United States Court of Appeals,
Fifth Circuit
No. 97-30081
Summary Calendar.
Geraldine COULTER, wife of/and James Coulter, Plaintiffs-
Appellants,
v.
TEXACO, INC., Texaco Exploration and Production, Inc., and Rogers
Louviere, Defendants-Appellees.
July 29, 1997.
Appeal from the United States District Court for the Eastern
District of Louisiana.
Before HIGGINBOTHAM, WIENER and BENAVIDES, Circuit Judges.
WIENER, Circuit Judge:
Plaintiffs-Appellants Geraldine and James Coulter appeal from
the district court's grant of summary judgment, dismissing their
action against Defendants-Appellees Texaco, Inc., Texaco
Exploration and Production, Inc., and Texaco employee Rogers
Louviere (collectively "Texaco"). Concluding that the district
court properly held that Texaco could not be liable under Louisiana
Civil Code Articles 2315, 2317 or 2322 for the injuries sustained
by Mr. Coulter while he worked for an independent drilling
contractor on a drilling rig located on an offshore drilling
platform owned by Texaco, we affirm the district court's summary
judgment.
I
FACTS AND PROCEEDINGS
In June 1991, Texaco entered into a contract with James
1
Coulter's employer, Dual Drilling Company (Dual), in which Dual
agreed to provide a drilling rig ("Dual 25") and a crew to perform
drilling operations on a fixed platform owned by Texaco at West
Delta, Block 109, in the Gulf of Mexico ("Texaco's platform"). The
contract provided that Dual, as an independent contractor, would
control, direct and maintain responsibility for the performance of
the details of its work, including the rigging up and rigging down
of Dual 25 on Texaco's platform and any loading and unloading
operations as well. The only right reserved by Texaco was to
observe and inspect ("monitor") Dual's work to ensure its
satisfactory completion. Defendant Rogers Louviere works for
Texaco as a drilling supervisor and, during the time Coulter worked
for Dual, was assigned to Dual 25 to monitor Dual's drilling
operations. At the time of Coulter's accident, however, Louviere
was on vacation and Keith Doucet was serving in his place as
Texaco's "company man" monitoring Dual's operations.
In September 1995 Dual 25 was skidded on top of and welded to
Texaco's platform. Drilling operations commenced shortly
thereafter and were scheduled to be completed in late 1996. Prior
to being placed on this platform, Dual 25 had drilled from five
other fixed offshore platforms owned by various entities since it
was first put into service in 1980.
At the time Dual 25 was positioned on Texaco's platform it was
equipped with two cranes. To provide more room for loading and
unloading, one of the cranes was removed, and a crane belonging to
Texaco, which was already present on this platform, was reassigned
2
to Dual 25 as part of its equipment and repositioned on this rig.
Prior to the removal of the second Dual crane from the drilling
unit, however, that crane's pedestal had served as two of the six
posts for the unit's drill collar pipe rack. Thus, although the
pipe rack was supposed to be supported by six posts, only four
posts remained after the removal of Dual 25's second crane.
Coulter, a member of Dual's roustabout crew, was injured
several months after the repositioning of the crane in question
while unloading equipment onto Dual 25 from a supply vessel. Near
the end of the crew's 12 hour shift on December 22, 1995, the Dual
crew's crane operator moved a Schlumberger Anadrill tool ("MWD
tool") from the drill floor to the drill collar pipe rack. Coulter
and another roustabout stepped on top of the drill collars to
disconnect the crane slings from the MWD tool. After the slings
had been removed, Coulter prepared to step off the drill collar
pipe rack. At this point, however, one of the boards separating
the rows of drill collars broke, allowing a drill collar pipe to
roll and injure Coulter's leg. But for the removal of the second
crane and Dual's failure to replace the missing two posts or
otherwise stabilize the pipe rack, the drill collar pipes would
have been safely and securely contained and Coulter would not have
been injured.
The Coulters sued Texaco in Louisiana state court, seeking
damages for the personal injuries Mr. Coulter suffered while
employed on Dual 25 when it was positioned on Texaco's platform.
