Becker v. Tidewater, Inc.

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
October 26, 2009

No. 08-30183 Charles R. Fulbruge III
Clerk

SETH A. BECKER

Plaintiff-Appellant
v.

TIDEWATER INC.; TWENTY GRAND OFFSHORE INC.; TIDEWATER
MARINE LLC; PENTAL INSURANCE COMPANY LTD; CERTAIN
UNDERWRITERS AT LLOYDS INSURANCE CO.

Defendants-Appellees
v.

BAKER HUGHES INC.; BAKER OIL TOOLS INC., a division of Baker
Hughes Oilfield Operations Inc.

Defendants-Appellants

Appeals from the United States District Court
for the Western District of Louisiana

Before JONES, Chief Judge, WIENER, and BENAVIDES, Circuit Judges.
FORTUNATO P. BENAVIDES, Circuit Judge:
The panel opinion issued August 28, 2009, is withdrawn and the following
opinion is substituted in its place.
This is an appeal from a trial stemming from injuries sustained by
Plaintiff-Appellant Seth Becker (“Seth”) while he was aboard an oil rig in the
 08-30183

Gulf of Mexico. After a bench trial, the district court held Defendant-Appellant
Baker1 55% liable for Seth’s injuries and Defendant-Appellee Tidewater 2 45 %
liable for Seth’s injuries. The court also held that Baker was obligated to fully
indemnify Tidewater for any liability for its negligence resulting in an injury to
Seth. Baker appeals the district court’s denials of summary judgment as well
as the court’s final judgment on issues of apportionment of fault and indemnity.
Seth also appeals the district court’s apportionment of fault and its findings
concerning gross negligence. Based on the following analysis, we affirm in part
and reverse in part the judgment of the district court and remand for
proceedings consistent with this opinion.
I.
A.
Seth was injured while working as a summer intern for Baker as part of
the crew of the M/V Republic Tide (the “Republic Tide”), a boat outfitted for
well-stimulation services, in June 1999. Baker was using the Republic Tide
pursuant to a time-charter contract with the boat’s owner, Tidewater.
The injury occurred while the Republic Tide’s crew was performing
well-stimulation services on the R&B Falcon/Cliffs Rig 153 (the “rig”), an oil rig
owned by Cliffs Drilling and operated by R&B Falcon (collectively, “Falcon”) in
the Gulf of Mexico. The job required the Republic Tide’s crew to unspool a coiled
steel hose from the boat’s stern, extend it to the rig, and attach it to the rig’s

1
“Baker” refers collectively to Baker Hughes, Inc. and Baker Oil Tools, Inc., a division of Baker
Hughes Oilfield Operations, Inc.
2
“Tidewater” refers collectively to Tidewater Inc., Tidewater Marine, LLC, Twenty Grand Offshore,
Inc., Pental Insurance Company, and Certain Underwriters at Lloyds, Subscribing Risk No. LEO 106200.

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wellhead. While the steel hose was extended, the Republic Tide’s movements
caused the hose to whip across the rig’s deck. To help keep the hose in place,
Baker’s employees ran it through a Baker-designed, Baker-constructed
apparatus called the “blue shoe.” The Republic Tide’s captains, Captain Givens
and Captain Lachney, employees of Tidewater, also sought to keep the hose in
place by minimizing the Republic Tide’s movements relative to the rig. Crew
members tied off the boat’s stern to the rig with two lines (one starboard and one
port), and the captains used the boat’s bow thruster to maintain position against
the Gulf of Mexico’s current. The crew kept the Republic Tide’s anchor raised
because the anchor windlass had a hydraulic oil leak which was discovered by
Tidewater when it pulled up to the rig on the day of the incident.
While Seth was aboard the rig, the Republic Tide’s bow thruster failed.
This failure created an emergency because, without the thruster, the Republic
Tide could not maintain its bow’s position against the current. The Republic
Tide’s captain on duty, Captain Lachney, contacted the rig and reported that the
thruster had failed. Moments later, the current caused the port-stern mooring
line to break. The Republic Tide, still connected by the starboard-stern mooring
line and the (slack) steel hose, and still being pushed starboard, would collide
with the oil rig without intervention.
Captain Lachney instructed Baker crew members aboard the boat to
disconnect the steel hose from the reel assembly that attached the hose to the
boat. The reel assembly contained a quick-release mechanism. The reel
malfunctioned due to modifications made to the system and began to lock up.
The quick disconnect button did not release the hose and the employees were
unable to move the reel manually. Consequently, the crew was unable to

