The Fifth Circuit ruled that vessel based tankermen are seamen and therefore not subject to the overtime provisions in the Fair Labor Standards Act (“FLSA”) (29 U.S.C. §§201-219) in Coffin v. Blessey Marine Services, Inc., No. 13-20144 (5th Cir. Nov. 13, 2014).
Blessey ships liquid cargo along inland and oceanic waterways. The cargo is loaded onto two tank barges, which are pushed by a towboat, and collectively referred to as a unit tow. The unit tow is manned by a crew that lives and works on the towboat. The crew consists of a wheelman, a pilot, tankermen and deckhands. Blessey tankermen have 19 deckhand duties, but are also responsible for performing the loading and unloading of liquid cargo from the barges. The Plaintiffs and Blessey agree that most of the deckhand tasks performed by the tankermen are seaman work. The Plaintiffs, former Blessey tankermen, typically worked as seamen and were paid a day rate for the hours they worked during a 7-day hitch on the unit tow. They were not paid overtime for any work, as is customary and lawful for seamen. The FLSA exempts from overtime any employee employed as a seaman.
In the district court, Blessey filed a motion for summary judgment on the Plaintiffs’ status as seamen. Blessey produced evidence that the Plaintiffs’ loading and unloading duties were done as part of the vessel crew and aided the seaworthiness of the vessel. The Plaintiffs’ argued that loading and unloading a vessel is nonseaman work as a matter of law under the Fifth Circuit’s opinion in Owens v. SeaRiver Maritime, Inc., 272 F.3d 698 (5th Cir. 2001). Blessey’s motion was denied and the district court certified the matter for immediate appeal. The Fifth Circuit reversed and remanded the case to the district court for entry of judgment in favor of Blessey.
The Court began its analysis by reviewing the relevant Department of Labor (“DOL”) regulations. Generally, a vessel’s crew members are seamen, so long as they meet the criteria in 29 C.F.R. § 783.31. Section 783.31 outlines these criteria as follows:
[A]n 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 rendered primarily as an aid in the operation of such vessel as a means of transportation, provided he performs no substantial amount of work of a different character.
The court held that use of the term “ordinarily” suggest that no fixed meaning of the term “seaman” under the FLSA applies. Accordingly, the Court evaluated the Plaintiffs’ duties based upon the character of the work they actually performed and not on what it is called or the place where it is performed.
The Court then distinguished these Plaintiffs from the plaintiff in Owens. The plaintiff in Owens was not a crewmember of a tow and not tied to a particular vessel for a voyage. Rather, the plaintiff in Owens only sought overtime pay for his work loading and unloading barges as a member of SeaRiver’s land-based crew. The Blessey tankermen were, however, members of a unit tow crew, were assigned to particular vessels for a voyage and were expected to work on barges that were towed by Blessey’s boats and crews. It was undisputed that the Blessey tankermen worked, ate, slept and lived aboard Blessey’s towboats during their hitches. They were members of the crew and worked at the direction of the captain. The Court concluded that Blessey tankermen were seamen while loading and unloading the vessel because these duties were integrated within their many other duties.
The Court also considered that the policies of the FLSA support its decision. The FLSA’s exemptions were designed to apply to a kind of work that was difficult to standardize to any time frame and could not be easily spread to other workers after 40 hours in a week, making compliance with the overtime provisions difficult and generally precluding the potential job expansion intended by the FLSA’s time-and-a-half overtime premium. The American Waterways Operators addressed this issue in its amicus brief. The AWO noted that tankermen devote varying amounts of time to loading and unloading on each hitch. On some hitches, workers may spend as little as ten percent of their time loading and unloading, while others may spend fifty percent or more. Thus, a tankerman could be a seaman on some hitches and not on others, making it disruptive and disputatious on the vessel. Similarly, Blessey’s tankermen work aboard a vessel with limited space for other workers, making the unit tow an environment where “working more than 40 hours a week is an appropriate work norm.” Thus, the Court found that the policy objectives of the FLSA support this decision.
The issue of whether tankermen, as well as workers in the maritime industry, are subject to FLSA standards is a fact intensive inquiry. The Coffin decision provides a useful guide in assisting employers make this determination.