Petition for Writ of Certiorari — Pacific Merchant Shipping Ass'n v. Aubry

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In the ! Supreme Cottier’! °°,

OF THE

United States

OCTOBER TERM, 1991

PACIFIC MERCHANT SHIPPING ASSOCIATION,

AMERICAN INSTITUTE OF MERCHANT SHIPPING,

OFFSHORE MARINE SERVICE ASSOCIATION,

WESTERN OIL & GAS ASSOCIATION AND CLEAN SEAS,

Petitioners,

vs.

LLOYD W. AUBRY, JR., LABOR COMMISSIONER,

DIVISION OF LABOR STANDARDS ENFORCEMENT,

DEPARTMENT OF INDUSTRIAL RELATIONS,

STATE OF CALIFORNIA,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

THOMAS E. HILL

Counsel of Record

CAROLINE G. SMITH

MUSICK, PEELER & GARRETT

One Wilshire Boulevard

Suite 2100

Los Angeles, California 90017

(213) 629-7676

GarRY M. BRIGHT

BRIGHT & POWELL

1090 Eugenia Place

Carpinteria, California 93013-2011

(805) 684-8480

Attorneys for Petitioners

Bowne of Los Angeles, Inc., Law Printers. (213) 627-2200

QUESTIONS PRESENTED

Respondent is responsible for enforcing California’s

wage and hour laws. This case arises out of Respondent’s

decision to apply state overtime requirements designed

for land-based employment within California to maritime

employment on the high seas. The questions for review

are:

1. Whether federal admiralty law preempts the appli-~

cation of state overtime laws to maritime employment on

the high seas under the constitutional principles esta)-

lished by this Court in cases such as Southern Pacific Co.

v. Jensen, 244 U.S. 205 (1917), and Knickerbocker Ice Co.

v. Stewart, 253 U.S. 149 (1920)?

2. Whether the Fair Labor Standards Act preempts

the application of state overtime laws to maritime employ-

ment on the high seas?

LIST OF PARTIES

Petitioners in this Court (plaintiffs-appellees below)

are Pacific Merchant Shipping Association, American

Institute of Merchant Shipping, Offshore Marine Service

Association, Western Oil & Gas Association and Clean

Seas. Respondent in this Court (defendant-appellant be-

low) is Lloyd W. Aubry, Jr., Labor Commissioner, Divi-

sion of Labor Standards Enforcement, Department of

Industrial Relations, State of California. The remaining

parties in the lower court proceedings (i1.e., plaintiff-

intervenors Tidewater Marine Service, Inc. and Western

Boat Operators, Inc.) have not been named as respon-

dents in this Court since their interests are not adverse to

those of Petitioners, and since they have filed their own

separate petition for writ of certiorari in these

proceedings.

RULE 29.1 STATEMENT

Petitioners have no parent or subsidiary companies.

ili

TABLE OF CONTENTS

QUESTIONS PRESENTED...................

rib ves cecevcrcscecereess

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EG cre Gab Nieds sds ccccceseess

CONSTITUTIONAL, STATUTORY AND OTHER

EE GU TUIU ED secs cescccceccces

STATEMENT OF THE CASE.................

ER gS Sel er rr

I cnc cccrucceclebveeeenes

REASONS FOR GRANTING THE WRIT ......

The Ninth Circuit Erred In Holding That Federal

Admiralty Law Does Not Preempt The Applica-

tion Of State Overtime Laws To Maritime Em-

ployment On The High Seas .................

II.

The Ninth Circuit Erred In Holding That The Fair

Labor Standards Act Does Not Preempt The

Application Of State Overtime Laws To Maritime

Employment On The High Seas ..............

EE ores wees ee dees essen A-1 — A-85

TABLE OF AUTHORITIES

Cases

Page

Agsalud v. Pony Express Courier Corp. of America,

833 F.2d 809 (9th Cir. 1987) ................ 4

Branch v. Schumann,

445 F.2d 175 (Sth Cir. 1971)... 0... cccccccece 14

Byrd v. Byrd,

657 F.2d 615 (4th Cir. 1981) .............06. 14

C.M. Rousseau, Jr. v. Teledyne Movable Offshore, Inc.,

619 F. Supp. 1513 (D.La. 1985), cert. denied,

GT I ED o.0.db dn cc cdepesccctacives 12

California Fed. Sav. & Loan Assn. v. Guerra,

Be eee 4

Chelentis v. Luckenbach Steamship Co., Inc.,

ee Se EY 5 wkceddscuevewenseeeses ex 14

Coastal Iron Works, Inc. v. Petty Ray Geophysical,

783 F.2d 577 (5th Cir. 1986) .............6.. 14

De Canas v. Bica,

le cn cuss oeneekncecen ous 4

Evich v. Morris,

819 F.2d 256 (9th Cir. 1987), cert. denied,

ee ee i a eee ea hasan es 14

Indiana Civil Rights Commission v. American

Commercial Barge Line Co.,

523 N.E.2d 241 (Ind. App. 1988), cert. denied,

ee ee ee oe Ce webeue 14

Knickerbocker Ice Co. v. Stewart,

Bik Se 2. eee 3, 10, 19, 21, 22, 23

Kossick v. United Fruit Co.,

ee a haves ee wan 14

TABLE OF AUTHORITIES

CASES

Miles v. Apex Marine Corp.,

498 U.S. —_, 111 S.Ct. 317, 112 L.Ed.2d 275

SEE AeA cca ka hehe es vas ee ee eee eae s 3,17

Mobil Oil Corp. v. Oil, Chemical and Atomic

Workers, International Union, AFL-CIO,

504 F.2d 272 (Sth Cir. 1974) .............. 13, 23, 24

Nelson v. United States,

639 F.3d 460 (Oth Cir. 1960) ......cccccecess 14

Offshore Logistics, Inc. v. Tallentire,

et eS | ee re 10, 14, 21, 22

Oil, Chemical & Atomic Workers, International

Union, AFL-CIO v. Mobil Oil Corp.,

GP Ga Ie CE eo ch oh eeasscaccesccs 14, 20, 21, 23

Pettis Moving Co., Inc. v. Roberts,

784 F.2d 489 (2d Cir. 1986) ................. 4

Ramsauer v. United States,

ee ee ee Ce eNO ovo ie wie CNeacaes 12

Sorensen v. City of New York,

202 F.2d 857 (2d Cir. 1953), cert. denied,

Se We NED ag vac kciva sew cesses eeun 11

Southern Pacific Co. v. Jensen,

ee Re Fs er ee 10, 11, 14, 21

State of Washington v. W.C. Dawson & Co.,

ee ee I ics wawevccusscaasenanks 19, 22

Sun World Lines, Lid. v. March Shipping Corp.,

801 F.2d 1066 (8th Cir. 1986) ............... 14

The Youngstown,

110 F.2d 968 (5th Cir. 1940), cert. denied,

ee Cee ee ED 6 koh web eee cae kl cee eben. 12

Nisin

TABLE OF AUTHORITIES

CASES

Page

Union Fish Co. v. Erickson,

Sane rh rs See 11

United States v. California,

ee ge 13

Watz v. Zapata Off-Shore Co.,

431 F.2d 100 (5th Cir. 1970) ................ 14

West Coast Hotel Co. v. Parrish,

BO Se Pe COD 6k ooo chk hve 4

Williams v. W.M.A. Transit Co.,

472 F.2d 1258 (D.C. Cir. 1972) .............. 4

3 ccceaiiataenaiiataatatiaaaaatcae iia

vil

TABLE OF AUTHORITIES

Federal Statutes

Page

United States Constitution

Article III, Section 2, Clause 1............... 2

28 United States Code

ED cc eccccvecvudecuaveswcunsnss 2

SS LEE EET PETE TTT ET TICE ETE TE 3

29 United States Code

cnt veseaceveeuwbtheawenaes 20

eR PPP eerrreererrrreere ie 15

cc cceccceeusnsevevancevessas 16

I IS go cco cccnseesveesseetwees 16

eR NOD oc cccccrcccececeveseuesess 2

EIT PTET ECT E TEETER Ce 3,18

46 United States Code

I Ee OF OO noc ce cccureservereccseees 21

I ys cues cate cect eavceeweeenseeuts 21

I UD 66 kc ocevescccttarecemeees 13

Mostiows TITANS 2c cc ccccccccsccescenevces 7

es ccc b ev peuswevesuenseues 7

ee ARIE cov cccucvocessevvccncuns 13

ee BNO 6 ccc rte vcvescncvvesssesecs 7

cst cssesssetercewesess eh 7

ee ck eee redue wee eee eee eee es 7

I NEED . vccccveeccusssueoocoses 5

a EEE on occ ckccesenceasvenctes 5

i ga vn ese eee eeeenbeennt> 5

viii

TABLE OF AUTHORITIES

State Statutes

Page

Alaska

gS 8 ee er errr 9

California

Re 8 re 8

Wage Order 4-80, 8 Cal. Code Regs.

