IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 21, 2009
No. 08-30086 Charles R. Fulbruge III
Clerk
THOMAS J ALLEMAN, Etc
Plaintiff
v.
OMNI ENERGY SERVICES CORPORATION
Defendant - Third Party Plaintiff -
Appellant
AIG INSURANCE COMPANY
Third Party Plaintiff - Appellant
v.
W & T OFFSHORE INC
Third Party Defendant - Appellee
___________________________________________________________
MARK R PARKER, Etc: ET AL
Plaintiffs
v.
OMNI ENERGY SERVICES CORPORATION
Defendant- Third Party Plaintiff -
Appellant
AIG INSURANCE COMPANY
No. 08-30086
Third Party Plaintiff - Appellant
v.
W & T OFFSHORE INC
Third Party Defendant - Appellee
___________________________________________________________
RONALD LEE BART FONTENOT; MARY EVE FONTENOT
Plaintiffs - Appellants
v.
ERNIE DALE SMITH
Defendant - Appellee
OMNI ENERGY SERVICES CORPORATION; AIG INSURANCE COMPANY
Defendants - Third Party Plaintiffs
- Appellants - Appellees
v.
W & T OFFSHORE INC
Third Party Defendant - Appellee
___________________________________________________________
SHARON GAYLE HEBERT, Natural Tutrix on Behalf of Ariel Lynn
Hollier
Plaintiff - Appellant
v.
ERNIE DALE SMITH
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No. 08-30086
Defendant - Appellee
OMNI ENERGY SERVICES CORPORATION; AIG INSURANCE COMPANY
Defendants - Third Party Plaintiffs
- Appellants - Appellees
v.
W & T OFFSHORE INC
Third Party Defendant - Appellee
___________________________________________________________
BRIAN LEE HOLLIER
Plaintiff - Appellant
v.
ERNIE DALE SMITH
Defendant - Appellee
OMNI ENERGY SERVICES CORPORATION; AIG INSURANCE COMPANY
Defendants - Third Party Plaintiffs
- Appellants - Appellees
v.
W & T OFFSHORE INC
Third Party Defendant - Appellee
Appeals from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:06-CV-2622
USDC No. 2:06-CV-2621
USDC No. 2:06-CV-2620
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No. 08-30086
USDC No. 2:05-CV-1654
USDC No. 2:05-CV-1653
Before SMITH, GARZA, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
The petition for rehearing is DENIED in part and GRANTED in part as
reflected in the substitute opinion filed today. We withdraw our previous
opinion and substitute the following:
In this appeal, we must determine difficult questions of applicable law
following a tragic helicopter accident in the Gulf of Mexico. The two key issues
before us are (1) whether a contract for helicopter services to oil platforms is by
its nature a maritime contract, and (2) where to draw the line between the Outer
Continental Shelf Lands Act (“OCSLA”) and the Death on the High Seas Act
(“DOHSA”). Bert Hollier (“Hollier”) and other passengers of the helicopter sued
the company that operated the helicopter, Omni Energy Services Corp. (“Omni”);
Omni then sought indemnity from W&T Offshore, Inc. (“W&T”), which operated
the oil platform and had contracted with Omni to fly employees to its platforms.
The district court granted summary judgment in favor of W&T, finding that a
contract for helicopter services was not a maritime contract, and partial
summary judgment in favor of Omni, finding that DOHSA applied to Hollier’s
tort claims because the death occurred after Hollier fell into the ocean and
floated there for more than two hours. We affirm the district court’s judgment
on the maritime contract issue and reverse and remand on the DOHSA issue.
FACTS AND PROCEEDINGS
Omni and W&T had a general contract setting out the terms and
conditions under which Omni would provide services to W&T. The contract
includes a mutual indemnity clause, under which each company indemnifies the
other against claims made by its employees. The contract also has a choice of
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No. 08-30086
law clause, stating, “The general maritime law of the United States shall govern
this Contract.” In a separate letter agreement, Omni agreed to provide “certain
aircraft services in accordance with the [general contract].” This letter
agreement lays out the details of the provision of services.
