The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
IN THE MATTER OF CHEM CARRIERS TOWING, CIVIL ACTION
LLC
NO. 21-1025
SECTION: “G”(2)
ORDER AND REASONS
Before the Court is Petitioner Chem Carriers Towing, LLC’s (“Chem Carriers”) “Motion
for Partial Summary Judgment.”1 Claimant Kai Hollingsworth (“Hollingsworth”) opposes the
motion.2 Chem Carriers seeks partial summary judgment and dismissal of Hollingsworth’s
negligence and unseaworthiness claims.3 For the reasons discussed in detail below, there are
material facts in dispute precluding summary judgment on these claims. Accordingly, having
considered the motion, the memoranda in support and opposition, the record, and the applicable
law, the Court denies the motion.
I. Background
According to the Complaint, Hollingsworth was allegedly injured on June 10, 2020, when
the bunk where he slept broke free from the wall of Chem Carriers’ vessel the M/V Sam L. Hays
(“the Vessel”).4 On November 10, 2020, Hollingsworth filed a petition in the Civil District Court
for the Parish of Orleans requesting maintenance and cure as well as damages under the Jones Act
1 Rec. Doc. 31.
2 Rec. Doc. 35.
3 Rec. Doc. 31.
4 Rec. Doc. 1 at 1.
and general maritime law.5 Chem Carriers was served notice of Hollingsworth’s state court action
on December 2, 2020.6
On May 27, 2021, Chem Carriers filed a Complaint for Exoneration from or Limitation of
Liability in this Court.7 Hollingsworth timely answered the Complaint,8 and then filed a motion to
dismiss, or alternatively motion for summary judgment, arguing that Chem Carriers failed to file
this limitation of liability within six months of receiving notice of Hollingsworth’s claim.9 On
April 21, 2022, the Court denied the motion finding that the asserted untimeliness of Chem
Carriers’ filing did not implicate this Court’s jurisdiction, and that a genuine issue of material fact
exists as to when Chem Carriers received notice of a claim with a reasonable possibility of
exceeding the Vessel’s value.10
On March 8, 2022, Chem Carriers filed the instant “Motion for Partial Summary
Judgment.”11 On March 15, 2022, Hollingsworth filed his opposition.12 On March 22, 2022, Chem
Carriers filed a reply brief in further support of the motion.13
5 Rec. Doc. 13-1 at 2.
6 Rec. Doc. 1 at 3. In this Court’s order denying Hollingsworth’s motion to dismiss or alternate motion for
summary judgment, the Court noted that there is some ambiguity in the record as to when Chem Carriers received
notice of Hollingsworth’s state court proceedings. See Rec. Doc. 59 at 2 n.5. However, this discrepancy does not affect
the Court’s analysis of the instant motion.
7 Rec. Doc. 1.
8 Rec. Doc. 4.
9 Rec. Doc. 13.
10 Rec. Doc. 59.
11 Rec. Doc. 31.
12 Rec. Doc. 35.
13 Rec. Doc. 42.
II. Parties’ Arguments
A. Chem Carriers’ Arguments in Support of the Motion
Chem Carriers moves the Court to dismiss Hollingsworth’s negligence and
unseaworthiness claims.14 Chem Carriers argues that there is no evidence it was negligent or that
the Vessel was not reasonably fit for its intended purpose.15 Therefore, Chem Carriers asserts that
it is entitled to summary judgment.16
First, Chem Carriers contends that Hollingsworth cannot establish the essential elements
of his Jones Act negligence claim.17 Chem Carriers notes that Hollingsworth testified that he used
the bunk over eighty times before the alleged accident, and he testified he felt the bunk was safe
and in proper condition.18 Chem Carriers asserts that Hollingsworth’s “own testimony confirms
that there was absolutely no issue with the bunk up until the moment of the accident.”19 Chem
Carriers points out that its Health, Safety, and Environmental Director, Doug LeBlanc, performed
a vessel safety audit of the Vessel on April 15, 2020, less than two months before the accident, and
noted no deficiencies with the bunk.20 Additionally, Chem Carriers notes that LeBlanc relies on
vessel crewmembers to notify him of deficiencies with any equipment, but he did not receive any
complaints about the bunk before the accident.21 Therefore, Chem Carriers asserts that there is no
