MAINE MARITIME ACADEMY v. FITCH

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

MAINE MARITIME ACADEMY, )

)

Plaintiff, )

)

v. ) Docket No. 1:17-cv-195-NT

)

JANIS FITCH, )

)

AND )

)

SODEXO OPERATIONS LLC, )

)

Defendants. )

)

)

JANIS FITCH, )

)

Third-Party Plaintiff, )

)

v. )

)

UNITED STATES OF AMERICA, )

)

Third-Party Defendant. )

RULINGS ON SEAMAN STATUS AND IDENTITY OF EMPLOYER

Maine Maritime Academy (“MMA”) initiated this action seeking a declaratory

judgment that it was not obligated to pay Janis Fitch maintenance and cure1 for

injuries Ms. Fitch sustained while working in the galley of the Training Ship State of

1 “The duty of maintenance and cure requires a ship’s master to provide food, lodging, and

medical services to a seaman injured while serving the ship. This duty, which arises from the contract

of employment, does not rest upon negligence or culpability on the part of the owner or master, nor is

it restricted to those cases where the seaman’s employment is the cause of the injury or illness.” The

Dutra Grp. v. Batterton, 139 S. Ct. 2275, 2279 (2019) (citations and quotation marks omitted). MMA

has been paying Ms. Fitch maintenance and cure.

Maine (“Training Ship”). Ms. Fitch brought counterclaims against MMA, the

operator of the Training Ship, and cross claims against Sodexo Operations LLC

(“Sodexo”), the company which provides food services for MMA, for Jones Act

negligence,2 unseaworthiness,3 and maintenance and cure. First Amended

Counterclaim and Crossclaim (ECF No. 51).

On June 19–20, 2019, I held a bench trial to decide: (1) whether Ms. Fitch was

a seaman under the Jones Act, 46 U.S.C. § 30104; (2) whether MMA or Sodexo was

Ms. Fitch’s Jones Act employer; and (3) whether 46 C.F.R. § 310.9 bars all of Ms.

Fitch’s claims against Sodexo. The parties completed post-trial briefing on July 19,

2019.4 For the reasons set forth below, I find that Ms. Fitch is a seaman under the

Jones Act and that Sodexo was her Jones Act employer.

I. Seaman Status under the Jones Act

A. General Legal Background

The Jones Act allows recovery by “[a] seaman injured in the course of

employment . . . against the employer.” 46 U.S.C. § 30104. Under the Jones Act,

the essential requirements for seaman status are twofold. First, “an

employee’s duties must ‘contribute to the function of the vessel or to the

accomplishment of its mission.’ ” Second, a seaman must have a

2 Ms. Fitch also asserted a negligence claim against MMA under general maritime law. First

Amended Counterclaim 5 (ECF No. 51).

3 At trial, Ms. Fitch dropped her unseaworthiness claim against Sodexo. Tr. vol. 1 9:5–7.

4 Ms. Fitch withdrew her objections to deposition designations. Fitch Post-Trial Br. 1 (ECF No.

169). MMA’s objections to the deposition designations are overruled. MMA’s Rule 411 objections are

also overruled.

connection to a vessel in navigation (or to an identifiable group of such

vessels) that is substantial in terms of both its duration and its nature.

Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995) (quoting McDermott Int’l, Inc. v.

Wilander, 498 U.S. 337, 355 (1991)) (alterations and ellipses omitted). The general

guideline is that a maritime worker is a seaman if she works 30 percent of her time

in service of a vessel or an identifiable group of vessels. Chandris, 515 U.S. at 371.

Ms. Fitch argues that she is a seaman entitled to recover under the Jones Act.

MMA and Sodexo argue that Ms. Fitch was a land-based employee who did not spend

enough time working on the Training Ship to qualify as a seaman. The focal point of

the dispute is whether Ms. Fitch’s connection to the Training Ship meets the

substantial duration requirement of the Chandris test. Sodexo Post-Trial Br. 29 (ECF

No. 167); MMA Post-Trial Br. 12 n.8 (ECF No. 168).

B. Findings of Fact

Ms. Fitch was hired in 2008 as a cold prep cook by Omar Char, then Sodexo’s

general manager at MMA. Although she was hired primarily to cook at the MMA

cafeteria on campus (“the Hill”), she was told by Mr. Char that she may be required

to serve on board the Training Ship during summer cruises. Before she could serve

on a cruise aboard the Training Ship, MMA required her to obtain a merchant

mariner credential and a transportation worker identification credential and to

undergo drug testing and a fitness evaluation. Ms. Fitch was unable to complete the

necessary prerequisites in time to participate in the Training Ship’s 2008 summer

cruise, but she did complete them in time to join the 2009 summer cruise. She liked

the Training Ship experience so much that she volunteered to go on every training

cruise after that up through July of 2016 when she was injured. In addition to the

training cruises, Ms. Fitch went on incidental cruises taken by the Training Ship for

refueling and repairs.

