Stoot v. Fluor Drilling Services, Inc.

• Citation: 851 F.2d 1514
• Decision Date: 15 August 1988
• Docket Number: No. 87-4462,87-4462
• Parties: , 12 Fed.R.Serv.3d 246 Joseph Robert STOOT, Plaintiff, v. FLUOR DRILLING SERVICES, INC., Defendant-Appellee, v. D & D CATERING SERVICE, INC., Third Party Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1514

851 F.2d 1514

1989 A.M.C. 20, 12 Fed.R.Serv.3d 246

Joseph Robert STOOT, Plaintiff, v. FLUOR DRILLING SERVICES, INC., Defendant-Appellee, v. D & D CATERING SERVICE, INC., Third Party Defendant-Appellant.

No. 87-4462.

United States Court of Appeals Fifth Circuit.

Aug. 15, 1988.

Norman P. Foret, Lafayette, La., for Stoot.

Daniel A. Webb, Collins C. Rossi, Richard A. Fraser, III, New Orleans, La., Anthony D. Moroux, Lafayette, La., for Fluor Drilling.

Appeal from the United States District Court for the Western District of Louisiana.

Before CLARK, Chief Judge, RUBIN and JONES, Circuit Judges.

CLARK, Chief Judge:

D & D Catering Service, Inc. appeals the district court's order enforcing a contractual provision requiring D & D to defend and indemnify Fluor Drilling Services, Inc. Holding that the provision is void under Louisiana's Oilfield Anti-Indemnity Statute, we reverse.

I.

This case arose when Eloise Porter, an employee of D & D Catering Service, Inc. (D & D), attacked Joseph Stoot, an employee of Fluor Drilling Services, Inc. (Fluor), aboard the drilling rig, MR. DAVE. Stoot's hand was severely lacerated in the attack.

Stoot sued D & D in the Western District of Louisiana. The suit ended in a verdict for D & D which we affirmed. Stoot v. D & D Catering Service, Inc., 807 F.2d 1197 (5th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 82, 98 L.Ed.2d 44 (1987). Stoot then sued Fluor in the Western District of Louisiana. Fluor filed a third party complaint against D & D claiming that D & D was obligated to defend and indemnify it under Article 10 of their catering contract. D & D refused to defend and indemnify. Fluor filed a motion for summary judgment seeking a ruling that D & D was obligated to defend and indemnify. The main issue in the motion was whether Louisiana's Oilfield Anti-Indemnity Statute, La.Rev.Stat.Ann. Sec. 9:2780 (West Supp.1987) (Anti-Indemnity Statute), which declares void some indemnification agreements made by independent contractors, was applicable. The district court held that the Statute was not applicable because this was a maritime contract governed by federal law, and granted Fluor's motion. The case proceeded to trial with Fluor assuming its own defense. On the first day of trial, Stoot and Fluor settled. The district court entered a consent judgment against Fluor awarding Stoot $150,000.00. D & D then appealed the summary judgment order. Because the district court has not yet ruled on the reasonableness of the settlement, the summary judgment is not a final order under 28 U.S.C. Sec. 1291 (1966).

However, we have jurisdiction under 28 U.S.C. Sec. 1292(a)(3) (1966). We reverse.

A. Jurisdiction:

28 U.S.C. Sec. 1292(a)(3) permits immediate appeals from interlocutory decrees determining the rights and liabilities of parties to admiralty cases. The statute covers both admiralty and maritime cases. Fed.R.Civ.P. 9(h). An interlocutory decree which finally determines the liability of at least one party to a maritime suit is appealable under Sec. 1292(a)(3) even if damages haven't been finally computed. See, e.g., Martha's Vineyard Scuba Headquarters, Inc. v. Unidentified, Wrecked and Abandoned Steam Vessel, 833 F.2d 1059, 1063-64 (1st Cir.1987); Todd Shipyards Corp. v. Auto Transport, S.A., 763 F.2d 745, 751 (5th Cir.1985); O'Donnell v. Latham, 525 F.2d 650, 652 (5th Cir.1976). The intent of Sec. 1292(a)(3) is:

"to permit a party found liable to take an immediate appeal from that finding and thereby possibly avoid an oftentimes costly and protracted trial of the damages issue."

Seattle-First National Bank v. Bluewater Partnership, 772 F.2d 565, 568 (9th Cir.1985) (quoting 9 Moore's Federal Practice Sec. 110.19 at 209-10 (1985)). Because the district court's order finally determines D & D's rights and obligations vis-a-vis Fluor, it is immediately appealable despite the fact that the reasonableness of Fluor's settlement with Stoot has not been determined.

Fluor questions the timeliness of D & D's appeal. Under 28 U.S.C. Sec. 2107 (1982), the notice of appeal from an interlocutory decree in admiralty must be filed within 15 days after entry of the decree. See Hunter v. Department of the Air Force Agency, 846 F.2d 1314, 1316 n. 4 (11th Cir.1988). D & D's notice of appeal was filed 23 days after entry of the district court's order. Therefore, it would be untimely if Sec. 2107 were still in effect.

