determinations on a motion for summary judgment when the the standard is that the court was to view the evidence in the light most favorable to the nonmoving and draw the inference is in a way that's favorable to the non movement and in this case mr washington was the nonmoving in this instance we set out three instances one of the conclusions fact of inclusion that the district with made was that would group the appellee and its employee mr roberts that it was not mr roberts job to inspect the steps and i clearly asked that to mr roberts and mr roberts said i would just say it wasn't my job and while that's not a double negative the differences it is my job because he said it's part of my responsibility to make sure everything works on the platform and if something goes wrong where it could affect the health of somebody who we would take care of it then does that doesn't it begs the question of whether the stairway qualifies as equipment that is a nother issue that the court made a factual determination that that was whether it was equipment or not what mr roberts said is it's his responsibility to make sure everything works on the platform he just didn't say the pipes and the drill bits and all that stuff he said everything and in fact if we look at equipment mr roberts had in fact repaired steps before on the platform before this accident he had the tools to do it he repaired these very steps after mr washington's accident that is another issue where we took this word equipment and we narrowed it to just an all in production equipment because that is something that mr that was drawn out later on testimony about equipment when in fact mr roberts said it's his responsibility make sure everything works on the platform if something goes wrong where it could affect the health of somebody we would take care of it the court also concluded that mr roberts did not have control of the steps and that turned on an interpretation of a couple of cases granger and briefs that we reuse granger that's the statement that was made in reason that's not really what the thing was in reeves in reeves the contractor had already left the jobsite and what even there when any of these things occurred in this instance would group remained on the platform and we believe that by repairing the steps before the accident and repairing the steps after the accident duty did mr roberts and would group assume the duty and that takes into account whether one undertakes to render services to another which the defendant should recognize as necessary for the protection of a third person that is absolutely what has occurred in this case mr roberts testified before and after before he took it upon himself to repair steps that is to ren services to others in this case filled with the owner of the platform in his borrowing employ which the defendant should recognize as necessary for the protection of a third person testimony i'm going to do whatever i need to do to make sure that everything is safe for the safety of other people and that's the sum of our position based upon it the novo review of the evidence we would ask the court to find that there are factual questions which should have precluded summary judgment in favor of wood group in this instance now i'm not quite sure how things are going to work of never been here with a in across the field but in terms of what mr average is about to get up and say in behalf of what group and their cross appeal i will first say that it's the plainest position that the issues that mr average are going to discuss on the cross appeal were not raised in the district court we've clearly set out in our brief what was raised in the district court was this jones vs compression case where it says the l second argued that there was a change in the ways and a law regarding solidary liability which somehow affected the bar at servite doctrine those were the issues in the district court now they're here arguing other matters which the district court never considered and on that basis mr washington would say say that those issues were not properly before the court insofar as presents them today and i will reserve the rest of our time and allow mr mr think that being the appeal of the district court's order under federal rule of civil procedure fifty four b that would group actually was potentially liable under louisiana do an employer doctrine for alleging negligence of justin roberts who was with groups nominally employee and field woods borrowed servant the central issue in determining and resolving with groups appeal actually comes down i would submit to a choice of law analysis which is actually a statutory choice of law and analysis under the outer continental shelf there is an inconsistent federal law would some other result of tain in other words if we hypothetically move this accident onshore and have the same facts occur mr washington falls on field with equipment walking up into the galley during the course and scope was employing that he is the he is not the borrowed servant a field would  roberts is under louisiana's dual employer doctrine would group would remain responsible as the nominal employer of mr roberts the law should not and does not change when the accident is moved to an offshore platform as this court is well aware the senate committee report in the adoption of the statutory choice of law provision of the oxe law which is section thirteen thirty three eight two of title forty three of the united states code concluded that the inconsistency is with federal law would be another statute of congress or regulation of the department of interior notably absent from that senate committee report was any mention of federal common law and as the court is well aware during the legislative process that gave rise to ox law the senate and the house expressly concluded that federal maritime law was in a political and not worthwhile to apply to these offshore structures which were more like islands in an upwind state so where is the potential inconsistency it can't come from the common law the federal common law which is what would group suggests because that in fact was expressly rejected by the u supreme court and chevron oil company v here hughson the supreme court observed that the entirety of the law of the adjacent state not just bits and pieces were to be adopted as federal law under in acting oxalic the supreme court expression held congress did not intend that federal courts fill those gaps themselves by creating new federal law