Petition — Rowan Cos. v. Marathon Pipeline Co.

82 7 7 9 | 9 Office-Supreme Court, U.S.

rites

NO. MAY 27 1993

a : CE ae eis L. STEVAS,

Supreme Court of the United States

OCTOBER TERM, 1982

MARATHON PIPELINE COMPANY

Respondent,

versus

ROWAN COMPANIES, INC. and

DRILLING RIG ROWAN/ODESSA,

Petitioner

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

JAMES E. BLAZEK

ALAN A. ZAUNBRECHER

Adams & Reese

4500 One Shell Square

New Orleans, LA 70139

(504) 581-3234

Attorneys for Petitioner

ERNEST A. CARRERE, JR.

JAMES E. WRIGHT, III

Jones, Walker, Waechter,

Poitevent, Carrere & Denegre

225 Baronne Street, 28th Floor

New Orleans, LA 70112

(504) 581-6641

... .. =a ae ee

A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555

i

QUESTION PRESENTED FOR REVIEW

1. Whether the District Court violated Rule 615 of the

Federal Rules of Evidence and the ‘‘due process’’ clause of

the Fifth Amendment to the United States Constitution by

failing to allow a corporate defendant to have its selected

company representative sit at counsel table and assist in the

company’s defense?

ii

LIST OF INTERESTED PARTIES

Counsel of record for Rowan Companies, Inc. and the

Drilling Rig ROWAN/ODESSA certify that the following

listed parties have an interest in the outcome of this case.

These representations are in order that the Justices of this

Court may evaluate possible disqualification or recusal.

1. Marathon Pipeline Company, represented by

Henry J. Read and A. Gordon Grant, Jr. of Mon-

tgomery, Barnett, Brown & Read, 1800 First NBC

Building, New Orleans, LA 70112.

2. Sun Oil Company and Sun Gas Company,

represented by P. Albert Bienvenu and John E.

McAuliffe, Jr. of Bienvenu, Foster, Ryan & O’Ban-

non, 200 Carondelet Street, New Orleans, LA

70130.

3. John E. Chance & Associates, Inc., represented

by Charles W. Steen and Larry M. Rodel of Liskow

& Lewis, 50th floor, One Shell Square, New

Orleans, LA 70139.

4. Twenty Grand Offshore, Inc., Tidewater Marine

Services, Inc., the tug EL ZORRO GRANDE, the

tug EL JAGUAR GRANDE, and the tug LEO

PARDO GRANDE, represented by George W.

Healy, III and Richard N. Dicharry of Phelps, Dun-

bar, Marks, Claverie & Sims, Hibernia Bank

Building, New Orleans, LA 70112.

5. Rowan Companies, Inc. and the Drilling Rig

ROWAN/ODESSA, represented by James E.

Blazek and Alan A. Zaunbrecher of Adams &

Reese, 4500 One Shell Square, New Orleans, LA

70139, and Ernest A. Carrere, Jr. and James E.

Wright, III of Jones Walker, Waechter, Poitevent,

Carrere & Denegre, 225 Baronne Street, New

Orleans, LA 70112.

iii

TABLE OF CONTENTS

PAGE

Question Presented for Review.....................-i

ke epee en pew ees ii

ESS SI AE PT ee Per iii

EE SE Ire eM ea iv

kw chante wee senes 1

pI EE eee 1

Constitutional Provisions and

Seetutes Tnvorves othe Case ...............565.. 2

I wie bckn cw snns wens 3

memes for Granites the Writ ..................... 4

i eke ka wee cu cawenas 9

Proof of Service—Certificate of Bar Member......... 10

ee eee A-l

ES BOSSE URS S018 es egg A-5

SEIS GR SG Ae gg ac A-7

iv

TABLE OF AUTHORITIES

CASE PAGE

Cannon v. Fidelity Casualty Company of New York,

Ore © cee. Goa Te. 106t)....... -. se eee. 6,7

Commercial Credit Equipment Corp. v. Kilgore,

2ai So.2e Sec, S67 (ities. 1969)... ..... 2.2... -.. 7

Cox v. Burke,

361 F.2d 183 (7th cir. 1966) cert. denied, 87

S.Ct. 304; 385 U.S. 939; 17 L.Ed.2d 218 (1966)... . 6

Galvin v. Press,

74 S.Ct. 737; 347 U.S. 522; 98 L.Ed. 911, rehearing

denied 75 S.Ct. 17; 348 U.S. 852; 99 L.Ed. 671

ECDL TNC Nes Ca lear ane, a Re ea 6

In Re United States,

a ee 7

Jacques v. Ellis,

219 S.W.20 104 (Tex. Cir. App. 1949) ............ 7

Montgomery v. City of New Orleans,

266 So.2d 482 (La. App. 4th Cir. 1972)........... 7

Potashnick v. Port City Construction Company,

oe oe tree ee Cae. Fe... cae ee ee es 8

Shepard v. Swatting,

ee Oe ee re Oe O, LOOE. on oe vice eee. 7

U.S. v. Auten,

570 F.2d 1284 (5th Cir. 1978) cert. denied

Oe ee a kee cae: 5

U.S. v. Boyer,

574 F.2d 951 (8th Cir. 1978), cert. denied

ie cbs cee ee aes 5

U.S. v. Causey,

ee 6

Varlack v. S.W.C. Carribean, Inc.,

a Bg i ge 5, 6

Wright v. Finch,

oar © oem. S65 0. 1971)... . . ee eee. 6

STATUTES

Federal Rules of Evidence, Rule 615...... . 2:4 5.7,8

ee ec wh ee ee eas 2

Outer Continental Shelf Lands Act,

eee hiwelveee seus 3

OTHER

10 Moore’s Federal Practice 2d, §615.02............. 7

1

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

MARATHON PIPELINE COMPANY

Respondent,

versus

ROWAN COMPANIES, INC. and

DRILLING RIG ROWAN/ODESSA,

Petitioner

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The Opinion and Judgment of the Court of Appeals,

affirming the District Court’s Judgment ayainst the peti-

tioner appears in Appendix A to this Petition, and is reported

at _F.2d__ Slip Opinion No. 81-3779 (5th Cir. February 28,

1983). The Order of the Court of Appeals denying a Petition

for Rehearing appears in Appendix B. The Opinion and Order

of the District Court appears in Appendix C and is reported

at 527 F.Supp. 824 (E.D.La. 1982).

JURISDICTION

The Fifth Circuit’s Opinion and Judgment affirming

the District Court’s Judgment against the petitioner is

2

set forth in Appendix A. The Court’s Order denying the Peti-

tion for Rehearing is set forth in Appendix B. This Petition

for Certiorari is being filed within sixty (60) days of the Cir-

cuit Court’s denial of the Petition for Rehearing. The jurisdic-

tion of this Court is invoked pursuant to 28 U.S.C. 1254(1).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED IN THE CASE

1. Rule 615 of the Federal Rules of Evidence

Rule 615. Exclusion of Witnesses

At the request of a party the court shall order

witnesses excluded so that they cannot hear the

testimony of other witnesses, and it may make the

order of its own motion. This rule does not

authorize exclusion of (1) a party who is a natural

person, or (2) an officer or employee of a party which

is not a natural person designated as its represen-

tative by its attorney, or (3) a person whose

presence is shown by a party to be essential to the

presentation of his canse.

2. Fifth Amendment to the Constitution of the United

States

Amendment V[1791].

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a present-

ment or indictment of a Grand Jury, except in cases

arising in the land or naval forces, or in the Militia,

when in actual service in time of War of public

danger; nor shall any person be subject for the same

offense to be twice put in jeopardy of life or limb;

nor shall be compelled in any criminal case to be

a witness against himself; nor be deprived of life,

3

liberty, or property, without due process of law;

nor shall private property be taken for public use,

without just compensation.

STATEMENT OF THE CASE

Marathon Pipeline Company brought this suit under

the General Maritime Law and the Outer Continental Shelf

Lands Act, 43 U.S.C. 1333(b), seeking damages allegedly sus-

tained when a pipeline owned by them was ruptured on

August 5, 1978. Marathon filed suit against the various

defendants, all of whom were involved in the movement of

the jack-up drilling rig ROWAN/ODESSA in the vicinity of

Marathon’s pipeline at the time of the alleged rupture.

