Adams v. All Coast

Case: 19-30907 Document: 00516036286 Page: 1 Date Filed: 09/30/2021

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

September 30, 2021

No. 19-30907 Lyle W. Cayce

Clerk

William Adams,

Plaintiff—Appellant,

versus

All Coast, L.L.C.,

Defendant—Appellee.

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 6:16-CV-1426

ON PETITION FOR REHEARING EN BANC

(Opinion February 11, 2021, 988 F.3d 203)

Per Curiam:

The court, having been polled at the request of one of its members,

and a majority of the judges who are in regular active service and not

disqualified not having voted in favor (Fed. R. App. P. 35 and 5th Circ.

R. 35), the petition for rehearing en banc is DENIED.

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In the en banc poll, two judges voted in favor of rehearing (Judges

Jones and Elrod), and fifteen judges voted against rehearing (Chief Judge

Owen, and Judges Smith, Stewart, Dennis, Southwick, Haynes, Graves,

Higginson, Costa, Willett, Ho, Duncan, Engelhardt, Oldham, and Wilson).

It is ORDERED that our prior panel opinion, Adams v. All Coast,

L.L.C., 988 F.3d 203 (5th Cir. 2021), is WITHDRAWN and the following

opinion is SUBSTITUTED therefor.

*****

Before Smith, Clement, and Oldham, Circuit Judges.

Edith Brown Clement, Circuit Judge:

William Adams filed this collective action on behalf of himself and

others employed on All Coast’s fleet of liftboats. Although All Coast hired

Adams and the other plaintiffs to serve in various maritime jobs, the

employees claim they spent most of their time doing something completely

terrestrial: using cranes attached to the boats to move their customers’

equipment on and off the boats, the docks, and the offshore oil rigs.

All Coast did not pay the plaintiffs overtime because it classified them

as seamen, who are exempt from the overtime pay rules in the Fair Labor

Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq. Persuaded by All Coast’s

reading of the FLSA, the district court entered summary judgment for All

Coast because the employees’ work served the liftboats’ operation “as a

means of transportation.” 29 C.F.R. § 783.31. We disagree. Such a reading

strays from the statutory and regulatory text and our jurisprudence. As we

explain below, All Coast was not entitled to summary judgment.

Accordingly, we reverse and remand.

I.

All Coast hired Adams as an able-bodied seaman to work on its fleet

of liftboats that service offshore oil and gas platforms in the Gulf of Mexico. 1

1

“A lift-boat is a self-propelled, self-elevating, offshore supply vessel. Although it

functions and navigates much like any other supply vessel, a typical lift-boat is equipped

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But despite his job title, Adams maintains that his main duty had nothing to

do with maritime work. Instead, Adams spent much of his time operating a

hydraulic crane to move personnel and equipment between the liftboat and

the dock, offshore worksite platforms, and other vessels, as well as on the

liftboat itself. Adams claims that because he was really a crane operator and

not a seaman, All Coast owes him unpaid overtime wages under the FLSA.

Adams filed a collective action on behalf of himself and other

similarly-situated All Coast mates, deckhands, ordinary seamen, and able-

bodied seamen, who all say their job titles hide their true task: crane operator.

Along with the crew members, liftboat cooks joined the class, alleging that

they too are entitled to overtime pay since they spent their time cooking for

third parties and these allegedly non-seamen crew members.

Adams and the other crew member plaintiffs say they spent no less

than 80 percent of their time in the jacked-up, stationary position. Indeed,

for some jobs or “hitches,” the boats were jacked up 100 percent of the time.

And regardless the duration of the hitch, they never used the cranes when

the boats were underway. All told, the district court found that the plaintiffs

“spent between 25% and 90% of their day operating the crane.” The plaintiffs

all ate, slept, and worked aboard a boat. And, when they weren’t operating

the cranes, they performed traditional maritime functions under the

command of the boat’s captain.

The plaintiffs claim their work servicing offshore oil and gas wells

consisted of “the types of things that anyone engaged in oil and gas

exploration does regardless of whether drilling onshore or offshore.” All

Coast job tickets list tasks like “Coil tubing ops,” “Crane ops,” “Working

with three column-like legs that can be quickly lowered to the seafloor to raise the vessel

out of the water and stabilize it for marine operations.” Naquin v. Elevating Boats, L.L.C.,

744 F.3d 927, 930 n.1 (5th Cir. 2014); see 46 C.F.R. § 90.10–20 (“Liftboat means an

offshore supply vessel with moveable legs capable of raising its hull above the surface of the

sea.”).

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with divers,” and “Working with welders.” Similarly, the plaintiffs’

deposition testimony explains how they used the cranes to hold coil tubing

units in place for their customers on oil rigs, and to lower divers into the water

and retrieve equipment the divers placed into the crane basket. On the other

hand, the record also makes plain that the crew never stepped foot on the oil

platforms, nor did they directly drill for oil and gas.

All Coast did not pay the crew and cooks overtime because it classified

them as exempt seamen under the FLSA. See 29 U.S.C. § 213(b)(6). All

Coast first filed a motion to dismiss, which the district court converted to

summary judgment and then denied as premature. But the district court later

granted summary judgment for All Coast. The court found that the cooks

were exempt seamen because All Coast crew members ate at every meal the

cooks prepared. And although the crew spent as much as 90 percent of their

time operating the cranes, they too were exempt seamen because the liftboat

crane operation was a “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.

Plaintiffs timely appealed.

II.

We review a grant of summary judgment de novo, “applying the same

legal standards as the district court.” Petro Harvester Operating Co., L.L.C.

v. Keith, 954 F.3d 686, 691 (5th Cir. 2020). “Summary judgment is

appropriate when ‘the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of

law.’” United States v. Nature’s Way Marine, L.L.C., 904 F.3d 416, 419 (5th

Cir. 2018) (quoting Fed. R. Civ. P. 56(a)).

In a dispute about an FLSA exemption, the employer has the burden

of establishing that the exemption applies by a preponderance of the

evidence. Faludi v. U.S. Shale Sols., L.L.C., 950 F.3d 269, 273 (5th Cir.

