Walling v. WD Haden Co.

Citation153 F.2d 196
Decision Date18 February 1946
Docket NumberNo. 11302.,11302.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Bessie Margolin, Assistant Solicitor, U. S. Department of Labor, and Joseph M. Stone, Attorney, U. S. Department of Labor, both of Washington, D. C., and Earl Street, Regional Attorney, U. S. Department of Labor, of Dallas, Tex., for appellant.

Searcy Bracewell, J. S. Bracewell, and W. P. Hamblen, all of Houston, Tex., for appellee.

R. Emmett Kerrigan and Marian Mayer, both of New Orleans, La., amici curiæ.

Before SIBLEY, WALLER, and LEE, Circuit Judges.

SIBLEY, Circuit Judge.

The case concerns the application of the Fair Labor Standards Act to workers on dredge boats.

The appellee W. D. Haden Co., is engaged in dredging shell deposits, mainly oyster shells, from the ocean floor off Galveston Bay in the Gulf of Mexico, and transporting the material by barges drawn by tugs to several ports on the Texas coast where the shells are sold and delivered to manufacturers of lime, cement, and magnesium, and for coarse aggregate in concrete. The lime, cement and magnesium are sold and shipped by the manufacturers in large quantities into other States. Some of the shells are dredged on the coast of Louisiana and carried for sale to Texas. The dredging is done by machinery on the dredge boats which cuts up the shell deposit from the reef and sucks it up and delivers it upon a barge tied alongside the dredge, which when loaded is towed away by a tug and replaced by another. The dredge boat is stationed for months at a time in substantially the same spot, having no motive power of its own, save that it can by anchors pull itself from side to side in dredging and move itself short distances. Each dredge is manned by a Captain, a Chief Engineer and three assistants, three levermen, two oilers, two cooks, and several deck hands, who all eat and sleep on the dredge boat, working in two shifts of twelve hours each, twenty-four days per month, and having shore leave of three days at the end of every two weeks. None have licenses as marine officers, or have signed articles as seamen. All are paid by the month, whether work is constant or not, at a rate above the basic general rate which has been fixed for such workers under the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., if it is applicable, but no account is taken of overtime beyond forty hours per week, nor are records kept which the Act requires. The appellant Administrator at first considered such dredge employees not subject to the Act, but later by an interpretive bulletin announced that while the men who work on the tugs and barges in marine transportation are excepted from the Act as seamen those working on the dredges are not. He thereupon sued for an injunction to compel appellee to keep the records and pay the wages required by the Act as to the employees on its dredges. The facts were stipulated and some undisputed testimony heard. The district court found that in the dredging of shells in Louisiana and transportation of them to Texas those dredgemen are employed in commerce, but that the dredgemen in Texas are neither engaged in commerce nor producing goods for commerce notwithstanding the use the purchasers of the shells made of them. He also held all the dredgemen are seamen and exempted from the Act by Sect. 13(a) (3), 29 U.S. C.A. § 213(a) (3); but that the exemption in Sect. 13(a) (5) of the Act, 29 U.S.C.A. § 213(a) (5), of persons who are engaged in taking, catching and harvesting aquatic animals and plants does not include those who dredge shells. From the judgment refusing an injunction the Administrator appeals.

1. We think all the dredgemen, whether in the Louisiana or Texas operations, are engaged in producing goods for commerce and are under the Act if not exempted. Nearly half the shells dredged are habitually sold and delivered directly from the barges to four dealers who make and sell in large quantities in interstate commerce lime made directly from the shells, cement made seventy-five percent from the shells, and magnesium derived from sea water by using as a catalytic lime made from the shells. This is well known to appellee. The Act, 29 U.S.C.A. § 203(i), defines "goods" as meaning not merely "products, commodities, merchandise, or articles or subjects of commerce of any character" but also "any part or ingredient thereof." It is quite plain that the calcined shells are an ingredient of the lime and cement sold in commerce. And the shells are "produced", for the next definition, 29 U.S.C.A. § 203(j) declares that "produced" means not only manufactured but also "mined, handled, or in any manner worked." Dredging of shells from the sea floor is production of them under this definition. It is not made clear what becomes of the lime used in making magnesium, but as we understand the term catalytic, it means that the lime is a sort of chemical conveyor or intermediary, and that none of it enters into the magnesium. It may therefore not be an ingredient. But if we exclude the shell sold for this use, that sold to make the lime and cement is clearly of such volume as to cause the producers of it to be engaged substantially in producing goods for commerce as above defined, unless exempted from the Act.

2. The exemption in Section 13(a) (5) is of "any employee employed in the catching, taking, harvesting, cultivating, or farming of any kind of fish, shellfish, crustacea, sponges, seaweeds, or other aquatic forms of animal and vegetable life * *." The shells here involved are not associated with living oysters, but are deposits estimated to be thousands of years old. They are therefore not forms of aquatic life, but the remains of life long ceased, as are coral rock and limestone. These dead remains are not intended to be the subject matter of this exemption. It is true that the word "crustacea" is derived from the Latin word for shell, but the English term as defined refers only to the animals which inhabit the shells. Webster's International Dictionary. All the words used in the exemption refer to living things.

3. The other exemption, 29 U.S.C.A. § 213(a) (3), is of ...

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