1

United States Court of Appeals,

Fifth Circuit

No. 97-30081

Summary Calendar.

Geraldine COULTER, wife of/and James Coulter, PlaintiffsAppellants,

v.

TEXACO, INC., Texaco Exploration and Production, Inc., and Rogers

Louviere, Defendants-Appellees.

July 29, 1997.

Appeal from the United States District Court for the Eastern

District of Louisiana.

Before HIGGINBOTHAM, WIENER and BENAVIDES, Circuit Judges.

WIENER, Circuit Judge:

Plaintiffs-Appellants Geraldine and James Coulter appeal from

the district court's grant of summary judgment, dismissing their

action against Defendants-Appellees Texaco, Inc., Texaco

Exploration and Production, Inc., and Texaco employee Rogers

Louviere (collectively "Texaco"). Concluding that the district

court properly held that Texaco could not be liable under Louisiana

Civil Code Articles 2315, 2317 or 2322 for the injuries sustained

by Mr. Coulter while he worked for an independent drilling

contractor on a drilling rig located on an offshore drilling

platform owned by Texaco, we affirm the district court's summary

judgment.

I

FACTS AND PROCEEDINGS

In June 1991, Texaco entered into a contract with James
2

Coulter's employer, Dual Drilling Company (Dual), in which Dual

agreed to provide a drilling rig ("Dual 25") and a crew to perform

drilling operations on a fixed platform owned by Texaco at West

Delta, Block 109, in the Gulf of Mexico ("Texaco's platform"). The

contract provided that Dual, as an independent contractor, would

control, direct and maintain responsibility for the performance of

the details of its work, including the rigging up and rigging down

of Dual 25 on Texaco's platform and any loading and unloading

operations as well. The only right reserved by Texaco was to

observe and inspect ("monitor") Dual's work to ensure its

satisfactory completion. Defendant Rogers Louviere works for

Texaco as a drilling supervisor and, during the time Coulter worked

for Dual, was assigned to Dual 25 to monitor Dual's drilling

operations. At the time of Coulter's accident, however, Louviere

was on vacation and Keith Doucet was serving in his place as

Texaco's "company man" monitoring Dual's operations.

In September 1995 Dual 25 was skidded on top of and welded to

Texaco's platform. Drilling operations commenced shortly

thereafter and were scheduled to be completed in late 1996. Prior

to being placed on this platform, Dual 25 had drilled from five

other fixed offshore platforms owned by various entities since it

was first put into service in 1980.

At the time Dual 25 was positioned on Texaco's platform it was

equipped with two cranes. To provide more room for loading and

unloading, one of the cranes was removed, and a crane belonging to

Texaco, which was already present on this platform, was reassigned
3

to Dual 25 as part of its equipment and repositioned on this rig.

Prior to the removal of the second Dual crane from the drilling

unit, however, that crane's pedestal had served as two of the six

posts for the unit's drill collar pipe rack. Thus, although the

pipe rack was supposed to be supported by six posts, only four

posts remained after the removal of Dual 25's second crane.

Coulter, a member of Dual's roustabout crew, was injured

several months after the repositioning of the crane in question

while unloading equipment onto Dual 25 from a supply vessel. Near

the end of the crew's 12 hour shift on December 22, 1995, the Dual

crew's crane operator moved a Schlumberger Anadrill tool ("MWD

tool") from the drill floor to the drill collar pipe rack. Coulter

and another roustabout stepped on top of the drill collars to

disconnect the crane slings from the MWD tool. After the slings

had been removed, Coulter prepared to step off the drill collar

pipe rack. At this point, however, one of the boards separating

the rows of drill collars broke, allowing a drill collar pipe to

roll and injure Coulter's leg. But for the removal of the second

crane and Dual's failure to replace the missing two posts or

otherwise stabilize the pipe rack, the drill collar pipes would

have been safely and securely contained and Coulter would not have

been injured.

The Coulters sued Texaco in Louisiana state court, seeking

damages for the personal injuries Mr. Coulter suffered while

employed on Dual 25 when it was positioned on Texaco's platform.

