Owens v. Seariver Maritime Inc.

• Citation: 272 F.3d 698
• Decision Date: 06 November 2001
• Docket Number: No. 00-60048,00-60048
• Parties: (5th Cir. 2001) BOBBY OWENS, on behalf of himself and all other employees of SeaRiver Maritime, Inc., similarly situated, Plaintiff-Appellant, v. SEARIVER MARITIME, INC., Defendant-Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 698

272 F.3d 698 (5th Cir. 2001)

BOBBY OWENS, on behalf of himself and all other employees of SeaRiver Maritime, Inc., similarly situated, Plaintiff-Appellant, v. SEARIVER MARITIME, INC., Defendant-Appellee.

No. 00-60048

UNITED STATES COURT OF APPEALS,

FIFTH CIRCUIT

November 6, 2001

Revised November 26, 2001

[Copyrighted Material Omitted] Appeal from the United States District Court for the Southern District of Mississippi

Before GARWOOD, PARKER, and DENNIS, Circuit Judges.

GARWOOD, Circuit Judge:

In this putative class action, the plaintiff, Bobby Owens (Owens) seeks to recover damages from the defendant, SeaRiver Maritime, Inc., (SeaRiver) pursuant to the maximum hour and overtime provisions of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et. seq. Owens appeals the district court's grant of SeaRiver's motion for summary judgment, in which that court determined that Owens was exempt from FLSA coverage because he was "employed as a seaman" under 29 U.S.C. § 213(b)(6). We reverse the district court's summary judgment ruling that Owens is a seaman for purposes of the FLSA, and remand the case to the district court.

Facts and Proceedings Below

SeaRiver owns and operates vessels which engage in the maritime transportation of petroleum and chemical products. Owens was employed by SeaRiver as an apprentice tankerman, tankerman, and senior tankerman with SeaRiver's inland fleet from 1990 to 1998. Owens's duties varied considerably with each of these positions. As an apprentice tankerman, Owens was essentially a deckhand who performed various tasks aboard barges and towboats. As both a tankerman and senior tankerman, Owens manned barges and towboats during transportation of cargo (or "product") on inland voyages between ports as distant as Texas, Iowa, and Illinois. As a tankerman and senior tankerman, Owens also inspected barges in preparation for towing, loading, and discharging of product; monitored and adjusted the trim and draft of barges during loading and discharge; checked and handled lines connecting barges to each other and the towboat; rearranged or broke up the tow in response to weather conditions or to allow passage through locks; painted and made minor repairs to the barges; maintained barge equipment, including the engines and pumps used for loading and discharging product; and placed and removed navigation and mooring lights. Owens was also sometimes assigned as the "person in charge" of barges during the loading or discharge of product. The "person in charge" takes responsibility for the safety and integrity of the vessel and its equipment during loading and discharge.

In 1997, Owens was assigned to SeaRiver's Baton Rouge Strike Team. It is his service in this capacity which is at issue in the present case. As a member of the Strike Team, Owens was not a member of a towboat crew and was not tied to any vessel for the duration of a voyage. The shore-based Strike Team (including Owens) was assigned to SeaRiver's stationary "landing barge." The landing barge is a former oil barge which has been removed from navigation, and is permanently moored. On this barge is a metal building containing offices, housing for the Strike Team, a workshop, and a training room. The Strike Team performed work usually done by SeaRiver towboat crews, including loading and discharge of product, but the Strike Team worked on unattended or "tramp" barges that were neither towed by SeaRiver boats nor attended by SeaRiver crews. The skills used by Owens with the Strike Team were similar to those he used when he was a towboat crewman, although Owens attended the barges only for the purposes of loading and discharging product.

Owens sued SeaRiver in a putative class action seeking to recover overtime pay and damages for himself and others pursuant to the maximum hours and overtime provisions of the FLSA. See 29 U.S.C. § 207(a)(1).¹ In response, SeaRiver asserted that Owens was "employed as a seaman" and therefore exempt from the FLSA's overtime provision under 29 U.S.C. § 213(b)(6).² The parties filed cross-motions for summary judgment on the issue of whether Owens, while a member of the Strike Team, was "employed as a seaman" and hence exempt from the provisions of the FLSA. The district court granted SeaRiver's motion and denied that of Owens. Owens now appeals the decision of the district court.

