clock will let us know when then you'll be open right all right your own thank you but please the court i'm robert jeffrey bridger here on behalf of the appellant specialty rental tools and supplies l a p oil states  that was the the abbreviation that was used throughout the record and to a pelleas as twa iran or l d r it would be difficult to find a case that presents a starker contrast between  non maritime oil and gas well service contract and a completely separate maritime charter of a vessel the two separate contracts apache individually made with the parties to this case consequently the erroneous judgments now before this court on bach also graphically demonstrate how the development of the davis factors from the case davis and sons versus call for core have become ineffective if not misleading in determining reasonably and consistently what contract should be construed under maritime law and which ones are properly subject to state law in short cases in this court preceding davis and still volatile ha old perfectly sound authority and as it turns out now that we look at them somewhat in hindsight and with the through the lens of norfolk versus kirby we realize they were and that they actually foresaw the rule that the supreme court would ultimately hand down in the kirby case and establish that when the principal objective of a contract is to serve a vessel engaged in maritime commerce the contract is maritime but when the principal objective of a contract is to serve a well for oil and gas a fixed platform or other land based interest it is non maritime and controlled by state law whether through incorporation into federal law under the o c s l a if if the jurisdiction met of course or directly under state law if within a state jurisdiction l the eyes focus only on the first sentence of the  unavailing for that reason because the application of the current controlling supreme court precedent determines that maritime law is not applicable to s t s his contract that determination and the conduct of s t s his work on a louisiana fixed well platform mandate under the second sentence of the master service contracts choice of law clause that louisiana law must apply in this case and of course that assumes that a the party's choice of law within that within their contract necessarily controls assumption again that the i makes i think in this particular case given the fact that the master service contract provided for those alternatives that is maritime law when  applied effectively when it applied of its own force would would apply would be chosen or if it did not apply it was determined that maritime law did not apply then the state law would apply and it would be the state where the work was done in this case no question about that that's in the easy and they're in the easy in a state waters essentially of virtually landlocked lake in the coastal area louisiana like they're now moreover application of louisiana law in this case beyond merely the fact that it's specified effectively under the master service contract choice of law provision but it also acknowledges the strongly expressed state interest in regulating contracts pertaining to oil and gas wells within the jurisdiction of the state and in particular the public policy of avoiding all aspects of indemnity agreements against the indemnity zone negligence which is fundamentally the reason we are here and the reason that cases like davis ever came into being and i'd suggest to your honor's and we'll develop this further in the argument that the davis factors that's part of the reason the davis factors have led the lower courts and parties somewhat a stretch is that they tend to o b overly concerned with the tort issues that are presented in these cases that involve and the question of whether or not that and in that t is valid as a result of whether the louisiana state law applies or maritime law applies made a great deal about of noise in its argument and in its brief about the idea that somehow this was a subjective issue because the work order was verbal well it's not subjective it's about as objective as it gets because not only is the evidence again uncontroverted you know with a question yes i understand thank you not only is the evidence uncontroverted but the again uncontroverted objective facts of this case show that s t s didn't have  to put chemicals equipment to being into a hole in the subsurface of the state of louisiana from a on a fixed platform and only as a result of the fact that apache the owner of the well in the platform did not have any form of lifting device on its platform  e separately without asking s t s to do anything else made a contract with an entirely separate third party l the guy to provide the crane that apache just didn't have on its on its class question yes if the question before says whether to retain the davis factors a lot of the impetus to change them comes from scholarship  is there as there's that scholarship a den of fide any case in the thirty years that we've been applying the davis factors that came out wrongly using the days factor that they say would come out differently if we applied the revised kirby test as the scholarship said there's a single case that came out wrong i believe your honor and unfortunately i'm the the name of the cases escaping me but i think that it is i think it's fair to say that the scholarship and the analysis that's been done regarding the application of the davis factors would indicate that cases involving the cases involving casing services with respect i may mention one that you'll know by name the district court relied primarily on our two thousand and five ho decision is it your opinion that if we accepted your revised test that decision would come out differently yes your honor i think it would even though the scholarship points to that case is one that was rightly decided using the devas factors i think it was i wouldn't agree that it was rightly decided using the davis factors as they have all the about what about the firm and not care of the wireline case certainly a case that preceded the rule that came out of norfolk versus kirby in fact it thurmond actually states and refers to the idea that the suit the fifth the focus of the contract is or the the the principal objective of the contract is what the court has to look at not specifically the involvement of the vessel let me ask you just a general question as you know well founded concurrence in this beyond that is i think we could go