Walling v. Bay State Dredging & Contracting Co.

• Decision Date: 09 May 1945
• Docket Number: No. 4007.,4007.
• Citation: 149 F.2d 346
• Parties: WALLING, Adm'r of Wage and Hour Division, v. BAY STATE DREDGING & CONTRACTING CO.
• Court: U.S. Court of Appeals — First Circuit

149 F.2d 346 (1945)

WALLING, Adm'r of Wage and Hour Division, v. BAY STATE DREDGING & CONTRACTING CO.

No. 4007.

Circuit Court of Appeals, First Circuit.

May 9, 1945.

Archibald Cox, Associate Sol., of Washington, D. C. (Douglas B. Maggs, Sol., of Washington, D. C., George H. Foley, Jr., Regional Atty., of Boston, Mass., and Edward D. Friedman, Atty., United States Department of Labor, of Washington, D. C., of counsel), for appellant.

Herman Snyder, of Boston, Mass. (Bailen, Snyder & Vernaglia, of Boston, Mass., of counsel), for appellee.

Before MAHONEY and WOODBURY, Circuit Judges, and PETERS, District Judge.

PETERS, District Judge.

This is an appeal from a final judgment of the District Court dismissing a complaint filed by the Administrator of the Wage and Hour Division, United States Department of Labor, under the Fair Labor Standards Act of 1938, asking for an injunction restraining violations of the over-time and record-keeping provisions of the Act, §§ 15 (a) (2) and 15(a) (5), 29 U.S.C.A. § 215 (a) (2, 5).

The case turns upon the applicability of the Act to employees of the defendant engaged in operating dredges. It is conceded that these employees are engaged in commerce and that the minimum wage and over-time provisions of the Act are applicable to them, unless they are exempted by § 13(a) (3), 29 U.S.C.A. § 213(a) (3), which provides:

"Sec. 13(a). The provisions of sections 6 and 7 shall not apply with respect to * * * (3) any employee employed as a seaman * * *."

The facts were stipulated and found by the District Court as stipulated. Briefly summarized they are as follows:

A dredge, several of which were owned and used by the defendant, is a floating plant, adapted and equipped for digging up mud and other material from the bottom of shallow rivers, creeks and harbors, and dumping it in scows, by which it is taken away to the place of deposit. A hydraulic dredge, one of which is used by the defendant, operates differently. Instead of excavating by a bucket, the usual method, the mud is sucked up by means of a centrifugal pump apparatus and forced directly to shore through a pipe line. The dredge has no power of propulsion by itself, except that as the work progresses it can be edged forward a few feet at a time by swinging the bucket under water. When taken by a tug-boat to the site of a job, heavy beams are dropped to the bottom through casings, holding the dredge in position for the work. A dredging operation usually continues in one locality for several weeks. The dredge is equipped with an engine which operates the bucket and another engine which operates the spuds or beams for holding the dredge in position. The dredge usually has two decks, accommodations for cooking, eating and sleeping. The personnel on a dredge operated by the defendant consists of a captain, one operator, one mate, four deck-hands, one oiler, one fireman, a cook, a mess-boy and a watchman. When a job is being carried on at some distance from Boston, the location of the defendant, the entire complement live on board. When the job is carried on close to Boston many of the employees after work go ashore to living quarters there. A launch is used for the transportation of men who go ashore after the day's work is completed. The captain of the dredge, who is in general charge of the hiring and discharging of employees, and who supervises operations, is required to have knowledge of tidal and weather conditions while the dredge is in tow, and usually has some knowledge of navigation. When the dredge is being towed from the site of one operation to another the dredgemen, under the captain, perform certain duties similar to those performed by mariners on moving vessels. A whistle on the dredge is operated to signal the tug. Running lights are used, being placed on the top deck of the dredge. The oilers or engineers man the bilge pumps, fire pumps and circulating pumps when the dredge is in tow. The firemen, cooks and mess-boys perform the usual duties of such positions. The operator, who is in charge of the dredge under the captain, has charge of placing the dredge in position, moving it ahead or backwards by the use of the bucket when such motion is required. He runs the dredging machinery and its appurtenances. The mate is in charge of the deck-hands and of the loading of the scows and supervises the men on the dredge handling the lines which hold the scows alongside. The deck-hands handle the spuds, oil the equipment, assist the fireman, do repair work on the hoisting equipment, and such other work aboard the dredge as may be necessary.

