Amicus Curiae Brief — McDermott, Inc. v. Capital Welding & Fabrication, Inc.

(iOTION FILED

SEP - 5 1996

In the

Supreme Court of the United States

OCTOBER TERM, 1995

NO. 96-2

McDERMOTT, INC.

Petitioner

versus

CAPITAL WELDING & FABRICATION, INC. AND

LANDRY ENTERPRISES, INC. OF MORGAN CITY

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

MOTION OF FOREST OIL CORPORATION FOR

LEAVE TO FILE BRIEF AMICUS CURIAE

IN SUPPORT OF PETITION FOR WRIT OF

CERTIORARI AND BRIEF AMICUS CURIAE

Carl J. Hebert, Esq.

Michael W. Mallory, Esq.

Evans & Co.

220 Camp Street

New Orleans, LA 70130

(504) 522-1400

Attorneys for Forest Oil Corporation

hi eS

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

NO. 96-2

McDERMOTT, INC.

Petitioner

versus

CAPITAL WELDING & FABRICATION, INC. AND

LANDRY ENTERPRISES, INC. OF MORGAN CITY

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

MOTION OF FOREST OIL CORPORATION FOR

LEAVE TO FILE BRIEF AMICUS CURIAE

IN SUPPORT OF PETITION

FOR WRIT OF CERTIORARI

Forest Oil Corporation hereby respectfully moves the

Court for leave to file a brief amicus curiae in support of the

petition for writ of certiorari as provided in Rule 37 of the

Rules of this Court. The consent of the attorneys for Peti-

tioner, McDermott, Inc., Aetna Casualty & Surety Company,

Commercial Union and Mark Wagner has been obtained. The

consent of the attorneys for Respondents, Landry Enterprises,

Inc. and Capital Welding and Fabrication, Inc., and

Storebrand Insurance Co., UK Ltd. was requested but has

not been granted. Copies of letters verifying the above have

been filed with the Clerk.

Forest Oil Corporation is currently involved in litiga-

tion involving the enforcement of a similar maritime indem-

nity provision in Forest Oil Corporation and Ronald Doucet

v. Operators & Consulting Services, Inc., Various Under-

writers, A&A Boats, Inc., C&G Marine Service, Inc., Com-

mercial Union Insurance Company, and Albany Insurance

Company, now pending before the U.S. Fifth Circuit Court

of Appeals, docket no. 94-41244. A decision in that matter

was reported in Hodgen v. Forest Oil Corporation, 87 F.3d

1512 (5th Cir. 1996), and the case is presently awaiting ac-

ceptance and resolution of insurance-related certified ques-

tions by the Louisiana Supreme Court.

In the course of litigating the Hodgen matter, Forest

came to realize early-on that jurisprudence in the area of in-

demnity for the maritime risks related to offshore platform

activities is confusing and inconsistent and lacks an

authoritative standard. Reviewing the numerous cases

emanating from the U.S. Fifth Circuit Court of Appeals (view-

ed by many as the pre-eminent jurisdiction for developing

maritime policy) we noted several Justices expressing their

NN et TE

confusion and frustration and asking “why” they were be-

ing made to reach the decisions they were reaching.

The argument in McDermott’s petition for writ of cer-

tiorari focuses primarily on the applicability of section §905(c)

of the Longshore and Harbor Workers Compensation Act. In

Forest’s amicus curiae brief, Forest focuses instead on the

Fifth Circuit’s use of state law to void an indemnity clause

in McDermott’s contract expressly providing indemnity for

a maritime risk, unseaworthiness. The application of state

law to indemnity of maritime risks is an issue of the deepest

concern to all involved in the offshore industry. The issue,

therefore, has implications extending far beyond the par-

ticular case now before the Court, and we believe that our

contribution will assist the Court in setting the issue into

a meaningful and broader, industry-wide context, thus en-

suring a more comprehensive grasp of the import that this

decision may have on maritime parties throughout the

nation.

For these reasons, Forest Oil Corporation respectfully

requests leave to file a brief amicus curiae supporting the

petition for writ of certiorari.

Respectfully submitted,

Carl J. Hebert, Esq.

