NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 20-1426 _____________

JASON FETTER, Appellant

v.

MAERSK LINE LIMITED; 3MC MOBILE & MECHANICAL REPAIR, LLC _______________

On Appeal from the United States District Court for the District of New Jersey (D.C. No. 2-14-cv-2108) District Judge: Hon. Katharine S. Hayden _______________

Argued May 14, 2021

Before: McKEE, JORDAN, and FUENTES, Circuit Judges.

(Filed July 15, 2021) _______________

Micajah D. Boatright Andrew R. Gould [ARGUED] Arnold & Itkin 6009 Memorial Drive Houston, TX 77007

Heather K. D’Onofrio The D’Onofrio Firm P.O. Box 16 Wallingford, PA 19086 Counsel for Appellant Matthew J. Pallay John J. Walsh [ARGUED] Freehill Hogan & Mahar 80 Pine Street – 25th Fl. New York, NY 10005 Counsel for Appellee, Maersk Line Ltd.

Matthew M. Gorden Joseph J. Perrone [ARGUED] Giuliano, McDonnell & Perrone 170 Old Country Road – Ste. 608 Mineola, NY 11501 Counsel for Appellee, 3MC Mobile & Mechanical Repair LLC _______________

OPINION _______________

JORDAN, Circuit Judge.

Appellant Jason Fetter was injured while working as a day engineer aboard the

docked M/V MAERSK MONTANA. He appeals the entry of summary judgment in

favor of Appellees Maersk Line, Limited (“Maersk”) and 3MC Mobile & Mechanical

Repair, LLC (“3MC”) (together, the “Defendants”) on his negligence and Jones Act

claims. Because there are no genuine issues of material fact, we will affirm.

I. BACKGROUND

Maersk had a collective bargaining agreement (“CBA”) with a seafarer’s union,

the Marine Engineers Beneficial Association (the “Union”), which allowed Maersk to

hire temporary “day engineers” to perform repairs and maintenance when ships were

 This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. 2 called to port. Pursuant to the CBA, the Union bills Maersk for the day engineers’

wages, and Maersk pays the wages directly to the Union. The Union then deducts taxes

and union fees from the wages and remits the remainder to the day engineers. If several

maintenance projects are going on at once, Maersk also may decide to hire an outside

company to help supervise the day engineers’ work.

Maersk owns and operates a vessel called the MAERSK MONTANA. The ship’s

captain requested five Union day engineers to perform repair and maintenance tasks

while the ship was in port at Newark, New Jersey, on October 9, 2012. Maersk also

requested that, 3MC, through its employee Greg Higgs, supervise the day engineers

performing the tasks.

Fetter, a member of the Union, bid on and received one of the day engineer jobs

aboard the MONTANA. He understood he was hired to work for only one day and

would not sail with the ship. On the appointed day, Fetter and four other day engineers

reported to the MONTANA. Higgs reported as well. After they boarded the ship, the

MONTANA’s first assistant engineer, David Peterson, told Higgs and the day engineers

about the work to be completed that day, showed them where tools were located, and ran

through Maersk’s procedures. Higgs then tasked Fetter and two of his colleagues with

removing a stuck injector in the ship’s main engine. After Higgs suggested to Fetter and

his colleagues how to complete the task, Higgs went to another part of the ship to assist

with repairing an automatic start air valve. While Fetter was attempting to remove the

stuck injector, “the chain being used to pull the injector broke[,]” causing an object to

3 strike Fetter’s face near his eye. (Opening Br. at 8.) The resulting injuries were severe.

Higgs learned of the accident and Fetter’s injuries a few hours later.

Fetter subsequently filed a common law negligence action against Maersk in state

court. Maersk removed the matter to federal court, and Fetter amended his complaint,

adding 3MC as a defendant and also adding a Jones Act claim. Following discovery, the

Defendants filed motions for summary judgment. They argued that Fetter was not a

Jones Act seaman and that his negligence claims are barred by the exclusivity provisions

of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”),

et seq. In a thorough and well-reasoned opinion, the District Court granted summary

judgment for the Defendants. This timely appeal followed.

II. DISCUSSION1

Fetter argues that the District Court erred when it concluded that there were no

genuine issues of material fact as to the following: 1) whether he was a borrowed servant

of Maersk, barring him from bringing a negligence claim against Maersk under the

LHWCA; 2) whether 3MC employee Greg Higgs was a borrowed servant controlled by

Maersk, thus barring Fetter from bringing a negligence claim against 3MC under the

1 The District Court had jurisdiction under

and 1333. We have appellate jurisdiction under

. Our review of a district court’s grant of summary judgment is plenary. Olson v. Gen. Elec. Astrospace,

(3d Cir. 1996). In evaluating the Defendants’ motions for summary judgment, we determine whether there are any genuine disputes of material fact, and, if not, we view the evidence in the light most favorable to Fetter and decide whether the Defendants are entitled to judgment as a matter of law. See Fed. R. Civ. P. 56; Celotex Corp. v. Catrett,

(1986); Anderson v. Liberty Lobby, Inc.,

(1986).

