### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-30795

APACHE CORPORATION, Plaintiff - Appellee
v. GLOBAL SANTA FE DRILLING COMPANY; GLOBAL SANTA FE HUNGARY SERVICES, LLC; GLOBAL SANTA FE SOUTH AMERICA, L.L.C.; GLOBAL SANTA FE CORPORATION Defendants - Appellants

Appeal from the United States District Court for the Western District of Louisiana USDC No. 6:06-CV-1643

Before WIENER, BENAVIDES, and STEWART, Circuit Judges. PER CURIAM: * A mobile offshore drilling unit, owned and o p erated by Defendants-Appellants, GlobalSantaFe Corporation, GlobalSa ntaFe Drilling, G l obalSantaFe South America, LLC GlobalSantaFe Hungary Services, LL C (c o l l e c tively GSF), allided with an offshore oil and gas production platform, owned in part by Plaintiff-Appellee, Apache Corporation (Apache). Apache filed U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D July 13, 2 011 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 10-30795 Document: 00511539348 Page: 1 Date Filed: 07/13/2011No. 10-30795

suit against GSF, invoking both admiralty and federal question jurisdiction and requesting a jury trial. GSF also re q u e s t e d a jury trial. However, GSF later filed a motion to strike all parties’ jury demands, arguing tha t t h e claims sounded in admiralty jurisdiction. The district court den i e d t h e motion. We AFFIRM. I. Dur i n g H u rricane Rita, an allision occurred on the Outer Continental 1 Shelf off the coast of Louisiana between a mobile of f s h o r e d rilling unit, ADRIATIC VII, owned by GSF, and the South Marsh Island 128 p l a t f o rm complex, an offshore oil and gas production platform (hereinafter Platform 128), owned in part by Apache. Apache filed suit against GSF, alleging several claims of negligence, to recover the salvage, repair, reconfigur a t i o n , and other costs allegedly associated with dam a g e t o Platform 128. In its original complaint, Apache asserted jurisdiction under two bases: (1) admiralty, pursuant to 28 U.S.C. § 1333 and the Admiralty Extension Act (AEA), 46 U.S.C. § 30101, and (2) federal question jurisdiction, under the Outer Continental Shelf Lands Act (OCSLA), 43 U

. S

. C

. §§ 1331–1356a. Apache also requested a jury trial. Initially, GSF requested a jury trial, but later filed a motion to strike all parties’ jury demands. In conjunction with the motion to strike, the parties filed a jointstipulation that “Apache did not make a [Federal Rule of Civil Procedure] 9(h) 2

An allis ion is “[t] he cont actof a vess el wi th a st atio nary objec t suc h as an a nchor ed 1
vess el or a pie r. ” B L AC K’ S LA

W D IC TIO N

AR Y 88 (9th ed. 2009)

. Black ’s als o expla ins t hat “‘c ollis ion’is of

ten use d wh ere‘ allis ion’w as oncethe pr efe rre d ter m. ” Id. In othe r wo rd s, in mo der n pr act ice, c o u r t s g e n eral ly use the ter m “co llis ion” as opp os ed to “all isi on” wh en des cribing c onta ct betw een vess els t hat gives ris e t o as uit. Rule9(h) expla ins : 2 (1) H owD es ignate d. If a clai m forr elie f is wi thin the ad mi ralt y or mar itim e juris dic tio n a n d als o wi thin the cour t's subject -m att er juris dic tio n on so me o t h e r ground , the ple adin g may des ignate th e c laim as an adm iral ty or mar itim e clai m for 2 Case: 10-30795 Document: 00511539348 Page: 2 Date Filed: 07/13/2011No. 10-30795

declaration,” which allows a party to specifically designate her case as one governed by admiralty jurisdiction. The district court denied GSF’s motion. GSF appeals. II. A. This is an appeal of the district court’s judgment denying GSF’s motion to strike its and Apache’s jury demands. Whether a party has the right to a jury trial is a pure question of law. Arnold v. U.S. Dep’t of the Interior , 213 F.3d 193, 195 (5th Cir. 2000). We review questions of law de novo . Reingold v. Swiftships Inc. , 210 F.3d 320, 321 (5th Cir. 200 0). B. We agree with the parties that Apache’s cl a i m s are governed by both admiralty and federal question jurisdiction, pursuan t to OCSLA. Therefore, because Apache asserted multiple bases for jurisdiction, our primary inquiry is whether Apache made a Rule 9(h) declaration, electing to proceed pursuant to admiralty procedure. For the foregoing reasons, we c onclude that Apache did not make a Rule 9(h) declaration. In 1966, the federal r u l e s o f civil and admiralty procedure were unified. F E D

. R. C IV

. P

. 9 a dvi sory committee’s notes 1966 amendment. Rule 9(h) was

c reated so that procedures unique to admiralty would not be abrogat e d b y th e

pur pos es of Rules 14(c), 38 ( e), and 82 and the Sup ple me ntal Rules for Adm iral ty o r Mar itim e Claim s and Ass et Forf eit ure Acti ons . A clai m cognizable only in the adm i r a lty or mar itim e juris dic tio n is an adm iral ty or mar itim e clai m for thos e pur pos es , wh ethe r or not sod es ignate d. (2) De signa tio n for App eal. A cas e that inclu des an adm iral ty or mar itim e clai m w i thin this sub divis ion (h) is an adm iral ty cas e wi thin 28 U .S .C. § 1292( a)( 3).