1. Time in Service of the Training Ship’s Cruises

The parties have stipulated that Ms. Fitch participated in the following

cruises:

• 2009 summer cruise, which lasted 60 days.

• 2010 summer cruise, which lasted 60 days.

• 2011 summer cruise, which lasted 61 days.

• 2012 summer cruise, which lasted 60 days.

• 2013 summer cruise, which lasted 62 days.

• 2014 summer cruise, which lasted 69 days.

• 2015 winter cruise, which lasted 15 days.

• 2015 summer cruise, which lasted 90 days.

• 2015/2016 winter cruise, which lasted 24 days.

• 2016 summer cruise, which lasted 90 days. Ms. Fitch was injured and

evacuated from the Training Ship on the 72nd day of the cruise.

The parties agree that the total hours that Ms. Fitch clocked while at sea on

these cruises is 4,628.56 hours. Sodexo Post-Trial Br. 15; MMA Post-Trial Br. 10;

Fitch Post-Trial Br. 18 (ECF No. 169).

2. Ship Preparation Time

In addition to the hours she spent at sea, Ms. Fitch spent time preparing the

ship to go to sea. For the summer cruises, the Sodexo crew would be preparing to

serve 900 meals per day for between 60 and 90 days on the Training Ship. Between

one and two weeks ahead of each cruise, Sodexo employees were assigned to prepare

the ship. The work included: wiping and cleaning counters, cleaning cupboards,

wiping down walls, cleaning coolers, washing and restocking all dishes, cleaning the

storerooms, doing laundry, deep-cleaning the eight berthing rooms used by Sodexo

employees, and receiving and stowing the items necessary for the journey.

Ms. Fitch testified that she generally would spend all or part of the week prior

to each cruise preparing the ship. She indicated that she would often move her

belongings on board and live on the ship in the days before departure because there

was so much to do. Ms. Fitch often worked long days to complete all her duties

particularly before the summer cruises because there was also much work to be done

for graduation festivities. Ms. Fitch conceded that she spent more time in some years

than others to prepare for the cruises. To estimate her preparation time, she indicated

that she averaged her time across the entire period of her employment because she

thought that it was a fair way to account for the time.

Different general managers prepared for cruises differently. Mr. Char, who

was general manager during the 2009 and 2010 training cruises, used fewer

employees to prepare the ship than other general managers. Mr. Char assigned Ms.

Fitch, who was then working in the capacity of a third cook, as one of the employees

he sent to prepare the ship.

Alana Dahler became general manager in 2011 and participated in the 2011,

2012, and 2013 summer cruises. Ms. Dahler estimated that it took 500 to 600 hours

to prepare the ship for departure. Ms. Dahler used Ms. Fitch as a supervisor/manager

in that process. Ms Dahler testified that Ms. Fitch spent 80 hours over a week and a

half to prepare the ship for each cruise and that she often worked long days to prepare

the ship and to complete her other assigned tasks during the busy graduation week

that preceded the summer cruise.

In October of 2013, Phil Cotoni became the general manager, and he continues

in that role to this day. Mr. Cotoni oversaw the 2014, 2015, and 2016 summer cruises

and the 2015 and 2016 winter cruises, but he was less involved in the Training Ship

than the other general managers. Mr. Cotoni never went on a training cruise, and he

relied on Mark Strang, an executive chef hired in 2014, to oversee operations on the

Training Ship. Ms. Fitch said that both Mr. Cotoni and Mr. Strang would assign her

to do jobs to prepare the ship. Mr. Cotoni acknowledged that Ms. Fitch did some

preparation work before each cruise, but he testified that Ms. Fitch did not spend

seven days preparing for a cruise under his watch. Mr. Cotoni, who promoted Ms.

Fitch to the position of first cook in 2014 and then to the position of lead cook in 2016,

felt that Ms. Fitch’s time was better spent preparing and cooking for graduation

ceremonies than cleaning the ship.

Mr. Cotoni testified that it would take a maximum of 60 total employee hours

to prepare the ship for a cruise, and he indicated that those hours would be reflected

in color-coded schedules that he kept. When shown the schedules, however, Mr.

Cotoni conceded that they did not accurately reflect preparation time. Sodexo Ex. 7.5

5 The schedules were not produced in discovery, but they were retrieved during trial from Mr.

Cotoni’s old laptop. After seeing the schedules at trial, Mr. Cotoni explained that his color-coding

system evolved over time and that the schedules were not what he remembered them to be. He also

testified that he was often rushed in posting the schedules and that the actual hours worked might

not have been the hours that employees were scheduled to work. Given the problems with the

schedules, I give them no weight.

