IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 91-3103
_______________
BRUCE SMITH,
Husband of/and TERESA SMITH,
Plaintiffs,
VERSUS
PENROD DRILLING CORP., et al.,
Defendants.
* * * * * * * * * *
CHEVRON U.S.A., INC.,
Third-Party
Plaintiff-Appellee,
VERSUS
CERTAIN UNDERWRITERS AT LLOYD'S LONDON
and Various Insurers,
Third-Party
Defendants-Appellants.
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________
April 30, 1992
Before POLITZ, Chief Judge, SMITH, Circuit Judge, and FITZWATER,*
District Judge.
JERRY E. SMITH, Circuit Judge:
*
District Judge of the Northern District of Texas, sitting by designa-
tion.
I.
The original claim, which has been settled, was a Jones Act,
general maritime law, and Louisiana tort law action brought by a
Penrod Drilling Corporation (Penrod) employee and his wife to
recover damages for injuries sustained in the course of work on a
Chevron U.S.A., Inc. (Chevron), platform situated on the outer
continental shelf. Penrod and appellee Chevron were named as
defendants. Chevron filed a third-party complaint against
Appellant, Underwriters at Lloyd's, London (the underwriters), to
recover pursuant to liability insurance policies issued by the
underwriters to Penrod. The underwriters filed a cross-motion for
summary judgment on the theory that the Louisiana Oilfield
Indemnity Act of 1981, La. Rev. Stat. 9:2780 (LOIA), applies and
that under LOIA, any insurance to Penrod purportedly extending
coverage to Chevron was void.
The primary issue in this case is whether maritime law applies
or whether, instead, Louisiana law applies as surrogate federal law
under the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C.
§§ 1331-1356. Penrod and Chevron contracted, in a letter agree-
ment, for Penrod to "workover" a well on a Chevron platform
situated on the outer continental shelf. The letter agreement
incorporates by reference all of the provisions of a drilling
contract between Chevron and Penrod.
The drilling contract contains reciprocal indemnity provisions
requiring each party to indemnify the other for personal injury
claims brought by their respective employees. Penrod was obligated
2
to obtain and maintain insurance and name Chevron as an additional
assured. Pursuant to this obligation, Penrod obtained insurance
from the underwriters.
The drilling contract, incorporated by reference in the letter
agreement, provides that Penrod will furnish and use a specific
jackup drilling vessel to be used in performing its service
obligations. At the time of the accident, the deck of this jackup
barge was positioned over Chevron's fixed platform. The plaintiff
was trying to reach a safety valve assembly (a "blowout preventer
hoist block") attached to the jackup barge. Instead of using the
ladder attached to the jackup, he stood on top of horizontal
fencing on the platform. The fencing pulled apart, and the
plaintiff fell.
The district court found that the contract was maritime,
granted summary judgment in favor of Chevron, and ordered that the
underwriters defend and indemnify Chevron in accordance with the
indemnity and insurance provisions contained in a workover contract
between Chevron and Penrod. The district court entered a final
judgment, pursuant to Fed. R. Civ. P. 54(b), which the underwriters
appeal.
II.
The underwriters contend that Louisiana law applies to this
accident through OCSLA; Chevron argues that maritime law controls.
OCSLA provides, in relevant part, as follows:
To the extent that they are applicable and not inconsis-
tent with this Act or with other Federal laws and
3
regulations of the Secretary now in effect or hereafter
adopted, the civil and criminal laws of each adjacent
State now in effect or hereafter adopted, amended, or
repealed are hereby declared to be the law of the United
States for that portion of the subsoil and seabed of the
outer Continental Shelf, and artificial islands and fixed
structures erected thereon, which would be within the
area of the State if its boundaries were extended seaward
to the outer margin of the outer Continental
Shelf . . . .
43 U.S.C. § 1333(a)(2)(A). Subsection (a)(1) explicitly places
"artificial islands, and all installations and other devices
permanently or temporarily attached to the seabed" under OCSLA's
coverage. 43 U.S.C. § 1333(a)(1).
In deciding whether a case is governed by OCSLA, this court
has articulated the following test:
[F]or adjacent state law to apply as surrogate federal
law under OCSLA, three conditions are significant.
