IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 98-30191

 

RICHARD H. HUFNAGEL,

Plaintiff-Appellant,

versus

OMEGA SERVICE INDUSTRIES, INC.;

KERR McGEE CORPORATION; GLOBAL

INDUSTRIES LIMITED,

Defendants-Appellees.

 

Appeal from the United States District Court for the

Western District of Louisiana

 

July 26, 1999

Before GARWOOD, BARKSDALE and BENAVIDES, Circuit Judges.

GARWOOD, Circuit Judge:

On April 23, 1996, plaintiff-appellant Richard H. Hufnagel

(Hufnagel) was injured while working on a drilling platform

permanently affixed to the outer Continental Shelf off the coast of

Louisiana. Hufnagel sued his employer, the platform owner, and the

owner of an adjacent jack-up boat, in Louisiana state court

alleging, among others, claims under the Jones Act, the general

maritime law, and as to each defendant “under the Louisiana Civil
2

Code, Articles 2315, 2317 and 2322, for the negligence, strict

liability, violations of the Coast Guard and Secretary of the

Interior Regulations, non-delegable statutory duties, rules and

regulations, having the force and effect of law wherein the

accident occurred.” He has also alleged alternative claims under

the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901

et. seq., and/or 33 U.S.C. § 905(B). The defendants removed the

case to the district court below, and Hufnagel moved to remand.

After denying remand, the district court certified its ruling on

the remand motion to this Court under 28 U.S.C. § 1292(b),

inquiring whether removal was prohibited by the Jones Act, and if

not, whether Hufnagel has presented claims which support federal

removal jurisdiction.

FACTS AND PROCEEDINGS BELOW

The pleadings and undisputed facts before the district court

on the motion to remand reflect the following.

Defendant-appellee Omega Service Industries, Inc. (Omega), a

Louisiana corporation, is an oilfield service company which

contracts with offshore platform owners to construct and repair

offshore oil and gas platforms. When a platform owner requests

service, Omega assigns a crew of available employees based on the

type of work requested. The platform owners transport or furnish

transportation for the workers from the shore to the platforms, and

the workers generally remain on the platform until the work is
3

complete. Sometimes, the workers sleep and eat meals on the

platforms. On other occasions, the platform owner supplies a jackup vessel to lodge the workers. Omega does not own or hire any

vessels, and no Omega employees are assigned as crew members of any

vessel.

Hufnagel began working for Omega in November 1994. Hufnagel

worked as a rigger, and his duties typically included assisting

welders and fitters. During the course of his employment with

Omega, Hufnagel had been assigned to work on twenty-six different

fixed platforms, for thirteen different customers. These

assignments ranged from one day to twenty-seven days. Hufnagel was

never permanently assigned to any particular customer or platform.

At the time of his injury, Hufnagel was working on a platform

owned by defendant-appellee Kerr-McGee Corp. (Kerr-McGee), which

was permanently affixed to the outer Continental Shelf off the

coast of Louisiana. Hufnagel and other Omega employees had been

assigned to repair pilings located on the platform. Kerr-McGee had

contracted with defendant-appellee Global Industries, Ltd.

(Global), a Louisiana corporation, to provide a vessel (the

AMBERJACK), which was used as a temporary work station and a hotel

where the workers ate and slept. Global supplied its own crew for

the AMBERJACK. Although Hufnagel claims to have spent a majority

of his working hours aboard the AMBERJACK, Hufnagel had no duties

regarding the maintenance, custody, or operation of the vessel.

Hufnagel, a citizen of Louisiana, sued Omega, Kerr-McGee, and
4

Global in Louisiana state court. Hufnagel’s state court petition

alleges:

“2.

At all pertinent times herein, the petitioner,

RICHARD H. HUFNAGEL, was an employee of OMEGA, INC.

3.

On or about April 23, 1996, the petitioner, RICHARD

H. HUFNAGEL, was working in the course and scope of his

employment when he was severely injured. The petitioner

was working on a scaffold erected onto a piling of a

fixed platform located at Ship Shoal 239B, said platform

believed to be owned by KERR MCGEE CORPORATION, located

off the coast of the State of Louisiana on the outercontinental shelf.

4.

While attempting to repair the aforesaid piling, the

petitioner was struck in the face by a chain and/or hook

fixed to a come-a-long which was being used in the course

of repair of the piling.”