They asserted negligence claims under Louisiana Civil Code Article
3
2315 and strict liability claims under Civil Code Articles 2317 and
2322. Texaco removed the action to federal court, filed a third
party complaint against Dual for contractual indemnity, and
ultimately moved for summary judgment against the Coulters. The
district court granted Texaco's motion for summary judgment,
holding that Texaco could not be held liable for James Coulter's
injuries under any of the Coulters' theories, and therefore
dismissed the Coulters' claims against Texaco with prejudice. The
Coulters timely filed their notice of appeal.
II
DISCUSSION
A. Standard of Review and Applicability of Louisiana Law
As is well known, we review the grant of a motion for summary
judgment de novo and apply the same legal standards as does the
district court.1 Texaco's platform is located on the outer
Continental Shelf off the Louisiana coast. The Outer Continental
Shelf Lands Act (OCSLA) mandates that when disputes arise involving
fixed structures erected on the outer Continental Shelf, applicable
laws of the adjacent state will be applied to the extent not
inconsistent with other federal laws and regulations.2
Indisputably, then, the personal injury law of Louisiana applies to
1
See Songbyrd, Inc. v. Bearsville Records, Inc., 104 F.3d 773,
776 (5th Cir.1997); Williams v. Time Warner Operation, Inc., 98
F.3d 179, 181 (5th Cir.1996); Duhon v. Mobil Oil Corp., 12 F.3d
55, 57 (5th Cir.1994).
2
See 43 U.S.C. § 1333(a)(2)(A); Rodrigue v. Aetna Cas. and
Sur. Co., 395 U.S. 352, 355, 89 S.Ct. 1835, 1837, 23 L.Ed.2d 360
(1969); Bartholomew v. CNG Producing Co., 832 F.2d 326, 328 (5th
Cir.1987).
4
this case, and the Coulters properly asserted their claims under
Louisiana's Civil Code.
B. Negligence Claims
The Coulters assert that Texaco is liable in negligence for
Mr. Coulter's injuries under Louisiana Civil Code Article 2315. As
all of the parties and the district court recognize, however, a
principal, such as Texaco, cannot be liable for injuries resulting
from the negligent acts of an independent contractor, such as Dual,
unless (1) the liability arises from ultrahazardous activities
performed by the contractor on behalf of the principal or (2) the
principal retains operational control over the contractor's acts or
expressly or impliedly authorizes those acts.3 In this case,
Dual's actions clearly did not fall in the limited ultrahazardous
category; therefore, the only issue relevant to the Coulters'
negligence claims is whether Texaco retained control over or
authorized any of Dual's activities that resulted in Coulter's
injuries.
Testing for this operational control exception first requires
an examination of whether and to what extent the right to control
work has been contractually reserved by the principal.4 Here, as
is typically the case in contractual arrangements between platform
3
Graham v. Amoco Oil Co., 21 F.3d 643, 645 (5th Cir.),
rehearing denied, 28 F.3d 452 (5th Cir.1994); Bartholomew, 832
F.2d at 329; Ainsworth v. Shell Offshore, Inc., 829 F.2d 548, 549-
551 (5th Cir.1987), cert. denied, 485 U.S. 1034, 108 S.Ct. 1593, 99
L.Ed.2d 908 (1988).
4
See e.g., Graham, 21 F.3d at 646; Ainsworth, 829 F.2d at
550.
5
owners and independent drilling contractors, the Texaco-Dual
contract broadly provides that Dual "shall control and direct the
performance of the details of the work" and further specifies that
Dual "shall be solely responsible for the various moves of its
Drilling Unit, for mooring or unloading operations, if required,
and for rigging up and rigging down operations (emphasis added)."