2020). The Supreme Court has “clarified that courts are to give FLSA

exemptions ‘a fair reading,’ as opposed to the narrow interpretation

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previously espoused by this and other circuits.” Carley v. Crest Pumping

Techs., L.L.C., 890 F.3d 575, 579 (5th Cir. 2018) (quoting Encino Motorcars,

L.L.C. v. Navarro, 138 S. Ct. 1134, 1142 (2018)).

III.

The FLSA’s baseline requirement is that any employee who works

“longer than forty hours” in a workweek must be compensated “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). “An employee is not protected by this broad

prohibition, however, if he falls within an exemption.” Coffin v. Blessey

Marine Servs., Inc., 771 F.3d 276, 279 (5th Cir. 2014). Among them, “any

employee employed as a seaman.” 29 U.S.C. § 213(b)(6). Although the

FLSA does not define “seaman,” we determined shortly after the FLSA’s

enactment that the exemption applies only when an employee performs

nautical duties:

Since the Act does not define the word seaman, it must be

taken in its ordinary meaning. . . . [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. The entire Act is

pervaded by the idea that what each employee actually does

determines its application to him.

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

Even so, our later decisions have recognized that the statute has its

limits. For that reason, we look “primarily” to the Department of Labor’s

regulations, “which we have held to be entitled to great weight.” Coffin, 771

F.3d at 279 (citing Dole v. Petroleum Treaters, Inc., 876 F.2d 518, 521 (5th Cir.

1989)); see Tony & Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 297

(1985) (describing the regulation’s definition of “business purpose” under

the FLSA as “entitled to considerable weight in construing the Act”).

According to those criteria, an employee is a seaman if: “(1) the employee is

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subject to the authority, direction, and control of the master; and (2) the

employee’s service is primarily offered to aid the vessel as a means of

transportation, provided that the employee does not perform a substantial

amount of different work.” Coffin, 771 F.3d at 281 (citing 29 C.F.R.

§ 783.31).

The parties do not dispute the first part of the test. There is no doubt

that the employees all ate, slept, and worked aboard the vessels and were

subject to a captain’s authority. The dispute revolves around the second

prong, particularly whether using a crane aids in a liftboat’s operation as a

means of transportation. The district court concluded that it did: “The

amount of time the plaintiffs spent operating the crane, whether 10% of their

time or 100%[,] is irrelevant because crane operation is seaman’s work that

aids the vessel as a means of transportation.” That conclusion runs contrary

to the regulatory language and our decisions interpreting it.

A.

One salient example in the regulation says that “assisting in the

loading or unloading of freight at the beginning or end of a voyage” is not

“connected with operation of the vessel as a means of transportation.” 29

C.F.R. § 783.32. Another explains that “employees on floating equipment

who are engaged in . . . construction . . . and employees engaged in dredging

operations or in the digging or processing of sand, gravel, or other materials

are not employed as seamen within the meaning of the Act but are engaged

in performing essentially industrial or excavation work.” Id. § 783.34. By

the regulation’s plain language, when the crew assists with loading or

unloading, or with “essentially industrial” tasks, that portion of their time is

not seaman’s work.

The record shows that the plaintiffs spent a significant amount of time

doing just that. Based on the plaintiffs’ depositions, the district court found

that they “spent between 25% and 90% of their day operating the crane” “to

transport personnel, supplies, and equipment back and forth between the

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liftboat and the dock, the liftboat and the worksite platform, the liftboat and

other vessels, and within the liftboat itself.” And other deposition testimony

confirms that the crew members used the cranes only when the liftboats were

stationary, never underway. In short, the plaintiffs performed “loading or

unloading of freight at the beginning or end of a voyage.” 29 C.F.R. § 783.32.

Nor does the regulation suggest anything unique about the plaintiffs’

loading and unloading that would lead us to a different conclusion. The

regulation recognizes that all vessels will have cargo on board during

transport. Yet the work of handling that cargo does not qualify as seaman’s

work. The district court found that All Coast’s customers chartered the

liftboats “to transport people and equipment on the liftboat to a worksite

offshore.” Hardly a unique task for a seagoing vessel. But contrary to All

Coast’s argument, the regulation suggests there is nothing special about the

nature of All Coast’s charters that would pull crane operations into the

vessel’s ambit “as a means of transportation.” 29 C.F.R § 783.31. Consider

the alternative. If that were so then all loading and unloading would qualify

as seaman’s work. Yet the regulation says the opposite. If anything, the use

of a hydraulic crane makes the work less like a typical seaman’s, not more.

Recall too that All Coast’s customers chartered the liftboats to

support their industrial activity at offshore rigs. The plaintiffs used the

cranes to support divers and hold coil tubing units in place. To be sure, the

plaintiffs were not the divers or the welders. But they were akin to support

crew that allowed the divers and welders to perform their industrial work.

We would not say—indeed, we have not said, see section III.C, below—that

these plaintiffs were engaged in seaman’s work if they performed the same

functions from the rigs themselves. Why should that conclusion change

because they stayed on the liftboats? The inquiry is “the character of the

work” the plaintiffs did, “not on what it is called or the place where it is

performed.” Coffin, 771 F.3d at 280 (quoting 29 C.F.R. § 783.33); see 29

C.F.R. § 783.34.

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Regardless, All Coast argues that “crane operation was one of many

fully integrated seaman’s duties that aided in the safe operation of the vessel

as a means of transportation of personnel and equipment.” Instead of

consulting the Department of Labor’s guidance, which All Coast urges “does

not have the force of law and is persuasive only,” All Coast refers the court

to dictionary definitions of “seaman” from the time of the FLSA’s

enactment. 2

This court often looks to dictionary definitions to determine the

ordinary meaning of key statutory terms. Indeed, in W.D. Haden, we

consulted the same Webster’s definition that All Coast proffers here: “one

whose occupation is to assist in the management of ships at sea; a mariner.”

W.D. Haden, 153 F.2d at 198 (quoting Seaman, Webster’s New Int’l

Dictionary (2d ed. 1934)). But, as we have said, this court has long looked to

the Department of Labor’s regulations too, precisely because the meaning of

“seaman” is undefined in the statute. Coffin, 771 F.3d at 279.

