# Hardy v. Gulf Oil Corp.

> Court of Appeals for the Fifth Circuit · January 7, 1992 · 949 F.2d 826

URL: https://www.frixlaw.com/law-library/cases/8995800

## Case

- **Full name:** Alfred L. HARDY v. GULF OIL CORPORATION, Zaire Gulf Oil Company, Gulf Oil Exploration and Production Company and Cabinda Gulf Oil Company, Defendants-Third Party v. BOUYGUES OFFSHORE U.S.A., INC. and Bouygues Offshore S.A., Defendants-Third Party On and Offshore Quality Control Specialists, Inc.
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** January 7, 1992
- **Citations:** 949 F.2d 826; 1992 WL 14
- **Precedential status:** Published
- **Opinion:** Concurrence by Brown
- **Judges:** Barksdale, Brown, Johnson
- **Cited by:** 74 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/8995800

## How later opinions describe it (automated extraction)

- concluding that Park Service decisions about if, when, and how to conduct rescue operations were shielded by the “discretionary function exception,” noting that “[t]he discretionary function exception may apply in the absence of a conscious decision, so long as the Park Servic…
- discussing the theory of joint and several liability and stating that under it “each and every one of several tortfeasors is liable for the full amount of an injured plaintiff's damages. In its purest application, this rule of 'joint and several liability' permits a plaintiff …
- explaining that under maritime law, express indemnities, as opposed to other types, are simply interpreted using “[t]he usual rules of contract[] interpretation”
- discussing the “apparent tension” in this circuit concerning the appropriate admiralty settlement bar rule and citing recent conflicting panel decisions which have endorsed both approaches

## Opinion text

JOHN R. BROWN, Circuit Judge,
concurring.
I concur in the scholarly opinion of Judge Johnson, but I have these observations to emphasize certain things.
First, Zaire Gulf has not sought indemnity/contribution 1 from BOS, so that question is not strictly presented to us. The opinion does not jeopardize any such rights by Zaire Gulf. Contrary to some suggestions on oral argument, the fact that Zaire Gulf settled with Hardy would not forbid Zaire Gulf from seeking indemnity/contribution from BOS.
From the viewpoint of maritime law, this is important since in the run-of-the-mill cases, especially in admiralty, a party exposed to serious liabilities will often wish to settle with the claimant with reservation or expectancy of the right to claim indemnity/contribution from non-settling parties. Any contrary rule would discourage settlements or interfere with exploration of settlement possibilities. The shoe might be on the other foot when a non-settling party seeks indemnity/contribution against a set-tlor. See Restatement (Second) of Torts and the Court’s Opinion at p. 836.
Second, and more important, the court suggests, in n. 15, that the court en banc should perhaps resolve the conflict between Leger 2 and Hernandez. 3 I would urge that it is imperative that the court en banc consider and determine this problem. To the cases listed in n. 15, must now be added Constructores Tecnicos, S. de R.L. v. Sea-Land Serv., Inc., 945 F.2d 841 (5th Cir.1991). This opinion, as does Leger, shows, *837 as a matter of simple arithmetic, that use of the Leger formula may, and often does, award more than 100% of the damages sustained by the plaintiff-victim of the tort. Such a result is forbidden by Hernandez, and by Edmonds v. Compagnie Generate Transatlantique, 443 U.S. 256 , 99 S.Ct. 2753 , 61 L.Ed.2d 521 (1979). Those on the firing line — not only district judges, but counsel trying to work out acceptable settlements — need to know which rule will apply. This is so since the net result in terms of dollars may be considerable to the parties. We cannot have it both ways.
. I use this term loosely; not to suggest that such remedies are substantively available, but merely as description if, substantively, either one or both is available.
. Leger v. Drilling Well Control, Inc., 592 F.2d 1246 (5th Cir.1979).
. Hernandez v. M/V RAJAAN, 841 F.2d 582 (5th Cir.), cert. denied, 488 U.S. 981 , 109 S.Ct. 530 , 102 L.Ed.2d 562 (1988).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8995800. Public record. Not legal advice.