Moreover, the fact that a principal like Texaco reserves the right
to monitor its contractor's performance and stations a "company
man" on the platform who observes the contractor's activities, has
the right to make safety recommendations to the contractor, and is
obligated to report continuing unsafe work practices or conditions
to his (Texaco) superiors, does not mean that the principal
controls the methods or details of the contractor's work.5 In
short, absent an express or implied order to the contractor to
engage in an unsafe work practice leading to an injury, a principal
like Texaco cannot be liable under the operational control
exception.6
It is uncontested that (1) Coulter was injured during the
unloading of a supply vessel, and (2) the pedestal of Dual's second
crane, which had previously served as posts for the drill collar
pipe rack, was removed during rigging up operations. As the
5
See Graham, 21 F.3d at 646 (presence of company man who
observed unsafe working conditions created by unloading of excess
amounts of casing and who did not stop operation did not amount to
operational control or implicit authorization of those unsafe
conditions that led to injury); Ainsworth, 829 F.2d at 550.
6
Cf. Bartholomew, 832 F.2d at 329 (company man's express order
not to wash down rig floor could amount to express authorization of
unsafe practice that caused accident).
6
contract expressly vests Dual with sole responsibility for both of
these operations, Texaco cannot be liable for any injuries
resulting therefrom absent some other unusual circumstance.
The Coulters argue that just such an unusual circumstances was
present here because Texaco engineers initially gave their consent
to reposition the second Dual crane and replace it with the Texaco
crane. The Coulters thus contend that this approval at least
amounts to an implicit authorization of the configuration of the
drill collar pipe rack with four rather than six posts. In and of
itself, however, the consent of these Texaco engineers to the Dual-
Texaco crane swap is insignificant because the Coulters have not
pointed to any summary judgment evidence indicating that (1) Texaco
knew, at the time the second Dual crane was removed, that the
crane's pedestal was serving as two of the six posts for Dual 25's
drill collar pipe rack, or (2) Dual was prevented by Texaco from
making adjustments to the rack once the crane was moved and it
should have become clear to Dual that the rack was unstable.
Consequently, there is no evidence that Texaco itself either
explicitly or implicitly authorized the initial destabilization, or
continued unsafe use, of the drill collar pipe rack. We therefore
conclude that the district court properly dismissed the Coulters'
negligence claims against Texaco founded on Article 2315.
C. Strict Liability Claims: Article 2317 and Garde Liability
The Coulters assert that Texaco is liable for Mr. Coulter's
injuries under Louisiana Civil Code Articles 2317 and 2322, which
respectively impose a form of "no fault" liability on the custodian
7
of a defective object or the owner of a ruinous building if the
object or building poses an unreasonable risk of harm to others and
in fact causes injury.7
Disregarding as we must the changes wrought by recently
adopted Louisiana Civil Code Article 2317.1, we see that Article
2317, as it stood when Coulter was injured, provided:
We are responsible, not only for the damage occasioned by our
own act, but for that which is caused by the act of ... the
things which we have in our custody.8
7
The liability imposed upon the custodian of an object under
Article 2317 or the owner of a building under Article 2322, prior
to the 1996 amendments of the Civil Code's personal injury
articles, see infra notes 8 & 12, is "strict" (i.e., without fault)
in the sense that neither the custodian's or the owner's ignorance
of the defective or ruinous condition of the object or building nor
the lack of a reasonable opportunity to have detected it will
absolve them from liability; however, it is also not absolute
because the custodian or owner may escape liability if he proves
that the injury was caused by (1) the fault of the victim, (2) the
fault of a third person, or (3) an irresistible and unforeseeable
force. See Entrevia v. Hood, 427 So.2d 1146, 1148 (La.1983). In
Entrevia, the Louisiana Supreme Court also observed that to recover
in "strict liability" under either Article 2317 or 2322, "the
injured person must prove that the building or its appurtenances
[or the defective thing] posed an unreasonable risk of injury to
others, and that his damage occurred through this risk." Id.
(emphasis added). Thus, a trespasser who sustained injuries caused
by the collapse of steps leading from an unoccupied, fenced
farmhouse posted with "no trespassing" signs is not entitled to
recover in strict liability under either Article 2317 or 2322
because imperfections in the steps of such a building did not
constitute an unreasonable risk of harm to others. Id. at 1150.
