow the

gantry cranes to move over the length of the ship. The space between

the gantry legs and the guardrails installed alongside the edges of the

ship's deck is very limited on most ships. In fact, from the pictures

in my possession, there is not enough room at this point on the Saga

Spray to allow a man to pass in between. However, on the inboard side

of the gantry legs, between the leg and the hatchway coaming, there

appears to be enough space either for a man to go in between the leg

and the hatchway or for the crane to go by a man standing alongside the

hatchway.

The existing Tackle Regulations issued under the Canada Shipping Act do

not contain any provision dealing specifically with this matter.

However, a draft document, issued a few years ago as a proposal for a

regulation, contained a provision, at section 6.39, which addressed

this issue. This section reads as follows:

"6.39 Operation of lifting appliances where the operator has a

significantly restricted field of vision shall be in accordance with

a procedure which will minimize the risk to persons in the blind

sectors and the equipment shall include:

(a) a stop button and an extended flexible warning touch element

at the deck level of each trunk or leg of the lifting appliance;

and

(b) a self-contained portable radio or a non-voice signalling

device between the deck foreman and the operator of the lifting

appliance."

In simple terms, this requires that there be an emergency stop switch

on each leg of the gantry and also, an "extended flexible warning touch

element" which, on many vessels, consists of a length of wire attached

to the front of each leg of the gantry, for the purpose of forewarning

a person of crane proximity by contact with this wire.

The two vessels in question, in lieu of the "extended flexible warning

touch element", feature instead a "cowcatcher": this is a small gate

fitted at the front of each leg of the gantry cranes. This gate,

installed at deck level, is about the same width as the gantry leg and,

from the pictures, appears to be about two feet high. The gate is

hinged at the top and is linked to a limit switch in a manner such

that, if there is an obstacle in the way, the gate will swing

backwards, actuating the switch, which in turn interrupts power to the

crane translation motors. This is a temporary interrupt in the sense

that, when the gate is released, power is restored and, if the operator

is still actuating the control, the crane will resume its motion. By

contrast, the emergency stop, which on these ships is a pull cord

stretched between the gantry legs, shuts down the power to the motors

by tripping the breaker; restoring power requires resetting the breaker

which is located outside of the operator's control station.

The refusals to work, the first one occurring on April 10, 1995, on

board the M.V. Saga Spray, the second one occurring June 28, 1995, on

board the M.V. Saga Crest, are based on the employees' contention that,

because the interruption caused when the"cowcatcher" hits an obstacle

is momentary, there is a danger that someone could be hurt because the

crane can restart without the operator verifying the cause of the

interruption. The employees want the "cowcatcher" interrupt wired in

such a way that, if it is deflected by an obstacle, it will trip the

breaker. This will force the operator to get out of his position to

find the cause of the interruption and to reset the breaker.

Submission by the employer

The employer submits that the Canada Occupational Safety and Health

Regulations do not apply aboard a ship. Furthermore, the Marine

Occupational Safety and Health Regulations do not apply to vessels, but

only to employees. The applicable regulations are the Tackle

Regulations promulgated under the Canada Shipping Act and the two

vessels more than meet the applicable requirements. The vessels do

have emergency stops for the gantry cranes and the "cowcatchers" in

question are supplementary safety systems intended as substitutes to

the "extended flexible warning touch elements" referred to in section

6.39 of the draft Tackle Regulations.

The employer also argues that the situation does not constitute a

danger as defined in the Canada Labour Code. Consequently, there is no

ground to support the refusal to work.

Submission by the employees

The argument presented by the employees is essentially that, if a

person was to fall in front of a moving crane, the crane would stop

when it touches him. If he is moved aside, then the crane could resume

its travel and go over him, likely causing injury. If the "cowcatcher"

is rigged as an emergency stop, then the crane operator will have to

leave his station and investigate the cause of the shutdown before

resetting the breaker. This would eliminate the risk described above.

