United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit August 1, 2007
Charles R. Fulbruge III
Clerk
No. 06-30992
JASON SMITH,
Plaintiff,
VERSUS
SEACOR MARINE LLC; SEACOR OFFSHORE LLC,
Defendants-Third Party Plaintiffs-Appellants,
VERSUS
AMEC-GREYSTAR LLC,
Third Party Defendant-Appellee,
Appeal from the United States District Court
For the Eastern District of Louisiana
Before HIGGINBOTHAM, DAVIS and BARKSDALE, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
This is an appeal from the district court’s order dismissing
the third party complaint of Seacor Marine LLC seeking contractual
indemnity for sums it may owe to Jason Smith, who was injured in
an oilfield accident which occurred on the Outer Continental Shelf
off the coast of Louisiana. Because the contract under which the
appellant seeks indemnity is a non-maritime contract, Louisiana law
applies and the district court correctly held that the Louisiana
Oilfield Indemnity Act precludes appellant’s recovery. We
therefore AFFIRM.
I.
At the time the accident occurred giving rise to this
litigation, BP America Production Company (BP) was engaged in
drilling an oil well on the Outer Continental Shelf (OCS) off the
coast of Louisiana. BP engaged a number of contractors to assist
in this endeavor. It contracted with SEACOR Marine, LLC and SEACOR
Offshore, LLC (Seacor) for vessel transportation. BP entered into
a separate contract with AMEC-Greystar LLC (Greystar) to provide
labor services on its platform.
Jason Smith, an employee of Greystar, filed this admiralty
action alleging that he sustained personal injuries during a
personnel basket transfer from Seacor’s vessel to BP’s platform.
Smith received Longshore and Harbor Worker’s Compensation Act
(LHWCA) benefits from Greystar and also filed a damage action
against Seacor for alleged vessel negligence under 33 U.S.C. §
905(b). Smith did not sue BP or Greystar. Seacor then filed a
third party complaint against Greystar seeking indemnity for any
sums it might be required to pay Smith. The indemnity request is
based on Greystar’s contract with BP, in which Greystar agreed to
indemnify BP’s contractors (along with BP), for liability visited
on them as a result of injury to Greystar employees.
The indemnity provisions in both the BP/Seacor and the
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BP/Greystar contracts are identical.1 In its contract with BP,
Seacor agrees that it will indemnify BP and BP’s contractors for
any liability resulting from injuries to Seacor employees.
Similarly, Greystar, in its contract with BP, agrees that it will
indemnify BP and BP’s contractors for any liability resulting from
injuries to Greystar’s employees.
The district court accepted Greystar’s argument that the
BP/Greystar contract was a non-maritime contract, governed by
Louisiana law, and therefore the indemnity provisions were
unenforceable under the Louisiana Oilfield Indemnity Act, (LOIA).
The district court entered a Rule 54(b) judgment dismissing
Seacor’s complaint and Seacor lodged this appeal.
II.
1
Cross Indemnity Provision
In accordance with the provisions of this Article 14,
Contractor agrees to defend, indemnify, release, and hold
Company’s other contractors, with the exception of helicopter
transportation contractor(s), harmless (to the extent such
other contractors execute cross indemnification provisions
substantially similar to those contained in this Section
14.04) from and against all Claims, Losses, and Expenses,
including without limitation those occurring during ingress,
egress, loading or unloading, or during transportation to or
from the Asset, irrespective of insurance coverages for the
following:
14.04.01 (I) all injuries to, deaths, or illnesses of
persons in Contractor Group; and
(ii) all damages to or losses of
Contractor’s Equipment . . .