And the definitions that All Coast cites do not dissuade us from our

normal interpretive methods. Black’s Law Dictionary said that a seaman

must “in some capacity assist in [a ship’s] conduct, maintenance, or

service.” Seamen, Black’s Law Dictionary (3d ed. 1933). Similarly, the

2

All Coast primarily takes aim at the Department of Labor’s guidance that work

other than seaman’s work is substantial if it accounts for more than 20 percent of an

employee’s work hours. See 29 C.F.R. § 783.37; see also Coffin, 771 F.3d at 281. We take

up that argument in section III.D, below. However, we have also considered All Coast’s

criticism as targeting the portion of the regulation delineating seaman’s work. All Coast

relies on the Second Circuit’s opinion in Munoz-Gonzalez v. D.L.C. Limousine Service, Inc.,

904 F.3d 208 (2d Cir. 2018). But Munoz-Gonzalez concerned the Department of Labor’s

Handbook, not its regulations. See id. at 216 (“[T]he Department of Labor’s Handbook

lacks the force of law, and ‘is entitled to deference only to the extent that it has the ‘power

to persuade.’” (quoting Chen v. Major League Baseball Props., Inc., 798 F.3d 72, 83 (2d Cir.

2015))). In contrast, of course, we have repeatedly emphasized that the Department’s

regulations are entitled to “great weight.” Coffin, 771 F.3d at 279 (citing Dole, 876 F.2d at

521). Finding no conflict here between the statute’s plain meaning and the regulatory

guidance, we will continue to give them that weight.

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Oxford English Dictionary said that a seaman’s “occupation or business is

on the sea,” but, “Also, with qualifying word: One skilled in navigation.”

Seaman, Oxford English Dictionary (1st ed. 1933). Of these, only the first,

unqualified, Oxford definition might support All Coast’s reading of the term

“seaman,” but only then because of its breadth. “That a definition is broad

enough to encompass one sense of a word does not establish that the word is

ordinarily understood in that sense.” Taniguchi v. Kan Pac. Saipan, Ltd., 566

U.S. 560, 568 (2012). Instead, the ordinary meaning from this survey of

definitions reinforces the Department’s regulations: a seaman’s duty must

serve the ship’s operation as a ship.

When read in concert, the natural reading of those regulations is that

these plaintiffs were engaged in seaman’s work when they performed their

nautical duties, but not when using the hydraulic cranes. During the periods

when they were underway, the crew performed only the nautical duties listed

in their job descriptions. 3 But when the liftboats were jacked up, the crew

spent more time operating the cranes than performing their nautical tasks.

Thus, the plain meaning of 29 C.F.R. § 783.31, and the illustrative examples

in §§ 783.32 and 783.34, suggest the employees were not engaged in

seamen’s work when operating the cranes.

B.

1.

Our previous decisions only reinforce that conclusion. The district

court primarily focused its analysis on two of our cases analyzing the seaman

exemption for plaintiffs who performed loading and unloading duties. In

Owens v. SeaRiver Maritime, this court held that a tankerman who primarily

3

Among those duties, the crew stood lookout, checked the engine room, attached

lifting devices to cables, spliced rope, cleaned and painted, steered the boat, and performed

other traditional maritime duties related to navigation and upkeep. In addition, one job

description in the record notably lists the position as FLSA Non-Exempt. Neither party

explains that contradiction, so we do not address it.

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loaded and unloaded petroleum products from a permanently moored barge

was not a seaman. 272 F.3d 698, 704 (5th Cir. 2001). But then in Coffin, we

distinguished Owens and held that vessel-based tankermen who loaded and

unloaded liquids were exempt seamen. 771 F.3d at 282–84. The district

court reasoned that this case is closer to Coffin. 4 We disagree.

The plaintiff in Owens was an experienced tankerman who had been

reassigned from seagoing vessels to a stationary landing barge, which was an

old oil barge that was removed from navigation and permanently moored.

272 F.3d at 700. The employees who worked on the landing barge loaded

and unloaded the petroleum product like a towboat crew. But unlike a normal

barge, the landing barges were never towed or attended by a boat crew. The

court noted that the skills the tankerman used on the landing barge “were

similar to those he used when he was a towboat crewman, although [he]

attended the [landing] barges only for the purposes of loading and discharging

the product.” Id. The court held that the tankerman’s loading and unloading

duties did not “aid in the operation of [a] vessel as a means of

transportation.” Id. at 704 (quoting 29 C.F.R. § 783.31); see also id.

(“Workers who are primarily concerned with loading and unloading cargo

are not, generally speaking, seamen.” (citing 29 C.F.R. § 783.36)).

The defendant company in Owens argued that the loading and

unloading was seaman’s work because “if a barge was loaded or unloaded

improperly it could not be safely moved or towed, and could even break

apart.” Id. The court rejected that “extremely broad and unsupportable

construction of ‘aid in the operation’ of a ‘vessel as a means of

transportation.’” Id.

Of course, the unloading and loading would have to be done in

a safe or proper way, but that only prepares the vessel for

4

The district court also considered Johnson v. Canal Barge, 181 F. Supp. 3d 413

(S.D. Tex. 2016). There, the district court followed Coffin in holding that a vessel-based

tankerman was a seaman despite his loading and unloading duties. Id. at 418.

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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.” And, [this] 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 were still primarily cargo

loading and unloading duties.

Id.; see also id. at 704 n.6 (noting that under the defendant’s definition, “a

land-based worker who installs navigation equipment on vessels would be a

seaman, as would a worker at a refueling dock—both tasks . . . aid in the

operation of a vessel as a means of transportation to the same degree as

loading or unloading cargo”).

In contrast, we held that the vessel-based tankermen in Coffin were

seamen. There, the company was also in the business of shipping liquid cargo

on barges. Coffin, 771 F.3d at 278. The crew—including the plaintiff

tankermen—lived and worked on the towboat and answered to the captain.

The tankermen were responsible for the duties of a deckhand plus the

“complex” process of loading and unloading the liquid from the barges. Id.

