REVISED February 27, 2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-30217

In Re: In the Matter of the Complaint of Larry Doiron, Incorporated as 

Owner and Operator of the Barge Pogo and M/V Billy Joe for Exoneration 

from or Limitation of Liability 

LARRY DOIRON, INCORPORATED, 

 Plaintiff - Appellee 

ROBERT JACKSON, 

 Intervenor Plaintiff - Appellee 

v. 

SPECIALTY RENTAL TOOLS & SUPPLY, L.L.P.; OIL STATES ENERGY 

SERVICES, L.L.C.; ZURICH AMERICAN INSURANCE COMPANY, 

 Defendants - Appellants 

Appeal from the United States District Court

for the Western District of Louisiana 

Before DAVIS, DENNIS, and SOUTHWICK, Circuit Judges. 

LESLIE H. SOUTHWICK, Circuit Judge:

We are yet again required to determine whether a contract is a maritime 

one. Here, the focus is on a contract to perform flow-back services to improve 

United States Court of Appeals

Fifth Circuit

FILED

February 23, 2017

Lyle W. Cayce

Clerk
No. 16-30217

2 

the performance of an offshore natural-gas well when performance eventually 

required the use of a crane barge. Plaintiffs Larry Doiron, Inc. and Robert 

Jackson argue that maritime law applies. Defendants Specialty Rental Tools 

& Supply, Oil States Energy Services, and Zurich American Insurance 

Company (collectively, “STS”) argue that state law, specifically that of 

Louisiana, applies. The district court determined the contract was maritime

in nature. We conclude the question is close but agree that the specific contract 

at issue, which was an oral work order in effect at the time of injury, should be 

considered maritime. AFFIRMED. 

 

FACTUAL AND PROCEDURAL BACKGROUND 

On October 12, 2005, Apache Corporation and STS entered into a master 

services contract (“MSC”). The MSC does not describe individual tasks but 

operates as a “broadform blanket agreement” that contemplates future tasks 

to be performed under subsequent work orders to be agreed upon as 

necessary.1 The MSC contains an indemnification provision that requires STS 

to defend and indemnify Apache and its “Company Group” against all claims 

for property damage or bodily injury. On appeal, the parties do not dispute 

that Larry Doiron, Inc. (“LDI”) and Jackson are part of Apache’s Company 

Group and are covered by the terms of the MSC.2 

 

1 The MSC provides: Apache “may, from time to time, request Contractor [STS] to 

perform work or render services hereunder (‘Work’) including but not limited to the following 

types of services: Chemicals, Equipment Rental.” 

2 Before the district court, STS argued that VAS Gauging, Inc. — and not Apache — 

contacted LDI to procure the crane barge. As such, it argues, LDI was not in contractual 

privity with Apache, so “STS would not owe LDI and Mr. Jackson defense and indemnity 

even if the general maritime law is held to apply to the MSC.” Neither party briefed this 

issue on appeal, so we need not address it here. See United States v. Martinez, 263 F.3d 436, 

438 (5th Cir. 2001).
No. 16-30217

3 

In early 2011, Apache hired Specialty Rental Tools & Supply (“STS”) to 

perform flow-back services on its offshore well, located in West Lake Verret in 

the Atchafalaya Basin. The flow-back process is designed to dislodge solid 

objects from inside the well to “get it to produce gas again.” The work was to

be performed on Apache’s fixed production platform. The flow-back services 

were arranged by an oral work order; neither party produced a written 

agreement for these particular services. 

On February 24, 2011, STS sent its employees Peter Savoie and Matt

Delahoussaye to perform the flow-back operation. After being unsuccessful 

that day, Savoie informed Brandon LePretre, Apache’s representative, that 

STS would need additional equipment to perform the operation, including a 

flow-back iron, a hydraulic choke manifold, and a hydraulic gate valve. In 

Savoie’s estimation, STS would also need a crane barge because the additional 

equipment was too heavy for the workers to remove from the wellhead. 

LePretre contacted VAS Gauging, Inc., which arranged for LDI to provide the 

crane barge POGO3 for use at the Apache well. Robert Jackson was the crane 

operator. LePretre testified that he knew LDI owned the barge and that it was 

used at the well site with Apache’s consent. 

On the second day of the flow-back operation, Savoie and Delahoussaye 

were again unsuccessful, even with use of the crane. Savoie informed LePretre 

that he needed a coiled tubing unit, so they terminated the operation until one 

could be obtained. Savoie began “rigging down” and directed Jackson to lower 

the crane. Instead, Savoie reported the crane came toward him and “knocked 

 

3 We have previously recognized that a barge is a vessel if it is “equipped for use in 

navigable waters, ha[s] traveled a considerable distance through such waters to its present 

site and was, at the time of the accident, located in a navigable canal.” Producers Drilling 

Co. v. Gray, 361 F.2d 432, 437 (5th Cir. 1966). Neither party disputes that the POGO

qualifies as a vessel, so we do not engage in any analysis of the barge’s classification. 
No. 16-30217

4 

[him] off balance.” He clutched the crane to avoid falling backward but

eventually lost his grip, which caused him to fall approximately eight feet onto 

the deck of the barge. His accident resulted in “a crush type injury to the right 

lower extremity.” 

