McLaughlin v. Boston Harbor Cruise Lines, Inc.

United States Court of Appeals
For the First Circuit

No. 04-1519

MEGAN McLAUGHLIN,

Plaintiff, Appellant,

v.

BOSTON HARBOR CRUISE LINES, INC.;
MODERN CONTINENTAL CONSTRUCTION CO., INC.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Lynch, Lipez, and Howard, Circuit Judges.

Vincent P. Dunn, with whom Elizabeth B. Crouch and Dunn and
Dunn were on brief, for appellant.
Richard D. Wayne, with whom Brien E. Lewis and Hinckley, Allen
& Snyder LLP were on brief, for appellees.
Carol B. Feinberg, with whom Howard M. Radzely, Solicitor,
Steven J. Mandel, Associate Solicitor, and Paul L. Frieden, Counsel
for Appellate Litigation, were on brief, for U.S. Department of
Labor, amicus curiae.
Stephen E. Bers, with whom Whiteford, Taylor & Preston, LLP
was on brief, for National Association of Passenger Vessel Owners,
Inc., amicus curiae.

August 17, 2005
 LYNCH, Circuit Judge. The ultimate issue in this case

revolves around the exemption for "any employee employed as a

seaman" from the overtime requirements of the Fair Labor Standards

Act of 1938 ("FLSA"). 29 U.S.C. § 213(b)(6). The plaintiff, Megan

McLaughlin, worked on a Boston-based commuter ferry owned and

operated by her employer, Boston Harbor Cruise Lines, Inc ("Boston

Harbor").1 She sued, alleging that Boston Harbor was not paying

her overtime pay that was due to her under the FLSA, 29 U.S.C.

§ 207, as well as similar Massachusetts law.

In response, Boston Harbor filed a motion to dismiss for

failure to state a claim under Fed. R. Civ. P. 12(b)(6), noting

that any employee employed as a "seaman" was exempt from the

overtime requirements under the FLSA, and alleging that, based on

McLaughlin's complaint, she could prove no set of facts that would

take her outside of this exemption. The district court agreed with

Boston Harbor and dismissed the case. Because the applicability of

the "seaman" exemption to an individual like McLaughlin is a fact-

dependent issue that is best decided after a full factual record

has been compiled, it was error to dismiss this case at the

12(b)(6) stage. We reverse, vacate the dismissal, and remand for

further proceedings.

1
The role played by the other defendant in this case, Modern
Continental Construction Co., is unclear. Throughout the opinion,
we refer to both defendants simply as "Boston Harbor."

-2-
 I.

Complaint and Procedural History

Since this case was decided on a 12(b)(6) motion to

dismiss, and no discovery has occurred, we recite the allegations

as they appear in McLaughlin's complaint.

In her complaint filed May 14, 2003,2 McLaughlin alleges

that she was employed by Boston Harbor from June 1997 through

December 2002, working on one of its commuter boats for

approximately 80 hours per week in the summer and approximately 60

hours per week in the winter. She was paid an hourly wage of

between $8 per hour and $11.50 per hour and, she alleges, was not

paid overtime for her hours in excess of 40 per week.

McLaughlin's allegations about the nature of her

employment on the commuter ferry are quite sparse, occupying only

a few sentences. She alleges that her "duties" throughout her

employment were those of a "deckhand." "For example, she took

passenger's tickets, loaded and unloaded passengers, collected

fares, stood by at the dock to ensure safe exiting of passengers

and swept the boat and dock areas." She further alleges that

"[f]or more than 90% of her average work day, she engaged in

2
The complaint was filed "on behalf of herself and all others
similarly situated." It is unclear from the complaint and
accompanying documents whether McLaughlin sought to bring a class
action or instead a collective action under the FLSA. See 29
U.S.C. § 216(b). We have no occasion to address these procedural
issues.

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activities not related to the navigation" of the commuter ferry.

She added that she was not "actively engaged in the operation or

navigation of the commuter vessels upon which she worked" and that

"[s]he did not operate the vessels, chart courses, monitor radar or

perform any other duties related to the navigation of the subject

commuter vessels."

After Boston Harbor filed its motion to dismiss and

accompanying memorandum of law, the district court scheduled a

hearing for March 11, 2004. However, no such hearing was ever

held; on the day that was scheduled for the hearing, the district

court granted Boston Harbor's motion to dismiss "substantially for

the reasons advanced in the defendants' papers." No written

opinion was issued.

McLaughlin filed a timely appeal. On appeal, two

entities, the Secretary of Labor and the National Association of

Passenger Vessel Owners, Inc. (an industry trade association), have

filed amicus briefs with us. The district court did not have the

benefit of these amici.

Arguments on Appeal

On appeal, McLaughlin relies heavily on her view of the

interpretative regulations issued by the Department of Labor, see

29 C.F.R. pt. 783. McLaughlin points out that the regulations

state that it is the "character of the work" performed, and not

"what it is called or the place where it is performed," that

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determines whether someone is "employed as a seaman" -- thus, the

fact that she works on a boat is not determinative. 29 C.F.R. §

783.33. Further, McLaughlin emphasizes the Labor Department's

formulation that an employee will be regarded as a "seaman" for

purposes of the exemption only if she performs "service which is

rendered primarily as an aid in the operation of such vessel as a

means of transportation, provided [s]he performs no substantial

work of a different character." 29 C.F.R. § 783.31. McLaughlin

argues that because most of her work involved taking tickets,

loading and unloading passengers, and cleaning the boat, she does

not meet this test. Finally, McLaughlin states that the

legislative history of the FLSA makes it clear that the exemption

should be interpreted narrowly and differently from other acts like

the Jones Act, see 46 U.S.C. App. § 688(a), so as not to exclude

too many workers from FLSA protections. Although McLaughlin argues

as though she is entitled to judgment in her favor, she also argues

that dismissal was wrong because she is entitled to discover

additional facts.