Those tankermen argued that their duties associated with loading and

unloading were nonseaman work, “while acknowledging their many other

duties” were those of a seaman. Id. at 279.

After identifying the Department’s criteria in 29 C.F.R. § 783.31, the

court rejected another proposed categorical rule. Just as the court had

refused to adopt a “broad and unsupportable” construction of the regulation

in Owens, 272 F.3d at 704, the court similarly declined the tankermen’s

argument that “loading and unloading a vessel is always nonseaman work,”

Coffin, 771 F.3d at 280. Instead, the court emphasized that “we always

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consider the factual context when deciding whether an employee is exempt.”

Id. The court then highlighted that this is a case-specific inquiry:

While the DOL regulations suggest that in many cases loading

and unloading duties are nonseaman work, we recognized [in

Owens] that such a rule cannot be categorical in the light of the

DOL’s crucial qualification that the application of the seaman

exemption “depends upon the character of the work [an

employee] actually performs and not on what it is called or the

place where it is performed.”

Id. at 280–81 (quoting 29 C.F.R. § 783.33) (emphasis and second bracket in

Coffin).

Several critical factors distinguished the vessel-based tankermen in

Coffin from the plaintiffs in Owens. They “ate, slept, lived, and worked

aboard [the] towboats,” and “worked at the direction of the captain.” Id. at

282. Additionally, “their loading and unloading duties were integrated with

their many other duties.” Id. at 283. But most important of all, “safe loading

and unloading contributed to the efficient movement of the barge.” Id. at

282. Indeed, we have since interpreted the distinction between Owens and

Coffin as coming down to “whether the ‘primary purpose’ of the particular

individual’s work is safe navigation of the ship.” Halle v. Galliano Marine

Serv., L.L.C., 855 F.3d 290, 294 (5th Cir. 2017) (citing Owens, 272 F.3d at

703–04; Coffin, 771 F.3d at 283–84).

To underscore that importance, Coffin referred to the standards of 29

C.F.R. § 783.36 as a rebuttable “presumption that loading and unloading

duties are nonseaman work because those duties are usually performed by

harbor-based personnel who have little to no role in the barge’s navigational

mission.” Coffin, 771 F.3d at 282 (citations omitted). That presumption was

overcome by the undisputed evidence in Coffin that the “vessel-based

tankermen performed their loading and unloading duties with an eye toward

navigation and were required to perform such duties safely so that the vessel

could safely operate on inland and oceanic waterways.” Id. at 284.

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2.

Here, the plaintiffs were not doing seamen’s work when they were

operating the cranes. Yes, they were “subject to the authority, direction, and

control of the master” of the vessel. 29 C.F.R. § 783.31. Like the plaintiffs

in Coffin, the employees here lived and worked on the liftboats and answered

to the captain. But the parties do not dispute that part of the test.

The disputed question is whether their service operating the cranes

was “offered to aid the vessel as a means of transportation.” 29 C.F.R.

§ 783.31. It was not. To be sure, the plaintiffs performed many tasks that do

satisfy that test. When the boats were underway, they acted as a normal

nautical crew. And they remained responsible for their nautical tasks even

when the boats were jacked up. They attended safety meetings, cleaned up

the liftboats, and performed regular inspections. But unlike in Coffin, the

plaintiffs’ loading and unloading duties were not “integrated with their many

other duties.” Coffin, 771 F.3d at 283. Instead, once they finished their

duties as the boat’s crew, the plaintiffs turned their attention exclusively to

operating the cranes. It was as though they were performing two discrete

jobs: upkeep of the boat and operation of the crane.

The district court found that the “crane operations had implications

for the seaworthiness and efficient movement of the vessel.” That might be

so, in the broadest sense; one false move of a hydraulic crane could certainly

hazard the safety of the boat. Yet that invokes the same “broad and

unsupportable construction” of the regulation that we rejected in Owens, 272

F.3d at 704. The fact that the liftboats moved under their own power does

not change the nature of the crane operations, particularly because the

plaintiffs operated them only while the boats were stationary. As we said in

Owens, “unloading and loading . . . only prepares the vessel for navigation; it

does not aid in its actual operation as a means of transportation.” Id.

In any event, the record evidence suggests the real danger was to

personnel, not the liftboats. The plaintiffs testified that it was critical to

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operate the cranes safely, mostly to avoid striking any personnel with the

crane basket. But this merely reinforces common sense. Unlike the

tankerman in Coffin who “regularly walk[ed] his barge to make certain that

the barge was level” for fear that it would “get stuck when traveling down a

river or canal,” Coffin, 771 F.3d at 283–84, the liftboat crew’s safety concerns

had less to do with the impact on the liftboats as boats than with the dangers

incidental to hydraulic cranes as cranes. In short, the use of the cranes was

not in furtherance of the “safe navigation of the ship.” Halle, 855 F.3d at

294.

C.

Additionally, the loading and unloading duties do not address the

plaintiffs’ other compelling framing of the issue: that they also used the

cranes to support their customers’ industrial activities on the oil platforms.

The plaintiffs point to W.D. Haden, a case involving dredge boat crew

members. Like the crew here and in Coffin, the dredge boat crew were “in

the general sense seamen.” W.D. Haden, 153 F.2d at 199. They lived on

their vessels, stood watch, and could “be called on for any service like the

ordinary sailor.” Id. Their nautical work involved “management of the

dredge boat and barges as vessels,” whereas their industrial work involved

“the mining and handling of shells . . . carried on by means of a floating

mining plant.” Id. We held that they were not exempt seamen under the

FLSA because their industrial work “clearly” dominated, while their

nautical work was “incidental and occasional, taking but a small fraction of

the work time.” Id.; see 29 C.F.R. § 783.34 (citing W.D. Haden).

All Coast argues W.D. Haden is “easily distinguished” because the

dredge boats had no motive power of their own and were used only to dredge

for shells. See id. at 197–99. That argument belies the finding that the crew

indeed performed a nautical function; it was just outweighed by their

industrial duties. Id. at 199. Still, it is undisputed that the employees in this

case did not directly drill for oil and gas. Nor does All Coast directly collect

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its customers’ spoils. Instead, the charters pay All Coast for the support it

renders, whether their drills produce oil or not.