Trial without a jury on the sole issue of liability was

held on January 14-16, 1981. At the outset of the trial, peti-

tioner selected Robert McCary as their company represen-

tative pursuant to Rule 615(2) of the Federal Rules of

Evidence to assist counsel in Rowan’s defense. The Court

refused Rowan’s request to allow McCary to sit at counsel

table. (See Appendix D—pages 4-5 of the District Court

Transcript) Judgment was rendered on December 1, 1981,

based on the Court’s Opinion filed on November 24, 1981.

The Court found the defendant, Rowan Companies, Inc. and

the drilling rig ROWAN/ODESSA, solely liable to Marathon,

and dismissed the various other defendants.

Petitioner, Rowan Companies, Inc., appealed to the

United States Fifth Circuit Court of Appeals on the basis

that the District Court had committed reversible error in se-

questering Rowan’s designated company representative, in

direct violation of Rule 615 of the Federal Rules of Evidence

and in violation of the ‘‘due process’’ clause of the Fifth

Amendment to the United States Constitution. The Fifth

+

Circuit affirmed the District Court Judgment and denied

Rowan’s timely filed Petition for Rehearing. Rowan now

seeks relief from this Honorable Court.

REASONS FOR GRANTING WRIT OF CERTIORARI

THE SEQUESTRATION OF THE PETI-

TIONER’S DESIGNATED COMPANY REP.-

RESENTATIVE WAS IN DIRECT VIOLATION

OF RULE 615 OF THE FEDERAL RULES OF

EVIDENCE AND DENIED THE PETITIONER

‘“‘DUE PROCESS” OF LAW AS GUARANTEED

BY THE FIFTH AMENDMENT TO THE CON-

STITUTION OF THE UNITED STATES.

At the outset of the trial of this matter, the District

Court ordered the sequestration of the selected Rowan

representative, Mr Robert G. McCary. (See Appendix D—

Trial Transcript pages 4-5) It is without doubt that Mr.

McCary was Rowan’s selected company representative,

chosen to assist counsel in all aspects of Rowan’s defense.

The District Court’s refusal to permit McCary’s at-

tendance during the trial left Rowan Companies without a

company representative at counsel table, a right clearly

recognized by Rule 615 of the Federal Rules of Evidence:

Rule 615. Exclusion of Witnesses

At the request of a party the court shall order

witnesses excluded so that they cannot hear the

testimony of other witnesses, and it may make the

order of its own motion. This rule does not

authorize exclusion of (1) a party who is a natural

person, or (2) an officer or employee of a party which

is not a natural person designated as its repre-

5

sentative by its attorney, or (3) a person whose

presence is shown by a party to be essential to the

presentation of his cause. (emphasis supplied)

Since the promulgation of this Rule in 1975, the absolute

right of a party which is not a natural person (i.e., a corpora-

tion or organization) to have a company representative or

employee at counsel table has been repeatedly recognized.

See, e.g., Varlack v. S.W.C. Carribean, Inc., 500 F.2d 171 (3rd

Cir. 1977); U.S. v. Auten, 570 F.2d 1284 (5th Cir. 1978), cert.

denied, 439 U.S. 899 (1978); U.S. v. Boyer, 574 F.2d 951 (8th

Cir. 1978), cert. denied, 439 U.S. 967 (1978). Prior to 1975,

the trial court had the discretion to refuse to allow a com-

pany representative to sit at counsel table. However, since

the revision of the Federal Rules of Evidence in 1975, the

provision of subpart (2) of Rule 615 makes it clear that no

discretion is allowed and the refusal to allow the company

representative to sit at counsel table constitutes reversible

error. Varlack, supra; Auten, supra; Boyer, supra.

Under this Rule, no distinction has been made between

corporate officers or employees who are needed at counsel

table in civil actions and law enforcement agents or officers

assisting in the prosecution of criminal actions. The absolute

right of a non-person party to have such witnesses sit at

counsel table and assist at trial is clearly contemplated by

the Rule.

The notes of the Senate Advisory Committee clearly

reflect the constitutional rationale for the Rule:

[T]he exclusion of persons who are parties would

raise serious problems of confrontation and due pro-

cess....As the equivalent of the right of a natural

person party to be present, a party which is not

a natural person is entitled to have a representative

6

present. Notes of the Senate Advisory Committee

to Rule 615 of the Federal Rules of Evidence (em-

phasis supplied).

It is obvious that the Senate Committee recognized

that the sequestration of the representative of a corporation

selected by the corporation’s counsel would violate the due

process guarantees of the Fifth Amendment.

It is axiomatic that ‘‘fair play’’ is the essence of due

process. Galvin v. Press, 74 S.Ct. 737; 347 U.S. 522; 98 L.Ed.

911, rehearing denied 75 S.Ct. 17; 348 U.S. 852; 99 L.Ed.

671 (1954); Cox v. Burke, 361 F.2d 183 (7th Cir. 1966), cert.

denied, 87 S.Ct. 304; 385 U.S. 939; 17 L.Ed.2d 218 (1966).

While the exact procedures demanded by due process are

determined by the circumstances of each particular situa-

tion, determination of the appropriateness of the procedure

requires balancing the governmental functions involved

against the private interests affected. Wright v. Finch, 321

F.Supp. 383 (D.C.D.C. 1971). It is submitted that the se-

questration of Rowan’s selected company representative

violated that delicate balance at the cost of Rowan’s due pro-

cess rights.

Several federal courts have expressly recognized the

right to a representative as being fundamental to corporate

defendants, in order to ensure the ‘‘fair play’’ guarantees of

the ‘‘due process” clause. For example, in Varlack, supra,

after the District Court had sequestered a corporate defen-

dant’s selected representative, the Court of Appeals revers-

ed the District Court, holding that the sequestration ‘‘im-

permissibly nullified [the defendant’s] important right to be

present during trial’’. 550 F.2d at 176. Other federal jurisdic-

tions have reached similar results. See, e.g., U.S. v. Causey,

609 F.2d 777 (5th Cir. 1977); Cannon v. Fidelity Casualty

7

Company of New York, 519 F.Supp. 668 (D.Del. 1981).

Similarly, many state jurisdictions have held that the

right of a corporate defendant to have a representative pre-

sent at counsel table is fundamental. See, e.g., Commercial

Credit Equipment Corp. v. Kilgore, 221 So.2d 363, 367 (Miss.

1969); Montgomery v. City of New Orleans, 226 So.2d 482

(La. App. 4th Cir. 1972); Jacques v. Ellis, 219 S.W.2d 104

(Tex.Cir.App. 1949); Shepard v. Swatting, 234 N.Y.S.2d 370

(N.Y. 1962).

Leading legal commentators have also recognized a

corporation's fundamental right to representation at counsel

table during trial. For example, Professor Moore noted in

his highly respected analysis of the Federal Rules that “‘[a]s

equivalent to the right of a natural person party to be pre-

sent, a party which is not a natural person is entitled to have

a representative present’’. 10 Moore’s Federal Practice 2d,

§615.02.

Rule 615 clearly allows a trial judge broad discretion

in sequestering witnesses who do not fit into one of the ex-

ceptions to Rule 615. The trial judge does not, however, have

any discretion to sequester a party or a designated represen-

tative of a non-natural party. Rule 615(a) is mandatory and

expressly prohibits such sequestration. See: In Re United

States, 584 F.2d 666 (5th Cir. 1978); Cannon, supra.

By violating the express provisions of Rule 615(2), the

trial court prevented counsel for Rowan from adequately

communicating with their client during trial. This inability

to communicate with some Rowan representative obvious-

ly adversely affected counsel’s ability to represent their

client. The importance of adequate communication between

attorney and client has been repeatedly recognized. For

8

example, in Potashnick v. Port City Construction Co., 609

F.2d 1101 (5th Cir. 1980), the Fifth Circuit reversed the deci-

sion of the trial court prohibiting the defendant from con-

sulting with his attorney during trial recesses, noting that:

The need for attorney-client communication is cer-

tainly no less in a civil case [than in a criminal

case].... The right to retain counsel in civil litigation

is implicit in the concept of the Fifth Amendment

due process. Jd., at 1117-1118.

and,

Judge Hand’s denial of any attorney-client com-

munication resulted in a significant deprivation of

the effective assistance of counsel.... Jd., at 1119.