so to the extent that would group is going to rely on supreme court precedent represent the federal common law at the time they were decided he the houston decision expressly knocks them out of consideration for purposes of determining the a political federal law on an island continental shelf platform more to the point i'll get to those cases they're not clear as to what law they were being decided on which is unfortunate standard oil company b anderson was a stevedoring case so the court was either applying the federal common law but probably more likely the federal maritime law to that k to the facts of that case the decision doesn't say but if it applied the federal common law we know that doesn't apply  applying the maritime law we know that doesn't apply either because ox of the says the law of the adjacent state applies the denton case either is a federal common law case or it was decided under mississippi law it involved a railroad accident where a man was injured while toting cargo loading cargo onto a train it was decided on a federal common law again in a political by hughson if it's decided on the mississippi law it's in a political book because oxer says the louisiana law applies and that same analysis why anderson doesn't apply also applies to the sun oil case because that's either a case involving it's a case involving pilotage and who's responsible for the accident or the negligence of the pilot that's either common law or maritime law long story short louisiana law is the law that applies now section one thirty three a of the united states code title thirty three provides that if an engine employee has another long has another remedy available under any other law against an entity that is act is not his employer or is not is coom employee then he can pursue those rights in federal court or in state court the issue there was  mississippi law provide mclaurin with a claim against co contractors that were not as co employees this court said yes section one thirty three a says that's just that and far no if you drilling this court went even further it said our court  louisiana law cannot be inconsistent with federal law because there would be no third party cause of action had louisiana not provided one a spent a lot of time telling you why federal law is not a consistent bill let's talk about louisiana law louisiana law has adopted starting in one nine hundred seventy eight and continuingly continuing in an under interrupted line of cases through nine hundred ninety eight of the dual employer doctrine in morgan v a b c manufacturer the louisiana supreme court gave its most recent restatement of that principle and expressly rejected the a of the former one master rule or borrowed servant doctrine whereby the general employer of the borrowed servant escapes liability in the barring employer is a fixed with one hundred percent liability while the borrowed servant offense focuses on which employer controlled the employees actions modern justification for employer liability is not based so much on the employer's control of the employee's action but on the concept of enterprise liability louisiana doesn't apply control when figuring out which of the employers is responsible for any negligence of the employee it concludes both employers are in the civilian context solidarity liable in the common law context that would be jointly and severally liable and so it does not matter whether the nominal employer did not exercise direct control as the working court concluded work tex failure to exercise direct supervisor of control over heinz should not preclude its liability the general liability employer remains liable for the borrowed employees torts under louisiana law and that's because the loan employees are furthering the business of wood group at the same time as their further in the business of field would little brief on our argument on those issues but i did want to address what the basic issue here is is the duties that are required of independent contractors for the employees of other independent contractors this court has issued a long line of consistent rulings in those those cases most recently for novices tetra which was issued last june in which the court said that the to between independent contractors is simply to refrain from gross willful or wanton negligence and from the creating an unreasonable risk of harm or hazardous condition further the independent contractors do not generally owe a duty to protect the employee of another independent contractor beyond the exercise of ordinary care that is owed to the public generally in this case mr washington has not alleged that would group or mr roberts who is the employee at issue acted in any way grossly willfully or wantonly negligent in his actions on the platform additionally there's been no allegations that would group or mr roberts created the lou step situation that we're talking about here that mr washington tripped over at the galley the other rele considerations that the fifth circuit has discussed is that a duty can be found between independent contractors if one of the independent contractors employees shares a contract with their supervisors the other employees those situations don't exist here so then how can you put a duty that could then be breached by would group on missed that they would owe to mr washington what mr washington is claiming is three fold one that would group controlled the steps actually two folds give me one that why that would group controlled the steps leading into the galley into that we assumed a duty to ensure that the galley steps were safe and free from defect and they draw on this from an incident that happened several months before when justin roberts himself was walking out of the im c c room another building on the platform and he noticed that the steps included in the m c c room were loose and so as he walked down he noticed they were loose investigated them and he resolved the issue because upon notice of this potential hazard he addressed that is his duty on the platform and so would mr washington uses that example to mean is that that created a duty for mr robin roberts to inspect all of the steps on the platform to ensure that they are won't lose they also argue that that in that shows a certain level of control over the entirety of the platform but they also refer to robert statement as he was responsible for everything well your honor if you that statement that testimony was taken out of context the entirety of the