Petition for Writ of Certiorari — Oryx Energy Co. v. Bourque

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(OYPILS

9420.1 9 WN 120%;

OFFICE OF THE CLERK

No. 94-

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1994

ORYX ENERGY COMPANY,

Petitioner,

YVETTE BOURQUE, WIFE OF AND STEVEN BOURQUE,

SAFETY TECHNOLOGY AND OILFIELD PROTECTORS, INC. AND

AETNA CASUALTY & SURETY COMPANY,

Respondents.

On Petition for Writ of Certiorari to the

Louisiana Court of Appeal, First Circuit

PETITION FOR WRIT OF CERTIORARI

JOHN BLACKWELL

Counsel of Record

GIBBENS, BLACKWELL & STEVENS

P.O. Drawer 13910

New Iberia, LA 70562-3910

(318) 367-8517

Counsel for Petitioner

PRESS OF BYRON 8S. ADAMS, WASHINGTON, D.C. 1-800-347-8208

QUESTIONS PRESENTED

he Whether the state court of

appeal incorrectly decided that state law

determined whether an employee covered by

the Longshoremen's & Harbor Workers'

Compensation Act could recover from the

non-negligent charterer of a vessel for

personal injuries caused by the

charterer's ultrahazardous activity of

well testing from a vessel on navigable

waters because that activity was not a

traditional maritime activity and

therefore not within admiralty juris-

diction.

zs Whether the state court of

appeal incorrectly decided that state law

made void and unenforceable the defense

and indemmity provisions of a contract

under which the indemmitor leased

equipment to the indemnitee that provided

it to a worker covered under the

Longshoremen's & Harbor Workers’

Compensation Act who was injured on a

vessel on navigable waters while engaged

in a maritime employment.

Oe Aha Link lode Min,

iii

PARTIES TO PROCEEDINGS BELOW

Petitioner/Defendant Below

Oryx Energy Company formerly called

Sun Exploration and Production Company was

incorporated in Delaware in 1971 under the

name Sun Oil Company (Delaware) and

succeeded to all of the U. S. exploration

and production assets of Sun Oil Company

which was a New Jersey corporation

pursuant to an agreement and plan of

reorganization effective September, 1993.

Oryx Energy Company's principal place of

business is 13155 Noel Road, Dallas,

Texas. Oryx Energy Company is in the

business of exploring for and producing

oil and gas throughout the United States

including the inland navigable waters of

Louisiana.

Respondents/Plaintiffs, Defendants

and Intervenors Below

The respondents are Steven Bourque an

employee of Pressure Readout Technology,

Inc. and his wife Yvette Bourque both

citizens of Louisiana who were plaintiffs

below; Aetna Casualty & Surety Company

an insurance company that was intervenor

below and that paid workman's compensation

benefits to Steven Bourque under the

United States Longshoremen's & Harbor

Workers' Compensation Act, 33 U.S.C. Sec.

901, et seq., and Safety Technology and

Oilfield Protectors, Inc. a Louisiana

corporation with its principal place of |

business in Louisiana.

RULE 29.1 LISTING

ORYX ENERGY COMPANY

ORYX ENERGY COMPANY has no parent

companies.

The following are subsidiaries (except

wholly owned subsidiaries) (but including

all entities in which there is either a

direct or indirect ownership interest) of

ORYX ENERGY COMPANY:

113857 CANADA LTD.

ANTELOPE INSURANCE CO. LTD.

ORYX AUSTRALIA ENERGY COMPANY

PTs. UD.

ORYX U.K. (INDONESIAN HOLDINGS)

LIMITED

ORYX U.K. (KAKAP) LIMITED

ORYX U.K. (MALACCA STRAIT) LIMITED

ORYX U.K. (SOUTHEAST SUMATRA) LIMITED

ORYX (ZOC) ENERGY PTY. LTD.

CANYON REEF CARRIERS, INC.

EAST TEXAS SALT WATER DISPOSAL

COMPANY

MESBIC VENTURES, INC.

ORYX CRUDE TRADING & TRANSPORTATION

LIMITED PARTNERSHIP

ORYX DEVELOPMENT LIMITED PARTNERSHIP

ORYX GAS MARKETING LIMITED

PARTNERSHIP

ORYX PIPE LINT LIMITED PARTNERSHIP

SUN ENERGY PARTNERS, L.P.

SUN OFFSHORE GATHERING LIMITED

PARTNERSHIP

SUN OPERATING LIMITED PARTNERSHIP

SUN PENNSYLVANIA LIMITED PARTNERSHIP

vii

TABLE OF CONTENTS

QUESTIONS PRESENTED-------------..- i

PARTIES TO THE PROCEEDINGS BELOW--- iii

Petitioner/Defendant Below------ iii

Respondents/Plaintiffs, Defendant

and Intervenor Below------------ iv

RULE 29.1 LISTING------------------ V

TABLE OF CONTENTS------------------ vii

TABLE OF AUTHORITIES--------------- ix

OPINIONS BELOW--------------------- 1

JURISDICTION----------------------- 2

CONSTITUTIONAL PROVISION AND

STATUTES INVOLVED---------------- 3

STATEMENT OF THE CASE-------------- 7

I. Factual Background---------- 7

II. Proceedings Below----------- 9

REASONS FOR GRANTING THE PETITION-- 19

I. The Decision of The State

Court of Appeal Is In

Conflict With The Holdings

Of This Court--------------- 29

viii

II. The Decision Of The

State Court Of Appeal

Is Erroneous---------------- 36

III. The Questions Presented Are

Important ------------------ 42

CONCLUSION-----------------.......- 47

TABLE OF AUTHORITIES

Page

Cases:

Executive Jet Aviation,

Inc. v. City of Cleveland,

409 U.S. 249, 93 S.Ct. 493,

34 L.Ed.2d 454 (1972)---------- 22

Foremost Ins. Co.v. Richardson,

457 U.S. 668, 102 S.Ct. 2654,

73 L.Ed.2d 300 (1982) ---------- 28

Green v. Industrial

Helicopters, Inc., 593

50.2d 634, (La. 1992)--------.. 21

Grubart v. Great Lakes

Dredge & Dock Co.,

U.S. =, £85 8.€r. 1043,

L.Ed.2d = (1995). -+-~-...-..- 19

Hess v. Upper Mississippi

Towing Corp., 559 F.2d

1030 (5th Cir. 1977),

rehearing denied 564 F.2d

97, cert. denied 435 U.S.

924, 98 S.Ct. 1489, 55 L.Ed.

