
    432 F. 2d 462
    CHALMERS O. DETLING, ET AL. v. THE UNITED STATES JOSEPH FRANCE, ET AL. v. THE UNITED STATES
    No. 333-64
    No. 353-66
    [Decided October 16, 1970]
    
      
      David Scribner, attorney of record, for plaintiffs. Joel G. Glamtein, of counsel.
    
      Thomas W. Peterson, with, whom was Assistant Attorney General William D. Buelcelshaus, for defendant.
    Before CoweN, Chief Judge, Lakamoke, Dureee, Davis, ColliNS, SkeltoN and Nichols, Judges.
    
   Per Curiam :

These cases were referred to Trial Commissioner Lloyd Fletcher with directions to make findings of fact and recommendation for conclusions of law under the order of reference and Buie 134(h). The commissioner has done so in an opinion and report filed on April 28, 1970. On May 26, 1970, defendant filed a notice of intention to except to the commisioner’s report. However, on July 28, 1970, defendant filed a motion to withdraw its notice of intention to except which was allowed on August 14, 1970. In its motion filed July 28, 1970, defendant requested that the court adopt the commissioner’s opinion, findings of fact and conclusion of law. On August 6, 1970, plaintiffs filed a motion requesting that the court adopt the commissioner’s opinion, findings and recommended conclusion of law. Since the court agrees with the commissioner’s opinion, findings and recommended conclusion of law, as hereinafter set forth, it hereby grants the motions of the parties and adopts the same as the basis for its judgment in these cases without oral argument. Therefore plaintiffs are entitled to recover and judgment is entered for plaintiffs in accordance with the opinion with the amounts of recovery to be determined in further proceedings pursuant to Rule 131 (c).

OPINION OP COMMISSIONER

Fletcher, Oommissioner:

In these consolidated cases the court is called upon to determine whether plaintiffs are entitled to overtime wages for certain periods of their port watches aboard defendant’s vessels. For the reasons stated below, it is my opinion that plaintiffs are entitled to recover although not to the full extent claimed by them.

The detailed facts are set forth in the findings below. In summary, they show that, during the periods involved, plaintiffs were so-called wage board employees of the Corps of Engineers. Each held a Merchant Marine engineer license issued by the United States Coast Guard. They were employed by the Corps to serve as engineer officers aboard the dredge Essayons, the mission of which was the dredging of river and harbor channels in the North Atlantic Division of the Corps. The dredge was in operation at all times except when undergoing repairs and during two 48-hour periods over the Christmas and New Year’s holidays. It is the latter periods which have given rise to the present dispute since, during those two 48-hour periods when the vessel is either tied to a dock or anchored in a harbor, the Corps requires that a so-called “port watch” be maintained. Typically, the port watch begins at 12 noon of the day before the holiday and ends at 12 noon of the day following the holiday.

During this 48-hour port watch period, the Corps required that a licensed marine engineer be aboard the vessel for the entire period. The engineer designated for this duty was generally one who at the commencement of port watch had not yet completed his normal 10-day tour of duty so that the standard two days of port watch were usually part of his normal 10-day tour. There was a difference, however, between the hours of watch on regular duty and those on port watch.

On a regular 10-day tour, an engineer worked, and was paid, for eight hours per day which watch was divided into two four-hour periods on duty, each being separated by an eight-hour off-duty period. At the end of each four-hour duty period, the engineer on duty was relieved by another licensed engineer.

By contrast, on port watch, the engineer worked, and was paid, for a duty period of eight consecutive hours per day. For the remaining 16 hours of the day he was considered by the Corps to be “off duty” and hence not entitled to any pay for those hours. The crucial fact, however, is that, unlike a regular watch period, at the conclusion of his eight-hour tour on port watch, he was not relieved by another licensed engineer, and he was required to remain aboard the vessel for the purpose of responding to any call for help from unlicensed engine room personnel on duty in case of emergency.

The engineer plaintiffs contend that during this so-called “off duty” period of 16 hours, they are actually on a standby status for defendant’s benefit and continue to bear the ultimate responsibility for the operation of the engine room equipment. Although the record does not indicate it has ever happened, plaintiffs further say ‘that in the event of an equipment malfunction during this “off duty” period, the Coast Guard could, and probably would, move to suspend or revoke their engineer license if the malfunction were traceable to their negligence or incompetence.

