# Appendix — Shell Oil Co. v. Olsen > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0619%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1984 - **Citation:** 464 U.S. 1045 ## Text In the Supreme Court of the United States OCTOBER TERM, 1983 Sinaia . STEVAg, CLERK SHELL OIL COMPANY, Petitioner, V. MARY OLSEN, ARGONAUT INSURANCE COMPANY, CHRISTINE W. CARVIN, and GORDON DAVIS WALLACE, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITES STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT APPENDIX TO PETITION FOR WRIT OF CERTIORARI VOL. I — APPENDIX A —G JOHN O. CHARRIER, JR. ROBERT T. LEMON, II JONES, WALKER, WAECHTER, POITEVENT, CARRERE & DENEGRE 225 Baronne Street, 28th Floor New Orleans, Louisiana 70112 Telephone: (504) 581-6641 Counsel for Petitioner Appendix A - Appendix B - Appendix C - Appendix D - Appendix E - Appendix F - Appendix G - INDEX PAGE Minute Entry of the United States District Court of the Eastern District of Louisiana, PE BO 445 Cedves ca eaaes ca A-1 Minute Entry of the United States Dis- trict Court for the Eastern District of Louisiana, July 15, 1975............ A-20 Opinion of the court of appeals, og 8. , aa ee A-34 Denial of rehearing en banc by the court of appeals, December 1,1977.... A-74 Opinion of the court of appeals certifying questions to the Louisiana Supreme Court, May 12,1978 ....... A-76 Opinion of the Louisiana Supreme Court, January 26, 1979............ A-83 Opinion of the court of Appeals, RS RR OTN bye A-116 A-1 APPENDIX A FINDINGS OF FACT AND CONCLUSIONS OF LAW Filed: June 6, 1974 Minute Entry June 6, 1974 tine MARY OLSEN, et al. CIVIL ACTION versus NO. 72-1240 SHELL OIL COMPANY, et al. SECTION B CHRISTINE W. CARVIN, et al. CIVIL ACTION versus NO. 70-2986 SHELL OIL COMPANY, et al. SECTION B FRANK WINSTON BOOKER, et al. CIVIL ACTION versus NO. 71-894 SHELL OIL COMPANY, et al. SECTION B GORDON DAVIS WALLACE CIVIL ACTION versus NO. 71-1144 SHELL OIL COMPANY, et al. SECTION B ARGONAUT INSURANCE COMPANY CIVIL ACTION versus NO 73-1265 SHELL OIL COMPANY, et al. SECTION B (CONSOLIDATED CASES) On a previous day this case came on for trial on the issue of liability alone, and the Court, after hearing the evidence A-2 and studying the briefs and memoranda filed by the parties, makes the following findings of fact and conclusions of law. FINDINGS OF FACT 1. On May 6, 1970, a hot water heater explosion occurred aboard a fixed platform owned by Shell Oil Company located in the Eugene Island Area, Block 259, in the Gulf of Mexico, off of the coast of Louisiana. The individual plaintiffs in this case are the legal representatives of men killed in the explo- sion, except for Gordon Wallace who sues for injury. The platform was designated as Shell’s ‘‘C’”’ platform and drilling was being conducted from the platform by a drilling contrac- tor known as Movible Offshore, Inc. The individual plaintiffs were all employees of Movible Offshore, Inc. (Movible). 2. To conduct the drilling operations from the platform, Movible had located its modular and movable drilling rig on the platform. Movible designated the rig at this particular location as Movible Rig No. 4. Movible Rig No. 4 consisted of all equipment necessary to drill a well, including a derrick or mast, drawworks, the very large engines which were nec- essary to power the drilling equipment, and all normal appur- tenances to a drilling operation. In addition to this, Movible had its modular living quarters on the Shell platform which provided a galley area for feeding the men, sleeping quarters, shower and bathroom facilities and a lounge area. This modular living unit was fully movable, and when the rig was moved from one platform to another, it was picked up as a unit by a derrick barge and then transported to the new site and duly placed on the platform in such a way that cutting and burning of metal would be required to remove it. A-3 3. Under the working arrangement in effect between Shell and Movible, two Movible drilling crews consisting of six men each worked opposite shifts so that the drilling rig could be kept in operation 24 hours a day. Of the twelve men com- posing the two drilling crews, two were drillers, two were der- rickmen, six were rotary helpers, and two were power plant operators. In addition to these men, Movible also provided three roustabouts (charged with platform maintenance), one welder, one crane operator, and a commissary crew, e¢.g., several people charged with the duty of providing for ‘+e food service and the upkeep and maintenance of the interior of the living quarters. Shell performed none of the actual operations on the rig and had only one permanent represen- tative there. He was provided quarters in the Movible modu- lar living unit but concerned himself with observing the drilling operations conducted by Movible. 4. The living quarters module which Movible brought to the site was a complete and self-contained unit. It was built on skids so that it could be picked up as one unit and moved from platform to platform. The quartersunit was equipped with a galley and related dining area and living area. Ad- ditionally, the quarters unit was equipped with two electric water heaters. One water heater was located in the galley area and another was located in the pantry area. The pantry heater provided water to the showers while the galley heater, in the main, provided water to the galley equipment. These water heaters were Movible equipment and were wholly owned, as was the living quarters unit, by Movible Offshore, Inc. 5. On November 1, 1968, Pacific Employers Insurance Company (Pacific), an affiliate of the Insurance Company of A-4 North America (INA), issued Standard Workman's Compen- sation and Employer’s Liability Policy No. PWC 06502 to Movible Offshore, Inc. The policy period commenced at 12:01 a.m. on November 1, 1968 and terminated on Novem- ber 1, 1969. The policy of insurance issued by Pacific to Movible contained the following language with respect to safety inspections: “The Company and any rating authority having jurisdiction by law shall each be permitted but not obligated to inspect at any reasonable time the work places, operations, machinery and equipment covered by this Policy. Neither the right to make inspections nor the making thereof nor any report thereon shall constitute an undertaking on behalf of or for the benefit of the insured or others, to determine or warrant that such work places, opera- tions, machinery or equipment are safe.” (emphasis supplied) 6. Shortly after commencement of the policy period, INA officials, including its New Orleans Manager, Mr. H. K. Dulaney, participated in discussions with representatives of Movible, including the official responsible for its safety program, Mr. J. H. Brazier. The discussions focused on the services which would be rendered by INA in connection with its coverage. Mr. Gilbert J. Stansbury was introduced as the INA representative who would be handling the Movible ac- count. 7. During this initial meeting, Dulaney informed Movible regarding INA’s policy of ‘“‘loss control,” i.e., INA under- stood its obligation to be one of motivating the management of its insured to undertake a complete safety pre yram on their own. INA would provide the company with brochures, A-5 posters, films and information for use at safety meetings and would also make visitations to rigs for the purpose of point- ing out unsafe practices and making recommendations for changes. Dulaney stated that INA was well aware that Movible had its own extensive safety program. Brazier re- plied that Movible was highly competent in promoting safety within their operations and expected INA to work within Movible’s program. 8. Brazier informed Dulaney that every man on a Movible rig was considered a safety engineer and had safety responsi- bilities. Dulaney had the impression that each toolpusher had specific expertise in safety with respect to conditions which existed on the rigs. To encourage safety practices by the men and to prevent lost time accidents, Movible had an incentive program, awarding various prizes to the men with the best safety records. Movible held daily safety meetings befcre each crew went to work and weekly safety meetings in which all men on the rig participated. Movibie officials also performed safety inspections on its rigs. Daily inspec- tions took place under the direction of the Movible tool- pusher and weekly visitations to the rigs were made by Movible’s Drilling Superintendent and his assitant. The pur- pose of these inspections was to check machinery, safety equipment, safety reports and to fill out safety inspection reports. As a result of its extensive safety program, Movible won first place in the American Oil Well Drillers Association safety awards program during eight of the past nine years. 9. When Brazier inquired as to whether INA would in- spect all of the rigs each month, Dulaney responded that INA could not undertake this type of inspection but that it would attempt to inspect the rigs on a periodic basis and transmit A-6 its recommendations to Movible. 10. Throughout the policy period, Movible continued to perform safety inspections on its rigs including Movible Rig No. 4. The Court finds that INA represented to Movible and its officials that it would conduct periodic inspections of the rigs as a supplement or adjunct to Movible’s continuing safety program. 11. INA’s usual procedure to follow up safety recommen- dations made by its inspectors was to receive written replies from the insured indicating whether suggested action had been completed. Movible, however, never, or rarely, gave INA the requisite written report. This conduct led to the cancellation of INA’s safety services for Movible. The rou- tine of INA and Gilbert Stansbury, as far as Movible was con- cerned, was to make actual inspections to see whether pre- vious safety recommendations had been complied with. In at least one other case, Mr. Stansbury discovered, during a follow up inspection, that his recommendations concerning a hot water heater temperature pressure relief device had not been followed. Thus, the evidence preponderates that INA undertook to check, by inspection, on compliance with its recommendations. The evidence further indicates that Movible, contrary to its representations about its own safety program, relied on INA to make actual inspections to secure compliance with Stansbury’s safety recommendations instead of undertaking to check and report compliance on its own. 12. On January 22-23, 1969, Mr. Stansbury visited Movible Rig No. 4 for the purpose of viewing Movible’s safety practices on the rig, including making a safety inspec- tion. During his inspection, Stansbury was accompanied by the Movible toolpusher, Mr. Carroll Desormeaux. A-7 13. Stansbury inspected the hot water heaters in the pan- try and in the galley of the living quarters on the rig. Ata safety meeting on the rig, Stansbury made several suggestions with respect to safety practices, including specific recom- mendations with respect to the heaters which recommen- dations were given in writing to the toolpusher, Desormeaux, and were later transmitted to Movible’s management. 14. Stansbury recommended that the fusible plug relief valve be changed to a temperature pressure relief valve and that a procedure be established for weekly activation of the test lever on the temperature pressure relief valve to insure its proper working condition. This was a sound recommen- dation in accordance with standard manuals for plumbing codes. He also suggested that the valve on the galley hot water heater have its outlets piped to the outside to prevent injury or property damage if it were activated. Stansbury did not make any specific recommendations as to type or manu- facturer other than to suggest that the valve was to be acom- bination temperature pressure relief valve for a hot water heater. : 15. Movible failed to follow Stansbury’s recommendations with respect to the valves. Movible’s management compre- hended the nature of Stansbury’s recommendation. Prior insurers had made the same or similar suggestions and Stans- bury had made the same suggestions during visits to other Movible rigs. However, those in charge of obtaining the proper valve apparently did not understand the recommenda- tion. Movible’s toolpusher, Desormeaux, had the impression that Stansbury had simply suggested that the valve be chang- ed to provide for a drain line in order to prevent someone frorn being scalded in the event the valve were to ‘‘pop off.” A-8 Desormeaux failed to comprehend what the insurer had sug- gested although Stansbury’s written recommendation makes it clear that INA wanted Movible to change to a combination temperature pressure relief valve. 16. When Desormeaux instructed Movible’s purchasing agent, Mr. Ray Brashear, to obtain new valves, he told Brash- ear that he wanted a valve ‘‘with threads on the outside so | could run a line outside the living quarters.’”” Desormeaux told Brashear the pressure setting he wanted for the valve and its size but did not give Brashear any temperature require- ment for the valve. Most importantly, Desormeaux neglected to inform Braskear that the valves he requested were to be placed on hot water heaters. According to Brashear, the Movible toolpusher probably requested a ‘‘Texstearm’’ relief valve. 17. On January 29, 1969, Movible placed an order with the New Iberia area Texsteam distributor, Pneumatic Service & Equipment, Inc., (Pneumatic), for two 3/4 inch 5550 Texsteam relief valves set at 125 lbs. The relief valve which Movible ordered was delivered that same day by Pneumatic. 18. The relief valve which Movible ordered was a pressure relief valve only, not a temperature pressure relief valve as Stansbury had recommended. 19. The valves were replaced on February 3, 1969. Desor- meaux inspected the heaters after the installation of the valves and concluded that “everything looked okay.’’ Desor- meaux’s replacement, Mr. Wyman Haas, recalled being told by Desormeaux that Stansbury had recommended changing the pop-off valve. Haas looked at the heater after the install- A-9 ation was completed and noted that the new valve was a Tex- steam valve which had a little handle on the side. The valve appeared to be just like the one found in his home, and it looked all right to him. 20. On October 7, 1969, Stansbury returned to Rig No. 4 and interviewed the Movible toolpusher, Mr. Haas. At that time, at Movible’s request, Stansbury was visiting the rigs via helicopter, reviewing the safety practices on three to five rigs per day. Stansbury reported that his previous twelve recommendations, including the one respecting the hot water heater valves, were completed. Stansbury could not recall whether or not he examined the heaters on October 7, 1969. Stansbury testified that if Toolpusher Haas had verbally assured him that the proper valve had been installed, Stans- bury would have taken his word forit. Also, Stansbury testi- fied that if he had made a visual inspection, he probably would have noticed that an improper relief valve had been installed. Accordingly, the evidence preponderates that no visual inspection was made but that, instead, Stansbury re- lied on Haas’ verbal assurance that Stansbury’s recommenda- tion had been followed. 