(1) The controversy must arise on a situs covered by
OCSLA (i.e. the subsoil, seabed, or artificial structures
permanently or temporarily attached thereto).
(2) Federal maritime law must not apply of its own force.
(3) The state law must not be inconsistent with Federal
law.
Union Texas Petroleum Corp. v. PLT Eng'g, 895 F.2d 1043, 1047 (5th
Cir.), cert. denied, 111 S. Ct. 136 (1990); see also Rodrigue v.
Aetna Cas. & Surety Co., 395 U.S. 352, 355-66 (1969).1 The parties
agree that the pertinent Louisiana law is not inconsistent with
federal law. See also Matte v. Zapata Offshore Co., 784 F.2d 628,
1
The Rodrigue Court was rather sanguine in its belief that factors one
and two would rarely conflict, i.e., that maritime law would rarely apply to
controversies on a situs covered by OCSLA. 395 U.S. at 359-62. The past ten
years of caselaw in this circuit illustrate that maritime contracts often are
carried out on the outer continental shelf. See, e.g., Laredo Offshore
Constr. v. Hunt Oil Co., 754 F.2d 1223 (5th Cir. 1985); Lefler v. Atlantic
Richfield Co., 785 F.2d 1341 (5th Cir. 1986); Lewis v. Glendel Drilling Co.,
898 F.2d 1083 (5th Cir. 1990), cert. denied, 112 S. Ct. 171 (1991).
4
630 (5th Cir.), cert. denied, 479 U.S. 872 (1986). We therefore
analyze only the issues of situs and applicability of maritime law.
When an event occurs on an OCSLA situs but also is governed by
maritime law, maritime law controls. Laredo Offshore, 754 F.2d at
1229. But see Matte, 784 F.2d at 630 (state law applies on fixed
platforms to the exclusion of maritime law). We apply the earlier2
Laredo Offshore rule in this case and hold that maritime law
applies.
A.
This accident took place on an OCSLA situs. The injury
occurred when the plaintiff, who was standing on some horizontal
fencing on the platform, reached for some equipment fastened to the
jackup barge; the fencing collapsed, and the plaintiff fell.
Drilling platforms constitute "artificial islands" under section
1333(a)(1). Rodrigue, 395 U.S. at 363. Thus, the accident took
place on an OCSLA situs.
Chevron notes that the contract provided that work would be
done from the jackup boat. Therefore, Chevron concludes that we
should find that the accident occurred on the jackup boat, not on
the platform. We find no support for this assertion.
2
In the event of conflicting panel opinions from this court, the
earlier one controls, as one panel of this court may not overrule another.
Heitkamp v. Dyke (In re Dyke), 943 F.2d 1435, 1442-43 (5th Cir. 1991).
5
B.
Deciding whether the contract at issue is a maritime contract
fortunately does not require us to traverse the now-familiar maze
of cases interpreting similar contracts. In Corbitt v. Diamond M.
Drilling Co., 654 F.2d 329, 332 (5th Cir. Unit A Aug. 1981), the
court held that a contract for drilling and workover services was
a maritime contract. See also Transcontinental Gas Pipe Line Corp.
v. Mobile Drilling Barge "Mr. Charlie," 424 F.2d 684, 691 (5th
Cir.), cert. denied, 400 U.S. 832 (1970) (drilling and workover
contract obviously maritime). The contract at issue here is a
contract for drilling and, later, workovers.
In determining whether a contract is maritime, this court in
Davis & Sons, Inc. v. Gulf Oil Corp., 919 F.2d 313, 316 (5th Cir.
1990), outlined the following test:
We consider six factors in characterizing the contract:
(1) what does the specific work order in effect at the
time of the injury provide? (2) what work did the crew
assigned under the work order actually do? (3) was the
crew assigned to work aboard a vessel in navigable
waters[?] (4) to what extent did the work being done
relate to the mission of that vessel? (5) what was the
principal work of the injured worker? and (6) what work
was the injured worker actually doing at the time of the
injury?