8
La.Civ.Code Ann. art. 2317 (West 1979). In 1996, the
Louisiana legislature adopted Article 2317.1 which significantly
modified Article 2317's imposition of liability by providing that:
The owner or custodian of a thing is answerable for
damage occasioned by its ruin, vice, or defect, only upon
a showing that he knew or, in the exercise of reasonable
care, should have known of the ruin, vice, or defect
which caused the damage, that the damage could have been
prevented by the exercise of reasonable care, and that he
failed to exercise such reasonable care.
8
Thus, at the time Article 2317 imposed liability when (1) the thing
causing damage was in the custody (or "garde") of the defendant;
(2) the thing had a vice or defect creating an unreasonable risk of
harm; and (3) the vice or defect occasioned damage.9 The Coulters
contend that Texaco had custody or "garde" of the defective drill
collar pipe rack because either (1) the entire Dual drilling unit
was an appurtenance to or component part of Texaco's platform, or
(2) Texaco supervisors were present on Dual 25 at all times and
Texaco engineers participated in the installation of Dual 25 and
approved the removal of the Dual crane and the redeployment of the
Texaco crane in its stead. Neither contention has merit.
With respect to the first argument, as we will explain below
in Part II.C.2, Dual 25 cannot be characterized as an appurtenance
to or component part of Texaco's platform under applicable
Louisiana law. With regard to the second contention, Louisiana
courts have generally held that (1) ownership of a thing
establishes a rebuttable presumption of custody or "garde," and (2)
in a case of non-ownership, a defendant may be found to have
custody over property when he exercises direction and control of
the thing and derives some benefit from it.10 Thus, Dual's
La.Civ.Code Ann. art. 2317 (West Supp.1997). As the events
triggering the Coulters' lawsuit all took place prior to April
16, 1996, the effective date of new Article 2317.1, we apply
Article 2317 without considering the negligence elements added
by Article 2317.1.
9
Ainsworth, 829 F.2d at 551; Boutwell v. Chevron U.S.A.,
Inc., 864 F.2d 406, 409 (5th Cir.1989).
10
See Thumfart v. Lombard, 613 So.2d 286, 290 (La.Ct.App. 4th
Cir.), writ denied, 617 So.2d 1182 (La.1993); Doughty v. Insured
9
ownership of the rig, coupled with the Texaco-Dual contract, which
specifically states that Dual "shall continue to have custody of
and to be responsible for the Drilling Unit and maintaining of
same," establishes a strong presumption that Dual 25 was in the
legal custody of Dual, not Texaco. The total absence of evidence
that Texaco exercised actual control over the ongoing
implementation of any of the various parts of Dual 25—including the
allegedly defective drill collar pipe rack—makes this presumption
conclusive. Just as with the Coulters' negligence claims under
Article 2315, neither the mere presence of Texaco company men who
monitored Dual's performance of its contractual obligations nor the
limited involvement of Texaco engineers' in approving the exchange
of cranes comes anywhere close to creating the kind of supervision
and control necessary to establish Texaco's custody over the
drilling rig or the drill collar pipe rack for purposes of Article
2317.11 Consequently, the district court properly dismissed the
Coulters' claims asserted under Article 2317.
D. Article 2322 and Premises Liability
The last foundation of the Coulters' claims against Texaco is
Lloyds Ins. Co., 576 So.2d 461, 464 (La.1991); Ross v. La Coste de
Monterville, 502 So.2d 1026, 1032 (La.1987). This court has
similarly defined "custody," in the context of Article 2317, to
mean supervision and control. See Ainsworth, 829 F.2d at 551;
Boutwell, 864 F.2d at 409.
11
See Ainsworth, 829 F.2d at 551-52 (independent contractor's
complete ownership of drilling rig, its component parts, and tools
used in rigging up, combined with platform owner's
non-participation in rig up precluded "garde" liability for
accident caused by failure of drill rig owner to provide lighting
for work area during rig up).
10
Louisiana Civil Code Article 2322, which, at the time of Mr.