The Secretary of Labor, in her amicus brief in support of

McLaughlin, argues essentially that McLaughlin's proposed

interpretation and application of the Department of Labor

regulations dealing with the "seaman" exemption is correct,

reflects the Secretary's own "longstanding interpretation" of these

regulations, and should be adopted by the court.

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 Boston Harbor also relies heavily on the Department of

Labor regulations, but it interprets them differently. In its

view, the regulations classify workers into three groups: (1)

"water transportation workers, e.g. members of the crew," (2)

employees, such as concessionaires, who do not report to the master

of the ship, and (3) "industrial employees." See 29 C.F.R. §§

783.32, 783.33, 783.34. Boston Harbor believes that the first

group falls under the exemption, while the second and third do not.

It views all of McLaughlin's duties as falling into the first

group. The Secretary's contrary interpretation of the regulations

articulated in her amicus brief, Boston Harbor argues, is entitled

to no deference because it is inconsistent with the Secretary's

past interpretations and has been asserted for the first time in a

litigation context. Boston Harbor also argues that the ordinary

meaning of the term "seaman" would include any "water

transportation workers," including someone like McLaughlin, and

that the legislative history makes it clear that Congress intended

to give the term its ordinary meaning. Finally, Boston Harbor

argues that the definition of the term "seaman" within the FLSA

should not be overly narrow, and should generally match the

definition given in other statutes, so that "seamen" receive both

the special employment benefits and special burdens associated with

their profession. Cf. Harkins v. Riverboat Servs., Inc., 385 F.3d

1099, 1103 (7th Cir. 2004) (applying rebuttable presumption that

-6-
someone classified as "seaman" for purposes of other employment

statutes should be recognized as a "seaman" under FLSA as well).

In its amicus brief in support of Boston Harbor, the

National Association of Passenger Vessel Owners, Inc. attacks some

of the Department of Labor's regulations themselves (most notably

the 20 percent rule in 29 C.F.R. § 783.37), as well as the

interpretation of those regulations proposed in the Secretary's

amicus brief. It asserts that the analysis called for by the

regulations, especially as interpreted by the Secretary, is

unworkable in light of ordinary industry practices because it

requires fine-grained assessments of the various tasks an employee

performs as well as how much time she devotes to each of her tasks.

See, e.g., Harkins, 385 F.3d at 1104. The Association concedes

that the regulations themselves (as opposed to the Secretary's

interpretation of them in the amicus brief) deserve some deference,

but it nonetheless argues in favor of affirmance.

II.

We review a motion to dismiss on 12(b)(6) grounds de

novo. See, e.g., Zimmerman v. Cambridge Credit Counseling Corp.,

409 F.3d 473, 475 (1st Cir. 2005). The standard for granting a

motion to dismiss is an exacting one: "a complaint should not be

dismissed for failure to state a claim unless it appears beyond

doubt that the plaintiff can prove no set of facts in support of

[her] claim which would entitle [her] to relief." Conley v.

-7-
Gibson, 355 U.S. 41, 46 (1957). As well, we must assume that all

well-pleaded allegations in McLaughlin's complaint are true, and we

must indulge all reasonable inferences from these allegations in

her favor. See, e.g., Centro Medico del Turabo, Inc. v. Feliciano

de Melecio, 406 F.3d 1, 5 (1st Cir. 2005).

FLSA Claim

Because the FLSA itself contains no definition of a

"seaman," the Department of Labor regulations play a role. At the

outset, we distinguish the regulations themselves from the

Secretary's interpretation of those regulations in the amicus brief

filed with this case.

There is no dispute in this case about the level of

deference owed to the regulations themselves. All parties agree

that some deference is owed the regulations. The Secretary of

Labor herself calls for application of deference under Skidmore v.

Swift & Co., 323 U.S. 134 (1944), and no more deference than that.

No one involved in this case, including the Secretary, is calling

for application of the higher, more formal type of deference

explained in Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984).

As for the Secretary's interpretation of the regulations

in her amicus brief, Boston Harbor argues that the Secretary's

interpretation is entitled to no weight at all because it was

formulated for the first time during litigation and is inconsistent

-8-
with the agency's own prior approach. See, e.g., Bowen v.

Georgetown Univ. Hosp., 488 U.S. 204, 212-13 (1988) ("Deference to

what appears to be nothing more than an agency's convenient

litigating position would be entirely inappropriate."); Alliance to

Protect Nantucket Sound, Inc. v. United States Dep't of the Army,

398 F.3d 105, 112 n.5 (1st Cir. 2005) ("[D]eference is not due to

interpretations that are post hoc rationalizations offered by an

agency seeking to defend past agency action against attack . . .,

or to interpretations that have varied erratically over time."

(internal quotation marks and citations omitted)). We do not now

know whether the Secretary's interpretation is novel or instead

consistent with the agency's long-standing practice. Since, as we

explain below, interpretation of the regulations themselves is

premature at this stage, it is likewise premature for us to discuss

the consistency of the Secretary's interpretation with past

practice.

