*1 403 in thе Despite the variance nature Tariff. lading, clearly bills of each reveals K. Robert CHRISTOFFERSON and Oleta to consignee ultimate be Conti- that the Christofferson, Plaintiffs, L. Further, admits that plaintiff this nental.20 theory on the supportable scheme al., HALLIBURTON COMPANY et charge, to parties it wishes Defendants-Appellees, carriers, recipients must be the of river which accrues their favor.
some benefit conclude, therefore, that Alter’s obli- COMPANY, We PHILLIPS PETROLEUM of affreightment under its contracts gations Defendant-Appellant. were Quincy Pillsbury at an end 78-1022. barges were to A&G’s once the delivered Court of Appeals, United States A&G, Paulina facilities. of integrated Fifth course, is Cirсuit. not bound the terms of these on them engraft contracts. Nor it 19, May 1980. reading artificial of the term “destination” we have which conflicts with what found to Rehearing 15, 1980. Denied July e., patent parties, intention i. be the when would take over the river A&G had completed carrier its contract of tow-
age arrived in the area A&G’sriver grain
terminal transfer facilities. establish,
Plaintiff has been unable as it
asserted, that, obligation because of an aris- affreightment
ing from contracts of
provide fleeting services, shifting
Alter received benеfit when these services performed by All A&G. three of
plaintiff’s proposed of recovery, theories
which as previously noted must stand or fall benefit postulation,
with the are defeated.21 stipulated by parties,
As A&G enti-
tled recover tug services in the respects,
amount In all other $489.60. complaint
A&G’s shall be dismissed at its
costs. Orleans,
New Louisiana 19,
October 1977 court, finding 20. See n.8. carrier. The encompass carrier’s contractual duties did not Bunge Corp. Lines, Inc., Barge 21. v. Federal any aspect unloading, including payment denied, (La.App.1973), 730 writ 273 So.2d fees, dockage refused the terms (La.), dismissed, denied, appeal So.2d cert. plaintiff’s private to the carrier. tariff Addi- 805, 41, sup 414 U.S. 94 S.Ct. 38 L.Ed.2d tionally, the court held that no contractual ports Bunge, plaintiff, oper this conclusion. In quasi-contractual existed without basis grain ator of terminal facilities and owner of vincing of consent demonstration or bеnefit discharged, recovery was denied for “dock- party sought to be bound. age alleged during fees” had accrued discharge cargoes charged and which it *2 Gerard, Scofield, John B. Bergstedt & La., Scofield, Charles, for defendant- Lake appellant. Houma, La., Jr., for
Joseph Weigand, J. Drilling Co. Diamond M Nieset, Smith, Allen Plauche, Hebert & Charles, La., Jr., Halli- Smith, Lаke L. burton Co. Voorhies, Labbe, Gregory E.
Voorhies & La., Leonard, for Coastal Lafayette, H. Lee Unigard Ins. Co. Co. & Rubber Gibbens, Duke, John & Caffery, Oubre La., Iberia, Aeroquip Blackwell, New Ins. Co. Corp. & Travelers Swanner, Seale, W. Phelps, John Smith & La., George Meyer Co. Rouge, Baton Hammett, Hammett, Leake, Hulse & Orleans, III, Nelson, New Harvey, Eldon T. La., American Co. & for B. F. Goodrich Motorists, Inc. Co. MORGAN, REAVLEY
Before HATCHETT, Judges. Circuit MORGAN, Judge. R. LEWIS Circuit seriously Robеrt in- Christofferson jured jackup in an accident on the offshore 24, drilling rig August where he worked on filing 1973. After a lawsuit incident, many parties involved in the he settled the defendants and with each of litigation. withdrew district court to a trial of the proceeded then rights to determine the of the defendants to indemnity and contribution inter se. Phil- lips Company appeals Petroleum from a judgment granting Company denying demnity from other defendants. occurred on Dia- I. THE PHILLIPS-DIAMOND M IN- mond M Company’srig DEMNITY which at the AGREEMENT.