Accordingly, plaintiffs maintain that they are entitled to overtime pay for all (or, in the alternative, for a part) of these 16 hours of port watch when, even though admittedly not working, they were on standby status for their employer’s benefit. Under the applicable statutes and court decisions, plaintiffs are clearly correct in their alternative argument, and it is difficult, indeed, to understand the defendant’s contention to the contrary.

5 U.S.C. §§ 673(c) and 913 (1964 ed.) which were codified in 1966 as 5 U.S.C. 5544 and 6102 provide in pertinent part as follows:

§ 673c Restoration of wage rates/ adjustment of weekly rates and hours of employees.
The weekly compensation, minus any general percentage reduction which may 'be prescribed by Act of Congress, for the several trades and occupations which is set by wage boards or other wage-fixing authorities, shall be re-established and maintained at rates not lower than necessary to restore the full weekly earnings of such employees in accordance with the full-time weekly earnings under the respective wage schedules in effect on June 1, 1932: Provided, That the regular hours of labor are established at not more than eight per day or forty per week, but work in excess of such hours shall be permitted when administratively determined to be in the public interest: Provided further, That overtime work in excess of eight hours per day or in excess of forty hours per week shall be compensated for at not less than time and one-half the basic rate of compensation, except that employees subject to this section who are regularly required to remain at or within the confines of their post of duty in excess of eight hours per day in a standby or on-call status shall be paid overtime rates only for hours of duty, exclusive of eating and sleeping time, in excess of forty per week. * * *
# # ❖
§ 913. Paymmt of overtime to wage-hoard employees; computation.
Employees whose basic rate of compensation is fixed on an annual or monthly basis and adjusted from time to time in accordance with prevailing rates by wage boards or similar administrative authority serving the same purpose shall be entitled to overtime pay in accordance with the provisions of section 673c of this title. * * *

Section 673(c) clearly requires the payment of overtime wages to employees “required to remain at * * * their post of duty in excess of eight hours per day in a standby or on-call status * * * for hours of duty, exclusive of eating and sleeping time * * This statutory language fits plaintiffs’ case “like a glove.” Essentially, the defendant’s only answer is that, during the 16 hours of port watch when he is not actually working, the licensed engineer is “off duty” because he is entitled to spend those hours entirely as he pleases provided, only, that he never leave the vessel. It is the proviso upon which one chokes in trying to understand the defendant’s argument. If the requirement that the engineer remain aboard the vessel for those 16 hours of so-called “off duty” time is not “a standby or on-call status” within the meaning of section 673(c), then words have lost all meaning. Defendant’s contention that during those 16 hours, the licensed engineer is in an off-duty status is contradicted by the fact that he has not been relieved by another licensed engineer and that, unlike off-duty unlicensed engineroom personnel, he is not free to leave the dredge. The only reasonable conclusion is that the engineer occupies a standby status during those hours, and to the extent they exceed 40 hours per week, the statute requires that he be paid overtime excepting, however, his eating and sleeping times. The facts show that those times totaled about eight hours per day in the case of these plaintiffs while standing port watches, and under the statute those eight hours per day are not compensable. See, Rapp v. United States, 167 Ct. Cl. 852, 866, 340 F. 2d 635, 642 (1964). But, the remaining eight hours of the 16 standby hours are compensable, and plaintiffs are entitled to recover overtime wages to that extent.

While the foregoing observations may well be considered as dispositive of these cases, mention should be made of several decisions which give further support to the conclusion that plaintiffs are entitled to recover. In the first place, it is clear that plaintiffs were required to remain aboard the Essayons at all times during port watch to the end that they would be immediately available in case of an emergency. Hence, their time aboard (except for sleeping and eating) was spent for the benefit of the defendant, and as the Supreme Court has stated in Armour & Co. v Wantock, 323 U.S. 126, 133 (1944) :

Of course an employer, if he chooses, may hire a man to do nothing, or to do nothing but wait for something to happen. Kef raining from other activity often is a factor of instant readiness to serve, and idleness plays a part in all employments in a stand-by capacity. Readiness to serve may be hired, quite as much as service itself, and time spent lying in wait for threats to the safety of the employer’s property may be treated by the parties as a benefit to the employer. Whether time is spent predominantly for the employer’s benefit or for the employee’s is a question dependent upon all the circumstances of the case.