Coulter's injury, provided:
The owner of a building is answerable for the damage
occasioned by its ruin, when this is caused by neglect to
repair it, or when it is the result of a vice in its original
construction.12
Thus, Article 2322 imposed its particular variety of "no fault"
liability when an injured person establishes that (1) there is a
building; (2) the building is owned by the defendant; and (3)
there is a "ruin," caused by some vice in the building's
construction or by a neglect to repair it, which occasions the
injury.13 Here, no one disputes that (1) a fixed offshore drilling
platform is a building for purposes of Article 2322,14 and (2)
liability may be imposed under Article 2322 against a building's
owner when a defect or ruinous condition is located in "an
appurtenance" to, or integral part of, the building, as well in the
actual structure or materials of the building itself.15
As the Coulters have not alleged any defect or ruinous
12
La.Civ.Code Ann. art. 2322 (West 1979). Just as with Article
2317, in 1996 the Louisiana legislature adopted revised Article
2322, which limited the imposition of damages upon an owner of a
building to instances when there is "a showing that he knew, or in
the exercise of reasonable care, should have known of the vice or
defect which caused the damage, that the damage could have been
prevented by the exercise of reasonable care, and that he failed to
exercise such reasonable care." La.Civ.Code Ann. art. 2322 (West
Supp.1997). As the events underlying this action all preceded
April 16, 1996, the effective date of the revised article, we apply
the former, unmodified version of Article 2322.
13
Olsen v. Shell Oil Co., 365 So.2d 1285, 1289 (La.1978).
14
Id. at 1289-90.
15
See Entrevia, 427 So.2d at 1148.
11
condition in the structure or material of Texaco's platform qua
platform, their strict liability claim under Article 2322 rises or
falls on their ability to prove that at the time of the injury Dual
25 had become an appurtenance to, or integral part of, Texaco's
platform by virtue of that rig's physical attachment to that
structure. Applying Louisiana Civil Code Article 466's requirement
that a component part of a building be "permanently attached," the
district court held that the Coulters could not establish that Dual
25 was an appurtenance to, or integral part of, the Texaco platform
and thus dismissed their claim under Article 2322.
Recognizing that the district court's resolution of this final
issue has potentially broad applications on the outer Continental
Shelf,16 we now review the jurisprudential and statutory
developments pertinent to the issue to demonstrate (1) how
Louisiana Civil Code Article 466 has indeed come to provide the
appropriate and sole criterion for determining whether an addition
has become an integral part of a building for purposes of imposing
liability on the building's owner under Article 2322, and (2) how
Article 466 is properly applied in this context.
1. Article 466 as Sole Criterion for Determining Whether an
Addition is Part of a Building
Our review begins with Olsen v. Shell Oil Co.17 a case in
which the owner of a drilling platform was sued under Article 2322
16
See Walker v. Tenneco Oil Co., 615 F.2d 1121, 1124 (5th
Cir.1980) (pretermitting a definitive holding on this same
"appurtenance" issue because of its "widespread ramifications").
17
365 So.2d 1285.
12
for injuries and deaths resulting from the explosion of a water
heater that was part of a modular drilling rig which had been
located on a fixed drilling platform. After we certified several
questions to the Louisiana Supreme Court, that court resolved,
inter alia, that the modular drilling rig and its accompanying
modular living unit did constitute appurtenances of the drilling
platform for purposes of assessing liability against the owner of
the platform under Article 2322, despite the separate ownership of
the drilling rig and the platform.18 In the years immediately
following Olsen, we reached contradictory results in two cases that
required a determination whether particular pieces of equipment
attached to a drilling platform were appurtenances of the platform
for purposes of assessing liability under Article 2322. In one
case, we held that a fire hose directly attached to a platform was
an appurtenance;19 yet in another, we expressed doubt that a
portable and easily detached "snubbing unit" (a hydraulic jacking
mechanism designed to allow lengths of pipe to be forced into and
pulled out of a pressurized well) could be considered appurtenant
to a platform.20 Over time our "appurtenance" jurisprudence
stabilized, however, and in several cases we applied a two part
test to determine whether various kinds of equipment or additions
could be characterized as appurtenances of a drilling platform. In
18
Id. at 1289-1292.