Louisiana Bar no. 6724

Michael W. Mallory

Louisiana Bar no. 19692

Evans & Co.

220 Camp Street

New Orleans, LA 70130

(504) 522-1400

Attorneys for Forest Oil Corporation

i

THE QUESTION PRESENTED FOR REVIEW

Whether maritime law applies to enforce a contract pro-

vision providing indemnity for maritime risks arising from

unseaworthiness or vessel negligence on behalf of the vessel

owner.

ii

TABLE OF CONTENTS

Page

The Question Presented for Review................ccsssseeeceeeeeseees i

I Te SIN iiclatis scxcenasnnitinks dain cicenbapeacisaemsanicesaabiahenn il

SI Ir We I cri ccsvaivacicuiseiatadtinionninicescensspiiacsibemnitouumnaneiba iii

Statement of Interest of the Amicus Curiae.................0++ 1

Statutes Involved in the Case......ccscccccrosssssccsccoscessccseveosenses 2

SON, OE WI SD vine vecesincicosaccehstnidninchcteohinrvannicionieines 7

| AE eI ety I Ne 8

BIE cousin cesccndsusmniadtpnamicceniauaeaiiacsidaidtedanaemibcineninenadimaaihed 8

A.The Clause Providing Indemnity for Maritime

Risks is Enforcable under the Maritime Law............ 8

B.The Supreme Court Should Settle These Im-

portant Questions of Federal Law...................::0000008 11

ELE LNA OITOR NOPD LORE ED oN ERB LE, = 15

iii

TABLE OF AUTHORITIES

CASES Page

Angelina Casualty Company v. Exxon Corpora-

tion, U.S.A., Inc., 876 F.2d 40 (5th Cir.

Campbell v. Sonat Offshore Drilling, Inc., 979

Oe REE CN TO Rv vcsecseihiseeoic os 13

Hodgen v. Forest Oil Corporation, 87 F.3d

ticerdbestctie ns CB cp cc, EN IDE AOSD SM 13

Lewis v. Glendel Drilling Company, 898 F.2d

cactetadlie reacts dace wince, CO LN COE MEE 13

Lirette v. Popich Brothers Water Transport, Inc.

699 F.2d 725 (5th Cir. 1983)..0.....ccccccccccceceseceoeees...., 10

Offshore Logistics, Inc. v. Tallentire, 477 U.S.

207, 106 S.Ct. 2485, 91 L.Ed.2d 174

PP atic hulatlialinin aidtetigabel tite etn) Ts. 14

Recar v. CNG Producing Company, 853 F.2d

copter cic Seg Thi, NST ESTELLA NGL 14

Smith v. Penrod Drilling Corporation 960 F.2d

Oe DR MI. MM sithaiihiiicicctatii 13

STATUTES:

eK SON iis cesihcntch techn las eieg GaN tae he 10

Oe Rs WEAN is cccicsiscssne ee 2,14

ib Pe PM hr crnccsbnsccaieste ck ee 3,10

TREATISES:

1 T. Schoenbaum, Admiralty and Maritime Law........... 10

1 Benedict on Admirallty........c.c0.c.csscessssscssseosesssss......... 10,11

1

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1995

NO. 96-2

McDERMOTT, INC.

Petitioner

versus

CAPITAL WELDING & FABRICATION, INC. AND

LANDRY ENTERPRISES, INC. OF MORGAN CIATY

Respondents

BRIEF AMICUS CURIAE OF

FOREST OIL CORPORATION IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

Forest Oil Corporation submits this brief as amicus

curiae in support of the petition for a writ of certiorari to the

United States Court of Appeals for the Fifth Circuit.

STATEMENT OF INTEREST

OF THE AMICUS CURIAE

The interest of Forest Oil Corporation is set forth in

Forest’s motion for leave to file this brief amicus curiae in

support of the petition for writ of certiorari. Forest Oil Cor-

poration is a litigant in a matter involving, at least in part,

similar issues as the instant case and has an interest in the

outcome of this litigation due to its significant effect upon

the maritime industry in which Forest is engaged.

