Demette v. Falcon Drilling Co.

indemnity agreement. invalidate the Before HIGGINBOTHAM affirm. We FISH,* DeMOSS, Judges, Circuit Judge. District HIGGINBOTHAM, E. PATRICK Rental Casing & Crew Frank’s Judge:

Circuit USA, Drilling Tools, R&B Falcon Inc. and Union Oil contractors with are both Inc. to the Petition prejudice Without off for Unocal’s Company of Third California Party Defen- En Banc of Rehearing pro Frank’s operations. drilling & shore Casing Franks Crew dant-Appellant “Casing” is ac- casing re- services. Tools, Inc., vides we substitute Rental * (2000). etseq. § 1331 2. 43 U.S.C.A. of Tex- District Judge of the Northern District as, designation. sitting by (2000). etseq. § 901 1. 33 U.S.C.A.

tivity performed during oil, the drilling for pipe end-to-end as the is driven into the offshore; whether onshore or it involves seabed a large hammer. While Dem- “welding together and hammering of ette was working at the base of the derrick pipe into the subsurface of the earth to pipe where the driven, being a metal permanent create a construction.”3 retaining ring used to secure hoses fell derrick, from the striking him on the signed

Frank’s and Unocal head. “Services At the time of Demette’s Drilling injury, Contract.” Master Fal- Under Contract, Rig # jacked Master provided up. Frank’s casing legs Its rested services to the outer Unocal offshore continental shelf of the Unit- Contract, sites. Under the beyond Master ed States Unocal territorial waters of agreed to indemnify defend and Frank’s Louisiana.5 against any liabilities Frank’s owes to Demette sued Falcon injuries. for his Unocal, and agreed Frank’s to defend and Falcon, pursuant to the Offshore Daywork indemnify Unocal and all of its contractors Contract, Drilling filed a third-party com- and against subcontractors liabilities plaint against Unocal for defense and in- may owe to Frank’s. Falcon was con- a demnity. Unocal voluntarily assumed the tractor of Unocal. defense of Falcon. Falcon then filed a provides Falcon rigs movable from third-party complaint against Frank’s, casing crews drill offshore wells. seeking defense and pursuant indemnity Falcon has an Daywork “Offshore Drilling the Master Contract. Contract” with Unocal. pro- This contract The district granted court summary vided Unocal with access to all of Falcon’s judgment to Falcon on the issues wheth- vessels for drilling. offshore pro- Falcon er Frank’s owed defense indemnity

vided Unocal Fal-Rig # jack-up a Falcon. Frank’s agreed to fund a settle- drilling rig. A jack-up drilling rig is a ment with Demette and to pay Falcon’s floating rig legs that can be lowered costs, defense but made a full reservation into the seabed. Once the legs are se- appeal rights. A judgment consent seabed, cured in the rig can be pursuant entered agreement. to this “jacked-up” out of the water to create a platform. process The can re- appeals Frank’s the summary judgment versed, and a jack-up rig can be towed ruling indemnity and defense. new sites.4 Pursuant to the Master Contract be- II Unocal, tween plaintiff Frank’s and Kermit Demette, Frank’s, Outer Continental employee of Shelf Lands Act6 worked provides comprehensive aboard the # Fal-Rig 85. Demette was choice-of-lawrules injured while performing casing regulation federal to a range work as a wide welder on the # Fal-Rig activity 85. He part occurring beyond the territorial job,” of a “hammer which involves a casing waters of the states on the outer continen- welding crew together pipe sections of tal shelf of the United States. Relevant to Campbell 3. See Drilling, Sonat opinion, In this we define OCS to exclude Offshore Inc., (5th 1992). 979 F.2d 1118 n. Cir. lying lands beneath the waters territorial 1331(a). § states. See 43 U.S.C. Schoenbaum, 4. Thomas J. Admiralty 3-9, (West Maritime Law 100 n. 8 2d (2000). 6. 43 seq. U.S.C.A. 1331 et 1994), Ed. jack-up rigs describes and other rigs. therefrom, or producing resources certain case, federal law to applies this other device OCS, installation or any such incor- on the and devices structures vessel) (other ship for the than law on the law into state federal porates resources, transporting such OCS, LHWCA to certain applies the if were [OCS] extent as to the same working on by persons injuries sustained jurisdiction exclusive Federal an area of the OCS. located within state.8 case, dispute whether parties Fifth and the Circuit the Master governs law Louisiana state a “situs” creates held that this section have makes whether the OCSLA Contract of other application requirement Com- and Harbor Workers’ Longshore OCSLA, including sections sections to Demette’s in- Act7 pensation 1333(b).9 1333(a)(2) the Su- Neither First, must determine whether we juries. parsed nor this court has situs; preme Court if on an OCSLA injury occurred specify the statute to language of precise inquiries: we must so, have two we then test it es- of the situs the exact contours makes state whether determine do upon called so tablishes.10 We if determine and we must applicable; today. the makes injured party’s status the We under OCSLA. applicable LHWCA A the text of the statute. relyWe on three OCSLA a review of the

begin with 1333(a)(1) re- of section inspection close case. make this we must inquiries sets of applies primary to two that it veals of the subsoil and seabed subjects: the “to 1333(a)(1): Test Situs A. Section islands, [OCS]”; all artificial “to 1333(a)(1) reach describes the of perma- Section and other devices all installations law within applies federal the the OCSLA temporarily attached nently or laws and It the states that further scope. category this is This latter seabed.” extend States of the United artificial jurisdiction those categories: into two divided installations, “erected” islands, or devices [OCS] subsoil and seabed to the exploring of purpose “for the islands, on the OCS and all artificial instal- and to all for, producing resources” developing, or permanently or and other devices lations OCS, than seabed, and those “other the temporarily attached “trans- purpose is whose ship or vessel” thereon for the may be erected for, porting such resources.”11 exporing developing, [sic] "artifi- (2000). separate from as a unit other device” etseq. § 7. 33 U.S.C.A. 901 entire In the context islands.” cial section, 1333(a)(1). § 43 U.S.C.A. however, Congress it is clear that installations, islands, and oth- used "artificial Tallentire, Logistics, 477 v. Inc. Offshore single category. 43 See as a er devices” 2485, 2, 106 S.Ct. & U.S. 217-20 n. 1333(c) (using phrase "artifi- § U.S.C.A. the Director, (1986); Mills v. 91 L.Ed.2d installation, island, device re- or other cial Cir.1989) (5th OWCP, 361-62 877 F.2d section”); (a) this ferred to in subsection (en banc). (same); 1333(d)(2) 43 U.S.C.A. § 43 U.S.C.A. 1333(d)(1) phrase is- (using "artificial § 1333(b) and interpreted held section 10. Mills lands, installations, devices referred and other injuries do apply to that could section”); (a) subsection to in 877 F.2d at 362. the OCS. occur or over (same); 1333(e) U.S.C.A. § U.S.C.A. Further, (same). imag- 1333(0 it is hard 1333(a)(1). The reference 11. 43 U.S.C.A. not subsumed island that is sug- ine artificial other device” "any installation or such other de- category "installations into the Congress "installation or treated gests that 1333(a)(2): Thus, B. important draws dis- Section Incorporation OCSLA categories between the two State tinctions Law islands, installations, other artificial met, If the situs is test section Each category devices. defined 1333(a)(2) provides “[t]o the extent former, purpose of the device—the extrac- are and not inconsis- latter, resources; transporta- tion of subchapter tent with this or with other also in- tion of resources. former ... Federal laws civil and criminal phrase, “which may cludes the be erected adjacent hereby laws of each ... State OCS],” does not. while latter [on declared to law the United States Conversely, phrase, the latter contains the OCS situses as defined [on section vessel,” or while ship “other than a 1333(a)(1)].” 1333(a)(1) Sections former does not. 1333(a)(2) together provide a rule incorporation of state law as fed- surrogate incorporate these distinctions We governing eral law arising claims out of following into rule: activity on the OCS. This court has articu- applies to all of the follow- OCSLA three-part lated the in a rule test an- ing locations: nounced in Corp. Union Texas Petroleum (1) OCS; seabed subsoil and (“PLT’):12 PLT Engineering (2) island, installation, artificial or (1) govern,] law to [For state The con- other device if troversy must on a arise situs covered (a) it permanently temporarily (i.e., subsoil, seabed, attached to the seabed artificial permanently structure or tem- OCS, and thereto). (2) porarily attached Federal (b) it has been erected on the seabed apply maritime law must not of its own OCS, of the (3) force. must state law (c) presence its on is to the OCS inconsistent with law.13 Federal for, explore produce develop, or disputes arising For out of contracts— OCS; from the resources indemnity including contracts for offshore (3) island, installation, any artificial or drilling—the courts of this circuit have if other device held that if the contract is a maritime (a) it permanently temporarily is or contract, applies maritime law federal

attached to the force, seabed ap- its own and state law does not OCS, and ply.14

(b) vessel, it ship is not a or 1333(b): C. Section Status Test (c) presence its on the is to OCS 1333(b)

transport resources the Section extends the employed OCS. to non-seamen on the LHWCA permanently temporarily Hodgen Corp., vices or attached to 14. See v. Forest 87 Oil F.3d 1512, Making Cir.1996) the text, sense (5th seabed." of text con- (observing 1526 that the islands, conclude we that "artificial second factor in the PLT test is identical to all other installations and devices" form a contract is determination mari- single category. Builders, time); Co. v. A&B Diamond Offshore Inc., (S.D.Tex.1999) F.Supp.2d 75 681 (5th 1990). 12. 895 F.2d 1043 Cir. contract). (applying Hodgen indemnity to an Id. at 1047. 13. falls into It therefore injury. following Demette’s it creates Specifically,

