Petition for Writ of Certiorari — Seacor Marine LLC v. Grand Isle Shipyard, Inc.

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Supreme Court US.

091077 HAR 8- 2010

No. 09-

Teena OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

ARE

SEACOR MARINE LLC,

Petitioner,

GRAND ISLE SHIPYARD, INC. AND

GRAY INSURANCE COMPANY,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES Court OF APPEALS FOR THE Firtu Circuit

PETITION FOR A WRIT OF CERTIORARI

Gary A. HEMPHILL

Counsel of Record

Davip B. LAWTON

LUTHER T. MUNFORD

PHELPS DunBAR LLP

365 Canal! Street, Suite 2000

New Orleans, Louisiana 70130-6534

(504) 566-1311

hemphilg(@phelps.com

Attorneys for Petitioner

228531 g

COUNSEL PRESS

(800) 274-3321 »* (800) 359-6859

QUESTIONS PRESENTED

1. Whether application of state law to a maritime

indemnity action arising ont of a personal injury on a

vessel in navigation on the high seas contravenes this

Court’s holding in Offshore Logistics, Inc. v. Talientire

that in the Outer Continental Shelf Lands Act Congress

intended the location of an accident, not the status of

the injured worker, to determine whether state or

maritime law applies.

2. Whether application of state law to defeat an

otherwise enforceable maritime indemnity claim

conflicts with the Constitutional requirement of

uniformity in the general maritime law.

LIST OF PARTIES AND

CORPORATE DISCLOSURE STATEMENT

The caption of this matter contains the name of all

parties to the proceeding. Seacor Marine LLC is wholly

owned by Seacor Holdings, Inc., a publicly traded

corporation.

iit

TABLE OF CONTENTS

Page

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

LIST OF PARTIES AND CORPORATE

DISCLOSURE STATEMENT ............. il

TABLE OF CONTENTS .................... iii

TABLE OF APPENDICES .................. Vv

iABLE OF CITED AUTHORITIES ......... vi

CITATIONS OF OPINIONS BELOW ........ 1

STATEMENT OF JURISDICTION .......... 1

RELEVANT PROVISIONS ................. 1

STATEMENT OF THE CASE ............... 3

CU Nae cass ewesddesa wes 3

Proceedings Below ..................-.--.- 7

TN cat ewebeecen g

Contents

ARGUMENT AND REASONS FOR

GRANTING THE PETITION ............. 11

1. Whether application of state law to a

maritime indemnity action arising out of

a personal injury on a vessel in navigation

on the high seas contravenes this Court’s

holding in Offshore Logistics, Inc. v.

Tallentire that in the Outer Continental

Shelf Lands Act Congress intended the

location of an accident, not the status of

the injured worker, to determine whether

state or maritime law applies. .......... 11

2. Whether application of state law to defeat

an otherwise enforceable maritime

indemnity claim conflicts with the

Constitutional requirement of uniformity

in the general maritime law. ............ 17

eR SR Sen me ry Somerton mee 21

TABLE OFAPPENDICES

Appendix A — Opinion Of The United States

Court Of Appeals For The Fifth Circuit, Filed

EGY UE cob bceeceesuceeeeverssees la

Appendix B — Opinion Of The United States

Court Of Appeals For The Fifth Circuit, Filed

BOEONNUOE THe, DOOD coc ecco cvccessersvvvees 77a

Appendix C — Judgment Of The United States

District Court For The Eastern District Of

Louisiana, Filed October 25, 2007 .......... 96a

Appendix D — Order And Reasons Of The

United States District Court For The Eastern

District OF LOWMBORR 2. cece cccvccvceeeucves 98a

TABLE GF CITED AUTHORITIES

Page

FEDERAL CASES

Angelina Casualty Co. v. Exxon Corp., U.S.A.,

Inc., 876 F.2d 40 (5th Cir. 1989) ............. 10

Grand Isle Shipyard, Inc. v. Seacor Marine,

LLC., 589 F.3d 778 (5th Cir. 2009) ........... 16

Lefler v. Atlantic Richfield Co., 785 F.2d 1341

gS 10

Norfolk S. Railway v. Kirby, 543 U.S. 14 (2004)

pc ta re 11, 17, 18, 19

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

sci aks see ekeetseucncese passim

The GOTHLAND, 64 U.S. 491 (1859) ......... 10

FEDERAL STATUTES

43 U.S.C. §§ 1831-1356 (West 2009) ........... 3

46 U.S.C.A. §§ 30301-30306 (West 2009) ....... 13

oe wad se eco csv sss ¥endeews l

EO re 2, $11, 2

La. Rev. Stat. Ann. § 9:2780 (1995) ............ &

vil

Cited Authorities

MISCELLANEOUS

David W. Robertson, The Outer Continental

Shelf Lands Act’s Provisions on

Jurisdiction, Remedies, and Choice of Law:

Correcting the Fifth Circuit’s Mistakes, 38 J.

Mar. L. & Com. 487, 489 (2007) .............

Diogenis C. Panagiotis, Offshore Update—F ive

Years After Passage: Contractual Indemnity,

Defense and Insurance Under the Louisiana

Oilfield Indemnitu Act, 10 Mar. Law. 203, 204

CE Sas a eGR RRR EA EO TNT sere etek ee

Donald T. Karmer, Annotation, Construction

and Application of § 4 of Outer Continental

Shelf Lands Act of 1953 (43 U.S.C_A. § 1333),

Relating to Laws Applicable to Subsoil and

Seabed of Outer Continental Shelf and

Artificial Islands and Fixed Structures

Erected Thereon, 163 A.L.R. 163 A.L.R. Fed.

SOE cacag cuv crue ueweu es ones eeae ares

Julia M. Adams & Karen K. Milhollin, /udemnity

on the Outer Continental Shelf—A Practical

Primer, 27 Tul. Mar. L.J. 43, 45 (2002) ......

Kenneth G. Engerrand, Primer of Remedies on

the Outer Continental Shelf , 4 Loy. Mar. 19,

DD su ces cov concedes sceneesksuber eae?

Vili

Cited Authorities

Page

Vincent J. Foley, Note, Defining “Operation” for

Jurisdiction Pursuant to the Outer

Continental Shelf Lands Act: EP Operating

Ltd. Partnership v. Placid Oil Co., 19 Tul. Mar.

Sa STE vad éve sactereteceuveess 4

CITATIONS OF OPINIONS BELOW

The district court opinion is reported at Grand Isle

Shipyard, Inc. v. Seacor Marine, LLC, No. 06-1405,

2007 WL 2874808 (E.D. La. Sept. 26, 2007). The panel

decision of the United States Court of Appeals for the

Fifth Circuit reversing the district court was filed

September 22, 2008 and is reported at 543 F.3d 256 (5th

Cir. 2008). The Fifth Circuit granted rehearing en banc

and affirmed the ruling of the district court by its ruling

dated December 8, 2009 and revised December 10, 2009.

The ex banc decision is reported at 589 F.3d 778 (5th

Cir. 2009).

STATEMENT OF JURISDICTION

This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

RELEVANT PROVISIONS

Title 43. Public Lands

Chapter 29. Submerged Lands

Subchapter III. Outer Continental Shelf Lands

§ 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 extended to the

subsoil and seabed of the outer Continental Shelf and

to all artificial islands, and all installations and other

devices permanently or temporarily attached to the

seabed, which may be erected thereon for the purpose

of exploring for, developing, or producing resources

therefrom, or any such installation or other device (other

than a ship or vessel) for the purpose 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...

(2)(A) 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 hereafter adopted,

amended, or repealed are declared to be the law of the

United States for that portion of the subsoil and seabed

of the outer Continental 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, ....

STATEMENT OF THE CASE

Summary

This appeal presents issues of profound importance

to all facets of the maritime and offshore oil and gas

industries. It is not merely an isolated contractual

dispute between the parties to this case, but has

far-reaching implications for the interpretation of an

important federal statute and for overarching issues of

uniformity in the maritime law.

After more than twenty five years of admitted

confusion in its decisions interpreting the state law

incorporation clause of the Outer Continental Shelf

Lands Act’, the Fifth Circuit granted rehearing en bane

in this case for the avowed purpose of resolving “at least

some of the conflict among our cases.”* The result is a

' 43 U.S.C. §§ 1331-1356 (West 2009) (““OCSLA”)

* Legal commentators have joined in this criticism. See,

e.g. David W. Robertson, The Outer Continental Shelf Lands

Act’s Provisions on Jurisdiction, Remedies, and Choice of Law:

Correcting the Fifth Circuit’s Mistakes, 38 J. Mar. L. & Com.

487, 489 (2007) (“infamously chaotic”); Donald T. Karmer,

Annotation, Construction and Application of § 4 of Outer

Continental Shelf Lands Act of 1953 (43 U.S.C_A. § 1333), Relating

to Laws Applicable to Subsoil and Seabed of Outer Continental

Shelf and Artificial Islands and Fixed Structures Erected

Thereon, 163 A.L.R. 163 A.L.R. Fed. 1, 33 (2000) (“chaos”);

Kenneth G. Engerrand, Primer of Remedies on the Outer

Continental Shelf , 4 Loy. Mar. 19 L.J. 19, 20 (2005) (“bewildering”

“inconsistent” “perplexing”); Julia M. Adams & Karen K.

Milhollin, Jndemnity on the Outer Continental Shelf—A

Practical Primer, 27 Tul. Mar. L.J. 48, 45 (2002) (“chaos”);

(Cont'd)

contrived test that greatly expands the scope of OCSLA

far beyond what Congress intended and the statute

allows, conflicts with the decision of this Court in

Offshore Logistics, Inc. v. Tallentire® and inevitably will

destroy the uniform application of fundamentally

important rules of maritime law pertaining to

contractual indemnity obligations.

Tallentire held that federal maritime law, not the

law of an oil platform state, governed when an oil

platform worker was injured not on the platform but on

the high seas. The Court said the location of the accident

on the high seas required the application of federal

maritime law, and rejected the Fifth Circuit’s ruling that

the worker’s job status as a platform worker was

determinative and required application of the law of the

platform state. In reversing the Fifth Circuit in

Tallentire, this Court construed OCSLA to confine the

application of state law to accidents that took place on

the platform or on other Outer Continental Shelf

(“OCS”) situses enumerated in the statute. 4

(Cont’d)

Diogenis C. Panagiotis, Offshore Update—Five Years After

Passage: Contractual Indemnity, Defense and Insurance Under

the Louisiana Oilfield Indemnity Act, 10 Mar. Law. 203, 204

(1985) (“various interpretations”); Vincent J. Foley, Note,

Defining “Operation” for Jurisdiction Pursuant to the Outer

Continental Shelf Lands Act: EP Operating Ltd. Partnership v.

Placid Oil Co., 19 Tul. Mar. L.J. 165, 167 (1994) (“disagreement

among courts”).

% Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207 (1986).

‘4 The author of the (reversed) Fifth Circuit opinion in

Tallentire also wrote the en banc opinion in this case.

In this case, the accident took place on the high seas,

and it is undisputed that federal maritime law governs

the ship owner’s liability to the injured platform worker.

Nevertheless, the Fifth Circuit refused to use

Tallentire’s “location of the accident” test on the ground

that the issue was not the shipowner’s liability but rather

the shipowner’s right to shift that liability to the injured

worker’s employer pursuant to contracts in which each

indemnified the other for injuries to their respective

employees. Charting the same course it had adopted —

and this Court rejected — in Tallentire, the Fifth Circuit

said that if the contract of the injured worker’s employer

called for a “majority” of his work to be done on

platforms, i.e. that he was properly classified as a

“platform worker,” then the law of the platform state

applied regardless of the fact the injury occurred on a

vessel in navigation.

Employing the law of that state, Louisiana, the Fifth

Circuit invalidated the indemnity agreement even

though the agreement would have been enforced if

federal maritime law had been applied. Ironically, under

the Fifth Circuit’s test, if the situation were reversed,

the ship owner would still have to indemnify the platform

owner if a seaman were injured on a platform because

the majority of aseaman’s work is done aboard ship and

federal maritime law would enforce the ship owner’s

contractual indemnity obligation.

Applying the test created by the Fifth Circuit in this

case will inevitably result in inconsistent results in other

maritime cases when injuries happen on board vessels

to workers that are assigned to platforms in other States

whose law is different from the state law applied here.

This is important because this case is not an isolated

dispute of interest only to the parties to the litigation.

If nothing else, the sheer volume of OCSLA indemnity

cases arising out of Louisiana and Texas shows that the

issues involved in this appeal are of profound interest

to all facets of the maritime and offshore oil and gus

industries. Further, the widespread critical attention

these cases have received in the professional and

academic literature shows that the question of how to

interpret this important federal statute remains

unsettled, despite the efforts of the lower courts. The

conflicting results this uncertainty inevitably produces

will only increase as offshore oil and gas exploration

expands into other states, making it all the more

important that this Court establish a bright line rule of

uniform statutory construction.