farther it's not necessary to go any further in this case specifically in this case well let me ask you a question then to you basically drawing to you would you have this case and hoda and i wrote hoda and i'm willing to see it overruled if if we can do a better line but that was clearly oil and gas work but it was on a jacked up drilling rig and that's what governed the determination so even if you we change to another formula there's still going to be a practical distinction is there not between the six platforms and the rigs  line for purposes of evaluation and indemnity and song thing and but it really wouldn't help in that many cape i think it would help it we would help you know a lot of a large number of cases because the certainly are many cases that do involve specifically the question and that will have those specific facts they're either on a mo do a mobile offshore drilling unit is a special purpose vessel or they're on a fixed platform somewhere could be on the n c s could be in within state waters either way same result state law would apply on the fixed platform we still have to ask them some questions when it comes to a  special purpose vessel the problem with that rather nice clear clean line that certainly helps helps me in this case is that it's not consistent with kirby it's not geographic soley geographic the focus should be on the principle objective of the contract and if the principal objective of the contract is to drill into the the the  ground or to construct a structure on the ground then it is appropriately not maritime even if of a vessel may be involved in some way even if the work is actually done on a special purpose drilling vessel and that would obviously change casing cases as well as the blowout preventer cases oil and gas exploration and production are not maritime commerce and that contracts for the construction of offshore production facilities and pipelines and while on services are not american contracts on the other hand there is a lot of authority that states that drilling contracts and contracts the casing services are maritime contracts and that offshore drilling is maritime commerce be the most recent pronouncement of supreme court on what constitutes a maritime contract in norfolk southern railway versus kirby incurred by the court made it clear that you cannot look to the involvement of a ship or a vessel to determine whether a contract is american contract governed by maritime law by instead one must look to whether the principal objective of the contract is maritime commerce and the course court also gave a very strong indication as to what he thought was maritime commerce quoting from gilmore in black he stated ideally the admiralty jurisdiction over contracts ought to include those and only those things principally connected with maritime transportation the decisions of this court in laredo offshore constructors union texas petroleum and thurman are completely consistent with this view as the council just stated it's almost as if they had been written in the aftermath  those cases all concluded that all offshore oil and gas exploration and production is is not maritime commerce and that the contracts involved are not maritime contracts and  judge wisdom went on to state the fact that maritime law simply doesn't have answers for the questions that arise under the typical contract for for services in the oil and gas industry if you look at any treatise on drilling contracts for example you'll see that the issues that arise under drilling contracts are are not there's not a word in that you could look through every maritime treatise in the world world and you would not find one word about those issues in fact the only issue that law and civil law jurisdictions the drilling contract cases and casing service contract cases on the other hand are completely inconsistent with kirby they are the principal factor they look to those cases look to determining that a contract is american contract is the fact that a vessel is involved and they're based on the early cases that establish that principle that then just continued in the jurisprudence worse case in the course of the court cited to stevedoring contracts which of course  or contract is very much related to maritime transportation in these cases also overlook the justification for a body of uniform maritime law the purpose of a lot of uniform maritime law is to protect maritime commerce and by that the court clearly means in the in in kirby the international interstate commerce ships move ships go from jurist from one jurisdiction to another and it helps maritime commerce to have a common body of law  wells don't move drilling rig that is performing drilling services for example will never move was performing the principal objective of the contract the this case in point provides an good example  applying a uniform federal maritime law to aid to this accident this whale was located in west lake barrette in the interior of louisiana and it's inconceivable how anything to do with this contract would ever impact interstate or international commerce finally be the extension of that maritime law beyond the needs of traditional maritime commerce raises serious issues of federalism and  only other hand some transactions closely connected with maritime transportation have been executed on the ground they were merely prepared to order such transportation i your stiction ought to include those in those things principally connected with maritime transportation so mary the lower courts have been over inclusive as to torque and under included as to contract so what they're saying is that maritime contract should be extended to include the program in their contract and that's what justice o'connor used to add to e the they were referring to contracts that logically should be included prince of the one that comes to mind immediately is agency contracts and and prior to the decision i'm not struggling of exxon was involved in a case where the supreme court extended the jurisdiction to general agency contracts for shipping those contracts were excluded i think you make you could make an argument that ship construction contracts but i think that was the that was the focus of that comment well i agree but i mean you multiple cases saying that offshore drilling offshore production activity on maritime commerce it's certainly commercial and it if i mean if you if you have a is that it is up all over the water it's not maritime commerce in the sense that the