It is submitted that attorney-client communication

during trial is more crucial than even during recesses since

the client or its representative, having intimate knowledge

of the complex factual situation or specialized subject mat-

ter of the litigation, can assist even the best prepared counsel

in meeting trial surprises and explaining certain testimony.

The exclusion of the petitioner’s selected company

representative was in clear violation of Rule 615, and resulted

in the denial of the ‘“‘due process’’ guarantees of the Fifth

Amendment.

9

CONCLUSION

For all the foregoing reasons, it is submitted that this

Petition for Writ of Certiorari should be granted, thereby

allowing this Court to correct the manifest error in the trial

court, and fulfill the ‘‘due process’’ guarantees of the Fifth

Amendment.

JAMES E. BLAZEK

Attorney for Rowan Companies, Inc.

and the Drilling Rig ROWAN/ODESSA

Adams & Reese

4500 One Shell Square

New Orleans, LA 70139

(504) 581-3234

10

PROOF OF SERVICE

CERTIFICATE OF BAR MEMBER

I, James E. Blazek, one of the attorneys for Rowan

Companies, Inc. and the Drilling Rig ROWAN/ODESSA,

petitioner herein, and a member of the bar of the Supreme

Court of the United States, hereby certify that on the 26th

of May, 1983, I served three (3) copies of the foregoing Peti-

tion for Writ of Certiorari on all the parties required to be

served under Rule 28 of the Rules of the United States

Supreme Court, as follows:

1. Henry J. Read, Esq., attorney for Marathon

Pipeline Company, at Montgomery, Barnett,

Brown & Read, 1800 First NBC Building, New

Orleans, LA 70112.

2. P. Albert Bienvenu, Esq., attorney for Sun Oil

Company and Sun Gas Company, at Foster, Ryan

& O’Bannon, 200 Carondelet Street, New Orleans,

LA 70130.

3. Charles W. Steen, Esq., attorney for John E.

Chance & Associates, Inc., at Liskow & Lewis, 50th

Floor One Shell Square, New Orleans, LA 70139.

4. George W. Healy, III, Esq., attorney for Twen-

ty Grand Offshore, Inc., Tidewater Marine Ser-

vices, Inc., the tug EL ZORRO GRANDE, the tug

EL JAGUAR GRANDE, and the tug LEO PAR-

DO GRANDE, at Phelps, Dunbar, Marks, Claverie

& Sims, Hibernia Bank Building, New Orleans, LA

70112.

JAMES E. BLAZEK

Attorney for Rowan Companies, Inc.

and the Drilling Rig ROWAN/ODESSA

Adams & Reese

4500 One Shell Square

New Orleans, LA 70139

(504) 581-3234

A-1

APPENDIX “‘A”’

MARATHON PIPE LINE COMPANY,

Plaintiff-Appellee Cross-Appellant,

v.

DRILLING RIG ROWAN/ODESSA,

Rowan Companies, Inc.,

Defendants-Appellants,

Vv.

Tug El Zorro Grande, et al.,

Defendants-Appellees,

Sun Oil Company, et al.,

Defendants-Appellees, Cross-Appellants.

No. 81-3779.

United States Court of Appeals,

Fifth Circuit.

Feb. 28, 1983.

Pipe line owner brought suit in admiralty seeking com-

pensation for damage sustained when pipeline was struck

by drilling rig as rig was being moved to location of under-

water oil well. The District Court, George Arceneaux, Jr.,

527 F.Supp. 824, entered judgment in favor of pipe line

owner, and an appeal was taken. The Court of Appeals held

that sequestration of witness whom drilling rig owner sought

to have present in courtroom as its ‘‘representative’’ was not

established as successful ground for appeal.

Affirmed.

A-2

Appeals from the United States District Court for the

Eastern District of Louisiana.

Before JOHNSON, WILLIAMS and JOLLY, Circuit

Judges.

PER CURIAM:

We AFFIRM on the basis of the opinion of the district

court, 527 F.Supp. 824, with the additional finding which

follows.

The district court did not discuss in its opinion an issue

which has been raised by the Rowan Companies in its ap-

peal. At the outset of the trial the district court ordered the

sequestration of the witnesses, including Mr. Robert G.

McCary, who was the person placed in charge of the mov-

ing of the drilling rig Rowan/Odessa. Mr. McCary was allow-

ed to remain in the courtroom only after his testimony.

Rowan now claims that Mr. McCary was its ‘‘designated

representative’ and, therefore, could not be excluded from

the courtroom under Rule 615, Fed.R.Evid.

For any one of three reasons we find that the district

court must be affirmed on its sequestration ruling. First,

while the record makes it clear that the Rowan Companies

stated Mr. McCary was their ‘‘representative’’ before the

court placed him under the general order of sequestration,

no objection nor claim of violation of the Constitution or laws

or of Rule 615, Fed.R.Evid., was lodged by the Rowan Com-

panies. There was not the slightest indication given that

Rowan in any way disapproved of the ruling of the trial judge

at that time or at any other time while this case was pen-

ding in the district court. This, undoubtedly, is why the

district court did not refer to this matter in its opinion.

A-3

While it is true that Rule 46 of the Fed.R.Civ.P. does

not require formal exceptions to rulings or orders of the court,

that rule requires that the party must make known ‘‘to the

court the action which he desires the court to take or his ob-

jection to the action of the court and his grounds therefor.”’

After the objection to McCary’s presence was made by

another party, Rowan did not make known to the court any

action which it desired the court to take. Nor did it object

to the action of the court. Reading the record, there is no

way that the court could have concluded that Rowan wish-

ed to make an issue of its action or disagreed with it in the

slightest degree.

Second, on the face of the record McCary was not an

employee of the Rowan Companies, Inc., the party to the

proceedings. McCary testified on the stand that he was an

employee, apparently, of a separate corporation, Rowan In-

ternational. Rule 615, Fed.R.Evid., requires that to be ex-

cepted from scquestration the representative must be ‘‘an

officer or employee of a party which is not a natural per-

son....’’ Nothing in the record shows what the relationship

was between the Rowan Companies and Rowan International

nor does it show that McCary actually was an employee of

the Rowan Companies, Inc. The record does not establish

that the Rowan Companies were entitled to claim McCary

as their representative under Rule 615.

Third, even assuming that the district court commit-

ted error in sequestering Mr. McCary, there was not the

slightest reference to the effect of this sequestration

throughout the entire record. The Rowan Companies make

no showing that the ruling was prejudicial, and prejudice

must be shown to justify reversal. As this Court held in

United States v. Warren, 578 F.2d 1058, 1076 (5th Cir. 1978)

(en banc), the failure to sequester government witnesses,

A-4

while clearly error, does not require reversal even in a criminal

case without proof of prejudice.

We find that defendant Rowan Companies, Inc. have

not established as a successful ground for appeal the se-

questration of Mr. McCary from the courtroom until he was

called as a witness.

AFFIRMED.

A-5

APPENDIX “‘B”’

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 81-3779

MARATHON PIPE LINE COMPANY,

Plaintiff-Appellee

Cross-Appellant,

versus

DRILLING RIG ROWAN/ODESSA,

ROWAN COMPANIES, INC.,

Defendants-Appellants,

versus

TUG EL ZORRO GRANDE, ET AL.,

Defendants-Appellees,

SUN OIL COMPANY, ET AL.,

Defendants-Appellees,

Cross-Appellants.

Appeal from the United States District Court for the

Eastern District of Louisiana

ON PETITION FOR REHEARING

(March 31, 1983)

A-6

Before JOHNSON, WILLIAMS and JOLLY, Circuit

Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing fil-

ed in the above entitled and numbered cause be and the same

is hereby denied.

