Revised January 31, 2002
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
FALCON DRILLING COMPANY, INC.; ET AL.,
R & B FALCON DRILLING USA, INC.,
FRANK'S CASING CREW & RENTAL TOOLS, INC.,
Third Party Defendant-
Appeal from the United States District Court
for the Eastern District of Louisiana
January 16, 2002
Before HIGGINBOTHAM and DeMOSS, Circuit Judges,
and FISH,(1) District Judge.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Without prejudice to the Petition for Rehearing
En Banc of Third Party Defendant-Appellant Franks Casing Crew &
Rental Tools, Inc., we substitute the revised opinions that follow in place
of the prior opinions, reported at Demette v. Falcon Drilling Company,
Inc., 253 F.3d 840 (5th Cir. 2001). The parties may file on or before
January 30, 2002 any supplemental briefs in support of or opposition to
the petition for rehearing
en banc in light of these revised opinions.
Appellee R & B Falcon Drilling USA, Inc.
sued appellant Frank's Casing & Crew Rental Tools, Inc. for indemnity
when a Frank's employee sued Falcon under the Longshore and Harbor Workers'
Compensation Act(2) for injury sustained
while working on a Falcon jack-up rig in the Gulf of Mexico. Frank's argued
that the indemnity agreement was voided by LHWCA or by Louisiana law. The
district court held that the indemnity agreement was valid.
Determining the validity of the indemnity
agreement requires a foray into the federal statutes defining the law applicable
to offshore drilling on jack-up rigs. We first consider the application
of the Outer Continental Shelf Lands Act ("OCSLA")(3)
and then construe the LHWCA. We conclude that the OCSLA applies to a rig
jacked-up over the outer continental shelf; that state law does not apply
to this case by operation of the OCSLA, but the LHWCA does; and that the
LHWCA does not invalidate the indemnity agreement. We affirm.
Frank's Casing & Crew Rental Tools, Inc.
and R & B Falcon Drilling USA, Inc. are both contractors with Union
Oil Company of California for Unocal's offshore drilling operations. Frank's
provides casing services. "Casing" is an activity performed during the
drilling for oil, whether onshore or offshore; it involves the "welding
together and hammering of pipe into the subsurface of the earth to create
a permanent construction."(4)
Frank's and Unocal signed a "Services and
Drilling Master Contract." Under the Master Contract, Frank's provided
casing services to Unocal at offshore drilling sites. Under the Master
Contract, Unocal agreed to defend and indemnify Frank's against any liabilities
Frank's owes to Unocal, and Frank's agreed to defend and indemnify Unocal
and all of its contractors and subcontractors against liabilities they
may owe to Frank's. Falcon was a contractor of Unocal.
Falcon provides movable rigs from which casing
crews drill offshore wells. Falcon has an "Offshore Daywork Drilling Contract"
with Unocal. This contract provided Unocal with access to all of Falcon's
vessels for offshore drilling. Falcon provided Unocal the Fal-Rig #85,
a jack-up drilling rig. A jack-up drilling rig is a floating rig with legs
that can be lowered into the seabed. Once the legs are secured in the seabed,
the rig can be "jacked-up" out of the water to create a drilling platform.
The process can be reversed, and a jack-up rig can be towed to new sites.(5)
Pursuant to the Master Contract between Frank's
and Unocal, plaintiff Kermit Demette, an employee of Frank's, worked aboard
the Fal-Rig #85. Demette was injured while performing casing work as a
welder on the Fal-Rig #85. He was part of a "hammer job," which involves
a casing crew welding together sections of pipe end-to-end as the pipe
is driven into the seabed by a large hammer. While Demette was working
at the base of the derrick where the pipe was being driven, a metal retaining
ring used to secure hoses fell from the derrick, striking him on the head.
At the time of Demette's injury, the Fal-Rig #85 was jacked up. Its legs
rested on the outer continental shelf of the United States beyond the territorial
waters of Louisiana.(6)
Demette sued Falcon for his injuries. Falcon,
pursuant to the Offshore Daywork Drilling Contract, filed a third-party
complaint against Unocal for defense and indemnity. Unocal voluntarily
assumed the defense of Falcon. Falcon then filed a third-party complaint
against Frank's, seeking defense and indemnity pursuant to the Master Contract.
The district court granted summary judgment
to Falcon on the issues of whether Frank's owed defense and indemnity to
Falcon. Frank's agreed to fund a settlement with Demette and to pay Falcon's
defense costs, but made a full reservation of appeal rights. A consent
judgment was entered pursuant to this agreement.
Frank's appeals the summary judgment ruling
on indemnity and defense.
The Outer Continental Shelf Lands Act(7)
provides comprehensive choice-of-law rules and federal regulation to a
wide range of activity occurring beyond the territorial waters of the states
on the outer continental shelf of the United States. Relevant to this case,
it applies federal law to certain structures and devices on the OCS, incorporates
state law into federal law on the OCS, and applies the LHWCA to certain
injuries sustained by persons working on the OCS.
In this case, the parties dispute whether
Louisiana state law governs the Master Contract and whether the OCSLA makes
the Longshore and Harbor Workers' Compensation Act(8)
applicable to Demette's injuries. First, we must determine whether the
injury occurred on an OCSLA situs; if so, we then have two inquiries: we
must determine whether OCSLA makes state law applicable; and we must determine
if the injured party's status makes the LHWCA applicable under OCSLA. We
begin with a review of the three OCSLA inquiries we must make in this case.
A. Section 1333(a)(1): Situs Test
Section 1333(a)(1) describes the reach of
the OCSLA and applies federal law within this scope. It states that the
laws and jurisdiction of the United States extend
to the subsoil and seabed of the [OCS] and
to all artificial islands, and all installations and other devices permanently
or temporarily attached to the seabed, which may be erected thereon for
the purpose of exporing [sic] for, developing, or producing resources therefrom,
or any such installation or other device (other than a ship or vessel)
for the purpose of transporting such resources, to the same extent as if
the [OCS] were an area of exclusive Federal jurisdiction located within
The Supreme Court and the Fifth Circuit have
held that this section creates a "situs" requirement for the application
of other sections of the OCSLA, including sections 1333(a)(2) and 1333(b).(10)
Neither the Supreme Court nor this court has parsed the precise language
of the statute to specify the exact contours of the situs test it establishes.(11)
We are called upon to do so today.
We rely on the text of the statute. A close
inspection of section 1333(a)(1) reveals that it applies to two primary
sets of subjects: "to the subsoil and seabed of the [OCS]"; and "to all
artificial islands, and all installations and other devices permanently
or temporarily attached to the seabed." This latter category is further
divided into two categories: those artificial islands, installations, or
devices "erected" on the OCS "for the purpose of exploring for, developing,
or producing resources" from the OCS, and those "other than a ship or vessel"
whose purpose is "transporting such resources."(12)
Thus, the OCSLA draws important distinctions
between the two categories of artificial islands, installations, and other
devices. Each category is defined by the purpose of the device--the former,
extraction of resources; the latter, transportation of resources. The former
also includes the phrase, "which may be erected [on the OCS]," while the
latter does not. Conversely, the latter contains the phrase, "other than
a ship or vessel," while the former does not.
We incorporate these distinctions into the
The OCSLA applies to all of the following
(1) the subsoil and seabed of the OCS;
(2) any artificial island, installation, or
other device if
(a) it is permanently or temporarily attached
to the seabed of the OCS, and
(b) it has been erected on the seabed of the
(c) its presence on the OCS is to explore
for, develop, or produce resources from the OCS;
(3) any artificial island, installation, or
other device if
(a) it is permanently or temporarily attached
to the seabed of the OCS, and
(b) it is not a ship or vessel, and
(c) its presence on the OCS is to transport
resources from the OCS.
B. Section 1333(a)(2): Incorporation of
If the situs test is met, section 1333(a)(2)
provides that "[t]o the extent that they are applicable and not inconsistent
with this subchapter or with other Federal laws . . . the civil and criminal
laws of each adjacent State . . . are hereby declared to be the law of
the United States [on OCS situses as defined by section 1333(a)(1)]." Sections
1333(a)(1) and 1333(a)(2) together provide a rule for the incorporation
of state law as surrogate federal law governing claims arising out of activity
on the OCS. This court has articulated the rule in a three-part test announced
in Union Texas Petroleum Corp. v. PLT Engineering ("PLT"):(13)
[For state law to govern,] (1) The controversy
must arise on a situs covered by OCSLA (i.e., the subsoil, seabed, or artificial
structure 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.(14)
For disputes arising out of contracts--including
indemnity contracts for offshore drilling--the courts of this circuit have
held that if the contract is a maritime contract, federal maritime law
applies of its own force, and state law does not apply.(15)
C. Section 1333(b): Status Test
Section 1333(b) extends the LHWCA to non-seamen
employed on the OCS. Specifically, it creates the following "status" test:
the LHWCA applies to injuries "occurring as a result of operations conducted
on the [OCS] for the purpose of exploring for, developing, removing, or
transporting by pipeline the natural resources . . . of the [OCS]."(16)
In order for the LHWCA to apply by virtue of section 1333(b), notwithstanding
any application of the LHWCA of its own force, the injured worker must
satisfy the "status" requirement of section 1333(b) as well as the situs
requirement of section 1333(a)(1).(17)
A. Situs Test
Here, the situs requirement of section 1333(a)(1)
is met. The Fal-Rig #85 was jacked-up over the OCS at the time of Demette's
injury. It therefore falls into the second category of OCSLA situses: it
was a device temporarily attached to the seabed, which was erected on the
OCS for the purpose of drilling for oil.(18)
Frank's argues that since the Fal-Rig #85
is a vessel,(19) the OCSLA cannot apply
to this case. Frank's argument is that the qualifier "other than a ship
or vessel" in section 1333(a)(1) precludes the application of the OCSLA.