Meloy v. Conoco, 504 So.2d

833 (La. 1987)-----------------

Offshore Logistics, Inc.

v. Tallentire, 477 U.S. 207,

106 U.S. 2485------------------

Richendollar v. Diamond M

Drilling Co., Inc., 784 F.2d

580 (5th Cir. 1986), on

rehearing 819 F.2d 124, cert.

denied 484 U.S. 944, 108 S.Ct.

331, 98 L.Ed.2d 358, rehearing

denied 484 U.S. 1021, 108 S.Ct.

736, 98 L.Ed.2d 684------------ 37

Sisson v. Ruby, 497 U.S.

Jou, &ki0 8.60; 2692, 111

L.Ed.2d 292 (1990)------------- 19

Yamaha Motor Corporation

v. Calhoun, U.S. ,

hae: Bie ; L.Ed.2d

(1995) -----------------.--- 19

Constitutional Provisions:

U.S. Const. art. III, Sec, 2-<-<«- 3

Statutes and Regulations:

28 U.S.C. Sec. 1257------------- 2

28 U.S.C. Sec. 1333------------- 3

33 U.S.C. Sec. 901-------------- iv

33 U.S.C. Sec. 902(3)----------- 3

33 U.S.C. Sec. 902(21)---------- 3

xii

33 U.S.C. Sec. 905(b)----------- 4

Louisiana Statutes Annotated:

Revised Statutes 9:2780 ------- 5

Other Authorities:

Vol. 1 Schoenbaum, Admiralty and

Maritime Law, 2dEd., Section

3-10, p. 11l------------------- 34

{

xiii

NO.

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1994

ORYX ENERGY COMPANY,

Petitioner,

YVETTE BOURQUE, WIFE OF AND STEVEN

BOURQUE, SAFETY TECHNOLOGY AND OILFIELD

PROTECTORS, INC. and AETNA CASUALTY

& SURETY COMPANY,

Respondents.

On Petition for a Writ of Certiorari

to the Louisiana Court of Appeal,

First Circuit

PETITION FOR WRIT OF CERTIORARI

xiv

Oryx Energy Company ("petitioner")

respectfully petitions that a writ of

certiorari issue to review the judgment

and opinion of the Louisiana Court of

Appeal, First Circuit, entered on 7

October, 1994 in the matter of "Yvette

Bourque, Wife of and Steven Bourque v. Sun

Gas Company, Inc. and Safety Technology

and Oilfield Protectors, Inc.", Docket

Number: 93/CA/2213.

OPINIONS BELOW

The opinion and judgment of the

Louisiana Court of Appeal, First Circuit

is an unpublished decision (Appendix,

pages 58 through 139). The reasons for

judgment and judgment of the district

court below are also unpublished

(Appendix, pages 5 through 51). The

denial of Oryx's application for a writ of

certiorari and/or review by the Louisiana

Supreme Court on 13 January, 1995 is

reported at 648 So.2d 1340 (La. 1995)

(Appendix, page 140).

JURISDICTION

The judgment of the Louisiana Court

of Appeal, First Circuit was entered on /

October, 1994. A timely application for a

writ of certiorari was filed by petitioner

with the Louisiana Supreme Court on the

7th day of November, 1994 and the

application was denied on 13 January,

1995, 648 So.2d 1340 (La. 1995).

Petitioner timely moved for and received

an extension of time from this Court

within which to file a petition for writ

of certiorari up to and including 12 June,

1995. (Application No. A-721), Appendix

page 142). The jurisdiction of this Court

is invoked pursuant to 28 U.S.C. Sec.

1257.

CONSTITUTIONAL PROVISION AND

STATUTES INVOLVED

U.S. Const. art. III, Sec. 2:

"The judicial power shall extend

- to all cases of admiralty and

maritime jurisdiction."

28 U.S.C. Sec. 1333:

"The district courts shall have

original jurisdiction, exclusive of the

courts of the States, of:

(1) Any civil cases of admiralty or

maritime jurisdiction, saving to suitors

in all cases all other remedies to which

they are otherwise entitled."

33 U.S.C. Sec. 902(3):

"The term 'employee' means any person

engaged in maritime employment .. .."

33 U.S.C. Sec. 902(21):

"Unless the context requires

otherwise, the term 'vessel' means any

vessel upon which or in connection with

which any person entitled to benefits

under this chapter suffers injury or death

arising out of or in the course of his

employment, and said vessel's owner, owner

pro hac vice, agent, operator, charter or

bareboat charterer, master, officer or

crew member."

33 U.S.C. Sec. 905(b) (in pertinent

part):

"In the event of injury to a person

covered under this chapter caused by the

negligence of a vessel, then such person,

or anyone otherwise entitled to recover

damages by reason thereof, may bring an

action against such vessel as a third

party in accordance with provisions of

Section 933 of this title ... The

liability of the vessel under this

subsection shall not be based upon the

warranty of seaworthiness or a breach

thereof at the time the injury occurred.

The remedy provided in this subsection

shall be exclusive of all other remedies

against the vessel except remedies

available under this chapter."

Louisiana Statutes Annotated: Revised

Statutes 9:2780:

'A. The legislature finds that an

inequity is foisted on certain contractors

and their employees by the defense or

indemnity provisions, either or both,

contained in some agreements pertaining to

wells for oil, gas, or water, or drilling

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 ‘ics. dalton:

where there is negligence or fault (strict

liability) on the part of the indemitee,

or an agent or employee of the indemnitee,

or an independent contractor who is

directly responsible to the indemnitee."

"B. Any provision contained in,

collateral to, or affecting 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 indemmnitee against loss or

liability for damages arising out of or

resulting from death or bodily injury to

persons, which is caused by or results

from the sole or concurrent negligence or

fault (strict liability) of the

indemitee, or an agent, employee, or an

independent contractor who is directly

responsible to the indemnitee."

STATEMENT OF THE CASE

I, Factual Background.

Petitioner owned an oil well on

inland navigable waters near Belle Isle,

Louisiana. The well became non-producing

and petitioner reworked the well in late

1986 or early 1987. Petitioner then hired

Pressure Readout Technology, Inc.

("Protech") to provide well testers and

equipment to determine the rate of

production of the well, i.e., to doa

“well test". The well consisted of a

Christmas tree with cribbing and there was

no place for any of the test equipment on

the well. Therefore, petitioner chartered

two (2) barges from which to conduct the

well test. The barges were towed to the

location, moored next to the well and 4

pipe was installed to connect the well to

a tank on one of the barges.

The well test was conducted in three days

and at the conclusion the pipe was

disconnected and the barges towed off the

location.

Respondent Steven Bourque was a well

tester employed by Protech for this job.

He worked only on the barges and

periodically recorded the rate of flow

from the well by measuring the contents of

the tank.