ENTERED FOR THE COURT:

United States Circuit Judge

A-7

APPENDIX ‘“‘C”’

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

MARATHON PIPE LINE

COMPANY CIVIL ACTION

VERSUS NO. 79-403

DRILLING RIG SECTION ‘K”’

ROWAN/ODESSA, et al

JUDGMENT

This cause came on for trial before the court on a

former day, and after hearing testimony of witnesses and

considering the evidence adduced, the Court took the mat-

ter under submission.

Now, therefore, considering the written reasons of the

Court on file herein;

IT IS ORDERED, ADJUDGED AND DECREED

that there be judgment herein in favor of defendants, Tug

E] Zorro Grande, in rem, Tug El Jaguar Grande, in rem, M/V

Leopardo Grande, in rem, Sun Oil Company, Sun Gas Com-

pany, Inc., John E. Chance & Associates, Inc., Twenty Grand

Offshore, Inc., and Tidewater Marine Service, Inc., and

against plaintiff, Marathon Pipe Line Company, dismissing

said plaintiff's complaint with prejudice, each party to bear

its own costs.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that all cross claims are hereby Dismissed.

A-8

New Orleans, Louisiana, this 1st day of December,

1981.

UNITED STATES DISTRICT JUDGE

A-9

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

MARATHON PIPE LINE

COMPANY CIVIL ACTION

VERSUS NO. 79-403

DRILLING RIG SECTION ‘‘K”’

ROWAN/ODESSA, ET AL.

OPINION

Plaintiff, Marathon Pipe Line Company (“Marathon”),

owner of an eight-inch oil pipeline installed on the floor of

the Gulf of Mexico, has brought this suit in admiralty seek-

ing compensation for damage sustained by a portion of the

pipeline on August 5, 1978. Defendants are the Drilling Rig

ROWAN ODESSA (‘ROWAN ODESSA’”’), in rem, and its

owner, Rowan Companies, Inc. (‘‘Rowan’’), the Tugs EL

ZORRO GRANDE (“EL ZORRO”), EL JAGUAR

GRANDE (“EL JAGUAR’), LEOPARDO GRANDE

(“LEOPARDO”’), in rem, their owner, Twenty Grand Off-

shore, Inc. (‘‘Twenty Grand”’), their operator, Tidewater

Marine Service, Inc. (‘‘Tidewater’’), Sun Oil Company (‘Sun

Oil’), Sun Gas Company (‘‘Sun Gas’’), and John E. Chance

& Associates, Inc. (‘‘Chance’’).

Defendants deny liability. Defendants Sun Oil and Sun

Gas have cross-claimed against all of the defendant vessels

and the other defendants. Defendants Twenty Grand and

Tidewater have cross-claimed against defendants Chance and

Rowan. Defendant Rowan has cross-claimed against the

three defendant tugs, Chance, Twenty Grand, Tidewater and

Sun Oil. Defendant Chance has cross-claimed against all

defendant vessels and all other defendants.

A-10

The matter came on for trial on Januray 14, 1981, and

considered solely the issue of liability; the issue of quantum

was reserved. The parties filed post-trial briefs, and the mat-

ter was taken under submission. Having thoroughly reviewed

the evidence, the memoranda filed by counsel, and the ap-

plicable law, the Court now makes the following findings of

fact and conclusions of law.

FINDINGS OF FACT.

At all times pertinent, plaintiff Marathon, a corpora-

tion organized under the laws of the State of Delaware, was

the owner of an all-weldea, seamless, eight-inch diameter

submerged oil pipeline. This pipeline ran in a northeast direc-

tion, between the Sun Oil ‘‘A”’ platform in East Cameron

Block 338 and the Marathon ‘‘A”’ platform in East Cameron

Block 321. It extended a distance of 7.34 miles and was con-

structed and installed on the floor of the Gulf of Mexico in

accordance with all permits required by law. The water depth

at the northern end of the pipeline (‘‘Block 321’’) was approx-

imately 210 feet and at the southern end (“Block 338"’) was

approximately 260 feet.

At all times pertinent, defendant Sun Oil was a cor-

poration organized under the laws of the State of Delaware

and, on August 4, 1978, was the operator of a lease in East

Cameron Block 331. However, Sun Oil had previously ob-

tained the necessary rights to directionally drill a well from

East Cameron Block 330 into Block 331 at a proposed loca-

tion approximately 1500 feet to the east of the Marathon

pipeline since the East Cameron Block 331 location was

A-11

within a shipping fairway.

3.

On July 31, 1978, Sun Oil contracted with Rowan, a

corporation organized under the laws of the State of

Delaware, to furnish the ROWAN ODESSA to drill the pro-

posed well. The contract between the parties was prepared

by Rowan.

Under the terms of its contract with Rowan, (entitled

‘‘Agreement’’), Sun Oil agreed to: provide Rowan with a

‘‘guidepath”’ and access to the drillsite location, advise

Rowan of any subsurface conditions or obstructions which

Rowan might encounter during operations under the agree-

ment, survey and mark locations, and provide towing service.

5.

The contract between Sun Oil and Rowan contained,

among other, the following provisions:

8. (b) Operator of Drilling Unit.

Contractor shall be solely responsible for the opera-

tion of the Rig, including, without limitation, super-

vising moving operations, positioning on drilling

locations as required by Operator, jacking up and

jacking down operations, as well as such operations

on board the Rig as may be necessary or desirable

for the safety of the Rig. Operations under this

Agreement will be performed on a 24-hour day

basis.

A-12

9. (f) Indemnity Provisions.

(1) Contractor’s [Rowan’s] Indemnification of

Operator [Sun].

Contractor agrees to protect, defend, indemnify and

save Operator and its joint owners harmless from

and against all claims, demands and causes of ac-

tion of every kind and character, without limit and

without regard to the cause or causes thereof or

the negligence of any party, arising in connection

herewith in favor of Contractor’s employees, Con-

tractor’s subcontractors or their employees, on ac-

count of bodily injury, death or damage to proper-

OU ss

(2) Operator’s Indemnification of Contractor.

Operator agrees to protect, defend, indemnify and

save Contractor harmless from and against all

claims, demands and causes of action of every kind

and character, without limit and without regard to

the cause or causes thereof or the negligence of any

party, arising in connection herewith in favor of

Operator’s employees, Operator’s contractors or

their employees, other than those identified in 9(f)(1)

above, on account of bodily injury, death or damage

to property...

12. Independent Contractor.

Contractor is an independent Contractor. Neither

Contractor, its employees, subcontractors or their

employees, are agents or employees of Operator.

The entire performance, operations management

and control of the Rig and other items of Contrac-

tor’s equipment shall be under the exclusive con-

trol and command of Contractor, and shall be car-

ried out by Contractor with the primary purpose

of performing all acts necessary to execute the

A-13

work required by the Operator’s drilling program

for each well, consistent with safety. It shall be the

sole exclusive duty of Contractor to determine at

all times, whether operations can be safely con-

tinued or undertaken, including, without limiting

the generality of the foregoing, the duty to deter-

mine by Contractor’s own inspection that all cargo

and items of equipment are loaded and stored in

a proper manner and the Rig is suitable to under-

take any contemplated operation under the then

existing conditions.

In order to determine whether any underwater obstruc-

tions existed in the area, Sun Oil relied on information receiv-

ed from Clark Oil Company (‘‘Clark’’), which information was

compiled by Clark in December of 1976. Sun Oil provided

Rowan with a map showing the as-built location of the

pipeline; however, the map was lost prior to trial and was

never admitted into evidence. Sun Oil engaged the services

of Chance to survey and mark the drilling location. In addi-

tion, prior to the arrival of the ROWAN ODESSA at the

drilling location, Chance, as requested by Sun Oil, placed

three (3) marking buoys along the Marathon pipeline, so as

to identify its location. Finally, Sun Oil, pursuant to Schedule

E(2) of its agreement with Rowan, assumed the cost of the

tugs engaged by Rowan to tow the ROWAN ODESSA to

location.

