S P R I N G 2 0 1 5 I N L A N D WAT E R S A N D T O W I N G C O M M I T T E E

O F T H E M A R I T I M E L AW A SS O C I AT I O N

FEDERAL MARITIME LAW: AN OPPORTUNITY TO RESOLVE

CONFLICTS BETWEEN MARITIME COMMERCE &

LABOR OR ENVIRONMENTAL LAW

Alessandra Tebaldi, Esq.Vice President & General CounselMcAllister Towing & Transportation Company, Inc.

ARE VESSEL-BASED TANKERMEN EXEMPT FROM FLSA AS

“SEAMEN”?F I F T H C I R C U I T: N O OV E RT I M E PAY F O R

V E SS E L - B A S E D TA N K E R M E N

COFFIN V. BLESSEY MARINE SERVICES, INC., CASE NO. 13-20144

• Vessel-based tankermen brought suit in the U.S. District Court for the Southern District of Texas against Blessey Marine, Inc. alleging they were misclassified as exempt from overtime pay under the “seaman” exemption of the FLSA, and, as a result, deprived from overtime pay.

• Plaintiffs argued that loading and unloading a vessel is “non-seaman” work as a matter of law and that Owens v. SeaRiver Maritime, Inc., 217 F.3d 698 (5th Cir. 2001) forecloses any factual inquiry into the nature and character of loading and unloading duties.• In Owens, the Fifth Circuit held that a land based

tankerman did not qualify for the seaman exemption regarding overtime pay for loading and unloading because he was not a member of the crew.

• Blessey countered that Plaintiffs’ loading and unloading duties were done as part of the vessel crew and aided the seaworthiness of the vessel. Therefore, it was “seaman” work.

• The lower court held that:• loading and unloading were not seamen duties as

a matter of law, and • if tankermen spent more than 20% of their time

loading and unloading, such tankermen were not exempt under the “seamen” exemption of the FLSA.

• The Fifth Circuit reversed [November 13, 2014] – when vessel-based tankermen perform loading and unloading duties, such duties (along with any related duties) constitute seaman work, making them exempt from the FLSA overtime provisions.

RELEVANT STATUTORY AND REGULATORY LANGUAGE

• FLSA generally forbids employing workers for a workweek longer than 40 hours unless such employee receives compensation at a rate not less than 1.5 times his regular rate. [29 U.S.C. §207(a)(1)] • FLSA Exemption: Any employee employed as a seaman. 29 U.S.C. §213(b)(6)

• A vessel crewmember will ordinarily be regarded as “employed as a seaman” if [29C.F.R.§783.31]: • 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.

• Work other than seaman work becomes substantial “if it occupies more than 20% of the time worked by the employee during the workweek.” [29 C.F.R. § 783.37]

• We must evaluate an employee’s duties based “upon the character of the work he actually performs and not on what it is called or the place where it is performed.” [29 C.F.R. § 783.33]

ARE LOADING AND UNLOADING DUTIES “SEAMAN” WORK?

• Fifth Circuit determined that loading and unloading a vessel is not always non-seaman’s work.• Owens was part of a land-based strike team.

• He was not a crewmember and not tied to a particular vessel for a voyage.

• His duties prepared the vessel for navigation but did not actually aid its operation.

• Fifth Circuit determines that the character of loading and unloading duties may change when a member of a vessel-based crew performs such duties.

• Vessel-based tenders who maintain and service a barge are exempt seamen under the FLSA. Gale v. Union Bag & Paper Corp., 116 F.2d 27, 29 (5th Cir. 1940)

• The workers in Gale worked, ate, and slept on board their assigned barges.

• Here, the plaintiffs ate, slept, lived and worked aboard Blessey’s towboats.

• They were members of the crew and worked at the direction of the captain.

• They performed the loading and unloading duties as members of a unit tow’s crew so that the barge could operate safely.

• In Martin v. Bedell, 955 F.2d 1029, 1035 (5th Cir. 1992) the Fifth Circuit recognized that a vessel-based “cook is usually a seaman because he usually cooks for seamen.” 955 F.2d at1036

• Food preparation is neither inherently seaman nor nonseaman work, and its character depends on the context in which it is performed.