19
Champagne v. Chevron U.S.A., Inc., 605 F.2d 934, 936 (5th
Cir.1979).
20
Walker v. Tenneco Oil, Co., 615 F.2d at 1124.
13
particular, we considered (1) how securely the equipment or
addition was attached to the platform and (2) the degree of
permanence the parties intended for the object.21 In one of these
decisions, we also recognized that the definition of permanent
attachment used to identify component parts of a corporeal
immovable in Louisiana Civil Code Article 466 should also be
considered in determining whether an attachment was an appurtenance
under Article 2322.22
Building on these decisions but also paying close attention to
the 1978 revisions of the Louisiana Civil Code articles on
immovables, several decisions from the United States District Court
for the Eastern District of Louisiana took the "part of a building"
inquiry posed by strict liability claims under Article 2322 one
step further. In two opinions, the late Judge George Arcenaux, Jr.
persuasively reasoned that both Olsen and our subsequent
"jurisprudentially-developed concept of "appurtenance' " are
obsolete because the 1978 revisions of the Civil Code (1) erased
Louisiana's antiquated categories of immovables by nature,
immovables by destination, and immovables by object,23 replacing
them with the single category of corporeal immovables, and (2)
21
See Steele v. Helmerich & Payne Intern. Drilling Co., 738
F.2d 703, 705 (5th Cir.1984) (stabbing board not an appurtenance of
drilling rig); Knapp v. Chevron USA, Inc., 781 F.2d 1123, 1127
(5th Cir.1986) (safety net not an appurtenance of platform);
Harrison v. Exxon Corp., 824 F.2d 444, 447 (5th Cir.1987) (blowout
preventer was not an appurtenance of platform).
22
Steele, 738 F.2d at 706.
23
See La.Civ.Code art. 463 (1870) (West 1972 Compiled Ed.).
14
clearly defined what would constitute a component part of a
corporeal immovable such as a building in terms of permanent
attachment.24 Consequently, concluded Judge Arcenaux, Article 466's
definition of component parts of a building should now provide the
sole criterion for determining whether an addition can be
considered a part of a building for purposes of assessing liability
against the owner under Article 2322.25 Recently Judge Vance of the
Eastern District reiterated this view in another case that involved
a negligence action against a drilling platform owner and turned on
the plaintiff's ability to demonstrate that a drilling rig was part
of the platform on which it was positioned.26 Not coincidentally,
in Sistrunk, Boggs, and Dupre, the district court found that
neither individual parts of a drilling rig nor the entire drilling
rig itself could be considered a component part of a platform.27
Having reviewed this gradually developing jurisprudential gloss on
the unavoidable property law question posed by claims asserted
under Article 2322, yet agreeing with the carefully reasoned
opinions of our colleagues of the Eastern District of Louisiana
24
Sistrunk v. Conoco, Inc., 693 F.Supp. 498, 501 (E.D.La.1988);
Boggs v. Atlantic Richfield Co., 720 F.Supp. 72, 73-74
(E.D.La.1989).
25
Id.
26
Dupre v. Chevron U.S.A., Inc., 913 F.Supp. 473, 477
(E.D.La.1996), aff'd on other grounds, 109 F.3d 230 (5th Cir.1997).
27
See Sistrunk, 693 F.Supp. at 501 (monkey board not an
appurtenance of platform for purposes of Article 2322 liability);
Boggs, 720 F.Supp. at 75 (drilling rig itself not a part of
platform); Dupre, 913 F.Supp. at 477-78 (drilling rig not a part
of platform).
15
which recognized the primacy of the Civil Code articles that are
specifically applicable to such a question, we hold that Louisiana
Civil Code Article 466 does provide the sole framework within which
to determine whether additions or equipment attached to a building
can be considered a part of that building for purposes of assessing
liability under Article 2322.
2. Application of Article 446
Stated in full, Article 466 provides:
Things permanently attached to a building or other
construction, such as plumbing, heating, cooling, electrical,
or other installations, are its component parts.