The ROWAN ODESSA is a jack-up drilling vessel, of-

ficial number 579021, measuring 247 feet in length, 200 feet

in width, with a hull depth of 26 feet. It has three retrac-

table legs, 410 feet in length, which can be raised or lowered

A-14

at a constant rate of 90 feet per hour.

The vessel is not self-propelled and must be towed by

other vessels. When being moved, she is under the command

of a Rowan employee, variously referred to as the “rig

mover” or ‘‘rig manager’’. At all times pertinent, the rig

mover was R. G. McCary.

Under the terms of its agreement with Sun Oil, Rowan

agreed to: carry out all operations under the agreement with

due diligence, in a safe, workmanlike manner and be solely

responsible for the operation of the rig, including, without

limitation, supervising moving operations, positioning on

drilling locations as required by Operator, jacking up and

jacking down operations. (Emphasis supplied).

9.

On August 2, 1978, Rowan contacted Tidewater, re-

questing three tugs to tow the ROWAN ODESSA from a

drillsite off of the Texas Coast to East Cameron Block 330.

The towing expense was assumed by Sun Oil pursuant to

its agreement with Rowan.

At all times pertinent, the three tugs towing the

ROWAN ODESSA to its location in East Cameron Block

330, the EL JAGUAR GRANDE, EL ZORRO GRANDE

and LEOPARDO GRANDE, were diesel-powered,

documented, ocean-going vessels, owned by defendant

Twenty Grand and operated by defendant Tidewater. Pur-

suant to the contract between Sun Oil and Rowan, and

through the use of the three tugs, the ROWAN ODESSA,

under McCary’s command, was put under tow toward the

A-15

designated drillsite on August 3, 1978.

10.

At all times pertinent, defendant Chance was a cor-

poration organized and doing business under the laws of the

State of Louisiana.

Sun Oil contracted with Chance for surveying services,

and on July 28, 1978, requested that Chance buoy the drill-

ing site. On August 4, 1978, while the ROWAN ODESSA

was in tow toward the drilling location, Sun Oil also re

quested that Chance place marker buoys on the pipeline

which was located approximately 1500 feet west of the pro-

posed drillsite. On that date, Chance marked the well loca-

tion, placed two reference buoys to the northeast and nor-

thwest of the site, and placed three buoys on the pipeline

directly west of the site.

The three buoys marking the pipeline west of the

wellsite were placed at 1500 foot intervals. One was placed

due west on the site while the remaining two buoys were plac-

ed 1500 feet northeast and southwest of the first buoy. Subse

quent surveys indicated that the wellsite and pipeline buoys

were placed within expected tolerance limits. Each buoy con-

sisted of one cubic foot piece of styrofoam, topped with an

eight-foot cane pole. Attached to each pole was a six-volt bat-

tery, non-flashing bulb, and a small black and white flag.

The request to buoy the pipeline was transmitted by

telephone from Sun Oil to Chance after the Chance surveyors

were offshore. As a result, Chance, in its office, made the

calculations necessary to locate the pipeline and radioed the

information to its offshore crew.

A-16

ii.

On board the ROWAN ODESSA during the move was

Rowan rig mover, McCary, Rowan toolpusher Lindsey

Rogers, Captain Dillman, the rig’s marine hull underwriters’

representative, Sun Oil’s drilling foreman, Richard Oliver,

and the Rowan crew. McCary, as rig mover, was in command

of the vessel, while Oliver’s duties involved checking the rig’s

inventory and equipment used for drilling. Although Oliver

was responsible for seeing that the rig was properly located

on the wellsite, he had nothing to do with the lowering of

the rig’s legs, or with moving the vessel toward location.

On or about August 2, 1978, Sun Oil obtained from

Marathon a map showing the as-built location of the pipeline

and its proximity to the drilling location. This map disap-

peared from the rig after the pipeline was damaged and was

never found. It therefore was not produced fro trial. On or

about August 4, 1978, Sun Oil sent the map to the rig by

helicopter, for use by rig personnel. This map was reviewed

by McCary, Captain Dillman and Oliver, in the course of the

rig move. Oliver testified that, in addition to this map, he

had onboard yet another chart, which also mysteriously

vanished and which also showed the wellsite and its prox-

imity to the pipeline. Oliver testified that the pipeline was

shown on their maps as running from the southwest to the

northeast, while Dillman and McCary testified that the

pipeline appeared to run north to south.

There was considerable testimony concerning the

reliance of McCary, Dillman and Oliver upon the siting of

the rig inside of a ‘triangle’, created by the Sun Oil,

Marathon and Aminoil platforms. The Marathon platform

in Block 321 was north of the wellsite while the Sun platform

A-17

in Block 330 was southwest of the site. The Amnoil platform

was located northeast of the drillsite. Oliver stated that he

considered the location of these platforms as visual indicia

of an imaginary ‘‘triangle’’ of safety. If the rig was inside

of this triangle, it would not contact the pipeline.

The Court finds that the Rowan employees onboard

the ROWAN ODESSA and responsible for moving the rig

were well aware of the presence of the Marathon pipeline long

before arriving at the proposed drillsite.

13.

At approximately 8:00 p.m. on August 4, 1978, the

captain of the EL ZORRO GRANDE, Otis Wisdom, was con-

tacted by McCary, who requested that the rig receive one

hour’s notice prior to arrival in the vicinity of the location

so that the rig could begin lowering its legs. At approximate-

ly 10:30 p.m., Wisdom informed the rig that the flotilla was

approximately one hour from “‘location’’, that is, from Block

330. Wisdom was also informed that the “ jacking-down” rate

of the rig’s legs was one and a half feet per minute; he was

requested to determine, from the survey boat, what the water

depth was at the wellsite. The tug then relayed a depth

reading, provided by the survey boat to the rig, of 255 feet.

This figure is contrasted with the 249 foot reading which ap-

peared on the Sun Oil “Drilling Program.”’

The lead tug decided that the flotilla would enter the

block to the north, rather than directly to the west of the

wellsite. Several witnesses agreed that such an approach

would be customary, under these circumstancces, to avoid

“wiping out’”’ the location buoy.

14.

A-18

Chance surveyor Caillier was aboard the Chance

survey boat, GULF SURVEYOR, and in radio communica-

tion with the rig and its tug boats when the flotilla was

several hours away from the wellsite. He communicated to

the flotilla that a pipeline was in the vicinity of the wellsite

and was told by McCary that he, McCary, was aware of the

pipeline’s location. He also recalls advising ‘‘someone”’ in the

flotilla that the water depth at the wellsite was 255 feet.

There was also testimony to the effect that Caillier mention-

ed, in radio communication to the tugs, which communica-

tion was relayed to the rig, that the rig was east of (i.e., had

crossed) the pipeline.

15.

The gauge on the ROWAN ODESSA showing the

depth to which the rig legs were extended was not in work-

ing order. McCary, using numerical markings which appear

on each leg, applied a mathematical formula to determine

the depth to which the legs were lowered. The ROWAN

ODESSA was not equipped with a depth finder, but had,

on occasion throughout the move, radioed the tug boats and

requested depth readings. The tugs were equipped with

fathometers.

There was considerable conflict in the testimony

relative to the proper ‘‘formula”’ to be utilized in calculating

the leg depth. Oliver testified that he didn’t know how it was

done; McCary testified that he had explained it to Oliver.

McCary stated that one subtracted 39 feet from the number

appearing on the rig legs; Dillman indicated at trial that one

subtracted 28 feet, but admitted that his deposition

testimony on this point was confused. McCary also stated

that his mention in deposition of a 45 foot figure was ‘‘con-

fused’. He conceded, however, that assuming the legs

A-19

were lowered continuously starting at 10:30 p.m., they would

be at a depth, at 1:00 a.m., of 251 feet. He testified, however,

that there was an interruption in the lowering process of ap-

proximately 10 minutes duration.

16.

Though the testimony was conflicting on this point,

the Court finds that, sometime between 11:30 p.m. and 12:15

a.m. on August 4 and 5, 1978, the flotilla arrived at a loca-

tion approximately one mile north of the drillsite. McCary

then directed the tugs to switch their towing positions and

turn the rig so that it could approach the wellsite in a

backwards position, in order that the rig’s keyway would be

directly over the wellsite.