Cases from this court which lend support to the conclusion arrived at in this opinion are Winsberg v. United States, 120 Ct. Cl. 511, 98 F. Supp. 345 (1951), Goetke v. United States, 136 Ct. Cl. 756, 145 F. Supp. 913 (1956), and Rapp v. United States, sufra. Rapp, in particular, stands for the proposition that employees who are required to remain overtime on their agency’s premises in a standby status are entitled to compensation therefor even though they may not be called upon to perform any actual work during the standby period. That principle is clearly applicable in plaintiffs’ favor here.

Finally, the defendant contends that plaintiffs’ claims should be barred by laches. In a case such as this, however, where the defendant can show no prejudice inuring to it as a result of plaintiffs’ failure to complain more promptly, the equitable doctrine of laches does not apply. Winsberg v. United States, supra, at 120 Ct. Cl. 511, 517, 95 F. Supp. 345, 346-47. See, also, Albright v. United States, 161 Ct. Cl. 356 (1963) where the court explained the doctrine at pp. 362-363:

Laches has been raised as a defense to pay actions in ■this court on numerous occasions, primarily in the areas of wrongful separation, reduction in rank, and overtime pay. While we have, on occasion, allowed the defense in the case of wrongful discharges [citing cases], it has not been allowed in actions for overtime pay [citing cases]. The reason for this is defendant may be prejudiced by the delay in one case, but not in the other. Where the defense has been allowed, the defendant has been injured because it has employed another to replace the discharged employee and, thus, has been required to pay two salaries for a period of time, which it would not have been required to pay had the plaintiffs filed their suits more promptly. This factor is lacking in the cases involving overtime. [Emphasis supplied.]

In summary, plaintiffs are entitled to recover eight hours per day overtime for all port watches to which they were assigned within six years preceding the dates of filing of their respective petitions. The exact amounts of recovery must be determined in further proceedings under Buie 131 (c).

FINDINGS on Fact

1. At various times relevant to this case plaintiffs were wage board employees working on various dredges operated by the Corps of Engineers in the capacity of marine engineers. Each of them was required to, and did hold, a Merchant Marine engineer license (also sometimes called a “certificate of service”) issued by the United States Coast Guard. The function of the various dredges on which the plaintiffs served was to deepen, widen, and maintain desired depths of channels in rivers and harbors.

2. The dredge Essayons operated every day of the year except for a 48-hour period at Christmas and another 48-hour period at New Years when the ship was tied up at a dock or at anchorage in a harbor. During each of those 48-hour periods a so-called port watch was required to be maintained. The port watch usually commenced at approximately noon on the day before Christmas or New Year’s Day and terminated at approximately noon on the day after Christmas or New Year’s Day.

3. During port watch one licensed engineer and one licensed deck officer were required by the Corps of Engineers to remain aboard the ship for the entire port watch period. They are considered to be in joint command of the vessel during the Master’s absence, each bearing primary responsibility for bis particular department. Several unlicensed en-gineroom personnel, known as oilers and firemen, also worked rotating shifts during the entire port watch under the general supervision of the licensed engineer. These unlicensed personnel were not ordinarily required to remain aboard the vessel except during their assigned duty shift of eight hours. The licensed engineer, who was not allowed to leave the vessel, was paid for an eight-hour active duty period out of each 24-hour period of a 48-hour port watch and was also entitled to be paid if he was required to perform any routine duty or emergency work outside the eight-hour period for which he was receiving compensation. However, despite the requirement that he remain aboard the vessel for the entire period of the port watch, he received no compensation for this period of standby or on-call status. As licensed engineers, all of whom have served on port watches at various times, plaintiffs now seek compensation for the entire 48 hours of port watch or, in the alternative, overtime compensation for an additional eight hours in each 24-hour period of port watch.

4. Counsel for the parties agreed, with the approval of the commissioner, that a trial would be necessary only with respect to the plaintiffs in the case of Detling, et al. v. United States, and that the resolution of the issues in the Detling case will resolve the issues in the companion and consolidated case of France, et al. v. United States. The parties also agreed that the trial would be limited to the question of liability and that the determination of the amount of recovery, if any, would be reserved for further proceedings under then Buie 47 (c), now Buie 131 (c).