transportation aspect of that contract is relatively incidental a rig if you if you hire a rig to go drill a well off shore the transportation might be three or four days going out three or four days coming in basically all of the decisions that have been rendered in the deepwater horizon case would have to be reconsidered  maritime commerce only includes those things related to mt maritime transportation would not change the fact that these special purpose vessels are vessels that would remain vessels are defined by statute as vessels it would not it would not alter the fact that the workers who have the requisite connection to those vessels are seamen that would remain the same contracts to tow those vessels contracts to salvage those vessels all that would remain the same and governed by maritime law you know justice o'connor rely heavily on the coffee supreme had malpractise or was suffered from that it would they would pay far in the courts that so that they would america term contract but not have to do with transportation well because the relationship between between ship d basically a question is what if you're talking about what is american contract is again what is the principal objective of the contract and in the case of a contract with it with a seaman or contract when we get to revisiting whether davis and son should be revisited which is why we're here i assume it's because of the interplay between state law between the interplay with maritime law and of course the kirby decision the kirby decision is at this point the leading case from the supreme court and what's very clear from the supreme court is an expansive view of the application of maritime law it applies in almost any conceivable situation when the contract in question has as i quote from a reference to maritime services or maritime transactions that's if it's a very narrow touchstone uniformity of course is there too but the point about being a m contract is that it have reference to maritime activity and that's what we have here is a contract that references maritime activity contemplates maritime activity and papa says rules and regulations and requirements when particular individual tasks you can eliminate any contractor being maritime ok what happened here was you have the overarching master service contract the m s c which says if you work in in on or above the waters now when waters then you have to do certain things you have to have insurance and choice of law applies everything of that nature then you have a small carve out from that or small addition i should say which is the work order in this instance we would like to go to this particular rig and do this particular work on the rig if you can do it but bearing in mind at all times if you use a vessel all these maritime components come into play and so what happens is they go out to take a boat they go out to the platform and they try to do the work they can't do the work so they were trying to do work without triggering their maritime activity without  it and that required the barge to to be the barge to come out and for them to use the crane on the barge for the performance of the contract that was contemplated it was anticipated it was contracted for insurance was provided the of the contract with s t s s t s this contract says that when ever you use a vessel not own it lease it charter it hire it pay for it when you use a vessel in the performance of this contract which is what they headquartered in houston so interstate commerce is clearly involved that when you deal with that situation s t s this contract is maritime what paragraph of the contract is that i think you're mi when you have and what we've done is the contract provides for the application maritime law so that's irrespective of whether maritime law of its own for supplies that's an ox of the only concept maritime law of it's own for supply this is a contract freely negotiated that says we will apply maritime law when every year working in on or above the water under maritime choice of law provisions that's perfectly enforceable because and is in fact based in a multi and in fact a maritime talk which gives a broad basis for jurisdiction under thirteen thirty three you don't need to get into the state law i'm not saying the court can't address state law issues but that's not what we have to deal with here we're dealing strictly with the merits of the court sitting in that multi which they are but are you saying that the  the congress said the state law shall be adopted n p l become the law of the united states that does not apply on non oxley territories on the intercontinental shelf in waterways rivers lakes and the place else that's enough incorporation our adoption of state law don't apply it remains a maritime mission maritime jurisdiction so under under the davis but if you change it we're left out of no work because you know we were lied to our detriment of whatever base and what the state of the law was etc etc so i'm really sore asking the question of did we make a change you know what does that do here the earlier case we had some argument you know it's arguable whether the circumstances would change at all no matter what we do in this case my sense was secondarily that if we make a change you know potentially that's not what the parties bargained for relied on it cetera so i'm just asking but without going to be well again it depends a little bit if we were predicating largely on judge davis proposed test which would be exclusive performance upon a vessel would make it maritime otherwise presumably it so if you took those two i think that we could conceivably have a totally different outcome and no judge davis proposal would would clip the result ok because the work here was not performed exclusively upon  work performed on the platform and there was work performed by and with the vessel that's what caused the acts of the windows vessel here that would be no accident to be no claim he would be in court so if it goes now way there would be an absolute change the enforceable that's an absolute one hundred eighty degree turn if you were to take what i think is a more appropriate reading of kirby and caustic which is an expansive view that if you're basically utilizing maritime commerce if you're utilizing it in ways of your contract it's maritime and the only way to get away from that when you're in on or above the navigable waters is to really isolate yourself on to that narrow artificial structure sticking out of the ground