ORDER

STEVEN D. MERRYDAY, District Judge.

Jeremy Selby (the "plaintiff") sues Yacht Starship, Inc., ("Starship") and Starship's president and chief executive officer, Troy Manthey, under the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq. (the "FLSA"). The plaintiff alleges that the defendants violated 29 U.S.C. § 207(a)(1) by failing to pay the plaintiff one and one-half times his regular rate of pay for each hour the plaintiff worked in excess of forty per week. Pursuant to Rule 56, Federal Rules of Civil Procedure, the defendants move for summary judgment (Docs. 30, 43), and the plaintiff responds (Docs. 34, 36) in opposition. Although admitting that the plaintiff worked in excess of forty hours during many workweeks and received no overtime pay, the defendants contend that the plaintiff was exempt from the FLSA overtime requirements under 29 U.S.C. § 213(b)(6) because he was "employed as a seaman." Alternatively, the defendants request partial summary judgment (i.e., a finding under Rule 56(d)(1)) that (1) liquidated damages under 29 U.S.C. § 216(b) are unavailable because in classifying the plaintiff as exempt the defendants acted in good faith and based on a reasonable belief that the classification complied with the FLSA and (2) the FLSA's normal two-year limitation (rather than the three-year limitation for "a cause of action arising out of a willful violation," 29 U.S.C. § 255(a)) applies because any violation occurred without either knowing or reckless disregard of the FLSA's requirements. At a minimum, the defendants are entitled to the requested partial summary judgment because the plaintiff stipulates that (as to those issues) the pertinent facts are not in dispute.

BACKGROUND

Starship operates dining and event cruises in and around Tampa Bay. When Starship employed the plaintiff, Starship operated two vessels, the 180-foot Yacht Starship and the 90-foot Lady Tampa Bay. The Starship vessels "made dining cruises for brunch, lunch, and dinner, as well as special event cruises for weddings, barmitzvas, and other special celebrations." Generally, Starship ran one or two cruises daily: a daily dinner cruise lasting about two and one half hours and (approximately every other day) a lunch cruise lasting about two hours. Typically, the Starship vessels "navigated throughout New Tampa Bay and Old Tampa Bay without voyaging beyond the Sunshine Skyway Bridge into the Gulf of Mexico," and the cruises generally departed from and returned to a dock in the Channelside section of Tampa.

Yacht Starship is registered with the United States Coast Guard (the "Coast Guard"). To legally operate and transport passengers on the water, Yacht Starship must maintain a certificate of inspection and a full marine crew. The vessel and marine crew must pass an annual inspection and test by the Coast Guard. To comply with applicable Coast Guard requirements, Starship staffs Yacht Starship with a marine crew comprising a captain, a first mate, two or three deck hands, and an engineer. Each marine crew member wears a uniform that identifies his position on the crew through stripes and logos. Starship classifies each marine crew member as exempt from overtime requirements under the FLSA's seaman exemption, and Starship notifies each marine crew member when hired of the classification.

The plaintiff worked for Starship and was classified by the defendants as a full-time marine crew member from June 6, 2003, to March 7, 2006. The plaintiff was hired as a deck hand; was promoted to assistant engineer on June 23, 2003, to engineer on May 24, 2004, and to chief engineer about June 20, 2005; and was discharged on March 7, 2006. During the pertinent period, the plaintiff served as engineer and chief engineer, and as a marine crew member he reported to the captain. The plaintiff generally served aboard the Yacht Starship (the "Starship") but occasionally assisted as a crew member on the Lady Tampa Bay.

Accounts of the plaintiff's training for his duties as engineer are obscure or disputed or both. However, as engineer and chief engineer, the plaintiff's responsibilities included preventive maintenance and very minor repairs on the vessel's engine and mechanical systems. Specifically, the engineer was required to perform preventive maintenance tasks appearing on engine room checklists and mechanical systems checklists. Manthey and Guardalabene state that the plaintiff generally performed the tasks enumerated on the checklists himself "but he had the ability to . . . delegate the duties to other crew members." However, the plaintiff insists that he shared these tasks equally or nearly equally with the deck hands. Accordingly, the plaintiff states that his promotion to engineer resulted in little change in his actual job duties, that he performed no duties in the engine room not also performed by the deck hands, that he possessed no special skill or knowledge about the engine room, and that he never helped repair the engine.

