McLaughlin v. Harbor Cruises LLC

• Decision Date: 20 July 2012
• Docket Number: Civil Action No. 06–11299–GAO.
• Citation: 880 F.Supp.2d 179
• Parties: Chris McLAUGHLIN and Sandra McGrath, Individually and on Behalf of All Other Persons Similarly Situated, Plaintiffs, v. HARBOR CRUISES LLC and Nolan Associates LLC (both d/b/a “Boston Harbor Cruises”) and Frederick L. Nolan, III, Defendants.
• Court: U.S. District Court — District of Massachusetts

880 F.Supp.2d 179

Chris McLAUGHLIN and Sandra McGrath, Individually and on Behalf of All Other Persons Similarly Situated, Plaintiffs,
v.
HARBOR CRUISES LLC and Nolan Associates LLC (both d/b/a “Boston Harbor Cruises”) and Frederick L. Nolan, III, Defendants.

Civil Action No. 06–11299–GAO.

United States District Court,
D. Massachusetts.

July 20, 2012.

[880 F.Supp.2d 180]

Adam M. Stewart, Charles E. Tompkins, Thomas V. Urmy, Jr., Robert E. Ditzion, Shapiro Haber & Urmy LLP, Boston, MA, for Plaintiffs.

Mary E. O'Neal, Masterman, Culbert & Tully, Boston, MA, for Defendants.

OPINION AND ORDER
O'TOOLE, District Judge.

The Fair Labor Standards Act (“FLSA”) establishes a general rule that employers must pay employees at a “rate not less than one and one-half times the ‘regular rate’ ” for all overtime hours that an employee works. 29 U.S.C. § 207(a)(1). The statute, however, provides several exemptions from that mandate, and one of those exempts from the overtime requirement “any employee employed as a seaman.” Id. § 213(b)(6).

The defendants (collectively either “Boston Harbor Cruises” or “BHC”) employed the plaintiffs to work on a variety of passenger vessels operated by the defendants and, classifying the plaintiffs either as “deckhands” or “galley attendants,” treated them as exempt from the FLSA's overtime requirement under the “seaman” exemption. In this action, the plaintiffs seek to recover overtime wages they say were wrongfully withheld, contending that the “seaman” exemption is inapplicable to them.¹ The defendants, though they bear

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the burden of proof that the exemption applies, see Reich v. John Alden Life Ins. Co., 126 F.3d 1, 7 (1st Cir.1997), have moved for summary judgment, contending in substance that on the undisputed facts, no rational jury, properly instructed, could fail to conclude that the plaintiffs fell within the scope of the “seaman” exemption.

I. The Statute and Applicable Regulations

The history of the enactment of the “seaman” exemption to the FLSA's wage provisions ² was recounted by the Court of Appeals in Walling v. Bay State Dredging & Contracting Co., 149 F.2d 346, 349–50 (1st Cir.1945). In summary, Congress included the exemption at the urging of “representatives of the chief labor organizations representing seamen,” who were apparently content to have the working conditions of seamen regulated under the Merchant Marine Act of 1936 and were concerned about potentially conflicting regulation under the FLSA. Id.

In enacting the exemption, Congress did not define the term “seaman.” 29 U.S.C. § 213(b). See McLaughlin v. Boston Harbor Cruise Lines, 419 F.3d 47, 50 (1st Cir.2005). The circumstances of its origin might suggest that it was intended more or less to coincide with the meaning of the term as used generally in maritime law, but courts have resisted the argument that the maritime definition of the term (as for purposes of the Jones Act, for example) must necessarily govern the interpretation of the term as used in the FLSA. See, e.g., Harkins v. Riverboat Servs., Inc., 385 F.3d 1099, 1102 (7th Cir.2004) (stating that “decisions interpreting the term ‘seaman’ in other statutes do not necessarily control its meaning in the FLSA”) ³ and Sternberg Dredging Co. v. Walling, 158 F.2d 678, 680–81 (8th Cir.1946). Rather, courts have repeatedly emphasized that a general definition is not to be attempted; whether an employee qualifies as a “seaman” for purposes of the exemption is a “quite fact-intensive” question. McLaughlin, 419 F.3d at 51;id. at 58 (Lipez, J., concurring) (emphasizing “the inescapably fact-specific nature of the seaman inquiry”). See also, Bay State Dredging, 149 F.2d at 351 (determining who is a seaman “depends a good deal upon the facts in each case, especially the character of the work that is principally engaged in”). Pertinent instructive cases are discussed further infra, at Section II.