Sodexo installed a timeclock on the Training Ship on the first day of the 2014

summer cruise to keep employees accountable and to provide data showing how much

employee time was spent on the ship as opposed to on the Hill. Sodexo introduced the

time cards into evidence in an attempt to prove that Ms. Fitch did not spend as much

time preparing the ship as she claimed, but the timecards are of little value given the

testimony of Ms. Fitch and Ginny Bennett that employees who started their day by

punching in at the Hill did not necessarily punch in again when they went down to

work on the ship.6 Joint Ex. 16.

MMA and Sodexo also offered the MMA quarterdeck logs and visitor security

logs in an attempt to show that Ms. Fitch was not on the ship as much as she claimed

during the preparation period. Joint Exs. 21, 22; MMA Exs. 1–3. Ms. Fitch testified

that the students who were responsible for keeping the logs often waived Sodexo

employees aboard without requiring them to sign in. Ms. Dahler confirmed that

Sodexo employees were often not tracked in the logs. There are dates missing from

the quarterdeck and visitor logs and known inaccuracies.7 Given their unreliability,

I assign no weight to the logs.

MMA and Sodexo urge me to find that Ms. Fitch spent no more than 30 hours

preparing for each cruise by extrapolating from Mr. Cotoni’s testimony that it took

6 Further, the time cards did not cover the preparation time for the 2014 cruise and there are

no time cards for either of the winter cruises.

7 There are no visitor logs before 2014. No visitor logs are available for any date in April or early

May of 2015, when Sodexo personnel would have been preparing the Training Ship for the summer

cruise. In 2016, visitor logs are missing for May 2 and May 6. The quarterdeck logs only cover October

of 2014 through April of 2015. The quarterdeck logs do not indicate that Ms. Fitch ever boarded the

ship prior to the 2015 winter cruise, although the parties agree that she was on board that cruise.

no more than 60 total employee hours to prepare the ship. Sodexo Post-Trial Br. 15-

16; MMA Post-Trial Br. 10. I reject this proposed finding8 for several reasons: First,

Mr. Cotoni had no first-hand knowledge of the time Ms. Fitch spent preparing the

ship before he became general manager. Even for the years he served as general

manager, Mr. Cotoni was not particularly knowledgeable about the work that went

into preparing the ship. He never personally went on a cruise, and he relied on Mark

Strang to manage the work onboard the Training Ship.

I credit Ms. Fitch’s testimony that she spent a considerable amount of time

preparing the ship when she worked for both Ms. Dahler and Mr. Char. Ms. Dahler,

who actually participated in cruises, testified that it took between 500–600 employee

hours to prepare the vessel. I find no reason to discredit Ms. Dahler’s testimony that

Ms. Fitch spent 80 hours to prepare for each cruise under her watch. I also find that

Ms. Fitch would have spent a similar amount of preparation time for the cruises

under Mr. Char’s oversight, given that he used fewer employees to complete the

preparation work.

I find that Ms. Fitch spent less time preparing the ship for cruises when she

worked under Mr. Cotoni. Mr. Cotoni had a different view about the amount of work

needed to prepare the ship, and he felt Ms. Fitch’s skills were better utilized

preparing for graduation events. I find that Ms. Fitch spent closer to 20 hours

preparing the Training Ship under Mr. Cotoni’s watch.

8 Remarkably, Ms. Fitch’s counsel proposes that I find that Ms. Fitch worked only 24 hours in

advance of each cruise. Because this proposed finding is not supported by the evidence, I reject it as

well.

Accordingly, I find that Ms. Fitch spent 80 hours in preparation for each of the

2009, 2010, 2011, 2012, and 2013 summer cruises for a total of 400 hours. I find that

Ms. Fitch spent 20 hours in preparation for each of the 2014, 2015, and 2016 summer

cruises and the 2015 and 2016 winter cruises for a total of 100 hours. Finally, as

suggested by MMA and Sodexo, I add an additional 70 hours for the time Ms. Fitch

spent preparing the Training Ship to deploy after Hurricane Sandy. I find that Ms.

Fitch spent 570 hours preparing the Training Ship during her years of service.

3. Cleaning After Return

Ms. Fitch estimated that she spent two days cleaning the Training Ship after

each cruise. Ms. Dahler confirmed that Sodexo was required to clean the ship when

it returned to port. Both Ms. Dahler and Mr. Cotoni indicated that the clean-up began

on the last day of the cruise and occasionally extended to the next day as well.

Mr. Cotoni, who was the witness responsible for tallying Ms. Fitch’s hours

during the cruises, testified that he counted all hours that Ms. Fitch worked during

the week the Training Ship returned even where the cruise returned early in the

week, as it often did.9 The Sodexo workweek runs from Friday through Thursday.

Accordingly, any additional hours Ms. Fitch spent cleaning after the cruise ended

would have been captured for any cruise that returned by Wednesday. The 2009,

2010, and 2012 summer cruises returned on a Monday; the 2011 summer cruise

9 I do not agree with the contention of Sodexo and MMA that Ms. Fitch’s ship time was

overcounted because Mr. Cotoni included the entire week’s hours for the week the ship returned.