This argument has no merit. As discussed above, the statute twice refers
to artificial islands, installations, and other devices permanently or
temporarily attached to the seabed. Once it inserts the qualifier "other
than a ship or vessel"; once it does not. We give effect to the different
wording of the two phrases by reading them differently.(20)
This result is consistent with the precedent
of this circuit. As we noted in Hodgen v. Forest Oil Corp.,(21)
our holding in Domingue v. Ocean Drilling and Exploration Co.(22)
implicitly supports the holding that a jacked-up rig is an OCSLA situs.
Domingue applied state law to an indemnity agreement regarding an
injury on a jacked-up drilling rig, but failed to explicitly address the
situs requirement of the OCSLA, focusing instead on the question of whether
state law applied.(23) Since the incident
occurred on the OCS beyond the territorial waters of Louisiana, the only
way state law could have operated was by incorporation into federal law
The amicus supporting Frank's quotes Longmire
v. Sea Drilling Corp.,(25) which states:
"The OCSLA covers fixed platform workers, while floating rig workers, even
those whose tasks are essentially identical to the tasks performed by fixed
platform workers, are treated differently."(26)
This out-of-context statement cannot carry Frank's case. In the context
of the facts of the case, this statement addresses the fact that the employee
was injured on a tender working alongside a fixed platform.(27)
Tenders are vessels (in Longmire it was a converted warship) that
are often anchored next to drilling platforms to service the platforms
and ferry workers to and from the shore. Longmire does not involve
a floating rig, let alone a jack-up rig; the "floating" rig the opinion
refers to is this tender, which was attached to the OCS only by an anchor.
In Parks v. Dowell Division of Dow Chemical Corp.,(28)
we explained Longmire, noting that tenders are not extensions of
drilling rigs fixed to the seabed, and the OCSLA does not apply to them.(29)
Longmire's conclusion that a tender is not an OCSLA situs is not
relevant to the facts of this case.(30)
In sum, this case arises out of an injury
on an OCSLA situs. Since the section 1333(a)(1) requirement is satisfied,
the OCSLA applies to this case.
B. Incorporation of State Law
The next logical step is to consider whether
Louisiana law applies as a surrogate to federal law under section 1333(a)(2).
As stated above, this circuit applies the PLT test to determine
the application of state law. The second prong of the PLT test is
that maritime law does not apply of its own force. Because maritime law
applies of its own force, Louisiana law does not apply in this case.(31)
Maritime law applies to the Master Contract
between Unocal and Frank's if the contract is a maritime contract. The
Master Contract stated that Frank's would "provide casing installation
services." The parties indemnified each other against claims brought by
their employees. The contract does not explicitly mention any vessels,
and it is unclear whether it contemplated work exclusively offshore or
work both offshore and onshore.
Determining whether a contract relating to
offshore drilling is maritime is often a perplexing affair.(32)
This circuit utilizes the two-step test of Davis & Sons, Inc. v.
Gulf Oil Corp.,(33) to determine whether
a contract is maritime. We consider, first, the contract's "historical
treatment in the jurisprudence" and, second, the specific facts of the
case.(34) For some categories of contracts,
the historical treatment is sufficiently clear that the fact-specific inquiry
becomes unimportant.(35) This is such a
This court has held that indemnity provisions
in contracts to provide offshore casing services are maritime.(36)
Even a contract for offshore drilling services that does not mention any
vessel is maritime if its execution requires the use of vessels.(37)
This is true for contracts that may also involve obligations performed
on land.(38) Thus, circuit precedent virtually
compels the conclusion that this is a maritime contract.
The Davis factors confirm this result.
Davis lists six factors to consider in determining whether the facts
of the case lend the contract a sufficiently "salty flavor"(39)
for a court to deem it maritime:
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 do work aboard
a vessel in navigable waters[?]
4) to what extent did the work being done
relate to the mission of the vessel?
5) what was the principal work of the injured
6) what work was the injured worker actually
doing at the time of the injury?(40)
In this case, Demette's work order provided
for a hammer operator, a hammer mechanic, and four welders, including Demette,
to drive and weld 416 feet of pipe from the Fal-rig #85 while the rig was
jacked-up; this crew actually performed the hammer job the work order described;
Demette was working on a vessel over navigable waters; casing is an integral
part of drilling, which is the primary purpose of the vessel; and Demette's
principal work was as a welder performing casing work; and Demette was
performing casing services at the time of the accident. Thus, all six factors
point to the same conclusion: the contract and the injury that invoked
it were maritime in nature.
C. Status Test
Having concluded that the OCSLA applies, but
does not incorporate state law, the only remaining issue under the OCSLA
is whether the LHWCA applies to Demette by virtue of section 1333(b) of
the OCSLA. It does. Demette was injured while doing casing work. Casing
work is the model case of injuries "occurring as a result of operations
conducted on the [OCS] for the purpose of exploring for, developing, removing,
or transporting by pipeline the natural resources . . . of the [OCS]."(41)
We thus conclude that the injury occurred
on an OCSLA situs, that Louisiana law does not apply, and that the LHWCA
applies to this case by virtue of section 1333(b). We now address the consequences
of our conclusion that section 1333(b) applies the LHWCA to this case.
The LHWCA provides the exclusive remedies
for injuries to employees injured while subject to the LHWCA.(42)
It creates for such employees an action against the vessel (including its
owner) on which the employee was working when injured.(43)
Section 905(b) of the LHWCA bars employers from indemnifying the vessel
from LHWCA liability.(44) However, if the
injured employee is entitled to the benefits of the LHWCA "by virtue of"
section 1333(b) of the OCSLA, then section 905(c) of the LHWCA states that
"any reciprocal indemnity provision" between the vessel and the employer
Central to this case is the meaning of the
phrase "by virtue of." Frank's argues that Demette is directly covered
by the LHWCA,(46) and therefore section
905(b) bars the indemnity agreement between Falcon and Frank's. Frank's
reads section 905(c) to apply only to persons entitled to receive LHWCA
benefits exclusively "by virtue of" the OCSLA. We acknowledge that
this interpretation would not do violence to the text of the statute.
Ordinarily, however, we should give the words
of statutes their plain meaning. The most obvious meaning of "by virtue
of section 1333" is simply that the worker is covered by section 1333.
For example, it is perfectly sensible to say, "Demette is eligible to receive
LHWCA benefits by virtue of section 1333 and also by virtue of the LHWCA
itself." This sentence makes sense because we understand that "by virtue
of" does not imply exclusivity. The adverbs "exclusively" or "solely" would
have indicated the meaning Frank's advocates, but those words are absent
from the statute.
We might question our plain meaning interpretation
of "by virtue of" if Frank's identified something in the context of the
statute that indicated that those words have a narrower, more technical
meaning. But there is none. Further, what little legislative history section
905(c) has supports our reading of the text. Congress enacted section 905(c)
as part of the Longshore and Harbor Workers' Compensation Act Amendments
of 1984.(47) The House Conference Report(48)
discusses language in the Senate version of the bill; this language became
section 905(c). The Conference Report stated that "the Senate bill provides
an exemption to the Longshore Act's current proscription of indemnity agreements
under section [905(b)] of the Act. . . . The bill would legalize those
indemnity agreements insofar as they apply to the Outer Continental Shelf."
Thus, the Conference Report treats section 905(c)'s limitation to persons
entitled to benefits "by virtue of section 1333" as applying to all persons
connected to the OCS, as defined by the OCSLA, without any reference to
any exception for persons qualifying directly under the LHWCA.
Frank's argues that construing section 1333(b)
to apply to workers already directly covered by the LHWCA causes some anomalies.
While this may be so, this is a result of the existence of section 905(c),
not of any interpretation of section 905(c). Any line we draw will leave
some indemnity agreements valid and others invalid. A line between LHWCA
employees on permanent platforms and all other LHWCA employees is not any
more arbitrary than a line between LHWCA employees on permanent or temporary
platforms and all other LHWCA employees. In fact, as Judge Sear cogently
argued in Campbell v. Offshore Pipeline, Inc.,(49)
interpreting section 905(c) to include employees who are covered by virtue
of both the LHWCA and OCSLA eliminates some anomalies.(50)
Given that section 1333(b) of the OCSLA applies
to Demette, the plain language of section 905(c) dictates that the indemnity
contract, if reciprocal, is valid, notwithstanding section 905(b).(51)
Since Frank's and Unocal each indemnified the other, the indemnification
is reciprocal and therefore valid.(52)
Frank's finally argues that even if section
905(c) removes the section 905(b) prohibition, Louisiana law invalidates
the indemnity agreement. As we have already concluded, however, Louisiana
law does not apply to this contract.V
In sum, the OCSLA applies to this case; Louisiana
law does not apply as surrogate federal law under the OCSLA; and because
Demette is subject to the LHWCA by virtue of the OCSLA, the indemnity agreement
between Unocal and Frank's is valid.
In reaching this conclusion, we acknowledge
the dissent's puzzlement at the conclusion that a jack-up rig is a vessel
and that maritime law can apply on an OCSLA situs. But we disagree that
en banc reversal of established circuit precedent is in order. Although
current law suffers from the inconsistencies the dissent complains of,
changing the law of this circuit may not improve the situation.(53)
Instead, the source of the dissent's vexation is the OCSLA itself, a statute
that by introducing the law of terra firma to a seaward realm requires
unavoidably arbitrary line-drawing between the application of terrestrial
law and the law of the sea.(54)
We AFFIRM the district court's grant of summary
judgment against Frank's.
DeMOSS, Circuit Judge, dissenting:
Because the panel majority arrives at their
decision in this case without consideration of three Supreme Court cases
and two statutory amendments which I think require a different conclusion,
I respectfully dissent.
