Revised November 26, 2001
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60048
BOBBY OWENS, on behalf of himself
and all other employees of SeaRiver
Maritime, Inc., similarly situated,
Plaintiff-Appellant,
versus
SEARIVER MARITIME, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Mississippi
November 6, 2001
Before GARWOOD, PARKER, and DENNIS, Circuit Judges.
GARWOOD, Circuit Judge:
In this putative class action, the plaintiff, Bobby Owens
(Owens) seeks to recover damages from the defendant, SeaRiver
Maritime, Inc., (SeaRiver) pursuant to the maximum hour and
overtime provisions of the Fair Labor Standards Act (FLSA), 29
U.S.C. § 201 et. seq. Owens appeals the district court's grant of
SeaRiver's motion for summary judgment, in which that court
determined that Owens was exempt from FLSA coverage because he was
“employed as a seaman” under 29 U.S.C. § 213(b)(6). We reverse the
district court's summary judgment ruling that Owens is a seaman for
purposes of the FLSA, and remand the case to the district court.
Facts and Proceedings Below
SeaRiver owns and operates vessels which engage in the
maritime transportation of petroleum and chemical products. Owens
was employed by SeaRiver as an apprentice tankerman, tankerman, and
senior tankerman with SeaRiver's inland fleet from 1990 to 1998.
Owens's duties varied considerably with each of these positions.
As an apprentice tankerman, Owens was essentially a deckhand who
performed various tasks aboard barges and towboats. As both a
tankerman and senior tankerman, Owens manned barges and towboats
during transportation of cargo (or “product”) on inland voyages
between ports as distant as Texas, Iowa, and Illinois. As a
tankerman and senior tankerman, Owens also inspected barges in
preparation for towing, loading, and discharging of product;
monitored and adjusted the trim and draft of barges during loading
and discharge; checked and handled lines connecting barges to each
other and the towboat; rearranged or broke up the tow in response
to weather conditions or to allow passage through locks; painted
and made minor repairs to the barges; maintained barge equipment,
including the engines and pumps used for loading and discharging
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product; and placed and removed navigation and mooring lights.
Owens was also sometimes assigned as the “person in charge” of
barges during the loading or discharge of product. The “person in
charge” takes responsibility for the safety and integrity of the
vessel and its equipment during loading and discharge.
In 1997, Owens was assigned to SeaRiver's Baton Rouge Strike
Team. It is his service in this capacity which is at issue in the
present case. As a member of the Strike Team, Owens was not a
member of a towboat crew and was not tied to any vessel for the
duration of a voyage. The shore-based Strike Team (including
Owens) was assigned to SeaRiver's stationary “landing barge.” The
landing barge is a former oil barge which has been removed from
navigation, and is permanently moored. On this barge is a metal
building containing offices, housing for the Strike Team, a
workshop, and a training room. The Strike Team performed work
usually done by SeaRiver towboat crews, including loading and
discharge of product, but the Strike Team worked on unattended or
“tramp” barges that were neither towed by SeaRiver boats nor
attended by SeaRiver crews. The skills used by Owens with the
Strike Team were similar to those he used when he was a towboat
crewman, although Owens attended the barges only for the purposes
of loading and discharging product.
Owens sued SeaRiver in a putative class action seeking to
recover overtime pay and damages for himself and others pursuant to
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the maximum hours and overtime provisions of the FLSA. See 29
U.S.C. § 207(a)(1).1 In response, SeaRiver asserted that Owens was
“employed as a seaman” and therefore exempt from the FLSA's
overtime provision under 29 U.S.C. § 213(b)(6).2 The parties filed
cross-motions for summary judgment on the issue of whether Owens,
while a member of the Strike Team, was “employed as a seaman” and
hence exempt from the provisions of the FLSA. The district court
granted SeaRiver's motion and denied that of Owens. Owens now
appeals the decision of the district court.
Discussion
We review a grant of summary judgment de novo. Amburgey v.
Corhart Refractories Corp., 936 F.2d 805, 809 (5th Cir. 1991).
