Opposition Brief — Tidewater Marine Western, Inc. v. California Labor Commissioner
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No. 96-1496
PR oe Brey 2 me
IN THE
SUPREME COURF———-~--
OF THE UNITED STATES
October Term, 1996
TIDEWATER MARINE WESTERN INC., ZAPATA GULF
PACIFIC INC., OFFSHORE MARINE SERVICE
ASSOCIATION, and METSON MARINE INC.,
Petitioners
V
LABOR COMMISSIONER OF THE STATE OF
CALIFORNIA, INDUSTRIAL WELFARE COMMISSION OF
THE STATE OF CALIFORNIA, and ALVIN ALLEN et al..
Respondents.
ON PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF THE STATE OF
CALIFORNIA
OPPOSITION OF ALVIN ALLEN, ET AL. TO PETITION
FOR WRIT OF CERTIORARI
BRUCE N. ANTICOUNI
Counsel of Record
CAROLINE M. WEEKS
C. CURTIS HEETER
ANTICOUNI & ASSOCIATES
23 E. De la Guerra St., #17
Santa Barbara, CA 93101
(805)-962-0467
Attorneys for Alvin Allen, et al.,
Respondents
NY Seer os
QUESTIONS PRESENTED
1. Whether the Fair Labor Standards Act preempts
the application of California’s overtime compensation laws to a
small group of resident maritime employees who work entirely
within the territorial boundaries of the State of California.
id Whether the application of California’s overtime
compensation laws to this small group of resident employees is
preempted by the federal law of admiralty, as defined in
Southern Pacific Co. v. Jensen 244 U.S. 205 [61 L.Ed. 1086, 37 S.
Ct. 524] (1917), and its progeny.
3. Whether the State of California may enforce its
wage and hour regulations to a small group of resident maritime
employees within its territorial boundaries as defined by the
California Constitution, Article III § 2, and the Submerged
Lands Act 43 U.S.C. 1312, but beyond the three-mile federal
limit set by United States v. California 381 U.S. 139 [14 L-Ed.2d
296, 85S. Ct. 1401] (1965); 43 U.S.C. 1311.
PARTIES TO THE PROCEEDING BELOW
The parties in the trial and appellate proceedings below
were the Labor Commissioner of the State of California,
Industrial Welfare Commission of the State of California,
Division of Labor Standards Enforcement of the State of
California, and Alvin Allen, et al. (defendants at the trial below
and appellants on appeal); and Tidewater Marine Western Inc.,
Zapata Gulf Pacific Inc., Offshore Marine Service Association
(plaintiffs at the trial below and respondents on appeal); Metson
Marine Inc., and San Pedro Offshore Marine Inc. (plaintiff-
intervenors at the trial below and respondents on appeal).
Petitioners in this Court are Tidewater Marine Western
Inc., Zapata Gulf Pacific Inc., Offshore Marine Service
Association, and Metson Marine Inc. (San Pedro Offshore
Marine, Inc. settled the outstanding claims against it.).
Respondents are Labor Commissioner of the State of California,
Industrial Welfare Commission of the State of California,
Division of Labor Standards Enforcement of the State of
California, and Alvin Allen, et al.
1]
Page
QUESTIONS PRESENTED .......cccecccccceees i
PARTIES TO THE PROCEEDING BELOW ......... ii
STATEMENT OF THE CASE ........essecscceeess 2
5 ge 8 ag SU en be nee ae 8
1. Federal Court Litigation: 1987-1992.............. 10
2. State Court Litigation: 1992-1996................ 12
REASONS FOR DENYING THE PETITION FOR WRIT
i cee rh cbse kh ede i chacwresanes 13
SUPPORTED BY THIS COURT’S DECISIONS ..... 13
A. State Preemption by Federal Law...........++-- 13
ill
iv
Page(s)
Cases
Pacific Merchant Shipping Assn., et al. v. Lloyd Aubry, et al.
918 F.2d 1409 (9th Cir. 1990);cert. den. 112 S. Ct. 2956 [119
L.EB.2d 478} (1992)... cccseses 3, 4, 5, 6, 11,15,16,17,19,20
California Fed. Savings & Loan Assn. v. Guerra
479 U.S. 272 [93 L.Ed.2d 613, 107 S. Ct. 863] (1987)........ 4
Southern Pacific Co. v. Jensen
MGA WEIR oe 5, 6,18
Askew v. American Waterways Operators, Inc.
WIGS OTS er 6,18
Douglas, et al. v. Seacoast Products, Inc., et al
431 U.S. 265 [97 S. Ce. 740, 52 L.Ed.2d 304... cece 6,18
Romero v. International Term. Co.
ES eg ee rer er reer reer 6,18,23
Huron Cement Co. v. Detroit
362 U.S. 440 [4 L.Ed.2d 852, 80 S. Ct. 813 (1960)....... 6,18
United States v. California
Shi TEE. GHG, WOOT IE 5 go ok hho se cd 7
Smith v. United States 507 U.S. 197, 213
[122 L.Ed.2d 548, 113 S. Ct. 1178](1993)............000. 8
Skiriotes v. Florida
313 U.S. 69 [85 L.Ed. 1193, 61S. Ct. 924] (1941)... .. 8,25,26
TABLE OF CONTENTS (con’d)
People v. Weeren
26 Cal.3d 654, 661 [163 Cal.Rptr. BONE CEPOR hs cdc e ees 8,25
Tidewater Marine Western, Inc., et al. v, Victoria L.
Bradshaw, as Labor Commissioner, et al.
46 Cal.App.4th 640 [43 Cal.Rptr. 2d 413] (| Se 12
California Fed. Savings & Loan Ass’n v. Guerra 479 U.S. 272
[93 L.Ed.2d 613, 107 S. Ct. 683] (1987)..........00000, 14
West Coast Hotel Co. v. Parrish 300 U.S. 379
(2 L.Ed. 708, 57S. Ce. SMV NETL 14
De Canas v. Bica 424 U.S. 351, 356 [47 L.Ed.2d 43, 96S. Ct.
vole hati: PEE TEEN. POC Ta Tre ee oh 14
Rice v. Santa Fe Elevator Corp. 331 U.S. 218, 230[ 91 L.Ed. 1447
WPS. Ce. DR 5c chee 15
Jones v. Ruth Packing Co. 430 U.S. 519, 525 [51 L.Ed.2d 604, 97
RARE ote 15
Overnite Transp. Co. v. Tianti 926 F.2d 220, 222
“pve soci: PERLE T Oe OTP PEN, PS a: 16
Pettis Moving Co., Inc. v. Roberts 784 F.2d 439, 441 (2nd Cir.
WR isis enti eee eee 16
Williams v. W. M. A. Transit Co. 153 U.S. App.D.C. 183, 472
Poe 120k, 6088 OO. Cie. BG. oc eee 16
Agislud v. Pony Express Courier Corp. of Am. (9th Cir. 1987) 833
vi
PY
aI 6 KER AeA RA te Ne is Bh ES 17
Douglas, et al. v. seacoast Products Inc., et al. 431 U.S. 265, 277
[oa 1..mG.ee S08, 97 S.Ct TOG) GIOT7) gc cea cece essen 18
Wilburn Boat Co. v. Fireman's Ins. Co. 348 U.S. 31 [199
Ls Rida Ty a Oe Ge SORTASE 68 db 4a e eee eee dhe bieds 18
Kossick v. United Fruit Co. 365 U.S. 731, 741-742 [6 L.Ed.2d 56,
TP nae y+: SOMME ee Set ease Ot hes gr ai 19
East River S.S. Corp. v. Transamerica Delaval 476 U.S. 858, 864
n.2 [90 L.Ed.2d 865, 106 S.Ct. 2295] (1986) .......sseeeee 19
Knickerbocker Ice Co. v. Stewart (1920) 253 U.S. 149 [64 L.Ed.
Se MN A caves 20
Oil Workers Int’l Union v. Mobil Oil Corp. 426 U.S. 407 [48
eae FO PR as SOUT bcd deca edvenrebanis 21
Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207 [91 L.Ed.2d
6 ae Ci SR ea oc on 21
American Dredging Co. v. William Miller 510 U.S. 443 [127
L.Ed.2d 285, 114 S. Ct. 981] (1994).......ceeceeees 21,23,24
United States v. Florida 363 U.S. 121 [4 L.Ed.2d 1096, 80 S. Ct.
n= NRO RSS a ip ER Oo Sa PERG ORE 24, 25
People v. Weeren (1980) 26 Cal.3d at 666.............00 8 25
Statutes
py ih ee S| Per eee TE rrr re rr re re err 2,3
OO Be RS etre rere rae eur oe 7
ee 8 Bs Pre re here rey Serer ore yore 7
AST Oe I occ cys rac dieeeeens 7
vii
State of California. Cal. Labor Code,
We PR oo ce ace cae x
Cal. Labor Code, §§ 21, 61, 95, 98-98.7, 1193.5... ...... 8,9
Cal. Code Regs, tit. 8, § 11040, subd. 1.
Ee WN NE PI Po hv kkk w Was oe 6 os oo 68 9
Cal. Code Regs., tit. 8, § 11090, subd. 2(C)............ 9, 10
Cal. Code Regs., tit. 8, §§ 11040, subds. 3(A)(1), 3(A)(2),
SS000, ams, SEAM BR ei ok ks 10
California Labor Code, Section 98.2................... 10
Other
airs, a PAR De ee Wie Rk cs om 5a Oo ek eee a hc Chk 5
Cal. Const., art. III § 2; 46 U.S.C. 1312................. 7
46 U.S.C. §§ 8101-8105, 8104(b), 10301-10908,
RENEs OECD CEASE NR edd oe eka eee ewe 11
Fair Labor Standards Act of 1938.............. .eeeee 11
29 U.S.C.S. §§ 213(b)(6), 218(a)
Wcchas RGD, SMEs MEEy OB ee Mbeki cos oss wea'cecpeuk owe 11
viii
No. 96-1496
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1996
TIDEWATER MARINE WESTERN INC., ZAPATA GULF
PACIFIC INC., OFFSHORE MARINE SERVICE
ASSOCIATION, and METSON MARINE INC..,
Petitioners.
v.
STATE OF CALIFORNIA LABOR COMMISSIONER,
INDUSTRIAL WELFARE COMMISSION OF THE STATE
OF CALIFORNIA, and ALVIN ALLEN ET AL.,
Respondents.
