Grand Isle Shipyard Inc. v. SEACOR MARINE, LLC.

JONES, Bеfore KING, Judge, Chief JOLLY, DAVIS, WIENER, BARKSDALE, GARZA, BENAVIDES, STEWART, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK OCS, this is the situs water on the gable HAYNES, Judges.* Circuit controversy. DAVIS, Judge: Circuit EUGENE W. the focus-of-the-contract hold that We test appropriate test

I. controversy determining the situs of appeal question presented cases, that rule for adopt and we of a con- the resolution governs with the agree therefore what the circuit. We enforceability of here dispute, con- tractual the relevant judge trial that because act or omis- when the indemnity provision, majority that a contemplated tract death, bod- causes the on performed sion work would contractor’s (hereafter, damage OCS, injury, property the this ily stationary platforms on “tort”) the contractual triggered which for the the relevant “situs” be deemed should wa- navigable on claim occurred indemnity indemnity dispute and because the instant Shelf Continental apply on the Outer to ter other factors lead us none of the that creates (“OCS”), contract law, but the Louisiana apply must any other we parties between indemnity obligation law. When to be of the work majority Act, Indemnity calls for Louisiana Oilfield La.Rev. (“LOLA”) on the stationary platforms 9:2780(A) on § renders Ann. Stat. applica- issue is the to this Central at issue unen- indemnity agreement OCS. Lands Shelf summary judg- the Outer Continental forceable, tion of so we affirm (“OCSLA”). Act, seq. et 43 U.S.C. Isle. in favor of Grand ment a tort that when law is clear II. FACTS OCS, as water on navigable occurs in- judgment action declaratory This to, stationary plat example, opposed dispute between indemnity an volves injured, mari form, and a non-seaman Seacor, two contractors and Grand Isle ensuing tort action applies time Company BP American Production parties. third against that worker (“BP”). contracting duties Isle’s Grand this same have of our cases Some maintenance of repair and involved the indemnity dispute contractual rule to a Seacor’s platforms, while BP’s offshore determine the tort to to the site of looked of work- transporting involved the duties controversy, step the first of the the situs its contractors. for BP and ers Instead deciding applies. what law case arises dispute tort, indemnity cases other to the site of looking in which incident April from to a foeus-of- amounts applied what have Neil, employee, Isle Denny a Grand looks to where test which the-contract SEA in a fall onboard the injured WV that most of contemplates IV, operat- a vessel owned majority of HORSE if a performed: bewill work of the acci- At the time ed Seacor. by the contract called for performance trans- dent, IV was OCS, HORSE the SEA stationary platforms is on platform his work Neil from porting purposes controversy situs of the is the contained platform the residential of the the law determining whether testimo- Deposition living quarters. his surrogate federal applies adjacent close was in the vessel ny indicated that work called for majority of the If a law. at platform residential proximity on navi- aboard vessels by the contract is * pate. partici- and did not Judge is recused Smith accident,

the time of the it is dispute but undis- erns the noting that nothing puted that neither Neil nor the SEA in that prohibits indemnity in physical HORSE IV were contact agreement at issue here. with when the accident oc- Shipyard, Grand Isle Inc. v. Seacor Ma curred. rine, LLC, (5th 543 F.3d 257-58 Cir. against Neil filed suit Seacor in the U.S. 2008) (hereinafter (Panel)), Grand Isle va District Court for the Southern District cated, (5th Cir.2009) (en 569 F.3d 523 Texas, asserting a claim for vessel banc). indemnity Seacor seeks under the 905(b) negligence under Long- contract between Grand Isle and BP. shore and Harbor Compensa- Worker’s Paragraph 14.07 of that contract1 is virtu (“LHWCA”). tion Act Seacor tendered ally identical to indemnity agreement Isle; its defense and Grand Seacor, a contract between BP and “and Seacor also claimed the benefit of insur- party neither disputes that BP sought provided by ance Grand Isle’s insurer thereby impose reciprocal ob Gray. 17, 2006, On March Grand Isle ligations among its contractors.” Gray and filed suit in the U.S. District objective The undisputed for for Court the Eastern District of Louisi- each employee contractor whose was in ana, seeking a declaratory judgment jured to hold harmless and BP indemnify (1) contractually that: Grand Isle is not (and other engaged by contractors BP on obligated to defend and indemnify Sea- jobsite) liability resulting inju from (2) cor; and Seacor is entitled to ries to or death of employee. that coverage Gray. insurance from material dispute. facts are not in Gray Isle and subsequently Grand filed legal The ultimate issue before the dis- motions for summary judgment in which trict court and panel, and now before they argued by OCSLA, that virtue of court, the full is whether adjacent applies the LOIA surrogate as federal Louisiana, law of LOIA, including the ap- case, law this thus invalidating the plies to the case. parties agree that if indemnity provision contractual at issue apply, LOIA it does invalidates Grand (2)

here; 905(b) and that of the indemnity Isle’s obligation Seacor, but LHWCA is to the case and and law the LOIA do not apply, prohibits enforcement indemnity of the indemnity agreement is enforceable. provision. Seacor filed its own cross motion for summary judgment, main- To determine whether OCSLA re taining general that maritime gov- quired application of state law this dis- Paragraph 14.07 reads: casioned or the part result in whole or in defend, fault, sole, agrees negligence Contractor [Grand Isle] or whether indemnify, concurrent, company's active, release and hold joint, oth- passive, or of com- er contractors harmless in accordance with pany's any other entity contractors or other provisions (to of this Article 14 person or or the unseaworthiness of extent such other Contractors execute cross vessel. provisions substantially indemnification Group" "Contractor is defined in Paragraph similar to those contained in this section following 14.01.03 "the per- as entities and 14.07) claims, against from and all liabili- individually collectively: sons and Contractor ties, damages, expenses and (including Inc., Shipyard, per [Grand preamble Isle attorney's without limitation and other fees Affiliates, contract] its subcon- defense), irrespective costs of of insurance Affiliates, officers, tractors their and the coverages 14.07.01(1) following: for the all directors, employees, agents, representa- to, deaths, injuries persons or illnesses of ” tives of all of those entities .... Group: Contractor ... whether or not oc- summary judgment and denied the three- motion applied the district court pute, at *6. Court formu motion. Id. Supreme that the Seacor’s test part Casualty & v. Aetna Rodrigue lated panel and the timely appealed, Seacor Co., Surety 395 U.S. concluded that be- panel reversed. have We L.Ed.2d 360 cause Neil’s accident occurred on vessel cases, including Union number of in a test navigable water above the OCS and not Engineer PLT Corp. v. Petroleum Texas expressly covered under the on a situs (5th Inc., 1043, 1047 Cir. 895 F.2d ing, OCSLA, indemnity dispute did not (hereinafter PLT). 1990) As we articulat thus, situs; it was un- arise on a covered PLT, for state law Rodrigue test ed the and third necessary to address second law, three surrogate federal apply as (Pan- PLT prongs of the test. Grand Isle “(1) met: The contro must be conditions el), panel at 259-60. The there- 543 F.3d covered arise on a situs versy must the LOIA could not fore concluded (i.e. seabed, artifi the subsoil law to void apply surrogate temporarily permanently or cial structures and it vacated and agreement, thereto). (2) Federal maritime attached Id. at 263-64. remanded on basis. (3) of its own force. must not petition for re- granted Grand Isle’s We inconsistent law must not be The state hearing important en banc to address this law.” Id. with Federal question of law. Here, court first considered the district controversy arose whether AND III. JURISDICTION situs, i.e., stationary aon on an OCSLA STANDARD OF on the OCS as or other location platform REVIEW considering In in OCSLA. provided for condition, court the district first PLT this jurisdiction pursuant have 28 We require situs that the OCSLA determined § review de novo the 1291. “[W]e U.S.C. (1) of the the situs ment was met because granting [Grand court’s order district indemnity agree containing the contract summary Gray’s] Isle’s and motion upon the location depends at issue ment Rule 56 and judgment under is called of the work performance where the district court.” standard as did same (2) contract, v. In Schs. Univ. Cornerstone Christian contemplated BP Isle and between Grand 127, 133 League, 563 F.3d terscholastic to be of the work was that most Cir.2009). (5th i.e., si- covered platforms, BP OCSLA Inc. v. Sea Shipyard, Isle tuses. Grand IV. ANALYSIS 2874808, Marine, LLC, at *3 2007 WL cor above, question the critical As indicated (hereinafter (E.D.La.2007) Isle Grand applies. law is what we must answer (District)).2 found that the The court also depends on the question this answer to were PLT conditions second and third to the uncon- of the OCSLA applicability Accordingly, the dis at *4-5. met. in PLT particularly, facts. More Gray’s tradicted Isle’s and granted trict court Grand Texas, "Thus, Union Wagner under well- stated: relied on a The district court also case, met in the instant Wagner situs factor is opinion, reasoned district McDermott, Inc., (W.D.La.1994), required by the contract was as the work F.Supp. 1551 899 platform.” Id. at (5th Cir.), performed on an offshore cert. de 79 20 F.3d aff 'd. appeals affirmed on an nied, court of 1556. The 136 U.S. 519 ground. alternate The district court L.Ed.2d 246 terms, one, identify we must the “situs” of the In operator tions. a crane on a sta- controversy. tionary platform was killed when the crane collapsed toppled other, In over. deciding question begin In with the decedent was killed when he fell from statute, OCSLA, the governing pro- a derrick stationary platform above a in pertinent part: vides platform. the floor of the The defendants (2)(A) they appli- To the extent that are argued that the Death High Seas cable and not inconsistent with this sub- Act, (“DOHSA”), § seq. U.S.C. et chapter or with other Federal laws and applied; sought application survivors regulations Secretary of the now in ef- Wrongful Death Act. For fect adopted, or hereafter the civil and cases, Supreme both Court held that adjacent State, criminal laws each .of because the stationary deaths occurred on adopted, now effect or hereafter platforms on the Outer Continental amended, repealed hereby are de- Shelf—each a covered situs under OCS- clared to be the law of the United States LA—Louisiana surrogate as portion for that of the subsoil and through Rodrigue, OCSLA. Shelf, seаbed the outer Continental Thus, U.S. and artificial S.Ct. 1835. islands and fixed structures be, thereon, action, within tort Rodrigue erected which would illustrates that the area requirement of the State its boundaries OCSLA situs is met if the were extended seaward to the outer tort on a platform occurs or other OCSLA margin of the outer Continental Shelf covered provided situs 1333(a)(2)(A). (2)(A). 1333(a)(1), 43 U.S.C. equally converse is clear. In a tort Supreme in Rodrigue Court stated action, if the tort occurs on navigable wa purpose “[t]he was to [OCSLA] (or ter instead of a fixed other body define a of law applicable to the seabed), structure attached to the seabed, subsoil, and the fixed struc- requirement OCSLA situs is not met. For tures ... on the outer [sic] Continental example, Logistics, Inc. v. Tal Offshore 355, Shelf.” 395 U.S. at 89 S.Ct. 1835. As lentire, 207, 477 U.S. 106 S.Ct. PLT, we noted “Rodrigue made clear (1986), L.Ed.2d 174 helicopter ferrying that ‘for federal law to adopted oust platform workers they home after finished ” law, federal law must apply.’ first 895 their shift a stationary platform on crashed (quoting F.2d at 1047 Rodrigue, 395 U.S. and two offshore workers drowned. The 1835). at 89 S.Ct. To determine Court was upon called to decide whether whether applies, state law PLT DOHSA or the Louisiana wrongful expressed three-part test stated death statute applied surrogate as PLT, above.3 In began the court analy- under OCSLA. 477 U.S. at by looking sis to Rodrigue, a seminal case S.Ct. 2485. The Court concluded that be interpreting OCSLA. cause the incident occurred more than a Rodrigue shore, was a consolidated marine league case from ap DOHSA involving separate two wrongful death ac- plied, stating: “(1) controversy 3. (3) must arise on a situs law must not of its own force. (i.e., seabed, by covered OCSLA the subsoil or state law must not be inconsistent with feder- permanently temporari- artificial structure or al law.” 895 F.2d at 1047. thereto). ly (2) attached Federal maritime of the subcontractors’ contracts for expressly Here, admiralty jurisdiction [A]ll building completion pipe- the ac- under DOHSA because provided pro- a ma- beyond occurred line called for services were deaths cidental by 46 U.S.C. from vessеls and divers in the league from shore. See vided rine ocean, statutory pro- a platform, Even without this not on and therefore vision, appropri- admiralty jurisdiction were not in areas covered OCSLA. here under traditional ately invoked Brown, Judge writing at 1047. for the Id. the accident occurred because principles PLT, held, however, despite panel in furtherance of high seas and per- that some of the fact the work relation- activity bearing significant an vessels, apply. formed from state law did activity. to a traditional maritime ship place, gathering In first line 218-19, 106 at S.Ct. Id. exactly statutory of an fits definition did not call concluding tempo- In that OCSLA or permanently “other device[ ] the inci- of state law when ... application rarily for attached to the seabed erected situs, the occur on an OCSLA ... purpose develop- dent did not thereon for the ing, producing Tallentire Court stated: or resources therefrom.” 1333(a)(1). addition, In 43 U.S.C. to treat intent behind OCSLA was gathering line was buried beneath by the artificial structures covered a plat- ocean floor. It was connected to en- upland islands or as federal Act as form at one end. It was connected to State, claves within a landlocked line at the other. The lo- transmission vessels, defining purposes the substantial work was cations where maritime law was applicable law because covered situses—the subsoil done were fixed struc- inapposite to these deemed seabed; island; an and an tures. artificial re- production installation (citing Rodrigue, at 106 S.Ct. 2485 [situs] Thus the first condition sources. 1835). 361-66, 395 U.S. is met. Rodrigue and Although it is clear that omitted) (footnotes (empha- Id. at 1047-48 the situs rule for tort provide Tallentire added). situs, the PLT To determine sis cases, not follow that contract cases it does underly- not focus on where the panel did depend tort triggered gave rise to the ing incident tort, i.e., the location of the situs of (i.e., nonpayment claim occurred PLT was a Notably, that occurrence. subcontractors) but looked instead in- unpaid to collect pure contract case was under the contract the work where pipe- a subsea voices for the installation of performed.4 statutory a lien on the impose line and to ostensibly PLT to applying at Later cases Louisiana law. 895 F.2d pipeline under indemnity ignored claims have contractual PLT and subcontractors re- 1045-46. (and itself) looked instead the of the contract and situs lied on Tallentire underlying tort. Those the situs of the controversy that the arose proposition essentially that the location cases hold and state lien law on an OCSLA situs the “situs underlying tort determines at 1049-50. Union Texas Pe- applied. Id. regard to controversy” without law did of the Corp. argued that state troleum majority the work under the where because 43, Primer, Mihollin, 53 27 Tul. Mar. L.J. & K. Practical 4. See Julia M. Adams Karen Indemnity on the Outer Continental Shelf — A 786 performed. quirement