21. INA lost the Teledyne account, including Movible Offshore, Inc., during the year 1969. After the expiration of the policy period on November 1, 1969, INA/Pacific no longer provided coverage for Movible. Argonaut Insurance Company was Movible’s insurer at the time of the casualty. 22. On May 6, 1970, the hot water heater located in the pantry of the living quarters aboard Movible Rig No. 4 ex- ploded, resulting in the deaths and injuries for which damages are sought in this litigation. The evidence indicates that the A-10 bottom of the hot water heater ruptured as a result of great pressure which built up in the tank. Then, the great explo- sive force was created when the water in the heater, which was ‘“‘superheated’’ to a temperature of above its boiling point of 212 F., instantly ‘‘flashed’’ into steam when freed from the pressured confines of the tank and just as instantly expanded to more than 1,000 times its liquid volume. “Superheated water” would have had to be present for an explosion as powerful as this one to have occurred. Conse quently, the evidence preponderates that, had a relief valve with temperature relieving capabilities been installed in the heater, it would not have exploded in such a fashion. 23. The heater was equippec with two heating elements, one inserted into the heater through a hole near the top, the other through a hole near the bottom. Each element was attached to a flange about four inches square. Each flange had holes through the corners by which the flange was in- tended to be bolted to the heater. When the flange was secured to the side of the heater, the protruding element would be immersed in the water. The temperature of the water was controlled by thermostats, one mounted near the flange at the top to regulate the heat of that element, the other mounted near the flange at the bottom to control the heat of that element. There was found attached to the heater after the accident a flange, mounted near the bottom hole, manufactured by ‘‘Thermalink,’’ which was not a party to any of the lawsuits. No element was attached to it. A flange and element manufactured by defendant E. L. Wiegand under the name of ‘‘Chromolux”’ were found in the debris after the accident. A control manufactured by the ‘defendant Therm-O-Disc was also found in the debris. Rem- nants of another control were also found but its manufac- A-11 turer was not identified. 24. The plaintiffs’ post trial brief admits, and the Court finds, that there has not been sufficient proof to connect either the Therm-O-Disc control or the Wiegand flange or hearing element with the explosion at issue in this case. 25. The evidence in this case certainly preponderates that this explosion could not have occurred had the Texsteam 5550 pressure relief valve properly relieved the pressure in the heater tank at 125 lbs. There is, however, no direct evi- dence that the valve was defective, and the Court is convinc- ed that the circumstantial evidence in the case leaves open the reasonable possibility that the valve may not have re- lieved the pressure for reasons other than a defect in the valve itself. The Court notes that Mr. Harold L. Flettrich, the most credible expert to testify in the case, conceded that the ‘‘blockage’’ of the pressure relief system in this case could have been caused by 1) a defect in the piping; 2) scale building in the valve, combined with lack of use of the test lever by Movible personnel; 3) the misplacement of the valve below the check valve which prevented hot water from es- caping from the tank back down the cold water line; 4) al- tered conditions in the functioning of the valve system due to a great heat buildup, especially when combined with a closed check valve and an opening reduced one half by scale accumulation. 26. Argonaut Insurance Company, Movible’s compensa- tion carrier at the time of the explosion, has intervened in all of these consolidated cases and has also filed a separate suit against the various defendants to recover monies paid on A-12 behalf of injured parties who have filed no lawsuits against third parties. No formal compensation awards were rendered against Argonaut by the Commission. CONCLUSIONS OF LAW 1. The Court has jurisdiction over these consolidated cases pursuant to the Outer Continental Shelf Lands Act, 43 U.S.C. § 1333. 2. There is no evidence in this case to indicate that any negligence of Shell Oil Company was a proximate cause of the explosion. 3. Of course, Louisiana law, insofar as it does not conflict with federal law, is applicable to this case. Rodrigue v. Aetna Cas. & Sur. Co., 395 U.S. 352 (1969). 4. Under the facts of this case, Shell Oil Company is not liable to the plaintiffs pursuant to Art. 2322 of the Louisi- ana Civil Code. See, this Court’s minute entry of May 14, 1973. 5. After much reflection, the Court is convinced that the Secretary of the Interior’s regulations found at 30 C.F.R. § 250.45 and 30 C.F.R: §250.46 do not, under the facts of this case, create an implied cause of action against Shell Oil Company. Those regulations read as follow: “The Outer Continental Shelf Lands Act enacted on August 7, 1953, authorizes the Secretary of the Interior at any time to prescribe and amend such rules and regulations as are appropriate and A-13 necessary for the regulation of oil leases on the Outer Continental Shelf. Pursuant to this enabling legislation, the Secretary has promulgated the following rules: “*§ 250.45 Accidents, fires, and malfunctions. “In the conduct of all its operations, the lessee shall take all steps necessary to prevent accidents and fires, and the lessee shall immediately notify the supervisor of all serious accidents and all fires on the lease, and shall submit in writing a full re- port thereon within 10 days. The lessee shall notify the supervisor within 24 hours of any other unusual condition, problem, or malfunction. “'§ 250.46 Workmanlike operations. “The lessee shall perform all operations in a safe and workmanlike manner and shall maintain equip- ment for the protection of the lease and its im- provements, for the health and safety of all per- sons, and for the preservation and conservation of the property and the environment. The lessee shall take all necessary precautions to prevent and shall immediately remove any hazardous oil and gas accumulations or other health, safety or fire hazards.”’ It is true, as a general proposition, that ‘‘a civil remedy may be implied for those clearly within the protective realm of legislation or regulations in the public interest.’’ Euresti v. Stenner, 458 F.2d 1115, 1119 (10th Cir. 1972); Gomez v. 1969). A-14 Florida State Employment Service, 417 F.2d 569 (5th Cir. See Note, Implying Civil Remedies from Federal Regulatory Statutes, 77 Harv.L.Rev. 285 (1963). The work- ers in this case were not clearly within that protective realm, however, since it appears that the regulations in question were not meant to apply to the housing module involved in this case. The Outer Continental Shelf Lands Act, 43 U.S.C. § 1333(e)(1), provides that “The head of the Department in which the Coast Guard is operating shall have authority to promul- gate and enforce such reasonable regulations with respect to lights and other warning devices, safety equipment, and other matters relating to the pro- motion of safety of life and property on the islands and structures referred to in subsection (a) of this section or on the waters adjacent thereto, as he may deem necessary.”’ The authority for the regulations involved in this case de- rives from 43 U.S.C. § 1334 (a)(1), which provides: “(a)(2)' The Secretary shall administer the pro- visions of this subchapter relating to the leasing of the outer Continental Shelf, and shall prescribe such rules and regulations as may be necessary to carry out such provisions. The Secretary may at any time prescribe and amend such rules and regu- lations as he determines to be necessary and proper in order to provide for the prevention of waste and conservation of the natural resources of the outer Continental Shelf, and the protection of correlative rights therein, and notwithstanding any A-15 other provisions herein, such rules and regulations shall apply to all operations conducted under a lease issued or maintained under the provisions of this subchapter. In the enforcement of conserva- tion laws, rules, and regulations the Secretary is authorized to cooperate with the conservation agencies of the adjacent States. Without limiting the generality of the foregoing provisions of this section, the rules and regulations prescribed by the Secretary thereunder may provide for the assign- ment or relinquishment of leases, for the sale of royalty oil and gas accruing or reserved to the United States at not less than market value, and, in the interest of conservation, for unitization, pool- ing, drilling agreements, suspension of operations or production, reduction of rentals or royalties, compensatory royalty agreements, subsurface storage of oil or gas in any of said submerged lands, and drilling or other easements necessary for operations or production.”’ Both the wording of the statutes and regulations, and the legislative history of the statutes, indicate that the authori- ty of the Secretary of the Interior concerns drilling and pro- duction operation practices and conservation. See, Hearings Before the Senate Committee on Interior and Insular Affairs, 83rd Cong., lst Sess., on S.Bill 1901 (1953), p. 689; Senate Report 411, 83rd Cong., lst Sess., p. 11. The Coast Guard, on the other hand, is given the broad authority to regulate safety practices which, in places other than fixed platforms, is given by the Longshoremen’s and Harbor Workers’ Com- pensation Act to the Secretary of Labor. 33 U.S.C. § 94la. Pure Oil Company v. Snipes, 293 F.2d 60, 67-68, n. 12 (Sth A-16 Cir. 1961). This conclusion is buttressed by the fact that the platform safety regulations specifically exclude ‘‘operating equipment used and employed, nor to the methods and operations used, in the drilling for and the production of oil, gas, petroleum, or other subsoil minerals, nor to the transportation thereof by pipeline.” 33 C.F.R. § 140.05-5 (c). The Court finds that the operation of an independent housing module on a platform is not a production or drilling operation regulated by the Secretary of the Interior but is rather a matter of general platform safety properly supervis-- ed by the Coast Guard. For example, the Coast Guard regu- lations provide for the number of fire extinguishers to be placed in all galleys, sleeping accommodations, etc. 33 C.F.R. Table 145.10(a). Armstrong v. Chambers & Kennedy, 340 F.Supp. 1220 (S.D.Tex. 1972), on which plaintiff relies, concerned implied liability for violations of the Secretary of the Interior’s Regulations but in that case the violations in question resulted from oil drilling and storage operations, and they were properly within the reach of the Secretary’s regulatory authority. In passing, it should be noted that no violations of any Coast Guard regulations have been alleged, and the Court, after reading those regulations, has found none which might apply to the facts as proven in this case. 6. Under Louisiana law, while a plaintiff’s burden of making out his case by a fair preponderance of the evidence may be met through the use of circumstantial evidence, such evidence must be of a nature to exclude with a reasonable amount of certainty all other reasonable hypotheses. Hargis v. Travelers Indem. Co., 248 So.2d 833 (La. App. 1971). As indicated earlier in the Findings of Fact, plaintiffs’ in this A-17 case have not met that burden with respect to E.L. Wiegand Company, Therm-O-Disc, Inc., or Texsteam Corporation. 7. Louisiana law is not settled on the issue of whether its tort law permits a Workmen's Compensation carrier to be sued for negligent inspection. One Louisiana appeals court has stated that ‘‘A cause of action can lie against an insurer for failure to inspect,” citing a Fifth Circuit case which noted that such a cause of action did exist when not prohibited by Workmen's Compensation Statutes. Rogers v. Highlands Ins. Co., 270 So.2d 277 (La.App. 1972), citing Keller v. Dravo Corp., 441 F.2d 1239, 1243 (Sth Cir. 1971); see also, Hill v. U.S.F. & G. Co., 428 F.2d 112 (Sth Cir. 1970). Later, another Louisiana appeals court first held that such liability did indeed exist under general tori principles as expressed in the Restatements of Torts, but on rehearing, reversed itself over the dissent of one of the three judges. Kennard v. Liberty Mutual Ins. Co., 277 So.2d 170, on rehearing 277 So.2d 174 (1973). It is the opinion of this Court that the Louisiana Supreme Court would take the better of these two views, that general tort principles do allow an action for negligent inspection by a compensation carrier when not pro- hibited by the compensation statute involved and when the proper requirements are met. 8. The Court finds nothing in the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. 5 941, et seq., which would preclude an action against an insurer for negli- gent inspection or which indicates that the insurance com- pany stands in the shoes of the employer and is, therefore, immune from suit by an injured employee. On the contrary, the definition of ‘‘employer’’ is used in its normal sense in the Act, 49 F.Supp. 605 (D.C.Md. 1943), aff’d 141 F.2d 324 A-18 (4th Cir. 1944). The Act is to be liberally construed, Pills- bury v. United Eng. Co., 342 U.S. 197, 200 (1951), in favor of the injured employee. Voris v. Eikel, 446 U.S. 328 (1953); Nolco Chem. Corp. v. Shea, 419 F.2d 572 (5th Cir. 1969). See also, Watson v. Gulf Stevedore Corp., 400 F.2d 649, reh. den. 404 F.2d 1059 (Sth Cir. 1968), cert. den. 394 U.S. 976 (1969); Reed v. S.S. Yaka, 373 U.S. 410, reh. den. 375 U.S.410, reh. den. 375 U.S. 872 (1963); Potomac Elec. Power Co. v. Wynn, 343 F.2d 295 (D.C. Cir. 1965); Int. Terminal Operator Co. v. Miller, 208 N.Y.S. 2d 813, 28 Misc. 2d 445 (1960). There are many cases on each side of the compensation carrier liability question. See. e.g., the cases listed in Keller v. Dravo Corporation, 441 F.2d 1239, 1243, notes 3 & 4 (Sth Cir. 1971). It suffices to say that this Court believes that neither the language of the compensation act in this case nor public policy justifies immunizing insurers against liability for their own negligence. See, Larson, Workmen’s Compensation Insurer as Suable Third Party, 1969 Duke L.J. 1117. 