Lowrimoore v. Union Bag & Paper Corporation

• Decision Date: 15 November 1939
• Docket Number: No. 22,and 26.,24,22
• Citation: 30 F. Supp. 647
• Parties: LOWRIMOORE et al. v. UNION BAG & PAPER CORPORATION.
• Court: U.S. District Court — Southern District of Georgia

30 F. Supp. 647

LOWRIMOORE et al. v. UNION BAG & PAPER CORPORATION.

Nos. 22, 24, and 26.

District Court, S. D. Georgia, Savannah Division.

November 15, 1939.

John J. Hennessy, Ulmer & Dowell, Lawrence J. Dwyer, and Wm. H. Boyd, all of Savannah, Ga., for complainants, also as amicus curiæ counsel for the Wage and Hour Division, United States Department of Labor.

Abrahams, Bouhan, Atkinson & Lawrence, of Savannah, Ga., and Lindsay Goeltz, of New York City, for defendant.

Joseph Diehl Fackenthal, of New York City, for New York Trap Rock Corporation, amicus curiæ.

Statement of Issues.

BARRETT, District Judge.

This is a civil action brought by employees against their employer, the Union Bag & Paper Corporation, under the provisions of Section 16(b) of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 216 (b). This section provides as follows: "(b) Any employer who violates the provisions of section 6 206 or section 7 207 of this Act chapter shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. Action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated, or such employee or employees may designate an agent or representative to maintain such action for and in behalf of all employees similarly situated. The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action."

Section 6, 29 U.S.C.A. § 206, the minimum wage provision of the Act, provides that "every employer shall pay to each of his employees who is engaged in commerce or in the production of goods for commerce wages" at the rate of "not less than 25 cents an hour" during the first year from the effective date of the Act, that is from October 24, 1938 to October 24, 1939. After October 24, 1939 the minimum wage becomes 30 cents an hour under Section 6.

Section 7, 29 U.S.C.A. § 207, the overtime provision, requires that the employer shall not "employ any of his employees who is engaged in commerce or in the production of goods for commerce * * * for a workweek longer than forty-four hours * * * unless such employee receives compensation * * * at a rate not less than one and one-half times the regular rate at which he is employed" for his employment in excess of forty-four hours a week. On October 24, 1939, the minimum workweek becomes forty-two hours and overtime attaches for hours in excess of forty-two per week.

The plaintiffs have been employed as bargetenders by the defendant for varying lengths of time since October 24, 1938, the effective date of the Fair Labor Standards Act. They have brought this action to recover the amount of any unpaid minimum wages and unpaid overtime compensation and an addition equal amount as liquidated damages, together with a reasonable attorney's fee pursuant to the right conferred by the Act.

In its answer the defendant contends that it is not indebted to the plaintiffs under the Fair Labor Standards Act on two grounds: first, that the plaintiffs are employed as seamen within the meaning of the exemption provided by Section 13(a) (3) of the Act, 29 U.S.C.A. § 213(a) (3); second, that even if the plaintiffs are not employed as seamen they have not actually worked over 44 hours a week and have received wages at a rate of not less than 25 cents an hour. It is conceded that the plaintiffs are within the coverage of the Fair Labor Standards Act except as maintained above.

Findings of Fact.

The defendant, at its Savannah plant, is engaged in the manufacture of paper bags, pulp and other products for interstate commerce. The chief material used in this process is pulpwood or timber obtained from sources in Georgia, South Carolina and Florida and transported on barges owned and operated by the defendant from landings on inland waterways in Georgia, South Carolina and Florida to Savannah for use in the manufacturing enterprise at Savannah. These barges are not self propelled, but are towed by tugs to and fro between Savannah and the landings. They do not operate on the high seas.

These barges generally made five trips every two months and occasionally six trips. The trips require from about 24 to 40 hours out and coming back about twice as long. Upon reaching the landings the tug leaves the barge, to be loaded by contractors, such loading requiring from three to five days, during which time the bargetender had no other duties than to see to it that the barge was loaded evenly and not too near the edge. It was the duty of the contractor to see to it that no unsuitable pulpwood was placed on the barge.