Sodexo Post-Trial Brief 14 (ECF No. 167); MMA Post-Trial Brief 9 (ECF No. 168). Ms. Fitch testified

that after the summer cruises she took vacation time. Accordingly, any hours that she worked during

the last week of the cruise were likely hours spent cleaning up the ship and not hours spent back on

the Hill, where school was not yet back in session.

returned on a Tuesday; and the 2013, 2014, and 2015 summer cruises returned on a

Wednesday. Only the 2015 and 2016 winter cruises returned on a Thursday. I credit

Ms. Fitch with a total of 8 hours of clean-up time for each of the winter cruises for a

total of 16 hours.

4. Additional Trips

I credit Ms. Fitch’s testimony that she spent five days taking the vessel to New

York for a fuel trip in 201110 and that she spent 14 days accompanying the Training

Ship to Boston for repairs in 2012. Pursuant to the suggestion of MMA and Sodexo, I

add an additional 300 hours for these trips. Sodexo Post-Trial Br. 16; MMA Post-Trial

Br. 11.

5. Calculation

Ms. Fitch spent a total of 5,514.56 hours in service of the Training Ship during

her tenure with Sodexo. To arrive at this figure, I supplement the 4,628.56 hours

clocked on board the ship with 570 hours spent preparing the ship to embark, 16

hours spent cleaning the Training Ship after it returned from the winter cruises, and

300 hours for the Boston and New York trips.

6. Percentage of Hours Spent In Service of Training Ship

Having determined the amount of time that Ms. Fitch spent in service of the

Training Ship, I now consider the relevant period of Ms. Fitch’s employment from

which the seatime percentage is calculated. MMA and Sodexo contend that I should

10 Captain Eadie testified that he did not recall this fuel trip and that he would have to check his

logbook to see if it occurred. The parties did not seek to admit the logbook or otherwise introduce

evidence that the fuel trip did not occur, and I, therefore, credit Ms. Fitch’s testimony that there was

a five-day fuel trip in 2011.

use her entire term of employment beginning in April of 2008 through the end of her

employment—a period of 18,534.58 hours. Given my finding that Ms. Fitch spent

5,514.56 hours in service of the Training Ship, using the entire period of her

employment would mean she spent 29.8 percent of her time in service of the vessel.

Ms. Fitch argues that I should use the period of time beginning from her first cruise

in May of 2009 until the end of her employment—a period of 16,332.45 hours—which

would mean that Ms. Fitch spent 33.8 percent of her time in service of the Training

Ship.

C. Conclusions of Law

I conclude that Ms. Fitch comes close enough to the Chandris thirty percent

“rule of thumb” even using her full term of employment. See Chandris, 515 U.S. at

371. For one, the hours Ms. Fitch spent in service of the ship is necessarily an

estimate.11 Although the parties examine timesheets down to the one-hundredth of

an hour, the Supreme Court demands no such precision:

Generally, the Fifth Circuit seems to have identified an appropriate rule

of thumb for the ordinary case: A worker who spends less than about 30

percent of his time in the service of a vessel in navigation should not

qualify as a seaman under the Jones Act. This figure of course serves as

no more than a guideline established by years of experience, and

departure from it will certainly be justified in appropriate cases.

11 I would note that my final figure does not count every hour Ms. Fitch spent in service of the

Training Ship. For example, Ms. Fitch testified that before the 2014 summer cruise, when Mr. Cotoni

and Mr. Strang were both new to Sodexo, she and others met weekly beginning in January to help Mr.

Cotoni and Mr. Strang with the logistics necessary to prepare 900 meals a day at sea for the upcoming

69-day summer cruise.

Id. (emphasis added).12

Further, the Chandris thirty percent rule is for the “ordinary case.” Id. This is

not an ordinary case because the Training Ship is not an ordinary vessel. In contrast

to a cargo ship that is underway most of the year, the Training Ship leaves port only

once or twice per year. Ms. Fitch was on board the Training Ship as its cook every

time it embarked on a voyage for a period of seven years, each time exposing herself

to the perils of the sea. She crossed the Atlantic onboard the Training Ship ten times.

She has established a connection to the Training Ship that is “substantial in terms of

both its duration and its nature.” Id. at 368.13 Accordingly, I conclude that Ms. Fitch

was a seaman for purposes of the Jones Act.14

II. Jones Act Employer

Having found that Ms. Fitch is a seaman, I must now decide whether Sodexo

or MMA served as her Jones Act employer.

A. General Legal Background

An employer-employee relationship is necessary for recovery under the Jones

Act. 46 U.S.C. § 30104 (“[S]eaman injured in the course of employment . . . may elect

12 Given my finding, I do not address the Plaintiff’s argument that she should be credited with

all of her time at sea rather than just the hours she spent working in the galley. Fitch Post-Trial Br.