14 Rec. Doc. 31 at 1.
15 Rec. Doc. 31-2 at 1.
16 Id.
17 Id. at 6.
18 Id.
19 Id. at 7.
20 Id.
21 Id.
evidence in the record to establish that it knew or should have known of an alleged defect in the
bunk.22 Therefore, Chem Carriers asserts that the negligence claim should be dismissed.23
Second, Chem Carriers asserts that the unseaworthiness claim fails because the bunk was
reasonably suited for its intended purpose.24 Again, Chem Carriers points to Hollingsworth’s
testimony that he felt the bunk was safe for use, in proper condition, and reasonably suited for its
intended purpose.25 Chem Carriers submits that the mere fact that an accident happened does not
automatically render the vessel unseaworthy.26 Therefore, Chem Carriers asserts that the
unseaworthiness claim should be dismissed.27
B. Hollingsworth’s Arguments in Opposition to the Motion
In response, Hollingsworth states that he does not contest many of the facts presented in
the motion for summary judgment, but he asserts that “there are additional facts and opinions that
require that this motion be denied in its entirety.”28 As to the negligence claim, Hollingsworth
contends that an employer has the basic duty under the Jones Act to exercise reasonable care to
provide seamen with a safe place to work.29 Hollingsworth asserts that Chem Carrier’s motion “is
nothing more than a not so veiled attempt to shift the employer’s burden of providing a safe place
22 Id. at 8.
23 Id. at 10.
24 Id.
25 Id.
26 Id. at 9.
27 Id. at 10.
28 Rec. Doc. 35 at 1.
29 Id.
for [a] seaman to work, to the seaman himself.”30 Hollingsworth points to LeBlanc’s testimony
that he never inspected the bunks, merely “glancing at them” when he conducted the safety audit.31
Hollingsworth contends that his expert, Captain Gregg Nichols, will testify that an inspection of
the bunk would have revealed the problem that caused the accident.32
As to the unseaworthiness claim, Hollingsworth argues that a temporary or unforeseeable
malfunction or failure of a piece of equipment under proper and expected use is sufficient to
establish a claim of unseaworthiness.33 Hollingsworth asserts that deterioration of equipment may
render a previously seaworthy vessel unseaworthy.34 Hollingsworth contends that Nichols will
testify that the support or anchor frames in the bulkhead where the lag bolts were connected was
“more than likely deteriorated or wasted.”35 Hollingsworth argues that only a proper inspection of
the bunk and the securing lag bolts could have revealed the defective condition.36 For these
reasons, Hollingsworth submits that the motion for partial summary judgment must be denied.37
C. Chem Carriers’ Arguments in Further Support of the Motion
In reply, Chem Carriers points out that Hollingsworth did not dispute any of the facts listed
in its statement of undisputed facts.38 Therefore, Chem Carriers submits that these facts should be
30 Id. at 2.
31 Id.
32 Id.
33 Id. at 3.
34 Id. at 4.
35 Id.
36 Id.
37 Id.
38 Rec. Doc. 42 at 1.
deemed admitted.39 Chem Carriers concedes that LeBlanc did not specifically inspect the bunk
during the safety audit.40 Nevertheless, Chem Carriers submits that there is no evidence that any
inspection would have revealed any defect in the bunk.41 According to Chem Carriers,
Hollingsworth is implying that the bunk framing was deteriorated or wasted, but there is no actual
evidence in the record as to the condition of the framing.42 Chem Carriers contends that
Hollingsworth relies only on the unsupported speculation of Nichols, who never inspected the
bunk, to reach this conclusion.43 Chem Carriers submits that Nichols’ conclusory and speculative
opinions are not sufficient to create a genuine issue of material fact.44 Finally, Chem Carriers
asserts that Nichols’ report is not competent summary judgment evidence because it is not sworn
or verified and is not in the form of an affidavit or declaration.45
III. Legal Standard
Summary judgment is appropriate when the pleadings, discovery, and affidavits
demonstrate “no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.”46 To decide whether a genuine dispute as to any material fact exists, the court
considers “all of the evidence in the record but refrain[s] from making credibility determinations