In any event, despite their different job titles, the Starship's marine crew members worked as a team, performed many of the same tasks, and (apart from the general subordination to the captain) observed no rigid distinction among ranks. Accordingly, in addition to his engine room and mechanical system responsibilities, the plaintiff performed the types of general maintenance, monitoring, and cleaning duties performed by the deck hands on the marine crew. These deck hand duties, detailed on Starship's "Deck Hand Job Description" (Doc. 31-2 at 10-12), included (1) cleaning public areas, windows, doors, walls, closets, fixtures, and hallways; (2) vacuuming public areas and hallways; (3) cleaning public restrooms before, during, and after cruises; (4) cleaning mirrors, stools, sinks, toilets, floors, and door partitions, and restocking sanitary supplies; (5) emptying and replacing garbage bags in garbage receptacles and assisting in removing trash from the vessel; (6) inspecting door locks to ensure they are in working order and alerting management to an unsecured or unsafe situation; (6) assisting in fuel supply and black water removal; (7) taking on potable water; (8) having a working knowledge of bridge equipment, alarms, and responses; (9) assisting in the receipt and delivery of supplies to storage areas; (10) assisting engineering with repair and maintenance of the vessel; (11) sharing responsibility for passenger safety at the gangway; (12) monitoring passengers and reporting unsafe conduct; (13) cleaning the navigation bridge; (14) inspecting safety chains; (15) washing and cleaning the exterior of the yacht, including windows and decks; (16) painting and maintaining the exterior of the yacht; (17) mooring the yacht; (18) establishing a gangway; (19) assisting the captain in the navigation of the vessel (e.g., calling out distances and informing the captain of the relative positions of other vessels); (20) providing assistance to other crew members and departments; (21) fulfilling "station bill" requirements and participating in safety drills; and (22) "all other duties as assigned, requested or deemed necessary by management."

Although admitting the accuracy of this list, the plaintiff describes his deck hand duties as consisting chiefly of "cleaning bathrooms, cleaning the hallway, boarding area chairs, floors, just general cleaning of the yacht" and states, "Generally, that's all we did." Even as chief engineer, the plaintiff "considered [himself] a janitor." The plaintiff spent about ninety percent of his work time aboard the vessel. However, the plaintiff's duties ashore included cleaning the parking lot (which generally took five to ten minutes every morning), occasionally mowing (with a "weedeater") a small strip of grass outside the dock, and performing odd jobs around the dock or in Starship's offices. These odd jobs were generally shared by crew members, and not every crew member performed them every day. Additionally, the plaintiff states, "I'd r[u]n to Home Depot at least three times a week for light bulbs, cleaning, this, whatever, anything that . . . pertain[ed] to the boat."

Occasionally, the plaintiff would also assist the food and beverage department in a staffing emergency by serving food or washing dishes for the duration of a cruise. The plaintiff estimates that this happened about once a month or twenty times in three years. Similarly, Jarrod Gay, who was a marine crew member along with the plaintiff in approximately 2005 and 2006 and for part of that time a Starship engineer, states that Gay and other members of the marine crew occasionally ("every once in a while") assisted the waiters and servers for half or three quarters of a shift. Darren McClintock, who was a Starship deck hand from about 2002 to 2004 and thereafter a mate until he became a captain (primarily for Starship's smaller yacht, the Lady Tampa Bay) around 2005, states that (a) generally a deck hand's responsibilities included "hospitality" duties as well as marine duties; (b) the hospitality or "non-marine" duties consisted in assisting the food and beverage department; and (c) marine crew members spent about half their working time performing the non-marine or "hospitality industry duties." Jackie Price, who was a Starship crew member between 2004 and 2006, states that (a) "almost every night" each marine crew member spent two hours or more assisting the food and beverage staff in serving food, washing dishes, and performing similar galley duty; (b) "we were more servers than marine crew half the time"; and (c) Price observed the plaintiff assisting the food servers "almost every night." Moreover, according to Price, mid-level management (because "always short on their staff") asked and expected marine crew members to perform these duties. The practice bothered Price because of the diversion of the marine crew from their primary responsibility — especially their responsibility to prevent passengers' falling overboard.