7–9.

13 I find Dorr v. Maine Maritime Academy to be distinguishable. 670 A.2d 930, 934 (Me. 1996).

Dorr was the Chief Engineer of a research vessel who spent only 25 percent of his time at sea over a

period of six months before he was injured. The ship on which Dorr served made occasional day trips

but rarely stayed out of port overnight. In contrast, Ms. Fitch comes much closer to the 30 percent

guideline, and she lived on the vessel for months at a time over the course of seven years.

14 Given my finding, I need not decide whether Sodexo is estopped from arguing that Ms. Fitch

is not a Jones Act seaman.

to bring a civil action at law . . . against the employer.”). In Cosmopolitan Shipping

Co. v. McAllister,15 the Supreme Court stated in dicta that there is “no doubt that

under the Jones Act only one person, firm, or corporation can be sued as employer.”

337 U.S. 783, 791 (1949).

Ms. Fitch cites Kukias v. Chandris Lines, Inc., 839 F.2d 860, 862 (1st Cir. 1988)

for the proposition that “[t]he First Circuit recognizes the dual employer doctrine.”

Fitch Post-Trial Br. 20. Kukias involved a choice-of-law question, and the First

Circuit did not answer the question of whether a seaman can have more than one

employer under the Jones Act. Kukias, 839 F.2d at 862 (recognizing the possibility

that ship operator could be Jones Act employer and that ship owner could be Jones

Act employer under borrowed servant principles but not explicitly stating that a

seaman can have more than one employer at the same time under the Jones Act). Ms.

Fitch does not deal at all with the plain language of Cosmopolitan, but she does cite

Spinks v. Chevron Oil Co., which suggests, in dicta, that Cosmopolitan could be

limited as dicta. 507 F.2d 216, 225 (5th Cir. 1975) (seaman may have more than one

employer), decision clarified, 546 F.2d 675 (5th Cir. 1977), and overruled on other

grounds by Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir. 1997). Spinks

has been criticized by other courts. See Glynn v. Roy Al Boat Mgmt. Corp., 57 F.3d

1495, 1497, 1500 (9th Cir. 1995) (stating “there can be no more than one ‘employer’

for purposes of the Jones Act” and citing cases rejecting Spinks), abrogated on other

15 In Cosmopolitan, the Supreme Court faced the question of who, as between the United States

as shipowner and Cosmopolitan as the general agent, was the employer of the injured seaman.

Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 791 (1949).

grounds by Atl. Sounding Co. v. Townsend, 557 U.S. 404 (2009). While the court in

Spinks makes an interesting argument as to why more than one employer could be

held liable under the Jones Act,16 the Plaintiff does nothing to develop this argument

and does not return to it in her Reply. As such, I consider this argument to be waived.

Graham v. United States, 753 F. Supp. 994, 1000 (D. Me. 1990)(“It is settled beyond

peradventure that issues mentioned in a perfunctory manner, unaccompanied by

some effort at developed argumentation are deemed waived.”) (citation and internal

quotation marks omitted).

It has long been recognized that a Jones Act employer does not necessarily

have to be the shipowner or ship operator and that an independent contractor can be

a Jones Act employer. Guidry v. S. La. Contractors, Inc., 614 F.2d 447, 452 (5th Cir.

1980) (“Jones Act claim . . . requires proof of an employment relationship either with

the owner of the vessel or with some other employer who assigns the worker to a task

creating a vessel connection.”); Mahramas v. Am. Exp. Isbrandtsen Lines, Inc., 475

F.2d 165, 171 (2d Cir. 1973) (Jones Act employer of plaintiff hairdresser who claimed

injury aboard ship was beauty shop concessionaire that was independent contractor

of cruise line).

A third party who borrows a worker may become the Jones Act employer if the

borrowing employer assumes sufficient control over the worker. Guidry, 614 F.2d at

16 The Spinks court points out that the Jones Act incorporates standards established by the

Federal Employers’ Liability Act (FELA), 45 U.S.C. §§ 51–60—a point recently reiterated by the

Supreme Court in Dutra—and suggests that more than one employer can be liable under FELA. See

The Dutra Grp., 139 S. Ct. at 2284–85; Spinks v. Chevron Oil Co., 507 F.2d 216, 225 (5th Cir. 1975);

see also Kelley v. S. Pac. Co., 419 U.S. 318, 324 (1974) (under FELA employee could be “deemed to be

acting for two masters simultaneously.”).

452; Baker v. Raymond Int’l, Inc., 656 F.2d 173, 178 (5th Cir. 1981) (“The borrowed

servant doctrine is the functional rule that places the risk of a worker’s injury on his

actual rather than his nominal employer. It permits the injured worker to recover

from the company that was actually directing his work.”).