Summary judgment is appropriate where there is no genuine issue as
to any material fact and the moving party is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(c).
SeaRiver defends the district court's grant of summary
judgment solely on the grounds that Owens was employed as a seaman
pursuant to section 213(b)(6). Because there is no genuine dispute
that SeaRiver is an “enterprise engaged in commerce,” Owens was
1
“Except as otherwise provided in this section, no employer shall
employ any of his employees ... for a workweek longer than forty hours
unless such employee receives compensation for his employment in excess
of the hours above specified at a rate not less than one and one-half
times the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1).
2
“[Section 207] shall not apply with respect to ... any employee
employed as a seaman....” 29 U.S.C. § 213 (b)(6).
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covered by the FLSA unless he was employed as a seaman. 29 U.S.C.
§§ 206, 207 (providing coverage under the FLSA for persons
“employed in an enterprise engaged in commerce or in the production
of goods for commerce”). Only Owens's status while working on the
Strike Team is disputed; Owens does not dispute his status as a
seaman when he was a towboat crewman.
I. The “Seaman” Exception
The FLSA does not define “seaman,” and the precise meaning of
that term has been the subject of a series of cases in this
Circuit. In Gale v. Union Bag & Paper Co., 116 F.2d 27 (5th Cir.
1940), the workers in question were employed as barge tenders, and
were responsible for “attending to the lines and anchors, putting
out running and mooring lights, pumping out bilge water, etc.” Id.
at 27. The employees worked, ate, and slept on board their
assigned barges. The Court held that the employees were indeed
seamen exempted from the terms of the FLSA. The Court focused on
the services the employees rendered, noting that they were “of a
maritime character” and “necessary ... to the navigation of the
barges.” Id. at 28. The Court did not articulate any distinction
between the definition of “seaman” under the FLSA and the
definition under the Jones Act.
Although barge tenders are seamen under the FLSA, industrial
workers on dredge barges are not. In Walling v. W.D. Haden Co.,
153 F.2d 196 (5th Cir. 1946), the employees involved worked on
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barges dredging shell material from the ocean floor. Again, the
Court focused on the nature of the work performed by the employees,
which in this case was mostly industrial work that related to the
dredging operations. Even though the workers did participate in
some maritime work, the Court held that they were not seamen under
the FLSA because they were “employed more in industry than in
shipwork, and are not exempt.” Id. at 199. We also held in W.D.
Haden that the definition of seaman under the FLSA was narrower
than that used in the Jones Act. Id. at 198.
We revisited the distinction between the definition of seaman
in the Jones Act and the FLSA in Dole v. Petroleum Treaters, Inc.,
876 F.2d 518 (5th Cir. 1989). Relying on W.D. Haden, the
legislative history of the FLSA, and Department of Labor's
regulations interpreting the Act, the Court held that “the
definitions of seamen under the two acts are separate and
independent of each other.” Id. at 520.3 According to the Court,
the seaman status of a worker depended upon “the particular work
performed by each employee and the relative proportion of actual
seaman work as defined by the FLSA to nonseaman work.” Id.
The most recent Fifth Circuit case to address the seaman
exception is Martin v. Bedell, 955 F.2d 1029 (5th Cir. 1992). In
3
Other Circuits have also reached the conclusion that the FLSA
definition of “seaman” is narrower than the Jones Act definition. Assn.
v. Aubry, 918 F.2d 1409, 1412 (9th Cir. 1990); Sternberg Dredging Co.
v. Walling, 158 F.2d 678, 680-81 (8th Cir. 1947).
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Bedell, the Secretary of Labor brought suit to force a catering
service which employed cooks on “jack-up boats” servicing offshore
rigs to comply with the overtime provisions of the FLSA. We “gave
great weight” to the Department of Labor's regulations interpreting
the seaman exception in the FLSA, and adopted the definition of
“seaman” used in those regulations:
“The regulations state that a ‘seaman’ is
an employee who ‘performs, as a 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 [a] vessel as a means of
transportation.’ They also state that
‘[w]hether an employee is “employed as a
seaman”, within the meaning of the Act,
depends upon the character of the work he
actually performs and not on what it is called
or the place where it is performed.’ When a
worker performs both seaman's work and
nonseaman's work, he is a seaman unless his
nonseaman's work is substantial in amount.