However, for the reasons set forth in Curacao Drydock Co. v. M/V AKRITAS, 710 F.2d 204, 205-06 (5th Cir.1983), the time limits set by Fed.R.App.Pro. 4(a)(1) have superceded the periods fixed by Sec. 2107. In Curacao, we held that because Rule 4(a)(1) has superceded Sec. 2107, a party appealing a final judgment in an admiralty case must file his notice of appeal within 30 days as required by Rule 4(a)(1), not within 90 days as prescribed by Sec. 2107. Rule 4(a)(1) makes no distinction between appeals from final orders and appeals as of right from interlocutory orders. Hence, Rule 4(a)(1) also supercedes Sec. 2107's conflicting provision giving parties only 15 days to file notices of appeal from interlocutory maritime decrees. In re White Cloud Charter Boat Co., Inc., 813 F.2d 1513, 1515-16 (9th Cir.1987). Under Rule 4(a)(1), parties appealing interlocutory maritime decrees have 30 days to file their notices of appeal. D & D's notice of appeal, filed 23 days after the district court's order, was timely.

B. Choice of Law:

The district court held that maritime law, not Louisiana law, governed D & D and Fluor's contract. The court relied on Theriot v. Bay Drilling Corp., 783 F.2d 527, 538-39 (5th Cir.1986) in which we held that the construction of indemnity provisions in maritime contracts is governed by maritime law. Theriot went on to say that whether a contract is maritime must be determined by the nature and character of the contract. Theriot, 783 F.2d at 538.

To determine the maritime nature of D & D's contract, the district court relied on Lefler v. Atlantic Richfield Co., Inc., 785 F.2d 1341 (5th Cir.1986) in which we held that a catering services contract in which the contractor agreed to provide household services to barges or other movable seagoing vessels included maritime obligations. Lefler, 785 F.2d at 1343. The court concluded that under a straightforward application of Theriot and Lefler, D & D's contract to provide catering services to the drilling rig, MR. DAVE, included maritime obligations and was governed by maritime law.

The district court's analysis of the maritime nature of D & D's contract was correct. A caterer's employee working as a galley hand on a drilling rig is a seaman. O'Dell v. North River Insurance Co., 614 F.Supp. 1556, 1560 (W.D.La.1985); Bolfa v. Pool Offshore Co., 623 F.Supp. 1177, 1179 (W.D.La.1985). Porter was engaged in providing galley services aboard a drilling rig when she stabbed Stoot. Hence, the contract was correctly construed as one involving maritime obligations. However, it does not automatically follow that maritime law applies. The district court failed to consider the parties' choice of law clause in Article 12 of the contract which stated that Louisiana law governed.

In the absence of a choice of law clause, the construction of indemnity provisions in a contract involving maritime obligations is governed by maritime law. Thurmond v. Delta Well Surveyors, 836 F.2d 952, 952 (5th Cir.1988); Fontenot v. Mesa Petroleum Co., 791 F.2d 1207, 1214 (5th Cir.1986); Corbitt v. Diamond M. Drilling Co., 654 F.2d 329, 332 (5th Cir.1981); O'Dell v. North River Ins. Co., 614 F.Supp. 1556, 1558 (W.D.La.1985). However, under admiralty law, where the parties have included a choice of law clause, that state's law will govern unless the state has no substantial relationship to the parties or the transaction or the state's law conflicts with the fundamental purposes of maritime law. Hale v. Co-Mar Offshore Corp., 588 F.Supp. 1212, 1215 (W.D.La.1984).

Louisiana has a substantial relationship to the parties in this case. Fluor, a California corporation, was qualified to do business in Louisiana. More importantly, D & D, the party seeking the protection of Louisiana law, was a Louisiana corporation. Louisiana has declared a strong interest in protecting resident independent contractors from the inequities of indemnity clauses that require the contractor to indemnify the vessel owner against his own negligence. The Anti-Indemnity Statute expressly states:

"The legislature finds that an inequity is foisted on certain contractors and their employees by the defense or indemnity provisions, either or both, contained in some agreements pertaining to wells for oil, gas, or water, or drilling for minerals which occur in a solid, liquid, gaseous, or other state, to the extent those provisions apply to death or bodily injury to persons. It is the intent of the legislature by this Section to declare null and void and against public policy of the state of Louisiana any provision in any agreement which requires defense and/or indemnification, for death or bodily injury to persons, where there is negligence or fault (strict liability) on the part of the indemnitee, or an agent or employee of the indemnitee, or an independent contractor who is directly responsible to the indemnitee."

La.Rev.Stat.Ann. Sec. 9:2780, subd. A (West Supp.1987).

Several cases have recognized the strength of Louisiana's interest in applying the Anti-Indemnity Statute. In Matte v. Zapata Offshore Co., 784 F.2d 628 (5th Cir.1986), cert. denied sub nom. Zapata Offshore Co. v. Timco, Inc., 479 U.S. 872, 107 S.Ct. 247, 93 L.Ed.2d 171 (1986), the court refused to enforce a choice of law clause in a master service agreement which specified federal maritime law. The court stated that it would not participate in such an obvious end-run around the Anti-Indemnity Statute. Matte, 784 F.2d at 631. In Lirette v. Union Texas Petroleum Corp., 467 So.2d 29, 32 (La.App. 1 Cir.1985), the ...