ON PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF THE STATE OF
CALIFORNIA
OPPOSITION OF ALVIN ALLEN, ET AL. TO PETITION
FOR WRIT OF CERTIORARI
BRUCE N. ANTICOUNI
Counsel of Record
CAROLINE M. WEEKS
C. CURTIS HEETER
ANTICOUNI & ASSOCIATES
23 E. De la Guerra St., #17
Santa Barbara, CA 93101
(805)-962-0467
Attorneys for Alvin Allen, et al.,
Respondents
OPINIONS BELOW
The opinion of the Supreme Court of the State of
California (1996) 14 Cal.4th 557 [927 P.2d 296] is reprinted in
Petitioners’ Appendix (Pet. App.) at A-1. The opinions of the
Court of Appeal of the State of California (1995) 46 Cal.App.4th
640 [43 Cal.Rptr. 2d 413] and the Superior Court of the County
of Santa Barbara are reprinted in Pet. App. at A-27 and A-41,
respectively.
STATEMENT OF THE CASE
1. This case concerns a state law which regulates
commercial activity which exists exclusively within the State of
California, and which is limited in enforcement of overtime
compensation only to its own residents. The California
Supreme Court's decision was limited to a small group of
resident wage earners employed in a very small portion of the
state, the Santa Barbara Channel. The employees are all
California residents who work on boats which are not engaged
in foreign, intercoastal, or coastwise voyages.'
' The Shipping Act, 46 U.S.C. § 2101-14701, divides voyages into three
types. Foreign voyages are voyages between ports in the United States and
ports in foreign countries (except Canada, Mexico and the West Indies). (46
U.S.C. § 10301(a)(1).) Intercoastal voyages are voyages between ports on the
Atlantic and Pacific coasts. (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). (46 U.S.C. § 10501 (a).) Therefore, the activities at issue here lie
outside of the scope of the shipping act because the errployees are not engaged
in intercoastal, coastal, or coastwise voyages., et al. 918 Pacific Merchant
Shipping Assn. v. Aubry 918 F.2d 1409 (9th Cir. 1990), Tidewater Marine
Western, Inc. v. Labor Commissioner of the State of Celifoernia, et al. 14 Cal.4th
2
This state, as do all states, has a strong interest in
regulating the wages, hour and working conditions of its
citizens. Moreover, federal law specifically allows states to
enforce their more generous wage and hour laws, as long as they
do not fall below limits established by the Fair Labor Standards
Act 29 U.S.C. 213, et seq. (“FLSA").
The regulation by California of its resident citizens is
proper because there is no preemption or conflict with federal
laws or the United States Constitution. The identical federal
preemption arguments have been argued previously by
petitioners and they have been exhaustively analyzed by the
Ninth Circuit Court of Appeal (Ninth Circuit). Pacific Merchant
Shipping Assn., et al. v. Lloyd Aubry, et al. 918 F.2d 1409 (9th Cir.
1990); cert. den. 112 S. Ct. 2956 [119 L.Ed.2d 478] (1992) (Pacific
Merchant). The Ninth Circuit held that the State of California is
free to regulate the hours and working conditions of maritime
employees who are residents of California and work within the
State’s territorial waters, because there is no conflict with federal
laws, or the United States Constitution.
a Under the FLSA, overtime must generally be
paid at one-and-one-half times the regular rate to employees who
work more than 40 hours in a given week. The FLSA contains a
savings clause, 29 U.S.C. 218(a), that allows the states to provide
557, 927 P.2d 296 (1996)
greater protection to employees. The savings clause provides
that “[nJo provision of [the FLSA] or of any order thereunder
shall excuse noncompliance with any federal or state law or
municipal ordinance establishing a minimum wage higher than
the minimum wage established under [the FLSA] or a maximum
work week lower than the maximum workweek established
under [the FLSA].” 29 U.S.C. 218(a). Section 213(b)(6) of the
FLSA exempts “seamen” from its coverage.’
The California Supreme Court (Pet. App. at 1) upheld
the principles set forth in Pacific Merchant, finding no evidence
that Congress intended the FLSA's seaman exemption to bar
state regulation of that employment. The FLSA ‘seaman’
exemption “appears to have had no purpose other than to negate
the regulatory effect the FLSA would otherwise have had on the
employment of seamen, not to create an affirmative bar against
state regulation of that employment.” (Pet. App. at A-10) Pacific
Merchant, supra, 918 F.2d at 1417.
“In determining whether federal law preemprts state law,
our sole task is to ascertain the intent of Congress,” (California
? Department of Labor regulations define “seamen” as employees who
“work primarily as an aid in the operation of [a] vessel as a means of
transportation,” (29 C.F.R. 783.33) and “perform{] no substantial amount of
work of a different character.” (29 C.F.R. 783.31.) Other types of maritime
employees working on vessels fall within the broad admiralty definition of
“seamen,” but are not exempt from the overtime compensation required by the
FLSA. McDermott Int'l Inc. v. Wilander 498 U.S. 337 [112 L.Ed.2d 866, 111 S.
Ct. 807, 817] (1991).
|
Fed. Savings & Loan Assn. v. Guerra 479 U.S. 272 [93 L.Ed.2d
613, 107 S. Cr. 863] (1987).) Both the Ninth Circuit and the
California Supreme Court found that no provision of the FLSA
‘actually conflicts’ with California law. "The FLSA does not
expressly preclude states from regulating the overtime wages of
seamen, and the legislative history of the FLSA does not suggest
an implicit preclusion.” (Pet. App. at A-10; Pacific Merchant,
supra, 918 F.2d at 1417.) "In sum, we find no evidence that
Congress intended the FLSA's seaman exemption to preempt
state law.” (Pet. App. at A-10,11.)
3. The application of California's wage and hour
laws to its citizens here also does not conflict with federal
admiralty law. U.S.C. Const. Art. II, § 2, cl. 1. The general rule
in 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.
Southern Pacific Co. v. Jensen 244 U.S. 205, 216 (1917) (Jensen):
“[N]o such 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.” (Jensen, supra, 244 U.S. at 216.)
The Ninth Circuit’s resolution of Jensen is strongly
LEER EEE ee non ne eee nT eNom
supported by several factors. First, Jensen itself involved
application of state law to the owner of a boat who was involved
in interstate transportation of goods. However, in Pacific
Merchant, The Ninth Circuit limited its holding to boats with
significant contacts exclusively with California, or boats who did
not engage in “foreign, intercoastal, or coastwise voyages.”
Therefore, the application of the state’s overtime compensation
laws to boats that do not engage in interstate or foreign
commerce does not disrupt “uniformity” of maritime law “in its
international and interstate relations.” Jensen, supra, 244 U.S. at
216. This Court has traditionally and repeatedly emphasized
in the context of admiralty law, that where there is no conflict
with federal law, application of state law is both proper and
preferable. Askew v. American Waterways Operators, Inc. 411
U.S. 325 (1973); Douglas, et al. v. Seacoast Products, Inc., et al. 431
U.S. 265 [97 S. Ct. 740, 52 L.Ed.2d 304; Romero v. International
Term. Co. 358 U.S. 354 (1959); Huron Cement Co. v. Detroit 362
U.S. 440 [4 L.Ed.2d 852, 80 S. Ct. 813 (1960).
Moreover, the employees who labor for petitioners have
strong ties to California. They all are hired in California, are
paid in California, pay California taxes, and reside in California.
There is “no indication that Congress intended that maritime
employees not benefit from more generous state wage and hour
laws,” and application of California’s overtime laws “does not
unduly disrupt federal admiralty law and, for that reason, is not
constitutionally invalid.” Pacific Merchant, supra, 918 F.2d at
1426.
Although the employees of petitioners are
California employees, they labor on boats which often, but do
not always, traverse waters where state and federal territorial
boundaries coincide. For purposes of state law, the territorial
boundary of California is that stated in the Constitution of 1849,
as modified pursuant to statute. Cal. Const., art. Il § 2; 46
U.S.C. 1312.> California’s territorial boundary runs “three
English nautical miles oceanward of lines drawn along the outer
sides of the outermost of the islands . . . along and adjacent to
the mainland and across the intervening waters . . . “ (Cal. Gov.
Code § 170.) The territory of the state extends throughout its
inland waters, which include, “{a]ll waters between the mainland
and the outermost of the islands . . . . “ (Cal. Gov. Code § 171.)
This brings the entire Santa Barbara Channel directly into the
State’s territorial jurisdiction. (See map of the Santa Barbara
Channel in Respondent’s Appendix (Resp. App.) at A-64.)
For purposes of federal law, California’s territorial
boundaries extend three nautical miles from the coast, and
> The Submerged Lands Act (43 U.S.C. 1312) provides: “Nothing in this
section is to be construed as questioning or in any manner prejudicing the
existence of any State's seaward boundary beyond three geographical miles if it
was so provided by its constitution or laws prior to or at the time such State
became a member of the Union, or if it has been heretofore approved by
Congress."
include a three-mile wide band around any islands off the coast,
but exclude waters between the islands and the coast. 43 U.S.C.
§§ 1301(b), 1312; United States v. California 381 U.S. 139, 169-
171 (1965). This anomaly between federal and state boundaries
has no significance when it comes to the facts of this case. “The
federal law boundaries would have precedence only if the
operation of federal law were at issue, as for example if federal
law conflicted with state law.” (Pet. App. at A-7.) Moreover,
“nothing precludes a state from regulating conduct beyond its
borders ... . where there is no conflict with federal law.” (Pet.
App. at A-7; see also Smith v. United States 507 U.S. 197, 213
[122 L.Ed.2d 548, 113 S. Ct. 1178] (1993); Skiriotes v. Florida 313
U.S. 69 [85 L.Ed. 1193, 61 S. Ct. 924] (1941); People v. Weeren 26
Cal.3d 654, 661 [163 Cal.Rptr. 255] (1980).
SUMMARY OF FACTS
Petitioners Tidewater Marine Western, Inc. (Tidewater),
and Zapata Gulf Pacific, Inc. (Zapata), and Metson Marine, Inc.
(Metson) are maritime employers that transport persons and
property from the California coast to oil-drilling platforms
located within the Santa Barbara Channel. (See Respondent's
Appendix (Resp. App.) at 1.) Petitioner Offshore Marine
Service Association (OMSA) is a trade association representing
owners and operators of boats which provide offshore marine
services.
Respondent Industrial Welfare Commission (TWC) is the
state agency empowered to promulgate regulations governing
employment in the State of California. Cal. Labor Code, §§
1173, 1178.5, 1182. Respondent Division of Labor Standards
Enforcement (DLSE), headed by respondent Victoria L.
Bradshaw, as Labor Commissioner, is the state agency
empowered to enforce California’s labor laws, including IWC
regulations (or wage orders). Cal. Labor Code, §§ 21, 61, 95, 98-
98.7, 1193.5. Respondents Alvin Allen, et al. are all current or
former employees of Tidewater, employed on transportation
boats which operate entirely within the Santa Barbara Channel.
