United States District Court, E.D. Louisiana
ROBERT G. HICKS ET AL.
BP EXPLORATION & PRODUCTION, INC. ET AL.
ORDER AND REASONS
M. AFRICK UNITED STATES DISTRICT JUDGE.
question is, what substantive law governs plaintiffs'
case? BP Exploration and Production Inc. (“BP
Exploration”), BP America Production Company (“BP
America”) (collectively, “the BP
defendants”), and Bishop Lifting Products, Inc.
(“Bishop”) argue that Louisiana law applies to
this negligence action, at least as to plaintiffs' tort
claims against them. Plaintiffs counter that general maritime
law, not Louisiana law, applies.
the Court are three motions for summary judgment on this
narrow, yet significant, issue.
DOG is an oil and gas spar platform located on the Outer
Continental Shelf (“OCS”) in the Gulf of Mexico
that is owned and operated by BP Exploration. In March 2016, a
vessel-the OCSV SIEM STINGRAY (“STINGRAY”)-was
being used as a “flotel, ” or living quarters,
for at least some of the MAD DOG's crew and
subcontractors. At the time, BP Exploration was the time
charterer of the STINGRAY.
BP America employs many of the personnel on the MAD DOG, it
does not employ them all. For example, Bishop had at least
one employee stationed on the MAD DOG in March 2016. Ensco
PLC Drilling (“Ensco”) also had employees
stationed on the MAD DOG, including Robert Hicks
March 2016, Hicks was working as a rig electrician on the MAD
DOG pursuant to a contract between Ensco and BP Exploration.
He was “rooming” on the STINGRAY at the time,
would be transferred to and from the MAD DOG via a personnel
basket. The crane facilitating the transfers was located on
the MAD DOG.
alleges that, on March 20, 2016, he was injured during one of
these transfers. According to Hicks, the personnel basket in
which he was being transferred “hit the deck of the
[STINGRAY], ” then “jerked up” before it
“hit the [STINGRAY] again.” Hicks contends
that he “fell down in the basket” the second time
that it made contact with the STINGRAY, with “one leg
in [the basket] and one leg out of it.”
and his wife eventually initiated this tort action. They
allege that negligence attributable to BP Exploration, BP
America, and Bishop-as well as other defendants-during the
March 20, 2016 personnel basket transfer from the MAD DOG to
the STINGRAY caused the injuries about which Hicks now
judgment is proper when, after reviewing the pleadings, the
discovery and disclosure materials on file, and any
affidavits, the court determines that there is no genuine
dispute of material fact. See Fed. R. Civ. P. 56.
“[A] party seeking summary judgment always bears the
initial responsibility of informing the district court of the
basis for its motion and identifying those portions of [the
record] which it believes demonstrate the absence of a
genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The party seeking
summary judgment need not produce evidence negating the
existence of material fact, but need only point out the
absence of evidence supporting the other party's case.
Id.; Fontenot v. Upjohn Co., 780 F.2d 1190,
1195 (5th Cir. 1986).
the party seeking summary judgment carries its initial
burden, the nonmoving party must come forward with specific
facts showing that there is a genuine dispute of material
fact for trial. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). The showing of a
genuine issue of material fact is not satisfied by creating
“‘some metaphysical doubt as to the material
facts, ' by ‘conclusory allegations, ' by
‘unsubstantiated assertions, ' or by only a
‘scintilla' of evidence.” Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)
(citations omitted). Instead, a genuine issue of material
fact exists when the “evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
party responding to the motion for summary judgment may not
rest upon the pleadings, but must identify specific facts
that establish a genuine issue. Id. However, the
nonmoving party's evidence “is to be believed, and
all justifiable inferences are to be drawn in [the nonmoving
party's] favor.” Id. at 255; see also
Hunt v. Cromartie, 526 U.S. 541, 552 (1999).