2

STATUTES INVOLVED IN THE CASE

The Outer Continental Shelf Lands Act (OCSLA)

The relevant provisions of the Outer Continental Shelf

Lands Act (hereinafter OCSLA) is set forth below:

43 U.S.C. §1333 Laws and regulations governing lands

(a) Constitution and United States laws; laws of adjacent

States; publication of projected State lines; International

boundary disputes; restriction on State taxation and

jurisdiction

(1) The Constitution and laws and civil and political

jurisdiction of the United States are hereby extended to the

subsoil and seabed of the outer Continental Shelf and to all

artificial islands, and all installations and other devices per-

manently or temporarily attached to the seabed, which may

be erected thereon for the purpose of exploring for, develop-

ing, or producing resources therefrom, or any such installa-

tion or other device (other than a ship or vessel) for the pur-

pose of transporting such resources, to the same extent as

if the outer Continental Shelf were an area of exclusive

Federal jurisdiction located within a State; Provided, however,

That mineral leases on the outer Continental Shelf shall be

maintained or issued only under the provisions of this

subchapter.

(2XA) To the extent that they are applicable and not

inconsistent with this subchapter or with other Federal laws

and regulations of the Secretary now in effect or hereafter

adopted, the civil and criminal laws of each adjacent State,

now in effect or hereinafter adopted, amended, or repealed

3

are hereby declared to be the law of the United States for

that portion of the subsoil and seabed of the outer Continen-

tal Shelf, and artificial islands and fixed structures erected

thereon, which would be within the area of the State if its

boundaries were extended seaward to the outer margin of

the outer Continental Shelf, and the President shall deter-

mine and publish in the Federal Register such projected lines

extending seaward and defining each such area. All of such

applicable law shall be administered and enforced by the ap-

propriate officers and courts of the United States. State tax-

ation laws shall not apply to the outer Continental Shelf.

The Louisiana Oilfield (Anti)Indemnity Statute (LOIA)

The relevant provisions of the Louisiana Oilfield (An-

ti)Indemnity Statute (hereinafter LOIA) is set forth below:

R.S. §9:2780 Certain Indemnification agreements invalid

A. The legislature finds that an inequity is foisted on

certain contractors and their employees by the defense or in-

demnity provisions, either or both, contained in some

agreements pertaining to wells for oil, gas, or water, or drill-

ing for minerals which occur in a solid, liquid, gaseous, or

other state, to the extent those provisions apply to death or

bodily injury to persons. It is the intent of the legislature by

this Section to declare null and void and against public policy

of the state of Louisiana any provision in any agreement

which requires defense and/or indemnification, for death or

bodily injury to persons, where there is negligence or fault

(strict liability) on the part of the indemnitee, or an agent

or employee of the indemnitee, or an independent contrac-

tor who is directly responsible to the indemnitee.

4

B. Any provision contained in, collateral to, or affec-

ting an agreement pertaining to a well for oil, gas, or water,

or drilling for minerals which occur in a solid, liquid, gaseous,

or other state, is void and unenforceable to the extent that

it purports to or does provide for defense or indemnity, or

either, to the indemnitee against loss or liability for damages

arising out of or resulting from death or bodily injury to per-

sons, which is caused by or results from the sole or concur-

rent negligence or fault (strict liability) of the indemnitee,

or an agent, employee, or an independent contractor who is

directly responsible to the indemnitee.

C. The term “agreement,” as it pertains to a well for

oil, gas, or water, or drilling for minerals which occur in a

solid, liquid, gaseous, or other state, as used in this Section,

means any agreement or understanding, written or oral, con-

cerning any operations related to the exploration, develop-

ment, production, or transportation of oil, gas, or water, or

drilling for minerals which occur in a solid, liquid, gaseous,

or other state, including but not limited to drilling, deepen-

ing, reworking, repairing, improving, testing, treating, per-

forating, acidizing, logging, conditioning, altering, plugging,

or otherwise rendering services in or in connection with any

well drilled for the purpose of producing or excavating, con-

structing, improving, or otherwise rendering services in con-

nection with any mine shaft, drift, or other structure intended

for use in the exploration for or production of any mineral,

or an agreement to perform any portion of any such work

or services or any act collateral thereto, including the fur-

nishing or rental of equipment, incidental transportation, and

other goods and sevices furnished in connection with any such

service or operation.

