Huntsman, LLC et al v. Blessey Marine Service, Inc.

Filing 46

ORDER & REASONS: ORDERED that K-Solv's 12(b)(6) Motion to Dismiss (Rec. Doc. 44) is GRANTED IN PART with regards to Huntsman's claims against K-Solv for breach of contract, unseaworthiness, and want of workmanlike performance and DENIED IN PART with regards to Huntsman's claims against K-Solv for want of due care and negligence. IT IS FURTHER ORDERED that Huntsman's claims against K-Solv for breach of contract, unseaworthiness, and want of workmanlike performance are hereby DISMISSED WITH PREJUDICE. Signed by Judge Carl Barbier on 7/1/15. (Reference: 14-1396)(sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

HUNTSMAN, LLC, ET AL

CIVIL ACTION

VERSUS

NO: 14-1396

BLESSEY MARINE SERVICES, INC.,

SECTION: J(5)

ET AL
ORDER AND REASONS
Before the Court is a 12(b)(6) Motion to Dismiss (Rec. Doc.
44) filed by Defendant, K-Solv Marine Services (“K-Solv”) and an
Opposition thereto (Rec. Doc. 45) by Plaintiff, Huntsman, LLC
(“Huntsman”).
submissions,

Having
the

considered

record,

and

the

the

motion,

applicable

the
law,

parties’
the

Court

finds, for the reasons expressed below, that the motion should
be GRANTED IN PART AND DENIED IN PART.
PROCEDURAL AND FACTUAL BACKGROUND
This matter arises out of a contractual dispute between
Huntsman and Blessey Marine Services, Inc. (“Blessey”). In June
2013 Huntsman contracted with Blessey pursuant to a Term Time
Charter Master Service Agreement (“the Charter Agreement”) to
charter tank barge WEB 190H (“the barge”) to carry a shipment of
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503.105 metric tons of Alkylate A225 PG cargo (“the cargo”) from
Chocolate Bayou, Texas to the Port of Houston, where it would be
lightered
Agreement,

to

ocean

Blessey

professionally
Huntsman,

an

and

going

agreed

cleaned
Blessey

vessel.
that

prior

it

to

As

part

would

delivery

subsequently

of

the

have
of

the

Charter
barge

barge

to

with

contracted

the

K-Solv

to

perform the cleaning services. Huntsman alleges that K-Solv was
aware that the barge was to be cleaned for Huntsman’s charter,
because the purchase order and invoice issued from Blessey to
Huntsman

disclosed

that

the

work

was

to

be

performed

for

Huntsman and provided the specific trip number. (Rec. Doc. 45,
p. 2). K-Solv performed the cleaning services and returned the
vessel to Blessey.
On June 10, 2013, Blessey delivered the barge to Huntsman
at Chocolate Bayou, at which point the cargo was loaded onto the
vessel. Blessey then towed the barge to the Port of Houston,
where the cargo was to be lightered to the M/T MIDSTREAM MIA.
Prior

to

unloading

the

cargo,

the

cargo

was

examined

and

believed to be contaminated. One of the parties took samples of
the cargo, which were then analyzed by a lab. This analysis
revealed that the cargo was contaminated with “white flakes,
water,

rust,

and

other

contaminants.”
2

(Rec.

Doc.

45,

p.

3).

Huntsman

alleges

that

this

contamination

required

immediate

filtering, cleaning, and reconditioning of the cargo using a
second

barge,

which

ultimately

resulted

in

a

loss

of

approximately 18.221 metric tons of cargo.
Huntsman filed the present lawsuit against Blessey in this
Court

on

June

13,

2014,

alleging

that

Blessey

breached

the

Charter Agreement and acted negligently and without due care.
(Rec.

Doc.

complaint

1,
on

p.

3).

February

Huntsman
6,

subsequently

2015,

adding

filed

K-Solv,

an

amended

amongst

other

parties, as a defendant in the matter. (Rec. Doc. 26). In its
amended complaint, Huntsman asserts claims against K-Solv for:
(1)

breach

of

unseaworthiness,

contract
(3)

want

and/or
of

charter

workmanlike

party,

performance,

(2)
(4)

negligence, and/or (5) want of due care. (Rec. Doc. 26, p. 4).
K-Solv has filed the instant motion seeking dismissal of
all Huntsman’s claims against it pursuant to Federal Rule of
Civil Procedure 12(b)(6), on the basis that Huntsman’s amended
complaint fails to state a valid claim.
LEGAL STANDARD
Under the Federal Rules of Civil Procedure, a complaint
must contain “a short and plain statement of the claim showing
that

the

pleader

is

entitled

to
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relief.”