OCS. it situses: category of OCSLA inju- second applies LHWCA test: “status” temporarily attached operations device a result was a “occurring as ries seabed, on the OCS purpose of was erected for the which [OCS] on the conducted removing, or for oil.17 for, developing, purpose of exploring re- the natural by pipeline transporting Fal-Rig that since argues Frank’s In order for [OCS].”15 ... of the sources apply vessel,18 cannot # is a of section apply by virtue the LHWCA that the argument is Frank’s to this case. 1883(b), notwithstanding any application ship a or vessel” than qualifier “other force, injured own of its the LHWCA 1333(a)(1) application precludes the section require- satisfy the “status” must worker no argument has This OCSLA. 1333(b) the situs as well as of section ment above, the statute As discussed merit. 1333(a)(1).16 requirement section islands, installa- to artificial twice refers or tions, permanently and other devices Ill Once the seabed. temporarily attached to A. Test Situs ship than qualifier “other it inserts vessel”; give not. We once does Here, of sec requirement situs wording of the two to the different 1338(a)(1) # effect Fal-Rig met. tion differently.19 reading them phrases time of at the jacked-up over the OCS Co., 1333(b)(1) F.2d 228-32 1333(b). Barge Line Union Section 43 U.S.C.A. Cir.1971) (unseaworthiness (5th involv- action ves- and crew of expressly excludes masters undergoing repairs on marine rail- ing boat sels. Thus, argument way). dissent's Mills, F.2d at 361-62. 16. See tem- rig stops being a vessel when it jack-up implicates the water porarily lifts out 1333(a)(1). 43 U.S.C.A. boat, ship, barge, special- treatment temporarily taken out of that is purpose vessel has beyond dispute. This circuit 18. This Further, dissent's definition navigation. special-purpose movable repeatedly held that vessel, object requires “float including jack-up rigs, are ves- drilling rigs, water,'' submersible exclude also admiralty meaning law. within the sels (when submerged), 460; Smith, rigs and submarines See, Co. e.g., F.2d at 960 Offshore (which displace Cir.1959). hydrofoils 769, (5th employing Robison, boats F.2d 776 v. 266 mass). their water than challenge less to definition dissent's The argues a misplaced. The dissent vessel is States, 16, U.S. 464 Russello v. United 19.See jacks rig stops being a vessel jack-up when (1983) (“We 296, 23, 78 17 104 S.Ct. L.Ed.2d Tinkering up. the maritime definition concluding that the here differ- refrain under- a centuries-old vessel would overturn has the ing language subsections two a See The standing of constitutes vessel. what Also, each.”). 28-32, meaning the use of 17, Parsons, same 24 U.S. W. Robert implies "temporarily” that devices that (1903) 8, (reviewing term author- S.Ct. 48 L.Ed. 73 capable and are detach from seabed to can long able and intended ity). As as a boat is i.e., vessel, vessels—can on even navigation, it a movement remains sea— return land, scope OCSLA. dock, of the fall within storage or other- dry when in between devices statute draws Thomas J. distinction the water. See wise removed from transport used Schoenbaum, to extract and devices Admiralty Law used and Maritime that mere- 1994). to exclude vessels (West serves circuit has resources ed. This 88-92 2d transport oil tankers removing ly resources: rejected repeatedly the notion by the transport covered devices it of vessel like. water divests hull from the vessel's explicitly are pipelines, which Development are See Eastern status. American 1333(b), Marina, Inc., and similar in section 608 F.2d mentioned Everglades Corp. v. that the Cir.1979) (contractual stat- 123, (5th A further indication ac- structures. 124-25 being contemplates OCSLAsituses vessels storage); v. ute involving dry Delome tion boat This result is prece workers, consistent with the while floating rig workers, even dent of this circuit. As we noted in those Hod whose tasks are essentially identical gen performed v. Forest tasks Corp.,20 Oil our holding platform fixed workers, are Domingue v. treated Drilling differently.”25 Ocean Exploration This out-of-context statement cannot carry Co. supports implicitly the holding Frank’s case. In the context of the facts that a jacked-up rig is an OCSLA situs. case, this statement addresses the Domingue applied state to an indemni fact that the employee injured on a agreement ty regarding injury an on a tender working alongside a platf fixed jacked-up drilling rig, explicit but failed to (in orm.26 Tenders are Longmire vessels ly address the requirement situs it was a converted warship) that are often OCSLA, focusing instead on the question anchored next to drilling platforms to ser of whether applied.22 state law Since the platforms vice the ferry workers to incident occurred on the beyond OCS and from the Longmire shore. does not Louisiana, territorial waters of the only involve a floating rig, let alone a jack-up way state operated law could have bywas rig; the “floating” rig opinion refers to incorporation into federal law under OCS- tender, is this which was attached to the LA.23 only OCS by an anchor. In Parks v. Do The amicus supporting quotes Frank’s well Division Dow Corp.,27 Chemical we Longmire v. Drilling Sea Corp.,24which explained Longmire, noting that tenders states: “The platform OCSLA covers fixed are not extensions fixed rigs 1333(b)’s form, is section exclusion of "a master it need not question address the member of a crew of vessel” from jack-up whether a Dupre is OCSLA situs. coverage LHWCA on OCSLA situses. If OCS- Drilling 474, Corp., Penrod 993 F.2d 476-77 vessels, LA situses never provision (5th 1993), Cir. regard follows Smith in this surplusage. be mere The dissent's equally distinguishable. Frank’s also contention that an OCSLA situs cannot be a cites Pipeline Tennessee Gas v. Houston Cas. ignores vessel these textual indications to Co., (5th Ins. 1996), F.3d 155-56 Cir. contrary. proposition for the that vessels are not within jurisdiction the OCSLA purposes. for removal (5th 1996). 20. 87 F.3d 1512 Cir. This claim is incorrect. Pipe Tennessee Gas line jurisdiction finds removal over maritime (5th Cir.1991). 21. 923 F.2d 393 involving platform claims a fixed that was jurisdiction; within OCSLA it makes no Id. at Hodgen, 395-98. 87 F.3d at 1525- claims about vessels. Frank’s claim stems Domingue notes that failed discuss the from its confusion of "vessels” with “mari requirement. situs time claims.” While maritime claims cannot generally court, be removed to federal claims 23. Frank’s cites number challeng cases arising under federal statute can be. While conclusion, ing this none which are appo presence of a vessel in the facts of a case site. Frank's relies on Smith Penrod Drill may plaintiff a allege allow to claims under ing Corp. (5th 1992), 960 F.2d 456 Cir. law, presence maritime of a vessel does arguing that a vessel cannot be an OCSLA other, not convert non-maritime claims into holding situs. The of Smith was that mari unremovable claims. maritime law, law, time and not applied Louisiana to indemnity agreement regarding jack-up a (5th 1980). 24. 610 F.2d 1342 Cir. rig. Id. at straightforward 461. This is a application second prong of the PLT 25. Id. at 1348. nothing test and has to question do with the jack-ups whether can be OCSLA situses. Indeed, 26. Id. at explicitly 1344-45. Smith found that since the implicated accident that indemnity agree fixed, ment permanent occurred on plat- (5th a Cir.1983). 27. 712 F.2d 154 500 The casing installation services.” “provide apply seabed, does not OCSLA against each other a indemnified parties conclusion Longmire’s them.28 employees. not rele- their brought situs is an OCSLA claims is not