Rodrigue -- The First Supreme Court
On August 7, 1953, the United States Congress
passed the Outer Continental Shelf Lands Act (hereinafter "OCSLA"), which
extended federal law (and adjacent state law) "to the sub-soil and seabed
of the Outer Continental Shelf and to all artificial islands and fixed
structures which may be erected thereon for the purpose of exploring for,
developing, removing, and transporting resources therefrom." See
§ 4(a)(1), 67 Stat. 642 (emphasis added).(55)
The extension of federal law contemplated by this provision was to be "to
the same extent as if the Outer Continental Shelf were an area of exclusive
federal jurisdiction located within a state." Id. The subsequent
sub-paragraph of this same section provided that the civil and criminal
laws of each adjacent state "are hereby declared to be the law of the United
States for that portion of the sub-soil 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."(56)
This Circuit considered the significance of
these statutory provisions in two cases, Dore v. Link Belt Co.,
391 F.2d 671 (5th Cir. 1968), and Rodrigue v. Aetna Casualty &
Surety Co., 395 F.2d 216 (5th Cir. 1968). Each of these cases involved
the death of a worker which occurred on a drilling rig on a fixed platform
on the Outer Continental Shelf. In each case, the plaintiff sought relief
under Louisiana state law, which they contended was made applicable by
OCSLA. The defendants contended that relief could only be made under the
Death on the High Seas Act ("DOHSA"). In holding that relief was available
only under DOHSA, the Fifth Circuit stated:
We think that a consideration of both intrinsic
and extrinsic factors requires the conclusion that it was the intention
of Congress that (a) this occurrence be governed by Federal, not State,
law, and (b) that the Federal law thereby promulgated would be the pervasive
maritime law of the United States. In connection with the latter phase
-- the choice by Congress of maritime law -- it is again important to keep
in mind that we are in an area in which Congress has an almost unlimited
power to determine what standards shall comprise the Federal law.
Dore, 391 F.2d at 675 (quoting
Pure Oil Co. v. Snipes, 293 F.2d 60, 64 (5th Cir. 1961)).
The Supreme Court granted certiorari in both
cases, which were argued together. In an opinion covering both cases,
v. Aetna Casualty & Surety Co., 89 S. Ct. 1835 (1969), the
Supreme Court in an unanimous decision written by Justice White, reversed
the decisions of the Fifth Circuit and stated:
In light of the principles of traditional
admiralty law, the Seas Act [DOHSA], and the Lands Act [OCSLA], we hold
that petitioner's remedy is under the Lands Act and Louisiana law. The
Lands Act makes it clear that federal law, supplemented by state law of
the adjacent State, is to be applied to these artificial islands as though
they were federal enclaves in an upland State. This approach was deliberately
taken in lieu of treating the structures as vessels, to which admiralty
law supplemented by the law of the jurisdiction of the vessel's owner would
apply.... Since the Seas Act does not apply of its own force under admiralty
principles, and since the Lands Act deliberately eschewed the application
of admiralty principles to these novel structures, Louisiana law is not
ousted by the Seas Act, and under the Lands Act it is made applicable.
Id. at 1837. In a very comprehensive
discussion of the legislative history of OCSLA, the Supreme Court went
on to make the following comments:
1. "Even if the admiralty law would have applied
to the deaths occurring in these cases under traditional principles, the
legislative history shows that Congress did not intend that result. First,
Congress assumed that the admiralty law would not apply unless Congress
made it apply, and then Congress decided not to make it apply. The legislative
history of the Lands Act makes it clear that these structures were to be
treated as island or as federal enclaves within a landlocked State, not
as vessels." Id. at 1840.
2. "Careful scrutiny of the hearings which
were the basis for eliminating from the Lands Act the treatment of artificial
islands as vessels convinces us that the motivation for this change, together
with the adoption of state law as surrogate federal law, was the view that
maritime law was inapposite to these fixed structures." Id.
3. "The committee was aware that it had the
power to treat activity on these artificial islands as though it occurred
aboard ship .... And the very decision to do so in the initial bill recognized
that if it were not adopted explicitly, maritime simply would not apply
to these stationary structures...." Id. at 1841 (citations
4. "[T]he special relationship between the
men working on these artificial islands and the adjacent shore to which
they commute to visit their families was also recognized by dropping the
treatment of these structures as 'vessels' and instead, over the objection
of the administration that these islands were not really located within
a State, the bill was amended to treat them 'as if (they) were (in) an
area of exclusive Federal jurisdiction located within a State.'" Id.
In light of the Supreme Court decision in
Rodrigue and the absence of any later decision by the Supreme
Court changing any of its conclusions in Rodrigue, I would
submit that the following principles are applicable to the case now before
1. Structures placed on the Outer Continental
Shelf "for the purpose of exploring for, developing, removing, and transmitting
resources therefrom," are not vessels;
2. Congress decided that maritime law does
not apply to these structures; and
3. The laws of the State of Louisiana will
apply to activities on these structures to the extent that such state laws
are not inconsistent with other federal laws.
The First Statutory Amendment
In 1978, Congress adopted comprehensive amendments
to OCSLA. See Pub. L. 95-372 (1978). Section 203(a) of this statutory
amendment reads as follows:
SEC. 203. (a) Section 4(a)(1) of the Outer
Continental Shelf Lands Act (43 U.S.C. 1333(a)(1) is amended --
(1) by striking out "and fixed structures"
and inserting in lieu thereof ", and all installations and other devices
permanently or temporarily attached to the seabed,"; and
(2) by striking out "removing, and transporting
resources therefrom" and inserting in lieu thereof "or producing resources
therefrom, or any such installation or other device (other than a ship
or vessel) for the purpose of transporting such resources."
The report of the Conference Committee regarding
the amendment reads as follows:
Section 203 -- Laws Applicable to the Outer
Both the Senate bill and the House amendment
amend section 4(A)(1) of the OCS Act of 1953 by changing the term "fixed
structures" to "and all installations and other devices permanently or
temporarily attached to the seabed" and making other technical changes.
The Conference Report retains this language.
The intent of the managers in amending section
4(A) of the 1953 OCS Act is technical and perfecting and is meant to restate
and clarify and not change existing law. Under the Conference Report language,
federal law is to be applicable to all activities on all devices in contact
with the seabed for exploration, development, and production.
H.R. Conf. Rep. No. 95-1474 (1978). The House
Committee Report No. 95-590 on this legislation states the following in
the section-by-section analysis:
Section 203.--Laws Applicable to Outer
Section (a) amends section 4(a)(1) of the
OCS Act of 1953 by changing the term "fixed structures" to "and all installations
and other devices permanently or temporarily attached to the seabed" and
making other technical changes. It is thus made clear that Federal law
is to be applicable to all activities on all devices in contact with the
seabed for exploration, development, and production. The committee intends
that Federal law is, therefore, to be applicable to activities on drilling
ships, semi-submersible drilling rigs, and other watercraft, when they
are connected to the seabed by drillstring, pipes, or other appurtenances,
on the OCS for exploration, development, or production purposes. Ships
and vessels are specifically not covered when they are being used for the
purpose of transporting OCS mineral resources.
H.R. Rep. No. 95-590 (1978) (emphasis added).
I have found no Supreme Court decision and
no Fifth Circuit decision which expressly discuss or interpret the significance
of the statutory language change made by the 1978 Amendments to OCSLA regarding
deletion of "fixed structures" and insertion of "all installations and
other devices permanently or temporarily attached to the seabed" in the
definition of the situs to which OCSLA is to apply. We must assume that
when it was adopting the 1978 Amendments to OCSLA, Congress was aware of
and considered the Supreme Court holding in Rodrigue. Since
there is nothing in the text of the 1978 Amendments nor in any legislative
history which would indicate a desire or intention on Congress' part to
change any of the Supreme Court's holdings in Rodrigue, we
have to assume that Congress accepted those holdings as applicable to the
1978 Amendments. The deletion of the words "and fixed structures" and the
insertion of the words "and all installations and other devices permanently
or temporarily attached to the seabed" reflect a clear intention on the
part of Congress to broaden and clarify the category of structures and
facilities to which OCSLA would apply; and the House Committee Report 95-590
expressly identifies "drilling ships, semi-submersible drilling rigs, and
other water craft, when they are connected to the seabed by drill string,
pipes, or other appurtenances on the OCS for exploration development
or production purposes" as being the situs of activities to which OCSLA
would apply. In my view, there is absolutely no question at all that these
statutory language changes eliminate the basis for any distinction which
our case law may have made in the past as between a "jack-up rig" being
a vessel and "a fixed platform" not being a vessel, insofar as activities
on the Outer Continental Shelf are concerned. Both our Circuit and the
Supreme Court have clearly indicated that Congress holds the ultimate power
in defining applicable law and categorizing the facilities and operations
to which it applies when dealing with activities on the Outer Continental
The controlling premise of the majority opinion
in the case before us is that Fal-Rig 85 is a vessel.(57)
Because it is a vessel, the majority says admiralty and maritime law controls
its operations and activities. Because admiralty and maritime law applies,
that body of law prevents and preempts any application of state law. If
the majority's original premise is incorrect, then their house of cards
In my view, we are bound by the Supreme Court
Rodrigue, and by Congress' 1978 Amendments to
OCSLA, to conclude that when a jack-up rig is operating on the Outer Continental
Shelf, it cannot be construed as being a vessel because, in the statutory
language, it is "an installation temporarily attached to the seabed for
the purpose of exploring for, or producing oil and gas" or, in the language
of the House Committee Report (supra), it is "a watercraft connected to
the seabed by drillstring, pipes, or other appurtenances for exploration
or production purposes." This conclusion is mandated not only by the new
language of OCSLA but also by common sense and plain language interpretation
of "what is a vessel."