All of Petitioners’ boats depart from and return to ports
located in the State of California. The employees work on a
schedule of 7 or 14 days on and 7 days off, with active duty
periods of 12 hours within each 24-hour period. While on
board, employees are on call 24 hours a day. Employees are paid
a flat daily rate of pay with no provision for overtime
compensation. Current rates range from less than $100 to $200
per day while they are working, but not when they are off. All
of the employees at issue here begin and end their work periods
entirely in the State of California. The employees are hired in
California, are residents of California, are paid in California, and
pay California income taxes.
IWC wage order No. 4-89 regulates employment “in
professional, technical, clerical, mechanical, and similar
occupations . . . unless such occupation is performed in an
industry covered by an industry order of this Commission.” Cal.
Code Regs, tit. 8, § 11040, subd. 1. WC wage order No. 9-90
regulates employment in the transportation industry, which
includes “any industry, business, or establishment operated for
the purpose of conveying persons or property from one place to
another whether by rail, highway, air, or water, and all
operations and services in connection therewith . . . .” Cal. Code
Regs., tit. 8, § 11090, subd. 2(C).
Wage orders Nos. 4-89 and 9-90 both prohibit work in
excess of eight hours in any twenty-four hour period unless the
employee is paid “overtime,” which is generally “one and one-
half (1%) times the employee’s regular rate of pay for all hours
worked in excess of twelve (12) hours.” (Cal. Code Regs., tit. 8,
§§ 11040, subds. 3(A)(1), 3(A)(2), 11090, subds. 3(A)(1), 3(A)(2).)
1. Federal Court Litigation: 1987-1992
The dispute in these cases first arose in 1987, when
claims for overtime compensation were filed with the Labor
Commissioner by employees of two companies, Clean Seas and
Offshore Tanker Marine. After the employees were awarded
overtime compensation, the companies appealed to the Santa
Barbara Superior Court pursuant to California Labor Code,
Section 98.2.
Tidewater, OMSA, the Pacific Merchant Shipping
Association, American Institute of Merchant Shipping, Western
Oil and Gas Association, and Clean Seas then brought suit in
10
area anes rarer rrr cerca ee ce an
federal! district court to enjoin the enforcement of California law
to maritime employees. The case was based on federal
preemption issues regarding the regulation of hours and working
conditions of California employees working in the coastal
waters of the State. The District Court entered judgment for
these parties in March, 1989 and enjoined the Labor
Commussioner, the IWC, and the DLSE from enforcing IWC's
wage order 4-80 regarding regulation of the professional,
technical, clerical, mechanical, and similar occupations. Pacific
Merchant Shipping Assn., et al. v. Lloyd Aubry, et al. 709 F. Supp.
1516 (1989). The decision of the trial court was reversed by the
Ninth Circuit, which held that the State of California is free to
regulate the hours and working conditions of maritime
employees in its coastal waters, because there is no conflict with
federal laws.
The Ninth Circuit expressly declined to rule on issues
involving the promulgation of the wage and hour regulations
under California law.* However, the Court did provide relief
for maritime employees, holding that there was no preemption
of their state law claims by the Federal Shipping Act (46 U.S.C.
§§ 8101-8105, 8104(b), 10301-10908, 11101, 11102, 11109; Fair
* This state law issue has now been fully resolved. The California Supreme
Court held: "the crew members who work for Tidewater and Zapata in the Santa
Barbara channel reside in California, receive pay in California, and work in
California. They are "wage earners of California" and presumptively enjoy the
protections of IWC wage orders." (Pet. App. at 25.)
1]
Labor Standards Act of 1938 (29 U.S.C.S. §§ 213(b)(6), 218(a);
or federal admiralty law, (U.S.C. Const. Art. TH, § 2, cl.1.).
This Court declined to review the decision of the Ninth
Circuit and denied certiorari on June 8, 1992. Pacific Merchant,
supra, 918 F.2d 1409, cert. den. (1992) 112 S. Ct. 2956 [119 L.Ed.
2d 578]. As mandated by the Ninth Circuit in July, 1992, the
District Court reversed its judgment and vacated its injunction
against the Labor Commissioner, the IWC, and the DLSE,
allowing them to assert jurisdiction over maritime employees in
the coastal waters of California.
2. State Court Litigation: 1992-1996
Following the denial of certiorari by this Court in July,
1992, maritime employees began filing overtime wage claims
against Tidewater and other maritime employers. These
employees work or worked on transportation boats owned and
operated by Tidewater and other maritime employers. The
litigation was brought under IWC's wage order no. 9-90 which
governs employment in the transportation industry of the State
of California.
The Santa Barbara Superior Court, Hon. William
Gordon, rendered its final judgment on February 23, 1994,
against respondents, and enjoined the Labor Commissioner,
IWC, and DLSE from enforcing IWC wage orders as to any
employee working over the three-mile federal boundary. The
Superior Court held that the DLSE had exceeded its
12
enforcement jurisdiction by applying California’s wage and hour
laws outside of the three-mile federal boundary. (Pet. App. at A-
41.)
The Second District Court of Appeal reversed the
judgment of the Superior Court, holding that the Labor
Commissioner, IWC, and DLSE are empowered to regulate
overtime compensation of California residents who work on
boats operating exclusively to and from a California port or
ports if they enter into employment contracts in the State of
California. Tidewater Marine Western, Inc., et al. v, Victoria L.
Bradshaw, as Labor Commissioner, et al. 46 Cal.App.4th 640 [43
Cal.Rptr. 2d 413] (1995).)
The California Supreme Court affirmed the judgment of
the Court of Appeal, ruliag that the WC and DLSE had
properly exercised its enforcement jurisdiction and that the trial
court had erred in granting a permanent injunction barring
enforcement. (Pet. App. at A-25.) Petitioners filed a Petition for
Writ of Certiorari with this Court on March 20, 1997.
Contrary to the attempts by petitioners to make this
13
matter appear very complicated, this case boils down to a very
- simple conclusion reached by both the Ninth Circuit and the
State Supreme Court of California: there is no possible
preemption, either by federal statute or by admiralty law, that
prevents California from exercising its sovereignty in the
traditional and historical regulation of the wages and overtime
hours of its residents who work exclusively within its territori-l
boundaries.
Federal law can preempt state law in three ways;
explicitly, if Congress declares that state law is preempted;
implicitly, if Congress enacts comprehensive laws which leave
no room for additional state regulation; or if state law actually
conflicts with federal law. California Fed. Savings & Loan Ass’n v.
Guerra 479 U.S. 272 [93 L.Ed.2d 613, 107 S. Ct. 683] (1987).
Employment laws, including wage laws, are a local
concern traditionally within a state’s police powers. West Coast
Hotel Co. v. Parrish 300 U.S. 379 [81 L.Ed. 703, 57S. Ct. 578]
(1937) (upholding states’ constitutional authority to impose
minimum wage regulations as an exercise of the police power);
see also De Canas v. Bica 424 U.S. 351, 356 [47 L.Ed.2d 43,96S
Ct. 933 (1976) [States possess broad authority under their police
powers to regulate the employment relationship to protect
resident workers}. Thus, there is an assumption that the historic
powers of the states are not to be superseded by federal
legislation unless that was the clear and manifest purpose of
Dt
CEE ee LE Oe ee eee ar eee ee ee ee
Congress. Rice v. Santa Fe Elevator Corp. 331 U.S. 218, 230[ 91
L.Ed. 1447 [67 S. Ct. 1146] (1947). Congress does not intend to
nullify state law unless a contrary intent is clear and manifest.
The balance between federal and state law should not be
disturbed “unintentionally by Congress or unnecessarily by the
courts.” Jones v. Ruth Packing Co. 430 U.S. 519, 525 [51 L.Ed.2d
604, 97 S. Cr. 1305]. (1976).
B. The FLSA: 29 U.S.C. § 218(a):
of Wage Regulation
Congress explicitly communicated its intent that the
states participate with it in the field of wage regulation. The
FLSA “savings clause” (29 U.S.C. § 218(a)), provides that “no
provision of this chapter or any order thereunder shall excuse
noncompliance with a federal or state law ... establishing... a
maximum workweek lower than the maximum workweek
established under this chapter.”
Congress specifically allows states to enforce laws more
generous to employees than the FLSA and its “purpose” in
enacting such legislation was to “establish a national floor under
which wage protection cannot drop, not to establish absolute
uniformity in minimum wage and overtime standards
nationwide at levels established by the FLSA.” Pacific Merchant,
supra, 918 F.2d at 1425.
It cannot be persuasively argued that Congress intended
15
to preempt state law throughout the field of overtime
compensation regulation. The federal courts ruling on these
issues have historically and consistently interpreted the FLSA
savings Clause as expressly permitting states to regulate overtime
wages. See, e.g., Overnite Transp. Co. v. Tianti 926 F.2d 220, 222
(2nd Cir. 1991) [state overtime wage law is not preempted by. .
. the FLSA”]; Pettis Moving Co., Inc. v. Roberts 784 F.2d 439, 441
(2nd Cir. 1986) [the FLSA savings clause “explicitly permits
states to set more stringent overtime provisions than the
FLSA”); and Williams v. W. M. A. Transit Co. 153 US.
App.D.C. 183, 472 F.2d 1258, 1261 (D.C. Cir. 1971) [savings
clause “permits state laws to operate even as to workers exempt
from FLSA”.
Petitioners assert that the FLSA’s exemption for seamen
is part of the fabric of federal admiralty law. 29 U.S.C. §
213(b)(6). However, as the California Supreme Court found, the
seamen exemption “appears to have had no purpose other than
to negate the regulatory effect the FLSA would otherwise have
had on the employment of seamen, not to create an affirmative
bar against state regulation of that employment.” (Pet. App. at
A-10; Pacific Merchant, supra, 918 F.2d at 1417.
The Federal Shipping Act 46 U.S.C. §§ 8101-8105,
8104(b), 10301-10908, 11101-11102, 11109 cannot preempt state
California law in this case because it is expressly limited to
foreign, intercoastal, or coastwise voyages, There is no
indication that Congress intended that state employees not
benefit from more generous state wage and hour laws. (Pacific
Merchant, supra, 918 F.2d at 1425.) In this case, the California
Supreme Court limited its holding to employees working in one
small corner of California: the Santa Barbara Channel. (Pet.
App. at A-8; see map at Resp. App. at A-65.) The employees at
issue here do not travei to ports outside of the State of
California, and begin and end their work day entirely within
California.