Because the well had a history of

producing hydrogen sulfide, a deadly

organic gas, petitioner leased from

respondent Safety Technology and Oilfield

Protectors, Inc. ("Stop") self-contained

breathing apparatus ("SCBA") which would

allow workers to work safely even when

exposed to high levels of H2S. Stop also

provided and installed on the barges

safety equipment such as monitors and

OS Senay Oe ah a ee ey Roeee

alarms to detect and warn of the presence

of ambient hydrogen sulfide if it reached

potentially toxic levels. The lease

agreement between petitioner and Stop

contained an indemnity clause in favor of

petitioner,

On 9 February, 1987, Bourque and a

co-employee were on petitioner's barges

conducting the well test and measuring the

contents of the tanks. Bourque was

exposed to H2S during the well test on a

barge. As a result he Sustained a post

traumatic stress disorder.

II. Proceedings Below.

Bourque and his wife commenced a

state court suit against petitioner on the

grounds it was negligent and strictly

liable under Louisiana law because it was

engaged in well testing in the presence of

a toxic gas which was an ultrahazardous !

activity. They also claimed Stop was |

negligent for having furnished a defective

SCBA.

Petitioner denied liability and by an

amended answer filed on September > 8

igsat/, it affirmatively pleaded that

Bourque was covered by the Longshoremen's

& Harbor Workers' Compensation Act, that

it (petitioner) was the charterer of the

vessel and under 33 U.S.C. Sec. 905(b) it

could not be held strictly liable because

Pe ee Re ee we ep eee eae Ta. oe eee ”

905(b) does not permit recovery except

where the vessel's charterer has been

negligent. Petitioner filed a cross-claim

seeking contractual defense and indemity

from Stop. Stop denied liability on the

Se ee ee ee ee en

1/ Appendix, Pages 1 thru 4.

cross-claim on the basis the defense and

indemnity provisions were void and

unenforceable under the Louisiana Oilfield

Anti-Indemnity Act (LSA:R.S.9:2780). No

responsive pleading was filed by

petitioner to Stop's defense under state

law that the Louisiana Anti-Indemnity Act

applied, but it has Maintained in all

inferior courts that the anti-indemnity

act did not apply because the contract was

maritime in nature,

Aetna Casualty & Surety Company

("Aetna") intervened to assert subrogation

rights as the workmen's compensation

carrier of Protech for benefits provided

to Bourque under the United States Long-

shoremen's & Harbor Workers' Compensation

Act, 33 U.S.C. Sec. 901, et seq.

The state district court after trial

on the merits held in an unpublished

opinion that none of the claims and

defenses were within admiralty juris-

diction which precluded application of 33

U.S.C. Sec. 905(b). Therefore, it applied

Louisiana state law to all claims. The

district court found that neither

petitioner nor Stop were negligent but

that petitioner was strictly liable under

Louisiana law because it was engaged in an

ultrahazardous activity. The district

court held that state law was applicable

and there was no admiralty jurisdiction

because the relevant activity was "well

testing". The fact petitioner was

conducting the well test from barges was

not sufficient to imbue the case with a

maritime flavor and bring it within

the scope of admiralty jurisdiction.

Likewise, the district court held

that petitioner was not entitled to

defense and indemnity from Stop because

the contract was subject to the Louisiana

Oilfield Anti-Indemmity Act, LSA:R.S.

9:2780.

The district court rejected

petitioner's claims that the contract was

enforceable under maritime law on the

grounds that there was no maritime

jurisdiction because the relevant activity

was a well test. 2/

The district court found that Bourque

was guilty of substandard conduct in the

amount of 20%. The district court awarded

damages to Bourque and his wife but

reduced the award by the amount of

Bourque's own negligence. The district

2/ Appendix, Page 15.

court despite finding that Bourque was

paid benefits under the Longshoremen's &

Harbor Workers' Compensation Act reduced

Aetna's award by the amount of Bourque's

negligence pursuant to Louisiana state

law.

Te et eee wee Peat 5 4

An appeal was taken by petitioner to

the Louisiana Court of Appeal, First

Circuit. In an unpublished opinion, the

court of appeal ruled on the 7th of

October, 1994 that the district court

judgment was correct. The court of appeal

rejected petitioner's argument that

because the activity which resulted in

injury to a worker covered under the

United States Longshoremen's & Harbor

Workers' Compensation Act occurred on a

vessel on navigable waters that petitioner

could not be liable on the basis of strict

or absolute liability because it was ‘the

vessel", 3/ Likewise, the court of

appeal rejected petitioner's argument that

because Stop provided safety equipment

used by a worker covered under the United

States Longshoremen's §& Harbor Workers'

Compensation Act on a vessel on navigable

waters, the contract was subject to

maritime law and not the Louisiana

| Oilfield Anti-Indemnity Act. The court

of appeal commented that the plaintiff was

a covered worker under the Longshoremen's

& Harbor Workers' Compensation Act and

intimated that the district court was

wrong to reduce Aetna's recovery by the

amount of Bourque's negligence but that

Aetna could nor assert this error because

it had failed to appeal. 4/

3/ Appendix, Pages 80-81.

4/ Appendix, Pages 138-139.

The district court's ruling while

recognizing that the incident occurred on

a vessel on navigable waters held the case

was not within admiralty jurisdiction

because "... the ‘well testing’ process

was not performed in a manner different

from the way such testing would occur of

(sic) a land based well. The only

difference; according to the testimony

presented, would be the fact that the

equipment could be spread over a wider

area. The essential nature of the

activity is unchanged by its maritime

locale. .. .[{T]Jhe relevant activity,

well testing, ..., is an activity

related to the exploration for and

production of oil and gas. It is not

‘traditional maritime

activity'".2/ The court of appeal not

only accepted the district court's

rationale but added the gloss that "...

the mere use of barges, which, although

typically used for maritime purposes, were

used as platforms for the well testing

equipment in this case, does not

magically convert the activity of well

testing into one with a substantial

relationship to (a) traditional maritime

activity, "o/

The Louisiana Supreme Court refused

to review the case on petitioner's

application for certiorari. Petitioner

then satisfied the judgment but expressly

reserved the right to seek reimbursement

>/ Appendix, Page 14.

6/ Appendix, Pages 81-82.

if certiorari were granted by this Court

and the court of appeal's decision

reversed.

REASONS FOR GRANTING THE PETITION

Petitioner seeks a review by this

Court because the decision of the court of

appeal, although predating, is in

conflict with the decision of this Court

in Grubart v. Great Lakes Dredge & Dock

Co., Usd. . 4 LY §.Ce,. 1043, fis 2.