“[a]lthough the substance or content of the evidence
submitted to support or dispute a fact on summary judgment
must be admissible . . ., the material may be presented in a
form that would not, in itself, be admissible at
trial.” Lee v. Offshore Logistical & Transp.,
LLC, 859 F.3d 353, 355 (5th Cir. 2017) (quoting 11
Moore's Federal Practice-Civil ¶ 56.91 (2017)).
“This flexibility allows the court to consider the
evidence that would likely be admitted at trial . . . without
imposing on parties the time and expense it takes to
authenticate everything in the record.” Maurer v.
Independence Town, No. 16-30673, 2017 WL 3866561, at *3
(5th Cir. Sept. 5, 2017).
Court must first consider whether this tort action arises
under the Outer Continental Shelf Lands Act
(“OCSLA”). The statute's jurisdictional grant
provides, in relevant part, that
the district courts of the United States shall have
jurisdiction of cases and controversies arising out of, or in
connection with [ ] any operation conducted on the outer
Continental Shelf which involves exploration, development, or
production of the minerals, of the subsoil and seabed of the
outer Continental Shelf, or which involves rights to such
43 U.S.C. § 1349(b)(1). “The Fifth Circuit has
interpreted this language as straightforward and broad,
” In re DEEPWATER HORIZON, 745 F.3d 157, 163
(5th Cir. 2014), applying a “but-for” test to
define its scope, see Hufnagel v. Omega Serv. Indus.,
Inc., 182 F.3d 340, 350 (5th Cir. 1999) (“We apply
a broad ‘but-for' test to determine whether a cause
of action arises under OCSLA.”); Recar v. CNG
Producing Co., 853 F.2d 367, 369 (5th Cir. 1988)
(“We have established a ‘but for' test to
resolve” the question whether § 1349(b)(1) is
satisfied in a given case.). This “but-for” test
consists of three elements: “(1) the facts underlying
the complaint occurred on the proper situs; (2) the
plaintiff's employment furthered mineral development on
the OCS; and (3) the plaintiff's injury would not have
occurred but for his employment.” Barker v.
Hercules Offshore, Inc., 713 F.3d 208, 213 (5th Cir.
2013) (Clement, J., with whom Haynes, J., concurs).
Fifth Circuit's application of this test in Recar v.
CNG Producing Co., 853 F.2d 367 (5th Cir. 1988), is
particularly instructive. Thomas Recar “was employed by
Land & Offshore Company as a maintenance crew
foreman.” Recar, 853 F.2d at 368. According to
the Fifth Circuit,
Recar and his crew had been engaged for some time in
repairing and painting platforms that CNG Producing Company
(CNG) owned on the Outer Continental Shelf off the coast of
Louisiana in the Gulf of Mexico. CNG had hired the M/V GRADY
FAGAN to transport the crew from platform to platform, and
Recar and his crew ate and slept aboard this vessel.
Additionally, Recar spent a large part of his work time
aboard the GRADY FAGAN, monitoring the crew's work. On
the morning of November 28, 1985, Recar alleges that he was
swinging from a CNG platform to the GRADY FAGAN when the rope
broke, causing Recar to fall to the deck of the GRADY FAGAN
and injure his neck.
Id. The Fifth Circuit concluded that Recar's
case fell within the scope of OCSLA. Id. at 369. It
pointed out that “Recar, at the time of his injury[, ]
was working as the foreman of a maintenance crew engaged in
painting and repairing production platforms which were built
and maintained for the purpose of producing oil and gas from
wells previously drilled.” Id. Thus, the Fifth
Circuit determined that “Recar's work maintaining
the production platform furthered mineral development”
on the OCS and that “Recar would not have been injured
‘but for' the maintenance work he was performing
and supervising on the platform.” Id.
the “but-for” test to the undisputed facts, the
Court concludes that OCSLA jurisdiction extends to
plaintiffs' tort action. As a contract rig electrician on
the MAD DOG-an oil and gas spar platform on the
OCS-Hicks' employment undoubtedly
furthered mineral development on the OCS. Cf. Id. In
addition, Hicks would not have suffered his alleged injury
but for his employment on the offshore platform. Cf.
