question of whether or not a contract for performance of specialized oil and gas wells services in louisiana's offshore oil patch is or is not a maritime contract and therefore whether contractual defense and i interesting thing about this case is that the factors that we have here the factual circumstances that we have here would at least allow judge southwick to join with judge  i think that there are certain facts that the court below confused and to some extent that were ignored and so i'd like to just run through those fairly quickly obviously w and in fact we said it was their choice to what other choice did they have helicopter it in or theoretically they could have brought some sort of lifting apparatus in the draw works or something like that to set it up on the platform that's not in the record so i don't want to speculate about that but you mentioned years first time i saw that there was a new reply brief you can correct me if it was earlier you talked about how the pogo with us knew of it became a jack up bar in two hours after that's not something you re lied on before it seems to me trying to make just a vessel not as a vessel it seems to me that's not been an issue in this case is that the board with a crane on it had been jacked up and therefore wasn't free it's being used it's a vessel as such that has some significance i think when we start getting into davis factors and trying to apply those to the facts of this case it certainly has significance under  other cases such as the riverside versus entergy case thurmond and a number of other cases in which an domingue in which it's definitely is certainly an issue that the work that was being performed to the extent that the vessel was involved the vessel was only a work platform and certainly the record in this case shows that that was in fact the situation think the only and i don't want to belabor the point because i don't think that that's essential i think it's one element of of our our argument that in fact this is simply s t us that is a specialty tool  specially rental tools and supplies which became known as s t s at some point during the the district court proceedings the our principal issue is obviously that they didn't have s t s didn't have anything to do with the post of as a vassal they didn't work on the pogo they didn't contract for it to be brought out they didn't agree to to bring a vassal they didn't agree to do any work on a vessel or be assigned to a vessel and and so consequently the s t s contract should not be considered clearly should not be considered a maritime contract and to the extent that the pogo was in any way involved in the work that s t s was doing its involvement again this is purely as an to complete the job is a right yes judge there's no question that a that a crane or so short of lifting device was necessary for them to complete that work the critical issue again is is that s t going to occur up there it wasn't reduced to writing and it involved a vessel now i don't mean as mere time contract but it doesn't mean there was knowledge on the part of the parties it step by step we're now at a step of needing a crane to make this happen s and everybody else is aware of that that's the next stage to make this happen and it seems to me that that is where we are what to make of that legally but it's not as if you were oblivious oblivious to this whether all y t s agreement didn't contemplate a vessel at all and that's i think clearly shown in a manner again that's undisputed in the record unclear because s t s went out to do the job on the platform work to try to do the flowback job which is purely a a well bore oriented job there it was to simply clean out the wellbore to improve production at that well on that platform that's me ask you this didn't matter service agreement recognized the potential for the need of the vessel the master service agreement is was a is a very general agreement that apache used for apparently virtually all of its contractors whether they be a vessel contractors or specialty service contractors or whatever and so i would agree that that yes the master service agreement could contemplate that a vessel would be used but we understand from from this court precedent that a master service agreement can't begin to operated without reference to the work order that actually specifies the work that they've already when it's read over the very much together correct that's correct in this instance in reading those together reading the testimony about the work order and the master service agreement what becomes clear is there was no contemplation whatsoever that s t us would be involved with a vassal and doing its work they didn't bring out of us will they didn't agree to get  valve what exactly do you recall him telling you about the use of a crane barge just that we needed a crane not a barge s t s representative on site crane was was only needed at this stage because the circumstances at the well required bigger heavier equipment to  they didn't have to draw works at that particular well site as most wells would have and everything to do with the need to elevate whatever's going down into the well or something like that you know that's tension wires so you know that one in the same kind of cases does but there must be some reason they have to lift things up to go down and have them wear out well under certain circumstances that that would be the case there's no testimony and there's no evidence that in this record or that we've seen that that was the case and in this instance that s t s needed a crated anything for any purpose other than to handle to help them handle for rig up and rig down the heavier larger movement that was needed in order to address the situation on that pla the point of this being that at and are concerned with with that aspect of the vessel is that if s t s is personnel need to go on to the vassal work all of us will be assigned to a vessel to proceed with all of that with their work that's a very different situation than what we're facing here where none of the s t s personnel had any involvement with us and again they didn't pichon said they didn't they didn't tell him that they were going to get a crane barge out there they didn't promise to send a crane barge out there they didn't it's two completely separate contracts two completely separate missions two completely separate pieces of work that were being done s t s his work was one hundred percent on the fixed  platform within the state of louisiana and did not necessarily need a vassal yes they needed a crane as it turned out but any crane would have done it happened that