Barrios v. Centaur, L. L.C.

• Decision Date: 11 November 2019
• Docket Number: No. 18-31203,18-31203
• Citation: 942 F.3d 670
• Parties: Devin BARRIOS; et al., Plaintiffs, v. CENTAUR, L.L.C., Defendant Cross Defendant Appellee, v. River Ventures, L.L.C., Defendant Cross Claimant Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

942 F.3d 670

Devin BARRIOS; et al., Plaintiffs,

v.CENTAUR, L.L.C., Defendant Cross Defendant Appellee,

v.River Ventures, L.L.C., Defendant Cross Claimant Appellant.

No. 18-31203

United States Court of Appeals, Fifth Circuit.

FILED November 11, 2019

Henry Harvey LeBas, Todd Anthony Delcambre, LeBas Law Offices, A.P.L.C., Lafayette, LA, Bradley Joseph Schlotterer, Richard Blakeman Crohan, Esq., Sean Thomas McLaughlin, Kean Miller, L.L.P., New Orleans, LA, for Defendant-Appellee.

Kenneth G. Engerrand, I, Esq., Attorney, Brown Sims, P.C., Houston, TX, Jeanne Louise Amy, Jefferson Randolph Tillery, Esq., Jones Walker, L.L.P., New Orleans, LA, Justin J. Marocco, Jones Walker, L.L.P., Baton Rouge, LA, for Cross Claimant-Appellant.

Before JONES, SMITH, and HAYNES, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Devin Barrios—an employee of Centaur, L.L.C. ("Centaur")—was injured while offloading a generator from a crew boat to a barge. The crew boat was owned and operated by River Ventures, L.L.C. ("River Ventures"); the barge was leased by Centaur. Barrios sued River Ventures and Centaur for vessel negligence under general maritime law and the Jones Act. River Ventures crossclaimed against Centaur for contractual indemnity. The district court granted summary judgment to Centaur, and River Ventures appeals. We reverse and remand.

I.

Before Barrios’s accident, non-party United Bulk Terminals Davant, LLC ("UBT"), executed a Master Service Contract (the "MSC") with Centaur, a small marine construction company. The MSC added Centaur to UBT’s approved vendor list for work at its dock facility adjoining the Mississippi River (the "Davant Facility").

The MSC contained two provisions relevant to this appeal. The first imposed on Centaur an obligation to indemnify UBT and its contractors:

CONTRACTOR SHALL RELEASE, DEFEND, INDEMNIFY AND HOLD UBT GROUP (DEFINED AS UBT AND UBT’S OTHER CONTRACTORS AND SUBCONTRACTORS OF ANY TIER ...) HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS ... BROUGHT BY ANY PERSON, PARTY OR ENTITY IN RESPECT OF PERSONAL OR BODILY INJURY TO, SICKNESS, DISEASE OR DEATH OF ANY MEMBER OF CONTRACTOR GROUP (DEFINED AS CONTRACTOR GROUP ... REGARDLESS OF CAUSE OR FAULT , AND EVEN IF CAUSED IN WHOLE OR IN PART BY THE SOLE, JOINT OR CONCURRENT NEGLIGENCE OR FAULT OF ANY MEMBERS OF THE UBT GROUP OR THE UNSEAWORTHINESS OF ANY VESSELS OWNED, OPERATED OR OTHERWISE UNDER THE CONTROL OF ANY MEMBER OF UBT GROUP.

The second required Centaur to obtain insurance covering those same parties:

Prior to Contractor commencing Work hereunder for UBT, Contractor shall, but only to the extent of the liabilities assumed by Contractor in this Agreement, obtain from each of its insurers a waiver of subrogation in favor of each of the "UBT Group" ... and, with the exception of Workers’ Compensation Coverage ... and the Hull Insurance ... name each of the UBT Group as additional insured to each insurance policy ..., but only to the extent of the liabilities assumed by Contractor in this Agreement. ... Contractor shall ensure that any endorsement naming the UBT Group as additional insureds shall not exclude from coverage the sole negligence of the insureds. Contractor shall be responsible for payment of all deductibles, premiums, retentions and payment for all expenditures incurred under any sue and labor provision.

The MSC governed future project-specific work orders between the parties.

Centaur and UBT executed several work orders for projects at the Davant Facility. One—for which Centaur submitted a proposal in October 2015—required installation of a concrete containment rail at one of the facility’s docks. The dock was principally used to load and offload ships carrying "dry bulk materials," including coal and petroleum coke. The containment rail was necessary to prevent those materials from spilling both onto the dock and into the river.

Centaur’s proposal indicated that, at an increased cost, both a barge and a tug boat would be required to complete the project. UBT accepted the proposal and issued a purchase order in November 2015. That purchase order and the MSC, in tandem, formed the contract at issue (the "Dock Contract").