9. According to the general principles of tort law appli- cable to this case, an insurer is liable for a negligent inspec- tion if 1) it has undertaken to perform the inspection or in- spections in question, and 2) the evidence discloses an actual reliance by the employer on those inspections to the extent that the employer neglects his own safety inspection program to the detriment of the plaintiff-employees. Stacy v. Aetna Cas. & Sur. Co., 484 F.2d 289 (Sth Cir. 1973). As indicated earlier in the Findings of Fact, Pacific Employers Insurance Company (INA), undertook the duty of inspecting to see if its earlier safety recommendations had been follow- A-19 ed, and Movable relied on these inspections to the extent of neglecting its own inspection followup program. The evi- dence further indicates that Inspector Gilbert Stansbury negligently performed his assumed duty to make a followup inspection and that his negligence was a proximate cause of the injuries and deaths which are the subject of this lawsuit. 10. Argonaut Insurance Company’s independent suit against the defendants to recover compensation payments made to parties other than plaintiffs in this case must be dis- missed since those payments were not made pursuant to a formal award. Joyner v. F. & B. Enterprises, Inc., 448 F.2d 1185 (D.C. Cir. 1971). Of course, this dismissal does not dis- turb Argonaut’s interventions in plaintiffs’ actions. Accordingly, the parties are instructed to submit proposed judgments consistent with these findings and conclusions. s/ Frederick J.R. Heebe W.K. Christovich William P. Rutledge Charles M. Steen Wood Brown, III Joel Borrello Mack Miller Kelly McKain Frank Allen,Jr. George B. Matthews Donald Hoffman Francis G. Weller James E. Diaz Alfred S. Landry W. Eugene Davis M.N. Grossel-Rossi James Drury A-20 APPENDIX “‘B” Minute Entry July 15, 1975 HeebeWJ. Filed: Jul 15, 1975 MARY OLSEN, et al. CIVIL ACTION versus NO. 70-1240 SHELL OIL CO., et al. SECTION B CHRISTINE W. CARVER, et al. CIVIL ACTION versus NO. 70-2986 SHELL OIL CO., et al. SECTION B FRANK WINSTON BOOKER, et al. CIVIL ACTION versus NO. 71894 SHELL OIL CO., et al. SECTION B GORDON DAVIS WALLACE CIVIL ACTION versus NO. 71-1144 SHELL OIL CO., et al. SECTION B ARGONAUT INSURANCE CO. CIVIL ACTION versus NO. 71-1265 SHELL OIL CO., et al. SECTION B (CONSOLIDATED CASES) This matter is before the Court on motions to amend the Court’s Judgment of July 9, 1974, or alternatively, for a new trial filed by Argonaut Insurance Company (Argonaut), plaintiff in Civil Action No. 71-1265, the plaintiffs in the re- A-21 maining consolidated cases, and defendants Shell Oil Com- pany (Shell) and Pacific Employers Insurance Company, an affiliate of the Insurance Company of North America (INA). The question of liability was hotly contested at trial, and the motions for a new trial likewise have been strenuously argued by all parties. The Court was requested to reserve rulings on the motions until a transcript of the testimony could be ob- tained. The Court has now had the benefit of a review of that transcript, as well as the extensive memoranda filed by all parties. The questions raised at trial and in the post-trial briefs are serious ones, and the Court has taken this oppor- tunity to make a thorough and fresh reconsideration of the entire case. Upon much reflection, the Court is now convinc- ed that the findings of fact and conclusions of law in the Court's minute entry of June 6, 1974, should be amended to reflect the following results: (1) INA is not liable to the plaintiffs for any damages arising out of the explosion of the hot water heater aboard Movible Rig No. 4 on May 6, 1970; (2) Movible Offshore, Inc. (Movible) was negligent in failing to obtain the temperature pressure relief valve recommended by INA and that negligence was a proximate cause of the plaintiffs’ injuries; and (3) Shell is entitled to indemnity from Movible under the written indemnity contract between these two parties for reasonable costs of defense and attorneys’ fees. The Court’s findings of fact are set out in its minute entry of June 6, 1974, and there is no reason to repeat what was stated at length there. Instead, the Court will focus only on those facts pertinent to the motions before the Court and on the legal conclusions arising therefrom. A-22 There is no doubt from the evidence introduced at trial, particularly the deposition testimony, that INA had under- taken to inspect Movible’s rigs on a periodic basis and to transmit its recommendations to Movible regarding correc- tion of any unsafe equipment or practices which it found. Although the Louisiana law is not settled on the issue of whether its tort law permits a Workmen’s Compensation carrier to be sued for negligent inspection, compare Rogers v. Highlands Ins. Co., 270 So.2d 277 (La.Ct. App. 1972) with Kennard v. Liberty Mutual Ins. Co., 277 So.2d 174 (LaCt. App. 1973) (on rehearing), we remain convinced that the better view, and the one which the Louisiana Supreme Court would adopt, is that a cause of action for negligent inspec- tion by a compensation carrier does lie when not prohibited by the compensation statute involved. Further, as the Court noted in its earlier opinion, nothing in the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 941, et seq., either in its express terms or by implication, indicates an intent to immunize the employer’s compensation carrier from a claim of negligent inspection. Thus, had INA neglected to discover possible safety haz- ards existing on Movible’s Rig No. 4, which in the exercise of due diligence it should have discovered, it would be held negligent and would be liable for any damages proximately caused by that negligence. This is not the case, however. Gilbert Stansbury, INA’s safety inspector for the Movible account, discovered that the valve then in place on the hot water heater in question was improper and recommended that Movible install a temperature pressure safety valve. All the experts testifying in this case have agreed that this is the proper type of valve for the particular hot water heater in question. However, through its own misunderstanding, Movible ordered and installed upon the hot water heater a A-23 pressure relief valve only - an inferior, if not totally inap- propriate, valve for hot water heaters. Stansbury returned to Rig No. 4 on October 7, 1969, some eight and a half months after his initial inspection, to check whether Movible had complied with his earlier safety recom- mendations. The Court found that Stansbury made no visual inspection of the heater upon his return but relied instead on the verbal assurance of Movible’s toolpusher that Stansbury’s recommendation had been followed. Thus, the only claim of negligence possible from these facts is that INA breached a duty owed by it to Movible to physically reinspect each area in which a safety recommenda- tion had been made to ascertain firsthand whether those recommendations were complied with. Upon careful recon- sideration of this question, we conclude that no such duty was owed by INA to Movible and that Stansbury acted reasonably in accepting the asurance of Movible’s toolpusher that the recommended valve was in place upon the heater. Such a duty of reinspection would be beyond any duty pre- sently imposed by the case law. Even those cases which allow a cause of action for negligent inspection speak only of the initial duty of the insurer to inspect the premises and discover hazardous conditions. See, e.g., Stacy v. Aetna Casualty & Surety Co., 484 F.2d 289 (5th Cir. 1973); Keller v. Dravo Corp., 441 F.2d 1239 (Sth Cir. 1971); Rogers v. Highlands Ins. Co., supra. There is, as the Court has earlier noted, evidence in the record that INA had undertaken on-site compliance inspec- tions of Movible’s rigs and that Movible had asked for and relied on this service provided by INA. But there is no evi- A-24 dence at all to indicate that INA was obligated to disregard assurances by Movible’s own employees that INA’s recom- mendations had been adopted. To the contrary, Movible had an extensive safety program of its own, and INA was in- formed by Movible that each toolpusher had specific exper- tise in safety conditions existing on the rigs. Stansbury had no reason to disbelieve the statements made by Movible’s toolpusher regarding the hot water heater valve. We emphasize that at the time of Stansbury’s return on October 7, 1969, he was reviewing the safety practices on three to five rigs per day at the request of Movible. The short time required to perform these tasks is an additional reason why Stansbury’s acceptance of Movible’s on-site assurances was reasonable. The evidence preponderates that INA was under no duty to visually inspect Movible’s rigs for compli- ance with its prior safety recommendations after being assured by a knowledgeable Movible employee that those recommendations had been followed. In short, we think that Stansbury acted reasonably under the circumstances and is not chargeable with negligence. We have again carefully considered the claim urged by INA" in its motion for a new trial that Shell, as platform owner, is strictly liable for violation of the Secretary of the Interior’s regulations found at 30 C.F.R. §§250.45, 250.46. This. claim is based primarily on broad language contained in Armstrong v. Chambers & Kennedy, 340 F.Supp. 1220 (S.D. Tex. 1972), aff'd in relevant part sub nom. In re Dear- born Marine Service, Inc., 499 F.2d 263 (5th Cir. 1974). The Fifth Circuit’s opinion affirming the portion of the district court’s judgment relevant here was issued subsequent A-25 to our decision in the instance case. The regulations read as follow: “§ 250.45 Accidents, fires, and malfunctions. “In the conduct of all its operations, the lessee shall take all steps necessary to prevent accidents and fires, and the lessee shall immediately notify the supervisor of all serious accidents and all fires on the lease, and shall submit in writing a full report thereon within 10 days. The lessee shall notify the supervisor within 24 hours of any other unusual condition, problem, or malfunction. “*§ 250.46 Workmanlike operations. “‘The lessee shall perform all operations in a safe and workmanlike manner and shall maintain equip- ment for the protection of the lease and its im- provements, for the health and safety of all per- sons, and for the preservation and conservation of the property and the environment. The lessee shali take all necessary precautions to prevent and shall immediately remove any hazardous oil and gas accumulations or other health, safety or fire hazards.” The issue is whether these regulations impose strict liabili- ty upon an oil or gas lessee for failure to maintain safe equip- ment, even if only tangentially related to the improvement of its lease, or whether they encompass only such hazards which may fairly be said to be related to oil drilling and production operations. The question is not entirely free from doubt. The terms of the regulation, to be sure, provide that the A-26 lessee shall maintain equipment, inter alia, ‘‘for the health and safety of all persons.’’ Further, we recognize that there is language in the district court’s opinion in Armstrong which would support the broader reading of the regulations in question. However, we remain convinced, for the reasons stated in the Court’s minute entry of June 6, 1974, that the regulations are inapplicable to the circumstances of this case. We add here only a few additional comments in support of that decision. The two regulations at issue are part of a series of regulations (found at 30 C.F.R. §§250.1 - 250.100) promulgated by the Secretary of the Interior, pursuant to 43 U.S.C. § 1334 (a)(1)? The Secretary is authorized by that statute to prescribe ‘‘such rules and regulations as he deter- mines to be necessary and proper in order to provide for the prevention of waste and conservation of the natural re- sources of the outer Continental Shelf, and the protection of correlative rights therein. .. ."" Nothing in this authoriz- ing statute explicitly gives the Secretary the authority to pro- mulgate regulations relating to safety. Certain safety regu- lations relating directly to the maintenance and operation of the lease may be justified as ‘‘correlative’’ to the primary purpose underlying the legislation. If, however, the regula- tions are construed broadly to require the lessee, under pain of criminal penalties, see 43 U.S.C. § 1334(a)(2)2to main- tain safe equipment, no matter how tenuously related to its drilling operations, that would raise a serious question whether the Secretary, in promulgating those regulations, had exceeded the authority granted to him under the enabling statute. We need not reach that question, however, because we feel that the regulations in question, particularly 30 C.F.R. §250.46, should be more narrowly construed. It is a familiar canon of statutory construction that a body A-27 of statutes, or regulations, must be construed in par) materia. So read, statutes often take on a narrower scope than their broad terms would otherwise indicate. See, eg., Reid v. Immigration and Naturalizaiion Service, 95 S.Ct. 1164 (1975). The body of regulations, found at 30 C.F.R.§§ 250.1 - 250.100, promulgated pursuant to 43 U.S.C. § 1334(a)(1), relates exclusively to the conduct of the drilling and produc- tion of oil and gas. Even the regulation most heavily relied on by the parties, 30 C.F.R. § 250.46, is not exclusively designed as a safety measure. Rather, its purpose is to pro- vide for ‘‘the protection of the lease and its improvements”’ and the “preservation and conservation of the property and the environment”’ as well as health and safety of individuals. Considering the limited authority given to the Secretary to promulgate regulations, the nature of the requlations as a whole, and the clear dichotomy between the jurisdictions of the Secretary of the Interior over drilling operations and the Coast Guard over matters of platform safety (discussed in the Court's earlier minute entry), we remain convinced that the Secretary's regulations are inapplicable to matters relating to the safety of hot water heaters involved in this case. This conclusion is buttressed, we think, by the opinion of the district court in Armstrong v. Chambers & Kennedy, 340 F.Supp. 1220 (S.D. Tex. 1972), aff'd in relevant part sub nom. In re Dearborn Marine Service, Inc., 499 F.2d 263 (Sth Cir. 1974). While holding the platform owner civilly liable for violation of the Secretary's regulation, the lower court noted particularly, 340 F.Supp. at 1235, that the failure to remove leaked oil from the platform was in direct violation of 30 C.F.R. § 250.46, requiring the lessee to ‘‘re A-28 move any hazardous oil and gas accumulations.’’ This por- tion of the regulation is not at issue here, and thus does not control the present case. Further, in discussing the source of the duty imposed upon the lessee, the court noted that the “exploration and development of offshore oil resources * * * presents new and more dangerous challenges in its develop- ment” and analogized the duty placed upon the oil lessee to the traditional tort duty of one using an ultrahazardous sub- stance. Id., at 1234. Thus, the underpinning for the court’s imposition of strict liability on the platform owner is the peculiar dangers incident to oil exploration. Whatever the dangers presented by hot water heaters, they are not peculiar to oil exploration, and the rationale of the Armstrong court would not apply. While Shell is thus not liable to plaintiffs for damages aris- ing out of the explosion, it is entitled to indemnity from Movible for the costs of its defense in this case, including reasonable attorneys’ fees. It is clear that an agreement to indemnify and hold harmless, if applicable to the facts of the case, includes payment of costs and reasonable attorneys’ fees incurred by the indemnitee. Loffland Bros. Co. v. Roberts, 386 F.2d 540 (5th Cir. 1967). There is no doubt that the indemnity agreement involved in this casé’obligated Movible to indemnify Shell for damages imposed upon it which resulted solely from the negligent acts of Movible. See this Court’s minute entry of May 14, 1973. Movible’s sole opposition to Shell’s claim for attorneys’ fees is that this Court’s minute entry of June 6, 1974, did not explicitly hold Movible to be negligent. What is clearly implicit in the Court’s earlier opinion, we make explicit nuw. The fact that the temperature pressure A-29 relief valve, recommended by INA’s safety inspector, was not placed on the hot water heater, was due solely to the negli- gence of Movible’s employees. ‘‘Desormeaux told Brashear [both Movible employees] the pressure setting he wanted for the valve and its size but did not give Brashear any tempera- ture requirement for the valve. Most importantly, Desor- meaux neglected to inform Brashear that the valves he re- quested were to be placed on hot water heaters.’’ Opinion of June 6, 1974, at 7. Movible makes no claim that it disagreed with INA’s recommendations and reasonably felt that a pressure relief valve was sufficient for the task. Instead, through its own carelessness, it simply failed to obtain the very type of valve which it intended to purchase. Further, the fact that an improper valve was in use on the heater was a proximate cause of the explosion. All the ex- perts agreed that the pressure valve which Movible mistaken- ly placed on the hot water heater was not specifically design- ed for that use. While the exact cause of the explosion could not be conclusively determined, there is no doubt that had the temperature pressure relief valve been in place, the acci- dent would have been prevented. The recommended type of valve is designed to relieve excess pressure and temperature, both of which contributed to the explosion of the hot water heater. Since the explosion was proximately caused by Movible’s negligence, Shell is entitled to indemnification from Movible for reasonable attorneys’ fees and costs. Finally, Argonaut Insurance Company seeks a reconsidera- tion of the Court’s decision that it may not recover compen- sation payments made to parties other than plaintiffs which were not made pursuant to a formal award. Subsequent to this Court’s decision, the United States Court of Appeals for A30 the Fifth Circuit held that entry of a formal award is not a condition of the carrier’s right to maintain suit. Louviere v. Shell Oil Co., 509 F.2d 278 (5th Cir. 1975)> That decision, of course, would govern the disposition of Argonaut’s inde- pendent suit. However, in light of our present disposition of these consolidated cases, there is no defendant from whom Argonaut can recover its compensation payments, and its suit must, on that ground, be dismissed. We have carefully considered all the other claims made by the parties in their motions for a new trial. They are all dis- posed of by previous decisions by the Court, and we find no reason to depart from those determinations. Accordingly, IT IS ORDERED that the motion of Pacific Employers In- surance Company, defendant in these consolidated cases, for rehearing to amend judgment or, alternatively, for a new trial, be, and the same is hereby, GRANTED. IT IS FURTHER ORDERED that the motion of Shell Oil Company, defendant in these consolidated cases, to amend judgment, be, and the same is hereby, GRANTED. IT IS FURTHER ORDERED that the motion of plaintiffs in Civil Actions Nos. 72-1240, 70-2986, 71894, and 71- 1144 for additional findings, be, and the same is hereby, DENIED. IT IS FURTHER ORDERED that the motion of Argonaut Insurance Company, plaintiff in Civil Action No. 71-1265, for modification of judgment and, alternatively, for a new trial, be, and the same is hereby, DENIED. A-31 The parties are instructed to submit proposed amended judgments consistent with the findings of fact and conclu- sions of law contained herein. A-32 1, We note that this contention was not made in the post-trial memo- randum filed by the plainintiffs in these consolidated cases. 2. 43 U.S.C. §1334(a)(1): “The Secretary shall administer the provisions of this subchapter re- lating to the leasing of the outer Continental Shelf, and shall pre- scribe such rules and regulations as may be necessary to carry out such provisions. The Secretary may at any time prescribe and amend such rules and regulations as he determines to be necessary and proper in order to provide for the prevention of waste and conservation of the natura? resources of the outer Continental Shelf, and the protection of correlative rights therein, and notwithstanding any other provisions herein, such rules and regulations shall apply to all operations conduct- ed under a lease issued or maintained under the provisions of this sub- chapter. In the enforcement of conservation laws, rules, and regula- tions the Secretary is authorized to cooperate with the conservation agencies of the adjacent States. Without limiting the generality of the foregoing provisions of this section, the rules and regulations prescribed by the Secretary thereunder may provide for the assignment or re- linquishment of leases, for the sale of royalty oil and gas accruing or reserved to the United States at not less than market value, and, in the interest of conservation, for unitization, pooling, drilling agreements, suspension of oerations or production, reduction of rentals or royalties, compensatory royalty agreements, subsurface storage of oil or gas in any of said submerged lands, and drilling or other easements necessary for operations or production.” 3. Further, under Armstrong v. Chambers & Kennedy, supra, the lessee is liable as well for civil damages on a theory of strict liability. 4. The indemnity agreement between Shell and Movible reads as foliows: “In the performance of the operations hereunder, contractor is an inde- pendent contractor, Shel! being interested only in the results obtained. Contractor agrees to protect, indemnify and save Shell, and where the operations are rendered in a joint operation, such other parties in the joint operation with Shell, harmless from and against ali claims, de- mands and causes of action of every kind and character, arising in favor of third parties on account of personal injuries and/or deaths or damages to property occurring, in anywise incident to, in connection A-33 with, or arising out of, contractor's negligence in performing the oper- ations under this contract.” 5. The case decided by the Fifth Circuit, although arising in a more complicated procedural context between different parties, involved the very suit by Argonaut which is at issue here. s/ Frederick J.R. Heebe A-34 APPENDIX C Mary OLSEN, Plaintiff-Appellant Cross Appellee, Vv. SHELL OIL COMPANY et al., Defendants- Appellees Cross Appellants, v. ARGONAUT INSURANCE COMPANY, Intervenor-Appellant. Christine W. CARVIN, Plaintiff-Appellant Cross Appellee, v. SHELL OIL COMPANY et al., Defendants- Third Party Plaintiffs Appellees-Cross Appellants, v. TELEDYNE MOVIBLE OFFSHORE, INC., et al., Third Party Defendants-Appellees Cross Appellants, Vv. ARGONAUT INSURANCE COMPANY, Intervenor-Appellant. Frank Winston BOOKER et al., Plaintiffs-Appellees, v. SHELL OIL COMPANY et al., Defendants-Appellants. Gordon Davis WALLACE, Plaintiff-Appellant Cross Appellee, v. SHELL OIL COMPANY et al., Defendants- Appellees Cross Appellants, Vv. ARGONAUT INSURANCE COMPANY, Intervenor-Appel!ant. A-35 ARGONAUT INSURANCE COMPANY, Plaintiff-Appellant Cross Appellee, v. SHELL OIL COMPANY et al., Defendants- Appellees Cross Appellants. No. 75-4019. United States Court of Appeals Fifth Circuit. Oct. 26, 1977. Rehearing and Rehearing En Banc Denied Dec. 1, 1977. Injured employee and representatives of deceased employees of drilling contractor sued owner of drilling platform and others for injuries and death caused by ex- plosion of water heater in drilling contractor’s modular living quarters which had been installed on the platform. The United States District Court for the Eastern District of Louisiana, at New Orleans, Frederick J. R. Heebe, J., entered judgment in favor of platform owner, and appeal was taken. The Court of Appeals, Fay, Cir- cuit Judge, held that: (1) the Outer Continental Shelf Lands Act did not create a private cause of action in favor of plaintiffs against platform owner for breach of regulation of the Secretary of Interior where there was no negligence on the part of the platform owner, but (2) certain questions as to Louisiana law under Louisiana statute providing that owner of building is answerable for damage occasioned by its ruin when this is caused by neglect to repair it or as result of a vice in its original construction would be certified to the Louisiana Supreme Court. Ordered accordingly. A-36 1. Mines and Minerals 118 Outer Continental Shelf Lands Act did not create private cause of action against owner of drilling platform for breach of regulation of the Secretary of the Interior in connection with explosion of electric heater in drilling contractor’s housing module, in favor of employees or representatives of employees of the contractor injured or killed in the explosion, since: (1) protection of workers on such platforms was not a motivating force behind the legislation, (2) other civil remedies were provided by the legislative scheme, (3) such remedies were not adequate and it was not necessarily consistent with the legislative goal of the Act to impose liability on platform owner which had leased shelf land when such lessee was admit- tedly free from fault, and (4) it appeared that the con- troversy should be controlled by state law. Outer Con- tinental Shelf Lands Act, §§ 2-15, 4, 4(a)(2), (c), 5, 5(a)(2), 43 U.S.C.A. §§ 1331-1343, 1333, 1333(a)(2), (c), 1334, 1334(a)(2). 2. Negligence 44 Within Louisiana statute providing that owner of building is answerable for damage occasioned by its ruin when this is caused by neglect to repair it, ‘neglect to repair’ means failure to keep in repair and does not re- quire a showing of negligence. LSA—C.C. art. 2322. See publication Words and Phrases for other judicial constructions and definitions. A-37 Wm. P. Rutledge, Lafayette, La., for Olsen, et al. Joel L. Borrello, New Orleans, La. for Argonaut Ins. Co. Donald A. Hoffman, New Orleans, La., for Pacific Employers Ins. Co. John O. Charrier, Jr., New Orleans, La., for Shell Oil Co. W. K. Chirstovich, Charles W. Schmidt, III, New Orleans, La., for Teledyne Movible. Francis G. Weller, New Orleans, La., for Wiegand Co. & Thermo-Disc, Inc., other interested parties. Patrick T. Caffery, New Iberia, La., for Texstearm Corp. W. Eugene Davis, New Iberia, La., for plaintiff- appellant cross appellee. Before GOLDBERG and FAY, Circuit Judges, and DUMBAULD, District Judge.* * District Judge for the Weutern District of Pennsylvania, sitting by designation. A-38 FAY, Circuit Judge: The controversy before this court is factually complex and presents some novel questions of law. It pertains to the explosion of electric water heater in the living quarters on a drilling platform on the Outer Continental Shelf. The question is whether there is liability of the platform owner, Shell Oil Company, to some of those people who were either injured or killed as a result of the explosion. The plaintiffs set forth two theories of liabili- ty. First, they contend that Shell is answerable for the injuries which have occurred because it violated certain regulations issued by the Secretary of the Interior pur- suant to the authority granted to him by the Outer Con- tinental Shelf Lands Act, 43 U.S.C. § 1334 — the viola- tion of which was a direct cause of the plaintiffs’ injuries. In the alternative, the plaintiffs contend that the Loui- siana Civil Code Art. 2322' imposes a form of strict liability on certain owners of buildings,’ and, as a result, Shell is liable to the plaintiffs regardless of its lack of personal negligence. We hold that Shell is not liable for breach of the federal regulations because the Outer Con- tinental Shelf Lands Act, 43 U.S.C. § 1331 et seq., does not provide specifically for a civil remedy for violations of the statute or regulations, and because we feel that this is not the type of situation in which a cause of action should be implied or created. See Cort v. Ash, 422 U.S. ' Louisiana Civil Code Art. 2322 provides: The owner of a building is answerable for the damage occassioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction. * The Louisiana courts have extended the definition of ‘‘buildings"’ to include oil platforms. See Vinton Petroleum Co. v. L. Seiss Oil Syn- dicate, Inc., 19 La.App. 179, 139 So. 543 (1st Cir. 1932). A-39 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). We also conclude that it is impossible for us at the present time to rule on the theory of liability based upon Louisiana Civil Code Art. 2322. After an exhaustive study of Louisiana law, we feel that there is no clear controlling precedent from the highest court in that state, and, consequently, we are compelled to certify the issue to the Lousiana Supreme Court. I. FACTS On May 6, 1970, a hot water heater explosion occurred aboard a fixed platform owned by Shell Oil Company in the Gulf of Mexico off the coast of Louisiana. The plat- form was designated as Shell's ‘‘C’’ platform, and drill- ing was being conducted from the platform by a drilling contractor known as Movible Offshore, Inc. (Movible). The individual plaintiffs in this case are the legal representatives of men killed in the explosion, except for Gordon Wallace who sues for personal injury. The plain- tiffs