Hufnagel’s state court pleading further alleged that the

AMBERJACK was “owned and operated by Global,” and that he was a

member of the crew of the AMBERJACK, and was hence entitled to

bring a claim under the Jones Act. Additionally, Hufnagel raises

claims under maritime law and the Louisiana Civil Code, made

surrogate federal law by application of the Outer Continental Shelf

Lands Act, 43 U.S.C. § 1331 et. seq. (OCSLA).

The defendants removed the case to federal court, asserting,

inter alia, that the Jones Act claim was fraudulently pled.

Hufnagel moved for remand, arguing that Jones Act cases are not

removable. The district court concluded that the undisputed
5

evidence demonstrated that as Hufnagel was not a seaman he had no

arguable Jones Act claim and therefore the Jones Act did not bar

removal. The court found that Hufnagel had stated a claim against

Kerr-McGee arising under the OCSLA, thus supporting removal

jurisdiction under 28 U.S.C. § 1441(a) & (b). Therefore, the court

denied Hufnagel’s motion to remand despite the absence of complete

diversity and the fact that two of the three defendants are

Louisiana citizens. We hold that the district court correctly

denied the motion to remand.

DISCUSSION

I. The Jones Act

“As a general rule, . . . Jones Act cases are not removable.”

Burchett v. Cargill, Inc., 48 F.3d 173, 175 (5th Cir. 1995); 46

App. U.S.C. § 688 (incorporating general provisions of Federal

Employers’ Liability Act, including 28 U.S.C. § 1445(a), which bars

removal). However, “‘defendants may pierce the pleadings to show

that the Jones Act claim has been fraudulently pleaded to prevent

removal.’” Burchett, 48 F.3d at 175, quoting Lackey v. Atlantic

Richfield Co., 990 F.2d 202, 207 (5th Cir. 1993). A fraudulently

pleaded Jones Act claim does not bar removal. See id. While a

district court should not pre-try a case to determine removal

jurisdiction, the court may use a “summary judgment-like procedure”

to dispose of the assertion that the Jones Act claim was

fraudulently pleaded. See Burchett, 48 F.3d at 176. The court may
6

deny remand where, but only where, resolving all disputed facts and

ambiguities in current substantive law in the plaintiff’s favor,

the court determines that the plaintiff has no reasonable

possibility of establishing a Jones Act claim on the merits. Id.

The district court correctly held that the undisputed evidence

establishes that Hufnagel was not a seaman and hence could not

recover under the Jones Act. To maintain a cause of action under

the Jones Act, the plaintiff must be a seaman. Land-based workers

are not seamen. See Harbor Tug and Barge Co. v. Papai, 117 S.Ct.

1535, 1540 (1997).

The Supreme Court has established a two-part test to determine

seaman-status:

 “First . . . an employee’s duties must

contribute to the function of the vessel or to

the accomplishment of its mission . . .

“Second, and most important for our purposes

here, a seaman must have a connection to a

vessel in navigation (or to an identifiable

group of such vessels) that is substantial in

terms of both its duration and its nature.”

Harbor Tug, 117 S.Ct. at 1540 (quoting

Chandris, Inc. v. Latsis, 115 S.Ct. 2172, 2179

(1995)) (citations and internal quotation

marks omitted).

The requirement that a seaman have a substantial connection to

a vessel or identifiable fleet of vessels serves to distinguish

sea-based workers whose employment regularly exposes them to “the

perils of the sea,” from primarily land-based workers who have only

sporadic or tangential connections to navigation. See Harbor Tug,
1 It is clear that the fixed platform on which Hufnagel was

working when he was injured was not a vessel. Such platforms are

legally man-made islands, not vessels, and Hufnagel does not

contend otherwise. See generally Rodrigue v. Aetna Casualty and

Surety Co., 89 S.Ct. 1835 (1969) (holding injuries occurring on

fixed platforms not within admiralty jurisdiction). See also,

e.g., Lormand v. The Superior Oil Co., 854 F.2d 536, 540 (1987)

(finding worker who spent majority of working hours aboard platform

was not a seaman); Barrett v. Chevron U.S.A., Inc., 781 F.2d 1067,

1076 (5th Cir. 1986) (same).

2 “Q. Global is the company that supplied the

boat crew; is that correct? 