They asserted negligence claims under Louisiana Civil Code Article
 

1See Songbyrd, Inc. v. Bearsville Records, Inc., 104 F.3d 773,

776 (5th Cir.1997); Williams v. Time Warner Operation, Inc., 98

F.3d 179, 181 (5th Cir.1996); Duhon v. Mobil Oil Corp., 12 F.3d

55, 57 (5th Cir.1994). 

 

2See 43 U.S.C. § 1333(a)(2)(A); Rodrigue v. Aetna Cas. and

Sur. Co., 395 U.S. 352, 355, 89 S.Ct. 1835, 1837, 23 L.Ed.2d 360

(1969); Bartholomew v. CNG Producing Co., 832 F.2d 326, 328 (5th

Cir.1987). 

4

2315 and strict liability claims under Civil Code Articles 2317 and

2322. Texaco removed the action to federal court, filed a third

party complaint against Dual for contractual indemnity, and

ultimately moved for summary judgment against the Coulters. The

district court granted Texaco's motion for summary judgment,

holding that Texaco could not be held liable for James Coulter's

injuries under any of the Coulters' theories, and therefore

dismissed the Coulters' claims against Texaco with prejudice. The

Coulters timely filed their notice of appeal.

II

DISCUSSION

A. Standard of Review and Applicability of Louisiana Law

As is well known, we review the grant of a motion for summary

judgment de novo and apply the same legal standards as does the

district court.1 Texaco's platform is located on the outer

Continental Shelf off the Louisiana coast. The Outer Continental

Shelf Lands Act (OCSLA) mandates that when disputes arise involving

fixed structures erected on the outer Continental Shelf, applicable

laws of the adjacent state will be applied to the extent not

inconsistent with other federal laws and regulations.2

Indisputably, then, the personal injury law of Louisiana applies to
 

3Graham v. Amoco Oil Co., 21 F.3d 643, 645 (5th Cir.),

rehearing denied, 28 F.3d 452 (5th Cir.1994); Bartholomew, 832

F.2d at 329; Ainsworth v. Shell Offshore, Inc., 829 F.2d 548, 549-

551 (5th Cir.1987), cert. denied, 485 U.S. 1034, 108 S.Ct. 1593, 99

L.Ed.2d 908 (1988). 

 

4See e.g., Graham, 21 F.3d at 646; Ainsworth, 829 F.2d at

550. 

5

this case, and the Coulters properly asserted their claims under

Louisiana's Civil Code.

B. Negligence Claims

 The Coulters assert that Texaco is liable in negligence for

Mr. Coulter's injuries under Louisiana Civil Code Article 2315. As

all of the parties and the district court recognize, however, a

principal, such as Texaco, cannot be liable for injuries resulting

from the negligent acts of an independent contractor, such as Dual,

unless (1) the liability arises from ultrahazardous activities

performed by the contractor on behalf of the principal or (2) the

principal retains operational control over the contractor's acts or

expressly or impliedly authorizes those acts.3 In this case,

Dual's actions clearly did not fall in the limited ultrahazardous

category; therefore, the only issue relevant to the Coulters'

negligence claims is whether Texaco retained control over or

authorized any of Dual's activities that resulted in Coulter's

injuries.

Testing for this operational control exception first requires

an examination of whether and to what extent the right to control

work has been contractually reserved by the principal.4 Here, as

is typically the case in contractual arrangements between platform
 

5See Graham, 21 F.3d at 646 (presence of company man who

observed unsafe working conditions created by unloading of excess

amounts of casing and who did not stop operation did not amount to

operational control or implicit authorization of those unsafe

conditions that led to injury); Ainsworth, 829 F.2d at 550. 

 

6Cf. Bartholomew, 832 F.2d at 329 (company man's express order

not to wash down rig floor could amount to express authorization of

unsafe practice that caused accident). 

6

owners and independent drilling contractors, the Texaco-Dual

contract broadly provides that Dual "shall control and direct the

performance of the details of the work" and further specifies that

Dual "shall be solely responsible for the various moves of its

Drilling Unit, for mooring or unloading operations, if required,

and for rigging up and rigging down operations (emphasis added)."