ee OE, ss ss wo nn 66% wens 3, 8, 9, 15

Connecticut

Gem. Beat. Gootion S1-7E) .. .. ww cece ce cwceses 9

Hawaii

mov. Stat. Geotion SETOla) .. 2. ccc cccccccccss 9

Maine

Rev. Stat. Ann., tit. 26, Section 664........... 9

Massachusetts

Gen. Laws Ann., ch. 760, Section 1A.......... 9

Minnesota

Stat. Section 177.23(7) (1)-(19) .............. 9

North Carolina

Gen. Stat. Section 95-25.14(c) ............... 9

Pennsylvania

Min. Wage Act Section 5(b) ................. 9

Washington

Rev. Code Section 49.46.130(1) .............. 9

TABLE OF AUTHORITIES

Treatises

Page

Friedell, Benedict on Admiralty (7th Ed. 1987) .. 14

Norris, The Law of Seamen (4th Ed. 1985) ...... 13

Miscellaneous

Joint Hearings on S. 2475 and H.R. 7200 Before the

Senate Comm. on Educ. and Labor and the House

Comm. on Labor, 75th Cong., lst Sess., 81 Cong.

Rec.—Part 7, p. 7875 (1987) ..........ccc0e- 18

No.

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1991

PACIFIC MERCHANT SHIPPING ASSOCIATION,

AMERICAN INSTITUTE OF MERCHANT SHIPPING,

OFFSHORE MARINE SERVICE ASSOCIATION,

WESTERN OIL & Gas ASSOCIATION AND CLEAN SEAS,

Petitioners,

vs.

LLOYD W. AUBRY, JR., LABOR COMMISSIONER,

DIVISION OF LABOR STANDARDS ENFORCEMENT,

DEPARTMENT OF INDUSTRIAL RELATIONS,

STATE OF CALIFORNIA,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioners 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 these proceed-

ings on November 13, 1990.

OPINIONS BELOW

The majority and dissenting opinions of the Ninth

Circuit Court of Appeals are reported at 918 F.2d 1409

and are reprinted in the Appendix beginning at A-1.

The opinion of the United States District Court for the

Central District of California that granted Petitioners’

motion for summary judgment is reported at 709 F.Supp.

1516 and is reprinted in the Appendix beginning at A-46.

JURISDICTION

Petitioners invoke the jurisdiction of this Court pursu-

ant to 28 U.S.C. § 1254(1). The judgment of the Ninth

Cireuit Court of Appeals was entered on November 13,

1990. Petitioners’ timely petition for rehearing with sug-

gestion for rehearing en banc was filed on November 27,

1990, and was denied by the Ninth Circuit on May 28,

1991. See Appendix at A-45.

CONSTITUTIONAL, STATUTORY AND

OTHER AUTHORITY INVOLVED

Article III, Section 2, Clause 1 of the United States

Constitution provides, in pertinent part:

“The judicial power shall extend ... to all cases of

admiralty and maritime jurisdiction.”

Section 13(b) (6) of the Fair Labor Standards Act, 29

U.S.C. § 213(b) (6), provides:

“The provisions of section 207 of this title [relating

to maximum hours and overtime compensation] shall

not apply with respect to —

(6) any employee employed as 4 seaman.”

Section 18(a) of the Fair Labor Standards Act, 29

U.S.C. § 218(a), provides, in pertinent 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 maximum workweek lower than the maximum work-

week established under this chapter... .”

California Wage Order 4-80, 8 Cal. Code Regs.

§$§ 11040, et seg., regulates the wages, hours and working

conditions of professional, technical, clerical, mechanical

and similar land-based occupations. Wage Order 4-80 is

reprinted in the Appendix beginning at A-68.

STATEMENT OF THE CASE

Introduction

For over two centuries, maritime employers operating

vessels on the high seas have governed their employment

practices with reference to a uniform system of federal

admiralty law applicable throughout the nation. This case

arises from Respondent’s unprecedented attempt to im-

pose a state scheme of wage and hour regulation onto a

conflicting federal scheme where uniformity is constitu-

tionally mandated.’

Exercising jurisdiction under 28 U.S.C. $1331, the

District Court (Judge A. Wallace Tashima) granted Peti-

tioners’ motion for summary judgment and declared Cali-

fornia’s overtime laws to be preempted insofar as

Respondent seeks to apply those laws to maritime em-

‘This Court has long recognized the constitutional mandate for a

uniform body of federal admiralty law. Knickerbocker Ice Co. v.

Stewart, 253 U.S. 149, 164 (1920). Accord Miles v. Apex Marine Corp.,

498 U.S. ___.,, 111 S.Ct. 317, 322, 112 L.Ed.2d 275 (1990).

ployment on the high seas. In a 2 to 1 decision, the Ninth

Circuit reversed the trial court’s judgment, issuing a

majority opinion (authored by Judge Harry Pregerson)

and a separate dissenting opinion (authored by Senior

Judge William P. Copple). Relying exclusively on inappo-

site cases involving land-based workers, the Ninth Circuit

majority upheld Respondent’s actions based on Califor-

nia’s traditional “police powers” over its “resident work-

ers.” (Appendix at A-11.)’

The Ninth Circuit majority opinion misconstrues the

analytical framework applicable to issues of maritime

preemption and misapprehends the controlling facts of

this case. Contrary to the controlling legal premise of the

majority opinion, the issues raised by this admiralty case

cannot properly be addressed under a standard, land-

based preemption analysis. The majority opinion fails to

recognize that a maritime preemption case presents a

fundamentally different set of constitutional issues than is

raised in other types of preemption cases.

In addition, contrary to the controlling factual premise

of the majority opinion, this case does not involve the

application of a limited state law to a narrow category of

maritime workers who are employed “off the California

Coast” and who do not engage in “voyages.” (Appendix

at A-11.) As the District Court properly found, Respon-

dent has expressed his sworn intent to apply California’s

* All of the labor cases cited by the Ninth Circuit majority in

deciding this admiralty case involved land-based employees such as

migrant farmworkers, De Canas v. Bica, 424 U.S. 351 (1976), bank

tellers, California Fed. Sav. & Loan Assn. v. Guerra, 479 U.S. 272

(1987), chambermaids, West Coast Hotel Co. v. Parrish, 300 U.S. 379

(1937), and truck drivers, Agsalud v. Pony Express Courier Corp. of

America, 833 F.2d 809 (9th Cir. 1987), Pettis Moving Co., Inc. v.