Fed.

R.

Civ.

P.

8(a)(2). The complaint must “give the defendant fair notice of
what the claim is and the grounds upon which it rests.” Dura
Pharm.,

Inc.

v.

Broudo,

544

U.S.

336,

346

(2005).

The

allegations “must be simple, concise, and direct.” Fed. R. Civ.
P. 8(d)(1).
“Under

Rule

12(b)(6),

a

claim

may

be

dismissed

when

a

plaintiff fails to allege any set of facts in support of his
claim which would entitle him to relief.” Taylor v. Books A
Million,

Inc.,

296

F.3d

376,

378

(5th

Cir.

2002)

(citing

McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 561 (5th
Cir. 1998)). To survive a Rule 12(b)(6) motion to dismiss, the
plaintiff must plead enough facts to “state a claim to relief
that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
547 (2007)). A claim is facially plausible when the plaintiff
pleads

facts

inference

that

that

the

allow

the

court

defendant

is

to

“draw

the

reasonable

for

the

misconduct

liable

alleged.” Id. A court must accept all well-pleaded facts as true
and

must

draw

all

reasonable

inferences

in

favor

of

the

plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232-33
(5th Cir. 2009); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir.
1996). The court is not, however, bound to accept as true legal
4

conclusions couched as factual allegations.

Iqbal, 556 U.S.at

678.
DISCUSSION
As an initial matter, it is necessary to determine the
scope of evidence which the Court may consider in resolving this
motion.

In

support

of

its

motion,

K-Solv

has

attached

the

Charter Agreement as an exhibit. Huntsman contests the use of
the

Charter

Agreement

as

an

exhibit,

arguing

that

it

is

“inappropriate and objectionable as it is contrary to the four
corners rule which provides that the Court need not look beyond
the four corners of the Complaint to determine whether a cause
of action has been properly asserted.” (Rec. Doc. 45, p. 2).
Despite
caution,”
exhibits

Huntsman’s
Huntsman
to

its

contentions,
attaches

Opposition,

“out

several
including

of
pieces

an
of

invoices,

abundance

of

evidence

as

the

purchase

order delivered to K-Solv, and emails between the parties.
Huntsman is correct in its assertion that courts generally
are confined to considering material within the “four corners”
of a plaintiff’s complaint when determining 12(b)(6) motions. In
fact, “generally, in deciding a motion to dismiss for failure to
state a claim, if matters outside the pleading are presented to
and not excluded by the court, the motion shall be treated as
5

one for summary judgment.” In re Katrina Canal Breaches Litig.,
495 F.3d 191, 205 (5th Cir. 2007) (citing Fed. R. Civ. P. 12(b)
(internal quotations omitted)). However, the Fifth Circuit has
clearly recognized that “documents that a defendant attaches to
a motion to dismiss are considered part of the pleadings if they
are referred to in the plaintiff’s complaint and are central to
her claim.” Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d
285, 288 (5th Cir. 2004) (citing Collins v. Morgan Stanley Dean
Witter, 224 F.3d 496, 498-99 (5th Cir. 2000)).
Here, in its amended complaint, Huntsman asserts a claim
against K-Solv for “breach of contract and/or charter party.”
Nowhere in its complaint does Huntsman allege that there was
ever

a

Instead,
Charter

contract
the

only

Agreement.

entered

into

contract

between

at

Therefore,

issue
because

K-Solv

in

this

Huntsman

and

Huntsman.

matter
does

is

the

not

and

cannot prove that K-Solv breached any contract other than the
Charter Agreement, the Court must presume that its claim against
K-Solv for breach of contract refers to the Charter Agreement.
Accordingly, because the Charter Agreement was both attached by
K-Solv to the instant motion, and forms the basis of Huntsman’s
claims against K-Solv, the Court finds that it forms a part of

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the pleadings, and may be considered in resolving the instant
motion.
However, Huntsman has not shown, nor does the Court find,
that the exhibits attached to its Opposition are central to its
claims so as to form a part of the pleadings. Instead, the email correspondence, the purchase order, and the two invoices
are neither referenced by Huntsman in its complaint nor do they
form a basis for its claims against K-Solv. As such, while the
Court may consider the Charter Agreement, the various exhibits
attached to Huntsman’s Opposition are not part of the pleadings
and may not be considered in resolving the instant motion.
Turning to the merits of Huntsman’s claims against K-Solv,
the Court will consider each individual claim in turn.
A. Breach of Contract
In

its

amended

complaint,

Huntsman

alleges

that

K-Solv

breached a “contract and/or charter party,” yet fails to specify
the contract which it alleges was breached or the exact conduct
of K-Solv which constituted such a breach. As noted above, the
only contract between the parties in this matter is the Charter
Agreement.