Both parties, as well as the Secretary, rely heavily on

the regulations: the crux of their dispute is about how the

regulations should be interpreted.3 The parties also have

3
It is true that one of the amici, the National Association of
Passenger Vessel Owners, Inc., challenges some of the Department of
Labor's regulations based on their unworkability in light of
industry practice. The Association's concerns about the
workability of the scheme established by some of the regulations
are fact-intensive issues that, like the other questions in this
case, are best dealt with after a full record has been established.
Many of the challenges may prove unnecessary, depending on how the
factual record develops during discovery, and all of the challenges

-9-
subsidiary disputes, described above, about the meaning of the

legislative history and the relationship between the use of the

term "seaman" in the FLSA and the use of that term in other

statutes, such as the Jones Act. In the briefs, the parties and

amici appear to treat this case as though the core issues involved

can and ought to be resolved at this 12(b)(6) stage; the district

court also fell into this trap.

Any interpretation of the FLSA or its regulations, at

this stage of the proceedings, would be error because it would be

premature. We need not and do not engage in any such

interpretation. In particular, we decline the Secretary's

invitation for us to adopt her preferred interpretation of the

regulations now, before any factual context has been developed.

The statute, the regulations, and the case law, by

contrast, outline an approach that is quite fact-intensive. The

test according to the regulations "depends upon the character of

the work [an employee] actually performs," and specifically upon

whether that employee performs service "as master or subject to the

authority, direction, and control of the master aboard a vessel,

service which is rendered primarily as an aid in the operation of

such vessel as a means of transportation." 29 C.F.R. §§ 783.31,

require information about the nature of the industry and the
application of the Secretary's test that we do not yet have. These
challenges may, of course, be raised and explored below on remand.

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783.33. In applying this test, the regulations make distinctions

that are factually intricate: they state, for example, that

surgeons and cooks onboard ships will generally fall within the

exemption, but stevedores or roust-abouts whose principal duties

require them to load or unload the vessel in port will not fall

under it. See id. §§ 783.32, 783.33. The test becomes especially

complicated by the fact that many maritime-industry employees --

like McLaughlin -- perform multiple tasks during the course of the

day. In such cases, the regulations state that the exemption will

not apply if a "substantial amount of work of a different

character" is performed by the employee at issue, 29 C.F.R. §

783.31; "substantial" is defined under the regulations as "more

than 20 percent of the time worked by the employee during the

workweek," 29 C.F.R. § 783.37.

The Supreme Court, in a Jones Act case, has recently

stated that the inquiry into whether someone is a "seaman" is bound

to be a fact-intensive one: "The inquiry into seaman status is of

necessity fact specific; it will depend on the nature of the vessel

and the employee's precise relation to it." McDermott Int'l, Inc.

v. Wilander, 498 U.S. 337, 356 (1991). The Court has suggested

that the "seaman" exemption under the FLSA is no exception to the

rule that the definition of "seaman" is fact intensive. See Icicle

Seafoods, Inc. v. Worthington, 475 U.S. 709, 713-14 (1986). We

made a similar observation in our only case to apply the FLSA's

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"seaman" exemption. See Walling v. Bay State Dredging &

Contracting Co., 149 F.3d 346, 351 (1st Cir. 1945) ("The line of

demarcation between seamen and non-seamen is not distinctly drawn,

and probably cannot be. It depends a good deal upon the facts in

each case, especially upon the character of the work that is

principally engaged in.").

Finally, other circuits, whether heavily guided by the

Department of Labor regulations or not, have also taken an approach

that often turns heavily on factual distinctions about the sort of

work the plaintiff is performing. In Harkins, a case decided at

trial which involved employees who worked on a gambling riverboat

in Chicago, the court noted that application of the exemption was

not subject to any obvious per se rules but rather depended

crucially on the kinds of duties that the employees performed:

A blackjack dealer does not become a seaman by
virtue of leaving his job at Harrah's land-
based casino and taking a job at Harrah's
riverboat casino, but likewise a helmsman does
not cease to be a seaman because he transfers
to a casino boat that spends most of its time
moored. It was for the jury to decide whether
the three plaintiffs whose overtime claims
survived to trial were more like the helmsman
than like the blackjack dealer.

385 F.3d at 1104; see also Owens v. Seariver Mar., Inc., 272 F.3d

698, 701-04 (5th Cir. 2001); Martin v. Bedell, 955 F.2d 1029, 1036

(5th Cir. 1992); Worthington v. Icicle Seafoods, Inc., 796 F.2d

337, 338 (9th Cir. 1986); Knudsen v. Lee & Simmons, Inc., 163 F.2d

95, 95-96 (2d Cir. 1947).

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 Unsurprisingly, then, courts have generally decided the

issue of whether a given individual falls within the exemption

after trial, see, e.g., Icicle Seafoods, 475 U.S. at 710; Harkins,

385 F.3d at 1101; Martin, 955 F.2d at 1031, Knudsen, 163 F.2d at

95, or on summary judgment, see, e.g., Owens, 272 F.3d at 700, but

not on a Rule 12(b)(6) motion. None of the cases that Boston

Harbor places weight upon, so far as we can ascertain, were decided

by a 12(b)(6) motion before the factual record had even been

established. See Harkins, 385 F.3d at 1101; Walling v. Keansburg

Steamboat Co., 162 F.2d 405, 406-08 (3d Cir. 1947); Weaver v.