[The Department of] Labor defines
‘substantial’ as work that ‘occupies more than
20 percent of the time worked by the employee
during the workweek.’” (footnotes omitted)
Id. at 1035-36 (citing 29 C.F.R. §§ 783.31, 783.33, 783.37
(1991)).4 The Court then remanded the case to the district court
to determine whether Blue Water's cooks spent more than twenty
percent of their time preparing food for workers who were not
actually engaged in the navigation of the boat on which the cooks
lived and worked. According to the Court, if the cooks spent more
4
The regulations have not changed in any presently relevant
way since 1991. See 29 C.F.R. §§ 783.31-783.37 (2000).
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than twenty percent of their time preparing food for non-crew
workers (i.e., industrial workers on oil platforms who were not
seamen) then the cooks did not fall within the definition of seaman
under the FLSA.5 Id.
5
We agree with the Bedell panel's reliance on the Department
of Labor's regulations, and with their use of the “twenty percent
rule” in the context of that case. We are reluctant, however, to
apply the twenty percent rule in a strict, mechanical fashion. An
employee is “employed as a seaman” under the FLSA unless the
employee performs a substantial amount of nonseaman's work. But,
the amount of nonseaman's work an employee performs can vary from
week to week. For instance, a member of a vessel's crew may aid
with the loading and unloading of cargo when the vessel is in port.
In a given week, that crew member may, without any change in basic
assignment or position, spend more than 20 percent of his time
performing nonseaman's work. This should not mean that the crew
member loses his seaman status for that week, and in such a case
the crew member should remain a seaman unless, as a general matter,
a substantial portion of his time was taken up by nonseaman's work.
To hold otherwise would produce an absurd result–crew members on
vessels who spent the vast majority of their time at sea would,
without any change in their basic assignment or position, lose
their seaman status for the few weeks a year their vessels were in
port. That would also likely be inconsistent with Gale. Rather
than focus on a week by week analysis, the determining factors
should be the general nature of the work the employee most often
performs in his particular position and the primary purpose of the
position the employee occupies. Cf. Chandris, Inc. v. Latsis, 115
S.Ct. 2172, 2191-92 (1995):
“A maritime worker who spends only a small fraction of
his working time on board a vessel is fundamentally land
based and therefore not a member of the vessel’s crew,
regardless of what his duties are. Naturally,
substantiality in this context is determined by reference
to the period covered by the Jones Act plaintiff’s maritime
employment, rather than by some absolute measure. . . . On
the other hand, we see no reason to limit the seaman status
inquiry, as petitioners contend, exclusively to an
examination of the overall course of a worker’s service with
a particular employer. . . . When a maritime worker’s basic
assignment changes, his seaman status may change as well. .
. . For example, we can imagine situations in which someone
who had worked for years in an employer’s shoreside
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Under the law of this Circuit, if Owens performed a
substantial amount of nonseaman's work, then he cannot properly be
considered a seaman for purposes of the maximum hour provisions of
the FLSA.
II. Seaman's Work
While Owens had several duties as a member of the Strike Team,
the most substantial portion of his working time appears to have
been related to loading and unloading petroleum products from the
barges. The Strike Team was created in order to facilitate the
loading and unloading of unmanned and undermanned tows of barges in
Baton Rouge. And, while SeaRiver's fleet manager could not
estimate what amount of time a tankerman on the Strike Team would
spend in actual loading or unloading, he did testify that such a
tankerman “certainly spends a good percentage of his time loading
and unloading, but it's very variable.” Owens did not testify to
the exact percentage of his time spent loading and unloading, but
he did indicate that when he was assigned to a barge it was for the
headquarters is then reassigned to a ship in a classic
seaman’s job that involves a regular and continuous, rather
than intermittent, commitment of the worker’s labor to the
function of a vessel. Such a person should not be denied
seaman status if injured shortly after the reassignment, just
as someone actually transferred to a desk job in the
company’s office and injured in the hallway should not be
entitled to claim seaman status on the basis of prior service
at sea. If a maritime employee receives a new work
assignment in which his essential duties are changed, he is
entitled to have the assessment of the substantiality of his
vessel-related work made on the basis of his activities in
his new position.”