The unloading at Savannah was done by the company, during which stay in Savannah the bargetender had only these duties: If his barge was the only barge there he still had to care for it and pump out the bilge water, but need not eat on the barge or stay on it all the time. He could go to his home, and did go to get groceries. If there were several barges it was permissible for only one bargetender to be in charge, and all the other bargetenders had no duties during such conditions. Prior to leaving again the bargetender had to get dry wood and kerosene oil for use while on the journey out to the landing and back. The obtaining of such wood and kerosene should not require more than an hour. It was the duty of the barge man to keep the barge clean, to be on the watch out for fire and to pump the bilge water when necessary. The barge man had no duty in connection with navigation, but was subject to the orders of the captain of the tug when in tow. The bargetender put out the anchor or helped in it, tied the boat moorings or helped in it, provided the appropriate slack if needed to care for the rise and fall of the tide by loosening or tightening the mooring ropes; was on duty, except when at Savannah as stated above, in the sense that he was required to be on or near the barge and on the watch out for 24 hours, but does not claim even that he was at work all of the 24 hours, though he was subject to call when it was necessary. The bargetender while absent from Savannah slept on the barge and prepared his own meals at his own expense. While at Savannah he had no duties to perform at the mill.

The tug's captain and crew are primarily responsible for the proper handling of the towing and for the mooring ropes. The barges have no rudder or steering device. The bargetender is charged with no duty of avoiding obstruction to navigation or in escaping collisions. He signs no shipping articles and is not hired on the vessel for any definite voyage or by the month, but for a period consisting of a number of round trips.

The testimony of Mr. Lowrimoore, whose testimony was to be accepted for all the barge men, as to the duration of his work was that he did not consider that he was at work the entire 24 hours, that he kept no record of how much he was at work, and the extent to which he went in fixing the hours of his work was ultimately summed up — after disclosing that he had no record and kept no time — as "I reckon about twelve hours". He was satisfied with his job.

The bargetender and the captain of the tug made reports of the trip of each barge, and one report was introduced in evidence as an example and it showed the dates of the departure from Savannah, of arrival at destination, started loading, finished loading, left for mill and arrival at mill; and Lowrimoore's pay was from October 25, 1938 to December 15, 1938 $62.25 and from December 16, 1938 to February 20, 1939 $87.98, total pay 17 weeks $157.21.

I find that there is no sufficient, satisfactory evidence upon which could be fairly found a judgment showing the number of hours that the barge men were at work. The burden is of course upon them to establish by a preponderance of the testimony what they affirm to be true, that is, that they worked beyond the 44 hours a week and were paid less than the required amount of 25 cents an hour.

The only expert testimony as to whether under the existing facts the barge men were seamen was that of Frank W. Spencer, who is a master mariner and a licensed chief engineer for ocean going vessels and had had 35 years experience, and claimed to be entirely familiar with the duties of a seaman and what constituted a seaman. His testimony was definite and positive that under the facts as disclosed in this case the barge men were seamen.

In view of the decisions of various courts that have been cited on both sides I deem it appropriate not to rest my decision upon the opinion of captain Spencer. but to examine the various decisions, in order to reach a correct conclusion as to whether under the existing facts the barge men were or were not seamen under the Act in question.

Law.

Aside from the question as to the number of hours the complainants worked the sole question in this case is: Were the complainants seamen under the provisions of the "Fair Labor Standards Act of 1938"?

In sections 6 and 7 of said Act provision is made for minimum wages and maximum hours, respectively, and the claims now under consideration are based upon such provisions.

Section 13 of said Act provides: "Sec. 13 § 213. (a) The provisions of sections 6 206 and 7 207 shall not apply with respect to * * * (3) any employee employed as a seaman."

If this case were based upon the Longshoremen's and Harbor Workers' Compensation Act, § 3(a) (1), 33 U.S.C.A. § 903 (a) (1), authority has been furnished which might sustain the contention that the complainants were not seamen. De Wald v. Baltimore & O. R. Co., 4 Cir., 71 F.2d 810.

Several features are to be noted in connection with the case cited. The provision of said Act for recovery is as...