under the circumstances that were given to them by apache apache chose and perhaps had to choose to bring in a barge with a crane on it that they could jack up next to that platform to do that i would not gotten to that ok heard warren and mr jackson and in answer to the court's earliest question is can we come up with some way to solve these seemingly eternal cases that pop up maybe we have a solution here because i was looking back at the cases that have in fact found these to be maritime contracts and there's a consistency that runs throughout them there's two issues and i think the court touched upon some of them earlier ancillary the cases that we do have the ancillary aspects to which would be the thurmond case and and one of the others one of the person that stepped off onto the onto the platform and after he was on to the platform off of the vessel a piece of equipment on the platform popped out and hit him damaged and hurt the fact that he was transported in there was a vessel nearby was unrelated to his injury at all so it was david says i would say that too but just he was right how do you avoid making everything at a rig a maritime matter because a vessel is going to get people out there is going to get the equipment out there the vessel so that the drawn derocher works the barge cranes the the actually using the equipment at the time of the injury at the time of the injury that's what ties it back to the maritime component it's not simply that there is a vessel there because one of the cases involved person who was on it as only tripped over his own equipment in the course of that's not maritime just because you're on a vessel doesn't make it maritime but the ones that do all involve the use of the equipment that is attached to or fixed to the barge and we know under the extension maritime act that something that happens because a vessel is involved it reaches on to ore rigs or on rigs right on the platforms and it says that if you use if you use a vessel you need to have insurance you have longshore insurance you need to have the insurance ok they contemplate in the master service agreement that there will be maritime components that when you use the vessel when you use the best you have to hire the  if you use the vassal ok then you need to make sure that you're properly insured for the maritime risks that are inherent in using the vessel in this instance here it's under sputum even remember this is a summary judge go back to the statement of uncontested material facts right that's where we go back to and in the statement it was necessary for the completion of this job that that vessel be there with its crane it was not jacked up there's not a mention of jack up in the trial court record i just want to make that  barges that are jacked up can still be deciles so it wasn't an issue the jacking up is not inherently an issue that it goes to whether this was or was not a vessel being used as a vessel but on the record which is close to summary judgment of the statement of thurmont if i'm not mistaken was one where the gentleman slipped over his own equipment that was the nature of the injury at the time of the accident so that didn't make it maritime there was no saltiness to that it was just tripped over his own stuff and  other one that we're dealing with a problem with the cases given domain to me was the one where the junk stepped onto the platform and something happened on the platform unrelated to the to the justice presence that was merely transport it didn't cause the accident but what we're dealing with every case that involves an injury that was caused by the use of the equipment of the vessel use of the equipment of the vessel derrick and jack works  cranes that sort of thing all of those are maritime those are maritime those are not into larry those are not secondary they're using the vessel as a vessel and her equipment that is affixed to it and that's what we have here you know i mean  heard s t s through it's mr south la who happens to be the plaintiff said i need this equipment out here and he used it he directed it he is the one who was running the show that was what he basically said and he was directing at the time of the accident he was directing the crane operator on the barge mr jackson do this do that go this way go that way up down move it around he was directing the operation he was directing the operation actually using a vessel to perform his contract that makes it maritime he's using it doesn't to perform his contract now i'm not going to say that the entirety of the contract was or was not maritime data seems to suggest that even once you get into a part of a big maritime it all becomes maritime what we're focusing on here is the contract for purposes of the use of the vessel maritime ok if he was doing some other work that was unrelated to marine activity he was cleaning the well he was doing his his back flows and whatever else he might be doing i'm not concerned about that but when he went he utilized and incorporated into his performance of the contract the barge the pogo the floating barge he then for those purposes that part of the contract was in fact maritime it wasn't fact insured under maritime insurance ok it gave rise to a maritime claim he filed a maritime claim that converts he's got the tort that he was injured in but for purposes of the contract that part of the contract was mar their actions if they if they underestimate if you've got a contract and he underestimates what it's going to take to finish a project and then comes to his oh wait a minute i need this other bit i need a plumber to do some work a long a tonight just a few days it failed a couple of times before the barges got out the tried every which way they could get do without spending time and money on a barge they couldn't do it they needed the barge please bring the barge out they brought the barge out then tried again it was finished the next day after the injuries that was the only reason it was there and this is only reason it was there and in fact that that gets to what did the parties contemplate well we have a change of order here we have something needs to be done a little differently get that barge out here otherwise we can't finish the project and when you read through the original brief that was filed by the avalanche of search sounds like this flow back but this is all bringing up bringing down it really wasn't part of the contract i can imagine what would have happened had they not finished it in move the equipment closed everything contract they tried couldn't do it and said we need a floating vessel please come out and that's what