5. During a portion of the claim period, the Essayons was dredging in either Norfolk or Baltimore Harbor, and it tied up for the 48-hour port watch period for Christmas and New Year’s Day in those locations. None of the plaintiffs lived in that area. Four of them lived in New York and the other in Wilmington, North Carolina. However, the Essayons has also operated in New York Harbor, and port watches were stood at Caven Point, New Jersey.

6. The plaintiffs serving aboard the Essayons normally worked two so-called administrative workweeks back to back and hence worked 10 consecutive days and were off duty four days. This is the maximum number of days that a Government employee can work consecutively without becoming entitled to overtime pay, assuming he has not worked more than eight hours in a given day or more than 40 hours during the first five days. As a condition of their employment, plaintiffs were required to live continuously aboard the dredge during the 10-day tour of duty, except that, when off duty, and subject to minimum staffing requirements, they could go ashore where launch service was available. This requirement is set forth in job announcements issued by the Philadelphia District of the Corps of Engineers which has operational control of the Essayons.

7h During their regular 10-day tour of duty, the plaintiffs normally worked and were paid for eight hours which were usually divided into two four-hour periods on duty (i.e., a watch) which were separated by an eight-hour period off duty. During those four-hour watch periods, the licensed engineer cannot leave the engine spaces except to check operating equipment located in other areas, and he is fully responsible for supervision of the lower ranking personnel working therein. He is also responsible for the proper and continuous operation of all machinery and the production of power during those periods.

8. Since the dredges of the Corps of Engineers are public vessels, they are exempt from Coast Guard inspection and regulation by 46 U.S.C. § 362 (1964 ed.). However, the policy of the Corps of Engineers is to have all of its dredges, including the Essayons, certified by the Coast Guard. It is also the policy of the Corps of Engineers that the engineers serving aboard its dredges must have obtained Coast Guard licenses in their various ratings. The Coast Guard certificate issued to the vessels imposes a requirement that the dredges have a minimum number of crewmen aboard while navigating and dredging. However, the minimum manning requirement imposed by the Coast Guard inspection certificate does not apply when the vessel is tied up in a port watch situation since the Coast Guard manning requirements are directed only towards safe navigation of vessels. A vessel which is in a port watch situation has all of its engine room equipment in operation except that its propulsion units are shut down, and thus the vessel is neither navigating nor dredging. However, since important equipment is operating, the Philadelphia District of the Corps of Engineers itself imposes a minimum staff requirement that one engineer and one deck officer be aboard at all times during a port watch period.

9. Because they are required as a condition of employment to have licenses issued by the Coast Guard, the engineers who serve aboard the Essayons serve under those licenses at all times including the entire period that they are on port watch. As holders of such licenses, plaintiffs may be subjected under the provisions of 46 U.S.C. § 239 to disciplinary proceedings by the Coast Guard with a view to suspension or revocation of their licenses for acts of incompetency or misconduct whether on duty or not. However, in the case of personnel serving aboard the Essayons, which is a public vessel, the Coast Guard would not normally initiate such proceedings unless requested to do so by the Corps of Engineers. To the recollection of a long-time supervisory employee of the Corps, disciplinary action by the Coast Guard bas been requested on only two occasions.

10. Prior to the latter part of 1964, no launch service was provided from the Essayons to the shore while the dredge was operating. Subsequent thereto launch service to and from shore was provided once each day during daylight hours, weather, sea conditions, location, and other conditions permitting. Such service was provided as an auxiliary benefit and not as a matter of right since residence aboard the dredge was a condition of employment. After the daily launch service was provided, whether an engineer who was off duty could go ashore during the normal operations of the dredge depended on whether the engineers aboard the dredge exceeded the minimum manning requirements, whether space was available, and whether the launch’s departure and return was in accord with his off-duty time. The minimum manning requirements imposed by the certificate which the Coast Guard issued the Essayons are applicable when the ship is navigating and/or dredging. Those requirements were such that usually an engineer aboard the Essayons could not go ashore even when he was off duty because to do so would reduce the number of engineers on board below the minimum manning requirements. Of the two plaintiffs who testified, one, who had been assigned to the Essayons since June 1958, had never gone ashore during the off-duty interval between his watches while the ship was operating; and the other, who had served on the Essayons for nine years commencing in 1949, had gone ashore only once while off duty.