Applying California's overtime compensation
requirements to maritime employees and seamen also does not
conflict with 46 U.S.C. § 8104, which sets manning
requirements, which include maximum hours and minimum
watches for maritime workers. (46 U.S.C. 8104(b).) “PMSA and
Tidewater have made no showing that the effect of [the]
enforcement action will be to set a firm maximum different
from that set in 46 U.S.C. § 8104.) Pacific Merchant, supra, 918
F.2d at 1416. "While the Shipping Act does comprehensively
regulate maritime activities, it does not regulate overtime pay for
the workers involved in this case." (Pacific Merchant, supra, 918
F.2d 1409, 1416; see also Agislud v. Pony Express Courier Corp. of
17
Am. (9th Cir. 1987) 833 F.2d 809.)
D. U.S. Constitution, Art. IL. § 2, Cl. 1: California’s
Admiralty Law
Petitioners argue that to apply California’s wage laws to
these maritime employees would disrupt uniformity in federal
admiralty law, based in U.S. Constitution, Art. II, § 2, cl.1. It is
firmly established that States retain authority to act on a variety
of issues within the scope of federal admiralty jurisdiction. “It is
true that state law must yield to the needs of a uniform federal
maritime law when this Court finds inroads on a harmonious
system. But this limitation still leaves the States a wide scope.”
Romero v. International Terminal Operating Co. 358 U.S. 354,
360-361 [3 L.Ed.2d 368, 79S. Cr. 468] (1959). Therefore,
maritime law has often been “modified or supplemented by state
action.” (Just v. Chambers (1941) 312 U.S. 383, 388 [85 L.Ed. 903,
61 S. Ct. 687].) This court has consistently held that, where there
is no conflict with federal law, application of state law is both
proper and preferable. Douglas, et al. v. Seacoast Products Inc., et
al. 431 U.S. 265, 277 [52 L.Ed.2d 304, 97 S. Ct. 740] (1977):
Askew v. American Waterways Operators, Inc. 411 U.S. 325 [36
L.Ed.2d 280, 93 S. Ct. 1590 (1973); Huron Cement Co. v. Detroit
362 U.S. 440 [4 L.Ed.2d 852, 80 S. Ct. 813 (1960); Wilburn Boat
Co. v. Fireman's Ins. Co. 348 U.S. 3} [199 L.Ed.357, 75 S. Ct.
368] (1955).
18
Under Jensen, supra, 244 U.S. 205, and its progeny,
whether 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.
Pacific Merchant, supra, 918 F.2d at 1424; noting Kossick v.
United Fruit Co. 365 U.S. 731, 741-742 [6 L.Ed.2d 56, 81 S. Cr.
886 (1961); East River S.S. Corp. v. Transamerica Delaval 476 U.S
858, 864 n.2 [90 L.Ed.2d 865, 106 S.Ct. 2295] (1986).
The Jensen test provides:
“[N]o such 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.” (Jensen, supra, 244 U.S. at 216.)
On these facts the Jensen test is satisfied. The first prong
of the test is satisfied because the application of California’s wage
and hour requirements to its resident citizens does not
contravene an act of Congress. The FLSA specifically allows
state’s to enforce their more generous wage and hour laws (29
U.S.C. 218(a)). The FLSA exemption for seamen (29 U.S.C.
213(b)(6)) does not create an affirmative bar to state regulation of
that employment. As noted above, the Shipping Act does not
apply because these employees do not engage in intercoastal,
19
coastal, or coastwise voyages. 46 U.S.C. §§ 10301(a)(1),
10301(a)(2), 10501(a). The second and third prongs of Jensen are
satisfied because application of California’s wage and hour
requirements to its resident citizens does not work material
prejudice to the characteristic features of the general maritime
law, or interfere with the proper harmony and uniformity of
that law in its international and interstate relations. Pacific
Merchant, supra, 918 F.2d at 1422.
The Pacific Merchant court found that the application of
California’s wage and hour requirements to its resident citizens
does not work material prejudice to the characteristic features of
the general maritime law, or interfere with the proper harmony
and uniformity of that law in its international and interstate
relations. “[T]he balance tips in favor of California in this case”
because “plaintiffs were residents of California who do not
engage in foreign, intercoastal, or coastwise voyages,” were
residents of California, were interviewed and hired in California,
and paid California taxes.” Pacific Merchant, supra, 918 F.2d at
1424.°
This Court’s holdings in Knickerbocker Ice Co. v. Stewart
* The Ninth Circuit recently reaffirmed the Pacific Merchant principles as to
California maritime employees. (Fuller, et al. v. Golden Age Fisheries, et al
(9th Cir. 1994) 14 F.3d 1405, 1409.) The Fuller court stated: “Unlike the
crewmembers in Aubry, plaintiffs here were engaged in coastwise voyages and
their predominant job situs was the high seas rather than the territorial waters of
Alaska . . . application of the California labor statutes does not interfere with
uniform application of federal admiralty law.” (Fuller, supra, 14 F.3d at 1409.)
20
(1920) 253 U.S. 149 [64 L.Ed. 834, 40 S. Ct. 438]; Oil Workers
Int’l Union v. Mobil Oil Corp. 426 U.S. 407 [48 L.Ed.2d 736, 96
S. Ct. 2140] (1976); Offshore Logistics, Inc. v. Tallentire, 477 U.S.
207 [91 L.Ed.2d 174, 106 S. Ct. 2485] (1986), and American
Dredging Co. v. William Miller 510 U.S. 443 [127 L.Ed.2d 285,
114 S. Ct. 981] (1994) do not suppor a different conclusion.
In Knickerbocker, the Court struck down a federal
statute which authorized application of state workers’
compensation laws beyond the “Jensen line,” the area in which
this Court had previously held that application of state law
would interfere unduly with the uniformity of federal maritime
law. Knickerbocker, supra, 253 U.S. 149. However, the FLSA
savings clause (29 U.S.C. 218(a)) is not subject to the same
challenge. The FLSA savings clause specifically protects state
laws from challenges of preemption by the FLSA, and does not
attempt to add to the authority States possess to enact maritime
law or to protect such laws from Jensen preemption.
Tallentire and Mobil Oil are also distinguishable.
Tallentire interpreted the Death On the High Seas Act
(DOHSA), 46 U.S.C. 767, § 7, as a “jurisdictional savings clause”
which preserved jurisdiction of state courts over actions under
DOHSA, instead of “a guarantee of the applicability of state
substantive law to wrongful deaths on the high seas.” Tallentire,
supra, 477 U.S. at 232. The Court did not hold that a savings
clause must always be interpreted to preclude application of state
21
law in the maritime setting, and the FLSA’s savings clause
should not be interpreted as analogous to 46 U.S.C. 767, § 7. Id.
In Mobi! Oil, this Court considered provisions of the
National Labor Relations Act that preserves state right-to-work
laws, holding that the savings clause preserved state law only
within certain territorial limits because it was so explicitly stated
in the statute. 29 U.S.C. 158(a)(3) § 8(a)(3). This Court held that
“the predominant job situs is the controlling factor in
determining whether a State can apply its right-to-work laws to a
given employment relationship.”
Here, the FLSA savings clause (29 U.S.C. 218(a)) does
not place a limit on the territorial boundaries of the state law it
protects. The FLSA provision protects "any . . . state law"
providing minimum wages or overtime above the floor set by
the FLSA, and therefore protects those laws to the fullest extent
permissible. Here, the State of California is only enforcing its
minimum wage and hour compensation requirements to its
resident employees whose job situs is located entirely within the
state's territorial boundaries. (Pet. App. at A-6-8.)
American Dredging, supra, 510 U.S. at 451, need not be
distinguished because it supports the rule that states may enforce
their own laws within the sphere of admiralty law. In American
Dredging, this Court ruled that the requirement of uniformity in
federal law is not absolute. This Court upheld a state statute
rendering the doctrine of forum non conveniens unavailable
22
under the Jones Act (46 U.S.C. App. § 668), and maritime law
cases brought in state court, holding that there is no preemption
by federal maritime law, reaffirming the principle that general
maritime law may be changed, modified, or affected by state
legislation. "That this may be done to some extent cannot be
denied." American Dredging, supra, at 510 U.S. 443, 451; Jensen,
supra, 244 U.S. at 216.)
It is firmly established that states have the power to act
on a “wide scope" of issues within the scope of federal admiralty
jurisdiction, Romero, supra, 358 U.S. at 373-374. Certainly, the
State of California has the power to exercise its sovereignty
when there is no conflict with federal statutes or the
Constitution. As both the Ninth Circuit and the California
Supreme Court have held, there is nothing in the facts of this
case which deny that it is appropriate for California to act as it
has, in enforcing its minimum wage and overcompensation laws
to its own resident citizens, within its own territorial boundary.
The California Supreme Court held that California
employment laws implicitly extend to employment occurring
within California’s state law boundaries, which includes all of
the Santa Barbara Channel. (Pet. App. at A-7.) The California
23
Labor Code provides that “[o]ne of the functions of the
Department of Industrial Relations [including the IWC and the
DLSE}] is to foster, promote, and develop the welfare of the wage
earners of California.“ Cal. Lab. Code, § 50.5. If an employee is
a resident of California, is paid in California, and works
exclusively, or principally, in California, than that employee is a
“wage earner of California” and presumptively enjoys the
protection of IWC wage orders. (Pet. App. at A-24.)
There are several of the states which have boundaries
which differ from the three-mile description contained in the
Submerged Lands Act (43 U.S.C. §§ 1301, et seq.) For example,
for purposes of federal law, the Texas boundary is located 3
leagues® from her coast, and Florida’s boundary includes a 3
league belt of land in the Gulf of Mexico, seaward from its
coastline, as described in its 1868 constitution. United States »
Florida 363 U.S. 121 [4 L.Ed.2d 1096, 80 S. Ct. 961] (1960).
Therefore, for purposes of state law, the Texas and Florida
boundaries are at least four miles over the three-mile federal
limit set by United States v. California, supra, 381 U.S. 139 and
the Submerged Lands Act (43 U.S.C. 1311).
The Submerged Lands Act (43 U.S.C. § 1312)
specifically provides:
* A league is defined as “any of various units of distance from about 2.4 to
4.6 statute miles. (3.9 to 7.4 kilometers) -Websters Ninth New Collegiate
Dictionary (1987).
24
“Nothing in this section is to be construed as
questioning or in any manner prejudicing the existence
of any State’s seaward boundary beyond three
geographical miles if it was so provided by its
constitution or laws prior to or at the time such State
became a member of the Union, or if it has been
heretofore approved by Congress.”
Therefore, nothing should be construed as questioning
or in any manner prejudicing the existence of California’s
seaward boundary beyond three geographical miles, because it
was so provided by its constitution at the time California
became a member of the Union. Cal. Const., Art. I, § 2;
United States v. Florida, supra, 363 U.S. 121.