39 Id.
40 Id. at 2.
41 Id.
42 Id.
43 Id.
44 Id. at 3.
45 Id. at 4.
46 Fed. R. Civ. P. 56(a); see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
or weighing the evidence.”47 All reasonable inferences are drawn in favor of the nonmoving
party.48 Yet “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and
conclusions of law’ are insufficient to either support or defeat a motion for summary judgment.”49
If the entire record “could not lead a rational trier of fact to find for the non-moving party,” then
no genuine issue of fact exists and, consequently, the moving party is entitled to judgment as a
matter of law.50 The nonmoving party may not rest upon the pleadings.51 Instead, the nonmoving
party must identify specific facts in the record and articulate the precise manner in which that
evidence establishes a genuine issue for trial.52
The party seeking summary judgment always bears the initial responsibility of showing the
basis for its motion and identifying record evidence that demonstrates the absence of a genuine
issue of material fact.53 “To satisfy this burden, the movant may either (1) submit evidentiary
documents that negate the existence of some material element of the opponent’s claim or defense,
or (2) if the crucial issue is one on which the opponent will bear the ultimate burden of proof at
trial, demonstrate that the evidence in the record insufficiently supports an essential element of the
opponent’s claim or defense.”54 If the moving party satisfies its initial burden, the burden shifts to
47 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008).
48 Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (quoting Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 150 (2000))
49 Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.
50 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
51 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
52 See id.; Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
53 Celotex, 477 U.S. at 323.
54 Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 190 (5th Cir. 1991) (quoting Little, 939 F.2d at 1299).
the nonmoving party to “identify specific evidence in the record, and to articulate” precisely how
that evidence supports the nonmoving party’s claims.55 The nonmoving party must set forth
“specific facts showing the existence of a ‘genuine’ issue concerning every essential component
of its case.”56
The nonmovant’s burden of demonstrating a genuine issue of material fact is not satisfied
merely by creating “some metaphysical doubt as to the material facts,” “by conclusory
allegations,” by “unsubstantiated assertions,” or “by only a scintilla of evidence.”57 Moreover, the
nonmoving party may not rest upon mere allegations or denials in its pleadings.58
IV. Analysis
Chem Carriers seeks partial summary judgment and dismissal of Hollingsworth’s
negligence and unseaworthiness claims.59 Each claim is addressed in turn.
A. Whether Chem Carriers is Entitled to Summary Judgment on the Negligence Claim
Chem Carriers contends that Hollingsworth cannot establish the essential elements of his
Jones Act negligence claim.60 Chem Carriers asserts that there is no evidence in the record to
establish that it knew or should have known of an alleged defect in the bunk.61 In response,
Hollingsworth contends that an employer has the basic duty under the Jones Act to exercise
55 Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994); see also Morris
v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).
56 Morris, 144 F.3d at 380; see also Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012).
57 Little, 37 F.3d at 1075 (internal citations omitted).
58 Morris, 144 F.3d at 380.
59 Rec. Doc. 31.
60 Rec. Doc. 31-2 at 6.
61 Id. at 8.
reasonable care to provide seamen with a safe place to work.62 Hollingsworth asserts that Chem
Carrier’s motion “is nothing more than a not so veiled attempt to shift the employer’s burden of
providing a safe place for [a] seaman to work, to the seaman himself.”63
A Jones Act employer is required to exercise “ordinary prudence under the
circumstances,”64 to maintain a “reasonably safe work environment.”65 “In order to prevail in a
claim for negligence, the plaintiff must present some evidence from which the fact finder can infer
that an unsafe condition existed and that the vessel owner either knew, or in the exercise of due
care should have known, of the condition.”66 While the Jones Act employer’s duty to provide a
reasonably safe place to work is broad in scope, it is not a form of strict liability.67 “[T]he employer
must have notice and the opportunity to correct an unsafe condition before liability attaches.”68
Under the Jones Act, “an employer is liable for the negligence of his employees.”69 “If the
defendant’s negligence played any part, however small, in producing the seaman’s injury, it results
in liability.”70
62 Rec. Doc. 35 at 1.
63 Id. at 2.
64 Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 338 (5th Cir. 1997) (en banc).