Roberts, 784 F.2d 439 (2d Cir. 1986), and Williams v. W.M.A. Transit

Co., 472 F.2d 1258 (D.C. Cir. 1972).

overtime laws to maritime workers engaged in (i) coast-

wise voyages, (ii) voyages between California and Canada

or Mexico and (iii) voyages between the Pacific and Gulf

Coasts.’ Respondent has further expressed his sworn

intent to enforce this policy regardless of whether the

maritime employees in question entered into employment

contracts in California or are residents of California or

some other state. These are the controlling facts of this

case.*

*Respondent has only eschewed regulatory authority over vessels

engaged in “foreign” or “intercoastal” voyages as those terms are

defined by the Shipping Act. 46 U.S.C. 10301(a)(1) and

10301 (a) (2). (Appendix at A-57 — A-58.) A voyage between Califor-

nia and any other state on the Pacific or Gulf Coasts is not an

“intercoastal” voyage, and a voyage between California and Canada

or Mezico is not a “foreign” voyage. Respondent’s regulatory ‘re-

straint” also fails to encompass “coastwise” voyages; 1.¢., voyages

between ports in different (non-adjacent) states on the same coast.

46 U.S.C. § 10501.

It is uncontroverted that many of the members of Petitioner trade

associations operate vessels engaged in coastwise voyages, as well as

in voyages between California and Mexico or Canada, or between

California and ports on the Gulf Coast. For the sake of analytical

expedience, the Ninth Circuit majority opinion simply brushes aside

these employer-parties as if they didn’t exist, and proceeds to analyze

_ this action as if it were a two-boat, two-employer case. This factual

error inevitably taints the majority’s analysis and inflicts great

injustice on the vast majority of maritime employers involved in this

case.

*Respondent’s designated policy expert on maritime employment

testified as follows during his deposition:

“Q. [A vessel] is permanently stationed outside the territorial

boundaries of the State of California...,and you have got

employees working on the vessel. Some reside in Nevada;

some reside in Oregon; some reside in California. Do you

have jurisdiction —

A. Yes. (continued ...)

The District Court correctly concluded that Califor-

nia’s overtime laws (i) conflict with those provisions of

the Fair Labor Standards Act that relate to maritime

employment and (ii) otherwise impinge upon established

principles of federal admiralty law. In reaching this

conclusion, the District Court embraced the “common

sense’’ notion that rules applicable to land-based employ-

ees working fixed schedules at fixed locations are inher-

ently ill-suited to the unique working conditions of

seamen aboard vessels plying the high seas. Petitioners

respectfully submit that a proper assessment of this case

based on (i) the correct analytical framework, (ii) the

controlling facts and (iii) a modicum of common sense,

compels the conclusion that California’s overtime laws

must be found preempted to the extent that they are

applied to regulate the employment of maritime workers

on the high seas.

Il.

Factual Background

The members of Petitioner trade associations own and

operate vessels registered and regulated pursuant to

federal law and provide maritime employment to individu-

*’... continued)

7 o a ©

Even [over] the Oregon residents?

That’s right. I think so.

Even [over] the Nevada resident?

Right.

Q. Do you think that [Respondent] can properly exercise juris-

diction over a non-California resident, non-California inhabi-

tant whose work situs is outside the State of California?

A. Yes.”

Sebo acs.

als who are licensed as masters, mates or engineers by the

United States Coast Guard (“USCG”’), or who are other-

wise certificated by the USCG as seamen.” It is common

for these maritime employers to employ on the same

vessel, during the same work period, employees who re-

side in many different states. These employees normally

work continuous periods of service that can last from

days to months depending upon the length of a particular

voyage or other factors. During any given period of

service, an employee will typically live and work on the

vessel until the conclusion of the period of service.

Petitioner Clean Seas is an unincorporated joint under-

taking formed to contain and clean up marine oil spills

and perform other maritime activities. To accomplish its

environmental protection mission, Clean Seas operates

Mr. Clean III, a 181 foot, 292 gross ton ocean-going vessel.

Mr. Clean III is permanently stationed on the high seas

over the Point Pedernales and Point Arguello oil fields on

the Outer Continental Shelf, four to ten nautical miles off

the California Coast. Except when it is actually underway,

Mr. Clean III is normally tied to a mooring buoy located

approximately seven nautical miles off the California

Coast.®

‘The usce has broad regulatory authority with respect to the

licensure and certification of masters, mates, engineers and other

maritime employees. 46 U.S.C. §§ 7101-7114, 7302, 8101(g), 8304(c)

and 8701.

°Since June of 1986, Mr. Clean III has continuously been on station

over the Point Pedernales and Point Arguello oil fields, excepting a

two-month period in a shipyard for the installation of a marine fire-

fighting system, occasional visits to port for repairs, resupply or

annual USCG inspections, and a three-month open ocean oil spill

recovery assignment off the coast of Alaska in connection with the

Prince William Sound oil spill.

Mr. Clean III is manned by rotating 12-member crews

consisting of a licensed master, mate and engineer, and

nine USCG-certificated seamen. These individuals are

permanently assigned to Mr. Clean III and the vessel is

their sole work situs. The crewmembers assigned to Mr.

Clean III normally work either 14-day or 7-day periods of

service aboard the vessel, alternating with 14-day or 7-day

periods of leave on shore. Crewmembers are transported

fifty miles via helicopter from California to Mr. Clean III’s

permanent station on the high seas at the beginning and

end of their periods of service.

Respondent is responsible for enforcing California’s

wage and hour laws. These laws are codified in a series of

industrial and occupational Wage Orders issued by the

California Industrial Welfare Commission (“IWC’’). The

IWC has been delegated authority to promulgate Wage

Orders to regulate the wages, hours and working condi-

tions of employees “in’’ California. Cal. Lab. Code § 1173

(emphasis added). Pursuant to this statutory authority,

the IWC has issued Wage Orders covering employees in

12 industries and three occupational groups. Among these

Wage Orders is Wage Order 4-80, which is expressly

limited to professional, technical, clerical, mechanical,

and similar land-based occupations. (Appendix at A-68 —

A-85.)

Commencing in 1987, Respondent began to assert the

right to exercise jurisdiction over, investigate, adjudicate

and prosecute the wage claims of seamen and other

maritime employees, and to do so regardless of whether

the vessels on which these employees work are normally

situated within the state’s territorial waters or operate

entirely on the high seas. In a series of cases involving

Petitioner Clean Seas and other maritime employers,

Respondent exercised jurisdiction over the wage claims of

employees assigned to work as members of the crews of

American flag vessels in navigation on both the high seas

and California’s territorial waters. In adjudicating these

claims pursuant to Wage Order 4-80, Respondent coilec-

tively awarded the 12 seamen involved over $800,000 in

overtime pay and interest for periods of employment of

less than 18 months. This collective award essentially

required that crewmembers be compensated at an annual

rate of close to $70,000 for work they had agreed in

writing to perform for as little as $9 an hour.

Wage Order 4-80 is expressly designed to regulate the

wages, hours and working conditions of land-based em-

ployees such as librarians, dental hygienists, bank tellers

and legal secretaries. (Appendix at A-69 — A-70.) Re-

spondent contends that Wage Order 4-80 applies equally

to maritime employment on the high seas. This unprece-

dented state regulatory policy is wholly inimical to well-

settled principles of federal admiralty law and has caused

great concern and confusion within the maritime indus-

try. As a result, Petitioner trade associations (represent-

ing over 100 individual maritime employers) have joined

Clean Seas in this litigation.’

"Petitioners are unaware of any coastal state other than California

that has asserted jurisdiction to apply its overtime laws to maritime

workers employed primarily on the high seas. Indeed, many coastal

states, including the only other state (1.e., Alaska) with a daily

overtime requirement, expressly exempt seamen from their land-

based wage and hour laws. See Alaska Stat. § 23.10.060; Wash. Rev.

Code § 49.46.130(1); N.C. Gen. Stat. 95-25.14(c); Conn. Gen. Stat.