A. Yes. 

Q. And that was comprised of a captain; – 

A. Yes. 

. . . 

7

117 S.Ct. at 1540. Therefore, seaman-status is determined by the

employee’s entire employment-related connection to a vessel, and

not by the immediate circumstances or location of the plaintiff’s

injury. See Chandris, 115 S.Ct. at 2187 (“[C]ourts should not

employ a <snapshot’ test for seaman status, inspecting only the

situation as it exists at the instant of injury; a more enduring

relationship is contemplated in the jurisprudence.”) (internal

quotation marks and citation omitted).

Hufnagel claims to have been a crew member of the AMBERJACK,

entitling him to bring a Jones Act claim.

1 However, Hufnagel was

an employee of Omega, which neither owned nor controlled any

vessel. The AMBERJACK, owned and controlled by Global, came with

its own crew, supplied by Global. Global was hired by Kerr-McGee,

not Omega. In his deposition, Hufnagel was not able even to

identify these AMBERJACK crew members or their responsibilities.2
Q. A crane operator; – 

A. Yes. 

. . . 

Q. Who else was a Global employee on that

jack-up barge that you can recall?

A. I believe they had an engineer and I

believe they just had a couple of hands.

There was a bunch of them running around. I

don’t know specifically what everybody did.”

3 “Q. As an employee of Omega, you didn’t have

any responsibilities for jacking the boat up

or down, did you?

A. No, sir.

Q. Or moving that jack-up boat into position?

A. No, sir. 

Q. The boat crew did that sort of thing;

correct?

A. Yes. We assisted when we got to the

platform to position.”

8

Hufnagel concedes that no Omega employee was involved with the

navigation of the AMBERJACK, and that the Omega employees and

AMBERJACK crew had separate duties, although the Omega employees

may have assisted to position the vessel over the platform.3

Furthermore, Hufnagel does not allege, and no facts suggest, that

he acted as a borrowed servant of Global or the AMBERJACK, since

Global maintained no supervision or control over Hufnagel or the

performance of his duties. See Addison v. Gulf Coast Contracting

Servs., 744 F.2d 494, 499 (5th Cir. 1984).

Hufnagel’s duties in no way “contribut[ed] to the function of

the vessel or to the accomplishment of its mission.” See Chandris,

115 S.Ct. at 2184 (internal quotation marks and citation omitted).

Hufnagel’s duties involved platform work, and were not related to
9

the navigation, maintenance, or voyage of the AMBERJACK.

Hufnagel’s sole purpose for being present on the platform or the

AMBERJACK related to the repair of the platform. The AMBERJACK, by

contrast, was present to support the repair crew by providing

lodging quarters and a work area. Hufnagel’s duties as a platform

worker in no way contributed to “doing the ship’s work.” See

McDermott, Int’l v. Wilander, 111 S.Ct. 807, 817 (1991). 

The facts that Hufnagel ate, slept, and spent time on the

AMBERJACK do not make him a crew member. See Golden v. Rowan

Companies, Inc., 778 F.2d 1022, 1025 (5th Cir. 1985) (“The facts

that Golden lived on the tender and that some of his tools and

machine parts were stored there do not mean that he was permanently

assigned to the tender.”). Nor does the fact that Hufnagel may

have performed minor duties aboard the AMBERJACK transform his

position as a platform worker into that of a seaman. See Barrett

v. Chevron, U.S.A., Inc., 781 F.2d 1067, 1075 (5th Cir. 1986)

(considering amount of time spent working on vessels during

claimant’s one-year employment with employer); Longmire v. Sea

Drilling Corp., 610 F.2d 1342, 1346 (5th Cir. 1980) (holding

platform worker who was injured while assisting to stow anchor

chain of tender vessel was not a seaman where he was not

permanently assigned to that vessel, and work on vessel was

incidental to worker’s primary responsibilities). 

Hufnagel did not have a substantial connection with the
10

AMBERJACK during the course of his employment with Omega. The

Omega job on this particular fixed platform began March 28, 1996,

and Hufnagel had never previously been aboard the AMBERJACK.