Moreover, the fact that a principal like Texaco reserves the right

to monitor its contractor's performance and stations a "company

man" on the platform who observes the contractor's activities, has

the right to make safety recommendations to the contractor, and is

obligated to report continuing unsafe work practices or conditions

to his (Texaco) superiors, does not mean that the principal

controls the methods or details of the contractor's work.5 In

short, absent an express or implied order to the contractor to

engage in an unsafe work practice leading to an injury, a principal

like Texaco cannot be liable under the operational control

exception.6

It is uncontested that (1) Coulter was injured during the

unloading of a supply vessel, and (2) the pedestal of Dual's second

crane, which had previously served as posts for the drill collar

pipe rack, was removed during rigging up operations. As the
7

contract expressly vests Dual with sole responsibility for both of

these operations, Texaco cannot be liable for any injuries

resulting therefrom absent some other unusual circumstance.

The Coulters argue that just such an unusual circumstances was

present here because Texaco engineers initially gave their consent

to reposition the second Dual crane and replace it with the Texaco

crane. The Coulters thus contend that this approval at least

amounts to an implicit authorization of the configuration of the

drill collar pipe rack with four rather than six posts. In and of

itself, however, the consent of these Texaco engineers to the DualTexaco crane swap is insignificant because the Coulters have not

pointed to any summary judgment evidence indicating that (1) Texaco

knew, at the time the second Dual crane was removed, that the

crane's pedestal was serving as two of the six posts for Dual 25's

drill collar pipe rack, or (2) Dual was prevented by Texaco from

making adjustments to the rack once the crane was moved and it

should have become clear to Dual that the rack was unstable.

Consequently, there is no evidence that Texaco itself either

explicitly or implicitly authorized the initial destabilization, or

continued unsafe use, of the drill collar pipe rack. We therefore

conclude that the district court properly dismissed the Coulters'

negligence claims against Texaco founded on Article 2315.

C. Strict Liability Claims: Article 2317 and Garde Liability

 The Coulters assert that Texaco is liable for Mr. Coulter's

injuries under Louisiana Civil Code Articles 2317 and 2322, which

respectively impose a form of "no fault" liability on the custodian
 

7The liability imposed upon the custodian of an object under

Article 2317 or the owner of a building under Article 2322, prior

to the 1996 amendments of the Civil Code's personal injury

articles, see infra notes 8 & 12, is "strict" (i.e., without fault)

in the sense that neither the custodian's or the owner's ignorance

of the defective or ruinous condition of the object or building nor

the lack of a reasonable opportunity to have detected it will

absolve them from liability; however, it is also not absolute

because the custodian or owner may escape liability if he proves

that the injury was caused by (1) the fault of the victim, (2) the

fault of a third person, or (3) an irresistible and unforeseeable

force. See Entrevia v. Hood, 427 So.2d 1146, 1148 (La.1983). In

Entrevia, the Louisiana Supreme Court also observed that to recover

in "strict liability" under either Article 2317 or 2322, "the

injured person must prove that the building or its appurtenances

[or the defective thing] posed an unreasonable risk of injury to

others, and that his damage occurred through this risk." Id.

(emphasis added). Thus, a trespasser who sustained injuries caused

by the collapse of steps leading from an unoccupied, fenced

farmhouse posted with "no trespassing" signs is not entitled to

recover in strict liability under either Article 2317 or 2322

because imperfections in the steps of such a building did not

constitute an unreasonable risk of harm to others. Id. at 1150. 

 

8La.Civ.Code Ann. art. 2317 (West 1979). In 1996, the

Louisiana legislature adopted Article 2317.1 which significantly

modified Article 2317's imposition of liability by providing that:

The owner or custodian of a thing is answerable for

damage occasioned by its ruin, vice, or defect, only upon

a showing that he knew or, in the exercise of reasonable

care, should have known of the ruin, vice, or defect

which caused the damage, that the damage could have been

prevented by the exercise of reasonable care, and that he

failed to exercise such reasonable care.