§ 31-761; Mass. Gen. Laws Ann., ch. 760, § 1A; Me. Rev. Stat. Ann.,

tit. 26, § 664; Minn. Stat. § 177.23(7)(1)-(19); Pa. Min. Wage Act

§ 5(b); and Hawaii Rev. Stat. § 387-3(a).

REASONS FOR GRANTING THE WRIT

The Ninth Circuit Erred In Holding That Federal! Ad-

miralty Law Does Not Preempt The Application Of

State Overtime Laws To Maritime Employment On

The High Seas

The Ninth Circuit majority opinion employs a land-

based preemption analysis predicated on the erroneous

assumption that this case involves the exercise of tradi-

tional state police powers over the employment of resi-

dent workers. The majority state:

“(I]n addressing the preemption question before us,

‘we start with the assumption that the historic pow-

ers of the States were not to be superseded by

[federal legislation] unless that was the clear and

manifest purpose of Congress.’ ”’

(Appendix at A-11, emphasis in original.) However, the

point of departure in a maritime preemption case is not

the sanctity of the states’ police powers, but rather the

constitutional requirement that Congress and the federal

courts develop and maintain a uniform and harmonious

system of national maritime law. Southern Pacific Co. v.

Jensen, 244 U.S. 205 (1917); Knickerbocker Ice. Co. v.

Stewart, 253 U.S. 149.° The preemption analysis adopted

"In Jensen, this Court established principles of maritime preemp-

tion that still govern the admiralty area today. See Offshore Logistics,

Inc. v. Tallentire, 477 U.S. 207 (1986).

This Court stated in Jensen:

“(I]t must now be accepted as settled doctrine that... Congress

has paramount power to fiz and determine the maritime law which

shall prevail throughout the country.

(continued .. .)

by the Ninth Circuit majority flies in the face of this

constitutional mandate.

Under the general maritime law of the United States,

maritime workers and their employers are free to deter-

mine, pursuant to agreement, the wages, hours and work-

ing conditions applicable to maritime employment. (See

Ninth Circuit dissenting opinion, Appendix at A-40 —

A-41.) Unlike many industries, the written employment

agreement is a common (and, at times, statutorily-man-

dated) feature of maritime employment, and it is gener-

ally viewed as the governing “law” with respect to such

employment.’ Absent an express contractual right to

overtime pay, the admiralty law does not require that a

seaman receive such pay. Sorensen v. City of New York,

202 F.2d 857, 858-859 (2d Cir. 1953), cert. denied, 347

8’... continued)

[N]o [state] legislation 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.”

244 U.S. at 215, 216 (emphasis added).

*In Union Fish Co. v. Erickson, 248 U.S. 308 (1919); this Court held

California’s statute of frauds to be preempted and concluded that any

claim under a maritime employment contract must be resolved

pursuant to federal admiralty law.

“In entering into this [employment] contract the parties con-

templated no services in California. They were making an en-

gagement for the services of the master of the vessel, the duties to

be performed ... mainly upon the sea. The maritime law controlled

in this respect, and was not subject to limitation because the

particular engagement happened to be made in California. The

parties must be presumed to have had in contemplation the system

of maritime law under which it was made.”

Id. at 313 (emphasis added).

in iinet

U.S. 951 (1954) (court finds no federal statutory require-

ment to pay overtime to seamen). Concomitantly, the

admiralty law does not recognize an implied legal right to

overtime pay. Ramsauer v. United States, 21 F.2d 907, 908

(9th Cir. 1927) (court finds no implied right to overtime

under the admiralty law). Accord C.M. Rousseau, Jr. v.

Teledyne Movable Offshore, Inc., 619 F. Supp. 1513,

1518-1519 (D.La. 1985), cert. denied, 484 U.S. 827 (1987)

(maritime employees held bound by employment agree-

ment with respect to overtime claim). Rather, the right to

overtime pay for maritime work has traditionally been

governed exclusively by the employment agreement. The

Youngstown, 110 F.2d 968, 970 (5th Cir. 1940), cert.

denied, 311 U.S. 690 (1940) (overtime performed and

paid for in accordance with employment contract fully

complies with the federal admiralty law).

The lack of an express overtime pay requirement for

seamen under the federal admiralty law in no way reflects

a lack of Congressional concern for the welfare of seamen.

Throughout the history of the United States, seamen (as

“wards of admiralty”) have been the beneficiaries of

special federal statutory and common law protections

wholly inapplicable to land-based workers.

“It has been truly said that the seaman is the ward of

the legislature for perhaps no other class of worker

has received from a national legislative body the pro-

tection, care and the degree of solicitude as that given

to merchant seamen. Practically every phase of the

seaman’s working conditions aboard ship from the

time he first ships out as an apprentice or as an

ordinary seaman, to the disposal of his estate at his

decease, has been accorded legislative attention.

Chief among these are the statutes governing his

wages.”

Norris, The Law of Seamen, § 121, p. 424 (4th Ed. 1985)

(emphasis added). A statutory illustration of these facts

is found in subtitle II of Title 46 of the United States

Code. See 46 U.S.C. §§ 2101-14702." This subtitle consists

of a codification of most of the federal maritime safety

and seamen protection laws, including laws regulating the

wages, hours and working conditions of seamen employed

on vessels engaged in various types of voyages. Jd. at

§§ 8101-11507. This comprehensive federal scheme pro-

vides evidence that Congress understood the need for,

and intended to create, a uniform body of federal law to

govern the wages, hours and working conditions of mari-

time employees, and that Congress left no room for the

states to intrude within this legisla ‘ve sphere.

The Ninth Circuit majority concluded that California’s

interest in applying its overtime laws to maritime employ-

ment outside the territorial waters of the state supersedes

any competing federal interests in such employment. This

conclusion simply will not float. As this Court has stated:

“(N]ational interests, responsibilities, and therefore na-

tional rights are paramount in waters lying to the sea-

~ward [of] the three-mile belt.” United States v. California,

332 U.S. 19, 36 (1947). A state surely has no greater

interest in applying its wage and hour laws to maritime

employment (particularly where such employment takes

place on the high seas) than it does in applying its

workers’ compensation laws, employment discrimination

4 good overview of the substantial statutory and common law

protections that have historically been afforded general maritime law

seamen is found in Motil Oil Corp. v. Oil, Chemical and Atomic

Workers, International Union, AFL-CIO, 504 F.2d 272, 284 and n. 6

(5th Cir. 1974).

laws, wrongful death laws or right-to-work laws, all of

which have been held preempted by the federal maritime

law.”

See Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207; Oil, Chemical

& Atomic Workers, International Union, AFL-CIO v. Mobil Oil Corp.,

426 U.S. 407 (1976); Southern Pacific Co. v. Jensen, 244 U.S. 205; and

Indiana Civil Rights Commission v. American Commercial Barge Line

Co., 523 N.E.2d 241 (Ind. App. 1988), cert. dented, 492 U.S. 920

(1989).

Through the years, this Court and other federal courts have applied

the maritime preemption principles established in Jensen to invali-

date dozens of state laws. See, ¢.g., Offshore Logistics, Inc. v. Tallen-

tire, 477 U.S. 207 (state wrongful death statutes held preempted by

the federal maritime law); Kossick v. United Fruit Co., 365 U.S. 731

(1961) (state statute of frauds held preempted by the federal

maritime law); Chelentis v. Luckenbach Steamship Co., Inc., 247 U.S.

372 (1918) (state indemnity law held preempted by the federal

maritime law); Evich v. Morris, 819 F.2d 256 (9th Cir. 1987), cert.

denied, 484 U.S. 914 (1987) (California survivor law held preempted

by the federal maritime law); Nelson v. United States, 639 F.2d 469

(9th Cir. 1980) (California wrongful death statute held preempted by

the federal maritime law); Sun World Lines, Ltd. v. March Shipping

Corp., 801 F.2d 1066 (8th Cir. 1986) (state contract law held

preempted by the federal maritime law); Coastal Iron Works, Inc. v.