time of the accident was situated in the case, Prior to the trial of the the district Gulf Mexico 100 miles off the coast of granted judgment summary for Dia- Louisiana. Petroleum had con- mond M аgainst indemnity al- *3 tracted with Diamond M for the drilling of legedly owed by Phillips under the terms of a well at that proved location. The well to an agreement. The contract be- dry, contractor, be and a Phillips (Owner) second tween Halliburton and Diamond M (Contractor) Company, provided as engaged by follows: was for a plug аnd operation. abandon In plug Indemnity Owner; a 16.8 and Owner agrees to operation, protect, indemnify, abandon a retainer and save inserted harmless the Contractor into the from and well pumped and cement is below claims, all demands, and causes retainer, the sealing the well opening. of action mаde against Contractor, or Christofferson was petroleum engineer a in which Contractor be par- named employed by observe inspect and ty defendant, by employees, Owner’s operations the rig and was Phil- agents, or invitees on of per- account lips’ sole representative on the rig on the sonаl injury or arising death . . . day of the plug accident. The and abandon out of work performed by Owner, Own- operation performed jointly by per- employees, the er’s agents, invitees, or and sonnel of Halliburton contractors or (other and Diamond subcontractors M un- than the Contractor der the under this supervision of John Rоgers, of Dia- tract) or equipment furnished in con- Terrell, mond M and Don of Halliburton. therewith, nection irrespective of whether such claims are operation occasioned in required the use of two whole or in part by the negligence hoses, very durable one to carry cement Contractor, its employеes, agents, or squeeze Halliburton’s manifold to the invitees, or the negligence of Con- casing and another from squeeze mani- tractor’s any subcontractors or party fold to the pipe. drill It is standard indus- for which Contractor is performing try practice to use steel “chicksan” hoses services, or employees, agents, or However, for this purpose. employee invitees party subcontractor, of such suggested Diamond M the use of steel rein- byor the unseaworthiness of vessels or forced flexible hoses that were stored on craft. the rig, and none of the personnel other (emphasis added). present dissented. contends, Diamond M and the district exercise was ex- and abandon plug agreed, that the above clause clearly pressure of pected produce a maximum establishes Phillips’ obligation to reimburse Hence, Rogers pounds on the hoses. Diamond M for claims 2.000 made Christoffer- to test all lines agreed and Christofferson son. Phillips parentheti- counters that the 3,000 commencing op- pounds at before “(other cal than the Contractor under this contract)” standpipe eration. The lines on the side limits the coverage of the indem- 3,000 nity agreement pounds injuries were tested at claims for pipehead result- ing from work reason, рerformed by persons ordered, other for some unknown than breath, Diamond M. In the same Phil- casing side were tested at lines on the lips asserts that the work which led to it, the pounds. As fate would have “was that of Dia- casing hose on the side had become frail M (together Halliburton).” mond with During with the “revers- age and overuse. plug and аbandon ing stage out” Phillips’ emphasis on Diamond M as a operation, ruptured by surge party the hose was involved in the work is misplaced. causing Admittedly, the manifold to strike pressure, plug opera- abandon Christofferson. employees tion involved the participation indemnify by Diamond M’s duty of its and Diamond M. It Halliburton
of both
priоr
the contract
to Christoffer-
cooperate
M
breach of
that Diamond
was essential
owned,
cites
operated
M
son’s accident.
since
plug
from which the
rig
provides:
maintained
performed.
