#### Spinner, Appellant, *v.*The Waterways Fuel & Dock Co., Appellee.

(No. 6060

Decided January 12, 1942.)

*Messrs. Ciarle & Robinson,*for appellant.

*Mr. Alfred Pfau,*for appellee.

Matthews, P. J.

The question presented by this-appeal is whether the plaintiff was employed by the-defendant as a seaman within the meaning of the exception contained in the Fair Labor Standards Act of' Congress (52 Stats, at L., 1060, Title 29, Section 201 *et seq.,*U. S. Code). The act imposes limitations upon the power of employers and employees to contract as to "wages and hours of service and establishes minimum wages and maximum hours in favor of employees engaged in interstate commerce, or in the production of goods for such commerce, but by Section 213 expressly excepts from the operation of the act “any employee employed as a seaman.”

The plaintiff was employed as a watchman to guard a digger boat. This boat was equipped with a boiler, *122an engine, a crane operated by the engine nsed in unloading coal from other vessels or barges, and a winch and siphon, also operated by the engine. His duties were to keep the steam up in the boiler during the night, put lanterns on coal barges anchored to it, and, .generally, to protect the property under his charge. This digger boat was anchored to the shore of the Ohio river by means of cables and it was a part of the duty •of the plaintiff to manipulate these cables by means of the winch and engine as the stage of the river rose ■or fell, so as to protect the boat. In doing this the boat would be moved not more than 75 feet. At one time it was moved not to exceed 200 feet in order to assist the United States government in transferring some coal, but the plaintiff took no part in this operation. It was also a part of the plaintiff’s duty to siphon water from the boat and barges anchored to it. The •engine was used in this process. It was also a part of his duty to tie and untie coal barges to the digger boat as occasion arose.

The digger boat with its equipment was designed to be, and was used in connection with a hopper float in loading and unloading coal from barges.

The plaintiff was a night watchman and it was only rarely that the digger boat was in operation while he was present, and when so in operation it was no part •of his duty to assist. He had no governmental license of any sort.

It does not clearly appear when the defendant acquired this equipment, but it does appear that the plaintiff was employed to guard it for more than six months. Except as already indicated, it had never been moved from its moorings during all the time the defendant owned it. It was not equipped with any appliances for navigation.

There is no doubt that in the operation of this crane *123and hopper in loading and unloading coal barges, those so employed were frequently, and perhaps usually,, engaged in interstate commerce and were subject to the power of Congress .to regulate such commerce.

As the Ohio river is a navigable stream of the United States, their activities may have come within the admiralty jurisdiction of the United States. Power to act clearly existed. So the sole problem is to determine the extent and meaning of the exercise by the Congress of an undoubted power.

The plaintiff’s activities brought him within the operation of the Pair Labor Standards Act unless he was a seaman and, therefore, fell within the express, exception.

Specifically, our problem is to determine, if we can, the intent of Congress in the use of the word “seaman” in Section 213 of the Pair Labor Standards Act.

The lexicon or common-law definition of a seaman is: “A sailor; a mariner; one whose business is navigation. * * *

“The term seaman, in its most enlarged sense, includes the captain as well as other persons of the crew; in a more confined signification, it extends only to the common sailors.” 3 Bouvier’s Law Dictionary (Rawle’s 3rd Rev.), 3022.

According to this definition the test of a seaman is the nature of his work. If he is engaged in conducting* a vessel or ship over water, he is a seaman while so-doing. Therefore, the ship or vessel must be in motion, or capable of motion, and regarded legally as in motion, in order that those employed in its use may be regarded as seamen. This does not mean that such a person while otherwise employed is entitled to the rights and subject to the duties and disabilities of a seaman.

A night watchman is not necessarily a seaman. It *124•depends on his duties as a watchman. If his duties pertain to a ship or vessel used or capable of use in navigation, he is a seaman within the lexicon definition of that term.

It is manifest that without a ship or vessel there can be no seaman. In 1 Benedict on Admiralty (6 Ed.), 111 *et seq.,*Section 53, it is said:

“Under the name *‘navis,*ship,’ says Malynes, ‘is all kind of shipping understood, and *navigium,*vessel, is a general word, many times used for any kind of navigation. So that it is not of any moment to describe the diversity of ships, as carracks, galleons, galleasses, gallies, centauries, ships of war, fly boats, busses, and all other kinds of ships.and vessels.’ Each nation has its mode of construction, rigging, and navigation, and its peculiar kind of craft; but all are ships and vessels that are manned by a master and crew and are devoted to the purpose of transportation and commerce, whether in the fisheries, or in passenger or pleasure service or in trade. A scow, a lighter, a ferry-boat, and probably a raft or timber ship, under certain circumstances, would be held to be a ship or vessel and subject to the same maritime law as other vessels. It is not the form, the construction, the rig, the equipment, or the means of propulsion that establishes the jurisdiction, but the purpose and business of the craft, as an instrument of naval transportation.”

