Before SWAN, Chief Judge, AUGUSTUS N. HAND and FRANK, Circuit Judges.
The appellants are 42 "scow captains," each of whom was employed on a deck scow by one of the seven appellees. The question presented by the appeal is whether the men are entitled under the Fair Labor Standards Act of 1938 to recover minimum wages, overtime wages, liquidated damages and attorneys' fees for work performed during the two year period immediately preceding March 15, 1948, the date the action was commenced. More specifically the issue is whether they are within the coverage of the wage and hour provisions of the Act or are exempted therefrom by virtue of section 13, as amended, 29 U.S.C.A. § 213(a)(14), which exempts "any employee employed as a seaman."*fn1 The case was tried to the court without a jury.*fn2 Judge Conger made findings of fact and held that the plaintiffs, whose duties were primarily nautical, were exempt from the Act. Accordingly the complaint was dismissed.
Without repeating the facts stated in the trial court's opinion, 102 F.Supp. 41, familiarity with which will be assumed, we have, for convenience in discussing the appellants' contentions, set out in the margin the findings of fact relating to their duties.*fn3 The appellants do not dispute that their nautical duties were as set out in finding No. 10. They concede that they were seamen part of the time; but because their active nautical duties require only on hour or two in a normal working day, 7 A.M. to 5 P.M., they contend that for most of the time their duties were those of watchmen - a non-exempt classification. We do not agree that during a scow captain's stand-by time, his duties are like those of a shore-side watchman. While under tow, he has leisure time because the very nature of this type of seafaring job requires no exertion of labor, except that he must be alert to the need for his services, should that need arise. This is likewise true if he is on an empty scow waiting to be taken in tow or for a change in tide which may require a shift of lines.Doubtless his presence on a loaded scow may incidentally deter unauthorized persons from coming on board and may in some measure prevent pilfering of certain kinds of cargo. As Judge Conger said in his opinion:
"But even then they were not watchmen in the sense that they were there to prevent pilferage and the like, although they would naturally be a deterrent to such an act. Rather, they were nautical watchmen alert for any damage of the boat through shifting or tide changes or collision; and so for protection of the cargo."*fn4
Their employers did not regard them as cargo watchmen. Nor could they have been effective in that capacity, for they carried no weapons, and many of them were so old as to be physically unable to resist a stalwart intruder. In so far as the appellants attack the trial court's conclusions as unsupported by the evidence, it will suffice to say that in our opinion the record amply sustains them; we cannot hold the findings of fact "clearly erroneous."
More than a dozen years ago it was held that barge tenders were "seamen" exempt from the Fair Labor Standards Act. Gale v. Union Bag & Paper Corp., 5 Cir., 116 F.2d 27, cert. den. 313 U.S. 559. There are no significant differences between the duties of the bargees as there described and those of the appellants in the case at bar. Apparently the Wage and Hour Administrator accepted the classification of the plaintiffs in that case and in July 1943 issued Interpretative Bulletin No. 11 in conformity therewith.*fn5 The appellants rely particularly upon the Administrator's ruling that "For enforcement purposes, the amount of non-exempt work will be considered substantial if it occupies more than 20 per cent of the time worked by the employee during the workweek."*fn6 They assert that the district judge erred in not giving adequate weight to this administrative interpretation.*fn7 But finding No. 15 finds that the plaintiffs did not perform any substantial amount of non-exempt work.*fn8 We agree. As stated in Judge Conger's opinion they were watchmen only in so far as they watched "for a nautical assignment to arise." Compare the exemption extended to radio operators or surgeons who sail as members of a vessel's crew. Obviously their stand-by time is normally much greater than the time spent on active duties. Yet Section 783.2(b) of Bulletin No. 11 recognizes them to be within the seaman's exemption. Nor can we grant the argument that the scow captains who maintain families and homes ashore and go home when not required to remain aboard their vessels should be denied the exemption. This is equally true of the crews of many tugs or ferry-boats.
Finally it is urged that our own decisions require denial of the exemption.*fn9 In each of those cases the lighterman or bargee spent a large part of his workday in loading or unloading or tallying the cargo, duties normally associated with longshoremen. The present appellants have nothing to do with loading or unloading their scows; their duties with respect to cargo are only to see that it is so placed as not to strain the scow or endanger its stability.*fn10 The judgment is affirmed.
FRANK, C.J. (dissenting): 1. Defendants are members of the Harbor Carriers Association. One of defendant's principal witnesses, Bleakley, testified at the trial here that, in 1945, this Association argued to the War Labor Board that the services of "scow captains" include "not only physical labor" - lasting "an hour or two per day" - but "also various custodial duties such as those performed by watchmen in shoreside employment." So what my colleagues now say(i.e., that "their employers did not regard them as cargo watchmen") was not a fact in 1945. But in 1951, six years later, at the trial of the instant case, the employers testified exactly to the contrary; and it is on that later testimony the trial judge rested his findings on which my colleagues rely. It seems clear to me that the defendants' description of the nature of plaintiffs' custodial work varies conveniently as it suits defendants' purpose. Consequently, I think no weight should be given to their testimony on that subject in this record, while much weight should be given to plaintiffs' testimony, i.e., that their watching services were like those performed by shoreside watchmen. On that basis, I think we ought to hold the trial judge's contrary finding to be "clearly erroneous." Gindorff v. Prince, 189 F.2d 897 (C.A.2); see discussion of that case in N.L.R.B. v. Dinion Coil Co., 201 F.2d 484 at 490 (C.A.2).
2. Admittedly, the word "seaman" has differing meanings in differing federal statutes. As my colleagues recognize, what the seamen exemption means in this particular Act must be determined by looking to the policy of the exemption provision in the light of its legislative history: Congress wrote that provision into the Act at the request of various maritime unions. We pointed out in Anderson v. Manhattan Lighterage Corp., 148 F.2d 971, 973 (C.A.2), that, at the legislative hearings, these unions "naturally ... opposed the application to them of general legislation which permitted an employer to include in wages the cost of facilities furnished to his employees,"*fn1 since by other seamen "generally must be furnished food and quarters free of ...