Petitioner respectfully submits, therefore, that this

Court should exercise its discretion to issue the writ of

certiorari in order to correct the Fifth Circuit’s

circumvention of Tallentire and to establish a uniform

maritime rule that is consistent with this Court’s prior

decisions and the express language of the OCSLA.

While petitioner recognizes that a conflict among

the circuits is an important factor in the decision whether

to grant certiorari, the simple fact of where oil platforms

are primarily located currently — the Gulf of Mexico

offshore Louisiana and Texas — explains why no other

circuit has yet considered these important questions of

statutory construction. It is inevitable that when they

do, though, different outcomes will result since different

state law will be applied.

Proceedings Below

This maritime contractual indemnity dispute arises

out of a personal injury claim by Denny Neil, an offshore

employee of respondent Grand Isle Shipyard, Inc.

(“Grand Isle”). Neil slipped and fell on the deck of the

offshore service vessel SEA HORSE IV on April 28,

2005, while he was being transported to work on an

Outer Continental Shelf fixed platform located

approximately 11 miles offshore. Petitioner Seacor

Marine, L.L.C. (“Seacor”), is the owner of the SEA

HORSE IV.

At the time of Neil’s injury on the vessel, the SEA

HORSE IV was operating outside Louisiana in the

navigable waters of the Gulf of Mexico above the OCS.

That is to say that the injury which spawned this

indemnity dispute arose on a vessel navigating on the

high seas and which was not at the time physically

connected either to the OCS or to any facility erected

on it.

Neil sued Seacor in the United States District Court

for the Southern District of Texas. He asserted a

maritime claim for vessel negligence under § 905(b) of

the Longshore and Harbor Workers Compensation Act.

That vessel negligence claim was settled in due course

by Seacor and is not at issue in this case.

Upon the filing of suit by Neil, Seacor tendered its

defense and indemnity to Grand Isle on the basis of

contracts described below. Seacor also claimed from

respondent Gray Insurance Company (“Gray”) the

benefit of the first party liability insurance coverage that

Grand Isle was contractually required to provide to

Seacor. Seacor’s tender and its separate claim for

insurance coverage were denied.

Asserting diversity jurisdiction, Grand Isle and Gray

then filed a declaratory judgment action in the United

States District Court for the Eastern District of

Louisiana. They sought a determination that the

relevant provisions of the indemnity contracts were

unenforceable by virtue of the Louisiana Oilfield

Indemnity Act®, which respondents claimed was

applicable by virtue of the so-called state law

incorporation clause of the OCSLA.®

Cross motions for summary judgment were filed on

the limited question of whether state law applied to an

indemnity obligation arising from an injury on a vessel

on the high seas when the injured party was an OCSLA

worker. The district court granted respondent’s motion,

finding that Louisiana law applied notwithstanding that

the underlying accident giving rise to the claim occurred

on a vessel and without discussion of this Court’s holding

in Tallentire, which held that Congress intended

OCSLA’s application to be principally dependent on the

location of the accident rather than the status of the

person claiming injury.

Relying in substantial part on Tallentire, a panel of

the Fifth Circuit unanimously reversed, holding that

Louisiana law did not apply via OCSLA and that the

> La. Rev. Stat. Ann. § 9:2780 (1995).

indemnity was enforceable as a matter of federal,

maritime law.

A petition for rehearing en banc was granted. With

four judges dissenting, a majority of the court affirmed

the district court decision in favor of respondents. The

court concluded, without citation of authority, that

Tallentire was distinguishable because it was a tort as

opposed to a contract case, and then created and

employed an entirely new “focus-of-the-contract test”

to determine the scope of application of OCSLA.

The Contracts

The indemnity and insurance obligations on which

petitioner’s claims are based are found in two separate

BP American Production Company (“BP) contracts that

were drafted to be read in pari materia and to create

reciprocal third party beneficiary obligations by and

between Seacor and Grand Isle. If enforced, they make

each party financially responsible for injury claims

brought by their own employees, irrespective of fault.‘

First, in October 20038, respondent Grand Isle and

BP executed a Master Maintenance and Construction

Services Contract ( the “MMCSC”) pursuant to which

Grand Isle provided labor and construction related

services to BP’s fixed offshore platforms. Second, in

January, 2004, BP and petitioner Seacor entered into a

Vessel Charter Contract (the “Charter”) pursuant to

In the offshore industry, where such provisions are very

common, these mutual indemnity obligations are referred to as

“knock for knock” agreements.

which Seacor supplied vessels and crew to BP in service

of BP’s offshore activities. The mission of the SEA

HORSE IV, the vessel which Seacor utilized to perform

its contractual obligation to BB was to provide marine

transportation to BP and its subcontractors, including

Grand Isle. This Charter is therefore a maritime

contract.*®

Both contracts contain choice of law provisions

calling for application of the general maritime law, which

allows indemnity.’ It is not disputed that the contracts

contain reciprocal indemnity provisions which would

require Grand Isle to indemnify Seacor for the costs

incurred in settling Neil’s claim unless indemnity is

prohibited by Louisiana state law. Additionally, both

contracts contain virtually identical provisions with

respect to the rights of third parties:

It is the intent of the Parties herein to

create a third party beneficiary obligation in

favor of |BP’s} other contractors who have

included reciprocal cross indemnity provisions

in their respective contracts with [BP].

Consequently, the two contracts must be viewed as

a single, unified maritime contract just as were the

® See, e.g., The GOTHLAND, 64 US. 491, 492 (1859).

* See Section 24.01 of the MMCSC and Section 28.01 of the

Charter. See also Angelina Cas. Co. v. Exxon Corp., U.S.A., Inc.,

876 F.2d 40, 42 (5th Cir. 1989); Lefler v. Atlantic Richfield Co.,

785 F.2d 1341, 1343 (5th Cir. 1986).

intermodal contracts in Norfolk Southern Railway

Company v. Kirby.'°

ARGUMENT AND REASONS FOR

GRANTING THE PETITION

1. Whether application of state law to a

maritime indemnity action arising out of a

personal injury on a vessel in navigation on

the high seas contravenes this Court’s holding

in Offshore Logistics, Inc. v. Tallentire that

in the Outer Continental Shelf Lands Act

Congress intended the location of an

accident, not the status of the injured worker,

to determine whether state or maritime law

applies.

Because Denny Neil’s accident occurred beyond

Louisiana territorial waters, Louisiana law can be

applicable to disputes arising out of his claim only if state

law is applicable as surrogate federal law under the state

law incorporation clause of OCSLA."

The Fifth Circuit’s holding that state law applied as

surrogate federal law is contrary to the plain wording

of the statute, which has two essential components for

the purposes of this analysis. First, § 1333(a)(1) contains

'° Norfolk S. Ry. v. Kirby, 543 U.S. 14, 29 (2004). (“Confusion

and inefficiency will inevitably result if more than one body of

law governs a given contract’s meaning.”)

‘| State territorial waters extend three geographical miles

from the coastline of Louisiana. This accident happened

approximately 11 miles offshore.

the genera! Congressional assertion of federal

sovereignty over the OCS and to all artificial islands and

installations permanently or temporarily attached to the

seabed for the purpose of developing offshore resources,

“other than a ship or vessel”. Second, § 1333(a)(2)(A),

the state law incorporation clause, adopts state law as

surrogate federal law but only for clearly defined

geographic areas, being “. . . that portion of the subsoil

and seabed of the outei Continental Shelf, and artificial

islands and fixed structures erected thereon. . .”

Insofar as this case turns on interpretation of these

sections of OCSLA, it is remarkable that the Fifth Circuit

made no effort to analyze the statutory language. In

fact, the court mentions the statute only to quote it,

actually just part of it. The court did not discuss or even

cite the genera! jurisdictional provision contained in

Section (a)(1) in which federal authority is asserted over

offshore locations “. . . other than a ship or vessel. . .”

The underlying incident giving rise to this maritime

dispute happened on a vessel which at the time was

operating on the high seas. That should be the end of

the matter since OCSLA, by its very terms, does not

apply to vessels. If OCSLA does not apply, then the

statute’s state law incorporation clause does not come

into play and Louisiana state law cannot be made

applicable as surrogate federal law.

Even if it were found that the circumscribed

geographic exercise of federal sovereignty found in

Section (a)(1) had been met, the result is the same —

state law still does not apply. This is because the state

law incorporation clause of the statute, Section (2)(A),

adopts state law as federal law only for limited

geographic areas on the OCS, one of which is not a vessel

such as the petitioner’s SEA HORSE IV while

navigating on the high seas. Rather, state law is

incorporated only for the subsoil and seabed of the OCS

and artificial islands and fixed structures erected

thereon. The SEA HORSE IV obviously is not within

that limited geographic scope in which, and only in which,

state law is incorporated.

Rather than apply the clear language of the statute,

though, the Fifth Circuit read into OCSLA what it

labeled a “focus-of-the-contract test” pursuant to which

lower courts must ascertain in what location, an OCS

situs or not, a majority of the contract work is to be

done. If the contract calls for a majority of work to be

done on, for example, a fixed offshore platform, then

state law applies to the resolution of all issues arising

under that contract, even those that, like Denny Neil’s

accident here, are purely maritime in nature. In other

words, if employees supplied pursuant to a given

contract are platform, i.e. OCS, workers, then the new

Fifth Circuit test would result in application of state law

to any and all contractual disputes arising from injuries

they sustain, including those that are inherently

maritime in nature.

This Court reversed a similar finding, also by the

Fifth Cireuit, in Tallentire, in which the Court

considered whether the Death on the High Seas Act

(“DOHSA”)"” provided the exclusive remedy for the

survivors of two offshore platform workers killed when

the helicopter that was carrying them to an offshore

'- 46 U.S.C.A. §§ 30301-30306 (West 2009).

platform crashed into the high seas. The survivors of

the decedents argued that damages recoverable under

DOHSA, a federal remedy, could be supplemented by

Louisiana law, applying either of its own force or as

surrogate federal law under OCSLA. As in this case,

the incident giving rise to the dispute involved an

offshore platform worker being ferried to work on a fixed

offshore structure on the OCS. Also as in this case, the

accident happened outside Louisiana’s three mile

territorial limit.

The Fifth Cireuit held that Louisiana law applied.

Because, at least in part, the Fifth Circuit’s decision

created “. . . the potential for disunity in the

administration of wrongful death remedies for causes

of action arising from accidents on the high seas. . .”,

certiorari was granted.'® This Court reversed, noting

that OCSLA controls, “. . . only on ‘the subsoil and

seabed of the Outer Continental Shelf, and artificial

islands and fixed structures’ erected thereon.”

The plaintiffs in 7allentire argued, and the Fifth

Circuit agreed, that the decedents’ status as platform

workers controlled and rendered OCSLA applicable.

This Court rejected that argument, noting that,

“we cannot accept respondents’ attempt to rewrite

'5 Because the Fifth Circuit decision in this case creates

not only the “potential for disunity” but the certainty of it,

petitioner submits that certiorari should also be granted in this

case. This issue is discussed in more detail below.

‘4 Tallentire,477 U.S. at 217.

OCSLA.”"” Rewriting the statute is precisely what the

Fifth Circuit has done here.

telying on the statutory language, as the Fifth

Circuit should have done in this case, this Court went

on to hold in Tallentire:

We do not interpret § 4 of OCSLA, 43 U.S.C.

§ 1333, to require or permit us to extend the

coverage of the statute to the platform

workers in this case who were killed miles

away from the platform and on the high seas

simply because they were platform workers.

Congress determined that the general scope

of OCSLA’s coverage, like the operation of

DOHSA’s remedies, would be determined

principally by locale, not by the status of the

individual injured or killed.'®

Ultimately, after also noting the importance of

uniformity in admiralty law, this Court concluded that

Louisiana state law did not apply as surrogate federal

law."

In this case, the Fifth Circuit sidestepped Tallentire

by noting simply that it was a tort case and that the

present dispute sounds in contract. The court wrote:

Once we recognize that the claim for

indemnity is a claim based in contract rather

'S Tallentire, 477 U.S at 218.