But purely industrial activity is not required. In Dole v. Petroleum

Treaters, this court held that plaintiffs who serviced and maintained oil wells

were not exempt seamen, even though they “clearly [performed] some

seamen duties in that they [operated] their vessels . . . between oil wells.”

Dole, 876 F.2d at 521. The plaintiffs spent at least half their time maintaining

the wells. That, we held, entitled them to FLSA overtime under W.D.

Haden. Id. All Coast is correct that the liftboat crews never left their boats

or conducted maintenance on the oil platforms. But the liftboats spent even

more time jacked up, adjacent to the oil platforms, than the Dole plaintiffs

spent maintaining oil wells. See id. And there is no question that the liftboat

crews used the cranes to support their customers’ maintenance efforts. They

delivered equipment to the platforms, held casings in place, placed divers in

the water, and retrieved equipment that the divers placed in the crane

baskets. Like the plaintiffs in W.D. Haden and Dole, these were industrial

activities that had no bearing whatsoever on the liftboats’ operation or

navigation.

The Seventh Circuit’s analysis in Harkins v. Riverboat Services, 385

F.3d 1099 (7th Cir. 2004), is also instructive. There, the plaintiffs were

crewmembers of a gambling riverboat. “[T]hey were not waiters or

croupiers, but instead were responsible for the operation of the ship.”

Harkins, 385 F.3d at 1100. But a curiosity of the ship’s operation was that it

spent “at least 90 percent of its time moored to a pier in East Chicago.” Id.

As a result, “their life differ[ed] only slightly from that of ordinary casino

workers.” Id.

The Seventh Circuit noted that the seaman exemption would not

apply “in a case in which a person employed on a ship was engaged in

activities that had no maritime tincture whatever.” Id. at 1103; see 29 C.F.R.

§ 783.34 (“Concessionaires and their employees aboard a vessel” are

generally not seamen.). But “none of the plaintiffs [was] a croupier, cashier,

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bouncer, dealer, waiter, or entertainer; all [were] . . . members of the ship’s

operating crew.” Id. So the court posed this critical question:

We can ask the question this way: do the plaintiffs spend their

time performing duties that are necessary to the operation of

the Showboat because it is a ship or because it is a casino? 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.

Id. at 1104 (citation omitted). 5

When we pose the same question here, the answer becomes obvious.

Surely the crew members were not performing duties that were necessary to

the operation of the liftboats as boats, but merely as platforms for the

hydraulic cranes. If the crew had only serviced the liftboats while they stood

stationary next to the oil platforms, that would have been seamen’s work

without question. See id. at 1104. But their use of the cranes had nothing to

do with the operation of the liftboats—other than the obvious fact that they

had brought the cranes with them. There is no evidence in the record from

which we could conclude that those activities aided the liftboats at all as a

means of transportation. Those tasks do not even meet the failed standard

that they “prepare[d] the vessel for navigation.” Owens, 272 F.3d at 704.

Accordingly, we hold that the plaintiffs’ crane operation was not

seaman work for purposes of the FLSA exemption. Whether the plaintiffs

qualify for the exemption otherwise will be decided on remand. The district

court thus erred in granting summary judgment for All Coast. As the district

court said, because of the substantial amount of time the plaintiffs spent

operating the cranes, “if crane operation—in this context—is not seaman’s

5

The plaintiffs’ appeal in Harkins followed a jury’s verdict in favor of the riverboat

company, finding the plaintiffs were exempt seamen. 385 F.3d at 1101.

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work[,] then Plaintiffs . . . cannot qualify as seamen.” It was not, and they

cannot—not while they were operating the cranes. We remand to the district

court for further proceedings consistent with our holding.

D.

It follows that All Coast was not entitled to summary judgment as to

the cooks either. Like any other crew member, a cook is a seaman “if, as is

the usual case, [his] service is” “rendered primarily as an aid in the operation

of such vessel as a means of transportation, provided he performs no

substantial amount of work of a different character.” 29 C.F.R. §§ 783.31,

32. “A cook is usually a seaman because he usually cooks for seamen.”

Martin v. Bedell, 955 F.2d 1029, 1036 (5th Cir. 1992). But this is not the usual

case for two reasons.

First, the district court must consider this question again in view of

our holding that the liftboat crew members were not engaged in seamen’s

work when operating the hydraulic cranes. Our statement in Martin

recognized a cook’s service to the vessel as a means of transportation by way

of the crew he feeds. See id. If that crew is not serving the vessel as a means

of transportation, then neither is the cook. Just as there is a fact issue on

remand about the amount of time the crew spent operating the cranes, there

is a corollary question about the amount of time the cooks spent in service to

the vessel as a means of transportation.

Second, the district court must also consider how much time the cooks

spent preparing food for All Coast’s chartered passengers. The district court

concluded in its summary judgment opinion that the cooks were seamen

because “for every meal [they] cooked, All Coast crew members ate.” But

even if the crew members were exempt seamen (which we have held they

were not), that finding alone does not support summary judgment. The

question is not so simple as whether All Coast crew members ate some of the

food at each meal the cooks prepared. Instead, the question is whether the

cooks rendered a service that was “primarily [an] aid in the operation of such

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vessel as a means of transportation, provided [they] perform[ed] no

substantial amount of work of a different character.” 29 C.F.R. § 783.31

(emphasis added).

The regulations adopt a position that “such differing work is

‘substantial’ if it occupies more than 20 percent of the time worked by the

employee during the workweek.” Id. § 783.37. We have often recognized

that 20 percent figure as a guide, even if we have not been quite so

mathematically precise. In Martin, we adopted the 20 percent figure outright

when we remanded to the district court to “determine if the cooks spent

more than 20 percent of their time preparing food for non-crew members.”

Martin, 955 F.2d at 1036 (cleaned up). In Owens, we applied a more flexible

approach that eschewed “apply[ing] the twenty percent rule in a strict,

mechanical fashion.” Owens, 272 F.3d at 702 n.5. 6 And in both Coffin and

Halle, we considered whether non-seaman’s work made up more than

“approximately” 20 percent of an employee’s time. See Halle, 855 F.3d at

296 (citing Coffin, 771 F.3d at 279–80). With the regulatory cutoff as a guide,

a cook who spends more than roughly 20 percent of his time cooking for non-

crew members or, as here, crew members who are non-exempt seamen, has

spent a “substantial” amount of time on differing work. 29 C.F.R. § 783.31.

