Adriatic Marine, LLC v. Harrington

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

ADRIATIC MARINE, LLC CIVIL ACTION

VERSUS NO. 19-2440-WBV-KWR

ROLAND HARRINGTON SECTION: D (4)

ORDER AND REASONS

Before the Court is a Motion for Partial Summary Judgment on Jones Act

Negligence and Unseaworthiness, filed by Adriatic Marine, LLC (“Adriatic Marine”).1

The Motion is opposed,2 and Adriatic Marine has filed a Reply.3 After careful

consideration of the parties’ memoranda and the applicable law, the Motion is

GRANTED.

I. FACTUAL AND PROCEDURAL BACKGROUND

This Jones Act case arises out of an alleged slip and fall aboard the M/V

ADRIATIC, a vessel owned by plaintiff, Adriatic Marine, LLC (“Adriatic Marine”).

Roland Harrington (“Defendant”), claims that he was injured on or about March 18,

2018, while working as an unlicensed engineer for Adriatic Marine aboard the M/V

ADRIATIC.4 Defendant alleges that after cleaning inside the vessel’s bilge around

the port main engine, he stepped out of the bilge and lost his footing, causing him to

fall and hit his lower back on an angle iron.5 No one witnessed Defendant’s alleged

1 R. Doc. 26.

2 R. Doc. 30.

3 R. Doc. 45.

4 R. Doc. 1 at ¶ 6.

5 Id. at ¶ 8.

accident. Defendant did not report the injury until March 26, 2018, which is when

he completed an Incident Report. According to the Incident Report, the alleged injury

occurred at 9:00 a.m. on March 18, 2018.6

Adriatic Marine claims that on June 12, 2018, it received correspondence from

Defendant’s counsel, asserting that Defendant had been injured aboard the M/V

ADRIATIC on March 18, 2018, and requesting maintenance and cure benefits.7

Adriatic Marine alleges that it immediately initiated maintenance and cure benefits

in good faith, and began an investigation into the alleged incident.8 According to the

Complaint, Defendant provided Adriatic Marine with information that Defendant

had been under the care of Dr. Neil Romero, who had recommended that Defendant

undergo surgery. As part of its investigation into the alleged incident, Adriatic

Marine requested that Defendant undergo an independent medical examination by

Dr. Ralph Katz who, after the examination, disagreed with Dr. Romero’s request for

approval of a 2-level decompression and fusion surgical procedure. Based upon Dr.

Katz’s opinion, Adriatic Marine denied the requested surgical procedure.9

After conducting its investigation into the alleged accident, Adriatic Marine

contends that Defendant was not involved in an accident aboard the M/V ADRIATIC

on March 18, 2018, and/or that Defendant did not sustain any injury while in service

of any Adriatic Marine vessel.10 Adriatic Marine further alleges that Defendant

6 R. Doc. 26-7.

7 R. Doc. 1 at ¶ 14.

8 Id. at ¶ 15.

9 Id. at ¶ 17.

10 Id. at ¶ 18.

willfully and knowingly concealed his pre-existing medical conditions and/or failed to

disclose them to Adriatic Marine, including, but not limited to, prior issues and

injuries to his back.11 As such, Adriatic Marine claims that Defendant is not entitled

to maintenance and cure benefits.12 On March 18, 2019, Adriatic Marine filed a

Complaint for Declaratory Judgment in this Court, seeking a declaration that it is

not responsible for maintenance or cure benefits or, conversely, a determination

regarding past and future liability for maintenance and cure generally.13

On April 11, 2019, Defendant filed an Answer and Counterclaim to Adriatic

Marine’s Complaint, asserting that his accident and injuries were caused solely by

Adriatic Marine’s negligence and/or the unseaworthiness of the vessel.14 Defendant

also asserted a claim for maintenance and cure benefits from the date of his injury

until he reaches full recovery or maximum medical improvement.15 Defendant claims

that Adriatic Marine is liable to him under the Jones Act, 46 U.S.C. § 30104, because

Defendant was performing his duties as a seaman aboard the M/V ADRIATIC at the

time of the accident.16 Defendant also asserted a claim for punitive damages.17

On December 30, 2019, Adriatic Marine filed the instant Motion, seeking

summary judgment on Defendant’s counterclaims for Jones Act negligence and

11 Id. at ¶ 19.

12 Id. (citing Brown v. Parker Drilling Offshore Corp., 410 F.3d 166 (5th Cir. 2005); Jauch v. Nautical

Services, Inc., 470 F.3d 207 (5th Cir. 2006); McCorpen v. Central Gulf S.S. Corp., 396 F.2d 547 (5th

Cir. 1968)).