' Td. at 221.

than in tort, we see no reason to apply tort

analysis to determine where the contractual

controversy arose. /t makes more sense to

apply a focus-of-the-contract test and say that

a contractual dispute — the “controversy”

under the first condition of the PLT test —

arises under an OCSLA situs if a majority of

the work called for by the contract is on

stationary platforms or other enumerated

OCSLA situses."®

The Fifth Circuit cites no authority for this tort/

contract distinction which certainly has no basis

whatever in the statute. The court likewise does not

explain how OCSLA, which by its specific terms does

not apply to a ship or vessel, is nevertheless held

applicable to a vessel owner’s indemnity claim arising

out of an accident on a vessel in navigation on the high

seas. There likewise is no attempt by the Fifth Circuit

to explain how the requirements of OCSLA’s state law

incorporation clause are satisfied, and in fact there could

not be, since that clause makes clear that state law can

be applied only to the subsoil and seabed of the OCS

and artificial islands and fixed structures erected on it."

'§ Grand Isle Shipyard, Inc. v. Seacor Marine, LLC., 589

I.3d 778, 787 (5th Cir. 2009) (italics added). This holding creates

the anomalous situation in which the injured party's claim

against the boat owner is controlled by maritime law, but the

boat owner’s resulting contractual indemnity claim against the

injured party’s employer is controlled by state law.

'S See Tallentire, 477 U.S. at 217.

It is not for a court to rewrite a statute by, in this

case, contriving a “focus-of-the-contract” test and

making a distinction between torts and contracts when

none exists in the statute, simply because the court

believes that to do so would “make more sense”.

The Court should grant certiorari to correct the

Fifth Cireuit’s substitution of its own view of what

“makes more sense” for that of Congress.

2. Whether application of state law to defeat an

otherwise enforceable maritime indemnity

claim conflicts with the Constitutional

requirement of uniformity in the general

maritime law.

The maritime jurisprudence of this Court has long

recognized the need for a uniform body of maritime law

since ships are inherently mobile and, in the absence of

uniformity, would be subject to the different laws and

regulations of any state in which they called, severely

hindering maritime commerce.”

Denny Neil was injured on a vessel which was at the

time operating on the high seas adjacent to but beyond

the territorial limits of Louisiana. The platform to which

he was destined was also located on the OCS adjacent

to Louisiana. The Fifth Circuit applied Louisiana state

law to the indemnity claim that arose out of Neil’s

accident once the court concluded that OCSLA applied.

*” See, e.g. Kirby, 543 U.S. at 28.

Had Neil’s maritime, ship-board accident occurred

at a time when a majority of his work was being

performed on a platform located offshore of Mississippi

or Alabama or some other state, then under the new

“focus-of-the-contract test” of the Fifth Circuit, the law

of that state would apply. In any state which does not

have an anti-indemnity statute, Seacor’s claim for

contractual indemnity and insurance coverage arising

out this quite typical maritime accident would have

prevailed.

This is a clear illustration of how the decision of the

Fifth Circuit will inevitably produce conflicting results

in maritime indemnity cases and thus is contrary to the

well-established Constitutional requirement that there

be a uniform body of maritime law applicable to

maritime contracts and disputes. As this Court wrote in

Norfolk Southern Railway Company v. Kirby when it

recently addressed the uniformity issue in the maritime

context:

... our touchstone is a concern for the uniform

meaning of maritime contracts like the. .. bills

lof lading involved in this case]. We have

explained that Article ITI’s grant of admiralty

jurisdiction “‘ must have referred to a system

of law coextensive with, and operating

uniformly in, the whole country. It certainly

could not have been the intention to place the

rules and limits of maritime law under the

disposal and regulation of the several States,

as that would have defeated the uniformity

and consistency at which the Constitution

aimed on all subjects of a commercial

character affecting he intercourse of the

States with each other or with foreign

states.’

Kirby is particularly instructive since it involved a

contract with both maritime and non-maritime

components (ocean carriage and inland rail

transportation) just as the BP contracts here, which

must be read as one contract given the express third

party beneficiary language contained in each, involve

maritime (ocean transportation of Grand Isle employees)

and non-maritime (offshore platform labor) components.

Because “{cJonfusion and inefficiency will inevitably

result if more than one body of law governs a given

contract’s meaning”, the Court in Kirby applied

maritime law to the entire contract, including the non-

maritime function of transporting the cargo by train to

its ultimate destination.

The only way the important goal of uniformity can

be fostered in this ease is to apply a single, unified body

of law — the general maritime law — to the entire

controversy. The decision of the Fifth Circuit does just

the opposite. It will unavoidably result in the random

application of maritime or state law which, as in this case,

produce completely different results.

As a practical matter as well, the Fifth Circuit test

will be impossible to apply uniformly. As in this case, for

example, the injured plaintiff’s claim against the vessel

owner is governed by maritime law but the owner’s

indemnity claim against the worker’s employer is not,

“1 Kirby, 543 U.S. at 28 (citations omitted).

unless the worker is assigned to work on platforms in

or adjacent to a state that doesn’t prohibit indemnity.

Similarly, if a platform worker is being ferried by a

vessel to work and is injured in the same accident on

the same vessel that also injures a non-platform worker,

then state law applies to the vessel owner’s indemnity

claim against the employer of the platform worker and

maritime law applies to the vessel owner’s indemnity

claim against the non-platform worker’s employer.

Even indemnity claims arising from injury to two

platform workers injured on the same vessel! in the same

incident would be subject to different law if one worker

spent the majority of his time on a platform in Louisiana

and the other spent the majority of his time on a platform

in Mississippi or some other state which doesn’t prohibit

indemnity.

These anomalies make clear that rather than

promoting uniformity, the Fifth Circuit decision

guarantees inconsistency and uncertainty. Applying the

locality rule of the statute and of Tallentire, in contrast,

would produce consistent results for all issues

emanating out of purely maritime actions, regardless of

the “focus-of-the-contract” pursuant to which an injured

plaintiff was working or his status, or lack thereof, as a

platform worker. In other words, the same maritime law

that governs a vessel’s liability to its passengers would

also govern the ability of the vesse!} to shift that liability

contractually to a third person, regardless of the nature

of the contract or the status of the person whose injury

prompted the indemnity claim. This is the essence of

uniformity.

CONCLUSION

The issues involved in this appeal are important not

only to the offshore oil and gas industry, but also to all

litigants whose disputes are subject to maritime law and

who need to know that their mutual indemnity contracts

will be uniformly applied. Under the contrived test

created by the Fifth Circuit in this case, interpretation

of a maritime indemnity obligation in the OCS context

will vary depending on where an injured person has

previously spent the majority of his work time. This

test compounds twenty five years of confusion in the

Fifth Circuit's interpretation of OCSLA, a fact that court

has itself repeatedly recognized and the critical

commentary has confirmed. Only this Court can reassert

the continued viability of Tallentzre, interpret the statute

to mean what it says and get this ship back on course.

Simply put, the contrived test announced in this case

to determine the scope of application of OCSLA is

essentially a legislative creation of the court of appeals

which goes far beyond the clear wording of a bright line

federal statute, circumvents the controlling decision of

this Court in Tallentzre and destroys even the possibility

of the uniform application of important maritime law

indemnity principles. Certiorari should be granted to

correct these fundamental errors.

Respectfully submitted,

Gary A. HEMPHILL

Counsel of Record

Davib B. LAawtTon

LUTHER T. MUNFORD

PHELPS DunBAR LLP

365 Canal Street, Suite 2000

New Orleans, Louisiana 70130-6534

(504) 566-1311

hemphilg@phelps.com

Attorneys for Petitioner

APPENDIX

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH

CIRCUIT, FILED DECEMBER 8, 2009

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 07-31019

GRAND ISLE SHIPYARD INC;

GRAY INSURANCE COMPANY,

Plaintiffs-Appellees,

SEACOR MARINE, LLC,

Detendant-Appellant.

Before JONES, Chief Judge, KING, JOLLY, DAVIS,

WIENER, BARKSDALE, GARZA, BENAVIDES,

STEWART, DENNIS, CLEMENT, PRADO, OWEN,

ELROD, SOUTHWICK, and HAYNES, Circuit

Judges. EMILIO M. GARZA, Circuit Judge, with

whom JENNIFER WALKER ELROD and LESLIE

H. SOUTHWICK, Circuit Judges, join, dissenting.

PRISCILLA R. OWEN, Circuit Judge, dissenting.

W. EUGENE DAVIS, Circuit Judge:

The question presented by this appeal is what

law governs the resolution of a contractual dispute,

here enforceability of an indemnity provision, when

the act or omission that causes the underlying death,

bodily injury, or property damage (hereafter, the

“tort”) which triggered the contractual indemnity

claim occurred on navigable water on the Outer

Continental Shelf (“OCS”), but the contract that

creates the indemnity obligation between the parties

calls for a majority of the work to be performed on

stationary platforms on the OCS. Central to this

issue is the application of the Outer Continental

Shelf Lands Act, 43 U.S.C. § 1331, et seq.

(“OCSLA”).

The law is clear that when a tort occurs on

navigable water on the OCS, as opposed to, for

example, a stationary platform, and a non-seaman is

injured, maritime law applies to the ensuing tort

action by that worker against third parties. Some of

our cases have applied this same rule to a

contractual indemnity dispute and looked to the site

of the tort to determine the situs of the controversy,

the first step in deciding what law applies. Instead of

looking to the site of the tort, other cases have

applied what amounts to a focus-of-the-contract test.

which looks to where the contract contemplates that

most of the work will be performed: if a majority of

the performance called for by the contract is on

stationary platforms on the OCS, that is the situs of

the controversy for purposes of determining whether

the law of the adjacent state applies as surrogate

federal law. If a majority of the work called for by

the contract is aboard vessels on navigable water on

the OCS, this is the situs of the controversy.

We hold that the focus-of-the-contract test is

the appropriate test to apply in determining the

situs of the controversy in contract cases, and we

adopt that rule for the circuit. We therefore agree

with the trial judge that because the relevant

contract contemplated that a majority of the

contractors work would be performed on stationary

platforms on the OCS, this should be deemed the

relevant “situs” for the instant indemnity dispute

and because none of the other factors lead us to

apply any other law, we must apply Louisiana law.

When we apply Louisiana law, the Louisiana Oilfield

Indemnity Act, LA. REV. STAT. ANN. § 9:2780(A)

(“LOLA”) renders the indemnity agreement at issue

unenforceable, so we affirm the summary judgment

in favor of Grand Isle.

Il. FACTS

This declaratory judgment action involves an

indemnity dispute between Grand Isle and Seacor,

two contractors of BP American Production

Company (“BP”). Grand Isle’s contracting duties

involved the repair and maintenance of BP’s offshore

platforms, while Seacor’s duties involved the

transporting of workers for KP and its contractors.

The indemnity dispute in this case arises from an

April 2005 incident in which Denny Neil, a Grand

Isle employee, was injured in a fall onboard the M/V

SEA HORSE IV, a vessel owned and operated by

Seacor. At the time of the accident, the SEA HORSE

IV was transporting Neil from his work platform to

the residential platform which contained his living

quarters. Deposition testimony indicated that the

vessel was in close proximity to the residential

platform at the time of the accident, but it is

undisputed that neither Neil nor the SEA HORSE

IV were in physical contact with the platform when

the accident occurred.

Neil filed suit against Seacor in the US.

District Court for the Southern District of Texas,

asserting a claim for vessel negligence under §

905(b) of the Longshore and Harbor Worker’s

Compensation Act (““LHWCA”). Seacor tendered its

defense and indemnity to Grand Isle; Seacor also

claimed the benefit of insurance provided by Grand

Isle’s insurer Gray. On March 17, 2006, Grand Isle

and Gray filed suit in the U.S. District Court for the

Eastern District of Louisiana, seeking a declaratory

judgment that: (1) Grand Isle is not contractually

obligated to defend and indemnify Seacor; and (2)

Seacor is not entitled to insurance coverage from

Gray.

Grand Isle and Gray subsequently filed

motions for summary judgment in which they

argued that by virtue of OCSLA, the LOJA applies as

surrogate federal law in this case, thus invalidating

the contractual indemnity provision at issue here;

and (2) that § 905(b) of the LHWCA is applicable to

the case and prohibits enforcement of the indemnity

provision. Seacor filed its own cross motion for

summary judgment, maintaining that general

maritime law governs the dispute and noting that

nothing in that law prohibits the indemnity

agreement at issue here.

Grand Isle Shipyard, Inc. v. Seacor Marine,

LLC, 543 F.3d 256, 257-58 (5th Cir. 2008)

(hereinafter Grand Isle (Panel)), vacated, 569 F.3d

523 (5th Cir. 2009) (en banc). Seacor seeks

indemnity under the contract between Grand Isle

and BP. Paragraph 14.07 of that contract! is

virtually identical to the indemnity agreement in a

contract between BP and Seacor, “and neither party

disputes that BP sought thereby to impose reciprocal

indemnity obligations among its contractors.” /d. at

258. The undisputed objective was for each

contractor whose employee was injured to hold

Paragraph 14.07 reads:

Contractor [Grand Isle] agrees to defend, indemnify,

release and hold company’s other contractors

harmless in accordance with the provisions of this

Article 14 (to the extent such other Contractors

execute cross indemnification provisions

substantially similar to those contained in this

section 14.07) from and against all claims, liabilities,

damages, and expenses (including without

limitation attorney’s fees and other costs of defense),

irrespective of insurance coverages for the following:

14.07.01(1) all injuries to, deaths, or illnesses of

persons in Contractor Group: ... whether or not

occasioned by or the result in whole or in part of the

negligence or fault, whether sole, concurrent, joint,

active, or passive, of company’s other contractors or

any other entity or person or the unseaworthiness of

any vessel.