The district court’s initial inquiry did not address that question. It

was not enough to say that the liftboat crew members ate at each meal the

cooks prepared, because that did not address the amount of time the cooks

6

Our concern in Owens may have been colored by a conflation of the FLSA’s

seaman exemption and seaman status under the Jones Act. As we have said, “the definition

of ‘seaman’ in the Jones Act is not equivalent to that in the FLSA.” Halle, 855 F.3d at 294

(citing Dole, 876 F.2d at 520). Thus, we should not have been concerned in Owens that

crew members who spent more than 20 percent of their time on differing work would “lose

their seaman status for the few weeks a year their vessels were in port.” Owens, 272 F.3d

at 702 n.5. That concern betrayed a Jones Act inquiry irrelevant to the crew members’

entitlement to overtime pay under the FLSA, a betrayal emphasized by our citation to

Chandris v. Latsis, a Jones Act case. See id. (citing Chandris v. Latsis, 515 U.S. 347, 371–72

(1995)).

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devoted to the task. The liftboats were usually manned by a crew of four. It

is unclear from the record how many passengers they typically chartered to

the rigs. But suppose that there was an equal number of passengers and crew.

Or, just as likely, suppose that the passengers outnumbered the crew.

Perhaps a cook who must prepare food for the crew can double or triple his

output without substantially increasing the cooking and prep time. Then

again, perhaps not.

These fact questions preclude summary judgment for All Coast. On

remand, the district court will need to determine how much time the cooks

spent preparing food for the crew when they were not performing seamen’s

work, and how much time they spent preparing food for non-crew members.

If that adds up to a “substantial” amount, then they, like the crane-operating

crew members, were not doing seamen’s work. See 29 C.F.R. § 783.31;

Martin, 955 F.2d at 1036.

IV.

For the foregoing reasons, we REVERSE the district court’s

summary judgment and REMAND the case for further proceedings.

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Edith H. Jones, Circuit Judge, joined by Elrod, Circuit Judge, dissent-

ing:

For the second time in two months, this court flouts Encino Motorcars,

L.L.C. v. Navarro, 138 S. Ct. 1134 (2018). There, rectifying decades of mis-

reading, the Supreme Court held that the Fair Labor Standards Act exemp-

tions call for a fair—not narrow—reading. Id. at 1142. Vague notions of the

FLSA’s remedial purpose, the Court noted, could not support the lower

courts’ atextual narrow-construction principle. Id. After all, FLSA exemp-

tions serve no purpose when the courts’ tendentious and incomplete read-

ings of statutory and regulatory text encourage costly litigation and the threat

of large damages the Act authorizes.

But this court has not figured that out. Recently, this court misinter-

preted the executive, administrative, and professional exemption,

29 U.S.C. § 213(a)(1), and its accompanying regulations, 29 C.F.R.

§§ 541.0-541.710, to award overtime to an offshore oil toolpusher who man-

aged at least a dozen employees and earned over $200,000 annually. Hewitt

v. Helix Energy Sols. Grp., No. 19-20023, 2021 WL 4099598 (5th Cir. Sept. 9,

2021) (en banc). Today’s victim is the “seaman” exemption,

29 U.S.C. § 213(b)(6), and its regulations, 29 C.F.R. §§ 783.0-783.51. At

least the employer here has a chance to persuade a jury that its liftboat crew-

members are exempt seamen— but the panel’s broad holding threatens un-

certainty throughout the maritime industry. 1

1

See Br. of Amici Curiae, Offshore Marine Serv. Ass’n and Nat’l Ocean Indus.

Ass’n in Support of Applicant for Reh’g En Banc, Adams v. All Coast, L.L.C.,

No. 19-30907, Doc. No. 515799315 (5th Cir. Mar. 29, 2021); Amicus Curiae Br. of the Am.

Maritime Ass’n in Support of All Coast, L.L.C.’s Pet. For Reh’g En Banc, Adams v. All

Coast, L.L.C., No. 19-30907, Doc. No. 515799406 (5th Cir. Mar. 29, 2021).

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The plaintiffs are Coast Guard licensed mariners who served as mates,

deckhands, ordinary seamen, and able-bodied seamen aboard All Coast’s lift-

boats. 2 A liftboat is an “offshore supply vessel with moveable legs capable of

raising its hull above the surface of the sea.” 46 C.F.R. § 90.10-20. They are

considered “vessels” in navigable water, even when in the jacked-up posi-

tion. Strong v. B.P. Expl. & Prod., Inc., 440 F.3d 665, 669 (5th Cir. 2006). A

crew of about six navigates these large, special-purpose vessels far out into

the Gulf of Mexico to deliver or retrieve supplies, workers, and machinery,

just like any other commercial vessel. Voyages are typically 14-day hitches,

during which the plaintiffs live, sleep, and work on board under direction of

the vessel’s captain. The liftboats’ mission and navigation are coterminous

with trips to and from port.

At their offshore destinations, liftboats use cranes to move cargo and

personnel from the liftboats’ deck to oil platforms. In addition, the cranes

may assist in diving and other oil production operations. But even when the

liftboat is jacked up, the crewmembers retain responsibility for standing look-

out, checking the engine room, splicing rope, cleaning, and performing other

quintessential seaman’s work. Crewmembers, therefore, alternate in work-

ing the cranes and serving other vessel functions.

As is the case for all commercial vessels, a raft of Coast Guard regula-

tions governs liftboats. See 46 C.F.R. §§ 134.100-134.180. With their legs

2

My critique applies equally to the plaintiffs that served as cooks. For them, the

panel opinion looks to Martin v. Bedell, 955 F.2d 1029 (5th Cir. 1992). The court there held

that a “cook is usually a seaman because he usually cooks for seamen,” but recognized that

may not always be the case. Id. at 1036 (emphasis in original). The panel directs the district

court to consider whether the cooks spent a substantial amount of time serving non-seamen

but gives little direction on what that means. Ante, at 17-19. Does it mean the employer

must compare the servings of stew given to the crew qua seamen versus the crew qua

non-seaman? Or whether all dine at the same table? Either way, the inquiry is unwieldy.