contract to be For exam- is met in this case” because the ple, in Hollier v. Texas Petroleum Union underlying incident occurred on an OCS- (5th 662, Cir.1992), Corp., 972 F.2d 663-64 LA situs. See also Demette v. Falcon between a boat worker was crushed Co., Inc., (5th 492, Drilling 280 F.3d 498 stationary platform then drowned. Cir.2002) (finding that OCSLA situs exist- wrongful His survivors death action filed ed for both a tort claim and the related owners, against platform and vessel indemnity distinguishing claim—without in turn and the owner filed a between the two—because the accident in- third-party seeking demand contractual place situs); took on OCSLA Adams & demnity. underlying Id. at 664. The tort Milhollin, supra note at 54 (noting Holli- settled, leaving only claim the contractual Hodgen’s er and failure to look to the indemnity claim appeal. to be decided on situs). contract for following Instead of In analyzing Id. the situs element of the PLT in these contract cases applying test, PLT panel Hollier did not consid- general principles, we tort er or discuss the contract’s situs —where principles and looked to the location of the the work was con- under the underlying incident for OCSLA situs. exclusively tract —but looked to the situs law, however, Our case requires us to underlying of the incident. 664-65. distinguish between a contractual indemni- Likewise, in v. Drilling Smith Penrod ty claim and underlying incident. For (5th Cir.1992), Corp., 960 F.2d 458 instance, Co., v. Sumrall Ensco Offshore (an underlying drilling incident on a (5th Cir.2002), 291 F.3d 316 explained we settled, platform) leaving only a contractu- case, that in an earlier “although the un- al appeal. claim on As in Holli- derlying creating claim obligation er, panel the Smith did not discuss the which sought Shell Oil indemnification situs of prong the contract under the first tort, from Sladco sounded in obligation test; PLT it looked to the situs sought for which Shell indemnification it- underlying incident. Id. at 459. nature, self was contractual as it arose Indeed, in neither Hollier nor Smith did from the agreement between Shell and we make an explicit choice between the Diamond M.” Id. at (citing Corbitt v. situs of the contract and the situs of the Co., Diamond M. Drilling 654 F.2d incident; simply deter- (5th Cir.1981)) (emphasis in original). mined that the situs of the underlying Here, PLT, the district court incident followed controlled without discussion. analyzed action confusion is evident in as a Hodgen For- (5th contract claim Corp., est Oil rather than as a tort claim. F.3d Cir.1996), however, appeal, On panel panel which the stated: “As- followed suming without those of our deciding that Hollier and cases had determined Smith state a rule in this OCSLA situs providing using principles. circuit tort controversy opposed positions situs in an of the district court and OCSLA indemnity clause the panel case is the loca- both in support find our case accident, tion of the agree with agree which all can conflicting is and district court and find that the situs re- confusing.5 granted We en banc consider- See, Robertson, e.g., (2007); David W. The Outer Spiel Mar. L. & Com. 487 E. Stewart man, Continental Drilling Through Lands Act’s Provisions on the Muddied Waters on Shelf Imisdiction, Remedies, and Choice Law: ‍‌​​​​‌‌​​​‌‌‌‌‌​‌‌‌​‌​‌‌‌‌​​‌‌‌‌​‌‌​‌​‌​‌‌​‌‌‌​​‍the Outer Continental An Examination of Shelf: Mistakes, Correcting the Circuit's 38 J. Circuit’s Recent Decision in Dem- Fifth of Fifth

787 way knowing arise and thus no of which clarify this area and to this case to ation of among govern. of the conflict law will at least some resolve our cases. Using principles contract to establish claim recognize that the Once we dispute the situs of a contractual both in contract indemnity a claim based is for longstanding maintains the treating rule tort, in we see no reason to rather than indemnity separate contractual claims as analysis to determine where the tort apply underlying grants from tort claims and controversy arose. It makes contractual contracting parties greater a far measure a focus-of-the-contract more sense predictability stability allocating of and dispute— say that a contractual test risk. “controversy” the first condition under above, For the reasons set forth we hold the PLT test —arises under an OCSLA of that, by for majority determining of the work called the first condition of situs a PLT stationary platforms test, indemnity is on a the contract contractual (or other enumerated OCSLA situses.6 dispute) contractual claim other majority if a of arises on OSCLA situs ap- because it approach This is sounder performance for under con- called than tort principles rather plies stationary plat- tract' is to be Applying to a contract case. principles forms or other OCSLA situses enumerated the fortuitous loca- tort rules would allow 1333(a)(2)(A). in 43 U.S.C. It is immate- the si- tion of an accident to determine rial whether the incident that law—of a contrac- tus—and triggers obligation occurs on controversy. approach tual The tort-situs a navigable waters or on or other reliably parties commercial from prevents OSCLA situs. A number of our cases in their contractual ar- allocating risk have determined situs in a contractual in- they way have of rangements because no might demnity by looking case not at the focus of predicting where “controversies” denied, (5th Cir.1991), Co., reh’g F.2d it Drilling 26 Tul. Mar. L.J. 1054 ette v. Falcon case, (2002) (" panel practice companies 'In each new is a common contract- through comb a bewilder- of this court must ing to enter into con- for work in the oilfield rely upon ing array cases inconsistent they sign stages. Typically, first tracts in two reasoning hope finding an in the identical may place remain in a “blanket contract” ” Smith, (quoting F.2d at fact situation.’ Later, period they an extended of time. Milhollin, 461)); supra Adams & nоte performance spe- issue work orders for ("Presumably, lawyer now knows 100-01 work, usually incorporates the cific enforceable, indemnity at whether the issue of the blanket contract. As we said terms having completed analyses and the various Sons, & the contract consists of Davis where required determinations under the OCSLA. parts, two a blanket "contract followed however, highly likely, that the office It is order, interpreted later the two must be work empty aspirin bottle is now .... We can together.” lawyers everywhere hope that maritime take how well discrete, comfort in the fact that no matter Generally, each work order is for guidelines, they one adhere to the tests job. contrary relatively Unless a short-term every end the exercise will out of two at the intent is reflected the master contract ap- have a different answer as to what law order, determining situs in the work plies, and whether the is enforce- this, courts should ordi- contract case such as able.”); Engerrand, Kenneth G. Primer of narily to the location where the work look Shelf, 4 Remedies on the Outer Continental performed pursuant specific work to be Mar. L.J. Loy. long con- than the term blanket order rather tract. & Sons v. Oil 6. As we discussed in Davis Gulf 313, (5th Cir.1990), Corp., 919 F.2d 315-17

788 (and contract, looking respect the but rather at where with to the extent to that extent) analysis the accident occurred which the “tort” was used in Many situs, claim.7 gave disagree rise to the those cases to determine we believe, cases, ultimately portion opin- of reach and overrule that of those those reasons, the correct result for other and ions.8 not, straightforward Judge