65 Ober v. Penrod Drilling Co., 726 F.2d 1035, 1037 (5th Cir. 1984) (per curiam).
66 Martinez v. Offshore Specialty Fabricators, Inc., 481 Fed. App’x 942, 945 (5th Cir. 2012) (citing Perry v.
Morgan Guar. Tr. Co. of N.Y., 528 F.2d 1378, 1379 (5th Cir. 1976)).
67 Colburn v. Bunge Towing, Inc., 883 F.2d 372, 374 (5th Cir. 1989) (citing Bobb v. Mod. Prods., Inc., 648
F.2d 1051, 1057 (5th Cir. 1981)).
68 Id. (citing Perry, 528 F.2d at 1380).
69 Brister v. A.W.I., Inc., 946 F.2d 350, 354 (5th Cir. 1991).
70 Id. (citing Chisholm v. Sabine Towing & Transp. Co., Inc., 679 F.2d 60, 62 (5th Cir. 1982).
Many of the facts at issue in this case are undisputed. During his deposition, Hollingsworth
testified that he slept in the bunk approximately eighty-six times before the accident.71
Hollingsworth testified that he never had any problems with the bunk, and he felt it was safe and
in proper condition.72 Prior to the accident, Hollingsworth could not recall any complaints about
the bunk, and he was not concerned that the bunk could come loose.73
Chem Carriers’ Health, Safety, and Environmental Director, Doug LeBlanc, was also
deposed. LeBlanc testified that he performs vessel safety audits twice per year.74 Before he begins
his audits, he gathers available crewmembers in the galley or wheelhouse to advise him of any
issues on the Vessel.75 LeBlanc performed an audit of the Vessel on April 15, 2020, less than two
months before the accident.76 That audit noted no deficiencies with the bunk.77 However, LeBlanc
stated that he only “glanced” at the bunks and he did not inspect them.78
Hollingsworth points to the report of his expert, Captain Gregg Nichols. The report states
Nichols’ opinion, based on review of photographs of the bunk room, that the bunk failed because
the support frames on the vessel “were more than likely deteriorated or wasted.”79 Chem Carriers
71 Rec. Doc. 31-4 at 7.
72 Id. at 7–8.
73 Id. at 11.
74 Rec. Doc. 31-5 at 2.
75 Id. at 3.
76 Id. at 6.
77 Id.
78 Rec. Doc. 35-1 at 4–5.
79 Rec. Doc. 35-2 at 5. Chem Carriers argues that the expert report is not competent summary judgment
evidence because it is unsworn. This argument is unavailing. Unsworn expert reports may be considered as competent
summary judgment evidence if the opinions expressed in them can be presented in an admissible form at trial. See
Patel v. Tex. Tech Univ., 941 F.3d 743, 746 (5th Cir. 2019). Nichols’ opinions can be presented in an admissible form
asserts that Nichols’ opinion should be disregarded because he has never been aboard the vessel,
never inspected the bunk, and has no particular expertise to allow him to even offer such an
opinion. Chem Carriers’ arguments regarding the admissibility of Nichols’ testimony are subject
of a separately filed Daubert motion. As discussed in more detail in the Order and Reasons
addressing that motion, Chem Carriers’ arguments ultimately go to the weight to be afforded to
Nichols’ proposed testimony, not to its admissibility. The Court cannot weigh evidence or make
credibility determinations when deciding a motion for summary judgment.
The parties do not dispute that the bunk fell from the wall while Hollingsworth was
sleeping. Chem Carriers asks the Court to accept that they could not have been aware of any defect
in the bunk because Hollingsworth did not tell them of the condition and because their inspector
did not find a defect when he performed a cursory inspection of the bunk room. Clearly, something
caused the bunk to come loose from the wall. Hollingsworth’s expert will testify that he believes
the failure was the result of deteriorated or wasted support frames.80 There are material facts in
dispute regarding whether this alleged defect caused the bunk to fall and whether Chem Carriers
in the exercise of due care should have known of the condition. Accordingly, Chem Carriers is not
entitled to summary judgment on the negligence claim.