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precariously planted hundreds of feet down on the soft seabed, the liftboats’

stability is a matter of paramount importance to avoid capsizing 3 or experi-

encing “uncontrolled descent” from the jacked-up position, 46 C.F.R.

§ 134.150, a hazard that can occur from mechanical failures or unbalanced

loads on deck. Crew safety is also critical, as the loss or incapacitation of a

single crewmember may render the vessel unable to move according to Coast

Guard regulations. 4 46 C.F.R. § 15.501.

The FLSA exempts from minimum wage requirements any person

“employed as a seaman.” 29 U.S.C. § 213(b)(6). A series of regulations,

largely intact since the Act’s early days, governs the exemption. 5

29 C.F.R.§§ 783.0-783.51. Courts look to the ordinary meaning of “em-

ployed as a seaman,” which entails a functional analysis of an employee’s

work. 6 As a result, each case depends on its particular facts. Coffin v. Blessey

3

See Marine Accident Brief, Overturning of the Liftboat Kristin Faye, Nat’l Transp.

Safety Bd. (Nov. 4, 2020), https://www.ntsb.gov/investigations/AccidentReports/Rep

orts/MAB2036.pdf (detailing how a liftboat capsized as a result of the crew’s failure to

conduct adequate pre-load tests before engaging in crane operations).

4

Other regulations govern the structural standards necessary to handle adverse

conditions, 46 C.F.R. § 134.140, and the contents of a liftboat’s operating manual,

46 C.F.R. § 134.170, which, among other things, must include “[d]esigned limits for each

mode of operation” like wave height and period, wind, current, temperatures, and “[o]ther

environmental factors.”

5

In 1961, among other changes, seamen on American vessels were brought within

the Act’s minimum wage coverage, but they remain outside the overtime provision.

29 C.F.R. § 783.28. Speculation is that the differing conditions of work “between maritime

and landside labor” led to seamen’s continued exemption from overtime. Tate v. Showboat

Marina Casino P’ship, 431 F.3d 580, 584 (7th Cir. 2005) (Posner, J.).

6

See Gale v. Union Bag & Paper Corp., 116 F.2d 27, 27-28 (5th Cir. 1940) (“The

word ‘seaman’ has a plain, ordinary meaning universally applied. Whether a person is a

seaman depends upon the character of his duties. If they are maritime in character and

rendered on a vessel in commerce, in navigable waters, he is a seaman.”) (citing Int’l

Stevedoring Co. v. Haverty, 272 U.S. 50, 47 S. Ct. 19 (1926)); see also 29 C.F.R. § 783.29(b)

(“the exemption was intended to exempt employees employed as ‘seamen’ in the ordinary

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Marine Servs., Inc., 771 F.3d 276, 280 (5th Cir. 2014) (citation omitted). And

the employer bears the burden of showing employees are exempt. Faludi v.

U.S. Shale Sols., L.L.C., 950 F.3d 269, 273 (5th Cir. 2020).

All Coast argued, and the district court agreed as a matter of law, that

the plaintiffs are exempt as persons “employed as seamen,” in the ordinary

meaning of that phrase, because crane operation is integral to the mission,

transportation function, and seaworthiness of the liftboats. 7 I agree. The

regulations support All Coast’s characterization of the plaintiffs as exempt

seamen. The panel’s errors lie in (a) artificially compartmentalizing the

crewmembers’ tasks into those connected with sailing the vessels and oper-

ating the cranes and (b) analogizing liftboat crane operations to “industrial

work” like dredging.

Start with the general definition: “an employee will ordinarily be re-

garded as ‘employed as a seaman’ if he performs, . . . 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 transporta-

tion, provided he performs no substantial amount of work of a different char-

acter.” 29 C.F.R. § 783.31. More specifically, the “term ‘seaman’ includes

members of the crew such as sailors, engineers, radio operators, firemen,

pursers, surgeons, cooks, and stewards if, as is the usual case, their service is

of the type described in § 783.31. . . . However, an employee employed as a

seaman does not lose his status as such simply because, as an incident to such

meaning of that word”); Coffin v. Blessey Marine Servs., Inc., 771 F.3d 276, 281 (5th Cir.

2014) (“This reading is consistent with our own precedent in which we attempt to give the

term seaman its ordinary meaning”).

7

Ordinary Seaman Migues testified, for instance, that in operating the crane, it is

important to be mindful of environmental conditions like the weather and the sea.

ROA.2382. Other crewmembers emphasized hazards to the cargo and to personnel on both

the liftboat and the receiving platform or vessel. ROA.2408.

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employment, he performs some work not connected with operation of the

vessel as a means of transportation, such as assisting in the loading or unload-

ing of freight at the beginning or end of a voyage . . . .” 29 C.F.R. § 783.32.

The regulations continue by stating that “[m]erely because one works aboard

a vessel . . . , or may be articled as a seaman . . . , or performs some maritime

duties . . . , one is not employed as a seaman . . . unless one’s services are ren-

dered primarily as an aid in the operation of the vessel as a means of trans-

portation.” 29 C.F.R. § 783.33. Finally, the regulations specify that some

employees aboard vessels are not “employed as seamen,” for example,

“[c]oncessionaires and their employees” and those working on floating con-

struction equipment or a dredge. 29 C.F.R. § 783.34.

Fairly read, the regulations show that these plaintiffs are employed as

seamen. Sections 783.31 and 783.32 create a strong presumption that the

plaintiffs are employed as seamen because liftboat employees are crewmem-

bers of a vessel, subject to a captain’s authority, travelling on 14-day voyages

to transport goods, personnel, and equipment offshore as well as assist in oil

and gas operations. The crane operations are a sine qua non of the liftboat’s

function as a means of transportation; without the cranes, the liftboat serves

no transportive purpose. And even when the liftboat is jacked up, the crew-

members continue to have seaman responsibilities other than their crane

work. The panel’s piecemeal treatment of the plaintiffs’ duties ignores the

intimate connection between the crane work and the liftboats’ purpose as a

means of transportation. Moreover, § 783.32 deems as “seamen” those em-

ployees who bear conventional maritime titles and roles (i.e. common law

seamen), like these plaintiffs. That provision emphasizes that incidental

work like loading or unloading the vessel at the beginning or end of a voyage

does not disqualify traditional crewmembers from the seaman exemption.

