Petition for Writ of Certiorari — Tidewater Marine Service, Inc. v. Aubry
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() Supreme Court, U.S,
a1eL 42 FILED
} YUL 17 199)
No. } GFEIGE OF THE CLERK |
Fett mate eee
In the Supreme Court
OF THE
United States
OCTOBER TERM, 1991
TIDEWATER MARINE SERVICE, INC.
and WESTERN Bo*T OPERATORS, INC.,
Petitioners,
VS.
LLoyD W. AUBRY, JR., STATE OF CALIFORNIA
LABOR COMMISSIONER, AND DIVISION OF LABOR
STANDARDS ENFORCEMENT, STATE OF CALIFORNIA
DEPARTMENT OF INDUSTRIAL RELATIONS,
Respondents.
On Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit
PETITION FOR WRIT OF CERTIORARI
MICHAEL M. JOHNSON
Counsel of Record
SHELDON A. GEBB
Lisa F. HINCHLIFFE
BAKER & HOSTETLER, MCCUTCHEN BLACK
600 Wilshire Boulevard
Los Angeles, California 90017
(213) 624-2400
Attorneys for Petitioners
Bowne of Los Angeles, Inc., Law Printers. (213) 627-2200.
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QUESTIONS PRESENTED
Respondents, labor law enforcement officials for the
State of California, have attempted to regulate the maxi-
mum working hours of seamen serving on petitioners’
United States documented vessels operating on the high
séas and within state territorial waters off the coast of
California. Respondents have based their authority on a
general state regulation which addresses the maximum
hours of work for land-based employees. The questions for
review are:
1. Are respondents’ actions preempted by the express
exemption of seamen from land-based maximum hour
standards, as set forth in Section 13(b) (6) of the Fa'r
Labor Standards Act, interpretive regulations adopted by
the Department of Labor, and decisions by the Courts of
Appeals?
2. Are respondents’ actions preempted by the constitu-
tional requirement of uniformity of federal admiralty law,
as set forth in this Court’s decisions in cases such as
Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917), Knick-
erbocker Ice Co. v. Stewart, 253 U.S. 149 (1920), and
similar decisions by the Courts of Appeals?
3. Under this Court’s decisions in cases such as Oil
Workers v. Mobil Oil Corp., 426 U.S. 407 (1976), and
Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207 (1986),
may respondents regulate the maximum hours of work for
seamen whose predominant worksite is on the high seas
beyond state territorial waters?
ii
LIST OF PARTIES
The parties in the trial and appellate proceedings below
were Tidewater Marine Service, Inc., and Western Boat
Operators, Inc. (appellees and plaintiff-intervenors);
Lloyd W. Aubry, Jr., Labor Commissioner of the State of
California, and Division of Labor Standards Enforce-
ment, Department of Industrial Relations of the State of
California (appellants and defendants); and Pacific
Merchant Shipping Association, American Institute of
Merchant Shipping, Offshore Marine Service Association,
Western Oil & Gas Association, and Clean Seas Associa-
tion (appellees and plaintiffs).
Petitioners in this Court are Tidewater Marine Service,
Inc., and Western Boat Operators, Inc. (collectively re-
ferred to as “Tidewater”). Respondents are Lloyd W.
Aubry, Jr., Labor Commissioner of the State of Califor-
nia, and Division of Labor Standards Enforcement, De-
partment of Industrial Relations of the State of
California (collectively referred to as “Aubry’’). The
remaining parties in the lower proceedings have not been
named as respondents in this Court, as their interests are
not adverse to ours, and we understand they will be filing
their own separate petition for certiorari pursuant to
Rule 19.4.
RULE 28.1 LIST OF RELATED CORPORATIONS
Petitioners Tidewater Marine Service, Inc. and West-
ern Boat Operators, Inc. are wholly-owned corporate
subsidiaries of Tidewater, Inc., a corporation whose stock
is publicly traded. Although Tidewater, Inc. has a number
of other subsidiary corporations related to petitioners,
they are all wholly-owned subsidiaries.
ili
TABLE OF CONTENTS
QUESTIONS PRESENTED...................
|
EE ee a
STATUTES AND REGULATIONS INVOLVED
STATEMENT OF THE CASE.................
I.
ee
II.
sees ob hen es ok ook ooo vane,
Il.
ss
THE NINTH CIRCUIT MAJORITY OPINION
APPLIES AN ADMIRALTY PREEMPTION
ANALYSIS THAT CONFLICTS WITH DECI-
SIONS OF THIS COURT AND THE COURTS
SEIS EE se ee
A. The Ninth Circuit Majority Opinion Con-
flicts with Jensen’s Requirement of Maritime
ee ee
Co Ww bk =
1]
15
16
16
iv
TABLE OF CONTENTS
&
B. The Ninth Circuit Majority Opinion Incor-
rectly Requires Express Congressional In-
tent to Preclude State Regulation ........ 18
C. The Ninth Circuit Majority Opinion Incor-
rectly Applies a More Lenient Preemption
Standard to Maritime Operations in Local
aera eye ane rr ee rrr 21
D. The Ninth Circuit Majority Opinion Creates
Unprecedented and Expansive Powers for
State Regulation of Maritime Activity on the
Se Pree tr eee rT eee ee ee 22
II.
THIS CASE INVOLVES IMPORTANT ISSUES
AFFECTING FEDERAL ADMIRALTY LAW
AND THE MARITIME INDUSTRY.......... 24
A. The Ninth Cireuit Majority Opinion Will
Have Great Impact in the Maritime Industry 24
B. The Ninth Cireuit Majority Opinion Will
Create Confusion and Uncertainty ........ 27
CE sv vc ch cs vees een vavsrsecenvseves 30
PS og 0: Peer rrr rrr Te rrr Tet oe A-1, -90
v
TABLE OF AUTHORITIES
Cases
Agsalud v. Pony Express Courier Corp., 833 F.2d
I oo cha ebaseaudeawer ees
Anderson v. Manhattan Lighterage Corp., 148 F.2d
971 (2d Cir.), cert. denied, 326 U.S. 722 (1945)
Askew v. American Waterways Operators, Inc., 411
ee EE on os Ss oe ee See ee
Bender v. Waterman 8.S. Corp., 69 F.Supp. 15
SS os oo 00s os4550 2 Oi eed ehawns
Bethlehem Steel Co. v. New York State Labor Rela-
tions Board, 330 U.S. 767 (1947).............
Bunn v. Global Marine, Inc., 428 F.2d 40 (5th Cir.
PO PEs 3 oie bck ce dicks ae
C.M. Rousseau, Jr. v. Teledyne Movable Offshore,
Inc., 619 F.Supp. 1513 (D. La. 1985) rev’d in
part on other grounds, 805 F.2d 1245 (5th Cir.
1986), cert. denied, 484 U.S. 827 (1987) ......
Donovan v. Nekton, Inc., 703 F.2d 1148 (9th Cir.
PE Sika se ke be Nok Caen eee
Huron Portland Cement Co. v. Detroit, 362 U.S. 440
SS ok bie t0G ai wien bee en eras
Jones v. American Export Isbrandtsen Lines, Inc.,
285 F.Supp. 345 (S.D.N.Y. 1968) ............
Kane v. American Tankers Corporation of Delaware,
219 F.2d 687 (2d Cir. 1955) .............20..
Knickerbocker Ice Co. v. Stewart, 253 U.S. 149
SK N65s2e he OceaaekeseneCaaeeee: i, 10,
Kossick v. United Fruit Co., 365 U.S. 731 (1961)
e
13
20
24
13, 18
17, 22
vi
TABLE OF AUTHORITIES
CASES
Page
London Co. v. Industrial Commission, 279 U.S. 109
Ss diva. ude ek ale Woe eee Ree eR ween 21
Lord v. Goodall, 102 U.S. 541 (1881) ........... 18, 21
Lowrimoore v. Union Bag & Paper Co., 30 F.Supp.
647 (S.D. Ga. 1939), aff'd, 116 F.2d 27 (5th Cir. &
1940), cert. denied, 313 U.S. 559 (1941) ...... 4
Miles v. Apex Marine Corp., ___. U.S. ——_, 111
S.Ct. 317, 112 L.Ed.2d 275 (1990) ........... 16
Moragne v. States Marine Lines, Inc., 398 U.S. 375
ES ia in oe a Shs Obs Osea eae ete 16, 21
Napuier v. Atlantic Coast Line, 272 U.S. 605 (1926) 19
Norfolk & Western Ry. v. Pub. Utilities Comm., 926
oun ee Cee GC BOGE) 5 co.cc cine wececenctens 19
Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207
RSS i d0o de dese waaale ceed i, 11, 13, 17, 23, 24
Oil Workers v. Mobil Oil Corp., 426 U.S. 407
Ds ui dokvucuadebduuseeuueeaeeeee i, 10, 22, 23, 24
Ray v. Atlantic Richfield Co., 435 U.S. 151
EN itcue sae rn banka sheen eenese ae 17, 19, 24
Smith v. Reinauer Oil Transport, 256 F.2d 646 (1st
- | errr ey rer are 6
Southern Pacific Co. v. Jensen, 244 U.S. 205
SPC rr rere er ee. i, 11, 13, 17, 18
Southern Steamship Co. v. N.L.R.B., 316 U.S. 31
PE Cb esecvedcesvueeesedessoeeeiee 21
State of Washington v. W. C. Dawson & Co., 264 U.S.
Be GEN 6 66 6c cccvesiesssetesaneseauneies 17
The Carrer Dove, 98 F. 313 (D. Wash. 1899).... 6
|
Vil
TABLE OF AUTHORITIES
CASES
Page
The Lakme, 93 F. 230 (D. Wash. 1899) ......... 6
The Lottawanna, 88 U.S. 558 (1874) ............ 16, 17
The Youngstown, 28 F.Supp. 197 (E.D. La. 1939),
aff'd, 110 F.2d 968 (5th Cir. 1940) ........... 5
Union Fish Co. v. Erickson, 248 U.S. 308 (1919).. 18, 22
United States v. California, 332 U.S. 19 (1947)... a]
Walling v. Keansburg Steamboat Co., 162 F.2d 405
a ee eke eek 4
Weaver v. Pittsburgh Steamship Co., 153 F.2d 597
(6th Cir.), cert. denied, 328 U.S. 858 (1946)... 4
Worthington v. Icicle Seafoods, Inc., 774 F.2d 349
(9th Cir. 1984), vacated on other grounds, 475
Sy EY tote cerecaskeyaeecebes eyes 20
Statutes
Alaska Statutes, Sec. 23.10.060 ................ 5, 29
California Code of Regulation, Title 8
Sees. 11010-11150, FB(A) ...... cc ccccceces 29
Ee eee 3, 6, 7, 26, 28
California Labor Code
NE a rer a ga 7
oe an eae bape wa aes e eee
Code of Federal Regulations, Title 29
ics Sac vakeueseubenenee es 4
I sn os encheceh¥eeeebuwue ess 3, 20
1989 Connecticut Pub. Acts No. 89-24 (Reg. Sess.) 5
Vili
TABLE OF AUTHORITIES
STATUTES
Page
Fair Labor Standards Act
ee ee ee eee. eee 20
RS il ORs ee oath a ae passim
ge | REESE TA eet mame Nr eae sage keg gly 22
As ee a ed Ot Ba 20
tee Oe oa a ine ba a ay ae Ue Cb is 12
Kansas Statutes Annotated, Sec. 337.050 ....... 4,5
Hawaii Revised Statutes, Sec. 387-3(a) ......... 4
Maine Rev. Statutes Annotated, Title 26, Sec. 664 4
Massachusetts, General Laws Annotated, ch. 151,
Minnesota Statutes, Sec. 177.23(7) (1)-(19) .... 4
North Carolina General Statutes, Sec. 95-25.14(c) 4
Oregon Revised Statutes, Sec. 653.261.......... 29
Pennsylvania Minimum Wage Act, Sec. 5(b) .... 4
United States Code, Title 28
i A adic deca e hae Ab eweeewe aes es 2
ON ae i ee ewe gene 6 on ee eae ee 2
I Ea nn oa soa odes wen Cade kaw eas 2
Ne er a baie. eco oabes Wel 2
oe See a eee ee ae 2
United States Code, Title 46
RE SP Re aera ee a eo 6
ee ied ee eee ee Re ee Cee 9
er SOLE Foe a aaah ae 23
ix
TABLE OF AUTHORITIES
STATUTES
Page
EA Reider ee re rn, a ene 6, 12, 29
ee ee Cn gk oy wb ee 26
United States Code, Title 49, Secs. 31001-04 .... 13
United States Constitution, Art. I1I, See. 2., el. 1 16
Washington Revised Code,
eee aged aes 29
A re 5
ee go i ads eaaee sake eeu ss 6
52 Stat. 1067, See. 13(a) (3), c. 676 (1938) ..... 3
75 Stat. 71, Sees. 9 & 10 (1961) ............... 3
Textbooks and Articles
Friedell, Benedict on Admiralty, § 112, p. 7-37 ... 19
Currie, Federalism and the Admiralty: “The Devil’s
Own Mess,”’ 1960 Sup. Ct. Rev. 158 (1960) .... 25
G. Gilmore and C. Biack, The Law of Admiralty,
eo Fe FF. ee ene 21
Ruhl, Finding Federalism in the Admiralty: ‘The
Devil’s Own Mess’ Revisited, 12 Tul. Maritime
ee I og 0x GS eae ea 6k we arene 20% 25
1 Norris, The Law of Seamen, § 6:1 (4th ed. 1985) 5
Miscellaneous
Hearings on S. 256, 8S. 879, 8. 895 and Bills Amend-
ing the FLSA Before the Subcomm. on Labor of the
Senate Comm. on Labor and Public Welfare, 87th
Cong., Ist Sess. 376-379 (1961).............. 4
x
TABLE OF AUTHORITIES
MISCELLANEOUS
Hearings on 8. 2475 and H.R. 7200 Before the
Senate Comm. on Education and Labor and the
House Comm. on Labor, 75th Cong., lst Sess.
ee ae eo Cees bau e ss
S. Rep. No. 145, 87th Cong., Ist Sess. 32-33 (1961)
U.S. Dept. of Labor, Bureau of Labor Statistics,
Employment, Hours & Earnings, United States,
1909-90 (Bull. 2370, March 1991) at pp. 706-707
U.S. Dept. of Labor, Bureau of Labor Statistics,
Employment & Wages Annual Averages 1989
(Bull. 2373, October 1990), at pp. 326-331 ....
z
4, 20
27
24
No.
In the Supreme Court
OF THE
United States
OCTOBER TERM, 1991
TIDEWATER MARINE SERVICE, INC.
and WESTERN BoaT OPERATORS, INC.,
Petitioners,
Vs.
LLOYD W. AUBRY, JR., STATE OF CALIFORNIA
LABOR COMMISSIONER, AND DIVISION OF LABOR
STANDARDS ENFORCEMENT, STATE OF CALIFORNIA
DEPARTMENT OF INDUSTRIAL RELATIONS,
Respondents.
On Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit
PETITION FOR WRIT OF CERTIORARI
Petitioners Tidewater Marine Service, Inc., and West-
ern Boat Operators, Inc. (collectively ‘“Tidewater’’) re-
spectfully pray that a writ of certiorari issue to review the
judgment and opinion of the United States Court of
Appeals for the Ninth Circuit entered in this proceeding
on November 13, 1990.
2
OPINIONS BELOW
The majority and dissenting opinions of the Ninth
Cireuit Court of Appeals are reported at 918 F.2d 1409
and are reprinted in the Appendix at A-1.
The opinion of the United States District Court for the
Central District of California is reported at 709 F.Supp.
1516 and is reprinted in the Appendix at A-46.
JURISDICTION
The District Court’s jurisdiction was based upon 28
U.S.C. $1331 (federal question), § 1332 (diversity of
citizenship) and §1333(1) (admiralty). On March 1,
1989, the District Court granted petitioners’ motion for
summary judgment and entered declaratory and injunc-
tive relief which prohibited respondents from enforcing
state overtime regulations against seamen and maritime
workers employed on the high seas and state territorial
waters.
Respondents appealed the District Court’s judgment
pursuant to 28 U.S.C. § 1291 (final decisions). On Novem-
ber 13, 1990, the Ninth Circuit entered its judgment and
majority opinion reversing the District Court, with a
separate dissenting opinion. Petitioners filed a timely
petition for rehearing and suggestion for rehearing en
bane on November 27, 1990. The petition for rehearing
was denied by the Ninth Circuit on May 28, 1991. See
Appendix at A-45.
Petitioners invoke this Court’s jurisdiction under 28
U.S.C. § 1254(1) by praying for a writ of certiorari to
review the judgment and opinion of the Ninth Circuit.
3
STATUTES AND REGULATIONS INVOLVED
Section 13(b) (6) of the Fair Labor Standards Act, 29
U.S.C. §213(b) (6), exempts seamen from land-based
maximum hour and overtime standards. It reads:
“The provisions of section 7 of this title [relating
to maximum hours and overtime compensation] shall
not apply with respect to —
”
(6) any employee employed as a seaman....
California Wage Order 4-80, 8 Cal. Code Regs. § 11040,
regulates wages, hours and working conditions for profes-
sional, technical, clerical, mechanical and similar occupa-
tions. It is reprinted in the Appendix at A-68.
STATEMENT OF THE CASE
I.
BACKGROUND
Since the beginning of minimum wage, maximum hour
and overtime laws more than fifty years ago, federal law
has expressly exempted seamen from statutory overtime
requirements. This principle is embodied in Sec-
tion 13(b)(6) of the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 213(b) (6), a provision which
Congress examined twice in extensive legislative hearings
conducted in 1937 and 1961.’ The seamen’s exemption has
‘The FLSA originally exempted seamen from both minimum wage
and overtime provisions. 52 Stat. 1067 § 13(a) (3), c. 676 (1938). In
1961 Congress amended the FLSA to apply the minimum wage to
seamen, but it continued their overtime exemption. 75 Stat. 71, §§ 9 &
10 (1961). During both legislative sessions, Congress recognized the
overtime exemption was appropriate because of the variable and
4
been refined by interpretive regulations issued by the
Department of Labor, 29 C.F.R. §§ 783.29 et seg., and by
federal case law.