8

of a defective object or the owner of a ruinous building if the

object or building poses an unreasonable risk of harm to others and

in fact causes injury.7

Disregarding as we must the changes wrought by recently

adopted Louisiana Civil Code Article 2317.1, we see that Article

2317, as it stood when Coulter was injured, provided:

We are responsible, not only for the damage occasioned by our

own act, but for that which is caused by the act of ... the

things which we have in our custody.8
La.Civ.Code Ann. art. 2317 (West Supp.1997). As the events

triggering the Coulters' lawsuit all took place prior to April

16, 1996, the effective date of new Article 2317.1, we apply

Article 2317 without considering the negligence elements added

by Article 2317.1. 

 

9Ainsworth, 829 F.2d at 551; Boutwell v. Chevron U.S.A.,

Inc., 864 F.2d 406, 409 (5th Cir.1989). 

 

10See Thumfart v. Lombard, 613 So.2d 286, 290 (La.Ct.App. 4th

Cir.), writ denied, 617 So.2d 1182 (La.1993); Doughty v. Insured

9

Thus, at the time Article 2317 imposed liability when (1) the thing

causing damage was in the custody (or "garde") of the defendant;

(2) the thing had a vice or defect creating an unreasonable risk of

harm; and (3) the vice or defect occasioned damage.9 The Coulters

contend that Texaco had custody or "garde" of the defective drill

collar pipe rack because either (1) the entire Dual drilling unit

was an appurtenance to or component part of Texaco's platform, or

(2) Texaco supervisors were present on Dual 25 at all times and

Texaco engineers participated in the installation of Dual 25 and

approved the removal of the Dual crane and the redeployment of the

Texaco crane in its stead. Neither contention has merit.

With respect to the first argument, as we will explain below

in Part II.C.2, Dual 25 cannot be characterized as an appurtenance

to or component part of Texaco's platform under applicable

Louisiana law. With regard to the second contention, Louisiana

courts have generally held that (1) ownership of a thing

establishes a rebuttable presumption of custody or "garde," and (2)

in a case of non-ownership, a defendant may be found to have

custody over property when he exercises direction and control of

the thing and derives some benefit from it.10 Thus, Dual's
Lloyds Ins. Co., 576 So.2d 461, 464 (La.1991); Ross v. La Coste de

Monterville, 502 So.2d 1026, 1032 (La.1987). This court has

similarly defined "custody," in the context of Article 2317, to

mean supervision and control. See Ainsworth, 829 F.2d at 551;

Boutwell, 864 F.2d at 409. 

 

11See Ainsworth, 829 F.2d at 551-52 (independent contractor's

complete ownership of drilling rig, its component parts, and tools

used in rigging up, combined with platform owner's

non-participation in rig up precluded "garde" liability for

accident caused by failure of drill rig owner to provide lighting

for work area during rig up). 

10

ownership of the rig, coupled with the Texaco-Dual contract, which

specifically states that Dual "shall continue to have custody of

and to be responsible for the Drilling Unit and maintaining of

same," establishes a strong presumption that Dual 25 was in the

legal custody of Dual, not Texaco. The total absence of evidence

that Texaco exercised actual control over the ongoing

implementation of any of the various parts of Dual 25—including the

allegedly defective drill collar pipe rack—makes this presumption

conclusive. Just as with the Coulters' negligence claims under

Article 2315, neither the mere presence of Texaco company men who

monitored Dual's performance of its contractual obligations nor the

limited involvement of Texaco engineers' in approving the exchange

of cranes comes anywhere close to creating the kind of supervision

and control necessary to establish Texaco's custody over the

drilling rig or the drill collar pipe rack for purposes of Article

2317.11 Consequently, the district court properly dismissed the

Coulters' claims asserted under Article 2317.