The dictionary says that a vessel is "a craft
for traveling on water." Webster's Collegiate Dictionary (Random
House 1991). The quintessential characteristics of a vessel are that it
floats on water and that it is used for transporting cargo or passengers
from one place to another. In order to "float on water," it must be supported
by the laws of buoyancy, i.e., it will float to the extent that the volume
of water which it displaces weighs more than the vessel and its cargo.
However, the mere fact that a structure floats does not mean it is a vessel.
A floating dock does float, but it is permanently connected to land and
never goes anywhere. Likewise, a restaurant or gambling casino built on
a barge is floating, but if it is connected to land by permanent mooring
lines and utility lines (water, gas, sewage, electricity, telephones) and
never moves, it is not a vessel; it is simply a floating dock with a restaurant
on it, which earns money by selling food or games of chance, not by transporting
cargo or people. A pontoon bridge floats, but it is not a vessel because
it does not move once it is in place. Using these concepts to assess the
characteristics of a jack-up drilling rig, I come to the easy conclusion
that a jack-up drilling rig is clearly not a vessel when it is "jacked
up." Clearly, when it is jacked up, Fal-Rig 85 is not floating at all.
The process of jacking up lifts the hull and work decks of the Fal-Rig
85 completely out of the water. The only parts of the Fal-Rig 85 which
are in the water are its legs, which extend downward through the water
into the seabed where support for the entire weight of Fal-Rig 85 is found
in the sea bottom itself. In the jacked-up position, the hull and work
decks of the Fal-Rig 85 are high enough out of the water that neither ocean
currents nor wind generated wave action impacts the work area. Finally,
in the jacked up position, the Fal-Rig 85 cannot move; its position in
terms of longitude and latitude is fixed; it is stationary. The primary
purpose for which the Fal-Rig 85 was built is to drill a hole in the earth
under water in order to locate oil and/or gas and produce them if found.
The Fal-Rig 85 earns its revenue for cutting the hole and completing the
well, and it performs these tasks only when it is jacked up. In its jacked
up position, the Fal-Rig 85 is functionally indistinguishable from a drilling
platform which has been assembled on site in the water: (1) both stand
on legs resting on the bottom; (2) both have work decks and platforms high
enough above the water to avoid currents and waves; and (3) both conduct
drilling and completion activities for oil and gas production. I can see
no rational basis for distinguishing the two platforms.
I recognize that our case law has labeled
a jack-up drilling rig as a "special purpose vessel;" but in my view that
is a mislabeling that confuses the realities involved and, in light of
the 1978 Amendments to OCSLA, should not be applicable to operations on
the Continental Shelf. The "special purpose" of a jack-up rig, which is
drilling for oil and gas, has nothing to do with traditional maritime activities
or interests. Drilling for oil and gas does not create any buoys, channel
markers, or other aids to navigation. Drilling for oil and gas does not
enhance or improve the navigability of the waters in which it occurs. Drilling
for oil and gas does not facilitate the loading or unloading of vessels.
A jack-up drilling rig is a structure designed and constructed (1) to contain
and house in one structure all of the work spaces, living spaces, machinery,
and engines, pumps, generators, hoists, pipe racks, derrick, cranes, and
other equipment required to conduct drilling operations into the earth
and (2) to float in water when required to move from one drill site to
another but then jack itself up out of the water to conduct drilling operations.
This unique combination of functions saves time and expense by avoiding
the dismantling and disassembly into pieces and units and the reassembling
process which inevitably occurs in order to move a shore side drilling
rig or a drilling platform which was originally constructed at a site in
the water. While it is true that during the time a jack-up rig is being
moved it floats and is moved by tug boats, like a barge, the percentage
of time involved in such moves represents only a tiny fraction of the time
that it is jacked up in a fixed position engaged in drilling operations.
It is better labeled, therefore, as a "movable drilling platform" for it
moves only for the purpose of drilling in another location and while drilling
it is a fixed and stationary platform. To label the Fal-Rig 85 as a "vessel"
when it has a casing being driven into the sea floor in anticipation of
drilling with a drill stem for thousands of feet into the earth is simply
nonsense to me.
In addition to the changes made by Congress
in the definition of what constituted a "situs" for purposes of the Outer
Continental Shelf Lands Act, the 1978 Amendments to OCSLA also made changes
pertinent to our discussion here by (1) adding definitions for the term
"exploration," the term "development," and the term "production" which
had not previously been included in the 1953 Act; and by (2) deleting from
old § 4(c) of the 1953 Act the phrase "described in subsection (b)"
and inserting in lieu thereof "conducted on the Outer Continental Shelf
for the purpose of exploring for, developing, removing, or transporting
by pipeline the natural resources ... of the sub-soil and seabed of the
Outer Continental Shelf" as it appeared in old subsection (b) of §
4 of the 1953 Act. While these amendments were more or less technical in
nature, they clearly demonstrate that Congress considered changes needed
in § 4(c) and wanted workman's compensation benefits extended to employees
who sustain disability or death on the broader definition of situs as contemplated
by the amendments to § 4(a)(1) discussed earlier. In this regard,
it should be noted that the original 1953 Act contained a definition of
"the term 'employee' which makes express that the term does not include
"a master or member of a crew of any vessel" and this phraseology was retained
in the 1978 amendments to the subsection dealing with the extension of
compensation benefits.(58) Consequently,
it seems clear to me that as of the time of the 1978 amendments to OCSLA,
Congress intended that "employees" working on "all artificial islands and
all installations and other devices permanently or temporarily attached
to the seabed" would be entitled to receive compensation benefits in accordance
with the provisions of LHWCA, but "crew members" of "any vessel" would
not be entitled to receive compensation benefits. And this necessarily
means that "artificial islands, etc." and "vessels" are separate and distinct
concepts, and we make a mistake when we fail to distinguish them. I have
great difficulty, therefore, in understanding how the majority opinion
concludes that the Fal-Rig 85 can be both at the same time.
Herb's Welding -- The Second Supreme
In resolving the interplay between the LHWCA
and OCSLA, the decision of the U.S. Supreme Court in Herb's Welding,
Inc. v. Gray, 105 S. Ct. 1421 (1985), is the second case I view
as controlling. Gray, a welder with Herb's Welding, was employed to help
repair and maintain oil and gas pipelines and fixed platform production
structures in the Bay Marchand oil and gas field, which is located both
in Louisiana territorial waters and in the Outer Continental Shelf. On
July 11, 1975, Gray was welding a two-inch gas pipeline on a platform in
the navigable waters of Louisiana when an explosion occurred. Gray, in
trying to run away from the area, twisted his knee. Gray received workman's
compensation benefits under the Louisiana compensation law, but the carrier
refused to pay benefits under the LHWCA. An administrative law judge denied
Gray's claim for LHWCA benefits because he was "not involved in maritime
employment." The Benefits Review Board determined that Gray was covered
under the LHWCA and remanded the case for entry of an award. The administrative
law judge awarded $10,000 and deducted the $3,000 already awarded under
the state compensation law. Herb's Welding appealed the decision of the
Benefits Review Board to a panel of the Fifth Circuit, which in April 1983,
affirmed the decision of the Benefits Review Board by holding that Gray
"was clearly employed in maritime employment and therefore was within the
compensation coverage afforded by the LHWCA." Herb's Welding v. Gray,
703 F.2d 176, 180 (5th Cir. 1983).
The Supreme Court granted certiorari and promptly
reversed. In so doing, the Supreme Court held:
The rationale of the Court of Appeals was
that offshore drilling is maritime commerce and that anyone performing
any task that is part and parcel of that activity is in maritime employment
for LHWCA purposes. Since it is doubtful that an offshore driller will
pay and maintain a worker on an offshore rig whose job is unnecessary to
the venture, this approach would extend coverage to virtually everyone
on the stationary platform. We think this construction of the Act is untenable.
Herb's Welding, 105 S. Ct. at
1426. The Supreme Court went on to analyze its prior cases, particularly
its decision in
Rodrique v. Aetna Casualty & Surety,
supra, and to describe in some detail the factual circumstances
that determine the nature of the employment that Gray was involved in:
[Gray] built and maintained pipelines and
platforms themselves. There is nothing inherently maritime about those
tasks. They are also performed on land, and their nature is not significantly
altered by the marine environment,
particularly since exploration and
development of the Continental Shelf are not themselves maritime commerce.
Id. at 1428 (footnote omitted).
In assessing the precedential aspects of the Supreme Court decision in
Herb's Welding, we need to remember that:
1. Gray's injury occurred in 1975 at which
time the pertinent statutory provisions were the LHWCA as amended in 1972
and OCSLA as originally passed in 1953;
2. Gray's injury occurred on a fixed platform
in Louisiana territorial waters;
3. The Supreme Court decision in Herb's
Welding was issued prior to the effective date of the 1984 amendments
to LHWCA; and
4. The Supreme Court did not address in its
decision the applicability of § 1333(b) of OCSLA, either in its form
as it existed on the date of injury or as it was amended in 1978 during
the course of appeals of Gray's claim through the Benefits Review Board.(59)
Nevertheless, the Supreme Court decision in
Herb's Welding is especially controlling insofar as it deals
with the meaning of the term "maritime employment." The Court in Herb's
Welding discussed at great length the decision of the Supreme Court
Rodrique, supra, and reconfirmed all of its essential
holdings. In this regard, the Supreme Court in Herb's Welding
We cannot assume that Congress was unfamiliar
with Rodrique and the Lands Act when it referred to "maritime
employment" in defining the term "employee" in 1972. It would have been
a significant departure from prior understanding to use that phrase to
reach stationary drilling rigs generally.