Pursuant to the letter agreement, on December 17, 2004, an Omni
helicopter piloted by Omni employee Ernie Smith was flying three W&T
subcontractors between W&T offshore platforms. Smith was landing the
helicopter on the helipad, but a boat landing stored on or near the helipad made
it impossible for the passengers to exit. Smith then attempted to move the
helicopter, but in doing so, the main rotor struck the boat landing. The
helicopter skidded around the helipad, then fell into the Gulf of Mexico.
Passengers Thomas Alleman and Mark Parker were injured. The third
passenger, Hollier, floated in the water for two hours and died of a heart attack
while he was being rescued.
In the district court, several cases were combined to create this
consolidated action. On several cross-motions for summary judgment, the
district court held that: (1) the contracts between Omni and W&T are governed
by OCSLA, not maritime law, and under OCSLA, Louisiana law, and specifically
the Louisiana Oilfield Indemnity Act (“LOIA”), applies, making the indemnity
provisions invalid; and (2) Hollier’s tort claims are governed under DOHSA, not
OCSLA.
Omni now appeals, arguing that the contract should be governed by
maritime law, which makes the indemnity provision valid. Hollier’s heirs also
appeal, arguing that OCSLA should govern Hollier’s tort claims.
STANDARD OF REVIEW
We review the district court’s grant of summary judgment de novo.
Settlement Funding, LLC v. TransAmerica Occidental Life Ins. Co., 555 F.3d
422, 424 (5th Cir. 2009). Summary judgment is appropriate where “there is no
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No. 08-30086
genuine issue as to any material fact and . . . the movant is entitled to judgment
as a matter of law.” F ED. R. C IV. P. 56(c).
DISCUSSION
A. Indemnity and Contribution Claims
OCSLA extends the laws and jurisdiction of the United States to the
seabed and artificial islands on the outer Continental Shelf, including offshore
platforms. 43 U.S.C. § 1333(a)(1). The laws of the adjacent state also apply, to
the extent they are not inconsistent with federal law. Id. § 1333(a)(2)(A). The
state adjacent to the W&T platform involved in the helicopter accident is
Louisiana, so Louisiana law would apply if OCSLA governs the contract. It is
undisputed that if OCSLA applies, LOIA would bar the indemnity provision of
Omni’s contract. See L A. R EV. S TAT. § 9:2780. Therefore, the dispositive issue
is whether OCSLA applies, as opposed to maritime law.
We use a three-part test to determine whether OCSLA applies:
(1) The controversy must arise on a situs covered by OCSLA (i.e. the
subsoil, seabed, or artific[i]al 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 Tex. Petroleum Corp. v. PLT Eng’g, Inc., 895 F.2d 1043, 1047 (5th Cir.
1990). The parties do not dispute that the controversy arose on an offshore
platform and that Louisiana law is consistent with federal law.1 The sole issue,
then, is whether maritime law applies to the contract of its own force.2 If so,
OCSLA would not apply.
1
As no appeal was taken on these issues, we express no opinion as to whether parts
1 and 3 of the test were actually met in this case.
2
The contract contains a choice of law provision stating that maritime law will govern,
but parties cannot choose to be governed by maritime law when OCSLA applies. See Texaco
Exploration & Prod., Inc. v. AmClyde Engineered Prods. Co., Inc., 448 F.3d 760, 772 & n.8 (5th
Cir. 2006).
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No. 08-30086
Determining whether a contract is maritime is a well-trod but not
altogether clear area of the law. See Hoda v. Rowan Cos., Inc., 419 F.3d 379, 380
(5th Cir. 2005) (discussing whether our case law offers “the soundest
jurisprudential approach” to this area of law); Planned Premium Servs. of La.,
Inc. v. Int’l Ins. Agents, Inc., 928 F.2d 164, 165 (5th Cir. 1991) (“The waters
become murky when we seek the precise parameters of a maritime contract.”);
Domingue v. Ocean Drilling & Exploration Co., 923 F.2d 393, 393–94 (5th Cir.
1991) (“Once more we embark on a voyage through the familiar marshland area
of the law set aside for classifying the oil and gas exploration services contract
as wet or dry.”). Because the general contract does not provide for specific work
to be done, it and the letter agreement are considered as a single contract. See
Davis & Sons, Inc. v. Gulf Oil Corp., 919 F.2d 313, 315 (5th Cir. 1990).
In ascertaining whether that contract is a maritime contract, we look to
the “nature and subject-matter” of the contract and ask whether it has “reference
to maritime service or maritime transactions.” New England Mut. Marine Ins.
