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

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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.

A-48

| 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

A-52

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

A-54

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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