105 S. Ct. at 1427 (footnote omitted).
After categorizing the Fifth Circuit's view
of the term "maritime employment" as "expansive," the Court went on to
The Amendments [1972 amendments to LHWCA]
were not meant "to cover employees who are not engaged in loading, unloading,
repairing, or building a vessel, just because they are injured in an area
adjoining navigable waters used for such activity. H.R. Rep. 92-1441, p.
11 (1972); S. Rep. 92-1125, p. 13 (1972); U.S. Code Cong. & Admin.
News 1972, p. 4708. We have never read "maritime employment" to extend
so far beyond those actually involved in moving cargo between ship and
land transportation. Both Caputo and
Co. make this clear and lead us to the conclusion that Gray was
not engaged in maritime employment for purposes of the LHWCA.
Id. at 1427-28.
I have found no Supreme Court decision subsequent
to Herb's Welding that purports to overrule in whole or in
part the principal core decision that the Supreme Court made in Herb's
Welding, i.e., that the term "maritime employment" does not
include any of the various activities which lessees, operators, contractors,
subcontractors, and their employees perform in connection with exploring
for, drilling for, producing, and transporting oil and gas from the seabed
beneath navigable waters.
1984 Amendments to LHWCA
The second statutory amendment made by Congress
which the panel majority did not consider in arriving at their conclusion
is found in a portion of the 1984 amendments to the Longshoreman and Harbor
Worker's Compensation Act. These changes relate to the inclusion of new
subparagraph (c) in 33 U.S.C. § 905 as it now exists. This change
was initiated by a provision in Senate Bill 38 of the 98th Congress First
Session set forth in § 4(c) of that bill, which reads as follows:
(c) Section 5 [of LHWCA] is amended by adding
at the end thereof the following new subsection:
"(c) In the event that the negligence of a
third party causes injury to a person entitled to receive benefits
under this chapter by virtue of section 4 of the Outer Continental Shelf
Lands Act (43 U.S.C. 1333), then such person, or anyone otherwise entitled
to recover damages by reason thereof, may bring an action against such
third person in accordance with the provisions of section 33
of this Act. Nothing contained in this chapter, or in any otherwise
applicable State law, shall preclude the enforcement according to is
terms of any written agreement under which the employer has agreed to
indemnify such third party in whole or in part with respect to such action.
S. 38, 98th Cong. § 4(c) (1984) (emphasis
added). The House of Representatives declined to go along with the changes
contemplated by this section of the Senate Bill and the Conference Committee
appointed to resolve this and other conflicts inserted the language as
it now appears in 33 U.S.C. § 905(c) which reads as follows:
(c) Outer Continental Shelf
In the event that the negligence of a vessel
causes injury to a person entitled to receive benefits under this chapter
by virtue of section 1333 of Title 43, then such person, or anyone otherwise
entitled to recover damages by reason thereof, may bring an action against
such vessel in accordance with the provisions of subsection (b)
of this section. Nothing contained in
subsection (b) of this section
shall preclude the enforcement according to its terms of any
indemnity provision whereby the employer of a person entitled to receive
benefits under this chapter by virtue of section 1333 of Title 43 and the
vessel agree 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. § 905(c) (emphasis added).
The legislative history regarding this change
indicates that the Senate Report stated:
Finally, the Senate Bill provides an exemption
to the Longshore Act's current proscription of indemnity agreements under
Section 5(b) of the Act. That section is made applicable currently to situations
on the Outer Continental Shelf by virtue of Section 4 of the Outer Continental
Shelf Lands Act (43 U.S.C. 1333). The bill would legalize those indemnity
agreements insofar as they apply to the Outer Continental Shelf and would
further preempt the application of state laws prohibiting such indemnity
S. Rep. No. 98-81 (1983), reprinted in
1984 U.S.C.C.A.N. 2771, 2773 (emphasis added).
The report of the Conference Committee states:
Second, the substitute removes the current
proscription with respect to mutual indemnity agreements between employers
and vessels as applied to the Outer Continental Shelf by virtue of
the Outer Continental Shelf Lands Act.
H.R. Conf. Rep. No. 98-1027 (1984), reprinted
in 1984 U.S.C.C.A.N. 2771, 2774 (emphasis added).
In my view, it is extremely significant that,
as indicated by the underlining in the text of the Senate Bill and the
statute as finally passed, the word "third person" in the Senate Bill was
changed to the word "vessel" in the statute as finally passed; the internal
cross-reference as to the section under which "an action" may be brought
was changed from "the provisions of section 33 of this Act" to "the provisions
of subsection (b) of this section;" the opening phrase in the last sentence
of the Senate Bill which stated "nothing contained in this chapter or in
any otherwise applicable state law" was changed to read "nothing contained
in subsection (b) of this section" in the statute as passed; and finally,
the language at the end of the second sentence referring to "any written
agreement under which the employer has agreed to indemnify such third party"
was changed to refer to "any reciprocal indemnity provision whereby the
employer of a person entitled to receive benefits under this chapter by
virtue of section 1333 of Title 43 and the vessel agree to defend and indemnify
the other." From these textual changes and legislative history I draw the
following conclusions fairly easily:
1. Senate Bill 38 intended to effect a preemption
of "otherwise applicable state law," but the final statute as passed says
absolutely nothing about that subject;
2. The change from "third party" to "vessel"
considerably narrows the category of parties (1) whose negligence may be
the cause of injury to an oil field worker on the Outer Continental Shelf
and (2) who would be entitled to be the beneficiary of an indemnity agreement
from the employer; and
3. The term "vessel" as consciously inserted
by Congress in § 905(c) must be construed consistently as that same
term is used in OCSLA and, therefore, the term "vessel" cannot be taken
to mean a situs of offshore oil and gas activity as defined in OCSLA.
The Third Supreme Court Case -- Tallentire
The final Supreme Court case which I look
to in assessing the issues in this case is the case of Offshore Logistics,
Inc. v. Tallentire, 106 S. Ct. 2485 (1986). In Tallentire,
two offshore drilling platform workers were killed when the helicopter
in which they were riding crashed in the high seas some 35 miles off the
Louisiana coast while transporting them from the offshore drilling platform
where they worked to their home base in Louisiana. The issue in the case
revolved essentially around the provisions of § 7 of the Death on
the High Seas Act (DOHSA) and the effect, if any, of OCSLA. Survivors of
the deceased workers contended that they were entitled to damages based
on the Louisiana Wrongful Death Statute, which was made applicable either
by its own terms or by the applicability of OCSLA. The federal district
court determined that the survivors were entitled to benefits only under
DOHSA. In a very long and scholarly opinion, a panel of our Court concluded
that § 7 of DOHSA was broad enough on its face to permit the applicability
of the Louisiana Wrongful Death Statute and that, as a matter of law, Louisiana
has the authority to apply its Death Act to its own citizens on the high
seas adjacent to its shores and that, therefore, the survivors may assert
a claim under the Louisiana Death Act. Tallentire v. Offshore Logistics,
Inc., 754 F.2d 1274 (5th Cir. 1985). On the issue as to whether
the Louisiana Wrongful Death Statute applied by way of § 1333 of OCSLA,
the Fifth Circuit panel waffled. It assumed that OCSLA does apply but the
Louisiana statute would then be in conflict with DOHSA "so Louisiana law
could be adopted only to the extent it is not inconsistent with DOHSA."(60)
Id. at 1279.
On appeal to the Supreme Court, the Supreme
Court held "that neither OCSLA nor DOHSA requires or permits the application
of Louisiana law in this case," and accordingly the Court reversed and
remanded the decision of the Fifth Circuit. As was the case in the Fifth
Circuit opinion, the larger part of the Supreme Court decision related
to the interpretation of § 7 of DOSHA, but the Court did address in
clear and expressive language the interplay between DOHSA and OCSLA. See
106 S. Ct. at 2491-93. The Supreme Court determined that because the helicopter
crash and ensuing death of the platform workers in this case occurred "miles
away from the platform and on the high seas," it would not be proper to
extend OCSLA to the casualties in this case. In reviewing the history and
applicability of OCSLA, the Supreme Court in Tallentire stated:
The intent behind OCSLA was to treat the artificial
structures covered by the Act as upland islands or as federal enclaves
within a landlocked State, and not as vessels, for purposes of defining
the applicable law because maritime law was deemed inapposite to these
fixed structures. See Rodrigue v. Aetna Casualty & Surety Co.,
395 U.S. 352, 361-366, 89 S. Ct. 1835, 1840-1842, 23 L.Ed.2d 360 (1969).
This Court endorsed the congressional assumption that admiralty law generally
would not apply to the lands and structures covered by OCSLA in
noting that accidents on the artificial islands covered by OCSLA "had no
more connection with the ordinary stuff of admiralty than do accidents
on piers." Id., at 360, 89 S. Ct., at 1839-1840. See also
Herb's Welding, Inc. v. Gray, 470 U.S. 414, 422, 105 S. Ct.
1421, 1426, 84 L.Ed.2d 406 (1985). Thus, in 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.
Rodrigue v. Aetna Casualty Co., supra, 395 U.S., at
366, 89 S. Ct., at 1842.