B. Whether Chem Carriers is Entitled to Summary Judgment on the Unseaworthiness
Claim
Chem Carriers asserts that the unseaworthiness claim fails because the bunk was
reasonably suited for its intended purpose.81 Hollingsworth argues that a temporary or
at trial through his testimony.
80 Rec. Doc. 35-2 at 5.
81 Rec. Doc. 31-2 at 8.
unforeseeable malfunction or failure of a piece of equipment under proper and expected use is
sufficient to establish a claim of unseaworthiness.82 Hollingsworth asserts that deterioration of
equipment may render a previously seaworthy vessel unseaworthy.83
“General maritime law imposes a duty upon shipowners to provide a seaworthy vessel.”84
An unseaworthiness claim is “based on the vessel owner’s duty to ensure that the vessel is
reasonably fit to be at sea.”85 Unlike a Jones Act negligence claim, unseaworthiness does not
require notice.86
“A vessel is unseaworthy only if it presents an unreasonable risk of harm to the seaman.”87
The owner is not “obligated to furnish an accident-free ship.”88 Rather, seaworthiness requires
only that “a vessel and its appurtenances must be reasonably suited for the purpose or use for which
they were intended.”89 To succeed on an unseaworthiness claim, the plaintiff must also establish
a causal connection between his injury and the breach of duty that rendered the vessel
unseaworthy.90 The standard of causation for an unseaworthiness claim is more demanding than
82 Rec. Doc. 35 at 3.
83 Id. at 4.
84 Luwisch v. Am. Marine Corp., 956 F.3d 320, 326 (5th Cir. 2020) (quoting Hlodan v. Ohio Barge Line, Inc.,
611 F.2d 71, 74 (5th Cir. 1980)).
85 Gowdy v. Marine Spill Response Corp., 925 F.3d 200, 205 (5th Cir. 2019) (quoting Beech v. Hercules
Drilling Co., L.L.C., 691 F.3d 566, 570 (5th Cir. 2012)).
86 Luwisch, 956 F.3d at 328 n.1; Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549 (1960) (“[T]he
shipowner’s actual or constructive knowledge of the unseaworthy condition is not essential to his liability.”).
87 Park v. Stockstill Boat Rentals, Inc., 492 F.3d 600, 604 (5th Cir. 2007) (internal citations omitted).
88 Id. (quoting Mitchell, 362 U.S. at 550).
89 Id. (quoting Johnson v. Offshore Express, Inc., 845 F.2d 1347 (5th Cir. 1988)).
90 Jackson v. OMI Corp., 245 F.3d 525, 527 (5th Cir. 2001) (citing Caldwell v. Manhattan Tankers Corp.,
618 F.2d 361, 363 (5th Cir. 1980)).
for a Jones Act negligence claim and requires proof of proximate cause.”! The plaintiff must prove
“that the unseaworthy condition played a substantial part in bringing about or actually causing [an]
injury and that the injury was either a direct result or a reasonably probable consequence of the
unseaworthiness.”°”
Numerous courts have recognized that a “temporary and unforeseeable malfunction or
failure of a piece of equipment under proper and expected use is sufficient to establish a claim of
damages for unseaworthiness.””* The parties do not dispute that Hollingsworth was using the bunk
for its intended purpose—sleeping. As discussed above, there are material facts in dispute
regarding whether an alleged defect in the vessel caused the bunk to fall. Accordingly, Chem
Carriers is not entitled to summary judgment.
V. Conclusion
For the foregoing reasons, there are material facts in dispute precluding summary judgment
on Hollingsworth’s negligence and unseaworthiness claims. Accordingly,
IT IS HEREBY ORDERED that Chem Carriers’ “Motion for Partial Summary
Judgment”™ is DENIED.
NEW ORLEANS, LOUISIANA, this 31st day of May, 2022.
NANNETTE JOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT
*! Gowdy, 925 F.3d at 208-09.
2 Luwisch, 956 F.3d at 326 (quoting Offshore Express, 845 F.2d at 1354).
% Crane v. Diamond Offshore Drilling, Inc., 99-166, p. 15 (La. App. 5 Cir. 9/15/99); 743 So. 2d 780, 790
(quoting Ferrara v. A. & V. Fishing Inc., 99 F.3d 449 (1st Cir. 1996)).
* Rec. Doc. 31.