Co. v. Dunham, 78 U.S. 1, 26–27 (1870); see Exxon Corp. v. Cent. Gulf Lines, Inc.,
500 US. 603, 611 (1991) (“[T]he nature and subject-matter of the contract at
issue should be the crucial consideration in assessing admiralty jurisdiction.”
(internal quotation omitted)). The contract need not, however, be purely one on
the high seas. In a “maritime case about a train wreck,” the Supreme Court said
that “[t]o ascertain whether a contract is a maritime one, we cannot look to
whether a ship or other vessel was involved in the dispute, as we would in a
putative maritime tort case.” Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 18, 23
(2004). “Instead, the answer depends upon the nature and character of the
contract, and the true criterion is whether it has reference to maritime service
or maritime transactions.” Id. at 24 (internal quotation and alteration omitted).
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No. 08-30086
In this circuit, we utilize the two-part inquiry laid out in Davis & Sons,
919 F.2d 313, to determine whether a contract is maritime. We look both to the
“historical treatment in the jurisprudence” as well as to six fact-specific factors:
1) what does the specific work order in effect at the time of 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 injury?
Id. at 316. Analyzing these factors, it is clear that Omni was instructed to fly
workers to an oil platform, and that the workers were simple passengers on their
way to the platform. We are left, however, with the central question of whether
a contract to transport workers to an oil platform by helicopter is a maritime
contract. Is the “nature and subject-matter” of transportation by helicopter a
“maritime service”?
Omni points us to tort cases where admiralty jurisdiction applies to
helicopter accidents that occur over water. See Offshore Logistics, Inc. v.
Tallentire, 477 U.S. 207, 218–219 (1986). In Tallentire, the Court said that
“admiralty jurisdiction is appropriately invoked here under traditional principles
because the accident occurred on the high seas and in furtherance of an activity
bearing a significant relationship to a traditional maritime activity.” Id.
“Although the decedents were killed while riding in a helicopter and not a more
traditional maritime conveyance, that helicopter was engaged in a function
traditionally performed by waterborne vessels: the ferrying of passengers from
an ‘island,’ albeit an artificial one, to the shore.” Id. at 219. Similarly, this court
has held that “[t]he crash of the deceased’s helicopter, while it was being used
in place of a vessel to ferry personnel and supplies to and from offshore drilling
structures, bears the type of significant relationship to traditional maritime
activity which is necessary to invoke admiralty jurisdiction.” Ledoux v.
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No. 08-30086
Petroleum Helicopters, Inc., 609 F.2d 824, 824 (5th Cir. 1980). So, helicopter
transport to offshore platforms bears a “significant relationship to a traditional
maritime activity” and essentially replaces a “function traditionally performed
by waterborne vessels.”
But the tests for maritime contract law and maritime tort law have long
been different. See State Indus. Comm’n of N.Y. v. Nordenholt Corp., 259 U.S.
263, 271 (1922). Maritime jurisdiction covers torts that occur on the high seas
and bear a significant relationship to traditional maritime activity. Executive
Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 268 (1972). Conversely,
maritime contract law applies based on the nature and character of the contract,
rather than looking to where it occurred. Norfolk, 543 U.S. at 24. In Executive
Jet, the Supreme Court specifically addressed both whether maritime tort law
and other maritime law applied to aircraft. 409 U.S. 249. The Court stated
clearly that “in contexts other than tort, Congress and the courts have
recognized that . . . aircraft are not subject to maritime law.” Id. at 270; see also
id. at 261–62 (listing the numerous ways in which Congress and the courts have
excluded aircraft from typical maritime law). “Through long experience, the law
of the sea knows how to determine whether a particular ship is seaworthy, and
it knows the nature of maintenance and cure. It is concerned with maritime
liens, the general average, captures and prizes, limitation of liability, cargo
damage, and claims for salvage.” Id. at 270. These rules and concepts “are
wholly alien to air commerce, whose vehicles operate in a totally different
element, unhindered by geographical boundaries and exempt from the
navigational rules of the maritime road.” Id. “The matters with which
admiralty is basically concerned have no conceivable bearing on the operation
of aircraft, whether over land or water.” Id. This court has also clearly held that
helicopters are not “vessels” for purposes of maritime commerce, even if they fly
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No. 08-30086
over the sea. Barger v. Petroleum Helicopters, Inc., 692 F.2d 337, 339–40 (5th
Cir. 1982).