13 R. Doc. 1 at ¶ 22.

14 R. Doc. 7 at pp. 6-9.

15 Id. at p. 9, ¶ IX.

16 Id. at p. 6, ¶ III.

17 Id. at pp. 9-10, ¶ XI.

unseaworthiness under general maritime law.18 Adriatic Marine contends that

Defendant’s counterclaims must be dismissed because Defendant cannot establish or

offer any evidence showing that an accident occurred, that Adriatic Marine was

negligent under the Jones Act, or that the M/V ADRIATIC was unseaworthy. First,

Adriatic Marine asserts that Defendant cannot establish how his alleged accident

occurred, or if an accident occurred, because he testified during his deposition that he

does not know how the accident happened, stating only that he slipped while stepping

on a pipe in the bilge. Adriatic Marine points out that the unwitnessed accident is

entirely unsubstantiated, as there is no evidence that there was oil or grease on the

pipe in the bilge prior to Defendant allegedly stepping onto it. Adriatic Marine notes

that the Incident Report, which Defendant admitted he had read and understood

when he signed it, makes no mention of oil or grease, and provides only that

Defendant was “stepping out” of the bilge “and lost his footing.”19 Adriatic Marine

also points out that Defendant testified that he does not know what caused his alleged

accident.20

Adriatic Marine next argues that, even if Defendant can establish that the

accident occurred, he cannot establish that Adriatic Marine failed to provide him a

reasonably safe place to work, as required under the Jones Act.21 Adriatic Marine

points out that, “The mere fact that an accident occurs or that an injury is sustained

18 R. Doc. 26.

19 R. Doc. 26-1 at p. 9 (citing R. Docs. 26-6 & 26-7).

20 R. Doc. 26-1 at p. 9 (citing R. Doc. 26-3 at p. 12).

21 R. Doc. 26-1 at pp. 10-11 .

does not prove negligence under the Jones Act.”22 Adriatic Marine argues that there

was nothing inherently unsafe about having to clean a bilge, which is a task that

Defendant had previously performed without incident.23 Adriatic Marine compares

the facts of this case with those in Jones v. United States, wherein the Fifth Circuit

affirmed the district court’s decision granting summary judgment against a Jones Act

seaman who allegedly slipped and fell on a hatch cover.24 Adriatic Marine points out

that the plaintiff in Jones testified that he did not see what caused him to slip, but

that he believed he slipped on grease on the deck of the vessel. In granting summary

judgment on the plaintiff’s Jones Act negligence and unseaworthiness claims, the

district court in Jones noted that the plaintiff reported only that he lost his balance

and fell, but did not attribute his loss of balance to any particular cause.25

Adriatic Marine argues that the same is true here, as Defendant has only

alleged that he fell without identifying what may have caused him to fall. Adriatic

Marine notes that Defendant testified that he did not think that Adriatic Marine did

anything wrong to cause his alleged accident.26 Adriatic Marine points out that when

Defendant was asked what Adriatic Marine did wrong to cause his alleged accident,

he said “nothing” and testified that it was just a “freak accident:”

Q: Okay. What do you think -- you know, what do you think

that Adriatic did wrong to cause your accident?

A: Nothing.

22 Id. at p. 10 (citing Taylor v. Bisso Towboat Co., Civ. A. No. 07-3116, 2009 WL 2707452 (E.D. La. Aug.

25, 2009)).

23 R. Doc. 26-1 at p. 11; See Id. at pp. 9-10 (citing R. Doc. 26-5).

24 R. Doc. 26-1 at p. 11 (citing Jones, 936 F.3d 318, 320 (5th Cir. 2019)).

25 R. Doc. 26-1 at p. 11 (quoting R. Doc. 26-9 at p. 10) (quotation marks omitted).

26 R. Doc. 26-1 at p. 5.

Q: Okay. It was just an accident?

A: It was just an accident.

Q: And you told me earlier that you didn’t -- you know,

there was no -- no grease or anything like that on the pipe?

A: Yea. There was nothing on the pipe. It was just one of

those -- what you call a freak accident.27

Adriatic Marine asserts that there is no evidence that Defendant was required

to perform an unsafe task, that the pipe in the bilge was defective or that there was

oil or grease on the pipe. Moreover, Defendant testified during his deposition that

there was no oil or grease on the pipe right before he stepped onto it.28 Like in Jones,

Adriatic Marine argues that there is no causal link between Defendant’s alleged

injury and Adriatic Marine’s potential negligence and liability.29 Adriatic Marine

maintains that Defendant cannot explain or offer competent summary judgment

evidence regarding what caused his alleged accident, and that mere speculation or

unsubstantiated allegations at this point, after discovery has closed, are insufficient

to defeat summary judgment with respect to causation.30

Adriatic Marine further asserts that there is no competent summary judgment

evidence that it knew or should have known of an unsafe condition related to cleaning

the bilge.31 Adriatic Marine claims that in a Jones Act case, there must be some

evidence from which a jury can infer that the unsafe condition existed and that the