Petty Ray Geophysical, 783 F.2d 577 (5th Cir. 1986) (state trade

practices law held preempted by the federal maritime law); Byrd v.

Byrd, 657 F.2d 615 (4th Cir. 1981) (state interspousal immunity law

held preempted by the federal maritime law); Branch v. Schumann,

445 F.2d 175 (5th Cir. 1971) (state standard of care held preempted

by the federal maritime law); Watz v. Zapata Off-Shore Co., 431 F.2d

100 (5th Cir. 1970) (state statute of limitation held preempted by the

federal maritime law); and Friedell, Benedict on Admiralty, §§ 112, et

seq., pp. 7-45 (7th Ed. 1987), and over 50 cases cited therein.

‘ —

Il.

The Ninth Circuit Erred In Holding That The Fair

Labor Standards Act Does Not Preempt The Applica-

tion Of State Overtime Laws To Maritime Employ-

ment On The High Seas

The District Court and the Ninth Circuit majority

agreed that the Fair Labor Standards Act (‘““FLSA’’), 29

U.S.C. §$§ 201, et seg., and California’s wage and hour laws

(including Wage Order 4-80) are patently inconsistent

with each other. (Appendix at A-21 and A-61.) As applied

to maritime workers, these state and federal laws impose:

(i) different minimum wage rates; (ii) different methods

of calculating hours worked; (iii) different overtime re-

quirements; (iv) different overtime exemptions; and

(v) different methods for calculating the overtime rate of

pay.

The legislative history of the FLSA provides ample

evidence that Congress recognized (i) the unique nature

of maritime employment, (ii) the preexistence of a well-

developed body of federal law to govern such employment

and (iii) the overriding importance of preserving uni-

formity in the regulation of such employment. As origi-

nally enacted in 1938, the FLSA expressly exempted all

“These conflicts are not just legal abstractions; they have real life

consequences. A non-exempt maritime employee working the same

schedule (1.¢., 12 hours per day for seven consecutive days at $10 per

hour) for the same employer on the same vessel would be entitled to

$1,502 more per week under California law than he would be entitled

to under federal law. Multiply this amount by 26 weeks (assuming

that the worker gets every other week off) and you have a $39,052

annual chasm between the state and federal requirements for a $10

per hour employee. Muitiply this $39,052 figure by thousands of

employees and the staggering financial implications of Respondent’s

ill-considered enforcement position become clear.

seamen from its minimum wage and maximum hour provi-

sions. In subsequent years, including 1945, 1948, 1955

and 1961, repeated efforts were made to repeal this

complete exemption for seamen. During the many Con-

gressional hearings held to consider such a repeal, repre-

seutatives from the maritime industry testified at length

regarding the unsuitability of land-based wage and hour

rules to maritime employment. Congress was told that

rules used to calculate the hours worked by land-based

employees are simply inapplicable to maritime employ-

ment where employees work and live on vessels for ex-

tended periods of service. Congress was further advised

that the FLSA’s overtime requirements are ill-suited to

maritime employment, and that the maximum hour pro-

tections afforded seamen under the Shipping Act are

sufficient to ensure employee safety and prevent over-

work. Finally, Congress was warned that the extension of

the FLSA’s overtime provisions to seamen would destroy

existing principles of uniformity in the federal admiralty

law under which maritime employers had governed their

conduct for decades.

Congress did amend the FLSA in 1961 to extend the

Act’s minimum wage provisions to seamen employed on

American flag vessels. 29 U.S.C. § 206. In taking this

action, however, Congress also established a special

method by which the hours worked by seamen are to be

calculated. 29 U.S.C. § 206(a) (4). Congress thereby reaf-

firmed its view that many of the wage and hour rules

developed for land-based employees are simply ill-suited

for application to sea-based employment. At the same

time, Congress again declined to repeal the overtime

exemption for seamen. Indeed, Congress has seen fit to

retain this exemption for over fifty years despite repeated

legislative attempts at repeal.

As recently as last term, this Court emphasized the

importance of affording substantial deference in admi-

ralty cases to the policy considerations underlying those

federal statutes that govern the maritime area. In Miles v.

Apex Marine Corp., 498 U.S. —_, 111 S.Ct. 317, 323, this

Court stated:

“In this era, an admiralty court should look prima-

rily to... legislative enactments for policy guidance.

We may supplement the statutory remedies where

doing so would achieve the uniform vindication of such

policies consistent with our constitutional mandate, but

we must also keep strictly within the limits imposed by

Congress. Congress retains superior authority in these

matters, and an admiralty court must be vigilant not to

overstep the well-considered boundaries imposed by fed-

eral legislation. These statutes both direct and limit

our actions” (emphasis added).

Here, the manifest purpose behind the overtime exemp-

tion for seamen in the FLSA was to free maritime

commerce from impractical land-based wage rules and

preserve the preexisting uniformity in maritime wage regu-

lation. In enacting the FLSA, Congress never intended

the wages, hours and working conditions of seamen and

other maritime employees to be subject to a myriad of

conflicting and potentially ever-changing state laws and

regulations.”®

The Ninth Circuit majority was unable to glean any Congres-

sional intent from the FLSA’s legislative history to preclude the

application of state overtime laws to seamen or other maritime

employees. The majority concede, however, that “Congress intended

to prevent overlapping regulation of wage and hour conditions of

seamen by different federal agencies.” (Appendix at A-17, emphasis

added.) Indeed, during the Congressional hearings preceding the

(continued .. .)

Given the patent conflicts between the FLSA and

California’s wage and hour laws, the District Court and

the Ninth Circuit agreed that a finding of preemption in

this case would be automatic were it not for the FLSA’s

state law savings provision. 29 U.S.C. §218(a). This

provision provides, in pertinent part, as follows:

“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

minimum wage higher than the minimum wage estab-

lished under this Chapter or a maximum workweek

lower than the maximum workweek established under

this Chapter.”

The FLSA’s savings provision has been construed to

permit state legislatures in regulating land-based employ-

ment to enact higher minimum wage rates and lower

maximum workweek standards than those set forth in the

FLSA.

" (... continued)

enactment of the FLSA, Senator (later Supreme Court Justice)

Black stated:

“(I]t was the policy of the committee, in cases where regulation

of hours and wages are given to other governmental agencies, to

write the bill in such way as not to conflict with such regulation.

That action was taken with reference to maritime workers.”

See Joint Hearings on S. 2475 and H.R. 7200 Before the Senate Comm.

on Educ. and Labor and the House Comm. on Labor, 75th Cong., Ist

Sess., 81 Cong. Rec.—Part 7, p. 7875 (1937). The Ninth Circuit

majority simply defy logic by concluding that Congress, in enacting

the seamen exemption and other special maritime provisions of the

FLSA, sought to safeguard maritime commerce from overlapping

federal regulations while simultaneously exposing such commerce to

a crazy-quilt patchwork of conflicting state regulation.

It is axiomatic that Congress may not delegate its

legislative authority over maritime matters to the States.

In Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920),

this Court addressed the constitutionality of an act

through which Congress sought to grant the states au-

thority to apply their workers’ compensation laws to

maritime employment. In holding such action to be an

unconstitutional delegation of legislative power, this

Court stated:

“TWle conclude that Congress undertook to permit

application of Workmen’s Compensation Laws of the

several states to injuries within the admiralty and

maritime jurisdiction....And, so construed, we

think the enactment is beyond the power of Congress.

Its power to legislate concerning rights and liabili-

ties within the maritime jurisdiction, and remedies

for their enforcement, arises from the Constitution

.... The definite object of the [constitutional] grant

was to commit direct control to the Federal govern-

ment; to relieve maritime commerce from unneces-

sary burdens and disadvantages incident to

discordant legislation; and to establish, so far as

practicable, harmonious and uniform rules applicable

throughout every part of the Union.”