See also Domingue v. Ocean Drilling & Exploration Co., 923 F.2d
393, 395-96 (5th Cir. 1991) (also adopting this analysis), cert.
denied, 112 S. Ct. 874 (1992). Application of these factors to the
instant case is unenlightening, as each factor simply turns on the
question of whether workover operations are maritime.
Nevertheless, we briefly summarize our analysis of each factor.
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1) Provisions of Work Order
The original contract was for drilling services, and the
specific agreement was for workover operations of wells on a fixed
platform. The workover contract should be read with the original
drilling contract. See Davis, 919 F.2d at 315. Since a drilling
and workover contract is maritime, this contract is maritime.
2) Actual Work Assigned
Both parties agree that at the time of the accident, the
plaintiff's crew was assigned to workover activities.
3) Assigned to Work on a Vessel
The crew was assigned to work on the Penrod jackup, which is
a vessel. The underwriters argue that the jackup was not a vessel
at the time of the accident; since the jackup was attached to the
platform, it was thus a "device temporarily attached to the seabed"
under the OCSLA. A very long series of cases, beginning with
Offshore Co. v. Robison, 266 F.2d 769 (5th Cir. 1959), has held
that jackup boats are vessels. Even if the underwriters are
correct that OCSLA is intended to apply to attached jackup boats,
we are bound by our circuit precedent.
4) Relationship of the Work to Vessel Mission
The service at issue, the workover of a well, was the very
mission of the Penrod jackup.
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5) Principal Work of the Injured Employee
The employee's principal work was to perform workovers from
the jackup vessel. Our caselaw designates it as maritime. See,
e.g., Corbitt, 654 F.2d at 332.
6) Work of the Injured Employee at Time of Accident
The plaintiff was injured while standing on a fixed platform,
but this one factor does not alter our characterization of the
contract as maritime.
III.
Although we have been able to resolve the case at hand by
relying upon explicit precedent, we note that our caselaw arguably
conflicts with OCSLA. As explained in Rodrigue, Congress intended
that, after the passage of OCSLA, the oil and gas exploration
industries would be governed by state law. Several of our cases
recognize Congress's intention to limit the application of maritime
law in oil and gas industry cases. See Matte, 784 F.2d at 630;
Thurmond, 836 F.2d at 954-55; Union Texas Petroleum, 895 F.2d at
1048-49. The Supreme Court has criticized our "expansive" view of
maritime employment in Herb's Welding v. Gray, 470 U.S. 414, 422-23
(1985). Only our en banc court, however, can consider whether our
expansive view of maritime contracts similarly should be narrowed.
After Herb's Welding, our cases that propound the maritime
nature of offshore drilling-related contracts have been limited to
their facts. See Union Texas Petroleum, 895 F.2d at 1049; Lewis,
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898 F.2d at 1086. In each new case, a panel of this court must
comb through a bewildering array of cases that rely upon
inconsistent reasoning in the hope of finding an identical fact
situation.3 Absent en banc reconciliation, cases thus are decided
on what seems to be a random factual basis. See Lewis, 898 F.2d at
1084 ("[B]ecause of an apparently contradictory line of cases in
our circuit and the uncertain policy underpinning our result, the
appellant would justly ask "why?".)
IV.
Although the accident occurred on an OCSLA situs, maritime law
applies of its own force. The employee was acting in the scope of
his employment pursuant to a maritime contract. The summary
judgment in favor of Chevron therefore is AFFIRMED.
3
The following summary of caselaw demonstrates the lack of a
consistent approach for dealing with these cases. A drilling contract is
maritime. Lewis, 898 F.2d at 1086; Theriot v. Bay Drilling Corp., 783 F.2d
527 (5th Cir. 1986). A contract for the construction of drilling platforms is
non-maritime. Laredo Offshore, 754 F.2d at 1232. A contract for the
construction of gathering lines is non-maritime. Union Texas Petroleum, 895
F.2d at 1050. A contract for providing wireline services to drilling
platforms is non-maritime. Domingue, 923 F.2d at 398; Thurmond, 836 F.2d at
955. A contract for maintenance of oil wells using a non-jackup barge is
maritime. Davis, 919 F.2d at 317. A drilling and workover contract is
maritime. Corbitt, 654 F.2d at 332.
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