It was while this ‘‘turn-around”’ was in progress that

Chance surveyor Caillier boarded the rig and again asked

rig personnel Oliver and McCary if they were aware of the

pipeline’s location. While Caillier testified that McCary

responded by saying, ‘‘Let the tugs worry about the

pipeline’, Oliver testified that he did not recall McCary mak-

ing this response.

17.

The process of lowering the legs, and the decision as

to when to do so, was directed by McCary. Though again

faced with much conflicting testimony, the Court finds that

the leg lowering process could not have begun any later than

10:30 p.m., and, from the evidence presented, may have

begun even earlier. This conclusion must result, despite the

fact that the log kept by Captain Dillman indicated that the

leg lowering did not begin until 11:00 p.m. This log also in-

dicates, and several witnesses corroborated, that at 12:30

A-20

p.m., the rig legs had been extended to a depth of 247 feet.

McCary testified that the legs were already extended 26 feet

when the lowering process began.

Another area of inconsistent recall concerned the depth

to which the legs were to be extended as the rig approached

the wellsite. Those witnesses who were involved with the

wellsite approach were under the impression (an impression

created by McCary) that once the tug switch occurred, the

legs were to be placed at, and remain, 40 feet off bottom un-

til the rig was quite near the wellsite. Once the rig was

somewhere between 200 feet and 1500 feet of the site (again,

the recollection of witnesses varies), the legs were to be drop-

ped to a distance of 10 feet off bottom. There was no clear

evidence presented (indeed, no one seemed to know) exactly

when this 30 foot drop occurred. Oliver and Sun Oil engineer

Kathy Jo Hayes stated that they understood from McCary’s

comments on August 6, 1978, that the legs had remained

at the 40 foot height above bottom until the rig was quite

near the wellsite, but then also stated that McCary, in a con-

fused fashion, had also mentioned lowering the legs to 10

feet off bottom once the tug switch was accomplished. At

any rate, the moving log kept by Captain Dillman shows

that, as of 12:30 a.m. on August 5, 1978, the legs were 10

feet off the bottom. Captain Dillman himself testified that

the legs were placed 10 feet off the bottom when the rig was

one half mile from the wellsite, and that the legs were jack-

ed down continuously once that process was begun.

18.

The gauges measuring pressure on the Marathon

pipeline registered a sudden drop sometime between 12:30

a.m. and 12:55 a.m. on August 5, 1978. The ROWAN

ODESSA was the only deep draft vessel in the vicinity

A-21

at this time, and there was no vessel anchored in the area.

19.

At the point of rupture, the pipeline lay in 242-245 feet

of water, and was slightly more than one mile north of the

wellsite. The side scan sonar studies of the pipeline conducted

by Chance on August 6, 1978, as well as the observations

of those divers who examined the damaged pipeline, indicate

that ‘‘prints’’ which correlate to the position and shape of

the rig legs of the ROWAN ODESSA were found on the

pipeline at the point of damage. These tracks cross the

pipeline in a generally northwesterly to southeasterly direc-

tion at a point between the Marathon and Sun Oil platforms

slightly more than one mile north of the proposed well

location.

20.

Based on strong circumstantial evidence, the Court

finds from a preponderance of all the evidence that the legs

of the ROWAN ODESSA struck the Marathon pipeline on

August 5, 1978, causing the damage which forms the basis

of this complaint.

CONCLUSIONS OF LAW

This Court has jurisdiction of this action as an admiral-

ty and maritime claim, and venue is proper in the Eastern

District of Louisiana.

is

A-22

Inasmuch as Marathon’s pipeline was properly laid,

in accordance with required permits, Marathon is not guil-

ty of any fault or neglect which contributed to the damage

sustained by the pipeline. Gray v. Joansson, 287 F.2d 852

(5th Cir. 1961), cert. denied, 368 U.S. 835 (1961).

III.

In a case of this nature, where there can be no

eyewitnesses to the event causing damage, the facts cannot

be found with absolute certainty or beyond a reasonable

doubt. The rights of the parties are determined by a

preponderance of the evidence, and reliance upon circumstan-

tial evidence which supports the inference of causation and

negligence is permissible. Petition of Potomac Sand and

Gravel Co., 253 F.Supp. 268 (D.Md. 1966); So. Pacific v. Com-

mercial Transport Corp., 1967 S.M.C. 565 (E.D.La. 1966).

IV.

By virtue of their agreement with Rowan, which agree

ment was drafted by Rowan’s general counsel John Magner,

Sun Oil agreed to provide Rowan with a ‘‘guidepath’’ and

access to the drilling site. Rowan contends that Sun Oil

breached this obligation as the term ‘‘guidepath”’ speaks for

itself and is clear and unambiguous. However, at trial no one

was able to clearly define the term. Magner testified that

he had not placed in the contract a definition of the term

and, when asked to define it, he stated he could not. The on-

ly witness at trial who attempted to define the term was

Rowan’s Executive Vice-President Charles W. Yeargain. His

definition indicated that, between two points, there were no

obstructions. Testimony at trial, however, indicated that the

Gulf of Mexico has many subsurface pipelines, and it would

be all but impossible to move a drilling rig within the Gulf

A-23

without encountering such obstructions. Hence, it is ap-

parent that the term ‘‘guidepath”’ as used in Section 4(c) of

the agreement between Rowan and Sun Oil was ambiguous

and did not clearly indicate the intent of the parties regar-

ding the obligation thereunder. It follows that such an am-

biguous contractual provision must be construed against the

party which drafted the agreement. (Rowan). Transcontinen-

tal Gas Pipeline Corp. v. Mobile Drilling Barge MR.

CHARLIE, 294 F.Supp. 1025 (E.D.La. 1968), aff'd in part,

rev'd on other grounds, 424 F.2d 684 (5th Cir. 1970).

Accordingly, the Court is unable to find that Sun Oil

failed to fulfill its contractual duty to provide Rowan with

a ‘‘guidepath”’ and access to the drilling site.

In addition to furnishing Rowan with a ‘‘guidepath”’,

Sun Oil agreed to advise Rowan of any subsurface conditions

or obstructions which Rowan might encounter during opera-

tions under the agreement, survey and mark locations, and

provide towing service. In fulfillment of these obligations,

Sun Oil provided Rowan with a map showing the as-built

location of the pipeline and Sun Oil’s foreman, Oliver, had

yet another chart aboard the rig showing the location of the

pipeline relative to the proposed drilling site. In addition,

Sun Oil engaged the services of Chance to survey and mark

the drilling location and, prior to the rig’s arrival on loca-

tion, had Chance mark the exact location of the pipeline.

Finally, Sun Oil assumed the cost of the tugs which were

engaged by Rowan to tow the ROWAN ODESSA to the drill-

ing site.

Thus, having found that Rowan was well aware of the

existence and location of the Marathon pipeline relative to

the wellsite, prior to the arrival of the ROWAN ODESSA

on location, the Court concludes that Sun Oil fulfilled all

A-24

of its obligations under its agreement with Rowan and that

Sun Oil was not negligent in the planning as opposed to the

operational aspects of the rig move. Contra, Transcontinen-

tal, supra.

V.

In the instant case, a moving vessel, the ROWAN

ODESSA, collided with a fixed subsurface object, the

Marathon pipeline. When a moving vessel collides with an

anchored vessel or a fixed object, there is a presumption the

moving vessel is at fault, and the moving vessel bears the

burden of rebutting this presumption by showing that it was

without fault, or that the collision was caused by the fault

of the stationary object, or that it was the result of inevitable

accident. The OREGON, 158 U.S. 186, 197 (1895); The

CLARITA, 90 U.S. (23 Wall) 1, 13 (1874); Freeport Sulphur

Co. v. S.S. HERMOSA, 1974 A.M.C. 1315, 368 F.Supp. 952

(E.D.La. 1973), aff'd in pertinent part, 1977 A.M.C. 508, 526

F.2d 300 (5th Cir. 1976); Transcontinental, supra. The

presumption of fault on the part of the ROWAN ODESSA

in hitting the pipeline has not been overcome. Rowan, the

claimant-owner of the ROWAN ODESSA, has not shown

that the collision was the result of inevitable accident nor

has it shown that the collision was caused by the fault of

the stationary object. The fact that the collision occurred

required Rowan as owner of the vessel to show that the

vessel, and those in charge of her navigation, were without

fault. Transcontinental, supra.