Federal cases and the FLSA legislative history have
described two reasons for the longstanding exemption for
seamen: (1) the pervasive degree of federal regulation
which already exists over seamen’s working conditions,
hours of work, compensation and benefits, and (2) the
variable and unpredictable nature of a seaman’s workday,
which does not lend itself to the rigid eight hour a day
work standards inherent in land-based overtime
regulations.”
unscheduled working hours of seamen and the existing regulation of
seamen’s working conditions by federal maritime agencies. E£.9.,
Hearings on S. 2475 and H.R. 7200 Before the Senate Comm. on
Education and Labor and the House Comm. on Labor, 75th Cong., 1st
Sess. 544-549 (1937); Hearings on S. 256, 8. 879, 8. 895 and Bills
Amending the FLSA Before the Subcomm. on Labor of the Senate
Comm. on Labor and Public Welfare, 87th Cong., 1st Sess. 376-379
(1961); S. Rep. No. 145, 87th Cong., 1st Sess. 32-33 (1961). See also,
29 C.F.R. § 783.0 et seg. (discussing the FLSA legislative history).
*E.g., Lowrimoore v. Union Bag & Paper Co., 30 F.Supp. 647, 652
(S.D. Ga. 1939), aff’d, 116 F.2d 27 (5th Cir. 1940), cert. denied, 313
U.S. 559 (1941) (“A valid reason which seems to justify leaving
seamen out of the effects of this Act is the practical difficulty of
establishing by any,satisfactory evidence what were their hours of
work, when they as employees were always or nearly always subject to
call, though a large and indeterminate portion of their time was not
occupied with work.”); Walling v. Keansburg Steamboat Co., 162 F.2d
405, 407 n.6 (3d Cir. 1947) (“Seamen were exempted from operation
of the Fair Labor Standards Act of 1938 so as to avoid conflict of
jurisdiction and confusion of labor relations.”’); Anderson v. Manhat-
tan Laghterage Corp., 148 F.2d 971, 973 (2d Cir.), cert. denied, 326
U.S. 722 (1945) (same holding); Weaver v. Pittsburgh Steamship Co.,
153 F.2d 597 (6th Cir.), cert. denied, 328 U.S. 858 (1946) (noting
that maritime unions strongly advocated the seamen’s exemption to
)
Because of this extensive body of federal law, the
seamen’s exemption from maximum hour and overtime
standards has become a firmly established fixture of
admiralty law. With the exception of California, every
state has followed and respected the federal overtime
exemption for seamen. Ten of the states have done so by
express statutory provisions which largely incorporate
Section 13(b) (6) of the FLSA.®
Although seamen’s overtime compensation has been
expressly excluded from labor law statutes, the subject
has long been addressed by federal admiralty law. From
the very beginning of our nation’s history, the terms and
conditions of seafaring work have been governed by the
employment agreement between master and seaman, as
enforced and interpreted by federal law.* Seamen's over-
time compensation has accordingly been treated as a
matter of contract between master and seaman.” And
when a seaman performs duties beyond the working
avoid confusion in jurisdiction and labor relations concerning mari-
time employees).
"Alaska Stat. § 23.10.060; 1989 Connecticut Pub. Acts No. 89-24
(Reg. Sess.); Hawaii Rev. Stat. §387-3(a); Kansas Stat. Ann.
§ 337.050; Maine Rev. Stat. Ann., tit. 26, § 664; Massachusetts Gen.
Laws Ann., ch. 151, §$1A; Minnesota Stat. § 177.23(7) (1)-(19);
North Carolina Gen. Stat. 95-25.14(c); Pennsylvania Min. Wage Act
§5(b); Washington Rev. Code. § 49.46.130(1).
*E.g., Bunn v. Global Marine, Inc., 428 F.2d 40, 46 (5th Cir. 1970); 1
Norris, The Law of Seamen § 6:1 (4th ed. 1985).
°The Youngstown, 28 F.Supp. 197, 199 (E.D. La. 1939), aff’d, 110
F.2d 968, 970 (5th Cir. 1940); Jones v. American Export Isbrandtsen
Lines, Inc., 285 F.Supp. 345, 346-47 (S.D.N.Y. 1968); Kane v. Ameri-
can Tankers Corporation of Delaware, 219 F.2d 637, 639 (2d Cir.
1955); C.M. Rousseau, Jr. v. Teledyne Movable Offshore, Inc., 619
F.Supp. 1513, 1518-19 (D. La. 1985), rev’d in part on other grounds,
805 F.2d 1245 (5th Cir. 1986), cert. dented, 484 U.S. 827 (1987); see
6
period specified by contract, admiralty law recognizes an
absolute right to fair compensation for the overtime
performed.®
In addition, the Coast Guard regulates the maximum
hours of work and specific working conditions of seamen
serving on United States documented vessels. Following
the standards set forth in the Shipping Act, the Coast
Guard issues Certificates of Inspection which specify
crewing requirements and the maximum hours of work at
sea and in harbor conditions.’ In the District Court
proceedings, the Coast Guard Officer formerly in charge
of the Southern California area submitted an undisputed
declaration which described the Coast Guard’s concern
for the working conditions and maximum hours of work
for seamen serving on United States documented vessels.”
Il.
THE FACTS
This case arose in 1987, when California’s labor law
enforcement officials, Labor Commissioner Lloyd W.
Aubry, Jr. and the Division of Labor Standards Enforce-
also, Smith v. Reinauer Oil Transport, 256 F.2d 646, 652 (lst Cir.
1958).
°The Lakme, 93 F. 230, 231-32 (D. Wash. 1899); Bender v. Water-
man 8.8. Corp., 69 F.Supp. 15, 19 (E.D.Penn. 1946); The Carrier
Dove, 98 F. 313, 314 (D. Wash. 1899).
46 U.S.C. §§ 8101 & 8104. Section 8104 is a recodification of 46
U.S.C. § 673, which was first enacted in 1915. See ch. 153, § 2, 38 Stat.
1164 (1915).
"Declaration of Captain Robert A. Janecek, USCG (Ret.), 31 CR
15-23. The declaration is reprinted in the Appendix at A-86.
7
ment (collectively “Aubry”)*® departed from the uniform
practice of excluding seamen from overtime statutes.
Aubry made this change by applying California Wage
Order 4-80, 8 Cal. Code Regs. § 11040, to maritime em-
ployers operating in the Santa Barbara Channel off the
coast of California.
Wage Order 4-80 says nothing about seamen, maritime
workers or any other employees even remotely connected
with the sea. It is instead a general regulation which
applies to “professional, technical, clerical, mechanical
and similar occupations,” the definition for which is
restricted to land-based employees such as accountants,
clerks, librarians, dental technicians and secretaries. See
8 Cal. Code Regs § 11040 § 2(c), Appendix at A-69-70.
Aubry first applied Wage Order 4-80 to maritime em-
ployees working for Clean Seas Association (‘‘Clean
Seas”). Clean Seas is an unincorporated association
formed by major oil companies to contain and clean up
marine oil spills in the Santa Barbara Channel. It oper-
ates three United States documented vessels which are
crewed by officers and seamen licensed and certificated
under federal law. One of the vessels is permanently
stationed on a buoy approximately seven miles off the
California coast, and the other two operate between local
*Under California law, the Labor Commissioner is the chief officer
of the Division of Labor Standards Enforcement. The Division has
authority to investigate employee complaints concerning wages,
hours and working conditions, and to resolve the complaints through
informal administrative hearings held by deputy labor commission-
ers. Cal. Lab. Code §§ 79-105. Neither the Labor Commissioner nor
the Division establish the state’s minimum wage and maximum hour
regulations, however. That function is performed by a separate
agency, the Industrial Welfare Commission, which adopts Wage
Orders through public rulemaking proceedings. Cal. Lab. Code
§$§ 1173-1182.1.
8
harbors and the high seas. Crew members live on board
the Clean Seas vessels, serving approximately seven days
on duty followed by seven days off.
In 1987 Aubry accepted overtime claims from twelve
crew members of the Clean Seas vessels, rejecting Clean
Seas’ argument that Aubry’s jurisdiction was preempted
by federal admiralty law. In early 1988 Aubry issued
overtime awards in favor of all the Clean Seas crew
members, totaling $795,789.77. At the rate awarded, each
crew member would have been entitled to approximately
$70,000 in annual compensation.
Shortly after the award against Clean Seas, respondent
Aubry accepted an overtime claim against Tidewater.
Tidewater is a maritime firm which provides offshore
transportation and support services throughout the
world, and since 1964 it has provided crew and supply
boat services to oil drilling platforms off the coast of
California.
Tidewater’s crew and supply vessels operate on the
high seas and within state territorial waters.° In the
Santa Barbara Channel, Tidewater provides transporta-
tion services to a number of oil drilling platforms lying
from one to twelve nautical miles off the coast. This
involves traditional seafaring activity and travel between
the platforms and local harbors and from platform to
platform. Tidewater’s supply boats are 180 to 190 foot
vessels and its crew boats are 65 foot vessels; both are
The United States exercises territorial rights over coastal waters
up to three nautical miles from the low-water mark. The states may
exercise limited police power functions within the territorial zone off
their coasts, but the federal government has paramount rights and
powers over the territorial seas. United States v. California, 332 U.S.
19 (1947).
9
equipped with a galley and living quarters for the crew.
The vessels are on call twenty-four hours a day, resulting
in work periods that are unscheduled and extraordinarily
variable.
Crews on Tidewater’s supply and crew vessels gener-
ally work a schedule consisting of seven days on duty
followed by seven days off, and their duty periods corre-
spond with manning requirements specified in the Ship-
ping Act and the Coast Guard Certificates of Inspection.
Although these duty periods often exceed eight hours in a
twenty-four hour period, this reflects the fact that vessels
are often inactive while waiting for a work assignment
from platform operators. During these periods of inactiv-
ity, the vessel is docked or moored and crew members
may sleep, eat, read, or otherwise engage in their own
activities.
Tidewater’s vessels and employees are subject to perva-
sive and uniform federal regulations. All of the vessels
are federally documented, all masters are licensed by the
Coast Guard, and all erew members have Merchant Mari-
ner documents issued by the Coast Guard. Tidewater’s
vessels are inspected by the Coast Guard, which issues
Certificates of Inspection specifying the manning require-
ments for twenty-four hour operation (including the num-
ber of crew and their maximum hours of work), the
geographic area of operation, passenger or cargo limita-
tions, and safety requirements. The Coast Guard also
requires Tidewater to file monthly Certificates of Sea-
man’s Service, describing the hours and capacity of work
performed by each crew member.
Tidewater’s crew members have the full range of pro-
tection and welfare benefits provided exclusively to
seamen under federal admiralty law. They may seek
recovery for injuries under the Jones Act, 46 U.S.C. § 688,
10
or for breach of the owner’s duty to provide a seaworthy
vessel, and they receive maintenance and cure benefits for
illness or injury suffered during their period of service.
Throughout the twenty-four year period of Tidewater’s
operations in California, Tidewater’s crew members have
had employment agreements which provided for a flat
daily rate of pay without overtime compensation. A daily
rate of pay is the traditional method of compensating
seamen used by Tidewater and other offshore maritime
firms on United States documented vessels throughout
the world, reflecting the variable hours of work by seamen
and the prolonged periods of inactivity during a workday.
The administrative proceedings concerning Tidewater
arose in February 1988, when Aubry accepted a complaint
for overtime compensation filed by Frank Kleman in
Santa Barbara. Kleman was employed as a deckhand on
Tidewater’s vessels in the Santa Barbara Channel under
an employment agreement providing for a daily rate of
pay without overtime compensation. Like Tidewater’s
other crew members, Kleman was a traditional seaman
who held Merchant Mariner documents issued by the
Coast Guard and enjoyed all seamen’s benefits and pro-
tections afforded by federal law.
Aubry sought overtime compensation of approximately
$50,000 for Kleman, covering one year of his employment
with Tidewater. Since Kleman’s annual earnings with
Tidewater were about $25,000, the overtime represented
two times his annual pay. As in the case of the complaint
against Clean Seas, Aubry asserted jurisdiction over
Tidewater on the basis of Wage Order 4-80. Tidewater
made a timely motion to dismiss Kleman’s overtime com-
plaint on the ground of federal admiralty preemption,
which Aubry denied. However, Aubry agreed to stay all
11
proceedings on the claim by Kleman (as well as other
seamen) after Tidewater filed its complaint in this action.
Ill.
THE PROCEEDINGS BELOW
This action was filed in February 1988 by Clean Seas
and several maritime trade associations concerned about
Aubry’s effort to regulate seamen. Plaintiffs’ complaint
sought declaratory and injunctive relief on the ground
that Aubry’s jurisdiction over seamen and maritime em-
ployees was preempted by federal admiralty law. The
District Court permitted Tidewater to join in the action
as a plaintiff-intervenor in June 1988.
Following cross-motions for summary judgment by the
parties, the District Court (Judge A. Wallace Tashima)
granted summary judgment in favor of Tidewater and the
Clean Seas plaintiffs on March 1, 1989. The District Court
declared that Aubry’s jurisdiction over seamen was pre-
empted by federal admiralty law and it issued a perma-
nent injunction which prohibited Aubry from enforcing
overtime regulations against seamen or maritime
employees.
In reaching this result, the District Court followed the
constitutiona] requirement of a uniform system of admi-
ralty law, citing this Court’s decisions in Southern Pacific
Co. v. Jensen, 244 U.S. 205 (1917), Knickerbocker Ice Co. v.
Stewart, 253 U.S. 149 (1920), Oil Workers v. Mobil Oil
Corp., 426 U.S. 407 (1976), and Offshore Logistics, Inc. v.
Tallentire, 477 U.S. 207 (1986). The District Court found
that such uniformity was impossible because state and
federal law “produce widely differing results” when ap-
plied to the seamen involved in this case. 709 F.Supp. at ~
1524, Appendix at A-61.
12
The District Court rejected Aubry’s argument that
state regulation of seamen was permitted by Sec-
tion 18(a) of the FLSA, 29 U.S.C. § 218(a), a savings
clause which permits states to enact a higher minimum
wage or lower maximum workweek than federal law. The
District Court held that Aubry’s attempt to regulate
overtime compensation for seamen impaired maritime
uniformity because it squarely conflicted with the purpose
and overall scheme of the seamen’s exemption under the
FLSA:
“Congress has spoken directly on the issue of
overtime pay for seamen. Therefore, California labor
laws are preempted to the extent that they presume
to regulate FLSA exempt seamen, both on the high
seas and within the territorial zone. Further, given
Congress’ exemption of these seamen from even mini-
mal federal overtime provisions, it would be at odds
with the federal scheme to permit the states to
enforce stricter overtime provisions via the FLSA’s
savings clause.” 709 F.Supp. at 1525; Appendix at
A-64.
The Ninth Circuit reversed the District Court on No-
vember 13, 1990, issuing a majority opinion (by Judges
Harry Pregerson and James R. Browning) and a separate
dissenting opinion (by Senior Judge William P. Copple,
sitting by designation). Unlike the District Court, the
Ninth Cireuit applied an unusually rigorous preemption
standard, requiring evidence of a “clear and manifest
purpose of Congress” to preclude state regulation. 918
F.2d at 1416, Appendix at A-11 (emphasis in original).
The Ninth Circuit’s majority opinion found that
Aubry’s application of Wage Order 4-80 created maxi-
mum hour standards that differed sharply from those set
forth in the Shipping Act, 46 U.S.C. § 8104, and enforced
13
by the Coast Guard. Nevertheless, the majority turned to
an earlier Ninth Circuit decision involving a non-maritime
conflict between state overtime laws and the Motor Car-
rier Act, 49 U.S.C. §§ 3101-04." Relying on that decision,
the majority held that Aubry’s actions were not pre-
empted because it was technically possible for Tidewater
and Clean Seas to comply with both sets of laws. 918 F.2d
at 1416-17, Appendix at A-13-14.
Like the District Court, the Ninth Circuit majority
found a conflict between Aubry’s regulations and the
seamen’s exemption under the FLSA. But the majority
held that preemption was improper because there was no
evidence that Congress had expressly prohibited state
overtime regulation of seamen:
“At no time has Congress expressly prohibited
states from applying their overtime laws to seamen.
Further, PMSA and Tidewater point to nothing in
the legislative history of § 213(b) (6)— either in the
1938 act or in the 1961 amendments to the
FLSA — that suggests that Congress intended to
preclude application of state overtime provisions to
seamen. Our review of legislative history has re-
vealed no such congressional intent.” 918 F.2d at
1418, Appendix at A-16 (footnote omitted).
The Ninth Circuit majority also considered whether the’ -
conflict between state and federal overtime standards
violated the requirement of maritime uniformity de-
scribed in this Court’s decisions in Jensen, supra, 244 U.S.
at 216, Knickerbocker, supra, 253 U.S. at 164, and Tallen-
tire, supra, 477 U.S. at 228. The majority rejected the
District Court’s analysis and concluded that the federal
"4gsalud v. Pony Express Courier Corp., 833 F.2d 809 (9th Cir.
1987).
a
—————EEeeerr |
14
scheme of maritime regulation and interest in maritime
uniformity were cutweighed by California’s interest in
regulating seamen. In so holding, the majority once again
pointed to Congress’ failure to expressly prohibit state
regulation of seamen and to the local nature of the
maritime activity involved in this case:
“There is no indication that Congress, in enacting
the FLSA’s savings clause, intended to preempt
states from according more generous protection to
maritime employees on the high seas off a state’s
coastal waters. Further, the purpose behind the
FLSA is to establish a national floor under which
wage protections cannot drop, not to establish abso-
lute uniformity in minimum wage and overtime stan-
dards nationwide at levels established in the FLSA.
“Most important, because the maritime employees
involved in this action are California residents who
work on vessels that operate exclusively off the Cali-
fornia coast, application of the state’s overtime law
will not disrupt international or interstate com-
merce.” 918 F.2d at 1425, Appendix at A-33-34 (em-
phasis in original).
One member of the Ninth Circuit panel dissented from
the decision, concluding that Aubry’s actions were pre-
empted both by general principles of admiralty law and
the FLSA. As for the former, the dissent argued that
California overtime regulations conflicted with the leng-
standing admiralty principle that overtime is a matter of
contract between master and seaman. The dissent noted
that individual contractual arrangements are more suita-
ble than fixed regulations to the variable conditions of
maritime employment:
15
“This interpretation makes sense in light of the
fact that the conditions under which maritime em-
ployees work, especiaily those working on the high
seas, are substantially different from land-based em-
ployees. Land-based employees are able to return
home every night after work whereas often in mari-
time situations employees are required to be trans-
ported to a work station on the high seas, remain at
sea for days at a time and subsequently be trans-
ported back to land. This aspect of maritime life has
not changed for centuries and must have been under-
stood at the inception of admiralty law.” 918 F.2d at
1429, Appendix at A-41-42.
