Owens Ex Rel. SeaRiver Maritime, Inc. v. SeaRiver Maritime, Inc.

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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