Things are considered permanently attached if they cannot be
removed without substantial damage to themselves or to the
immovable to which they are attached.28
Applying Article 466, the district court in the instant case held
that, even though Dual 25 was welded to the Texaco platform and had
remained that way for over a year, this rig was not a "component
part" of the Texaco platform because (1) the rig has drilled from
five different platforms over the past fifteen years and indeed was
scheduled to be moved off Texaco's platform later in 1996, and (2)
neither the rig itself nor the platform will sustain permanent
damage when the rig is eventually removed. In short, the district
court concluded that the instant rig, Dual 25, was designed to be
moved and was not intended to be a permanent attachment to Texaco's
platform. Notwithstanding the Coulters' contention that the
district court's application of Article 466 was both factually and
legally flawed, our review of the commentaries addressing Article
28
La.Civ.Code Ann. art. 466 (West 1980).
16
466 and the federal and Louisiana case law applying the article
satisfies us that the district court reached the correct result.
According to two current Louisiana property law scholars,
Article 466's two paragraphs recognize the existence of two
separate categories of component parts of buildings or other
constructions, the scope of which can each be defined in distinct
terms.29 Relying on the source provisions of the first paragraph
(former Article 467 (1870)) and the second paragraph (former
Article 469 (1870)), Professor Symeon Symeonides interprets present
Article 466 as "defining two categories of component parts: (1)
those that fit within the illustrative list of paragraph one
because they are attached to a building or other construction in a
perpetual, rather than a temporary, manner; and (2) those that fit
within paragraph two because they are permanently attached to a
building or other construction, and cannot be removed without
substantial damage to themselves or to the immovable."30 Professor
A.N. Yiannopoulos is of the same view, stating that "[f]acility of
removal is immaterial" with regard to the category defined by the
first paragraph and that "permanent attachment does not mean
attachment "for perpetuity or eternity' " with regard to the
category defined by the second paragraph.31
29
See A.N. Yiannopoulos, Property, § 142, at 313-14, in 2
Louisiana Civil Law Treatise (3d ed. 1991); Symeon Symeonides,
Property, Developments in the Law, 46 La.L.Rev. 655, 687-90 (1986).
30
Hyman v. Ross, 643 So.2d 256, 258 (La.Ct.App. 2nd Cir.1994)
(citing Symeonides, 46 La.L.Rev. at 687-90).
31
Yiannopoulos, § 142, at 313-314 (citations omitted).
17
Application of the "substantial damage" test found in the
article's second paragraph is a largely objective and fact bound
exercise that has posed few jurisprudential difficulties.32
Definition of the scope of Article 466's first category of
component parts, on the other hand, was considerably advanced by
our decision in Equibank v. United States, Internal Revenue
Service,33 in which we concluded that several expensive antique
chandeliers were component parts of a New Orleans mansion.
Although the chandeliers could be, and in fact were, removed
without substantial damage to themselves or the mansion, we
nevertheless found that they fit within Article 466's other less
stringently defined category of component parts because they could
be sub-categorized as "electrical installations." Crucially, we
distinguished installations like chandeliers from simple "plug-in"
items, such as table and floor lamps, toasters, and television
sets, noting that "in the eyes of society" the latter are not
electrical installations because they are neither fixed in place
nor require any special knowledge or expertise to be engaged or
disengaged from the building's power source.34 On the other hand,
we concluded that lighting fixtures, whether they be plain or
ornate, are among those features of a house that "the average,
ordinary, prudent person buying a home" expects to find "when he or
32
Id. at 314.
33
749 F.2d 1176 (5th Cir.1985).
34
Id. at 1179.
18
she arrives to take possession."35 Intermediate appellate courts
in Louisiana have applied our Equibank "ordinary societal
expectations" test in a number of cases, frequently considering as
particularly relevant factors (1) whether the object is connected
to interior wiring or a main power source of the primary structure,
and (2) whether special expertise or skill is required to install
or detach the object without causing damage.36
This brings us at last to the Coulters' contention that Dual
25 qualifies as a component part of Texaco's platform under either
paragraph of Article 466. First, argue the Coulters, the rig
should be considered permanently attached to the platform under the
"substantial damage" test of the second paragraph of Article 466
because both the rig and the platform were modified in connection
with the installation of the former on the latter and, upon
removal, both will require repair and renovation to return them to
their original conditions. In particular, the Coulters point to
the removal of Dual's second crane and the necessity for the
removal and relocation of handrails and other features of the
platform.