Thus, even if the employees perform certain crane operations when the lift-

boat is preparing to leave port or after it arrives in port, the common law

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seamen are still exempt seamen. See, e.g., Coffin, 771 F.3d at 282-84 (holding

that vessel-based tankermen were employed as seamen when their duties in-

cluded loading and unloading the barges, a task integrally connected to the

barge’s seaworthiness). Finally, § 783.33 identifies three characteristics of

seaman’s work, none of which alone shows that a person is employed as a

seaman, but the plaintiffs and their work involve all three characteristics—

voyaging aboard the liftboats, being articled seamen, and performing mari-

time duties. In short, the plaintiffs fit squarely into the regulations’ definition

of “employed as a seaman.”

The regulations also explain types of employees who are not “em-

ployed as seamen,” and the plaintiffs are not those types. Persons not “em-

ployed as seamen,” include employees “engaged in the construction of

docks, levees, revetments, or other structures, and employees engaged in

dredging operations or in the digging or processing of sand, gravel, or other

materials.” 29 C.F.R. § 783.34. The regulations also exclude employees en-

gaged in stevedoring or longshoring activities, 29 C.F.R. §§ 783.33, 783.38,

and “concessionaires and their employees,” 29 C.F.R. § 783.34; employees

aboard vessels who are primarily engaged in performing such work are not

within the seaman exemption. 8 It is absurd to class the plaintiffs here with

those types of employees given these plaintiffs’ constant attention to the per-

formance of the liftboats qua vessels. 9 Insofar as the plaintiffs here are

8

The panel seriously erred, in my view, by analogizing this case to Owens v.

SeaRiver Maritime, Inc., 272 F.3d 698 (5th Cir. 2001), in which the plaintiffs were

land-based workers who principally removed petroleum products from moored barges, like

stevedores. Operating cranes from a liftboat at sea is entirely different from sucking

petroleum products out of docked barges.

9

Another helpful juxtaposition, explained by a sister circuit, is between the waiters

and blackjack dealers on a floating, but largely stationary, casino boat, who are not exempt

seamen, and the vessel’s “marine crew,” who, as a jury found, are exempt seamen.

Harkins v. Riverboat Servs. Inc., 385 F.3d 1099, 1104 (7th Cir. 2004).

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articled seamen, undertaking voyages at the captain’s command, and respon-

sible for the vessel, their duties manifestly include the vessel’s safe operation

when discharging cargo or personnel, regardless whether the liftboat is posi-

tioned on the seabed or moored near the receiving platform.

Read holistically, the regulations do not preclude considering plain-

tiffs’ crane operation as part of their overall seaman’s duties; factually, there

is more than enough to consider those operations as integral to the liftboats’

transportation function. After all, if the cargo cannot be delivered at sea, the

liftboat has no role. As a result, the panel’s focus on the plaintiffs’ contention

that they spent more than 20 percent (and allegedly up to 90 percent) of their

workday aboard the liftboats operating the cranes is misplaced. And anyway,

that contention arises from self-serving deposition testimony and is subject

to further examination at trial. 10

The panel’s decision is novel. Research has not uncovered a single

case in which a blue-water crewmember, like the articled-mariner plaintiffs

here, was held not to be an exempt seaman. The regulations in fact presume

that crewmembers are “ordinarily” exempt seamen and may perform inci-

dental loading or unloading activities while maintaining that status.

29 C.F.R. §§ 783.31, 783.32. The panel’s analysis thus stands in serious ten-

sion with a reasonable and holistic interpretation of FLSA regulations. More-

over, this decision has far-reaching consequences for the liftboat industry.

The panel appears to allow workers to walk in and out of FLSA exempt status

10

Moreover, the regulation from which the 20% guideline derives,

29 C.F.R. § 783.37, concerns the amount of work per week that may be deemed substantial

“non-seaman’s work” for the government’s “enforcement purposes.” Id. So, as the panel

seems to agree, the 20 percent guideline is just that, a guideline. Ante, at 18.

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and thereby necessitates detailed and, frankly, meaningless timekeeping or-

deals aboard ship. 11

One may reply to this dissent that the regulations are the regulations,

and a “textual” approach is all that matters. But, of course, what text matters

most is the question here. In dissenting, I rely on the fact-specific approach

and careful delineation of exceptions to the seaman exemption that the regu-

lations embody. Moreover, if the result of the panel’s narrow “textual” read-

ing of these regulations is to splice and dice the seaman exemption into por-

tions of “seaman” and “non-seaman” work within the space of each voy-

age—then the exemption is practically worthless.

That this case will go to a jury for ultimate resolution of the exemption

offers some comfort, perhaps, to All Coast, but to the maritime industry as a

whole, legitimate and longstanding expectations as to the FLSA’s seaman ex-

emption have been upended. I respectfully dissent from the failure to rehear

this case en banc.

11

For instance, the regulations plainly state that loading or unloading can be

incidental to bona fide exempt seaman status, 29 C.F.R. § 783.32, but where does the panel

opinion leave an employer? Can loading or unloading be seaman work unless it is unloading

material onto an offshore platform, at which point it becomes non-exempt “industrial”

work? Or, though loading or unloading work at the platform can be seaman work, is using

cranes to hold coil tubing units or lower divers into the water to retrieve equipment never

seaman work? If the latter is the panel approach, would that not require a granular

assessment of the relative percentages of “industrial” crane work versus “incidental”

loading or unloading? From a larger perspective, must the crane work be accounted for

daily, weekly, or on a voyage-by-voyage basis? And how, under any of these scenarios, will

the employer reasonably be able to comply with the FLSA other than to ignore the seaman

exemption?

27