Id. at 2491-92. While I recognize
that the issue of what constitutes a "situs" as defined in OCSLA was not
directly before the court in Tallentire, I think this quoted
paragraph from Tallentire is very instructive as indicating
that as of 1986 the Supreme Court was clearly following the jurisprudential
analysis of Rodrigue and Herb's Welding as
to whether the "artificial islands" involved in oil and gas production
should be considered as "vessels" and that the place where an injury or
death occurs is more determinative of the applicability of the Outer Continental
Shelf Lands Act than the status of the injured worker as being employed
in operations relating to production of oil and gas from the Outer Continental
At the time of his injury, Demette was employed
by Frank's Casing as a welder who welded together the segments of casing
as they are installed in an oil and gas well. At the time of his injury,
Demette was on the derrick floor of the Fal-Rig 85 and he was struck on
the head by some object which fell from the derrick tower above him. At
the time of Demette's injury, the process of hammering the casing down
into the sea floor was going on which means that the casing pipe extended
from the derrick floor down into the seabed beneath the water. At the time
of Demette's injury, Fal-Rig 85 was in a jacked-up position and was located
on the Outer Continental Shelf adjacent to the State of Louisiana. A blanket
service agreement was signed between Union Oil of California (Unocal) and
Frank's Casing Crew and Rental, Inc. (Frank's), under the terms of which
Frank's was to provide casing installation services as specified in subsequent
work orders. The blanket service agreement would cover work orders issued
for casing services both onshore and offshore. Frank's would be paid for
its services by Unocal. Unocal also had a blanket service agreement with
R&B Falcon Drilling USA, Inc. (Falcon). This contract provided Unocal
with access to all of Falcon's jack-up drilling rigs for offshore drilling,
but it did not specify use of Fal-Rig 85. Each of the Unocal/Falcon and
Unocal/Frank's blanket agreements contains indemnity agreements, but there
is no contractual agreement of any kind directly between Falcon and Frank's.
Given these undisputed facts, I can easily
concur with the majority holding that on the occasion of Demette's injury,
Fal-Rig 85 was a situs as defined in OCSLA because it was jacked up out
of the water, supported by its legs resting on the sea bottom, and was
connected to the sea bottom by the casing being driven into the floor of
the ocean for the purpose of exploring for oil and gas. I, likewise, concur
with the finding that the majority inferentially makes that at the time
of his injury Demette was employed by an employer engaged in operations
relating to exploration for and production of oil and gas from the Outer
Continental Shelf and that, therefore, he would be entitled to compensation
benefits for his injury from his employer under the provisions of §
1333(b) of OCSLA.
I have to abandon ship, however, from the
rest of the majority's conclusions. Specifically, I dissent from the following
1. "Because maritime law applies of its own
force, Louisiana law does not apply in this case." Majority Opinion at
2. "Thus all six factors [Davis
case] point to the same conclusion: the contract and the injury that invoked
it were maritime in nature." Majority Opinion at 848. While the majority
opinion does not specifically say, I have to assume that it is referring
to the contract between Unocal and Frank's because that is the only contract
in which Frank's agreed to indemnify anybody from anything; and
3. Section 905(c) of LHWCA validates the indemnity
agreement between Unocal and Frank's, a conclusion which I find both unnecessary
In Rodrigue, the Supreme Court
held that Congress made an explicit decision that maritime law would not
apply to the "artificial islands placed or erected on the Outer Continental
Shelf for the purpose of exploration, production, and development of oil
and gas resources" when it passed the original OCSLA in 1953. After the
Supreme Court decision in
Rodrigue, Congress made substantial
amendments to OCSLA in 1978, the most significant of which was the elimination
of the term "fixed structures" and the insertion of the words "all installations
and other devices permanently or temporarily attached to the seabed." The
legislative history of this change contains an express statement that:
"The committee intends that federal law is, therefore, to be applicable
to activities on drilling ships, semi-submersible drilling rigs, and other
watercraft when they are connected to the seabed by drillstring, pipes,
or other appurtenances." H.R. Rep. No. 95-590. The key phrase in this new
definition is "when they are connected to the seabed by drillstring, pipes,
or other appurtenances" because these circumstances result in these "installations
and other devices" being "permanently or temporarily attached to the seabed."
In this broader definition, Congress drew no distinctions as to whether
the attachment was between the seabed and a fixed platform, a movable platform,
a semi-submersible platform, or a drilling ship platform. I have to conclude,
therefore, that from and after the 1978 Amendments to OCSLA all of our
Circuit case law purporting to draw tortuous and complicated distinctions
as to what is and is not a "vessel" are just "so much sound and fury signifying
nothing" insofar as activities on the Outer Continental Shelf are concerned.
Congress spoke originally in 1953, the Supreme Court interpreted in 1969,
and Congress spoke again in 1978 without changing or correcting in any
way the principles established by the Supreme Court that the artificial
islands, structures, installations, and devices temporarily or permanently
placed on the Outer Continental Shelf for the purpose of producing oil
and gas are not "vessels" and that "maritime law" does not apply to them.
As to the conclusion that the contract between
Unocal and Frank's was maritime in nature, I think the panel majority's
conclusion is in direct conflict with the language of the Supreme Court
in Herb's Welding. The installation of casing at various
stages in the drilling for and producing of an oil and gas well is normal
and routine regardless of whether the oil well is producing from dry land
on shore or from the seabed. The installation of casing in an oil and gas
well has absolutely nothing to do with improving the navigability of the
waters in which the well may be drilled, nor does it have anything to do
with the placement of an aid to navigation in those waters, nor does it
have anything to do with loading or unloading of a vessel. If, as the Supreme
Court held in Herb's Welding, a welder who repairs gathering
pipelines and well production structures is not engaged in "maritime employment"
because "there is nothing inherently maritime about those tasks," then
in my view the task of welding together segments of casing pipe as they
are driven into the seabed, as Demette was doing here in this case, surely
should not be deemed a maritime employment. Therefore, the contract between
Unocal and Frank's to provide such casing services should not be a maritime
contract. Like a ship without an engine or rudder, our Fifth Circuit case
law on the subject of "maritime employment" and "maritime contracts" has
floated from one side of the Gulf of Mexico to the other depending upon
the vagaries of wind and current in each individual case. I regret to say
that our Circuit case law on "what is a vessel" and "what is a maritime
contract" and what is "maritime employment" have taken on a Humpty-Dumpty(61)
approach -- they are whatever a particular panel says they are. That's
a tragic circumstance because it destroys uniformity and predictability
of the law; and the only ones who benefit from unpredictability and confusion
In regard to § 905(c) of LHWCA, I have
great difficulty in understanding the rather convoluted argument which
the majority opinion puts forth as to the applicability of this subsection.
If the majority is correct that Fal-Rig 85 is a vessel whose special purpose
was to drill an oil and gas well and Demette's assignment of welding together
segments of casing pipe was an essential aspect of that special purpose,
then Demette was a member of the crew of a vessel and both § 1333(b)
of OCSLA and § 902(3)(G) of LHWCA would exclude Demette from any right
to compensation benefits under the LHWCA. Even if Demette were determined
not to be a member of the crew of the Fal-Rig 85, he would not be entitled
to benefits directly under LHWCA because
Herb's Welding specifically
held that activities related to oil and gas production are not maritime
employment. Likewise, if the majority opinion is correct that the Fal-Rig
85 is a vessel, then Demette would not be entitled to compensation benefits
indirectly by way of § 1333(b) of OCSLA because the Fal-Rig 85 would
not be a situs to which § 1333(b) could have extended those compensation
benefits. In short, just as I believe that the Fal-Rig 85 cannot be a vessel
and an OCSLA situs at the same time, I believe an injured employee cannot
be an offshore oil production worker under § 1333(b) and a maritime
worker under § 902(3) of the LHWCA at the same time. On the other
hand, if I am correct that when it is jacked up and driving casing into
the seabed, the Fal-Rig 85 is not a vessel but an OCSLA situs, then Demette
is an oil field worker right where he should be on an OCSLA situs when
he is injured and, therefore, is entitled to compensation benefits under
§ 1333(b). Of course, this discussion about compensation benefits
is somewhat academic because Demette settled all of his personal injury
claims and whether or not he received the compensation benefits he should
have gotten is not an issue before us on appeal.
But the same conundrum arises in analyzing
the applicability of § 905(c). A full understanding of the relevance
of § 905(c) is much clearer when you look at the legislative history
of that provision. As indicated earlier in this dissent, the first statutory
iteration of the provisions which ultimately became § 905(c) was in
Senate Bill 38 which used the term "third party" in place of the term "vessel"
in identifying the negligent tortfeasor and in identifying the indemnitee
of the indemnity agreement referred to therein.(62)
Likewise, Senate Bill 38 had an express provision contemplating that this
new language would preempt and override "any otherwise applicable state
law." The House of Representatives was not agreeable to this change, and
the Conference Committee eliminated the idea of preemption of state law
altogether and inserted the word "vessel" in place of the words "third
party." It is uncontroverted that Demette's injury occurred on the Fal-Rig
85, and there is nothing in the briefs or record excerpts to indicate that
any other tug boat, crew boat, supply boat, barge, or other water craft
was involved and could be the source of a "vessel negligence" claim. Therefore,
if the Fal-Rig 85 in its jacked-up position is not a vessel (as I have
argued earlier in this dissent), then there is no vessel negligence upon
which Demette (the injured worker) could have sued and no vessel to be
sued as defendant. If, on the other hand, the majority is right and the
jacked-up Fal-Rig 85 is actually a vessel, then, because he is a member
of the crew of the vessel, Demette (the injured worker) loses his status
as an employee entitled to compensation under § 1333(b), which is
an essential condition to the applicability of § 905(c).
I recognize, of course, that no single panel
of our Court can overrule any prior panel decisions and that the changes
and reconsiderations that I suggest herein can only be effected by an en
banc reconsideration by our Court. In my view, that is precisely what we
should do, and I have written at length in this dissent in order to put
the parties to this appeal, the amicus in this appeal, and other interested
agencies on notice that I will call for a ballot for en banc reconsideration,
if strong suggestions for such course of action from the parties and other
interests are forthcoming. In my opinion, the seabed of the Outer Continental
Shelf adjacent to the States of Texas, Louisiana, and Mississippi contains
the largest volume of both discovered and undiscovered oil and gas resources
of all of the areas of the Outer Continental Shelf. It is also my opinion
that the largest number of workers involved in the development of these
oil and gas resources on the Outer Continental Shelf come from the States
of Texas, Louisiana, and Mississippi and that most of the operators, contractors,
and subcontractors who engage in the business of drilling and producing
oil and gas from the Outer Continental Shelf are either headquartered in
or have major facilities in the States of Texas, Louisiana, and Mississippi.