7. dissent that ”[s]ince Garza's stated the federal court is then, agrees position and applying with Seacor's relies the law of another the forum in explained sense, We this line of cases. have above ordinary princi- usual conflict of law why we decline to follow these cases. 102-03, ples have no relevance.” Id. at 92 adopts position Judge that (emphasis original). Owen's dissent S.Ct. 349 parties experiencеd neither of the nor their Corp., In Co. v. Mobil Oil Gulf Offshore admiralty attorneys argued 473, 2870, to the district U.S. 101 S.Ct. 69 L.Ed.2d 784 court, panel, or the en banc court. She (1981) primarily the Court dealt with whether cases, 1333(a)(2)(A) § that in tort of concedes jurisdiction state had courts concurrent over directly adopts adjacent OCSLA the law of the arising suits under OCSLA. The Court con- law the state as the United States on artifi- nothing prevented cluded that within the Act cial islands and fixed structures on the OCS. jurisdiction but it reiterated the rule contrary position obviously A foreclosed announced in Huson that "OCSLA does su- Supreme Rodrigue decisions in Court's percede the normal choice of law that rules Huson, and Chevron Oil Co. v. 404 U.S. apply.” the forum would Id. at 482 n. S.Ct. 30 L.Ed.2d 296 In those Rodrigue directly S.Ct. 2870. The Court in directly applied cases the Court the law of the wrongful Louisiana’s death act to a adjacent regard state without to the state’s wrongful platform death that occurred on a contends, Judge conflict rules. Owen howev- on the OCS without discussion of conflict er, cases, 1333(a)(2)(A) principles. of law interpreted differently. should be cases, In contract Judge primarily Owen seems concerned argues she that when this section of potential problem with the that the rule we adopts "civil criminal laws of adopt in this case does not cover the situation state,” adjacent language each should be plat- where the contract calls for work on interpreted adopting adjacent state's forms off the coast of both Louisiana and conflict of law rules. We see no basis to read Texas under circumstances where the con- directly apply this section of OCSLA to tract would be enforceable one state but adopting state's law in a tort case while not in the other. That set of facts is not state's conflict of law rules in a contract case. legal before us in this case and the issues such unambiguously adopts The section the "civil presents a case have not been briefed or ar- adjacent laws of the [criminal] state” case, gued. parties agree In this that if distinguishing typеs without between the adjacent applies, state law civil cases. We see no reason to treat con- including Indemnity the Louisiana Oilfield differently tract cases and tort cases Act, is the law. And there is no purposes they choice of state law since are evidence in the record that the both "civil” contract called cases. cases, Supreme anywhere for work given In tort other than off the coast of Court has directly adopt adja- us clear directions to Louisiana. sum, adopt cent state’s law than Judge position rather In we believe Owen’s Huson, state’s conflict In plain reading rules. the Court inconsistent with 1333(a)(2)(A) OCSLA, year considered whether Louisiana’s one stat- cannot be recon- ute of limitations would bar a tort interpretation action ciled with the of that statute Court, which occurred aon on the OCS. Supreme and has no relevance to 98-99, Id. at court consid- the issues in this case. plaintiff's argument ered that the Louisiana year opinions one we refer to statute should not include follow- because rules, Builders, ing: "prescrip- Diamond v. A B under Louisiana’s conflict Co. & Offshore 546 (as (5th Cir.2002) opposed peremptive) (remanding tive” 302 F.3d rules are not 99-103, binding outside forum. Id. at for the district court to determine OSCLA rejected argument injury); S.Ct. 349. The Court situs based on location of the Demette, immediately following (defining that discussion 280 F.3d at 500 OSCLA agree the dis siana10will apply surrogate therefore with as federal law We indemnity dispute in indemnity trict court that and that the LOIA renders the an situs because agreement this case arose on OCSLA unenforceable. The district all, majority, a if not correctly granted summary it is uncontested that judg- Gray. of the work called for under the ment to Grand Isle and stationary plat to be on AFFIRMED. forms on the OCS. challenge GARZA, not appellant does EMILIO M. Judge, Circuit the district court’s conclusion that the sec with whom JENNIFER W. ELROD and SOUTHWICK, and third PLT conditions are met and ond H. LESLIE Circuit conclu agree with the district court’s Judges, join, dissenting: respect. in this As to the second sion We are asked to determine whether the condition, court determined the distriсt Outer Continental Shelf Lands Act choice- contract, mainte that this which called for 1333(a)(2)(A), provision, of-law 43 U.S.C. stationary platform nance work on a locat requires application of the Louisiana Oil- OCS, was not a maritime con ed Indemnity indemnity field Act to an agree- tract and therefore maritime law did not triggered by injury ment to a (Dis apply of its own force. Grand Isle worker occurred on a vessel on the trict), condition, at *4. As to the third high seas. Pursuant to a “focus-of-the- noted, Fifth “[t]he the district court Cir test, directly contract” contrary specifically ‘nothing cuit has held that Supreme Court’s admonishment that Con- the LOIA is inconsistent with federal gress by meant for situs to be determined ” (quoting Hodgen, law.’ Id. at *5 87 F.3d by employ- locale and not the status of the 1529). agree with these conclus We work, majority says yes. ee or his ions.9 being There no nexus between the indem- Having agreement determined that all three nification and the Outer Conti- met, Shelf, PLT it a conditions of the test are nental and because breach of a adjacent exclusively follows that state law of Loui- contract based on an application situs in a contractual case state law has no so that the situs However, tort); Hodgen, question need be answered. location of (stating upon F.3d at 1527 that "the situs of a the contract sued non-maritime contract, controversy question an- in an OSCLA clause then the situs must be accident”); Smith, is the case location swered. (stating controversy 960 F.2d at 459 that the pro- argues passing that the 10. Seacor also inju- occurred on an OCSLAsitus because the vision in the Grand Isle contract that chooses Hollier, ry platform); F.2d occurred on a applicable law maritime law as the should (defining at 664 OSCLAsitus in a contractual disagree. govern this contractual claim. We indemnity dispute by the un- the location of beyond any As we said in PLT: "We find it tort). derlying Congressionally doubt that OCSLA is itself provision requiring analysis adopts the in the choice of law 9. Our PLT test mandated However, adjacent order set forth the PLT court. that the substantive law of the state determining presencе applies whether in an is to even in the of a choice of action, contract, contrary.” predicated on a it is in the contract to the (citations omitted). permissible See also to consider whether the contract 895 F.2d at 1050 Co., U.S. at issue is a maritime contract before consid- Gulf Offshore 2870, 784; ering Exploration & whether OSCLA situs has been estab- 69 L.Ed.2d Texaco Thus, Production, AmClyde Engineered upon Prod- lished. if the contract sued Inc. contact, Co., (5th Cir.2006). applies maritime maritime law ucts 448 F.3d 760 (1986). apply state law to the 91 L.Ed.2d 174 high seas cannot 1333(a)(2)(A) no, Thus, § respectfully requires dispute, say geograph- I would ical nexus before state applies. dissent. pertinent state law at issue here is I. Indemnity the Louisiana Oilfield Act (“LOIA”), which null “declare[s] and void The choice-of-law under the against public policy of the state of (“OCS- Lands Act Outer Continental Shelf any provision any agreement LA”) pertinent part: states requires which defense indemnifica- and/or they applicable To the extent that are tion, bodily injury persons, for death or this Act or and not inconsistent with (strict negligence where there is or fault regulations Federal laws and with other liability) part of the indemnitee.” Secretary of the now effect or hereaf- 9:2780(A) § La.Rev.Stat. Ann. criminal adopted, ter the civil and laws Thus, applies if LOIA adjacent of each now in effect or State unenforceable; provision, it if LOIA amended, adopted, repealed or hereafter apply, may does not clause hereby are to be the law of declared given be effect. portion United States for that subsoil and seabed of the outer Conti- plain language OCSLA’s extends all Shelf, nental and artificial islands and adja- laws—“ civil and criminal”—of the thereon, fixed structures erected which cent state to “that portion of the subsoil of Shelf, would be within the area the State of and seabed the outer Continental its boundaries were extended seaward to and artificial islands and fixed structures margin the outer of the outer Continen- erected thereon.” Put simply, 1333(a)(2)(A) .... § tal Shelf invites us to determine indemnity agree- whether the situs of an 1333(a)(2)(A). § Importantly, 43 U.S.C. ment a geographical has nexus with the 1333(a)(2)(A) declares the law of the (“OCS”); Outer Continental if it Shelf United to be state law States1 does, apply the relevant state law as specific certain and fixed locations. OCS- surrogate federal governing agree- primary LA’s concern is “to treat the arti- found, ment. If no situs inquiry our ficial structures covered the Act as begins and ends there. upland islands or as federal enclaves with- State, vessels, in a landlocked and not as II. purposes defining for the (“Grand Isle”) law because maritime law was deemed in- Shipyard, Grand Isle Inc. apposite to these fixed structures.” into a entered Master Maintenance and Off- shore, Tallentire, Logistics v. 477 U.S. Construction Services Contract therefrom, geographical 1. OCSLA sets forth the bound- or such installation or other jurisdiction (other vessel) aries of federal as follows: ship device than a or for the resources, purpose transporting The Constitution and laws and civil and such political jurisdiction the United States the same extent as if the outer Continental hereby are extended to the subsoil and were an area Shelf of exclusive Federal seabed of outer Continental Shelf and to islands, jurisdiction located within a State .... all artificial and all installations 1333(a)(1) added). (emphasis parties permanently tempo- and other devices or dispute do not that OCSLA extends federal seabed, rarily may attached to the law to the areas of the OCS enumerated purpose explor- erected thereon for the above. for, ing developing, producing resources (“MMCSC”) with BP American defense), Production other costs of irrespective of (“BP”) provide to Company repair and insurance coverages for following: platforms maintenance on fixed (i) to, deaths, injuries all or illnesses of Separately, OCS. Seacor Marine LLC persons in group contracted CG: (“Seacor”) BP and entered into a Vessel ... whether or not by occasioned or the (“Charter”) pursuant Charter Contract to in result or in part wholе negli- supplied which Seacor vessels and crew to gence fault, sole, or concurrent, whether BP in service of BP’s offshore activities. joint, active, passive, or of company’s Both contain nearly contracts identical lan- other any contractors or entity other guage designed reciprocal to create de- person or the unseaworthiness indemnity obligations fense and between vessel .... among BP contractors. Grand Isle denied Seacor’s tender for During the course of this contractual defense and filed a com- arrangement, Grand Isle employee Denny plaint in district court seeking a declarato- injured in a Neil was fall onboard the M/V ry judgment that Louisiana law applies as IV, SEA HORSE a vessel and op- owned surrogate federal law under OCSLA. Sea- erated Seacor and traveling high answered, that, alia, cor alleging inter “an beyond seas Louisiana’s territorial waters. action in pending the United States Dis- duty, Neil was off and the SEA HORSE trict Court for the Southern District of transporting IV Neil from his work Texas ... dispute involves the platform to his residential when this claim.” Grand Isle subsequently According deposition testimony, he fell. summary moved for judgment on the neither Neil nor the SEA HORSE IV was ground that applies surrogate LOIA as physical in contact with the platform the federal law under nullify OCSLA to time of the incident. indemnification provision in Seacor’s con- tract with against Neil filed suit Seacor BP. Seacor filed a under the cross motion Longshore summary judgment, and Harbor Compen- arguing, Workers’ inter alia, Act, 905(b), § sation injury 33 U.S.C. a maritime Neil’s on a occurred ves- statute, sel claiming negligent navigating while it was maintenance of and on the high seas, and, therefore, inju- the SEA HORSE resulting IV his under federal ry. Seacor settled this claim maritime Seacor with Neil. would be entitled to suit, injury by After Neil filed his indemnification for Neil’s Seacor tendered Grand per its defense and Isle the terms of the Grand Isle MMCSC. (em- pursuant paragraph to MMCSC 14.07 III. added):

phasis Contractor agrees [Grand to de- may Isle] State law to this dis- fend, indemnify, release compa- pute and hold in one оf ways: two either ex proprio ny’s [e.g., [BP] other contractors vigore surrogate Seacor] or as federal law under provi- harmless accordance with the provision. OCSLA’s choice-of-law Louisi- (to sions of this Article 14 the extent ana law does not dispute this ex such other in- proprio Contractors execute cross vigore because Neil’s oc- demnification provisions substantially geographical offshore, curred eleven miles similar to those beyond contained this section well Louisiana’s territorial waters. 14.07) claims, 1301(b) against from and §§ all liabili- See (defining 43 U.S.C. coastal ties, damages, expenses (including bordering “boundaries” of a state the Gulf attorney’s without limitation fees and than Mexico as no farther three marine inju- miles) The location with Grand Isle. into the (3.45 geographical leagues in our deter- Gulf). critically important ry thus is applies to law If Louisiana whether, under incor- mination it is all, only because it is dispute at 1333(a)(2)(A), may be substi- surrogate porated govern federal law surrogate tuted as 1333(a)(2)(A). dispute. re- OCSLA’s matter, since the indemni- In instant have a geographical dispute that a quires geograph- a provide does not ty agreement law for state in order OCS nexus with the 1333(a)(2)(A) OCS, § with the law. ical nexus surrogate federal as to be to the apply law used to state of an cannot be involves breach dispute here a “injury” occurred on ves- Neil’s dispute. incorporated within indemnity provision not con- high was sailing the seas that alleges sel Isle neither Grand the MMCSC. touching plat- a any way in nected or support of evidence presents nor to the any other situs attached that the form or summary judgment motion for nexus to confected, executed, any geographical OCS. written, Without MMCSC OCS, language of plain the although the And on the OCS. breached or 1333(a)(2)(A) of application our prevents § by Grand done work governs the MMCSC law, to federal (which surrogate as Louisiana pro- could platforms Isle on BP’s dispute. adjudication of the OCS), govern the dispute the the vide a nexus to on the work implicates this case nеither IV. other has connection