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disconnect the hose.
Captain Lachney again contacted the rig. He reported that the hose would
need to be disconnected from the rig’s wellhead, and Baker’s supervisor aboard
the rig received this message. The supervisor ordered three Baker employees,
including Seth, to the rig’s deck to disconnect the hose.
Meanwhile, the Gulf’s current continued to push the Republic Tide toward
the rig. Captain Lachney, fearing impact with the rig, decided to break the
starboard-stern mooring line. He did not, however, contact the rig before taking
this action; Baker’s crew members on the rig’s deck were unaware that the steel
hose was about to be pulled taut. Captain Lachney powered the boat’s engines
and pulled away from the rig.
Seth was standing in the bend of the steel hose when the Republic Tide’s
movement snapped the hose taut, pinning Seth. The hose cut through Seth’s
legs, amputating one leg and nearly amputating the other. He lost between
eight and nine pints of blood before being evacuated. Doctors later had to
amputate the second leg below the knee. Seth, twenty-two years old at the time
of the accident, now suffers from severe health problems which will require
ongoing treatment, counseling, and medication for the remainder of his life.
B.
Seth sued Baker, Tidewater, and Falcon under the Jones Act, the
Longshore and Harbor Workers Compensation Act (“LHWCA”), and general
maritime law. A jury trial was held in July 2001, concluding in a verdict finding
Seth to be a Jones Act seaman and awarding him damage. The jury apportioned
fault among the defendants, assigning each a percentage. On appeal, this court
reversed the jury’s finding and held Seth to be a longshoreman, set aside liability

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and damage findings, and remanded the case to the district court for further
proceedings under the LHWCA. Becker v. Tidewater, Inc., 335 F.3d 376 (5th Cir.
2003) (“Becker I”).
On remand, the district court granted Seth leave to amend his complaint
to request a bench trial for his remaining claims under Federal Rule of Civil
Procedure 9(h). Baker filed an interlocutory appeal challenging the district
court’s decision to hold a bench trial rather than a jury trial, which was accepted
by this court. On appeal, the district court’s ruling was affirmed, and the case
was remanded a second time for a bench trial. Becker v. Tidewater, Inc., 405
F.3d 257 (5th Cir. 2005) (“Becker II”).
A limited second trial was held by the district court as an admiralty
action, without a jury, pursuant to Federal Rule of Civil Procedure 9(h). Before
the trial on remand, Baker and Seth entered into a Mary Carter agreement.3
Baker gave Seth $23.5 million dollars in exchange for an agreement to share any
net recovery he may have against Tidewater on the basis of 75% to Baker and
25% to Seth. The district court denied all of Baker’s motions for summary
judgment that attempted to invalidate the reciprocal indemnity agreement. The
court ultimately awarded Seth almost $37 million damages against Baker and
Tidewater under the LHWCA. The court held that Baker, as time-charterer of
the boat, was 55% liable for Seth’s injuries and Tidewater, as owner of the boat,
was 45% liable. Falcon was held free from fault and liability. The court held
that under the reciprocal indemnity agreement in the contract between Baker

3
A Mary Carter agreement is a contract “between the plaintiff and one of several defendants
whereby the contracting defendant will settle with the plaintiff before trial, but must remain in the suit, and
will be reimbursed to some specific degree from the plaintiff’s recovery from the other defendants.”
McDaniel v. Anheuser-Busch, Inc., 987 F.2d 298, 309 n.49 (5th Cir. 1993).

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and Tidewater, Baker was obligated to fully indemnify Tidewater for any
liability for Seth’s injuries. Baker and Seth timely appealed the judgment of the
district court.
II.
“The standard of review for a bench trial is well established: findings of
fact are reviewed for clear error and legal issues are reviewed de novo.” In re
Mid-South Towing Co., 418 F.3d 526, 531 (5th Cir. 2005); see also Otto Candies,
L.L.C. v. Nippon Kaiji Kyokai Corp., 346 F.3d 530, 533 (5th Cir. 2003). “A
finding is clearly erroneous if it is without substantial evidence to support it, the
court misinterpreted the effect of the evidence, or this court is convinced that the
findings are against the preponderance of credible testimony.” Bd. of Trs. New
Orleans Employers Int’l Longshoremen’s Ass’n v. Gabriel, Roder, Smith & Co.,
529 F.3d 506, 509 (5th Cir. 2008); Otto, 346 F.3d at 533 (“Under a clear error
standard, this court will reverse only if, on the entire evidence, we are left with
the definite and firm conviction that a mistake has been made.” (citations
omitted)). This court reviews the district court’s denial of summary judgment
de novo. Diamond Offshore Co. v. A&B Builders, Inc., 302 F.3d 531, 540 (5th
Cir. 2002).4

4
This court normally declines to review a “district court’s denial of motions for summary judgment
when the case comes to us on the movant’s appeal following adverse judgment after full trial on the merits.”
Black v. J.I. Case Co., Inc., 22 F.3d 568, 572 (5th Cir. 1994). Although the rule does not appear to have been
explicitly stated in this circuit, other circuits have held that a denial of summary judgment is appealable after
a trial on the merits when there was a ruling by the district court on an issue of law. See Banuelos v. Constr.
Laborers’ Trust Funds for S. Cal., 382 F.3d 897, 902 (9th Cir. 2004). In addition, because Rule 50 motions
are not required to be made following a bench trial, it is appropriate to review the court’s denial of summary
judgment in this context. See Colonial Penn Ins. v. Mkt. Planners Ins. Agency Inc., 157 F.3d 1032, 1037 n.3
(5th Cir.1998) (“In a jury trial, of course, a party must make (and renew at the trial’s conclusion) a Rule 50(a)
motion for judgment as a matter of law in order to preserve sufficiency of the evidence for appellate review.
But nothing indicates that a similar rule applies to an appeal of the sufficiency of evidence to support
findings or sufficiency of findings to support a judgment following a bench trial.” (citations omitted)).

