Lewis v. Glendel Drilling Co.
Decision Date | 26 April 1990 |
Docket Number | No. 88-4934,88-4934 |
Citation | 898 F.2d 1083 |
Parties | Beverly Locks LEWIS, Individually and as the Tutrix of Her Minor Children, Nona Aisha Lewis, Erisa Kironda Lewis, Jamal William Lewis, Benita Leshawn Lewis and Jeriel Nicole Lewis, Plaintiff, v. GLENDEL DRILLING COMPANY and Pioneer Production Corporation, Defendants. AVANTI SERVICES, INC., Defendant, Third Party Defendant, Cross-Defendant, Appellant, v. GLENDEL DRILLING COMPANY and Highlands Insurance Company, Defendants, Cross-Plaintiffs, Appellees, Mesa (as Successors to Pioneer Production), Third Party Plaintiff, Cross-Defendant, Appellee. |
Court | U.S. Court of Appeals — Fifth Circuit |
Robert A. Redwine, Sessions, Fishman, Boisfontaine, Nathan, Winn, Butler & Barkley, New Orleans, La., for Avanti Services, Inc.
Douglas W. Truxillo, Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Lafayette, La., for Glendel Drilling Co.
Patrick W. Gray, Lafayette, La., for Mesa Operating Ltd. Partners.
Appeal from the United States District Court for the Western District of Louisiana.
Before GEE and JONES, Circuit Judges, and HUNTER 1, District Judge.
This case confronts us again with the vexing question whether liabilities arising from offshore mineral exploration are to be determined under federal admiralty or state law. The result here is foreordained by precedent, but because of an apparently contradictory line of cases in our circuit and the uncertain policy underpinning our result, the appellant would justly ask "why?". Perhaps this court should seek to answer Avanti's question en banc.
Avanti Services, Inc., appellant, signed a turnkey contract with Pioneer Production Corporation (now Mesa Operating Ltd. Partners) to drill a well in Vermillion Block 55 in the territorial waters of Louisiana. Avanti hired Glendel Drilling to furnish a barge rig. The two contracts contain indemnity clauses designed to protect, respectively, Pioneer and Glendel from liability arising out of injuries to employees or invitees of Avanti on the drilling site. 2 Except for references to the furnishing of tugs or crewboats in a checklist of equipment needed for the drilling, neither contract mentions a vessel or any maritime condition as bearing upon the work to be performed. Given the location of drilling, however, the use of an offshore drilling rig was obviously necessary. The contracts are in large part form documents used in onshore and offshore mineral exploration.
During the drilling, Avanti hired Schlumberger Well Services to log the well's progress. On April 16, 1985, Schlumberger's crew was on the rig either engaged in or just having completed this task when it was discovered that Ernest Lewis, an employee of Schlumberger, had drowned. He had apparently been trying to transfer to the pipe barge, and thence to Schlumberger's equipment barge, which were moored next to Glendel Rig 18.
Lewis's widow filed suit alleging general maritime claims against Pioneer, Glendel, and Avanti and a Jones Act claim against Schlumberger. The liability actions eventually settled, leaving for resolution the cross-claims for contractual indemnity filed by Pioneer and Glendel against Avanti. 3 The court initially granted Pioneer's and Glendel's motions for summary judgment granting indemnity under maritime law, but upon Avanti's request, it decided to hold a hearing and reconsider.
Avanti alleged that a fact issue existed concerning whether Schlumberger was its invitee at the time of the accident. Avanti had stitched together a circumstantial case suggesting that after Schlumberger finished its work for Avanti on April 16, it commenced an entirely different logging operation that must have been ordered by the lease operator Pioneer. If the accident occurred during the later, hypothetical engagement, Avanti contended, Schlumberger and Lewis, its employee, had become Pioneer's invitees and the indemnity tables were turned, because Avanti was owed indemnity by Pioneer for injury to Pioneer's invitees. The court, after a hearing and receiving further evidence and briefs, rejected Avanti's argument and entered judgment calling for Avanti to indemnify Pioneer and Glendel according to their settlements with Plaintiffs. 4
On appeal, Avanti continues to urge that summary judgment was erroneously ordered on the invitee issue. More important, however, Avanti questions the applicability of maritime law to its contractual indemnity obligations. We shall discuss these issues in inverse order.