Turning to the drilling vessel ROWAN ODESSA, the

Court has found that the gauge on the vessel showing the

depth to which the legs were extended was not in working

order during the rig move. This required McCary, her master,

to use numerical markings which appear on each leg,

A-25

and to apply a mathematical formula to determine the depth

to which legs were lowered. Also, the rig was not equipped

with a fathometer which would indicate the water depth

below the vessel. Thus, the rig, in order to determine the

water depth, had to contact the tugs which were equipped

with fathometers. However, considering the fact that the rig

was being towed, and the towing hawser was approximate-

ly 1800 feet in length, the rig would only be advised as to

the water depth below the tugs more than one quarter mile

away. Therefore, unless the rig was constantly being advis-

ed as to the water depth, any attempt by the rig mover to

extend the rig legs to a specific depth above the floor of the

Gulf at any point would be based on speculation as to the

actual water depth below the rig at a given time.

In considering the actions of McCary, the master of

the ROWAN ODESSA, the Court concludes that he failed

to fully inquire into the location of the pipeline as the rig

was nearing the drilling location, notwithstanding the fact

that he had in his possession a map showing the as-built loca-

tion of the pipeline and that the pipeline was marked by the

Chance buoys. Testimony indicated that he relied solely upon

the siting of the rig within an imaginary ‘‘triangle’’ created

by nearby platforms, and did not take special precautions

under the circumstances, such as locating the Chance marker

buoys or requesting that the Chance survey vessel, the

GULF EXPLORER, keep the rig advised as to the pipeline’s

location.

The Court finds that McCary was also negligent in fail-

ing to inquire into the depth of the water at the point where

the ROWAN ODESSA crossed the pipeline, approximately

one mile north of the proposed drilling location. Testimony

indicated that McCary requested that the captain of the EL

ZORRO GRANDE inform the rig when the flotilla was

A-26

approximately one hour from location so the rig could begin

lowering its legs. At approximately 10:30 p.m. the rig was

so informed and, thereafter, McCary requested the EL

ZORRO GRANDE to determine from the Chance survey

vessel the water depth at the wellsite. McCary, however, did

not request depth readings at the location where the rig

began the jack-down procedure or at any location other than

the wellsite, apparently assuming the depth between rig and

the wellsite was the same as that at the wellsite (255 feet).

Finally, McCary was negligent in timing the lowering

of the rig’s legs and in not allowing a reasonable margin of

safety relative to the depth to which the legs were to be

lowered.

The Court has found that the pipeline lay in 242-245

feet of water at the point of rupture, which rupture occur-

red approximately one mile north of the wellsite sometime

between 12:30 a.m. and 1:00 a.m. on the morning of August

5. Assuming that McCary began to lower the legs at 90 feet

per hour at 10:30 p.m., as he testified, and that the vessel

had a draft of 26 feet, the legs would, after continuous lower-

ing, have reached a depth, at 1:00 a.m., of 244 feet. The

vessel’s moving log, however, indicates that, at 12:30 a.m.,

the legs were 10 feet off bottom at 287 feet ‘‘rack’’. Accor-

ding to Captain Dillman, the legs were then at a depth of

257 feet. Thus, although the testimony was conflicting as

to the depth to which the legs were extended, in any event,

the margin for safety at the point where the rig crossed the

pipeline was 0, instead of the usual 10 to 15 feet.

For the reasons cited hereinabove, any of which, in the

Court’s opinion, constituted fault on the part of the drilling

vessel ROWAN ODESSA and/or her master, McCary, the

Court finds that Rowan as claimant-owner has failed

A-27

to rebut the presumption that its vessel was at fault in caus-

ing the collision with the pipeline and that McCary, her

master, was negligent. Accordingly, such fault on the part

of the ROWAN ODESSA and those in charge of her naviga-

tion was the sole proximate cause of the damage to the

Marathon pipeline.

VI.

Plaintiff has named as defendants Tidewater and

Twenty Grand, as owner/operator of the three vessels engag-

ed with towing the ROWAN ODESSA to the wellsite. Bas-

ed on the evidence heard at trial and the applicable law, the

Court is convinced that the towing vessels were in no way

a contributing proximate cause of the collision with the

Marathon pipeline. Virtually every witness testified that the

tugs’ behavior and navigation were commensurate with that

level of care and expertise required of similarly situated tow-

ing vessels. It was also generally conceded that the tugs were

directed by and subject to the orders of the rig manager,

McCary. While the tugs were responsible for the safe con-

duct of the rig over water to the wellsite, they did not con-

trol or direct the movement of the rig’s legs. At all times

pertinent, the tugs were operating under the direction of

McCary. As a result, they cannot be considered the ‘‘domi-

nant mind”’ over their tow.

The ‘‘dominant mind”’ concept was developed to im-

pose liability for a collision on the towing vessel for its faults

in navigation, even though the tow may have contributed

to the accident. The tug is generally considered the ‘‘domi-

nant mind’’, since it provides the motive power. When,

however, the collision is the result of a duty breached by the

tow, and not the result of some fault or omission of the tug,

the tow may be held solely liable for resulting damages.

A-28

Gilmore & Bloack, The Law of Admiralty (2d Ed. 1975), p.

516; Chevron U.S.A., Inc. v. Progress Marine, Inc., 1980

A.M.C. 1637, aff'd, 632 F.2d 893 (5th Cir. 1980). See also Dow

Chemical Co. v. Tug THOMAS ALLEN, 394 F.Supp. 1354

(E.D.La. 1972), wherein it was stated:

If the tow is the ‘‘dominant mind’’, the tug is not

liable provided the tug has obeyed the tow’s orders

and has not herself been guilty of negligence, either

in the manner of executing the orders or by par-

ticipating in an obviously dangerous maneuver.

Dow Chemical, supra at 1363.

The tugs supplied depth readings to the ROWAN

ODESSA throughout most of the move. Though the

testimony was somewhat unclear as to whether the tugs

possessed a pipeline chart onboard, it appears that they did

not. While sailing without a chart may render a vessel

unseaworthy, the Court concludes that under the facts of

this case, the failure of Tidewater and/or Twenty Grand to

supply pipeline charts to the tugs was not the proximate

cause of the casualty. Dow Chemicals, supra. Nor was the

tug’s relay to the rig of the Chance observation that the

flotilla was east of the pipeline a proximate cause of the col-

lision. The tugs were not requested nor under a duty to pro-

vide the rig with constant depth readings or to evaluate

another party’s knowledge of the flotilla’s location relative

to the pipeline. Rig personnel did not ask the tugs for depth

readings or a navigational fix when they crossed the pipeline,

as they had at other times during the move. The tugs were

aware of the pipeline’s presence, but, as numerous witnesses

testified, the tugs were not responsible for, or in any way

involved in the decision to lower the rig legs. At all times

pertinent, the tugs exercised that degree of caution, care

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and maritime skill which prudent navigators usually employ

in similar undertakings. United States Fire Insurance Co.

v. Gulf States Marine & Mining Co., 262 F.2d 565 (5th Cir.

1959); Chitty v. M/V VALLEY VOYAGER, 284 F.Supp. 297

(E.D.La. 1968).

VII.

Plaintiff has also named as defendant Chance, the

surveyor engaged by Sun Oil to buoy both the drilling loca-

tion and the Marathon pipeline. Based on the testimony at

trial, the Court concludes that Chance performed those ser-

vices requested of it under its contract with Sun Oil in ac-

cordance with the ‘“‘highest standards” in the industry. The

services requested of it were: 1) to buoy the location of the

well, and 2) to mark the Marathon pipeline west of location.

The surveys undertaken subsequent to the pipeline rupture

indicated that the three buoys placed over a 3000 foot area

west of the location were placed over the pipeline. The buoy

marking the wellsite location was also accurately placed.