The contract at issue was to provide helicopters and other aircraft to ferry
workers between platforms and the shore. If those aircraft crash on the high
seas, maritime tort jurisdiction applies. Tallentire, 477 U.S. at 219. But
helicopters and other aircraft are not generally governed by maritime law in
their normal operations. Indeed, as the subject matter of this contract is
aviation services, which are not governed by maritime law, we hold that a
contract to ferry workers to offshore oil platforms is not a maritime contract.
Because federal maritime law does not apply of its own force, see PLT, 895 F.2d
at 1047, OCSLA, and thus LOIA, applies, rendering the indemnity provision of
the contract void and unenforceable. L A. R EV. S TAT. § 9:2780.
B. Tort Claims
The district court held that DOHSA governed Hollier’s tort claims.
DOHSA provides a right of action for any death occurring on the high seas
beyond a marine league from the shore, or, in the case of a commercial aviation
accident, more than 12 nautical miles from shore. See 46 U.S.C. § 761 (2000).3
OCSLA applies to accidents “actually occurring” on oil platforms, Rodrigue v.
Aetna Cas. & Sur. Co., 395 U.S. 352, 366 (1969), and applies state law as
surrogate federal law on those platforms. 43 U.S.C. § 1333.
“[I]n Rodrigue, the Court held that an admiralty action under DOHSA
does not apply to accidents ‘actually occurring’ on these artificial islands, and
that DOHSA therefore does not preclude the application of state law as adopted
federal law through OCSLA to wrongful death actions arising from accidents on
offshore platforms.” Tallentire, 477 U.S. at 217–18 (citing Rodrigue, 395 U.S. at
3
DOHSA was amended in October 2006. See 46 U.S.C. § 30301. Because the events
at issue in this case occurred in 2004, we apply the version of DOHSA that was in effect at the
time.
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No. 08-30086
366). This is because “Congress did not intend . . . that these island-platforms
be within admiralty’s jurisdiction.” In re Dearborn Marine Serv., Inc., 499 F.2d
263, 272–73 (5th Cir. 1974).
The helicopter was attempting to land on the deck of the oil platform; the
pilot then tried to reposition it, and in so doing hit a boat landing; after hitting
the helipad and spinning wildly, the helicopter fell into the sea with its
occupants. This accident “actually occurred” on the oil platform itself and
OSCLA therefore applies. It does not impact our analysis that Hollier fell into
the sea after the accident occurred on the platform. See Smith v. Pan Air Corp.,
684 F.2d 1102, 1110 (5th Cir. 1982) (“[W]e have applied OCSLA and,
consequently, state law, to incidents in which platform workers who were the
victims of torts originating on these artificial islands were not actually injured
or killed until they fell, jumped, or were pushed into the surrounding seas.”);4
Dearborn, 499 F.2d at 273 (“Congress did not intend that application of state law
necessarily should cease at the physical boundaries of the platform. The same
concerns may be equally applicable to accidents fortuitously consummated in the
surrounding sea.”).
CONCLUSION
We AFFIRM the district court’s grant of partial summary judgment in
favor of W&T finding that OCSLA applies to the contractual indemnity and
contribution claims. We REVERSE the district court’s grant of partial summary
judgment in favor of Omni finding that DOHSA governs Hollier’s tort claims,
4
Smith applied maritime law to a helicopter pilot’s tort claims for a helicopter crash
that occurred over the high seas. 684 F.2d at 1112. In Smith, a platform crane and its crane
ball extended out over the Gulf of Mexico; the helicopter collided with the crane ball and
crashed into the Gulf. Id. at 1105. Smith relied on two facts to find maritime jurisdiction: (1)
that the accident occurred on or over the high seas, rather than on the platform, and (2) that
the decedent was a helicopter pilot engaged in a maritime-type function, rather than a
platform worker. See id. at 1105, 1110–1111. Neither of these facts are present in this case,
where the accident occurred on, or slightly over, the platform itself, and where the victim was
a platform worker, rather than the helicopter pilot.
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No. 08-30086
and REMAND this case to the district court for further proceedings consistent
with this opinion.
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