L.Ed.2d ss (1995). The decision of the

court of appeal also conflicts with the

holding in Sisson v. Ruby, 497 U.S. 358,

110 S.Ct. 2892, 111 L.Ed.2d 292 (1990).

Even though the test for admiralty

jurisdiction was very recently considered

by this Court in February of 1995 in

Grubart and certiorari has been granted in

Yamaha Motor Corporation v. Calhoun,

Ue LES 8.66. ‘ L.Ed.2d

(1995) (No. 94-1387) on a closely allied

issue - the application of state law in

cases of maritime jurisdiction - there

does exist a need for a clearer and

brighter line to determine admiralty

jurisdiction. One view of the decision of

the lower courts in this case is that they

correctly enunciated the elements of the

test but reached the wrong result. Under

this view, while the decision of the court

of appeal would be wrong, this case might

not represent the type of case in which

certiorari would be granted. However, the

fact that the court of appeal could reach

the result that it did highlights the

highly subjective nature of the present

test Grubart notwithstanding.

The present admiralty jurisdiction

test has produced holdings that a

passenger in a helicopter injured in an

emergency helicopter landing on the high

seas has a claim within maritime

jurisdiction’ but a worker covered

under the Longshoremen's & Harbor Workers'

Compensation Act engaged in maritime

employment injured on a vessel on

navigable waters has only a state claim.

Such a test probably should be abandoned

in favor of a test under which all

shipboard accidents on navigable waters

are within admiralty jurisdiction and only

off-vessel accidents must satisfy a

maritime nexus requirement.

Litigants in inferior courts would

benefit from a brighter, clearer test

which will save litigants expense and

conserve valuable judicial resources.

(Grubart, dissent of Justice Thomas

U.S. » 115 S.Ct. at p. 1056). Such a

7/ Green v. Industrial Helicopters,

Inc., 593 So.2d 634, 636-37 (La. 1992).

test was in place prior to Executive Jet

Aviation, Inc. v. City of Cleveland, 409

U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454

(1972). Under that test if the injury

occurred on navigable waters, admiralty

tort jurisdiction was deemed to exist per

se. The pre Executive Jet jurisprudence

was clear and easy to apply. The present

test, as defined in Grubart, is still

subjective and therefore results will

continue to be difficult to predict.

Maritime contract jurisdiction has

not received the same recent attention in

this Court as admiralty tort jurisdiction.

The courts below applied the decisions of

the United States Court of Appeal for the

Fifth Circuit to hold that petitioner's

claims against Stop for contractual

defense and indemmification were subject

to state law. The court of appeal

"borrowed" from Executive Jet the locality

plus nexus" test enunciated for maritime

tort jurisdiction to decide maritime

contract jurisdiction. Again, the court

of appeal defined the relevant activity as

well testing which demonstrates that the

test means different things to different

people. Bourque was engaged in well

testing. However, the equipment furnished

by Stop was safety equipment intended for

the use and protection of a worker covered

by the Longshoremen's & Harbor Workers’

Compensation Act engaged in a maritime

employment on a vessel. Stop did not

furnish the equipment used for the well

Cest. It furnished equipment which was

used on a vessel on navigable waters which

enabled that vessel to perform its

intended function. The well test features

of this case were not relevant to

Stop. 2/

8/ The Louisiana Oilfield

Anti-Indemnity Act, LSA:R.S. 9:2780 would

not preclude indemnity if petitioner is

free of fault. This would be the case if

33 U.S.C. Sec. 905(b) is controlling

because petitioner was found not to be

negligent and ultrahazardous activity

should not be a recognizable cause of

action against a vessel. Hess v. Upper

Mississippi Towing Corp., 559 F.2d 1030

(5th Cir. 1977), rehearing denied 564 F.2d

97, cert. denied 435 U.S. 924, 98 S.Ct.

1489, 55 L.Ed. 518. Therefore, any

holding which in effect relieves

petitioner of fault would probably moot

the admiralty contract jurisdiction

aspects of the case because petitioner

then would be entitled to indemnity from

Stop even if the Louisiana Oilfield

Anti-Indemmity Act applies. See Meloy v.

Conoco, 504 So.2d 833 (La. 1987).

The decision of the court of appeal

was erroneous in allowing recovery for

strict liability because if it had held

that admiralty jurisdiction existed, it

would have been required to hold that 33

U.S.C. Sec. 905(b) controlled Bourque's

right of recovery against petitioner. One

of the changes wrought by the 1972

amendments to the Longshoremen's & Harbor

Workers' Compensation Act was 905(b) which

",.. Yestricted his (the injured employee)

recovery from the shipowner to

negligence." Hess vy. Upper Mississippi

Towing Corp., supra, 559 F.2d 1030 at

1032. Thus, the jurisdictional issue was

paramount - if state law applied, Bourque

had a claim for strict liability; if

admiralty law applied, he did not .2/

State law was applied because the court of

appeal erroneously concluded there was no

admiralty jurisdiction.

The savings to suitors clause allows

cases within the admiralty jurisdiction to

be brought in state courts. However, "the

‘savings to suitors' clause allows state

courts to entertain in personam maritime

causes of action, but in such cases the

extent to which state law may be used to

9/ Offshore Logistics, Inc. v.

Tallentire, 477 U.S. 207, 106 U.S.2485, 91

L.Ed.2d 207 (1986) holds that state law

cannot "supplement" federal maritime law

where Congress has pre-empted the field

with a statute which is applicable.

905(b) is such a statute and it pre-empts

state theories of strict liability. Hess,

supra.

ao Se

remedy maritime injuries is constrained by

a so-called 'reverse-Erie' doctrine which

requires that the substantive remedies

afforded by the States conform to

governing federal maritime standards."

Offshore Logistics, Inv. v. Tallentire,

Supra, 477 U.S. at 222-223, 106 S.Ct.

at 2494,

This case is important because state

courts would benefit from a clear bright

line test for admiralty jurisdiction and

an admonition that the uniformity

requirements of that law May not be

circumvented by jurisdictional means. Or,

stated another way, state courts would

benefit if the jurisdictional test was

easier to apply and the room to stray

eliminated. A clear bright line test like

the locality rule, stripped of the nexus

TR ainda hag eee mee

haere Rpe ones aero —

RIN: let tre or

remedy maritime injuries is constrained by

a so-called 'reverse-Erie' doctrine which

requires that the substantive remedies

afforded by the States conform to

governing federal maritime standards."

Offshore Logistics, Inv. v. Tallentire,

supra, 477 U.S. at 222-223, 106 S.Ct.

at 2494.