The dissent also concluded that Aubry’s actions were
preempted by the direct conflict between California over-
time regulations and the seamen’s exemption under the
FLSA. Adopting the same analysis as the District Court,
the dissent argued that Congress’ specific decision to
exempt seamen from overtime coverage did not leave
room for contrary state regulation. 918 F.2d at 1430,
Appendix at A-44.
REASONS FOR GRANTING THE WRIT
As we have explained, the subject of maximum hours
and overtime compensation for seamen has not been
excluded from federal admiralty law. It has instead been
addressed in three ways: (1) seamen’s overtime has
historically been a matter of contract between master and
seaman, (2) seamen’s maximum hours of work have been
regulated by the Shipping Act and the Coast Guard’s
manning standards and Certificates of Inspection, and
(3) on two separate occasions Congress has specifically
16
excluded seamen from the land-based overtime standards
of the FLSA.”
The Ninth Circuit majority has permitted Aubry to
supersede this body of federal admiralty law by regulat-
ing the maximum hours and overtime compensation of
seamen with a general land-based Wage Order that says
nothing whatsoever about maritime employment. It has
reached this anomalous result by applying a preemption
analysis which directly conflicts with decisions of this
Court and establishes new standards for state regulation
of maritime employment on the high seas. The end result
is a decision of enormous importance and widespread
impact within the maritime industry. Certiorari is accord-
ingly proper and should be granted.
I.
THE NINTH CIRCUIT MAJORITY OPINION AP-
PLIES AN ADMIRALTY PREEMPTION ANALYSIS
THAT CONFLICTS WITH DECISIONS OF THIS
COURT AND THE COURTS OF APPEALS
A. The Ninth Circuit Majority Opinion Conflicts with
Jensen’s Requirement of Maritime Uniformity
This Court has long emphasized the need for uniform-
ity in federal admiralty law, based upon the federal
courts’ responsibility for ‘all cases of admiralty and
maritime jurisdiction.” U. S. Const., art. III, § 2, el. 1. The
Court reiterated the need for maritime uniformity as
recently as last term in Miles v. Apex Marine Corp., —_—
U.S. ——, 111 S.Ct. 317, 322, 112 L.Ed.2d 275 (1990),
quoting Moragne v. States Marine Lines, Inc., 398 U.S. 375,
402 (1970), and The Lottawanna, 88 U.S. 558, 575 (1874).
"See discussion, supra, at pages 3-6.
17
The principle of maritime uniformity has led this Court
to guard against intrusive regulation of maritime affairs
by the states. For example, in the early case of The
Lottawanna, supra, the Court declared:
“One thing, however, is unquestionable: the Consti-
tution must have referred to a system of law coexten-
sive with, and operating uniformly in, the whole
country. It certainly could not have been the inten-
tion to place the Rules and limits of maritime law
under the disposal and regulation of the several
States, as that would have defeated the uniformity
and consistency at which the Constitution aimed
.... 88 U.S. at 575.
In Southern Pacific Co. v. Jensen, supra, 244 U.S. at 217,
the Court held that federal admiralty law preempted
application of state workers’ compensation laws to mari-
time employees because “(t]he necessary consequence
would be destruction of the very uniformity in respect to
maritime matters which the Constitution was designed to
establish; and freedom of navigation between the states
and with foreign countries would be seriously impeded.”
Accord, Knickerbocker Ice Co. v. Stewart, supra, 253 U.S.
at 166; State of Washington v. W. C. Dawson & Co., 264
U.S. 219, 227-28 (1924).
The majority decision by the Ninth Circuit is plainly
inconsistent with these cases and with other decisions
which have preempted fragmented state regulation of
maritime activity.’® If the states are not free to regulate
38 9., Offshore Logistics, Inc. v. Tallentire, supra, 477 U.S. 207
(1986) (refusing to apply state law to oil platform workers killed on
the high seas); Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978)
(refusing to apply Washington design standards for oil tankers);
Kossick v. United Fruit Co., 365 U.S. 731 (1961) (refusing to apply
18
workers’ compensation remedies for seamen and maritime
workers, the result can be no different for seamen’s
maximum hours of work and compensation for overtime.
In either instance maritime uniformity is destroyed by a
system of fragmented and conflicting laws which differ
greatly from federal admiralty law and which are subject
to change from one state to another.
B. The Ninth Circuit Majority Opinion Incorrectly
Requires Express Congressional Intent to Preclude
State Regulation
The Ninth Circuit’s majority decision conflicts with
decisions of this Court not only in its overall holding, but
also as to the particular form of preemption analysis
which was applied. Throughout the decision, the majority
was guided by “the assumption that the historic powers of
the States were not to be superseded by [federal legisla-
tion] unless that was the clear and manifest purpose of
Congress.” 918 F.2d at 1416, Appendix at A-11 (emphasis
in original).
This form of preemption analysis is completely foreign
to maritime law and entirely at odds with the constitu-
tional requirement for maritime uniformity.'* This Court’s
decisions have emphasized the practical consequences of
New York statute of frauds to seaman’s oral contract concerning
medical care); Union Fish Co. v. Erickson, 248 U.S. 308 (1919)
(refusing to apply California statute of frauds to a seaman’s oral
contract of employment); Lord v. Goodall, 102 U.S. 541 (1881)
(refusing to apply California contract law in place of admiralty rules
limiting a vessel owner’s liability in a breach of contract action for
damage to cargo).
Tt also requires extraordinary foresight on the part of Congress.
Because there were no states which even attempted to regulate
overtime compensation for seamen in 1937 and 1961, Congress hardly
had reason to consider the question of state preemption.
19
fragmented state regulation, not the need for express
Congressional intent to preclude state action. Indeed, in
Jensen and Knickerbocker, supra, the Court refused to
permit enforcement of workers’ compensation laws in the
face of express Congressional intent to permit state regu-
lation — simply because the practical consequence would
produce fragmentation and confusion.
The approach taken by the Ninth Circuit majority also
ignores the concept of “negative preemption” which this
Court described in Ray v. Atlantic Richfield Co., 435 U.S.
151, 178 (1978):
“The Court has previously recognized that ‘where
failure of... federal officials affirmatively to exercise
their full authority takes on the character of a ruling
that no such regulation is appropriate or approved
... States are not permitted to use their police
power to enact such a regulation.”
quoting Bethlehem Steel Co. v. New York State Labor
Relations Board, 330 U.S. 767, 774 (1947). Accord, Napier
v. Atlantic Coast Line, 272 U.S. 605 (1926); Norfolk &
Western Ry. v. Pub. Utilities Comm., 926 F.2d 567, 570
(6th Cir. 1991); Friedell, Benedict on Admiralty, § 112,
p. 7-37 (“As the Supreme Court has long recognized, the
absence of a federal right of recovery may suggest a
strong federal interest, and when a state ‘supplements’
the federal law by adding a cause of action it thereby
deprives the defendant of a substantive right to be free of
an obligation.’’).
This holding is certainly applicable here. Congress has
expressly declared in Section 13(b) (6) of the FLSA that
seamen should be exempt from land-based maximum hour
and overtime standards. This was the product of legisla-
tive hearings in 1937 at which Congress accepted testi-
|
20
mony about the peculiar and variable working hours of
seamen and the dangers of confusion between maritime
and labor regulations.’ Congress reexamined the issue in
1961, concluding that only the FLSA minimum wage
provisions should be extended to seamen.’® In short,
Congress did not leave out seamen because of oversight or
neglect — it carefully and deliberately drew a line that
excludes seamen from land-based overtime regulations.”’
The underlying rationale for Congress’ exclusion of
seamen from the FLSA applies with even greater force to
state overtime laws. Land-based labor standards, whether
state or federal, are equally inappropriate for the variable
workday of a seaman. And there is much greater opportu-
nity for confusion between labor and maritime regulations
when multiple state jurisdictions are involved.
'® See legislative materials, supra, note 1 at page 3.
‘When applying the minimum wage to seamen, Congress was
careful to enact special provisions which recognize the unique work-
ing hours of seamen. Section 6(a)(4) of the FLSA accordingly
prescribes a special minimum wage computation for seamen, based
upon the hours they are “actually on duty’ and not just on call.
29 U.S.C. § 206(a) (4). See also, S.Rep. No. 145, 87th Cong., Ist Sess.
32-33 (1961) (explaining legislative intent).
That line has been extended by a substantial body of law,
consisting of federal regulations and court decisions, which define the
precise scope of the seamen’s exemption. Following the intent of
Congress, they distinguish land-based and traditional seafaring ac-
tivity by applying the seaman’s exemption only to “one who performs
service primarily to aid in the operation of a vessel as a means of
transportation.” Worthington v. Icicle Seafoods, Inc., 774 F.2d 349,
353 (9th Cir. 1984), vacated on other grounds, 475 U.S. 709 (1986);
Donovan v. Nekton, Inc., 703 F.2d 1148 (9th Cir. 1983); 29 C.F.R.
§ 783.29.
21
C. The Ninth Circuit Majority Opinion Incorrectly
Applies a More Lenient Preemption Standard to
Maritime Operations in Local Waters
In upholding A .ory’s regulation of seamen, the Ninth
Circuit majority emphasized that preemption was im-
proper because the affected employees were California
residents who worked on vessels operating in local waters
off the California coast. 918 F.2d at 1425, Appendix at
A-34. This aspect of the majority’s preemption analysis
constitutes a sharp departure from decisions of this
Court.
Federal admiralty jurisdiction includes all navigable
waters which may be used in commerce.’® This Court’s
decisions have recognized the need for maritime uniform-
ity wherever admiralty jurisdiction extends, with equal
attention to state territorial waters and the high seas.
E.g., Moragne v. States Marine Lines, Inc., supra, 398 U.S.
375 (establishing a uniform federal maritime remedy for
wrongful death within state territorial waters).
Unlike the Ninth Circuit majority, this Court has recog-
nized no lesser standard of preemption for vessels operat-
ing in local waters. Lord v. Goodall, 102 U.S. 541 (1881),
held that federal admiralty law preempted state statutes
concerning a vessel which operated an exclusive route
between San Francisco and San Diego off the coast of
California. Similarly, in London Co. v. Industrial Commis-
sion, 279 U.S. 109 (1929), the Court found preemption of
'*Southern Steamship Co. v. N.L.R.B., 316 U.S. 31, 41 (1942) (“It
has long been settled that the admiralty and maritime jurisdiction of
the United States includes all navigable waters within the country.”’);
G. Gilmore and C. Black, The Law of Admiralty § 1-11 at 31 (2d ed.
1975).
22
state law concerning an accident which occurred only
three-quarters of a mile off the coast of California.
By the same token, the Court has applied preemption
even when there are strong local contacts between a
maritime transaction and a particular state. In Union Fish
Co. v. Erickson, 248 U.S. 308 (1919), the Court refused to
apply California’s statute of frauds to a seaman’s oral
contract of employment made within the state, holding
that maritime uniformity would have been defeated by
fragmented state regulation. The Court reaffirmed that
holding more than forty years later in the face of even
stronger local contacts in Kossick v. United Fruit Co., 365
U.S. 731 (1961).
D. The Ninth Circuit Majority Opinion Creates Un-
precedented and Expansive Powers for State Regu-
lation of Maritime Activity on the High Seas
The issues in this case involve application of state
overtime regulations to vessels which normally operate on
the high seas. Tidewater’s vessels regularly travel be-
tween oil platforms up to twelve miles off the coast, and
they are permitted by the Coast Guard Certificates of
Inspection to operate up to 100 miles from the mainland
shore. The District Court accordingly made it clear that
Aubry is attempting to regulate seamen “employed on
vessels situated primarily on the high seas,” and the
Ninth Circuit agreed. 709 F.Supp. at 1517, 918 F.2d at
1415, Appendix at A-46 & 11.
In Otl Workers v. Mobil Oil Corp., supra, 426 U.S. 407,
this Court decided whether the National Labor Relations
Act savings clause, 29 U.S.C. § 164(b), permitted applica-
tion of the Texas right-to-work laws to seamen employed
on United States documented oil tankers operating prin-
cipally on the high seas. The lower courts held that Texas
23
law applied because of the substantial state interests in
regulating the seamen’s employment and the predominant
state contacts with the hiring and employment process.
This Court reversed, holding that the predominant job
situs was the proper standard for measuring applicability
of state law. Since the vessels operated primarily on the
high seas, the Court held that neither Texas nor any other
state had a sufficient interest in the employment relation-
ship to apply its state laws. 426 U.S. at 412-21.
The Court took a similar approach in Offshore Logistics,
Inc. v. Tallentire, supra, 477 U.S. 207. That case involved
the question whether the savings clause under the Death
on the High Seas Act, 46 U.S.C. § 761, permitted applica-
tion of the Louisiana wrongful death statute to oil plat-
form workers killed in a helicopter crash on the high seas.
Despite extensive contacts between the workers and Loui-
siana, the Court held that state law did not apply. Empha-
sizing the importance of uniform maritime remedies for
death on the high seas, the Court interpreted the savings
clause as permitting state court jurisdiction over wrong-
ful death actions but precluding application of state
substantive law. 477 U.S. at 220-233.
The decision by the Ninth Circuit majority is plainly at
odds with Mobil Oil and Tallentire. The majority decision
permits Aubry to apply state overtime standards to
seamen whose predominant workplace is on the high seas
and beyond state territorial waters. This cannot be recon-
ciled with the heightened need for maritime uniformity on
the high seas, which was a decisive factor in Mobil Oil and
Tallentire.
Because of the strong local interest in protecting the
shoreline from environmental harm, some of this Court’s
decisions have permitted limited state regulation of ship-
ping activity — but only within the three-mile state terri-
24 |
torial zone. See Ray v. Atlantic Richfield Co., supra, 435
U.S. 151 (permitting application of a state statute con-
cerning tug-escorts for certain tankers in confined wa-
ters); Askew v. American Waterways Operators, Inc., 411
U.S. 325 (1973) (permitting application of a state statute
concerning oil spill damage to the shoreline); Huron
Portland Cement Co. v. Detroit, 362 U.S. 440 (1960) |
(permitting application of city air pollution regulations to
tankers within a harbor).
The Ninth Circuit’s majority decision dramatically ex-
pands this limited authority by permitting state regula-
tory activity on the high seas and beyond the state
territorial zone. That expansive interpretation is neither
permitted by this Court’s decisions nor consistent with
Mobil Oil and Tallentire.
Il.
THIS CASE INVOLVES IMPORTANT ISSUES AF-
FECTING FEDERAL ADMIRALTY LAW AND THE
MARITIME INDUSTRY
A. The Ninth Circuit Majority Opinion Will Have
Great Impact in the Maritime Industry
This is by no means a case with limited importance or
application. Because these proceedings arose in Califor-
nia, this case necessarily has a great impact on the United
States maritime industry. According to figures compiled
by the Bureau of Labor Statistics, more than 11.31 per-
cent of all United States maritime employees are based in
California.”
ad OR Dept. of Labor, Bureau of Labor Statistics, Employment &
Wages Annual Averages 1989 (Bull. 2373, October 1990), at
pp. 326-331.
25
The State of California has a similarly disproportionate
share of maritime employees in the offshore sub-indus-
tries that will be most affected by Aubry’s jurisdiction:
water transportation services (10.96% of all U.S. employ-
ees), water passenger transportation (10.59% of all U.S.
employees), water ferries (12.10% of all U.S. employees),
marine eargo handling (15.29% of all U.S. employees),
and teuwing and tugboat services (7.05% of all U.S.
employees) bs
In one fell swoop, the Ninth Circuit majority decision
has accordingly removed the longstanding seamen’s ex-
emption for more than one out of every ten offshore
maritime employees in the United States. The impact will
of course be greater if Wage Order 4-80 is applied more
broadly to deep water maritime employees in California,”
or if additional states apply their overtime provisions to
offshore or deep water vessels. As the Ninth Circuit
includes all states bordering the Pacific Coast, the prece-
dential effect of this case would expressly permit all of
those states to apply their overtime laws (and perhaps
other labor regulations) to seamen as well.”
1d.
“This is by no means a hypothetical possibility, for as the District
Court found, Aubry has claimed the right to regulate seamen who are
non-California residents and seamen who serve on vessels operating
outside the territorial waters of California. 709 F.Supp. at 1521,
Appendix at A-53-54.
The Ninth Circuit majority opinion also serves to add confusion
to legal principles governing federal maritime preemption of state
laws. Commentators have already recognized this to be an area of
great confusion in need of clarification by this Court. £.g., Currie,
Federalism and the Admiralty: “The Devil’s Own Mess,” 1960 Sup. Ct.
Rev. 158 (1960); Ruhl, Finding Federalism in the Admiralty: ‘The
Devil’s Own Mess’ Revisited, 12 Tul. Maritime L.J. 263 (1988).
26
From an economic and operational standpoint, the
Ninth Circuit’s decision will also have an enormous im-
pact on maritime employers. The Shipping Act and Coast
Guard Certificates of Inspection for offshore vessels now
set a maximum work period of twelve hours per day on
crew and supply boats like those operated by Tidewater.”
As the Coast Guard Officer who submitted a declaration
to the District Court explained, reliance upon these fed-
eral standards has created an accepted and customary
twelve hour work day throughout the offshore maritime
industry.”
Continuing these customary practices in the face of
Aubry’s state overtime regulations is simply not a feasible
alternative. Wage Order 4-80 requires premium overtime
pay at one and one-half or two times the regular rate of
pay for work exceeding eight hours in any day, the first
eight hours on the seventh day of work, and forty hours in
any week. 8 Cal. Code Regs. § 11040, § 3(A), Appendix at
A-71-72. The customary twelve hour workday would there-
fore produce at least four hours of premium pay each day
(or six additional hours of regular pay at the one and one-
half overtime rate) — resulting in seamen earning consid-
erably more than the master of their vessels. The full
measure of the economic disruption is shown by Aubry’s
overtime awards against Clean Seas and complaint
against Tidewater, which resulted in total compensation
846 U.S.C. § 8104(b); Declaration of Capt. Robert A. Janecek,
USCG (Ret.) at § 11, Appendix at A-88-89.
*Janecek Declaration, supra, at { 13, Appendix at A-89-90 (“In all
of the years I have been involved in supervising the manning require-
ments for crew boats and supply boats of the type operated by
Tidewater, I have always considered and understood the twelve hour
shift to be the normal workday for seamen (including officers)
serving on these type vessels.”’).
acl
27
nearly three times the seamen’s base earnings which they
contracted for.”
The economic pressures caused by Aubry’s maximum
hour standards would accordingly require maritime em-
ployers to restructure seamen’s work periods to come
closer to the land-based standards prescribed by Wage
Order 4-80, without regard to the operational needs of the
vessels or their work. This will necessarily require pre-
mium overtime pay, the employment of a greater number
of seamen, and correspondingly higher costs to maritime
employers.