With

regards

to

the

Charter

Agreement,

Huntsman

admits as follows:
Regarding the Master Charter Party between Blessey and
Huntsman (“MSA”) attached to K-Solv’s motion, it does
7

not apply to Huntsman’s claims against K-Solv. . . .
K-Solv is not a party to the [Charter Agreement] nor
has K-Solv established that it is a beneficiary of it.
(Rec. Doc. 45, p. 6). Therefore, it is undisputed that K-Solv
did not breach the Charter Agreement.
Moreover,

the

parties

do

not

dispute

that

no

written

contract was ever signed between Huntsman and K-Solv. Instead,
Huntsman alleges in its Opposition that “K-Solv’s knowledge that
it was performing work for the benefit of Huntsman and that
Huntsman’s cargo would be carried in the barge gives rise to a
contractual

relationship

between

Huntsman

and

K-Solv.”

(Rec.

Doc. 45, p. 6). However, Huntsman has failed to provide any
support for its contention that K-Solv’s mere knowledge that its
services would benefit Huntsman creates a type of contractual
relationship

between

Huntsman

and

K-Solv.

Because

Huntsman

cannot rely on any facts or evidence to prove that a contractual
relationship existed between itself and K-Solv or that K-Solv
breached this contract, dismissal of this claim is warranted.
B. Unseaworthiness
Huntsman’s

amended

complaint

also

asserts

a

claim

for

unseaworthiness. K-Solv seeks dismissal of this claim on the
basis that “there is no allegation that K-Solv owed a duty of
seaworthiness

to

plaintiffs,

nor
8

do

the

facts

of

case

[sic]

support such an allegation.” (Rec. Doc. 44-1, p. 3). In its
Opposition,

Huntsman

unseaworthiness.

As

fails
such,

to

the

address

Court

its

will

claim

consider

for

K-Solv’s

motion with regard to the claim of unseaworthiness unopposed.
Moreover,
claim

for

the

Court

finds

unseaworthiness

to

K-Solv’s
be

motion

meritorious.

regarding
It

is

the

widely

recognized that in order for a defendant to be held liable for
injuries caused by a breach of the warranty of seaworthiness,
the

defendant

“must

be

in

the

relationship

of

an

owner

or

operator of a vessel.” Baker v. Raymond Intern., Inc., 656 F.2d
173, 182 (5th Cir. 1981) (citing Daniels v. Fla. Power & Light
Co., 317 F.2d 41, 43 (5th Cir. 1963)). Because there is no
dispute that K-Solv neither owned nor operated the barge which
allegedly

caused

injury

to

Huntsman,

Huntsman’s

claim

for

unseaworthiness against K-Solv should be dismissed.
C. Workmanlike Performance
In its amended complaint, Huntsman also asserts a claim for
“want

of

workmanlike

finds

that

this

performance”

claim

is

against

misplaced.

The

K-Solv.

The

Court

Supreme

Court

has

recognized that the duty of workmanlike performance is a duty
owed by a stevedore to a vessel owner in which a stevedore may
be held “liable to indemnify the owner for damages sustained as
9

a result of the stevedore’s improper stowage of cargo.” Italia
Societa per Azioni di Navigazione v. Or. Stevedoring Co., 376
U.S.

315,

analogized

318,

84

this

S.Ct.

duty

748,

to

“a

751

(1964).