To perform the work, Centaur chartered barge DB-582, which was equipped with a crane. Because DB-582 was a "dumb" barge that couldn’t self-navigate, it was moved up and down the river using a tugboat and winch. The Centaur crew used the barge to perform some construction work on the dock, including "drilling holes, cutting rebar, and pouring forms." It also used the barge to store items, pack and unpack tools, hold safety meetings, take breaks, and eat lunch.

Because the dock was most easily accessed by boat, UBT contracted with River Ventures for a crewed vessel—the M/V TROOPER—to transport Centaur’s employees from the parking area to their worksite. Centaur also used the crew boat to ferry tools and equipment in addition to its employees.

On the day of the incident, Barrios and other Centaur employees were transporting a portable generator on the crew boat. While attempting to offload the generator, the M/V TROOPER began to separate from DB-582. That movement caused Barrios to fall into the river, where the generator hit him in the head, severely injuring him.

Barrios sued River Ventures and Centaur, alleging, inter alia , vessel negligence under general maritime law and the Jones Act.¹ River Ventures—averring that it was a third-party beneficiary of the Dock Contract—cross-claimed against Centaur for contractual indemnity and additional assured status under its insurance policies.

Centaur moved for summary judgment on River Ventures’s crossclaim, averring that the Dock Contract was nonmaritime and that its indemnity provision was therefore void under Louisiana law. To determine whether the contract was maritime, the court considered whether "(1) the work Centaur was performing for UBT involve[d] maritime commerce, (2) it involved work from a vessel, and (3) the contract provided or the parties expected that a vessel would play a substantial role in completing the contract."

Applying that test, the court held that the Dock Contract was a "land-based construction contract" governed by Louisiana law. It granted summary judgment because the Louisiana Construction Anti-Indemnity Statute ("LCAIS") "applie[d] to prohibit the indemnity and insurance provisions."

River Ventures filed a notice of interlocutory appeal challenging the summary judgment, averring that this court had jurisdiction under 28 U.S.C. § 1292(a)(3) because its claims against Centaur arose in an "admiralty case" and determined the "rights and liabilities" between the parties. Centaur moved to dismiss that appeal for lack of jurisdiction, maintaining that the appeal "should not go forward until a Final Judgment is entered by the District Court." A panel of this court determined that Centaur’s motion should be carried with the case.

While the interlocutory appeal was pending, Barrios’s underlying tort claims proceeded to a bench trial. The court ruled for Barrios, holding that River Ventures was liable and that Centaur wasn’t liable because Barrios wasn’t a Jones Act seaman. The court then entered final judgment.

River Ventures appealed, reasserting its intent to seek review of the summary judgment. It also filed a notice of appeal of the bench-trial findings, but it voluntarily dismissed that appeal after settling with Barrios. River Ventures’s crossclaim against Centaur is the only claim remaining on appeal.

II.

"[W]e have a constitutional obligation to satisfy ourselves that subject matter jurisdiction is proper before we engage the merits of an appeal." Ziegler v. Champion Mortg. Co. , 913 F.2d 228, 229 (5th Cir. 1990). Therefore, we first consider Centaur’s motion to dismiss the appeal.

We need not decide, however, whether we have jurisdiction under § 1292(a)(3). That is because after final judgment was entered, River Ventures filed a renewed notice of appeal related to its indemnity and insurance claims. Because we have jurisdiction over River Ventures’s appeal under 28 U.S.C. § 1291, Centaur’s motion to dismiss for lack of jurisdiction is denied as moot.

III.

The indemnity dispute presents issues with which this court is familiar. It boils down to what law governs. If federal maritime law controls, then the Dock Contract’s indemnity provision is enforceable. See Hoda v. Rowan Cos., Inc. , 419 F.3d 379, 380 (5th Cir. 2005). If Louisiana law applies, then the LCAIS voids the indemnity provision as against public policy. See LA. STAT. ANN. § 9:2780.1. So the question is whether the Dock Contract is maritime. But before we can resolve that, we must identify the proper test for making that determination, a task that has vexed this court for decades.

A.

From 1990 to 2018, we applied the six-factor test announced in Davis & Sons, Inc. v. Gulf Oil Corp. , 919 F.2d 313, 316 (5th Cir. 1990), to determine whether a contract was maritime:

1) what does the specific work order in effect at the time of injury provide? 2) what work did the crew assigned under the work order actually do? 3) was the crew assigned to work aboard a vessel in navigable waters; 4) to what extent did the work being done relate to the mission of that vessel? 5) what was the principal work of the injured worker? and 6) what work was the injured worker actually doing at the time of injury?

Though Davis & Sons was intended to provide clear criteria for courts to apply, the test proved unwieldy in practice, with "final result[s] [often] turn[ing] on a minute parsing of the facts." Hoda , 419 F.3d at 380.

Fourteen years after Davis & Sons , the Supreme Court erected a guide-post in Norfolk Southern Railway Co. v. Kirby , 543 U.S. 14, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004). The Court considered whether a money-damages claim arising from a train derailment fell within its admiralty jurisdiction. The cargo destroyed in the derailment was completing the second, land-based leg of its journey from Australia to Alabama. The...