Id. at 163-164 (emphasis added). Accord State of Wash-

ington v. W.C. Dawson & Co., 264 U.S. 219, 227 (1924)

(“{[C]ongress has power to alter, amend or revise the

maritime law by statutes of general application ...; but

[this power] may not be delegated to the several states’

(emphasis added) ).

Consistent with this Court’s holdings in Knickerbocker

Ice and State of Washington, the District Court found that

the FLSA’s savings provision would represent an uncon-

stitutional delegation of legislative authority to the states

if held applicable to maritime employment on the high

seas. (Appendix at A-62.) The District Court therefore

construed the savings provision properly in finding it to

be inapplicable to all maritime employees whose work

situs is a vessel normally situated on the high seas.

The District Court’s construction of the FLSA’s sav-

ings provision is entirely consistent with the limiting

constructions that this Court has placed on the much

broader savings provisions found in other federal laws

regulating maritime matters on the high seas. In Oil,

Chemical & Atomic Workers, International Union,

AFL-CIO v. Mobil Oil Corp., 426 U.S. 407 (1976), this

Court was asked to construe the scope of the savings

provision found in the National Labor Relations Act

(“NLRA”), see 29 U.S.C. § 164(b), that preserves state

“right-to-work” laws. In Mobil Oil, the operator of a fleet

of oil tankers transporting petroleum products between

Texas and certain Atlantic Coast ports sought a declara-

tory judgment invalidating an agency shop agreement

executed by a union on behalf of the certificated seamen

employed on those tankers. Th: employer argued that

since its headquarters were in Texas, and since the vast

majority of the subject seamen were residents of Texas

and had applied for employment and been hired in Texas,

the Texas right-to-work statute served to invalidate the

agency shop agreement under the NLRA’s savings provi-

sion. In sum, the employer argued (similar to Respon-

dent’s argument in this case) that since the subject

seamen had more contacts with Texas than with any other

state, the labor laws of Texas (including the Texas right-

to-work law) must be applicable to their employment.

This Court rejected these arguments because the sub-

ject employees performed most of their services aboard

vessels on the high seas. In reaching its conclusion, this

Court stated:

“Because most of the employees’ work is done on the

high seas, outside the territorial bounds of the State

of Texas, Texas’ right-to-work laws cannot govern the

validity of the agency shop provision at issue here. It

is immaterial that Texas may have more contacts

than any other state with the employment relation-

ship in this case .... It is therefore fully consistent

with national labor policy to conclude, if the predomi-

nant job situs 1s outside the boundary of any State, that

no State has a sufficient interest in the employment

relationship and that no State’s right-to-work laws

can apply.”

426 U.S. 407, 420-421 (emphasis added).

This Court similarly placed a limiting construction on

another federal savings provision affecting maritime af-

fairs in Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207

(1986). The issue presented in Tallentire was whether the

Death On The High Seas Act (“DOHSA”), 46 U.S.C.

§§ 761, et seg., provides the exclusive remedy for the

wrongful death of a seaman employed on the high seas, or

whether a state statute may also provide a wrongful death

remedy in such a situation. In deciding this issue, this

Court was forced to construe DOHSA’s broad savings

provision that preserves “any State statute giving or

regulating rights of action or remedies for death.” 46

U.S.C. § 767. Although the actual language of this savings

provision does not exclude deaths on the high seas, this

Court held tne provision to be inapplicable to such deaths.

In Tallentire, this Court relied on the principles of

maritime law enunciated in the Jensen and Knickerbocker

Ice cases in evaluating Congress’ intent in enacting

DOHSA’s savings provision. This Court imputed to Con-

gress knowledge of the constitutional limitations on Con-

gress’ power to delegate legislative authority to the states

with respect to maritime affairs. In direct contrast to the

analysis of Congressional intent employed by the Ninth

Circuit majority in the instant case, this Court in Tallen-

tire concluded that Congress could not have intended

DOHSA’s savings provision to preserve state laws pur-

porting to regulate deaths on the high seas, since such

intent would have envisioned an unconstitutiona! delega-

tion of legislative authority to the states.

“To read [Section] 7 as intended to preserve intact

largely non-existent or ineffective state law remedies

for wrongful death on the high seas would, of course,

be incongruous. Just as incongruous is the idea that a

Congress seeking uniformity in maritime law would

intend to allow widely divergent state law wrongful

death statutes to be applied on the high seas.”

477 U.S. 207, 230 (emphasis added).

The Ninth Circuit majority opinion tip toes around this

Court’s holdings in Knickerbocker Ice and State of Wash-

ington by summarily dismissing the District Court’s rea-

soning with respect to the FLSA’s savings provision. The

majority opinion states:

‘“‘We disagree with the District Court’s holding that

section 218, if construed to allow [Respondent’s]

actions with respect to maritime employees on the

high seas, would in effect be a delegation of congres-

sional maritime powers to the state. California’s

actions in this case represent an exercise of tradi-

tional police powers firmly in place before Congress

enacted the FLSA .... Thus Congress did not ‘dele-

gate’ authority to the states through Section 218, but

simply made clear its intent not to disturb the tradi-

tional exercise of the states’ police powers with re-

spect to wages and hours more generous than the

federal standards. We cannot read section 218 as a

delegation, and, therefore, conclude that Knicker-

bocker Ice does not control this case.”

(Appendix at A-24 — A-25, emphasis in original.)

This analysis with respect to the FLSA’s savings provi-

sion is fundamentally wrong. Over 200 years of federal

admiralty jurisprudence confirms that the states do not

have the unfettered right to exercise ‘traditional police

powers” over maritime employment on the high seas. As

this Court has stated: “The Constitution ... took from the

states all power... to interfere with [the] proper harmony

and uniformity in [admiralty law].” Knickerbocker Ice Co.

v. Stewart, 253 U.S. 149, 160 (emphasis added). In

ratifying the Constitution and becoming states, the states

relinquished all power to enact maritime legislation that

is disruptive of the national uniformity mandated by the

Constitution.”

The idea that a state may apply its labor laws to any

maritime worker who the state decides has sufficient

“contacts” with it is wholly antithetical to the concept of a

In Mobil Oil, 426 U.S. 407, this Court upheld the reasoning of the

Fifth Circuit’s en banc dissenting opinion in that case which states:

“In no employment field is the master-servant relationship so

predominantly controlled by federal maritime law than in that

existing aboard ship between the master of the vessel and the

men who man it. Indeed, it does not appear that there is any

aspect of the employment relationship which [state] law may

properly control....In practical effect, state regulation of this

employer-employee relationship stops at the water’s edge.”

504 F.2d 272, 285 (5th Cir. 1974) (emphasis added).

uniform system of federal admiralty law. Regardless of

the number of “contacts” that an employee has with any

state, the paramount need for national uniformity re-

mains constant with respect to maritime employment on

the high seas. As former Justice Powell aptly noted in his

concurring opinion in Mobil Oil:

‘“Seamen... have been accorded a special status and

protection under federal maritime law unknown to

state law in the domain of the master-servant rela-

tionship. Unlike the land-based worker, the seaman’s

employment and all of the rights and restrictions

flowing therefrom, are determined by federal statutory

and admiralty law, not state law....

The consistent and traditional control by federal law

of every phase of maritime employment relationships

and contracts refutes the proposition that [an em-

ployee’s} contacts with [a state] justify injecting

state law into federal maritime affairs.’ ”’

426 U.S. 407, 421-422 (emphasis added).

In sum, the Ninth Circuit majority grievously erred in

holding that the FLSA’s savings provision can properly

be construed to preserve state laws that seek to regulate

the employment of seamen and other maritime employees

on the high seas. Since the FLSA’s savings provision is

constitutionally inapplicable to such employment, and

since California’s overtime laws are in patent conflict with

the FLSA, it follows that the state laws at issue should

properly have been held preempted by the federal admi-

ralty law.