“Contractor Group” is defined in Paragraph 14.01.03 as “the

following entities and persons individually and collectively:

Contractor [Grand Isle Shipyard, Inc., per the preamble to the

contract] and its Affiliates, its subcontractors and _ their

Affiliates, and the officers, directors, employees, agents, and

representatives of all of those entities... .”

harmless and indemnify BP (and other contractors

engaged by BP on the jobsite) for liability resulting

from injuries to or death of that employee. The

material facts are not in dispute.

The ultimate legal issue before the district

court and the panel, and now before the full court, is

whether the adjacent state law of Louisiana,

including the LOIA, applies to the case. The parties

agree that if the LOIA does apply, it invalidates

Grand Isle’s indemnity obligation to Seacor, but if

Louisiana law and the LOIA do not apply, the

indemnity agreement is enforceable.

To determine whether OCSLA required

application of state law to this dispute, the district

court applied the three-part test that the Supreme

Court formulated in Rodrigue v. Aetna Casualty &

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

360 (1969). We have applied that test in a number of

cases, including Union Texas Petroleum Corp. v.

PLT Engineering, Inc., 895 F.2d 1043, 1047 (5th Cir.

1990) (hereinafter PLT) As we articulated the

Rodrigue test in PLT, for state law to apply as

surrogate federal law, three conditions must be met:

“(1) The controversy must arise on a situs covered by

OCSLA (ie. the subsoil seabed, or artificial

structures permanently or temporarily attached

thereto). (2) Federal maritime law must not apply of

its own force. (3) The state law must not be

inconsistent with Federal law.” /d.

Here, the district court first considered

whether the indemnity controversy arose on an

OCSLA situs, i.e., on a stationary platform or other

location on the OCS as provided for in OCSLA. In

considering this first PLT condition, the district

court determined that the OCSLA situs requirement

was met because (1) the situs of the contract

containing the indemnity agreement at issue

depends upon the location where performance of the

work is called for by the contract, and (2) the

contract between Grand Isle and BP contemplated

that most of the work was to be performed on BP

platforms, i.e., OCSLA covered situses. Grand Isle

Shipyard, Inc. v. Seacor Marine, LLC, 2007 U‘S.

Dist. LEXIS 71674, 2007 WL 2874808, at *3 (E.D.

La. 2007) (hereinafter Grand Isle (District)).2 The

court also found that the second and third PLT

conditions were met. 2007 U.S. Dist. LEXIS 71674,

[WL] at *4-5. Accordingly, the district court granted

Grand Isle’s and Gray’s motion for summary

judgment and denied Seacor’s motion. 2007 U.S.

Dist. LEXIS 71674, [WL] at *6.

Seacor timely appealed, and the panel

reversed. The panel concluded that because Neil’s

accident occurred on a vessel on navigable water

above the OCS and not on a situs expressly covered

under the OCSLA, this indemnity dispute did not

arise on a covered situs; thus, it was unnecessary to

The district court also relied on a well-reasoned district court

opinion, Wagner v. McDermott, Inc., 899 F. Supp. 1551 (W.D.

La 1994), affd. 79 F.3d 20 (5th Cir.), cert. denied, 519 U.S. 945,

117 S. Ct. 333, 136 L. Ed. 2d 246 (1996). The district court in

Wagner stated: “Thus, under Union Texas, the OCSLA situs

factor is met in the instant case, as the work required by the

contract was performed on an offshore platform.” Jd. at 1556.

The court of appeals affirmed on an alternate ground.

address the second and third prongs of the PLT test.

Grand Isle (Panel), 543 F.3d at 259-60. The panel

therefore concluded that the LOIA could not apply as

surrogate federal law to void the indemnity

agreement, and it vacated and remanded on that

basis. Jd. at 263-64. We granted Grand Isle’s petition

for rehearing en banc to address this important

question of law.

III. JURISDICTION AND STANDARD OF

REVIEW

We have jurisdiction pursuant to 28 U.S.C. §

1291. “[Wle review de novo the district court’s order

granting [Grand Isle’s and Gray’s] motion for

summary judgment under Rule 56 and apply the

same standard as did the district court.” Cornerstone

Christian Schs. v. Univ. Interscholastic League, 563

F.3d 127, 133 (5th Cir. 2009).

IV. ANALYSIS

As indicated above, the critical question we

must answer is what law applies. The answer to this

question depends on the applicability of the OCSLA

to the uncontradicted facts. More particularly, in

PLT terms, we must identify the “situs” of the

controversy.

In deciding this question we begin with the

governing statute, OCSLA, which provides in

pertinent part:

(2)(A) 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 hereafter

adopted, amended, or repealed are hereby

declared to be the law of the United States

for that portion of the subsoil and seabed of

the outer Continental 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. . . .

43 U.S.C. § 1333(a)(1), (2)(A).

The Supreme Court in Aodrigue stated that

“[t]he purpose of the [OCSLA] was to define a body of

law applicable to the seabed, the subsoil, and the

fixed structures . . . on the outer [sic] Continental

Shelf.” 395 U.S. at 355. As we noted in PLT,

“Rodrigue made clear that ‘for federal law to oust

adopted state law, federal law must first apply.” 895

F.2d at 1047 (quoting Rodrigue, 395 U.S. at 359). To

determine whether state law applies, the PL7 court

expressed the three-part test stated above.* In PLT,

the court began its analysis by looking to Rodrigue, a

seminal case interpreting OCSLA.

“(1) The controversy must arise on a situs covered by

OCSLA (ie., the subsoil seabed, or artificial structure

permanently or temporarily attached thereto). (2) Federal

maritime law must not apply of its own force. (3) The state law

must not be inconsistent with federal law.” 895 F.2d at 1047.

10a

Rodrigue was a consolidated case involving

two separate wrongful death actions. In one, a crane

operator on a stationary platform was killed when

the crane collapsed and toppled over. Jn the other,

the decedent was killed when he fell from a derrick

above a stationary platform to the floor of the

platform. The defendants argued that the Death on

the High Seas Act, 46 U.S.C. § 761, et seq.

(“DOHSA”), applied: the survivors’ sought

application of the Louisiana Wrongful Death Act.

For both cases, the Supreme Court held that because

the deaths occurred on stationary platforms on the

Outer Continental Shelf--each a covered situs under

OCSLA--Louisiana law applied as surrogate federal

law through OCSLA. Rodrigue, 395 U.S. at 355.

Thus, in a tort action, Rodrigue illustrates that the

OCSLA situs requirement is met if the tort occurs on

a platform or other OCSLA covered situs as provided

in § 1333(a)(2)(A).

The converse is equally clear. In a tort action,

if the tort occurs on navigable water instead of a

fixed platform (or other structure attached to the

seabed), the OCSLA situs requirement is not met.

For example, in Offshore Logistics, Inc. v. Tallenttre,

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

(1986), a helicopter ferrying platform workers home

after they finished their shift on a_ stationary

platform crashed and two offshore workers drowned.

The Court was called upon to decide whether

DOHSA applied or the Louisiana wrongful death

statute applied as surrogate federal law under

OCSLA. 477 U.S. at 209. The Court concluded that

because the incident occurred more than a marine

league from shore, DOHSA applied, stating:

Here, admiralty jurisdiction is expressly

provided under DOHSA because _ the

accidental deaths occurred beyond a marine

league from shore. See 46 U.S.C. § 761.

Even without this statutory provision,

admiralty jurisdiction is appropriately

invoked here under traditional principles

because the accident occurred on the high

seas and in furtherance of an activity

bearing a significant relationship to a

traditional maritime activity.

Id. at 218-19.

In concluding that OCSLA did not call for

application of state law when the incident did not

occur on an OCSLA situs, the Va//entrre Court

stated:

The intent behind OCSLA was to treat the

artificial structures covered by the Act as

upland islands or as federal enclaves within

a landlocked State, and not as vessels, for

purposes of defining the applicable law

because maritime law was’ deemed

inapposite to these fixed structures.

Id. at 217 (citing Rodrigue, 395 U.S. at 361-66).

Although it is clear that AFodrigue and

Tallentire provide the situs rule for tort cases, it

does not follow that contract cases triggered by an

underlying tort depend on the situs of that tort, 1.e.,

the location of that occurrence. Notably, PLT was a

pure contract case to collect unpaid invoices for the

installation of a subsea pipeline and to impose a

statutory lien on the pipeline under Louisiana law.

895 F.2d at 1045-46. PLT and its subcontractors

relied on Ta/lentire (and OCSLA itself) for the

proposition that the controversy arose on an OCSLA

situs and state lien law applied. Jd. at 1049-50.

Union Texas Petroleum Corp. argued that state law

did not apply because

[A]ll of the subcontractors’ contracts for the

building and completion of the pipeline

called for services which were provided

from vessels and by divers in the ocean, not

on a platform, and therefore were not in

areas covered by OCSLA.

Id. at 1047. Judge Brown, writing for the panel in

PLT, held, however, that despite the fact that some

of the work was performed from vessels, state law

did apply.

In the first place, the gathering line exactly

fits the statutory definition of an “other

devicel] permanently or temporarily

attached to the seabed .. . erected thereon

for the purpose of .. . developing, or

producing resources therefrom.” 43 U.S.C. §

1333(a)(1). In addition, the gathering line

was buried beneath the ocean floor. It was

connected to a platform at one end. It was

connected to a transmission line at the

other. The Jocations where the substantial

work was done were covered situses--the

subsoil or seabed; an artificial tsland; and

an installation for the _ production of

l3a

resources. Thus the first condition [situs] is

met.

Id. at 1047-48 (footnotes omitted) (emphasis added).

To determine situs, the PL7' panel did not focus on

where the underlying incident that gave rise to the

contract claim occurred (i.e., the nonpayment of the

subcontractors) but looked instead to where the work

under the contract was performed.‘

Later cases ostensibly applying PLT to

contractual indemnity claims have ignored the situs

of the contract and looked instead to the situs of the

underlying tort. Those cases essentially hold that the

location of the underlying tort determines the “situs

of the controversy” without regard to where the

majority of the work under the contract was to be

performed. For example, in Holl/rer v. Union Texas

Petroleum Corp., 972 F.2d 662, 663-64 (5th Cir.

1992), a worker was crushed between a boat and a

stationary platform and then drowned. His survivors

filed a wrongful death action against the platform

and vessel owners, and the platform owner in turn

filed a third-party demand seeking contractual

indemnity. /d. at 664. The underlying tort claim

settled, leaving only the contractual indemnity claim

to be decided on appeal. /d. In analyzing the situs

element of the PLT test, the Hollier panel did not

consider or discuss the contract’s situs--where the

work was performed under the contract--but looked

See Julia M. Adams & Karen K. Mihollin, Jndemnity on the

Outer Continental Shelf--A Practical Primer, 27 TUL. MAR. L.

J. 43, 53 (2002).

exclusively to the situs of the underlying incident.

Id. at 664-65.

Likewise, in Smith v. Penrod Drilling Corp.,

960 F.2d 456, 458 (5th Cir. 1992), the underlying

incident (an injury on a drilling platform) settled,

leaving only a contractual indemnity claim on

appeal. As in Holler, the Smith panel did not

discuss the situs of the contract under the first prong

of the PLT test; it looked only to the situs of the

underlying incident. /d. at 459.

Indeed, in neither Ho//ier nor Smith did we

make an explicit choice between the situs of the

contract and the situs of the underlying incident; we

simply determined that the situs of the underlying

incident controlled without discussion. The confusion

is evident in Hodgen v. Forest Oil Corp., 87 F.3d

1512, 1527 (5th Cir. 1996), in which the panel

stated: “Assuming without deciding that Holler and

Smith state a rule in this circuit providing that the

situs of the controversy in an OCSLA indemnity

clause case is the location of the accident, we agree

with the district court and find that the situs

requirement is met in this case” because the

underlying incident occurred on an OCSLA situs.