27 Id. (quoting R. Doc. 26-3 at p. 16).

28 R. Doc. 26-1 at p. 11.

29 Id. at p. 12.

30 Id. at pp. 12-13.

31 Id. at p. 13.

owner either knew or, in the exercise of due case, should have known of it.32 Adriatic

Marine argues that Defendant did not voice any concerns or issues with having to

clean the bilge, and even testified that, “I knew what I needed to do to get the job

done.”33 Adriatic Marine claims that the uncontradicted evidence shows there was

no leak or issue with the bilge prior to Defendant’s alleged accident. Even if there

was a leak or issue with the bilge, Adriatic Marine asserts Defendant cannot offer

any competent summary judgment evidence establishing that Adriatic Marine knew

or should have known of an unsafe condition related to cleaning the bilge.

Finally, Adriatic Marine argues that Defendant cannot establish

unseaworthiness of the underlying vessel, as Defendant cannot establish that the

M/V ADRIATIC was not reasonably fit for its intended use and has offered no

evidence in support of this contention.34 Adriatic Marine asserts that there is no

evidence that the bilge or the pipe upon which Defendant stepped were not

reasonably fit for their intended use, nor is there any evidence that the bilge, the pipe

or the M/V ADRIATIC were not functioning properly. According to Adriatic Marine,

the undisputed evidence establishes that the M/V ADRIATIC, its engines and the

bilge were all working, without incident or issue, at the time of Defendant’s alleged

accident.35 Adriatic Marine maintains that Defendant cannot offer any competent

summary judgment evidence establishing that the M/V ADRIATIC was unseaworthy,

32 Id. (quoting Perry v. Morgan Guar. Tr. Co. of N.Y., 528 F.2d 1378, 1379 (5th Cir. 1976)) (quotation

marks omitted).

33 R. Doc. 26-1 at p. 13 (quoting R. Doc. 26-3 at p. 15).

34 R. Doc. 26-1 at p. 14.

35 R. Doc. 26-1 at p. 15.

or that any unseaworthy condition was a substantial factor in causing his alleged

accident and injuries. As such, Adriatic Marine claims that it is entitled to summary

judgment on Defendant’s counterclaims for Jones Act negligence and

unseaworthiness.

Defendant opposes the Motion, asserting that Adriatic Marine is not entitled

to partial summary judgment because there are several contested issues of fact,

including whether he slipped on oil that leaked from the bilge that he was cleaning

and why someone who Adriatic Marine’s Captain thought was too large to get into

the bilge to clean it was assigned the task without an assistant.36 Contrary to

Adriatic Marine’s assertion, Defendant claims that the bilge cleaning operation that

was underway at the time of his accident was only the second time that he had been

assigned that task, noting that during his prior assignment, the vessel was docked

and he was provided with a helper.37 Defendant asserts that because no one was

assigned to help him, he had to physically remove the steel deck plates and get down

into the bilge area, depicted on page three of Adriatic Marine’s Memorandum in

Support of the instant Motion.38 Defendant claims that, due to his large stature, it

was difficult to get into the bilge area and, because of that confinement, he was unable

to look at his shoes prior to attempting to exit the bilge. Citing to his own deposition

testimony, Defendant explains that he stepped on some dry rags or absorbent pads

before stepping on a pipe to exit the bilge, “in case that was oil base on my boots, the

36 R. Doc. 30 at pp 4-5.

37 Id. at pp. 1-2 (citing R. Doc. 30-2 at p. 1).

38 R. Doc. 30 at p. 2.

rags could have wiped them off.”39 Although Defendant testified that he did not see

oil on the pipe as he was attempting to exit the bilge, Defendant contends that, “Of

course, the most likely and obvious reason that Harrington slipped would be oil on

his shoes since he was cleaning oil in the bilge while wearing his shoes and it likely

transferred to his shoes from the inside of the bilge.”40 Defendant argues that it is

up to the trier of fact to determine whether he slipped on oil after hearing the evidence

and assessing the credibility of the witnesses at trial.