Decision

As noted in the employer's submission, the Canada Occupational Safety

and Health Regulations do not apply aboard a ship. The Marine

Occupational Safety and Health Regulations do apply to employees

employed in the loading and unloading of ships (see subsection 1.3(c)

of the Marine Occupational Safety and Health Regulations), but, there

are no provisions applicable in the instant case. Questions related to

materials handling equipment on board ships have always been considered

as coming under the Tackle Regulations.

However, the Canada Labour Code does apply to employees working aboard

ships and they do have the right to refuse dangerous work. In so far

as my authority stems from the Canada Labour Code, I can make a

decision on the issue of the refusal to work; I have no authority to

interpret the Tackle Regulations. The only issue I can review then as

Regional Safety Officer is this: did the safety officers make a correct

decision in accepting the refusal to work?

I have reviewed the employees' argument to the effect that a person

could fall infront of a moving crane, then, after the crane has stopped

because the cowcatcher has detected the obstacle, he could roll away,

allowing the crane to continue its trave. This assumes that the

operator is still holding the crane travel control, in which case the

person could get run over. I cannot accept this argument: if the person

rolls ahead of the crane, as soon as the crane starts moving again, the

cowcatcher will again engage with the obstacle and again stop the

crane; if the person rolls by the side enough to be out of reach of the

cowcatcher, then the crane will travel either by him or over him,

because the cowcatcher's gate is very low, about the same width as the

gantry's leg and basically sweeps the full path of the gantry.

An argument was also made that when the crane stops, especially when it

has just restarted, it is liable to hesitate or shudder somewhat as it

stops. However, when I asked if this was the case with these particular

vessels, I was answered in the negative. The definition of "danger"

contained in the Code is quite specific:

"danger" means any hazard or condition that could reasonably be

expected to cause injury or illness to a person exposed thereto

before the hazard or condition can be corrected.

I do not believer the situation on these two ships constitute a danger

as defined in the Code. I understand that there might be other similar

vessels where conditions might be such as to be qualified of

"dangerous" as envisioned by the Code, but it is not the case

presently.

Accordingly, I HEREBY RESCIND the directions issued by Geoffrey Vale

to M/V Saga Spray on April 10, 1995 and by John Haswell to M/V Saga

Crest on June 28, 1995.

Decision given onNovember 27, 1995.

Bertrand Southière

Regional Safety Officer

SUMMARY OF REGIONAL SAFETY OFFICER DECISION

Note: To be read in conjunction with Decision # 95-007(p)

Decision No.: 95-016

Applicant: British Columbia Maritime Employers Association

represented by E. Skowronek, Manager, Health & Safety

KEYWORDS:

Gantry cranes; emergency stops; extended flexible warning touch

element; tackle inspectors; Tackle Regulations.

PROVISIONS:

Code: 128(1)

SUMMARY:

Further to a refusal to work on board the M.V. Saga Spray, in Nanaimo

harbour, the safety officer upheld the refusal to work and issued a

direction to the employer ordering him to modify the two gantry cranes

on board the ship. These gantry cranes move along the length of the

ship on rails set on each side of the deck and feature, at the front of

each leg of the gantry, an obstacle detector. These detectors consist

of a gate at deck level suspended on the front of each leg. If the

gate encounters an obstacle, it swings back, actuating a switch which

cuts the power to the translation motors. If the obstacle is removed,

the crane can resume its movement immediately if the operator is still

inputting the command. The direction required that this obstacle

detector operates similarly to an emergency switch whereby, if an

obstacle was detected, the main breaker would be tripped, requiring the

operator to go to the control cab to reset the breaker. These gantry

cranes also feature separate emergency switches.

A second direction, essentially identical to the first one, was issued

to the M.V. Saga Crest, a sistership of the Saga Spray, in June 1995.

The reason for this was that the safety officer who had issued the

first direction had retired and it was thought that he would not be

available to explain his decision.

The RSO rescinded the directions because it could not be demonstrated

that there was a danger due to the fact that the crane would remain

stopped only as long as there was an obstacle in front of it.

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