# Adriatic Marine, LLC v. Harrington

> District Court, E.D. Louisiana · March 3, 2020

URL: https://www.frixlaw.com/law-library/cases/10185288

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** March 3, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10185288

## How later opinions describe it (automated extraction)

- 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”
- 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”

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10185288. Public record. Not legal advice.