the nor platforms fact Accordingly, mere to the OCS. as well as our precedent, Court Supreme within involves a dispute that that confirms jurisprudence, own OCSLA the OCS implicate not the MMCSC does in determin pertinent inquiry situs is apply. would that OCSLA such governs particular a ing state law whether case, early Ro important An dispute. geo- has no contract itself Because the Co., Surety Casualty & OCS, drigue Aetna look to with graphical nexus 352, 1835, 23 L.Ed.2d 360 89 S.Ct. “controversy” to 395 U.S. determine of the situs (1969), wrong comprised two consolidated 1333(a)(2)(A) of requires application §if cases, involved ful both death dispute. this See Union law to of the dece during the course 895 accidents Eng’g, v. PLT Corp. Tex. Petroleum Cir.1990). One platforms. offshore (5th dents’ This is work F.2d mounted when a crane therefore, worker was killed the indemni- dispute; toppled and collapsed island on an artificial informs of the MMCSC ty provision the deceased had nearby barge; a onto The MMCSC states determination. time of the crane at the working on “defend, indemnify, release been Isle will Grand killed worker was collapse. The other [e.g., other contractors company’s hold to an a affixed fell from derrick all when he against ... from Seacor] harmless a test on performing island while liabilities, expenses” artificial claims, ‍‌​​​​‌‌​​​‌‌‌‌‌​‌‌‌​‌​‌‌‌‌​​‌‌‌‌​‌‌​‌​‌​‌‌​‌‌‌​​‍damages, deaths, whether to, pipe. To determine injuries or drill “all resulting from 1333(a)(2)(A) required application § persons [the] contracted illnesses law over surrogate arises under law dispute group.” When actions, Supreme death “inju- wrongful these indemnity provision, intent in illness) Congress’s noted (or a con- Court first or becomes ry” death body define the statute “was to enacting initiates contractual event which tractual seabed, subsoil, agreement obligations under and the fixed structures such 1333(a)(2)(A), as those in should to these question here on the outer Continental wrongful workers’ death claims virtue Id. at Shelf.” “This of their status as workers whose deliberately approach was in lieu (artificial taken of work occurred on OCS situses treating vessels, the structures as to which islands and fixed platforms). Id. at admiralty supplemented by the law of 106 S.Ct. 2485. Reasoning that “Congress jurisdiction of the vessel’s owner would determined that the general scope of OCS- apply.” Concluding that these acci- coverage, LA’s operation like the of DOH- “islands, dents occurred on remedies, artificial albeit SA’s would be prin- determined ones,” Supreme locale, Court found cipally by the status of the 1333(a)(2)(A) required application of injured killed,” individual the Supreme disputes. state law both Id. at 89 Court looked to where the helicopter acci- S.Ct. 1835. dent occurred to determine 1333(a)(2)(A) § requirements were not met recently, More Logistics v. Offshore and state law could not apply. Id. at Tallentire, 477 U.S. Tallentire, 106 S.Ct. 2485. In the situs of (1986), 91 174 L.Ed.2d two workers em injury seas, high was on the with no nexus ployed on drilling platforms off the coast the OCS. Consequently, of Louisiana were killed helicopter when a 1333(a)(2)(A) § require did not application transporting them to shore crashed into of state surrogate law as federal law to the Gulf of Mexico. Their families filed adjudicate dispute. the wrongful death against suits helicopter the owner/operator under the Death on the The seminal OCSLA case (DOHSA), High OCSLA, Seas Act and in this Circuit is Union Texas Petroleum Louisiana law. Among questions the that Corp. v. PLT Engineering, 895 F.2d 1043 Supreme (5th the Cir.1990). Court faced was PLT, the whether In this court was DOHSA recovery families’ could sup asked to determine the choice of plemented by the provided by remedies law for a dispute breach-of-contract over 1333(a)(2)(A). § state law through In de PLT’s failure pay who subcontractors termining whether OCSLA’s choice-of-law worked to install a pipeline subsea pursu- provision applied state law to wrongful the ant to PLT’s contract with Union Texas. disputes, death Supreme the Court first at Id. 1045M6. In reaching conclusion, its Congress’s looked to intent enacting the court articulated three concerns—now OCSLA, namely, “to treat the artificial deemed the three factors in “PLT the by islands covered the Act upland as is test” —to determine whether lands 1333(a)(2)(A) or as federal enclaves a within land рermitted substitution State, locked and not as adjacent vessels.” Tallen state law surrogate tire, “(1) 477 U.S. at 2485. controversy S.Ct. law: The must on a arise law, Maritime the controlling (i.e. on the by situs subsoil, covered the seas, high inapposite seabed, was to disputes oc or permanent- artificial structures on curring platforms. fixed ly thereto). (2) Id. Federal or temporarily attached (or law) surrogate ap state was the Federal maritime law must not of its propriate (3) choice of law governing disputes own force. The state law must not be 217-18, on artificial islands. Id. at 106 inconsistent with Federal law.” Id. at S.Ct. 2485.

The Supreme specifically rejected Court Nowhere in PLT did the court a discuss the argument via Rather, “focus-of-the-contract” test. in each that and concluded part PLT test “con- whether first determined court under given effect law would be Louisiana a controver- dispute namely, troversy” in — 1333(a)(2)(A) injuries oc- nexus because a contract —had sy the service over example, For that statutori- on the OCS. areas curred geographical with the F.2d Drilling Corp., make deter- To Penrod ly comprise OCS. Smith contract, (5th Cir.1992), mination, examined the court fabri- design, employee was to work- “PLT a Penrod which under was sustained sys- cate, gas transportation install affixed to the platform an offshore ing on UTP, owned standing from on the tem employee OCS. coast. off the partners” its fencing leaning on horizontal platform, gas Because construction to reach in order platform, around work for line was gathering system barge. adjacent equipment payment, to tender PLT failed fell. The worker collapsed fencing loca- inquiry on the centered situs court dis- court determined line. gathering tion OCS, noting that pute occurred exactly fits line gathering “the found is- ‘artificial constitute “[d]rilling platforms de- an ‘other statutory definition of 1333(a)(1).” Id. at under section lands’ at- temporarily permanently vice[ ] “controversy” had 459. Because ... erected thereon to the seabed tached 1333(a)(2)(A) OCS, § re- nexus with the developing, pro- or ... purpose for surrogate law as application of state quired ” Id. at therefrom.’ resources ducing indemnity dispute. law over the 1333(a)(1)). § U.S.C. (quoting 1047 43 Texas Pe Similarly, in Hollier Union loca- Moreover, “[t]he found that the court (5th Cir.1992), 972 F.2d 662 Corp., troleum [con- work the substantial tions where between the platform slipped a worker was done gathering line] structing the on which platform and the boat residential subsoil covered situses —the were worked; and subse he was crushed he island; instal- seabed; and an an artificial noted that court drowned. This quently of resources.” production for the lation considered OCS platforms generally are (footnotes omitted). The at 1047-48 Id. in and therefore found situses “substantial location of examined the court geographical demnity agreement had pipeline because work” “Hollier was the OCS because nexus with pay PLT’s failure dispute concerned platform contact with physical pipe- on that who worked subcontractors injury.” Id. at 665. time his other There was no Id. at 1047. line. an logically inform analysis Corp., that could 87 Likewise, Oil Hodgen v. Forest particular in that inquiry (5th Cir.1996), OCSLA situs an in- concerned F.3d 1512 dispute payment over breach-of-contract injury sustained demnity dispute over an This “substan- construction. pipeline transferring by platform worker while court’s in the analysis resulted tial work” to a platform rope from fixed swing 1333(a)(2)(A) “re- holding that narrow landed hard The worker nearby vessel. state of Louisiana quires application dock, injuring spinal his cord. on the boat’s disputes aris- to non-maritime analysis, undertaking its choice-of-law In gathering aof ing from the construction ... that Hollier “[a]ssum[ed] this the outer Continental on the seabed of line pro- circuit a rule and Smith Shelf.” Mat 1045. controversy in the situs of the viding that clause case an OCSLA subsequent cases concern-

A number of at 1527. The Id. of the accident.” three- location indemnity disputes followed the ing court found Hollier “established when injury involved an sustained while in con- injured an worker is in contact with both a tact personnel with a basket on an OCS boat, platform and a the first factor of the platform Dennis court concluded thаt —the PLT test is satisfied.” Id. Because Hod- there an was OCSLA situs because the gen “in contact” with the via worker had “both physical and contractual swing rope when he inju- sustained his connection with platform.” Id. In ry deck, on the vessel’s so, the court found an doing the Dennis court unnecessarily present. Therefore, OCSLA situs Id. muddied the clear connection between “[ajssuming that properly physical Hollier states injury and in our situs the rule for the requirement situs in con- jurisprudence.

tractual namely, that the location cases”— Admittedly, as the Dennis court ac- of the accident correct situs to ana- knowledged, there is an alternative line of 1333(a)(2)(A) lyze purposes —OCSLA emerged cases that from application PLTs choice of law determined that Louisiana of a “substantial analysis work” to deter- govern law would indemnity dispute as mine the situs for OCSLA choice-of-law surrogate federal law injury because the purposes. For example, Wagner v. a geographical had nexus with the OCS. McDermott involved a worker who alleged- ly injuries suffered slipped when he vein,

In this same Dennis v. Bud’s Boat fell on the deck of a residential barge Rental, Inc., (E.D.La. F.Supp. to, adjacent but not part connected to or a 1997), of, concerned an dispute a platform. F.Supp. at 1552. This injuries over to a worker transferred via precipitated indemnity dispute personnel basket from a high vessel on the between the barge owner and several seas to a vessel moored to a plat work third-party defendants. The McDermott form. “[T]he accident occurred on the court first analysis considered situs deck of a plaintiff Hollier, vessel as was in the act under a case that directly was vessel, of transferring to another but while analogous to the facts of indemnity the plaintiff was in physical contact with a dispute before it. Applying Hollier’s situs personnel basket to a analysis, attached crane on the court that the inquiry noted platform.” the Id. 950. Undertaking at a was “defined plaintiffs where the acci- PLT analysis pursuant to this court’s deci dent occurrеd” and acknowledged that un- Hodgen, sion in court geo standard, the found a der this ‘controversy’ “the did graphical nexus with the place the not take on an OCSLA situs.” Id. at platform because the personnel worker’s Accordingly, state law would not basket was attached to a 1333(a)(2)(A). crane affixed to apply § under platform. the Id. conclusion, Notwithstanding this The district court properly could have McDermott court purported then inquiry ended its situs there. It did not. the three factors of PLT test to arrive Instead, it noted “a trend to find OCSLA at a different It focused on outcome. situs where ‘the required by work the con- PLT court’s discussion of the “substantial performed tract was on an plat- offshore inquiry: work” situs require- situs “[T]he form’ if even situs is strictly, physically not ment could [also] be met when ‘the loca- McDermott, met.” (quoting Wagner Id. tions where the pursuant substantial work (W.D.La.1994)). F.Supp. to the contract was done were covered ” Based on this notably inapplica- Ignoring sitases.’ Id. that PLT dis- “trend” — it, ble to the facts of case before cussed inquiry work” in “substantial The “focus-of-the-con- Op. at 781. cuit.” dispute contract aof context service us to look work, require tract” test would not pipeline for subsea payment over that a contemplates contract indem- where injury for which an about dispute performed. to be majority of the work is contrary to sought nification was —and on holding majority Id. The bases Congress that admonishment Tállenürés inquiry, situs ex- PLTs breach-of-contract by the determined to be for situs meant work was the substantial amining “where by the controversy and not of the locale Therefore, according at 787. done.” Id. court district employee of the status —the indemnity “a majority, contractual inquiry dis- work” “substantial found the (or dispute) contractual any other claim determined court The district positive. majority if a an OCSLA situs arises on indemnity dispute was the situs under the called for con- performance by required OCS, the work “as stationary plat- performed tract to be is on an offshore contract situses enumerated other OCSLA forms or the district Consequently, Id. platform.” 1333(a)(2)(A).” § in 43 as sur- U.S.C. fоund Louisiana majority distinguishes Significantly, dis- law to rogate federal inquiry situs from the OCSLA this test pute.2 cases, simply look which would tort inquiry situs lines of OCSLA These two to determine the tort occurred where PLT emerging from indemnity disputes 1333(a)(2)(A) application of requires other. with each clearly in conflict are Id. at 781. state law. admittedly muddled jurisprudence resolution. Unfortu- in need of clear However, distinction between there is no by the proposed resolution now nately, the tort and OCSLA’s statutory re- follow the majority does states majority “[o]ur provision. 1333(a)(2)(A). quirements of distinguish requires ... us case law indemnity claim and a contractual