CONCLUSION

For the foregoing reasons, review by this Court is

appropriate and certiorari should be granted.

ses

Respectfully submitted,

THOMAS E. HILL

Counsel of Record

CAROLINE G. SMITH

MUSICK, PEELER & GARRETT

Gary M. BRIGHT

BRIGHT & POWELL

Attorneys for Petitioners

ee eS ee ON a ee eS we ey els

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APPENDIX

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A-1

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 ae Le

Le eh ee eat Pier 9 er et 8 ee * TT

8 em et

Bla eS ee

A-3

A. Maritime Employees:

Historically, those who work on ships have been called

“seamen.” As a matter of general 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(2); 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

F'LSA’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. § 10501(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-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. Cleaa 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

II 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 vesseis 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 not 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 Clean

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.

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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 alternating 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 Commissioner. 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) (c).

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 Californie’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-

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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 analysis 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

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 “normaliy 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-FLSA-exempt, general

maritime law seamen [i.e., maritime employees] with respect to work

that takes place primarily within California's territorial waters.”

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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. dented, 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).

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 thai

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 laws 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 oii rigs.”

709 F. Supp. at 1519.

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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. Jd. 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. § 8101-81085.

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.” Jd.

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 employees involved in

this action.

Il. 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

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 narrow!y 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 S. 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. Rec. 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., lst Sess. 63-64, 83, 379-80, 597-99 (1961); Hear-

ings on S. 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,

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 S-nate Comm. on Education and

Labor and the House Comm. on Labor, 75th Cong., Ist

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

See 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., lst Sess. 63-64,

83, 379-80, 597-99 (1961); Hearings on 8. 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., 1st

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., Ist 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 holding 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

shal] 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 vessele engaged in coastwise trade and were

exempt from coverage under 46 U.S.C. § 596.

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 that 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 contro! 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 its 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

paiidaiiansiimeatiititindl

Ae Raga tee. had oP a a aa

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-

ele 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.” 7d. 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. Intl 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-

realty 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

““*tnjo [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 circuit. 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);

Ne ee eee ee eed

iy Dos,

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 Oil 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

Lines, 864 F.2d 201, 207 (1st Cir. 1988); Ezzon 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); Steelsnet, 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 Tailen-

tire. Mobil O1l Corp. and Tallentire both involved interpre-

tation of savings clauses in federal statutes, and the

Court construed the savings clauses narrowly in each

case. 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 O1l 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 tie 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 pericdic payments to the union equal to the union dues.”

Mobil Oil, 426 U.S. at 409 n.1.

ee ee en ae ee

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 Oui

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

“eommon sense” notion that “the uniformity of federal

admiralty law would be destroyed if the states were

permitted to ‘add on’ to the federa! 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 wrongfu! 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 law);

Daughtry v. Diamond M Co., 693 F. Supp. 856, 961-63 (C.D. Cal.

1988) (state procedural rules on effect of s..clement on joint

tortfeasors’ duty to contribute preempted by conflicting federal

procedural rules).

ieee eiaimeeen

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 Oil, 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 un-

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. 8. 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);

7 All 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 IT 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 te 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.”

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.

In some circumatances, 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 Intl

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 « 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 all 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 Modi! 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 employees, exclusively in California ports and

on the high seas off the California coast. Thus, as with 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.” Id. 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 is 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].” Id. 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

cannot 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” abate, - valid

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 recovevy. The vessels are usually stationed

over oil fields located in the Santa Barbara Channel

approximately four to ten nautical miies 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 al! 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 territorial zone or on the high seas,

and (ii) maritime employees working ;rimarily on vessels

on the high seas that are not engaged in foreign or

A-39

intercoastal voyages.” Pacific Merchunt 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 Distr ct Court’s deci-

sion is correct under either general federal admiralty law

or under the FLSA.

I. Preesaption 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 Co., 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. Ameri-

A-40

can Waterways Operators, Inc., 411 U.S. 325, 341-42

(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 consider 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 the 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. Boit, 2 Gall. 398, 7 F.Cas. 418 (C.C. Mass.

1815) (quoted in 14 C. Wright & A. Miller, Federal

Practice & Procedure § 3675), admiralty jurisdiction of

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 mekes 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 countrv

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.” Jd.

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 injr ictive 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-Appellant,

and

TIDEWATER MARINE SERVICE, INC.

AND WESTERN BoaT OPERATORS, INC.

Intervenors-A ppellees.

No. 89-55379

ORDER

FILED MAY 28, 1991

Cathy A. Catterson, Clerk

U.S. Court of Appeals

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 banc are rejected.

A-46

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

PACIFIC MERCHANT SHIPPING ASSOCIATION, etc., 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

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 @ 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).

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 defines “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 operaticn 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 seg., 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. Jd. 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.e. 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 U.S. 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

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 nauticai 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 A&so-

ciation are maritime trade associations that collectively

represent over one hundred maritime employers, includ-

ing plaintiff Clean Seas and Intervenor Tidewater Marine,

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 oil companies. It contains and cleans up marine oil

spills. It also performs other maritime activities to fulfill

federal envirc omenta! 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-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-

cal 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, (ili) 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. Cal. Lab. Code

§ 1173 grants the Industrial Welfare Commission (IWC)

A-53

authority to regulate the wagés, 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 operation

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 preciude

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 plaintiff'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.” f

D. Plaintiffs’ Claims

Although plaintiffs purport to state three separate

claims for relief, all three claims raise similar arguments

and, in fact, are but one and the same claim. In substance,

plaintiffs claim that California labor laws conflict with

federal admiralty law, place a burden on maritime com-

merce and represent an impermissible arrogation of

power on the part of a state to extend its territorial

boundaries and exercise its sovereignty over the high

seas. Intervenors’ claims are similar.

Plaintiffs and intervenors seek a declaratory judgment

that all California wage, hours and working condition

laws are inapplicable to maritime employees whose work

A-55

situs is a vessel on the high seas and to all seamen,

regardless of their work situs. In addition, both seek

permanently to enjoin the Labor Commissioner from

enforcing these state laws against them or their members.

II.

DISCUSSION

Before reaching the substance of this legal dispute, it is

necessary to address two preliminary issues raised by the

parties.

A. Jurisdiction

The Labor Commission contends that the action should

be dismissed for lack of subject matter jurisdiction. He

argues that by bringing this as a declaratory judgment

action, plaintiffs have not changed their preemption asser-

tion from its essential nature as a defense. See e.g., Miller-

Wohl Co. v. Commissioner of Babor & Indus., 685 F.2d

1088, 1090 (9th Cir. 1982) (employer’s anticipation of a

federal defense of preemption by Title VII of employee’s

state discrimination claim insufficient to provide basis for

federal question jurisdiction.)

The present case, however, involves a request for coer-

cive injunctive relief, in addition to declaratory relief. In

such a situation, the Supreme Court has recognized that

federal question jurisdiction is appropriate:

It is beyond dispute that federal courts have jurisdic-

tion over suits to enjoin state officials from interfer-

ing with federal rights. A plaintiff who seeks

injunctive relief from state regulation, on the ground

that such regulation is preempted by a federal stat-

ute which, by virtue of the Supremacy Clause of the

Constitution, must prevail, thus presents a federal

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question which the federal courts have jurisdiction

under 28 U.S.C. § 1331 to resolve. This Court, of

course, frequently has resolved pre-emption disputes

in a similar jurisdictional posture.

Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 n. 14 (1983)

(citations omitted). Accord, Franchise Tax Board v. Con-

struction Laborers Vacation Trust, 463 U.S. 1, 20 n.20

(1983) (“A person subject to a scheme of federal regula-

tion may sue in federal court to enjoin application to him

of conflicting state regulations and a declaratory judg-

ment action by the same person does not necessarily run

afoul of the Skelly Oxl doctrine.’’).