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III.
The time-charter maritime contract entered into by Tidewater and Baker
contained reciprocal indemnity provisions, with Tidewater being responsible for
injuries to Tidewater employees, and Baker being responsible for injuries to
Baker employees. On appeal, Baker presents a number of arguments asserting
that the district court erred in holding that Baker was obligated to indemnify
Tidewater fully for any liability for Seth’s injuries under this agreement. Based
on the following analyses, we hold that the district court did not err in holding
that the reciprocal indemnity agreement between Baker and Tidewater obligates
Baker to indemnify Tidewater fully for Seth’s injuries.
A.
First, Baker appeals the district court’s ruling that the reciprocal
indemnity agreement entered into by Baker and Tidewater was valid under
§ 905 of the LHWCA. 33 U.S.C. § 905(b). Section 905(b) of the LHWCA provides
that agreements for an employer to indemnify a vessel from injuries to a
longshoreman are void. Id. However, reciprocal-indemnity agreements between
employer and vessel are not void when a longshoreman is entitled to LHWCA
relief by virtue of the Outer Continental Shelf Lands Act (“OCSLA”). 43 U.S.C.
§ 1333(b); 33 U.S.C. § 905(c). The question is whether Seth, who was a
longshoreman at the time of the incident,5 is covered by § 1333(b) of OCSLA.
Baker argues that Seth is not covered because he does not satisfy the “situs” test
and is thus not covered under § 1333(b). We find this argument unavailing.

Because Baker appeals the district court’s legal conclusions in denying summary judgment, and the case was
a bench trial, review of the denials of summary judgment is appropriate.
5
Becker I, 335 F.3d at 393.

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“Section 1333(b) of OCSLA extends the LHWCA’s benefits to employees
disabled or killed ‘as the result of operations conducted on the outer Continental
Shelf for the purposes of exploring for . . . [or] developing . . . the natural
resources . . . of the subsoil and seabed of the outer Continental Shelf.’” Mills v.
Director, 877 F.2d 356, 357-58 (5th Cir. 1989) (en banc) (quoting 43 U.S.C. §
1333(b)). Under this subsection, with two exceptions, all employees suffering
injury or death on the outer continental shelf are covered by the LHWCA if they
are engaged in exploring for or developing natural resources. The only
exceptions, not applicable here, are for masters or members of a crew of a vessel
or employees of the United States. 43 U.S.C. § 1333(b)(1). The only status
requirement is that the worker be engaged in exploration or production of
minerals, and the only situs requirement is that the worker be injured on the
outer continental shelf. See Mills, 877 F.2d at 362. Because Seth was engaged
in mineral exploration, was a non-seaman, and was injured on the outer
continental shelf while employed by an employer engaged in mineral production,
he is covered under the LHWCA.6
B.
Baker and Seth also contend that the indemnity provision is invalid
because they allege that Tidewater committed gross negligence. It is undisputed
that Baker escapes indemnity if Tidewater’s actions leading to Seth’s injuries
were grossly negligent. See Houston Exploration Co. v. Halliburton Energy

6
Although we are persuaded that the above analysis is the correct approach in determining whether
a worker injured on the outer continental shelf is covered by the LHWCA, we recognize that some of our
cases have suggested that more is required to satisfy the situs requirement. See, e.g., Demette v. Falcon
Drilling Co., 280 F.3d 492, 498-500 (5th Cir. 2002). Even if we follow this approach, since Seth was injured
on a jack-up oil rig on the OCS, he satisfies the Demette situs test.

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Servs., Inc., 269 F.3d 528, 531 (5th Cir. 2001) (noting that a waiver of liability
for gross negligence is void). The district court found that Tidewater’s actions
were negligent but not grossly negligent.
“A finding that a party is negligent or grossly negligent is a finding of fact
and must stand unless clearly erroneous. A finding of fact is ‘clearly erroneous’
when although there is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been
committed.” Id. (footnote omitted). This court has defined gross negligence as
“willful, wanton and reckless conduct that falls between intent to do wrong and
ordinary negligence.” Id. (interpreting Louisiana law). “Mere inadvertence or
honest mistake does not amount to gross negligence.” Id.; see also Todd
Shipyards Corp. v. Turbine Serv., Inc. 674 F.2d 401, 411 (5th Cir. 1982) (“Gross
negligence, which will invalidate an exemption from liability has been defined
as harm willfully inflicted or caused by gross or wanton negligence.” (citation
omitted)).
Baker and Seth argue that Tidewater’s actions, considered as a whole,
were grossly negligent. The district court found that Tidewater’s “most
egregious” conduct was moving the Republic Tide without warning. Baker and
Seth characterize this failure to warn as gross negligence because Tidewater’s
captain requested crew aboard the rig to disconnect the steel hose and knew that
moving the Republic Tide would cause the hose to move across the rig’s deck.
Based on the record, the failure to warn was mere inadvertence and not gross
negligence. The situation was an emergency, and the captain needed to act
quickly. He moved the Republic Tide, but only to avoid a collision with the rig.
The captain’s actions thus reflect a concern for safety, rather than a reckless