tender mention explicitly case.29 does not facts of this contract vant to the it con- unclear whether vessels, it is injury of an sum, arises out this case exclusively offshore templated work the section situs. Since an OCSLA on and onshore. work both offshore satisfied, 1333(a)(1) is requirement to this case. applies relating a contract Determining whether is often a drilling is maritime to offshore Law State Incorporation B. circuit This utilizes affair.31 perplexing step to consider logical is next Sons, Inc. v. & two-step of Davis test applies as a surro Louisiana law whether whether a to determine Corp.32 Oil Gulf section under federal law gate consider, first, maritime. We is contract above, 1333(a)(2). this circuit As stated in the treatment “historical the contract’s test to determine the PLT applies second, and, specific jurisprudence” prong The second of state law. application categories of For some the case.33 facts of does maritime law test is that of the PLT contracts, is suffi treatment the historical mari Because own apply of its force. not fact-specific inquiry ciently clear that force, of its own Louisiana applies law time This is such a unimportant.34 becomes apply in this case.30 not law does case. Con- to the Master applies law Maritime indemnity pro- has held court This if the Unocal Frank’s tract between offshore cas- provide in contracts Mas- visions contract. The a maritime contract is con- Even a maritime.35 ing services that Frank’s would ter stated Contract contract, par- whether a tempt to determine Although arguably an an- at 28. See id. seabed, gas and oil ticularly to offshore a ten- one ship a linked "attache[s]” chor der, rig, jack-up on state or maritime production, governed is "erected” is unlike confusion."). OCS. has led much stating legislative history also cites 29. Frank's Cir.1990). 313, (5th 315 32. 919 F.2d phrase [OCS]” above that the "waters requirement of what from the situs deleted 316; Campbell v. Sonat at see also Id. 1333(b) make in order "to section became 1115, Inc., Drilling, 1121 979 F.2d Offshore application the [LHWCA] more definite Cir.1992) (5th (describing character two-step employed ves- other than to workers those test). the Davis Cong., 1st Rep. 83d No. sels.” Sen. (1953). Unfortunately for Sess. 23 Smith, example a case Frank's, of such dele- 34. An requirement that this the situs deleted, leaving no at 459-60. F.2d left behind later tion enacted version requirement situs above, section As noted Drilling, that subsection. Campbell v. Sonat 35. See Offshore 1333(b) requirement. only a Smith, status 1120-21; contains see also F.2d (holding to "work that contract F.2d we apply, does not Louisiana law 30. Since maritime); Diamond rig jack-up over” it is decide inconsistent need whether Inc., Builders, A&B Co. v. Offshore If the contract law in case. with federal (hold- 676, (S.D.Tex.1999) 679-81 F.Supp.2d maritime, were we in this case jack-up rig repair a ing for that a contract law incon- whether Louisiana is then consider maritime); v. Production & Gilbert Offshore law. applicable federal sistent with 149959, (E.D.La. Inc., *4 WL at Salvage, 1997 21, 1997) (holding that a contract to Sons, Cmp., March Oil Inc. v. 31. & See Davis Gulf is mari- drilling supervision 313, (5th Cir.1990) ("The services provide at- 315 919 F.2d

501 ette, drilling tract for offshore services to drive and feet weld 416 of pipe # Fal-Rig vessel if 86 the rig does not mention is maritime while was jacked-up; actually performed this crew its requires execution use vessels.36 job described; the hammer the work order This is true contracts that also may Demette was working on a vessel over performed land.37 obligations involve waters; navigable an casing integral Thus, compels precedent virtually circuit part drilling, primary pur- is the the conclusion that this is a maritime con- vessel; pose of the principal Demette’s tract. work a was as welder performing casing The Davis factors confirm this result. work; and Demette performing casing Davis lists six factors to consider in deter- Thus, services at the time of the accident. mining lend whether the facts of the case all point six factors to the same conclusion: sufficiently the contract “salty a flavor”38 the and the injury contract that invoked it for a court to deem maritime: were maritime nature. 1) specific what work order in does C. Status Test pro- effect at the time of the injury vide? Having concluded that applies, law, does not incorporate but state 2) assigned what work did the crew un- only remaining issue under the OCS- order actually der the work do? LA applies is whether the LHWCA 3) assigned was the work crew to do 1333(b) Demette virtue of section of the in navigable aboard a waters[?] vessel It injured OCSLA. does. Demette 4) to did being what extent the work doing casing while Casing work. work is done relate to mission of the ves- injuries case of “occurring model as a sel? operations result of conducted on the 5) principal what was the work of the for, exploring [OCS] for the injured worker? and developing, removing, transporting 6) injured what was the work worker pipeline natural ... resources doing inju- at

actually the time of the [OCS].”40 j*y?39 injury We thus conclude that oc- case, In this provid- Demette’s work order situs, an curred on OCSLA that Louisiana operator, ed for a hammer a hammer me- apply, law does not and that the LHWCA chanic, welders, applies Dem- including four to this case virtue of section Inc.,

time); Campbell Pipeline, v. found to be contracts non-mari- maritime Offshore 302623, (E.D.La. Aug.5, 1993 WL at *3-4 time. 1993) (holding welding contract for maritime). Davis, pipeline services of on the OCS is See F.2d at 315-16. 37. Co., Co., Drilling 36.See Lewis v. F.2d Glendel See Kossick United Fruit 365 U.S. 38. 731, 742, (5th 1990) (1961). (holding 81 S.Ct. Cir. con 6 L.Ed.2d 56 provide tract to offshore services is vessels). Davis, maritime does even if it not mention 919 F.2d 316. involving Contracts vessels tend to be deemed PLT, (de maritime. 1333(b). See F.2d at 1048 § may 43 U.S.C.A. That Demette scribing "oversimplified” an longshoreman test as "whether by operation be a vessels, ships transaction relates to LHWCA itself seems to be little conse- mariners, agents masters and as the quence; language of com of the OCSLA is clear. Schoenbaum, merce”). Admiralty point important analysis and Mar becomes This 905(c) provides itime Law 3-10 list of extensive of 33 U.S.C.A. below. 1333(b). example, by address the conse- covered section 1333. For We now perfectly say, “Demette is sensible to is of our conclusion that section quences 1333(b) eligible to receive benefits to LHWCA applies the LHWCA this case. virtue

virtue of section and also IV itself.” makes LHWCA This sentence “by we vir- sense because understand provides the exclu LHWCA imply exclusivity. tue of’ does injuries employees remedies for to sive “exclusively” “solely” would adverbs subject to the It injured while LHWCA.41 meaning have indicated the Frank’s advo- employees an action creates such cates, those words are absent from the but owner) (including its against vessel statute. working employee when 905(b) of the injured.42 Section LHWCA might question plain meaning We our ves employers indemnifying bars “by if interpretation of virtue of’ Frank’s However, liability.43 if sel from LHWCA something identified in the context injured to the employee entitled indicated that those words statute “by of the virtue of’ benefits LHWCA narrower, have meaning. more technical 1333(b) OCSLA, then section of the section Further, But none. what there is little 905(c) “any states that LHWCA 905(c) legislative history sup- has section indemnity provision” reciprocal between ports reading Congress text. our employer and the is enforcea the vessel 905(c) part of the Long- enacted section as ble.44 Compensation shore and Harbor Workers’ meaning to case is the Central this Act Amendments of The House 1984.46 “by ar- phrase virtue of.” Frank’s Report47 language in Conference discusses directly gues that Demette is covered the'bill; this lan- Senate version LHWCA,45 and therefore section 905(c). guage section The Confer- became 905(b) indemnity agreement be- bars Report ence stated that “the Senate bill Falcon Frank’s. Frank’s reads tween exemption Longshore provides an to the 905(c) apply only persons to en- section proscription indemnity Act’s current exclu- titled to receive LHWCA benefits [905(b)] agreements under section “by the OCSLA. ac- sively virtue of’ We legalize Act.... The bill would those in- knowledge interpretation demnity agreements apply insofar as do violence to the text the statute. Thus, Continental Shelf.” Outer 905(c)’s however, Report Ordinarily, give we should the Conference treats section plain meaning. persons entitled to benefits of statutes their limitation words “by “by applying meaning of of section 1333” as The most obvious virtue virtue OCS, persons all connected simply 1333” is that the de- section worker LHWCA, 905(a). engaged employee § must be 33 U.S.C.A. 41. See employment navigable in maritime over wa- ter, not a See 33 U.S.C.A. but seaman. § 42. See 33 U.S.C.A. 933. Director, 902(3); § OWCP v. Perini North Riv- Assoc., U.S. S.Ct. er 905(b). 43. See 33 U.S.C.A. (1983). L.Ed.2d 465 905(c). 44. See 33 U.S.C.A. 98-426, (1984). 46. No. 98 Stat. 1639 Pub.L. parties agree Both seem to that Demette is (1984), Rep. reprint- No. 98-1027 longshoreman by operation of H. Conf. the LHWCA longshoreman ed U.S.C.C.A.N. 2771. qualify To as a under in 1984 itself. OCSLA, by any reciprocal fined without refer- indemnification the is and therefore persons exception qualify- ence to any valid.51

ing the directly under LHWCA. finally Frank’s if argues even sec- argues construing Frank’s section 905(c) 905(b) pro- tion the removes section 1333(b) apply already to to workers direct hibition, Louisiana law the in- invalidates ly covered the causes some LHWCA agreement. demnity As we already have so, may anomalies. While this this is a concluded, however, Louisiana does 905(c), result not of the existence of section not apply to this contract. 905(c). interpretation any of section Any draw will line we leave some indemni V ty agreements valid and invalid. A others sum, case; In applies the OCSLA to this employees line per between LHWCA on Louisiana law not apply surrogate does as platforms manent and all other LHWCA OCSLA; federal law under the and be- employees any not arbitrary more than subject cause Demette is to the LHWCA employees per line between LHWCA on OCSLA, by virtue of the indemnity temporary platforms manent or all agreement between Unocal and Frank’s is fact, other In employees. LHWCA valid. Judge cogently argued Campbell Sear v. Inc.,48 Pipeline, interpreting sec conclusion, reaching this Offshore we acknowl- 905(c) employees tion to include are who edge puzzlement the dissent’s con- covered virtue both the LHWCA and jack-up rig clusion that a is a vessel and OCSLA eliminates some anomalies.49 apply that maritime on law can an OCSLA 1333(b) But disagree situs. we that en banc rever-