Pittsburgh S.S. Co., 153 F.2d 597, 598-99 (6th Cir. 1946); Bay

State Dredging, 149 F.2d at 347-48 (district court decided on

stipulated facts); Helena Glendale Ferry Co. v. Walling, 132 F.2d

616, 618 (8th Cir. 1942).

Because the legal question presented in this case is so

fact-intensive, and because the application of the exemption and

regulations to plaintiff's job cannot be determined from the

several sentences of bare bones pleadings, we must remand the case

for further fact-finding. See, e.g., Cavalier Tel., LLC v. Verizon

Va., Inc., 330 F.3d 176, 192 (4th Cir. 2003) ("necessarily fact-

bound" questions are normally not decided by a motion to dismiss);

Krodel v. Young, 748 F.2d 701, 712 (D.C. Cir. 1984) (same). Of

course, even in this fact-specific area, dismissal under 12(b)(6)

may sometimes be appropriate, but only where it is crystal clear

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under established law that the plaintiff is a "seaman" under the

FLSA. That is not this case, and the district court erred in

dismissing this case at the 12(b)(6) stage. Not only is there no

need to go further, but it would be unwise to do so.4

Massachusetts State Law Claim

The Massachusetts state overtime statute, Mass. Gen. Laws

ch. 151, § 1A, contains an exemption for "any employee who is

employed as a seaman," thus using essentially identical language

as the FLSA. Id. § 1A(10). There are no cases construing the

Massachusetts exemption. The parties agree in their briefs,

though, that a key factor is interpreting the Massachusetts statute

is the interpretation of analogous federal law. See Goodrow v.

Lane Bryant, Inc., 732 N.E.2d 289, 294 (Mass. 2000).5

Interpretation of the Massachusetts "seaman" exemption may depend

heavily on interpretation of the FLSA's "seaman" exemption. Since,

as we have explained, interpretation of the FLSA is premature, the

4
We do not suggest that it would be inappropriate to dispose
of this or any other case at summary judgment if the summary
judgment standards are met. We also note that the district court
was not given the benefit of the views expressed, for the first
time on appeal, by the two amici. The district court may wish to
consider those views on remand.
5
Boston Harbor also points out that, according to Goodrow,
where a statute does not effectively define a term, that term
should be defined in accordance with the common meaning of the word
and in light of the historical circumstances of its enactment. See
732 N.E.2d at 294. We have found no relevant legislative history,
and we think it premature to interpret the common meaning of the
term "seaman" or to apply it before a factual record has been
developed.

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district court's dismissal of the Massachusetts state law claim

must likewise be vacated, and the claim must be remanded for

further consideration.

III.

The district court order dismissing McLaughlin's

complaint is reversed, the judgment is vacated, and the case is

remanded for further proceedings consistent with this opinion.

Costs are awarded to McLaughlin.

(concurrence follows)

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 LIPEZ, Circuit Judge, concurring. I agree with the

majority that more factual development is needed before the merits

of McLaughlin's claim can be adjudicated. The district court erred

in concluding otherwise. However, the district court granted the

motion to dismiss in response to specific arguments made by Boston

Harbor. Indeed, it said that it was granting the motion

“substantially for the reasons advanced in the defendants’ papers.”

I wish to explain why, in my view, those specific reasons did not

justify the district court’s ruling.

I.

Boston Harbor made three arguments in the district court

in support of its motion to dismiss. First, citing Walling v. Bay

State Dredging Co., 149 F.2d 346 (1st Cir. 1945), Boston Harbor

argued that the FLSA’s legislative history showed that the term

"seaman" referred "solely to water transportation workers."1 In

Boston Harbor’s view, McLaughlin's duties as a so-called "deckhand"

1
Bay State Dredging was decided on stipulated facts. The
plaintiffs worked on a hydraulic dredge, a floating platform
equipped with a pump that can suck mud from a river bottom and
propel it to shore through a pipeline. The personnel included "a
captain, one operator, one mate, four deck-hands, one oiler, one
fireman, a cook, a mess-boy and a watchman." 149 F.2d at 348. The
captain "usually has some knowledge of navigation." Id. The
dredge has some independent ability to move, although it may remain
in one place for several weeks when working. When working far from
Boston, the employees would live on board; when close to Boston,
many would go ashore every day to sleep. Based on these facts, the
court found that "[t]heir work was essentially connected with
excavation and not with navigation," id. at 349, they did not come
within the seaman exemption of the LFSA, and they were thus
entitled to overtime pay.

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on a commuter ferry make her a "water transportation worker" and

thus not entitled to overtime pay. Second, Boston Harbor cited

regulations issued by the Department of Labor on the scope and

meaning of the seaman exemption. See 29 C.F.R. pt. 783

("Application of the Fair Labor Standards Act to employees employed

as seamen"). Boston Harbor claimed that those regulations cited

case law excluding from overtime pay “all personnel employed by the

owner on board ferries." See Walling v. Keansburg Steamboat Co.,

162 F.2d 405 (3d Cir. 1947); Helena Glendale Ferry Co. v. Walling,

132 F.2d 616 (8th Cir. 1942). Boston Harbor noted, too, that the

regulations say that "Congress intended to exempt . . . only

workers performing water transportation services." 29 C.F.R. §

783.29(a). Third and finally, noting that it could not find any

reported cases in which deckhands on commuter ferries were entitled

to overtime pay under the FLSA, Boston Harbor interpreted that

absence of case law as proof that McLaughlin's claim was legally

unprecedented and baseless. On appeal, Boston Harbor essentially

renewed these arguments.