Indeed, Hufnagel had never been aboard the AMBERJACK before April

16, 1996. Nor could Hufnagel ever expect to board the AMBERJACK

during the future course of his employment. Hufnagel’s connection

to the AMBERJACK was only transitory and fortuitous, and does not

qualify him as a seaman. See Barrett, 781 F.2d at 1074 (“[T]o be

deemed a <seaman’ within the meaning of the Jones Act, a claimant

[must] have more than a transitory connection with a vessel or a

specific group of vessels.”) (internal quotation marks and footnote

omitted). 

Similarly, Hufnagel cannot establish a connection to any

identifiable group or fleet of vessels. Over the course of his

employment, Hufnagel had been assigned to work for thirteen

different customers on twenty-six different platforms. Each

assignment involved essentially the same platform-related services.

These assignments were all short-term and none entailed a permanent

assignment to any vessel. While Hufnagel and other Omega employees

slept on vessels during some assignments, the vessels were always

different, provided by different customers, and owned and operated

by different companies. The vessels were not subject to common

ownership or control. They were not an identifiable fleet of

vessels for purposes of Jones Act seaman status. See Barrett, 781
11

F.2d at 1074 (“By fleet we mean an identifiable group of vessels

acting together or under one control. We reject the notion that

fleet of vessels in this context means any group of vessels an

employee happens to work aboard.”) (footnote omitted). 

Papai, the respondent in Harbor Tug, had obtained short-term

maintenance, longshoring, and deckhand jobs on several vessels

through a union hiring hall. During the two and one-quarter years

before his injury, Papai had worked for several different vessels

owned by three separate employers. See Harbor Tug, 117 S.Ct. at

1540. After suffering injuries in the course of his employment,

Papai filed a Jones Act claim, and argued that the three vessels on

which he had worked were an identifiable group of vessels because

Papai had been hired by each of them through the same hiring hall.

Id. The Supreme Court noted that the “substantial connection to a

vessel” criterion does not mechanically require that the worker

have a connection to one single vessel. See Harbor Tug, 117 S.Ct.

at 1540. However, a group of vessels will only qualify where it is

a specific, identifiable fleet or a finite group of vessels,

subject to common ownership or control. Id. at 1540, 1541. This

corresponds to the Act’s primary mission to protect only those

employees who are “more or less permanent[ly] assign[ed]” to a

vessel in navigation. See Chandris, 115 S.Ct. at 1290. Thus, the

rule might apply where a sea-based repairman, for example, worked

on several different boats from his employer’s fleet. However, in
12

Harbor Tug, the vessels were not subject to common ownership or

control. See Harbor Tug, 117 S.Ct. at 1540. The Court found no

identifiable grouping in a series of ships which, by happenstance,

had hired the same employee from a common place. See Harbor Tug,

117 S.Ct. at 1541.

The vessels in this case share even less of a connection to

each other than did those in Harbor Tug. In Harbor Tug, the

vessels had each hired Papai from one hiring hall. Here, the

vessels had been hired by various companies whose only connection

was that they had contracted with the same third party, Omega.

This remote connection is too attenuated to qualify these vessels

as “an identifiable fleet.” There was no common ownership or

control of the vessels. Indeed, there was no link whatever among

them other than the coincidence that they happened to be the

vessels provided as support or jack-up rigs by Omega’s various

customers.

The undisputed evidence reflects that as a matter of law

Hufnagel was not a seaman and hence had no even arguable Jones Act

claim. Therefore, remand was not required by the Jones Act. 

II. Removal Jurisdiction

A. OCSLA

The absence of a valid Jones Act claim, of course, does not

automatically vest jurisdiction in the district court. We must

determine, therefore, whether Hufnagel’s suit was removable.
4 It is settled that general maritime claims do not “arise under

the Constitution, treaties, or laws of the United States” for

purposes of original federal question jurisdiction under 28 U.S.C.

§ 1331 and an admiralty action filed in state court under the

savings to suitors clause, 28 U.S.C. § 1333(1), is not removable

solely because as an admiralty action it could have initially been

filed in federal court; but removal of such an action is

nevertheless possible if federal jurisdiction is based on something

other than admiralty, such as diversity or a statutory provision.

See Tennessee Gas Pipeline v. Houston Casualty Insurance Company,

87 F.3d 150, 153 & ns.5&6 (5th Cir. 1996). Here there is no

diversity.