The statutory definition of vessel makes it include “every description of water craft or other artificial contrivance used, or capable of being used, as a means of transportation on water.” Title 1, Section 3, U. S. Code.

So we finally arrive at the crux of the question raised by this record, and that is, whether this equipment (digger boat and hopper) anchored to the shore of the Ohio river was in legal contemplation a ship or *125vessel, that is, a contrivance used or capable of being-used as a means of transportation on water.

This test has been applied to crafts of many names and descriptions. The result has depended on the facts and circumstances. The cases are collected in 1 Benedict on Admiralty (6 Ed.), at page 112 *et seq.*It would serve no purpose to discuss these cases. The test has been uniform. Skill in applying- it may not have been. Most of the cases were decided by inferior federal courts. In 1 Benedict on Admiralty (6 Ed.), at 112, the author, after referring to certain cases holding certain watercraft to be vessels, says that they were probably overruled by *Evansville & B. G. Packet Co.*v. *Chero Cola Bottling Co.,*271 U. S., 19, 70 L. Ed., 805, 46 S. Ct., 379. That case related to a wharf boat that had been anchored at Hopefield, Arkansas, from 1884 to 1901, when it was towed to Madison, Indiana, where it was overhauled, then towed to Louisville, Kentucky, where it was used, and then, in 1910, it was towed to Madison, Indiana, for repairs again, and then towed to Evansville, Indiana. Each winter it was towed to a harbor on the Green river to protect it from ice. Appellant acquired it in 1915. While this wharf boat was in use at Evansville, it was secured to the shore by cables and remained at the same point except when moved to conform to the stage ■of the river. Other details appear in the report. As its name indicates it was used principally to transfer freight from boats to shore, and vice versa, and also for storage. The wharf boat sank and the appellee’s merchandise thereon was damaged. The action was to limit the owner’s liability according to admiralty law. The decision depended upon whether the wharf boat was a vessel. The court held it was not a vessel, and that the owner was not entitled to have its liability limited. At page 22 the court said:

*126“The only question presented is whether appellant’swharfboat was a ‘vessel’ at the time it sank. It was-an aid to river traffic, but it was not used to carry freight from one place to another. It was not practically capable of being used as a means of transportation. It served at Evansville as an office, warehouse- and wharf, and was not taken from place to place. The-connections with the water, electric light and telephone systems of the city evidence a permanent location. It, performed no function that might not have been performed as well by an appropriate structure on the-land and by a floating stage or platform permanently attached to the land. It did not encounter perils of navigation to which craft used for transportation are exposed. There appears to be no reason for the application of the rule of limited liability. Many cases-involving a determination of what constitutes a vessel within the purview of the statute have been before the courts; but no decision has been cited, and we have-found none, that supports the contention that this-wharf boat was a vessel. Cf. *Cope*v. *Valette Dry Dock Co.,*119 U. S., 625, 629; *The Robert W. Parsons,*191 U. S., 17, 30; *Ruddiman*v. *A. Scow Platform,*38 F., 158; *Patton-Tully Transportation Co.*v. *Turner,*269 F., 334, 337.”

What the court said in that case is equally pertinent,. *mutatis mutandis,*to this digger boat and hopper.

The plaintiff was not engaged in navigating this-digger boat and hopper. They were not navigated by anyone and were never intended for any such use. The-navigation was done by the defendant’s customers who-brought their barges there to avail themselves of the equipment for loading, unloading, and transferring cargoes.

The plaintiff lived on the opposite shore and usually reached his place of employment by rowing across in *127his own boat. He also testified that he had worked many years on or about the Ohio river. He was, in a colloquial sense, a river man. But those facts are of no importance in determining whether he was employed as a seaman by the defendant. That depended upon the facts and circumstances of his employment and the nature of his work — not upon his prior activities or his choice of the means of reaching his place of employment.

Our conclusion is that the plaintiff was not employed as a seaman and, therefore, that he is entitled to the benefits of the Fair Labor Standards Act.

The judgment is reversed, and as it appears from the record that the plaintiff is entitled to final judgment, such judgment will be entered by this court and remanded for execution.

*Judgment reversed.*

Hamilton and Ross, JJ., concur.