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

Filing 65

ORDER & REASONS: granting in part and denying in part 54 Motion for Summary Judgment as set forth in document. Signed by Judge Carl Barbier on 3/15/16. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

HUNTSMAN, LLC, ET AL.

CIVIL ACTION

VERSUS

NO: 14-2237

BLESSEY MARINE SERVICE, INC.,
ET AL.

SECTION: "J”(5)

ORDER AND REASONS
Before the Court is a Motion for Summary Judgment (Rec. Doc.
54) filed by Defendant, T.T. Barge Cleaning Mile 183, Inc. (“T.T.
Barge”), an Opposition thereto (Rec. Doc. 56) filed by Plaintiffs,
Huntsman International,

LLC,

Huntsman

Petrochemical,

LLC,

and

Liberty International (collectively “Huntsman”), and a Reply (Rec.
Doc. 63) filed by T.T. Barge. Having considered the motion, the
parties’ submissions, the record, and the applicable law, the Court
finds, for the reasons expressed below, that the motion should be
GRANTED IN PART AND DENIED IN PART.
PROCEDURAL HISTORY AND BACKGROUND FACTS
This matter arises out of a contractual dispute between
Huntsman

and

Blessey

Marine

Services,

Inc.

(“Blessey”).

In

September 2013, Huntsman contracted with Blessey pursuant to a
Term

Time

Charter

Master

Service

Agreement

(“the

Charter

Agreement”) to charter tank barge WEB 135 (“the barge”) to carry
1

a shipment of Neodene cargo (“the cargo”) from Geismar, Louisiana,
to Chocolate Bayou, Texas. As part of the agreement, Huntsman sent
cleaning instructions to Blessey, requesting that the barge be
stripped

and

squeegeed

prior

to

loading

the

cargo.

Blessey

subsequently contracted with T.T. Barge to perform the cleaning
services and instructed T.T. Barge to strip and squeegee the barge.
T.T. Barge purportedly performed its cleaning services on
September 27, 2013. However, Huntsman alleges that the cargo
“failed on appearance at the first foot sample” because of T.T.
Barge’s inadequate tank cleaning. (Rec. Doc. 56, at 2.) According
to T.T. Barge’s job sheet, it did not strip and squeegee the barge.
Instead, T.T. Barge vented and wiped down the barge. Blessey
returned the barge to T.T. Barge to be cleaned again. After the
second cleaning, the barge was loaded with the cargo on October 4.
Ultimately, Huntsman claimed that 262,315 pounds of cargo were
contaminated due to improper cleaning. (Rec. Doc. 18, at 3.)
Huntsman filed the present lawsuit against Blessey in this
Court on September 29, 2014, alleging that Blessey breached the
Charter Agreement and acted negligently and without due care. (Rec.
Doc. 1, at 3.) Huntsman subsequently filed an amended complaint on
February 5, 2015, adding T.T. Barge, amongst other parties, as a
defendant in the matter. (Rec. Doc. 18.) In its amended complaint,
2

Huntsman asserts claims against T.T. Barge for: (1) breach of
contract and/or charter party, (2) unseaworthiness, (3) want of
workmanlike performance, (4) negligence, and/or (5) want of due
care. (Rec. Doc. 18, at 4.)
On February 25, 2016, T.T. Barge filed the instant motion
seeking summary judgment on all Huntsman’s claims against it. (Rec.
Doc. 54.) Huntsman opposed the motion on March 2, 2016. (Rec. Doc.
56.) T.T. Barge filed a Motion for Leave to File Reply, which this
Court granted on March 9, 2016. (Rec. Doc. 62.)
PARTIES’ ARGUMENTS
A. Motion for Summary Judgment
In its motion, T.T. Barge argues that it is entitled to
summary judgment on all five of Huntsman’s claims. First, T.T.
Barge

argues

that

Huntsman’s

unseaworthiness

claim

is

not

supported by the facts or the law. According to T.T. Barge,
Huntsman failed to allege that it owed a warranty of seaworthiness
or a duty to provide a seaworthy vessel. Further, T.T. Barge argues
that only an owner or operator of a vessel can be held liable for
breach of the warranty of seaworthiness. Because T.T. Barge was
not an owner of operator of the barge, it argues that summary
judgment in its favor is appropriate.