Later that year, LDI made a formal demand that STS defend and 

indemnify LDI against any claims Savoie may bring. STS rejected the demand. 

LDI then filed a Vessel Owner Limitation Action for exoneration from liability 

on the basis of admiralty jurisdiction under 46 U.S.C. §§ 30501–30512. Savoie 

answered the complaint, alleging he was injured by LDI’s negligence and 

through no fault of his own. LDI then filed a third-party complaint against 

STS and its affiliates. Jackson intervened in the Vessel Owner Limitation 

Action, seeking protection under the MSC and the insurance policy issued by 

Zurich. STS ultimately settled with Savoie, and the district court severed the 

indemnity claims from the personal-injury case. 

LDI and Jackson filed a motion for summary judgment to “enforce their 

contractual right to defense and indemnity.” LDI and Jackson argued the MSC 

obligated STS to indemnify LDI and Jackson against Savoie’s claims. In 

response, STS filed a cross-motion for summary judgment, arguing that the 

MSC “must be construed under Louisiana law and that the indemnity 

provision contained therein is void and unenforceable under the Louisiana 

Oilfield Indemnity Act.” The district court granted the motion submitted by 

LDI and Jackson and denied the cross-motion submitted by STS. 

 Thereafter, the parties filed a joint motion to dismiss the claims not 

resolved by summary judgment and for entry of final judgment on the others. 

The parties reserved the right to appeal “the limited issue of whether 

Defendants were contractually obligated to defend and indemnify 
No. 16-30217

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Plaintiffs . . . .” The court granted the motion and entered final judgment on 

March 10, 2016. STS filed a timely notice of appeal. 

DISCUSSION 

We review de novo the district court’s grant of summary judgment. 

James v. State Farm Mut. Auto. Ins. Co., 743 F.3d 65, 68 (5th Cir. 2014). 

Summary judgment is proper “if the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a 

matter of law.” FED. R. CIV. P. 56(a). A genuine dispute exists if a reasonable 

jury could find in favor of the nonmoving party. Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 248 (1986). All facts and evidence are viewed in the light 

most favorable to the non-movant. James, 743 F.3d at 68. 

The issue here is whether maritime or state law should be applied to 

determine the validity of the MSC’s indemnity clause. The MSC contains a 

choice-of-law provision: 

This contract shall be construed and enforced in accordance with 

the general maritime law of the United States whenever any 

performance is contemplated in, on or above navigable waters, 

whether onshore or offshore. In the event that maritime law is 

held inapplicable, the law of the state in which the work is 

performed shall apply. 

The district court correctly analyzed the conflict as being one between 

Louisiana state law and general maritime principles. The Louisiana Oilfield 

Indemnity Act provides that indemnity clauses in “agreements pertaining to 

wells for oil, gas, or water” are void as violations of public policy. LA. REV.

STAT. § 9:2780. Maritime law “does not bar enforcement of [those] provisions.” 

Hoda v. Rowan Cos., 419 F.3d 379, 380 (5th Cir. 2005). There are, though, no 
No. 16-30217

6 

“clean lines between maritime and nonmaritime contracts.” See Norfolk S. Ry. 

Co. v. Kirby, 125 S. Ct. 385, 393 (2004). 

We articulated the legal framework for deciding cases like this in Davis 

& Sons, Inc. v. Gulf Oil Corp., 919 F.2d 313 (5th Cir. 1990). Distinguishing 

between maritime and non-maritime contracts “turns on a minute parsing of 

the facts,” but we are bound by the Davis approach — however inexact it may 

be. Hoda, 419 F.3d at 380–81. In Davis, the parties entered a Master Service 

Agreement under which Gulf Oil would issue work orders directing Davis to 

perform specific tasks related to its natural-gas and crude-oil wells. Davis, 919 

F.2d at 314. The agreement contained an indemnity clause requiring Davis to 

indemnify Gulf Oil against any claims that may arise out of their relationship. 

Id. Under the work order at issue, Davis supplied land-based barges to 

perform routine maintenance on the wells. Id. The work platforms around the 

wells did not provide adequate workspace, so most of the work was done on the 

barge itself. Id. 

On the day of the accident in Davis, the barge employee supervising the 

operation drowned. Id. His representatives sued both Davis and Gulf Oil, and 

the parties settled. Id. at 315. Davis sought a declaratory judgment that 

Louisiana law governed the contract and that the indemnity provision was 

therefore void. Id. Gulf Oil argued that maritime law applied to validate the 

indemnity provision. Id. The district court applied Louisiana law. Id. 