4 LHWCA; and 3) whether Fetter was a “seaman” for purposes of the Jones Act,

.

The LHWCA and the Jones Act are two “mutually exclusive compensation

regimes[.]” Chandris, Inc. v. Latsis,

(1995). The Jones Act

provides “heightened legal protections (unavailable to other maritime workers) [to]

seamen … because of their exposure to the ‘perils of the sea.’”

. For maritime

workers not entitled to the benefits of the Jones Act, the LHWCA “establishes a

comprehensive federal workers’ compensation program that provides longshoremen and

their families with medical, disability, and survivor benefits for work-related injuries and

death.” Howlett v. Birkdale Shipping Co.,

(1994). In exchange for such

no-fault compensation payments, the LHWCA displaces the employee’s common-law

right to bring an action in tort against his employer and fellow employees.

, 905(a), 933(i).

For the purposes of the LHWCA, the term “employer” includes a “borrowing

employer” under the borrowed servant doctrine. Peter v. Hess Oil Virgin Islands Corp.,

(3d Cir. 1990). In an industry where it is commonplace for employers

to lend their employees to another entity for a specific project or voyage, the borrowed

servant doctrine seeks to “place the risk of a worker’s injury on his actual rather than his

nominal employer[.]” Hall v. Diamond M Co.,

(E.D. La. 1986)

(citing Baker v. Raymond Int’l, Inc.,

(5th Cir. 1981)); see also White v.

Bethlehem Steel Corp.,

(4th Cir. 2000) (explaining that an individual

may be in the “general employ of one company while at the same time being in the

5 particular employ of another ‘with all the legal consequences of the new relation’”

(citation omitted)).

To determine whether a borrowed servant relationship exists, we consider a multi-

factor test developed by the Fifth Circuit, with a focus on two comprehensive questions

that are crucial in the workers’ compensation context: “(1) whether the borrowing

employer was responsible for the borrow[ed] employee’s working conditions and (2)

whether the employment was of such duration that the borrowed employee could be

presumed to have acquiesced in the risks of his new employment.”2 Peter,

(citing Gaudet v. Exxon Corp.,

(5th Cir. 1977), cert. denied,

(1978)).

2 The factors identified by the Fifth Circuit are:

(1) Who has control over the employee and his work? (2) Whose work is being performed? (3) Was there an agreement between the original and borrowing employer? (4) Did the employee acquiesce in the new work situation? (5) Did the original employer terminate his relationship with the employee? (6) Who furnished the tools and place for performance? (7) Was the new employment over a considerable length of time? (8) Who has the right to discharge the employee? (9) Who had the obligation to pay the employee?

Peter,

n.7 (citing West v. Kerr-McGee Corp.,

(5th Cir. 1985)).

6 A. Fetter was Maersk’s borrowed servant.

First, Fetter argues that there are genuine issues of material fact as to whether

Fetter was Maersk’s borrowed servant. We disagree. No reasonable juror could find that

Fetter was not Maersk’s borrowed servant.3

Maersk engaged Fetter’s services pursuant a CBA with the Union. Only Maersk –

not 3MC or Higgs – had the authority to dismiss Fetter. Maersk paid the Union, who

after deducting certain union fees and taxes, paid Fetter. And, although Higgs did

exercise some control over Fetter, Maersk retained ultimate control over the engine room

and the individuals working in it. Maersk requested and planned for Fetter to work on

the ship. It outlined the specific projects to be completed and provided the necessary

tools. Higgs was hired to provide “supervisory assistance,” but the record amply

demonstrates that Maersk retained overall control of the work in the engine room,

including Fetter’s work. In addition, Fetter’s experience and the nature of his temporary

assignment allowed him to quickly understand and acquiesce to the risks of working on

the MONTANA. Cf. Langfitt v. Fed. Marine Terminals, Inc.,

(11th

Cir. 2011) (“Courts almost invariably have determined that employees of a labor broker,

by accepting their employment with the labor broker, consciously consented to being sent

to work in varying employment situations, under the direction and control of their

employer’s various clients.”).

3 The District Court concluded that Fetter was an employee of Maersk, but “[w]e can affirm the District Court’s grant of summary judgment on any basis supported by the record.” United States ex rel. Spay v. CVS Caremark Corp.,

(3d Cir. 2017). 7 As a borrowed servant, Fetter falls within the ambit of the LHWCA, and is thus

barred from bringing a common law tort claim against Maersk.