Avanti contends that its contracts with Pioneer to drill the wildcat well in Louisiana territorial waters and with Glendel to furnish its barge rig for that purpose are not maritime contracts. 5 The essence of a maritime contract, Avanti urges, is a connection with a vessel, but the instant contracts do not refer to a vessel. In a broader sense, Avanti urges that there is nothing inherently maritime in the business of offshore mineral exploration and that state law is better suited to resolve the problems it poses. Finally, because the contract which led to the death of Ernest Lewis was for the performance of wireline services by Schlumberger, Avanti contends that we are bound by our past recognition that wireline services performed offshore do not constitute maritime activity. Thurmond v. Delta Well Surveyors, 836 F.2d 952 (5th Cir.1988).
The relevant law of our circuit does not support Avanti's argument. Since at least as early as 1970, our authorities have identified contracts for offshore drilling and mineral operations involving the use of a "vessel" as maritime in nature. Theriot v. Bay Drilling Corp., 783 F.2d 527 (5th Cir.1986) ( ); Corbitt v. Diamond M. Drilling Co., 654 F.2d 329 (5th Cir.1981) ( ); Transcontinental Gas Pipe Line Corp. v. Mobile Drilling Barge "Mr. Charlie", 424 F2d 684, 691 (5th Cir.1970) (as to contract for offshore drilling and reworking operations, the court said "of course, the construction of a maritime contract is governed by federal, not state, law." [citations omitted]. Likewise, each of these cases interpreted an indemnity clause in the particular drilling or offshore servicing contract. As Avanti concedes, a contract need not specifically reference a vessel if it is actually "maritime". The drilling contract in Theriot, supra, provided that the drilling company "would furnish the equipment, materials, supplies, and services necessary to the drilling and completion of the well." 783 F.2d at 538. These terms are substantially similar to the terms of the contract between Avanti and Pioneer. The court's conclusion in Theriot that the contract "focused upon the use of a vessel", i.e. the drilling barge identified in an exhibit to the contract, inescapably leads to the same conclusion in this case.
A recent decision of this court questions whether Theriot's broad characterization of maritime contracts comports with the Supreme Court's decision in Herb's Welding, Inc. v. Gray, 470 U.S. 414, 105 S.Ct. 1421, 84 L.Ed.2d 406 (1985). See Union Texas Petroleum Corp. v. PLT Engineering, Inc., 895 F.2d 1043 (5th Cir.1990). Judge Brown's opinion in Union Texas goes on to
construe Theriot narrowly and constrain it to its facts. Since no drilling on navigable waters from a vessel is involved here, Theriot is not controlling.
Union Texas, at 1049. "Constrained to its facts," however, Theriot still controls the result in this case. Avanti's reliance on Union Texas must be limited to a plea for en banc review of the Theriot line of cases.
Only one case arguably runs counter to this authority. Avanti relies heavily on Thurmond for the proposition that a contract to furnish wireline services is "clearly a non-maritime obligation" ... "performed on land-based wells and offshore wells, and wireline services present hazards and problems peculiar to the oil and gas industry." 836 F.2d at 955. Thurmond applied state law to the construction of an indemnity clause in a wireline service contract, although the contract was performed and the employee injured while working on a wireline barge in Louisiana territorial waters. Thurmond is, however, distinguishable precisely because the contract there interpreted called solely for the performance of wireline services by a contractor. Because our other cases hold that contracts to drill a well offshore or to provide general services in connection therewith are, when performed from a movable drilling platform, maritime obligations, we must be bound by those authorities rather than by the special-purpose contract in Thurmond.
More difficult to dispose of is Avanti's reliance on the choice-of-law analysis applied by Thurmond and Union Texas. For although we are bound by cases construing contracts essentially analogous to those in issue here, we recognize the logical conflict between holding that such cases are inherently maritime while a contract for wireline services, not specifically referencing the offshore nature of the work, but actually performed from a barge, is not. Judge Garwood noted the apparent inconsistencies among some of our cases in this area, as well as their failure to cross-cite each other, in his concurrence to Thurmond, 836 F.2d at 957-58.
From these inconsistent lines of authority springs the potential for significant uncertainty in the law applicable to offshore mineral exploration. The application of maritime or state law to a particular contract may turn, as in Thurmond, on the degree of specificity with which it identifies operations offshore or on navigable waters. It may turn on whether the particular contractor furnished a "vessel" in connection with his work. It may depend on whether...
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