Moreover, “even if California had not defined (or could
not define) its boundaries more broadly than does federal law,
nothing precludes a state from regulating conduct beyond its
borders.” (Pet. App. at A-7; see Smith v. United States, supra, 507
U.S. at 213; Skiriotes v. Florida, supra, 313 U.S. at 69; People v.
Weeren (1980) 26 Cal.3d at 666.) “[W]e see no reason why the
State of Florida may not... govern the conduct of its citizens
upon the high seas with respect to matters in which the State has
a legitimate interest and where there is no conflict with acts of
Congress . . . [T]he State of Florida has retained the status of
sovereign.” Skiriotes, supra, 313 U.S. at 76-77.
Regardless of its boundaries, California can govern
25
—
employment of its residents on the high seas, provided there is
no conflict with federal law. Skiriotes, supra, 313 U.S. at 76-77.
As discussed above, the application of California’s minimum
wage and hour laws to its resident citizens does not conflict with
federal laws and does not disturb uniformity in admiralty law as
set forth by Jensen, supra, 244 U.S. 205, 216, and its progeny.
26
UJ. CONCLUSION
For the foregoing reasons, review by this Court is
neither appropriate or necessary. Certiorari should be denied.
Respectfully submitted,
BRUCE N. ANTICOUNI
Counsel of Record
CAROLINE M. WEEKS
C. CURTIS HEETER
Attorneys for Respondents
Alvin Allen, et al.
APPENDIX
Pacific Merchant Shipping Association: American
Institute of Merchant Shipping: Offshore Marine Service
Association; Western Oil and Gas Association; Clean
Seas, Plaintiffs-Appellees, v. Lloyd W. Aubry, Jr., Labor
Commissioner, Division of Labor Standards
Enforcement, Department of Industrial Relations. State
of California, Defendant-Appellant, v. Tidewater Marine
Service, Inc.; Western Boat Operators, Inc..,
Plaintiff/intervenors-Appellees
No. 89-55379
UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
918 F.2d 1409; 1990 U.S. App. LEXIS 19857;
117 Lab. Cas. (CCH) P35,430; 30 Wage & Hour Cas.
(BNA) 33: 1991 AMC 2797
June 5, 1990, Argued and Submitted. Pasadena,
California
November 13, 1990, Filed
PRIOR HISTORY:
Appeal from the United States District Court for the
Central District of California; A. Wallace Tashima,
District Judge. Presiding: D.C. No. CV-88-0848-AWT.
DISPOSITION: Reversed.
COUNSEL: H. Thomas Cadell, Jr.. Department of
Industrial Relations. San Francisco. California, for the
Defendant-Appellant. )
Thomas E. Hill, Musick, Peeler & Garrett, Los Angeles,
California, for the Plaintiffs-Appellees.
Michael M. Johnson, McCuthen. Black, Verleger & Shea,
Los Angeles, California, for the
Plainuff/Intervenors-Appellees.
John Schnitker, United States Department of Justice,
Washington, District of Columbia. for the Amicus, United
States of America.
JUDGES: James R. Browning and Harry Pregerson,
Circuit Judges, and William P. Copple, District Judge. °
Copple. Senior District Judge. dissenting.
* The Honorable William P. Copple. Senior United
States District Judge.
District of Arizona. sitting by designation. Opinion by
Judge Pregerson: Dissent
by Judge Copple.
OPINIONBY: PREGERSON
OPINION: PREGERSON, Circuit Judge
Lloyd W. Aubry (“Aubry”). California's labor
commissioner, enforced California's overtime pay laws
against Ciean Seas, an employer Operating vessels
off the California coast. Pacific Merchant Shipping
Association and other shipping associations n] ("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
A-2
3
z&
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 agaliist 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.
- nl American Institute of Merchant Shipping; Offshore
Marine Service Association: Western Oil and Gas
Association.
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.
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
A-3
whose work on a vessel on navigable waters contributes
to the functioning of the vessel, to accomplishment of its
mission, or to its operation or welfare. See 46 U.S.C. @
10101(3): Norris, The Law of Seamen. @@ 2.1, 2.3,
2.10 (4th ed. 1985). "Seamen"” is also used, in a much
narrower 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). n2
Under federal regulations, a "seaman" exempted
from the FLSA's overtime pay provisions is one who
works "primarily as an aid in the operation of [a] vessel
as a means of transportation, 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 [**4] an employee during
any given work week. 29 C.F.R. @ 783.37 (1989).
- n2 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
umes 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. @
A-4
213(b).
This appeal involves workers who are FLSA-exempt
"seamen" and workers who, while not exempted from the
FLSA's overtime pay provisions, are still "seamen"
in the broader, general sense. Because the distinction is
important, and to avoid confusion, we use the following
terms to describe the employees affected by this opinion:
a "maritime 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 voyages
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 voyages” are
voyages between ports on the Atlantic and Pacific coasts.
See 46 U.S.C. @ 10301(a)(2). "Coastwise voyages"
A-5
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 regulations
define "coastwise vessels" as those “normally navigating
the waters of any ocean or the Gulf of Mexico 20 nautical
miles or less offshore.” 46 C.F.R. @ 70.10-13 (1988).
I]. Facts and Procedural History
PMSA and the other associations involved in this
appeal are maritime trade associations that represent
merchant maritime shippers, other maritime
employers, and employers in the oil and gas industry.
Among these organizations’ members are Clean [**6]
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. Tidewater 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
Il, and Mr. Ciean Ill. The employees whose wage claims
led to this appeal work on Mr. Clean I] 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.
A-6
Clean IJ 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 II] is a 181-foot vessel
permanently stationed on the high seas off the California
coast. Mr. Ciean III conducts containment and clean up
operations around four oj] drilling and production
platforms over the Pedernales [**7] and Arguello oil
fields, from four to ten nautical miles off the California
coast. When not on active duty, Mr. Clean Ill is tied toa
buoy approximately seven miles off the California coast.
Cleans Seas employees who work on Mr. Clean III are
organized into two crews of six. n3 Each crew works
seven day "hitches" at sea, alternating with seven day rest
periods on shore. While at sea, Clean Seas employees
typically work 12 hour shifts, alternating with 12 hour
rest periods. Mr. Clean II] crew members are transported
to the vessel by helicopter from the Santa Barbara
Airport. Of the 12 Cleans Seas employees involved in the
underlying action, two were licensed "mates" and ten.
who worked primarily on clean up operations, were
certified as "seamen" by the United States Coast Guard.
n4 The specific terms of Clean Seas' employees' work are
usually set out in contracts negotiated between each
employee and Clean Seas.
A-7
n3 The record does not indicate whether Mr. Clean II
crewmembers are organized this way.
n4 Under applicable federal regulations, the United
States Coast Guard inspects vessels and issues
certificates to qualifying maritime employees. See
46 C.F.R. @@ 71.01-71.75 (1988). A "mate" is a
"qualified officer in the deck department other than the
master." 46 C.F.R. @ 10.103 (1989). Marine employees
are certified as "seamen" upon meeting a range of age and
training requirements. 46 C.F.R. @@ 12.01-1 to
12.25-40 (1989). Certification as a "seaman" under Coast
Guard regulations does 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, 89 L. Ed. 2d 739, 106
S. Ct. 1527, 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 employees involved in this suit, we
A-8
need not remand the case to the district court to
determine the status of Clean Seas’ employees.
Tidewater operates two types of vessels off the
California 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-inember crews that transport passengers, light
supplies and mail from the Carpinteria and Ellwood
piers, also near Santa Barbara, 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
A-9
employees and Tidewater.
The record indicates that all the Clean Seas employees
and the Tidewater employee are California residents who
live in Californ'a when not on board ship. The workers
are hired in California, receive paychecks at California
addresses, and pay California taxes.
In 1987, thie 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 Orders issued by the California Industrial Welfare
Commission ("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 S$ 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, in February 1988. Frank
Kleman, the Tidewater employee. filed a claim for $
50,000 unpaid overtime compensation (for a 12-month
period) with the California Labor Commission.
Tidewater then intervened in PMSA's federal court action.
Kleman's case and all other similar administrative claims
A-10
were stayed pending the outcome of the federal court
action.
After a hearing on cross-motions for summary
judgment, the district court granted PMSA and
Tidewaters' request for declaratory and injunctive relief.
holding that California cannot apply its overtime
provisions to maritime employees employed primarily on
the high seas or to seamen. 709 F. Supp. at 1526. The
district court enjoined all enforcement of California's
overtime pay provisions against employers of these
maritime workers.
Aubry filed a timely notice of appeal.
JURISDICTION AND SCOPE OF RELIEF
Because PMSA and Tidewaters' complaints sought to
enjoin enforcement of California law based on federal
preemption, this case "arose under” federal law, and the
district court properly exercised jurisdiction over PMSA's
action for injunctive relief. See Southern Pac. Transp.
Co. v. Public Utils. Comm'n of State of Cal., 716 F.2d
1285, 1288-89 (9th Cir. 1983), cert. denied, 466 U.S.
936, 80 L. Ed. 2d 457, 104 S. Ct. 1908 (1984); Shaw v.
Delta Air Lines, Inc., 463 U.S. 85, 96 n. 14, 77 L. Ed. 2d
490, 103 S. Ct. 2890 (1983).
Actions for declaratory and injunctive relief, however,
must be carefully limited in scope to meet the "case and
controversy” requirements of Article II] of the
A-1]
Constitution. O'Shea v. Littleton, 414 U.S. 488. 493-95,
38 L. Ed. 2d 674, 94 S. Ct. 669 (1974); Maryland
Casualty Co. v. Pac. Coal and Oil Co., 312 U.S. 270. 273,
85 L. Ed. 826, 61 S. Ct. 510 (1941). Before the district
court, PMSA, Tidewater, 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 members 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. Id.
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,” Babbitt v. United Farm
Workers Nat'l Union, 442 U.S. 289, 298, 60 L. Ed. 2d
895, 99 S. Ct. 2301 (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 primarily on vessels
on the high seas that are not engaged in foreign,
intercoastal, or coastwise voyages. 709 F. Supp. at
1522-23, 1526. n5 The district court expressly stated
that its decision did not affect the rights of non-FLSA
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exempt maritime employees working within California's
territorial waters. 709 F. Supp. at 1523 n.7. n6 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.
n5 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 II] 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
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Reeeeeeree crane ae
action, who work only on vessels off the California coast
that do not engage in foreign, intercoastal, or coastwise
voyages. See 709 F. Supp. at 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 "coastwise
vessels" as vessels "normally navigating the waters . . . 20
nautical miles or less offshore"), but were not in fact
engaged in coastwise voyages. see 709 F. Supp. at 1524.