On appeal, we held that when a contract involves two parts — “a blanket 

contract followed by later work orders” — the two must be interpreted together 

to determine whether maritime or state law applies. Id. We then articulated 

a two-part analysis. Id. at 316. First, we determine the nature of the contract 

by reference to its historical treatment. Id. If the historical treatment is 

unclear, we must consider six factors: 
No. 16-30217

7 

1) [W]hat does the specific work order in effect at the time of injury 

provide? 2) [W]hat work did the crew assigned under the work 

order actually do? 3) [W]as the crew assigned to work aboard a 

vessel in navigable waters[?] 4) [T]o what extent did the work 

being done relate to the mission of that vessel? 5) [W]hat was the 

principal work of the injured worker? and 6) [W]hat work was the 

injured worker actually doing at the time of injury? 

Id.; see also Hoda, 419 F.3d at 381. In Davis, the work being performed was 

not historically maritime in nature. Davis, 919 F.2d at 316. Nonetheless, an 

analysis of the factors revealed “[t]he work done by the crew of Barge 11171

was inextricably intertwined with maritime activities since it required the use 

of a vessel and its crew.” Id. at 317. 

 Applying Davis, we find no clarity to the historical treatment of contracts 

like because this court has not previously considered flow-back operations. We 

have found contracts for the provision of wireline services to be non-maritime. 

See, e.g., Domingue v. Ocean Drilling & Expl. Co., 923 F.2d 393, 397–98 (5th 

Cir. 1991); Thurmond v. Delta Well Surveyors, 836 F.2d 952, 956 (5th Cir. 

1988). Wireline services include providing maintenance for partially drilled oil 

and gas wells and gathering “geophysical data relevant to production.” 

Domingue, 923 F.2d at 394 n.3. On the other hand, contracts for casing 

services are maritime in nature. See, e.g., Demette v. Falcon Drilling Co., 280 

F.3d 492, 500 (5th Cir. 2002), overruled on other grounds by Grand Isle 

Shipyard, Inc. v. Seacor Marine, LLC, 589 F.3d 778, 787 (5th Cir. 2009) (en 

banc); Campbell v. Sonat Offshore Drilling, Inc., 979 F.2d 1115, 1123–24 (5th 

Cir. 1992). Casing is “the welding together and hammering of pipe into the 

subsurface of the earth to create a permanent construction.” Campbell, 979 

F.2d at 1118 n.2. One distinction between the two is that wireline services 

often do not require the use of a vessel; casing services do. Compare 
No. 16-30217

8 

Thurmond, 836 F.2d at 956, with Campbell, 979 F.2d at 1123. Whether that 

distinction was sufficient to cause the different outcomes is unclear. 

We now examine flow-back operations to see if they are comparable 

either to wireline operations or to casing services. When providing flow-back 

services, employees use whatever equipment is necessary to clear the well for 

the resumption of production. The services themselves may be performed 

exclusively on the well platform or may, as here, require a vessel to be 

alongside the well. The district court was likely correct that “flow back services 

have little to do with traditional maritime activity or commerce.” Even if flowback services in the main are not maritime, this is not a sufficient answer 

under Davis. Because the historical treatment is unclear, we cannot rely on a 

generic view of the work; instead, we must consider the circumstances 

surrounding the injury. See Devon Louisiana Corp. v. Petra Consultants, Inc., 

247 F. App’x 539, 544 (5th Cir. 2007) (unpublished). 

Under Davis. no single factor is dispositive. We find that four of the six 

factors — one, two, four, and six — indicate this contract is maritime in nature. 

The first factor concerns the specific work order in effect at the time of the 

injury. Davis, 919 F.2d at 316. Neither party can produce a written document 

to establish what the parties contemplated when this particular agreement 

arose. The MSC references vessels by requiring insurance coverage when the 

“contractor uses any vessels in connection with its work for Company or 

Company Group.” While this factor concerns the specific work order and not 

the MSC, the language of the MSC indicates the parties at least contemplated 

the use of a vessel during the operations for which Apache would employ STS. 

Imposing a maritime obligation would not cause unfair surprise. 

The second factor examines the work the crew assigned under the work 

order actually performed. Id. The STS crew performed a flow-back operation, 
No. 16-30217

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which is not primarily maritime. In fact, however, Savoie and Delahoussaye 

relied on the crane barge to execute the flow-back operation, and Savoie was 

injured as a result of its use. The district court noted that the operation “could 

not have been completed without the use of a crane barge . . . .” We agree. STS 

claims the barge was ancillary to the flow-back operation, but the presence of 

the barge was a necessary predicate to Savoie’s using the hydraulic gate valve. 

The fourth factor concerns the extent to which the work being done 

related to the mission of the vessel. Id. The barge was sent to Apache’s well 

site to serve STS in the execution of its flow-back job. STS notes that the barge 

was forced to move away from the well during the flow-back process to avoid 

safety concerns raised by having an ignition source near a gas well. Despite 

its physical location at the time of the operation, though, the barge was still 

tasked with assisting STS in its execution of the flow-back operation.

