Maine Maritime Academy v. Fitch

          RULINGS ON SEAMAN STATUS AND IDENTITY OF EMPLOYER

          Nancy Torresen, United States District Judge.

         Maine Maritime Academy (“MMA”) initiated this action seeking a declaratory judgment that it was not obligated to pay Janis Fitch maintenance and cure^[1] for injuries Ms. Fitch sustained while working in the galley of the Training Ship State of 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 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]

         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 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 finding^[8] 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 ...