5

D. (1) The provisions of this Section do not affect the

validity of any insurance contract, except as otherwise pro-

vided in this Section, or any benefit conferred by the worker’s

compensation laws of this state, and do not deprive a full

owner or usufructuary of a surface estate of the right to secure

an indemnity from any lessee, operator, contractor, or other

person conducting operations for the exploration or produc-

tion of minerals on the owner’s land.

(2) Any language in this Section to the contrary not-

withstanding, nothing in this Section shall affect the validi-

ty of an operating agreement or farmout agreement, as defin-

ed herein, to the extent that the operating agreement or far-

mout agreement purports to provide for defense or indemni-

ty as defined in Subsection B of this Section. This exception

shall not extend to any party who physically performs any

activities pursuant to any agreement as defined in Subsec-

tion C of this Section. For purposes of t’ is Subsection,

operating agreement and farmout ayrreement shall be defined

as follows:

(a) “Operating agreement” means any agreement

entered into by or among the owners of mineral rights for

the joint exploration, development, operation, or production

of minerals.

(b) “Farmout agreement” means any agreement in

which the holder of the operating rights to explore for and

produce minerals, the “assignor”, agrees that it will, upon

completion of the conditions of the agreement, assign to

another, the “assignee”, all or a portion of a mineral lease

or of the operating rights.

6

E. This Secton shall have no application to public

utilities, the forestry industry, or the sulphur industry, so

long as the work being performed is not any of the opera-

tions, services, or activities listed in Subsection C above, ex-

cept to the extent those operations, services, or activities are

utilized in the sulphur industry.

F. The provisions of the Section do not apply to loss or

liability for damages, or any other expenses, arising out of

or resulting from:

(1) Bodily injury or death to persons arising out of or

resulting from radioactivity; or

(2) Bodily injury or death to persons arising out of or

resulting from the retainment of oil spills and clean-up and

removal of structural waste subsequent to a wild well, failure

of incidental] piping or vales and separators between the well

head and the pipelines or failure of pipelines, so as to pro-

tect the safety of the general public and the environment; or

(3) Bodily injury or death arising out of or resulting from

performance of services to control a wild well so as to pro-

tect the safety of the general public or to prevent depletion

of vital natural resources.

The term “wild well,’ as used in this Section, means

any well from which the escape of salt water, oil, or gas is

unintended and cannot be controlled by the equipment used

in normal drilling practices.

G. Any provision is any agreement arising out of the

operations, services, or activities listed in Subsection C of

7

this Section of the Louisiana Revised Statutes of 1950 which

requires waivers of subrogation, additional named insured

endorsements, or any other form of insurance protection

which would frustrate or circumvent the prohibitions of this

Section, shall be null and void and of no force and effect.

STATEMENT OF THE CASE

Mark Wagner was injured when he slipped and fell on

the deck of the Derrick Barge 51 (hereinafter DB 51).owned

by McDermott, Inc. (hereinafter McDermott), as he was head-

ed to its restroom facilities. The DB 51 provided living

quarters and other facilities to Wagner and his crew who were

working on a McDermott offshore platform. Wagner was a

welder who, at the time of his injury, was on loan to Capital

Welding & Fabrication, Inc. (hereinafter “Capital’’). Capital

had a Blanket Subcontractor’s Agreement with McDermott

which contained an indemnity provision by which Capital

agreed to indemnify McDermott for any claim made by

Capital’s employees, including those claims arising out of the

negligence and unseaworthiness of vessels owned by McDer-

mott. (The text of the indemnity provision is quoted later in

this brief.)

Wagner filed suit against McDermott and others in the

U.S. District Court for the Western District of Louisiana

alleging that he was injured as the result of an unseawor-

thy condition of the DB 51 or due to vessel negligence.

Wagner’s claims were settled, and McDermott seeks indem-

nity from Capital under the indemnity provision. The District

Court denied indemnity, and the Fifth Circuit Court of Ap-

peals affirmed.