These
operation
abandon
Materials Furnished
Inspection of
disputed. But Halliburton
facts are not
agrees
inspect
all
Owner: Contractor
Phillips,
and was
contract
was under
before us-
materials
Owner
furnished
rig by Phillips specifically
brought
same,
notify
any
ing
and to
Owner
Thus,
operation.
plug and abandon
for the
therein;
apparent defects
Contrac-
party
whose work was a
Halliburton was
notify-
such materials without
tor’s use of
Phillips-
coverage of the
cause within the
conclusive evidence
ing Owner shall be
indemnity agreement.
ap-
were free from
that such materials
shall not
parent defects. Contractor
interprets
*4
damage resulting
any
loss or
liable
“(other than the Con
parenthetical
clause
materials furnished Own-
from the use of
contract)”
excepting
this
tractor under
containing
er
latent defects.
injury
any claim based on
coverage
Diamond M.
resulting
involving
from work
the defect in the hose
Phillips asserts that
agreement,
Under the circumstances of the
by Phillips
plug
and used in the
supplied
might nullify all indemni
such a translation
apparent,
that
operation
and abandon
fication,
fore
parties
since the
must have
knew or should
personnel
Diamond M’s
any
rig
seen that
work on the
would involve
defect,
and that Dia-
have known of
Viewing
Diamond M.
the clause in its con
inspect
the hose or
mond M’s failure to
text,
compelled
we are
to affirm the inter
notify Phillips of the defect was a breach of
court,
rendered
pretation
district
precluding any indemnity
contract
claim on
in
not an
parenthetical
question
that the
disposed
the contract. The district
exception
coverage
only
to defeat
holding that the indemni-
argument by
this
types
limitation on the
of contractors whose
ty
clearly independent
clause was
of the
performance
result
in
an indemnified
inspection and notice clause.
Thus, Phillips
obligated
claim.
to indem
any
Diamond M of
de-
Notification
nify
any
Diamond M for
claims made
by Phillips
supplied
fects in materials
Phillips’ personnel, provided that
the work
to be a condition tо
undoubtedly intended
which
caused the
was done at least in
impor-
M. The
rights
certain
of Diamond
part by any party other than Diamond M.
question
tant
is whether
failure of that
interpretation
This
the last
confirmed
part
condition vitiates all or
of the
portion
clause,
pro
of the
contract.
would have us
Tex-
indemnify
vides that
shall
question despite
as law to resolve this
M “irrespective of whether such claims are
case,
character of the
since the
maritime
part by
negli
occasioned in whole or in
governed
provides
contract
it shall be
(Diamond M).
gence of Contractor”
More
by Texas law. We look to Texas law not as
over,
relevant
agree
other
clauses of the
the choice of law issue but to
an answer to
parties
ment indicate that
intended
give Phillips the benefit of the doubt. Un-
responsible
injuries
make each
for the
of its
der either federal maritime law or Texas
own personnel.
law,
interpretation of
Phillips’
wе find that
undisputed
facts
match
rejected.
the contract must be
terms,
accept Phillips’
these
and we cannot
general
policy
the Texas
proffered interpretation as a reasonable al-
courts in the construction of contracts is to
creating
ternative
a triable issue. Summa-
precedеnt
avoid
condition
any finding of a
ry judgment
Ral-
proper.
on this issue was
forfeiture,
if another
would result
in
Gates,
(5th
li-Coney, Inc. v.
of defective materials. Its TO that mate- PHILLIPS. presumрtion ate an irrebuttable rials were free supplied by Phillips also seeks indemnity from a num- accepted M if Diamond apparent defects ber of defendants known collectively as the inspection the materials without and notifi- who group, in involved the manu- Phillips’ liability of defects. to Dia- cation facturing distribution of the steel rein- case, however, in this turns on mond M forced hose that caused in- right Diamond M’s rather jury. The hose was manufactured by B. F. right damages than Diamond M’s Goodrich cut Company, lengths into of 30 lan- delivery defective materials. No feet Inc., and marketed Aeroquip, guage suggests that the purchased by Coastal Rubber Co. for resale indemnity clause is also conditioned defendant, Phillips. An additional spection and notification. *5 George Myer fitted the hose with cou- 16.8, clause, indemnity the Paragraph plings, Phillips not pursue but has chosen to provides Phillips shall Dia- indemnify its cross-claim against George Myer Co. on against all of arising mond M claims out appeal. Phillips’ indemnity claim against therewith,” work “or equipment furnished the hose group was tried before the district “irrespective and of indemnity the is owed court sitting without' a jury. The court such . whether claims are . . caused found that the hose was not defective when in or in part” negligence whole of by the Phillips delivered to damaged had been Moreover, position M. the of the by the extraordinary use Phillips to which organization clause in the of Sec- put had the hose. tion 16 of the contract shows that the The hose in question designed was indepen- clause to demnity was intended Goodrich a hydraulic hose. It is inspection dent provision. of the and notice synthetic inner-liner, structed aof rubber 16 is divided ten paragraphs Section into liner, fabric spiral plies high six of steel apportioning Phillips Di- losses between rubber, wire impregnated synthetic with amond M for various Para- casualties. and a synthetic rubber outer cover. The of graphs 16.1-16.4 deal with allocatiоn loss outer protects plies cover the steel damage due the of property to to If protective corrosion. the cover is breach- protects and Diamond M. 16.5 Paragraph ed, corrosion caused property to of seawater debi- damage litate pressure the parties. hоlding capability third with the Paragraph 16.6 deals for in hose. When in liability supplied hydraulic systems, defects materials used to 16.7 Paragraphs significant Diamond M. there is no danger abrasion agreements 16.8 contain the outer cover. party inju- each whereby responsible for Phillips began to Aeroquip use steel rein- its employеes regardless ries to own forced for pressured rubber hoses cement- Paragraphs fault. 16.10 with deal ing work in 1971. industry prac- Since blowouts, liability pollution, and fire. tice employ was to steel chicksan in lines Each paragraph appearances for all work, cementing Phillips’ of Aeroquip use agreement as to allocation of loss. separate unique hoses was and innovative. Never- indemnity provisions indepen- theless, That are Phillips’ engineers no did research indi- provisions dent of the other further the suitability hoses, on consulted no manufacturers, cated catalogs statement of hose and did not the steel use оf negligent found, Phillips’ manufac- any hose ideas their discuss accident. hose contributed respon- reinforced engineers The or distributor. turer aware of the decision sible DENIED. rehearing is petition rub- reinforced in steel of corrosion dangers or any policy not establish but did ber hoses inspection handling, storage,
guidelinеs hoses. testing of the had in this hose involved specific al., et David GREENHOUSE for an undetermined used been Plaintiffs-Appellants, August failure on before its time amount opera- in cement been used 24,1973. It had and to test casings, wash tions, test and et Pascal GRECO Reverend Charles Most carried a These uses preventers. blow-out al., Defendants-Appellees. protective of abrasion high risk very 78-1802. obviously fact, the cover In cover. plies steel exposing the point worn to Appeals, States Court United the accident. day Fifth Circuit. hose contends May 1980. warnings issue obligated group supports The evidence danger. about the conclusion, howevеr, that court’s
the district plug and aban the hose in
Phillips’ use of by the was not foreseeable procedures
don is entitled A manufacturer group. put to will not be product its
assume uses, re if an accident
extraordinary carelessness, unforeseeable
sults *6 not liable. Harrison
manufacturer Grancolombiana, F.2d 577 Mercante
Flota Moreover, 1978). the evidence (5th
968 Cir. aware of the fully
shows that allow began abrasion when
danger of cementing operations. of hoses
the use any indem barred from
Phillips is therefore Rideaux v. group.
nity (S.D. Co., F.Supp. 153
Lykes Bros. S.S.
Tex.1968).
AFFIRMED. REHEARING PETITION FOR
ON
PER CURIAM: petition rehearing, Phillips notes On indemnity against its claim for Halli- in the specifically burton was addressed not affirming judgment of the dis- opinion Phillips’ indemnity trict claim rests court. tort “passive” on the rule that allows a an “ac- right feasor a Indus., tive” tort feasor. Oil Tool Tri-State Inc., 410 F.2d Drilling Delta Marine (5th 1969). Cir. The rule does not since, in this case as the district