The sixth factor concerns what the injured worker was doing at the time 

of his injury. Id. Savoie, at the time of injury, was preparing to disconnect the 

hydraulic gate valve from the crane. During “rigging down,” Savoie clutched 

the crane itself and fell onto the deck of the barge when he lost his grip. Thus, 

Savoie was injured by equipment affixed to the vessel itself. 

Only the third and fifth factors militate against applying maritime law. 

The third factor concerns whether the crew was assigned to work aboard a 

vessel in navigable waters. Id. Neither Savoie nor Delahoussaye was assigned 

to work aboard the crane barge. Still, Savoie made use of the barge by loading 

and unloading equipment from its deck, conducting safety meetings on board 

the vessel,4 and using the crane to install large equipment on the platform. 

 

4 STS states neither Savoie nor Delahoussaye boarded the barge. Delahoussaye 

testified that no one from STS went onto the barge “during the actual flow back services” but 

made no representations as to whether he had boarded the barge at other times. The district 
No. 16-30217

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The fifth factor concerns the principal work of the injured person. Id. At the 

time of his injury, Savoie was principally employed to perform the flow-back 

operation at issue; he was not commissioned to be a seaman. Yet Savoie need 

not be a sailor to give this work order a “peculiarly salty flavor.” See 

Thurmond, 836 F.2d at 953, 956. 

Some of the cases that have applied Davis assist us in our analysis. The 

gravamen of our inquiry is not whether the contract required use of a vessel 

but whether the execution of the contract required a vessel. Demette, 280 F.3d 

at 500–01. STS correctly notes that “incidental or preparatory use of a vessel” 

is not sufficient to render a contract maritime in nature. On the other hand, 

when the work is “inextricably intertwined with maritime activities,” the 

contract will be maritime. Davis, 919 F.2d at 317. 

We find useful similarities between this case and Campbell, where a 

worker performing casing services was injured when transferring from one 

vessel to another. See Campbell, 979 F.2d at 1122–23. First, neither this 

operation nor the operation in Campbell was intrinsically maritime; both may 

have been performed on a fixed surface instead of a vessel. Second, a vessel at 

some point became necessary to execute the operations in both cases. Also, 

both Savoie and the injured worker in Campbell suffered their injuries while 

transferring to a vessel that had been used during the operation. Finally, and 

most importantly, the vessel’s equipment was used to accomplish the relevant 

task both here and in Campbell. Given the similarities, Savoie’s work, like the 

work in Campbell, was “inextricably intertwined with maritime activities . . . .” 

See id. at 1123 (quoting Davis, 919 F.2d at 317). 

 

court found that STS personnel had, at minimum, conducted safety meetings alongside the 

barge’s crew. 
No. 16-30217

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We also find similarities between this case and Hoda, where a worker 

was injured while working aboard a vessel. See Hoda, 419 F.3d at 380. His 

primary job under that work order was to tighten the nuts on a blow-out 

preventer on the wellhead. Id. at 381. The operation was performed using a 

crane aboard the vessel because there was no well platform. Id. In this case, 

Apache had a fixed well platform from which the flow-back operation could 

have been executed. Regardless, the existence of the fixed platform is 

immaterial because the use of a vessel eventually became necessary to 

manipulate the heavy equipment used during the operation. Like the injured 

worker in Hoda, Savoie would “have had nothing to do” had LDI not provided 

the crane barge. See id. Savoie’s work depended on the barge’s direct 

involvement, which strongly indicates a maritime contract. See id. at 383

Devon, an unpublished case from this court, is also analogous. There, 

the worker was injured aboard a vessel during inclement weather. Devon, 247 

F. App’x at 541–42. At the time of his injury, he was working to repair an 

offshore well, and the operation required use of welding equipment. Id. Prior 

to the operation, the workers failed to secure a “hot work” permit, which 

precluded performance of welding operations on the well platform. Id. at 541. 

Thus, the welding equipment remained on the vessel, and the procedures were 

performed on the vessel itself. Id. On appeal, we decided the contract was 

maritime in nature because the work at issue required the vessel’s direct 

involvement. Id. at 544–45. We noted that, but for the employees’ failure to 

secure a permit, the work could have been performed on a fixed platform. Id. 

at 545. It was fair to say, then, that the operation in fact required a vessel. Id. 

This case is similar. Although Apache had a fixed production platform from 

which the work could have been done, Savoie relied on the crane barge to 
No. 16-30217

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perform the job when he realized he could not manipulate the heavy equipment 

alone. This should thus be seen as a maritime operation. 

STS relies on Thurmond and Domingue to support its position. In 

Thurmond, decided before Davis, Gulf Oil contracted with P & S Well Services 

for a barge bearing equipment for the performance of wireline services. 