questioning in our brief if you actually go back to it at his deposition there was two line of questions that went to mr roberts one that talked about his duties with regard to repairing defects in the dress and hazards that he finds like the m c c steps versus his duty to inspect preemptively inspect looking for hazards to resolve and that line a question that's on the record of appeal page one one zero nine two the questions were question in this day the m c c steps slipped and you discovered it was not secured correct question you went about securing it answer correct question and that's something that you did even though you told mr burke aw i think that it wasn't your job to go around and do that type of thing answer well i wouldn't say that was in my job that to question was talking about whether or not it was his job to to remedy the hazard that he discovers and the plaintiff is using that to imply as you can see throughout their brief they take instead of just saying repair they say inspect maintain and repair they clump all three of those together to say they don't mean the same thing but elsewhere in the testimony mr roberts was specifically asked whether or not his job included to inspect the can the component parts of the structure including the stairs and he said no and then if you look at the declaration of mr james pena the field would person in charge on the platform he says he issued a sworn declaration that says my production operators are not task with any responsibility to inspect looking for for hazards on the platform but never sponsibility should they learn of a hazard to address it just like everybody else in the platform does and so there's a conflation that's going on here between the duty to inspect in advance which is what mr washington saying he has mr roberts has versus the duty to address a hazard to ensure that it is no longer has been the case cited on the assumption issue the bo the supreme court the duty that's required when a party assumes a duty that they don't otherwise have is to perform the task that they assume with care and with prudence so arguably mr roberts when he elected to address the m c c loose in c c steps as he assumed a duty to do secure the m c c steps properly that can be imputed into a duty that he assumed across the entirety of the platform no different than it would be if mr washington the cook discovered a spill within his kitchen cleans it up now he's gotten a duty to us he has assumed a duty to ensure there is no spilled liquids throughout the entirety of the platform such a duty does not exist in the law and would be  just inappropriate to impute on all the workers on offshore platforms the fish circuit case law is lengthy it's consistent the duties between the independent contractors have long been litigated our case falls where granger says that the duty of responsible reasonable care does not encompass a duty to eliminate a preexisting unsafe condition present on the work site over which the independent contractor does not exercise control the fact that mr roberts repaired the m c c steps was totally appropriate within his job's possibilities and duties but that doesn't mean that he is now under control of all steps for all time and so we just argue that each of the points made by mr washington attacking the district court's decision are unfounded both in fact and in law and therefore we respect for the request of the court affirmed the district court's granting a summary judgment on behalf of wood group on that was the subject of the direct appeal that this across appeal essentially becomes moot but in the event of a reversal in a remained our client felt obligated to bring this cross appeal to address an issue that's never been addressed before on the o continental shelf and namely whether or not the louisiana dual employer doctrine applies to an outer continental shelf location and mr bercow alluded to it the issue is between the consistency of state law and federal law because the outer continental shelf lands act will apply the subset of law of the adjacent state to gap fill so long is it is not inconsistent with applicable federal law now we concede that federal statute federal regulation prime's all if there's a federal statute regulation on point that's applicable to the off to the offshore environment on the o c s that's what we follow if it's silent we look to the jason state if it's federal common law we look to the adjacent state to see is there an adjacent state statute to apply if there is then we apply the jason state statute but the situation we have here is that the dual employer doctrine is not statutory in the easy and it is a court ma situation now that one master will system was created by standard oil versus anderson by the us supreme court in one thousand and nine and standard oil versus andersen continues to be cited up in all the way through february of last year by the test that has always been used is the ruiz case that was from one thousand nine hundred sixty nine and the last on cases those cases spell out the nine factors that apply to determine whether or not an employee is working on behalf of his nominal employer or has borrowed employer those nine factors came directly as a result of the one thousand and nine standard oil versus andersen case and ever since then the courts have determined offshore who is the responsible employer while i'm on that topic counsel discussed the unhappily ability of standard over sam anderson because it arose in the animal to context of the problem is we apply ruiz in the first sentence of releases this is a maritime personal injury case it is an admiralty case as well at least in jurisdiction and it applied maritime law but we still created the bar employee test and we still apply it today and the recess is a perfect example we still up until two months ago when there was another would group field would case the mostly case that was issued in february applied ruiz not the louisiana bar employee doctrine now whether or not inconsistent everyone still relies on the federal court jurisprudential created doctrine and so our argument here is the louisiana dual employer doctrine that created is inconsistent with the one master rule that was created by the us supreme court in  now one of the problems that the dual employer doctoring creates that counsel read in the morgan decision is about the application of enterprise liability over and above the application of control to the facts of the situation the louisiana supreme