8

SUMMARY OF ARGUMENT

This brief is submittd on behalf of Forest Oil Corpora-

tion and in support of the petition for writ of certiorari and

presents relevant matters not already brought to the Court’s

attention.

Mr. Wagner’s injury occurred aboard a vessel and was

caused by maritime risks, unseaworthiness and vessel owner

negligence. The indemnity clause in the contract bet-

ween McDermott and Capital expressly provided that

Capital would indemnify McDermott for injuries aris-

ing from unseaworthiness. As such, the indemnity provi-

sion itself is a maritime obligation, separately enforceable

from the contract “as a whole” under the maritime law.

The Fifth Circuit made a fundamental error when it

failed to apply maritime law to the indemnity provision, and

as a result offshore industry and commerce has been thrown

into greater chaos and confusion. Justices in the Fifth Cir-

cuit have all but begged for authoritative guidance in this

confusing area. Intervention by the United States Supreme

Court is necessary to lend certainty and predictability,

thereby reducing future litigation and the expenditure of

valuable judicial resources.

ARGUMENT

A. THE CLAUSE PROVIDING INDEMNITY FOR

MARITIME RISKS IS ENFORCEABLE UNDER

THE MARITIME LAW.

The McDermott/Capital agreement contains a clause

9

which expressly provides that Capital will indemnify McDer-

mott in the event of an injury arising out of the unseawor-

thiness of McDermott’s vessels or McDermott’s negligence.

The contract states in relevant part as follows:

VII. A. Subcontractor shall protect, defend,

indemnify and hold harmless McDermott,

its employees, officers, and agents, against

all claims demands or causes of action by

Subcontractor, Subcontractor’s employees,

officers or agents or their successors-in-

interest for personal injury or death or pro-

perty damage or destruction arising out of

or in any way related to the performance by

Subcontractor of any work covered hereby

or by the failure of Subcontractor so to per-

form, howsoever such personal injury or

death or property damage or destruction is

cause, including the sole or concurrent

fault or negligence of McDermott, its

employees, officers or agents and/or the

unseaworthiness of vessels which are

owned, operated or chartered by McDermott

regardless of whether said unseaworthiness

pre-existed the execution of the Agreement.

{Emphasis added].

Plaintiff was injured when he slipped and fell on soapy

water on a vessel owned by McDermott. Plaintiff alleged that

his injury was caused by maritime risks, unseaworthiness

or vessel negligence, and his claim thus falls within the scope

of the indemnity provision.

10

This appeal arises due to the conflict between maritime

and state law on whether to enforce the indemnity in McDer-

mott’s contract. If maritime law applies, the indemnity pro-

vision will be enforced. 1 T. Schoenbaum, Admiralty and

Maritime Law §5-20, at 227 (2d ed. 1994) (“Contract indem-

nity — based on an express agreement between the parties—

is generally available and enforceable in admiralty.”); Lirette

v. Popich Brothers Water Transport, Inc., 699 F.2d 725 (5th

Cir. 1983) (maritime law requires that express indemnity

agreements be enforced according to their terms). 33 U.S.C.

§905(c). Under state law, however, the Louisiana Oilfield

Anti-Indemnity statute, La. R.S. §9:2780, voids the indem-

nity agreement. ~

The U.S. District Court and Fifth Circuit Court of Ap-

peals applied state law to invalidate the indemnity clause.

The basis of these Courts’ decisions was that the contract “as

a whole” was non-maritime in nature. The Courts erred,

however, in failing to recognize the maritime nature of the

indemnity provision itself, which can be separately enforced.

The question squarely placed before this Court is:

Should maritime law apply to an express agreement to

indemnify a maritime risk? The indisputable answer must

be “Yes.” There is no question that maritime law enforces

agreements for the indemnity of maritime risks. This con-

clusion is confirmed by numerous authorities applying

maritime law to insurance policies insuring maritime risks.

1 Benedict on Admiralty §184, §219. Angelina Casualty Com-

pany v. Exxon Corporation, U.S.A. Inc., 876 F.2d 40 (5th Cir.