Given that section of the OCSLA Demette, precedent sal of established circuit is in applies plain to language 905(c) indemnity Although section order. current law dictates that suffers contract, valid, reciprocal, complains if notwith- inconsistencies the dissent 905(b).50 of, standing changing may section Since the law of Frank’s this circuit not other, Instead, improve Unocal each indemnified the the situation.52 (E.D.La. 1993). Aug.5, grap- 1993 WL 302623 also cannot be deemed vessels does OCSLA, ple text of which con- (noting contrary 49. See id. at *5 that a inter- templates OCSLA situses that are vessels. See pretation would lead to different treatment of Parts II.A and III.A. We also note that even if indemnity agreements two when two workers OCSLA, ignore we text were injured platform, on same but one is purposes examination of the of the OCSLA directly not entitled to benefits under yield does not so clear an answer as the LHWCA). circuit dissent indicates. This has noted originally designed gap-fill- OCSLA was as a argues interpretation also that this Frank’s Director, OWCP, ing Mills v. statute. 905(c) 905(b) section renders section banc). (5th Cir.1989) (en F.2d This 905(c) nullity. ap- This is nonsense. Section platforms fixed on the OCS were because plies only only OCS and when the juris- vessels nor within the neither territorial reciprocal. contract is thus, state; applied diction of no law gap applying The OCSLA them. filled signatory 51. That Falcon was not a surrogate state law as federal law those reciprocal indemnity agree- Unocal-Frank's however, platforms. Floating rigs, were al- ment does not alter this result. We have so law, subject ways to maritime and thus did Campbell Drilling, held Sonat Offshore linger occupied by in the lawless limbo Inc., (5th Cir.1992). 979 F.2d platforms prior to the enactment of Thus, legislative history applying 52. the OCSLA's dissent's recourse to OCSLA. argue provision only of the OCSLA to that OCSLA situses choice-of-law when "maritime (and adjacent law is the which extended federal source of the dissent’s vexation law) the and of “to sub-soil seabed itself, state by introduc- statute and to all the Outer Continental Shelf to ing of terra firma a seaward the law islands and structures line- unavoidably arbitrary requires realm artificial fixed the may which be erected thereon application of terres- drawing between the re- for, developing, exploring the trial and the law of sea.53 law of resources moving, transporting and grant district court’s We AFFIRM the 4(a)(1), See Stat. therefrom.” judgment Frank’s. summary against of added).1 (emphasis of fed- extension contemplated by this provision eral law DeMOSS, dissenting: Judge, Circuit if the to “to the extent as be same majority panel arrives at Because were area of Outer Continental Shelf an their case without consider- decision jurisdiction with- exclusive federal located cases and Supreme ation of three Court subsequent in a state.” Id. The sub- statutory two amendments which I think paragraph provided of this same section conclusion, require respectful- a different each the civil and criminal laws of ly dissent. to adjacent hereby state “are declared por- the law the for that United States Rodrigue First —The tion of the sub-soil and seabed of Court Case Shelf, and is- Outer Continental artificial 7, 1953, the August On United States lands fixed structures there- and erected on, Congress passed the Outer Continental which would be within the area of the (hereinafter “OCSLA”), Act if sea- Shelf Lands state its boundaries were extended force,” PLT, floating longer jack- apply rigs law its no vessels own when [does] 1047, gap- up equally OCS. draws 895 F.2d at is consistent with the This an filling strange rigs purpose of OCSLA. line between that lift out of the not, rigs water and do when to drill even Further, both are OCSLAsituses. this creates By surrogate applying 53. as state law federal problem determining rig situses, has when requires law the OCSLA to offshore sufficiently jacked-up ap- been to switch the draw between zones courts to lines plicable admiralty surrogate to fed- law from surrogate applies law which federal complicates questions eral This in law. turn admiralty applies. interpreta- which No applies occur of what law to incidents that tion the OCSLAcan eliminate the arbitrari- rig jacking up applies while a or which law precedent ness Our of such lines. circuit governing rigs. jack-up to contracts the use of floating rigs essentially draws a line between platforms, may seem fixed arbi- 1953, trary light by oper- purposes "jack-up rigs” In there were no cited PLT, ating area as the Conti- dissent. F.2d at One alterna- in the defined Outer tive, treating rigs engineering technolog- jack-up as vessels but also nental Shelf. applying surrogate produced "jack-up” in- to them federal law ical skills which the first law, strange rig developed stead maritime would draw a were until in the late 1950s rig perma- operators early line who are 1960s. The use of term "fixed between (who nently assigned floating rigs descriptive are crew structures” in OCSLA was members, being type actually would be excluded from of devices used on thus OCS; 1333(b)(1), coverage by probably not be LHWCA section but and therefore should only. lack remedies because read restrictive to those structures would also seaman’s apply) opera- rig usage, its the term "fixed struc- maritime law would not traditional compo- temporarily assigned floating rigs to a tors ture” referred structure that's shore, (who assigned platforms nents manufactured on then float- covered were 1333(b)). barges, alter- ed out a well site on and then LHWCA section Another native, dissent, water. proposed by the assembled and erected on site in the deem margin Co., Aetna drigue Casualty Surety to the outer of the Outer ward & Continental Shelf.”2 395 U.S. 89 S.Ct. 23 L.Ed.2d 360 (1969), unani- significance This Circuit considered White, mous decision written Justice cases, statutory provisions these two reversed the decisions of the Fifth Circuit (5th Co., Dore v. Link Belt 391 F.2d 671 and stated: Cir.1968), Rodrigue Casualty and v. Aetna In of light principles the of (5th Cir.1968). traditional Co., Surety 395 F.2d 216

& law, admiralty [DOHSA], the Act Seas of a Each of these cases involved the death [OCSLA], Lands Act the we hold rig which on a on worker occurred petitioner’s that remedy under the platform a fixed the Outer on Continental Act and case, Lands Louisiana law. The plaintiff sought In the each Shelf. Act that law, Lands makes it clear federal relief under state Louisiana which law, supplemented by by state law of the contended made State, adjacent applied that is to be to these The defendants contended OCSLA. artificial only though they relief could made under Death islands as were be the (“DOHSA”). upland Act In High the federal enclaves in an on Seas State. holding only approach deliberately that relief was available under This taken DOHSA, Circuit treating vessels, the Fifth stated: lieu of the structures as to admiralty supplemented by which law think both

We that a consideration of jurisdiction of the law the of the vessel’s intrinsic and extrinsic factors requires apply.... owner would Since Seas it conclusion that was the intention (a) apply Act not does of its own force Congress be that this occurrence Federal, law, admiralty State, principles, under and since the governed by not (b) deliberately ap- Lands Act eschewed the thereby promul- that the Federal law pervasive plication principles gated admiralty to these maritime structures, law of the In novel law United States. connection Louisiana is not phase Act, with the latter ousted the Seas and under choice —the Congress again law—it it applicable. maritime Lands Act is made important keep to mind that we are very In a comprehensive Id. at 1837. dis- Congress an area in which has an almost legislative history cussion of OCS- power unlimited to stan- determine what LA, on to Court went make comprise dards shall the Federal law. following comments: Dore, 391 F.2d at 675 (quoting Pure Oil if admiralty 1. “Even law would (5th Snipes, F.2d Cir. Co. to applied occurring have the deaths 1961)). principles, under these cases traditional granted The legislative history certiorari shows Con- cases, First, in both argued gress which were did not intend that result. together. cases, an opinion covering both Ro- Congress admiralty assumed that phrases admiralty admiralty The “general applies” majority law as the law” which 2. appear anywhere "maritime law” do opinion. footnote asserts in 53 of the There- 1953; passed originally the OCSLA as fore, statutory majori- is no there basis phrases these not inserted were (based holding ty’s prong on the second Amendments to OCSLA later. discussed PLT) we must determine whether first Likewise, (and there is not now has never applies admiralty and maritime of their law been) any in the language OCSLAwhich "re- applying own accord before these choice-of- quires courts to draw lines between the zones provisions of the law OCSLA. surrogate applies in which federal law and in placed 1. the Outer Congress Structures on apply would not unless “for the Congress then decid- Continental Shelf apply,

made for, exploring removing, and apply. legislative developing, ed not make it therefrom,” resources transmitting it clear history of Lands Act makes vessels; be treated that these were to structures within island as federal enclaves 2. decided that maritime Congress Id. State, not as vessels.” landlocked structures; apply law does not these 1840. laws of the State of Louisiana hearings scrutiny “Careful activities these struc- apply will eliminating the basis for were laws tures the extent such state Act Lands the treatment are not with other federal inconsistent convinces us

artificial islands as vessels laws. change, to- that the for this motivation adoption law as

gether with the of state Statutory The First Amendment law, view that surrogate federal was the maritime to these inapposite law was adopted comprehen- Congress In fixed structures.” Id. at 1841. OCSLA. See Pub.L. to sive amendments 203(a) (1978). 95-372 Section of this statu- that it committee was aware “The tory as amendment reads follows: power activity had the to treat on these (a) 4(a)(1) of Section SEC. 203. though artificial as it occurred islands (43 Shelf Lands Act Outer Continental very And decision ship.... aboard 1833(a)(1)) U.S.C. is amended— recognized to do so in the initial bill adopted explicitly, if it mari- were (1) by striking out fixed struc- “and not apply time would to these simply thereof, in inserting tures” and lieu ” Id. structures.... stationary per- “all installations other devices (citations omitted). manently temporarily to or attached seabed,”; and special relationship be- “[T]he (2) by “removing, striking out working on these artifi- tween the men resources transporting therefrom” and shore adjacent cial islands and to inserting producing in lieu thereof “or commute to their fami- visit therefrom, or instal- any resources such recognized by dropping lies was also (other ship lation or other device than a treatment of these structures as ‘vessels’ vessel) transport- or for instead, objection over the of the ing such resources.” islands were administration these State, really within a the bill located report The Conference Committee (they) if to treat them ‘as amended regarding the amendment reads follows: (in) were an area of exclusive Federal to Applicable Section 203—Laws ” Id. jurisdiction located within a State.’ Outer Continental Shelf at 1842. Both bill and the House the Senate 4(A)(1) of Supreme decision amend section light of the Court amendment Rodrigue any by changing in later OCS Act term and the absence of all changing “fixed structures” to “and installa- decision Rodrigue, permanently tions devices any of its conclusions and other principles temporarily attached the seabed” and following submit that making changes. now us: other technical The applicable to the case before lan- Report regarding Conference retains this deletion of “fixed structures” guage. and insertion of “all installations other managers