These dramatically higher employment costs would
have a depressing impact on individual maritime employ-
ers and the entire industry. During the past three de-
cades, United States maritime employment has declined
sharply and steadily. The Bureau of Labor Statistics
reports that the number of United States maritime em-
ployees has dropped 22.6 percent between 1964 and
1989. Quite clearly, the industry does not need an
additional economic burden to enhance this downward
spiral.
B. The Ninth Circuit Majority Opinion Will Create
Confusion and Uncertainty
Presently there are uniform conditions in maritime
employment on United States documented vessels
throughout the world: maximum hours are determined by
the Shipping Act and Coast Guard Certificates of Inspec-
tion, seamen are exempt from statutory overtime provi-
See discussion, supra at pages 8 and 10.
1.8. Dept. of Labor, Bureau of Labor Statistics, Employment,
Hours, & Earnings, United States, 1909-90 (Bull. 2370, March 1991),
at pp. 706-707.
28
sions, and overtime compensation is a matter of contract.
By permitting Aubry to apply Wage Order 4-80 to seamen
in California, this uniformity will be destroyed and re-
placed by confusion and uncertainty.
Wage Order 4-80 is a completely inappropriate tool for
regulating the work of seamen and maritime employees. It
expressly applies to “professional, technical, clerical,
mechanical and similar occupations,’ which the order
describes as employees such as office workers, cashiers,
librarians, salespersons and bank tellers. 8 Cal. Code
Regs. § 11040, ¢ 2(C), Appendix at A-69-70. Seamen on
Tidewater’s vessels have nothing in common with these
land-based employees or with the nine-to-five workday
that they typically follow. Seamen in the offshore mari-
time industry often live aboard their vessels and always
have prolonged periods of inactivity and rest. Wage Or-
der 4-80 takes none of these unique working conditions
into account.
The Ninth Circuit majority opinion is based on the
unrealistic assumption that maritime employers can eas-
ily identify the vessels and crew members to which state
regulations like Wage Order 4-80 would apply. But ves-
sels are moving worksites which commonly operate be-
tween states or in gulfs, rivers and bays that cannot be
clearly identified with any particular jurisdiction. And
crews are commonly composed of seamen who reside in
different states. Under these circumstances typical of
maritime employment, governing work and overtime stan-
dards would differ according to the location of the vessel
or the residence of each crew member. These distinctions
are unworkable and impossible to administer effectively.
The resulting confusion would expand in geometric
proportions if other states followed the lead of California
by applying their overtime regulations to seamen. By way
Pe ae ne
29
of example, there is no uniform state maximum hour
standard among the Pacific Coast states. Washington and
Oregon recognize the forty hour work week as their
standard for maximum hours of work, but Alaska and
California limit work to eight hours in any twenty-four
hour period.”’ If these variable state regulations are
applied to vessels operating along the Pacific Coast or to
maritime employers like Tidewater with vessels in more
than one state, it will be necessary to comply with differ-
ent overtime standards depending upon the waters in
which a vessel is located.
In short, the existing maximum hour standards of the
Skipping Act and the Coast Guard are much better suited
to maritime employment. Since 1915, Congress has con-
sistently mandated the maximum hour standards for
seamen serving on United States documented vessels,
through its enactment of statutes such as 46 U.S.C.
§ 8104. And Congress has given the Coast Guard the
exclusive authority to determine the manning and hours
standards aboard vessels operating in state, federal and
international waters, through individual Certificates of
Inspection based upon federal law and a careful evalua-
tion of each vessel and its working conditions. Through
this comprehensive federal scheme, Congress has recog-
nized that Coast Guard officers — not state authorities —
are experts who know the sea and the unique conditions
under which vessels and their crews operate. For more
than fifty years Congress has therefore exempted seamen
from the FLSA’s maximum hours and overtime provi-
sions, expressly recognizing that special ruies must apply
to maritime employment.
"Wash. Rev. Code § 49.46.130(h); Or. Rev. Stat. § 653.261; Alaska
Stat. § 23.10.060; 8 Cal. Code Regs. §§ 11010-11150 at § 3(A).
30
Allowing Aubry and other state officials to suddenly
and arbitrarily redefine the customs and practices in the
maritime industry and displace the Shipping Act and
Coast Guard expertise is flatly inconsistent with this
Court’s directive to maintain uniform and consistent
principles of federal admiralty law. Aubry’s effort to
regulate the unique working conditions of seamen with a
Wage Order that applies to librarians and bank tellers is
a clear conflict with federal maritime law which will wreak
havoe in the maritime industry. It is a classic case of
someone stubbornly trying to pound a square peg into a
round hole — with profound confusion and cost to all who
are affected.
CONCLUSION
For the foregoing reasons, review by this Court is
appropriate and certiorari should be granted.
Respectfully submitted,
MICHAEL M. JOHNSON
Counsel of Record
SHELDON A. GEBB
LISA F. HINCHLIFFE
BAKER & HOSTETLER,
MecCUTCHEN BLACK
Attorneys for Petitioners
July 17, 1991
APPENDIX
SN GTR? POP LR OD IE MRS to ag! nope 2, ae ed hy “¥ Ck RAT STDC A ND, I aI 8 a a oe OM RN RN a nt te ngs eS
FOR PUBLICATION
United States Court of Appeals
FOR THE NINTH CIRCUIT
PACIFIC MERCHANT SHIPPING ASSOCIATION;
AMERICAN INSTITUTE OF MERCHANT SHIPPING;
OFFSHORE MARINE SERVICE ASSOCIATION;
WESTERN OIL AND GAS ASSOCIATION;
CLEAN SEAS,
Plaintiffs-Appellees,
vs.
LLOYD W. AUBRY, JR.,
Labor Commissioner, Division of Labor Standards
Enforcement, Department of Industrial
Relations, State of California,
Defendant-Appellant,
vs.
TIDEWATER MARINE SERVICE, INC.;
WESTERN BoaT OPERATORS, INC.,
Plaintiff /Intervenors-Appellees.
No. 89-55379 D.C. No. CV-88-0848-AWT
OPINION
Appeal from the United States District Court
for the Central District of California
A. Wallace Tashima, District Judge, Presiding
Argued and Submitted
June 5, 1990 — Pasadena, California
Filed November 13, 1990
Before: James R. Browning and Harry Pregerson,
Circuit Judges, and William P. Copple, District Judge.*
*The Honorable William P. Copple, Senior United States District
Judge, District of Arizona, sitting by designation.
A-2
OPINION
PREGERSON, Circuit Judge:
Lloyd W. Aubry (“Aubry’’), California’s labor commis-
sioner, enforced California’s overtime pay laws against
Clean Seas, an employer operating vessels off the Califor-
nia coast. Pacific Merchant Shipping Association and
other shipping associations’ (“PMSA”) brought suit in
the district court on behalf of Clean Seas and other
member companies, seeking declaratory and injunctive
relief on the ground that California’s overtime pay laws
are preempted by federal admiralty law. Tidewater
Marine Service, Inc., and Western Boat Operations, Inc.
(“Tidewater”) intervened in the action after an employee
filed an overtime wage claim with the California Division
of Labor Standards Enforcement. The district court
granted summary judgment for PMSA and Tidewater,
declared Aubry’s actions preempted by federal admiralty
law, and enjoined further enforcement of California’s
overtime pay laws against Clean Seas, Tidewater, and
other maritime employers. Pacific Merchant Shipping
Ass’n v. Aubry, 709 F. Supp. 1516 (C.D. Cal. 1989). We
have jurisdiction over the district court’s final order
under 28 U.S.C. § 1291. We reverse.
BACKGROUND
I. Admiralty Terminology
At the outset, and for the sake of clarity, we explain
basic admiralty terminology used by the district court
and in this opinion.
‘American Institute of Merchant Shipping; Offshore Marine Ser-
vice Association; Western Oil and Gas Association.
A-3
A. Maritime Employees:
Historically, those who work on ships have been called
“seamen.” As a matter of genere] maritime law, the term
“seamen” includes a broad range of marine workers
whose work on a vessel on navigable waters contributes to
the functioning of the vessel, to accomplishment of its
mission, or to its operation or welfare. See 46 U.S.C.
§ 10101(3); Norris, The Law of Seamen, §$§ 2.1, 2.3, 2.10
(4th ed. 1985). “Seamen” is also used, in a much nar-
rower sense, in the Fair Labor Standards Act (“FLSA”),
29 U.S.C. §$§ 201-219, to define a category of maritime
workers exempted from coverage under federal overtime
pay provisions. See 29 U.S.C. § 213(b) (6).” Under federal
regulations, a “seaman” exempted from the FLSA’s over-
time pay provisions is one who works “primarily as an aid
in the operation of [a] vessel as a means of transporta-
tion, provided he performs no substantial amount of work
of a different character.” See 29 C.F.R. § 783.31 (1989). A
“substantial amount of work of a different character” is
more than 20 percent of the time worked by an employee
during any given work week. 29 C.F.R. § 783.37 (1989).
This appeal involves workers who are FLSA-exempt
“seamen” and workers who, while not exempted from the
FLSA’s overtime pay provisions, are still “seamen” in the
broader, general sense. Because the distinction is impor-
"Under the FLSA, with certain exceptions, all hours worked in
excess of 40 hours per week must be compensated at “a rate not less
than one-and-one-half times the regular rate.” 29 U.S.C. § 207(a) (1).
The statute also provides in relevant part:
The provisions of section 207 of this title shall not apply with
respect to —
(6) any employee employed as a seaman....
29 U.S.C. § 213(b).
A-4
tant, and to avoid confusion, we use the following terms to
describe the employees affected by this opinion: a “mari-
time employee” is a “seaman” in the general maritime
sense; and a “seaman” is a maritime employee exempted
from the FLSA’s overtime pay provisions under 29 U.S.C.
§ 213(b) (6).
B. Seas:
Two zones of “navigable waters” are involved in this
appeal. The “territorial sea” is the sea from shore to three
nautical miles off shore. The “high seas” are ocean waters
outside the territorial sea, i.e., more than three miles
offshore.
C. Voyages:
The Shipping Act, 46 U.S.C. §§ 2101-14701, divides
“voyages” into three types. “Foreign voyages” are voy-
ages between ports in the United States and ports in
foreign countries (except Canada, Mexico, and the West
Indies). See 46 U.S.C. § 10301(a) (1). “Intercoastal voy-
ages” are voyages between ports on the Atlantic and
Pacific coasts. See 46 U.S.C. § 10301(a) (2). “Coastwise
voyages” are voyages “between a port in one State and a
port in another State (except an adjoining State).’” See
46 U.S.C. § 10£01(a). United States Coast Guard regula-
tions define “coastwise vessels” as those “normally navi-
gating the waters of any ocean or the Gulf of Mexico 20
nautical miles or less offshore.” 46 C.F.R. § 70.10-13
(1988).
II. Facts and Procedural History
PMSA and the other associations involved in this ap-
peal are maritime trade associations that represent
merchant maritime shippers, other maritime employers,
A he ine la RA it elie Ci ale Natal:
SA lh, Lame DM ch lS ie nla lie” tha md i ce Wat toa noe
A-5
and employers in the oil and gas industry. Among these
organizations’ members are Clean Seas and Tidewater.
Clean Seas is an unincorporated, cooperative association,
formed by several major oil companies to contain and
clean up marine oil spills off the California coast. Tidewa-
ter provides offshore transportation and support services
worldwide, and provides transportation services to oil
drilling platforms from one to 12 nautical miles of the
California coast.
Clean Seas operates three vessels: Mr. Clean, Mr. Clean
II, and Mr. Clean III. The employees whose wage claims
led to this appeal work on Mr. Clean II and Mr. Clean III
(three on Mr. Clean II; nine on Mr. Clean III). Both
vessels’ duties involve control and clean up of oil spills
and other environmentally hazardous discharges in the
Santa Barbara Channel off the California coast. Mr. Clean
IT is a 138-foot vessel moored in Port San Luis Harbor,
California, where it remains moored approximately one-
quarter mile offshore about 90 percent of the time. Mr.
Clean III is a 181-foot vessel permanently stationed on the
high seas off the California coast. Mr. Clean III conducts
containment and clean up operations around four oil
drilling and production platforms over the Pedernales
and Arguello oil fields, from four to ten nautical miles off
the California coast. When not on active duty, Mr. Clean
III is tied to a buoy approximately seven miles off the
California coast.
Clean Seas employees who work on Mr. Clean III are
organized into two crews of six.* Each crew works seven
day “hitches” at sea, alternating with seven day rest
periods on shore. While at sea, Clean Seas employees
‘The record does not indicate whether Mr. Clean III crewmembers
are organized this way.
A-6
typically work 12 hour shifts, alternating with 12 hour
rest periods. Mr. Clean III crew members are transported
to the vessel by helicopter from the Santa Barbara Air-
port. Of the 12 Clean Seas employees involved in the
underlying action, two were licensed “mates” and ten,
who worked primarily on clean up operations, were certi-
fied as “seamen” by the United States Coast Guard.* The
specific terms of Clean Seas’ employees’ work are usually
set out in contracts negotiated between each employee
and Clean Seas.
Tidewater operates two types of vessels off the Califor-
nia coast. Tidewater’s supply boats are 180- to 190-foot
vessels with seven-member crews that pick up and deliver
cargo at the Port Hueneme Pier, south of Santa Barbara,
for delivery at various offshore oil platforms. Tidewater’s
crew boats are 65-foot vessels with two-member crews
that transport passengers, light supplies and mail from
‘Under applicable federal regulations, the United States Coast
Guard inspects vessels and issues certificates to qualifying maritime
employees. See 46 C.F.R. §§71.01-71.75 (1988). A “mate” is a
“qualified officer in the deck department other than the master.” 46
C.F.R. § 10.103 (1989). Marine employees are certified as ‘“‘seamen”
upon meeting a range of age and training requirements. 46 C.F.R.
§$§ 12.01-1 to 12.25-40 (1989). Certification as a “seaman” under
Coast Guard regulations does noi bear on an employee’s status as a
“seaman” for purposes of exemption from federal overtime laws
under 29 U.S.C. § 213(b) (6). See 29 C.F.R. 783.31-.37 (1989).
The district court made no findings on the question whether Ciean
Seas’ employees were FLSA-exempt seamen. That question is one of
fact, and must be decided by the district court. Icicle Seafoods, Inc. v.
Worthington, 475 U.S. 709, 714, on remand, Worthington v. Icicle
Seafoods, Inc., 796 F.2d 337 (9th Cir. 1986). In this case, however,
because we hold that California may apply its overtime provisions to
both the FLSA-exempt seamen and the non-exempt maritime employ-
ees involved in this suit, we need not remand the case to the district
court to determine the status of Clean Seas’ employees.
A-7
the Carpinteria and Ellwood piers, also near Santa Bar-
bara, to offshore oil platforms. These vessels are on call at
all times. When a vessel is called, it goes to a pier to pick
up cargo or passengers, travels to its destination, and
then returns to the pier.
The employee whose wage claim led to Tidewater’s
intervention in this action was a deck engineer on a crew
boat. The parties agree that the employee is a seaman
exempted from the FLSA’s overtime provisions under 29
U.S.C. § 213(b) (6). Typically, Tidewater crew boat crews
work 7 day hitches alternating with 7 day rest periods
onshore; employees work 12 hour shifts aiternating with
12 hour rest periods. The specific terms of most Tidewater
crew members’ work are set out in employment contracts
negotiated between individual employees and Tidewater.
The record indicates that all the Clean Seas employees
and the Tidewater employee are California residents who
live in California when not on board ship. The workers are
hired in California, receive paychecks at California ad-
dresses, and pay California taxes.
In 1987, the twelve Clean Seas employees filed claims
for unpaid overtime compensation with the California
Labor Comniissioner. The California Labor Code grants
the Labor Commissioner authority to enforce Wage Or-
ders issued by the California Industrial Welfare Commis-
sion (“IWC’”’). See Cal. Lab. Code $§ 98, 1173. IWC Wage
Order 4-80 sets out wage and overtime requirements with
respect to “professional, technical, clerical, mechanical,
and similar occupations.” Cal. Code Regs. § 11345(2) (ce).
After a hearing, Aubry applied Wage Order 4-80 to the
Clean Seas crewmembers and granted an average of
$45,000 in back wages to each of the 12 Clean Seas
employees. PMSA then filed the complaint for declaratory
and injunctive relief underlying this appeal. Meanwhile,
A-8
in February 1988, Frank Kleman, the Tidewater em-
ployee, filed a claim for $50,000 unpaid over-time compen-
sation (for a 12-month period) with the California Labor
Commission. Tidewater then intervened in PMSA’s fed-
eral court action. Kleman’s case and all other similar
administrative claims were stayed pending the outcome of
the federal court action.
After a hearing on cross-motions for summary judg-
ment, the district court granted PMSA and Tidewaters’
request for declaratory and injunctive relief, holding that
California cannot apply its overtime provisions to mari-
time employees employed primarily on the high seas or to
seamen. 709 F. Supp. at 1526. The district court enjoined
all enforcement of California’s overtime pay provisions
against employers of these maritime workers.
Aubry filed a timely notice of appeal.
JURISDICTION AND SCOPE OF RELIEF
Because PMSA and Tidewaters’ complaints sought to
enjoin enforcement of California law based on federal
preemption, this case “arose under” federal law, and the
district court properly exercised jurisdiction over
PMSA’s action for injunctive relief. See Southern Pac.
Transp. Co. v. Public Utils. Comm’n of State of Cal., 716
F.2d 1285, 1288-89 (9th Cir. 1983), cert. denied, 466 U.S.
936 (1984); Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96
n.14 (1983).
Actions for declaratory and injunctive relief, however,
must be carefully limited in scope to meet the “case and
controversy” requirements of Article III of the Constitu-
tion. O’Shea v. Littleton, 414 U.S 488, 493-95 (1974);
Maryland Casualty Co. v. Pac. Coal and Oil Co., 312 U.S.
270, 273 (1941). Before the district court, PMSA, Tide-
A-9
water, and Aubry argued at length over the precise scope
of the declaratory and injunctive relief action. PMSA and
Tidewater sought a ruling on all employees of its mem-
bers with respect to a broad range of California labor
code provisions. 709 F. Supp. at 1522-23. Aubry, on the
other hand, sought to limit the scope of the action to only
those employees to which he had applied California’s
overtime provision. Jd.