13

Removal must be proper under 28 U.S.C. § 1441, which authorizes

removal of cases “of which the district courts of the United States

have original jurisdiction,” section 1441(a), provided that, apart

from cases “of which the district courts have original jurisdiction

founded on a claim or right arising under the Constitution,

treaties or laws of the United States,” removal is not proper

unless “none of the . . . defendants is a citizen of the State in

which such action is brought.”4

We hold that removal was proper because of the Outer

Continental Shelf Lands Act, 42 U.S.C. § 1331 et. seq. (OCSLA).

OCSLA provides, in pertinent part, that “[t]he subsoil and

seabed of the outer Continental Shelf appertain to the United

States and are subject to its jurisdiction, control, and power of

disposition. . . .” 43 U.S.C. § 1332(a). The district courts of

the United States have jurisdiction over claims “arising out of, or

in connection with (A) any operation conducted on the outer

Continental Shelf which involves exploration, development, or
5 Section 1333(a)(2)(A) provides in relevant part:

“To the extent that they are applicable and not

inconsistent with this subchapter or with other Federal

laws and regulations of the Secretary 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 hereby 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 . . . . All of such applicable laws

shall be administered and enforced by the appropriate

officers and courts of the United States.” (Emphasis

added).

14

production of the minerals, of the subsoil and seabed of the outer

Continental Shelf. . . .” 43 U.S.C. § 1349(b)(1). 

Congress enacted OCSLA to provide a federal body of law to

govern operations on the outer Continental Shelf. See Rodrigue v.

Aetna Casualty and Surety Co., 89 S.Ct. 1835 at 1837 (1969) (“The

purpose of the Lands Act was to define a body of law applicable to

the seabed, the subsoil, and the fixed structures such as those in

question here on the outer Continental Shelf.”). OCSLA is

exclusively federal law. However, recognizing that the statutory

federal law may in some areas be inadequate, OCSLA incorporates

aspects of the laws of adjacent states, where those laws are not

inconsistent with OCSLA. These incorporated state laws become

“surrogate federal law,” and are considered exclusively federal law

when applicable under OCSLA. 43 U.S.C. § 1333(a)(2)(A).5 See

Rodrigue, 89 S.Ct. at 1838 (“It is evident from this [legislative
6 Hufnagel’s petition alleges that Kerr-McGee is liable to him

by virtue of “strict liability for the ruinous condition of the

platform’s piling, pursuant to LA Civil Code Article 2322.” See

Haas v. Atlantic Richfield, 799 F.2d 1011, 1012-1014 (5th Cir.

1986). Hufnagel’s petition also alleges, among other things, that

Kerr-McGee “failed to provide” him “with a safe place within which

to work.”

15

history] that federal law is <exclusive’ in its regulation of this

area, and that state law is adopted only as surrogate federal

law.”).

Hufnagel’s petition does not plead OCSLA eo nomine. But it

does expressly plead that the “fixed platform” is located, and the

events occurred, “on the outer continental shelf.” Furthermore,

Hufnagel sues Kerr-McGee under the Louisiana Civil Code, which,

inter alia, provides for strict liability for the ruinous condition

of a structure.6 There is nothing which would make Kerr-McGee’s

platform or its condition subject to Louisiana law other than

OCSLA, which incorporates this Civil Code provision as “surrogate

federal law.” Hufnagel’s petition also generally alleges against

Kerr-McGee unspecified “violations of the Coast Guard and Secretary

of the Interior Regulations . . . having the force and effect of

law wherein the accident occurred,” apparently referring to the

platform. This presumably refers to regulations issued under the

authority of OCSLA. See 43 U.S.C. § 1333 (d)(1) (“[t]he Secretary

of the Department in which the Coast Guard is operating shall have

authority to promulgate . . . regulations . . . relating to the

promotion of safety of life and property on the artificial islands,
16

installations, and other devices referred to in subsection (a) . .

. .).” Finally, Hufnagel has consistently acquiesced in the

defendants-appellees’ characterization of his suit as including

OCSLA claims. We therefore interpret Hufnagel’s complaint to

assert claims under OCSLA.

We apply a broad “but-for” test to determine whether a cause

of action arises under OCSLA. See Recar v. CNG Producing Co., 853

F.2d 367, 369 (5th Cir. 1988). In Recar, we held that OCSLA

applied to a personal injury suit brought by a platform worker when

a rope from which he was swinging on the platform broke, causing

him to fall on the deck of an adjacent transport vessel. The

worker’s employment furthered mineral development on the outer

Continental Shelf, and “but for” that employment the worker would

not have been injured. Therefore, the federal court had original

jurisdiction over Recar’s claims. Id.

