Motion — Zapata Offshore Co. v. Timco, Inc.

Supreme Court, U.S,

FILED

No. 85-2023 SEP 24 1986

OBER HR EKSEENIOL, Jz,

In The CLERK

Supreme Court of the United States

October Term, 1986

ray

Vv

KERR-McGEE CORPORATION and

ZAPATA OFFSHORE COMPANY,

Petitioners,

Vs.

TIMCO SERVICES, INC. and

ROYALE BELGE INSURANCE COMPANY,

Respondents.

fay

Vv

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

ray

ie

OPPOSITION TO MOTION FOR LEAVE

TO FILE BRIEF ON BEHALF OF AMICI CURIAE

D.

vu

Epwarp F. Lesreron, III

and

Mary CaMPBELL HvusBarpD

of

Puewps, Dunpar, Marks, CLAVERIE & Sims

30th Floor - Texaco Center

400 Poydras Street

New Orleans, Louisiana 70130-3245

Telephone: (504) 566-1311

Attorneys for Timco Services, Inc.

and Royale Belge Insurance Company,

Respondents

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

a ae

a a leer

RULE 28.1 DECLARATION

Pursuant to Supreme Court Rule 28.1 Timco Services,

Inc. and Royale Belge Insurance Co. state that they are

affiliated to the following corporations:

DOUCET, INC.

TABLE OF CONTENTS

Pages

Rule 28.1 Declaration ......... LEU IR Se no ea ee i

sy Rt | UOMO Rcnarne ee

ees OF DONTE nccidlcc eee Ds eae

Opposition to Motion for Leave to File Brief on

Behalf of Amici Curiae me sian oo «a

il

TABLE OF AUTHORITIES

CASES:

Pages

Beloit Power Systems, Inc. v. Hess Owl Virgin Is-

lands Corp., 735 F.2d 1427 (8rd Cir. 1985) 0. 5)

Chevron Oil Co. v. Huson, 404 U.S. 97 (1971) 0. 3, 4

Corbitt v. Diamond M Drilling, 654 F.2d 329 (5th

ES ec eae RRO ae )

Eastern Airlines, Inc. v. Insurance Co. of North

America, 758 F.2d 132 (3rd Cir. 1985) once 5

Gibbs v. United States, 599 F.2d 36 (2nd Cir. 1979)... 5

M.O.N.T. Boat Rental v. Union Oil Co., 613 F.2d

REST cere aeRO et eter ee )

Rodrigue v. Aetna Casualty and Surety Co., 399

U.S. 352 (1969) ...... IA shat ROR FR VOR NRE ED Ce eS AN 3,5

Seal Offshore, Inc. v. American Standard, Inc.,

ae sere coe Cor. 1966) _ ‘. -

Smith v. United States, 497 F.2d 500 (5th Cir. 1974)... 5

Tran v. Manitowac Engineering Co., 767 F.2d 223

eat a ER cP ER REL ROR ROR 5

United States v. Hollis, 424 F.2d 188 (4th Cir.

a scale icesagioeehigninitaieneaine cite

United States v. Seckinger, 408 F.2d 146 (5th Cir.

1969), rev’d on other grounds, 397 U.S. 203

2, ee FL nee AE

Transcontinental Gas Pipeline Corp. v. Mobil

Drilling Barges, 424 F.2d 684 (5th Cir. 1970) .......... 5

Wedlock v. Gulf Mississippi Marine Corp., 554 F.2d

240 (5th Cir. 1977) ......... eae $

TABLE OF AUTHORITIES—Continued

Pages

STATUTES :

Louisiana Oil Field Indemnity Act, La. Rev. Stat.

Ann. §9:2780 (West Supp. 1986) _ 2, 4, 6

SE ee CE Ce AEC

Federal Tort Claims Act, 28 U.S.C. 2671, et seq.

Outer Continental Shelf Lands Act, 438 U.S.C.

§ 1331 et seq. (1982, Supp. 1986) ~.................... 2, 3, 5, 6

Longshore and Harbor Workers’ Compensation

Act, 33 U.S.C. § 901 et seg. (1986) 9)

Respondents, Timeo Services, Inc. and Royale Belge

Insurance Co., submit this brief in opposition to the motion

of six oil companies to file an amici curiae brief in sup-

port of the Petition for Writ of Certiorari by Kerr-McGee

Corporation and Zapata Offshore Company.

The Motion to File Amici Curiae Brief was not re-

ceived until September 21, 1986, and, accordingly, this oppo-

sition has been prepared hastily and initially is sub-

mitted in typewritten form.