were all employees of Movible. To conduct the drilling operations from the platform, Movible had located its modular and movable drilling rig on the platform. The rig consisted of all equipment necessary to drill a well, including a derrick or mast, drawworks, the very large engines which were necessary to power the drilling equipment, and all normal ap- purtenances to a drilling operation. In addition, Movible had its modular living quarters on the Shell platform which provided a galley area for feeding the nn, sleep- ing quarters, shower and bathroom facilities, and a lounge area. The living quarters unit was equipped with two electric water heaters. One water heater was located in the galley area, and another was located in the pantry area. These water heaters were Movible equipment and were wholly owned, as was the living quarters unit, by A-40 Movable. The modular living unit was fully movable, and when the rig was moved from one platform to another, it was picked up as a unit by a derrick barge and then transported to a new site and secured on a platform in such a way that cutting and burning of metal would be required to remove it. Under the working arrangement in effect between Shell and Movible, two Movible drilling crews consisting of six men each worked opposite shifts so that the drill- ing rig could be kept in operation 24 hours a day. Shell performed none of the actual operations on the rig and had only one permanent representative there. At the time Movible began drilling for Shell from Plat- form C or shortly thereafter, Movible took out liability insurance with Pacific Employers Insurance Company (Pacific), an affiliate of the Insurance Company of North America. In addition to providing liability insurance to Movible, Pacific agreed to provide a safety engineering and safety inspection service to Movible. This service was provided largely through one Gilbert Stansbury, a safety and technical representative of Pacific. In connection with the safety engineering and technical service provided by Pacific, Mr. Stansbury was to visit the Movible rig on a quarterly basis. Mr. Stansbury first visited the rig on January 23, 1969, and then he did not revisit the rig until October 7, 1969. On his first visit, Stansbury inspected the water heaters in the company of Movible’s toolpusher, a Mr. Desormeaux. At this time, he recommended (among other things) that a pressure-temperature relief valve be placed on the water heaters in question in place of the ex- A-41 isting pressure relief valves. Movible failed to accurately follow the recommendation of Mr. Stansbury, although they should have understood the recommendation since prior insurers had made the same or similar suggestions and Stansbury himself had made the same recommenda- tion during inspections of other Movible rigs. Instead of ordering the proper type of ‘‘pressure-temperature”’ relief valve, Movible ordered and installed another pressure relief valve. The valves were replaced on February 3, 1969. Mr. Desormeaux inspected the heaters after the installation of the valves and concluded that “everything looked okay.’’ On October 7, 1969, Stansbury returned to the rig and interviewed another Movible toolpusher who had since replaced Mr. Desormeaux. Mr. Stansbury did not make a visual inspection of the water heater but relied on the toolpusher’'s assurances that his recommendations had been followed. As a result, Stansbury reported that all his recommendations had been fulfilled. On May 6, 1970, the hot water heater located in the pantry of the living quarters exploded resulting in many deaths and injuries. The trial judge found that the bot- tom of the hot water heater ruptured as a result of great pressure which built up in the tank. Then, the great ex- plosive force was created when the water in the heater, which was “‘superheated”’ to a temperature of above its boiling point of 212° F., instantly ‘‘flashed"’ into steam when freed from the pressured confines of the tank and just as instantly expanded to more than 1,000 times its liquid volume. A-42 The trial judge further found that the fact that an im- proper valve was in use on the heater was a proximate cause of the explosion. All the experts agreed that the pressure valve which Movible mistakenly placed on the hot water heater was not specifically designed for that use. While the exact cause of the explosion could not be conclusively determined, there is no doubt that had a working temperature pressure relief valve been in place, the accident would have been prevented. The recom- mended type of valve is designed to relieve excess pressure and temperature, both of which contributed to the explosion of the hot water heater. On June 6, 1974, the trial judge entered his opinion with respect to liability in the case. He found that there was no negligence (as all parties admit) on the part of Shell Oil Company; he held that Louisiana Civil Code Act 2322 was inapplicable, and he held that certain regulations of the Department of Interior did not create strict liability as against Shell in the plaintiff's favor in this case. In the same opinion Judge Heebe also held that Pacific Employers Insurance Company was negligent through one of its inspectors (Mr. Stansbury) who faild to reinspect Movible’s premises after recom- mending that the relief valve be changed on the water heater which exploded. The trial judge also found that the Texstream Corporation, the manufacturer of the valve, was not liable. Judgment was entered according- ly. Thereafter, on motion to reconsider his judgment, the trial judge issued another opinion in which he concluded that the inspector for Pacific Employers Insurance Com- pany was not negligent, but that his earlier opinion in all other respects was correct. The court made explicit in A-43 this opinion that the cause of the water heater explosion was the negligence of Movible. The net result of this decision, however, is that the plaintiffs recovered nothing. Movible, who was originally a party to the ac- tion, had earlier been granted a summary judgment on the basis that the Longshoremen and Harbor Workers Compensation Act made it immune from suit as the employer of the dead and injured men. Movible is presently in the litigation only as a third party defen- dant to the claim of Shell Oil Company for indemnity. From this final judgment of the district court, the plain- tiffs appealed solely against Shell and solely on the basis that Shell is strictly liable to them. Shell then lodged pro- tective appeals against all of the co-defendants and Movible for indemnity puryoses. Movible did likewise. II. BREACH OF THE FEDERAL REGULATION A. The Plaintiffs’ Theory and Shell's Rebuttal. The plaintiffs’ theory of recovery is rather simple. They argue that the Outer Continental Shelf Lands Act empowers the Secretary of the Interior to make regula- tions for operation upon platforms such as Shell’s. Specifically, 43 U.S.C. § 1334(a)(1) provides: The Secretary shall administer the provisions of this subchapter relating to the leasing of the outer Continen- tal Shelf, and shall prescribe such rules and regulations as may be necessary to carry out such provisions. The Secretary may at any time prescribe and amend such rules and regulations as he determines to be necessary and proper in order to provide for the prevention of waste and conservation of the natural resources of the outer Continental Shelf, and the protection of correlative vights therein, and, notwithstanding any other provi- A-44 sions herein, such rules and regulations shall apply to all operations conducted under a lease issued or maintained under the provisions of this subchapter. The plaintiffs assert that pursuant to this statutory authority the Secretary of the Interior issued the follow- ing regulations which are applicable in our controversy: 1) 30 C.F.R. § 250.30 Lease Terms, Regulations, Waste, Damage and Safety.’’ The lessee shall comp- ly with the terms of applicable laws and regulations, the lease terms, OCS Orders and other written orders and rules of the supervisor, and with oral orders of the supervisor...The lessee shall take all necessary precautions to prevent damage to or waste of any natural resource or injury to life, or property, or the aquatic life of the seas. 2) 30 C.F.R. § 250.45 Accidents, Fires, and Malfunc- tions. In the conduct of all its operations, the lessee shall take all steps necessary to prevent accidents and fires. 3) 30 C.F.R. § 250.46 Workmanlike Operations. The lessee shall perform all operations in a safe and workmanlike manner and shall maintain equipment for the protection of the lease and its improvements, for the health and safety of all persons, and for the preservation and conservation of the property aid the environment. A-45 It is argued by the plaintiffs that the above regula- tions are presumptively valid and that they are ap- plicable to our factual situation. They further argue that Shell fas a lessee of submerged land on the Outer Con- tinental Shelf] breached these regulations, and that this breach visits liability upon Shell regardless of whether or not Shell was in fact negligent. In support of this theory of liability, the plaintiffs cite to us Armstrong v. Chambers & Kennedy, 340 F.Supp. 1220 (S.D.Tex. 1972), aff'd on other grounds sub nom. In Re Dearborn Marine Service, Inc., 499 F.2d 263 (5th Cir. 1974). In Chambers & Kennedy. the trial court approved a similar theory of strict liability for breach of these regulations. The court stated: This court must interpret the congressional intent and the Secretary's reasons for promulgating the regulations as imposing certain nondelegable duties upon C & K, as the lessee and owners of the platform. [he public policy indicated by these legislative and administrative acts are imperative to the common good and protection of our national community. Thus, any violation, even a nonfeasance, of the guidelines set as preventive measures to accidents must expose the lessee to ultimate liability in tort. Id. at 1233, 1234. Shell counters this argument by asserting that the Secretary’s regulations are invalid. It contends that the enabling statute give both the Secretary of the Interior and the head of the department in which the Coast A-46 Guard is operating authority to issue regulations,’ and it was the Coast Guard exclusively that was given the authority to issue safety regulations. Shell specifically contends that: . .the regulations upon which Judge Singleton relied in Armstrong v. Chambers & Kennedy, 340 F.Supp. 1220 (S.D.Tex., 1972), being the same ones relied upon by plaintiffs in this action (30 CFR 250.45—250.46), if construed as safety and health regulations for the pro- tection of life and property on the offshore platforms so as to create strict liability in the lease owner, so ex- tend and so modify the granting statute, 43 U.S.C.A. 1334, as to exceed the authority granted by the enabl- ing legislation. Brief for appellee at 31. To support this view, Shell delves deeply into the legislative history of the Outer Continental Shelf Lands Act only to emerge without really proving their point. If the legislative history of the statute shows anything, it is merely that nothing was specifically said one way or the other as to whether or not the Secretary of the Interior has the authority to issue safety regulations. It does not necessarily follow, as Shell alleges, that merely because the Coast Guard is given the authority to regulate in the area of safety, other agencies are devoid of this power. * 43 U.S.C. § 1333(e)1) provides: The head of the Department in which the Coast Guard is operating shall have authority to promulgate and enforce such reasonable regulations with respect to lights devices, safety equipment, and other matters tion of safety of life and property on the islands and structures refer- red to in subsection (a) of this section or on the thereto, as he may deem necessary. A-47 Shell, however, does not rest its case solely on the delegation of power theory. In the alternative, they adopt the position taken by the trial court. The trial court held that the regulations were validly pro- mulgated, but were inapplicable to this particular fac- tual setting. The court states specifically: It is true, as a general proposition, that ‘a civil remedy may be implied for those clearly within the protective realm of legislation or regulations in the public interest."’ Euresti v. Stenner, 458 F.2d 1115, 1119 (10th Cir. 1972); Gomez v. Florida State Employ- ment Service, 417 F.2d 569 (5th Cir. 1969). See Note, Implying Civil Remedies from Federal Regulatory Statutes, 77 Harv.L.Rev. 285 (1963). The workers in this case were not clearly within the protective realm, however, since it appears that the regulations in ques- tion were not meant to apply to the housing module in this case... Both the wording of the statutes and regulations, and the legislative history of the statutes, indicate that the authority of the Secretary of the In- terior concerns drilling and operation practices and conservation... .The Coast Guard, on the other hand, is given the broad authority to regulate safety prac- tices which, in places other than fixed platforms, is given by the Longshoremen’s and Harbors Workers’ Compensation Act to the Secretary of Labor... .The Court finds that the operation of an independent hous- ing module on a platform is not a production or drill- ing operation regulated by the Secretary of the In- terior but is rather a matter of general platform safety properly supervised by the Coast Guard... .Arm- strong v. Chambers & Kennedy, 340 F.Supp. 1220 (S.D.Tex. 1972), on which the plaintiff relies, concern- ed implied liability for violations of the Secretary of A-48 the Interior's Regulations but in that case the viola- tions in question resulted from oil drilling and storage operations, and they were properly within the reach of the Secretary's regulatory authority. Minute Entry of Trial Court, June 6, 1974. (App. 729-731). B. IMPLYING CIVIL REMEDIES In our opinion, neither party touches on the point which we feel is determinative of the legal effect of the breach of these regulations by Shell Oil Company. That is, even if we assume that the regulations were valid and applicable to our factual setting, what, if any, is the legal effect of their being breached by Shell? The trial court touches on the issue in its above quoted conclusions of law when it stated that civil remedies may be implied in certain situations, but the Court erred in concluding that a civil remedy may be extended to one injured by a breach of a statute or regulation which does not specifically provide for such relief as long as the person injured is clearly within the protective realm of the legislation or regulation. The inquiry which must be made before implying a civil cause of action for a person suffering injury as a result of another's conduct in viola- tion of a regulatory statute which does not expressly provide for a civil remedy is not nearly so simple. In 1916, the Supreme Court announced the doctrine of implying private actions in the absence of specific statutory authorization in Texas & Pacific Railway Co. v. Rigsby, 241 U.S. 33, 36 S.Ct. 482, 60 L.Ed. 874 (1916). Rigsby, a railroad employee, sought damages for in- juries resulting from his employer's violation of the Federal Safety Appliance Act. The Court upheld his recovery while recognizing that the Act did not express- ly confer a private right of action. In broad language, the Court stated: A-49 A disregard of the command of the statute is a wrongful act, and where it results in damage to one of the class for whose especial benefit the statute was enacted, the right to recover the damages from the party in default is implied. . Id. at 39, 36 S Ct. at 484. This rather unique question of whether a court can or should imply an action for an injured party who has no express statutory remedy has sparked a great deal of legal commentary, and a string of Supreme Court opi- nions whose main virtues are not consistency of results. The justification for implication most often proffered by courts and commentators is that it merely furthers the goals Congress was seeking to attain when it initially enacted the legislation.