The intent of the in amend- permanently temporarily devices at- 4(A) ing section of the 1953 Act is OCS tached to seabed” in the definition of perfecting technical and and is meant to the situs which apply. OCSLA is to We clarify change restate and and not exist- must assume that when it adopting Report ing law. Under the Conference OCSLA, the 1978 Amendments to Con- language, applicable federal law is to be gress was aware of and considered the to all on all activities devices contact Supreme Court holding Rodrigue. exploration, develop- the seabed nothing Since there is text ment, production. 1978 Amendments legislative nor (1978). H.R. Rep. Conf. No. 95-1474 history which would indicate a desire or Report House Committee No. 95-590 on Congress’ part intention on change any legislation in the following states holdings Court’s Ro- section-by-section analysis: drigue, have to Congress we assume that Applicable Section 203.—Laws to Outer accepted those holdings as Continental Shelf the 1978 Amendments. deletion (a) 4(a)(1) of Section amends section the “and words fixed structures” and the by the Act the changing OCS of the insertion of words “and all installations term in- “fixed structures” to “and all permanently and other devices or tempo- permanent- stallations and other devices rarily attached to the reflect a seabed” ly or the temporarily attached to clear on part Congress intention the to making seabed” and other technical clarify category broaden and of struc- changes. It thus that is made clear tures facilities and to which OCSLA would Federal to all law is to apply; Report and House Committee with activities on all devices contact expressly “drilling ships, 95-590 identifies exploration, development, the seabed for and drilling rigs, semi-submersible other production. The committee intends craft, when they water are connected to the is, therefore, ap- that Federal law to be by string, pipes, ap- seabed drill or other plicable drilling ships, to activities on exploration on the purtenances OCS for drilling rigs, semi-submersible and oth- production or development purposes” as watercraft, they er are when connected being the of activities which situs OCS- by drillstring, pipes, the seabed or view, LA apply. my In there is appurtenances, other on the OCS for question no that development, absolutely at all these exploration, production or purposes. Ships specifi- language statutory changes vessels are eliminate the cally being not covered when basis for distinction which our case used for purpose transporting may past have made in the as between OCS mineral resources. rig” a and “a “jack-up being a vessel fixed vessel, (1978) platform” being not a insofar as H.R.Rep. (emphasis No. 95-590 added). activities on Outer Continental Shelf are concerned. Both our and the Circuit

I have found no Court decision clearly indicated that Court have and no Fifth ex- Circuit decision which Congress power holds the ultimate de- pressly interpret signifi- discuss or fining applicable categorizing law and statutory change cance of language by operations applies made it 1978 Amendments to OCSLA facilities and to which However, mere cargo. vessel and its dealing activities the Outer

when not mean floats does fact that a structure Continental Shelf. float, it is A dock does floating a vessel. majority- premise controlling to land permanently but it is connected us is that Fal- opinion case before Likewise, a anywhere. goes and never vessel, a Because it a Rig 85 is vessel.3 is on a gambling or casino built restaurant admiralty majority says and maritime if barge floating, but it is connected is operations law controls its activities. and utili- mooring land lines by permanent ap- admiralty maritime law Because (water, electricity, gas, sewage, ty lines prevents and plies, body of law moves, a telephones) and never it is not law. If preempts any application state vessel; simply a with a floating it is dock incorrect, majority’s premise is original it, by money restaurant on earns collapses. their of cards then house chance, by games selling food or view, my are bound the Su- we cargo people. pontoon A transporting Rodrigue, preme decision floats, it because bridge but is not a vessel OCSLA, Amendments to Congress’ 1978 Using it place. move once is in does not jack-up rig operat- a conclude when is concepts to assess the characteristics these Shelf, it can- ing on Outer Continental drilling rig, easy to the jack-up come because, being a vessel not be construed as rig is jack-up drilling conclusion it is statutory language, in the “an installa- “jacked up.” when it clearly not a vessel to the temporarily tion attached seabed for jacked up, Fal-Rig it is Clearly, when for, exploring producing jacking process at all. The floating or, gas” in the language oil the Fal- up the hull and work decks of lifts Report (supra), it is “a House Committee out Rig completely of the water. watercraft connected seabed only parts Fal-Rig 85 which are appurtenances drillstring, pipes, or other legs, the are its which extend down- water exploration production purposes.” for or through ward the water the seabed into only by is mandated not This conclusion weight for the support where entire by the new of OCSLA but also language is found in sea bottom Fal-Rig 85 the inter- plain language common sense and jacked-up the hull position, itself. In the is a pretation “what vessel.” high Fal-Rig and decks of the 85 are work says that a “a dictionary The vessel is the water neither ocean enough out of for on traveling craft water.” Webster’s generated nor wind wave action currents (Random Collegiate Dictionary House impacts Finally, in the the work area. 1991). The characteristics quintessential jacked position, Fal-Rig 85 cannot up of a vessel that it floats on and move; longitude water in position terms of its fixed; transporting cargo that it is used for stationary. is it latitude is passengers place to In Fal-Rig from one another. for 85 primary purpose which the water,” sup- order to on it a in the earth “float must was built is to drill hole i.e., by buoyancy, it ported will in order locate oil laws under water and/or Fal- gas them if produce float to extent that volume water found. cutting the displaces weighs Rig it than the earns its revenue for which more opinion, no conten- majority of Texas and there was In footnote 18 of its State Robison, appli- tion need for as to the Co. v. 266 F.2d nor discussion relies Offshore OCSLA, (5th Cir.1959), being original cability which at that time as casualty to "artificial islands and fixed struc- premise; source of but referred its its definition OCSLA situs. Robison occurred in the territorial waters tures” in well, completing per- nally and it hole and constructed a site in the water. jacked only tasks when it is during forms these While it is true that the time a jacked up position, Fal-Rig up. its jack-up rig being is it moved floats and is functionally indistinguishable from a boats, by tug moved like a barge, which drilling platform has been assem- percentage of time involved such moves (1) bled on site in the water: both stand on represents only tiny a fraction of the time (2) bottom; both have legs resting on jacked it up in a position fixed platforms high enough work decks and engaged drilling operations. It is better above the water to avoid currents and labeled, therefore, a drilling as “movable (3) waves; drilling both conduct and platform” only for it moves purpose for the completion gas pro- activities for oil and drilling another location and while I no rational duction. can see basis for drilling it is a stationary plat- fixed and distinguishing platforms. the two Fal-Rig form. To label the 85 as a “ves- sel” when it has a casing being that our driven into recognize case has labeled jack-up “special anticipation a the sea floor in drilling rig drilling with vessel;” in my but view that is a mislabel- a drill stem for thousands of feet into the ing that confuses the realities involved earth is simply nonsense to me. and, light of the 1978 Amendments to In addition to the changes made Con- OCSLA, opera- should not be gress in the definition of what constituted “spe- tions on the Continental Shelf. The purposes “situs” for of the Outer Conti- purpose” jack-up rig, cial of a which is Act, nental Shelf Lands the 1978 Amend- gas, oil and nothing for has to do ments to also changes perti- made traditional maritime in- activities or (1) nent to our discussion here adding for oil Drilling gas terests. does not “exploration,” definitions the term markers, any buoys, create channel or oth- “development,” “pro- term and the term to navigation. Drilling er aids for oil and previously duction” which had not been gas improve does not enhance or- the navi- Act; (2) included the 1953 delet- gability of the waters in occurs. 4(c) ing from old Act Drilling gas for oil and does not facilitate (b)” phrase “described in subsection A loading unloading of vessels. in lieu inserting thereof “conducted on the

jack-up drilling rig is a structure designed Outer Continental Shelf for the (1) and constructed to contain and house in for, exploring developing, removing, or spaces, living one structure all of the work by pipeline transporting the natural re- spaces, machinery, engines, and pumps, ... sources of the sub-soil and seabed of hoists, racks, derrick, generators, pipe ap- the Outer Continental it Shelf’ as cranes, other equipment required and to (b) peared § in old subsection of the drilling operations conduct into the earth 1953 Act. While these amendments were (2) to float in required water when to nature, more or less technical move from one drill site to another but clearly that Congress demonstrate consid- jack up then itself out of the water to 4(c) changes ered needed in and wanted drilling operations. conduct This unique compensation workman’s benefits extend- combination of functions saves time and employees disability ed to who sustain expense by avoiding the dismantling death on the broader definition of disassembly pieces into and units and the situs reassembling process contemplated by amendments inevitably oc- 4(a)(1) drilling regard, curs order to move a shore side discussed earlier. In this rig drilling platform origi- or a the original which was should be noted that platform production structures a definition of the term “em- fixed