See also Demette v. Falcon Drilling Co., Inc., 280

F.3d 492, 498 (5th Cir. 2002) (finding that OCSLA

situs existed for both a tort claim and the related

indemnity claim--without distinguishing between

the two--because the accident took place on an

OCSLA situs); Adams & Milhollin, supra note 4, at

54 (noting Hollier and Hodgen’s failure to look to the

contract for situs). Instead of following PLT in these

contract cases and applying general contract

15a

principles, we applied tort principles and looked to

the location of the underlying incident for OCSLA

situs.

Our case law, however, requires us_ to

distinguish between a contractual indemnity claim

and the underlying incident. For instance, in

Sumrall v. Ensco Offshore Co., 291 F.3d 316 (5th

Cir. 2002), we explained that in an earlier case,

“although the underlying claim creating the

obligation for which Shell Oil sought indemnification

from Sladco sounded in tort, the obligation for which

Shell sought indemnification itself was contractual

in nature, as it arose from the agreement between

Shell and Diamond M.” /d. at 319 (citing Corbitt v.

Diamond M. Drilling Co., 654 F.2d 329, 333 (5th Cir.

1981)) (emphasis in original).

Here, the district court followed PLT, which

analyzed the indemnity action as a contract claim

rather than as a tort claim. On appeal, however, the

panel followed those of our cases that had

determined OCSLA situs using tort principles. The

opposed positions of the district court and the panel

both find support in our case law, which all can

agree is conflicting and confusing.® We granted en

See, e.g., David W. Robertson, The Outer Continental Shelf

Lands Act’s Provisions on Jurisdiction, Remedies, and Choice of

Law: Correcting the Fifth Circuit’s Mistakes, 38 J. Mar. L. &

Com. 487 (2007); E. Stewart Spielman, Drilling Through the

Muddied Waters on the Outer Continental Shelf: An

Examination of the Fifth Circuit’s Recent Decision in Demette

v. Falcon Drilling Co., 26 TUL. MAR. L.J. 683, 694 (2002) (“In

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

bewildering array of cases that rely upon _ inconsistent

Continued

banc consideration of this case to clarify this area

and to resolve at least some of the conflict among our

cases.

Once we _ recognize that the claim for

indemnity is a claim based in contract rather than in

tort, we see no reason to apply tort analysis to

determine where the contractual controversy arose.

It makes more sense to apply a focus-of-the-contract

test and say that a contractual dispute--the

“controversy” under the first condition of the PLT

test--arises under an OCSLA situs if a majority of

the work called for by the contract is on stationary

platforms or other enumerated OCSLA situses.§

reasoning in the hope of finding an identical fact situation.”

(quoting Smith, 960 F.2d at 461--; Adams & Milhollin, supra

note 4, at 100-01 (“Presumably, the lawyer now knows whether

the indemnity at issue is enforceable, having completed the

various analyses and determinations required under the

OCSLA. It is highly lhkely, however, that the office aspirin

bottle is now empty. . . . We can only hope that maritime

lawyers everywhere take comfort in the fact that no matter how

well they adhere to the tests and guidelines, one out of every

two at the end of the exercise will have a different answer as to

what law applies, and whether the indemnity is enforceable.”);

Kenneth G. Engerrand, Primer of Kemedies on the Outer

Continental Shelf, 4 LOY. MAR. L.J. 19, 20 (2005).

* As we discussed in Davis & Sons v. Gulf Oil Corp., 919 F.2d

313, 315-17 (th Cir. 1990), reh’g denied, 924 F.2d 1054 (5th

Cir. 1991), it is a common practice for companies contracting

for work in the oilfield to enter into contracts in two stages.

Typically, they first sign a “blanket contract” that may remain

in place for an extended period of time. Later, they issue work

orders for the performance of specific work, which usually

incorporates the terms of the blanket contract. As we said in

Continued

This approach is sounder because it applies

contract principles rather than tort principles to a

contract case. Applying tort rules would allow the

fortuitous location of an accident to determine the

situs--and the applicable law--of a _ contractual

controversy. The tort-situs approach prevents

commercial parties from reliably allocating risk in

their contractual arrangements because they have

no way of predicting where “controversies” might

arise and thus no way of knowing which law will

govern.

Using contract principles to establish the situs

of a contractual dispute both maintains the

longstanding rule treating contractual indemnity

claims as separate from underlying tort claims and

grants contracting parties a far greater measure of

predictability and stability in allocating risk.

For the reasons set forth above, we hold that,

in determining the first condition of the PLT test, a

contractual indemnity claim (or any _ other

contractual dispute) arises on an OSCLA situs if a

majority of the performance called for under the

contract is to be performed on stationary platforms

Davis & Sons, where the contract consist of two parts, a

blanket “contract followed by later work order, the two must be

interpreted together.”

Generally, each work order is for a discrete, relatively short-

term job. Unless a contrary intent is reflected by the master

contract and the work order, in determining situs in a contract

case such as this, courts should ordinarily look to the location

where the work is to be performed pursuant to the specific

work order rather than the long term blanket contract.

or other OCSLA situses enumerated in 43 U.S.C. §

1333(a)(2)(A). It is immaterial whether the

underlying incident that triggers the indemnity

obligation occurs on navigable waters or on a

platform or other OSCLA situs. A number of our

cases have determined situs in a _ contractual

indemnity case not by looking at the focus of the

contract, but rather looking at where the underlying

accident occurred which gave rise to the indemnity

claim.? Many of those cases, we believe, ultimately

Judge Garza’s straightforward dissent agrees with Seacor’s

position and relies on this line of cases. We have explained

above why we decline to follow these cases.

Judge Owen’s dissent adopts a position that neither of the

parties nor their experienced admiralty attorneys argued to the

district court, the panel, or the en banc court. She concedes that

in tort cases, § 1333(a)(2)(A) of OCSLA directly adopts the law

of the adjacent state as the law of the United States on

artificial islands and fixed structures on the OCS. A contrary

position is obviously foreclosed by the Supreme Court’s

decisions in Rodrigue and Chevron Oil Co. v. Huson, 404 U.S.

97, 92 S. Ct. 349, 30 L. Ed. 2d 296 (1971). In those cases the

Court directly applied the law of the adjacent state without

regard to the state’s conflict rules. Judge Owen contends,

however, that in contract cases, § 1333 (a)(2)(A) should be

interpreted differently. In contract cases, she argues that when

this section of OCSLA adopts the “civil and criminal laws of

each adjacent state,” this language should be interpreted as

adopting the adjacent state’s conflict of law rules. We see no

basis to read this section of OCSLA to directly apply the state’s

law in a tort case while adopting the state’s conflict of law rules

in a contract case. The section unambiguously adopts the “civil

and [criminal] laws of the adjacent state” without

distinguishing between the types of civil cases. We see no

reason to treat contract cases and tort cases differently for

choice of state law purposes since they are both “civil” cases.

Continued

19a

In tort cases, the Supreme Court has given us clear directions

to directly adopt the adjacent state’s law rather than to adopt

that state’s conflict rules. In Huson, the Court considered

whether Louisiana’s one year statute of limitations would bar a

tort action which occurred on a platform on the OCS. /d. at 98-

99. The court considered plaintiffs argument that the

Louisiana one year statute should not apply because under

Louisiana’s conflict rules, “prescriptive” (as opposed to

peremptive) rules are not binding outside the forum. /d. at 99-

103. The Court rejected that argument and immediately

following that discussion stated that “[s]ince the federal court is

not, then, applying the law of another forum in the usual sense,

ordinary conflict of law principles have no relevance.” /d. at

102-03 (emphasis in original).

In Gulf Offshore Co. v. Mobil Oil Co., 453 U.S. 473, 101 S. Ct.

2870, 69 L. Ed. 2d 784 (1981) the Court dealt primarily with

whether state courts had concurrent jurisdiction over suits

arising under OCSLA. The Court concluded that nothing

within the Act prevented state jurisdiction but it reiterated the

rule announced in Huson that “OCSLA does supercede the

normal choice of law rules that the forum would apply.” Jd. at

482 n.8. The Court in Rodrigue directly applied Louisiana’s

wrongful death act to a wrongful death that occurred on a

platform on the OCS without any discussion of conflict of law

principles.

Judge Owen seems primarily concerned with the potential

problem that the rule we adopt in this case does not cover the

situation where the contract calls for work on platforms off the

coast of both Louisiana and Texas under circumstances where

the contract would be enforceable in one state but not in the

other. That set of facts is not before us in this case and the

legal issues such a case presents have not been briefed or

argued. In this case, the parties agree that if the adjacent state

law apphes, Louisiana law, including the Louisiana Oilfield

Indemnity Act, is the applicable law. And there is no evidence

in the record that the contract called for work anywhere other

than off the coast of Louisiana.

Continued

reach the correct result for other reasons, and with

respect to the extent (and only to that extent) the

“tort” analysis was used in those cases to determine

situs, we disagree and overrule that portion of those

opinions.8

We therefore agree with the district court that

the indemnity dispute in this case arose on an

OCSLA situs because it is uncontested that a

majority, if not all, of the work called for under the

contract was to be performed on stationary platforms

on the OCS.

The appellant does not challenge the district

court’s conclusion that the second and third PLT

conditions are met and we agree with the district

court’s conclusion in this respect. As to the second

condition, the district court determined that this

contract, which called for maintenance work on a

In sum, we believe Judge Owen’s position is inconsistent with a

plain reading of § 1333(a){2)(A) of OCSLA, cannot be reconciled

with the interpretation of that statute by the Supreme Court,

and has no relevance to the issues in this case.

The opinions we refer to include the following: Diamond

Offshore Co. v. A & B Builders, 302 F.3d 531, 546 (5th Cir.

2002) (remanding for the district court to determine OSCLA

situs based on the location of the injury); Demette, 280 F.3d at

500 (defining OSCLA situs in a contractual indemnity case by

the location of the underlying tort); Hodgen, 87 F.3d at 1527

(stating that “the situs of a controversy in an OSCLA

indemnity clause case is the location of the accident”); Smuth,

960 F.2d at 459 (stating that the controversy occurred on an

OCSLA situs because the injury occurred on a platform);

Hollier, 972 F.2d at 664 (defining OSCLA situs in a contractual

indemnity dispute by the location of the underlying tort).

2la

stationary platform located on the OCS, was not a

maritime contract and therefore maritime law did

not apply of its own force. Grand Isle (District), 2007

U.S. Dist. LEXIS 71674, [WL] at *4. As to the third

condition, as the district court noted, “[t]he Fifth

Circuit has specifically held that ‘nothing in the

LOIA is inconsistent with federal law.” 2007 U.S.

Dist. LEXIS 71674, [WL] at *5 (quoting Hodgen, 87

F.3d at 1529). We agree with these conclusions.9

Having determined that all three conditions of

the PLT test are met, it follows that the adjacent

state law of Louisiana!® 10 will apply as surrogate

federal law and that the LOJA renders the

Our analysis adopts the PL7' test in the order set forth by

the PLT court. However, in determining whether state law

applies in an OCSLA action, predicated on a contract, it is

permissible to consider whether the contract at issue is a

maritime contract before considering whether OSCLA situs has

been established. Thus, if the contract sued upon is a maritime

contact, maritime law applies and state law has no application

so that the situs question need not be answered. However, if

the contract sued upon is a non-maritime contract, then the

situs question must be answered.

Seacor also argues in passing that the provision in the

Grand Isle contract that chooses maritime law as the

applicable law should govern this contractual claim. We

disagree. As we said in PLT: “We find it beyond any doubt that

OCSLA is itself a Congressionally mandated choice of law

provision requiring that the substantive law of the adjacent

state is to apply even in the presence of a choice of law

provision in the contract to the contrary.” 895 F.2d at 1050

(citations omitted). See also Gu/f Offshore Co., 453 U.S. 473,

101 S. Ct. 2870, 69 L. Ed. 2d 784; Texaco Exploration &

Production, Inc. v. AmClyde Engineered Products Co., 448 F.3d

760 (5th Cir. 2006).

indemnity agreement unenforceable. The district

court correctly granted summary judgment to Grand

Isle and Gray.

AFFIRMED.

23a

EMILIO M. GARZA, Circuit Judge, with whom

JENNIFER WALKER ELROD and LESLIE UH.

SOUTHWICK, Circuit Judges, join, dissenting:

We are asked to determine whether the Outer

Continental Shelf Lands Act choice-of-law provision,

43 U.S.C. § 1333(a)(2)(A), requires application of the

Louisiana Oilficld Indemnity Act to an indemnity

agreement triggered by an injury to a platform worker

that occurred on a vessel on the high seas. Pursuant

to a “focus-of-the-contract” test, and directly contrary

to the Supreme Court’s admonishment that Congress

meant for situs to be determined by locale and not by

the status of the employee or his work, the majority

says yes. There being no nexus’ between the

indemnification agreement and the Outer Continental

Shelf, and because a breach of a contract based

exclusively on an injury on the high seas cannot apply

state law to the dispute, I would say no, and

respectfully dissent.

