Pacific Merchant Shipping Ass'n v. Aubry

Decision Date13 November 1990
Docket NumberNo. 89-55379,89-55379
Citation918 F.2d 1409
Parties30 Wage & Hour Cas. (BN 33, 1991 A.M.C. 2797, 59 USLW 2351, 117 Lab.Cas. P 35,430 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.
CourtU.S. Court of Appeals — Ninth Circuit

H. Thomas Cadell, Jr., Dept. of Indust. Relations, San Francisco, Cal., for defendant-appellant.

Thomas E. Hill, Musick, Peeler & Garrett, Los Angeles, Cal., for plaintiffs-appellees.

Michael M. Johnson, McCuthen, Black, Verleger & Shea, Los Angeles, Cal., for plaintiff/intervenors-appellees.

John Schnitker, U.S. Dept. of Justice, Washington, D.C., for amicus, U.S.

Appeal from the United States District Court for the Central District of California.

Before BROWNING and PREGERSON, Circuit Judges, and COPPLE, District Judge. *

PREGERSON, Circuit Judge:

Lloyd W. Aubry ("Aubry"), California's labor commissioner, enforced California's overtime pay laws against Clean Seas, an employer operating vessels off the California coast. Pacific Merchant Shipping Association and other shipping associations 1 ("PMSA") brought suit in the district court on behalf of Clean Seas and other member companies, seeking declaratory and injunctive relief on the ground that California's overtime pay laws are preempted by federal admiralty law. Tidewater Marine Service, Inc., and Western Boat Operations, Inc. ("Tidewater") intervened in the action after an employee filed an overtime wage claim with the California Division of Labor Standards Enforcement. The district court

granted summary judgment for PMSA and Tidewater, declared Aubry's actions preempted by federal admiralty law, and enjoined further enforcement of California's overtime pay laws against Clean Seas, Tidewater, and other maritime employers. Pacific Merchant Shipping Ass'n v. Aubry, 709 F.Supp. 1516 (C.D.Cal.1989). We have jurisdiction over the district court's final order under 28 U.S.C. Sec. 1291. We reverse.

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 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. Sec. 10101(3); Norris, The Law of Seamen, Secs. 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. Secs. 201-219, to define a category of maritime workers exempted from coverage under federal overtime pay provisions. See 29 U.S.C. Sec. 213(b)(6). 2 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. Sec. 783.31 (1989). A "substantial amount of work of a different character" is more than 20 percent of the time worked by an employee during any given work week. 29 C.F.R. Sec. 783.37 (1989).

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. Sec. 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. Secs. 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. Sec. 10301(a)(1). "Intercoastal voyages" are voyages between ports on the Atlantic and Pacific coasts. See 46 U.S.C. Sec. 10301(a)(2). "Coastwise voyages" are voyages "between a port in one State and a port in another State (except an adjoining State)." See 46 U.S.C. Sec. 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. Sec. 70.10-13 (1988).

II. Facts and Procedural History

PMSA and the other associations involved in this appeal are maritime trade Clean Seas operates three vessels: Mr. Clean, Mr. Clean II, and Mr. Clean III. The employees whose wage claims led to this appeal work on Mr. Clean II and Mr. Clean III (three on Mr. Clean II; nine on Mr. Clean III ). Both vessels' duties involve control and clean up of oil spills and other environmentally hazardous discharges in the Santa Barbara Channel off the California coast. Mr. Clean II is a 138-foot vessel moored in Port San Luis Harbor, California, where it remains moored approximately one-quarter mile offshore about 90 percent of the time. Mr. Clean III is a 181-foot vessel permanently stationed on the high seas off the California coast. Mr. Clean III conducts containment and clean up operations around four oil drilling and production platforms over the Pedernales and Arguello oil fields, from four to ten nautical miles off the California coast. When not on active duty, Mr. Clean III is tied to a buoy approximately seven miles off the California coast.

associations that represent merchant maritime shippers, other maritime employers, and employers in the oil and gas industry. Among these organizations' members are Clean Seas and Tidewater. Clean Seas is an unincorporated, cooperative association, formed by several major oil companies to contain and clean up marine oil spills off the California coast. 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.

Cleans Seas employees who work on Mr. Clean III are organized into two crews of six. 3 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 III 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. 4 The specific terms of Clean Seas' employees' work are usually set out in contracts negotiated between each employee and Clean Seas.

Tidewater operates two types of vessels off the 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-member 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. Sec. 213(b)(6). Typically The record indicates that all the Clean Seas employees and the Tidewater employee are California residents who live in California when not on board ship. The workers are hired in California, receive paychecks at California addresses, and pay California taxes.

Tidewater crew boat crews work 7 day hitches alternating with 7 day rest periods onshore; employees work 12 hour shifts alternating with 12 hour rest periods. The specific terms of most Tidewater crew members' work are set out in employment contracts negotiated between individual employees and Tidewater.

In 1987, the twelve Clean Seas employees filed claims for unpaid overtime compensation with the California Labor Commissioner. The California Labor Code grants the Labor Commissioner authority to enforce Wage Orders issued by the California Industrial Welfare Commission ("IWC"). See Cal.Lab.Code Secs. 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. Sec. 11345(2)(c). After a hearing, Aubry applied Wage Order 4-80 to the Clean Seas crewmembers and granted an average of $45,000 in back wages to each of the 12 Clean Seas employees. PMSA then filed the complaint for declaratory and injunctive relief underlying this appeal. Meanwhile, 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...

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