Defendant further argues that Adriatic Marine was negligent in failing to

provide a safe place to work, failing to warn him of the condition of the bilge and

failing to provide him with assistance in cleaning the bilge.41 Although Defendant

cannot testify that he saw oil on his shoes, he claims that he had been standing and

kneeling in oil for an extended period of time while cleaning the bilge before trying to

climb out of the compartment. While Defendant did not see oil on the pipe he had

used to exit the bilge, he argues that, “the Court could reasonably conclude from this

evidence alone that the oil had to have been on Harrington’s shoes.”42 Defendant

contends that Adriatic Marine’s reliance upon Jones v. United States is misplaced

because Defendant knew there was oil in the bilge and, unlike in Jones, there is no

contradictory testimony regarding oil in the bilge other than Captain Christopher

Blake Calhoun’s speculative testimony that there was no oil leak in the bilge because

39 Id. at pp. 2-3 (quoting R. Doc. 30-2 at p. 4).

40 R. Doc. 30 at p. 5.

41 R. Doc. 30 at pp. 7, 9.

42 Id.

it would have been documented in the vessel logs.43 Defendant argues that Capt.

Calhoun’s testimony is contradicted by how Adriatic Marine handled at least one

other oil leak on May 20, 2018, where the engine room log shows that oil was cleaned

up but the vessel log makes no mention of an oil leak.44

With respect to his unseaworthiness claim, Defendant argues that Adriatic

Marine forced him to engage in an unsafe method of work by not providing him with

assistance or other accommodation to allow him to safely clean the bilge. 45

Alternatively, Defendant asserts that Adriatic Marine should have assigned the task

to someone who it deemed more physically suitable and able to safely clean the bilge.

Defendant maintains that there is evidence from which a trier of fact could conclude

that Adriatic Marine was negligent and its vessel unseaworthy, and that Adriatic

Marine has failed to demonstrate that there are no genuine issues of material fact in

dispute. As such, Defendant argues the Motion should be denied.

In response, Adriatic Marine maintains that summary judgment is warranted

because Defendant has failed to come forward with any competent summary

judgment evidence to establish how his accident occurred, that Adriatic Marine knew

or should have known of an unsafe condition related to cleaning the bilge, or that the

M/V ADRIATIC was not reasonably fit for its intended use.46 Adriatic Marine asserts

that Defendant has merely offered speculation and unsubstantiated assertions

regarding how he slipped, which are insufficient to create a genuine issue of fact

43 R. Doc. 30 at p. 7 (citing Jones, 936 F.3d 318 (5th Cir. 2019)).

44 R. Doc. 30 at p. 4 (citing R. Docs. 30-11 & 30-12).

45 R. Doc. 30 at p. 8.

46 R. Doc. 45 at pp. 1, 5, 6.

regarding liability or unseaworthiness. Adriatic Marine points out that Defendant

has failed to provide any evidence from any expert or fact witness that it was

negligent, that Defendant was required to perform an unsafe task or that the pipe

was defective. 47 Adriatic Marine further argues that several of Defendant’s

arguments are contradicted by his own admissions and deposition testimony. For

instance, Defendant’s admission that he cannot testify that he saw oil on his shoes

undercuts his argument that the accident occurred as a result of oil on his shoes.48

Likewise, Defendant’s assertion that Adriatic Marine should have suggested that he

check his shoes for oil ignores Defendant’s admission that, immediately before

stepping out of the bilge, he stepped on some dry, absorbent pads and rags that he

had brought into the bilge.49 As such, Adriatic Marine maintains that summary

judgment is warranted.

II. LEGAL STANDARD

A. Summary Judgment Standard

Summary judgment is appropriate where there is no genuine disputed issue as

to any material fact, and the moving party is entitled to judgment as a matter of

law.50 When assessing whether a dispute regarding any material fact exists, the

Court considers “all of the evidence in the record but refrain[s] from making

47 Id. at p. 3.

48 Id. (citing R. Doc. 30 at p. 7).

49 R. Doc. 45 at p. 4 (citing R. Doc. 30-1 at p. 3, ¶ 17).

50 Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265

(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202

(1986).

credibility determinations or weighing the evidence.” 51 While all reasonable

inferences must be drawn in favor of the nonmoving party, a party cannot defeat

summary judgment with conclusory allegations, unsubstantiated assertions or “only

a scintilla of evidence.”52 Instead, summary judgment is appropriate if a reasonable

jury could not return a verdict for the nonmoving party.53

If the dispositive issue is one on which the moving party will bear the burden

of proof at trial, the moving party “must come forward with evidence which would

entitle it to a directed verdict if the evidence went uncontroverted at trial.”54 The

non-moving party can then defeat summary judgment by either submitting evidence

sufficient to demonstrate the existence of a genuine dispute of material fact, or by

“showing that the moving party’s evidence is so sheer that it may not persuade the

reasonable fact-finder to return a verdict in favor of the moving party.”55 If, however,

the nonmoving party will bear the burden of proof at trial on the dispositive issue,

the moving party may satisfy its burden by merely pointing out that the evidence in

the record is insufficient with respect to an essential element of the nonmoving

party’s claim.56 The burden then shifts to the nonmoving party who must go beyond

the pleadings and, “by her own affidavits, or by the ‘depositions, answers to

51 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008)

(citations omitted).