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Seacor agrees that Greystar’s contract with BP to furnish
labor services to work aboard BP’s platform on the Outer
Continental Shelf is a non-maritime contract governed by Louisiana
law. This contract creates Greystar’s indemnity obligation to
Seacor since the Greystar/BP contract requires Greystar to
indemnify Seacor as a BP contractor. Seacor also agrees that if
Smith had sued BP instead of Seacor and BP had sought indemnity
from Greystar under this same contract, the Louisiana Oilfield
Indemnity Act would preclude BP’s indemnity claim. Seacor argues
it is nevertheless entitled to enforce the indemnity provision in
the BP/Greystar contract because Smith’s suit against it under 33
U.S.C. § 905(b) triggers the application of § 905(c) and Louisiana
law does not apply.
Section 905(b) permits a person such as Smith covered under
the LHWCA to bring an action for damages against a vessel for
vessel negligence. Section 905(b) also provides that the employer
of such injured person “shall not be liable to the vessel for such
damages directly or indirectly and any agreements or warranties to
the contrary shall be void.”
Under limited circumstances, § 905(c) removes § 905(b)’s
declaration of the non-liability of the injured employee’s employer
to reimburse the shipowner for sums the shipowner is required to
pay the employee. It provides
Nothing contained in subsection (b) of this section shall
preclude the enforcement according to its terms of any
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reciprocal indemnity provision whereby the employer of a
person entitled to receive benefits under this Act by
virtue of section 4 of the Outer Continental Shelf Lands
Act (43 USC 1333) and the vessel agreed to defend and
indemnify the other for cost of defense and loss or
liability for damages arising out of or resulting from
death or bodily injury to their employees.
33 U.S.C.S. § 905(c). Thus, § 905(b) bars vessel owners from
obtaining indemnity from an LHWCA employer whether based on implied
warranty or express contract. Section 905(c) then partially
restores the vessel owner’s right to seek indemnity from the LHWCA
employer for injuries occurring on the OCS when the vessel’s claim
is based on reciprocal indemnity provisions in its contract with
the employer.
Our decision in Wagner v. McDermott, 79 F.3d 20 (5th Cir.
1996), controls the outcome in this appeal. In Wagner, McDermott
contracted with Capital to perform welding work in the construction
of a platform. McDermott also furnished a vessel for use in the
platform construction. Wagner, an employee of Capital, was injured
on McDermott’s vessel allegedly due to vessel negligence and sued
McDermott under § 905(b). McDermott’s contract with Capital
contained a reciprocal indemnity agreement where each agreed to
indemnify the other for injuries to their own employees and
McDermott sought indemnity from Capital based on that reciprocal
indemnity agreement. We concluded that because McDermott engaged
Capital to perform welding work on the platform, McDermott
contracted with Capital in its capacity as platform owner and not
as vessel owner.
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To trigger § 905(c), we held that the indemnity agreement must
be between “the employer . . . and the vessel.” We stated:
Here, McDermott entered into a contract for welders to
work on a fixed platform it was constructing. McDermott
was not acting in its capacity as vessel owner but only
as a contractor who incidentally utilized a vessel to
accomplish its work. The fact that McDermott happens to
own the vessel does not place the contract within §
905(c). McDermott argues that because Plaintiff asserted
a § 905(b) claim, § 905(c) must govern the contract
dispute. While § 905(b) liability is a requisite for §
905(c) applicability, the contract must be of the type
covered by § 905(c). It must be with a vessel. The
McDermott-Capital/Landry contract is not.
79 F.3d at 22, 23. Because the accident occurred off the coast of
Louisiana, we concluded that the indemnity provisions of the
McDermott/Capital contract were governed by state law and therefore
barred by the Louisiana Oilfield Indemnity Act.
Similarly, BP contracted with Greystar to provide labor
services on BP’s platform under a non-maritime contract governed by
Louisiana law. As we held in Wagner, an action against the vessel
owner under § 905(b) does not trigger the application of § 905(c).
Rather, the non-maritime nature of the contract under which the
vessel seeks indemnity requires application of state law. Because
Louisiana law, including the LOIA applies to the BP/Greystar
contract, the court correctly dismissed Seacor’s third party
demand.
AFFIRMED.
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