Thurmond, 836 F.2d at 953. Thurmond, a member of the barge’s crew, was 

injured when he “stepped off the barge and on the wellhead[.]” Id. We held 

the contract to be nonmaritime, noting that Thurmond was “not engaged in the 

performance of a maritime obligation” at the time of his injury. Id. at 955. We 

also found significant that the parties’ contract did not address the use of a 

vessel. Id. In Domingue, also concerning wireline services, the injured worker 

tripped over a piece of equipment the vessel’s crew had placed on the well 

platform. Domingue, 923 F.2d at 394. We held that the vessel was “incidental 

. . . [to] the execution of [the] particular service contract.” Id. at 397. 

Thurmond and Domingue have been distinguished by this court under 

circumstances similar to this case. See, e.g., Campbell, 979 F.2d at 1122; Davis, 

919 F.2d at 316. Neither wireline nor flow-back services are themselves 

maritime activities. The flow-back services in this case, though, could not have 

been completed without a vessel that was more than ancillary to the operation. 

Also, Savoie was not injured as a result of the flow-back operation but because 

of Jackson’s operation of the crane, which was affixed to the vessel. Both 

workers in Thurmond and Domingue were on the well platform at the time of 

injury, but Savoie clutched the crane and fell onto the deck of the barge. 

Further, unlike the contract in Thurmond, the MSC contemplated the 

use of a vessel, showing that both Apache and STS recognized a vessel could 

be necessary to the performance of its future work orders. The contract does 

not mention the crane barge specifically, but the MSC was a blanket 
No. 16-30217

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agreement that did not create present obligations. Instead, it required STS to 

accommodate Apache’s work orders at unspecified future dates. In addition,

“the Davis factors must be applied to the facts as they actually occurred” and 

not “as the parties intended them” to occur. See Devon, 247 F. App’x at 545. 

Even if the parties did not expect a vessel would be used during the flow-back 

operation, one was. 

STS also relies on one of our recent nonprecedential decisions, Riverside 

Construction Company, Inc. v. Entergy Mississippi, Inc., 626 F. App’x 443 (5th 

Cir. 2015). We analyzed a repair contract for Entergy’s Dolphin Fender System 

located on a fuel dock in the Mississippi River. Id. at 444. Entergy removed 

the suit to federal court, arguing the contract was maritime because it 

“contemplated that [the] work would be performed from a floating barge . . . .” 

Id. at 445. We found that federal law did not apply and that removal was 

improper because the barge, which remained tethered to a bank during the 

operation, was merely used as a platform from which the work could be done 

— making it “auxiliary to the actual purpose of the contract[.]” Id. at 446.

Riverside is not factually analogous. No evidence exists to suggest the 

barge in this case remained tethered to a bank during the operation. Instead, 

it was close enough to the well platform — “located on navigable waters in 

West Lake Verret” — to permit the crane to access the wellhead. 

STS also argues there is no basis for applying federal law to claims 

arising in Louisiana territorial waters, especially considering that state law 

applies to claims arising on the Outer Continental Shelf. The Outer 

Continental Shelf Lands Act extends the law of the adjacent state to the 

“subsoil and seabed” off its coast. 43 U.S.C. § 1333(a)(1). The adjacent state’s 

law, though, is incorporated into federal law and “does not supplant admiralty 

and maritime law.” ROBERT FORCE & MARTIN J. NORRIS, THE LAW OF 
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MARITIME PERSONAL INJURIES § 3:15 (2016). Accordingly, once we determine 

the contract is maritime, state law is irrelevant even on the Outer Continental 

Shelf. The policy of applying the law of the situs may seem appealing, but 

doing so would disrupt the “twin aims of maritime law”: “achieving uniformity 

in the exercise of admiralty jurisdiction and providing special solicitude to 

seamen.” Miles v. Melrose, 882 F.2d 976, 987 (5th Cir. 1989). 

Finally, STS argues that “LDI’s maritime tort is irrelevant to STS’s 

contract.” STS implies that Savoie’s injury as a result of the barge is maritime, 

while the contract governing Apache’s relationship with STS is not. In support, 

it notes that the personal injury lawsuit has been severed from this action, 

leaving us no tort issues to decide. As a result, it argues that LDI and Jackson 

are “attempt[ing] to cloud the nature and character of the [MSC] by 

emphasizing LDI’s own maritime tort against Mr. Savoie.” Peeling the 

maritime tort away from an ostensibly non-maritime contract is imaginative 

enough, but it is inconsistent with our prior treatment of analogous situations. 

The fact that Savoie brought an action in tort has no effect on our 

interpretation of the choice-of-law provision or our analysis of the relevant 

facts. The tort suit also has no bearing on the application of the indemnity 

provision, which is the direct subject of this appeal. In fact, the tort suit only 

bears passing relevance because LDI and Jackson would not be seeking 

indemnification otherwise. We recognize the basic distinction between tort 

and contract claims, but that distinction is immaterial here because our 

outcome holds regardless of the doctrinal lens through which the facts are 

viewed. 