Applying the constitutional rule that “[a] plaintiff who
challenges a statute must demonstrate a realistic danger
of sustaining a direct injury as a result of the statute’s
operation or enforcement,” Babbit v. United Farm Workers
Nat’l Union, 442 U.S 289, 298 (1979), the district court
limited the scope of relief to cover only application of
California’s overtime pay laws to (1) FLSA-exempt
seamen, whether working within the territorial zone or on
the high seas; and (2) maritime employees working pri-
marily on vessels on the high seas that are not engaged in
foreign, intercoastal, or coastwise voyages. 709 F. Supp.
at 1522-23,-1526.° The district court expressly stated that
‘There is some ambiguity in the record and in the district court's
opinion about whether the relief granted also covered maritime
employees working primarily on vessels on the high seas that are
engaged in coastwise voyages. The district court cited the deposition
testimony of a California Division of Labor Standards Enforcement
official that suggested that Aubry intended to apply California
overtime wage laws to non-inhabitant maritime employees. The court
apparently concluded that the commissioner might possibly apply
California law to employees who voyage from California to other
states, 709 F. Supp. at 1255, and that the threat of enforcement of
California wage laws against employers engaged in coastwise voyages
was sufficient to present a justiciable controversy under Article III of
the Constitution as to those employers. On the other hand, the overall
thrust of the district court’s analysia strongly suggests that the
discussion was limited to employees, like those who brought claims in
the underlying state administrative action, who work only on vessels
ee
A-10
its decision did not affect the rights of non-FLSA exempt
maritime employees working within California’s territo-
rial waters. 709 F. Supp. at 1523 n.7.° We conclude that,
within these limits, the scope of the declaratory relief met
the Constitution’s case and controversy requirements. See
Babbitt v. United Farm Workers Nat'l Union, 442 U.S. at
298-305.
STANDARD OF REVIEW
We review a grant of summary judgment de novo.
Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416,
1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990).
DISCUSSION
This appeal turns on one core issue: Does federal law
preempt California from applying its overtime pay laws to
off the California coast that do not engage in foreign, intercoastal, or
coastwise voyages. See 709 F. Supp. 1519, 1523-25. This ambiguity
may be due to the fact that the employees involved in this action work
on coastwise vessels, see 46 C.F.R § 70.10-13 (1988) (defining “coast-
wise vessels’ as vessels “normally navigating the waters... 20
nautical miles or less offshore”), but were not in fact engaged in
coastwise voyages, see 709 F. Supp. at 1524. We resolve any arguable
ambiguity over the scope of the relief granted by the district court by
limiting the scope of our opinion to those employees described and
discussed by the district court, i.e., maritime employees who work off
the California coast on vessels that do not engage in foreign, inter-
coastal, or coastwise voyages. We do not address the question
whether Aubrey is preempted by federal law from applying Califor-
nia’s overtime pay laws to maritime employees employed primarily on
the high seas on coastwise vessels engaged in coastwise voyages.
*PMSA agrees in its brief to this court that Aubry “is currently
free to apply California’s overtime laws to non-F LSA-exempt, general
maritime law seamen [i.e., maritime employees] with respect to work
that takes place primarily within California’s territorial waters.”
aes Re Ra eet at tre ts ee ee
A-11
seamen working on territorial waters and on the high seas
off the California coast and to maritime employees work-
ing primarily on the high seas off the California coast,
when the vessels on which the employees work do not
engage in foreign, intercoastal, or coastwise voyages? For
the reasons stated below, we hold that it does not.
PMSA and Tidewater contend that California’s over-
time pay laws are preempted by two federal statutes—the
Shipping Act and the FLSA—and by general admiralty
law. To decide whether a federal statute preempts state
law, “our sole task is to ascertain the intent of Congress.”
California Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272,
280 (1987). Federal law preempts state law if (1) Con-
gress expressly so states, (2) Congress enacts compre-
hensive laws that leave no room for additional state
regulation, or (3) state law actually conflicts with federal
law. Id. at 280-81: see Silkwood v. Kerr-McGee Corp., 464
U.S. 238, 248 (1984): Chevron U.S.A., Inc. v. Hammond,
726 F.2d 483, 486 (9th Cir. 1984), cert. denied, 471 U.S.
1140 (1985).
States, however, possess broad authority under their
police powers to regulate the employment relationship to
protect resident workers. De Canas v. Bica, 424,U.S. 351,
356 (1976). Thus, in addressing the preemption question
before us, “ ‘we start with the assumption that the historic
powers of the States were not to be superseded by
[federal legislation] unless that was the clear and mani-
fest purpose of Congress.’”’ Chevron U.S.A., Inc. v. Ham-
mond, 726 F.2d at 488 (quoting Rice v. Santa Fe Elevator
Corp., 331 U.S. 218, 230 (1947)) (emphasis added in
Hammond).
eee
A-12
I. The Shipping Act
PMSA and Tidewater assert that Congress preempted
Aubry’s actions in this case by extensively regulating
maritime employment through the Shipping Act. The
district court rejected this contention and held that
Aubry’s enforcement of California’s overtime provisions
to maritime employees on the high seas and seamen is not
preempted by statutory maritime law. See 709 F. Supp.
1523-24. According to the district court, “[m]aritime
statutes simply do not purport to govern the overtime
wages of employees such as those in this action.” 709 F.
Supp. at 1524. We agree with the district court’s conclu-
sion that the Shipping Act does not preempt California
overtime pay lawa with respect to the seamen and mari-
time employees at issue in this case.
The Shipping Act does govern some maritime employ-
ees’ wages, hours, and working conditions. See 46 U.S.C.
§§ 10301-10908. As the district court noted, however,
these provisions do not apply to the employees involved in
this appeal, because they cover only vessels engaged in
foreign, intercoastal, or coastwise voyages. Id.’ Further,
while all maritime employees are covered by certain provi-
sions relating to “protection and relief,” e.g., aecommoda-
tions on ship, 46 U.S.C. $11101, medical care for
maritime workers, 46 U.S.C. § 11102, and limitations on
attachment of wages, 46 U.S.C. § 11109, these provisions
in no way regulate overtime pay.
"The district court found: “The crewmembers whose claims precipi-
tated this action were not on ‘voyages’ that fall under any of these
three categories. Their vessels either stayed on the high seas sur-
rounding the oil rigs or ‘voyaged’ between one port and the oil rigs.”
709 F. Supp. at 1519.
Beer as Pe LD ni Re sich othe ality
A-13
PMSA and Tidewater both argue, however, that to
apply California’s overtime pay laws to maritime employ-
ees and seamen conflicts with 46 U.S.C. § 8104, which sets
“manning requirements” — including maximum hours
and minimum “watches” — for maritime workers.° Under
46 U.S.C. § 8104(b),
[o]n an oceangoing or coastwise vessel of not more
than 100 gross tons (except a fishing, fish processing,
or fish tender vessel), a licensed individual may not
be required to work more than 9 of 24 hours when in
port, including the date of arrival, or more than 12 of
24 hours at sea, except in an emergency when life or
property are [sic] endangered.
Maritime employers who violate this section are subject to
civil penalties. 46 U.S.C. § 8104(i), (j). PMSA and Tide-
water contend that California’s overtime pay laws, which
require overtime pay for hours worked in excess of eight
hours per day, conflict with this federal statutory provi-
sion by creating a maximum below the 12 hour maximum
established in section 8104(b).
We reject this contention. We addressed a similar
argument in Agsalud v. Pony Express Courier Corp. of
Am., 833 F.2d 809 (9th Cir. 1987) (“Agsalud”). In that
case, a motor carrier contended that the state of Hawaii’s
overtime pay law was preempted by the federal Motor
Carrier Act, 49 U.S.C. §§ 3101-3104. Regulations issued
under the Motor Carrier Act generally provided for a
maximum work week of 60 hours, while the Hawaii statute
required overtime pay for work in excess of 40 hours per
week. Id. at 810. We held that, absent a showing that the
*Section 8104 is not limited to vessels engaged in foreign, inter-
coastal, or coastwise voyages, and, therefore, applies to the employees
at issue in this case. See 46 U.S.C. § 8101-8105.
A-14
state law had the effect of establishing a firm maximum on
hours worked different from the maximum set by federal
law, Hawaii’s overtime pay provisions did not conflict
with federal law, and were not preempted. Jd. We ex-
plained that “[o]ne need not be an economist to realize
that some employers may continue to provide more than
40 hours of work even though an overtime premium is
required, because paying the premium may be cheaper
than the alternatives of not providing service to custom-
ers or hiring new help.” 7d.
Our reasoning in Agsalud applies with equal force here.
PMSA and Tidewater have made no showing that the
effect of Aubry’s enforcement action will be to set a firm
maximum different from that set in 46 U.S.C. § 8104. The
argument that California’s overtime pay law conflicts with
section 8104 of the Shipping Act and is preempted,
therefore, fails.
While the Shipping Act does comprehensively regulate
maritime activities, it does not regulate overtime pay for
the workers involved in this case. The Shipping Act does
not preempt California from applying its overtime pay
laws to the seamen and maritime empioyees involved in
this action.
II. The FLSA
After rejecting PMSA and Tidewaters’ Shipping Act
preemption argument, the district court held that the
FLSA preempted California overtime pay laws with re-
spect to the employees at issue in this case. The district
court concluded that, with respect to FLSA-exempt
seamen, Congress’ decision to exclude seamen from the
federal act’s overtime provisions evinced its intent to
preempt all state overtime laws as to those employees,
whether on territorial waters or on the high seas. 709
rr —
A-15
F.Supp. at 1525. The district court further held that, with
respect to general maritime employees, California over-
time provisions conflict with the FLSA, and that the
FLSA’s savings clause’ cannot save state laws regulating
workers on vessels “primarily situated on the high seas.”’
709 F.Supp. at 1524-25.
A. Exemption of Seamen from the FLSA
We address first the question whether, by exempting
seamen from federal overtime coverage under 29 U.S.C.
213(b) (6), Congress preempted California’s overtime
laws with respect to seamen. We hold that section
213(b) (6) does not preempt California from applying the
state’s overtime pay laws to FLSA-exempt seamen work-
ing off the California coast.
The Seamen involved in this case work both on Califor-
nia’s territorial waters and on the high seas.” The district
court held that the FLSA preempts California’s overtime
provisions as applied to seamen on the high seas and on
territorial waters, reasoning that, because seamen are
exempt from federal overtime provisions under the
FLSA, 29 U.S.C. §213(b)(6), “Congress has spoken
directly on the issue of overtime pay for seamen.” 709
F.Supp. at 1525. This holding raises an important issue
regarding the effect of a specific exemption of a category
of maritime workers — seamen — from coverage under
federal law, i.e., should the specific legislative provision
"Under 29 U.S.C. § 218(a), no provision of the FLSA preempts
another federal, state, or municipal law from “establishing a mini-
mum wage higher than the minimum wage established under [the
FLSA] or a maximum workweek lower than the maximum workweek
established under [the FLSA].”
As noted above, “seamen” as used by the district court is defined
more narrowly than “maritime employee.”
A-16
exempting seamen from the FLSA’s overtime compensa-
tion standards be read broadly to indicate congressional
intent to preclude states from regulating the subject of
seamen’s overtime compensation?
No Ninth Circuit case squarely addresses this issue.
We turn, then, to an examination of the language and
legislative history of the FLSA.
When Congress originally enacted the FLSA of 1938, it
exempted seamen from coverage under the act’s minimum
wage and overtime provisions. In 1961, Congress brought
seamen employed on American vessels under the FLSA’s
minimum wage provisions, but maintained their exemp-
tion from coverage under the act’s overtime provisions. At
no time has Congress expressly prohibited states from
applying their overtime laws to seamen. Further, PMSA
and Tidewater point to nothing in the legislative history
of § 213(b) (6) — either in the 1938 act or in the 1961
amendments to the FLSA — that suggests that Congress
intended to preclude application of state overtime provi-
sions to seamen. Our review of the legislative history has
revealed no such congressional intent.”
"See Joint Hearings on 8. 2475 and H.R. 7200 Before the Senate
Comm. on Education and Labor and the House Comm. on Labor, 75th
Cong., lst Sess. 544-549, 1216-17 (1937); 82 Cong. Ree. 1784 (1937);
82 Cong. Rec. 7875 (1937). See also Hearings on Various Bills
Regarding Minimum Wage Legislation Before the Subcomm. on Labor
Standards of the House Comm. on Education and Labor, 86th Cong., 2d
Sess. 885-92, 895-96, 920-48, 1522-23 (1960); Hearings on H.R. 3935
and Various Bills Regarding Minimum Wage Legislation Before the
Special Subcomm. on Labor of the House Comm. on Education and
Labor, 87th Cong., 1st Sess. 63-64, 83, 379-80, 597-99 (1961); Hear-
ings on §. 256, 8. 879, 8. 895 and Bills Amending the Fair Labor
Standards Act Before the Subcomm. on Labor of the Senate Comm. on
Labor and Public Welfare, 87th Cong., lst Sess. 15, 41, 376-93, 558,
ge —~— —
A-17
The legislative history of the FLSA does show that
Congress considered the special circumstances of mari-
time and other types of labor when it exempted seamen
and other employees from the FLSA’s overtime and
minimum wage provisions. Federal Amicus argues, how-
ever, and we agree, that in exempting seamen from cover-
age under the 1938 act’s overtime and minimum wage
provisions, Congress intended to prevent overlapping reg-
ulation of wage and hour conditions of seamen by differ-
ent federal agencies. See Joint Hearings on 8. 2475 and
H.R. 7200 Before the Senate Comm. on Education and
Labor and the House Comm. on Labor, 75th Cong., 1st
Sess. 546-49, 1216-17 (1937); 82 Cong. Rec. 1784-85, 7875
(1937); see also 29 C.F.R. § 783.29 (1989) (discussing
legislative history of exemption).’ Further, the extensive
legislative history of the 1961 amendments to the FLSA
makes clear Congress’ determination that federal mini-
mum wage levels for seamen were necessary, but discloses
nothing indicating that, by leaving the exemption of
682-83 (1961); H.R. Rep. No. 75, 87th Cong., lst Sess. 13-14, 31
(1961); S. Rep. No. 145, 87th Cong., lst Sess. 103 (1961).
"Under the FLSA of 1938 as proposed, all wage and hour claims
were to be handled by a new Labor Standards Board. At the time
Congress was considering the proposed legislation, however, mari-
time employees’ wage and hour claims were handled by the Maritime
Commission under the Merchant Marine Act of 1936. See Joint
Hearings on 8. 2475 and H.R. 7200 Before the Senate Comm. on
Education and Labor and the House Comm. on Labor, 75th Cong., lst
Sess. 1216-17. At least one witness testifying on behalf of organized
labor supported the exemption of seamen from the FLSA’s overtime
and minimum wage provisions on the ground that overlapping federal
agency jurisdiction over seamen’s wage and hour claims could
threaten gains already achieved by organized maritime labor before
the Maritime Commission. See id. at 544-49 (testimony of Ralph
Emerson, Legislative Representative, National Maritime Union of
America).
A-18
seamen from the FLSA’s overtime provisions in place,
Congress intended to preclude states from applying over-
time pay provisions to FLSA-exempt seamen.’®
Related case authority supports the conclusion that,
absent clear congressional intent to the contrary, the
exemption of seamen from the FLSA’s overtime provi-
sions does not, per se, preempt California from applying
its overtime pay laws to seamen. In Agsalud, for example,
we held that the exemption of truck drivers engaged in
interstate transportation of goods from the FLSA’s over-
time provisions did not preempt state overtime laws as to
those workers. 833 F.2d at 810. In reaching that conclu-
sion, we expressly adopted the reasoning of Pettis Moving
Co., Inc. v. Roberts, 784 F.2d 439 (2d Cir. 1986) (‘Pettis
Moving Co.”’), and Williams v. W.M.A. Transit Co., 472
F.2d 1258 (D.C. Cir. 1972) (“Williams”), two cases
involving the question whether exemption of certain em-
ployees from the FLSA’s wage provisions, per se,
preempts state law with respect to those employees. See
Agsalud, 833 F.2d at 810.
In Pettis Moving Co., a New York motor carrier argued
that, because Congress exempted employees of interstate
motor carriers from coverage under the FLSA’s overtime
'8See Hearings on Various Bills Regarding Minimum Wage Legisla-
tion Before the Subcomm. on Labor Standards of the House Comm. of
Education and Labor, 86th Cong., 2d Sess. 885-92, 895-96, 920-48,
1522-23 (1960); Hearings on H.R. 3935 and Various Bills Regarding
Minimum Wage Legislation Before the Special Subcomm. on Labor of
the House Comm. on Education and Labor, 87th Cong., Ist Sess. 63-64,
83, 379-80, 597-99 (1961); Hearings on 9. 256, 8. 879, S. 895 and Bills
Amending the Fair Labor Standards Act Before the Subcomm. on Labor
of the Senate Comm. on Labor and Public Welfare, 87th Cong., lst
Sess. 15, 41, 376-93, 558, 682-83 (1961); H.R. Rep. No. 75, 87th Cong.,
lst Sess. 13-14, 31 (1961); S. Rep. No. 145, 87th Cong., 1st Sess. 103
(1961).
A-19
provisions, New York could not apply its overtime pay
laws to those employees. The Second Circuit first empha-
sized that “[t]raditional powers of the states... are not
superseded by federal acts unless that was the clear and
manifest purpose of Congress.” 784 F.2d at 441 (citing
Ray v. Atlantic Richfield Co., 435 U.S. 151, 157 (1978) ).
The court then noted that the FLSA’s savings clause
“explicitly permits states to set more stringent overtime
provisions than the FLSA,” and held that “Congress did
not prevent the states from regulating overtime wages
paid to workers exempt from the FLSA.” 7d. at 441.
In Williams, the D.C. Circuit addressed the question
whether the District of Columbia’s minimum wage laws
could be applied to bus drivers who were employed by
interstate motor carriers and, therefore, were exempted
from the FLSA’s minimum wage provisions. That court
also relied on the FLSA’s savings clause in finding no
preemption: “This section expressly contemplates that
workers covered by state law as well as FLSA shall have
any additional benefits provided by the state law —
higher minimum wages; or lower maximum workweek. By
necessary implication it permits state laws to operate
even as to workers exempt from FLSA.” 472 F.2d 1261.
Finally, at least one district court in our circuit has
held that Congress’ exemption of certain maritime em-
ployees from coverage under a maritime wage statute did
not preempt a state from regulating those employees’
wages. In Sewell v. M/V Point Barrow, 556 F. Supp. 168
(D. Alaska 1983) (Fitzgerald, D.J.), workers employed
on vessels engaged in offshore test drilling off the Alaska
coast filed an action to recover unpaid wages and for
penalties under state and federal law. After hcelding the
employees were exempted from coverage under the fed-
A-20
eral statute,’* the court reached the employer’s contention
that “the exemption of coastwise vessels from the [fed-
eral] penalty provisions...demonstrate[d] a congres-
sional intent that seamen employed on coastwise vessels
not receive delayed wage payment penalties.” Jd. at 169.