D. Article 2322 and Premises Liability

The last foundation of the Coulters' claims against Texaco is
 

12La.Civ.Code Ann. art. 2322 (West 1979). Just as with Article

2317, in 1996 the Louisiana legislature adopted revised Article

2322, which limited the imposition of damages upon an owner of a

building to instances when there is "a showing that he knew, or in

the exercise of reasonable care, should have known of the vice or

defect which caused the damage, that the damage could have been

prevented by the exercise of reasonable care, and that he failed to

exercise such reasonable care." La.Civ.Code Ann. art. 2322 (West

Supp.1997). As the events underlying this action all preceded

April 16, 1996, the effective date of the revised article, we apply

the former, unmodified version of Article 2322. 

 

13Olsen v. Shell Oil Co., 365 So.2d 1285, 1289 (La.1978). 

 

14Id. at 1289-90. 

 

15See Entrevia, 427 So.2d at 1148. 

11

Louisiana Civil Code Article 2322, which, at the time of Mr.

Coulter's injury, provided:

The owner of a building is answerable for the damage

occasioned by its ruin, when this is caused by neglect to

repair it, or when it is the result of a vice in its original

construction.12

Thus, Article 2322 imposed its particular variety of "no fault"

liability when an injured person establishes that (1) there is a

building; (2) the building is owned by the defendant; and (3)

there is a "ruin," caused by some vice in the building's

construction or by a neglect to repair it, which occasions the

injury.13 Here, no one disputes that (1) a fixed offshore drilling

platform is a building for purposes of Article 2322,14 and (2)

liability may be imposed under Article 2322 against a building's

owner when a defect or ruinous condition is located in "an

appurtenance" to, or integral part of, the building, as well in the

actual structure or materials of the building itself.15

As the Coulters have not alleged any defect or ruinous
 

16See Walker v. Tenneco Oil Co., 615 F.2d 1121, 1124 (5th

Cir.1980) (pretermitting a definitive holding on this same

"appurtenance" issue because of its "widespread ramifications"). 

 

17365 So.2d 1285. 

12

condition in the structure or material of Texaco's platform qua

platform, their strict liability claim under Article 2322 rises or

falls on their ability to prove that at the time of the injury Dual

25 had become an appurtenance to, or integral part of, Texaco's

platform by virtue of that rig's physical attachment to that

structure. Applying Louisiana Civil Code Article 466's requirement

that a component part of a building be "permanently attached," the

district court held that the Coulters could not establish that Dual

25 was an appurtenance to, or integral part of, the Texaco platform

and thus dismissed their claim under Article 2322.

Recognizing that the district court's resolution of this final

issue has potentially broad applications on the outer Continental

Shelf,16 we now review the jurisprudential and statutory

developments pertinent to the issue to demonstrate (1) how

Louisiana Civil Code Article 466 has indeed come to provide the

appropriate and sole criterion for determining whether an addition

has become an integral part of a building for purposes of imposing

liability on the building's owner under Article 2322, and (2) how

Article 466 is properly applied in this context.

1. Article 466 as Sole Criterion for Determining Whether an

Addition is Part of a Building

Our review begins with Olsen v. Shell Oil Co.17 a case in

which the owner of a drilling platform was sued under Article 2322
 

18Id. at 1289-1292. 

 

19Champagne v. Chevron U.S.A., Inc., 605 F.2d 934, 936 (5th

Cir.1979). 

 

20Walker v. Tenneco Oil, Co., 615 F.2d at 1124. 

13

for injuries and deaths resulting from the explosion of a water

heater that was part of a modular drilling rig which had been

located on a fixed drilling platform. After we certified several

questions to the Louisiana Supreme Court, that court resolved,

inter alia, that the modular drilling rig and its accompanying

modular living unit did constitute appurtenances of the drilling

platform for purposes of assessing liability against the owner of

the platform under Article 2322, despite the separate ownership of

the drilling rig and the platform.18 In the years immediately

following Olsen, we reached contradictory results in two cases that

required a determination whether particular pieces of equipment

attached to a drilling platform were appurtenances of the platform

for purposes of assessing liability under Article 2322. In one

case, we held that a fire hose directly attached to a platform was

an appurtenance;19 yet in another, we expressed doubt that a

portable and easily detached "snubbing unit" (a hydraulic jacking

mechanism designed to allow lengths of pipe to be forced into and

pulled out of a pressurized well) could be considered appurtenant

to a platform.20 Over time our "appurtenance" jurisprudence

stabilized, however, and in several cases we applied a two part

test to determine whether various kinds of equipment or additions

could be characterized as appurtenances of a drilling platform. In
 

21See Steele v. Helmerich & Payne Intern. Drilling Co., 738

F.2d 703, 705 (5th Cir.1984) (stabbing board not an appurtenance of

drilling rig); Knapp v. Chevron USA, Inc., 781 F.2d 1123, 1127

(5th Cir.1986) (safety net not an appurtenance of platform);