Similarly, Hufnagel’s employment furthered mineral production

on the shelf. Hufnagel’s injuries occurred on a stationary

drilling platform involved in the “exploration, development, or

production” of minerals on the shelf. See 43 U.S.C. § 1349(b)(1).

But for Hufnagel’s work on the platform, his injury would not have

occurred. Hufnagel’s injuries arose out of an operation involving

the production of minerals on the shelf, and his claims fall within

the jurisdictional grant of the OCSLA. Therefore, the district

court would have had jurisdiction over Hufnagel’s claims had he
7 We stated in Tennessee Gas Pipeline, 87 F.3d at 154:

“While OCSLA was intended to apply to the full range of

disputes that might occur on the OCS, it was not intended

to displace general maritime law. . . . According to the

statute, ‘this subchapter shall be construed in such a

manner that the character of the waters above the outer

Continental Shelf as high seas and the right to

navigation and fishing therein shall not be affected.’

[quoting 43 U.S.C. § 1332(2)] Furthermore, 43 U.S.C. §

1333(f) makes clear that the applicability of OCSLA law

under 43 U.S.C. § 1333(a) shall not give rise to any

inference that other provisions of law (such as general

maritime law), do not also apply. It is not surprising,

therefore, that this court has declared that where OCSLA

and general maritime law both could apply, the case is to

be governed by maritime law.” (Footnotes omitted).

17

chosen to file them in federal court. See also Tennessee Gas

Pipeline v. Houston Casualty Ins. Co., 87 F.3d 150, 154-55 (5th

Cir. 1996).

However, OCSLA does not necessarily transform maritime claims

falling within its jurisdictional grant into claims arising under

federal law. Because OCSLA does not displace general maritime law,

substantive maritime law continues to govern where both OCSLA and

general maritime law could apply. See Smith v. Penrod Drilling,

960 F.2d 456, 459 (5th Cir. 1992) (“When an event occurs on an

OCSLA situs but also is governed by maritime law, maritime law

controls.”) (citation omitted).7 Moreover, maritime cases do not

“arise under” federal law for purposes of federal removal

jurisdiction. See Tennessee Gas Pipeline v. Houston Casualty Ins.

Co., 87 F.3d 150, 153 (5th Cir. 1996), and note 4, supra.

Therefore, where a claim within OCSLA’s grant of original federal
18

court jurisdiction is nevertheless governed by maritime law, it

arguably does not provide removal jurisdiction unless no defendant

is a citizen of the state of suit, notwithstanding that it would

fall within the federal district court’s original jurisdiction

under OCSLA. As previously noted, the federal removal statute

allows defendants to remove civil actions originally filed in state

court, if the federal district court would have had original

jurisdiction over the plaintiff’s action. 28 U.S.C. § 1441(a).

However, section 1441(b) places a restriction on removal: While

claims “arising under” federal law may be removed without regard to

citizenship, “[a]ny other such action” may be removed only if no

defendant is a citizen of the state in which the action was filed.

28 U.S.C. § 1441(b). Consequently, where plaintiffs have alleged

maritime claims which fall within OCSLA’s jurisdictional grant,

some courts have held that those cases may be removed only subject

to subsection 1441(b)’s restriction that no defendant may reside in

the state in which the case is filed. See, e.g., Bulen v. HallHouston Oil Co., 953 F.Supp. 141, 144-45 (E.D. La. 1997) (where

admiralty and OCSLA claims overlap, substantive maritime law

applies and OCSLA does not provide basis for removal); Courts v.

Accu-Coat Services, Inc., 948 F.Supp. 592, 595 (W.D. La. 1996)

(remanding maritime claims); Fogleman v. Tidewater Barges, Inc.,

747 F.Supp. 348, 355-56 (E.D. La. 1990) (OCSLA cannot provide

removal jurisdiction where claim is governed by maritime law).
19

Compare Stokes v. Petroleum Helicopters, 1997 WL 695557 (E.D. La.

1997) (not reported in F.Supp.) (holding OCSLA transformed state

law claims into claims arising under federal law for removal

purposes); Broussard v. John E. Graham & Sons, 798 F.Supp. 370,

374 (M.D. La. 1992) (finding diversity of citizenship irrelevant

where OCSLA applied).