The U.S. Department of Labor (“DOL”) has promulgated regulations addressing the “seaman” exemption. 29 C.F.R. § 783.0 et seq. Under the regulations,

an employee will ordinarily be regarded as “employed as a seaman” if he performs, as master or subject to the authority, direction, and control of the master aboard a vessel, service which is

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rendered primarily as an aid in the operation of such vessel as a means of transportation, provided he performs no substantial work of a different character.

Id.§ 783.31.

For enforcement purposes, the Administrator's position is that such differing work is “substantial” if it occupies more than 20 percent of the time worked by the employee during the workweek.

Id. § 783.37.

The DOL regulations follow the judicial consensus in stating that “[w]hether an employee is ‘employed as a seaman’ ... depends upon the character of the work he actually performs.” Id. § 783.33.

[O]ne is not employed as a seaman within the meaning of the Act unless one's services are rendered primarily as an aid in the operation of the vessel as a means of transportation, as for example services performed substantially as an aid to the vessel in navigation.

Id.

The regulations supplement these general principles with some illustrations:

The term ‘seaman’ includes members of the crew such as sailors, engineers, radio operators, firemen, pursers, surgeons, cooks, and stewards if, as is the usual case, their service is of the type described in § 783.31⁴ [A]n employee employed as a seaman does not lose his status as such simply because, as an incident to such employment, he performs some work not connected with the operation of the vessel as a means of transportation, such as assisting in the loading or unloading of freight at the beginning or end of a voyage, if the amount of such work is not substantial.

Id., § 783.32.

In summary, then, under the DOL regulations, an employee is to be considered a “seaman” for purposes of the exemption if he (1) works aboard a vessel, (2) is subject to the control of the master of the vessel, (3) performs work that is rendered primarily as an aid in the operation of the vessel as a means of transportation, and (4) performs only incidental, and not substantial, work of a different character.

II. Pertinent Instructive Cases

Given the fact-bound nature of the question, courts have closely examined the work duties involved in deciding whether the exemption applies. For example, there are a number of cases dealing with whether workers on a dredging barge would qualify for the exemption. The exemption has been held to apply where the duties of the workers on the barge involved various traditional maritime tasks such as cleaning the decks, handling lines, maintaining equipment on the barge, pumping bilges, keeping watch, and performing various safety-related tasks.⁵ On

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the other hand, workers whose duties were related to the dredging operation itself rather than to the operation of the barge as a means of transportation have been held to fall outside the “seaman” exemption. ⁶

The reasoning in the latter group of cases seems to be that workers who are on the barge only so they can be transported to the place where they will do their primary work, dredging, are not serving, as § 783.31 puts it, “as an aid to the operation of such vessel as a means of transportation,” and thus not within the exemption. This principle has been extended from the dredging barge cases to others where workers are on the vessel so that they can perform work unrelated to the work of the vessel, such as conducting scientific studies,⁷ servicing offshore oil wells,⁸ or performing lumbering and forestry work.⁹

Other cases echo general maritime cases in policing the familiar, if at times uncertain, line between “seamen” and “longshore workers.” Thus, workers whose duties are primarily related to loading or unloading cargo have been held not to be within the exemption.¹⁰ Similarly, the exemption was held not to apply to workers who supervised the collection of fares and the parking of cars on a ferryboat.¹¹

Harkins, dealing with workers on a casino boat, also addressed the “seaman” exemption. There the Seventh Circuit posited a rebuttable presumption that a worker who was covered as a “seaman” under the Jones Act and other protective general maritime law should fall within the definition of “seaman” in the FLSA exemption. 385 F.3d at 1103. In considering whether the presumption had been rebutted, the court described the workers at issue as part of the “marine crew” of the boat, though most of them had some sort of housekeeping responsibilities rather than duties related to navigation. Id. at 1100. The court affirmed a jury verdict that the exemption applied, noting that the plaintiffs “were not waiters or croupiers, but instead were responsible for the operation of the ship or (as comprehended within that term) the safety of the ship's passengers.” Id.

In a case following Harkins that also involved a casino boat, the court concluded that for employees who performed work that was clearly maritime in nature the exemption was not avoided because they also provided various security, cleaning or “housekeeping” services. Tate v. Showboat Marina Casino P'ship, 357 F.Supp.2d 1075, 1081–85 (N.D.Ill.2005).

III. The Facts of the Case

The following facts are not disputed:

Boston Harbor Cruises operates approximately twenty passenger vessels in and around the Boston Harbor and surrounding areas. The vessels are used only for

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the transportation of passengers; they are not operated as carriers of cargo. Some vessels provide transportation for commuters to and from Hingham, Charlestown, and Boston. Some vessels travel between Boston and Provincetown. Some vessels transport passengers on whale watches, private cruises, and other pleasure excursions.

All of BHC's vessels are subject to statutory and regulatory authority enforced by the United States Coast Guard. The Coast Guard determines the class, type, and number of...