3

Similarly, T.T. Barge argues that the law does not provide
Huntsman a cause of action for want of workmanlike performance.
According

to

T.T.

Barge,

only

a

stevedore

owes

a

duty

of

workmanlike performance, and it only owes such a duty to the vessel
owner. Here, Huntsman did not own the barge, and T.T. Barge was
not a stevedore. Therefore, T.T. Barge asserts that it is entitled
to summary judgment.
Third, T.T. Barge argues that Huntsman’s breach of contract
claim fails because Huntsman and T.T. Barge were not parties to a
contract at any time. Huntsman has admitted that it did not
contract directly with T.T. Barge. Further, T.T. Barge asserts
that Blessey did not advise it that it was acting on behalf of
Huntsman. Thus, it had no knowledge that its cleaning services
would benefit Huntsman. T.T. Barge argues that it cannot be held
liable for breach of contract under these circumstances.
Fourth,

T.T.

Barges

asserts

that

Huntsman’s

claims

for

negligence and want of due care fail because it did not owe any
duties to Huntsman. T.T. Barge did not owe a contractual duty
because it did not enter into a contract with Huntsman. T.T. Barge
also argues that it did not owe Huntsman a duty to refrain from
negligent conduct. In the tort context, duty is determined by the
scope of the risk that the negligent conduct foreseeably entails.
4

T.T. Barge argues that the injuries to Huntsman were unforeseeable
because it did not know that its cleaning services were intended
to benefit Huntsman.
B. Opposition
In its opposition, Huntsman argues that summary judgment is
inappropriate on its negligence, want of due care, and breach of
contract claims. Huntsman does not contest that T.T. Barge is
entitled to summary judgment on its unseaworthiness and want of
workmanlike

performance

claims.

First,

with

respect

to

the

negligence and want of due care claims, Huntsman argues that the
injury sustained was within the scope of T.T. Barge’s negligent
conduct. According to Huntsman, damage to cargo is a foreseeable
consequence of improper cleaning, even if T.T. Barge did not know
the

identity

of

the

cargo

owner.

Huntsman

argues

that

foreseeability of risk to a specific person is not required to
establish a legal duty. Thus, Huntsman asserts that T.T. Barge is
not entitled to summary judgment on the negligence and want of due
care claims.
Second, Huntsman addresses its breach of contract claim.
Huntsman argues that T.T. Barge and Blessey entered into an agency
relationship

with

respect

to

the

cleaning

agreement.

Thus,

Huntsman claims that it was a party to the cleaning contract, even
5

though Blessey did not disclose that it was acting on Huntsman’s
behalf.

According

to

Huntsman,

agency

law

provides

that

an

undisclosed principal becomes a party to a contract between an
agent with actual authority and a third party. Huntsman claimed
that T.T. Barge breached the cleaning contract by failing to strip
and squeegee the barge as requested. Thus, Huntsman argues that it
may bring a claim for breach of contract against T.T. Barge.
C. Reply
In its reply, T.T. Barge addresses Huntsman’s negligence, want
of due care, and breach of contract claims. First, with respect to
the contract claim, T.T. Barge argues that Huntsman failed to prove
an

agency

relationship

existed

between

it

and

Blessey.

Specifically, T.T. Barge claims that Huntsman did not exercise
control

over

Blessey’s

cleaning

arrangement

with

T.T.

Barge.

According to T.T. Barge, Blessey retained control over several key
decisions

and

had

the

power

to

alter

Huntsman’s

cleaning

instructions at its discretion. Thus, T.T. Barge argues that the
control aspect of an agency relationship is lacking. Further, T.T.
Barge asserts that Huntsman did not communicate with it or with
any other companies that Blessey tasked with cleaning barges.
T.T.

Barge

also

casts

doubt

on

Huntsman

and

Blessey’s

characterization of their relationship. It argues that the Court
6

is not bound by the parties’ conclusory statements regarding
agency. In addition, T.T. Barge notes that Blessey claimed to have
acted “at the direction and control” of Huntsman, but it only made
such statements after Blessey and Huntsman settled their disputes.
Thus, T.T. Barge asserts that Blessey’s statement is unreliable.
Finally, T.T. Barge argues that it did not breach the cleaning
contract with Blessey because it acted according to Blessey’s oral
instructions and with the knowledge that the barge had previously
been cleaned.
Second, T.T. Barge argues that Huntsman’s negligence and want
of due care arguments fail. Specifically, T.T. Barge asserts that
it could not reasonably have foreseen damage to Huntsman’s cargo.
It argues that it did not know the identity or characteristics of
the cargo to be loaded following the cleaning. Thus, T.T. Barge
claims that it could not have foreseen that the previous cargo,
paraffin, would be incompatible with Huntsman’s cargo. Further,
T.T. Barge asserts that it did not know that the barge would be
loaded with cargo at all after it was cleaned. Thus, T.T. Barge
argues that it could not have foreseen the injury sustained by
Huntsman,

and

it

therefore

did

Huntsman.