The employees on the dredges in question have not been organized by the National Maritime Union nor are they required by the defendant to have seamen's ratings. The captain is not a licensed officer, nor are the dredges enrolled or licensed under the Federal law or inspected by any maritime authority.

The defendant treated all its dredgemen as seamen and considered that, as to them, it was exempt from the requirements of the wage and hour provisions of the Act. The District Court took the same view, basing its decision upon the reasoning in Bolan v. Bay State Dredging & Contracting Co., D.C., 48 F.Supp. 266, a case in which the dredge-workers brought suit against their employer, seeking to establish their right to coverage under the Act.

In support of the claim that dredgemen are seamen, as that word is used in the Act, it is pointed out that in many decisions construing other statutes, giving rights and remedies to seamen, that term has been held flexible enough to cover groups of employees whose work is not directly connected with navigation and transportation by water, including dredge-workers, and it is urged that a line of judicial decisions had given such a definite and unambiguous meaning to the word "seaman", as including such employees before the Fair Labor Standards Act was passed, that it must be presumed that Congress used the word in the light of its then understood breadth of meaning, and therefore intended to cover dredgemen under the term "seamen", and to exempt them from the operation of the wage and hour provisions of the Act.

The plaintiff asserts that it is not necessary to rely on such presumption, as there is more direct and satisfactory evidence of the meaning of Congress in using the language in question in connection with its purpose in passing the legislation. He maintains that the legislative history of the Act, including the reasons for its passage, and the proper rules of construction to be used, compel the conclusion that Congress used the word "seaman" with its commonly accepted meaning, and did not intend that employees in the position of dredge-workers should be without the protection of the Act. With this contention we agree.

As ordinarily used, the word "seamen" would not include dredge-workers. Webster says that a seaman is "One whose occupation is to assist in the management of ships at sea; a mariner; a sailor."

Whether a worker is a seaman, as the term is commonly used, depends upon the character of his duties. If they are essentially maritime he is a seaman. Otherwise he remains a landsman.

The work these dredgemen were employed to do was not connected with voyages on the sea, except occasionally and incidentally, as they were taken from one job to another. Their work was essentially connected with excavation and not with navigation. When the material excavated was dumped on scows, brought alongside the dredge, navigation and transportation then began. The scow or bargemen are admitted to be seamen and have been so treated. The dredgemen, whose work is to dig up material from the earth and deposit it in the scows, for others to carry away, are not "employed as seamen". They operate a steam shovel, or what amounts to that, and are employed as operators of an excavating plant. They are not actually seamen, but, their work being carried on upon the water, they have sometimes been classified as "seamen" and held to be covered by that term when it has been used in statutes passed for the protection of maritime workers. When such a construction was consistent with the apparent intention of Congress in passing the law, the word "seamen" has been expanded to give workers who are not strictly seamen the benefit of remedial laws. If this Act had been passed for the benefit of seamen, and land workers were excepted, it might be that the expansion of the term "seamen" to include dredge-workers would be justified in the aid of its purpose. But the Act originated in a bill for the benefit and protection of workers in commerce generally, as set forth in its preamble, and anything cut out of its coverage is not in aid of the purpose of the legislation, but the reverse. Consequently, it is not only necessary to construe the exception strictly, but it is important to ascertain, if possible, whether or not, in this particular statute, Congress used the language "employed as a seaman" in any other than its commonly accepted meaning.

As was said by Judge Cardozo in Warner v. Goltra, 293 U.S. 155, 158, 55 S.Ct. 46, 48, 79 L.Ed. 254:

"What concerns us here and now is not the scope of the class of seamen at other times and in other contexts. Our concern is to define the meaning for the purpose of a particular statute which must be read in the light of the mischief to be corrected and the end to be attained."

The plaintiff has furnished us in his brief with some illuminating excerpts from the history of the legislation.

In the consideration of the bill before the Committee, when the bill made no exception of seamen or other transportation workers from its provisions, representatives of the chief labor organizations representing seamen, appeared before the committee and made a plea for the exemption of seamen from the legislation on the ground that their interest had already been protected by other legislation, — referring to the Merchant Marine Act of...