II.

As one can see from the summary of Boston Harbor’s

arguments, they draw heavily on the FLSA’s legislative history and

the Department of Labor’s regulations interpreting the scope and

meaning of the seaman exemption. Therefore, before addressing

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Boston Harbor’s specific arguments, I wish to discuss briefly that

legislative history and the Department’s regulations.

A. The Fair Labor Standards Act and the “seaman” exemption

An early draft of the bill that became the FLSA did not

exclude seamen from its overtime provisions. Bay State Dredging,

149 F.2d at 349. The chief proponents of the exclusion were seamen

themselves who asked Congress to be excluded--specifically, two

seamen's unions, the Sailors' Union of the Pacific and the National

Maritime Union. Professing themselves happy with the extensive

regulatory scheme already in place for seamen, the unions feared

unintended consequences of further Congressional tinkering.2 For

2
Particular reference was made to the Merchant Marine Act of
1936, Pub. L. No. 74-835, 49 Stat. 1985, which among other things
created the United States Maritime Commission. By passing the Act,
Congress intended to "foster the development and encourage the
maintenance" of a merchant marine able to serve the country's
commercial needs while also "capable of serving as a naval and
military auxiliary in time of war or national emergency." Title I,
§ 101. The Act did not say anything about overtime pay; the
Commission was "directed to investigate the employment and wage
conditions in ocean-going shipping" and then develop "minimum-
manning scales and minimum-wage scales and reasonable working
conditions" on board certain subsidized vessels. Title III, §
301(a). Those duties are assigned now to the Secretary of
Transportation. See 46 U.S.C. App. § 1131.
The Maritime Commission no longer exists. It was abolished
and its functions transferred to the Federal Maritime Board and the
Secretary of Commerce. See 15 Fed. Reg. 3178 (May 24, 1950).
Eleven years later, the Federal Maritime Board was abolished and
its functions transferred to what is now called the Federal
Maritime Commission, which still exists today. See 26 Fed. Reg.
7315 (Aug. 12, 1961). Its regulations appear at 46 C.F.R. pts.
500-599.

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example, the representative of the Sailors' Union of the Pacific

testified:

Our union does not like to see any further or additional
legislation enacted to cover a group of workers already
so well covered, which might tend to create some
confusion in labor relations, which are now on the road
to practical and successful operation. Therefore, I ask
on behalf of the Sailors' Union of the Pacific, that the
bill be so written as to exclude the seamen from the
operation of the provisions of the bill.

Joint hearings on S. 2475 and H.R. 7200 before the Sen. Comm. on

Educ. and Labor and House Comm. on Labor, 75th Cong. 545 (quoted in

Bay State Dredging, 149 F.2d at 349). Similarly, the National

Maritime Union's representative explained his understanding

that the way has been left open for the proposed Labor
Standards Board [created by the FLSA] to have
jurisdiction over those classes of workers who are
engaged in transportation. While this may not have an
unfavorable effect upon the workers engaged in
transportation by water, we feel that it may conflict
with the laws now in effect regarding the jurisdiction of
the government machinery now set up to handle those
problems.
. . . .
. . . . [W]e feel that for the present time that the
[U.S. Maritime Commission’s] jurisdiction should not be
hampered or impaired by any legislation that would be
conflicting.

Joint hearings on S. 2475 and H.R. 7200 before the Sen. Comm. on

Educ. and Labor and House Comm. on Labor, 75th Cong. 545 (quoted in

Bay State Dredging, 149 F.2d at 349).

This history suggests that Congress excluded seaman from

the FLSA's overtime protections not because of a substantive policy

judgment about the wisdom of paying them overtime, but primarily

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for procedural reasons--i.e., to avoid jurisdictional conflict.

“Seamen were exempted from operation of the Fair Labor Standards

Act of 1938 so as to avoid conflict of jurisdiction and confusion

of labor relations." Keansburg Steamboat Co., 162 F.2d at 408; see

also Weaver v. Pittsburgh Steamship Co., 153 F.2d 597, 599-600 (6th

Cir. 1946) ("On the floor of the Senate it was explained by Senator

Black3 that, with respect to exemptions, it had been the policy of

the Committee to write the bill so as not to conflict with the

regulations of hours and wages when given to other governmental

agencies . . . .").

Although the definition of "seaman" under the FLSA has

generated a number of court decisions over the years, all that

attention has not produced much in the way of clear rules.4 As we

observed in 1945: "The line of demarcation between seaman and non-

seaman is not distinctly drawn, and probably cannot be. It depends

a good deal upon the facts in each case, especially upon the

character of the work that is principally engaged in." Bay State

3
At the time, Hugo L. Black was a senator from Alabama.
Shortly thereafter, President Franklin D. Roosevelt nominated him
to serve on the Supreme Court, the Senate confirmed him, and he was
sworn in as an Associate Justice on August 14, 1937.
4
See, e.g., Harkins v. Riverboat Services, Inc., 385 F.3d
1099 (7th Cir. 2004); Owens v. SeaRiver Maritime, Inc., 272 F.3d
698 (5th Cir. 2001); Pacific Merchant Shipping Ass’n v. Aubry, 918
F.2d 1409 (9th Cir. 1990); Dole v. Petroleum Treaters, Inc., 876
F.2d 518 (5th Cir. 1989).

