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if his work as a whole meets the test stated in $783.31, even though during the workweek he performs some work of a nature other than that which characterizes the service of a seaman, if such nonseaman's work is not substantial in amount. For enforcement purposes, the Administrator's position is that such differing work is "substantial” if it occupies more than 20 percent of the time worked by the employee during the workweek.
WHAT IS AN “AMERICAN VESSEL” Section 783.38 STATUTORY DEFINITION
OF “AMERICAN VESSEL”. The provisions of section 6(b)(2) prescribe special methods for computing minimum wages and hours worked under the Act which are applicable only to seamen who are employed on American vessels. An "American vessel", which would appear to signify a vessel of the United States as distinguished from a foreign vessel, "includes", under the terms of the definition in section 3(p) of the Act, “any vessel which is documented or numbered under the laws of the United States.” The Department of the Treasury, Bureau of Customs and the United States Coast Guard, respectively, are responsible for documentation and numbering of vessels.
has been registered, enrolled and licensed, or licensed by the Bureau of Customs under the laws of the United States (16 U.S.C. 11, 193, 251–252, 258, 840). Although Bureau of Customs regulations provide for three types of documentations, distinctions between the categories of vessels subject to them are immaterial for the purposes of the Fair Labor Standards Act, since a vessel with any of the three kinds of documentation is an "American vessel” within the section 3(p) definition. Generally, any vessel of five net tons or more which is owned by a citizen of the United States is "entitled to" documentation. Complete information on the documentation requirements may be found in 19 CFR Part 3.
Section 783.41 “NUMBERED” VESSEL.
A vessel "numbered under the laws of the United States” means vessel numbered pursuant to the provisions of Federal law, including vessels numbered under any State numbering system approved by the Secretary of the Department under which the U.S. Coast Guard is operating, in accordance with section 2(c) of the Federal Boating Act of 1958 (46 U.S.C. 527–527lı). Generally, any vessel which is not required to have, and does not have, a valid marine document issued by the Bureau of Customs and is propelled by machinery of more than 10 horsepower, whether or not such machinery is the principal source of propulsion, is required to be numbered in conformity with the Federal Boating Act of 1958 if it uses the navigable waters of the United States, its Territories, or the District of Columbia or is owned in a State and uses the high seas (46 U.S.C. 527 (a)). The requirements and procedures of this Act are explained in detail in 46 CFR Part 170.
Section 783.39 “VESSEL” INCLUDES ALL MEANS OF WATER TRANSPORTATION.
Since the Act does not define "vessel" it is appropriate to apply the definition of "vessel” as set forth in the United States Code (1 U.S.C. 3). The Code defines "vessel” as including “every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water". But the Federal Boating Act of 1958, (under which the U.S. Coast Guard is responsible for numbering vessels) and the Documentation Regulations administered by the Bureau of Customs, utilize this basic definition, with the addition of specific exclusions for “sea planes" and "aircraft” (46 U.S.C. 527; 19 CFR 3.1(a)). Section 783.40 “DOCUMENTED” VESSEL.