The choice-of-law provision under the Outer

Continental Shelf Lands Act (““OCSLA”) states in

pertinent part:

To the extent that they are applicable and

not inconsistent with this Act 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 hereafter adopted,

amended, or repealed are hereby declared to

be the law of the United States for that

portion of the subsoil and seabed of the outer

Continental 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 .

43 U.S.C. § 1333(a)(2)(A). Importantly, §

1333(a)(2)(A) declares the law of the United States! to

be state law only on certain specific and fixed

locations. OCSLA’s primary concern is “to treat the

artificial structures covered by the Act as upland

islands or as federal enclaves within a landlocked

State, and not as vessels, for the purposes of defining

the applicable law because maritime law was deemed

inapposite to these fixed structures.” Offshore

Logistics v. Tallentire, 477 U.S. 207, 217, 106 S. Ct.

2485, 91 L. Ed. 2d 174 (1986). Thus, § 1333(a)(2)(A)

OCSLA sets forth the geographical boundaries of federal

jurisdiction as follows:

The Constitution and laws and civil and political jurisdiction of

the United States are hereby extended to the subsoil and seabed

of tne outer Continental Shelf and to all artificial islands, and all

installations and other devices permanently or temporarily

attached to the seabed, which may be erected thereon for the

purpose of exploring for, developing, or producing resources

therefrom, or any such installation or other device (other than a

ship or vessel) for the purpose of transporting such resources, to

the same extent as if t'»2 outer Continental Shelf were an area of

exclusive Federal jum saction located within a State... .

§ 1333(a)Q) (emph added). The parties do not dispute that

OCSLA extends federai law to the areas of the OCS enumerated

above.

25a

requires a geographical nexus before state law

applies.

The pertinent state law at issue here is the

Louisiana Oilfield Indemnity Act (“LOIA”), which

“declare[s] 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.” LA. REV. STAT. ANN. § 9:2780(A)

(2009). Thus, if LOIA applies to the indemnity

provision, it is unenforceable; if LOIA does not apply,

the indemnity clause may be given effect.

OCSLA’s plain language extends all laws--” civil

and criminal”--of the adjacent state to “that portion of

the subsoil and seabed of the outer Continental Shelf,

and artificial islands and fixed structures erected

thereon.” Put simply, § 1333(a)(2)(A) invites us to

determine whether the situs of an indemnity

agreement has a geographical nexus with the Outer

Continental Shelf (“OCS”); if it does, we apply the

relevant state law as surrogate federal law governing

the agreement. If no situs is found, our inquiry begins

and ends there.

II.

Grand Isle Shipyard, Inc. (“Grand Isle”) entered

into a Master Maintenance and Construction Services

Contract (“MM CSC”) with BP American Production

Company (“BP”) to provide repair and maintenance on

fixed platforms on the OCS. Separately, Seacor

Marine LLC (“Seacor”) and BP entered into a Vessel

Charter Contract (“Charter”) pursuant to which

Seacor supplied vessels and crew to BP in service of

BP’s offshore activities. Both contracts contain nearly

identical language designed to create reciprocal

defense and indemnity obligations between and

among BP contractors.

During the course of this contractual

arrangement, Grand Isle employee Denny Neil was

injured in a fall onboard the M/V SEA HORSE IV, a

vessel owned and operated by Seacor and traveling on

the high seas beyond Louisiana’s territorial waters.

Neil was off duty, and the SEA HORSE IV was

transporting Neil from his work platform to his

residential platform when he fell. According to

deposition testimony, neither Neil nor the SEA

HORSE IV was in physical contact with the platform

at the time of the incident.

Neil filed suit against Seacor under the

Longshore and Harbor Workers’ Compensation Act,

33 U.S.C. § 905(b), a maritime statute, claiming

negligent maintenance of the SEA HORSE IV

resulting in his injury. Seacor settled this claim with

Neil. After Neil filed his suit, Seacor tendered its

defense and indemnity to Grand Isle pursuant to

MMCSC paragraph 14.07 (emphasis added):

Contractor [Grand Isle] agrees to defend,

indemnify, release and hold company’s [BP]

other contractors [e.g., Seacor] harmless in

accordance with the provisions of this Article

14 (to the extent such other Contractors

execute cross indemnification provisions

27a

substantially similar to those contained in

this section 14.07) from and against all

claims, liabilities, damages, and expenses

(including without limitation attorney’s fees

and other costs of defense), irrespective of

insurance coverages for the following:

(i) all injuries to, deaths, or illnesses of

persons in contracted group CG:

. whether or not occasioned by or the

result in whole or in part of the negligence or

fault, whether sole, concurrent, joint, active,

or passive, of company’s other contractors or

any other entity or person or _ the

unseaworthiness of any vessel... .

Grand Isle denied Seacor’s tender for defense

and indemnity and filed a complaint in district court

seeking a declaratory judgment that Louisiana law

applies as surrogate federal law under OCSLA. Seacor

answered, alleging that, inter alia, “an action pending

in the United States District Court for the Southern

District of Texas ... involves the dispute underlying

this claim.” Grand Isle subsequently moved for

summary judgment on the ground that LOIA applies

as surrogate federal law under OCSLA to nullify the

indemnification provision in Seacor’s contract with

BP. Seacor filed a cross motion for summary

judgment, arguing, inter alia, that Neil’s injury

occurred on a vessel while it was navigating in and on

the high seas, and, therefore, under federal maritime

law, Seacor would be entitled to indemnification for

28a

Neil’s injury by Grand Isle per the terms of the

MMCSC.

Il.

State law may be applicable to this dispute in

one of two ways: either ex proprio vigore or as

surrogate federal law under OCSLA’s choice-of-law

provision. Louisiana law does not apply to this dispute

ex proprio vigore because Neil’s injury occurred eleven

geographical miles offshore, well beyond Louisiana’s

territorial waters. See 43 U.S.C. §§ 1301(b) (defining

coastal “boundaries” of a state bordering the Gulf of

Mexico as no farther than three marine leagues (3.45

geographical miles) into the Gulf). If Louisiana law

applies to this dispute at all, it is only because it is

incorporated as _ surrogate federal law by §

1333(a)(2)(A).

OCSLA’s choice-of-law provision requires that a

dispute have a geographical nexus with the OCS in

order for state law to be applied as surrogate federal

law. The dispute here involves breach of an indemnity

provision incorporated within the MMCSC. Grand Isle

neither alleges nor presents evidence in support of its

motion for summary judgment that the MMCSC was

written, confected, executed, or breached on the OCS.

And although the MMCSC governs work done by

Grand Isle on BP’s platforms (which could provide a

nexus to the OCS), the dispute in this case neither

implicates the work on the platforms nor has any

other connection to the OCS. Accordingly, the mere

fact that the dispute involves a provision within the

MMCSC does not implicate the OCS such that

OCSLA would apply.

Because the contract itself has no geographical

nexus with the OCS, we look to the situs of the

“controversy” to determine if § 1333(a)(2)(A) requires

application of Louisiana law to this dispute. See

Union Tex. Petroleum Corp. v. PLT Engg, 895 F.2d

1043, 1047 (5th Cir. 1990). This is an indemnity

dispute; therefore, the indemnity provision of the

MMCSC informs this determination. The MMCSC

states that Grand Isle will “defend, indemnify, release

and*hold company’s other contractors [e.g., Seacor]

harmless .. . from and against all claims, liabilities,

damages, and expenses” resulting from “all injuries

to, deaths, or illnesses of persons in [the] contracted

group. When a dispute arises under the indemnity

provision, the underlying “injury” (or death or illness)

becomes a contractual event which initiates

contractual obligations under the indemnity

agreement with Grand Isle. The location of the injury

thus is critically important in our determination of

whether, under § 1333(a)(2)(A), state law may be

substituted as surrogate federal law to govern the

dispute.

In the instant matter, since the indemnity

agreement does not provide a geographical nexus with

the OCS, § 1333(a)(2)(A) cannot be used to apply state

law to the dispute. Neil’s “injury” occurred on a vessel

sailing the high seas that was not connected to or in

any way touching a platform or any other situs

attached to the OCS. Without any geographical nexus

to the OCS, the plain language of § 1333(a)(2)(A)

prevents our application of Louisiana law, as

surrogate federal law, to govern the adjudication of

the dispute.

IV.

Supreme Court precedent, as well as our own

OCSLA jurisprudence, confirms that situs is the

pertinent inquiry in determining whether state law

governs a particular dispute. An important early case,

Rodrigue v. Aetna Casualty & Surety Co., 395 U.S.

352, 89 S. Ct. 1835, 23 L. Ed. 2d 360 (1969),

comprised two consolidated wrongful death cases,

both of which involved accidents during the course of

the decedents’ work on offshore platforms. One

worker was killed when a crane mounted on an

artificial island collapsed and toppled onto a nearby

barge; the deceased had been working on the crane at

the time of the collapse. The other worker was killed

when he fell from a derrick affixed to an artificial

island while performing a test on a drill pipe. To

determine whether § 1333(a)(2)(A) required

application of state law as surrogate federal law over

these wrongful death actions, the Supreme Court first

noted that Congress’s intent in enacting the statute

“was to define a body of law applicable to the seabed,

the subsoil, and the fixed structures such as those in

question here on the outer Continental Shelf.” Jd. at

355. “This approach was deliberately taken in lieu of

treating the structures as vessels, to which admiralty

law supplemented by the law of the jurisdiction of the

vessel’s owner would apply.” /d. Concluding that these

accidents occurred on “islands, albeit artificial ones,”

the Supreme Court found § 1333(a)(2)(A) required

application of state law in both disputes. /d. at 360.

More recently, in Offshore Logistics v.

Tallentire, 477 U.S. 207, 106 S. Ct. 2485, 91 L. Ed. 2d

174 (1986), two workers employed on _ drilling

platforms off the coast of Louisiana were killed when

a helicopter transporting them to shore crashed into

the Gulf of Mexico. Their families filed wrongful death

suits against the helicopter owner/operator under the

Death on the High Seas Act (DOHSA), OCSLA, and

Louisiana law. Among the questions that the

Supreme Court faced was whether the families’

DOHSA recovery could be supplemented by the

remedies provided by state law through §

1333(a)(2)(A). In determining whether OCSLA’s

choice-of-law provision applied state law to the

wrongful death disputes, the Supreme Court first

looked to Congress’s intent in enacting OCSLA,

namely, “to treat the artificial islands covered by the

Act as upland islands or as federal enclaves within a

landlocked State, and not as vessels.” Val/lentire, 477

U.S. at 217. Maritime law, the controlling law on the

high seas, was inapposite to disputes occurring on

fixed platforms. Jd. Federal law (or surrogate state

law) was the appropriate choice of law governing

disputes on artificial islands. /d. at 217-18.

The Supreme Court specifically rejected the

argument that state law, via § 1333(a)(2)(A), should

apply to these workers’ wrongful death claims by

virtue of their status as platform workers whose work

occurred on OCS situses (artificial islands and fixed

platforms). /d. at 218. Reasoning that “Congress

determined that the general scope of OCSLA’s

coverage, like the operation of DOHSA’s remedies,

would be determined principally by locale, not by the

status of the individual injured or killed,” the

Supreme Court looked to where the _ helicopter

accident occurred to determine that the §

1333(a)(2)(A) requirements were not met and state

law could not apply. /d. at 219. In Ta/l/entire, the situs

of injury was on the high seas, with no nexus to the

OCS. Consequently, § 1333(a)(2)(A) did not require

application of state law as surrogate federal law to

adjudicate the dispute.

The seminal OCSLA choice-of-law case in this

Circuit is Union Texas Petroleum Corp. v. PLT

Engineering, 895 F.2d 1043 (5th Cir. 1990). In PLT,

this court was asked to determine the applicable

choice of law for a breach-of-contract dispute over

PLTs failure to pay subcontractors who worked to

install a subsea pipeline pursuant to PL7’s contract

with Union Texas. /d. at 1045-46. In reaching its

conclusion, the court articulated three concerns--now

deemed the three factors in the “PLT test’--to

determine whether § 1333(a)(2)(A) | permitted

substitution of adjacent state law as surrogate federal

law: “(1) The controversy must arise on a situs

covered by OCSLA (ie. the subsoil, seabed, or

artificial structures permanently or temporarily

attached thereto). (2) Federal maritime law must not

apply of its own force. (3) The state law must not be

inconsistent with Federal law.” /d. at 1047.