Barker 713 F.3d at 213 (“[I]t is clear that but
for his employment, Barker would not have been involved in
the incident forming the basis of this suit.”);
Hufnagel, 182 F.3d at 350 (“But for
Hufnagel's work on the platform, his injury would not
have occurred.”); Tenn. Gas Pipeline v. Houston
Cas. Ins. Co., 87 F.3d 150, 155 (5th Cir. 1996)
(concluding that the “but-for” test was satisfied
and OCSLA jurisdiction existed where “[a]n ocean-going
vessel . . . allided with a platform secured to the outer
continental shelf some 35 miles off the coast of Louisiana,
” id. at 152, because “there would not
have been an accident had Tennessee Gas not built its
platform to extract minerals from the OCS, ”
id. at 155).
“[c]ourts have held that when . . . an individual is
‘physically connected' to an offshore platform at
the time of the accident giving rise to the suit, the OCSLA
situs requirement is satisfied.” Landerman v.
Tarpon Operating & Dev., L.L.C., 19
F.Supp.3d 678, 683 (E.D. La. 2014) (Vance, J.) (citing
cases). At the time of his alleged injury, Hicks was at least
partly in the personnel basket and, through the basket, he
was physically connected to the MAD DOG. Cf. Henson v.
Odyssea Vessels, Inc., No. 07-613, 2007 WL 3343011, at
*1 (E.D. La. Nov. 8, 2007) (Barbier, J.) (treating OCSLA as
covering an action involving a plaintiff who, “in an
effort to return to shore, was lowered in a personnel basket
via crane onto the deck of a crew boat, ” and,
“[i]n the process of being lowered, . . . was
‘violently slammed into the cluttered deck' of the
waiting vessel”), modified, 2008 WL 544184
(E.D. La. Feb. 25, 2008) (Barbier, J.); Champagne v.
Tetra Applied Techs. Inc., No. 05-299, 2006 WL 287985,
at *3 (S.D. Tex. Feb. 6, 2006) (concluding that an accident
occurred on an OCSLA situs where the injured platform worker
“was connected to the personnel basket at the time of
the alleged injury and [ ] through the basket [ ] was
physically connected to the crane and Exxon's
platform”). The MAD DOG is unquestionably a covered
situs under OCSLA. See 43 U.S.C. §
1333(a)(2)(A) (covering “artificial islands and fixed
structures erected” on the OCS); see also Grand
Isle Shipyard, Inc. v. Seacor Marine, LLC, 589 F.3d 778,
785 (5th Cir. 2009) (en banc) (observing that a stationary
platform on the OCS qualifies as an OCSLA situs).
Court concludes that plaintiffs' tort action arises under
purpose of [OCSLA] was to define a body of law applicable to
the seabed, the subsoil, and the fixed structures . . . on
the [O]uter Continental Shelf.” Rodrigue
v. Aetna Cas. & Sur. Co., 395 U.S. 352, 355
(1969). To this end, OCSLA provides, in pertinent part:
To the extent that they are applicable and not inconsistent
with [Subchapter III of Title 43, United States Code, Chapter
29, ] or with other Federal laws and regulations of the
Secretary [of the Interior] now in effect or hereafter
adopted, the civil and criminal laws of each adjacent State,
now in effect or hereafter adopted, amended, or repealed are
declared to be the law of the United States for that portion
of the subsoil 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, and the President shall determine and
publish in the Federal Register such projected lines
extending seaward and defining each such area.
43 U.S.C. § 1333(a)(2)(A); see also Id. §
1331(b) (defining the term “Secretary”). In
short, “OCSLA extends federal law to the Outer
Continental Shelf and borrows adjacent state law as a
gap-filler.” Texaco Expl. & Prod., Inc. v.
AmClyde EngineeredProd. Co., 448 F.3d 760, 772
(5th Cir.), amended on reh'g, 453 F.3d 652 (5th
Cir. 2006). In this case, “Louisiana is considered the
state adjacent to the MAD DOG platform.” Wolz ...