Act contained field, Bay gas Marchand oil and which is express that the term ployee” which makes in Louisiana territorial waters located both “a or member of a not include master does Shelf. On the Outer Continental phraseology vessel” and this crew 11,1975, July Gray welding a two-inch in the 1978 amendments to was retained pipeline platform navigable on a in the gas the extension dealing subsection explosion oc waters of Louisiana when an Consequently, benefits.4 compensation Gray, trying away to run curred. clear to me that as of the time of it seems area, Gray twisted his knee. received OCSLA, Con- the 1978 amendments compensation benefits under workman’s working gress “employees” intended that law, compensation the Louisiana but “all artificial and all installations islands pay carrier refused to benefits under permanently tempo- and other devices judge An administrative law LHWCA. rarily attached to the seabed” would Gray’s denied claim for LHWCA benefits compensation benefits entitled to receive he was “not involved in maritime because provisions of in accordance with the employment.” The Benefits Review Board LHWCA, “any but “crew members” Gray determined that was covered under not be entitled to receive vessel” would the LHWCA and remanded the case for compensation benefits. And necessar- entry of an award. The administrative law islands, ily that “artificial etc.” and means $10,000 judge awarded and deducted separate and distinct con- “vessels” $8,000 already under the state awarded cepts, make a mistake when we fail and we compensation Welding ap law. Herb’s great them. I have difficul- distinguish pealed the decision of the Benefits Review therefore, ty, understanding how the Circuit, panel Fifth Board to a majority opinion concludes that the Fal- 1983, April which in affirmed the decision time. Rig 85 can be both the same by holding of the Benefits Review Board Gray clearly employed in mari Welding Herb’s Second “was —The employment time and therefore was within Supreme Court Case compensation coverage afforded interplay In resolving the between Welding Gray, Herb’s LHWCA.” OCSLA, the decision LHWCA (5th Cir.1983). 176, 180 F.2d Welding, in Herb’s U.S. Court granted certiorari Gray, Inc. v. 470 U.S. 105 S.Ct. promptly doing, reversed. so (1985), case I 84 L.Ed.2d 406 second Supreme Court held: controlling. Gray, a welder with view as Welding, employed help Appeals Herb’s re- The rationale of Court of pair gas pipelines and maintain oil and was that offshore is maritime opinion, majority sionaiy language Congress its would be that rec- In footnote 19 of argues language excluding that the "master ognized Act and 1978 in both the 1953 any or number of crew of vessel" from com- (tugs that Amendments there would vessels benefits, pensation contemplation indicates a boats, tankers) barges, and crew and trans- part Congress on the that "a vessel can be porting personnel goods, supplies, and con- site” as this exclusion otherwise sumables, equipment and to and from the surplusage. would be But this same exclu- defined; and that "artificial islands” however sionary language original was in the 1953 the crew members of such vessels would not OCSLAwhen the definition of a situs was an compensation though they be entitled to even "artificial island” or "fixed structure” neither actually injury an while on such "ar- received would have been deemed a "vessel." tificial islands.” suggest reading exclu- that a better of this Supreme 4.The anyone performing and that Court did not ad- commerce part parcel of that in applicability task that is dress its decision the 1333(b) OCSLA, employment for activity is in maritime either in its form purposes. Since it is doubtful injury LHWCA as existed on the date of or as it pay an driller will during offshore amended in was the course rig a worker on an offshore appeals maintain Gray’s through claim venture, job unnecessary to the whose Benefits Review Board.5 approach coverage extend Nevertheless, Supreme Court decision virtually everyone stationary on the in Welding especially controlling Herb’s platform. think this construction of We meaning insofar as it deals with the the Act is untenable. employment.” term “maritime The Court Welding, 105 at 1426. The Herb’s S.Ct. Welding in at great Herb’s discussed analyze its Supreme Court went on length Supreme the decision of the Court cases, in prior particularly its decision Ro in Rodrigue, supra, and reconfirmed all of Casualty Surety, supra, v. Aetna & drigue holdings. its essential In this regard, the in some detail the factual and to describe in Welding Court Herb’s stated: the nature of circumstances determine cannot Congress We assume that Gray in: employment was involved Rodrigue unfamiliar with and the Lands [Gray] pipelines and maintained built Act it referred to “maritime em- when platforms themselves. There is ployment” defining the term “em- inherently maritime those nothing about ployee” in 1972. It would have been land, performed on They tasks. are also significant departure prior under- significantly their nature is not al- standing phrase to use that to reach environment, par- the marine tered stationary drilling rigs generally. ticularly exploration develop- since (footnote omitted). at 1427 S.Ct. are not ment the Continental Shelf categorizing After the Fifth Circuit’s themselves maritime commerce. employment” view of the term “maritime (footnote omitted). Id. at 1428 assess- “expansive,” on to the Court went state: aspects ing precedential Su- The Amendments amendments to [1972 preme Welding, decision in Herb’s cover LHWCA] were not meant “to em- that: we need remember ployees engaged loading, who are not Gray’s injury occurred 1975 at building a ves- unloading, repairing, provi- pertinent statutory which time the sel, injured in just because were the as amended sions LHWCA adjoining navigable area waters used passed in originally 1972 and OCSLA as 92-1441, activity.” Rep. p. H.R. such 1953; (1972); 92-1125, (1972); p. Rep. S. fixed Gray’s injury occurred on a Cong. & Admin. News U.S. Code waters;

platform in Louisiana territorial never read “maritime p. 4708. We have beyond far employment” to extend so 3. The Court decision moving Welding prior actually cargo issued those involved Herb’s transportation. ship between and land effective date of the 1984 amendments LHWCA; make Caputo Both and P.C. Co. Pfeiffer Court, 1333(b) “geographical § Supreme because of the limi 5. On remand from the panel quickly imposed Circuit concluded that Fifth the OCSLA.’ tation Gray was not entitled to recover under law, preclude shall the en- to the conclusion cable State this clear and lead us any according in maritime forcement to is terms of Gray engaged was not under which the em- purposes agreement of written employment for such ployer agreed indemnify has LHWCA. whole, party part or in with third at 1427-28. Id. ” to such action. respect decision I have found no Court 4(c) (1984) § Cong. (emphasis S. 98th Welding pur- subsequent to Herb’s added). Representatives of de- The House part ports to overrule in whole or changes con- go along clined to principal core decision that the Bill i.e., templated by this section of the Senate Welding, made in Herb’s appointed and the Conference Committee employment” the term “maritime does not to resolve this and other conflicts inserted any include of the various activities which appears it in 33 lessees, contractors, language now operators, subcontrac- 905(c) § which reads as follows: tors, U.S.C. employees perform their in con- for, for, exploring pro- nection with (c) Outer Continental Shelf transporting gas oil and from ducing, and negligence In the event that the of a navigable the seabed beneath waters. injury person vessel causes to a entitled chapter by to receive benefits under this Amendments LHWCA 198k virtue of section 1333 of Title then statutory The second amendment made person, anyone such or otherwise enti- panel majority by Congress which did damages tled to recover reason arriving at their not consider conclusion thereof, may bring against an action portion found in a of the 1984 amend- provi- such vessel accordance with Longshoreman ments to the and Harbor (b) sions of subsection this section. of Compensation Worker’s Act. These (b) Nothing contained in subsection changes relate to inclusion of new sub- preclude this section shall the enforce- (c) § paragraph 33 U.S.C. 905 as now according any recip- ment to its terms of by a change exists. This was initiated indemnity provision whereby rocal provision in Bill Senate 38 of the 98th employer person entitled to receive 4(c) Congress First set forth in Session this chapter under virtue benefits bill, of that which reads as follows: section 1333 Title and the vessel k3 (c) Section 5 is amended [of LHWCA] agree indemnify the other defend by adding at the end thereof follow- liability cost and loss or for of defense ing subsection: new damages arising resulting out “(c) In the event that the negligence bodily injury death or to their party injury per- of a third causes to a employees. son entitled to receive benefits under 905(c) added). (emphasis 33 U.S.C. chapter by this virtue of section 4 of the legislative history regarding this (43 Outer Continental Shelf Lands Act change Report indicates that the Senate 1333), person, any- U.S.C. then such stated: one otherwise entitled to recover dam- thereof, Bill ages by may bring Finally, provides reason the Senate an cur- against person exemption Longshore action such third ac- Act’s provisions proscription indemnity agree- cordance with the section rent 5(b) Nothing this Act. contained in under of the Act. ments Section chapter, appli- or in otherwise That section is made current-