B. Higgs was Maersk’s borrowed servant.

Fetter also argues that there are genuine issues of material fact as to whether

3MC’s employee Higgs was Maersk’s borrowed servant. Again, we disagree.

Fetter has failed to identify evidence that would allow a reasonable juror to

conclude that anyone other than Maersk had control of Higgs on the day of Fetter’s

injury. Once on board the MONTANA, Maersk’s crew had the power to direct and

supervise Higgs, and the record shows it did so. Maersk’s first assistant engineer

Peterson reviewed the day’s tasks with Higgs prior to Higgs beginning work. Only with

Peterson’s “advice and consent” regarding the proper repair method did Higgs proceed to

repair the auto start air valve. (App. at 247 ¶ 23.) Further, Peterson held the authority to

dismiss Higgs if he had any issues with his performance. Maersk also provided the tools

and place for performance of Higgs’s work.

We also agree with the District Court that, viewing the evidence in the light most

favorable to Fetter, Higgs’s extensive work experience and the nature of his temporary

assignment with Maersk allowed him to quickly know, appreciate, and acquiesce to the

hazards and risks of working on the MONTANA under the supervision and control of

Maersk. While it is true that duration of work is often a factor in determining whether a

worker acquiesced to a borrowed employer, that does not mean that a borrowed servant

relationship can never arise from brief assignments. See Capps v. N.L. Baroid-NL Indus.,

Inc.,

(5th Cir. 1986) (explaining that, when short, the duration of

8 employment provides only a “neutral assessment”). Thus, Fetter’s arguments that there

are genuine issues of material fact as to whether Higgs was a borrowed servant of Maersk

are unavailing. Higgs was a borrowed servant, and Fetter is thus barred from suing 3MC

for negligence.4

C. Fetter does not qualify as a Jones Act seaman.

Finally, Fetter argues that there are genuine issues of material fact as to whether he

was a seaman covered by the Jones Act. Not so.

The Supreme Court has articulated a two-prong standard to determine who

qualifies as a seaman. See Chandris,

. First, the individual’s “duties must

‘contribut[e] to the function of the vessel or to the accomplishment of its mission.’”

(citation omitted). Second, the individual must have a connection to a vessel or

group of vessels “in navigation … that is substantial in terms of both its duration and its

nature.”

The purpose of the second prong is “to separate the sea-based maritime

4 Again, the LHWCA provides the exclusive remedy to a covered maritime employee and insulates the injured party’s employer and fellow employees from tort liability.

(i) (“The right to compensation or benefits under this chapter shall be the exclusive remedy to an employee when he is injured … by the negligence or wrong of any other person or persons in the same employ[.]”). The parties appear to agree that § 933(i) immunity can extend to 3MC – Higgs’s nominal employer – in these circumstances, and we accept that for purposes of this appeal. Khan v. Att’y Gen.,

, 495 n.4 (3d Cir. 2012) (“[A]n issue is waived unless a party raises it in its opening brief, and for those purposes a passing reference to an issue will not suffice to bring that issue before this court.” (alteration in original) (quoting Skretvedt v. E.I. DuPont DeNemours,

(3d Cir. 2004))); see also Perron v. Bell Maint. & Fabricators, Inc.,

(5th Cir. 1992) (concluding that LHWCA tort immunity is “not personal to the co-employee, but rather ‘inhere[d] in the nature of the obligation’” and is therefore available to a co-employee’s solidary obligors (e.g., those liable under a theory of respondeat superior) (alteration in original) (citation omitted)). 9 employees who are entitled to Jones Act protection from those land-based workers who

have only a transitory or sporadic connection with a vessel in navigation, and therefore

whose employment does not regularly expose them to the perils of the sea.” Harbor Tug

& Barge Co. v. Papai,

(1997) (citation omitted). Here, the District

Court rightly concluded that Fetter failed to satisfy the “second prong because his work

on the ship ‘did not regularly expose him to the special hazards and disadvantages of the

sea.’” (App. at 27 (quoting Matter of Buchanan Marine, L.P.,

(2d Cir.

2017)).)

We agree that Fetter did not produce enough evidence to allow a reasonable juror

to find that he was a Jones Act seaman. Fetter was hired to work aboard the MONTANA

for one day while the ship was in port. He was not scheduled to go to sea, nor was he

hired to sail aboard the ship when it got underway. He was hired solely to complete

discrete repairs alongside other day engineers. Those undisputed facts demonstrate

conclusively that Fetter was not a Jones Act seaman.5

III. CONCLUSION

For the foregoing reasons, we will affirm the order of the District Court.

5 The fact that Maersk provided Fetter some limited maintenance and cure payments – a benefit typically reserved for seaman – does not alter our analysis of the undisputed facts. Immediately after testifying that Maersk paid him maintenance and cure, Fetter indicated that Maersk also attempted to pay him under the LHWCA.

10