We resolve any arguable ambiguity over the scope of the
relief granted by the district court by limiting the scope of
our opinion to those employees described and discussed
by the district court, i.e., maritime employees who work
off the California coast on vessels that do not engage in
foreign, intercoastal, or coastwise voyages. We do not
address the question whether Aubry is preempted by
federal law from applying California's overtime pay laws
to maritime employees employed primarily on the high
seas on coastwise vessels engaged in coastwise voyages.
n6 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
li.e., maritime employees] with respect to work that takes
place primarily within California's territorial waters.”
STANDARD OF REVIEW
A-14
I aa
aR te ERIS an
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, 496 U.S. 937. 110
L. Ed. 2d 664, 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 seamen working on territorial waters and on the high
seas Off the California coast and to maritime employees
working 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 overtime
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, 93 L. Ed. 2d 613, 107 S. Ct. 683 (1987).
Federal law preempts state law if (1) Congress expressly
So states. (2)Congress enacts comprehensive 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,
78 L. Ed. 2d 443, 104 S.Ct. 615 (1984); Chevron U.S.A..
A-15
a
Inc. v. Hammond, 726 F.2d 483. 486 (9th Cir. 1984),
cert. denied, 47] U.S. 1140, 86 L. Ed. 2d 703. 105 S. Ct.
2686 (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, 47 L. Ed. 2d 43. 96 S. Ct. 933 (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
manifest purpose of Congress.” Chevron U.S.A.. Inc. v.
Hammond, 726 F.2d at 488 (quoting Rice v. Santa Fe
Elevator Corp., 33] U.S. 218, 230, 91 L. Ed. 1447, 67 S.
Ct. 1146 (1947)) (emphasis added in Hammond).
1. The Shipping Act
PMSA and Tidewater assert that Congress preempted
Aubry’s actions in this case by extensively regulating
maritime ermployment through the Shipping Act. The
district court rejected this contention and held that
Aubry’s enforcement of California's overtime provisions
to maritime employees on the high seas and seamen is
not preempted by statutory maritime law. See 709 F.
Supp. at 1523-24. According to the district court.
"maritime statutes simply do not purport to govern the
overtime wages of employees such as those in this
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——————————————
action.” 709 F. Supp. at 1524. We agree with the district
court's conclusion the Shipping Act does not preempt
California overtime pay laws with respect to the seamen
and maritime employees at issue in this case.
The Shipping Act does govern some maritime
employees’ wages. hours. andworking 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.
n7 Further. while all maritime employees are covered by
certainprovisions relating to "protection and relief.” e.g..
accommodations on ship. 46 [**16}] 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.
n7 The district court found: "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." 709 F. Supp.
at 1519.
PMSA and Tidewater both argue, however, that to apply
California's overtime pay laws to maritime employees
A-17
and seamen conflicts with 46 U.S.C. @ 8104, which
sets "manning requirements" - including maximum hours
and minimum "watches" - for maritime workers. n8
Under 46 U.S.C. @ 8104(b). on 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
Tidewater 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 provision by creating a maximum below
the 12 hour maximum established in section 8104(b).
n8 Section 8104 is not limited to vessels engaged in
foreign, intercoastal, or coastwise voyages, and,
therefore, applies to the employees at issue in this
case. See 46 U.S.C. @ 8101-8105.
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
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case, a motor carrier contended that the state of Hawaii's
overtime pay law was preempted by the federal Motor
Carrier Act, 49 U.S.C. @@ 3101-3104. Regulations
issued under the Motor Carrier Act generally provided
for a maximum work week of 60 hours, while the Hawaii
Statute required overtime pay for work in excess of 40
hours per week. Id. at 810. We held that, absent a
showing that the 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. Id. We explained that "one 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 customers or hiring new help.”
Id.
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
A-19
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.
II]. The FLSA
After rejecting PMSA and Tidewaters' Shipping Act
preemption argument, the district court held that the
FLSA preempted California overtime pay laws with
respect 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 F. Supp. at 1525. The district court
further held that, with respect to general maritime
employees, California overtime provisions conflict
with the FLSA, and that the FLSA's savings clause n9
cannot save state laws regulating workers on vessels
“primarily situated on the high seas.” 709 F. Supp. at
1524-25.
n9 Under 29 U.S.C. @ 218(a). no provision of the
FLSA preempts another federal. state, or municipal law
from "establishing a minimum wage higher than
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et
enere tea tT Ut Cree |
the minimum wage established under [the FLSA] or a
maximum workweek lower than the maximum workweek
established under [the FLSA].”
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
working off the California coast. The Seamen involved in
this case work both on California's territorial waters
and on the high seas. n10 The district court held that the
FLSA preempis 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 exempting seamen from
the FLSA's overtime compensation standards be read
broadly to indicate congressional intent to preclude
A-2]
states from regulating the subject of seamen's overtime
compensation?
nl0O As noted above, "seamen" as used by the district
court is defined more narrowly than "maritime
employee."
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 exemption 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 provisions to seamen. Our
review of the legislative history has revealed no such
congressional intent. n1 1
A-22
ee ec Te ele
I rae are
nl1 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., Ist 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.. Ist Sess.
63-64, 83, 379-80, 597-99 (1961); Hearings on S. 256, S.
879, S. 895 and Bills Amending the Fair Labor
Standards Act Before the Subcomm. on Labor of the
Senate Comm. on Labor and Public Welfare, 87th Cong.,
Ist Sess. 15, 41, 376-93, 558, 682-83 (1961); H.R. Rep.
No. 75, 87th Cong.. Ist Sess. 13-14, 31 (1961): S. Rep.
No. 145, 87th Cong., Ist Sess. 103 (1961).
The legislative history of the FLSA does show that
Congress considered the special circumstances of
maritime and other types of labor when it exempted
seamen and other employees from the FLSA's overtime
and minimum wage provisions. Federal Amicus argues,
A-23
however, and we agree, that in exempting seamen from
coverage under the 1938 act's overtime and minimum
wage provisions, Congress intended to prevent
overlapping regulation of wage and hour conditions
of seamen by different federal agencies. 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., 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). n12 Further, the extensive legislative history
of the 196] amendments to the FLSA makes clear
Congress' determination that federal minimum
wage levels for seamen were necessary, but discloses
nothing indicating that, by leaving the exemption of
seamen from the FLSA's overtime provisions in place,
Congress intended to preclude states from applying
overtime pay provisions to FLSA-exempt seamen. n13
n12 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, maritime employees'
wage and hour claims were handled by the Maritime
Commission under the Merchant Marine Act of 1936. See
Joint Hearings on S. 2475 and H.R. 7200 Before the
“A-24
BEST AVAIL!
or pie
eR Nae te XSi Ae AS
Senate Comm. on Education and Labor and the House
Comm. on Labor, 75th Cong., Ist 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, Legisiative Representative, National
Maritime Union of America).
nl3 See Hearings on Various Bills Regarding Minimum
Wage Legislation Before the Subcomm. on Labor
Standards of the House Comm. of Education and Labor,
86th Cong.. 2d Sess. 885-92, 895-96, 920-48, 1522-23
(1960); Hearings on H.R. 3935 and Various Bills
Regarding Minimum Wage Legislation Before the Special
Subcomm. on Labor of the House Comm. on Education
and Labor, 87th Cong., Ist Sess. 63-64, 83, 379-80,
597-99 (1961); Hearings on S. 256, S. 879, S. 895 and
Bills Amending the Fair Labor Standards Act Before the
Subcomm. on Labor of the Senate Comm. on Labor and
Public Welfare, 87th Cong.. lst Sess. 15, 41, 376-93,
558, 682-83 (1961): H.R. Rep. No. 75, 87th Cong.., Ist
Sess. 13-14, 31 (1961); S. Rep. No. 145, 87th Cong., Ist
Sess. 103 (1961).
BLE COPY
Related case authority supports the conclusion that.
absent clear congressional intent to the contrary, the
exemption of seamen from the FLSA's overtime
provisions 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 overtime provisions did not preempt state
overtime laws as to those workers. 833 F.2d at 810. In
reaching that conclusion, 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., 153 U.S. App. D.C. 183, 472 F.2d
1258 (1972) ("Williams"), two cases involving the
question whether exemption of certain employees 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 Congressexempted employees of interstate
motor carriers from coverage under the FLSA's
overtime provisions, New York could not apply its
overtime pay laws to those employees. The Second
Circuit first emphasized that "traditional powers of the
States ... are not superseded by federal acts unless that
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Pip a pencnIR RH ase te mer ar Gy amr eemn rs oo ose
snide Waid Sab tig a dy th
was the clear and manifest purpose of Congress." 784
F.2d at 441 (citing Ray v. Atlantic Richfield
Co.. 435 U.S. 151, 157, 55 L. Ed. 2d 179, 98 S. Ct. 988
(1978)). The court then noted that the FLSA's savings
clause "explicitly permits states to set more stringent
overtime provisions than the FLSA," and heid that
"Congress did not prevent the states from regulating
overtime wages paid to workers exempt
from the FLSA." Id. at 44}.
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 at 126).
Finally, at least one district court in our circuit has
held that Congress' exemption of certain maritime
employees from coverage under a maritime wage
A-27
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 federal statute, n14 the court reached the
employer's contention that "the exemption of coastwise
vessels from the [federal] penalty provisions...
demonstrate/[d] a congressional intent that seamen
employed on coastwise vessels not receive delayed wage
payment penalties." Id. 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. Id. at 170.
nl4 The employees sought penalties for failure to pay
wages under 46 U.S.C. @ 596, which provides that an
employer who falls to pay wages shall pay a penalty
equal to two days’ wages for each unpaid day. Under 46
U.S.C. @ 544, however, employees on "coastwise”
voyages are exempted from 46 U.S.C. @ 596. The district
court in Sewell v. M/V Point Barrow held that the
A-28
wih Raabdhat se
employees who brought the action were employed on
vessels engaged in coastwise trade and were exempt from
coverage under 46 U.S.C. @ 596.
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 California's
overtime provisions to protect the California-resident
seamen in this case. The district court erred by holding
that section 213(b)(6) preempts California overtime pay
laws with respect to FLSA-exempt seamen on the high
seas and within the territorial zone off the Califernia
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
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
provisions are more generous than the FLSA. n15 The
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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 thereunder
shall excuse noncompliance with any federal or State law
or municipal ordinance establishing a minimum wage
higher than the minimum wage established under this
chapter or a maximum workweek lower than the
maximum workweek established under this chapter. 29
U.S.C. @ 218(a).
n15 According to the district court, "the California
overtime provisions and the FLSA provisions produce
widely differing results." 709 F. Supp. at 1524. The
most important differences between California'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
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defined broadly, to include "the time during which an
employee is subject to the control of an employer,” 8 Cal.