Harrison v. Exxon Corp., 824 F.2d 444, 447 (5th Cir.1987) (blowout

preventer was not an appurtenance of platform). 

 

22Steele, 738 F.2d at 706. 

 

23See La.Civ.Code art. 463 (1870) (West 1972 Compiled Ed.). 

14

particular, we considered (1) how securely the equipment or

addition was attached to the platform and (2) the degree of

permanence the parties intended for the object.21 In one of these

decisions, we also recognized that the definition of permanent

attachment used to identify component parts of a corporeal

immovable in Louisiana Civil Code Article 466 should also be

considered in determining whether an attachment was an appurtenance

under Article 2322.22

Building on these decisions but also paying close attention to

the 1978 revisions of the Louisiana Civil Code articles on

immovables, several decisions from the United States District Court

for the Eastern District of Louisiana took the "part of a building"

inquiry posed by strict liability claims under Article 2322 one

step further. In two opinions, the late Judge George Arcenaux, Jr.

persuasively reasoned that both Olsen and our subsequent

"jurisprudentially-developed concept of "appurtenance' " are

obsolete because the 1978 revisions of the Civil Code (1) erased

Louisiana's antiquated categories of immovables by nature,

immovables by destination, and immovables by object,23 replacing

them with the single category of corporeal immovables, and (2)
 

24Sistrunk v. Conoco, Inc., 693 F.Supp. 498, 501 (E.D.La.1988);

Boggs v. Atlantic Richfield Co., 720 F.Supp. 72, 73-74

(E.D.La.1989). 

 

25Id. 

 

26Dupre v. Chevron U.S.A., Inc., 913 F.Supp. 473, 477

(E.D.La.1996), aff'd on other grounds, 109 F.3d 230 (5th Cir.1997).

 

27See Sistrunk, 693 F.Supp. at 501 (monkey board not an

appurtenance of platform for purposes of Article 2322 liability);

Boggs, 720 F.Supp. at 75 (drilling rig itself not a part of

platform); Dupre, 913 F.Supp. at 477-78 (drilling rig not a part

of platform). 

15

clearly defined what would constitute a component part of a

corporeal immovable such as a building in terms of permanent

attachment.24 Consequently, concluded Judge Arcenaux, Article 466's

definition of component parts of a building should now provide the

sole criterion for determining whether an addition can be

considered a part of a building for purposes of assessing liability

against the owner under Article 2322.25 Recently Judge Vance of the

Eastern District reiterated this view in another case that involved

a negligence action against a drilling platform owner and turned on

the plaintiff's ability to demonstrate that a drilling rig was part

of the platform on which it was positioned.26 Not coincidentally,

in Sistrunk, Boggs, and Dupre, the district court found that

neither individual parts of a drilling rig nor the entire drilling

rig itself could be considered a component part of a platform.27

Having reviewed this gradually developing jurisprudential gloss on

the unavoidable property law question posed by claims asserted

under Article 2322, yet agreeing with the carefully reasoned

opinions of our colleagues of the Eastern District of Louisiana
 

28La.Civ.Code Ann. art. 466 (West 1980). 

16

which recognized the primacy of the Civil Code articles that are

specifically applicable to such a question, we hold that Louisiana

Civil Code Article 466 does provide the sole framework within which

to determine whether additions or equipment attached to a building

can be considered a part of that building for purposes of assessing

liability under Article 2322.

2. Application of Article 446

 Stated in full, Article 466 provides:

Things permanently attached to a building or other

construction, such as plumbing, heating, cooling, electrical,

or other installations, are its component parts.