PORTLAND PIPELINE & MARINE TANK VESSEL

OPERATIONSD O E S F E D E R A L AU TH O R I T Y P R E E M P T LO C A L AU T H O R I T Y

OV E R V E SS E L O P E R AT I O N S I N P O RT L A N D , M E ?

PPLC & AWO V. CITY OF SOUTH PORTLAND

• 02/06/2015 – The AWO and Portland Pipe Line Corporation (PPLC) filed a complaint with the U.S. District Court District of Maine against the City of South Portland seeking relief from the Clear Skies Ordinance (CSO) adopted by the City on July 21, 2014.

• CSO includes a provision that prohibits the “bulk loading” of crude oil onto marine tank vessels in Portland Harbor, thus precluding the use of PPLC’s pipelines for the exportation of oil from Canada through further transportation by marine vessels to the U.S. and beyond.

• According to Plaintiffs, the CSO directly conflicts with the Commerce and Supremacy clauses of the U.S. Constitution and violates the principles of maritime preemption.

PLAINTIFFS’ LEGAL BASIS : FEDERAL PREEMPTION OF LOCAL AUTHORITY

1. Supremacy Clause / Pipeline Safety Act

• USDOT regulates pipeline safety under the Pipeline Safety Act (PSA).

• The PSA provides that a State authority may not adopt or continue in force safety standards for interstate pipeline facilities or interstate pipeline transportation.

• CSO intrudes in the federally preempted field of interstate pipeline safety.

2. Supremacy Clause / Foreign Affairs

• Pipeline operations fall within the foreign policy powers of the federal government and its determination as to what is in the national interest.

• U.S. Foreign Policy:

• Embraces expanded trade and facilitation of pipeline transfers between the US and Canada.

• As reflected in the International Convention for the Prevention of Pollution from Ships (MARPOL) and other treaties – the operation of vessels in US waters has long been an area in which the federal government has exercised its exclusive authority over foreign affairs.

• It is up to the federal authorities, not the City of South Portland, to determine:

• how PPLC’s pipelines should be operated,

• what product they should carry,

• whether they should be used for import or export, and

• what restrictions (if any) should be imposed on the loading and export of product onto ships through the Portland Harbor.

• The CSO is preempted under the President’s foreign affairs power.

3. Supremacy Clause / Ports and Waterways Safety Act (PWSA)

• PWSA regulates the operation of marine tanker vessels in U.S. harbors, including the loading and unloading of their cargo.

• Title I preempts local regulations that conflict with federal regulations adopted thereunder.

• Title II of the PWSA preempts any local regulation concerning the “operation” of tanker vessels.

• The CSO’s ban, impermissibly conflicts with Titles I and II of the PWSA and the regulations promulgated by the Secretary thereunder.

4. Maritime Preemption

• The federal government has historically exercised a preeminent and preemptive role in regulating interstate and international shipping.

• The Supreme Court has held that:

• The Constitution requires uniformity in Admiralty law.

• State maritime law is preempted when it purports to ban federally licensed maritime activity.

• The loading of marine vessels with crude oil is a federally licensed activity.

• The CSO’s ban interferes with federal licensing of tanker vessels.

5. Commerce Clause• The Commerce Clause of the U.S. Constitution, Art. I, Section

18, Clause 3, confers upon Congress the power to regulate Commerce with foreign nations as well as among the several states.

• The CSO burdens interstate and foreign commerce by directly regulating it.

THE CITY OF SOUTH PORTLAND’S MOTION TO DISMISS

• 03/31/2015 - The City of South Portland moved to dismiss the Complaint because: • Plaintiffs’ claims are not ripe for resolution and

• Plaintiff’s lack standing to bring them.

• Plaintiffs have “no current plans” to engage in any crude oil bulk loading that they contend would be prohibited by the CSO.• PPLC would first need an assortment of government approvals.

• CSO has no present effect on Plaintiffs – they have suffered no hardships.

• The CSO is a traditional exercise of the City’s local police power to protect the health and welfare of its residents and visitors.

• A decision would be purely advisory, in contravention of Article III of the Constitution.