1989) (an agreement to indemnify another for maritime ex-

posures is not voided by the LOIA and must be enforced under

the maritime law).

11

The Courts have gone to great lengths deciding whether

the contract “as a whole” is maritime or non-maritime.

However, categorization of the nature of the contract “as a

whole” is inappropriate in circumstances where there is a

mixed contract with both maritime and non-maritime obliga-

tions and where the maritime obligations are separable. 1

Benedict on Admiralty §183 at 12-10, 11 (where there are

maritime elements in a mixed contract which are capable

of being litigated separately without prejudice to either party,

there is admiralty jurisdiction over the maritime obligations).

The operative indemnity provision itself is expressly

maritime and, as such, is separable from the non-maritime

elements of the contract.1

The decision of the District Court and the Fifth Circuit

Court of Appeals is thus contrary to the rule of law and has

led to error which will have significant effects upon other

maritime parties.

B. THE SUPREME COURT SHOULD SETTLE

THESE IMPORTANT QUESTIONS OF

FEDERAL LAW.

The effect of state laws on the indemnity of maritime

risks reaches many, many more parties than those involv-

ed in the present litigation. Industries engaged in offshore

1 The separability of an indemnity obligation is analogous to the separate

obligation to procure insurance which may be contained in a contract for

services. Because the obligation to procure insurance is capable of being

litigated separately it is subject to a choice of law analysis separate from

that of the contract “as a whole.” See, e.g., Angelina Casualty Company

v. Exxon Corporation, U.S.A. Inc., 876 F.2d 40 (5th Cir. 1989).

12

oil exploration and other maritime commerce constitute a

significant portion of the economic strength and vitality of

the states involved and, indeed, the country as a whole.

Companies engaged in offshore platform activities

recognize that their work inherently involves risks of both

a maritime and non-maritime nature. For public policy

reasons and due to the significant investment and risks in-

volved, federal law traditionally allows parties to allocate

the financial burden of maritime risks by contract. Incorpora-

tion of such agreements into contracts is an accepted stan-

dard in the maritime industry and such contractual ar-

rangements are, for the most part, honored by courts sitting

in admiralty. The result of this simple concept is predictabili-

ty and order.

Allowing state concerns to upset the clear and un-

mistakable maritime rule of law will lead to confusion and

chaos and will cause chilling and economically disastrous ef-

fects on maritime commerce. When injury occurs on a vessel

as the result of a maritime risk, forcing our courts to engage

in a fact-intensive analysis of the nature of the contract “as

a whole” to determine whether an express maritime indem-

nity provision should be honored, leads away from a uniform,

brightline standard. When such occurs, it may cause results

never contemplated by the contracting parties and leads

litigants and courts alike into a maze of uncertainty, away

from unity and into controversy.

Because of the number and frequency of decisions

emanating from the U.S. Fifth Circuit Court of Appeal on

issues of maritime law, such decisions are generally accord-

ed great deference in other federal and state jurisdictions

13

where less precedent may exist. In a significant portion of

the country, decisions by the Fifth Circuit Court of Appeals

are viewed, for the most part, as gospel on maritime issues.

The decision by the Fifth Circuit, however, is con-

trary to the accepted rules of engagement in the arena

of maritime contracts, as more fully discussed above. If left

unchecked this decision will lead to greater confusion and

unpredictability in an area already fraught with troubled

economic risks and uncertainties, resulting in increased

litigation and the expenditure of greater judicial resources.

Authoritative supervision in this arena is not only necessary,

but has been invited by justices in the Fifth Circuit.2

2 The confusion and unpredictability of litigation in this area is made abun-

dantly clear by the numerous recent comments of various panels of the

US. Fifth Circuit Court of Appeals expressing their concern and over-

whelming need for a uniform rule of law. For example, in Smith v. Penrod

Drilling Corporation 960 F.2d 456 (5th Cir. 1992) the Fifth Circuit stated:

In each new case, a panel of this court must comb through a bewilder-

ing array of cases that rely upon inconsistent reasoning in the hope

of finding an identical fact situation. [Footnote containing numerous

citations omitted.] Absent an en banc decision, cases are decided on

what seems to be a random factual basis. See Lewis, 898 F.2d at 1084

(“(Bjecause of an apparent contradictory line of cases in our circuit

and the uncertain policy underpinuing our result, the appellant

would justly ask “why?”’).