Things are considered permanently attached if they cannot be

removed without substantial damage to themselves or to the

immovable to which they are attached.28

Applying Article 466, the district court in the instant case held

that, even though Dual 25 was welded to the Texaco platform and had

remained that way for over a year, this rig was not a "component

part" of the Texaco platform because (1) the rig has drilled from

five different platforms over the past fifteen years and indeed was

scheduled to be moved off Texaco's platform later in 1996, and (2)

neither the rig itself nor the platform will sustain permanent

damage when the rig is eventually removed. In short, the district

court concluded that the instant rig, Dual 25, was designed to be

moved and was not intended to be a permanent attachment to Texaco's

platform. Notwithstanding the Coulters' contention that the

district court's application of Article 466 was both factually and

legally flawed, our review of the commentaries addressing Article
 

29See A.N. Yiannopoulos, Property, § 142, at 313-14, in 2

Louisiana Civil Law Treatise (3d ed. 1991); Symeon Symeonides,

Property, Developments in the Law, 46 La.L.Rev. 655, 687-90 (1986).

 

30Hyman v. Ross, 643 So.2d 256, 258 (La.Ct.App. 2nd Cir.1994)

(citing Symeonides, 46 La.L.Rev. at 687-90). 

 

31Yiannopoulos, § 142, at 313-314 (citations omitted). 

17

466 and the federal and Louisiana case law applying the article

satisfies us that the district court reached the correct result.

According to two current Louisiana property law scholars,

Article 466's two paragraphs recognize the existence of two

separate categories of component parts of buildings or other

constructions, the scope of which can each be defined in distinct

terms.29 Relying on the source provisions of the first paragraph

(former Article 467 (1870)) and the second paragraph (former

Article 469 (1870)), Professor Symeon Symeonides interprets present

Article 466 as "defining two categories of component parts: (1)

those that fit within the illustrative list of paragraph one

because they are attached to a building or other construction in a

perpetual, rather than a temporary, manner; and (2) those that fit

within paragraph two because they are permanently attached to a

building or other construction, and cannot be removed without

substantial damage to themselves or to the immovable."30 Professor

A.N. Yiannopoulos is of the same view, stating that "[f]acility of

removal is immaterial" with regard to the category defined by the

first paragraph and that "permanent attachment does not mean

attachment "for perpetuity or eternity' " with regard to the

category defined by the second paragraph.31
 

32Id. at 314. 

 

33749 F.2d 1176 (5th Cir.1985). 

 

34Id. at 1179. 

18

Application of the "substantial damage" test found in the

article's second paragraph is a largely objective and fact bound

exercise that has posed few jurisprudential difficulties.32

Definition of the scope of Article 466's first category of

component parts, on the other hand, was considerably advanced by

our decision in Equibank v. United States, Internal Revenue

Service,33 in which we concluded that several expensive antique

chandeliers were component parts of a New Orleans mansion.

Although the chandeliers could be, and in fact were, removed

without substantial damage to themselves or the mansion, we

nevertheless found that they fit within Article 466's other less

stringently defined category of component parts because they could

be sub-categorized as "electrical installations." Crucially, we

distinguished installations like chandeliers from simple "plug-in"

items, such as table and floor lamps, toasters, and television

sets, noting that "in the eyes of society" the latter are not

electrical installations because they are neither fixed in place

nor require any special knowledge or expertise to be engaged or

disengaged from the building's power source.34 On the other hand,

we concluded that lighting fixtures, whether they be plain or

ornate, are among those features of a house that "the average,

ordinary, prudent person buying a home" expects to find "when he or
 

35Id. at 1180. 