between V. But Id. at 786. underlying incident.” Tallentire, Rodrigue, rule nowhere majority Today, proposes new does case law jurisprudence our OCSLA what it believes to evaluate consider the demand support or is, dispute. Under in a contractual situs claim to be some- situs of rule, test “the focus-of-the-contract the in- than where thing in determin- other appropriate the test occurred, justifica- and is no there controversy in contract cident of the the situs ing Section doing so now.3 cir- tion cases, rule for that the adopt and we underly- the adopted the location of solely this court this decision 2. This court affirmed its ing injury the situs as relevant analysis whether maritime of its 1333(a)(2)(A) v. inquiry. Sumrall Ensco § inquiry. See respect to the situs and not with Cir.2002), Co., (5th Inc., 20, 291 F.3d McDermott, Wagner 79 F.3d v. Offshore cited sweeping majority support its Cir.1996) judge’s (5th (adopting the district jurisprudence, is not about our OCSLA claim in "holding that the contract is non-maritime bearing on case. It no has OCSLA deciding "assumfing] without and nature” law to extends state to which OCSLA extent applies”). OCSLA [] that contract, sounding versus and in tort actions indeed, implicate all. does not case Notably, about “our this statement case's that an indemni- noted earlier in Sumrall requiring a distinction tort-contract law” nature,” in dispute was “contractual provision fication applying OCSLA's Hollier, underly- distinguishing from the thereby that of lengthy discussion after comes bar, injury dispute at which sounded Smith, ing Hodgen, cases which 1333(a)(2)(A)’s language plainly does not platform decedents wеre workers. Id. at inquiry invite an into a contract’s “focus” 106 S.Ct. 2485. The Supreme Court determining when whether a dispute oc- stated:

curs on the OCS. The majority takes extension OCSLA far beyond its pains to distinguish controlling Supreme intended locale to the accident in this precedent Court OCSLA in Rodrigue and simply case cannot be reconciled with Tallentire on the grounds that these were either the narrowly circumscribed area disputes tort rather than contractual dis- defined the statute or statutory putes, and therefore the situs of the tort prescription that the Act not be con- determined the However, OCSLA situs. strued to high seas which cov- affect nothing in either case calls for the distinc- er the Continental .... Shelf tion between tort and contract The character of the decedents as majority presently proffers. Rather, platform workers who special have a always focus has been on the situs of the relationship with the shore community controversy. simply special has no relevance to the resolution above, question

As Rodrigue applica- discussed concerned tion two consolidated OCSLA to this case. wrongful death actions on stationary platforms attached the OCS. 218-19, Id. at 106 S.Ct. (emphases Since platforms these were clearly situses added). delineated part of the OCS under Supreme Court pinpointed 1333(a)(2)(A)(“artificial § islands and fixed 1333(a)(2)(A)’s § delineated geographical thereon”), structures erected Supreme area —“that portion of the subsoil and Court “injuries” found that occurred Shelf, seabed of the outer Continental Rodrigue OCS. v. Aetna Cas. & artificial islands fixed structures erect- Co., 352, 360, Sur. 395 U.S. ed thereon” —to determine nexus 23 L.Ed.2d 360 Conversely, in between the situs of and the Tallentire, Supreme Court determined required OCS is for OCSLA’s choice-of- 1333(a)(2)(A) did extend apply. Supreme platform law to workers killed in a helicop- Court Congress noted that intended for ter crash while transit over high proper situs inquiry under “[b]y terms, seas because OCSLA must 1333(a)(2)(A) to turn on the location of ‘construed such a manner that the claim, giving incident rise to the not on character of the waters the outer above the status platform the individual as a high Continental Shelf as ... seas shall worker. Id. at 106 S.Ct. 2485. The ” not be Logistics affected.’ Offshore Supreme Court special found “no rele- ‍‌​​​​‌‌​​​‌‌‌‌‌​‌‌‌​‌​‌‌‌‌​​‌‌‌‌​‌‌​‌​‌​‌‌​‌‌‌​​‍Tallentire, 207, 217, 477 U.S. 106 S.Ct. vance” in the work the workers (1986) 91 L.Ed.2d 174 (quoting 43 performed, or even the work contemplated 1332(2)). §

U.S.C. by the under contract which the workers Tallentire, Notably, the Supreme were employed, in determining the actual Court rejected the argument that Instead, “situs” of the dispute. the Su- 1333(a)(2)(A) § required application of preme Court found OCSLA’s choice-of-law state law to the cause of action because provision the inapplicable because the location However, tort. Id. at 319. this distinction interpretation cerned an the of breadth of an support does not majority's present deci- indemnity impute and did not clause OCSLA's parse sion to out disputes tort and contract provision choice-of-law way. 1333(a)(2)(A) purposes. Sumrall con- PLT re- prong of the first Significantly, geographic no had injury simply the con- of where quires determination a the OCS. nexus with arose, is done. the work troversy not where pro- today nevertheless majority The situs— there is no OCSLA If that we find test a motes “focus-of-the-contract” controversy is, no nexus between status-based the same employs regrettably at PLT inquiry ends the OCS—our specifi- Tallentire analysis step one. which order on rejected. The work cally has no have us “focus” majority would required differ- PLT itself The facts injury pre- whatsoever connection present case from our inquiry ent was dispute. instant Neil cipitating contract. a service PLT involved because In injury. time of his not at work at case; no under- not an PLT was contem- a work order evaluating where Rather, as was involved. lying injury the work will be majority of plates it, pure was “a PLT majority describes majority relying is on performed, the invoices for unpaid to collect case under performing the workers status and to pipeline of a subsea the installment the OCSLA to determine that work order pipeline statutory lien impose a on support finds no analysis situs. Such at 785. Op. law.” under Louisiana 1333(a)(2)(A)’s situs Tallentire. Section analysis was PLT choice-of-law court’s location-based, trig- and if the inquiry is on by where the work necessarily informed OCS, off of the Tal- occurs gering incident because line was the subsea requires that our OCSLA choice-of- lentire the central that work payment for was there.4 In instant end inquiry com- logically other location dispute. No matter, incident occurred the triggering “controversy” over situs of the prises the IV, was HORSE the SEA board construc- pipeline payment breach of to, touching, Neil’s residen- close but not tion. disputes. party neither platform, tial fact physical nexus “injury” has no This situs be- those facts simply do not have We OCS; therefore, choice- OCSLA’s with the matter. in the instant fore us apply. does not of-law worker duty off as Neil was ferried to injured being while when he VI. location platform. The his residential he was on injury dispute: not in his as applies whether LOIA issue of Therefore, HORSE IV. the SEA board clear under OCSLA surrogate federal law the where no further than PLT, look we need decision ly implicates court’s this time of at the HORSE IV was the SEA controlling which sets forth Circuit’s inquiry. situs complete our Neil’s three-prong test. that this vessel do not contest above, parties inquiry the relevant As discussed in contact and not high seas PLTs was on appeal of this purposes for the Consequently, situs. an OCSLA controversy with or whether prong, “[t]he first 1333(a)(2)(A) permit does not by OCS ... on a situs covered arisefs] Petroleum, law, govern surrogate federal Corp. v. PLT LA.” Union Tex. Cir.1990). (5th dispute. of this adjudication Eng’g, 895 F.2d force; 3) whether state applies of its own and majority proper agree the 4. We with PLT, analysis requires an in- law. See OCSLA choice-of-law conflicts with federal law 1) quiry areas: the situs into three F.2d at 1047. 2) law controversy; whether federal maritime Moreover, majority’s holding the im- whether a contract dispute occurs on an collapses step inquiry one properly PLTs OCS situs. An evaluation of where a con- (situs) (whether step into two federal mari- tract contemplates will performed work force) applies time law of its own to form a nеcessitates an analysis of specific work singular test based solely orders, on the “focus” of crew assignments, and whether dispute. the can properly We consider assignments these relate to the mission of “nature” MMCSC our the vessel on which the occurred. 1333(a)(2)(A) inquiry, Indeed, but in determining whether Neil’s in- two, step of PLT analysis to determine jury situs, occurred on an OCS the district whether federal governs. maritime law very relied on these factors: accident, At the time of the Davis & Sons v. Neil’s work Corp., Oil Gulf (5th day was complete, Cir.1990), 315-17 and he F.2d was elucidates proceeding to living quarters plat- proper determining test a whether work, form. Neil’s non-maritime, is maritime consisted a mainly repairs pertinent inquiry grating prong to the second repairs, performed was on platforms, the PLT test: whether federal maritime not vessels. relationship Neil’s sole applies to the contract of own force. the vessel “[wjhether was Notably, passenger; as he Davis states that did not contribute to the agreement orders, mission of the blanket and work read ves- any Further, sel in manner. together, do or do not constitute a mari- work tickets from April 7,May time contract 2005 to depends, does the charac- demonstrate that contract, performed terization of work other pursuant to the contract, performed nature and MMCSC was character of the rath- platforms, not on vessels. place er than on its per- of execution or (internal formance.” Id. at 316 quotation Shipyard, Grand Isle Inc. v. Seacor Ma omitted). marks citation To deter- rine, LLC, 06-1405, No. 2007 WL the “nature mine and character of the *3, at 2007 U.S. LEXIS Dist. at *9 contract,” analyzed Davis six factors: (E.D.La. 26, 2007). Sept. 1) [Wjhat does the specific work order Thus, to determine whether “substantial in effect at the injury provide? time of work” under the performed MMCSC was 2) [Wjhat work did the crew assigned situses, on OCS the district court looked to 3) under the work actually order do? specific work orders in effect at the time of [Wjas assigned the crew to work aboard injury, Neil’s the work Neil assigned was 4) [Tjo in navigable waters; vessel do, the extent Nеil’s work related to the what extent did the being work done IV, mission of the SEA HORSE Neil’s 5) relate the mission vessel? (if work, principal any) what work Neil [Wjhat was the principal work of the doing was at the time of the accident. 6) [Wjhat injured worker? and work is, That employed district court injured actually was doing worker inquiry, Davis to determine not whether injury? the time of maritime applies of its own contract, force to a but rather to come to These factors entail an inquiry into the conclusion that injured Neil was on the majority where of a contract’s work OCS situs. The majority adopts now essence, a “focus-of- district misplaced court’s Naws-factor —in inquiry, very the-contract” test analysis OCSLA situs and “agree[sj with majority proposes now to determine the district court that the dis- the work It cannot overstated be situs on an OCSLA arose in this