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disregard for safety.
Baker and Seth also contend that Tidewater was grossly negligent in
failing to warn the rig’s crew that the Republic Tide would be unanchored, but
the record reflects that Baker employees were aware the anchor was raised and,
in any event, proceeding with such a job while unanchored was not unusual.
Baker and Seth contend that Tidewater knew the bow thruster was faulty when
Tidewater decided to rely on it instead of the Republic Tide’s anchor, but:
(1) three Tidewater employees and three Baker employees testified that the
Republic Tide experienced no bow-thruster problems prior to the accident;
(2) one individual testified that a Tidewater employee communicated with the
rig about a bow-thruster problem but reported that the problem had been
resolved; and (3) the testimony is unclear as to whether the problem mentioned
was recent or occurred before the bow thruster had been replaced six months
earlier. The district court did not commit clear error in finding that Tidewater
was not grossly negligent; there is substantial evidence to support the holding
that Tidewater was merely negligent, and not grossly negligent, under the
circumstances presented.7
C.

7
Baker also challenges the district court’s refusal to allow Baker certain additional discovery to
bolster its claim of gross negligence on remand from Becker I. We review a trial court’s evidentiary ruling
for an abuse of discretion. Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253, 265 (5th Cir. 2007). “If we find
that an abuse of discretion has occurred, we then apply the harmless error doctrine. Thus, the evidentiary
ruling will be affirmed unless the district court abused its discretion and a substantial right of the
complaining party was affected.” Id. The district court’s discovery ruling distinguished between witnesses
whom Baker could have deposed before the original trial and witnesses whom it could not have—the ruling
permitted Baker to depose the latter. It also permitted Baker to supplement the deposition of a witness it
already had deposed. Allowing this discovery, while forbidding Baker to retain experts or to depose
witnesses whom it could have deposed before the original trial but apparently chose not to, was not an abuse
of discretion.

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Baker contends that because Tidewater breached the time-charter
contract, the indemnity provision contained therein was rendered void. 8 Baker
cites Marquette Transportation Co. v. Louisiana Machinery Co., 367 F.3d. 398
(5th Cir. 2004), for the proposition that a breach of a contract containing an
indemnity agreement serves to invalidate the indemnity agreement. However
the court in Marquette, after finding that the indemnity agreement at issue was
enforceable, states only that if the party “had been found to be in breach of those
warranties, perhaps our application of the indemnity clause would be different.”
367 F.3d. at 408. Marquette does not hold that breach of a contract necessitates
invalidation of an indemnity agreement included therein. Even if the indemnity
agreement could be invalidated by Tidewater’s breach of the time-charter
contract, the district court did not err in holding that Tidewater did not breach
the contract. The time-charter contract required Tidewater to deliver to Baker
a boat that was:
properly equipped and in every respect seaworthy and in good
running order and in every way fit and ready for [Baker’s] use and
for the employment intended, so far as the exercise of due diligence
can make her; and [Tidewater] undertakes to so maintain the vessel
during the period of service under this Charter.

Baker contends that Tidewater breached this provision by delivering the
Republic Tide in an unseaworthy condition. Whether Tidewater exercised due
diligence in delivering and maintaining the Republic Tide in seaworthy condition
is a question of fact reviewed for clear error. Stevens v. East-West Towing Co.,

8
Tidewater contends that Baker has waived this argument, among others, because it was outside the
mandate issued by this court in Becker I. See Gen. Universal Sys., Inc. v. HAL, Inc., 500 F.3d 444, 453 (5th
Cir. 2007). We need not address this issue because all of the arguments that Tidewater contends are barred
by the mandate rule are rejected on the merits in the instant opinion.

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649 F.2d 1104, 1106 (5th Cir. Unit A July 1981). Baker contends that the vessel
was unseaworthy because the bow thruster and anchor windlass were faulty.
The district court found that Tidewater exercised due diligence to deliver and
to maintain the Republic Tide in seaworthy condition. There was conflicting
testimony concerning whether Tidewater knew of any bow-thruster problem, and
several Tidewater employees testified that the Republic Tide had never
experienced any previous issues with the bow-thruster. Although Tidewater did
not have evidence of September or March inspections of its anchor mechanism
as its procedures required, they had inspected the anchor in May before the June
1999 incident according to testimony of Tidewater’s engineer. The record
contains substantial evidence that Tidewater did not know the bow thruster or
anchor were faulty, and therefore, even if Tidewater’s breach could invalidate
the indemnity agreement, the district court did not clearly err in holding that
Tidewater did not commit a breach of contract.
D.
Baker also argues that even if the indemnity provision is upheld, it only
obligates Baker to indemnify Tidewater for “general damages.” The
interpretation of a contractual indemnity provision is a question of law, reviewed
de novo. Weathersby v. Conoco Oil Co., 752 F.2d 953, 956 (5th Cir. 1984) (per
curiam). “A maritime contract containing an indemnity agreement, whether
governed by federal maritime or Louisiana law, should be read as a whole and
its words given their plain meaning unless the provision is ambiguous.” Id. at
955 (citing Lirette v. Popich Bros. Water Transp., Inc., 699 F.2d 725, 728 (5th Cir.
1983)).
Article XIV of the time-charter contract contains three paragraphs. In the

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first paragraph, Tidewater agrees to defend and indemnify Baker “from and
against all claims, suits, losses, liabilities, expenses, demands, costs (including
reasonable attorneys’ fees) and/or damages as a result of . . . injury, illness, or
death” of Tidewater’s employees. In the second paragraph, Baker reciprocates
the promise contained in the first paragraph. The relevant portion of the third
paragraph reads:
Notwithstanding anything to the contrary contained herein,
it is expressly agreed by and between the parties hereto that,
regardless of the negligence on the part of any party hereto or the
unseaworthiness of any vessel, neither such party shall be liable to
the other for any punitive, indirect, incidental, special or
consequential damages of any kind or nature (including, but not
limited to, loss of profits, loss of use, loss of hire, and loss of
production); and each party hereby agrees to waive its rights of
recourse in this regard against the other party.