11. The defendant compensated plaintiffs for their port watch tours of duty pursuant to Army Corps of Engineers Regulations, Corps of Engineers Manual, EM 690-7-102 which provides in pertinent part:

Port Watch Practices: (4) Port Watch personnel stand one 8-hour or two 4-hour watches per 24-hour period, as a part of their regular 40-hour tour of duty, and are required to remain aboard the plant on a stand-by basis for the remainder of the fort watch.
Method of Payment: 8 hours at regular rates, per 24-hour period, plus overtime for any additional time worked. (Emphasis supplied.)

12. The engineer assigned to port watch is normally one who has not completed his 10-day tour of duty, and thus the standard two days of port watch are usually part of that man’s regular 10-day tour of duty. An engineer on port watch is paid for eight hours during the period from 8 a.m. to 4:30 p.m. in each 24 hours of port watch. Consequently, he is supposed to perform any necessary duties during that period, e.g., making log entries, monitoring, inspecting, and repairing equipment. During the remaining 16 hours of a port watch day, the engineer on port watch is not expected or required to perform any duties unless called in an emergency. He is free to spend that time in any way he chooses so long as he remains aboard the ship to respond in case of emergency. However, unlike the procedure followed in the case of the regular watches when the vessel is navigating or dredging, at no time during a port watch is the engineer on duty “relieved” from duty by another engineer.

13. During his regular watch, the licensed engineer bears primary responsibility for the engine equipment but is freed from that responsibility once he has been relieved by another licensed engineer. During a port watch, however, the engineer officer has joint command of the vessel with a deck officer. Although the engineer on port watch normally performs physical duties for only an eight-hour period per port watch day, he is required to remain aboard the vessel in standby status for the remaining hours, during which time primary responsibility for the engine equipment is borne by three unlicensed personnel. Ultimate responsibility, however, must necessarily remain with the licensed engineer until he is relieved by another licensed engineer, and the plaintiffs appear to have understood this. If, for any reason, he were to become unable to discharge that responsibility during any part of the entire port watch, he should obtain such relief at once, failing which the Corps could, and should, request the Coast Guard to institute disciplinary action against his license.

14. No plaintiff has ever been called upon to perform an emergency task during any of the port watch periods involved in this action, and an examination of the log books, where any abnormal operation of machinery should be entered, revealed no indication that any emergency had arisen on any port watch during the period in suit.

15. Meals and quarters are furnished plaintiffs free of charge aboard the Essay ons. Each engineer has his own room. Some of the rooms contain a private bath and others have an adjoining bath between two rooms which is shared by the engineers occupying those two rooms. Their quarters are comfortable. The Essayons is equipped with a galley and three hot meals are served daily including the period when a port watch is being maintained.

With permission of the Master or Chief Engineer, an engineer on port watch may bring his wife and children aboard at any time during the entire port watch period. At least one of the plaintiffs has brought his family aboard during a port watch.

16. Subsequent to 1963, the plaintiffs, or their union representative, voiced complaints that they were entitled to pay for the entire period of a port watch without regard to whether physical duties were performed during the period beyond eight hours per day. There is nothing in the record to indicate, however, that any plaintiff has ever complained that he did not get paid overtime pay for any specific tasks which he may have performed during that period of a port watch which the Corps considered as being off-duty time. The plaintiffs who testified were aware of the Corps’ pay policies with respect to port watches.

17. The two plaintiffs who testified both stated that during the hours of port watch for which they were not being paid, they nonetheless made periodic inspection tours of the engine compartments, each, of which required approximately 45 minutes to an hour. They also said that they inspected the change of watch every eight hours of the unlicensed personnel to determine the fitness of such personnel to stand their watch. However, these two plaintiffs admitted that their superiors in the Corps of Engineers never told them that they had to make any inspections during the hours of port watch in question, or that they should check the changing of the watch. They also admitted that they were never told by their superiors that they would be responsible for the equipment in the engine spaces during the hours of port watch when the Corps considered them as being off duty. Neither were they told that the Coast Guard might hold them responsible or discipline them for any damage to equipment in the engine room which occurred during those hours. Nonetheless, both men were of the opinion that their responsibility for the engine equipment ceased only when they were relieved by other licensed personnel.

