New Test For What Constitutes a Maritime Contract Urged

New Test For What Constitutes a Maritime Contract Urged

By: Arthur Crais

In re: Limitation Complaint of Larry Doiron, 2017 U.S. App. LEXIS 3675 (5th Cir., Feb 27, 2017, revised opinion)

The initial opinion of the panel consisting of Judges Southwick (the author), Davis and Dennis was issued on Feb. 23 with a revised opinion issued on Feb. 27. I frankly haven't compared the two.

In any event and as is usually the case in the oil patch, the issue was whether Louisiana law applied to the contract and thus voiding the indemnity provision or whether it was valid and enforceable under General Maritime Law. The incident occurred in West Lake Verret in the Atchafalaya Basin. Flowback services were required for the production facility which eventually required the use of a crane barge. An employee was injured in the course of rigging down giving rise to the limitation complaint and personal injury suit.

The trial judge applied the Davis factors (discussed in the opinion) and held that the contract was maritime. On appeal, the court discussed the mutlifaceted test adopted by the Fifth Circuit in  Davis & Sons, Inc. v. Gulf Oil Corp., 919 F.2d 313 (5th Cir. 1990). Finding it a close call after applying all the factors,the court affirmed.

Judge Davis's concurrence is most important as he (and Judge Southwick) implores the court to grant rehearing en banc due to the confusing and often inconsistent decisions of the court in the past. (Quite an understatement!) He urges the court to abandon the Davis test and to adopt a more uniform approach which was adopted by the Fifth Circuit en banc in Grand Isle Shipyard, Inc. v. Seacor Marine, LLC, 589 F.3d 778, 787 (5th Cir. 2009) (en banc) and which the Supreme Court adopted in Norfolk Southern Railway Co. v. Kirby, 543 U.S. 204 (2004).