Sternberg Dredging Co. v. Walling

• Decision Date: 14 January 1947
• Docket Number: No. 13329.,13329.
• Citation: 158 F.2d 678
• Parties: STERNBERG DREDGING CO. v. WALLING.
• Court: U.S. Court of Appeals — Eighth Circuit

158 F.2d 678 (1946)

STERNBERG DREDGING CO. v. WALLING.

No. 13329.

Circuit Court of Appeals, Eighth Circuit.

December 16, 1946.

Rehearing Denied January 14, 1947.

R. Emmett Kerrigan, of New Orleans, La. (Henry Davis, of St. Louis, Mo., Deutsch, Kerrigan & Stiles and Marian Mayer, all of New Orleans, La., and Bryan, Cave, McPheeters & McRoberts, of St. Louis, Mo., on the brief), for appellant.

George M. Szabad, Atty., Department of Labor, of Washington, D. C. (William S. Tyson, Sol., and Morton Liftin, Asst. Sol., both of Washington, D. C., Reid Williams, Regional Atty., of Kansas City, Mo., and Eugene Green, Atty., of Washington, D. C., on the brief), for appellee.

Before GARDNER, WOODROUGH, and RIDDICK, Circuit Judges.

RIDDICK, Circuit Judge.

This is an appeal from a judgment of the District Court restraining violations of the overtime and record-keeping provisions of the Fair Labor Standards Act of 1938, 29 U.S.C.A. §§ 207, 211(c), 215(a)(2), and 215(a)(5). The question is whether persons employed by appellant aboard its dredges engaged in the maintenance and development and improvement of navigable interstate waterways are excluded from the coverage of the Act by section 13(a)(3), 29 U.S.C.A. § 213(a)(3), exempting from coverage any employee employed as a seaman. The District Court answered the question in the negative.

Appellant is a corporation engaged at various places in the United States and in foreign territories in improving and cleaning interstate waterways and harbors and in the construction of levees, dikes, canals, launching slips, and landing areas along navigable waterways. In the performance of this work appellant employs three hydraulic dredges, four clamshell dredges, and various tugs, launches, barges, and machines. One of appellant's dredges is self-propelled and is able to move to the scene of its dredging operations under its own power. The others are towed to their job sites by tugboats. All of the dredges carry supplies of machinery and parts, equipment, and stores used in removing materials from navigable waters in the course of their dredging operations. Since the dredges move on navigable waters, they are fitted with decks, companion ways, operating bridges, engine rooms, galleys, and mess halls. The primary function of the dredges, however, is the removal of deposits of mud, silt, and rock from the channels of navigable waters.

Each dredge, hydraulic or clamshell, is equipped with two long sections of fabricated steel rounded with wooden members, or with two steel cylinders filled with concrete, called spuds, and with swinging wires and anchors. Upon reaching the place of dredging operations the spuds and anchors are dropped and dredging operations begin. During the dredging operations dredges engage in a slight movement, up to 2,000 feet a day, by manipulation of swinging wires and anchors. A hydraulic dredge operates by means of a rotary cutter at the end of a ladder attached to the bow and a pipe line attached to suction pumps. This equipment is lowered into the water to the required depth and the cutter slices through the material being dredged, cutting a segment which is then forced by the suction pumps through the pipe line to the desired place of deposit. If the deposit is being made on shore, the pipe lines are supported by pontoons. After a segment has been cut, the ladder is raised by power machinery on the dredge, and the dredge is then swung forward in an arc by manipulation of its swinging wires, swinging anchors, and spuds. When a starting point for a new cut is reached, the operation is repeated.

Clamshell dredging is similar to hydraulic dredging, except that the excavation is accomplished by raising and lowering a large bucket-like apparatus by means of cables and the dredged material is deposited on barges and transported away or the full bucket is swung away from the digging site and then emptied.

The personnel of a dredge is made up of the following complement of officers and crew: the captain, mates, deckhands, a chief engineer, assistant engineers, oilers, levermen, welders, electricians, cooks, messmen, cabin boys, motorboat operators, tug captain, and tug mates or engineers. The Administrator agrees that tug captains, tug mates or engineers, and motorboat operators and the personnel on the tugs and the motorboats when engaged exclusively in the workweek in navigating the tugs or motorboats in transportation are seamen within the meaning of that word in section 13(a)(3) of the Act.

The master or captain of the dredge is in complete charge of the dredge. He issues all orders relative to movements and dredging operations. On movement from one scene of operations to another, which in many cases extends from one State to another, the dredge is under command of the captain and is manned by the regular officers and crew, just as when engaged in dredging operations. The mates or foremen assist the captain and see that his orders are carried out. The chief engineer is responsible for the proper functioning of all machinery. An assistant engineer is on duty on all watches. He supervises the oilers in the engine room and makes minor repairs. The levermen manually operate the dredging machinery. Welders and electricians perform the usual duties of such employees. The cooks, messmen, and cabin boys prepare the food and keep the quarters for the crew. The work of the deckhands consists of the usual deckhand duties. They scrub, chip, and paint the dredge; clean machinery; assist in unloading fuel and supplies; manipulate lines and pontoons; handle lifeboats; drop and weigh anchors; and assist generally in the operation of the dredge.

The dredges normally operate in three eight-hour shifts or watches, twenty-four hours a day, seven days a week. Occasionally, they are operated on two twelve-hour shifts. The number of men on a crew on each shift varies from eighteen to twenty-one. When conditions permit, the men are allowed to go home at nights; otherwise, they sleep and eat aboard the dredge, or in the case of two of the clamshell dredges, sleeping quarters are provided on quarter boats. With the exception of the captain and chief engineer, all dredge crew workers are paid semi-monthly on an hourly rate basis for straight time. None of the workers on board the dredges and auxiliary craft has been paid as required by the Act, except for a short time during which appellant was engaged on a Government contract which provided for the payment of wages at the rate of one and a half times the regular rate of pay for all hours worked in excess of forty hours a week. A deduction of $1 a day is made from each worker's pay for meals.

None of the dredge workers is required as a condition of his employment to be certified as a seaman by the Government, to have a Government license, to sign seamen's articles, or to take navigation tests. The dredges are not inspected by any agency of the Government. They are, however, enrolled and licensed by the Government. The officers and crews of a dredge are afforded the facilities of the United States Marine Hospital.

Since the dredges are vessels which move or are moved on navigable waters, transporting in such movements their personnel and equipment, and since while under way, as well as when stationed at the scene of the dredging operation, the personnel of the dredges customarily perform some of the work done by the members of the crews of passenger and cargo vessels, appellant...