We are also blessed to have within the States of Texas, Louisiana, and
Mississippi an enormous concentration of legal talent (private practitioners,
corporate counsel, and law school professors) who are familiar with (1)
the history of the development of the oil and gas resources on the Outer
Continental Shelf, (2) the statutory enactments by Congress, (3) the Supreme
Court decisions interpreting the statutes, (4) the statutes and interests
of the adjacent states, and (5) that historic, traditional, judge-made
body of amorphous law affectionately known as "admiralty and maritime law."
An en banc reconsideration of the enigmas raised here in this case, informed
by briefs of counsel for the parties and interested amici, would be a first
step in bringing greater uniformity and predictability to the law applicable
to the development of these increasingly critical natural resources.
1. District Judge of the
Northern District of Texas, sitting by designation.
2. 33 U.S.C.A. § 901
et seq. (2000).
3. 43 U.S.C.A. § 1331
et seq. (2000).
4. See Campbell
v. Sonat Offshore Drilling, Inc., 979 F.2d 1115, 1118 n.2 (5th Cir.
5. Thomas J. Schoenbaum,
1 Admiralty and Maritime Law § 3-9, 100 n.8 (West 2d Ed. 1994),
describes jack-up rigs and other rigs.
6. In this opinion, we
define OCS to exclude lands lying beneath the territorial waters of the
states. See 43 U.S.C. § 1331(a).
7. 43 U.S.C.A. § 1331
et seq. (2000).
8. 33 U.S.C.A. § 901
et seq. (2000).
9. 43 U.S.C.A. § 1333(a)(1).
10. Offshore Logistics,
Inc. v. Tallentire, 477 U.S. 207, 217-20 & 220 n.2 (1986); Mills
v. Director, OWCP, 877 F.2d 356, 361-62 (5th Cir. 1989) (en banc).
11. Mills interpreted
section 1333(b) and held that it could not apply to injuries that do not
occur on or over the OCS. 877 F.2d at 362.
12. 43 U.S.C.A. §
1333(a)(1). The reference "any such installation or other device" suggests
that Congress treated "installation or other device" as a unit separate
from "artificial islands." In the context of the entire section, however,
it is clear that Congress used "artificial islands, installations, and
other devices" as a single category. See 43 U.S.C.A. § 1333(c)
(using the phrase "artificial island, installation, or other device referred
to in subsection (a) of this section"); 43 U.S.C.A. § 1333(d)(2) (same);
43 U.S.C.A. § 1333(d)(1) (using the phrase "artificial islands, installations,
and other devices referred to in subsection (a) of this section"); 43 U.S.C.A.
§ 1333(e) (same); 43 U.S.C.A. § 1333(f) (same). Further, it is
hard to imagine an artificial island that is not subsumed into the category
"installations and other devices permanently or temporarily attached to
the seabed." Making sense of text and context, we conclude that "artificial
islands, and all installations and other devices" form a single category.
13. 895 F.2d 1043 (5th
14. Id. at 1047.
15. See Hodgen v. Forest
Oil Corp., 87 F.3d 1512, 1526 (5th Cir. 1996) (observing that the second
factor in the PLT test is identical to the determination that the
contract is maritime); Diamond Offshore Co. v. A&B Builders, Inc.,
75 F. Supp. 2d 676, 681 (S.D. Tex. 1999) (applying Hodgen to an
16. 43 U.S.C.A. §
1333(b). Section 1333(b)(1) expressly excludes masters and crew of vessels.
17. See Mills,
877 F.2d at 361-62.
18. 43 U.S.C.A. §
19. This is beyond dispute.
This circuit has repeatedly held that special-purpose movable drilling
rigs, including jack-up rigs, are vessels within the meaning of admiralty
law. See, e.g., Smith, 960 F.2d at 460; Offshore Co. v. Robison,
266 F.2d 769, 776 (5th Cir. 1959). The dissent's challenge to the definition
of vessel is misplaced. The dissent argues that a jack-up rig stops being
a vessel when it jacks up. Tinkering with the maritime definition of vessel
would overturn a centuries-old understanding of what constitutes a vessel.
See The Robert W. Parsons, 191 U.S. 17, 28-32 (1903) (reviewing
authority). As long as a boat is able and intended to return to navigation,
it remains a vessel, even when in dry dock, storage on land, or otherwise
removed from the water. See Thomas J. Schoenbaum, 1 Admiralty
and Maritime Law 88-92 (West 2d ed. 1994). This circuit has repeatedly
rejected the notion that removing a vessel's hull from the water divests
it of vessel status. See American Eastern Development Corp. v. Everglades
Marina, Inc., 608 F.2d 123, 124-25 (5th Cir. 1979) (contractual action
involving boat in dry storage); Delome v. Union Barge Line Co.,
444 F.2d 225, 228-32 (5th Cir. 1971) (unseaworthiness action involving
boat undergoing repairs on marine railway). Thus, the dissent's argument
that a jack-up rig stops being a vessel when it temporarily lifts out of
the water implicates the treatment of any boat, ship, barge, or special-purpose
vessel that is temporarily taken out of navigation. Further, the dissent's
definition of vessel, which requires that the object "float on water,"
would also exclude submersible rigs and submarines (when submerged), and
boats employing hydrofoils (which displace less water than their mass).
20. See Rusello v.
United States, 464 U.S. 16, 23 (1983) ("We refrain from concluding
here that the differing language in the two subsections has the same meaning
in each."). Also, the use of the term "temporarily" implies that devices
that can detach from the seabed and are capable of movement on the sea--i.e.,
vessels--can fall within the scope of the OCSLA. The distinction the statute
draws between devices used to extract and devices used to transport resources
serves to exclude vessels that merely transport resources: oil tankers
and the like. The transport devices covered by the OCSLA are pipelines,
which are explicitly mentioned in section 1333(b), and similar structures.
A further indication that the statute contemplates vessels being OCSLA
situses is section 1333(b)'s exclusion of "a master or member of a crew
of any vessel" from LHWCA coverage on OCSLA situses. If OCSLA situses are
never vessels, this provision would be mere surplusage. The dissent's contention
that an OCSLA situs cannot be a vessel ignores these textual indications
to the contrary.
21. 87 F.3d 1512 (5th
22. 923 F.2d 393 (5th
23. Id. at 395-98.
Hodgen, 87 F.3d at 1525-26, notes that Domingue failed to
discuss the situs requirement.
24. Frank's cites a number
of cases challenging this conclusion, none of which are apposite. Frank's
relies on Smith v. Penrod Drilling Corp. 960 F.2d 456 (5th Cir.
1992), in arguing that a vessel cannot be an OCSLA situs. The holding of
Smith was that maritime law, and not Louisiana law, applied to an
indemnity agreement regarding a jack-up rig. Id. at 461. This is
a straightforward application of the second prong of the PLT test
and has nothing to do with the question of whether jack-ups can be OCSLA
situses. Indeed, Smith explicitly found that since the accident
that implicated the indemnity agreement occurred on a fixed, permanent
platform, it need not address the question of whether a jack-up is an OCSLA
situs. Dupre v. Penrod Drilling Corp., 993 F.2d 474, 476-77 (5th
Cir. 1993), follows Smith in this regard and is equally distinguishable.
Frank's also cites
Tennessee Gas Pipeline v. Houston Cas. Ins. Co.,
87 F.3d 150, 155-56 (5th Cir. 1996), for the proposition that vessels are
not within the OCSLA jurisdiction for removal purposes. This claim is incorrect.
Tennessee Gas Pipeline finds removal jurisdiction over maritime
claims involving a fixed platform that was within OCSLA jurisdiction; it
makes no claims about vessels. Frank's claim stems from its confusion of
"vessels" with "maritime claims." While maritime claims cannot generally
be removed to federal court, claims arising under federal statute can be.
While the presence of a vessel in the facts of a case may allow a plaintiff
to allege claims under maritime law, the presence of a vessel does not
convert other, non-maritime claims into unremovable maritime claims.
25. 610 F.2d 1342 (5th
26. Id. at 1348.
27. Id. at 1344-45.
28. 712 F.2d 154 (5th
29. See id. at
157. Although arguably an anchor "attache[s]" a ship to the seabed, a tender,
unlike a jack-up rig, is not "erected" on the OCS.
30. Frank's also cites
legislative history stating that the phrase "waters above the [OCS]" was
deleted from the situs requirement of what became section 1333(b) in order
"to make more definite the application of the [LHWCA] to workers other
than those employed on vessels." Sen. Rep. No. 411, 83d Cong., 1st Sess.
16, 23 (1953). Unfortunately for Frank's, the situs requirement that this
deletion left behind was later deleted, leaving no situs requirement in
the enacted version of that subsection. As noted above, section 1333(b)
contains only a status requirement.
31. Since Louisiana law
does not apply, we need not decide whether it is inconsistent with federal
law in this case. If the contract in this case were not maritime, we would
then consider whether Louisiana law is inconsistent with applicable federal
32. See Davis &
Sons, Inc. v. Gulf Oil Corp., 919 F.2d 313, 315 (5th Cir. 1990) ("The
attempt to determine whether a contract, particularly one linked to offshore
gas and oil production, is governed by state or maritime law has led to
33. 919 F.2d 313, 315
(5th Cir. 1990).