35
Id. at 1180.
36
See e.g., Hyman, 643 So.2d at 261 (heating and air
conditioning units installed in motel are component parts); In re
Chase Manhattan Leasing Corp., 626 So.2d 433, 434 (La.Ct.App. 4th
Cir.1993), writ denied, 630 So.2d 797 (La.1994) (scoreboard system
was a component part of the Louisiana Superdome); Lakeside
National Bank of Lake Charles v. Moreaux, 576 So.2d 1094, 1096
(La.Ct.App. 3rd Cir.1991) (septic tank systems and air conditioning
systems are component parts of house); American Bank & Trust Co.
v. Shel-Boze, Inc., 527 So.2d 1052, 1054-55 (La.Ct.App. 1st
Cir.1988), writ denied, 532 So.2d 155 (La.1988) (light fixtures and
carpeting are component parts of two residences).
19
Although the scope of these repairs and renovations to the
platform and Dual 25 may well be "substantial" on an absolute
basis, they are certainly negligible relative to these two
multi-million dollar structures. Moreover, the Coulters have
presented no evidence that the anticipated removal of Dual 25 will
cause it or Texaco's platform to sustain any enduring "damage" in
the sense that either will thereafter become functionally impaired
on a permanent basis. Indeed, the repairs and renovations that
both the rig and the platform will require upon the former's
removal cannot be considered, in the particular circumstances of
this case, anything but a form of ordinary and entirely expected
maintenance. Accordingly, we conclude that Dual 25 cannot qualify
as a component part of Texaco's platform under the second paragraph
of Article 466.
The Coulters also contend that Dual 25 should be considered a
component part of the platform under the first paragraph of Article
466 and our "ordinary societal expectations" test of Equibank. To
this end, the Coulters place special reliance on (1) Dual 25's
connection to the platform's primary electrical power source and
multiple other services, and (2) the special expertise that is
required for both installation and removal of the rig.
Notwithstanding these facts, we are convinced that in light of the
relevant "societal expectations"—those of the offshore oil and gas
drilling and production industry—Dual 25 cannot be considered
permanently attached to Texaco's platform.
Taking into consideration the Dual-Texaco contract itself, the
20
Dual rig's history of use on multiple platforms during its life
time, and the custom and practices of the offshore oil and gas
drilling and production industry as a whole, we conclude that, to
paraphrase the language of Equibank, the average, ordinary, and
prudent business entity that was buying or, alternatively, taking
a security interest in, an offshore drilling platform would not
expect, in the absence of specific contractual provisions to the
contrary, an extremely costly drilling rig, one of the heaviest and
most sophisticated pieces of industrial equipment in use currently,
to be (1) perpetually attached to the platform as a component part
when the buyer took possession or (2) a permanent part of that
platform when the lender obtained its security interest. To
conclude otherwise would fly in the face of economic reality and
long held contractual expectations of an entire industry. It
follows, therefore, that Dual 25 cannot be considered a component
part of the Texaco platform under the first paragraph of Article
466 either. Having concluded, as did the district court, that the
Dual rig on which Mr. Coulter sustained his injuries was not a part
of the platform owned by Texaco, we affirm the district court's
grant of summary judgment on the Coulters' strict liability claim
asserted under Louisiana Civil Code Article 2322.37
For the reasons set forth above, the district court's judgment
dismissing the Coulters' suit against Texaco is, in all respects,
37
Having found that the Coulters failed to establish liability
on this ground, we, like the district court, need not address
Texaco's alternative argument that the Dual rig in general, and the
drill collar pipe rack in particular, were not in a ruinous
condition on account of the missing posts.
21
AFFIRMED.
22