Baker argues that this paragraph of the time-charter contract restricts the
preceding indemnity provision to general damages only, which they contend
encompasses only physical pain/suffering and mental anguish/suffering damages
and excludes damages which Baker characterizes as “special damages”—past
and future medical expenses, past lost wages, and impairment of earning
capacity.
There is nothing in the third paragraph to suggest that it is a restriction
on the indemnity provisions in the preceding paragraphs. It references only
liability between the parties to the agreement (Tidewater and Baker), and does
not reference indemnity or liability to third parties or employees. The types of
damages referenced in this paragraph are those traditionally associated with
contractual claims, and not the personal injury claims which are the subject of
the indemnification provision. See Nat’l Hispanic Circus, Inc. v. Rex Trucking,

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Inc., 414 F.3d 546, 549 (5th Cir. 2005) (“Special damages are those that result
from a party’s breach of contract but are not reasonably foreseeable”); Tex. A&M
Research Found. v. Magna Transp., Inc., 338 F.3d 394, 404 (5th Cir. 2003)
(“[C]onsequential, or ‘special,’ damages . . . are those unusual or indirect costs
that, although caused by the defendant’s conduct in a literal sense, are beyond
what one would reasonably expect to be the ordinary consequences of a
breach.”). The illustrative parenthetical following the description of excepted
damages—“(including, but not limited to, loss of profits, loss of use, loss of hire,
and loss of production)”—also supports this interpretation. Baker’s proffered
interpretation of the term “special damages” does not fall within the plain
meaning of the term, especially when read in context with the rest of the
paragraph at issue. Therefore, the district court did not err inn holding that the
third paragraph of Article XIV of the time-charter contract does not restrict the
scope of the indemnity provision.
E.
Baker contends that Tidewater must exhaust its liability insurance
policies before turning to Baker for indemnity. The district court held that
because Baker was only an “additional assured” under the policies for risks
assumed by Tidewater, there was no coverage for Seth’s injuries because those
risks were assumed by Baker pursuant to the indemnity agreement.
Under Article XI of the time-charter contract, Tidewater must procure and
maintain a $2,000,000 Protection and Indemnity (“P&I”) insurance policy
covering Tidewater’s liabilities, “including Collision/Towers/Liability and crew
coverage, but excluding Cargo Liability coverage and coverage for those risks,
if any, assumed or insured by CHARTERER [Baker] in this Charter.” Article

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XI further specifies that the policy “shall include CHARTERER, in its capacity
as time-charterer of the vessel, as an additional assured, but only with respect
to the risks assumed by OWNER [Tidewater] in this Charter.”
Tidewater procured and maintained a $5,000,000 primary marine-liability
policy. Under this policy, “the unqualified word ‘Assured’ includes . . . any
person, organization, trustee or estate to whom or to which the ‘Named Assured’
[Tidewater] is obligated by virtue of a contract or agreement to include or name
as an assured, co-assured or additional assured.” Tidewater also procured and
maintained an excess marine-liability policy designating Tidewater as a named
assured but not designating Baker as an additional assured.
Baker cites a series of Fifth Circuit cases that have held that, in certain
circumstances, when a contract contains a reciprocal-indemnity clause and
requires the indemnitee to maintain an insurance policy designating the
indemnitor as an “additional assured,” the indemnitee must exhaust the
insurance coverage before receiving indemnity. See, e.g., Tullier v. Halliburton
Geophysical Servs., Inc. 81 F.3d 552 (5th Cir. 1996); Klepac v. Champlin
Petroleum Co., 842 F.2d 746 (5th Cir. 1988); Ogea v. Loffland Bros. Co., 622 F.2d
186 (5th Cir. 1980). The primary question posed here is whether Baker is an
“additional assured” under Tidewater’s insurance policy for Seth’s claims. In
order to determine if Baker is an “additional assured,” we must read the
insurance and indemnity provisions of the time-charter contract in conjunction
in order to properly interpret the meaning of the contract. See Ogea, 622 F.2d
at 190.
Baker contends that it is an “additional assured” because Tidewater must
procure and maintain insurance designating Baker as an “additional assured.”