52 Id. (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)) (internal quotation marks

omitted).

53 Delta & Pine Land Co., 530 F.3d at 399 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,

106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

54 International Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991).

55 Id. at 1265.

56 See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

interrogatories, and admissions on file,’ designate ‘specific facts showing that there

is a genuine issue for trial.’”57

Additionally, in a nonjury case, “a district court has somewhat greater

discretion to consider what weight it will accord the evidence.”58 “When deciding a

motion for summary judgment prior to a bench trial, the district court ‘has the limited

discretion to decide that the same evidence, presented to him or her as a trier of fact

in a plenary trial, could not possibly lead to a different result.’”59

III. ANALYSIS

A. Adriatic Marine is entitled to summary judgment on Defendant’s

counterclaim for Jones Act negligence.

Under the Jones Act, “A seaman injured in the course of employment . . . may

elect to bring a civil action at law . . . against the employer.”60 “A seaman is entitled

to recovery under the Jones Act . . . if his employer’s negligence is the cause, in whole

or in part, of his injury.”61 According to the Fifth Circuit, “The standard for causation

in Jones Act cases is ‘very light.’”62 The seaman can show causation if his employer’s

negligence played any part, even the slightest, in producing the injury.63 As

explained by the Fifth Circuit, “In Jones Act cases, there must be some evidence from

which a jury can infer that the unsafe condition existed and that the owner either

57 Celotex Corp., 477 U.S. at 324, 106 S.Ct. at 2553 (quoting Fed. R. Civ. P. 56(e)).

58 Johnson v. Diversicare Afton Oaks, LLC, 597 F.3d 673, 676 (5th Cir. 2010) (quotation omitted).

59 Id. (quoting In re Placid Oil Co., 932 F.2d 394, 398 (5th Cir. 1991)).

60 46 U.S.C. § 30104.

61 Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 335 (5th Cir. 1997).

62 O’Neill v. Seariver Maritime, Inc., 246 Fed.Appx. 278, 280 (5th Cir. 2007) (quoting Martin v. John

W. Stone Oil Distributor, Inc., 819 F.2d 547, 548 (5th Cir. 1987)).

63 Jones v. United States, 936 F.3d 318, 322 (5th Cir. 2019) (quoting Gautreaux, 107 F.3d at 335))

(quotation marks omitted).

knew or, in the exercise of due care, should have known of it.”64 The Jones Act does

not impose upon employers a higher duty of care than that required under ordinary

negligence. The standard of care is that of a reasonable person under the

circumstances.65 Additionally, a seaman is obligated under the Jones Act to act with

ordinary prudence under the circumstances, which includes not only his reliance

upon his employer to provide a safe work environment, but his own experience,

training or education.66

Here, Defendant’s negligence claim is based upon Adriatic Marine’s purported

failure to provide a reasonably safe place to work, its failure to warn Defendant of the

condition of the bilge and its failure to provide Defendant with assistance in cleaning

the bilge. Defendant asserts that Adriatic Marine’s failure to provide him with

assistance cleaning the bilge and the presence of oil in the bilge of the M/V ADRIATIC

created an unsafe condition.67 Defendant, however, has not provided any evidence

that he requested assistance in cleaning the bilge on March 18, 2018. Although

Defendant’s deposition testimony provides evidence that there was oil in the bilge

that he was assigned to clean on March 18, 2018,68 there is no evidence that the oil

created an unsafe condition or that it caused his alleged injury. Defendant testified

that when he first looked into the bilge, before getting into it to do the cleaning, he

saw oil and water.69 Defendant testified that he used a shop vac, as well as rags and

64 Perry v. Morgan Guar. Tr. Co. of N.Y., 528 F.2d 1378, 1379 (5th Cir. 1976).

65 Jones v. United States, 326 F. Supp. 3d 262, 268 (E.D. La. 2018) (quoting Gautreaux, 107 F.3d at

339) (quotation marks omitted).