34. Id. at 316;
see also Campbell v. Sonat Offshore Drilling, Inc., 979 F.2d
1115, 1121 (5th Cir. 1992) (describing two-step character of the Davis
35. An example of such
a case is Smith, 960 F.2d at 459-60.
36. See Campbell v.
Sonat Offshore Drilling, 979 F.2d at 1120-21;
see also Smith,
960 F.2d 456 (holding that contract to "work over" a jack-up rig is maritime);
Diamond Offshore Co. v. A&B Builders, Inc., 75 F. Supp. 2d 676,
679-81 (S.D. Tex. 1999) (holding that a contract for repair of a jack-up
rig is maritime); Gilbert v. Offshore Production & Salvage, Inc.,
1997 WL 149959, at *4 (E.D. La. March 21, 1997) (holding that a contract
to provide drilling supervision services is maritime); Campbell v. Offshore
Pipeline, Inc., 1993 WL 302623, at *3-4 (E.D. La. Aug. 5, 1993) (holding
that a contract for welding services of pipeline on the OCS is maritime).
37. See Lewis v. Glendel
Drilling Co., 898 F.2d 1083, 1086 (5th Cir. 1990) (holding that a contract
to provide offshore drilling services is maritime even if it does not mention
vessels). Contracts involving vessels tend to be deemed maritime. See
PLT, 895 F.2d at 1048 (describing an "oversimplified" test as "whether
the transaction relates to ships and vessels, masters and mariners, as
the agents of commerce"). Schoenbaum, 1 Admiralty and Maritime Law
§ 3-10 provides an extensive list of contracts found to be maritime
38. See Davis,
919 F.2d at 315-16.
39. See Kossick v.
United Fruit Co., 365 U.S. 731, 742 (1962).
40. Davis, 919
F.2d at 316.
41. 43 U.S.C.A. §
1333(b). That Demette may be a longshoreman by operation of the LHWCA itself
seems to be of little consequence; the language of the OCSLA is clear.
This point becomes important in the analysis of 33 U.S.C.A. § 905(c)
42. See 33 U.S.C.A.
43. See 33 U.S.C.A.
44. See 33 U.S.C.A.
45. See 33 U.S.C.A.
46. Both parties seem
to agree that Demette is a longshoreman by operation of the LHWCA itself.
To qualify as a longshoreman under the LHWCA, the employee must be engaged
in maritime employment over navigable water, but not a seaman. See
33 U.S.C.A. § 902(3); Director, OWCP v. Perini North River Assoc.,
459 U.S. 297 (1983).
47. Pub. L. No. 98-426,
98 Stat. 1639 (1984).
48. H. Conf. Rep. No.
98-1027 (1984), reprinted in 1984 U.S.C.C.A.N. 2771.
49. 1993 WL 302623 (E.D.
La. Aug. 5, 1993).
50. See id. at
*5 (noting that a contrary interpretation would lead to different treatment
of two indemnity agreements when two workers are injured on the same platform,
but one is not entitled to benefits directly under the LHWCA).
51. Frank's also argues
that this interpretation of section 905(c) renders section 905(b) a nullity.
This is nonsense. Section 905(c) applies only on the OCS and only when
the contract is reciprocal.
52. That Falcon was not
a signatory to the reciprocal Unocal-Frank's indemnity agreement does not
alter this result. We have so held in
Campbell v. Sonat Offshore Drilling,
Inc., 979 F.2d 1115, 1124 (5th Cir. 1992).
53. The dissent's recourse
to legislative history of the OCSLA to argue that OCSLA situses cannot
also be deemed vessels does not grapple with the text of the OCSLA, which
contemplates OCSLA situses that are vessels. See Parts II.A and
III.A. We also note that even if we were to ignore the text of the OCSLA,
examination of the purposes of the OCSLA does not yield so clear an answer
as the dissent indicates. This circuit has noted that OCSLA was originally
designed as a gap-filling statute. Mills v. Director, OWCP, 877
F.2d 356, 358 (5th Cir. 1989) (en banc). This was because fixed platforms
on the OCS were neither vessels nor within the territorial jurisdiction
of any state; thus, no law applied to them. The OCSLA filled this gap by
applying state law as surrogate federal law to those platforms. Floating
rigs, however, were always subject to maritime law, and thus did not linger
in the lawless limbo occupied by drilling platforms prior to the enactment
of the OCSLA. Thus, applying the OCSLA's choice-of-law provision only when
"maritime law [does] not apply of its own force," PLT, 895 F.2d
at 1047, is consistent with the gap-filling purpose of the OCSLA.
54. By applying state
law as surrogate federal law to offshore situses, the OCSLA requires courts
to draw lines between the zones in which surrogate federal law applies
and in which admiralty law applies. No interpretation of the OCSLA can
eliminate the arbitrariness of such lines. Our circuit precedent essentially
draws a line between floating rigs and fixed platforms, which may seem
arbitrary in light of the purposes cited by the dissent. PLT, 895
F.2d at 1047. One alternative, treating jack-up rigs as vessels but also
applying to them surrogate federal law instead of maritime law, would draw
a strange line between rig operators who are permanently assigned to floating
rigs (who are crew members, and thus would be excluded from LHWCA coverage
by section 1333(b)(1), but would also lack seaman's remedies because maritime
law would not apply) and rig operators temporarily assigned to floating
rigs or assigned to platforms (who are covered by the LHWCA by section
1333(b)). Another alternative, proposed by the dissent, would deem floating
rigs no longer vessels when they jack-up on the OCS. This draws an equally
strange line between rigs that lift out of the water to drill and rigs
that do not, even when both are OCSLA situses. Further, this creates the
problem of determining when a rig has been sufficiently jacked-up to switch
the applicable law from admiralty to surrogate federal law. This in turn
complicates questions of what law applies to incidents that occur while
a rig is jacking up or which law applies to contracts governing the use
of jack-up rigs.
55. In 1953, there were
no "jack-up rigs" operating in the area defined as the Outer Continental
Shelf. The engineering and technological skills which produced the first
"jack-up" rig were not developed until in the late 1950s and early 1960s.
The use of the term "fixed structures" in the OCSLA was descriptive of
the type of devices actually being used on the OCS; and therefore should
probably not be read as restrictive to those structures only. In its traditional
usage, the term "fixed structure" referred to a structure that's components
were manufactured on shore, then floated out to a well site on barges,
and then assembled and erected on site in the water.
56. The phrases "general
admiralty law" and "maritime law" do not appear anywhere in the OCSLA as
originally passed in 1953; and these phrases were not inserted by the 1978
Amendments to OCSLA discussed later. Likewise, there is not now (and never
has been) any language in the OCSLA which "requires courts to draw lines
between the zones in which surrogate federal law applies and in which admiralty
law applies" as the majority asserts in footnote 53 of the opinion. Therefore,
there is no statutory basis for the majority's holding (based on the second
prong of PLT) that we must first determine whether admiralty and maritime
law applies of their own accord before applying these choice-of-law provisions
of the OCSLA.
57. In footnote 18 of
its opinion, the majority relies on
Offshore Co. v. Robison,
266 F.2d 769 (5th Cir. 1959), as being the original source of its premise;
but the casualty in Robison occurred in the territorial waters
of the State of Texas and there was no contention nor need for discussion
as to the applicability of the OCSLA, which at that time referred to "artificial
islands and fixed structures" in its definition of OCSLA situs.
58. In footnote 19 of
its opinion, the majority argues that the language excluding "master or
number of crew of any vessel" from compensation benefits, indicates a contemplation
on the part of Congress that "a vessel can be a OCSLA site" as otherwise
this exclusion would be surplusage. But this same exclusionary language
was in the original 1953 OCSLA when the definition of a situs was an "artificial
island" or "fixed structure" neither of which would have been deemed a
"vessel." I suggest that a better reading of this exclusionary language
would be that Congress recognized in both the 1953 Act and the 1978 Amendments
that there would be vessels (tugs and barges, crew boats, and tankers)
transporting personnel and goods, supplies, consumables, and equipment
to and from the "artificial islands" however defined; and that the crew
members of such vessels would not be entitled to compensation even though
they received an injury while actually on such "artificial islands."
59. On remand from the
Supreme Court, the Fifth Circuit panel quickly concluded that Gray was
not entitled to recover under § 1333(b) because of the "geographical
limitation imposed by the OCSLA."
60. Curiously, the text
of 43 U.S.C. § 1333 cited in footnote 7 of the Fifth Circuit opinion
is the text of subsection (a)(1) as passed in 1953 even though the helicopter
crash in Tallentire occurred in August 1980, well after the
1978 amendments to OCSLA which broadened the definition of a "situs" as
61. "There is glory for
you," [said Humpty-Dumpty]. "I don't know what you mean by 'glory,'" Alice
said. "I meant 'there is a nice knock-down argument for you," [said Humpty-Dumpty].
"But 'glory' doesn't mean a nice knock-down argument," Alice objected.
"When I use a word," Humpty-Dumpty said in a rather scornful tone, "it
means just what I choose it to mean, neither more nor less." Lewis Carroll,
the Looking Glass ch. 6.
62. An earlier iteration
of the amendment was proposed by the International Association of Drilling
Contractors ("IADC") during oversight hearings on the LHWCA in 1978. Oversight
Hearings on the Longshoremen's and Harbor Workers' Compensation Act Before
the House Subcommittee on Compensation, Health and Safety, Committee on
Education and Labor, 95th Cong. (May 3, 1978) (statement of Jon Bednerik,
Director, Government Affairs, IADC). It is interesting to note that in
this early version proposed by the IADC, the term "third party" is used
instead of "vessel" and this version also makes no mention of state law
preemption. Id. The IADC version also creates a definition
for a "Marine Petroleum Worker" and makes the amendment only applicable
to such workers. Id. This definition never made it into the
proposed amendments of 1984.