The court rejected this argument based on its conclusion
that Congress did not intend, by exempting coastwise
seamen, to preempt state wage penalty laws, but rather
intended that coastwise seamen would be treated like
other workers under state law. Jd. at 170.
Based on these authorities and on general principles of
federal preemption, we hold that, in light of the plain
language of the FLSA’s savings clause and in the absence
of a clear indication from Congress to the contrary,
§ 213(b) (6) does not preclude enforcement of Califor-
nia’s overtime provisions to protect the California-resi-
dent seamen in this case. The district court erred by
holding that section 213(b) (6) preempts California over-
time pay laws with respect to FLSA-exempt seamen on
the high seas and within the territorial zone off the
California coast.
B. Non-FLSA-Exempt Maritime Employees on the
High Seas
We next address the question whether the FLSA
preempts California from applying the state’s overtime
“The employees sought penalties for failure to pay wages under 46
U.S.C. § 596, which provides that an employer who fails to pay wages
shall pay a penalty equal to two days’ wages for each unpaid day.
Under 46 U.S.C. § 544, however, employees on “coastwise” voyages
are exempted from 46 U.S.C. § 596. The district court in Sewell v.
M/V Point Barrow held that the employees who brought the action
were employed on vessels engaged in coastwise trade and were
exempt from coverage under 46 U.S.C. § 596.
aa
A-21
pay laws to maritime workers, not exempt from the
FLSA, who work on vessels situated primarily on the high
seas off the California coast.
The parties agree that California’s overtime pay laws
and the FLSA overtime provisions that cover non-exempt
maritime employees conflict, and tuat California’s provi-
sions are more generous than the FLSA.” The key issue
is whether the FLSA’s savings clause allows California to
apply its more generous overtime laws to the maritime
workers involved in this case. The savings clause provides
in relevant part:
No provision of this chapter or of any order there-
under shall excuse noncompliance with any federal or
State law or municipal ordinance establishing a mini-
mum wage higher than the minimum wage estab-
According to the district court, “the California overtime provi-
sions and the FLSA provisions produce widely differing results.” 709
F. Supp. at 1524. The most important differences between Califor-
nia’s overtime pay provisions and the FLSA are as follows: under
California law, overtime at one and one-half times an employee's
regular rate must be paid after eight hours work per day, 8 Cal. Code
Regs. § 11040.3(A)(1), while under the FLSA, overtime must be
paid after 40 hours work per week, 29 U.S.C. § 207(a); 29 C.F.R.
§ 778.101; under California law, all hours in excess of 12 per day must
be paid at double time, 8 Cal. Code Regs. § 11040.3(A) (2), while the
FLSA contains no such provision; under California law, “hours
worked” is defined broadly, to include “the time during which an
employee is subject to the control of an employer,” 8 Cal. Code Regs.
§ 11040.2(H), while under the FLSA “hours worked” as applied to
seamen includes only hours when the employee is “actually on duty,”
29 U.S.C. § 206(a) (4); and under California law, payments to em-
ployees on a “fluctuating workweek” basis — i.e., by fixed salary that
reflects average hours worked — are not permitted, Skyline Homes,
Inc. v. Dept. of Indus. Relations, 165 Cal. App. 3d 239, 211 Cal. Rptr.
792 (1985), while under the FLSA, such payments are allowed in
certain limited circumstances, 29 C.F.R. § 778.114.
A-22
lished under this chapter or a maximum workweek
lower than the maximum workweek established under
this chapter....
29 U.S.C. § 218(a).
Aubry and federal amicus contend that the savings
clause signals Congress’ intent that the wage and hour
standards set in the FLSA are a floor, and that states are
free to establish wage and hour levels higher or more
generous than the FLSA standards. They further argue
that Congress, in enacting the FLSA, evinced no intent to
preclude maritime workers’ benefiting from the savings
clause. The district court rejected this argument, based
on iis conclusion that principles of federal admiralty law
require that the FLSA’s savings clause be construed
restrictively in this case. The district court reasoned:
(T]he FLSA’s savings clause cannot properly be
construed to save state laws that seek to regulate the
employment of maritime employees whose work situs
is a vessel normally situated on the high seas. This is
so because Congress may not constitutionally dele-
gate its maritime jurisdiction to the states. Such a
delegation would destroy the harmony and uniform-
ity of admiralty law established by the Constitution.
Thus, under compulsion of the Constitution, the sav-
ings clause must be interpreted as not applying to
maritime employees employed primarily on the high
seas.
709 F.. Supp. at 1524-25 (citations omitted). According to
the district court, while this restrictive interpretation of
the savings clause “lacks direct precedential support,”
common sense demanded it. Jd. at 1525.
For the reasons stated below, we hold that the district
court erred. Neither the FLSA, by its terms, nor general
A-23
admiralty law preempts California from applying the
state’s overtime pay laws to non-exempt maritime workers
at issue in this case.
1. Jensen and its Progeny
The district court based its restrictive reading of sec-
tion 218 on a long line of cases, beginning early in this
century, in which courts limited states’ power to regulate
maritime activities on the ground that the United States
Constitution requires uniformity in admiralty law. Arti-
cle III, Section 2 of the Constitution provides in part that
the judicial power of the United States shall extend “to
all cases of admiralty and maritime jurisdiction.” The
Supreme Court has held that this provision, by implica-
tion, grants Congress the power to revise and supplement
the maritime law, and grants federal courts power to
develop the general maritime law. See Romero v. Interna-
tional Terminal Operating Co., 358 U.S. 354, 360-61
(1959).
In Southern Pac. Co. v. Jensen, 244 U.S. 205, 216 (1917)
(“Jensen”), the Supreme Court restricted states’ author-
ity in maritime matters based on this constitutional grant
of authority to the federal government. Under the so-
called Jensen doctrine, no state legislation concerning
navigation is valid
if it contravenes the essential purpose expressed by
an act of Congress or works material prejudice to the
characteristic features of the general maritime law,
or interferes with the proper harmony and uniformity
of that law in its international and interstate
relations.
A-24
This
limitation, at the least, is essential to the effective
operation of the fundamental purposes for which
[the maritime] law was incorporated into our na-
tional laws by the Constitution itself.
Jensen, 244 U.S. at 216. This rule was extended in Knick-
erbocker Ice Co. v. Stewart, 253 U.S. 149 (1920) (“Knicker-
bocker Ice’), where the Supreme Court struck down an
act of Congress that directly granted states authority to
apply state workers compensation laws to maritime em-
ployers. The Court stated that the delegation was “‘be-
yond the power of Congress.” Jd. at 164.
Here, the district court reasoned that the constitutional
considerations underlying Jensen and Knickerbocker Ice
foreclosed straightforward application of the FLSA’s sav-
ings clause to a specific category of workers — maritime
employees employed primarily on the high seas. According
to the district court, allowing the FLSA’s savings clause
to permit California’s actions in this case would effect a
delegation of maritime authority, invalid under Knicker-
bocker Ice, and would otherwise be invalid as destructive
of harmony in federal admiralty law.
We disagree with the district court’s holding that
section 218, if construed to allow Aubry’s actions with
respect to maritime employees on the high seas, would in
effect be a delegation of congressional maritime powers to
the state. California’s actions in this case represent an
exercise of traditional police powers firmly in place before
Congress enacted the FLSA. See West Coast Hotel Co. v.
Parrish, 300 U.S. 379, 393 (1937) (“In dealing with the
relation of employer and employed, the [state] has neces-
sarily a wide field of discretion in order that there may be
suitable protection of health and safety, and that peace
A-25
and good order may be promoted through regulations
designed to insure wholesome conditions of work and
freedom from oppression.”). Thus Congress did not
“delegate” authority to the states through section 218,
but simply made clear its intent not to disturb the
traditional exercise of the states’ police powers with
respect to wages and hours more generous than the
federal standards. We cannot read section 218 as a
delegation, and, therefore, conclude that Knickerbocker
ice does not control this case.
This conclusion, however, does not settle the issue
before us. General principles of admiralty law still limit
states’ authority to regulate maritime activities. We must
determine whether, under Jensen and its progeny, those
principles require a restrictive reading of section 218 in
this case.
“The Jensen doctrine, though easily stated, is not easily
applied.” 1 Friedell, Benedict on Admiralty, § 112, at 7-36
(7th ed. 1987).’° The Supreme Court long ago rejected a
rigid per se rule that all state regulation of maritime
activities is constitutionally invalid. In Askew v. American
Waterways Operators, Inc., 411 U.S. 325, 338 (1973), for
example, a unanimous court explained that Jensen and
Knickerbocker have been “limited by subsequent holdings
of [the] Court.” In Romero v. Int’l Terminal Operating
Co., 358 U.S. at 373, the Court explained that Jensen’s
limitation on state authority “still leaves the States a
wide scope.” See also Just v. Chambers, 312 U.S. 383, 388
'© See generally 1 Friedell, Benedict on Admiralty, §§ 11-114, at 7-31
to 7-72 (reviewing doctrine limiting power of states to independently
regulate maritime matters); Gilmore and Black, The Law of Admi-
ralty 49-50 (same); D. Robertson, Admiralty and Federalism 200
(1970) (same); Currie, Federalism and the Admiralty: “The Devil’s
Own Mess,” S. Ct. Rev. 158 (1960) (same).
A-26
(1941) (state may modify or supplement maritime law);
Maryland Casualty Co. v. Cushing, 347 U.S. 409, 429
(Black, J., dissenting) (except in limited circumstances,
“states are free to make laws relating to maritime
affairs’’).
Yet the Court has demonstrated the continuing force of
Jensen. In Offshore Logistics, Inc. v. Tallentire, 477 U.S.
207 (1986) (‘“Tallentire’’), the Court held that the federal
admiralty law — specifically, the Death on the High Seas
Act (DOHSA), 46 U.S.C. §§ 761-768 — preempted Loui-
siana’s wrongful death statute, notwithstanding a
DOHSA savings clause that provided that “[t]he provi-
sions of any State statute giving or regulating rights of
action or remedies for death shall not be affected” by the
DOHSA. The Court cited Jensen for the proposition that
“* njo [state] legislation is valid if it contravenes the
essential purpose expressed by an act of Congress.’”’ Jd.
at 298 (quoting Jensen, 244 U.S. at 216); see also Askew v.
American Waterways Operators, Inc., 411 U.S. at 344
(acknowledging that Jensen “has vitality left’’).
Our review of relevant case authority leads us to con-
clude that the general rule on preemption in admiralty is
that states may supplement federal admiralty law as
applied to matters of local concern, so long as state law
does not actually conflict with federal law or interfere with
the uniform working of the maritime legal system.’’ The
See 1 Friedell, Benedict on Admiralty § 112, at 7-36; Gilmore and
Black, The Law of Admiralty 50 (2d ed. 1975); Tribe, American
Constitutional Law 304 (2d ed. 1988). There is ample support for this
rule in our cireuit. See Chevron U.S.A., Inc. v. Hammond, 726 F.2d
483, 496 (9th Cir. 1984), cert denied, 471 U.S. 1140 (1985) (state law
should be preempted only to the extent necessary to protect the
achievement of the aims of the federal act in question); Wasyl, Inc. v.
First Boston Corp., Inc., 813 F.2d 1579, 1582 (9th Cir. 1987) (same);
A-27
questions, then, are (1) whether applying California’s
overtime provisions to maritime employees on the high
seas contravenes an act of Congress, and (2) whether
applying the provisions would unduly disrupt uniformity
in maritime law.
2. Does California’s Overtime Pay Law Contravene
an Act of Congress?
The district court found, and we agree, that the mari-
time employees “fall in the interstices between express
federal maritime statutes.” 709 F. Supp. at 1525. Mari-
time statutes do not apply to maritime employees, like
these, who are not on vessels making foreign, intercoastal,
or coastwise voyages. In addition, Congress has specifi-
cally allowed states to enforce overtime laws more gener-
ous than the FLSA, 29 U.S.C. § 218(a), and we find no
indication that Congress intended that maritime employ-
ees not benefit from more generous state wage and hour
laws. California’s attempt to supplement federal law in
this case does not present an irreconcilable conflict with
the statutory maritime law or with the FLSA; it does not
“contravene the essential purpose expressed by an act of
Congress.” Cf. Tallentire, 477 U.S. at 298; Jensen, 244 U.S.
at 216.
Bergen v. F/V St. Patrick, 816 F.2d 1345, 1348-49 (9th Cir. 1987)
(“ ‘there is a basic difference between filling a gap left by Congress’
silence and rewriting rules that Congress has affirmatively and
specifically enacted’”) (quoting Mobile O1l Corp. v. Higginbotham,
436 U.S. 618, 624-25 (1978)); Sewel v. M/V Point Barrow, 556 F.
Supp. 168, 169 (D. Alaska 1983) (“admiralty courts may recognize
and enforce rights and obligations created by state law”). Other
circuits’ cases also support the rule. See Carey v. Bahama Cruise
Tanes, 864 F.2d 201, 207 (1st Cir. 1988); Exzon Corp. v. Chick Kam
Choo, 817 F.2d 307, 317-18 (5th Cir. 1987), rev'd on other grounds,
—_._ U.S. —_, 108 S. Ct. 1684 (1988); Steelmet, Inc. v. Caribe Towing
Corp., 779 F.2d 1485, 1488 (11th Cir. 1986).
A-28
This case, therefore, differs significantly from two re-
cent Supreme Court decisions the district court relied on
in narrowly construing section 218 of the FLSA: Oil,
Chem., & Atomic Workers, Int'l Union, AFL-CIO v. Mobil
Oil Corp., 426 U.S. 407 (1976) (“Mobil Oil’), and Tallen-
tire. Mobil Oil Corp. and Tallentire both involved interpre-
tation of savings clauses in federal statutes, and the
Court construed the savings clauses narrowly in each
ease. Mobil Oil and Tallentire, however, do not require a
restrictive interpretation of section 218 of the FLSA in
this case.
The issue in Mobil Oil was whether Texas could apply
its “right-to-work” laws to workers employed on oil tank-
ers on the high seas off the Texas coast. Like the present
case, Mobil Oil required interpretation of a savings clause
— federal labor statutes expressly allow so-called union
“agency shop” agreements,” 29 U.S.C. § 158(a) (3), but
also allow states to prohibit such agreements through
“right-to-work” laws, 29 U.S.C. § 164(b). The Court, as a
matter of statutory interpretation, held that the savings
clause at issue could not be read to allow Texas to apply
its right-to-work laws to maritime employees who worked
on the high seas outside of the state’s territorial waters.
In so holding, however, the Court relied on clear legisla-
tive history expressing congressional intent to restrict the
savings clause’s reach. Congress, the Court concluded,
“viewed [the savings clause] as allowing a State to ban
[agency shop] agreements calling for work to be per-
formed within the State.” 426 U.S. at 418 (emphasis
An ‘agency shop’ agreement generally provides that while em-
ployees do not have to join the union, they are required ... to pay the
union @ sum equal to the union initiation fee and are obligated as well
to make periodic payments to the union equal to the union dues.”
Mobil Oil, 426 U.S. at 409 n.1.
A-29
added). Further, the Court noted that the purpose and
effect of Texas right-to-work law directly conflicted with
the federal statute. Jd. at 417.
In Tallentire, the Court held that a DOHSA savings
clause that allowed wrongful death actions in state courts
for deaths on the high seas did not allow states to apply
their substantive state wrongful death laws to deaths on
the high seas, but instead only preserved state court
jurisdiction to hear wrongful death actions under the
DOHSA. 477 U.S. at 220-32. As in Mobil Corp., the Court
based its restrictive interpretation of the savings clause
at issue on the language, purpose, and legislative history
of the federal statute.’® And again, the Court noted the
clear conflict between the state law and federal statute:
““No reasonable doubt could be entertained of the dis-
placement of state remedies for deaths occurring on the
high seas because the conflicting federal standard was not
derived just from general federal maritime law; it was
explicitly provided for by federal legislation directly on
point.” Jd. at 228. Further, the Court noted that an
express purpose of Congress in enacting the DOHSA was
to achieve uniformity in wrongful death actions for deaths
on the high seas. Jd. at 230-31.
In contrast to the savings clauses at issue in Mobil Oil
and Tallentire, we find no indication in the language or
legislative history of the FLSA’s savings clause that
Congress intended that section 218 not allow states to
apply more generous overtime pay laws to maritime work-
That history revealed strong expressions by bill supporters that
federal law would apply exclusively to actions for deaths on the high
seas. See Tallentire, 477 U.S. at 223-30. See also Gray, Applicability of
State Wrongful Death Statutes on the High Seas, 18 J. Mar. L. & Com.
67, 81-88 (1987) (discussing Tallentire and legislative history of
DOHSA savings clause).
A-30
ers working on the high seas. In addition, California’s
more protective overtime provisions are compatible with,
rather than conflict with, the federal statute. Compatible
state law may supplement federal admiralty law. See
Chevron U.S.A., Inc. v. Hammond, 726 F.2d at 495-501
(finding no conflict between federal maritime statute and
more stringent state maritime law provisions); Sewell v.
M/V Point Barrow, 556 F. Supp. at 170-71 (same).
Neither Mobil Oil nor Tallentire requires preemption in
this case.”
3. Does California’s Overtime Pay Law Unduly
Disrupt Uniformity in Admiralty Law?
The district court based its holding in part on the
“common sense” notion that “the uniformity of federal
admiralty law would be destroyed if the states were
permitted to ‘add on’ to the federal law enacted by
Congress.” 709 F. Supp. at 1525. Likewise, PMSA and
Tidewater argue on appeal that allowing states to enforce
their overtime provisions against maritime employers
would produce a “crazy-quilt pattern of regulation.”
Cases in our circuit relied on by PMSA and Tidewater are also
distinguishable on the ground that the state laws invalidated as
preempted by federal law in those cases were in direct conflict with
federal admiralty law. See Evich v. Morris, 819 F.2d 256, 257-58 (9th
Cir.), cert. denied, 484 U.S. 914 (1987) (state survival action pre-
empted by conflicting federal maritime survival law); Bergen v. F/V
St. Patrick, 816 F.2d 1345, 1348-49 (9th Cir. 1987) (state punitive
damages remedy in wrongful death action preempted by DOHSA,
which disallows punitive damages remedy); Nelson v. United States,
639 F.2d 469, 473 (9th Cir. 1980) (state wrongful death action
preempted by conflicting federal maritime wrongful death ‘aw);
Daughtry v. Diamond M Co., 693 F. Supp. 856, 861-63 (C.D. Cal.