A vessel "documented * * * under the laws of the United States” is typically a vessel which
Section 783.42 VESSELS NEITHER “DOCU
MENTED" NOR "NUMBERED" An "American vessel" on which employment as a seaman is subject to the minimum wage under the provisions of section 6(b)(2) and section 13(a) (14) is not limited by the language of the Act to those vessels which are "documented" or "numbered" as described above in SS 783.40 and 783.41. Since the term
the 193, Susocuries the nce en
"American vessel” has traditionally been
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industry, made this special provision. Under section 6(b)(2) periods other than a workweek may be used, in accordance with established customs in the industry, as the basis for calculating wages for covered seamen provided the wages equal the compensation at the applicable minimum hourly rate which would be due to the employee for his hours actually spent on duty in the period. This would mean that the wage period may properly cover, for example, the period of a month or of a voyage so long as the seaman receives at the appropriate time compensation at least equal to the prescribed minimum rate for each compensable hour in that pay period. (See also $ 531.26 of this chapter concerning requirements of other laws governing calculation of wages and frequency and manner of payment.) To illustrate, where seamen have customarily been paid monthly under an arrangement to perform seamen's duties during stipulated periods and to be off duty during stipulated periods during the month, if such a seaman works 300 hours during the month and receives his monthly compensation in an amount equal to a payment for that number of hours at the applicable minimum rate, there would be compliance with the requirements of section 6(b)(2). The fact that this seaman works a varying number of hours during the weeks comprising the monthly period or that the monthly compensation is disbursed in two or four partial payments to the seaman during the month would not warrant a contrary conclusion. Section 783.41 BOARD AND LODGING AS
WAGES The wages for the period covered by the wage payment include all remuneration for employment paid to or on behalf of the employee for all hours actually on duty intended to be compensated by such wage payment. The reasonable cost or fair value, as determined by the Secretary of Labor pursuant to section 3(m) of the Act, of board and lodging furnished the employee during such period, if customarily furnished by the employer to his employees, is also included as part of the wages for the actual hours worked in the period (see $ 783.16). IIowever, the cost of board and lodging would
COMPUTATION OF WAGES AND HOURS
Section 783.43 COMPUTATION OF SEA
MAN'S MINIMUM WAGE.
not be included as part of the wages paid to the employee to the extent it is excluded from the employee's wages under terms of a bona fide collective bargaining agreement applicable to such employee, whether or not customarily furnished to the employee. Where such an exclusion is not provided for in any bona fide collective bargaining agreement applicable to the employee, the reasonable cost or fair value thereof, whichever is appropriate, as determined in accordance with the standards set forth in the regulations in Part 531 of this chapter, is included as part of the wage paid to such employee. Part 531 of this chapter also contains the official regulations and interpretations of the Department of Labor concerning the application of section 3(m) to other facilities as well as board and lodging furnished to an employee.
Section 783.45 DEDUCTIONS FROM
standing by, but not including off-duty periods which are provided pursuant to the employment agreement)". The Act in this portion of section 6(b)(2) is reflecting concepts that are well established in the law, and existing precedents (in such cases as Armour & Co. v. Wantock, 323 U.S. 126; Skidmore v. Swift & Co., 323 U.S. 134; Steiner v. Mitchell, 350 U.S. 247; Mitchell v. King Packing Co., 350 U.S. 260; Tennessee Coal, Iron & R. Co. v. Muscoda Local N. 123, 321 U.S. 590; and General Electric Co. v. Porter, 208 F. 2d 805, certiorari denied, 347 U.S. 951, 975) would be applicable in determining what time constitutes hours worked. See also the general discussion of hours worked in Part 785 of this chapter.
Section 783.47 OFF-DUTY PERIODS.
Off-duty periods include not only such periods as shore leave but also generally those hours spent by a seaman on the vessel outside his watch or normal or regular working hours and his standby periods during which hours he is not required to perform and does not perform work of any kind but is free to utilize his time for his own purpose. The fact that during such off-duty periods the employee is subject to call in case of emergency situations affecting the safety and welfare of the vessel upon which he is employed, or of its passengers, crew, or cargo or for participation in lifeboat or fire drills will not render such off-duty periods, excluded by employment agreement applicable to the employee, “hours worked". Responding to such calls, however, as well as the performance of work in response thereto constitute compensable work time. For further and more detailed discussion on what generally are regarded as "hours worked" under the Act, see Part 785 of this chapter.
Where deductions are made from the wages of a seaman subject to section 6(b) of the Act, consideration must be given as to whether or not such deductions are permitted to be made when they result in the seaman receiving cash wages which are less than the applicable minimum wage rate for each hour actually on duty during the period covered by the wage payments. Such considerations are to be based upon the principles and interpretations governing such deductions. These are set forth and discussed in Part 531 of this chapter. The methods of paying the compensation required by section 6 and the application thereto of the provisions of section 3 (m) of the Act, which are set forth and explained in the said Part 531, are applicable to seamen subject to the minimum wage provisions of the Act.