66 Gautreaux, 107 F.3d at 339.

67 R. Doc. 7 at p. 7; R. Doc. 30 at p. 7.

68 R. Doc. 26-3 at pp. 9-11.

69 Id. at pp. 9-10.

absorbent pads, to soak up the oil and water “until it was good enough for me to get

in there.”70 As Adriatic Marine points out, Defendant specifically testified that,

before stepping on a pipe to get out of the bilge, he looked at the pipe and it did not

have any oil on it.71 Defendant also testified that there was nothing on the pipe that

may have caused him to slip.72 Defendant further testified that he does not know if

there was any oil on his shoes because he did not look at his shoes before stepping on

the pipe.73 However, Defendant testified that he stepped on some absorbent pads

before stepping onto the pipe, “So in case that [sic] was oil base on my boots, the rags

could have wiped them off -- . . . . -- before I tried stepping up.”74

Defendant’s March 26, 2018 Incident Report also makes no mention of any oil

or water at the site of the alleged accident. The Incident Report, which was prepared

eight days after the alleged accident, merely states that, “After he finished cleaning

he was stepping out and lost his footing. Causing him to slip and hit his lower back

on the angle iron.”75 According to the evidence submitted by Adriatic Marine,

Defendant testified that after he fell, he laid on the floor for about 15 minutes before

getting up and walking down the hall to the back deck of the vessel.76 Defendant has

not pointed the Court to any deposition testimony or other evidence indicating that

there were oil footprints where Defendant walked following the incident. The Court

70 Id.

71 R. Doc. 26-3 at pp. 12-13.

72 Id. at p. 13.

73 Id. at pp. 11-12.

74 Id. at p. 12.

75 R. Doc. 26-7 at p. 1.

76 R. Doc. 26-3 at pp. 13-14.

finds that Defendant was clearly able to investigate why he slipped, as he could have

examined the pipe and his shoes after he fell.

It was not until some time after the alleged accident, however, that Defendant

concluded that, “he slipped and fell while cleaning a fuel spill in the bilge.”77

Defendant asserts that, “the most likely and obvious reason that Harrington slipped

would be oil on his shoes since he was cleaning oil in the bilge while wearing his shoes

and it likely transferred to his shoes from the inside of the bilge.”78 Defendant

further contends that, “the Court could reasonably conclude from this evidence alone

that the oil had to have been on Harrington’s shoes.”79 These assertions, however,

are pure speculation on Defendant’s part. As Adriatic Marine correctly points out,

Defendant has failed to come forward with any competent summary judgment

evidence to show that his alleged slip and fall was caused by oil from the bilge.

Instead, Defendant has offered only conclusory allegations that are unsubstantiated

by any evidence in the record. While this Court is cognizant of the Supreme Court’s

instruction that “entirely circumstantial” evidence can prove a Jones Act claim,80

there must also be some evidence to complete “[t]he path from worker injury to

employer liability.”81 Moreover, the Fifth Circuit has made clear that a non-moving

party cannot defeat summary judgment with speculation, conclusory allegations,

77 R. Doc. 7 at p. 7.

78 R. Doc. 30 at p. 5.

79 Id. at p. 7.

80 See Jones v. United States, 936 F.3d 318, 322 (5th Cir. 2019) (quoting Rogers v. Mo. Pac. R.R. Co.,

352 U.S. 500, 508, 77 S.Ct. 443, 449, 1 L.Ed.2d 493 (1957)).

81 Jones, 936 F.3d at 322-23 (quoting Huffman v. Union Pacific R.R., 675 F.3d 412, 426 (5th Cir. 2012)).

unsubstantiated assertions, or only a scintilla of evidence.82 Accordingly, Defendant’s

unsubstantiated and conclusory assertions that he slipped on oil are not sufficient to

raise a genuine dispute as to causation.83

Likewise, Defendant has not presented any summary judgment evidence to

show that Adriatic Marine was negligent for failing to assign another crewmember to

assist him in cleaning the bilge. Although not a model of clarity, Defendant seems to

argue that Adriatic Marine should have provided him with assistance in cleaning the

bilge due to his large stature.84 As Adriatic Marine points out, however, the fact that

Capt. Calhoun was “astonished” that Defendant could fit in the bilge to clean it, given

his size,85 does not satisfy Defendant’s burden of proof on a Jones Act negligence

claim. The undisputed evidence shows that Defendant underwent a Job Safety

Analysis before he began cleaning the bilge, during which he discussed with Capt.

Gary Storie the potential “slips, trips, and falls” risk associated with the task.86

Defendant testified that he did not misunderstand anything that was discussed

during the Job Safety Analysis and that he did not ask Capt. Storie any questions

about how to specifically perform the task of bilge cleaning because he “knew what I

needed to do to get the job done.”87 In his discovery responses, Defendant also

admitted that he had testified that he knew how to perform the task of bilge cleaning

82 Lawrence v. Fed. Home Loan Mortg. Corp., 808 F.3d 670, 673 (5th Cir. 2015) (quoting Likens v.

Hartford Life & Accident Ins. Co., 688 F.3d 197, 202 (5th Cir. 2012)); Delta & Pine Land Co. v.

Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008) (quoting Little v. Liquid Air

Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).

83 See Lawrence v. Fed. Home Loan Mortg. Corp., 808 F.3d 670, 673 (5th Cir. 2015).

84 R. Doc. 30 at pp. 2-3, 5, 6-7.

85 R. Doc. 26-6 at p. 3.

86 R. Doc. 30-1 at pp. 1-2, ¶¶ 4-5; R. Doc. 26-3 at p. 14.

87 R. Doc. 26-3 at p. 15.

and that he did not need any specific instructions from Capt. Storie.88 There is no

evidence before the Court indicating that Defendant ever voiced any concerns or

issues with having to clean the bilge by himself.

There is also no evidence before the Court that Defendant asked for assistance

in cleaning the bilge on March 18, 2018, or that anyone instructed Defendant to stand

in the bilge to perform the task. In fact, Adriatic Marine has submitted evidence that

appears to show that Defendant cleaned the bilge by himself without incident on

March 14, 2018, March 15, 2018, March 16, 2018, and March 17, 2018 – the four days

preceding his alleged injury.89 Defendant failed to address this evidence in his

opposition brief. Instead, Defendant cited his own deposition testimony as evidence

that this was only the second time that he was assigned to clean the bilge and that

he was previously provided with a helper to perform the task.90 The testimony cited

by Defendant, however, does not support his position. Nonetheless, the evidence

submitted by Adriatic Marine demonstrates that Defendant did testify that he had

only cleaned the bilge once before his alleged accident, and that the vessel was docked

at the time of the prior cleaning.91 Contrary to Defendant’s assertion, there is no

evidence before the Court that Defendant was assisted by another crewmember

during that prior bilge cleaning assignment.

Based on the foregoing, the Court finds that Defendant has not offered any

summary judgment evidence to show Adriatic Marine knew or should have known of

88 R. Doc. 30-1 at p. 2, ¶ 7.

89 R. Doc. 26-5.

90 R. Doc. 30 at pp. 1-2 (citing R. Doc. 30-2 at p. 1).

91 R. Doc. 26-3 at pp. 4-5.

an unsafe condition related to cleaning the bilge, or that Defendant’s alleged slip and

fall was caused by any such unsafe condition or by Adriatic Marine’s failure to assign

another crewmember to assist Defendant in cleaning the bilge. Instead, Defendant

has offered only speculation and unsubstantiated allegations, which are insufficient

to create a genuine dispute regarding Defendant’s Jones Act negligence counterclaim.

Defendant has failed to direct the Court to any evidence connecting Defendant’s

alleged slip and fall to the presence of oil on his shoes or the pipe near the bilge that

he was cleaning on the M/V ADRIATIC on March 18, 2018. There is also no evidence

connecting Defendant’s alleged accident to the fact that Adriatic Marine did not

assign another crewmember to assist him in cleaning the bilge. Without such

evidence, it is not plausible to infer that oil from the bilge or the lack of assistance

caused the alleged accident. However, even if a reasonable juror could draw that

inference, the Court, as factfinder in this case, could not possibly draw that inference

based on the evidence presented.92 Accordingly, Adriatic Marine is entitled to

summary judgment on Defendant’s counterclaim that Adriatic Marine was negligent

under the Jones Act.

B. Adriatic Marine is entitled to summary judgment on Defendant’s

counterclaim that the M/V ADRIATIC was unseaworthy.

The Court likewise finds that Adriatic Marine is entitled to summary judgment

with respect to Defendant’s counterclaim that his alleged accident was caused by the

unseaworthiness of the M/V ADRIATIC. Under general maritime law, “A shipowner

92 See Johnson v. Diversicare Afton Oaks, LLC, 597 F.3d 673, 676 (5th Cir. 2010) (quotation omitted);

Jones v. United States, 326 F. Supp. 3d 262, 270 (E.D. La. 2018).

has an absolute nondelegable duty to provide a seaworthy vessel.”93 “For a vessel to

be found unseaworthy, the injured seaman must prove that the owner has failed to

provide a vessel, including her equipment and crew, which is reasonably fit and safe

for the purposes for which it is to be used.”94 “In addition, the plaintiff must establish

a causal connection between his injury and the breach of duty that rendered the

vessel unseaworthy.”95 The Fifth Circuit has explained that the standard of

causation for unseaworthiness claims is more demanding than the standard

applicable to Jones Act negligence claims, as it requires proof of proximate cause.96