 

36See e.g., Hyman, 643 So.2d at 261 (heating and air

conditioning units installed in motel are component parts); In re

Chase Manhattan Leasing Corp., 626 So.2d 433, 434 (La.Ct.App. 4th

Cir.1993), writ denied, 630 So.2d 797 (La.1994) (scoreboard system

was a component part of the Louisiana Superdome); Lakeside

National Bank of Lake Charles v. Moreaux, 576 So.2d 1094, 1096

(La.Ct.App. 3rd Cir.1991) (septic tank systems and air conditioning

systems are component parts of house); American Bank & Trust Co.

v. Shel-Boze, Inc., 527 So.2d 1052, 1054-55 (La.Ct.App. 1st

Cir.1988), writ denied, 532 So.2d 155 (La.1988) (light fixtures and

carpeting are component parts of two residences). 

19

she arrives to take possession."35 Intermediate appellate courts

in Louisiana have applied our Equibank "ordinary societal

expectations" test in a number of cases, frequently considering as

particularly relevant factors (1) whether the object is connected

to interior wiring or a main power source of the primary structure,

and (2) whether special expertise or skill is required to install

or detach the object without causing damage.36

This brings us at last to the Coulters' contention that Dual

25 qualifies as a component part of Texaco's platform under either

paragraph of Article 466. First, argue the Coulters, the rig

should be considered permanently attached to the platform under the

"substantial damage" test of the second paragraph of Article 466

because both the rig and the platform were modified in connection

with the installation of the former on the latter and, upon

removal, both will require repair and renovation to return them to

their original conditions. In particular, the Coulters point to

the removal of Dual's second crane and the necessity for the

removal and relocation of handrails and other features of the

platform.
20

Although the scope of these repairs and renovations to the

platform and Dual 25 may well be "substantial" on an absolute

basis, they are certainly negligible relative to these two

multi-million dollar structures. Moreover, the Coulters have

presented no evidence that the anticipated removal of Dual 25 will

cause it or Texaco's platform to sustain any enduring "damage" in

the sense that either will thereafter become functionally impaired

on a permanent basis. Indeed, the repairs and renovations that

both the rig and the platform will require upon the former's

removal cannot be considered, in the particular circumstances of

this case, anything but a form of ordinary and entirely expected

maintenance. Accordingly, we conclude that Dual 25 cannot qualify

as a component part of Texaco's platform under the second paragraph

of Article 466.

The Coulters also contend that Dual 25 should be considered a

component part of the platform under the first paragraph of Article

466 and our "ordinary societal expectations" test of Equibank. To

this end, the Coulters place special reliance on (1) Dual 25's

connection to the platform's primary electrical power source and

multiple other services, and (2) the special expertise that is

required for both installation and removal of the rig.

Notwithstanding these facts, we are convinced that in light of the

relevant "societal expectations"—those of the offshore oil and gas

drilling and production industry—Dual 25 cannot be considered

permanently attached to Texaco's platform.

Taking into consideration the Dual-Texaco contract itself, the
 

37Having found that the Coulters failed to establish liability

on this ground, we, like the district court, need not address

Texaco's alternative argument that the Dual rig in general, and the

drill collar pipe rack in particular, were not in a ruinous

condition on account of the missing posts. 

21

Dual rig's history of use on multiple platforms during its life

time, and the custom and practices of the offshore oil and gas

drilling and production industry as a whole, we conclude that, to

paraphrase the language of Equibank, the average, ordinary, and

prudent business entity that was buying or, alternatively, taking

a security interest in, an offshore drilling platform would not

expect, in the absence of specific contractual provisions to the

contrary, an extremely costly drilling rig, one of the heaviest and

most sophisticated pieces of industrial equipment in use currently,

to be (1) perpetually attached to the platform as a component part

when the buyer took possession or (2) a permanent part of that

platform when the lender obtained its security interest. To

conclude otherwise would fly in the face of economic reality and

long held contractual expectations of an entire industry. It

follows, therefore, that Dual 25 cannot be considered a component

part of the Texaco platform under the first paragraph of Article

466 either. Having concluded, as did the district court, that the

Dual rig on which Mr. Coulter sustained his injuries was not a part

of the platform owned by Texaco, we affirm the district court's

grant of summary judgment on the Coulters' strict liability claim

asserted under Louisiana Civil Code Article 2322.37

For the reasons set forth above, the district court's judgment

dismissing the Coulters' suit against Texaco is, in all respects,
22

AFFIRMED.