7

not

owe

any

legal

duties

to

LEGAL STANDARD
Summary judgment is appropriate when “the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing former
Fed. R. Civ. P. 56(c)); Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994). When assessing whether a dispute as to any
material fact exists, the Court considers “all of the evidence in
the record but refrains from making credibility determinations or
weighing

the

evidence.”

Delta

&

Pine

Land

Co.

v.

Nationwide

Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008). All
reasonable inferences are drawn in favor of the nonmoving party,
but

a

party

cannot

defeat

summary

judgment

with

conclusory

allegations or unsubstantiated assertions. Little, 37 F.3d at
1075. A court ultimately must be satisfied that “a reasonable jury
could not return a verdict for the nonmoving party.” Delta, 530
F.3d at 399.
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.’” Int’l
8

Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263-64 (5th Cir.
1991) (citation omitted). The nonmoving party can then defeat the
motion by either countering with sufficient evidence of its own,
or “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.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, 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. See Celotex, 477 U.S. at 325. The burden
then shifts to the nonmoving party, who must, by submitting or
referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324.

The nonmovant may not rest

upon the pleadings, but must identify specific facts that establish
a genuine issue for trial.

See, e.g., id. at 325; Little, 37 F.3d

at 1075.
DISCUSSION
A. Unseaworthiness and Want of Workmanlike Performance
Huntsman does not oppose T.T. Barge’s motion for summary
judgment

on

its

unseaworthiness

and

want

of

workmanlike

performance claims. Further, it appears to the Court that the
9

motion has merit. Accordingly, T.T. Barge is entitled to summary
judgment on Huntsman’s unseaworthiness and want of workmanlike
performance claims.
B. Breach of Contract
In its amended complaint, Huntsman alleges that T.T. Barge
breached a “contract and/or charter party.” T.T. Barge argues that
the only contract between the parties is the Charter Agreement.
With regards to the Charter Agreement, Huntsman admits that it did
not provide a copy of the agreement to T.T. Barge before the
cleaning. (Rec. Doc. 54-3, at 5-6.) Further, Huntsman concedes
that it did not ask T.T. Barge to be bound by the terms of the
Charter Agreement. Id. at 6. Therefore, it is undisputed that T.T.
Barge did not breach the Charter Agreement because it was not a
party to the Charter Agreement.
However, in its opposition to the instant motion, Huntsman
argues that the relevant agreement is the cleaning contract between
Blessey and T.T. Barge. Huntsman claims that Blessey acted as its
agent in the cleaning contract, granting Huntsman the right to sue
for breach. General agency law applies in maritime cases. Port
Ship Serv., Inc. v. Int'l Ship Mgmt. & Agencies Serv., Inc., 800
F.2d 1418, 1420 (5th Cir. 1986) (citing W. India Indus. v. Vance
& Sons AMC-Jeep, 671 F.2d 1384, 1387 (5th Cir. 1982)). The Fifth
10

Circuit refers to the Restatement of Agency for accurate statements
of general agency law. Id. (citing Lubbock Feed Lots, Inc. v. Iowa
Beef Processors, 630 F.2d 250, 275-76 (5th Cir. 1980)).
An agency relationship arises when a principal manifests
assent to an agent “that the agent shall act on the principal's
behalf and subject to the principal's control, and the agent
manifests assent or otherwise consents so to act.” Restatement
(Third) Of Agency § 1.01 (2006). A “well-settled doctrine” of
agency law “treats an undisclosed principal as a party to a
contract that an agent makes on behalf of the principal, unless
the contract excludes the principal as a party. If an agent acts
with actual authority in making a contract on an undisclosed
principal's behalf, the basis for treating the principal as a party
to the contract is that the agent acted reasonably on the basis of
the principal's manifestation of assent to the agent. . . . [T]he
principal has rights under the contract because the agent acted on
the principal's behalf in making the contract.” Id. § 6.03, comment
(b).
A principal is undisclosed when “the third party has no notice
that the agent is acting for a principal.” Id. § 1.04(2)(b). “An
agent acts with actual authority when, at the time of taking action
that has legal consequences for the principal, the agent reasonably
11