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merger. Id. Ru l e 9 (h) allows a party, when applicable, to designate her maritime claims as claims gove r n e d b y admiralty jurisdiction and, thus, governed by traditional admiralty, a n d n o t c ivil, procedures. One of the
consequences of making a Rule 9(h) declaration is that there is no right to a jury trial. Id. If a party does not make a Rule 9(h) declaration, there is a right to a jury trial. Id. There are times, however, when a party’s c l a i m is governed by multiple bases for jurisdiction and it is not clear whether the party made a R u l e 9 (h) declaration. In these circumstance, we examine the totality of the circumstances, as d e m o n strated by the party’s pleadings and actions, to determine whether a Rule 9(h) declaration has been made. See, e.g., Bodden v. Osgood , 879 F.2d 184, 186 (5th Cir. 1989) (“[T]he totality of the circumstances in this case leads us to conclude that Bodden’s complaint did not properly invoke the district court’s admiralty jurisdiction.”); see also Wingerter v. Chester Quarry Co. , 185 F.3d 657, 666 (7th Ci r . 1998) (citing Bodden and Foulk v. Donjon Marine Co., Inc. , 144 F.3d 252, 255 (3d Cir. 1998) and explaining that “[w]hether

or not a complaint sufficiently invokes admiralty jurisdiction is evaluated under the totality of the circumstances . .

. which includes the ‘parties’ manifestation of intent’ as demonstrated by their pleadings and actions”) (internal quotation marks omitted). Overtime, a few bright-li n e rules have developed. If a party asserts a claim that is only cognizable “at admiralty,” the court will assume that the claim is brought pursuant to admiralty jurisdiction no matter what the party avers in her complaint. T.N.T. , 702 F.2d at 588. Also, if a party asserts both admiralty and diversity jurisdiction, the court will treat the claim as th o u gh a Rule 9(h) declaration has been made. Gilmore v. Waterma n S t e a m s h ip Corp. , 790 F.2d 1244, 1246 (5th Cir. 1986). In Luera v. M/V Alberta , 635 F.3d 18 1 ( 5 t h C ir. 2011), we held that this rule also applies in circumstances where a party asserts

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admiralty and any other ground for jurisdiction. We explained: “[I]n this circuit

a plaintiff who asserts admiralty jurisdiction as a basis for the court’s subject matter jurisdiction over a claim has automatically elected under Rule 9(h) to procee d u n d e r t he admiralty rules, even if she states that her claim is also cognizable u n d e r d iversity or some other basis of federal subject matter jurisdiction.” Id. at 189. As p r e vi ously noted, Apache’s claims are governed by multiple bases for j u r i sdiction. At first blush, it would seem that the rule articulated in Lu e ra governs this case. However, the rule established in Luera only applies when it is unclear whether a Rule 9(h) designation was made. Here, the parties filed a joint-sti p u l a t i o n explicitly stating that “Apache did not make a Rule 9(h) declarati o n . ” Therefore, GSF’s argument that Apache made a Rule 9(h) designation is unavailing. Specifically, when GSF filed its motion to strike the parties’ jury demands, the company asserted that federal question jurisdiction did not govern Apache’s claims. Thus, GSF contended that, only admi r a l ty jurisdiction governed Apache’s claims; accordingly, Apache was not entitled to a j u ry t rial. In conjunction with the motion to strike, as previously noted, the parties filed a joint stipulation, stating that “Apache did not make a Rule 9(h) declaration.” Conversely, on appeal, GSF asserts that both admiralty an d f e d e r al question jurisdiction govern Apache’s cla i m s . GSF effectively contends that, because Ap ache asserted multiple bases for jurisdiction, Apache made a Rul e 9 (h) designation pursuant to the Luera rule. H o w e v e r , GSF’s shift in position regarding jurisdiction does not obviate the fact that the parties stipulated that Apache did not make a Rule 9(h) designation. The Supreme Cour t recently 3 explained that “factual stipulations are formal concessions that have the effect

We note that , but for the joint st ipul atio n ente red by the par tie s here in, Luera wo uld 3 dic tat e ac ontr ary res ult. 5 Case: 10-30795 Document: 00511539348 Page: 5 Date Filed: 07/13/2011No. 10-30795

of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact.” Christian Legal Soc’y Chapter of the Univ. of Cal. v. Martinez , 130 S. Ct. 2971, 2983 (2010) (citation and internal quotation marks omitted). Thus, consistent with the parties’ stipulation, we conclude that Apache did not make a Rule 9(h) designation. Accordingly, Apache’s case is governed by civil procedu r e , p ursuant to which Apache has the right to a jury trial. III. F or the foregoing reasons, we AFFIRM the district court’s jud g m e n t , denying GSF’s motion to strike the parties’ jury demands.

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