1988) (state procedural rules on effect of settlement on joint
tortfeasors’ duty to contribute preempted by conflicting {federal
procedural rules).
A-31
The Constitution tolerates some disharmony in admi-
ralty law. As discussed above, states may supplement
admiralty law, and states’ supplementation of admiralty
law necessarily creates some discord in that law.”’ Never-
theless, Mobil O1l, Tallentire, and Jensen and its progeny
make clear that the interest in uniformity in admiralty
law must be considered in determining the validity of
state regulation of maritime activities. Our circuit has
also acknowledged the importance of uniformity in admi-
ralty law. See, e.g., Evich v. Morris, 819 F.2d 256, 257-58
(9th Cir.), cert. denied, 484 U.S. 914 (1987); Nelson v.
United States, 639 F.2d 469, 473 (9th Cir. 1980). We are
left, therefore, with the difficult question whether apply-
ing California’s overtime provisions to maritime employ-
ees who work on vessels on the high seas that do not
engage in foreign, intercoastal, or coastwise voyages wn-
duly disrupts harmony in the federal admiralty system, so
as to render unconstitutional Aubry’s actions. We hold
that it does not.
Whether Aubry’s application of California’s overtime
provisions unduly disrupts federal maritime harmony in
violation of the Constitution depends on the balance of
federal and state interests involved in application of the
overtime provisions. See Kossick v. United Fruit Co., 365
U.S. 731, 741-42 (1961); East River 8. S. Corp. v. Trans-
america Delaval, 476 U.S. 858, 864 n.2 (1986); Exzon
Corp. v. Chick Kam Choo, 817 F.2d 307, 317 (5th Cir.
1987), rev'd on other grounds, 108 S. Ct. 1684 (1988);
21 Al) state laws, if given effect in admiralty cases, interfere to a
degree with the uniformity of admiralty law.” Friedell, 1 Benedict on
Admiralty § 12, at 7-36; see also Romero v. International Terminal
Operating Co., 358 U.S. at 374 (“Maritime law is not a monistic
system.’’).
A-32
Steelmet, Inc. v. Caribe Towing Corp., 779 F.2d 1485, 1488
(11th Cir. 1986).
We conclude that the balance tips in favor of California
in this case. Under California law, the Labor Commission
is charged with enforcing state wage provisions to ensure
the health, safety, and welfare of resident employees. Cal.
Labor Code § 1173. Here Aubry has attempted to provide
additional protection to employees involved in work of
critical importance to the state — containment and clean-
up of marine oil spills. In addition, the record indicates
that the maritime employees involved in this case are
California residents, were interviewed and hired in Cali-
fornia, and pay California taxes. Their contacts with the
state are quite close: the vessels involved in this case do
not make coastwise, intercoastal, or foreign voyages; Mr.
Clean II is moored in a California harbor 90 percent of the
time and works exclusively on oil rigs off the California
coast; and Mr. Clean III is stationed exclusively off the
California coast and visits only California ports.
PMSA and Tidewater contend, however, that Califor-
nia’s interest in enforcing its overtime pay laws in this
case are undercut by Aubry’s failure to comply with state
administrative and procedural requirements regarding
wage and hour rulemaking and law enforcement. This
argument is misplaced. We emphasize that we are not
deciding here whether Aubry’s actions are valid as a
matter of California administrative and labor law. Our
task is to determine only whether, in this case, federal law
preempts California’s overtime pay provisions. The state's
interests in applying its overtime provisions here are
plain. PMSA and Tidewaters’ challenges to Aubry’s ac-
tion on state law grounds must be directed to the state’s
agencies and courts, and we assume here that the labor
A-33
commissioner’s actions comply fully with state law and
procedures.”
Ne eo nh
In contrast to the [sic] California’s strong interests,
Federal interests in precluding enforcement of Califor-
) nia’s overtime provisions in this case are relatively weak.
There is no indication that Congress, in enacting the
FLSA’s savings clause, intended to preempt states from
according more generous protection to maritime employ-
ees on the high seas off a state’s coastal waters. Further,
the purpose behind the FLSA is to establish a national
floor under which wage protections cannot drop, not to
establish absolute uniformity in minimum wage and over-
time standards nationwide at levels established in the
FLSA.
*4In some circumstances, comity requires that federal courts ab-
stain from considering actions for declaratory and injunctive relief
against state proceedings. See Fresh Int'l Corp. v. Agricultural Labor
Relations Bd., 805 F.2d 1353 (9th Cir. 1986); Younger v. Harris, 401
U.S. 37 (1971). According to the parties, however, no state court is
currently considering the issues raised in this appeal. “ ‘{T]he salient
fact’ in determining whether Younger abstention is appropriate ‘is
whether federal-court interference would unduly interfere with the
legitimate activities of the state.’”’ Sable Communications of Cal. v.
Pacific Tel. & Tel., 890 F.2d 190 (9th Cir. 1989) (quoting Middlesex
County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 433
n.12 (1982)). Here, we address only the purely federal question of
whether federal statutes and general admiralty law preempt Califor-
nia’s overtime pay laws. We do not address any state law issues
raised by Aubry’s actions. Because there is no ongoing state adjudi-
cation of the claims here at issue, and because the state law chal-
lenges to Aubry’s actions necessarily involve issues distinct from
those federal issues now before us, concerns of comity underlying the
Younger abstention doctrine are not present here. See Id.; Fresh Int'l
Corp. v. Agricultural Labor Relations Bd., 805 F.2d at 1358. The
district court was not required to abstain.
————
A-34
Most important, because the maritime employees in-
volved in this action are California residents who work on
vessels that operate exclusively off the California coast,
application of the state’s overtime law will not disrupt
international or interstate commerce. Uniformity in mari-
time law is required “only where the essential features of
an exclusive federal jurisdiction are involved.” 1 Friedell,
Benedict on Admiralty § 111, at 7-32; see Just v. Chambers,
312 U.S. at 388. The minimal impact that Aubry’s actions
would have on international and interstate maritime com-
merce leads us to conclude that the “essential features”’
of exclusive federal jurisdiction are not unduly burdened
in this case.”
We have focused in this section on the question
whether, under general admiralty principles, California is
preempted from applying the state’s overtime pay laws to
non-exempt maritime employees who work on vessels
situated primarily on the high seas that do not engage in
foreign, intercoastal, or coastwise voyages. But our analy-
sis applies as well to FLSA-exempt seamen who work on
such vessels. As we held above, allowing California to
apply its overtime pay laws to seamen does not conflict
with the FLSA; exemption from the FLSA’s overtime
provisions does not, per se, preempt state overtime laws.
Also, the balance between state and federal interests is
the same with respect to the seamen at issue in this case
as it is with respect to nonexempt maritime workers. The
*This further distinguishes the present case from Mobil Oil, in
which the Court noted the practical difficulties of allowing applica-
tion of the state law in that case. See 426 U.S. at 418-19. In Mobil Oil,
of the workers to which Texas sought to apply its laws, over half were
residents of other states; over one-third listed New York, rather than
Texas, as their port; and al) were on vessels that voyaged regularly
from Texas to New York or Rhode Island and back. 426 U.S. at 411.
The practical problems present in Mobil are not present in this case.
| A-35
Tidewater employee involved in the underlying action is a
California resident; he works, like other California-based
Tidewater empioyees, exclusively in California ports and
on the high seas off the California coast. Thus, as w'th the
maritime workers, we hold that allowing Aubry to apply
California’s overtime pay laws to the seamen involved in
this suit does not unduly disrupt federal admiralty law,
and, for that reason, is not constitutionally invalid.
Our conclusion that Aubry may constitutionally apply
California’s overtime provisions to maritime employees
and seamen who work on the high seas off the California
coast on vessels that do not engage in foreign, inter-
coastal, or coastwise voyages is supported by two recent
decisions in this circuit. In Chevron U.S.A., Inc. v. Ham-
mond, 726 F.2d 483, we upheld an Alaska statute gov-
erning the discharge of ballast by oil tankers in Alaska’s
territorial waters where federal maritime law — the Port
and Tanker Safety Act of 1978, 46 U.S.C. § 391 — also
regulated coastal ballast discharge. We recognized in
Hammond Alaska’s strong interest in preventing oil pollu-
tion off its coast, noting that “[t]he subject matter of
environmental regulation ... has long been regarded by
the [Supreme] Court as particularly suited to local regu-
lation.” Jd. at 488. We concluded that state and federal
regulation of the oil tankers were compatible, and that
“there is no... dominant national interest in uniformity
in the area of coastal environmental regulation.” Jd. at
492."* California has an equally strong interest in protect-
**We did note in Hammond that the interest in uniformity in
environmental regulation id greater where regulations cover activities
on the high seas. 726 F.2d at 492 n.2. Our concern there, however, was
clearly with regulation of international oil transport and international
environmental protection efforts. Jd. Here, as discussed above, the
federal interest in uniformity is not as great, because the employees
|
A-36
ing maritime employees that reside in the state and work
to protect California’s coastal environment. Hammond
thus lends support to Aubry’s actions on the facts of the
present case.
Also, in Sewell v. M/V Point Barrow, 566 F. Supp. 168,
the Alaska District Court applied the state’s wage laws to
certain maritime employees working off the Alaska coast.
The statute involved provided penalties, in the form of
extra wage payments, to state workers not timely paid by
maritime employers. Jd. at 169-70. The district court held
that, even though federal law did not provide such penal-
ties for the employees in the case, enforcement of the
Alaska statute was “fully compatible with federal mari-
time law,” and no “feature of federal maritime law...
would be impaired or frustrated by application of [the
statute].” Jd. at 170. Sewell thus supports the conclusion
that California may constitutionally apply its more gener-
ous overtime laws to protect California-resident workers
employed on the high seas off California’s coast under the
circumstances of this case.
The district court erred by holding that, under princi-
ples of federal admiralty law, the FLSA’s savings clause
eannot allow Aubry to apply California overtime laws that
afford greater protection than the FLSA to California-
resident maritime employees working primarily on the
high seas off the California coast on vessels that do not
engage in foreign, intercoastal, or coastwise voyages,
whether or not the employees are exempted from the
FLSA’s overtime provisions.
involved in this case are not engaged in foreign, intercoastal, or
coastwise voyages.
A-37
CONCLUSION
Neither the Shipping Act nor the FLSA precludes
Aubry’s actions in this case, and, under the principles
underlying Jensen and its progeny, applying California’s
overtime pay laws to these workers is not constitutionally
invalid. Here, California’s interest in protecting Califor-
nia-resident workers is great, the employees involved in
the action work exclusively in waters off the California
coast on vessels not engaged in foreign, intercoastal, or
coastwise voyages, and Congress has shown no intent to
preclude more generous state regulation of maritime
workers. Aubry is not preempted from applying Califor-
nia’s overtime provisions to the seamen and maritime
employees involved in this suit.
The district court’s judgment is REVERSED.
COPPLE, Senior District Judge, dissenting:
Judge Pregerson’s majority decision explains in exten-
sive detail the factual and procedural background of this
appeal. Those facts will therefore only be highlighted.
Twelve maritime employees filed complaints with the
California Labor Commission seeking recovery of unpaid
overtime wages due under the provisions of the California
Industrial Welfare Commission Orders (8 Cal. Code of
Regulations § 11345, et seg.). These maritime employees
were hired by CLEAN SEAS, a company that owns and
operates vessels which provide open ocean oil spill con-
tainment and recovery. The vessels are usually stationed
over oil fields located in the Santa Barbara Channel
approximately four to ten nautical miles off the California
coast.
Some of the maritime employees are organized into
crews that alternate work assignments in which they work
seven days on the vessel followed by seven days rest on
A-38
shore. At the beginning and end of the seven day work
assignments, the employees are transported via helicopter
or vessel to and from the California coast.
In addition to those twelve employees, a deck engineer
employed by TIDEWATER also filed a claim with the
California Labor Commissioner for overtime against his
employer. For that reason, TIDEWATER filed a com-
plaint in intervention and was an intervenor on appeal.
TIDEWATER provides offshore transportation in the
Santa Barbara Channel between its pier or mooring buoy
and oil rigs located between one and twelve miles
offshore.
The Labor Commissioner of the State of California held
a hearing pursuant to Cal. Lab. Code $98 et seq. and
made an award to each employee for unpaid overtime
wages. In response to these awards, the employers along
with various maritime associations filed a complaint for
declaratory and injunctive relief in the District Court.
The District Court found that all of the employees in
this action were engaged in activities on vessels which
either stayed on the high seas surrounding the oil rigs or
travelled between one port and the oil rigs located on the
high seas. The District Court concluded that California
could not apply its wage and hour provisions upon these
employees who were primarily employed on the high seas
because the Fair Labor Standards Act (“FLSA”), 29
U.S.C. § 201, et seg., preempted the application of such
state laws to employees on the high seas. In so conclud-
ing, the District Court granted the employers’ request for
declaratory and injunctive brief, but limited the scope of
the relief to, “(i) the FLSA-exempt seamen, whether
working within the terr‘toriat zone or on the high seas,
and (ii) maritime employees working primarily on vessels
on the high seas that are not engaged in foreign or
A-39
intercoastal voyages.” Pacific Merchant Shipping Ass’n v.
Aubry, 709 F.Supp. 1516, 1526 (C.D. Cal. 1989). The
District Court rejected a general federal admiralty law
preemption argument, but held that the FLSA preempted
California overtime pay laws with respect to the employ-
ees in this case.
A Court of Appeals may affirm a district court decision
either on the same grounds, or on different grounds as
those relied upon by the district court. J.M. Martinac
Shipbuilding v. Director, Office of Workers Compensation
Programs, 900 F.2d 180 (9th Cir. 1990). Therefore, it is
appropriate to examine whether the District Court’s deci-
sion is correct under either general federal admiralty law
or under the FLSA.
I. Preemption Under Federal Admiralty Law
All sides agree that state laws which conflict with
federal admiralty laws cannot be enforced by the state.
See, Southern Pacific Co. v. Jensen, 244 U.S. 205, 217
(1917); Daughtry v. Diamond M. Co., 693 F.Supp. 856,
861 (C.D.Cal. 1988). States may not apply their respec-
tive laws if the laws would “interfere with the proper
harmony and uniformity” of existing admiralty law.
Southern Pacific Cv., 244 U.S. at 216; See also, Knicker-
bocker Ice Co. v. Stewart, 253 U.S. 149 (1920) (striking
down an act of Congress which granted authority to the
states to apply their workers compensation laws to mari-
time employees). However, state laws which do not con-
flict with federal admiralty law and which do not conflict
with the essential characteristics of maritime uniformity
may be incorporated into federal admiralty law and ap-
plied. 14 Wright & Miller, Federal Practice & Procedure:
Jurisdiction 2d Section 3671, pp. 421-422; Askew v. Amer-
A-40
can Waterways Operators, Inc., 411 U.S. 325, 341-4z
(1973).
With respect to the present case, the district court
reasoned that while a number of federal provisions do
cover the overtime wages of seamen on a variety of
voyages, no federal maritime law expressly addressed the
overtime pay of the seamen and other maritime workers
such as those involved in this case. The court then con-
cluded that because the Maritime statutes did not purport
to govern the overtime wages of employees such as those
in this action, that maritime law did not preempt state
overtime regulations. This is also the position taken by
the employees and the United States.
This conclusion, however, does not conside> all appro-
priate aspects of maritime law. The first aspect is that the
employment relationship between the maritime employee
and his employer is governed by maritime contract law. In
Union Fish Co. v. Erickson, 248 U.S. 308 (1919) the
Supreme Court held that California’s statute of frauds
was preempted by federal maritime law when raised in
defense to a maritime contract claim. In reaching this
decision, the Court stated that an employment contract
between the master of a vessel and ihe vessel’s owner is
maritime in nature, and that any claim under the contract
must be resolved pursuant to federal admiralty law.
The second aspect not considered is that absent an
express contractual agreement to overtime pay, admiralty
law has no requirement that a seaman receive such pay.
Sorensen v. City of New York, 202 F.2d 857, 858-859 (2d
Cir. 1953), cert. denied, 347 U.S. 951 (1954). The lack of
an express overtime pay requirement for seamen under
federal admiralty law does not necessarily mean that the
federal government left the issue open to be decided by
the states. To the contrary — cases reveal that courts,
A-41
regardless of state law, typically enforce employment
contracts under admiralty law with respect to overtime
pay. See, e.g., The Youngstown, 110 F.2d 968, 970 (5th Cir.
1940), cert. denied, 311 U.S. 690 (1940) (overtime per-
formed and paid for in accordance with employment
contract fully complies with the federal admiralty law);
C.M. Rousseau, Jr. v. Teledyne Movable Offshore, Inc. 619
F. Supp 1513, 1518-1519 (D.La. 1985) (maritime employ-
ees held bound by employment agreement with respect to
overtime claim).
As Justice Story stated in the historical case of
DeLovio v. Bort, 2 Gall. 398, 7 F.Cas. 418 (C.C. Mass.
1815) (quoted in 14 C. Wright & A. Miller, Federal
Practice & Procedure § 3675), admiralty jurisdiction o/
the federal courts “comprehends all maritime con-
tracts. ..wheresoever they may be made or executed, or
whatsoever may be the form of the stipulations.” Delovio,
7 F.Cas. at 444. The employers point out that while the
admiralty statutes do not specifically provide for overtime
pay, admiralty law has developed through the federal
courts to the point that the absence of overtime regula-
tions means that maritime employers and employees may
freely negotiate for the terms of the employment con-
tracts apart from the strictures of state regulations.
This interpretation makes sense in light of the fact that
the conditions under which maritime employees work,
especially those working on the high seas, are substan-
tially different from land-based employees. Land-based
employees are able to return home every night after work
whereas often in maritime situations employees are re-
quired to be transported to a work station on the high
seas, remain at sea for days at a time and subsequently be
transported back to land. This aspect of maritime life has
A-42
not changed for centuries and must have been understood
at the inception of admiralty law.
The general system of maritime law which was
familiar to the lawyers and statesmen of the country
when the Constitution was adopted, was most cer-
tainly intended and referred to when it was declared
in that instrument that the judicial power of the
United States shall extend “to all cases of admiralty
and maritime jurisdiction.”
The Lottawanna, 21 Wall. (88 U.S.) 558, 574, (1874).