pute case in- in the by the majority, contemplated MMCSC uncontested it is because factually legally and irrele- is the matter for under stant called all, work of the not inci- indemnity provision; the vant to was to [MMCSC] contract illness) death, triggers or Op. (injury, dent the OCS.” on stationary platforms is, there is no That indemnity provision. this conclu- majority reaches at 789. “focus of the where the analyze to injury that need that the notwithstanding sion i.e., the con- “where place, action is contract” takes the indemnification the basis of the work of most being per- contemplates tract any work wholly unrelated a discrete inci- when performed,” bewill under MMCSC. formed underlying injury precipitates dent —the — “nature and However, if we examine the simply The “work” indemnity dispute. an PLT at both the contract” of character a determination has no connection (whether (situs) step two one step arises on indemnity dispute whether then we applies), maritime trig- “work” did not the OCS because in- the two between the distinction erase factually and dispute. What ger the statute by both the required quiries indemnity provision legally relevant Indeed, any nor neither Davis PLT. covered “injury” employee to an is the de- controlling precedent our injury triggers This under the MMCSC. analysis mands “focus-of-the-сontract” Therefore, if the dispute. 1333(a)(2)(A)’s inquiry. Given situs af- occur on structure injury did not is at best that, majority’s new test situs, OCS, OCS there is no fixed to redundant, at irrelevant. worst In apply. law does not and Louisiana collapse these care not to must We take case, could provision Hodgen, In inquiry. distinct prongs two or ill- injury, death anywhere because to “short-circuit” this court declined hap- It so anywhere. ness could occur dis- solely analyzing the by inquiry situs away incident occurred pened that determining whether pute’s “focus” any recognized OCS situs. from applied. provision OCSLA’s choice-of-law F.3d Corp., 87 Hodgen v. Forest Oil VII. Cir.1996) (5th rejecting (specifically majority’s “focus-of-the-contract” inquiry rele- that “the only the assertion contract con- test, to where the arising “look[ing] of law matters vant to the choice will be of the work templates that most on the Out- activities out of oil exploration inter- disregards performed,” Tallentire’s was the status er Continental Shelf 1333(a)(2)(A), classi- non-maritime,” pretation §of re- contract as maritime locale,” “principally fies situs Domingue v. Ocean ferring reasoning the con- the work under “character” Co., F.2d 393 Drilling Exploration & Tallentire, 477 Logistics v. (5th Cir.1991)). Instead, tract. held that Hodgen Offshore 207, 219, 91 L.Ed.2d deciding whether U.S. test proper “[t]he purports provide test the rule of decision in provides stability” determin- three-part “predictability remains the an OCSLA case ing how As both OCSLA’s at 1526. PLT test.” However, demand, indemnity contracts. applies to 1333(a)(2)(A) test and the PLT predictability creates proposed test inquiry and the separate this court must “controversy” with only by equating indepen- evaluate situs and status work,” though the even “majority of dently. all, work under the contract does when the “work” does not inform an the of an indemnity inform situs dis- indemnity dispute triggered by a discrete (the pute. Tautologically, by assuming the act underlying injury). At very the “majority least, of the work” is the definitive looking to the location of injury the situs test for choice of law in a contract for determining OCSLA situs in indemnity dispute, the “choice of law” is disputes determined is more precise given that an test, by by rather than thе statute. is a discrete event occurring in a specific location, and is the contractually Additionally, majority pro- fails to anticipated event that triggers application guidance application vide of its “focus- of the indemnity provision in first of-the-eontraet” test to future cases with place. importantly, More this is also the factual Apparently different situations. situs test by articulated Supreme (among “contract” the many contracts Court in Rodrigue and Tallentire. in dispute) involved this that we are meant analyzing to be ais work order rather than majority The fails to acknowledge itself, opinion MMCSC as the indicates when a arises dispute under the indemnity (“Unless in a footnote a contrary intent provision, (or the underlying “injury” illness) reflected the master contract and the death or longer is no merely a tort. order, determining work in a con- The situs “injury” becomes a contractual event this, tract case such as courts should ordi- as the act pursuant to which a contractor narily to look the location may where the work seek indemnification. The work con- is to performed pursuant to specific templated by the MMCSC in the instant work order rather than long term matter factually legally to irrelevant 6). blanket contract.” Id. at 787 n. But the indemnity Indeed, dispute. if the ma- opinion fails to address potential jority correctly applied truly their test and in this test’s challenges application. With- examined the “focus-of-the-contract” at is- specifics, out any sue, what comes off as a they would focus on precise pages test on the reporter our agreement, not a work order.

is, fact, an amorphous term for lower majority’s attempt to harmonize our litigants grapple courts and in fu- with OCSLA jurisprudence predictable with a order(s) ture cases. Whose work are we new accomplishes rule neither harmony Seacor’s, analyzing: party as the seeking nor predictability, and at comes the ex- indemnity, Isle’s, or Grand employ- pense of a proper interpretation injured er of the party? 1333(a)(2)(A)’s requirement. situs

Moreover, by “majori- what do we mean it, statute how outlines we are to ty”? Majority of hours worked? The ma- we would be remiss read more into it jority proportion of work designated than that.

the contract? Should we factor I Accordingly, dissent. number of employees involved make our determination? “majority” OWEN, Is the Judge, dissenting: Circuit prospective work retrospective in appli- Our court has considered this en case cation, or some combination thereof? banc in an bring effort to some least majority proffers this “majority uniformity predictability the law the work” standard without sufficient sub- regarding applicability Circuit stantiation how it is to be applied, let the Outer Continental Shelf Act Lands why (OCSLA)1 alone looking we are to be to work at to contractual provi- §§ et seq. 1. 43 U.S.C. if law under OCSLA as federal be responsible a laudable and

sions. That law the federal a between in our there is conflict the confusion given undertaking, have parties respectfully I law. Because area. and state in this jurisprudence pertain that to the court the issues however, the test addressed submit, that broadly. Nor remand to analysis, too I would today sweeps such an adopts proceedings. test find further “majority-of-the-work” district does of OCS- provisions express in the support law, or federal

LA, applied as state law I law. federal common case are somewhat facts in this question: presents difficult This case are several contracts complicated because indemnity provision an law governs what involved, is seeking and Seacor that act omission or in a contract when to pursuant Isle from Grand tort claim oc- rise gave and BP Grand Isle a contract between on the Outer navigable water curred on Company. Seacor American Production (OCS), indemni- Shelf but Continental but is an that contract party not a in a contract obligation is contained ty beneficiary. third-party express be for work to primarily calls indemnify BP to agreed Isle with Grand OCS, al- stationary platforms on on contractors, such as of BP’s othеr each activities on contemplates though it also Seacor, by Grand Isle from made claims from It is not clear waters? navigable seeking indem- contractor employees me, Congress OCSLA, law at least to what BP with agreement nity had executed obligations govern contractual intended to to Grand extending reciprocal indemnity A number of circumstances. under these be- agreement service Isle. The master made, consid- can be as will be arguments BP, Isle and tween Grand below, tack to regarding the correct ered found, pro- at issue is indemnity provision take. third-party are that BP contractors vides today a choice- has fashioned The court indemnity agreement. beneficiaries on where the that turns of-law mechanism indemnity provisions are contained Similar performed. majority the work is Contract with Vessel Charter Seacor’s principles agree I that choice-of-law While BP. regard to under OCSLA with apply must agreement contem- Isle body one more than contracts which BP/Grand per- employees Isle will plates Grand apply, I would might substantive in the Gulf platforms work on fixed choice-of-law form common either Mexico, expressly provides it also but code Louisiana’s choice-of-law principles or transportation for Grand BP furnish will Supreme asked provisions. Court plat- the shore to employees from Isle questions in left unanswered Gulf Offshore Ac- and board forms3 and room offshore.4 as to whether Corp.2 v. Mobil Oil Co. ac- Isle contract cordingly, the law should law or state’s federal common BP/Grand 487-88, heliport designated shorebase [BP's] 2. 453 U.S. Work location.” the offshore L.Ed.2d 784 "Company shall provides: [BP] 4.Article 2.06 provides: otherwise 3. Article 2.04 "Unless Work at the provide room and board offshore writing, shall fur- agreed Company [BP] per- nish, [Grand Isle’s] transportation location for Contractor’s expense, cost and this Con- performing services under personnel, sonnel [Grand Isle’s] for Contractor's Company’s tract.” equipment, and materials between knowledges that activities undertaken in the-work tеst is the factor to be con- furtherance of the contract will occur both sidered if the contract is not a maritime navigable waters as well as on the contract and state law is not A platforms. offshore Grand Isle employ- inconsistent with federal law. injured ee was on Seacor’s vessel while in case, In the present the master service transit between an platform offshore used agreement between BP and Grand Isle living quarters and the offshore plat- provides that

form on which he working. had been The performance whenever of this contract is employee Seacor, recovered from and Sea- in any way related to activity, maritime indemnity cor seeks from Grand Isle. general laws of maritime the United third-party While beneficiary indemnity govern States shall the validity, con- agreements may in every not obtain struction, interpretation, and effect of agreements even most pertaining to work contract, excluding any choice of the OCS, on platforms offshore it would law rules which would require otherwise many seem that OCS-related contracts will application of laws of any ju- other contemplate that activities undertaken in risdiction. furtherance of the contract will occur not Grand agreed Isle and BP that only on platforms, offshore but on or over navigable waters [i]n because the the event workers will maritime law is held to be necessarily have to inapplicable by traverse the OCS to a of competent ju- risdiction, reach platforms. offshore There are at the laws of the state of Okla- least two bodies of arguably (i) law that could homa apply, shall unless otherwise apply to provisions provided (ii) such con- in this applica- contract or general tracts: maritime law5or the law of tion of such to a particular provision law adjacent state applied as federal law. prevent would enforcement of pro- such It possible is also a that contract could call vision, in which case law for work on multiple platforms, some of provision to such shall any potentially be which are offshore one state and others applicable law that would allow enforce- offshore another. po- This increases the ment of said as written. tential sources of that might ap- law be majority-of-the-work The test means plied indemnity provisions. to The court’s that provisions choice-of-law ig- will be today decision reaches all such contracts. nored in a contract that covers activities in It is also single conceivable that a con- more than one area of the OCS as well as tract provide onshore, could for work in related high activities on the seas. For adjacent OCS, states that are not example, may a contract encompass work well as work on the OCS. The court’s platform on a offshore Louisiana and work decision appears reach to contracts in Texas, on platform another offshore a small of the percentage work parties may that specify Texas law will to occurs offshore. govern all issues. Applying the court’s test,

