(dissenting).
1. Defendants are members of the Harbor Carriers Association. One of defendants’ principal witnesses, Bleakley, testified at the trial here that, in 1945, this Association argued to the War Labor Board that the services of “scow captains” include “not only physical labor” — lasting “an hour or two per day” — but “also various custodial duties such as those performed by watchmen in shoreside employment.” So what my colleagues now say (i. e., “Their employers did not regard-them as cargo watchmen”) was not a fact in 1945. But in 1951, six years later, at the trial of the instant case, the employers testified exactly to the contrary, without the slightest suggestion that the functions of these employees had changed in the interval; and it is on that later testimony the trial judge rested his findings on which my colleagues rely. It seems clear to me that the defendants’ description of the nature of plaintiffs’ custodial work varies conveniently as it suits defendants’ purpose. Consequently, I think no weight should be given to their testimony on that subject in this record, while much weight should be given to plaintiffs’ testimony, i. e., that their watching services were like those performed by shoreside watchmen. On that basis, I think we ought to hold the trial judge’s contrary finding to be “clearly erroneous.” Gindorff v. Prince, 2 Cir., 189 F.2d 897; see discussion of that case in N. L. R. B. v. Dinion Coil Co., 2 Cir., 201 F.2d 484 at page 490.
2. Admittedly, the word “seamen” has differing meanings in differing federal statutes. As my colleagues recognize, what the seamen exemption means in this particular Act must be determined by looking to the policy of that provision in the light of its legislative history: Congress wrote that provision into the Act at the request of various maritime unions. ,We pointed out in Anderson v. Manhattan Lighterage Corp., 2 Cir., 148 F.2d 971, 973 that, at the legislative hearings, these unions “naturally * * opposed the application to them of general legislation [i. e., the Fair Labor Standards Act] which permitted an employer to include in wages the cost of facilities furnished to his employees”,1 since by other statutes seamen “generally must be furnished food and quarters free of charge.” 2 As “scow captains” are not within those other statutes conferring those benefits on seamen, I think they were not intended to be covered by the seamen exemption in the F.L.S.A.
. We cited Joint Hearings Before Sen. Comm, on Education and Labor and House Comm, on Labor on S. 2475 and H.K. 7200, 75th Cong., 1st Sess., pp. 548-549.
. We cited 46 U.S.C.A. §§ 80, 564, 713.