‘ Congress may accomplish these goals through regulation or prohibition of specified con- duct. Generally speaking, however, these regulations or prohibitions are only as effective as the statutory sanc- tions behind them, and, unfortunately, Congress must often decide on these statutory sanctions without a prior opportunity to evaluate their practical effectiveness. In contrast, courts are charged with the duty of enforcing the statute on a case by case basis, and have the oppor- tunity to observe the effectiveness of the enforcement mechanisms. Fully aware of this hindsight advantage, the Supreme Court has sanctioned, in limited situations, the implication of private civil remedies. * See, e.g., Comment, Private Rights of Action under Amtrak and Ash: Some Implications for Implication. 123 U.Pa.L.Rev. 1392, 1393 (1975); Comment, Emerging Standards for Implied Actions Under Federal Statutes, 9 U.Mich. J.L.Ref. 294, 296 (1976). A-50 The criteria for courts to apply in deciding whether or not to imply a civil cause of action heve gone through numerous changes since the implication doctrine was first recognized in 1916.‘ The Supreme Court’s most re- cent pronouncement on the matter, however, delineates the factors which we must consider in making that deci- sion. In Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), the Supreme Court held that a private cause of action for damages against corporate directors should not be implied in favor of a corporate stockholder under 18 U.S.C. § 610 — a criminal statute prohibiting corporations from making ‘a contribution or expen- diture in connection with any election at which Presiden- tial and Vice Presidentail electors.. are to be voted for.”’ In making that decision, the court stated: * For example, in Switchmen's Union v. National Meditation Bd., 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61 (1943), the Supreme Court recognized that if an act created a right there must be some method of enforcing it, but also stated that the specification of one remedy in the act would normally be understood to exclude another. Jd. at 301, 64 S.Ct. 95. This is the first time the Court applied the rule of statutory construction expressio unius est exclusio alterius to deny implication. In Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), the Supreme Court stated a rather liberal rule for vindicating federal rights in an action for damages for violation of constitutional Id. at 684, 66 S.Ct. at 777. This rather liberal attitude was given a set back in the 1950's when, in a series of three cases, the Court refused to imply a remedy. See 7.1.M.E., Inc. v. United States, 359 U.S. 464, 79 S.Ct. 904, 3 L.Ed.2d 952 (1959); Nashville Milk Co. v. Carnation Co., 355 U.S. 373, 78 S.Ct. 352, 2 L.Ed.2d 340 (1958); Montana- Dakota Util. Co. v. Northwestern Pub. Serv. Co., 341 U.S. 246, 71 Ct. 692, 95 L.Ed. 912 (1951). In 1964, the Court returned to a more liberal position in J.J. Case v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964) when t held that a private party could bring a derivative action for the use Gkhalad whiniin wee wihenede, in violation of section 14(a) the Securities Exchange Act of 1934. In reaching this conclusion, Court emphasized the broad remedial purposes of the Act, and z° FSS A-51 Indetermining whether a private remedy is implicit in a statute not expressly providing one, several fac- tors are relevant. First, is the plaintiff ‘‘one of the class for whose especial benefit the statute was enacted,” ‘Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 39, [386 S.Ct. 482, 484, 60 L.Ed. 874] (1916) (em- phasis supplied) — that is, does the statute create a federal right in favor of the plaintiff? Second, is there concluded that private enforcement was a necessary supplement to effectuate the congressional purpose. In 1967, in Wyandotte Transportation Co. v. United States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967), the Court reaffirmed its decision to Borak when it held that the criminal sanction of section 15 of the Rivers and Har- bors Act of 1899, 33 U.S.C. § 409, was not an exclusive remedy under the statute. The Court articulated a set of three criteria for determin- ing when an implied remedy should be found. First, the expressly pro- vided criminal sanctions must be inadequate to ensure the full effec- tiveness of the statute. Second, the interest of the plaintiff must be within the protection of the statute. Finaliy, the injury must be of the type that the statute was intended to forestall. These three criteria, however, were not long-lived as the sole judicial test for implying remedies. In National Railroad Passenger Corp. v. National Associa- tion of Railroad Passengers, 414 U.S. 453, 94 S.Ct. 690, 38 L.Ed.2d 646 (1974) (Amtrak), there was a return to a more restrictive attitude about implying civil remedies. The Amtrak Act, 45 U.S.C. § 301 et seg. (1970), expressly provided that only the Attorney General had the right to institute a civil action except in cases involving labor agreements. The Court held that the express provision of the remedy to the Attorney General precluded the inference of a civil action in favor of the plaintiffs absent any clear indication in the legislative history that a right of action should be inferred. The Court also stated that the legislative history evidenced an intent to preclude civil remedies, and that an implied remedy would conflict with the Act's policy of streamlining the proceses for eliminating unproductive rail routes in order to save the overall passenger system. _ The only other case of significance subsequent to Amtrak and prior to Cort was Securies Investor Protection Corp. v. Barbour, 421 U.S. 412, 95 S.Ct. 1733, 44 L.Ed.2d 263 (1975). This controversy in- volved whether a right of action by a private party was impliedly created by the Securities Investor Protection Act of 1970 (SIPA), 15 U.S.C. § 78aaa et seg. The Court's opinion followed the of Amtrak and denied implication mainly because there was a lack of ex- evidence indicating that Congress intended to imply private A-52 any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? See, e.g., National Railroad Passenger Corp. v. National Assn. of Railroad Passengers, 414 U.S. 453, 458, 460, [94 S.Ct. 690, 693, 694, 38 L.Ed.2d 646] (1974) (Am- trak). Third, is it consistent with the underlying pur- poses of the legislative scheme to imply such a remedy for the plaintiff? See, e.g, Amtrak, supra; Securities 1..vestor Protection Corp. v. Barbour, 421 U.S. 412, 423, [9° | St. 1733, 1740, 44 L.Ed.2d 263] (1975); Calhoon -. Harvey, 379 U.S. 134, [85 S.Ct. 292, 13 This Court, not unlike the Supreme Court, has had a less than con- sistent approach to implying civil remedies. The most oft cited case concerning this issuc is Gomez v. Florida State Employment Service, 417 F.2d 569 (5th Cir. 1969). In Gomez, the employers of migratory workers and certain state officials had allegedly violated the Wagner- legislation, Congress was aware of and concerned with the slaveike living conditions of these workers. Chief Judge Brown's opinion in Gomez relied heavily on the fact that the legislative history of the Act, and the regulations promulgated pursuant to it, indicated an in- unfulfilled unless more stringent enforcement standards were im- by this court. example is Breitwieser v. KMS Industries, Inc., 5 Cir., 467 F.2d 1391 (1972), in which it was held that the child labor pro- visions of the Fair Labor Standards Act, 29 U.S.C. § 212, and the Ppp eam, cagenaaee pte yg acy cai ae Sa 1 Hi ERE : aT 4 ; : 1 A-53 L.Ed.2d 190] (1964). And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law? See Wheeldin v. Wheeler, 373 U.S. 647, 652, [83 S.Ct. 1441, 1445, 10 L.Ed.2d 605] (1963); cf. J. I. Case Co. v. Borak, 377 U.S. 426, 434, [84 S.Ct. 1555, 1560, 12 L.Ed.2d 423] (1964); Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 394-395, [91 S.Ct. 1999, 2003-2004, 29 L.Ed.2d 619] (1971; id., at 400, [91 S.Ct. [1999] at 206] (Harlan, J., concurring in judgment). Id. at 78, 95 S.Ct. at 2088. There is no question that the factors enunciated in Cort must control the decision-making process in the case before us, but fully understanding and properly ap- plying these factors is no minor task. Our first step in this inquiry must be to examine briefly the Outer Con- tinental Shelf Lands Act since it would be fruitless to at- tempt to deal with the Cort criteria without this background. In 1953 Congress enacted the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331 et seg. This Act asserted United States’ ownership of and jurisdiction over minerals in and under the Outer Continental Shelf.* It * Continental shelves have been defined as those slightly submerg- ¢ : z 5 5 : : 3 : A-54 also extended the Constitution and laws of the United States to the shelf lands, and established an exclusive system of mineral leasing on the Outer Continental Shelf. Section 1332 of the Act asserts United States jurisdiction over the Shelf while section 1333 provides that federal law is applicable on the shelf, applying state law only as federal law, and only when not inconsistent with applicable federal law. Section 1334 deals with the administration of leases, and it grants the Secretary of the Interior the authority to promulgate regulations in order to comply with the provisions of the Act relating to leasing. Section 1334 also prescribes criminal penalties for any person knowingly and willfully violating the Act. The rest of the Act, §§ 1335-1343, deals almost exclusively with the leasing system to be applied on the Shelf. [1] Given this brief background, we can now delve deeper into the history and purpose of the Act as we analyze it within the framework of the Cort criteria. The first factor we must consider is whether the injured employees on the platform should be considered ‘one of the class for whose especial benefit the statute was enacted.’’ The Cort opinion sheds little light on exactly how to handle this factor. On the one hand, there is language to the effect that the factor would ve satisfied if the statute created any federal right in favor of the A-55 plaintiffs, or if there was any sort of pervasive legislative scheme governing the relationship between the plain- tiffs’ class (workers on the platforms) and the defendant's class (a lessee of rights to resources on or under the Shelf). Given this interpretation of the criterion, it would most likely be satisfied in our case. Section 1333 of the Act deals with what law to apply in controversies arising on the shelf, and specifically pro- vides that with respect to disability or death of an employee as the result of operations on the shelf, the Longshoremen's and Harbor Workers’ Compensation Act shall apply. From this provision alone, it appears that a federal right has been created in the plaintiffs’ class. However, a reading of the entire Cort opinion leads one to question whether this is what the Supreme Court meant when it stated that the plaintiff must be in the class for whose especial benefit the statute was enacted. The opinion seems to imply that a cause of action should not be created unless the primary purpose of the Act (or at least one of the primary purposes) is to benefit or pro- tect the workers on offshore oil platforms.’ If this is the proper interpretation of the Court's language, then this criterion would not be satisfied. A review of the legislative history of the Act outlines specifically the purposes behind the legislation. The House of Represen- tatives Report on the bill stated: ’ This interpretation is based on two points. First, the Supreme Court made an effort to examine the legislative history of 18 U.S.C. § 610 in order to find the purpose in enacting the legislation, and then concluded that this legislative history ‘demonstrates that the protec- tion of ordinary stockholders was at best a secondary concern."’ 