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Dredging, 149 F.2d at 351. Almost sixty years later, those words

are still apt.

B. The Labor Department’s regulations

Soon after the FLSA's enactment into law, the Secretary

of Labor, Frances Perkins, issued Interpretive Bulletin No. 11,

which provided the Labor Department's views on how the seaman

exemption should be interpreted. The heart of the Labor

Department's interpretation--the so-called "aid to transportation"

test--derives from that interpretive bulletin, which states in part

that an

[e]mployee will ordinarily be regarded as 'employed as a
seaman' if he performs, as master or subject to the
authority, direction, and control of the master aboard a
vessel, service which is rendered primarily as an aid in
operation of such vessel as a means of transportation,
provided he performs no substantial amount of work of a
different character.

Those words now appear unchanged at 29 C.F.R. § 783.31 ("Criteria

for employment 'as a seaman'"), along with some added citations to

legislative history and case law. In 1948, the Labor Department

made one change, deciding that an employee performs a "substantial

amount of work of a different character" if that different work

occupies more than 20 percent of his time during a workweek. See

29 C.F.R. § 783.37. Since 1948, the parties agree that there have

been no substantive changes to these interpretive regulations.5

5
In 1961, Congress amended the FLSA to, among other things,
extend the law's minimum-wage provisions to seamen working on
American-flagged vessels. (Before, no seamen had been entitled to

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 The Labor Department’s regulations give some content to

the vague concept of being "employed as a seaman" by stressing the

character of the work performed by the employee. We echoed that

approach in Bay State Dredging, where we described the character

of a seaman’s work as "essentially maritime." Specifically, we

said that "[w]hether a worker is a seaman, as the term is commonly

used, depends on the character of his duties. If they are

essentially maritime he is a seaman. Otherwise he remains a

landsman." 149 F.3d 349; see also Harkins, 385 F.3d at 1102 (To

qualify as a seaman, "the employee must do maritime-type work . .

. .") (emphasis added).

The regulations offer a few examples of workers who

typically would or would not meet the Department’s "aid to

transportation" test. So, for example, we read that "[t]he term

'seaman' includes members of the crew such as sailors, engineers,

radio operators, firemen, pursers, surgeons, cooks, and stewards,

the minimum wage.) Based on that amendment, the Fifth Circuit
decided that Congress had acquiesced in the Labor Department's
announced interpretation:

In 1961, Congress revisited seamen coverage making a few
changes. [Congress] did not seek, however, to change the
interpretive definition given by the Secretary as to who
are seamen. See Lorillard v. Pons, 434 U.S. 575, 580
(1978) ("Congress is presumed to be aware of an
administrative or judicial interpretation of a statute
and to adopt that interpretation when it re-enacts a
statute without change.").

Petroleum Treaters, 876 F.2d at 522 (citation omitted).

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if their service is of type described in § 783.31." Id. § 783.32.

On the other hand, the term "seaman" typically does not include the

following types of workers: concessionaires and their employees

aboard a vessel, as well as dredge-workers, stevedores, and

roustabouts. Id. § 783.33. Regardless of these lists of job

titles, whether a worker is "employed as a seaman" ultimately

depends on "the character of the work he actually performs and not

on what it is called or the place where it is performed." Id.

The Labor Department's description in its regulations of

the origin of the seaman exemption also comports with the history

recited in Bay State Dredging. See 29 C.F.R. § 783.29 ("Adoption

of the exemption in the original 1938 Act"). According to that

description, Congress excluded seamen from the FLSA's overtime

provisions to avoid jurisdictional overlap with admiralty law. In

doing so, Congress intended to give the term "seaman" its "commonly

accepted meaning, namely, one who is aboard a vessel necessarily

and primarily in aid of its navigation." Id. § 783.29(c). At the

same time, however, that ordinary meaning "is governed by the

context in which it is used and the purpose of the statute in which

it is found." Consequently, in the context of a remedial statute

like the FLSA, "giving a liberal interpretation of the meaning of

the term 'seaman' . . . would frustrate rather than accomplish the

legislative purpose" by excluding too many workers from the FLSA's

protective ambit. Id.

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 III.

I turn now to an evaluation of the three arguments that

convinced the district court that McLaughlin’s complaint was

insufficient as a matter of law.

A. "Water transportation workers"

In the district court and here, Boston Harbor argues that

the phrase "water transportation worker" decides this case now

because McLaughlin, according to her own allegations, is a "water

transportation worker." That phrase appears once in Bay State

Dredging. See 149 F.2d at 350. A variation of the phrase also

appears in the Labor Department's regulations. See 29 C.F.R. §

783.29(a) (the "general pattern of the legislative history" shows

that Congress intended to exclude "workers performing water

transportation services" from the FLSA's overtime provisions).

Boston Harbor asks, "If Plaintiff is not a water transportation

employee, what is she?"

Boston Harbor misconceives the phrase's importance to the

analysis for two reasons. First, Boston Harbor simply takes the

phrase out of context. In Bay State Dredging, we said that it was

"apparent that in the hearing both [the union representative] and

[Senator Black] used the term 'seamen' with its common meaning,

referring solely to water transportation workers." 149 F.2d at

350. It is not clear why Boston Harbor finds the term "water

transportation worker" any more useful than the term "seaman"

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itself, which at least has the virtue of being the term that

Congress chose to use in the statute. Consonant with that fact,

the focus of our analysis in Bay State Dredging remained on the

words of the statute: whether an employee was "employed as a

seaman." 29 U.S.C. § 213(b)(6). Our focus must remain the same in

this case.