SMALL CASE OF NO NATIONAL SIGNIFICANCE

Timeo and Royale Belge waived their right to file a

brief in opposition to the Petition for Writ of Certiorari

for the reasons that the decision of the Court below pat-

ently was correct and that the cost of litigation of this rela-

tively small, routine personal injury case has become utter-

ly burdensome. Now six rich oil companies wish further

to abuse the legal system of our country by filing an amici

curiae brief. The original complaint of Matte was settled

by Kerr-MeGee and Zapata in 1984 for $35,000.00. Kerr-

McGee and Zapata prosecuted their unworthy third-party

complaint for indemnity through extensive motion prac-

tice in the District Court and the Court of Appeals, and,

together with their six wealthy friends, they now wish to

pursue the matter in the nation’s highest court. Unques-

tionably, the legal fees for this brief writing long since

have exceeded the amount originally in dispute. To allow

filing of the amici curiae brief in support of the petition

for writ would condone these oil companies’ abuse of their

greater economic resources.

Further, the case involves the application of the Louisi-

ana Oil Field Indemnity Act, La. Rev. Stat. Ann. § 9 :2780.

Obviously, the construction of the Act directly affects only

Louisiana. All applicable decisions of the District Courts

and Fifth Circuit are consistent, and no decision of any

other Court is contrary. Accordingly, no issue of national

significance is involved.

In addition, the motion to file amici curiae brief is

made at the eleventh hour, long after the original peti-

tion was filed. The motion is made well beyond the time

provided by Supreme Court Rule 36, and movers have of-

fered no excuse for their delay. The amici curiae brief

makes a new argument not presented in the District Court,

in Court of Appeals, or in petition of Zapata and Kerr-

McGee. Any consideration of such argument at this time

would be improper and unfair to Timeo and Royale Belge.

DECISION BELOW CORRECT

While initially a brief in opposition to the petition

was thought unnecessary, in view of the Motion to File

Amici Curiae Brief, Timco and Reyale Belge will comment

briefly.

The question on which a Writ of Certiorari is sought

is whether under the Outer Continental Shelf Lands Act,

43 U.S.C. § 1381, et seq. (Lands Act) there is a gap per-

mitting the use of the Louisiana Oilfield Indemnity Act,

or whether Uniied States v. Seckinger, 408 F.2d 146 (5th

Cir. 1969), rev’d on other grounds, 397 U.S. 203, 90 S.Ct.

880, 25 L.Ed. 2d 224 (1970), is ‘‘ well established’’ federal

common law and preempts the use of state law.

In drafting the Lands Act, Congress considered the

possibility of applying admiralty law in order to have

uniform Federal rules, but Congress rejected this idea.

Rather, Congress chose to fill in the gaps in Federal stat-

utes and regulations through adoption of state law. 438

U.S.C. § 1333(a)(i); Rodrigue v. Aetna Casualty and

Surety Co., 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed. 2d 1360

(1969). In so providing, Congress expected and intended

that the law applicable on the Outer Continental Shelf ad-

jacent to the differer.t coastal states would vary substan-

tially. Chevron Oil Co. v. Huson, 404 U.S. 97, 103-105,

92 S.Ct. 349, 30 L.Ed. 2d 296 (1971). Adoption of the

argument of Kerr-McGee and Zapata would undermine the

differences in state law and frustrate the intent of Con-

gress.

Federal law is based upon the Constitution and Stat-

utes of the United States. Many questions of commercial

or contract law are not answered by the Constitution and

statutes, and Federal Courts sitting in cases of federal

question jurisdiction oceasionally are required to create

the so-called federal common law. In the present case

there is no need to create or apply such law. In the Lands

Act, Congress clearly expressed an intent that the Court

would look to the law of the adjacent state.

Further, the interpretation advocated by Kerr-McGee

and Zapata would be unworkable because it would lead to

crippling uncertainty. In a Lands Act case there may be

a gap to be filled by state law. What happens if another

Federal Court sitting in Federal question jurisdiction

comments on the subject? Did an established federal com

inon law rule come into existence preempting state law?

Must the comment be integral to the holding or will dicta

suffice? Is one holding sufficient or are more required to

make ‘‘established’’ federal common law? Is a holding

by a District Court sufficient or must the comment be

by a Court of Appeals or even this Court? Surely Con-

gress did not intend such uncertainty.

In addition, the Complaint of Matte against Kerr-Me-

Gee and Zapata was governed by state law, and it would be

anomalous to decide the related indemnity question based

on any other law. Cf. Huson, supra, 404 U.S. at 103

(anomalous to apply state substantive remedy and federal!

laches doctrine). The Louisiana Oilfield Indemnity <Act

is a vital and important part of Louisiana law, La. Rev.

Stat. Ann. 9:2780(A), and it would be improper to allow

Matte to recovery under Louisiana substantive principles

but not apply correlative Louisiana indemnity principles.