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Tidewater argues that, under Article XI’s plain language, Tidewater’s duty is
more limited: it must procure and maintain insurance designating Baker as an
“additional assured, but only with respect to the risks assumed by OWNER
[Tidewater] in this Charter.” Tidewater thus argues that because Baker—not
Tidewater—assumed the risk of injury to Baker employees, the contract does not
require Baker to be designated as an “additional assured” for coverage over
Seth’s injuries. Tidewater also argues that the language in its insurance policies
demonstrates that Baker is not covered for Seth’s claim because the policy
specifically limits Baker’s “additional assured” coverage to risks assumed by
Tidewater under the time-charter.
Baker contends that this issue is addressed in Klepac, which held that an
indemnitor’s obligation does not begin to run until the indemnitee’s insurance
policy, naming the indemnitor as the additional assured, is exhausted. Klepac,
842 F.2d at 747–48. However, the contract in Klepac did not limit additional
assured coverage to only risks assumed by the indemnitee, as the time-charter
does here. Id. The Klepac contract stated that the insurance coverage “shall
include” coverage for which the insured indemnitee was reciprocally obligated
to indemnify the indemnitor. The court extended the obligation to cover
damages for which the indemnitor was obligated to cover the insured
indemnitee. Id. at 748. Here, however, the time-charter contract specifically
excludes from coverage risks assumed by Baker. Thus, Klepac does not present
the exact situation at issue here.
Although there is no case which presents a contract with the precise
limiting language at issue here, Article XI of the time-charter contract expressly
limits Tidewater’s obligation to designate Baker as an “additional assured” to

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“the risks assumed by OWNER [Tidewater] in this Charter.” Tidewater’s
insurance policy, in turn, limits Baker’s status as an “additional assured” to
when Tidewater “is obligated by virtue of a contract or agreement” to designate
Baker as an “additional assured.” Furthermore, the time-charter specifically
excludes risks assumed by Baker from Tidewater’s insurance coverage. Here,
the injury was to Seth, a Baker employee. Under the parties’
reciprocal-indemnity agreement, Baker, not Tidewater, assumed the risk of
injury to Baker employees. Because Tidewater did not assume the risk of injury
to Seth, Baker is not an “additional assured” to Tidewater’s insurance for Seth’s
injuries. Thus, the district court did not err in holding that the insurance
policies need not be exhausted before Baker’s indemnification obligation began.
Baker also argues that Tidewater’s insurers, under the policies discussed
in the foregoing analysis, were obligated to defend Baker against the claims
made by Seth against Baker.9 In determining whether an insurer had a duty
to defend, we look to the face of the pleadings. Snug Harbor, Ltd. v. Zurich Ins.,
968 F.2d 538, 545–46 (5th Cir. 1992). “The insurer is under a legal duty to
defend if, and only if, the petition alleges facts construing a cause of action
within the coverage of the policy.” Id. (citation omitted). An insurer’s duty to
defend is greater than its duty to provide coverage. Landry v. Oceanic
Contractors, Inc.,731 F.2d 299, 305 n.2 (5th Cir. 1984).

9
It appears that the district court never ruled explicitly on the issue of whether Tidewater’s insurers
were obligated to defend Baker in Seth’s suit. However, this court has held that “[i]f a trial judge fails to
make a specific finding on a particular fact, the reviewing court may assume that the court impliedly made
a finding consistent with its general holding so long as the implied finding is supported by the evidence.”
Century Marine Inc. v. United States, 153 F.3d 225, 231 (5th Cir. 1998). The record supports the district
court’s rejection of the notion that Tidewater’s insurers were obligated to defend Baker because it did not
qualify as an additional assured under the policy.

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Because the pleadings stated only a claim by one of Baker’s employees, a
risk expressly assumed by Baker in the time-charter contract, there was no
cause of action plausibly within the coverage of the policy. Because Baker could
be entitled to a defense under the policy only for covered risks assumed by
Tidewater (i.e., suits brought by Tidewater employees against Baker),
Tidewater’s insurer was not obligated to defend Baker in this suit.
IV.
A.
Appellants also present arguments concerning the liability attributed to
Baker and Tidewater, respectively. Seth argues that Tidewater’s conduct in
breaking the Republic Tide’s starboard-stern mooring line without warning was
a superseding cause of Seth’s injuries, and thus Tidewater should be entirely
liable. “The issues of proximate causation and superseding cause involve
application of law to fact, which is left to the factfinder, subject to limited
review.” Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 840–41 (1996).
The district court concluded that Tidewater’s conduct was part of a series
of actions that caused Seth’s injuries and held that “no one party was solely
responsible for the dangerous conditions that resulted in the grave harm that
befell Seth Becker.”
In order to determine what constitutes a superseding cause, this court has
stated that:
The fact that an intervening act of a third person is negligent in
itself or is done in a negligent manner does not make it a
superseding cause of harm to another which the actor’s negligent
conduct is a substantial factor in bringing about, if
(a) the actor at the time of his negligent conduct should have
realized that a third person might so act, or

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(b) a reasonable man knowing the situation existing when the
act of the third person was done would not regard it as highly
extraordinary that the third person had so acted, or
(c) the intervening act is a normal consequence of a situation
created by the actor’s conduct and the manner in which it is done is
not extraordinarily negligent.

Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646, 652 (5th Cir. 1992)
(quoting Nunley v. M/V DAUNTLESS COLOCOTRONIS, 727 F.2d 455, 464–65
(5th Cir. 1984) (en banc) (citing Restatement (Second) of Torts § 447)).
The district court found that Tidewater’s captain snapped the
starboard-stern mooring line to prevent impact with the rig. The captain’s
failure to warn anyone aboard the rig that he was about to do this was negligent.
However, the captain’s actions are excused from being a superceding cause of
Seth’s injury. The captain’s actions were not highly extraordinary considering
the whole of the circumstances. Because of the defective Coflex hose and blue
shoe system, the captain could not disconnect the hose from the rig and was thus
forced to snap the line to prevent impact with the rig. The captain’s actions were
not “so extraordinary that a reasonably prudent person could not have foreseen
[their] occurrence.” Tidewater Marine, Inc. v. Sanco Int’l., Inc., 113 F. Supp. 2d
987, 999 (E. D. La. 2000). The district court did not clearly err in determining
that Tidewater was not the superseding cause of the incident.
B.
Baker and Seth also argue that the district court erred in determining that
most of Baker’s negligent acts were committed while Baker was acting within
its role as time-charterer of the boat, and not as Seth’s employer. The court’s
determination that Baker’s acts fell within its duty as time-charterer is reviewed

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de novo. 10 Cf. Canal Barge Co., Inc. v. Torco Oil Co., 220 F.3d 370, 376 (5th Cir.
2000) (holding that whether a legal duty is owed is a question of law).
Section 905(a) of the LHWCA precludes an employee from suing his
employer in tort. 33 U.S.C. § 905(a). Consequently, Baker cannot be held liable
to Seth in its capacity as his employer. It can, however, be held liable under
section 905(b) if at fault in its capacity as the time-charterer of the Republic
Tide. Kerr-McGee Corp. v. Ma-Ju Marine Servs., Inc., 830 F.2d. 1332, 1339 (5th
Cir. 1987). Section 905(b) of the LHWCA provides the exclusive remedy for a
longshoreman against a vessel. The Kerr-McGee court stated that a
time-charterer can be liable under section 905(b) if the harm caused is “within
the charterer’s traditional sphere of control and responsibility or has been
transferred thereto by the clear language of the charter agreement.” 830 F.2d.
at 1343. A defendant time-charterer who is also the plaintiff’s employer owes
the plaintiff duties both as an employer and as a time-charterer. Moore v.
Phillips Petroleum Co., 912 F.2d 789, 791 (5th Cir. 1990). The two duties are
separately owed and do not affect each other. Id.
Under the traditional role of time-charterer, the time-charterer is
expressly responsible for directing the commercial activity of the vessel,
determining the ship’s routes, destinations, timing of the mission, and the
designation of cargo. Kerr-McGee, 830 F.2d at 1339. The vessel owner, on the
other hand, remains responsible for the seaworthiness of the vessel, dangerous
conditions on board, navigational errors by the pilot and negligence by the crew,

10
Although apportionment of fault is traditionally a fact question, Flowers Transp., Inc. v. M/V
Peanut Hollinger, 664 F.2d 112, 113 (5th Cir. 1981), the district court’s characterization of Baker’s actions
as those of time-charterer versus employer is a question of law because it concerns the duties owed as
time-charterer under existing precedent and the language of the contract.

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and a reasonably safe means of access for those boarding or leaving the vessel.
Moore, 912 F.2d at 792. Here, as noted by the district court, the time-charter
contract shifted additional responsibilities to Baker as time-charterer:

In this case, the Charter Agreement also shifted other
responsibilities to Baker. . . . Baker was responsible for and
retained control over the equipment it installed on the vessel. The
equipment was installed to assist Baker’s performance of specialized
services on oil and gas wells. As such, the Coflex hose, Coflex hose
reel assembly, blue shoe and pumping operations associated with
this equipment were within Baker’s exclusive control under the
Charter.

Becker v. Tidewater, Inc., No. 99-1198, 2007 WL 3231655, *7 (W.D. La. Nov. 14,
2007).
The district court identified several causes of Seth’s harm. It labeled the
following causes as being within Baker’s role as time-charterer: (1) proceeding
with gravel-packing operations while unanchored; (2) failing to notify Falcon, the
owner and operator of the oil rig, that the Republic Tide was unanchored; (3)
negligently modifying the Coflex hose system; (4) failing to test, clean, or
properly maintain the Coflex hose system; (5) failing to properly train Baker
employees how to operate the Coflex hose system; (6) failing to warn Seth of the
gravity of the unfolding situation on the oil rig and the dangers of the Coflex
hose and blue shoe system; (7) negligently designing the blue shoe; and (8)
failing to test the blue shoe.
The district court erred in determining that some of the Baker’s acts were
committed in its role as time-charterer rather than employer. Proceeding with
gravel-packing operations while unanchored was correctly characterized as
time-charterer negligence. See Kerr-McGee, 830 F.2d at 1341 (“The