To establish proximate cause in an unseaworthiness claim, “a plaintiff must prove

that the unseaworthy condition played a substantial part in bringing about or

actually causing the injury and that the injury was either a direct result or a

reasonably probable consequence of the unseaworthiness.”97

Here, Defendant’s counterclaim for unseaworthiness substantially overlaps

with his allegations regarding Jones Act negligence, as Defendant asserts that

Adriatic Marine failed to provide a seaworthy vessel due to the presence of oil in the

bilge and Adriatic Marine’s failure to assign another crewmember to assist him in

cleaning the bilge.98 It is well settled in this Circuit that a slippery surface may

render a vessel unseaworthy.99 However, as previously discussed, Defendant has

93 Brister v. A.W.I., Inc., 946 F.2d 350, 355 (5th Cir. 1991).

94 Jackson v. OMI Corp., 245 F.3d 525, 527 (5th Cir. 2001) (citations omitted).

95 Id.

96 Chisholm v. Sabine Towing & Transp. Co., Inc., 679 F.2d 60, 62 (5th Cir. 1982).

97 Brister, 946 F.2d at 355 (quoting Johnson v. Offshore Express, Inc., 845 F.2d 1347, 1354 (5th Cir.

1988)) (internal quotation marks omitted).

98 R. Doc. 30 at pp. 6-9.

99 Jones v. United States, 326 F. Supp. 3d 262, 270 (E.D. La. 2018) (citing Davis v. Hill Engineering,

Inc., 549 F.2d 314, 330 (5th Cir. 1977) (affirming district court’s finding that “slippery condition

failed to direct the Court to any evidence that raises a genuine dispute regarding

whether oil in the bilge played a part – let alone a substantial part – in causing

Defendant’s injury. Defendant has failed to submit any evidence that the bilge or the

pipe upon which he stepped were not reasonably fit for their intended use, nor has he

submitted any evidence to suggest that the M/V ADRIATIC, the bilge or the pipe upon

which he allegedly stepped were not functioning properly.

The Fifth Circuit has also held that a vessel can be rendered unseaworthy by

an inadequate, understaffed or ill-trained crew.100 Here, Defendant argues that the

A/V ADRIATIC was unseaworthy because he was not provided with assistance or

some other accommodation to allow him to safely perform the assigned task of

cleaning the bilge.101 As Adriatic Marine points out, however, the mere fact that

Capt. Calhoun testified that he was astonished that Defendant could climb into the

bilge, given his size, is insufficient to establish that Adriatic Marine provided an

inadequate, understaffed or ill-trained crew for the M/V ADRIATIC. Defendant has

failed to direct the Court to any competent summary judgment evidence that Adriatic

Marine’s failure to assign another crewmember to assist him in cleaning the bilge

rendered the deck unreasonably safe for its intended use”), overruled on other grounds by Gautreaux

v. Scurlock Marine, Inc., 107 F.3d 331, 339 (5th Cir. 1997); Levine v. Zapata Protein (USA), Inc., 961

F. Supp. 942, 945 (E.D. La. 1996) (finding that vessel was unseaworthy, at least in part, because “the

stairs were too steep and the threads of the steps were slippery due to their worn condition and lack

of a skid-proof surface”); Courville v. Cardinal Wireline Specialists, Inc., 775 F. Supp. 929, 936 (W.D.

La. 1991) (finding that vessel was “unseaworthy because of the absence of non-skid tape or some other

appropriate skid resistent [sic] surface on the steep steps between the galley and wheelhouse”)).

100 Glaze v. Higman Barge Lines, Inc., 611 Fed.Appx. 227, 228 (5th Cir. 2015) (quoting Marceaux v.

Conoco, Inc., 124 F.3d 730 (5th Cir. 1997), superseded on other grounds by rule, Fed. R. Evid. 103(a),

as recognized in Mathis v. Exxon Corp., 302 F.3d 448, 459 n.16 (5th Cir. 2002)) (internal quotation

marks omitted).

101 R. Doc. 30 at pp. 8-9.

played any part, much less a substantial part, in causing his alleged injury.

Accordingly, the Court finds that Adriatic Marine is entitled to summary judgment

on Defendant’s counterclaim for unseaworthiness under general maritime law.

Based on the foregoing, the Court finds that Adriatic Marine is entitled to

partial summary judgment with respect to Defendant’s counterclaims for Jones Act

negligence and unseaworthiness under general maritime law. The counterclaims are,

therefore, dismissed with prejudice.

IV. CONCLUSION

For the foregoing reasons, IT IS ORDERED that Adriatic Marine, LLC’s

Motion for Partial Summary Judgment on Jones Act Negligence and

Unseaworthiness!0?2 is GRANTED, and Roland Harrington’s counterclaims for Jones

Act negligence and unseaworthiness under general maritime law are DISMISSED

WITH PREJUDICE.

New Orleans, Louisiana, March 3, 2020.

United States District Judge

102 R, Doe. 26.