Smith v. Penrod Drilling Corp.
960 F.2d 456
5th Cir.
1992
Check Treatment

*1 credentials, green Ting status —a card. He action. had the the con- his comfortable tacts, attempted marry partner reputation to a with creden- to find accom- status, customers, give protected plices. Ting produced him the but tials to seven ad- card, green Ting application process, provided without success. With a ministered the presence country his in this safety could cement a and solace to sense his fellow Thus, to Taiwan. and also could travel conspirators, gain green and stood to a Ting ripe enlistment Liu for the card for himself at little cost. The facts (not government agent) participate to a set forth in the PSI have not assailed been law, green card scam. As a matter of unreliable, only as the court’s conclusion Ting entrapped. judge was not The trial drawn from those facts. We are not con- ruling. did not err so findings by vinced that the district clearly court are erroneous. The sentence A STATUS AS MANAGER need not be vacated. OR SUPERVISOR . reasons, foregoing For the the convic- Ting argues appeal, prior he as did tions are AFFIRMED. manager sentencing, his that he was not a supervisor any co-conspirators. or He umbrage

takes with the trial court award- adjustment him

ing upward a three level 3Bl.l(b).

pursuant to The find- U.S.S.G. § ing of the trial court resulted a sentence SMITH, Bruce Husband of/and Ting might than more severe that which Smith, Plaintiffs, Teresa manager have received had he not a supervisor. or CORP., PENROD DRILLING review the trial court’s determi al., et Defendants. Ting manager supervi

nation that was a or clearly sor under a erroneous standard. U.S.A., INC., CHEVRON Third- Barreto, F.2d 511 United States v. Party Plaintiff-Appellee, Cir.1989); Alfaro, United States v. admitting F.2d 962 While governed by that are not controlled or AT CERTAIN UNDERWRITERS Commentary Sentencing Guide In- LLOYD’S LONDON and Various lines, suggests we observe that that source surers, Third-Party Defendants-Appel- the court consider lants. making factors when its decision: No. 91-3103. in- Factors the court should consider Appeals, United States Court making clude the exercise of decision au- Fifth Circuit. thority, participation in the the nature of offense, commission of the the recruit- April 1992. accomplices, right ment of claimed Rehearing On Petition crime, larger share of the fruits of the Suggestion Rehearing En Banc degree participation planning May offense, organizing the nature scope illegal activity, and the de-

gree authority of control and exercised

over others. 3Bl.l(b).

Commentary, U.S.S.G. §

Although Ting that he contends translate, paint no than the facts

did more manager, picture of a not a minion. The caper

success of the was bottomed on cus willing engage in an illicit trans-

tomers *2 Mazeau, III, George Healy,

Margot W. Dunbar, Orleans, La., Phelps New for Cer- Underwriters, et al. tain Schwartz, Wellons, D. B. William William Orleans, La., Mayer, Burke & New U.S.A., Inc. Chevron respective employ- III, brought by their Healy, claims Mazeau, George W. Margot Orleans, La., obligated to obtain and for Cer- Penrod was Dunbar, ees. New Phelps Underwriters, name Chevron as et insurance and al. maintain tain Pursuant to this an additional assured. Wellons, Schwartz, D. William B. William insurance from obligation, Penrod obtained Orleans, La., for *3 New Mayer, Burke & the underwriters. U.S.A., Inc. Chevron contract, by ref- drilling incorporated The provides agreement, in the letter erence and use a will furnish that Penrod SMITH, POLITZ, Judge, Chief Before per- drilling vessel be used jackup FITZWATER,* District Judge, and Circuit obligations. At forming its service Judge. accident, of the deck this time of the fixed positioned over Chevron’s barge was SMITH, Judge: E. Circuit JERRY trying to reach plaintiff The was platform. (a pre- assembly “blowout safety valve a I. block”) attached to the hoist venter claim, has set- original which The at- using the ladder barge. Instead of Act, general maritime tled, a Jones was top of stood on jackup, he tached to brought action law, tort law Louisiana and The fencing platform. on horizontal (Penrod) Drilling Corporation by a Penrod fell. apart, plaintiff fencing pulled and damages recover his wife to employee and course of work in the found that the injuries sustained district court for The (Chevron), plat- U.S.A., Inc. maritime, summary judgment granted on a Chevron the outer continental on form Chevron, situated ordered that and favor appellee Chevron were and shelf. Penrod indemnify Chev- and defend underwriters a Chevron filed defendants. named as indemnity and accordance with ron in against Appellant, complaint third-party in the work- provisions contained insurance (the un- London Lloyd’s, Underwriters Pen- and Chevron over contract between liability derwriters), pursuant to recover a final court entered The district rod. by the underwrit- policies issued insurance 54(b), pursuant to Fed.R.Civ.P. judgment, a The filed underwriters ers to Penrod. appeal. the underwriters which summary judgment for on cross-motion Indemni- Oilfield theory the Louisiana II. (LOIA), 9:2780 La.Rev.Stat. ty Act of Louisiana contend that underwriters The LOIA, any insur- that under applies and through OCS- applies to this accident law cov- extending purportedly to Penrod ance law LA; argues that maritime Chevron void. erage to Chevron relevant provides, controls. case is whether issue primary The follows: part, as instead, whether, applies or law applicable they are To the extent that surrogate federal law as Louisiana or with with this Act not inconsistent and Shelf the Outer Continental law under of the regulations and Federal laws other (OCS- Act, 43 U.S.C. Lands §§ hereafter effect or Secretary now in contracted, in a LA). Chevron and Penrod laws of and criminal adopted, the civil “work- Penrod to agreement, for letter or here- in effect adjacent now each State situ- platform on a Chevron over” well amended, are repealed or adopted, after The shelf. outer continental ated to be law hereby declared incorporates by reference agreement letter portion the sub- for that of a contract between States provisions United all of the Penrod the outer Continental seabed Chevron and soil well. particular Chevron of a fixed completion Shelf, islands and and artificial thereon, would which erected structures reciprocal drilling contract contains if its of the State the area be within party requiring each indemnity provisions seaward were extended injury boundaries personal indemnify the other * Texas, designation. sitting Judge District of the Northern District margin law). outer of the outer Continental apply the earlier2 Laredo Off- Shelf.... shore rule in this case and hold that mari- applies. time law 1333(a)(2)(A). (a)(1) 43 U.S.C. Subsection § explicitly places islands, “artificial and all A. installations and other permanently devices This accident took place on an OCS- temporarily attached to the un- seabed” LA situs. injury occurred when the coverage. der OCSLA’s 43 U.S.C. plaintiff, who was standing on some hori 1333(a)(1). § fencing zontal platform, on the reached for deciding In gov whether case is equipment some fastened to the jackup erned this court has articulated barge; fencing collapsed, plain *4 following the test: tiff Drilling platforms fell. constitute “ar tificial islands” 1333(a)(1). under section adjacent apply state law to as sur- [F]or Rodrigue, 363, 395 U.S. at 89 S.Ct. at 1841.

rogate federal law under three Thus, place the accident took on an OCSLA (1) significant. conditions are The con- situs. troversy by must arise on a situs covered (i.e. subsoil, seabed, OCSLA the or artifi- Chevron notes provided that the contract cial structures permanently temporari- that work would be done from jackup the ly thereto). (2) Therefore, attached boat. Federal mari- Chevron concludes that time we should apply law must not find that its own force. the accident occurred (3) jackup boat, on the The state not platform. law must not be inconsist- on the support We find no ent for this with Federal law. assertion. Corp. Union Texas Petroleum v. PLT B. 1043, (5th Eng’g, Cir.), 895 F.2d 1047 cert. Deciding whether the contract at is — denied, -, 136, U.S. 111 S.Ct. 112 sue is a maritime fortunately does (1990); L.Ed.2d 103 Rodrigue see also v. require not us to traverse the now-familiar Co., 352, Aetna Surety Cas. & 395 U.S. maze of cases interpreting similar con 355-66, 1835, 1836-42, 89 S.Ct. 23 L.Ed.2d tracts. In Theriot v. Bay Drilling Corp., (1969).1 parties agree 360 that the (5th Cir.1986), 783 F.2d 527 we stated that pertinent Louisiana is law not inconsistent principal determinant is the relation “[a] with federal law. also Zapa See Matte v. (Inter the contract ship_” bears to the Co., 628, (5th ta 784 F.2d 630 Offshore omitted.) quotation nal Noting that in Cir.), denied, 872, cert. 479 U.S. 107 S.Ct. piece Theriot “the main equipment to be 247, (1986). 93 L.Ed.2d 171 We therefore supplied by vessel,” was a [the contractor] analyze only the issues of applica situs and we held that contract thus focused “[t]he bility of maritime law. upon the use of a in vessel a maritime anWhen event occurs on an OCS- gov transaction and is a maritime contract shore, 784 F.2d law, maritime law controls. Laredo LA situs but also is at 630 (state 1229. But see governed by law on fixed Matte, Off court’s conclusion in Theriot that the con erned maritime law.” Id. 1086 Glendel [ by (5th Drilling Cir.1990)], Co.], we 898 F.2d opined In Lewis [v. that [1083] “[t]he platforms to the upon vessel’, exclusion of maritime tract ‘focused the use of a i.e. Cir.1990), Rodrigue Co., sanguine 1. The Drilling was rather in its Glendel 898 F.2d 1083 — rarely U.S. -, belief that factors one and conflict, i.e., denied, 171, two would rt. 112 S.Ct. ce 116 L.Ed.2d 134 rarely that maritime law would (1991). apply to controversies on a situs covered 359-62, OCSLA. 395 U.S. at 89 S.Ct. at 1839-41. conflicting panel opinions In the event of past years ten of caselaw in this circuit court, controls, from this the earlier one as one illustrate that maritime contracts often are car may panel of this court not overrule another. See, ried out on the outer continental shelf. (In Heitkamp Dyke Dyke), re 943 F.2d e.g., Co., Laredo Constr. Hunt Oil 754 Offshore (5th Cir.1985); F.2d 1223 v. Atlantic Rich Lefler Co., (5th Cir.1986); 785 F.2d 1341 Lewis v. field temporarily in a “device drilling barge identified an exhibit thus attached contract, long inescapably very leads to same under the OCSLA. A seabed” cases, reach the beginning in this case.” We conclusion series of with Offshore judice. Robison, (5th Cir.1959), in case sub same result 266 F.2d Co. v. are has held that boats vessels. determining whether a contract In if the are Even underwriters correct Sons, maritime, court Davis & to apply is intended to attached Corp., 919 F.2d Inc. Oil v. Gulf boats, are our circuit bound (5th Cir.1990), outlined test: precedent. characterizing six factors consider (1) does the the contract: what j) Relationship toWork Vessel at the time of the work order effect Mission (2) provide? what work did the injury issue, The service at the workover of order assigned under work ac- crew well, very of the Penrod mission (3) assigned tually do? crew jackup. navigable wa- work a vessel aboard (4) to what extent did work ters[?] 5) Principal Injured Em- Work to the mission of that being done relate ployee (5) principal what was the work

vessel? *5 (6) injured of and what the worker? employee’s principal The work towas injured actually work the worker was perform from workovers the vessel. injury? the doing at time designates Our caselaw it as maritime. See, Corbitt, Drilling e.g., v. Ocean & 654 F.2d at 332. Domingue See also 393, Co., Exploration 923 F.2d 395-96 — 6) Injured Employee at Time Work Cir.1991), denied, U.S. -, 112 cert. of Accident 874, (1992) (also 116 L.Ed.2d 779 S.Ct. of adopting analysis). Application of injured standing plaintiff The while these to the instant case unen factors platform, one on a fixed but this factor simply lightening, as each factor turns on does not alter our characterization of the of question opera whether workover contract as maritime. Nevertheless, tions are maritime. we analysis our of briefly summarize each III. factor. Although have to been able resolve 1) Provisions Order Work by relying upon explicit at case hand of argu- precedent, we note that our caselaw original was for ser- The explained As ably conflicts with OCSLA. vices, agreement was for that, Congress after Rodrigue, intended wells, operations primarily workover gas the oil of, passage of from, use vessel fur- and with the governed exploration industries would be pursuant the contractor to the nished recog- state law. Several of our cases agreement. upon contract “focused vessel,” Theriot, appli- limit Congress’s 783 at nize intention to the use of a F.2d 539, thus, case, gas in this is maritime. of maritime law in oil and indus- cation Matte, 630; try F.2d at cases. See 2) Assigned Actual Work Surveyors, v. Thurmond Delta Well 952, (5th Cir.1988); F.2d Union that at the time of the parties agree Both Petroleum, 895 F.2d 1048-49. accident, plaintiff’s assigned Texas crew was Supreme has our “ex- criticized activities. workover employment in pansive” view of 3) on Assigned a Vessel Work 414, 422- Welding Gray, 470 U.S. Herb’s 1421, 1426-27, 84 L.Ed.2d 406 105 S.Ct. assigned work on the The crew was court, however, (1985). Only our en banc jackup, is a The un- Penrod which vessel. expansive our whether view can consider argue was not a derwriters similarly nar- accident; should be maritime contracts vessel at the time of the since the platform, it was jackup was attached rowed.

After Welding, Appellate Herb’s our cases that 35), Procedure and Local Rule suggestion propound Rehearing the maritime nature of offshore En Banc is DENIED. drilling-related contracts have limited

to their facts. See Union Texas Petrole-

um, 1049; Lewis, 895 F.2d at case, panel

1086. In each new of this through

court must comb a bewildering array rely upon of cases that inconsistent America, UNITED STATES of reasoning hope finding an identi- Plaintiff-Appellee, cal fact situation.3 Absent en banc recon- ciliation, cases thus are decided on what TURNER, Clifford Pollard seems to a random be factual basis. See Defendant-Appellant. Lewis, (“[B]ecause 898 F.2d at 1084 of an apparently contradictory line of cases No. 91-1745. policy our circuit and the uncertain under- United States Appeals, Court of pinning result, appellant our would Fifth Circuit. justly “why?”.) ask April

IV.

Although the accident occurred an situs, maritime law of its employee

own force. The acting in the

scope employment pursuant of his to a

maritime contract. summary judg-

ment in favor of Chevron therefore is AF-

FIRMED.

ON PETITION FOR REHEARING AND

SUGGESTION FOR REHEARING

EN BANC

May

PER CURIAM: make the modifications to panel opinion, neither of which affects

the result: incorporat- Note: Modifications

[Editor’s publication.]

ed for bound volume

Treating suggestion rehearing for en petition panel

banc as rehearing, for it is petition panel

ordered that the rehear-

ing panel is DENIED. No member of the Judge regular

nor active service of this having requested that the Court be (Federal

polled rehearing en banc Rules Petroleum, following summary 3. The of caselaw demon- 895 F.2d at 1050. A contract for approach strates the lack of a consistent dealing providing drilling platforms wireline services to drilling with these cases. A 398; contract Domingue, is non-maritime. Lewis, 1086; maritime. F.2d at Theriot v. Thurmond, 836 F.2d at 955. A contract for Bay Drilling Corp., 783 F.2d 527 using non-jackup maintenance of oil wells drilling plat- A contract for the construction of Davis, barge is maritime. 919 F.2d at 317. A Offshore, forms is non-maritime. Laredo F.2d is maritime. and workover A at 1232. contract for the construction of Corbitt, F.2d at 332. gathering lines is non-maritime. Union Texas