and once you go over the water once you're in the water once you're using the barge when using the crane on the barge it remains maritime and so i think you know with the courts have been very hesitant to draw these black letter law rules on where maritime law stops where maritime law starts it's been a difficult down decision but when you get into cases such as the drone group or case which was a maritime tort i chicago river that the supreme court took it with the hamilton extension act as if you know helping build bridges helping build docks helping build build anything that's on the land if you're doing it from the water is still maritime maritime jurisdiction attaches of jurisdiction and so i think when you take all of those cases together the supreme court has gone very broad maritime doesn't require salt that makes you gag ok it just takes a little bit of salt and that's what do you what do you say to curb it if the principal object of the contract for america time drug action but you know that's an interesting point because kirby says that the principle question is whether the contract references maritime services and the transactions and they do say as you've just quoted but i don't think that's the crux of the whole case the crux of it is if it's court was very clear in saying that that the main concern is that if it has a reference to maritime and i think that's the starting point that particular factual scenario it had reference and we get into a situation where somebody is on a vessel and they go one mile and then they go ten miles by land is it maritime that goes ten minutes on the water in an hour by land is it maritime we start getting into these we're back to a davis sort of analysis of trying to w what's the dominant theme what's the longest part what's the most predominant part was this really and from the mariner standpoint which is my perspective from the mariner standpoint if a vessel was called in by apache or s t s and said come on over and they still based in florida where they were based in alabama new york it doesn't matter they come in they should be expecting that when they're doing the work they've got all the protections available under a contract that will be let me ask you a question because you said this contract has a reference to maritime because it has an insurance provision and i found it the insurance says if contractor uses any vessels in connection with it work well i mean they could have rode a canoe out to the fixed platform and according to you that would make it a maritime contract is that right but you're right that that's that that getting out there and in doing the work are two different things it's sort of like the  contracts directly with vessels for use in the work then they would have to carry all this maritime insurance so what is used and i'm not speaking simply about this contract i'm speaking about the variety of i understand that i will tell you that whether you take the totally expansive view that including transportation out there i think i mean i'm when you mention the deepwater horizon i had an image of this structure out in the water and all the boats out there blowing water on it to try to put the fire out and try and rescue the guys who had fallen off and to try and put out the catastrophe that was unfolding before everybody in there was i'm looking going how in the world could this ever out there so basically you know you're all you're only arguing for a result in this case you are not arguing for something that clarifies the law going forward because if we go forward under the kirby deal then the maritime offshore production industry is going to be thrown into disarray for the next thirty years while we figure out the new test but actually the test that we proposed which is just a proposal of course is that if you can do all of your work on that platform on that artificial structure that's sticking out of the ground there in expression no man is an island there is indeed and that the whole fiction of the islands has become problematic too because that's an when you start to to kill eight the rule if you can do all your work on the structure then it would be non maritime that's the limiting principle that would be the limiting principle and the district court largely felt it was bound by hota ho does the flip they couldn't do any work because the wellhead was below water was but what was right so to be hoed is easy that's maritime under your rule but but the district court felt that compelled an outcome here where the majority of the work was on the structure so i don't even if we don't adopt davis i don't see that hoed is compelling to the outcome is the district felt it was but i think the hota under a davis analysis works if you take a new standard a new team really requires you to be isolated upon the island so that you really are on the land then that's fine but because when you have the neighboring floating vessel coming on land because of that move the extension and everything else it doesn't fact it is in fact th you're sitting in the water you are an incidental act not contemplated i would say even an incidental stuff if you're not a question i think i mean you've been very clear so i'm only interrupting as i think i understand your position but there was as a partial unanswered point t application in other words that's that's a strong statement and i read that case to have been adjusted by later supreme court law so i'm really just wondering do you have a fence circuit case that would speak to if your client doesn't prevail here it's still couldn't be applied the new rule can be applied to him with all due respect i've looked and i don't know that i found ok thank you do you do we have or are we just concerned with the oil and gas industry or is it possible there are other industries that could be involved and if we're going to y act in the texas oil field indemnity act and we're carving out an industry from a nationwide up occasionally law that otherwise conceivably would apply we have awful offshore wind mills going up all around the country now we have offshore surface mining as opposed to oil and gas where they're extracting products from the bottom of the sea all these things come into play i i can foresee many other things as technology changes where you'll be doing more stuff in the sea which brings me back to kirby because kirby dealt with in very explicitly specified that you were dealing with container cargo and the container is a should have been