513 by chapter Continental this virtue of section 1333 of ly to situations on the Outer 4 of the Outer agree virtue of Section Title 43 the vessel to defend and Shelf (43 Lands Act U.S.C. indemnify Continental Shelf the other.” From these textual 1333). in- legalize The bill would those changes legislative history I draw the ap- agreements they insofar as demnity following fairly easily: conclusions the Outer Continental Shelf and ply to Bill Senate 38 intended to effect a application preempt would further preemption of “otherwise such indemni- prohibiting state laws law,” state but the final statute as agreements. ty passed says absolutely nothing about (1983), S.Rep. reprinted No. 98-81 in 1984 subject; added). 2771, (emphasis U.S.C.C.A.N. change party” 2. The from “third report of the Conference Committee considerably “vessel” narrows the cate- (1) states: parties gory negligence may whose Second, injury be the cause of to an oil field the substitute removes the mu- worker on the Outer Continental Shelf proscription respect current (2) em- who would be entitled to be the indemnity agreements tual between applied beneficiary indemnity agreement of an ployers and vessels as employer; virtue of the from the Outer Continental Shelf Lands Act. Outer Continental Shelf consciously 3. The term “vessel” as 905(c) (1984), by Congress inserted in must Rep. No. 98-1027 re- H.R. Conf. consistently construed as that printed in 1984 U.S.C.C.A.N. be same added). and, therefore, term is used in (emphasis the term “vessel” be taken to cannot view, my extremely significant In it is gas mean a situs of offshore oil and that, underlining in the as indicated activity as defined in OCSLA. Bill and the statute as text of the Senate passed, person” the word “third in finally The Third changed Bill to the word the Senate Case—Tallentire finally passed; in the statute as “vessel” cross-reference as to the sec- The final Court case which the internal in may assessing look to in the issues this case tion under which “an action” Logistics, Inc. v. brought changed provisions from “the is the case Offshore Tallentire, 2485, provisions of this Act” to “the 477 U.S. 106 S.Ct. of section 33 (b) (1986). Tallentire, section;” open- two of subsection of this L.Ed.2d platform workers were phrase in the last offshore ing sentence they “nothing helicopter Bill killed when the Senate which stated con- seas some chapter riding high were crashed tained otherwise coast while changed to read 35 miles off the Louisiana applicable state law” was (b) drill- transporting them from the offshore “nothing contained subsection of this platform they fi- where worked to their passed; ing section” in the statute as in the of the sec- home base Louisiana. The issue nally, language at the end essentially provi- around the referring “any written case revolved ond sentence High § the Death on the Seas employer under which the has sions of agreement (DOHSA) effect, if any, and the indemnify party” such third was Act agreed of the deceased work- “any reciprocal to refer to indem- OCSLA. Survivors changed were entitled to provision whereby employer of a ers contended nity Wrongful on the Louisiana person damages entitled to receive benefits under based 514 Statute, to extend applicable proper which was made would not be OCSLA

Death reviewing applica the casualties this case. by by either its own terms OCSLA, of bility history applicability The federal district OCSLA. Supreme in Tallentire stated: court determined that the survivors were Court only entitled to benefits under DOHSA. was to The intent behind OCSLA very long scholarly opinion, In a covered the artificial structures treat panel § 7 of our Court concluded upland Act islands or as federal as on its face enough DOHSA was broad State, a landlocked enclaves within permit applicability the Louisiana vessels, purposes defining not as that, Wrongful as a Death Statute law because maritime law law, authority matter of Louisiana has the fixed inapposite was deemed to these Death Act to apply its its own citizens Rodrigue v. Aetna Ca structures. See high adjacent on the seas to its shores and Co., 352, sualty Surety & 395 U.S. 361- that, therefore, may the survivors assert a 1835, 1840-1842, 366, 89 23 S.Ct. claim under the Death Act. Tal Louisiana (1969). L.Ed.2d This en Court Inc., Logistics, lentire v. 754 F.2d congressional assumption dorsed the Offshore (5th Cir.1985). On the issue as admiralty not generally Wrongful whether the Louisiana Death apply to the lands and structures cov applied by way Statute 1333 of OCS- in Rodrigue, noting ered LA, the Fifth panel Circuit waffled. It that accidents on the artificial islands apply assumed that OCSLA does but the covered OCSLA “had no more con Louisiana statute would then be conflict ordinary nection with the stuff of admi with DOHSA “so Louisiana law could be ralty piers.” than do accidents on Id. at adopted only to the it extent is not incon 360, 89 S.Ct. at 1839-1840. See also sistent with Id. at 1279. DOHSA.”6 Welding, Gray, Herb’s Inc. v. 470 U.S. 414, 422, 1421, 1426, 105 S.Ct. appeal Court, Supreme On (1985). Thus, Rodrigue, L.Ed.2d 406 Supreme Court held “that neither OCSLA admiralty held that an action Court requires permits appli- nor DOHSA apply under DOHSA does not to acci case,” cation of Louisiana law in this “actually occurring” arti dents on these accordingly the Court reversed and re- islands, and that therefore ficial DOHSA manded the decision of the Fifth Circuit. preclude application does not As was the Fifth opin- case Circuit adopted through state law as federal law ion, larger part Court wrongful death aris OCSLA to actions interpretation decision related to the ing plat on offshore accidents DOSHA, § 7 of but the Court did address Co., Rodrigue Casualty forms. v. Aetna expressive in clear language the inter- supra, 395 U.S. at 89 S.Ct. at 1842. play between DOHSA and OCSLA. See at S.Ct. 2491-93. The I recognize Id. 2491-92. While that the helicopter determined that because the of what de- issue constitutes “situs” as platform crash and ensuing directly death of the fined OCSLA was before Tallentire, away workers in this case occurred “miles I think quoted the court seas,” platform very from the and on the it high paragraph from Tallentire is instruc- Curiously, August the text of 43 U.S.C. 1333 cited occurred in well after the 1978 opinion in footnote 7 of the Fifth Circuit is the amendments to OCSLA which broadened (a)(1) passed text of subsection as in 1953 definition of a "situs” as discussed above. though helicopter even crash in Tallentire specify Fal-Rig use of the Su- but did indicating that as of 1986 tive jur- following the Each of the and Uno- clearly preme Court Unocal/Falcon Rodrigue and analysis agreements blanket contains isprudential cal/Frank’s “artifi- Welding to whether the Herb’s indemnity agreements, as but there is no con- produc- gas in oil and directly islands” involved agreement cial tractual kind and considered as “vessels” tion should be between Falcon and Frank’s. injury or death place where an that the facts, undisputed I can easi- Given these appli- more determinative occurs is ly majority holding concur with the that on Shelf the Outer Continental cability of injury, Fal-Rig of Demette’s the occasion injured Act than the status Lands as defined in OCSLA be- 85 was situs employed operations in being as

worker water, jacked up it was out of the cause gas from production of oil relating to supported by legs resting its on the sea Continental Shelf. Outer bottom, was connected to the sea bot- casing being driven into the Undisputed Facts by tom the ocean for the of ex- floor of was injury, of his Demette At the time likewise, I, concur ploring gas. for oil and a welder Casing Frank’s as employed by finding majority that the inferen- of cas- together segments who welded injury tially makes that at the time of his gas in an oil and as are installed ing employed by employer Demette was injury, his Demette At the time of well. explora- engaged operations relating in Fal-Rig floor of the was on the derrick from production gas tion for and of oil and head some struck on the and he was that, Shelf and the Outer Continental tower fell from the derrick object which therefore, compen- entitled to he would be inju- him. At the time of Demette’s above injury from his em- sation benefits for his casing process hammering ry, the 1333(b) provisions ployer under the going on which into the sea floor down OCSLA. pipe extended from casing that the means into the seabed

the derrick floor down however, ship, from I have to abandon Dem- water. At the time of beneath the majority’s conclusions. the rest of jacked- Fal-Rig 85 was injury, ette’s following I Specifically, dissent from and was located on the Outer up position majority conclusions: adjacent to State Continental Shelf applies maritime law 1. “Because agreement A blanket service Louisiana. force, Louisiana law does its own signed between Union Oil California Majority Opinion at apply in this case.” (Unocal) Casing and Frank’s Crew (Frank’s), Rental, the terms of Inc. under [Davis case] all six factors instal- 2. “Thus provide casing Frank’s was to the con- point to the same conclusion: specified subsequent lation services as invoked it were injury tract agree- service orders. blanket work Majority Opinion in nature.” maritime cover work orders issued ment would opinion does majority and offshore. 501. While casing services both onshore specifically say, have to assume paid for its services Frank’s would be contract be- referring that it is to the had a blanket service Unocal. Unocal also Frank’s because Drilling tween Unocal and with R&B Falcon agreement Frank’s (Falcon). only contract in which USA, provid- is the Inc. This contract any- agreed indemnify anybody to all of Falcon’s ed with access Unocal drilling, thing; and jack-up drilling rigs for offshore 905(c) of activities