Like other employees aboard the vessel (both marine crew members and food and beverage employees), the plaintiff continually bore safety-related responsibility. For example, the plaintiff was responsible for:

(1) preventing and treating fires, including having knowledge of fire systems on the boat; (2) knowing how to utilize life saving equipment; (3) understanding the vessel layout (including exists, egress areas, refuge areas, and muster areas); (4) knowing the safety procedures for boarding and unboarding passengers; (5) knowing how to operate the emergency fuel shut off; (6) knowing safety procedures when using the "line"; and (7) knowing specific safety procedures and duties to be performed in the event of an emergency (as indicated on the station bill).

Additionally, all employees aboard the vessel regularly participated in safety drills, signed "muster sheets" recording their participation, and completed "quizzes" testing their competence on various safety tasks.

During the pertinent period, the plaintiff worked more than forty hours many weeks without receiving overtime pay. Finally, the parties stipulate (1) that in classifying the plaintiff as an exempt seaman under the FLSA the defendants acted in good faith and with a reasonable belief that the classification complies with the FLSA and (2) that the plaintiff cannot prove that the defendants acted with "reckless disregard for the matter of whether its conduct was prohibited by" the FLSA and therefore the FLSA's two-year statute of limitations governs.

DISCUSSION

The FLSA generally requires an employer to provide compensation for each hour worked in excess of forty at a rate of not less than one and one-half times an employee's regular rate. See 29 U.S.C. § 207(a)(1). However, the FLSA exempts "any employee employed as a seaman" from the Act's overtime pay requirements. 29 U.S.C. § 213(b)(6). The FLSA does not define the phrase "employed as a seaman." However, the pertinent Department of Labor ("DOL") interpretive bulletin, "Application of the Fair Labor Standards Act to Employees Employed as Seamen," 29 C.F.R. pt. 783 (the "DOL bulletin"), explains that ordinarily an employee is employed as a seaman for FLSA purposes:

if 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.

An employee employed as a seaman does not lose his exempt status "simply because, as an incident to such employment, he performs some work not connected with operation of the vessel as a means of transportation, such as assisting in the loading or unloading of freight at the beginning or end of a voyage, if the amount of such work is not substantial." 29 C.F.R. § 783.32; Martin, 955 F.2d at 1035-36 ("When a worker performs both seaman's work and nonseaman's work, he is a seaman unless his nonseaman's work is substantial in amount."). The DOL bulletin states that an employee's non-seaman work is "substantial" (and therefore excludes the employee from the seaman exemption) "if it occupies more than 20 percent of the time worked by the employee during the workweek." 29 C.F.R. § 783.37.

Because the DOL bulletin describes this twenty percent rule as the DOL's position "[f]or enforcement purposes," and because the Seventh Circuit omits to mention the rule in a recent opinion applying the seaman exemption, Harkins v. Riverboat Servs., Inc., 385 F.3d 1099 (7th Cir. 2004), Starship contends that the twenty percent rule's applicability to private litigants remains unclear. However, "courts faced with the difficult task of applying the FLSA's seaman exemption routinely rely on the DOL's 20% rule." Godard v. Alabama Pilot, Inc., 485 F. Supp. 2d 1284, 1295 (S.D. Ala. 2007). The DOL's reasonable construction of the statute is entitled toChevron deference and to particular deference because, although the DOL added the twenty percent rule to the interpretive bulletin in 1948 and Congress has since revised the seaman exemption in certain respects, Congress has not changed the DOL's interpretive definition.

In short, the twenty percent rule determines a worker's qualification for the seaman exemption. However, the rule is not applied in a mechanical manner. Because the amount of non-seaman's work an employee performs may vary from week to week:

[i]n a given week, a crew member may, without any change in basic assignment or position, spend more than 20 percent of his time performing nonseaman's work. This should not mean that the crew member loses his seaman status for that week, and in such a case the crew member should remain a seaman unless, as a general matter, a substantial portion of his time was taken up by nonseaman's work.