This case is important because state

courts would benefit from a clear bright

line test for admiralty jurisdiction and

an admonition that the uniformity

requirements of that law may not be

circumvented by jurisdictional means. Or,

stated another way, state courts would

benefit if the jurisdictional test was

easier to apply and the room to stray

eliminated. A clear bright line test like

the locality rule, stripped of the nexus

requirment save in non vessel related

incidents, would enable inferior courts to

see clearly the path that leads to the

application of the correct law (federal

maritime law) when a putative tort occurs

on a vessel on navigable waters.

I. THE DECISION OF THE STATE COURT

OF APPEAL IS IN CONFLICT WITH

THE HOLDINGS OF THIS COURT.

This Court recently wrote at length

about admiralty jurisdiction. Grubart

traced its evolution from the time when

locality alone ruled the day, to the

departure from the strict locality rule in

Executive Jet Aviation, Inc. v. City of

Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34

L.Ed.2d 454 (1972) which added a "nexus"

requirement and the cases of Foremost Ins.

Co. v. Richardson, 457 U.S. 668, 102 S.Ct.

2654, 73 L.Ed.2d 300 (1982) and Sisson v.

Ruby, 497 U.S. 358, 110 S.Ct. 2892, 111

L.Ed.2d 292 (1990) which explained and

refined the nexus requirements. The nexus

test as applied in Grubart is two pronged,

"whether the incident involved was of the

sort with the potential to disrupt

maritime commerce" _U.S. ___, 115 $.Ct.

at 1050, and “whether the general

character of the activity giving rise to

the incident shows a substantial

relationship to traditional maritime

setivity”, Vee Lis: 3.6e. 2

1051.

There never has been any issue that

the locality aspect of admiralty juris-

diction, tort or contract, is met in this

case. All the activities pertinent to the

case occurred on vessels on navigable

waters. The deciding factor for the

application of state law by the lower

courts was the nexus requirement, the fact

that the activity in question as defined,

well testing, did not relate to a

traditional maritime activity. The court

of appeal did not differentiate principles

between admiralty tort and contract

jurisdiction when considering juris-

diction. It felt for either the

determining factor was that the relevant

activity was a well test and not that

petitioner was conducting this activity

from vessels on navigable waters. The

state court of appeal determined the

“relevant activity" to be the purpose for :

which the activity was conducted and not |

in terms of how the activity was

performed. In so doing, the court of

of this Court in Sisson. It also reached

a result which is contrary to Grubart

appeal failed to follow the prior holding |

although it had not yet been decided when

the state court of appeal ruled. The

error of the court of appeal lay in its

neglect of the consideration of the

“maritime connection enquiries", Grubart,

U.S. ~ $38 B.Ce.. at 1056... te

court of appeal did little more than

engage in a syllogism - well testing is

done on land, when it is done on water it

is done the same way as on land, therefore

well testing on water is a land activity.

Thus, the court of appeal failed to

ne Ee Pa ee

consider the first factor set forth in

Sisson and Grubart and misunderstood the

second.

Te Fe ee an Re ee De SF eee

Pe eee ee

Similar to the City of Chicago's

argument in Grubart that the relevant

activity was the maintaining and operation

of a tunnel, U.S. , SS. SCS, at

1052, the court of appeal in this case

looked to the broader purpose and failed

to consider that petitioner chartered the

barges and utilized them on navigable

waters as storage for a petroleum product.

The court of appeal violated (unknowingly

of course) the admonition of Grubart

against "hyper generalization", U.S.

» 114 S.Ct. at 1052.

The.decision of the court of appeal

here is an excellent example of the

possibility of "whimsy" mentioned in

Grubart, U.S. , 115 8.Ct. 1052.

But, to play the devil's advocate, the

whimsy resulted not from capriciousness

but because of the highly subjective

nature of the test - a subjectivity which

although lessened by Grubart, does still

exist. The court of appeal here was able

to find no admiralty jurisdiction because

it ignored the maritime aspects of

petitioner's activities. "The test turns

on the comparison of traditional maritime

activity to the arguably maritime

character of the tortfeasor's activity in

a given case; the comparison would merely

be frustrated by eliminating the maritime

aspects of the tortfeasor's activity from

consideration." __ U.S. __, 115 S.Ct.

at 1052.

Petitioner utilized vessels to

perform the well test. The well test was

done on navigable waters. The potential

for the disruption of maritime commerce as

a result of petitioner's activities was

not theoretical, it was palpable and real.

The character of the activity of

petitioner at the appropriate level of

generalization (not too high and not too

low) was the use of a vessel to store and

measure a liquid product which is closely

akin to the very traditional activity of

using vessels to store and transport

cargo. The court of appeal ignored these

aspects of petitioner's activity and in so

doing, reached a decision which directly

conflicts with Grubart.

The case for admiralty contract

jurisdiction is stronger. Stop was not

involved in the well test. Its contract .

was to furnish and install equipment on

the vessels for the purpose of allowing a

worker covered by the Longshoremen's &

Harbor Workers' Compensation Act to work

safely on navigable waters. "The only

general rule is that to be a maritime

contract, the subject matter of the

contract must be directly and intimately

related to the operation of a vessel and |

navigation ...". Vol. 1 Schoenbaum,

Admiralty and Maritime Law, 2dEd., Section

3-10, p. 111.

The same admonition against hyper-

generalization in tort cases a la Grubart

should apply in contract cases.

Petitioner leased the equipment from Stop

for use on a vessel in order to render the

vessel a safe place to work for a maritime

worker. Therefore, the contract was

within maritime jurisdiction.

II. THE DECISION OF THE STATE COURT

OF APPEAL IS ERRONEOUS.

The error of the state court of

appeal was in failing to use the proper

methodology as required by Grubart which

entailed consideration of the putative

tortfeasor's maritime activities. This

Court implied in Grubart that ordinarily a

putative tort involving a vessel will fall

within admiralty jurisdiction, W* . BeB

au,» *bh5 8.CO. at 1052. The grounds

enunciated by the state court of appeal

for rejecting admiralty jurisdiction here

fail to show an adequate basis for not

following the general rule.

The court of appeal dismissed

petitioner's vessel related activities on

the basis the vessels were used as

“platforms". (Appendix Page 82). The

Similar situation existed in Grubart

except there the vessel was "fastened to

the river bottom" and here they were

moored. In any event, Grubart established

that even if the vessels were "work

platforms" they retained the status of

"vessels" for admiralty tort purposes.

Grubart, supra, U.s. » £23. 8.Ct.

1049. Thus, the state court of appeal was

wrong to conclude that state law applied

on such a basis.

Petitioner was the "vessel" because

it was the charterer. 33 U.S.C. Sec.

