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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

DANIEL PHILLIPS,

Plaintiff,

vs. Case No. 4:10cv259-RH/WCS

BP PLC, BP PRODUCTS NORTH 

AMERICA, INC., BP AMERICA, INC., 

BP CORPORATION NORTH 

AMERICA, INC.,

Defendants.

 /

REPORT AND RECOMMENDATION

Defendants filed a notice of removal on June 23, 2010. Doc. 1. On June 25,

2010, Defendants filed a consent motion for an extension of time to file an answer. 

Doc. 3. The pro se Plaintiff filed a motion to remand back to state court. Doc. 8. 

Defendants have filed a memorandum in response. Doc. 10.

Plaintiff's complaint, as filed in state court, alleged negligence causing damages

exceeding $15,000.00, but less than $75,000.00. Doc. 1-1. Plaintiff is a Florida

resident who owns property in Panama City Beach, Florida. Id. Plaintiff claims the

Defendants were negligent in the operation of an oil rig in the Gulf of Mexico, resulting
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Case No. 4:10cv259-RH/WCS

in an oil leak that damaged Plaintiff's interest in real property. Id. The only allegation of

harm is that "Plaintiff's damages include, but are not limited to, loss of value in Plaintiff's

real property." Id. 

Defendants assert that removal was appropriate under the jurisdictional provision

of the Outer Continental Shelf Lands Act ("OCSLA"), 43 U.S.C. § 1331, et seq. Doc. 1,

p. 3. Defendants point out that 43 U.S.C. § 1349(b)(1) grants jurisdiction to district

courts "of cases and controversies arising out of, or in connection with (A) any operation

conducted on the outer Continental Shelf which involves exploration, development, or

production of the minerals, of the subsoil and seabed of the outer Continental Shelf, or

which involves rights to such minerals." Id. Defendants contend that jurisdiction exists

in a federal district court because this case arises out of, and is connected to, a drilling

operation which was conducted on the outer Continental Shelf.

Plaintiff asserts in the motion to remand that jurisdiction under the OCSLA

"depends on where the injury occurs, not where the negligent acts take place." Doc. 8,

p. 1. Plaintiff contends his injury is on land, i.e., "diminution in property value and lost

rents," and he was not injured "on the Outer Continental Shelf." Id. Plaintiff cites

Landry v. Island Operating Company, 2009 WL 3241560, 1 (W.D. La., 2009), for the

proposition that this court's subject matter jurisdiction "depends on the location of the

injury (the 'situs'), not where the negligent act(s) take place." Doc. 8, pp. 2-3. 

In Landry v. Island Operating Co. Inc., 2009 WL 3241560, 1 (W.D. La., 2009), the

plaintiff brought suit to recover for injuries he suffered while working as a "self-employed

independent contractor" and "welding a tanker owned by Exterran Energy Solutions LP

('Exterran')." 2009 WL 3241560, at *1. The tanker was in port at the time but the theory
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Case No. 4:10cv259-RH/WCS

of liability was that it had not been properly cleaned while at an offshore oil rig. 

Plaintiffs' negligence action was filed in state court, but Defendants removed the case to

federal court, asserting "the complaint was encompassed by the Outer Continental Shelf

Lands Act." