*1 403 in the 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 Circuit. 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 benefit 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 benefit 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, Lake 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 Robert 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 against 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 and 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 made 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 sonal 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 Rogers, 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 employees, 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, performed 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 abandon 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 prior 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 to 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’ we 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- precedent 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. 528 F.2d 572 interpretation reasonable would save the 1976). Cir. Schwarz-Jordan, contract. Inc. of Houston Phillips’ second defense against Co., v. Delisle Construction 569 S.W.2d 878 indemnity claim is that was relieved (Tex.1978). Thus, the effect of a condition parts those to claims “on account of applies will be confined to specifically re- which the condition damage (other tract to than property property dam- Knight Chicago Corp., 188 lates. S.W.2d for).” ages paragraph this 16 provided as in (1945); 144 Tex. 98 World Broadcast- provid- other any paragraph Had than Broadcasting ing System Eagle personal of losses due to ed allocation (Tex.Civ.App.1942). S.W.2d 463 exception personal identical injury, an expected. would be injury cases liability 16.6 deals with Paragraph Phillips’ delivery M for Phillips Diamond II. LIABILITY OF THE HOSE GROUP effect is to cre-

of defective materials. Its TO that mate- PHILLIPS. presumption 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 allocation 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. holding 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 employees 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 of 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,

guidelines 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, however, 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

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