902(2). 33 U.S.C. Sec. 905(b) allows

recovery from a vessel only where it has

been negligent. The term "negligence" is

a term connoting a limitation and by

history, an abnegation of any right of

recovery based on a theory of strict

liability. Hess v. Upper Mississippi

Towing Corp., supra. Had the lower court

held admiralty tort jurisdiction existed,

it should then have held that ultra-

hazardous activity was not a basis for

recovery under 905(b) and that state law

was pre-empted by 905(b). 19/ See

Offshore Logistics, Inc. v. Tallentire,

supra, for discussion of pre-emption.

Therefore, the decision of the state court

of appeal was erroneous and the error was

not harmless.

As previously stated, if Bourque's

judgment against petitioner is reversed,

the contract issues may be moot because

10/ 33 U.S.C. Sec. 905(b) is not

jurisdictional. It only applies if the

underlying claim is within admiralty

jurisdiction. Richendollar v. Diamond M

Drilling Co., Inc., 784 F.2d 580 (5th Cir.

1986), on rehearing 819 F.2d 124, cert.

denied 484 U.S. 944, 108 S.Ct. 331, 98

L.Ed.2d 358, rehearing denied 484 U.S.

1021, 108 S.Ct. 736, 98 L.Ed.2d 684.

even under state law, petitioner would

prevail against Stop and recover its cost

of defense. Meloy v. Conoco, Inc., supra.

If not, the admiralty contract issues

remain and so does the question of whether

the fact that petitioner's activity was

well testing is alone enough to defeat

such jurisdiction.

One thing is clear, while Bourque may

have been involved in the well test, Stop

was not. Its equipment was not used to

test the well. Its equipment was used to

make the vessels a safe place to work.

"(T]he basic rationale for federal

admiralty jurisdiction is ‘protection of

maritime commerce through uniform rules of

decision'...", Grubart, U.S. eee 3 8.

S.Ct. 1053. "{T]he maritime law ...

ordinarly treats an ‘appurtenance'

attached to a vessel in navigable waters

as part of the vessel itself." Grubart,

— U.S. ___, 115 S.Ct. at 1049. Stop

attached some of its equipment to the

vessels to detect H2S. It leased SCBA's

for personnel use on the vessels. SCBA's

are analytically similar to life

preservers. Why the fact that petitioner

was engaged in a well test is relevant to

its contract with Stop is largely

unexplained. The barges could have been

moored nearby the well engaged in some

purely maritime activity and because of

the H2S hazard, personnel would have been

required to wear SCBA's and the vessels

would have been equipped with H2S

monitors. For contract purposes, Oryx's

activity was not well testing - it was the

equipping of a vessel to allow it to

safely perform its mission. The court of

appeal by "hyper-generalization" defined

the different aspects of this case so

broadly as to bring different actors in

different capacities under one rubic -

"well test". It was error to hold the

contract under which the equipment used on

the vessel for non well test purposes was

not a maritime contract.

III. THE QUESTIONS ARE IMPORTANT.

Since the ink is barely dry on

Grubart, the question naturally presents

itself as to why another maritime

jurisdiction case should be considered at

this time. The answer is twofold: (1) an

apparent increasing number of admiralty

cases are being filed in state court under

the savings to suitors clause and these

courts would benefit from a completely

objective tort jurisdictional test, and

(2) Grubart did not address admiralty

contract jurisdiction.

A review of the West digest system

shows over the past ten or fifteen years,

state courts are more and more hearing !

cases in which admiralty issues are |

implicated. State district courts, unlike

federal district courts, have general

jurisdiction. The case load of a state

court may number in the thousands. With

more cases and sometimes less resources,

state courts would benefit from a clear

bright line test such as all shipboard

accidents on navigable waters are within

admiralty tort jurisdiction per se and the

hexus requirement ueed only be considered

in off-ship incidents such as aircraft

crashes,

The need to select the appropriate

level of generalization with a focus on

the putative tortfeasors' vessel related

activities may be something which

"admiralty lawyers understand vensouedty

well", Grubart, 115 S.Ct. at 1055. This

case shows the difficulty state courts

have with the issue. The district judge

in this case was a Louisiana State

University Law School professor sitting ad

hoc. Yet, his carefully crafted opinion

reflects confusion about admiralty tort

and contract jurisdiction.

Litigants and state courts would

benefit from a test which they can easily

understand and apply. A bright line test

for jurisdiction will enable litigants to

know when to retain admiralty lawyers.

With the present test, non admiralty

lawyers and judges will continue to be

’ ,

tempted to apply the law they know - state

law - in close cases or even in cases not

so close. Existing practice in state

court does not necessarily bear out the

observations in Grubart that the

“customary practice in seeing jurisdiction

as the norm when the tort originates with

a vessel in navigable waters, and in

treating departures from the locality

principle as the exception". 115 S.Ct. at

1055. The need will still exist post

Grubart for a test which is wholly

objective at least insofar as shipboard

incidents are concerned.

The case is also important from the

admiralty contract jurisdiction

Standpoint. The courts of appeal here

demonstrated a basic lack of understanding

about when a contract falls within

admiralty jurisdiction. The court of

appeal utterly failed to consider that

petitioner contracted with Stop for

equipment that was used on a vessel. The

nexus requirement for contract juris-

diction as defined by the admiralty tort

jurisdiction cases will cause courts to

continue to grapple with the problem of

whether an agreement to equip a vessel

should per se be recognized as within

admiralty contract jurisdiction.

5 EATER es DRM RENE SPIELE oe Le

CONCLUSION

Petitioner prays that certiorari

SOAR A Tyg Cr PRE RR EET OEE ONE BETS LRTI!

issue to the Louisiana Court of Appeal,

First Circuit for the foregoing reasons.

em 9

Respectfully submitted

John Blackwell,

Counsel of Record

NE eran ee OR A IES ALS 9

GIBBENS, BLACKWELL & STEVENS

ree ererer ogee

P. O. Drawer 13910

New Iberia, LA 70562-3910

Tel: (318) 367-8517

Counsel for Petitioner

LNT OE FOE RY BRN ONE OMEN EE = + Pree sa

By__}lan, :

John Blackwell

NO.

SUPREME COURT OF THE UNITED STATFS

October Term, 1994

ORYX ENERGY COMPANY,

Petitioner,

Vv.

YVETTE BOURQUE, WIFE OF AND STEVEN

BOURQUE, SAFETY TECHNOLOGY AND OILFIELD

PROTECTORS, INC. and AETNA CASUALTY

& SURETY COMPANY,

Respondents.

