Before EVANS, MAJOR, and KERNER, Circuit Judges.
The Fair Labor Standards Act, 29 U.S.C.A. § 213(a)(3), provides an exemption for "any employee employed as a seaman." The sole issue in the instant case was whether men employed on a dredge were "seamen." Judge Barnes answered the quere in the negative. He predicated his conclusion on the grounds that (a) the Act is remedial and calls for a liberal construction and (b) the factual situation required it.
The facts were largely stipulated. They are:
"None of the defendant's dredging employees are certificated as seamen by the United States Government; none have any United States Government license; none sign seaman's articles; and it is unnecessary for them to have special training for the dredging work. They are not required to have knowledge of laws of navigation. They pay for their meals when they eat aboard the dredge. When the dredge is being towed by the tug the captain of the tug takes care of all navigational signals. The dredges are not inspected by any agency of the United States Government.
"Defendant * * * constructs, repairs, alters, reconstructs and otherwise performs work on breakwaters, sea walls, docks, locks, levees, seaplane ramps and similar types of marine projects. Defendant also dredges, widens, clears, fills and otherwise performs work on channels in navigable inland waters and harbors * * *. Typical of the type of dredging operations performed by the defendant is that work that it has done in deepening the harbors at Buffalo, New York; Cleveland, Ohio; Gary and Indiana Harbor, Indiana; and Detroit, Michigan; * * *.
"Defendant operates three types of dredges commonly known as hydraulic dredges, dipper dredges and clamshell dredges.
"Defendant owns * * * hydraulic dredges registered and documented * * *. The dredges vary in gross tonnage from 559 to 1,832 tons. The machinery of said dredges are either driven by steam or Diesel electric plants. * * *
"A dredge has no propellers or power wheels for controlling of its movements. * * *
"Dredges are worked by crew members in 8 hour shifts. The hydraulic dredges owned by the defendant carry on a normal 8 hour operation crews varying from 8 to 13 men. The normal complement of a dredge operating on an 8 hour basis consists of a captain, operator, chief engineer, deck foreman, watch engineer, one or more oilers, a fireman on steam operated and an electrician on Diesel electric operated dredges, deckhands, a cook and one or more mess boys and porters. * * * Some dredges carry accommodations for feeding and sleeping the crew aboard the dredge, and crews sometime sleep and eat aboard the dredges."
The parties also covered, by stipulation, the respective tasks of the various workers on a dredge.
In addition, oral testimony was adduced, of captains, deck hands, oilers, scowmen, fireman, dredge operator, the officers of the union, and officials of the defendant company.
The men testified as to their tasks when a dredging operation was in progress, such as oiling the machinery, managing the tow ropes, tending the pumps and the boilers, tending the scows which are ladened with the debris dredged. If the job were close to Chicago the men went home nights; if it were away from their home, they stayed on board the dredge for both meals and lodging. The dredges were completely outfitted for such accommodations, having a galley, dining room and state rooms (as disclosed by photographs of the dredges in evidence). The men paid for their board.
The dredges had no power of self locomotion, and were able to shift themselves but a few feet (ten or fifteen) for purpose of changing the location of dredging. Tugs were used to move the dredges. The dredges did have power units for the ...