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time-charterer directs where and when the vessel will travel, so if it forces it out
in hurricane weather or similarly treacherous conditions, it may be liable under
section 5(b).”). Directing the Republic Tide to remain in position, while
unanchored, for the duration of the gravel-packing job and failing to notify
Falcon that the Republic Tide was unanchored are also part of the
time-charterer’s traditional responsibilities, namely “directing the commercial
activities of the vessel.”
Negligently modifying the Coflex hose system; failing to test, clean, or
properly maintain the Coflex hose system; negligently designing the blue shoe;
and failing to test the blue shoe were all time-charterer negligence under the
time-charter contract. The court in Kerr-McGee specified that a time-charterer
is also liable when a responsibility “has been transferred [to the time-charterer]
by the clear language of the charter agreement” 830 F.2d at 1343. Here, Article
VIII of the time-charter contract specified that Baker could install equipment on
the Republic Tide and that “[a]ll equipment installed by [Baker] shall remain its
property . . . .” Baker thus retained legal control and responsibility and, as the
district court found, actual control of its equipment aboard the Republic Tide.
These were time-charterer responsibilities allocated to Baker specifically by the
time-charter contract. Baker’s negligence causing the equipment’s failure was
time-charterer negligence.
However, failing to properly train Baker employees how to operate the
Coflex hose system and failing to warn Seth of the dangers of the Coflex hose
and blue shoe system should not have been characterized by the district court
as time-charterer negligence. See Kerr-McGee, 830 F.2d at 1342 (holding that
providing a safe place to work is a duty imposed on a defendant in its capacity

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as employer and not time-charterer). Nothing in the case law defining a
time-charterer’s traditional responsibilities or in the time-charter contract leads
to the conclusion that training and warning its employees is encompassed by
Baker’s role as time-charterer. These actions were taken by Baker in its role as
employer. Because the district court should not have held that Baker’s failure
to train its employees and its failure to warn Seth of the gravity of the situation
were time-charterer negligence, it should not have considered these actions
when apportioning LHWCA liability between Baker and Tidewater. We remand
this matter to the district court for the purpose of re-evaluating the
apportionment of fault while considering only those acts of negligence that Baker
committed as time-charterer in accordance with this opinion.11
V.
Finally, Baker appeals the district court’s holding that the indemnity
provision permits Tidewater to recover the attorneys’ fees that it incurred in
establishing its right to indemnity. This is a question of contractual
interpretation, reviewed de novo. Dow Chem. Co. v. M/V ROBERTA TABOR,
815 F.2d 1037, 1042 (5th Cir. 1987).

11
We acknowledge that, as a practical matter, the fault allocation between Baker and Tidewater does
not affect Baker’s ultimate liability, because Baker must indemnify Tidewater for all of Seth’s damages
under the reciprocal indemnity agreement. However, because the plaintiff is a party to this appeal, correct
apportionment may be necessary in order to determine Seth’s rights against each defendant, without regard
to the contractual indemnity agreement between them. See Jamison v. Ellwood Consol. Water Co. 420 F.2d
787, 789 (3d Cir. 1970) (“[A] valid indemnity provision in no way affects the victim’s right of recovery.
Rather, it merely determines who among the parties to the contract shall bear the ultimate cost of the victim’s
claim.”). Although Seth’s actual recovery from the parties may be affected by the Mary Carter agreement
he entered into with Baker, we have not been presented with any arguments from the parties concerning the
effect of the agreement on apportionment and we do not address the issue herein.

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Although a general indemnity provision typically includes recovery of
attorneys’ fees incurred in defending against a claim covered by the indemnity
provision, “the indemnitee enjoys no right to recover its legal fees incurred in
establishing its right to indemnification.” Id. at 1046 (citing Weathersby, 752
F.2d at 959). Although there is some authority for the proposition that
attorneys’ fees incurred in enforcing a contractual right of indemnity may be
recoverable if the indemnity provision specifically anticipates their
recoverability, the agreement here does not specifically anticipate that attorneys’
fees incurred in enforcing the indemnity provision will be recoverable. See Royal
Exch. Assurance Co. v. M/V GULF FLEET NO. 54, No. 86-1367, 1991 WL
99406, at *2 (E.D. La. May 31, 1991) (unreported) (holding that indemnity
provision which provided for reimbursement “for any and all necessary expenses,
attorney’s fees, and costs incurred in the non-judicial or judicial enforcement of
any part of the indemnity agreements” specifically allowed for recovery of fees
incurred in enforcing indemnity provision). Here the agreement only provides
that “[Baker] shall protect, defend, indemnify and hold harmless [Tidewater]
from and against all claims, suits, losses, liabilities, expenses, demands, costs
(including reasonable attorney’s fees) and/or damages as a result of such illness,
injury or death.” This provision is a general indemnity clause, and does not
specifically provide for recovery of attorneys’ fees in enforcing the indemnity
provision. Thus, the prohibition barring the recovery of legal fees incurred in
establishing a right to indemnification applies to the instant contract. Dow
Chem., 815 F.2d at 1046.
The district court erred in holding that the indemnity agreement permits
Tidewater to recover the attorneys’ fees that it incurred in establishing its right

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to indemnity. This matter is remanded for the purpose of calculating and
awarding Tidewater only the attorneys’ fees that Tidewater incurred in
defending against Seth’s tort action.
VI.
For the foregoing reasons, the judgment of the district court is AFFIRMED
in part and REVERSED in part, and REMANDED for the limited purposes of
(1) calculating, and awarding Tidewater, the attorneys’ fees that Tidewater
incurred in defending against Seth’s tort action and excluding any fees incurred
in enforcing its right to indemnity and (2) apportioning liability while
considering only those acts of negligence that Baker committed as time-charterer
and not those it committed as employer.

25