Code Regs. @11040.2(H), while under the FLSA "hours
worked" as applied to seamen includes only hours when
the employee is "actually on duty," 29 U.S.C. @ 206(a)(4);
and under California law, payments to employees on a
"fluctuating workweek" basis - j.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.
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:
The FLSA's savings clause cannot properly be construed
to save state laws that seek to regulate the employment of
A-3]
maritime employees whose work situs is a vessel
normally situated on the high seas. This is so because
Congress may not constitutionally delegate its maritime
jurisdiction to the states. Such a delegation would
destroy the harmony and uniformity of admiralty law
established by the Constitution. Thus, under compulsion
of the Constitution, the savings 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,” cominon sense
demanded it. Id. at 1525.
For the reasons stated below. we hold that the district
court erred. Neither the FLSA, by its terms, nor general
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
section 2)8 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.
Article III, Section 2 of the Constitution provides in part
that the judicial power of the United States shall extend
A-32
"to all cases of admiralty and maritime jurisdiction.” The
Supreme Court has held that this provision, by
implication, 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. International Terminal Operating Co., 358 U.S. 354,
360-61 3 L. Ed. 2d 368, 79 S. Ct. 468( 1959).
In Southern Pac. Co. v. Jensen, 244 U.S. 205, 216, 61
L. Ed. 1086, 37 S. Ct. 524 (1917) ("Jensen"), the
Supreme Court restricted states’ authority 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.
This limitation, at the least, is essential to the effective
operation of the fundamental] purposes for which [the
maritime] law was incorporated into our national laws by
the Constitution itself. Jensen, 244 U.S. at 216. This rule
was extended in Knickerbocker Ice Co. v. Stewart, 253
U.S. 149, 64 L. Ed. 834, 40 S. Ct. 438 (1920)
("Knickerbocker Ice"), where the Supreme Court struck
down an act of Congress that directly granted states
A-33
authority to apply state workers compensation laws to
maritime employers. The Court stated that the delegation
was "beyond the power of Congress.” Id. at 164.
Here. the district court reasoned that the constitutional
considerations underlying Jensen and Knickerbocker Ice
foreclosed straightforward application of the FLSA's
savings 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 Knickerbocker 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, 81 L. Ed.
703. 57 S. Ct. 578 (1937) ("In dealing with the relation of
employer and employed, the [state] has necessarily a
wide field of discretion in order that there may be
suitable protection of health and safety. and that peace
and good order may be promoted through regulations
A-34
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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 weges
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 nct easily
applied." 1Friedell. Benedict on Admiralty. @ 112, at
7-36 (7th ed. 1987). n16 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., 41] U.S. 325, 338,
36 L. Ed. 2d 280, 93 S. Ct. 1590 (1973), for example, a
unanimous court explained that Jensen and
Knickerbocker have been "limited by subsequent
holdings of [the] Court." In Romero v. Int'l Terminal
Operating Co., 358 U.S. at 373, the Court explained
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that Jensen's limitation on state authority "still leaves the
States a wide scope." See also Just v. Chambers, 312
U.S. 383. 388. 85 L. Ed. 903, 61 S. Ct. 687 (1941) (state
may modify or supplement maritime law): Maryland
Casualty Co. v. Cushing, 347 U.S. 409, 429. 98 L. Ed.
806. 74 S. Ct. 608 (Black. J., dissenting) (except in
limited circumstances, "states are free to make laws
relating to maritime affairs’).
n16 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 Admiralty
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).
Yet the Court has demonstrated the contiinuing force of
Jensen. In Offshore Logistics v. Tallentire, 477 U.S. 207,
91] L. Ed. 2d 174. 106 S. Ct. 2485 (1986) ("Tallentire’).
the Court held that the federal admiralty law -
specifically, the Death on the High Seas Act (DOSHA), 46
U.S.C. @@ 761-768 - preempted Louisiana's wrongful
death statute. notwithstanding a DOSHA savings clause
A-36
that provided that "the provisions of any State statute
giving or regulating rights of action or remedies for death
shall not be affected" by the DOSHA. The court cited
Jensen for the proposition that "no [state] legislation
is valid if it contravenes the essentia! purpose expressed
by an act of Congress." Id. at 228 (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
conclude 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. nl7 The 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.
nl17 See | 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
A-37
F.2d 483, 496 (9th Cir. 1984), cert. denied, 471
U.S. 1140, 86 L. Ed. 2d 703, 105 S. Ct. 2686 (1985)
(state law should be preempted only to the extent
necessary to protect the achievement of the alms of
the federal act in question); Wasyl, Inc. v. First Boston
Corp., Inc., 813 F.2d 1579, 1582 (9th Cir. 1987) (same);
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 Mobil Oil Corp. v. Higginbotham, 436 U.S.
618, 624-25, 56 L. Ed. 2d 581, 98 S. Ct. 2010 (1978));
Sewell 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 (Ist Cir. 1988);
Exxon Corp. v. Chick Kam Choo, 817 F.2d 307, 317-18
(5th Cir. 1987). rev'd on other grounds, 486 U.S. 140.
108 S. Ct. 1684, 100 L. Ed. 2d 127 (1988); Steelmet, Inc.
v. Caribe Towing Corp.. 779 F.2d 1485, 1488 (11th Cir.
1986).
2. Does California's Overtime Pay Law Contravene an
Act of Congress?
The district court found, and we agree, that the
A-38
maritime employees “fall in the interstices between
express federal maritime statutes." 709 F. Supp. at
1525. Maritime statutes do not apply to maritime
employees, like these, who are not on vessels making
foreign, intercoastal, or coastwise voyages. In addition,
Congress has specifically allowed states to enforce
overtime laws more generous than the FLSA, 29 U.S.C.
@ 218(a), and we find no indication that Congress
intended that maritime employees 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 228; Jensen, 244 U.S. at 216.
This case, therefore. differs significantly from two
recent 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, 48 L. Ed. 2d 736, 96 S. Ct.
2140 (1976) ("Mobil Oil"). and Tallentire. Mobil Oil Corp.
and Tallentire both involved interpretation 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.
A-39
The issue in Mobil Oil was whether Texas could apply
its "right-to-work" laws to workers employed on oil
tankers on the high seas off the Texas coast. Like
the present case, Mobil Oil required interpretation of a
savings clause - federal labor statutes expressly allow
so-called union "agency shop" agreements, n18 29 U.S.C.
@ 158(a)(3), but also allow states to prohibit such
agreements through “right-to-work" laws, 29 U.S.C. @
164(b). The Court. as a matter of statutory
interpretation. held that the savings clause at issue could
not be read to allow Texas to apply its right-to-work laws
to maritime employees who worked on the high seas
outside of the state's territorial waters. In so holding,
however, the Court relied on clear legislative 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 performed
within the State." 426 U.S. at 418 (emphasis added).
Further. the Court noted that the purpose and effect of
Texas right-to-work law directly conflicted with the
federal statute. Id. at 417.
n18 "An ‘agency shop’ agreement generally provides that
while employees do not have to join the union. they are
required ... to pay the union a sum equal to the union
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initiation fee and are obligated as well to make periodic
payments to the union equal to the union dues." Mobil
Oil, 426 U.S. at 409 n. 1.
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] statuts. n19 And again, the Court
noted the clear conflict between the state law and federal
statute: "No reasonable doubt could be entertained of the
displacement of state remedies for deaths occurring on
the high seas because the conflicting federa! standard
was not derived just from general federal maritime law; it
was explicitly provided for by federal legislation directly
on point." Id. at 228. Further, the Court noted that an
express purpose of Congress in enacting the DOSHA was
to achieve uniformity in wrongful death actions for
deaths on the high seas. Id. at 230-31.
nl9 That history revealed strong expressions by bill
A-4]
eee ee
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 DOSHSA savings clause).
In contrast to the savings clauses at issue in Mobil Oil
and Tallentire, we find no indication in the language or
legislative history of the FLSA's savings clause that
Congress intended that section 218 not allow states to
apply more generous overtime pay laws to maritime
workers 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. n20
n20 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
A-42
eee eT
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, 98 L. Ed. 2d 218, 108
S. Ct. 261 (1987) (state survival action preempted by
conflicting federal maritime survival law); Bergen v. F/V
St. Patrick, 816 F.2d 1345, 1348-49 (9th Cir. 1987)
(state punitive damages remedy in wrongful death
action preempted by DOHSA. which disallows punitive
damages remedy): Nelson v. United States. 639 F.2d 469,
473 (9th Cir. 1980) (state wrongful death action
preempted by conflicting federal maritime wrongful death
law); Daughtry v. Diamond M Co., 693 F. Supp. 856,
861-63 (C.D. Cal. 1988) (state procedural rules on effect
of settlement on joint tortfeasors' duty to contribute
preempted by conflicting federal procedural rules).
3. Does California's Overtime Pay Law Unduly Disrupt
Uniformity in Admiralty Law?
The district court based its holding in part on the
“common sense" notion that "the uniformity of federal
admiralty law would be destroyed if the states were
permitted to ‘add on' to the federal law enacted by
Congress.” 709 F. Supp. at 1525. Likewise, PMSA and
Tidewater argue on appeal that allowing states to
enforce their overtime provisions against maritime
employers would produce a “crazy-quilt pattern of
A-43
regulation."
The Constitution tolerates some disharmony in
admiralty law. As discussed above, states may
supplement admiralty law. and states’ supplementation
of admiralty law necessarily creates some discord in that
law. n21 Nevertheless, 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 admiralty law. See. e.g.. Evich v. Morris.
819 F.2d 256. 257-58 (9th Cir.), cert. denied, 484 U.S.
914, 98 L. Ed. 2d 218, 108 S. Ct. 26] (1987): Nelson v.
United States. 639 F.2d 469, 473 (9th Cir. 1980). We
are left, therefore, with the difficult question whether
applying California's overtime provisions to maritime
employees who work on vessels on the high seas that do
not engage in foreign. intercoastal. or coastwise voyages
unduly disrupts harmony in the federal admiralty
system, so as to render unconstitutional Aubry's actions.
We hold that it does not.
n21 "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..,
A-44
Re) nT, Pee aS ee Oe
358 U.S. at 374 ("Maritime law is not a monistic
system.").