422 U.S. 66, 81, 95 S.Ct. 2080, 2089, 45 L.Ed.2d 26 (1975. The second ra- tionale for this interpretation is the actual language used by the Court — “‘is the plaintiff one of the class for whose especial benefit the atetate wen chases.” Toeeeing siise, Cte Sagneas wens seven © mean that unless the primary purpose of the legislation was to t the plaintiff, then no remedy should be implied. A-56 The purpose of H.R.5134 is to amend the Submerg- ed Lands Act in order that the area in the outer Con- tinental Shelf beyond boundaries of the States may be leased and developed by the Federal Government. At the present time the Submerged Lands Act merely established that the seabed and subsoi! in the outer Continental Shelf beyond State boundaries appertain- ed in the United States and was subject to its jurisdic- tion and control. There are no provisions for the leasing and develop- ment of the area by the Federal Government nor are provisions made for the exchange of State leases for Federal leases in the same area. This bill contains provisions to accomplish those very objectives. H.R.Rep.No.413, 83d Cong., lst Sess., 2 (1953). The report then proceeded to explain the need behind the legislation: Representatives of the Federal departments, the States, and the offshore operators all urged the impor- tance and necessity for the enactment of legislation enabling the Federal Government to lease for oil and gas operations the vast areas of the Continental Shelf outside the State boundaries. They are unanimously of the opinion, in which this committee agrees, that no law now exists whereby the Federal Government can lease those submerged lands, the development and operation of which are vital to our national economy and security. It is, therfore, the duty of the Congress to enact promptly a leasing policy for the purpose of encouraging the discovery and development of the oil potential of the Continental Shelf. —* A-57 The committee is also of the opinion that legislative ac- tion is necessary in order to confirm and give validity to Presidential Proclamation 2667 of September 8, 1945, wherein the President, by Executive declaration asserted, in behalf of the United States, jurisdiction, control, and power of disposition over the natural resources of the subsoil and seabed of the Continental Shelf. Many other nations have made assertions to a similar effect with respect to their continental shelves, and the committee believes it proper and necessary that the Congress make such an assertion in behalf of the United States. Id. at 2, 3. Similar language was used in the Senate Report. In explaining the resons why jurisdiction needed to be asserted over the Shelf, the Report stated: [Tfhe discovery of extremely valuable deposits of oil and gas and probably sulfur in the seabed of the Con- tinental Shelf off the shores of the United States, as well as its vast potential as a source for other raw materials, gave rise to the necessity for protection and control of the area and administration of the develop- ment of its economic wealth, so essential to our economy in peace or war. S.Rep.No.411 of the Committee on Interior and Insular Affairs, 83d Cong., 1st Sess., 7 (1953). There can be no question that the primary purpose for this legislation was to assert United States jurisdiction over the shelf, and to set up a system for the full develop- ment of its natural resources. Protection of the workers on the platform, while no doubt a legitimate concern of Congress, was not a motivating force behind the legisla- tion, and, in fact, only became relevant if jurisdiction A-58 was asserted. Therefore, it would not be unfair to say that protection of these workers, like protection of the “ordinary stockholder”’ in Cort,was ‘at best a secondary concern”’ of the Act. There is no language in Cort to the effect that all four criteria must be met in order to imply a cause of action. Rather, the Court simply said that several factors were relevant and worthy of consideration. Consequently, it is not necessary for us to decide which of the above inter- pretations of the ‘especial benefit’’ language is correct. We do consider it relevant that protection of these workers was not the motivating force behind the legisla- tion, but we also think that it is important that Congress did feel it necessary to provide certain rights in the Act to these workers. The fact that Congress did specify certain remedies in the Act might, however, indicate an intent by Congress to deny any other type of civil remedy. This result would follow if we were to e:uploy the doctrine of statutory con- struction known as expressio unius exlusio alterius, and this leads us into the consideration of the second Cort factor: {Ijs there any indication of legislative intent, explicit or implicit, either to create a remedy or to deny one? 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975). Prior to the Cort opinion, the law appeared to be that if “legislation expressly provides a particular remedy or remedies, courts should not expand the coverage of the statute to subsume other remedies" absent clear con- A-59 trary evidence of legislative intent. National Railroad Passenger Corp. v. National Association of Railroad Passengers, 414 U.S. 453, 458, 94 S.Ct. 690, 693, 38 L.Ed.2d 646 (1974) (Amtrak). The Cort opinion seems to modify this position somewhat. The statute under scrutiny in Cort provided for ciminal sanctions, yet the Court stated that ‘provision of a criminal penalty does not necessarily preclude implication of a private cause of action for damages.’’ 422 U.S. 66, 79, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975). The Cort opinion also dif- fered from Amtrak in that it stated that absence of any intention to create a cause of action in the legislative history would not necessarily preclude implication, although an implicit or explicit purpose to deny such cause of action would be controlling. The controversy before us is significantly different than the facts before the Supreme Court in Cort. The Outer Continental Shelf Lands Act not only provides criminal penalties for violation of the Act (§ 1334(a)(2) ), but also provides extensive civil remedies. As previously noted, § 1333(c) provides that the Longshoremen’s and Harbor Workers’ Compensation Act should apply in cases of disability or death of an employee working on the platform, and § 1333(a)(2) provides the workers on the shelf any remedy which might be available under state law as long as that remudy is not inconsistent with federal law. We feel, therefore, that fewer reasons exist to imply a cause of action in this case than were present in Cort. The workers on the platform potentially have ex- tensive civil remedies,* and, keeping in mind that the * The potential remedies available to the plaintiffs in our case in- Cale Cle Seen nine ees ee ee A-60 underlying purpose of implication is merely to ffectuate the goals of Congress, we fail to see how implying this additional remedy will significantly further the goals Congress was seeking to accomplish in passing the act. Therefore, a much stronger argument can be made for applying the expressio unius exclusio alterius doctrine here than could be made in Cort, and this argument is strengthened by language in the legislative history of the Act which indicates that the plight of the workers was considered, and that the remedies provided for by the statute were intended to be the sole solution for this plight. Senator Cordon, while presenting the reasons to the Senate for adopting state law in certain situations, explained that ‘the full development of the estimated values in the shelf area will require the efforts and the physical presence of thousands of workers on fixed structures in the shelf area. Industrial accidents, ac- cidental death, peace and order”’ present problems re- quiring a body of law for their solution. Since ‘‘as every member of the Senate knows, the Federal Code was never designed to be a complete body of law in and of itself,” the Senate Committee decided that state law would have to be referred to in some instances. 99 Cong.Rec. 6962-6963 (1952), quoted in Rodrigue v. Aetna Casualty Co., 395 U.S. 352, 358, 89 S.Ct. 1835, 1838, 23 L.Ed.2d 360 (1969). The language of Senator Cordon, and the extensive civil remedies available to the workers, indicates to us a legisiative intent to deny a civil remedy for breach of the Secretary of Interior’s regulations. If in fact Congress considered the situation of these workers and set forth specifically the remedies which it felt would adequately deal with the situation (and there is every indication that this is what occurred), then we would indeed be ex- A-61 ceeding our authority to ignore their will, and, in effect, legislate our own remedies. This conclusion does not change as we examine the third and fourth Cort criteria. The third factor we are to consider is whether it is consistent with the underlying purpose of the legislative scheme to imply a remedy for the plaintiffs. In applying this factor, the Cort opinion explained that although “‘it is the duty of the courts to be alert to provide such remedies as are necessary to make effective the congressional purpose .. .in this in- stance the remedy sought would not aid the primary con- gressional goal.’’ 422 U.S. 66, 84, 95 S.Ct. 2080, 2090, 45 L.Ed.2d 26 (1975). It is not surprising that the Cort opi- nion stressed the fact that implying a civil remedy was not necessary to make effective the congressional pur- pose. In most cases where cause of actions have been im- plied, it has been done to remedy the inadequacy of the express statutory means of enforcement. See, e. g., J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964); Gomez v. Florida State Employment Serv., 417 F.2d 569 (5th Cir. 1969). As in Cort, we fail to see how it could be argued that the remedies available to the workers in our case are inadequate. Nor do we feel that it is necessarily consistent with the legislative goal of the Act (to fully develop the natural resources of the Shelf) to impose liability upon a lessee based upon viola- tion of a departmental regulation when that lessee is ad- mittedly free from fault. The final factor which Cort commands us to consider is whether the cause of action is one traditionally relegated to state law, in an area basically the concern of the states, so that it would be inappropriate to infer a cause of action based solely on federal law. From what we have A-62 previously stated, it is apparent that Congress, at least, felt that state law should govern this sort of controver- sy. Congress reached this conclusion not solely because there are “‘gaps"’ in the Federal Code, but also because it recognized that the individual states had a very real in- terest in the workers on these platforms. As Senator Long pointed out in his minority report to the Senate: A typical individual employed in operations in the shelf area will maintain his family in one of our coastal parishes; he will own or be buying his house and an automobile there. His children will attend Louisiana schools. If either he or a member of his family becomes ill, he will be cared for by a Louisiana doctor in a Loui- siana hospital. After his employment in the shelf ends, he will continue to live in Louisiana and will spend his old age there. The children of these employees will attend a free public school, and be provided with free schoolbooks, supplies, lunches, and transportation. Our highways and streets will be traveled by both employer and employee. The State provides charity hospitals for the indigent sick. Care for those stricken with tuber- culosis or mental diseases is provided by State- operated hospitals. A State-financed medical school now provides many of the doctors who will minister unto these people. The worker's person and property will be protected by our police. He will be protected from disease and sickness by our public health and sanitation offices. His elderly parents are likely to be receiving a pension during their period of nonproduc- tivity. A-63 Louisiana provides a system of courts in which the employee will litigate many of his claims. Many of these same services will be provided for the oil company whose base of operations will be necessarily on Louisiana soil. The company will use our highways, will benefit from police protection, and make use of our courts. None can deny that the furnishing of such services to the thousands of shelf workers, their families, and the companies for which they work will be a heavy financial burden on the State and its subdivisions. S.Rep.No.411 of the Committee on Interior and insular Affairs, 83d Cong., 1st Sess., 66, 67 (1953). We think that it is apparent, therefore, that this controversy should be controlled by state law. The concern of the state for these workers is real, and this concern was recognized and provided for by Congress in the actual provisions of the Act. We are aware of the fact that brevity is not the chief attribute of this decision. We have gone to some lengths to explain ourholding because of the many lives and for- tunes involved. Development of the Outer Continental Shelf will continue for generations, and, indeed, seems to be gaining added importance. All involved in these vital activities, employers and employees, have a right to know the “rules”. Having reached this point, there is much left to be resolved including the applicable state law. A-64 III. LOUISIANA LAW {2} Having determined that federal law requires the plaintiffs to look to state law for redress, we now turn to plaintiffs alternative theory that Shell is strictly liable for the injuries sustained pursuant to Article 2322 of the Louisiana Civil Code. Article 2322 provides: The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it,* or when it is the result of a vice in its original construction. The text of Article 2322 reveals that several threshold issues must be considered before liability under the Arti- cle can accrue. The parties to the appeal ha« 2 vigorously contested the meaning of “owner”, “‘building'’, and “ruin” as applied to the facts of this case.'° * “Neglect to repair’’ means failure to keep in repair and does not require a showing of negligence. See Adamson v. Westinghouse Elec- tric Corp. 236 So.2d 556 (La.App. 1970). ‘© Shell Oil Company contends that it cannot be held strictly liable pursuant to Article 2322 because it did not own the modular drilling rig containing the hot water heater which was placed upon the plat- form, not did it own the soil upon which the platform was placed. Shell also contends that, in effect, the hot water heater which explod- ed in this case is not an immovable by attachment within the meaning of Cothern v. La Rocca, 255 La. 673, 232 So.2d 473 (1970) because the hot water heater was not placed on the premises by the owner of the q A-65 The main issue of contention between the parties, however, is the purely legal question of whether an owner of an offshore drilling platform can be held strict- ly liable pursuant to Article 2322 for injuries sustained by employees of an independent contractor present on the platform for the purpose of conducting drilling operations. The district court denied recovery, holding that an employee of an independent contractor can not recover under Article 2322 unless performance of the work on the owner’s premises is_ intrinsically dangerous."' meaning of Cothern because it was attached in such a way that burn- ing and cutting would be required to remove it. In addition, plaintiffs rely upon Article 464 of the Louisiana Code in support of thier conten- tion that the drilling rig is an immovable by attachment. Article 464 provides: Lands and buildings or other constructions, whether they have their foundation in the soil or not, are immovable by their nature. Ar- ticle 464 has been interpreted to exclude the requirement that ‘‘other constructions" be placed upon the premises by the owner. See Hilltop Bowl, Inc. v. United States Fidelity & Guaranty Co., 248 F.Supp. 572 (D.C.W.D.La. 1966); Louisiana v. Illinois Central Railroad Company, 256 So.2d 819 (La.App. 1972), cert. denied 260 La. 1136, 258 So.2d 381 (1972). The plaintiffs also contend that the “ruin” was catastrophic and was caused by Shell's neglect to repair an appurtenance of the struc- ture. The plaintiffs assert that it is irrelevant that Shell's ‘neglect to repair’ was caused by a breach of duty by Movible Offshore, Inc. '' The Court stated in pertinent part: Louisiana law is consistently to the effect that an injury to the employee of an independent contractor, caused by the contractor's . does not impose strict liability on the building owner. Henson v Traveler's Ins. Co. 208 So.2d 366 (La.App. 1968), and cases dangerous, skillfully performed. — 19 L.App. 179 [182] 139 So.2d [139 So.) 543, 545 (1932). Minute Entry of Trial Court, May 14. 