Nowhere in PLT did the court discuss a “focus:

of-the-contract” test. Rather, the court first

33a

determined whether the “controversy” in dispute--

namely, a controversy over the service contract--had a

nexus with the geographical areas that statutorily

comprise the OCS. To make this determination, the

court examined the contract, under which “PL7' was

to design, fabricate, and install a gas transportation

system from a platform owned by UTP, and its

partners’ off the Louisiana coast. /d. at 1045. Because

construction of the gas system gathering line was the

work for which PLT’ failed to tender payment, the

court centered its situs inquiry on the location of the

gathering line. The court found that “the gathering

line exactly fits the statutory definition of an ‘other

device[] permanently or temporarily attached to the

seabed . . . erected thereon for the purpose of...

developing, or producing resources therefrom.” Jd. at

1047 (quoting 43 U.S.C. § 1333(a)(1). Moreover, the

court found that “[t]he locations where the substantial

work [constructing the gathering line] was done were

covered situses-the subsoil or seabed; an artificial

island; and an installation for the production of

resources.” Jd. at 1047-48 {footnotes omitted). The

court examined the location of “substantial work”

performed on the pipeline because the dispute

concerned PL7's failure to pay subcontractors who

worked on that pipeline. /d. at 1047. There was no

other analysis that could logically inform an OCSLA

situs inquiry in that particular breach-of-contract

dispute over payment for pipeline construction. This

“substantial work” analysis resulted in the court’s

narrow holding that § 1333(a)(2)(A) “requires the

application of Louisiana state law to non-maritime

contract disputes arising from the construction of a

gathering line on the seabed of the outer Continental

Shelf.” Jd. at 1045.

A number of subsequent cases concerning

indemnity disputes followed the three-part PLT test

and concluded in each that Louisiana law would be

given effect under § 1333(a)(2)(A) because the injuries

occurred on the OCS. For example, in Smith v. Penrod

Drilling Corp., 960 F.2d 456 (5th Cir. 1992), the

underlying injury was sustained by a _ Penrod

employee working on an offshore platform affixed to

the OCS. The employee was standing on the platform,

leaning on horizontal fencing around the platform, in

order to reach equipment on an adjacent barge. The

fencing collapsed and the worker fell. The court

determined that the indemnity dispute occurred on

the OCS, noting that “[{dJrilling platforms constitute

‘artificial islands’ under section 1333(a)(1).” Jd. at 459.

Because the “controversy” had a nexus with the OCS,

§ 1333(a)(2)(A) required application of state law as

surrogate federal law over the indemnity dispute.

Similarly, in Hollier v. Union Texas Petroleum

Corp., 972 F.2d 662 (5th Cir. 1992), a platform worker

slipped between the residential boat and the platform

on which he worked; he was crushed and

subsequently drowned. This court noted that

platforms are generally considered OCS situses and

therefore found that the indemnity agreement had a

geographical nexus with the OCS because “Holler

was in physical contact with the platform at the time

of his injury.” Jd. at 665.

Likewise, Hodgen v. Forest Oil Corp., 87 F.3d

1512 (5th Cir. 1996), concerned an indemnity dispute

over an injury sustained by a platform worker while

transferring by swing rope from a fixed platform to a

nearby vessel. The worker landed hard on the boat’s

dock, injuring his spinal cord. In undertaking its

choice-of-law analysis, this court “[alssum[ed] . . . that

Hollier and Smith state a rule in this circuit providing

that the situs of the controversy in an OCSLA

indemnity clause case is the location of the accident.”

Id. at 1527. The court found Holler “established that

when an injured worker is in contact with both a

platform and a boat, the first factor of the PLT test is

satisfied.” Jd. Because Hodgen was “in contact” with

the platform via the swing rope when he sustained his

injury on the vessel’s deck, the court found an OCSLA

situs present. /d. Therefore, “[alssuming that Hol/ier

properly states the rule for the situs requirement in

contractual cases”’--namely, that the location of the

accident is the correct situs to analyze for §

1333(a)(2)(A) purposes--OCSLA choice of law

determined that Louisiana law would govern the

indemnity dispute as surrogate federal law because

the injury had a geographical nexus with the OCS. Jd.

In this same vein, Dennis v. Bud’s Boat Rental,

Inc., 987 F. Supp. 948 (E.D. La. 1997), concerned an

indemnity dispute over injuries to a worker

transferred via personnel basket from a vessel on the

high seas to a vessel moored to a work platform.

“(T]he accident occurred on the deck of a vessel as

plaintiff was in the act of transferring to another

vessel, but while plaintiff was in physical contact with

a personnel basket attached to a crane on the

platform.” /d. at 950. Undertaking a PLT analysis

pursuant to this court’s decision in Hodgen, the court

found a geographical nexus with the injury and the

platform because the worker’s personnel basket was

attached to a crane affixed to the platform. /d.

The district court could have properly ended its

situs inquiry there. It did not. Instead, it noted “a

trend to find OCSLA situs where ‘the work required

by the contract was performed on an offshore

platform’ even if situs is not strictly, physically met.”

Id. (quoting Wagner v. McDermott, 899 F. Supp. 1551,

1556 (W.D. La. 1994)). Based on this “trend”--notably

inapplicable to the facts of the case before it, which

involved an injury sustained while in contact with a

personnel basket on an OCS platform--the Dennis

court concluded that there was an OCSLA situs

because the worker had “both physical and

contractual connection with the platform.” Jd. In

doing so, the Dennis court unnecessarily muddied the

clear connection between physical injury and situs in

our OCSLA jurisprudence.

Admittedly, as the Dennis court acknowledged,

there is an alternative line of cases that emerged from

PLTs application of a “substantial work” analysis to

determine the situs for OCSLA choice-of-law

purposes. For example, Wagner v. McDermott

involved a worker who allegedly suffered injuries

when he slipped and fell on the deck of a residential

barge adjacent to, but not connected to or a part of, a

platform. 899 F. Supp. at 1552. This injury

precipitated an indemnity dispute between the barge

owner and several third-party defendants. The

McDermott court first considered the situs analysis

under Hollier, a case that was directly analogous to

the facts of the indemnity dispute before it. Applying

Holliers situs analysis, the court noted that the

inquiry was “defined by where the plaintiff's accident

occurred” and acknowledged that under this standard,

“the ‘controversy did not take place on an OCSLA

situs.” Jd. at 1556. Accordingly, state law would not

apply under § 1333(a)(2){A).

Notwithstanding this conclusion, the

McDermott court then purported to apply the three

factors of the PLT test to arrive at a different

outcome. It focused on the /?L7 court’s discussion of

the “substantial work” situs inquiry: “(T]he situs

requirement could [also] be met when ‘the locations

where the substantial work pursuant to the contract

was done were covered situses.” Jd. Ignoring that PLT

discussed this “substantial work” inguiry in the

context of a service contract dispute over payment for

subsea pipeline work, not a dispute about an injury

for which indemnification was sought--and contrary to

Tallentire’s admonishment that Congress meant for

situs to be determined by the locale of the controversy

and not by the status of the employee--the district

court found the “substantial work” inquiry dispositive.

The district court determined that the situs of the

indemnity dispute was the OCS, “as the work

required by the contract was performed on an offshore

platform.” Jd. Consequently, the district court found

38a

Louisiana law applied as surrogate federal law to the

indemnity dispute.?

These two lines of OCSLA situs inquiry in

indemnity disputes emerging from PL7' are clearly in

conflict with each other. The jurisprudence is

admittedly muddled and in need of a clear resolution.

Unfortunately, the resolution now proposed by the

majority does not follow the statutory requirements of

§ 1333(a)(2)(A).

Today, the majority proposes a new rule to

evaluate what it believes the OCSLA situs is, in a

contractual dispute. Under this rule, “the focus-of-the-

contract test is the appropriate test to apply in

determining the situs of the controversy in contract

cases, and we adopt that rule for the circuit.” Op. at 2.

The “focus-of-the-contract” test would require us to

look to where the contract contemplates that a

majority of the work is to be performed. /d. The

majority bases its holding on PL7’s breach-of-contract

situs inquiry, examining “where the substantial work

was done.” /d. at 12. Therefore, according to the

majority, “a contractual indemnity claim (or any other

contractual dispute) arises on an OCSLA situs if a

majority of the performance called for under the

This court affirmed this decision solely on its analysis of

whether maritime law applied and not with respect to the situs

inquiry. See Wagner v. McDermott, Inc., 79 F.3d 20, 22 (5th Cir.

1996) (adopting the district judge’s “holding that the contract is

non-maritime in nature” and “assumling] without deciding that

[} OCSI.4 applies”).

39a

contract is to be performed on stationary platforms or

other OCSLA situses enumerated in 43 U.S.C. §

1333(a)(2)(A).” Jd. at 13. Significantly, the majority

distinguishes this test from the OCSLA situs inquiry

in tort cases, which would look simply to where the

tort occurred to determine if § 1333(a)(2)(A) requires

application of state law. Jd. at 2.

However, there is no distinction between tort

and contract in OCSLA’s choice-of-law provision. The

majority states that “lolur case law . . . requires us to

distinguish between a contractual indemnity claim

and the underlying incident.” /d. at 11. But nowhere

in Rodrigue, Tallentire, or any of our OCSLA

jurisprudence does case law support or demand that

we consider the situs of an indemnity claim to be

something other than where the underlying incident

occurred, and there is no justification for doing so

now.’ Section 1333(a)(2)(A)’s language plainly does

Notably, this statement about “our case law” requiring a tort-

contract distinction in applying OCSLA’s choice-of-law provision

comes after a lengthy discussion of Hollier, Smith, and Hodgen,

indemnity cases in which this court adopted the location of the

underlying injury as the relevant situs for its § 1333(a)/2)(A)

inquiry. Sumral/ v. Ensco Offshore Co., 291 F.3d 316 (5th Cir.

2002), cited by the majority to support its sweeping claim about

our OCSLA jurisprudence, is not an OCSLA case. It has no

bearing on the extent to which OCSLA extends state law to

actions sounding in tort versus contract, and indeed, does not

implicate OCSLA at all. Sumrall noted that an earlier case’s

indemnification dispute was “contractual in nature,” thereby

distinguishing that from the underlying injury dispute at bar,

which sounded in tort. /d. at 319. However, this distinction does

not support the majority’s present decision to parse out tort and

contract disputes for § 1333(a)(2i{A) purposes. Sumra// concerned

Continued

40a

not invite an inquiry into a contract’s “focus” when

determining whether a dispute occurs on the OCS.

The majority takes pains to distinguish controlling

Supreme Court OCSLA precedent in Aodrigue and

Tallentire on the grounds that these were tort

disputes rather than contractual disputes, and

therefore the situs of the tort determined the OCSLA

situs. However, nothing in either case calls for the

distinction between tort and contract that the

majority presently proffers. Kather, the focus has

always been on the situs of the controversy.

As discussed above, Rodrigue concerned two

consolidated wrongful death actions on stationary

platforms attached to the OCS. Since these platforms

were situses clearly delineated as part of the OCS

under § 1333(a)(2)(A) (artificial islands and fixed

structures erected thereon”), the Supreme Court

found that the “injuries” occurred on the OCS.

Rodrigue v. Aetna Cas. & Sur. Co., 395 U.S. 352, 360,

89 S. Ct. 1835, 23 L. Ed. 2d 360 (1969). Conversely, in

Tallentire, the Supreme Court determined that §

1333(a)(2)(A) did not extend state law to platform

workers killed in a helicopter crash while in transit

over the high seas because “[bly its terms, OCSLA

must be ‘construed in such a manner that the

character of the waters above the outer Continental

Shelf as high seas .. . shall not be affected.” Offshore

Logistics v. Tallentire, 477 U.S. 207, 217, 106 S. Ct.

an interpretation of the breadth of an indemnity clause and did

not impute OCSLA’s choice-of-law provision in any way.

4la

2485, 91 L. Ed. 2d 174 (1986) (quoting 43 U.S.C. §

1332(2)).

Notably, in Tal/lentire, the Supreme Court

rejected the argument that § 1333(a)(2)(A) required

application of state law to the cause of action because

the decedents were platform workers. /d. at 218. The

Supreme Court stated:

The extension of OCSLA far beyond its

intended locale to the accident in this case

simply cannot be reconciled with either the

narrowly circumscribed area defined by the

statute or the statutory prescription that the

Act not be construed to affect the high seas

which cover the Continental Shelf... .

The character of the decedents as platform

workers who have a special relationship with

the shore community simply has no special

relevance to the resolution of the question of

the application of OCSLA to this case.

Id. at 218-19 (emphases added).