Our holding is confined to the facts before us. See Hoda, 419 F.3d at 383.
No. 16-30217

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* * * 

We conclude that the oral work order is the relevant contract and that it 

is a maritime contract. The district court did not err by determining maritime 

law applies. AFFIRMED. 
No. 16-30217

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W. EUGENE DAVIS, Circuit Judge, joined by LESLIE H. SOUTHWICK, 

Circuit Judge, specially concurring: 

I concur in Judge Southwick’s careful opinion which faithfully follows 

our precedent in Davis & Sons1 and its progeny. I write separately to urge the 

court to take this case en banc and simplify the test for determining whether 

a contract is a maritime contract. 

The multi-factor test in Davis & Sons, as set out in the majority opinion,2

has been criticized by a number of judges of this court: in Hoda v. Rowan Cos.,3 

Judge Jones began the opinion by stating: 

This appeal requires us to sort once more through the authorities 

distinguishing maritime and non-maritime contracts in the 

offshore exploration and production industry. As is typical, the 

final result turns on a minute parsing of the facts. Whether this 

is the soundest jurisprudential approach may be doubted, 

inasmuch as it creates uncertainty, spawns litigation, and hinders 

the rational calculation of costs and risks by companies 

participating in this industry. Nevertheless, we are bound by the 

approach this court has followed for more than two decades. 

 

1 Davis & Sons, Inc. v. Gulf Oil Corp., 919 F.2d 313 (5th Cir. 1990).

2 The six factors are:

(1) [W]hat does the specific work order in effect at the time of the injury 

provide? (2) [W]hat work did the crew assigned under the work order actually 

do? (3) [W]as the crew assigned to work aboard a vessel in navigable waters? 

(4) [T]o what extent did the work being done relate to the mission of that 

vessel? (5) [W]hat was the principal work of the injured worker? and (6)[W]hat 

work was the injured worker actually doing at the time of injury?

Id. at 316. 

3 419 F.3d 379 (5th Cir. 2005) (concerning an indemnity claim on a contract to install a 

blowout preventer from a jack-up drilling rig).
No. 16-30217

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 In Thurmond,4 Judge Garwood concurred in the opinion holding that a 

contract to provide wireline services that required use of a vessel was not a 

maritime contract. In his concurring opinion, however, he stated, “I am 

generally in agreement with Judge Wisdom’s persuasive opinion, but am 

troubled by the tension, or perhaps outright inconsistency, between many of 

our opinions in this area.”5 And later, 

However, it seems to me that it may be desirable to consider this 

issue en banc, in order that we may take a more consistent 

approach to the question of whether and in what circumstances 

activities in connection with mineral development in state 

territorial waters are maritime (or perhaps “maritime and 

local”).6

Professor David W. Robertson, in his article, pointed out some of the 

flaws in the Davis & Sons test:7

The “historical treatment” reference does no more than remind 

courts and counsel to look for close analogies in the jurisprudence. 

This is what courts must always do when there is no clear 

governing general rule or principle. The six factors are too 

pointillistic: they have led Fifth Circuit panels down such odd 

lines of thought as “whether drilling mud services are more akin 

to wireline work [which has sometimes been viewed as 

quintessentially nonmaritime] or to casing services [which can be 

maritime if done on a vessel-type drilling rig.]”8

 

4 Thurmond v. Delta Well Surveyors, 836 F.2d 952 (5th Cir. 1988).

5 Id. at 957 (Garwood, J., concurring). 

6 Id. (citing Kossick v. United Fruit Co., 365 U.S. 731, 738 (1960)). 

7 For a more detailed criticism of the Davis & Sons test, see David W. Robertson, The Outer 

Continental Shelf Lands Act’s Provisions on Jurisdiction, Remedies, and Choice of Law: 

Correcting the Fifth Circuit’s Mistakes, 38 J. MAR. L. & COM. 487, 540-45 (2007). 

8 Id. at 545 (alteration in Robertson). 
No. 16-30217

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One problem with the multi-factor test in Davis & Sons is the lack of 

guidance about what weight to give each factor. A number of our cases seem 

to give the most weight to the Davis & Sons prong that requires examination 

of the precise work to be performed, e.g., wireline service, welding, casing 

service, or drilling. Most of our cases hold that a contract to provide any of 

these services on a vessel on navigable waters is a maritime contract, but 

panels have held that contracts to provide wireline services are non-maritime 

in nature whether the contractor contemplates that the services are to be 

performed from a vessel or not.9 On the other hand, we have held that 

contracts to perform casing services are maritime because of the nature of 

casing work.10

A 2004 Supreme Court case, Norfolk Southern Railway Co. v. Kirby,11

supports my view that the en banc court should abandon the Davis & Sons

test. In Kirby, the Court was called upon to determine whether a bill of lading 

for a shipment of goods by sea from Australia to Charleston, South Carolina, 

 

9 See Hollier v. Union Tex. Petroleum Corp., 972 F.2d 662, 665 (5th Cir. 1992) (holding that a 

contract for well testing on fixed platforms on the OCS is non-maritime); Domingue v. Ocean 

Drilling & Expl. Co., 923 F.2d 393, 397-98 (5th Cir. 1991) (holding that a contract to provide 

wireline services to a jack-up rig operating on the OCS off the coast of Louisiana is nonmaritime); Thurmond, 836 F.2d at 956-57 (holding that a contract to provide wireline services 

to a fixed platform in Louisiana state waters is non-maritime).