they did and these cases of both sides are relying on address one of the points that you're making here which is you can look just at this one piece and there was no maritime feature there's arguably until the crane was became necessary so everything is not maritime this little piece is maritime we're back to really you know pulling in this case that this whole flow back would become a maritime operation because of one day situation which i'm just wondering is how settled it is what you're telling me i think that based upon the hota campbell and devon louisiana string of cases this pretty well i think it's very possible that the hybrid cases i mean the hybrid contracts in several cases described them as being you can have a contract that has all maritime well not maritime or part of but those with that's what these cases are and i think that's what i mean quite honestly from the from a jurisprudential standpoint trying to sort this out is because it is very fact specific and i think the courts have said it's back specific and the only facts we have here is that a floating doesn't came is that the injury the activity occurring at the injury moment was in fact maritime if you look at it from l t i standpoint mr daughter on standpoint right he is a vessel and how does he go out to do just  he is a third party beneficiary of the contract between s t s and and and apache he gets to benefit from it this l d guy is in fact a protected party under the contract of the master service contract the case law the hota case law the camera case law the devil very very clear each one of those involved the actual use by the injured person of the crane in order of the equipment on the decile in order to project the if there's another employee up there on the rig not on the pogo but on the rig also involved in the flow back activity in exactly the same time but whatever he was doing was not involved with the crane but he was also in that we would talk about where we draw the lines we draw the line at the same chronological time and say this other employee would not be subject to the flow back in some way in my hypothetical but not with what happened to this poor fellow who got strong up on the crane lifted so it's the same overall process and flow back which is not maritime  by crane activity happened exact moment in time so that part of the contract between s t s than and during a blackout is not maritime and what we're dealing with here is maritime i think you've got maritime a gaston alabama the first leg of the trip we go through and i'm going to charleston and then the next leg of the trip was trying the train wreck and the dam and the goods were damaged so  the course i had this whole contract with america the car the primary objective of the contract or to accomplish the transportation of the good by city to the to the coast of the united states the fact that a small part of the transportation of my land did not change the essential nature of the contract so i went out with you if you haven't your private case to our fact that particular case  into the broad of the vessel and when you look at the case love this court ok the panels that have decided to hold the case to campbell case and the others and devon you know the case law in this circuit is such that is such that back your title nor from a curb certainly are on the curving stands for the proposition that the principal purpose of the contract is what is going to govern what law applies to it not and not six pressley says this not just whether or not of vassal happens to be involved at some point or not not whether a train happens to be involved in one small part of it and that's exactly the situation that we have here hasn't those fifth circuit perhaps gone well beyond that it rightly or otherwise in the cases that we've been talking about we have a look at primary purpose we look at whether the vessel was industry  said was not a standard was not a bright line rule for determining when a contract is going to be considered maritime or not and under under th joined in in the dissent and i claim we get to give you my unified principle the same rule was applied ultimately the majority applied the same rule that that norfolk applied which was it's the majority it's the it's what the overall work of the contract not what happened to him in respect of the particular tort but the overall work of the contract where that was performed what it was what its character was is what defines whether a contract is maritime or not and that is a consistent thread actually throughout this court's jurisprudence and the supreme court jurisprudence kasik norfolk all of those cases focus on the principal purpose of which there was a recognition of a need for that kind of test those are designed to focus the analysis of the facts in a way that leads to result of determining where was the principal performance of the contract what was the principle performance of the contract it's not that they're not in themselves the answer to the question their way of getting to that answer and one thing in particular that i think the court really is worthwhile for the court to note well two points actually for one thing riverside versus interject is one case very recent case in this court that clearly disposed of that empirical physical necessity argument about a vassal just happening to be there and being used in some ancillary way and that's exactly what we have here you have a flow back operation on a fixed platform and this is you know getting back to the idea of the unifying principle in this case we have situs which is what judge southwick and judge garza and others wanted to see in  grand isle situation we have site is here it's a fixed site us in the state of louisiana and we also have a purpose fundamental purpose of what's going on very briefly the one thing that i think it's extremely important to versus rowing involved a rig a mode to a special purpose drilling vessel were and the work in that case and that's the primary case that the district  relied on in our case and in a prior case that was an appeal is the issue of the work was actually being performed on a special purpose vassal it was s agreed to sever the contractual case from that underlying tort case mr guarana is still a party in as owner of the bar operator of the barge the only party that's s t s and oil states are merged into g s that's the reason you have oil states when you don't hear anything else about the party that's really not in the case anymore that's in the caption is that was actually dismissed any claim against zora directly by the barge interests was dismissed as part of the