Second, Boston Harbor exaggerates the phrase's importance

when it claims that "courts have consistently defined the term

'seamen' [sic] as a water transportation worker." Boston Harbor

does not cite any cases for that proposition (besides, of course,

Bay State Dredging), and I could not find any cases to support that

claim. Indeed, far from Boston Harbor's representation that courts

have used the phrase "consistently," the phrase has not appeared in

any federal case since Bay State Dredging in 1945.6

Ultimately, Boston Harbor's reliance on this phrase is a

distraction from the inescapably fact-specific nature of the seaman

inquiry:

[T]he words of the exemption are: "Employees employed as
seamen". The italicized words mean something; they are
not mere tautology. They warn us to look to what the
employees do, and not to rest on a mere matter of a name,
or the place of their work. . . . [W]hat he does is
expressly made the test of exclusion.

Mitchell v. Stinson, 217 F.2d 210, 215 (1st Cir. 1954) (quoting

Walling v. W.D. Haden Co., 153 F.2d 196, 199 (5th Cir. 1946)). If

6
This result holds true when searching for variants of the
phrase, too, like "workers engaged in transportation by water."

-25-
McLaughlin's duties are "essentially maritime," then she is a

seaman. Bay State Dredging, 149 F.2d at 349. Based solely on the

allegations in her complaint, there is at least reason to question

whether McLaughlin qualifies as a seaman.

Moreover, the Supreme Court has cautioned that, because

of the FLSA's "remedial and humanitarian" purposes, the statute

"must not be interpreted or applied in a narrow, grudging manner."

Tenn. Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590,

597 (1944). Exemptions from the duties imposed by the FLSA on

employers are to be "narrowly construed against the employers

seeking to assert them and their application limited to those

establishments plainly and unmistakably within their terms and

spirit." Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960);

see also Reich v. Newspapers of New Eng., Inc., 44 F.3d 1060, 1070

(1st Cir. 1995) (quoting Arnold). McLaughlin's duties as alleged

in her complaint were not so obviously maritime in nature that she

was "plainly and unmistakably" ineligible for overtime pay.

Arnold, 361 U.S. at 392.

To be sure, in the Jones Act, which allows negligence

suits to be brought against shipowners by "[a]ny seaman" injured

"in the course of his employment," 46 U.S.C. App. § 688(a), the

term "seaman" has been defined broadly. We have acknowledged this

divergence before: "[T]he term 'seamen,' used in various Acts," is

a "flexible term[], the meaning of which depends on the

-26-
circumstances in which [it] is used and the purpose of the

particular statute in which [it] occurs." Bay State Dredging, 149

F.2d at 351; see also Harkins, 385 F.3d at 1102 ("[D]ecisions

interpreting the term 'seaman' in other statutes do not necessarily

control its meaning in the FLSA.").

Indeed, the divergent meanings of "seaman" make sense

when one considers the different roles played by the term in the

two statutes, both of which are remedial in nature. In the Jones

Act, workers defined as "seamen" are included in the statute's

protections, while in the FLSA seamen are excluded from overtime

pay. Therefore, in context, the expansive definition of "seaman"

furthers the Jones Act's purposes. Here, by contrast, an expansive

definition of "seaman" informed solely by the unilluminating phrase

"water transportation worker" would undercut the FLSA's purposes.7

7
The Jones Act is critical in the panoply of legal
protections that Congress has provided for seamen. The Supreme
Court has outlined a two-step test to determine if someone is a
"seaman" under the Jones Act. First, "an employee's duties must
contribut[e] to the function of the vessel or to the accomplishment
of its mission." McDermott Int'l v. Wilander, 498 U.S. 337, 355
(1991). Second, "a seaman must have a connection to a vessel in
navigation (or to an identifiable group of such vessels) that is
substantial in terms of both its duration and its nature."
Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995). See also
Stewart v. Dutra Constr. Co., __ U.S. __ (2005) (construing the
meaning of the term "vessel" in the LHWCA).
Under the Jones Act, then, many workers are recognized as
seamen even though their work has little or nothing to do, strictly
speaking, with operating the vessel--e.g., "firemen, engineers,
carpenters, and cooks." McDermott, 498 U.S. at 343 (1991). The
Court has rejected a narrow "aid to navigation" test in this
respect. In the context of the FLSA, however, we rejected a broad
test that would define the term "seaman" as being "flexible enough

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B. The Labor Department's "aid to transportation" test

Boston Harbor maintains that the Labor Department's

regulations, including their reference to "workers performing water

transportation services," 29 C.F.R. § 783.29(a), justify dismissing

McLaughlin's claim. To reiterate, the Labor Department's test

provides that "[a]n employee will ordinarily be regarded as

'employed as a seaman' if he performs . . . subject to the

authority . . . of the master aboard a vessel, service which is

rendered primarily as an aid in operation of such vessel as a means

of transportation." 29 C.F.R. § 783.31.

Boston Harbor essentially says that the Department's

test, like the statutory term "seaman" and Bay State Dredging's

phrase "water transportation worker," must be read broadly.