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purpose of loading or unloading that barge. Loading and
discharging the barges was the primary purpose of Owens's job as a
member of the Strike Team. If Owens’s loading and unloading the
barges as a member of the Strike Team is nonseaman's work under the
FLSA, then Owens performed a substantial amount of nonseaman's work
and hence cannot qualify as a seaman for purposes of the FLSA.
SeaRiver in essence concedes that this is so. Clearly, it was not
established as a matter of law that Owens was a seaman while a
member of the Strike Team.
For purposes of the FLSA, work is seaman's work if it is
“rendered primarily as an aid in the operation of [a] vessel as a
means of transportation.” 29 C.F.R. § 783.31. Workers who are
primarily concerned with loading and unloading cargo are not,
generally speaking, seamen within the meaning of the FLSA. See 29
C.F.R. § 783.36 (citing McCarthy v. Wright & Cobb Lighterage Co.,
163 F.2d 92 (2nd Cir. 1947)). The district court, however, held
that it was “manifest from the descriptions of Owens' duties that
his loading and unloading of cargo, as well as the other duties
performed ... did, in fact, aid in the operation of SeaRiver
vessels as a means of transportation....” The district court erred
in holding that Owens’s loading and unloading duties as a member of
the Strike Team constituted seaman’s work for FLSA purposes.
SeaRiver defends the district court's conclusion that Owens's
loading and unloading activities were seaman's work primarily by
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arguing that if a barge was loaded or unloaded improperly it could
not be safely moved or towed, and could even break apart.
Accordingly, SeaRiver argues, Owens' loading and unloading duties
had special significance, and were in aid of the operation of the
barges as a means of transportation. SeaRiver's argument assumes
an extremely broad and unsupportable construction of “aid in the
operation” of a “vessel as a means of transportation.” Owens's
loading and unloading duties related almost exclusively to removing
petroleum products from the barge, not to moving or mooring the
barge. Of course, the unloading and loading would have to be done
in a safe or proper way, but that only prepares the vessel for
navigation; it does not aid in its actual operation as a means of
transportation. A rule that includes within the definition of
“seaman's work” for FLSA purposes all work that prepares a vessel
for navigation would include quite a few activities, most of which
would not fit comfortably within a commonsense definition of
“seaman's work.”6 And, SeaRiver's broad definition of “seaman's
work” neglects the primary purpose of the loading and unloading–to
get cargo on or off the barge. Even though Owens's loading and
unloading duties were technical, specialized, and had to be done
properly in order to assure proper navigation of the barge, they
6
For example, a land-based worker who installs navigation
equipment on vessels would be a seaman, as would a worker at a refueling
dock–both tasks would, under SeaRiver's definition, aid in the operation
of a vessel as a means of transportation to the same degree as loading
or unloading cargo.
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were still primarily cargo loading and unloading duties. While
Owens's other duties may have aided in the operation of the vessel
as a means of transportation, Owens's loading and unloading
activities did not, at least not significantly and not as their
primary purpose.
Because the primary purpose of Owens's position was to
acomplish nonseaman's work (loading and unloading petroleum), Owens
was not a seaman under the FLSA while a member of the Strike Team.7
Conclusion
For the foregoing reasons, the decision of the district court
granting summary judgment for SeaRiver is reversed, and the case is
remanded for further proceedings consistent with this opinion.
REVERSED and REMANDED
7
We do not suggest that Owens, while a member of the Strike Team,
was not a seaman for Jones Act purposes.
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