Discussion

We review a grant of summary judgment de novo. Amburgey v. Corhart Refractories Corp., 936 F.2d 805, 809 (5th Cir. 1991). Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

SeaRiver defends the district court's grant of summary judgment solely on the grounds that Owens was employed as a seaman pursuant to section 213(b)(6). Because there is no genuine dispute that SeaRiver is an "enterprise engaged in commerce," Owens was covered by the FLSA unless he was employed as a seaman. 29 U.S.C. §§ 206, 207 (providing coverage under the FLSA for persons "employed in an enterprise engaged in commerce or in the production of goods for commerce"). Only Owens's status while working on the Strike Team is disputed; Owens does not dispute his status as a seaman when he was a towboat crewman.

I. The "Seaman" Exception

The FLSA does not define "seaman," and the precise meaning of that term has been the subject of a series of cases in this Circuit. In Gale v. Union Bag & Paper Co., 116 F.2d 27 (5th Cir. 1940), the workers in question were employed as barge tenders, and were responsible for "attending to the lines and anchors, putting out running and mooring lights, pumping out bilge water, etc." Id. at 27. The employees worked, ate, and slept on board their assigned barges. The Court held that the employees were indeed seamen exempted from the terms of the FLSA. The Court focused on the services the employees rendered, noting that they were "of a maritime character" and "necessary ... to the navigation of the barges." Id. at 28. The Court did not articulate any distinction between the definition of "seaman" under the FLSA and the definition under the Jones Act.

Although barge tenders are seamen under the FLSA, industrial workers on dredge barges are not. In Walling v. W.D. Haden Co., 153 F.2d 196 (5th Cir. 1946), the employees involved worked on barges dredging shell material from the ocean floor. Again, the Court focused on the nature of the work performed by the employees, which in this case was mostly industrial work that related to the dredging operations. Even though the workers did participate in some maritime work, the Court held that they were not seamen under the FLSA because they were "employed more in industry than in shipwork, and are not exempt." Id. at 199. We also held in W.D. Haden that the definition of seaman under the FLSA was narrower than that used in the Jones Act. Id. at 198.

We revisited the distinction between the definition of seaman in the Jones Act and the FLSA in Dole v. Petroleum Treaters, Inc., 876 F.2d 518 (5th Cir. 1989). Relying on W.D. Haden, the legislative history of the FLSA, and Department of Labor's regulations interpreting the Act, the Court held that "the definitions of seamen under the two acts are separate and independent of each other." Id. at 520.³ According to the Court, the seaman status of a worker depended upon "the particular work performed by each employee and the relative proportion of actual seaman work as defined by the FLSA to nonseaman work." Id.

The most recent Fifth Circuit case to address the seaman exception is Martin v. Bedell, 955 F.2d 1029 (5th Cir. 1992). In Bedell, the Secretary of Labor brought suit to force a catering service which employed cooks on "jack-up boats" servicing offshore rigs to comply with the overtime provisions of the FLSA. We "gave great weight" to the Department of Labor's regulations interpreting the seaman exception in the FLSA, and adopted the definition of "seaman" used in those regulations:

"The regulations state that a 'seaman' is an employee who 'performs, as a master or subject to the authority, direction and control of the master aboard a vessel, service which is rendered primarily as an aid in the operation of [a] vessel as a means of transportation.' They also state that '[w]hether an employee is "employed as a seaman", within the meaning of the Act, depends upon the character of the work he actually performs and not on what it is called or the place where it is performed.' When a worker performs both seaman's work and nonseaman's work, he is a seaman unless his nonseaman's work is substantial in amount. [The Department of] Labor defines 'substantial' as work that 'occupies more than 20 percent of the time worked by the employee during the workweek.'" (footnotes omitted)

Id. at 1035-36 (citing 29 C.F.R. §§ 783.31, 783.33, 783.37 (1991)).⁴ The Court then remanded the case to the district court to determine whether Blue Water's cooks spent more than twenty percent of their time preparing food for workers who were not actually engaged in the navigation of the boat on which the cooks lived and worked. According to the Court, if the cooks spent more than twenty percent of their time preparing food for non-crew workers (i.e., industrial workers on oil platforms who were not seamen) then the cooks did not fall within the definition of seaman under the FLSA.⁵ Id.

Under the law of this Circuit, if Owens performed a substantial amount of nonseaman's work, then he cannot properly be considered a seaman for purposes of the maximum hour provisions of the FLSA.

II. Seaman's Work

While Owens had several duties as a member of the Strike Team, the most substantial portion of his working time appears to have been related to loading and unloading petroleum products from the barges. The Strike Team was created in order to facilitate the loading and unloading of unmanned and undermanned tows of barges in...