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, 6 L. Ed. 2d 56, 81 S. Ct. 886
(1961); East River S. S. Corp. v. Transamerica Delaval,
476 U.S. 858, 864 n. 2, 9O_L. Ed. 2d 865. 106 S. Ct.
2295 (1986); Exxon Corp. v. Chick Kam Choo, 817 F.2d
307, 317 (5th Cir. 1987). rev'd on other grounds, 486
U.S. 140, 108 S. Ct. 1684. 100 L. Ed. 2d 127 (1988);
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,
A-45
were interviewed and hired in California, and pay
California taxes. Their contacts with the state are quite
close: the vessels involved in this case do not make
coastwise, intercoastal. or foreign voyages; Mr. Clean II is
moored in a California harbor 90 percent of the time and
works exclusively on oil rigs off the California coast; and
Mr. Clean III is stationed exclusively off the California
coast and visits only California ports. PMSA and
Tidewater contend. however, that California's interest in
enforcing its overtime pay laws in this case are undercut
by Aubry’s failure to comply with state administrative
and procedural requirements regarding wage and
hour rulemaking and law enforcement. This argument is
misplaced. We emphasize that we are not deciding here
whether Aubry’s actions are valid as a matter of
California administrative and labor law. Our task is to
determine only whether, in this case, federal law
preempts California's overtime pay provisions. The
state's interests in applying its overtime provisions here
are plain. PMSA and Tidewaters' challenges to Aubry’s
action on state law grounds must be directed to the
state's agencies and courts, and we assume here that the
labor commissioner's actions comply fully with state law
and procedures. n22
n22 In some circumstances, comity requires that
A-46
federal courts abstain 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, 40] U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746
(1971). According to the parties, however, no state court
is currently considering the issues raised in this appeal.
"The 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 184, 190 (9th Cir. 1989)
(quoting Middlesex County Ethics Comm. v. Garden
State Bar Ass'n, 457 U.S. 423, 433 n.12. 73 L. Ed. 2d
116, 102 S. Ct. 2515 (1982)). Here. we address only the
purely federal question of whether federal statutes and
general admiralty law preempt California's overtime pay
laws. We do not address any state law issues raised by
Aubry's actions. Because there is no ongoing state
adjudication of the claims here at issue, and because the
state law challenges to Aubry’s actions necessarily involve
issues distinct from those federal issues now before us,
concerns of comity underlying the Younger abstention
doctrine are not present here. See Id.; Fresh Int'l Corp. v.
Agricultural Labor Relations Bd., 805 F.2d at 1358. The
district court was not required to abstain.
A-47
In contrast to the California's strong interests, Federal
interests in precluding enforcement of California'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
employees on the high seas off a state's coastal waters.
Further, the purpose behind the FLSA is to establish a
national floor under which wage protections cannot
drop, not to establish absolute uniformity in minimum
wage and overtime standards nationwide at levels
established in the FLSA.
Most important, because the maritime employees
involved in this action are California residents who work
on vessels that operate exclusively off the California
coast. application of the state's overtime law will not
disrupt international or interstate commerce. Uniformity
in maritime law is required “only where the essential
features of an exclusive federal jurisdiction are involved."
1 Friedell, Benedict on Admiralty @ 111, at 7-32; see
Just v. Chambers, 312 U.S. at 388. The minimal impact
that Aubry’s actions would have on international and
interstate maritime commerce leads us to conclude
that the "essential features" of exclusive federal
jurisdiction are not unduly burdened in this case. n23
A-48
BEST AVAILE
:
n23 This further distinguishes the present case from
Mobil Oil. in which the Court noted the practical
difficulties of allowing application 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 Mobil are not present 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
analysis 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
A-49
BLE COPY
at issue in this case as it is with respect to nonexempt
maritime workers. The 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.
intercoastal, or coastwise voyages is supported by two
recent decisions in this circuit. In Chevron U.S.A.. Inc.
v. Hammond, 726 F.2d 483, we upheld an Alaska
statute governing 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 pollution off its coast, noting that "the
subject matter of environmental regulation . . . has
long been regarded by the [Supreme} Court as
particularly suited to local regulation." Id. at 488. We
A-50
ee
concluded that state and federal regulation of the
oi] tankers were compatible, and that "there is no...
dominant national interest in uniformity in the area of
coastal environmental regulation." Id. at 492. n24
California has an equally strong interest in protecting
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.
n24 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.
Id. Here, as discussed above, the federal interest in
uniformity is not as great, because the employees
involved in this case are not engaged in foreign,
intercoastal. or coastwise voyages.
Also, in Sewell v. M/V Point Barrow, 556 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
A-5]
maritime employers. Id. at 169-70. The district court
held that, even though federal law did not provide
such penalties for the employees in the case, enforcement
of the Alaska statute was "fully compatible with federal
maritime law." and no “feature of federal
maritime law . . . would be impaired or frustrated by
application of |the statue]." Id. at 170. Sewell thus
supports the conclusion that California may
constitutionally apply its more generous 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
principles 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.
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
A-52
constitutionally invalid. Here. California's interest in
protecting California-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 California's overtime provisions to the
seamen and maritime employees involved in this suit.
The district court's judgment is REVERSED.
DISSENTBY: COPPLE
DISSENT: COPPLE, Senior District Judge, dissenting.
Judge Pregerson's majority decision explains in
extensive 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 seq.). These maritime
employees were hired by CLEAN SEAS, a company that
owns and operates vessels which provide open ocean
oil spill containment and recovery. The vessels are
usually stationed over oil flelds located in the Santa
Barbara Channel approximately four to ten nautical
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miles off the California coast.
Some of the maritime employees are organized into
crews that alternate work assignments in which they
work seven days on the vessel followed by seven days
rest on 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
complaint in intervention and was an intervenor on
appeal. TIDEWATER provides offshore transportation in
the Santa Barbara Channel between its pier or mooring
buoy and oil rigs located between one and twelve miles
offshore. The Labor Commissioner of the State of
California held a hearing pursuant to Cal. Lab. Code @
98 et seq. and made an award to each employee for
unpaid overtime wages. In response to these awards, the
employers along with various maritime associations filed
a complaint for declaratory and injunctive relief in
the District Court.
The District Court found that all of the employees in
this action were engaged in activities on vessels which
either stayed on the high seas surrounding the oil rigs or
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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 seq., preempted the
application of such state laws to employees on the high
seas. In so concluding, the District Court granted the
employers’ request for deciaratory 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 primarily on vessels on the high seas
that are not engaged in foreign or intercoastal voyages."
Pacific Merchant Shipping Ass'n v. Aubry, 709 F. Supp.
1516, 1526 (C.D. Cal. 1989). The District Court rejected
a general federal admiralty law preemption argument,
but held that the FLSA preempted California overtime
pay laws with respect to the employees in this case.
A Court of Appeals may affirm a district court decision
either on the same grounds. or on different grounds as
those relied upon by the district court. J.M. Martinac
Shipbuilding v. Director, Office of Workers
Compensation Programs, 900 F.2d 180 (9th Cir. 1990).
Therefore, it is appropriate to examine whether the
District Court's decision is correct under either general
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federal admiralty law or under the FLSA.
1. Preemption Under Federal Admiralty Law
All sides agree that state laws which conflict with
federal admiralty laws cannot be enforced by the state.
See. Southern Pacific Co. v. Jensen, 244 U.S.
205. 217. 37S. Ct. 524, 61 L. Ed. 1086 (1917): Daughtry
v. Diamond M. Co., 693 F. Supp. 856, 861 (C.D.Cal.
1988). States may not apply their respective 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, Knickerbocker Ice Co. v.
Stewart, 253 U.S. 149, 64 L. Ed. 834. 40 S. Ct. 438
(1920) (striking down an act of Congress which granted
authority to the states to apply their workers
compensation laws to maritime employees). However,
state laws which do not conflict with federal admiralty
law and which do not conflict with the essential
characteristics of maritime uniformity may be
incorporated into federal admiralty law and applied. 14
Wright & Miller, Federal Practice & Procedure:
Jurisdiction 2d Section 3671. pp. 421-422; Askew v.
American Waterways Operators, Inc., 411 U.S . 325,
341-42. 36 L. Ed. 2d 280, 93 S. Ct.
1590 (1973).
With respect to the present case, the district court
reasoned that while a number of federal provisions do
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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 concluded 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
appropriate 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, 63 L. Ed. 261, 39 S. Ct. 112 (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.
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Sorensen v. City of New York, 202 F.2d 857, 858-859 (2d
Cir.1953). cert. denied, 347 U.S. 951, 74 S. Ct. 674, 98
L. Ed. 1097 (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,
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, 61 S. Ct.69,
85 L. Ed. 446 (1940) (overtime performed and paid for
in accordance with employment contract fully
_ complies with the federal] admiralty law); C.M. Rousseau,
Jr. v. Teledyne Movible Offshore, Inc., 619 F. Supp.
1513, 1518-1519 (D.La. 1985) (maritime employees
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 contracts .
. . 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
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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 regulations means that maritime employers and
employees may freely negotiate for the terms of the
employment contracts apart from the strictures of state
regulations.
This interpretation makes sense in light of the fact that
the conditions under which maritime employees work,
especially those working on the high seas, are
substantially different from land-based employees.
Land-based employees are able to return home every
night after work whereas often in maritime situations
employees are required to be transported to a work
station on the high seas, remain at sea for days at a time
and subsc quently be transported back to land.
This aspect of maritime life has not changed for
centuries and must have been understood at the
inception of admiralty law.
The general system of maritime law which was familiar
to the lawyers and statesmen of the country when the
Constitution was adopted. was most certainly
intended and referred to when it was declared in that
instrument that the judicial power of the United States
shal! extend "to all cases of admiralty and
maritime jurisdiction." The Lottawanna, 88 U.S. 558, 21
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Wall. (88 U.S.) 558, 574, 22 L. Ed. 654 (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." Id.
at 576. Under this analysis. given that the maritime
siatutes 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
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production of goods of commerce." The district
court concluded that because the employees are tied
the oi] 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, 19
L. Ed. 2d 110, 88 S. Ct. 90 (1967); see also 29 U.S.C.
Section 206(a)(4) (expressly applying minimum wage
requirements to 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
provisions. 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
regulate FLSA exempt seamen, both on the high seas and
within the territorial zone. Further, given Congress'
exemption of these seamen from even minimal federal
overtime provisions, it would be at odds with the federal
scheme to permit the states to enforce stricter overtime
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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.
The employees and the United States argue that this
conclusion is unreasonable in light of the savings
provision of the Act and cases which discuss that savings
provisions. The provision states:
No provision of this chapter or of any order thereunder
shall excuse noncompliance with any Federal or State
law or municipal ordinance establishing a minimum
wage higher than the minimum wage established 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
congressional 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 already
found in the FLSA. It is reasonable to conclude that
seamen are exempt from mandatory overtime provisions
and that Congress did not intend to leave the matter to
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the states to set overtime provisions for maritime
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
declaratory and injunctive
relief should be AFFIRMED. The decision is properly
based either upon preemption
under general admiralty law or preemption under the
FLSA. |
| hiDALGO
HARVEST
| HERMOSA
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.