Although McLaughlin did not perform any duties related to the

operation of the ferry itself, like navigation or steering, she did

perform various duties related to the passengers that the ferry

transports.8 Therefore, according to Boston Harbor, by aiding the

passengers and thus contributing to the vessel's overall mission,

to cover groups of employees whose work is not directly connected
with navigation and transportation by water, including dredge-
workers." 149 F.3d at 348. Again, context matters.
8
In her brief, McLaughlin admits to the "occasional handling
of lines during docking procedures," a duty which relates more
closely to operating the ferry itself. She did not mention that
responsibility in her complaint's allegations, and we ignore it for
present purposes. That acknowledgment emphasizes, however, the
importance of developing the facts of this case carefully.

-28-
McLaughlin rendered service as an "aid in" the operation of the

vessel as a means of transportation. At one point, Boston Harbor

even asserts that "[b]y definition, a deckhand on a commuter boat

is providing service in the operation of a vessel as a means of

transportation" (emphasis added). But that definition would

exclude employees from overtime pay based solely on their place of

work, an approach rejected by the Department. See 29 C.F.R. §

783.33 (status as a seaman does not depend on "the place where [the

work] is performed").

It is important to note that the Department's rejection

of Boston Harbor's position in its motion to dismiss, and its

objection to the court's ruling granting that motion, is based on

the explicit language of the Department's regulations, not an

interpretation of the regulations. In those regulations, the

Department states that a court should look to the work actually

performed, "not on what it is called or the place where it is

performed." 29 C.F.R. § 783.33.9 We echoed that principle

9
As the Department states in its amicus brief,

the district court's dismissal is tantamount to a finding
that deckhands on commuter boats are exempt "water
transportation workers" under 13(b)(6) [of the FLSA] as
a matter of law. Clearly, the IB [interpretive bulletin]
and the case law instruct that what the employee is
called, or where the work is performed, is not
determinative. Each case must be analyzed independently
in accordance with the Secretary's "aid to
transportation" test.

However, at the end of its brief, the Department loses its focus on

-29-
ourselves in Bay State Dredging. Boston Harbor’s reading of the

exemption simply does not comport with the fact-sensitive approach

required by the Department's regulations.10

C. Lack of reported cases

Third and finally, Boston Harbor said that it could not

find any reported cases in which deckhands on commuter ferries were

held to be entitled to overtime under the FLSA. This argument is

the preliminary stage of this case when it "suggests that the case
be remanded for a determination of the facts and for application of
the law in accordance with the Secretary's interpretation to those
facts." We are remanding for a determination of the facts.
However, the district court will have to decide in the first
instance if it is persuaded by the Secretary's interpretation of
the regulations applied to those facts.
10
Boston Harbor makes the claim that the regulations
incorporate two cases that excluded from overtime pay “all
personnel employed by the owner on board ferries": namely, Walling
v. Keansburg Steamboat Co., 162 F.2d 405 (3d Cir. 1947), and Helena
Glendale Ferry Co. v. Walling, 132 F.2d 616 (8th Cir. 1942). I
disagree that either case stands for such a broad proposition.
Both are marked by a paucity of information as to the actual duties
of employees like McLaughlin.
The ferries in Keansburg Steamboat transported passengers from
May to October and stayed moored to the dock the rest of the year.
About half the crew would be dismissed for the mooring period,
while the other half would stay on to perform repairs. 162 F.2d at
406. The court held that this second group remained seamen and
were thus excluded from overtime pay. Id. at 407-08. Although the
court also referred in passing to the first group of workers as
seamen, they were not the focus of the case. Thus we do not have
a good basis for comparing McLaughlin’s alleged duties with theirs.
Helena Glendale is similarly unenlightening for our purposes.
That case principally concerned three employees of a ferry company
who did not work on ferries at all: one, for example, worked as
superintendent of a cotton plantation near the Mississippi River.
132 F.2d at 618-19. As for the actual ferry-workers employed by
the company, the court noted that “[a]pparently” they were seamen,
but, as in Keansburg Steamboat, the court did not say anything
about the nature of their duties. Id. at 618.

-30-
another reflection of Boston Harbor's unpersuasive categorical

approach to this case. Speaking of "deckhands" in general terms is

not helpful. More to the point, I could find no cases supporting

the broad position of Boston Harbor that any deckhand on a ferry,

irrespective of the nature of the deckhand’s work, qualifies as a

seaman under the FLSA.

IV.

Both our precedent and the Labor Department’s regulations

make clear that neither job titles nor the locus of the work are

determinative in this case. The focus must be on the nature of the

duties actually performed: whether they are maritime or non-

maritime. Importantly, "maritime" in this context does not simply

mean "takes place on the water." If so, dredge-workers like the

ones in Bay State Dredging would be seamen and thus ineligible for

overtime pay. Rather, in the language of the Department’s

regulation, maritime means "service which is rendered primarily as

an aid in the operation of such vessel as a means of

transportation." 29 C.F.R. § 783.31.

McLaughlin’s service on the ferry may or may not fall

within that regulation. Given that uncertainty, McLaughlin should

have an opportunity to develop her case factually and thereby

explain the precise context of her duties. After all, as we have

said, the "line of demarcation between seamen and non-seamen is not

distinctly drawn, and probably cannot be. It depends a good deal

-31-
upon the facts in each case, especially upon the character of work

that is principally engaged in." Bay State Dredging, 149 F.3d at

351. Therefore, the district court erred in dismissing

McLaughlin’s complaint on the basis of Boston Harbor’s flawed legal

arguments.

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