The First Circuit considered the borrowed servant doctrine in Raymond v. I/S

Caribia. 626 F.2d 203, 205 (1st Cir. 1980). Although the facts of Raymond are

distinguishable, the case sets forth the test for determining whether an employee is

a borrowed servant. Borrowed servant status must be established by evidence such

as control or direction of the seaman’s work by the borrowing employer, direct or

indirect payment of the seaman’s wages by the borrowing employer, and an

employment relationship between the seaman and the borrowing employer. Id.17

Control is the critical component. Id. (“The prime requisite for invoking the borrowed

servant doctrine is some sort of control by the borrower over the loaned employee(s).”)

(citing Standard Oil Co. v. Anderson, 212 U.S. 215 (1909)).

In order to determine Ms. Fitch’s Jones Act employer, I must look to the

venture as a whole and interpret any contractual language and labels in light of the

actual operations. See Cosmopolitan, 337 U.S. at 795. At bottom, the determination

17 Courts in the Fifth Circuit follow a more elaborate formula in analyzing whether an employee

is a borrowed servant. They ask the following nine questions. First, who had control over the seaman’s

work? Second, whose work was being performed? Third, was there an agreement between the original

and the borrowing employer? Fourth, did the employee acquiesce to be employed by the borrowing

employer? Fifth, who furnished the tools and place of employment? Sixth, did the original employer

terminate his relationship with the employee? Seventh, was the new employment over a considerable

length of time? Eighth, who had the right to discharge the employee? And ninth, who had the

obligation to pay the employee? See, e.g., In re Weeks Marine, Inc., 88 F. Supp. 3d 593 (M.D. La. 2015)

(citing Ruiz v. Shell Oil Co., 413 F.2d 310 (5th Cir. 1969)).

of whether an employee is a borrowed servant is highly fact-specific. Compare Hebert

v. Cal. Oil Co., 280 F. Supp. 754, 760 (W.D. La. 1967) (in dicta, under borrowed

servant doctrine, shipowner was Jones Act employer of galley hand hired by

independent food service contractor), with Sims v. Marine Catering Serv., Inc., 217 F.

Supp. 511, 517 (E.D. La. 1963) (independent catering contractor was Jones Act

employer of galley hand hired by contractor).

B. Findings of Fact

1. The Terms of the Contracts

a. Ms. Fitch’s Employment Contract with Sodexo

When Sodexo hired Ms. Fitch in 2008, general manager Omar Char told Ms.

Fitch that she could be deployed for 60 days on the Training Ship’s summer cruises

and that if she was asked to go on a cruise, she would have to go. A collective

bargaining agreement (CBA) governed the relationship between Sodexo and its non-

management employees, including Ms. Fitch. The CBA defined the workweek, spelled

out the grievance process, and listed rates and benefits. Although the CBA was not

admitted into evidence, there was testimony that, under the terms of the CBA, Ms.

Fitch could be required to participate in a cruise if asked to do so.

b. The Management Agreement between Sodexo and

MMA

As between Sodexo and MMA, there was a Management Agreement that set

forth “the terms and conditions upon which [MMA] retain[ed] Sodexo to manage and

operate Food Service” for MMA. Joint Ex. 18 at § 1.1. In addition to food service on

campus, Sodexo agreed to provide food service on board the Training Ship for MMA’s

summer cruises and during periods when the Training Ship is “underway to the

shipyard.” Joint Ex. 18 at §§ 2.4, 2.8, 4.5.

The Management Agreement indicates that “Sodexo shall be an independent

contractor and shall retain control over its employees and agents.” Joint Ex. 18 at

§ 1.2. The Management Agreement further provides that “[a]ll nonmanagement Food

Service employees shall be Sodexo employees, except for [MMA’s Student Employees

and Work Study Employees].” Joint Ex. 18 at § 5.2. It further requires Sodexo to

“provide management employees to supervise all Food Service employees.” Joint Ex.

18 at § 5.1.

The Management Agreement contains a provision on Personnel Obligations,

which states:

Each party hereto shall be solely responsible for all personnel actions

and all claims arising out of injuries occurring on the job regarding

employees on its respective payroll. Each party shall withhold all

applicable federal, state and local employment taxes and payroll

insurance with respect to its employees, insurance premiums,

contributions to benefit and deferred compensation plans, licensing fees

and worker’s compensation costs and shall file all required documents

and forms.

Joint Ex. 18 at § 5.5.

c. The Shipping Articles between MMA and Ms. Fitch

When Ms. Fitch participated in a cruise, she was required to sign the Shipping

Articles, which provided:

The said crew agree . . . to be obedient to the lawful commands of

[Captain Eadie] . . . and [Captain Eadie] agrees to pay to the said crew,

as wages, the sums against their names respectively expressed.