1973 (R.503, 504). A-66 If the theory of the plaintiffs’ action against Shell was liability for the negligent acts of an independent contrac- tor under the doctrine of respondeat superior, our task would not be nearly as difficult. In Cole v. Louisiana Gas Co., 121 La. 771, 46 So. 801 (1908), the Louisiana Supreme Court long ago held that: The general rule is that the servants of an indepen- dent contractor must look to him (and not to the per- son with whom he has contracted) for injuries which they receive through his fault or negligence. Id. at 779, 46 So. at 804. An exception to the general rule, as recognized in Cole, will arise if the work is in- herently dangerous. The theory of the plaintiffs’ action, however, is not that Shell is liable for the acts of its independent contrac- tor under the doctrine of respondent superior, but rather that Article 2322 imposed a strict statutory responsibili- ty upon Shell to keep the platform and the ap- purtenances thereto free from ruin. Since the basis of the plaintiffs claim for damages in this case is strict liability, rather than negligence or respondeat superior, our in- quiry must go beyond Cole. The district court cited the cases of Vinton Petroleum Co. v. L. Seiss Oil Syndicate, Inc.,* and Henson v. Traveler’s Ins. Co.,"* in support of its conclusion that Shell is not liable to the plaintiffs under Article 2322. We are of the opinion that these cases are not dispositive of the issue and that a brief analysis of Louisiana jurisprudence will demonstrate the absence of clear and controlling precedent. * 19 La. App. 179, 139 So. 543 (1932). * 208 So.2d 366 (La. App. 1968), cert. denied, 252 La. 174, 210 So.2d 55 (1968). : & - A-67 Although both Vinton and Henson are cases involving claims under Article 2322, whether these cases support the holding of the district court is indeed uncertain. The Vinton case involved damage to the property of an ad- joining property owner and not injury to an employee of an independent contractor. In addition, there is ambigui- ty in Vinton as to whether the Louisiana appellate court extended the general rule that an owner is not responsi- ble for the acts of an independent contractor to cases in- volving Article 2322 strict liability.* In Henson, an employee of an independent contractor was injured when he stepped in an unattended piling hole at a construction site. Although the injured employee in Henson did assert a claim based upon Arti- cle 2322 against the owner of the property, the plaintiffs argue that a simple negligence count was also asserted against the owner. The plaintiffs contend that Article 2322 is inapplicable because a hole in the ground is ob- '* In Vinton, the owner of an oil derrick hired a man named Buton to dismantle the derrick on his property. In the dismantling process, wo urton was an independent contractor. The Court in the following se- quence, made three findings: (1) Burton was not an independent contractor so the landowner could not prevail on the defense to the negligence count. (2) The plaintiff sustained his burden of proof under Article 2322 of establishing that the derrick was in a rotten or decayed condition at the time of the collapse. (3) Even if Burton was an independent contractor, the defendant landowner would still be liable because the work was intrinsic- ally dangerous. The third holding sequentially follows the second holding but logically relates to the holding on the issue of negligence, not the A-68 viously not an appurtenance of a building within the meaning of Article 2322,'* and, therefore, the discussion in the case as to the liability of the owner to the injured employee deals with the negligence count. Although we do not go so far as to accept the plain- tiffs’ interpretation of Henson, we are of the opinion that the holding of the Louisiana appellate court is unclear in light of the fact that there is uncertainty as to whether Article 2322 is applicable to facts in that case. More im- portantly, the discussion of liability in Henson deals with the issue of whether an owner is responsible under Article 2322 for the negligence of an independent con- tractor, and not whether an owner can be held strictly liable under Article 2322 for ‘neglect to repair’’ as a separate theory of liability independent of any fault or negligence of the contractor.'* Resolution of the issue of whether Shell is strictly liable to the plaintiffs in this case is further clouded by the case of Temple v. General Ins. Co. of America, 306 So.2d 915 (La.App.1974), cert. denied, 310 So.2d 643 (1975). The Temple Court found that because of a sub- contractor’s employee sustained his injuries while in the process of repairing a building, the ruin did not occur from “neglect to repair’ within the meaning of Article '* The plaintiffs in their reply brief reason as follows: The only presumption we make here is that the State Appellate Court [sic] could tell the difference between an appurtenance to a building and a hole in the ground, and did make that distinction. Since Article 2322 could not possibly have any play physically or legally, Henson's only theory could be that of simple negligence which was met with the defense of independent -vidence in this case certainly preponderates that this explosion could not have occurred had the Tex- steam 5550 pressure relief valve properly relieved the pressure in the heater tank at 125 lbs. There is, however, no direct evidence that the valve was defec- tive, and the Court is convinced that the circumstan- tial evidence in the case leaves open the reasonable possibility that the valve may not have relieved the pressure for reasons other than a defect in the valve itself. R. Vol. III at 825. [7] There is sufficient evidence in the record by the ex- perts from which the trial court could have concluded that the pressure relief system may have been blocked causing an explosion. Although circumstantial evidence may be used by the plaintiffs to prove negligence, Loui- siana law requires that the plaintiff prove his case by a fair preponderance of the evidence — such evidence be- ing of a nature which excludes, with a reasonable amount of certainty, all other reasonable hypotheses. Hargis v. Travelers Indemnity Co., 248 So.2d 613, 615 (La.App. 3rd Cir. 1971). The expert testimony indicated A-130 that there were several ways a blockage could have been formed resulting in an explosion. If there was such a blockage of the pressure relief system, the explosion could have been the result of the blockage rather than a defect in the pressure valve. Thus, the findings of the trial court are supported by the evidence and are not clearly erroneous. IV. Negligence of Pacific Employees Insurance Corporation [8] The trial court found that INA had undertaken to inspect Movible’s rigs on a periodic basis and to transmit its recommendations to Movible regarding the correction of any unsafe equipment or practice which it found. This Court has stated that an insurer may, by the manner of conduct of safety inspections, or its represen- tations concerning safety inspections create a serious risk to others if the employer relies on the insurer. Stacy v. Aetna Casualty and Surety Co., 484 F.2d 289, 295 (5th Cir. 1973). In Stacy we said that an insurer may be liable if the employer so relied on the insurer’s inspections that it neglected its own safety inspection program to its detriment. Jd. We held in Stacy, however, that: [Reliance will not be assumed merely from the ex- istence of a permissive inspection clause in an in- surance policy. The insurer’s liability must rest upon proof of actual reliance by the insured on the contrac- tual undertaking or on the subsequent representa- tions by the insurer which resulted in acts or omis- sions by the insured. 484 F.2d at 295 (citations omitted). A-131 We need not determine whether the trial judge proper- ly concluded that a cause of action for negligent inspec- tion exists under Louisiana law.’ Whether or not INA originally had the duty to inspect, it is clear that INA was under no duty to reinspect the premises especially if it was assured by a Movible employee, supposedly train- ed under an extensive safety program, that the recom- mendations had been carried out. The trial court was correct in reversing itself in its amended judgment and finding that INA was under no duty to visually reinspect Movible’s rigs for compliance with INA’s recommendations. V. Liability of Therm-O-Disc and Wiegand [9] We agree with the trial court that there was not sufficient proof to connect either the Therm-O-Disc con- trol nor the Wiegand flange or heating element with the explosion. There is no evidence to support a finding that either Therm-O-Disc or Wiegand were responsible for or contributed to the explosion. VI. Argonaut Insurance Company Intervention [10] The trial court originally decided that Argonaut Insurance Company’s independent suit against the defendants to recover compensation payments made to parties other than plaintiffs in this case should be dismissed because those payments were not made pur- suant to a formal award. However, in an amended judg- ment the trial court recognized that subsequent to its ’ The trial judge concluded that ‘although Louisiana lew is not set- tled on the issue of whether its tort law permits a Workmen's Com- coches tar ho atmpenectiok Gamma a R.Vol. III at 919. A-132 decision this Court in Louviere v. Shell Oil Co., 509 F.2d 278 (5th Cir. 1975), cert. denied, 423 U.S. 1078, 96 S.Ct. 867, 47 L.Ed.2d 90 (1976), held that entry of a formal award is not a condition to the carrier's right to maintain a suit. Although admitting that Louviere would govern the disposition of Argonaut’s suit, the trial court held that because there was no defendant from which Argonaut could recover the suit would have to be dismissed.* Due to the liability of Shell Oil, this finding by the trial court must be reversed and remanded so that the trial judge can rule according to Louviere. Conclusion. For the above stated reasons the findings of the district court are affirmed in part, reversed in part and the case is remanded for disposition in accordance with this opinion. AFFIRMED In Part; REVERSED In Part and REMANDED. * See n. 21, supra. A-133 APPENDIX The following are excerpts of expert testimony regar- ding the explosion: Q And if it had a discharge line from the valve on it, the only water, hot water, that could get in that line is just the water relieved? A The valve opening, that’s correct. Q Would that not indicate to you, Mr. Flettrich, that there probably was nothing wrong with that valve, at least, one time while it actually was put into operation? A That is certainly a possibility. Q Did you see anything about the appearance of that valve that indicated any kind of defect or problem in the valve itself? A No, sir. Of course, it was damaged, and damaged in the accident. Q Mr. Flettrich, I show you a valve which has been assumed to have been on the failed heater, and I ask you to examine the top of the seat of the valve? A Somebody wedged it, and I opened it myself. You've got a strong — Q Mr. Flettrich, the part of the valve we are looking at now is above the point where the seat opened, and the valve relieved, is that correct? A That's correct. A-134 Q And if we could get the jammed part open, that would be the section or the part that would — A Well, the seat is actually between the threaded sec- tion and the knurled section. I've examined it before. Q Can you see what appears to be a scale buildup on top of that seat? A Yes, there is some indication of a scale there. Q Is there anyway that scale could get there, Mr. Flet- trich, other than the valve opening and letting water in this part of the valve so as to form a scale? A That is on the top or discharge side, so it would have to get water up there in order to do that. Q That would indicate also, would it not, sir, that the valve had relieved while in operation? A At sometime, yes. Q And would you expect to get this much scale on just a single relief? Would that not indicate relief fairly continuously and over some — A Over some period of time, that’s correct. Q It would indicate opening of the valve over a fairly extended period of time, would it not? A That is correct. A-135 Q Mr. Flettrich, you indicated in answer to Mr. Weller’s question that water hammer as a possibility of explanation for this accident was somewhat remote. Wouldn't you say that the occurence of this accident itself is very remote? A Well, water heater explosions are happening all over the country all of the time, and we have been for- tunate in this area not to have them in that degree. They are rather remote. Q Mr. Flettrich, aren't there a number of explanations for failure of a relief system other than defect in the valve itself? A Certainly. Q And one example of that is blockage of the piping? A Yes. Q Can you give the Court any other example of failure of a relief system other than the defect in the valve itself? A Right off I can’t think of any unless you take in the operator's practice of, if a relief valve pops off, often they tie the handle down. There is no indication that was the case here, in other words, the human element that gets involved in all of this. Q For example, if one put a cup, for example, over the handle of that valve, that would impinge the handle, and the valve could not open, is that correct? A That is correct. A-136 Q You design heating systems as part of your business? A Yes. Q In connection with designing a heater system, is it necessary for you to be familiar with the Louisiana Plumbing Code? A Yes. All the plumbing codes had very little to say about hot water installation, but that is true. Q Are you familiar with the provisions in the Loui- siana Plumbing Code which provides, in effect, that it is necessary to have either a temperature pressure relief valve on the hot water heater, or a separate temperature valve and separate pressure valve? A Yes. Q That is contained in the Louisiana Plumbing Code, is it not? A Yes. Q How long, if you know, has that provision been a part of the Louisiana Plumbing Code? A I have no idea how long it has been there. It is ac- cepted practice that a water heater should have temperat [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0619%3A2. Public record. Not legal advice.