Another notable if majority, result court’s test majority, even slim gives is that it no effect to contractual Louisiana, the work is to be performed in provisions. choice-of-law majority-of- then govern Louisiana law will all aspects Tallentire, Logistics, 5. See Inc. v. perished ors of offshore who in a workers Offshore 207, 218-19, U.S. S.Ct. 91 L.Ed.2d helicopter being transported crash while from (1986) (holding admiralty jurisdic shore). platform an offshore properly tion was invoked in a suit surviv choice-of-law accepted generally though An law. as federal of the contract may differing law recognize principles occurred to a worker a contrac- may give rise of a contract.8 differing provisions Texas offshore indemnity, but tual claim selects test majority-of-the-work Lou- by substantive governed claim will be (excluding single of a state substantive (1) though even federal law law as isiana as bor- to serve principles) apply, would agreed Texas parties is- all cоntractual law for rowed (2) in an area offshore injury occurred sues. per- govern law will Texas Texas and the ma- (3) explain how court does not as federal injury claims sonal affect contrac- will applying Louisiana test jority-of-the-work courts to the Louisiana give property. effect Will might not that tual relate claims LOLA)6 (or under Indemnity Act law re- Offshore and substantive rights contractual concern did not that facts similar attached to pipelines or garding structures area, rou- Outside OCS.7 one governed be on the the seabed OCS issues, such tine breach-of-contract or the structures though law even state’s occurred, whether a breach whether expanse a broad are found pipelines across dam- material, types of breach was adjacent to OCS, in areas some of the by Loui- available, governed would be ages Louisi- Texas, adjacent in to others areas though even as federal law siana law ana, Mississippi, or Alabama? Texas law would that agreed parties oc- work and substantial pres- of OCSLA application to the contract proper The Texas. offshore curred I but submit questions, ents difficult OCSLA, not in- enacting in did Congress, to appears test majority-of-the-work The well-recognized principles jettison tend even to obligations, contractual all apply to Seen from 9:2780(A). policies these states. of ferent § Ann. 6. La.Rev.Stat. having angle, factual each another may Inc., case Eunice, given a multi-state with See, contacts King Miller g., v. I.E. e. of regu- 11/21/07); strong in equally interest 07-167, have an not (La.App. 3 Cir. p. 6 case, only those but lating all issues in So.2d actually implicate policies in issues way. significant 8. See Restatement (Second) Laws of Conflict of sepa- is an ("Each issue-by-issue analysis is to receive issue so-called d This cmt. which be American integral it is one would all modern if feature rate consideration differently law rule methodologies local under and facilitates resolved potentially interested two more resolu- or individualized nuanced and a more states.”); art. see also One result problems. Ann. La. of conflicts Civ.Code tion d, provides: which cmt. might of dif- analysis be that the laws this different may applied to states be ferent analysis dépegage. (d) Issue-by-issue dispute. phenome- This in the same issues in first "issue” use of the term by its in conflicts literature is known non to fo- is intended of this Article paragraph Although dépeqage. infre- name French partic- choice-of-law-process on the cus the name, phe- this quently referred to actual there exists an as to which ular issue is now common occurrence nomenon a conflict exists When of laws. conflict official and has received United States issue, the court regard only one with Europe. does recognition This Article factual contacts focus should However, dépegage prohibit dépeqage. not issue. pertinent policies that are pursued its own sake. be not should regard more with exists a conflict When should unnecessary of the case splitting issue, be ana- issue should one each than avoided, especially when it results may be implicate each lyzed separately, since states. states, distorting policies of the involved may bring play dif- into different that determine what law govern par- will subsoil and seabed of the outer Conti- ticular contractual provisions. Shelf, Congress’s nental and artificial islands and goal enacting “provide OCSLA was to fixed thereon, structures erected which comprehensive and body familiar of law.”9 would be within the area of the State

its boundaries were extended seaward to II margin outer of the outer Continen- ,12 tal Shelf ... starting point in determining what It is this of OCSLA that directs requires is the Act itself. Section courts to 1333(a)(1) apply federal law to the subsoil provides that: of, and seabed and artificial islands and The Constitution and laws and civil and on, fixed OCS, structures but to bor- political jurisdiction of the United States “applicable row and not inconsistent” state are extended to the subsoil and seabed law. OCSLA does expressly mention of the outer Continental Shelf and to all pertain contracts that to such artificiаl is- islands, artificial and all installations and lands and structures. other permanently devices or temporari- ly seabed, may attached There are a possible number of interpre- purpose erected thereon for the of ex- tations of applicability OCSLA’s to con- for, ploring developing, or producing re- tracts. The question first that must be therefrom, any sources or such installa- answered is Congress whether intended (other tion or other device than a ship or the extended geographic boundaries of ad- vessel) purpose for the of transporting jacent states to ap- determine what law resources, such to the same extent as if plies contractual touching the outer Continental Shelf were an area a structure within particular state’s ex- jurisdiction of exclusive Federal boundaries, located tended without regard to within a ....10 State principles. choice-of-law Notably, opinion court’s does not geo- conclude that As the Supreme stated, Court has “OCS- graphic boundaries are determinative. LA declares the Outer Continental Shelf to majority-of-the-work test, Under the a sin- be an jurisdic- area of exclusive federal gle state’s law will be selected even if the tion.”11 provides OCSLA further that contract pertains to work more than one the extent that they applicable [t]o are adjacent state’s area. The court has em- and not inconsistent with this subchap- ployed test, a but not one ter or with other Federal laws and regu- derived from “the normal choice-of-law lations of the Secretary now effect or rules that the forum apply.”13 would adopted, hereafter the civil and criminal adjacent State, laws of each However, now ef- geographic boundary is amended, fect or adopted, hereafter determinative, or remains, then question repealed are declared to be the law of do courts look geographic location of the United States for that portion of gives occurrence that rise Huson, 97, 103, 9. Chevron Oil Co. v. 404 U.S. Corp., Co. v. Mobil Oil Gulf Offshore 349, 473, 479, (1971), 92 S.Ct. U.S. 30 L.Ed.2d 296 101 S.Ct. overruled 69 L.Ed.2d 784 (internal (1981) omitted). part quotation marks grounds by on other Harper Dep’t ‍‌​​​​‌‌​​​‌‌‌‌‌​‌‌‌​‌​‌‌‌‌​​‌‌‌‌​‌‌​‌​‌​‌‌​‌‌‌​​‍v. Va. Taxation, 509 U.S. of 1333(a)(2)(A). 12. 43 U.S.C. L.Ed.2d 74 Co., 453 U.S. at 482 n. Gulf Offshore 1333(a)(1). 10. 43 U.S.C. S.Ct. 2870. choice regarding statements The Court’s dispute, or should to the contractual in context. area considered geographic law must be relationship to contract’s (person- is tort If the contract primarily involved instead? Both cases considered be possibili- numerous considered, are not there The Court injury) actions.16 al perspective. ties, geographic from choice-of- whether to consider upon called in which the area look to courts Should in con- have “no relevance” principles some, a sub- that contemplates tract actions. of the work amount, majority or a stantial holding in actual Supreme Court’s Alternatively, performed? been has Louisi- v. Huson was Oil Chevron Co. work will be where question should an governed of limitations statute ana’s the contract? life of over the be inju- injured personal worker’s suit location consider instead courts Should applied as federal law was ries.17 State had been injured party the work reasoned accordingly, the Court perform? was about performing or not, then, “[sjince fixed structure federal court to which Should look in furtherance of route in the en another forum the worker was the law of applying injured? contract, leaving, when prin- of laws sense, ordinary conflict usual concludes dissenting opinion Judge Garza’s [The no relevance. ciples have the under- location of geographic that the in fed- ‘applicable’ limitations] statute to the contractual rise lying injury giving it just Act the Lands court under eral ap- This test is is determinative. dispute court.”18 in a Louisiana would I am easily applied. it is because pealing rejec- all-encompassing This is far from however, that the text persuaded, pertain principles of choice-of-law tion it. supports OCSLA contracts. only geog- that we consider concept The Corp., v. Oil In Co. Mobil Gulf Offshore principles not choice-of-law raрhy and indem- for contractual had Gulf Mobil sued direct- is involved derived when the OCS injured on employee was nity after Gulf Court. Supreme ly from decisions ques- by Mobil.19 The chartered a vessel and said construed The OCSLA Court has was in case actually decided tion “[sjince v. Huson in Oil Co. Chevron ju- exclusive courts whether federal have then, not, applying the indem- injury and personal over risdiction sense, in usual forum the law of another arising under OCSLA.20 nity claims have no principles ordinary of laws conflict Louisiana, and offshore injury occurred Court subse- Supreme relevance.”14 the Court argument was no before there support in' this statement quently cited applied adjacent state’s that another a footnote in in its conclusion Gulf Offshore either maritime general or that does that “OCSLA Corp. Co. v. Mobil Oil the contrac- injury claim or personal rules normal choice-of-law supersede the Supreme provision. tual apply.”15 would that the forum 102-03, 102-03, 349. U.S. 92 S.Ct. 17. at 349. 92 S.Ct. 14. 404 U.S. at 2870; 8, see 101 S.Ct. U.S. at 482 n. 15. 18. (“The statute at 101 S.Ct. 2870 also id. explicit provi- an choice-of-law thus contains S.Ct. 2870. 476 & n. 19. 453 U.S. at sion.”). 2870; 480-85, Chevron 101 S.Ct. 2870. id. at 101 S.Ct. See Id. at 16. Co., Oil 404 U.S. simply

Court observed that Louisiana law a contract. In other areas applied as federal law under Supreme Court has recognized that differ- personal injury Indeed, action.21 there ent concepts apply in deciding what law scant mention of the contractual governs a contract as distinguished from a indemnity provision. Nor was conten- tort.23 example, For Supreme Court tion made in that the indem- Gulf Offshore has said that in determining whether a nity provision was unenforceable under contract is a contract, maritime “[t]he Louisiana’s Act, Oilfield Indemnity be- boundaries of admiralty jurisdiction over cause the in that case occurred opposed contracts—-as to torts or crimes— 1975, before the Louisiana law was enacted being conceptual spatial, rather than have in 1981.22 The Supreme Court did not always been difficult to draw.”24 The hold that courts are foreclosed from apply- Court explained, “To ascertain whether a ing adjacent stаte’s princi- choice-of-law one, is a maritime we cannot look ples adjacent when the state would consult to whether a ship or other vessel was its choice-of-law rules in deciding whether involved in dispute, as we would a statutory provision should be applied to putative maritime tort case.”25 “Nor can render a contractual we simply look to the place of the con- unenforceable. tract’s formation or performance.”26 In It is unquestionably our obligation to discussing the seminal decision of Kossick Supreme precedent Court’s Co.,27 United Fruit said, the Court “It That faithfully. does not mean that we did not matter that site of the inade- should unquestioningly assume that quate gave treatment —which rise to the Court’s statements in one context are contract dispute hospital —was binding precedent other, demonstrably Rather, land.”28 whether the contract was different, contexts. I respectfully submit a maritime contract turned on consider- that we should not consider the Supreme ations divorced from the location of the Court’s conclusion that prin- treatment that the promised shipowner ciples not apply do to tort actions as a provide to injured seaman.29 binding determination resort cannot be had to principles choice-of-law in order It would seem that some choice-of-law to determine what substantive governs law rules must applied be to determine wheth- 481, 21. Id. at 101 S.Ct. Supreme 2870. Ry. 14, 23, 23. Kirby, S. Co. v. 543 U.S. Norfolk subsequently Court Logis- noted 385, (2004). 125 S.Ct. 160 Offshore L.Ed.2d 283 tics, Tallentire, 207, 219, Inc. v. 477 U.S. 106 2485, (1986), S.Ct. 91 L.Ed.2d 174 that "no (internal 24. Id. quotation citation and marks question was even raised in Gulf Offshore omitted). regarding applied whether OCSLA to an acci- dent adjacent aboard a plat- vessel to 25. 219, form." See also id. at 106 S.Ct. 2485 ("[T]he facts of Rodrigue and [Gulf v. Offshore 24, Id. at 125 S.Ct. 385. Co., Casualty Surety 352, Aetna & 395 U.S. 89 1835, (1969)] S.Ct. 23 L.Ed.2d 360 make 27. 365 U.S. 6 clear L.Ed.2d 56 presumed that OCSLA applicable was not because of the status of the decedents but proximity because of the of the workers' acci- platforms dents to and Co., the fact that the Ry. S. 543 U.S. at Norfolk intimately were fatalities connected with the S.Ct. 385. work platforms.”). decedents' 24-25, 29. See id. at 125 S.Ct. 385. Acts, 22. 1981 La. No. 427. case, Liepelt personal in an if OCSLA by OCSLA governed is er a contract giv- be instruction require that borrowed would law is state’s so, adjacent which silent,” the not in was not Congress it is law, extent “But en.”34 federal as the case noted,35 it remanded law. with federal Court conflict of whether “for determination court state and, Ill the instruction requires law Louisiana displaces not, Liepelt whether if it does not intend OCSLA did Congress If rea- Its case.”36 in an OCSLA rule state prin- choice-of-law of consultation foreclose was as follows: doing so soning for contracts, then that ciples be answered that must question next this case incorporated for [Congress] gov- should principles choice-of-law what Louisiana, but of law applicable federal choices include possible ern. inconsistent” is] [it extent “[t]o appli- principles law choice-of-law common does not The statute law. with federal contracts, application cable statutory federal between distinguish principles, choice-of-law “adjacent state’s” seem would law. It judge-made state’s the forum application or the “inconsis- law Louisiana then that principles. arises, Doubt tent,” Liepelt controls. wheth- open left has Court Supreme Congress however, in OCSLA because under federal law law er state remedy provided state borrowed prevails common law or federal OCSLA rejected “specifically thereby law and depending differ would the result when paramount uniformity” as national In body applied. Off- Gulf U.S., Huson, 404 v.Oil goal. Chevron was one issue Corp., Oil shore Co. Mobil Chevron, we S.Ct., In at 354. case, must the jury whether, in an than federal rather held that future for damages lost that instructed the federal statute provided common income to federal subject are not wages injury dam- personal of limitations explained The Court taxation.30 recog- We OCSLA. under ages actions the source is to determine first task “[o]ur provi- clear “Congress made nized that so, “a To do govern.”31 will law that law; in federal filling ‘gaps’ sion both the content considеr must fill federal courts not intend it did federal and potentially creating new ‘gaps’ themselves those under observed The Court law.”32 104-105, Id., at law.” common federal enti- a defendant common case, face an S.Ct., In this at 354. Federal in an an instruction tled to such incorpo- question: does analogous Act case.33 Liability Employers’ a court from preclude of state law ration had Congress “[i]f concluded Court “inconsistent” law is that state finding law of federal about the source silent been 487, 2870, 2870. 485, 473, 34. Id. at 69 S.Ct. 101 U.S. 30. 453 784 L.Ed.2d 35. Id. Id. 31. 488, S.Ct. 2870. 101 36. Id. 486, 2870. S.Ct. Id. at 101