Joint Ex. 9. In the portion of the Articles bearing Ms. Fitch’s signature under the

heading “WAGES PER MONTH”, the form states “As Per Contract.” Joint Ex. 9.

2. Actual Operations

Sodexo was responsible for choosing the employees who went on the cruise and

scheduling those employees for shifts on the Training Ship. A Sodexo supervisor

served in the role of Chief Steward on the Training Ship. For the 2016 summer cruise,

the Chief Steward was Sodexo’s executive chef, Mark Strang. Ms. Fitch prepared and

served meals under the supervision of Mr. Strang. Ms. Fitch punched a Sodexo

timeclock when she began her shift on board the Training Ship. Ms. Fitch remained

on Sodexo’s payroll while she was serving on the Training Ship. Sodexo paid Ms.

Fitch’s wages based upon her recorded hours and the terms of the CBA. Sodexo paid

employment taxes for Ms. Fitch. Sodexo had the right to discipline Ms. Fitch or

terminate her employment in accordance with the CBA.

Before being allowed to cruise with the Training Ship, Ms. Fitch was required

to meet certain MMA requirements, including: obtaining a merchant mariner

credential and TWIC card, meeting physical requirements, and passing a drug

screening. On board, Ms. Fitch was subject to orders from Captain Eadie and other

officers and was required to attend safety trainings and follow safety protocols

established by Captain Eadie. Captain Eadie and the First Mate would regularly

conduct inspections of the galley. If a safety hazard was observed during an

inspection, it would be called to the attention of the Sodexo employees, and they would

attend to it. Captain Eadie could order Sodexo employees off the ship, but he did not

have the right to terminate their employment. Ms. Fitch was also required to

supervise cadets who were assigned each day to help with meals and cadets who

received kitchen duty as discipline.

C. Conclusions of Law

Sodexo contends that MMA was Ms. Fitch’s employer under the borrowed

servant doctrine under the nine factors used by the Fifth Circuit. Sodexo Post-Trial

Br. 19–20. MMA counters that Sodexo, as an independent contractor, was Ms. Fitch’s

employer under the First Circuit’s iteration of the borrowed servant doctrine. MMA

Post-Trial Br. 17–18. For her part, Ms. Fitch claims that both Sodexo and MMA were

her employers, but that if only one can be considered an employer then it should be

Sodexo. Fitch Post-Trial Br. 20–21.

I follow the First Circuit’s iteration of the borrowed servant doctrine and focus

on who controlled or directed Ms. Fitch’s work; who paid, direct or indirectly, Ms.

Fitch’s wages; and whether an employment relationship existed between Ms. Fitch

and MMA or Sodexo. See Raymond, 626 F.2d at 205.

As to the issue of control and direction, by its terms the Management

Agreement provides that Sodexo is an independent contractor engaged to provide food

services and that Sodexo would retain control of its employees. The Management

Agreement contemplates that Sodexo will provide food service on board the Training

Ship and does not contain any language that would change the status of employees

who serve the Training Ship. Sodexo never terminated its relationship with Ms.

Fitch, and Ms. Fitch always returned to the Hill after each of the cruises without the

need to restart employment with Sodexo.

Although Ms. Fitch signed the Shipping Articles and was required to obey

orders of the Training Ship’s commanding officers, Captain Eadie did not control the

day-to-day operations of the Sodexo galley crew. See Mahramas, 475 F.2d at 171

(employees of contractors engaged to provide specific service on vessel do not become

borrowed servants of shipowner merely by signing ship’s articles, absent shipowner’s

control over their work orders). There is no evidence that MMA had regular input

into how, when, and what work Ms. Fitch did in terms of preparing and serving the

meals. On board the Training Ship, Mark Strang, a Sodexo employee, retained

direction and control over her. Sodexo retained the right to discipline and terminate

Ms. Fitch for issues relating to her job performance in accordance with the CBA.

While Captain Eadie could have ordered Ms. Fitch off the ship if she had violated the

Training Ship’s code of conduct, he did not have the right to terminate her

employment with Sodexo. Regular inspections by the ship’s command did not amount

to significant operational control over Sodexo’s galley crew. As the Court noted in

Standard Oil, the type of collaboration “where the work furnished is part of a larger

undertaking” must be distinguished from direction and control over an employee in

the performance of their work. Standard Oil Co., 212 U.S. at 222.

As to the question of who paid Ms. Fitch’s wages, the answer is clearly Sodexo.