believes, in accordance with the principal's manifestations to the
agent, that the principal wishes the agent so to act.” Id. § 2.01.
Thus, when a contract is made by an agent for an undisclosed
principal pursuant to actual authority, either the agent or the
principal may sue for breach of the agreement. See N.J. Steam Nav.
Co. v. Merch.'s Bank of Boston, 47 U.S. 344, 381 (1848).
In this case, Huntsman introduced sufficient evidence of an
agency relationship to overcome T.T. Barge’s motion for summary
judgment.

The

Charter

Agreement

between

Huntsman

and

Blessey

provides that the shipper, Huntsman, may reject any barges it deems
unsuitable for loading its cargo. (Rec. Doc. 54-6, at 2.) The
carrier, Blessey, then arranges the cleaning of the rejected barges
on Huntsman’s behalf. Id. Marian Marunich, Huntsman’s bulk ship
and barge operations team lead, testified that Huntsman would send
instructions to Blessey on how to clean the rejected barges. (Rec.
Doc. 58-1, at 3-4.)

In the present case, Huntsman instructed

Blessey to “strip to less than two barrels and squeegee.” Id. Ms.
Marunich testified that Blessey then made arrangements to clean
the barge appropriately, according to Huntsman’s instructions. Id.
The Charter Agreement, along with Huntsman’s instructions,
may have created an agency relationship between Huntsman and
Blessey. Huntsman manifested assent that Blessey should act on
12

Huntsman’s behalf and subject to its instructions with respect to
cleaning the barge. Blessey manifested assent to this arrangement
in the Charter Agreement and by seeking T.T. Barge’s cleaning
services.

Pursuant

to

the

Charter

agreement

and

Huntsman’s

instructions, Blessey had actual authority to enter into a cleaning
agreement with T.T. Barge. In such an agency relationship, Huntsman
would be an undisclosed principal because T.T. Barge was unaware
that Blessey was acting on Huntsman’s behalf. Thus, Huntsman may
be a party to the contract and entitled to sue for its breach. The
Court does not decide whether such an agency relationship existed,
but it notes that Huntsman introduced sufficient evidence to create
a genuine issue of material fact.
T.T. Barge argues that no agency relationship existed because
Huntsman did not exert adequate control over Blessey. T.T. Barge
points out that Huntsman left several decisions to Blessey’s
discretion,

including

the

manner

of

carrying

out

Huntsman’s

instructions, the manner of conveying Huntsman’s instructions to
the barge-cleaning company, the place the barge was to be cleaned,
whether to remove all of the previous cargo from the barge, and
whether the barge should be inspected after the cleaning. Ms.
Marunich also testified that Blessey was permitted to make changes
to Huntsman’s instructions at its discretion.
13

However, this evidence does not disprove the existence of an
agency relationship. “[A] person may be an agent although the
principal lacks the right to control the full range of the agent's
activities, how the agent uses time, or the agent's exercise of
professional judgment. A principal's failure to exercise the right
of control does not eliminate it . . . .” Restatement (Third) Of
Agency § 1.01, comment (c). Further, “[a] principal's control over
an agent will as a practical matter be incomplete because no agent
is an automaton who mindlessly but perfectly executes commands.”
Id., comment (f)(1). T.T. Barge has introduced evidence that
Huntsman’s control over Blessey was incomplete. But genuine issues
of material fact remain as to the existence and scope of an agency
relationship between Huntsman and Blessey.
T.T.
asserts

Barge’s
that

remaining

Huntsman

arguments

never

directly

lack

merit.