3. Section LHWCA vali- Outer Continental Shelf indemnity agreement dates the between Congress spoke originally are concerned. Frank’s, a conclusion which Unocal Supreme interpreted unnecessary I find both and incorrect. spoke Congress again changing correcting any way without Concluding Comments principles established Rodrigue, Court held islands, structures, Court that the artificial Congress explicit made an decision installations, temporarily and devices apply that maritime law would not permanently placed on the Outer Conti- placed “artificial islands or erected on the purpose producing nental for the Shelf for the Outer Continental Shelf gas oil and are not and that “vessels” exploration, production, development apply “maritime law” does not to them. passed it gas oil resources” when As to the conclusion that the contract in original OCSLA 1953. After the between Unocal and Frank’s maritime in Supreme Rodrigue, Court decision Con- nature, in I panel majority’s think the gress made substantial amendments to conclusion is direct conflict with the significant OCSLA the most language of the Court Herb’s which was the elimination of the term Welding. casing The installation of at var- “fixed structures” and the insertion of the stages drilling produc- ious in the for and words “all installations other devices ing gas of an oil and well is normal and permanently temporarily or attached to regardless routine of whether the oil well legislative history the seabed.” The of this dry is producing from land on shore or change express contains an statement that: from the seabed. The installation of cas- is, “The committee intends that federal law ing gas oil and absolutely an well has therefore, to be to activities nothing to do with improving naviga- drilling ships, semi-submersible bility of the in which may waters the well rigs, they and other watercraft when drilled, anything nor does it have to do by drillstring, connected to the seabed placement with the navigation of an aid to pipes, appurtenances.” H.R.Rep. or other waters, in those nor anything does it have No. 95-590. The key phrase this new loading to do with or unloading of a vessel. they definition is “when are connected to If, as Court held in Herb’s by drillstring, pipes, the seabed or other Welding, a repairs gathering welder who appurtenances” because these circum- pipelines production and well structures is stances result in these “installations and engaged employment” “maritime be- other being “permanently devices” or tem- cause “there is nothing inherently mari- porarily attached to the In seabed.” tasks,” my time about those then in definition, view Congress broader no drew dis- welding together segments task of tinctions as to whether the attachment was casing pipe are driven into the platform, between the seabed and a fixed seabed, doing as Demette was here in this platform, plat- movable a semi-submersible case, form, surely should not be deemed a mari- a drilling ship platform. I have to conclude, Therefore, therefore, employment. time the contract that from and after provide between Unocal and Frank’s to the 1978Amendments to OCSLA all of our casing Circuit case such services should not be a mari- purporting to draw tortu- complicated ship ous and time contract. Like a without an distinctions as what rudder, just is and is not a “vessel” are engine “so much our Fifth Circuit case fury signifying nothing” subject sound and insofar employ- law on of “maritime compensation indirectly by way benefits contracts” has float- ment” and “maritime 1333(b) §of because the Fal- of the Gulf of Mexico to ed from one side would not be a to which upon vagaries Rig situs depending the other 1333(b) § could have com- in each individual case. extended those wind and current short, pensation just benefits. In as I say I that our Circuit case law on regret Fal-Rig and “what is a maritime believe that the 85 cannot be a “what is a vessel” employ- and what is “maritime vessel and OCSLA situs at the same contract” time, injured employee I believe an cannot Humpty-Dumpty7 ment” have taken on particular production are whatever a be an offshore oil worker under approach they— 1333(b) § tragic are. That’s a cir- and a maritime worker under panel says they 902(3) at the destroys uniformity of the LHWCA same time. cumstance because hand, law; if I am predictability only and the On the other correct unpredictability jacked up driving casing when it is ones who benefit from seabed, Fal-Rig into the not a lawyers. confusion are 85 is situs, vessel but an OCSLA then Demette 905(c) LHWCA, regard have right is an oil field worker where he should understanding the rath- great difficulty in injured on an situs he be when is majori- which the argument er convoluted and, therefore, compensation is entitled to opinion puts applicability forth as to the ty 1333(b). course, § under Of this benefits majority If the is cor- of this subsection. compensation is discussion about benefits a Fal-Rig rect that 85 is vessel whose academic because Demette set- somewhat special purpose gas was to drill an oil and personal injury claims and tled all of his assignment welding of well and Demette’s compensa- or not he received the whether segments casing pipe was an together gotten tion benefits he should have purpose, aspect special of that essential appeal. us on an issue before then Demette was a member of crew 1333(b) in ana- § But the same conundrum arises and both of OCSLA of vessel 905(c). 902(3)(G) § A full lyzing applicability § exclude of LHWCA would compensation understanding relevance any right Demette 905(c) you if much clearer look at Even when benefits under LHWCA. history provision. legislative to be a of that Demette were determined dissent, in Fal-Rig he As indicated earlier this member of the crew of the statutory provisions iteration of the directly not be entitled to benefits first would 905(c) was in Welding ultimately which became under LHWCA because Herb’s Bill which used the term “third specifically that activities related to Senate held in party” place of the term “vessel” gas production oil and are not maritime Likewise, identifying negligent if tortfeasor and employment. majority indemni- identifying the indemnitee of the opinion Fal-Rig is correct that the 85 is vessel, referred to therein.8 Like- ty agreement then Demette would not entitled Carroll, Through Looking ch. glory you,” Humpty- Lewis Glass [said 7. “There is for Dumpty]. you know what mean “I don't ” 'glory,' Alice said. “I meant 'there is a nice 8. An earlier iteration of the amendment ” argument you,’ [said knock-down proposed the International Association Humpty-Dumpty]. 'glory' doesn't mean “But ("IADC”) during Drilling over- Contractors argument,” objected. a nice knock-down Alice sight hearings Over- on the LHWCAin 1978. word,” Humpty-Dumpty use a said "When I sight Hearings Longshoremen's and on the tone, just "it what in a rather scornful means Compensation Act Harbor Workers' Before mean, I choose it to neither more nor less.” Compensation, Health House Subcommittee wise, express provi- put parties appeal, Bill had an to this the amicus Senate appeal, agen- and other interested contemplating language this new sion “any other- cies on notice that I will call for a ballot for preempt and override reconsideration, if strong sugges- The House of en banc wise state law.” action from the Representatives agreeable was not to this tions for such course of parties and other interests are forthcom- change, and the Conference Committee preemption my opinion, ing. eliminated the idea of of state the seabed adjacent altogether and inserted the word Outer Continental Shelf Texas, Louisiana, par- Mississippi “third place “vessel” in of the words States largest uncontroverted that Demette’s contains the volume of both discov- ty.” It is gas ered and undiscovered oil and re- injury Fal-Rig occurred on the all nothing there is the briefs or record sources of areas of Outer tug my opinion other It excerpts to indicate Continental Shelf. is also boat, boat, boat, supply in- barge, largest crew number of workers craft was involved and could development other water oil and volved these negligence” be the source of a “vessel gas resources on the Outer Continental Therefore, Fal-Rig Texas, claim. if the 85 in its come from the States of Loui- Shelf (as jacked-up position is not a vessel siana, Mississippi and that most of the dissent), argued contractors, have earlier in this then operators, and subcontractors upon negligence there is no vessel engage who the business of (the worker) injured Demette could have producing gas from the oil Outer Con- sued and no vessel to be sued as defen- headquartered tinental are either Shelf If, hand, majority dant. on the other major or have facilities the States right jacked-up Fal-Rig Texas, and the 85 is Louisiana, Mississippi. and We are vessel, then, actually a because he is a also blessed to have within States vessel, Louisiana, member of the crew of the Dem- Texas, Mississippi and an enor- (the worker) injured ette loses his status legal (private talent mous concentration of employee compensation counsel, an as entitled practitioners, corporate and law 1333(b), (1) an under which is essential professors) school who are familiar with 905(c). applicability condition to the history development of the oil gas resources on the Outer Continen- Conclusion (2) Shelf, statutory by tal enactments (3) course, recognize, single Congress, that no Court decisions (4) statutes, panel any prior interpreting of our can overrule the statutes states, panel changes adjacent decisions and that the and interests of the (5) historic, traditional, I suggest judge-made reconsiderations that herein can body amorphous affectionately only be effected en banc reconsider- law view, my “admiralty ation our and maritime law.” Court. known do, precisely enigmas what we should and I have An en banc reconsideration of the case, length in this in this informed briefs written dissent order raised here Safety, preemption. Committee on Education and La- Id. The IADC version also bor, 3, 1978) (statement Cong. (May 95th creates a definition for a "Marine Petroleum Bednerik, Director, Affairs, Jon Government only ap- Worker” and makes the amendment IADC). interesting It is to note that in this plicable workers. Id. This definition to such IADC, early proposed by version the term proposed never made it into the amendments party” "third is used instead of "vessel” and of 1984. this version also makes no mention of state parties for the and interested of counsel

amici, step bringing be a first uniformity predictability

greater development

the law natural re- increasingly

these critical

sources.

The PROCTER & GAMBLE COMPA

NY; The Procter & Gamble Distribut

ing Company, Plaintiffs-Appellants-

Cross-Appellees, CORPORATION,

AMWAY al., Defendants,

et Amway Distributors Association

Council, Defendant-Appellee-

Cross-Appellant, Corporation, Defendant-Appellee,

Ja-Ri Corporation,

Internet Services Movant-

Appellee-Cross-Appellant.

No. 00-20127. Appeals,

United States Court of

Fifth Circuit. 17, 2002.

Jan.

Case Details

Case Name: Demette v. Falcon Drilling Co.

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jan 31, 2002

Citation: 280 F.3d 492

Docket Number: 00-30165

Court Abbreviation: 5th Cir.