court talked about this implied enterprise liability issue too where everybody involved who benefits from the work of this allegedly negligent employee who benefits who's involved in that enterprise should bear some sort of liability but the problem is to find that here is actually do all employers you have to do the full bar employee test to know that there's a second employer in the first factor the most important factor is control and judge marcus just as marcus on the louisiana supreme court wrote a very long dissent in morgan talking about the problems that the morgan dual employer doctrine was going to create as it's continued to be implemented after that and interesting lee since one thousand nine hundred eight no court has ever actually applied morgan to a case the louisiana supreme court has never even uttered the words enterprise liability again since then and so right after morgan came out  a case came up in the eastern district called tilman and the district court there refused to apply for going to the facts of this case and in tillman what the court said was if only one employer is involved in  activities out of which the employees tortious conduct arises then only that employer may be held liable and what the dissent said in morgan and what tilman followed is that you cannot carve out control from this argument it made since english june  thousand seventy eight when the do employer doctrine is created because the nominal employer held so much control over that employee in maine of sense to let them get to evade liability same thing in blair and then morgan came up and started talking about temporary agencies now the argument has been made by field wood and proponents of morgan that it is an inflexible and absolute doctrine that always keeps the nominal employer on the hook to me if you write out the word that the analysis of control that leads to an equitable results and that's what justice marcus talked about in his dissent with with him morgan that's why the court until men didn't apply because the facts in that situation didn't warrant it and that's which counsel for field would argue smorgon always applies in those circumstances the fish circuit declined to apply boston or colony because the borrowed employees at issue had nothing to do with the negligent the allegedly negligent conduct that occurred and so the court wasn't willing to keep the nominal employees and numb employers on the hook simply because their nominee employers when they have nothing to do with the tortious activity and so we have two kind of arguments here one that ox love which requires which allows the the choice of longer oxen which allows the adoption of the state court the state courts laws or the scuse me the state's laws to the extent they're not inconsistent with federal law we argue that there is an inconsistency there between the lo made which is why morgan can continue to apply on shore but secondly if the court does find that the employer doctrine can apply offshore factually in our situation that shouldn't apply for a lot of the reasons we talked about earlier insofar the allegedly tortious conduct that resulted in mr washington's accident had nothing to do with what group or their duties on the platform whatsoever so the bard employer nature between would group and field would really is irrelevant when it comes to mr washington falling on the galley steps and finally there's the issue of application no court as i said earlier has ever applied morgan and it's gone all the way to conclusion  if you apply the dual employer doctrine and you say that there are two employers who could solidarity be live vicariously liable for one negligent act or there still must be in a portion of faults between those two by solitarily vicariously liable employers the what the losing the supreme with the scuse me with the louisiana civil code says is in those situations when that solidary relationship is created two in a tort situation you've got to go to their viral shares you say well how do i apportion the viral shares between two joint solitarily liable employers the easy solution is how much did they control the employee but if we apply the bill employer doctrine that the reason a supreme court insists we apply we've already written out the control factor anyway so it kind of creates a big mess here to where we're a e all arguing that controls important to create the dual employer situation but then once it's created then you say you don't look at the control and then you say well now we've got to apportion fall between the two joint jointly liable vicariously liable employers and especially in a situation like here field would has conceded they did not oppose our our motion for summary judgment in which we argue that just in roberts was a part employee that there was an exclusive control over him so then what is with groups liability in that situation and that is one of the concerns that justice marcus had in his dissent of morgan when you start writing out the control issue and say this enterprise liability trumps all and so for those reasons  about why those decisions marinate minute be correct and we ask you to look at those but what we get back to is that the wood group would argue that for non those other cases saying that  contractor only liable to the employee of another independent contractor if it employs shares a contract with their supervisors that employee that is only a relevant consideration the base law is that independent contractors owed to each other the duty of ordinary care and if you go back and look at our brief if you get back to the point where you say one independent contractor only owns the duty to another kind of contract that that it employees then that boils down to the courts taking principles and independent contractor negligence and melding it into this two independent contractors and that is not the law these things if that's the case that's another factor of negligence for the jury to consider whether someone should have been tasked with the the task of discovering and correcting these things before someone like mr roberts or mr tilman recognize that there was enterprise liability and he also cites to boston versus old colony boston versus old colonies easily distinguished from this case because one of the defendants in that case allied was not in the business of loaning employees in this case would group is in the business of loaning employees and you take that full circle back to tillman and other cases than that