T.T.

communicates

Barge

with

the

companies that provide cleaning services. This fact is hardly
dispositive
addition,

of

T.T.

the
Barge

existence
suggests

of

an

that

agency
Huntsman

relationship.
and

Blessey

In
are

deliberately mischaracterizing their relationship as an agency
relationship. T.T. Barge argues that this Court is not bound by
Huntsman and Blessey’s description of their relationship. However,
as discussed above, the Court independently found that Huntsman
14

introduced enough evidence to create a genuine issue of material
fact as to the purported agency relationship. Finally, T.T. Barge
argues that it did not breach the cleaning agreement because it
followed Blessey’s oral instructions. This issue is not presently
before the Court, and the Court declines to decide it now.
C. Due Care & Negligence
The Court will address Huntsman’s claims for want of due care
and negligence together due to the factual and legal similarities
between the claims. T.T. Barge argues that these claims should be
dismissed because Huntsman failed to show that T.T. Barge owed it
any duty pertaining to its cleaning services.
Huntsman has a plausible claim for negligence based on the
legal duty owed by T.T. Barge. “The analysis of a maritime tort is
guided by general principles of negligence law.” In re Signal
Intern., LLC, 579 F.3d 478, 491 (5th Cir. 2009). 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.,

579

F.3d

at

491

(internal
15

quotations

and

citations

omitted)). The “scope of danger” consists of the “natural and
probable risks that a reasonable person would likely take into
account in guiding her practical conduct.” In re Signal Intern.,
579 F.3d at 491-92. When determining whether a risk is within the
scope of danger, the court should consider “the general types of
harm and classes of persons within the scope of danger created by
the

negligence

while

accounting

for

probable

or

anticipated

natural forces.” Id. at 492. Therefore, the foreseeability inquiry
focuses on “general classes of harms and victims.” Id. As the Fifth
Circuit explained,
We perceive a harm to be the foreseeable consequence of
an act or omission if harm of a general sort to persons
of a general class might have been anticipated by a
reasonably thoughtful person, as a probable result of
the act or omission, considering the interplay of
natural forces and likely human intervention.
Id. (quoting Consolidated Aluminum, 833 F.2d 65, 68 (5th Cir.
1987)).
In the case at bar, Huntsman correctly asserts that T.T. Barge
did not need to foresee that improper cleaning would cause harm
specifically to Huntsman. Rather, Huntsman must have been in the
general class of people to whom damage could be anticipated. In
order

for

T.T.

Barge

to

owe

a

duty

to

Huntsman,

damage

to

Huntsman’s cargo must be a probable, anticipated result of T.T.
Barge’s failure to adequately clean the barge. In a related matter
16

involving Huntsman and Blessey, this Court found that failure to
adequately

clean

a

barge

would

foreseeably

cause

damages.

Huntsman, LLC v. Blessey Marine Servs., Inc., 2015 A.M.C. 1932,
1939 (E.D. La. 2015). Other courts have held similarly. See Int'l
Ore & Fertilizer Corp. v. SGS Control Servs., Inc., 828 F. Supp.
1098, 1106 (S.D.N.Y. 1993) (“Clearly, a negligent representation
that a hold is clean could lead to contamination of the cargo to
be stowed in the hold.”).
In its reply, T.T. Barge argues that it should not have
anticipated damage to the cargo at issue. It asserts that it was
unaware of the characteristics of the cargo to be loaded on the
barge and it did not know that the cargo would be incompatible
with any previous cargo. However, for a duty to arise, T.T. Barge
only needed to be aware of the general type of harm that could
result

from

contamination

an

improper
is

a

cleaning.

reasonably

As

discussed

foreseeable

above,

cargo

consequence

of

inadequate cleaning. At this time, the Court does not decide
whether T.T. Barge’s cleaning was improper or negligent. The Court
notes that T.T. Barge claims to have acted on oral instructions
from Blessey and with the knowledge that the barge had been precleaned.

However,

Huntsman

has

introduced

enough

evidence

to

create a genuine issue of material fact as to T.T. Barge’s duty to
17

properly clean the barge and as to whether T.T. Barge breached
that duty. Thus, T.T. Barge is not entitled to summary judgment on
Huntsman’s negligence and want of due care claims.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that T.T. Barge’s Motion for Summary
Judgment

(Rec.

Doc.

54)

is

GRANTED

IN

PART

with

regards

to

Huntsman’s claims against T.T. Barge for unseaworthiness and want
of workmanlike performance and DENIED IN PART with regards to
Huntsman’s

claims

against

T.T.

Barge

for

want

of

due

care,

negligence, and breach of contract.
New Orleans, Louisiana this 15th day of March, 2016.

CARL J. BARBIER
UNITED STATES DISTRICT COURT

18