In Tennessee Gas, we noted the “conundrum” that section

1441(b) places citizenship restrictions on the removal of claims,

even though citizenship is arguably irrelevant to the district

court’s original jurisdiction under the OCSLA. See Tennessee Gas,

87 F.3d at 156. However, we did not resolve the dilemma because

the only defendant there, though a citizen of the same state as was

the plaintiff, was not a citizen of the state in which the suit was

brought. See id. (suggesting in dicta that congressional intent of

OCSLA might support removal under first sentence of subsection

1441(b)).

We need not resolve this conundrum today either, as we

conclude as a matter of law that Hufnagel has asserted against

Kerr-McGee a non-maritime claim, a claim governed not by maritime

law but by La. Civil Code § 2322, which is made applicable federal

law by OCSLA, 43 U.S.C. § 1233(a)(2)(A). See, e.g., Haas v.

Atlantic Richfield, 799 F.2d 1011 (5th Cir. 1986). Such claim is

one “arising under” OCSLA within the meaning of section 1441(b) and

section 1331 and hence is not subject to section 1441(b)’s
8 Even if one of the other claims might be characterized as

maritime, it too would be removable under section 1441(c).

20

restriction to cases in which no defendant is a citizen of the

state of suit. Indeed, for the reasons stated below we conclude

that none of Hufnagel’s claims against Kerr-McGee—or the other

defendants for that matter—is a maritime claim.8

B. Not Maritime Claims

Hufnagel’s claims are not maritime. To give rise to a tort

claim in admiralty, an incident must have both a maritime situs and

a connection to traditional maritime activity. Jerome B. Grubart,

Inc. v. Great Lakes Dredge & Dock Co., 115 S.Ct. 1043 (1995);

Sisson v. Ruby, 110 S.Ct. 2892 (1990); Foremost Ins. Co. v.

Richardson, 102 S.Ct. 2654 (1982); Executive Jet Aviation, Inc. v.

City of Cleveland, Ohio, 93 S.Ct. 493 (1972). Hufnagel’s claims

fail both requirements. 

The situs requirement or “location test” requires the

plaintiff to show that the tort either occurred on navigable

waters, or if the injury is suffered on land, that it was caused by

a vessel on navigable waters. See Grubart, 115 S.Ct. at 1048; 46

App. U.S.C. § 740. Hufnagel’s accident, which occurred on an offshore fixed drilling platform, did not occur on navigable waters.

See, e.g., Rodrigue, 89 S.Ct. at 1839-40 (drilling platforms are

not within admiralty jurisdiction); Smith, 960 F.2d at 459

(“Drilling platforms constitute <artificial islands’ under section
21

1333(a)(1).”). Fixed drilling platforms do not exist for any

purpose related to traditional maritime navigation or commerce.

For this reason, the Court has compared fixed platforms to piers,

jetties, bridges, and ramps running into the sea, which have not

supported the application of maritime law. See Rodrigue, 89 S.Ct.

1839-1840 (“[The platform] was an island, albeit an artificial one,

and the accidents had no more connection with the ordinary stuff of

admiralty than do accidents on piers.”).

Further, the accident was not caused by any vessel on

navigable waters. Neither Hufnagel nor the platform nor any

equipment involved was struck by a vessel. Hufnagel was struck by

equipment attached to the platform, which is not a navigable

vessel. See Rodrigue, 89 S.Ct. at 1840 (“The legislative history

of the Lands Act makes it clear that these structures were to be

treated as island or as federal enclaves within a landlocked State,

not as vessels.”). Thus, the accident fails the location test.

The accident also fails the connection test. The connection

test requires that the activity which caused the plaintiff’s injury

bear a significant relationship to traditional maritime commerce.

Id. The court must determine whether the general character of the

activity giving rise to the accident bears a “substantial

relationship with traditional maritime activity.” See Grubart, 115
9 The connection test actually has two parts. First, the court

must assess the general features of the incident giving rise to the

lawsuit and determine whether that general sort of incident has a

“<potentially disruptive impact on maritime commerce[.]’” Grubart,

115 S.Ct. at 1048 (quoting Sisson v. Ruby, 110 S.Ct. 2892, 2896,

(1990)) (internal quotation marks omitted). Second, the court must

determine whether the general character of the activity giving rise

to the tort has a “substantial relationship to traditional maritime

activity.” Id. Because a positive answer to the second inquiry is

precluded by precedent, we do not address the first. 