10 See Demette v. Falcon Drilling Co., 280 F.3d 492, 501 (5th Cir. 2002) (finding that because 

casing work “is an integral part of drilling,” which is a “the primary purpose of the vessel” a 

contract for casing services is maritime); Campbell v. Sonat Offshore Drilling, Inc., 979 F.2d 

1115, 1121 (5th Cir. 1992) (holding that a contract to provide casing services is maritime); 

Corbitt v. Diamond M. Drilling Co., 654 F.2d 329, 332 (5th Cir. 1981) (finding that circuit 

precedent compels the conclusion that a contract for casing services is maritime); see also 

Kenneth G. Engerrand, Primer of Remedies on the Outer Continental Shelf, 4 LOY. MAR. L.J.

19, 61-63 (2005) (noting that historically, some services contracts are considered maritime in 

nature, including drilling and workover, casing, catering, repair, and well-site supervision, 

while other services contracts are traditionally non-maritime in nature, including wireline 

work, testing and completion operations). 

11 543 U.S. 14 (2004). 
No. 16-30217

19

then by rail to Huntsville, Alabama was a maritime contract.12 The goods were 

damaged in a train wreck during the land leg of the trip and the question was 

whether the suit to recover damages for property that was damaged on this leg 

of the trip fell within admiralty jurisdiction.13 The Court concluded that both 

the land and water portions of the bills of lading constituted maritime 

contracts because their primary objective was to accomplish the transportation 

of goods by sea from Australia to the eastern coast of the United States.14

Although the facts of this case are not closely analogous to those in today’s 

case, the Court provided important guidance to assist us in determining 

whether a contract is a maritime contract: 

To ascertain whether a contract is a maritime one, we cannot 

look to whether a ship or other vessel was involved in the dispute, 

as we would in a putative maritime tort case. . . . Nor can we 

simply look to the place of the contract’s formation or performance. 

Instead, the answer “depends upon . . . the nature and character of 

the contract,” and the true criterion is whether it has “reference to 

maritime service or maritime transactions.”15 

And further “the fundamental interest giving rise to maritime jurisdiction is 

the protection of maritime commerce.”16 

Thus, in determining whether a contract being sued upon is a maritime 

contract, we should use contract principles rather than tort principles: We look 

 

12 Id. at 18-19.

13 Id. at 21-22.

14 Id. at 24.

15 Id. (second alteration in original) (quoting N. Pac. S.S. Co v. Hall Bros. Marine Ry. & 

Shipbuilding Co., 249 U.S. 119, 125 (1919) (citing Ins. Co v. Dunham, 78 U.S. 1, 16 (1870))); 

see also Exxon Corp. v. Cent. Gulf Lines, Inc., 500 U.S. 603, 611 (1991) (“[T]he trend in modern 

admiralty case law . . . is to focus the jurisdictional inquiry upon whether the nature of the 

transaction was maritime.”). 

16 Id. at 25 (emphasis removed) (internal quotation marks omitted) (quoting Exxon, 500 U.S. 

at 608 (quoting Sisson v. Ruby, 497 U.S. 358, 367 (1990), in turn quoting Foremost Ins. Co. v. 

Richardson, 457 U.S. 668, 674 (1982))). 
No. 16-30217

20

to “the nature and character of the contract,” “whether it has ‘reference to 

maritime service or maritime transaction.’”17 The Court called for a conceptual 

approach to the inquiry and the focus of the inquiry is the protection of 

maritime commerce.18

The six-prong test in Davis & Sons for determining whether the contract 

being sued upon is a maritime contract includes two prongs that are 

appropriate in a contract case: (1) what does the work order provide and (2) 

was the work to be performed on navigable water. The remaining factors are 

more appropriate in analyzing whether maritime tort jurisdiction can be 

exercised. In Grand Isle Shipyard, the en banc court encountered a similar 

question.19 

In that case, another action to recover indemnity under a contract, we 

were faced with identifying the “situs of the controversy” under the Outer 

Continental Shelf Lands Act (“OCSLA”).20 If the situs was the Outer 

Continental Shelf (“OCS”), state law (Louisiana) applied and the indemnity 

agreement was unenforceable because of the Louisiana Oilfield Indemnity 

Act.21 We overruled a number of our cases applying tort principles that held 

that the situs of the controversy for purposes of the OCSLA was the place of 

injury.22 In Grand Isle Shipyard, the injury occurred on a vessel and the 

appellant argued that this was the situs of the controversy.23 We disagreed 

 

17 Id. at 24-25. 

18 Id. at 25. 

19 Grand Isle Shipyard, Inc. v. Seacor Marine, LLC, 589 F.3d 778 (5th Cir. 2009) (en banc). 

20 Id. at 781. 

21 Id. 22 Id. at 787-88 (overruling Diamond Offshore Co. v. A&B Builders, Inc., 302 F.3d 531, 546 

(5th Cir. 2002); Demette, 280 F.3d at 500; Hodgen v. Forest Oil Corp., 87 F.3d 1512, 1527 (5th 

Cir. 1996); Smith v. Penrod Drilling Corp., 960 F.2d 456, 459 (5th Cir. 1992); and Hollier, 972 

F.2d at 664). 