The summary judgment record presents no dispute (a) that during the pertinent period the plaintiff was a member of the Starship marine crew subject to the authority, direction, and control of the vessel's master, or (b) that in his capacity as engineer, chief engineer, and marine crew member the plaintiff rendered services "primarily as an aid in the operation of [the] vessel as a means of transportation." The remaining question is whether the record presents a triable issue as to whether the plaintiff's position generally required him to spend more than twenty percent of his time performing non-seaman's work. The question cannot be answered by testimony directly contradicting the plaintiff's testimony because on summary judgment:

[w]hen the nonmovant has testified to events, we do not . . . pick and choose bits from other witnesses' essentially incompatible accounts (in effect, declining to credit some of the nonmovant's own testimony) and then string together those portions of the record to form the story that we deem most helpful to the nonmovant. Instead, when conflicts arise between the facts evidenced by the parties, we credit the nonmoving party's version. Our duty to read the record in the nonmovant's favor stops short of not crediting the nonmovant's testimony in whole or part: the courts owe a nonmovant no duty to disbelieve his sworn testimony which he chooses to submit for use in the case to be decided.

Under Evans, the plaintiff's testimony that he assisted the food and beverage department by serving food or washing dishes about once a month or twenty times in three years is credited on summary judgment. Although the plaintiff was asked to give and gave an estimate, the estimate is so entirely inconsistent with Price's testimony that "almost every night" each marine crew member (including the plaintiff) spent about two hours assisting the food and beverage staff in serving food, washing dishes, and performing similar galley duty that Price's version must be disregarded. Similarly, the plaintiff's account is irreconcilable with McClintock's testimony that marine crew members spent about half their working time assisting the food and beverage department — at least if "assisting the food and beverage department" is not interpreted so broadly (e.g., as including general cleaning of the vessel) that it becomes meaningless. Under Evans, the plaintiff's version controls. According to that version, assisting the food and beverage department by washing dishes, serving food, and performing similar galley duty occurred infrequently and generally formed an insignificant portion of the plaintiff's duty.

Similarly, under Evans, the plaintiff's testimony that he spent about ninety percent of time performing duties aboard the vessel controls. The plaintiff states that the bulk of that time was devoted not to his engineering duties (which are plainly seaman's duties) or to monitoring passenger safety ("making rounds," which, as McClintock correctly states, "is a marine duty because it goes to the safety of the vessel"), but to "general cleaning of the yacht." However, although undoubtedly improving passengers' dining experience, the plaintiff's general cleaning duties were necessary to the safe and efficient operation of the vessel and therefore qualify as seaman's duties, i.e., as service rendered primarily as an aid in the operation of the vessel as a means of transportation. As one of the Starship captains states, "the cleanliness of the boat . . . is obviously a safety factor." Indeed, the plaintiff appears to concede the point by agreeing that "[m]embers of the operating crew of a vessel who perform general maintenance and cleaning duties on the vessel engage in seaman work when performing such duties." Pretrial Stip. ¶ 15(8).

The plaintiff spent the remaining ten percent of his work time performing duties ashore — cleaning the parking lot (which generally took five to ten minutes every morning), mowing the small strip of grass outside the dock, performing odd jobs around the dock or in Starship's offices, and going to Home Depot for "anything that . . . pertain[ed] to the boat." Some of these duties (e.g., the landscaping and parking lot cleaning) were plainly not rendered primarily as an aid in the operation of the Starship as a means of transportation. Other tasks marine crew members performed ashore (e.g., painting the barge to which the Starship was moored, and which evidently secured the gangway) may reasonably be described as primarily in service of the safe and efficient operation of the vessel. However, classifying them is unnecessary because the plaintiff states that he spent only ten percent of his time in performing these duties. Accordingly, the undisputed facts demonstrate that during the pertinent period, the plaintiff (a) performed services, subject to the authority, direction, and control of the master aboard a vessel that were rendered primarily as an aid in the operation of the vessel as a means of transportation and (b) performed no substantial amount of work (i.e., not more than twenty percent of his work time as a general matter) of a different character. In short, the summary judgment record presents no triable issue as to whether the plaintiff was "employed as a seaman" within the meaning of 29 U.S.C. § 213(b)(6).

CONCLUSION

The defendant's motion for summary judgment (Doc. 30) is GRANTED. The Clerk is directed to enter judgment against the plaintiff Jeremy Selby and in favor of the defendants Yacht Starship, Inc., and Troy Manthey.

ORDERED in Tampa, Florida.