32. Liepelt, Ry. Co. v. (citing & W. No

33. rfolk 755, 498, 490, 62 L.Ed.2d S.Ct. 100 U.S. 444 (1980)). 689

809 with a federal general- common-law rule regard law, With to Louisiana at least ly applicable to damages federal actions? one relatively recent appel- intermediate late court decision indicates that Louisiana question

We need answer this if only courts would first consult Louisiana law would not require that the choice-of-law Louisiana provisions code be- instruction given upon timely re- deciding fore if Louisiana’s Oilfield Indem- quest.37 nity Act eviscerates contractual indemni- It would necessary therefore seem ty agreement. In King v. I.E. Miller of determine there is federal common law Eunice, Inc., Wolf, Grey a corporation generally applicable to what determine law Texas, domiciled Miller, and I.E. a cor- so, governs contracts. If is that law incon- poration Louisiana, domiciled in entered sistent with Louisiana and if there ais into a agreement master service that con- conflict, does federal common displace reciprocal tained indemnity provisions and Louisiana law an In case? provided that Texas law apply would regard, I note that circuit have courts arising issue under the contract.40 concluded that a federal common law agreement contemplated work in four analysis choice-of-law should be conducted states, including Texas and Louisiana.41 A when the issue is a federal question,38 verbal work order was issued Grey that in the absence guidance of from Con- Wolf for work to be in Louisi- gress, courts have upon relied the Restate- ana, emplоyee, and its a Louisiana resi- (Second) ment of Conflicts of the Law dent, injured in the course of that of content federal common law.39 work42 due to I.E. Miller’s negligence.43 case, In present Louisiana is un- (I.E. corporation Miller) questionably adjacent state. But sought indemnity from corpora- the Texas Wolf). other patterns, fact determining “adja- (Grey tion The Louisiana court purposes cent deciding state” what held that applied Texas law refused governs a contractual provision pres- void the agreement under Loui- many ents of the same conundrums faced siana’s Indemnity Oilfield In reach- Act.44 attempting when to apply decision, geographic ing that the Louisiana court first boundaries. provisions contained 487-88, 37. Id. at 101 approach S.Ct. 2870. outlined in the Restatement (Second) Laws.”); Soc'y Conflict of Chan v. 1168, Unisys 38. Corp., See Gluck v. 960 F.2d Inc., Expeditions, (9th 123 F.3d 1297 (3d 1992); 1179 n. 8 Cir. v. Edelmann Chase 1997) ("Federal Cir. common law applies to Bank, N.A., Manhattan 861 F.2d 1294- choice-of-law determinations in based cases (1st Cir.1988); Corporación 95 de Venezolana admiralty on ... .... Federal common law Corp., Fomento v. Vintero Sales F.2d approach (Sec follows the of the Restatement (2d Cir.1980) ("This question ais ond) Laws.”). Conflicts appropriate case ... and it is that we federal common law choice of law rule 07-167, 11/21/07); p. (La.App. 3 Cir. ...."). So.2d Brasil, Lilly 39. See Eli Do Ltda. Fed. Ex- 41. Id. at 706. (2d press Corp., Cir.2007) 502 F.3d 81 ("[W]hen conducting a federal law common 42. Id. analysis, guidance choice-of-law absent from Congress, may consult the Restatement (Second) 43. Id. at 704. Laws.”); Huynh of Conflict of Bank, Chase Manhattan 465 F.3d 997 (9th Cir.2006) ("Federal common law follows 44. Id. at 707. subjected if consequences 3540,45 adverse minimal articles Code

in LouisiaNA Civil “Texas’ (b) law”52 and because that state’s article to to 3537,463515,47 comment and are (51.78%) contracts upholding of policy of half more than Slightly 3515.48 into far out- voluntarily entered freely and agree- master service the the work under oil- protecting policy of weighs Louisiana’s Texas, approxi- in performed ment was court also Louisiana, field subcontractors.”53 performed mately 30% was сoncerns, parochial candidly expressed its 17% approximately and indem- oilfield Louisiana’s explaining that Louisiana,49 although the and both Texas designed protect law was weight nity much give “not did court appellate subcontractors, in this and if enforced The court conclud- to this information.”50 a Louisiana case, prohibit would the is law relationship of Louisiana “that the ed obtaining from corporation from the relation- than party stronger to each court held that corporation.54 the a Texas party,”51 but to each ship of Texas the apply under law would Texas par- the because law because Texas applied as well as subject- parties’ to be expect justifiably “would ties the trial provision, of that in the absence suffer and would of Texas to the law ed applied to not impaired its law were ly if of other issues provision states: “All 45. That issue. by the that obligations governed are conventional evaluating by the upon by is determined That state clearly relied expressly chosen or law poli- relevant strength pertinence the and of law con- except the extent that parties, the (1) light of: states the cies of involved whose all policy of the state public the travenes parties to the relationship of each state the applicable under Arti- be law would otherwise (2) policies and dispute; and the and the cle 3537.” international of the interstate and needs upholding provides: including policies of systems, the Article 3537 46. parties and justified expectations of of the Title, provided in this Except as otherwise consequences that minimizing the adverse obligations gov- is conventional an issue of subjecting party to might the from follow policies by of the state whose law erned the than one state. law of more seriously its impaired if would be most applied to that issue. were not (b) provides: to Article 48. Comment evaluating determined That is identify poli- objective "the state whose pertinence of relevant strength and (1) seriously impaired if light policies of: be most in the would the involved states cies of [particular] state to not pertinent contacts of each were which, transaction, issue”, is, light including of its the state parties and formation, dispute per- relationship parties and and negotiation, place of contract, pertinent by policies rendered the location and its formance of contract, most serious place relationship, of would bear the object and social, economic, residence, domicile, other conse- legal, or business of and habitual nature, (2) pur- applied to that 1ype, quences its law were parties; contract; (3) policies issue. pose of the as the as well to in Article referred King, So.2d at 706. 49. orderly planning facilitating the policies of transactions, promoting multistate 2. Id. at n. 50. intercourse, protecting commercial by the imposition party from undue one 51. Id. at 706. other. provides: 47. Article 3515 52. Id. at 706-07 Book, provided in this Except as otherwise Id. at 707. with having a case contacts an issue in governed the law of other states policies would most serious- state whose in voiding court erred indemni- governs mutual law provisions at issue. ty provision.55

This court has applied Louisiana’s IV provisions choice-of-law code as the initial majority-of-the-work court’s test is in step determining whether the Louisiana relatively easy provides and Indemnity Oilfield Act applied to render measure of predictability. These are com- indemnity provisions unenforceable at is- However, mendable attributes. the court’s opinion implicitly diversity sue in crafts a new case in federal com- injury- which the mon law choice-of-law rule to what decide had occurred Louisiana state waters.56 govern will a contract that has some lengthy analysis After a of the factors set connection with structures on or attached forth in Louisiana’s civil code provisions seabed OCS with the law, regarding choice of we concluded that seabed itself. Supreme Court has govern Louisiana law would the absence “Congress admonished that made clear and provision,57 provision filling in the ‘gaps’ in federal application of Texas law under the choice- law” that OCSLA, to be under of-law would violate Louisiana and that Congress “did not intend public policy expressed in the Oilfield federal fill courts ‘gaps’ those them- Indemnity consequently We re- selves creating new federal common Act.58 fused enforce the indemnity are to apply We the adjacent law.”60 provision.59 state’s law as federal to the extent law,61 existing precedent Because our does not it is not inconsistent with federal principles consider choice-of-law in a case I “majority-of-the-work” know of no law.62 in which may apply, parties test under federal even if federal com- questions have briefed the not that arise. mon law that is inconsistent with Louisiana I would remand to parties allow the state precedence law takes under OCS- the district court to consider further what LA.63 Id. needed.”); 55. body of state law was id. at 104 ("[T]he Appeals’ approach Court of [applying Energy 56. See Roberts v. Corp., Dev. 235 F.3d through admiralty laches doctrine law] (5th Cir.2000). inappropriate amounts creation of fed- law.”); eral ("Congress common spe- id. cf. 57. Id. at 943. cifically rejected uniformity spe- national cifically provided application for the of federal, 58. state, remedies which demand not limitation.”). statutes of Id. at 944.

59. Co. v. Mobil Corp., Oil Huson, 97, Gulf 60. Chevron ‍‌​​​​‌‌​​​‌‌‌‌‌​‌‌‌​‌​‌‌‌‌​​‌‌‌‌​‌‌​‌​‌​‌‌​‌‌‌​​‍Oil Co. v. Offshore 404 U.S. 473, 487, 2870, U.S. 101 S.Ct. 69 L.Ed.2d 784 104-05, (1971), 92 S.Ct. 30 L.Ed.2d 296 (1981). part grounds by Harper overruled in on other Taxation, Va. Dep't 509 U.S. ("But Congress 63. See id. was not It silent. L.Ed.2d 74 incorporated for this case the ("The Louisiana, policies Id. at 92 S.Ct. 349 but '[t]o [it is] extent absorption the federal of state law not inconsistent with federal law.’ The stat- in the particularly Lands Act make this distinguish result ute does between federal stat- pointed Rodrigue, utory obvious. As out judge-made Con- law. It would seem gress recognized ‘inconsistent,’ that ‘the Federal Code was then that Louisiana law is designed complete arises, never body to be a of law [federal common controls. Doubt law] however, in and comprehensive of itself' and thus that a Congress in OCSLA because bor- :¡: * %

sfc ^ reasons, respectfully I foregoing

For the

dissent. LABOR RELATIONS

NATIONAL Petitioner,

BOARD, AD& SPECIAL PRINTING

SEAPORT INC., doing as Port

TIES, business Respon Specialties,

Printing Ad

dent.

No. 09-60088. Appeals, States Court of

United

Fifth Circuit.

Dec. goal.”). mity’ paramount as a law and remedy provided rowed rejected unifor- thereby 'specifically national

Case Details

Case Name: Grand Isle Shipyard Inc. v. SEACOR MARINE, LLC.

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Dec 10, 2009

Citation: 589 F.3d 778

Docket Number: 07-31019

Court Abbreviation: 5th Cir.