APPENDIX

INDEX FOR APPENDIX

Page

AMENDED ANSWER--------~--...___ l

REASONS FOR JUDGMENT OF STATE

TRIAL COURT-----~...............- 5

JUDGMENT OF STATE TRIAL COURT--- 51

OPINION OF STATE COURT OF

APPEAL----------.2--. 2222-22-88 58

DENIAL OF WRIT OF CERTIORARI BY

SUPREME COURT OF LOUISIANA------ 140

NOTICE OF EXTENSION OF TIME

TO FILE APPLICATION FOR

CERTIORARI << <00cc~s-ensnee cucu e 142

YVETTE BOURQUE, : NO. 82,516-E

WIFE OF/AND

STEVE BOURQUE : 16TH JUDICIAL

DISTRICT COURT

PARISH OF ST. MARY

SUN GAS COMPANY,

INC., ET AL : STATE OF LOUISIANA

AMENDED ANSWER

Defendants, SUN GAS COMPANY, INC.,

SUN EXPLORATION AND PRODUCTION COMPANY and

SUN OPERATING LIMITED PARTNERSHIP,

appearing through undersigned counsel,

amend their answer to the petitions of

plaintiff as follows:

By adding as an additional paragraph

the following:

"At all times material herein,

plaintiff was working on a barge on

navigable waters in a maritime employment

such that he was a covered worker under

the United States Longshoremen's and

Harbor Workers' Compensation Act, 33

U.S.C. Section 901, et seq., that his

claim and all incidental claims are

governed by the maritime law and in

particular 33 U.S.C. Section 901, et seq,

to the exclusion of all state law claims

including all claims under Civil Code

Articies 2315, 2317, 2322, 2313.3 ane

further to the exclusion of any liability

for engaging in an ultrahazardous activity

and further defendants aver that at all

times material herein, they were the

"vessel".

WHEREFORE, defendants, SUN GAS

COMPANY, INC., SUN EXPLORATION AND

PRODUCTION COMPANY and SUN OPERATING

LIMITED PARTNERSHIP, pray that after due

proceedings had, the demands of Steve

Bourque and Yvette Bourque be rejected and

LE — eee

there be judgment in favor of defendants

dismissing plaintiff's petition with

prejudice at petitioner's cost and for all

other relief to which defendants are

entitled in the premises.

GIBBENS & BLACKWELL

P. O. Drawer 13910

New Iberia, Louisiana 70562-3910

Telephone: (318) 367-8517

Attorneys for Sun Gas Company,

Inc., Sun Exploration and

Production Company and Sun

Operating Limited Partnership

By/s/ John Blackwell

John Blackwell

ORDER

Considering the foregoing,

IT IS HEREBY ORDERED that defendants

be and the same are hereby allowed to file

the foregoing amended answer.

Franklin, Louisiana, this 2lst day of

September, 1988.

/s/ M. J. McNulty, Jr.

JUDGE, 16TH JUDICIAL DISTRICT COURT

CERTIFICATE OF SERVICE

I hereby certify that a copy of the

foregoing Amended Answer has this date

been forwarded to all counsel of record by

depositing a copy of same in the U.S.

Mail, postage prepaid.

New Iberia, Louisiana, this 20th day

of September, 1988.

/s/ John Blackwell

John Blackwell

YVETTE BOURQUE and DOCKET NO: 82,516,

STEVEN BOURQUE DIVISION G

16TH JUDICIAL

VERSUS DISTRICT COURT

PARISH OF ST. MARY

SUN GAS CO., ET AL STATE OF LOUISIANA

This is a tort suit filed by Yvette

Bourque and Steven Gerard Bourque against

Sun Gas (now Oryx Energy) and STOP

(Safety Technology Oilfield Protectors),

both corporate defendants having their

principal place of business in Texas but

operating in Louisiana. Aetna Casualty

and Surety intervened as the worker's

compensation carrier for the company

(Pro Tech) which employed Steven Bourque

at the time of the incident which gave

rise to this suit. Steven Bourque seeks

damages for his injury, his medical

expenses (past and future), and his lost

wages (past and future). Aetna seeks to

recover from the two defendants for

reimbursement for amounts paid to Steven

Bourque in weekly indemnity benefits and

medical expenses. Those amounts reached

a total of $106,515.53 by the time of the

trial of this matter - and Aetna seeks

recovery of additional benefits which may

be paid from the date of trial forward

until the case is ultimately resolved.

Yvette Bourque has claimed damages

for loss of consortium.

sa tae Bt

The incident which gave rise to this

action occurred on February 9, 1987 as the

plaintiff Steven Bourque and another

employee of Pro Tech (a company

specializing in contracting to perform

"well testing" activities) were engaged in

what was hoped to be a routine test of a

well located at Belle Isle #13 in the

navigable waters surrounding the well.

The purpose of the test was to

determine the productive capacity of the

well for the purpose of deciding whether

to bring it back into production. This

process required the "flowing" of the well

and the test of levels of fluids (oil and

other fluids) which would flow through

tanks especially rigged and designed for

that purpose.

When such wells are tested, an ever

present danger from the possible presence

of hydrogen sulfide exists. Hydrogen

sulfide (H2S) is, as was described by the

various experts, a colorless gas which is

not succeptable of olfactory detection

except at very low levels of

concentration. H2S is apparently a common

byproduct of the disintegration of organic

Matter and is not infrequently found in

oil below the surface. As the oil is

released into a tank, the H2S separates

from the liquid solvent and forms a deadly

layer of gas. The gas is referred to by

experts as a “cytachrome oxidase

inhibitor" which interferes with the

ability of human cells to utilize oxygen.

The brain and the central nervous system

are described as "target organs" which are

very susceptible to its effects.

Because the "well testing" techniques

common in the industry in 1987, and today,

required a man to climb atop the test tank

and lift a hatch (called a "thief hatch")

in order to drop a metal strap into the

test tank as a means of measuring

productive capacity, the danger of

encountering H2S arising from the open

hatch is ever present when testing a "sour

well," i.e. one in which H2S is dissolved

in the subsurface oil reserves.

As a result of the danger of H2S

exposure, well testers are trained in the

dangerous properties of H2S and are

trained to use a self contained breathing

apparatus (SCBA) designed to permit a

re ~

worker with reasonable safety to enter an

IDLH atmosphere (immediately dangerous to

life and health) containing toxic levels

of H2S. Companies such as defendant STOP

provide such equipment and, if necessary,

training to employees of companies, such

as Pro Tech (plaintiff's employer) which

specialize in performing such tests for

oil companies such as defendant, Sun Gas.

The well test at Belle Isle #13 in

February of 1987 was being conducted with

an awareness of the presence of H2S.