a massive change on transportation of goods by sea and otherwise and so the court recognizes technology changes we need to adapt the courts need to adapt to a situation that's new we have tried for years to try and carve out the oil and gas industry from maritime law involvement and it's something that you know i can respect it's been there the case closed very well established but when it first happened it was new and nontraditional now boats go out every day to service the offshore industry it is part of being in the ocean now and so if we can take container cargo that now transports across the across the land by train as being air time  everything else that comes in the future ought to also be similarly it's it's almost like carving out as best as claim from everything else and under the sun this is a very never carve out it's only for oil and gas and it's only because so far only because of lawyer is not going to apply by its own terms and so we start getting into an interesting car about where other things may be maritime so as you go through and develop this rule things that are going to be maritime or maybe maritime such as the windmills maybe controlled by a different set of laws even though they're in the same waters maybe next to maybe even a pong those same structures that are in the in the water today agreed green in many respects marriage tax which is why i get back to the oxo because oxley was a legislative mandate as well by the national guard by the congress and it very clearly drew its lines that state law only applied to these structures these artificial islands out of that shelf and it's inappropriate to extend that command from congress into elin waters or neighboring waters off near in shore and in waters so we've got to be careful from from the courts perspective and i know everybody respects that everybody understands it is to not take on what congress should be doing or that what the congress should be doing and expanding congressional mandates beyond take such a role of mine but one looks at the overall contract what's going on out there it is rick the other one of the reasons davis has been criticized maybe unfairly from your viewpoint is that it's more tort related looking at what the individuals were doing in the specific jeanne be asking to give away your case but does focus somewhat on tort issues and not really contract issues and and there is a choice to be made here should we look at the governing contract in the and the purpose of it matter it's handled otherwise so we can't totally disengaged the tort based analysis but what what's happened is we have twisted the maritime law to fit in with the oil and concurring opinion i personally think that davis was applied fine davis is not a problem it's not that difficult to apply it may be a pain in the neck in some ways and lawyers may sometimes twist it around i understand that that sort of the nature of litigation so i don't really have an inherent problem with davis but if we're going to go to an alternative test that's going to be universally applicable that's why we suggest that if it's in on or above the now the waters it would be maritime unless you can absolutely narrow it down to being work simply perform purely and exclusively on the island without any extension from the city and your task if there's any involvement by the law yes part that would be a very clean black letter a straight line down i would actually go with that it was it would clean up many issues i understand there's maybe some policy issues you need to discuss than that but yes i would actually draw a very straight line place on the fixed platform they did not work on the boats there's no core or barges there's no question about that the only to the contact with the barge was the toward the contract now beyond that judge davis i believe you asked about the roberts versus interject case and another a believe that we had talked about that in our panel briefing and that case could be conceivably somewhat helpful to the board in terms of developing the reasoning that's more in line with what the supreme court is is requesting of us and what this court has already adopted in the outer continental shelf lands act venue under the grand ol shipyard case and that is the issue is the focus of the contract and what is or the principal objective of the particular contract that's under consideration not third party contracts that may come in and have some involvement but they're still separate contracts and that's the issue here we talking about contracts in the roberson case if i recall correctly that was a case in which the vassals that were involved and that were contracted for were solely being used as work platforms and so their involvement with the work that was ongoing i believe in intracoastal was not sufficient to trigger maritime the jurisdiction or the application of maritime law in that  case i hope i'm getting it right but i think that that was the case that that was being referred to beyond those issues and going back to the fundamental question that brings it on backcourt together and that is it's clear and it's been said again and again and again that the davis factors are problematic as a test to separate out what's we did not that was not specifically argued below what was argued below was that a proper application of the davis factors which would be consistent with kirby and thurmond and dome ag and all the all of those other cases that actually favor the object of the principal objective of the contract analysis that an to perform some work to clean out a well on a fixed platform same thing that absolutely the same thing that they would do on land as as they happen to do on an island it could be a man well oddly enough your honor and again this is somewhat of a problem from the perspective of i guess everybody getting lost in the trees instead of seeing the whole forest the the work was never successful the vessel didn't make it successful it didn't help complete the work and if that failed then to that they had to leave and then go with a completely different approach at the end of the day t unit which simpson the completely separate not involved in this case don't know if they ever did it or not so the idea that somehow the vessel was necessary to make for s t s to carry out its contract it's there is nothing in the record that supports that because s t s was never successful in performing the complete flowback operation that they were trying to do on this platform but