The Supreme Court pinpointed § 1333(a)(2)({A)’s

delineated geographical area-- “that portion of the

subsoil and seabed of the outer Continental Shelf, and

artificial islands and fixed structures’ erected

thereon”--to determine that a nexus between the situs

of the injury and the OCS is required for OCSLA’s

choice-of-law provision to apply. The Supreme Court

noted that Congress intended for the proper situs

inquiry under § 1333(a)(2)(A) to turn on the location

of the incident giving rise to the claim, not on the

42a

status of the individual as a platform worker. /d. at

219. The Supreme Court found “no special relevance”

in the work the platform workers performed, or even

the work contemplated by the contract under which

the workers were employed, in determining the actual

“situs” of the dispute. Instead, the Supreme Court

found OCSLA’s choice-of-law provision inapplicable

because the location of the injury simply had no

geographic nexus with the OCS.

The majority today nevertheless promotes a

“focus-of-the-contract” test that regrettably employs

the same status-based analysis that the 7Val/lentire

court specifically rejected. The work order on which

the majority would have us “focus” has no connection

whatsoever to the injury precipitating the instant

dispute. Neil was not at work at the time of his injury.

In evaluating where a work order contemplates the

majority of the work will be performed, the majority is

relying on the status of the workers performing under

that work order to determine the OCSLA situs. Such

analysis finds no support in Ta/lentire. Section

1333(a)(2)(A)’s situs inquiry is location-based, and if

the triggering incident occurs off of the OCS,

Tallentire requires that our OCSLA choice-of-law

inquiry end there. In the instant matter, the

triggering incident occurred on board the SEA

HORSE IV, which was close to, but not touching,

We agree with the majority that proper OCSLA choice-of-law

analysis requires an inquiry into three areas: 1) the situs of the

controversy; 2) whether federal maritime law applies of its own

force; and 3) whether state law conflicts with federal law. See

PLT, 895 F.2d at 1047.

Neil’s residential platform, a fact neither party

disputes. This “injury” situs has no physical nexus

with the OCS: therefore, OCSLA’s choice-of-law

provision does not apply.

VI.

The issue of whether LOIA applies as surrogate

federal law under OCSLA clearly implicates this

court’s decision in PLT, which sets forth this Circuit’s

controlling OCSLA choice-of-law three-prong test. As

discussed above, the relevant inquiry for the purposes

of this appeal is PL7’s first prong, or whether “(t]he

controversy . . . arisels] on a situs covered by OCSLA.”

Union Tex. Petroleum Corp. v. PLT Eng’g, 895 F.2d

1043, 1047 (5th Cir. 1990). Significantly, the first

prong of PLT requires a determination of where the

controversy arose, not where the work is done. If we

find that there is no OCSLA situs--that is, no nexus

between the cortroversy and the OCS--our inquiry

ends at PL7'step one.

The facts of PLT’ itself required a different

inquiry from our present case only because PLT

involved a service contract. PL7' was not an indemnity

case; no underlying injury was involved. Rather, as

the majority describes it, PL7 was “a pure contract

case to collect unpaid invoices for the installment of a

subsea pipeline and to impose a statutory lien on the

pipeline under Louisiana law.” Op. at 8-9. The PLT

court’s choice-of-law analysis was_ necessarily

informed by where the work on the subsea line was

performed because payment for that work was the

central dispute. No other location logically comprises

44a

the situs of the “controversy” over breach of payment

for pipeline construction.

We simply do not have those facts before us in

the instant indemnity matter. Neil was off duty as a

platform worker when he was injured while being

ferried to his residential platform. The location of his

injury is not in dispute: he was on board the SEA

HORSE IV. Therefore, we need look no further than

the where the SEA HORSE IV was at the time of

Neil’s injury to complete our situs inquiry. The parties

do not contest that this vessel was on the high seas

and not in contact with an OCSLA situs.

Consequently, § 1333(a)(2)(A) does not perm it

Louisiana law, as surrogate federal law, to govern the

adjudication of this dispute.

Moreover, the majority's holding improperly

collapses PL7’s step one inquiry (situs) into step two

(whether federal maritime law applies of its own

force) to form a singular test based solely on the

“focus” of the dispute. We can properly consider the

“nature” of the MMCSC in our § 1333(a)(2)(A) inquiry,

but only in the analysis of PLT step two, to determine

whether federal maritime law governs.

Davis & Sons v. Gulf Oil Corp., 919 F.2d 313,

315-17 (5th Cir. 1990), elucidates the proper test for

determining whether a contract is maritime or non-

maritime, a pertinent inquiry to the second prong of

the PLT test: whether federal maritime law applies to

the contract of its own force. Notably, Davis states

that “[wlhether the blanket agreement and work

orders, read together, do or do not constitute a

maritime contract depends, as does the

characterization of any other contract, on the nature

and character of the contract, rather than on its place

of execution or performance.” /d. at 316 (internal

quotation marks and citation omitted). To determine

”

the “nature and character of the contract,” Davis

analyzed six factors:

[Wlhat does the specific work order in effect

at the time of injury provide? 2) [W]hat work

did the crew assigned under the work order

actually do? 3) [Wlas the crew assigned to

work aboard a vessel in navigable waters; 4)

[Tlo what extent did the work being done

relate to the mission of that vessel? 5) [W]hat

was the principal work of the injured

worker? and 6) [W]hat work was the injured

worker actually doing at the time of injury?

Id.

These factors entail an inquiry into where the

majority of a contract’s work was _ performed--in

essence, a “focus-of-the-contract” inquiry, the very test

the majority now proposes to determine whether a

contract dispute occurs on an OCS situs. An

evaluation of where a contract contemplates work will

be performed necessitates an analysis of specific work

orders, crew assignments, and whether’ these

assignments relate to the mission of the vessel on

which the injury occurred. Indeed, in determining

whether Neil’s injury occurred on an OCS situs, the

district court relied on these very factors:

46a

At the time of the accident, Neil’s work for

the day was complete, and he was proceeding

to the living quarters platform. Neil’s work,

which consisted mainly of platform repairs

and grating repairs, was performed on

platforms, not vessels. Neil’s sole

relationship to the vessel was as a

passenger; he did not contribute to the

mission of the vessel in any manner.

Further, the work tickets from April 7, 2005

to May 7, 2005 demonstrate that the work

performed pursuant to the MMCSC was

performed on platforms, not on vessels.

Grand Isle Shipyard, Inc. v. Seacor Marine, LLC, No.

06-1405, 2007 U.S. Dist. LEXIS 71674, at *9 (E.D. La.

Sept. 26, 2007).

Thus, to determine whether “substantial work”

under the MMCSC was performed on OCS situses,

the district court looked to specific work orders in

effect at the time of Neil’s injury, the work Neil was

assigned to do, the extent Neil’s work related to the

mission of the SEA HORSE IV, Neil’s principal work,

and what work (if any) Neil was doing at the time of

the accident. That is, the district court employed a

Davis inquiry, to determine not whether federal

maritime law applies of its own force to a contract, but

rather to come to the conclusion that Neil was injured

on an OCS situs. The majority now adopts the district

court’s misplaced Davis-factor OCSLA situs analysis

and “agreels}] with the district court that the

indemnity dispute in this case arose on an OCSLA

situs because it is uncontested that a majority, if not

47a

all, of the work called for under the contract

[MMCSC] was to be performed on_ stationary

platforms on the OCS.” Op. at 13. The majority

reaches this conclusion notwithstanding that the

injury that is the basis of the indemnification action is

wholly unrelated to any work being performed under

the MMCSC.

However, if we examine the “nature and

character of the contract” at both PL7' step one (situs)

and step two (whether federal maritime law applies),

then we erase the distinction between the two

inquiries required by both the statute and PLT:

Indeed, neither Davis nor any of our controlling

OCSLA precedent demands a “focus-of-the-contract”

analysis for § 1333(a)(2)(A)’s situs inquiry. Given that,

the majority’s new test is at best redundant, at worst

irrelevant.

We must take care not to collapse these two

distinct prongs of inquiry. In Hodgen, this court

declined to “short-circuit” the situs inquiry by solely

analyzing the dispute’s “focus” in determining

whether OCSLA’s choice-of-law provision applied.

Hodgen v. Forest Oil Corp., 87 F.3d 1512, 1525 (5th

Cir. 1996) (specifically rejecting the assertion that

“the only inquiry relevant to the choice of law in

matters arising out of oil exploration activities on the

Outer Continental Shelf was the status of the contract

as maritime or non-maritime,” referring to reasoning

in Domingue v. Ocean Drilling & Exploration Co., 923

F.2d 393 (5th Cir. 1991)). Instead, Hodgen held that

“[tlhe proper test for deciding whether state law

provides the rule of decision in an OCSLA case

48a

remains the three-part PLT test.” Jd. at 1526. As both

§ 1333(a)(2)(A) and the PLT test demand, this court

must separate its inquiry and evaluate situs and

contract status independently.

It cannot be overstated that the work

contemplated by the MMCSC in the instant matter is

factually and legally irrelevant to the indemnity

provision; the incident (injury, death, or illness)

triggers the indemnity provision. That is, there is no

need to analyze where the “focus of the contract”

takes place, i.e., “where the contract contemplates

that most of the work will be performed,” when a

discrete incident--the underlying injury~-precipitates

an indemnity dispute. The “work “simply has no

connection to a determination of whether an

indemnity dispute arises on the OCS because the

“work” did not trigger the dispute. What is factually

and legally relevant to the indemnity provision is the

“injury” to an employee covered under the MMCSC.

This injury triggers the dispute. Therefore, if the

underlying injury did not occur on any structure

affixed to the OCS, there is no OCS situs, and

Louisiana law does not apply. In this case, the

indemnity provision could apply anywhere because

the injury, death or illness could occur anywhere. It so

happened that the incident occurred away from any

recognized OCS situs.

VI.

The majority’s “focus-of-the-contract” test,

“lookling] to where the contract contemplates that

most of the work will be performed,” disregards

49a

Tallentirés interpretation of § 1333(a)(2)(A), which

classifies situs “principally by locale,” not by the

“character” of the work under the contract. Offshore

Logistics v. Tallentire, 477 U.S. 207, 219, 106 S. Ct.

2485, 91 L. Ed. 2d 174 (1986). The test purports to

provide “predictability and stability” in determining

how OCSLA’s choice-of-law provision applies to

indemnity contracts. However, the proposed test

creates predictability only by equating’ the

“controversy with “majority of the work,” even

though the work performed under the contract does

not inform the situs of an indemnity dispute.

Tautologically, by assuming the “majority of the work”

is the definitive situs test for choice of law in a

contract dispute, the “choice of law” is determined by

the test, rather than by the statute.

Additionally, the majority fails to provide

guidance for application of its “focus-of-the-contract”

test to future cases with different factual situations.

Apparently the “contract” (among the many contracts

involved in this dispute) that we are meant to be

analyzing is a work order rather than the MMCSC

itself, as the opinion indicates in a footnote (“Unless a

contrary intent is reflected by the master contract and

the work order, in determining situs in a contract case

such as this, courts should ordinarily look to the

location where the work is to be performed pursuant

to the specific work order rather than the long term

blanket contract.” /d. at 12 n.6). But the opinion fails

to address the potential challenges in this test’s

application. Without any specifics, what comes off as a

precise test on the pages of our reporter is, in fact, an

amorphous term for lower courts and litigants to

50a

grapple with in future cases. Whose work order(s) are

we analyzing: Seacor’s, as the party seeking

indemnity, or Grand Isle’s, as the employer of the

injured party?

Moreover, what do we mean by “majority”?

Majority of hours worked? The majority proportion of

work designated by the contract? Should we factor in

the number of employees involved to make our

determination? Is the “majority” of the work

prospective or retrospective in application, or some

combination thereof?

The majority proffers this “majority of the

work” standard without sufficient substantiation for

how it is to be applied, let alone why we are to be

looking to work at all, when the “work” does not

inform an indemnity dispute triggered by a discrete

act (the underlying injury). At the very least, looking

to the location of the injury for determining OCSLA

situs in indemnity disputes is more precise given that

an injury is a discrete event occurring in a specific

location, and is the contractually anticipated event

that triggers application of the indemnity provision in

the first place. More importantly, this is also the situs

test articulated by the Supreme Court in Aodrigue

and Jal/entire.

The majority fails to acknowledge that when a

dispute arises under the indemnity provision, the

underlying “injury” (or death or illness) is no longer

merely a tort. The “injury” becomes a contractual

event as the act pursuant to which a contractor may

seek indemnification. The work contemplated by the

5la

MMCSC in the instant matter is factually and legally

irrelevant to the indemnity dispute. Indeed, if the

majority correctly applied their test and truly

examined the “focus-of-the-contract” at issue, they

would focus on the indemnity agreement, not a work

order.

The mayjority’s attempt to harmonize our

OCSLA jurisprudence with a predictable new rule

accomplishes neither harmony nor predictability, and

comes at the expense of a proper interpretation of §

1333(a)(2)(A)’s situs requirement. The statute outlines

how we are to apply it, and we would be remiss to