Tests in 1981 indicated that the well was

"sour" and, although the degree of

concentration is a sharply contested

matter, all of the evidence clearly shows

that H2S was found to be present in

potentially toxic concentrations. The

uncontested evidence shows that sun Gas

contracted with STOP to provide SCBA

equipment and monitors to detect and sound

warning alarms if concentrations of a

relatively low amounts of H2S were

detected in the atmosphere.

The contract between STOP and Sun Gas

contains an indemnity agreement by which

STOP agreed to indemnify Sun Gas against

claims arising from the testing of the

well. Whether that contractual agreement

is enforceable as between the parties

(STOP and Sun Gas) in view of the

Louisiana anti-indemmity provisions of La.

R.S. 9:2780 is also an issue in this

litigation.

In order to test the well at Belle

Isle #13, the well testing equipment and

operations were set up on two barges which

were moved adjacent to one another and

adjacent to the well because the well was

located in navigable waters. Thus,

whether this case should be governed by

principles of Louisiana tort law or by

maritime law is also an issue.

The defendants have sharply contested

bic

plaintiff's claim that he was exposed to

the H2S. They further raise questions

concerning whether any of plaintiff's

alleged neurological defects were the

product of H2S exposure (if plaintiff was

exposed) or rather were the result of

pre-existing injury, or malingering.

The uncontested facts show that at

about 10:30 a.m., the plaintiff (Steven

Bourque) and Ricky Rochel, a fellow

employee of Pro Tech, donned self

contained breathing gear and walked from

the "safe barge" to the "work barge" on

which the well testing apparatus was

located for the purpose of conducting a

test. Steve Bourque climbed to the top of

the tank, opened the "thief hatch" and

dropped the metal strap into the tank. He

rolled up the strap, closed the hatch, and

descended the ladder to the deck of the

barge, and collapsed. Rochel and others

saw Bourque collapse and ran to this aid.

They helped Bourque to his feet and

carried him from the work barge to the

safe barge. Medical assistance was

summoned and Bourque was eventually

transported by boat and then by helicopter

to the Lakewood Hospital Emergency room in

Morgan City, Louisiana. Bourque was

examined and eventually released shortly

thereafter. He was driven home and was

instructed to contact his family

physician.

Thereafter began a series of events

which plaintiffs contend were the result

of H2S exposure. Subsequently, this suit

was filed.

Although the incident in question

occurred aboard a barge moved adjacent to

a well locexed in navigable waters, this

court is convinced that Louisiana tort

law, not general maritime or admiralty

law, applies. The mere proximity of the

incident to navigable waters and the mere

fact that the incident occurred on a barge

located in such waters does not give the

activity the "salty flavor" required in

order for federal maritime law to govern.

As Judge Brown said in Domingue v. Ocean

Drilling, 923 F. 2d 393 (5th Cir. 1991),

"A specialty services contract (Wire

Line Services) related to oil and

gas exploration and drilling takes

on a salty flavor when the perform-

ance of the contract is more than

incidently related to the execution

of the vessel's mission." Id. at

396.

In Domingue, the court held that wire

line services are “distinctly non-maritime

in nature." Id. at 396, citing Thurmond

v. Delta Wells Surveyors, 836 F. 2d 952

(Sth Cir. 1988). See also Bergeron v.

Blake Drilling, 599 So. 24 827 (La. App.

Ist Cir. 1992). As Judge Savoie noted in

Bergeron, the Supreme Court of the United

States has set forth "two requirements for

admiralty jurisdiction: maritime locality

and maritime flavor." Id. at 835.

Although maritime locality is certainly

present here, the "well testing" process

was not performed in a manner different

from the way such testing would occur of a

land based well. The only difference,

according to the testimony presented,

would be the fact that the equipment could

be spread over a wider area. The

essential nature of the activity is

unchanged by its mere maritime locale.

The mere fact that there were warnings for

watercraft to remain out of the area (due

to the potential danger from possible H2S

discharge from the vents of the well

testing apparatus) does not govern. As

noted in Bergeron, even if there is a

potential hazard to maritime activity,

"the party seeking to invoke admiralty

jurisdiction must show a substantial

relationship between the activity giving

rise to the incident and traditional

maritime activity ...." Bergeron at

836. As stated earlier, the relevant

activity, well testing, like wire line

services, is an activity related to the

exploration for and production of oil and

gas. It is not "traditional maritime

activity."

Therefore, from this conclusion, this

court must find that the Louisiana law of

torts governs. Further, this court

reaffirms its earlier determination that

the provisions of the Louisiana Oilfield

Indemnity Act have the effect of rendering

void the indemnity provision of the

contract between Sun Gas and STOP. See

Matte v. Zapafa Offshore, 784 F. 2d 628

("a Cir. 1986); Lirette v. Union Texas

Petroleum, 467 So. 2d 29 (La. App. lst

Cir. 1985). The fact that the contract

itself provides that Texas law (which does

not prohibit such indemnity agreements) is

to govern in construing the contract is of

no avail to Sun Gas. Although Louisiana

does permit parties to select the law

which controls their contractual

relationship, this right must yield when

the "choice of law" provision violates the

public policy of the State of Louisiana

(as expressed in La. R.S. 9:2780). See

Matte, above; Lirette, above. As Judge

Politz said in Matte, “we will not

participate in such an obvious end-run of

the Louisiana Legislature's effort to

improve oilfield safety." Matte at 631.

Because the law of Louisiana controls

the determination of the questions of law,

the nature of the activity becomes 4

prominent factor in this litigation.

Plaintiffs urge that “well testing" of

this type, like the wire line services

involved in Bergeron, should be deemed

“ultra hazardous". See Kent v. Gulf

States, 418 So.2d 493 (La. 1982); Bergeron

v. Blake Drilling, above. As Justice

Lemmon said in Kent, such activities,

while reasonable and socially beneficial,

create a "high enough" risk of harm that

"the party ought not undertake the

activity without assuming the

consequences." Kent at 498. See also T.

Galligan, Strict Liability in Action: The

Truncated Learned Hand Formula, 52 La. L.

Rev. 323 (1991). Im Kent, the court said:

"For these particular activities,

Louisiana courts have imposed an

absolute (emphasis in original)

liability . . ., which virtually

makes the enterpriser an insurer.

The enterpriser, whether or not

negligent in any respect, causes

the damage, and the injured party

recovers simply by proving damage

and causation (emphasis in

original. In these cases of

absolute liability (or liability

without proof of negligence or

other fault), liability is

imposed as a matter of policy when

harm results from the risks inherent

in the nature of the activity ....

Kent, at 498.