There is no documentary evidence such as logs, time sheets, etc. that the chores which plaintiffs claimed they performed were actually performed, and none of the plaintiffs ever apprised their superiors of this either orally or by notations in a log book. Moreover, neither of these plaintiffs ever requested overtime pay for such tasks, although, on one occasion plaintiff Detling told the Chief Engineer of his intentions to discuss the matter with the union representative. Both knew that they were only getting paid for eight hours per port watch day and that they could get overtime for specific duties performed during the other hours of port watch for which they were not being paid.

As to eating “time,” it appears from the record that normally plaintiffs spent approximately one and one-half hours eating meals during the 24-hour “day” of a port watch. As to sleeping “time,” one plaintiff testified that his sleep had never been interrupted during a port watch. The other plaintiff testified that on rare occasions his sleep had been interrupted by a call from a “scared” oiler, but it does not appear that he put in an overtime claim for these few interruptions.

Ultimate Finding of Fact

18. During every 24 Fours of a port watch, plaintiffs physically worked eight hours for which they were paid. They were not paid for the remaining 16 hours although they were required for defendant’s benefit to stay aboard the vessel in a standby status in case of emergency. Accordingly, they are entitled to overtime pay for the period of their standby status less eight hours thereof devoted to sleeping and eating.

CONCLUSION OF Law

Upon the foregoing findings of fact and opinion, which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that plaintiffs are entitled to recover, and judgments are entered to that effect, with the determination of the amounts of recovery to be reserved for further proceedings under Rule 131(c) in accordance with this opinion. 
      
       By agreement of the parties, trial was held only with respect to the plaintiffs in Detling v. United States, No. 333-64, it being further agreed that resolution of the issues in the Detling case would resolve the issues in the companion ease of France v. United States, No. 363-66.
     
      
       The vessels involved are dredges operated by the Corps of Engineers. The plaintiffs in Detling all served aboard the dredge Fssayons which has been selected as a typical Corps of Engineers dredge.
     
      
       See footnote 2, supra.
      
     
      
       The Corps also required the continual presence aboard of one other licensed man, a deck officer. The Corps considers the engineer and deck officer to be in joint command of the vessel during port watch.
     
      
       During regular operation of the dredge, engineers worked administrative workweeks “back to back,” meaning they stood their assigned watches on 10 consecutive days and were off duty four days.
     
      
       These unlicensed personnel, known as oilers and firemen, were on duty for eight-hour shifts in the engine compartments. At the conclusion of their eight-hour watch, and upon being relieved by other unlicensed personnel, they were free to leave the vessel until their nest assigned watch.
     
      
      
         The dredges operated by the Corps of Engineers are “public vessels” and, as such, are exempt from Coast Guard inspection and regulation by 46 U.S.C. § 362. However, at the Corps’ election, these dredges are actually inspected and certificated by the Coast Guard. Also, at the Corps’ request, the Coast Guard has taken disciplinary action against the licenses of personnel serving aboard the vessels.
     
      
      For purposes of trial here, the Essayons has been selected as a typical Corps of Engineers dredge. The pertinent services of the plaintiffs in the Detling case were all performed aboard the Essayons.
      
     
      
       An anchorage 4s a certain area designated by the Coast Guard in the harbor where ships can ride at anchor.
     
      
       An administration workweek is a period of seven consecutive calendar days. In a “back to back” tour, tbe men are off duty for tbe first two days of tbe first administrative workweek, then go on duty for five days. They continue on duty for tbe first five days of tbe second administrative workweek and go off duty for tbe last two days of that week.
     
      
      
         Apparently, there is a one-half hour unpaid lunch period included in this eight and one-half hour period.
     
      
       Of course, in the event of an emergency of sufficient magnitude that the licensed engineer on duty could not handle it alone, the Master and the Chief Engineer have the power to require off-duty engineers to respond in which event those called would be entitled to be paid overtime wages.
     
      
       One of file plaintiffs testified that on a few occasions his sleep had been interrupted by a call from the oiler on duty who was “scared” some piece of equipment was not operating normally. It required five to 10 minutes for the engineer to inspect the equipment, and apparently he never found any malfunction.
     