In Southern Pacific Transp. Co. v. Public Util. Comm’n,

716 F.2d 1285, 1288 (9th Cir. 1983), the Ninth Circuit,

applying Shaw, held that Miller-Wohl appiies when only

declaratory relief is sought. When, as here, plaintiffs also

seek an injunction, federal question jurisdiction is proper.

Id.

B. Scope of Declaratory Relief

In their Complaint, plaintiffs request that this court

adjudge “the legal rights and obligations of maritime

employers with respect to their employment of seamen

and/or other maritime workers on vessels normally situ-

ated on the high seas....” In addition, Tidewater seeks a

ruling covering all of its seamen, regardless of their work

situs. The Labor Commissioner contends that plaintiffs

and intervenors seek a declaratory judgment not on mat-

ters in controversy, but rather the adjudication of a

future hypothetical controversy.

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The Supreme Court has spoken often on the question of

whether a situation presents an Article III case or

controversy:

The difference between an abstract question and a

“case or controversy” is one of degree, of course, and

is not discernible by any precise test. The basic

inquiry is whether the “conflicting contentions of the

parties ... present a real, substantial controversy be-

tween parties having adverse legal interests, a dis-

pute definite and concrete, not hypothetical or

abstract.”

A plaintiff who challenges a statute must demon-

strate a realistic danger of sustaining a direct injury

as a result of the statute’s operation or enforcement.

But “[o]ne does not have to await the consummation

of threatened injury to obtain preventive relief. If the

injury is certainly impending that is enough.”

Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289,

297-98 (1979) (citations omitted). The parties do not

dispute that a real controversy exists between the Labor

Commissioner and the employers of the affected

crewmembers. Instead, they dispute whether the remain-

ing plaintiffs have demonstrated a realistic danger of

sustaining a direct injury as a result of the Wage Order’s

enforcement.

According to the Labor Commissioner, plaintiff's re-

quest for relief is too broad because there is no evidence

that the Labor Commissioner threatens to enforce Cali-

fornia labor laws except with regards to the “affected

employees” of Clean Seas and Tidewater. The I.abor

Commissioner claims that he will not exercise jurisdiction

over non-inhabitants; however, this representation is di-

rectly contradicted by his answers to interrogatories and

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Craib’s deposition testimony. He is bound by the latter.

Radobenko v. Automated Equip. Corp., 520 F.2d 540, 544

(9th Cir. 1975) (party may not create issue of fact on a

summary judgment motion by contradicting his own depo-

sition). He also maintains that no evidence suggests that

workers employed by other members of the plaintiff as-

sociations are affected by his overtime awards to Clean

Seas’ employees; thus, that any relief should be narrowly

tailored.

Although this contention is not without merit, the

argument goes too far. The rights of three other groups

are directly at stake. The first group consists of the

remaining crewmembers of Mr. Clean III, at least some of

whom would be eligible to bring similar claims for over-

time compensation. Further, Mr. Clean III still employs

seven of the nine employees who were awarded overtime

by the Labor Commissioner. Therefore, Clean Seas faces

additional liability. Tidewater also faces similar, potential

liability from its remaining crewmembers.

The second group is employers with a direct stake in

the outcome of this litigation and include those members

of the plaintiff associations who employ seamen or other

maritime employees on vesseis on the high seas, but which

do not engage in foreign or intercoastal voyages. Plain-

tiffs maintain that their members operate vessels, similar

to those used by Clean Seas, on the high seas, that are not

engaged in foreign or intercoastal voyages. The third

group affected by this litigation is those employers that

have seamen, like Klemen, working within the territorial

zone.

Plaintiffs also challenge a broader group of statutory

provisions than the Labor Commissioner has attempted

so far to apply. The Labor Commissioner has applied

California’s overtime compensation provision, specifically

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IWC Wage Order 4-80, to seamen and maritime employ-

ees. In applying this Wage Order, he has also invoked a

number of statutory provisions covering other wage and

hour requirements. E.g., Cal. Lab. Code $§ 200 (defini-

tions), 201 (time for payment upon discharge), 203 (pen-

alty for failure to make payment at required time), 204

(requirement of semimonthly payment), 226 (itemized

statement of wages). Clearly, the Court can determine

whether application of those provisions was proper. How-

ever, plaintiffs request that the Court determine the

applicability of “all _cher provisions of California wage

and hour law.” The Labor Commissioner contends that

there is no evidence that he will seek to enforce any other

provisions of the Wage Order other than the overtime

provision. The Court agrees; consequently, it will limit its

review to the overtime provisions only and to any other

wage and hour provisions intertwined with the overtime

compensation provision.

C. Does Maritime Law Preempt State Law

Both sides recognize the need for uniform regulation

under admiralty law. Norris, supra, § 1.3, p. 4-5, citing

Panama R. Co. v. Johnson, 264 U.S. 375 (1924). Therefore,

state laws which conflict with maritime law cannot be

enforced. 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). However, state laws that do not conflict

may be incorporated into admiralty law and applied. 14

Wright & Miller, Federal Practice & Procedure: Jurisdic-

tion 2d § 3671, pp. 421-422 (state law may not be applied

to prejudice the characteristic features of maritime law or

to disrupt the harmony it strives to bring to international

and interstate relations); Askew v. American Waterways

Operators, Inc., 411 U.S. 325, 341-42 (1973). Although a

number of federal provisions do cover the overtime wages

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of seamen on a variety of voyages, no federal maritime

law expressly addresses the overtime pay of the seamen

and other maritime workers such as those involved in the

case at bench. Because of this absence of express federal

provision, the Labor Commissioner contends that Califor-

nia labor laws do not conflict with federal law and are

thus not preempted.

Plaintiffs’ response is two-fold: First, although no fed-

eral maritime statute expressly addresses overtime com-

pensation for the seamen and maritime employees

involved in this action, the Shipping Act does govern

other aspects of these employees’ wages, hours and work-

ing conditions. Plaintiffs cannot, however, find safe har-

bor in this Act; defendant’s exercise of jurisdiction

conflicts directly with only one of its provisions. (When a

seaman’s wages must be paid. Compare 46 U.S.C. § 10313,

with Cal. Lab. Code § 204.) In light of the general exemp-

tion of coastwise vessels not engaged on coastwise voy-

ages from the comprehensive “burdensome requirements”’

of the Shipping Act, this one conflict does not seem

sufficient to preempt California’s overtime laws. Inter-

Island Nav. Co. v. Byrne, 239 U.S. 459, 462-63 (1915).®

Maritime statutes simply do not purport to govern the

overtime wages of employees such as those in this action.

1. FLSA v. State

Plaintiffs next contend that, to the extent that seamen

or maritime employees are not covered by federal mari-

time statutes, they are covered by the FLSA. This argu-

ment is much more persuasive.

Section 207(a) of the FLSA provides overtime pay for

employees who are engaged in “commerce or in the

production of goods for commerce.” Although neither side

cites any evidence that the maritime employees here fall

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under the FLSA, it appears that the employees are tied

closely enough to commerce (oil production) such that

they are covered by 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. § 206(4) (expressly applying minimum

wage to seamen); Friedell, Benedict on Admiralty, § 104,

pp. 7-6.

The FLSA constitutes a comprehensive, uniform and

national system of wage and hour regulation. It provides

maritime employers and employees with a uniform legal

standard by which to ascertain their legal rights and

obligations. It specifically exempts maritime workers, 1.e.,

seamen who are engaged primarily in the operation of a

vessel. Further, the California overtime provisions and

the FLSA provisions produce widely differing results.

Plaintiffs contend that these conflicts establish that the

FLSA preempts California labor provisions. In fact, the

Labor Commissioner concedes that the FLSA would pre-

empt state law, were it not for the FLSA’s savings clause,

29 U.S.C. § 218(a).

2. The FLSA Savings Clause

The savings clause provides:

“No provision of this chapter or of any order there-

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