The

manufacturer’s

Supreme

warranty

Court

of

the

soundness of its manufactured product.” Id. Huntsman has not
provided the Court with, nor is the Court aware of, any cases in
which

a

court

determined

that

a

stevedore

or

other

maritime

entity owed a duty of workmanlike performance to anyone other
than a vessel owner. Instead, this warranty has been developed
to

address

the

issue

of

indemnity

between

vessel

owners

and

stevedores. Because Huntsman is not the owner of the barge, it
is

inappropriate

for

Huntsman

to

raise

a

claim

for

want

of

workmanlike performance against K-Solv in this matter.
D. Due Care & Negligence
The Court will address Huntsman’s remaining claims for want
of due care and negligence together due to the factual and legal
similarities between the claims. K-Solv argues that these claims
should be dismissed, because Huntsman has failed to show that KSolv owed it any duty pertaining to its cleaning services. KSolv

asserts

regarding

the

that

the

cleaning

only
of

duties

the

barge

to

which

were

it

owed

was

bound

directly

to

Blessey, and that it owed no duty, contractual or otherwise, to
10

Huntsman. In response, Huntsman argues that because K-Solv was
aware that its services would ultimately benefit Huntsman, this
knowledge imputed “a duty of reasonable care . . .

in cleaning

the barge.” (Rec. Doc. 45, p. 6).
Because no contract existed between Huntsman and K-Solv, KSolv did not owe any contractual duty to Huntsman regarding its
cleaning of the boat. However, Huntsman does have a plausible
claim for negligence based on the legal duty owed by K-Solv. As
noted by K-Solv, under general maritime law:
[A] tortfeasor is accountable only to those to whom a
duty is owed. Duty is measured by the scope of the
risk that negligent conduct foreseeably entails. The
risk of foreseeability is whether the harm that does
occur is within the scope of danger created by the
defendant’s negligent conduct.
Oliver v. Weeks Marine, Inc., No. 10-796, 2011 WL 2413498, at *1
(E.D. La. June 13, 2011) (Lemmon, J.) (quoting In re Signal
Intern.,

LLC,

579

F.3d

478,

491

(5th

Cir.

2009)

(internal

quotations and citations omitted)). Here, considering Huntsman’s
factual allegations as true, K-Solv was notified, both by the
invoice and purchase order provided to it by Blessey, that its
cleaning services were intended to benefit Huntsman. Thus, it
was reasonably foreseeable to K-Solv that its alleged conduct in
failing to adequately clean the barge would ultimately cause
injury to Huntsman. Therefore, despite the lack of a contractual
11

relationship between Huntsman and K-Solv, Huntsman has alleged
sufficient facts at this stage in the proceedings to show that
K-Solv owed it a legal duty to adequately clean the barge.
K-Solv also relies on the language of the Charter Agreement
to argue that the duty to adequately inspect the barge fell to
Huntsman, and that Huntsman is bound to indemnify K-Solv from
all claims related to Blessey’s negligence. K-Solv first notes
that the Charter Agreement obligated Huntsman “to determine the
suitability

of

barge(s)

prior

to

loading

designated

cargo.”

(Rec. Doc. 44-1, p. 5). K-Solv further notes that the Charter
Agreement provides that Huntsman would indemnify Blessey and its
agents

for

all

claims

brought

by

Huntsman

or

its

employees

related to loss caused by Huntsman’s negligence. (Rec. Doc. 441,

p.

failing

5-6).
to

Because
properly

Huntsman
inspect

allegedly
the

barge

acted
prior

negligently
to

loading

by
its

cargo, K-Solv asserts that Huntsman should indemnify K-Solv, as
an agent of Blessey, for the present lawsuit and that Huntsman’s
claims should be dismissed.
As noted in Huntsman’s Opposition, ruling on this issue
would be premature. K-Solv has failed to address the level of
inspection to which Huntsman was required to adhere, or whether
the contamination would have been revealed through the type of
12

inspection required by the Charter Agreement. At this stage in
the proceedings, despite the existence of the indemnity clause,
Huntsman has alleged sufficient facts on which to base plausible
claims for negligence and want of due care and dismissal of
these claims is not appropriate.
CONCLUSION
Accordingly,
IT
Dismiss

IS

HEREBY

(Rec.

Huntsman’s

Doc.

claims

ORDERED
44)

is

against

that

K-Solv’s

GRANTED
K-Solv

IN
for

12(b)(6)

PART

with

breach

Motion

to

regards

to

of

contract,

unseaworthiness, and want of workmanlike performance and DENIED
IN PART with regards to Huntsman’s claims against K-Solv for
want of due care and negligence.
IT IS FURTHER ORDERED that Huntsman’s claims against K-Solv
for breach of contract, unseaworthiness, and want of workmanlike
performance are hereby DISMISSED WITH PREJUDICE.
New Orleans, Louisiana this 1st day of July, 2015.

________________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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