Justice Bradley went on to explain that in order to
ascertain what the maritime law of this country is, if it is
unclear from the laws and Constitution, “we must resort
to the principles by which they have been governed.” 7d.
at 576. Under this analysis, given that the maritime
statutes do not provide for overtime compensation, one
must resort to the principles by which maritime activities
have been governed. Those principles are, as stated by the
employers, that each maritime employee has been able to
negotiate his own contract — to define and to include or
not to include pay for overtime work. It is against this
historical background that this case should be considered
and it is through this historical background that one must
conclude that state laws mandating overtime pay are
preempted by federal admiralty law.
II. Preemption under the FLSA
The employers contend that state overtime regulations
are not only preempted by federal admiralty law, but by
the FLSA. The District Court found this argument “much
more persuasive” than the preemption argument under
federal admiralty law. 709 F.Supp. at 1524.
Section 207(a) of the FLSA provides overtime pay for
employees who are engaged in “commerce or in the
A-43
production of goods of commerce.” The district court
concluded that because the employees are tied closely
enough to commerce in that they are involved in the oil
production industry, they are covered by this section of
the FLSA. Wirtz v. Intravaia, 375 F.2d 62, 65 (9th Cir.),
cert. denied, 389 U.S. 844 (1967); see also 29 U.S.C.
Section 206(a)(4) (expressly applying minimum wage
requirements to seamen).
The inclusion of seamen within the ambit of the FLSA
is complicated by two other provisions of the Act. The
first is 29 U.S.C. Section 213(b)(6) which exempts
seamen from the FLSA’s overtime compensation provi-
sions. The District Court concluded that this specific
exclusion of seamen from the overtime provisions further
supported the argument that states were preempted from
applying their overtime regulations to seamen such as the
ones in this case. The district court stated:
Congress has spoken directly on the issue of overtime
pay for seamen. Therefore, California labor laws are
preempted to the extent that they presume to regu-
late FLSA exempt seamen, both on the high seas and
within the territorial zone. Further, given Congress’
exemption of these seamen from even minimal fed-
eral overtime provisions, it would be at odds with the
federal scheme to permit the states to enforce
stricter overtime provisions via the FLSA’s savings
clause.
709 F.Supp. at 1525. This conclusion seems not only
logical, but the only reasonable inference that could be
drawn from Congress’ explicit exemption of seamen from
the overtime provisions of the FLSA.
A-44
The employees and the United States argue that this
conclusion is unreasonable in light of the savings provi-
sion of the Act and cases which discuss that savings
provisions. The provision states:
No provision of this chapter or of any order-thereun-
der shall excuse noncompliance with any Federal or
State law or municipal ordinance establishing a mini-
mum wage higher than the minimum wage estab-
lished under this chapter or a maximum workweek
lower than the maximum workweek established under
this chapter.
29 U.S.C. Section 218(a). The employees and the United
States claim that this provision clearly shows congres-
sional intent to allow the states to set more generous
overtime rates, even for seamen, than those established by
the FLSA. While this argument seems on the surface to
have some merit, it is weak in light of Congress’ specific
exemption of seamen from the overtime provisions al-
ready found in the FLSA. It is reasonable to conclude
that seamen are exempt from mandatory overtime provi-
sions and that Congress did not intend to leave the
matter to the states to set overtime provisions for mari-
time employees on the high seas. As was concluded by the
district court, “in light of the obvious conflict between
California’s overtime compensation provision and the
FLSA, the FLSA preempts California’s provision.” 709
F.Supp. at 1525.
III. Conclusion
The decision of the District Court to grant the declara-
tory and injunctive relief should be AFFIRMED. The
decision is properly based either upon preemption under
general admiralty law or preemption under the FLSA.
A-45
| UNITED STATES COURT OF APPEALS
| FOR THE NINTH CIRCUIT
PACIFIC MERCHANT SHIPPING ASSOCIATION,
AMERICAN INSTITUTE OF MERCHANT SHIPPING,
OFFSHORE MARINE SERVICE ASSOCIATION,
WESTERN OIL & GAS ASSOCIATION AND CLEAN SEAS,
Plaintiffs-Appellees,
VS.
LLoyD W. AUBRY, JR., LABOR COMMISSIONER,
DIVISION OF LABOR STANDARDS ENFORCEMENT,
DEPARTMENT OF INDUSTRIAL RELATIONS, STATE OF
CALIFORNIA,
Defendant-A ppellant,
. and
TIDEWATER MARINE SERVICE, INC.
AND WESTERN BOAT OPERATORS, INC.
Intervenors-Appellees.
No. 89-55379
ORDER
FILED MAY 28, 1991
Cathy A. Catterson, Clerk \
U.S. Court of Appeals g
Before: BROWNING and PREGERSON, Circuit Judges,
and WILLIAM P. CoPPLE, Senior District Judge
The panel as constituted above voted to deny the
petitions for rehearing and to reject the suggestions for
rehearing en banc.
The full court has been advised of the suggestions for
rehearing en banc, and no judge of the court has re-
quested a vote on the suggestions for rehearing en banc.
Fed. R. App. P. 35(b).
The petitions for rehearing are denied, and the sugges-
tions for rehearing en bance are rejected.
A-46
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
PACIFIC MERCHANT SHIPPING ASSOCIATION, ete., et al.,
Plaintiffs,
VS.
LLOYD W. AUBRY, JR., etc.,
Defendant,
TIDEWATER MARINE SERVICE, INC., et al.,
Intervenors.
NO. CV 88-0848-AWT
MEMORANDUM OPINION
FILED MARCH 1, 1989
I.
BACKGROUND
This case raises a novel issue of federal admiralty law:
Whether California can apply its overtime pay provisions
to seamen and to maritime employees employed on ves-
sels situated primarily on the high seas.
Plaintiffs and intervenors seek declaratory and injunc-
tive relief that California’s labor laws are preempted by
federal admiralty law and the United States Constitution
insofar as they purport to regulate the wages, hours and
working conditions of maritime employees whose work
situs is a vessel normally situated on the high seas and
seamen who work both on the high seas and within the
territorial zone. Defendant is the California State Labor
Commissioner (Labor Commissioner). He is in charge of
the Division of Labor Standards Enforcement, Depart-
ment of Industrial Relations, State of California
(DLSE).
eee i et ot
A-47
The matter is before the Court on the parties’ cross-
motions for summary judgment. Although there is some
quibbling, essentially the parties agree upon the material
facts and that only issues of law are involved.
A. Terminology
At issue in this case is whether “seaman” can take
advantage of California’s overtime compensation provi-
sions. The term “seaman” is differently defined for differ-
ent purposes. General maritime law defiues “seamen”
broadly to include individuals whose performance on
board a vessel contributes to the functioning of the vessel,
accomplishment of its mission or to the operation or
welfare of the vessel. See 46 U.S.C. § 10101(3); Norris,
The Law of Seamen, §§ 2.1, 2.3, 2.10 (4th ed. 1985);
Norman v. Aubrey Burke & Assoc., 585 F.Supp. 494 (E.D.
La. 1984).
In contrast, the Fair Labor Standards Act of 1938
(FLSA), 29 U.S.C. § 201 et seq., defines ‘‘seamen” much
more narrowly for purposes of exemption from federal
overtime provisions. 29 U.S.C. § 213(b)(6). Under the
FLSA, a “seaman” is an individual who performs service
“primarily as an aid in the operation of such vessel as a
means of transportation, provided he performs no sub-
stantial amount of work of a different character.’ 29
C.F.R. § 783.31. For enforcement purposes, the federal
Wage and Hour Administrator's position is that work of a
different character is ‘substantial’ if it occupies more
than 20 percent of the time worked by an employee during
any given workweek. Id. at § 783.37. However, the term
“seaman” covers all types of crewmembers including, for
example, sailors, engineers, radio operators, firemen,
pursers, surgeons, cooks and stewards. /d. at § 783.32.
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| Those employees who are exempt under the FLSA will
| be referred to as “seamen.” Those employees who fall
within the general admiralty definition but not under the
FLSA exemption, will be referred to as “maritime em-
ployees.” However, it should be noted that all of these
employees work in situations covered by admiralty law,
i.€. on vessels on navigable waters. See 14 Wright,
‘ Miller & Cooper, Federal Practice and Procedures: Juris-
diction 2d $3671, p. 412 (cases cited therein); In re
Paradise Holdings, Inc., 619 F. Supp. 21, 22 (C.D. Cal.
1984),' aff’d, 795 F.2d 756 (9th Cir.), cert. denied, 107
S.Ct. 649 (1986).
For territorial purposes, “navigable waters” are di-
vided into three zones. The zone inland from a nation’s
shores is referred to as the inland or internal waters zone.
These waters (e.g., bays and inlets) are subject to the
complete sovereignty of the coastal nation. The second .
zone, measured seaward from the nation’s coast, is com-
prised of a three-mile belt known as the marginal or
territorial sea. A coastal nation may exercise extensive
control over the territorial zone, but cannot deny the right
of innocent passage to foreign nations. The third zone lies
beyond the territorial sea and is referred to as the “high
seas.” This zone consists of international waters that are
not subject to the dominion of any nation. See United
States v. Alaska,.422 71.8. 184, 196-97 (1975).
Most of the rights and obligations of shipowners and
seamen have been codified in 46 U.S.C. § 2101, et. seg. (the
Shipping Act). The Act divides shipping routes into three
categories — foreign, intercoastal and coastwise voyages.
Foreign voyages consist of voyages between ports in
different countries. 46 U.S.C. § 10301 (a) (1). Intercoastal
voyages consist of voyages between ports on the Atlantic
and Pacific coasts. 46 U.S.C. § 10301(a) (2). Coastwise
ee
1 A-49
voyages consist of voyages between ports in different
states (except adjoining states). 46 U.S.C. § 10501 (a). In
addition, the United States Coast Guard defines coast-
wise vessels as those “normally navigating the waters of
any ocean or the Gulf of Mexico 20 nautical miles or less
off-shore.” 46 C.F.R. § 70.10-13. See, e.g., Sewell v. M/V
Point Barrow, 556 F.Supp. 168 (D. Alaska 1983) (seamen
on vessels engaged in offshore test drilling operations on
high seas employed on coastwise vessels).
The crewmembers whose claims precipitated this action
were not on “voyages” that fall under any of these three
categories. Their vessels either stayed on the high seas
surrounding the oil rigs or “voyaged”’ between one port
and the oil rigs. Therefore, a number of wage provisions in
the Shipping Act do not apply to the affected
crewmembers.
The vessels are, however, covered by a number of other
Shipping Act provisions, as well as Coast Guard regula-
tions. For example, some provisions limit the number of
hours a crewmember can work to no more than 12 of 24
hours at sea and require a seagoing crew to be divided
| into at least two watches. 46 U.S.C. § 8104. In addition,
all seamen and maritime employees are covered by a wide
range of “protection and relief” statutes that govern, for
example, health, taxes and attachment of wages. 46 U.S.C.
$§ 11101-11112.
B. The Parties
Plaintiffs Pacific Merchant Shipping Association,
American Institute of Merchant Shipping, Offshore
Marine Service Association and Western Oil & Gas Asso-
ciation are maritime trade associations that collectively
represent over one hundred maritime employers, includ-
ing plaintiff Clean Seas and Intervenor Tidewater Marine,
a
» £8 be 2 BA hb heh en BA. Ge A ns Bs BAD Abs A SS Bie
A-50
Inc. The plaintiff trade associations often represent their
members before local, state and federal legislative bodies,
and initiate proceedings in state and federal courts to
protect the interests of their members. Many of the
plaintiff trade associations’ members maintain business
offices in California and provide maritime employment on
American flag vessels to California residents, as well as to
residents of other states. The maritime employers own
and operate a variety of vessels registered pursuant to
federal law. These vessels engage in foreign, intercoastal
and coastwise voyages.
Most of the employees who are the subject of this action
were or are employed by Clean Seas. Clean Seas is an
unincorporated, cooperative association formed by several
major oi] companies. It contains and cleans up marine oil
spills. It also performs other maritime activities to fulfill
federal environmental protection requirements. In order
to perform its duties, Clean Seas operates three American
flag vessels under the names of Mr. Clean, Mr. Clean II
and Mr. Clean III. Mr. Clean and Mr. Clean II are
“bareboat charter” vessels. Mr. Clean III is owned by
Clean Seas. Mr. Clean II is a 138 foot marine vessel
moored in Port San Luis Harbor, California, about one-
quarter mile from the shore. It remains moored approxi-
mately 90% of the time. The owners of Mr. Clean II
contracted with Clean Seas to provide the vessel and its
operating crew, and to operate the vessel pursuant to
Clean Seas needs. Most of Mr. Clean II’s duties involve
control and cleanup of oil spills and related environmen-
tal discharge work in the Santa Barbara Channel.
Mr. Clean III is a 181 foot, 292 gross ton ocean-going
vessel permanently stationed on the high seas over the
Pedernales and Arguello oil fields on the Outer Continen-
tal Shelf.” These oil fields are located four to ten nautical
- a | 4 JT +.qgyv ve. i is , ee To yy
A-51
miles off the California coast and contain four oil drilling
and production platforms. Each of these platforms is
located six to seven nautical miles off the California coast.
Except when on active duty, Mr. Clean III remains tied to
a buoy anchored to the seabed approximately seven nauti-
eal miles off the California coast. Since June, 1986,
Mr. Clean III has been on station, except during two
months of extended repairs, and during occasional visits
to port for minor repairs, resupply or the annual Coast
Guard inspections. Crewmembers assigned to Mr. Clean
III travel by helicopter from the Santa Barbara Airport to
the vessel at the beginning of their service and return via
helicopter at the end.
Intervenors Tidewater Marine Service and Western
Boat Operators (collectively Tidewater) provide offshore
transportation and support services throughout the world
and have provided crew and supply boat services to
offshore oil drilling platforms off the California coast
since 1964. In the Santa Barbara Channel, Tidewater
provides transportation services to a number of oil drill-
ing platforms ranging in distance from one to twelve
nautical miles off the coast. When a vessel is called, it
goes to a pier to pick up cargo or passengers, travels to its
destination (usually an offshore platform) and then re-
turns to the pier or its mooring buoy.
The Labor Commissioner’s duties include administer-
ing and enforcing compliance with many of California’s
labor laws, including the state’s wage and hour laws. Don
C. Craib (Craib), is the Senior Deputy Labor Commis-
sioner in DLSE’s Santa Barbara office. In all matters
pertinent to this action, Craib is authorized to act on
behalf of the Labor Commissioner.
At the base of this legal dispute lie the employees: the
three crewmembers of Mr. Clean IJ* and nine
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crewmembers assigned to Mr. Clean III.* All twelve ap-
pear to be California residents in that they have Califor-
nia addresses. Two of the crewmembers were licensed
mates and ten were certified as “seamen” by the Coast
Guard; the ten worked primarily on the “clean-
up’’operations. Nine of those ten had written employment
agreements. In February 1988, Tidewater employee
Frank Kleman (Kleman), also filed a complaint for over-
time compensation with the DLSE. Tidewater had em-
ployed Kleman as a “deckhand” on a crewboat from July
1, 1981, through February 2, 1986, when he took a medical
leave of absence.”
C. The Factual Setting
Although the Labor Commissioner continues to quibble
over the definition of “seamen,” all of the employees are
either seamen or maritime employees. The parties agree
that the wage claims of these crewmembers are governed
by admiralty law. The issue in this case is whether
California wage and hour laws should be applied as part
of federal admiralty law in adjudicating the wage claims
of maritime employees who work on the high seas and of
seamen who work both on the high seas and within the
territorial zone. See East River 8.8. Corp. v. Transamerica
Delaval, Inc., 476 U.S. 858, 864 (1985).
The Cal. Lab. Code empowers the Labor Commissioner
and his agents to (i) investigate employee complaints
concerning wages, (ii) conduct administrative hearings
for the purpose of resolving wage claims, (iii) issue
orders, decisions and awards, (iv) assess liability and
impose monetary sanctions and penalties, and
(v) prosecute actions in court to enforce California’s
wage and hour laws. Cal. Lab. Code § 98. Cai. Lab. Code
§ 1173 grants the Industrial Welfare Commission (IWC)
Th a etn cl ew Ah ila Ais
A-53
authority to regulate the wages, hours and working condi-
tions of those employees employed in the State of Califor-
nia. IWC Wage Order 4-80 covers “professional,
technical, clerical, mechanical, and similar occupations.”
Cal. Adm. Code § 11345(2) (ce). Based on his interpreta-
tion of his statutory authority, the Labor Commissioner
applied Wage Order 4-80 to the crewmembers and
awarded sizable overtime compensation.
The Labor Commissioner based his decision covering
the crewmembers of Mr. Clean II on the fact that
Mr. Clean II is moored in California’s territorial waters
and that a substantial part of the vessel’s op>ration
occurs within those waters. Therefore, he determined that
crewmembers on Mr. Clean II fell under the jurisdiction
of California’s laws and regulations governing employer
and employee relationships, and that neither the FLSA
nor other maritime statutes preempt California’s laws.
Prior to the hearing of Mr. Clean III crewmembers’
individual claims, plaintiffs separately challenged the La-
bor Commissioner’s jurisdiction; that challenge was re-
jected. Because of that prior ruling, the decision covering
Mr. Clean III’s crewmembers does not discuss any juris-
dictional issues; specifically, it makes no distinction be-
tween vessels moored one-quarter mile from shore and
those moored seven miles from shore. The Labor Commis-
sioner did determine that whether or not the wage claim-
ants were FLSA-exempt seamen does not preclude
California’s authority to regulate seamen independent of
any federal jurisdiction.
The Labor Commissioner has stayed all similar DLSE
proceedings pending the outcome of this action, including
Kleman’s claims. However, in his answers to interrogato-
ries and in Craib’s deposition testimony, the Labor Com-
missioner discussed (hypothetically) his views of the
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Labor Commissioner’s jurisdiction. In his deposition,
Craib stated that DLSE would have jurisdiction over
claims of employees on a boat stationed outside Califor-
nia’s territorial boundaries, even if the employees were
not California residents. (Ex.109 at 124-28.) (“I’m saying
that we may properly exercise jurisdiction over and adju-
dicate the wage claim of a non-California resident whose
primary work situs is outside the territorial bounds of
California ... My attorney said we have jurisdiction.’’)
Similarly, in his response to piaintiff’s interrogatories,
the Labor Commissioner claimed the right to assert juris-
diction over both non-California residents and California
residents employed as seamen on a United States vessel
that is permanently stationed outside the territorial
boundaries of California. (Ex. 112 at 188-89.) This juris-
dictional assertion was based on the fact that “[s]eaman
is an inhabitant of California; and the vessel is not
engaged in foreign and/or intercoastal voyages. Califor-
nia is exercising its police powers for the general welfare
of its inhabitants.”
D. Plaintiffs’ Claims
Although p
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