Smith v. Penrod, 960 F.2d at 461. See also Hodgen v. Forest Oil Corpora-

tion, 87 F.3d 1512, 1523 n.8 (5th Cir. 1996) (“We have on previous occa-

sion expressed our frustration with the inconsistency of our case law in

this general area. [Numerous citations omitted.]”’); Campbell v. Sonat Off-

shore Drilling, Inc., 979 F.2d 1115, 1121 (5th Cir. 1992): Lewis v. Glendel

Drilling Company, 898 F.2d 1083, 1084, 1987-88 (5th Cir. 1990), cert.

denied, 502 U.S. 857, ____ S.Ct. ___, ____ L.Ed.2d _____ (1991).

14

This court stands as the gatekeeper and as the enforcer

of public policy expressed by the United States legislature

when it sought to prevent state concerns from interfering

with established maritime principles by expressly limiting

the applicaton of state law under the Outer Continental Shelf

Lands Act. For the reasons of public policy embodied in the

traditional maritime rule of law and those expressed by the

United States legislature, state anti-indemnity statutes can-

not be allowed to effect the enforcement of agreed-upon alloca-

tions of maritime risks. Such interference is an important

and significant question of federal law, and should be sett]-

ed once and for all by the United States Supreme Court.

3 43 U.S.C. §1333(aX2XA) (state laws apply only to the extent that they

are “not inconsistent with other Federal laws”). See also Offshore Logistics,

Inc. v. Tallentire, 477 U.S. 207, 106 S.Ct. 2485, 2491-92, 91 L.Ed.2d 174

(1986) (the statute contains a “prescription that the Act not be construed

to affect the high seas which cgver the Continental Shelf.”); Recar v. CVG

Producing Company, 853 F.2d 367, 369 (5th Cir. 1988) (where admiralty

and OCSLA juridicition overlap, the case is governed by maritime law).

15

CONCLUSION

For the reasons stated, the petition for a writ of cer-

tiorari should be granted.

Respectfully submitted,

Carl J. Hebert, Esq.

Louisiana Bar roll no. 6724

Michael W. Mallory

Louisiana Bar roll no. 19692

Evans & Co.

220 Camp Street

New Orleans, LA 70130

(504) 522-1400

Attorneys for Forest Oil Corporation

16

CERTIFICATE OF SERVICE

I do hereby certify that a copy of the MOTION OF

FOREST OIL CORPORATION FOR LEAVE TO FILE

BRIEF AMICUS CURIAE IN SUPPORT OF PETITION

FOR WRIT OF CERTIORARI AND BRIEF AMICUS

CURIAE was served upon the following counsel by first class

U.S. Mail, postage prepaid on the 3rd day of September 1996.

Gary P. Krause, Esq.

Onebane, Donohoe,

Bernard,Torian & Diaz

102 Versailles Blvd.,

Suite 600

P.O. Box 3507

Lafayette, LA 70502

James B. Doyle, Esq.

W. Brett Mason Esq.

Woodley, Williams, Fenet,

Boudreau, Norman & Brown

500 Kirby Street

P.O. Drawer EE

Lake Charles, LA 70602

Thomas R. Edwards, Esq.

Domengeaux, Wright,

Moreaux & Roy

556 Jefferson St. Suite 500

P.O.Box 3668

Lafayette, LA 70502-3668

Thomas J. Eppling, Esq.

Stains, Eppling & Myers

3500 N. Causeway Blvd.,

Suite 820

Metairie, LA 70002

cpio gee =p F Alan A.Zaunbrecher, Esq.

me a a ony Vee 3850 N. Causeway Blvd.

avie Suite 440

701 S. Peters Street, ais

Suite 300 Metairie, LA 70002

New Orleans, LA 70130

Carl J. Hebert, Esq.

Michael W. Mallory, Esq.

Attorneys for Forest Oil Corporation

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