Moreover, Seckinger is not ‘‘ well established’’ federal

law common law on the point in controversy, and, in this

respect, the present case is similar to Huson, supra. In

Huson, a Lands Act case, it was argued that in lieu of

state prescription for a state cause of action, the Court

should apply laches under the Federal common law. This

Court rejected this argument for the reason that there was

no well established federal common law rule of laches and

Congress had intended to give state law broader scope.

Similarly, the alleged Federal common law rule here is

not well established. Petitioners rely on Seckinger, supra,

but that decision was made expressly for the purpose of

establishing a uniform rule under the Federal Tort Claims

Act, 28 U.S.C. § 2671 et seq. Seckinger, supra, 408 F.2d

at 149. The Court determined that under the Federal

Tort Claims Act uniformity is a significant national pri-

ority, whereas the Lands Act itself makes clear that the

applicable law will vary with the law of the adjacent state."

Finally, amici curiae make a new, though specious,

argument with respect to the Longshore and Harbor Work-

ers’ Compensation Act, 338 U.S.C. § 901 et seq. Amici

curiae correctly point out that no provision of the Long

shore and Harbor Workers’ Compensation Act prohibits

indemnity agreements between employers and non-vessel

third-parties; however, the failure of the Act to make sueh

a prohibition does not preempt the application of other

law. The Longshore and Harbor Workers’ Compensation

Act leaves the states free to enact anti-indemnity provi-

sions with respect to non-vessel owners, and Louisiana has

done SO,

*All of the cases cited by petitioner and amici curiae as

following Seckinger can be distinguished. Three were decided

under statutes providing for liability of the United States and

are inapposite in a Lands Act case. Gibbs v. United States, 599

F.2d 36 (2d Cir. 1979); Smith v. United States, 497 F.2d 500 (Sth

Cir. 1974); United States v. Hollis, 424 F.2d 188 (4th Cir. 1970).

Five are admiralty cases and clearly inapplicable under Rodrigue,

supra. Seal Offshore, Inc. v. American Standard, Inc., 736 F.2d

1078 (5th Cir. 1984); Corbitt v. Diamond M Drilling, 654 F.2d

329 (5th Cir. 1981); M.O.N.T. Boat Rental v. Union Oil Co., 613

F.2d 576 (5th Cir. 1980); Wedlock v. Gulf Mississippi Marine

Corp,. 554 F.2d 240 (5th Cir. 1977); Transcontinental Gas Pipe-

line Corp. v. Mobil Drilling Barge, 424 F.2d 684 (5th Cir. 1970)

The remaining three are diversity cases decided under state law

or cases governed by the law of the Virgin Islands, and obviously

are not authority for Federal common law. Tran v. Manitowoc

Engineering Co., 767 F.2d 223 (5th Cir. 1985); Eastern Airlines

Inc. v. insurance Co. of North America, 758 F.2d 132 (3rd Cir.

1985); Beloit Power Systems, Inc. v. Hess Oil Virgin Islands, 757

F.2d 1427 (3rd Cir. 1985).

CONCLUSION

The litigation cost of this small personal injury case

has greatly exceeded the amount in controversy, and the

Motion to File Amici Curiae Brief was not made until

long after the time provided by Supreme Court Rule 36.

Further, under the Lands Act. Seckinger does not create

federal common law preempting the application of the

Louisiana Oilfield Indemnity Act. Accordingly, the de-

cision of the Court below is correct, and the Motion to

File Amici Curiae Brief and Petition for Writ should be

denied.

Respectfully submitted,

EEE Erte eee eee eee eee Eee

Epwarp F. Lesreton, III

Mary CamMpBeLt Hupparp

30th Floor - Texaco Center

400 Poydras Street

New Orleans, Louisiana 70130-3245

Telephone: (504) 566-1311

and

Pueups, DunBar, Marks, CLAVERIE

& Sims

Attorneys for Timco Services, Inc.

and Royale Belge Insurance Com-

pany, Respondents

~“

CERTIFICATE OF SERVICE

‘We hereby certify that this Opposition to Motion for

Leave to File Brief on behalf of Amici Curiae has been

served on petitioners and Amici Curiae through their coun-

sel of record Christopher Tompkins and Howard L. Mur-

phy of Deutsch, Kerrigan & Stiles, 755 Magazine Street,

New Orleans, Louisiana. 70130 and Donald R. Abaunza and

William Waitmell Hill Pugh, III of Liskow and Lewis, One

Shell Square, 50th Floor, New Orleans, Louisiana, 70139-

5001, by placing a copy of same in the United States mail.

postage prepaid, this 23rd day of September, 1986.

Epwarp F. Lesreton, III

Mary CampsBeLi. HvuBparp