Sodexo hired Ms. Fitch and entered a collective bargaining agreement governing her

employment. Sodexo recorded Ms. Fitch’s time and paid Ms. Fitch based on the hours

of work that she performed.18 Although Captain Eadie agrees in the Shipping Articles

18 Sodexo unpersuasively argues that MMA indirectly paid Ms. Fitch’s wages because Mr. Strang

sent payroll information to Sodexo through a ship’s officer and because Sodexo considered the Training

to pay Ms. Fitch wages “as per contract,” the evidence suggests that the contract

referenced was the CBA between Ms. Fitch and Sodexo. MMA did not pay Ms. Fitch

and did not verify her hours. Contra Brown v. Union Oil Co. of Cal., 984 F.2d 674,

679 (5th Cir. 1993) (where borrowing employer verified employee’s time tickets daily,

factor supported borrowed servant status). MMA did not reimburse Sodexo for her

wages. Contra Capps v. N.L. Baroid-NL Indus., Inc., 784 F.2d 615, 618 (5th Cir. 1986)

(where borrowing employer reimbursed payroll employer for employee’s hourly rate,

factor supported borrowed servant status). Although MMA certainly paid for the food

services Sodexo provided, the evidence does not suggest that Sodexo merely served

as a general or payroll agent for MMA.

Finally, the evidence does not establish that an employment relationship

existed between Ms. Fitch and MMA. MMA did not hire Ms. Fitch, and it did not

control whom Sodexo sent on the cruises. The mere act of signing a vessel’s articles

does not make a seaman the employee of the shipowner or the master. Mahramas,

475 F.2d at 171. Apart from the general authority given to the master of all ships to

maintain order and ensure safety, MMA did not involve itself in Ms. Fitch’s work.19

Ship to be a separate profit center from the Hill. But Mr. Strang passed his payroll spreadsheet

through the ship’s command because he could not send attachments from his email aboard the ship.

And Mr. Cotoni’s testimony that Sodexo viewed the Training Ship as a separate profit center was

undercut by his own inability to account for how much time Ms. Fitch spent on the Training Ship.

Even if it were true that Sodexo saw the Training Ship as a separate profit center, that does not upset

the conclusion that Sodexo was the entity that paid the wages of Ms. Fitch.

19 The additional factors considered by the Fifth Circuit do not alter my conclusion. See Ruiz, 413

F.2d at 312–314. The inquiry into whose work was being performed “is usually answered by

ascertaining who has the power to control and direct the servants in the performance of their work.”

Standard Oil Co., 212 U.S. at 221–22. Ms. Fitch was performing the work that Sodexo contracted to

provide, and she was directed by Sodexo supervisors in performing that work. The Management

Agreement between MMA and Sodexo is inconsistent with a conclusion that Ms. Fitch was the

borrowed servant of MMA. Though Ms. Fitch volunteered to serve on the Training Ship, she did not

Viewing the venture as a whole, I find that Ms. Fitch remained an employee of

Sodexo even when she served aboard the Training Ship. As to Ms. Fitch’s argument

that both Sodexo and MMA can be considered her employer, I follow the guidance of

the Supreme Court’s dicta in Cosmopolitan that there can only be one employer under

the Jones Act. Accordingly, I conclude that Sodexo was Ms. Fitch’s sole Jones Act

employer.

III. 46 C.F.R § 310.9 Does Not Bar Ms. Fitch’s Claims Against Sodexo

Sodexo argues that 46 C.F.R. § 310.9 bars non-federal employees who are

injured onboard the Training Ship from bringing claims against any party other than

the State. Ms. Fitch and MMA maintain that the regulation cannot be read to

abrogate Ms. Fitch’s Jones Act remedies against Sodexo.20

Section 310 details “Regulations and Minimum Standards for State, Territorial

or Regional Maritime Academies and Colleges.” Section 310.9 governs “Medical

attention and injury claims” and provides:

(c) Medical care and compensation for Officers and other personnel.

Officers and other personnel of the School, and of the Training Ship may

avail themselves of any medical facilities furnished by the State or

Federal Government for which they qualify. See, for example, 42 CFR

part 32. Such persons who are not Federal employees shall look to the

State alone for pay, allowances, compensation and other benefits during

injury or illness.

acquiesce to serve as an employee of MMA. She was aware that she remained on Sodexo’s payroll. The

only factor that supports a finding of borrowed servant status is that MMA provided the tools and

place of employment. Given the weight of the other factors, that is too little for me to conclude that

Ms. Fitch was MMA’s borrowed servant.

20 The United States also weighs in, denying that 46 C.F.R. § 310.9 limits Jones Act claims. U.S.

Reply (ECF No. 170). The United States suggests that the regulation addresses duty to pay

compensatory damages as between the Maritime Administration and state maritime academies in

cases where an injured party has established the right to recover.

46 C.F.R. § 310.9(c). The plain language of § 310.9 does not address the ability of an

injured seaman to bring a Jones Act claim against her private employer. Ms. Fitch’s

claims against Sodexo are accordingly not barred by the regulation.

CONCLUSION

For the reasons stated above, I find that Ms. Fitch is a Jones Act seaman and

that Sodexo is her employer under the Jones Act.

SO ORDERED.

/s/ Nancy Torresen

United States District Judge

Dated this 18th day of September, 2019.