Francis Barker, Jr. v. Hercules Offshore, Inc., et
713 F.3d 208
5th Cir.2013Background
- Barker sued Hall-Houston Exploration II and Hercules Offshore in Texas state court seeking relief under general maritime law, the LHWCA, and Texas tort law for emotional distress and injuries arising from witnessing a coworker’s death on a jack-up drilling rig on the Outer Continental Shelf (OCS).
- The Hercules 251 jack-up rig was engaged in drilling on an OCS mineral lease; Barker and a coworker were preparing to run casing when a pollution pan, attached by straps, was cut loose and fell, killing Barker’s friend Broussard and injuring Barker’s emotional state.
- Defendants removed the action to federal court under the OCSLA’s jurisdictional grant (43 U.S.C. § 1349(b)(1)); Barker moved to remand, arguing maritime law controls and could limit removal.
- The district court granted summary judgment in favor of Defendants, holding Barker could not recover under Texas law or maritime law, regardless of which law applies.
- The Fifth Circuit affirmed removal and dismissal, holding OCSLA provides federal question jurisdiction independent of whether maritime law applies, and that summary judgment was proper under both potential governing laws; Judge Haynes concurred in most parts but dissented on the choice-of-law analysis (section I.b).
- The case centers on whether maritime law applies under OCSLA (Gru-Bart framework) and whether removal was proper under 28 U.S.C. § 1441(b) despite maritime law governing the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| OCSLA removal validity when maritime law applies | Barker argues removal is improper if maritime law applies and the suit is governed by maritime law, triggering the forum-defendant rule. | Hall-Houston and Hercules contend OCSLA provides independent federal question jurisdiction that supports removal regardless of the governing law. | Removal proper under OCSLA; maritime law may apply but does not defeat federal jurisdiction for removal. |
| Whether maritime law or Texas law governs the substantive claims | Barker contends maritime law (and LHWCA via OCSLA) can authorize recovery for bystander emotional distress. | Tex. 95.002 bars Barker’s negligence claim; zone-of-danger theory does not support bystander recovery; LHWCA recovery is not available for bystander claims under non-Jones Act theories. | Texas law does not support Barker; maritime law is the applicable framework but does not yield factual dispute; thus, summary judgment affirmed. |
| Zone of danger applicability to maritime emotional-injury | Gottshall-type zone-of-danger theory should apply to maritime cases, enabling emotional-injury recovery. | Zone-of-danger not met here; Barker was not in immediate danger; thus cannot recover under Gottshall-based theory. | Zone-of-danger theory not satisfied on the record; death of coworker and proximity do not establish immediate risk; no recovery under that theory. |
| Whether the district court correctly granted summary judgment given undisputed facts | There are material factual disputes about whether Barker was within the zone of danger and about maritime nexus. | Even with possible zone-of-danger issues, the conduct relates to non-maritime oil exploration; or the zone issue is not material. | No genuine material facts remain; district court properly granted summary judgment. |
Key Cases Cited
- Demette v. Falcon Drilling Co., 280 F.3d 492 (5th Cir.2002) (OCSLA mileage and maritime law interplay; but-for causation for OCSLA situs)
- Recar v. CNG Producing Co., 853 F.2d 367 (5th Cir.1988) (OCSLA provides federal question jurisdiction; maritime law possible substantive law)
- Grand Isle Shipyard v. Sea‑cor Marine, LLC, 589 F.3d 778 (5th Cir.2009) (en banc; maritime law and OCSLA interaction; nexus concepts)
- Union Tex. Petroleum Corp. v. PLT Eng’g, Inc., 895 F.2d 1043 (5th Cir.1990) (maritime activity and employment context; limits on maritime nexus)
- Texaco Exploration & Prod., Inc. v. Am-Clyde Engineered Prods. Co., Inc., 448 F.3d 760 (5th Cir.2006) (OCSLA framework; offshore drilling not maritime commerce in general)
- Hufnagel v. Omega Serv. Indus., Inc., 182 F.3d 340 (5th Cir.1999) (application of maritime law under OCSLA; offshore construction not maritime activity)
- Foremost Ins. Co. v. Richardson, 457 U.S. 668 (1982) (two-prong Grubart test for maritime jurisdiction (location and connection))
- Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995) (established two-prong test for admiralty jurisdiction (location and connection))
- Sisson v. Ruby, 497 U.S. 358 (1990) (two-prong framework and maritime nexus concept refinement)