22

S.Ct. at 1048 (internal quotation marks and citation omitted).9

The key inquiry is whether the allegedly tortious activity is “so

closely related to activity traditionally subject to admiralty law

that the reasons for applying special admiralty rules would apply

in the suit at hand.” See Grubart, 115 S.Ct. at 1051. 

The activity giving rise to Hufnagel’s accident may be

characterized as the repair and construction of a fixed offshore

drilling platform. Construction work on fixed offshore platforms

bears no significant relation to traditional maritime activity.

See Herb’s Welding, Inc. v. Gray, 105 S.Ct. 1421, 1428 (1985)

(finding offshore platform worker not engaged in maritime

employment). See also, e.g., Rodrigue, 89 S.Ct. at 1841 (finding

within OCSLA’s legislative history “the view that maritime law was

inapposite to these fixed structures.”); Laredo Offshore

Constructors, Inc. v. Hunt Oil Co., 754 F.2d 1223, 1231 (5th Cir.

1985) (contract for construction of stationary drilling platform

bore no direct relationship to traditional subjects of maritime

law); In Re Dearborn Marine Services, Inc., 499 F.2d 263, 272-276
10 Tennessee Gas Pipeline held (or at least assumed) that a tort

claim for damages to a fixed platform caused by its being struck by

a vessel in navigation due to the vessel’s negligence was governed

by maritime law. See 46 App. U.S.C. § 740. Smith v. Penrod

Drilling Corp., 960 F.2d 456, 459, 460 (5th Cir. 1992), involved

the question whether a contract between the owner of a fixed

platform on the outer Continental Shelf off Louisiana and the owner

of a jack-up drilling vessel for services to be performed by the

vessel at the platform was governed by Louisiana law or maritime

law; we held maritime law applied because “‘the main piece of

equipment to be supplied [by the contractor] was a vessel.’”

23

(5th Cir. 1974) (holding platform worker’s death, which occurred as

a result of an explosion on a platform, bore no significant

relation to maritime law, despite fact that death occurred while

worker was actually located on vessel in navigable waters).

Hufnagel’s accident similarly occurred on a fixed drilling

platform having no function in navigation, and bearing no purpose

relating to traditional maritime activities. The platform existed

solely to obtain minerals from the shelf. Hufnagel’s accident had

no greater connection to traditional maritime commerce than did the

accident in Rodrigue. 

This case is unlike the limited situations in which this Court

has found off-shore drilling accidents giving rise to admiralty

tort claims. See, e.g., Coats v. Penrod Drilling Corp., 61 F.3d

1113, 1119 (5th Cir. 1995) (en banc) (accident and injury actually

occurred on jack-up vessel on navigable waters when vessel’s

pressure plug failed).10

Hufnagel’s injury occurred entirely on the fixed platform and

was caused entirely by his work on the platform. According to his
24

complaint, Hufnagel was struck by a come-a-long, owned by Omega,

and attached to the platform itself. The AMBERJACK’s presence

beside the platform in no way contributed to Hufnagel’s injury.

Hufnagel has failed to present any claim within the admiralty

jurisdiction of the federal courts.

Hufnagel’s claims are nonmaritime ones “arising under” and

governed by OCSLA. Accordingly, the case may be removed without

regard to the citizenship of the parties.

CONCLUSION

The undisputed evidence shows as a matter of law that Hufnagel

was not a Jones Act seaman. At the time of his injury, Hufnagel

was a primarily land-based employee, and had no permanent

connection to any vessel or fleet of vessels in navigation.

Therefore, remand was not required by the Jones Act.

Furthermore, Hufnagel has alleged against Kerr-McGee a nonmaritime claim under and governed by Louisiana law, made applicable

federal law by OCSLA, and his claim is thus one arising under OCSLA

for purposes of sections 1331 and 1441(b), and is hence removable

without regard to the citizenship of any of the parties. If any

other claims alleged were maritime, they would be removable under

section 1441(c), but in any event Hufnagel alleged no maritime

claim.

Accordingly, the district court correctly denied the motion to

remand.