23 Id. at 781-82. 
No. 16-30217

21

and concluded that we should apply contract principles and determine where 

the majority of the work was to be performed under the contract.24 Because 

most of the work contemplated under the contract was on stationary platforms 

on the OCS, we concluded that this location was the focus of the contract and 

the situs of the controversy.25 This resulted in the application of state law as 

required under OCSLA.26

The same reasoning applies here. This is a suit on a contract for 

indemnity. We look to the blanket contract and the verbal work order for the 

nature and character of the contract; that is, what was the work STS was 

engaged to do on the well in West Lake Verret in the state of Louisiana. The 

answer is clear: they were engaged to work downhole from a stationary 

platform to dislodge downhole obstructions and get the gas well back on 

production. The contract did not call for any work on a vessel. 

As it turned out, an unexpected problem developed that required a vessel 

equipped with a crane to complete the job. Apache engaged another party, 

LDI, to provide the vessel and crew for this work. 

Considering all of the above, what is an appropriate test for determining 

whether a contract to provide oilfield services is maritime or non-maritime? 

Based on the Supreme Court’s opinion in Kirby, our opinion in Grand Isle 

Shipyard, and the weight of our decisions in this area, I would substitute the 

following test for determining whether a contract for services to facilitate the 

drilling or production of oil and gas on state waters or the OCS is a maritime 

contract. 

 

24 Id. at 787. 

25 Id. at 787-88; see also ROBERT FORCE & MARTIN J. NORRIS, THE LAW OF MARITIME 

PERSONAL INJURIES § 13:9 (2016) (discussing cases applying the rule emanating from Grand 

Isle Shipyard). 

26 Id. at 789. 
No. 16-30217

22

So long as a contract’s primary purpose is to provide services to promote 

or assist in oil or gas drilling or production on navigable waters aboard a vessel, 

it is a maritime contract. Its character as a maritime contract is not defeated 

simply because the contract calls for incidental or insubstantial work unrelated 

to the use of a vessel.27

Under this test, a contract or work order to provide specialized services 

to promote the drilling and production of an oil or gas well from a vessel should 

be considered a maritime contract. If such a contract also provides for work on 

land or platforms that is incidental to the work on vessels or insubstantial in 

relation to the vessel-related work, this does not defeat the character of the 

contract as a maritime contract. Under this test and consistent with most of 

our cases, specialized services to promote drilling or production of oil or gas to 

be performed solely from a stationary platform should not be considered a 

maritime contract. 

Our cases have consistently held that oil and gas drilling on navigable 

waters from a vessel is considered maritime commerce.28 It follows that other 

services performed on a vessel in navigable waters to facilitate the drilling and 

production of oil and gas constitutes maritime commerce. Determining 

whether the contract is maritime should not depend on the nature of the 

particular oilfield services contracted for. 

Applying this test to today’s case, the verbal Apache work order called 

for STS to perform downhole work from a stationary platform to clear an 

obstruction in a gas well and get it back on production. This downhole work 

 

27 Professor Robertson recommends a similar test, see Robertson, supra note 7 at 548.

28 Theriot v. Bay Drilling Corp., 783 F.2d 527, 538-39 (5th Cir. 1986) (“Oil and gas drilling on 

navigable waters aboard a vessel is recognized to be maritime commerce.”); Pippen v. Shell 

Oil Co., 661 F.2d 378, 384 (5th Cir. 1981) (“[O]ffshore drilling the discovery, recovery, and 

sale of oil and natural gas from the sea bottom is maritime commerce . . . .”). 
No. 16-30217

23

on a stationary platform has no maritime or “salty” flavor that would qualify 

it as a maritime contract. 

The fact that during the course of performing the work from the 

platform, a problem was encountered that required Apache to engage a vessel 

with a crane to assist in the job, does not alter the nature of Apache’s contract 

with STS even though the STS crew performed incidental work to assist in 

connecting the vessel’s crane to a load to be lifted. 

CONCLUSION 

It is time to abandon the Davis & Sons test for determining whether or 

not a contract is a maritime contract. The test relies more on tort principles 

than contract principles to decide a contract case. It is too flexible to allow 

parties or their attorneys to predict whether a court will decide if a contract is 

maritime or non-maritime or for judges to decide the cases consistently. The 

Supreme Court’s decision in Kirby reinforces this conclusion. Just as 

important, the above test will allow all parties to the contract to more 

accurately allocate risks and determine their insurance needs more reliably.