Section 783.46 HOURS WORKED. The provisions of section 6(b)(2) of the Act require that a seaman employed on an American vessel be paid wages equal to compensation at not less than the prescribed minimum wage rate for all of the hours the employee "was actually on duty (including periods aboard ship when the employee was on watch or was, at the direction of a superior officer, performing work or
APPLICATION OF THE EXEMPTIONS
Section 783.48 FACTORS DETERMINING
APPLICATION OF EXEMPTIONS. The application of the exemptions provided by section 13(a) (14) and section 13(b) (6) of the Act is determined in accordance with their language and scope as explained in SS 783.24, 783.25, and 783.27, with regard to the principles
= well dents tock, C.S. chell essee .321 rter, 951, that
Lich ose Ede US he em ne ch 11
set forth in $ 783.20 and the legislative history which is narrower in scope. For example, if and judicial construction outlined in $$ 783.28– part of his work is exempt from both minimum 783.30. Whether a particular employee is wage and overtime compensation under one exempt depends on what he does, as explained
section of the Act, and the rest is exempt only in 88 783.31-783.37. Whether he is exempt from the overtime pay requirements under secfrom the overtime pay provisions only or from
tion 13(b) (6), the employee is exempt that minimum wages as well depends on whether his week from the overtime pay provisions, but not employment is or is not on an American vessel, from the minimum wage requirements. which is determined as indicated in SS 783,38
Section 783.51 SEAMEN ON A FISHING 783.42. In addition, sections 13(a) (14) and
VESSEL. 13(b) (6), like other exemptions in the Act, apply on a workweek basis, as mentioned in In extending the minimum wage to seamen $ 783.43 and explained in $$ 783.49 and 783.50. on American vessels by limiting the exemp
tion from minimum wages and overtime Section 783.49 WORKWEEK UNIT IN AP
provided by section 13(a) (14) of the Act to PLYING THE EXEMPTIONS.
"any employee employed as a seaman on a vessel The unit of time to be used in determining
other than an American vessel," and at the same the application of the exemption provided by
time extending the minimum wage to "onshore” section 13(b) (6) or 13(a) (14) to an employee
but not "offshore” operations concerned with is the workweek. (See Overnight Transporta aquatic products, the Congress, in the 1961 tion Co. v. Missel, 316 U.S. 572; Sternberg
Amendments to the Act, did not indicate any Dredging Co. v. Walling, 158 F. 2d 678.) This intent to remove the crews of fishing vessels is the period used in determining whether a engaged in operations named in section 13(a) substantial amount of non-seaman's work has (5) from the exemption provided by that secbeen performed so as to make the exemption
tion. The exemption provided by section 13 inapplicable. See $ 783.37. A workweek is a (a) (14), and the general exemption in section fixed and regularly recurring interval of 7 con
13(b) (6) from overtime for "any employee secutive 24-hour periods. It may begin at
employed as a seaman” (whether or not on an any hour of any day set by the employer
American vessel) apply, in general, to emand need not coincide with the calendar week. ployees, working aboard vessels, whose services Once the work week has been set it commences are rendered primarily as an aid to navigation each succeeding week on the same day and at the (S$ 783.31-783.37). It appears, however, that same hour. Changing of the work week for the it is not the custom or practice in the fishing purpose of escaping the requirements of the industry for a fishing vessel to have two crews, Act is not permitted.
namely a fishing crew whose duty it is primarily
to fish and to perform other duties incidental Section 783.50 WORK EXEMPT UNDER
thereto and a navigational crew whose duty it ANOTHER SECTION OF THE ACT.
is primarily to operate the boat. Where, as Where an employee performs work during is the typical situation, there is but one crew his work week, some of which is exempt under which performs all these functions, the section one section of the Act, and the remainder of 13(a)(5) exemption from both the minimum which is exempt under another section or sec wage and the overtime provisions would apply tions of the Act, the exemptions may be com to its members. For a further explanation of bined. The employee's combination exemption the fishery exemption see Part 784 of this is controlled in such case by that exemption chapter.