It is clear from the testimony at trial that those aboard

the rig did not expect the surveyor to “‘direct’’ the rig onto

location, or to mark the pipeline at the point of crossing. In

addition, there was much testimony indicating that the

‘missing map”’ aboard the rig was marked to show the three

points at which the Chance buoys designated the pipeline.

Caillier, the Chance surveyor, when requested by Rowan, pro-

vided the rig with the water depth at location. He was not,

however, requested to determine the depth at the point where

the rig crossed the pipeline.

Thus, Chance, as a service company, did what it was

asked to do. It was not required or under a duty to warn an

experienced contractor, such as Rowan, of dangers which

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Rowan could be presumed to be familiar with, especially in

light of Rowan’s knowledge of the existence of the pipeline.

Waterbury v. Byron Jackson, Inc., 576 F.2d 1095 (5th Cir.

1978). Further, any negligence which the Chance crew may

have committed was not a proximate cause of the damage

to the pipeline. McCary’s reliance upon a comment radioed

by Caillier to the tug boats and which was relayed to McCary,

to the effect that the rig was east of the pipeline, was misplac-

ed. Notwithstanding this comment, however, it was the leg

lowering process directed by McCary and prior to the Chance

comment which ultimately caused the damage to the pipeline.

Caillier asked rig personnel on at least two different occa-

sions whether they were aware of the existence of the

pipeline. The responses were affirmative and rig personnel

requested no additional assistance.

VIII.

The court has reviewed the numerous allegations made

by Rowan as to the fault of defendants and cross-defendants,

Tweaty Grand, Tidewater and Chance. However, such allega-

tions have been found to be without merit.

Thus, having determined that Rowan was negligent

and that such negligence was the proximate cause of the

damage to the Marathon pipeline, the Court now focuses on

Rowan’s claims for indemnity.

IX.

In the contract between Sun Oil and Rowan, the in-

demnity provision appearing in Section 9(f)(2) (see Findings

of Fact) provides that the Operator (Sun Oil) will indemnify

Contractor (Rowan) against all claims arising ‘‘in favor of

Operator’s employees, Operator's contracators or their

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employees,...on account of bodily injury, death or damage to

property’. (Emphasis supplied). Since the Court has deter-

mined that Rowan is the only party whose negligence caus-

ed the damage complained of, and since the claims of

Tidewater, Twenty Grand and Chance for indemnity were

premised upon the possibility that they might also be found

negligent, the Court finds these provisions inoperable. Fur-

ther, the indemnity provision clearly does not apply to any

claim by Rowan for indemnity from Sun Oil based upon the

negligence of Rowan. Finally, the contract and indemnity

provisions are silent as to indemnity in the event of damage

to the property of third parties, such as Marathon. Thus,

the Court concludes that Rowan is not entitled to indemni-

ty from Sun Oil pursuant to their contractual obligations.

X.

Rowan argues that it may claim indemnity from

Chance under the terms of the following indemnity provi-

sion contained in the contract between Sun Oil and Chance:

INDEMNITY: Contractor [Chance] agrees to

protect, defen indemnify and hold Sun [Sun Oil]

and those whe re joint adventurers, partners, co-

owners of the property, or otherwise associated

with Sun in receiving the benefits of the work or

services to be rendered or performed hereunder, and

the employees of Sun and of such associates of Sun,

free and harmless from and against any and all

claims, demands and causes of action of every kind

and character from any cause whatsoever by any

party hereto, any party acquiring any interest

hereunder, any of their agents and employees, and

any third or other party whomsoever, or govern-

mental agency, arising out of, incident to, or in con-

nection with this agreement or performance of work

or services thereunder or breach of the terms,

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thereof, including without limitation by enumer-

eration all taxers, claims, debts, fines, penalties,

forfeitures, patent infringements, loss of use, death,

injury and damages to all persons and property,

together with the amount of judgments, penalties,

interest, court costs, legal and other fees and ex-

penses in connection therewith, regardless of

whether the liability therefor is based upon some

alleged act or omission of Sun or of Contractor or

of some other party.

(Emphasis supplied).

Specifically, Rowan argues that it may claim indem-

nity from Chance as one who received ‘‘benefits of the work

or services to be rendered or performed hereunder’’. The

Court rejects this contention. The obligation to indemnify

is to be strictly construed, and the status of indemnitee is

also interpreted narrowly. Gulf Oil Corp. v. Mobile Drilling

Barge or Vessel Margaret, 441 F.Supp. 1 (E.D.La. 1975),

aff'd, 565 F.2d 958 (5th Cir. 1978). Additionally, an indem-

nity agreement will be held to benefit a particular party on-

ly when it is express in that effect, and reflects the clear in-

tent of the parties. Day v. Odeco, 353 F.Supp. 1350 (E.D.La.

1973). The Court is not convinced that the above-quoted

language expresses the clear intent of the parties [Sun Oil

and Chance] to indemnify a contractor such as Rowan for

its [Rowan’s] own negligence. Rather, the provision when

taken as a whole indicates that the phrase ‘‘those...otherwise

associated with Sun in receiving the benefit...’’ would include

those persons associated or affiliated with Sun Oil enjoying

the benefit of the work being performed rather than the con-

tractors such as rowan who are actually performing the work

contracted for. Thus, the Court concludes that Rowan is not

entitled to indemnity from Chance pursuant to the contract

between Sun Oil and Chance.

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Accordingly, IT IS ORDERED that judgment be

entered in accordance with this opinion in favor of plaintiff,

Marathon Pipe Line Company, and in favor of defendants,

Sun Oil Company, Sun Gas Company, John E. Chance and

Associates, EL ZORRO GRANDE, EL JAGUAR

GRANDE, LEOPARDO GRANDE, in rem, Twenty Grand

Offshore, Inc., and Tidewater Marine Service, Inc., in per

sonam, and against defendant ROWAN ODESSA, in rem,

and Rowan Companies, Inc., in personam. All cross-claims

are hereby dismissed, with the amount of damages to be

established by Marathon at a subsequent trial of that issue,

if parties are unable to stipulate to same.

UNITED STATES DISTRICT JUDGE

New Orleans, Louisiana

November 24, 1981

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APPENDIX “D”

PROCEEDINGS

THE COURT: Are counsel ready?

MR. READ: Plaintiff is ready.

THE COURT: Would you please enter an appearance

for the record, Mr. Read.

MR. READ: For the plaintiff, Marathon, Henry Read

and Gordon Grant of Montgomery, Barnett, Brown & Read.

MR. BLAZEK: For the Rowan Companies, Jim

Blazek, Mr. Ernest Carrere, Alan Zaunbrecher, Jim Wright.

MR. BIENVENU: For Sun Oil Company of Delaware,

Albert Bienvenu, Jr. and John McAuliffe.

MR. HEALY: May it please the Court, for Tidewater

and Twenty Grand, George Healy and Richard Dicharry.

MR. STEEN: For John Chance & Associates, Charles

Steen and Larry Roedel.

THE COURT: Okay, gentlemen. Do you wish the

witnesses sequestered?

MR. READ: Yes, your Honor.

MR. STEEN: We would ask that they be sequestered,

and I notice that Rowan Company has Mr. McCary sitting

here, apparently as a representative. He’s not an officer or

representative of the company, and I would suggest that

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he ought to be sequestered, too.

MR. BLAZEK: We intend to have Mr. McCary here

as the client representative in order to assist us in the trial

of this case.

THE COURT: Will he testify?

MR. BLAZEK: Yes, sir, he will.

MR. STEEN: He is a key witness, your Honor.

MR. BIENVENU: I join in the objection.

THE COURT: What is his position with the

corporation?

MR. BLAZEK: He is the rig manager. That’s his of-

ficial title.

THE COURT: This particular rig, the rig in question?

MR. BLAZEK: Yes, your Honor.

THE COURT: I’m going to order him sequestered un-

til he testifies. All persons who are going to testify in this

cause please repair to the hallway and remain there until you

are called, and do not discuss this case amongst yourselves

while you're waiting to testify.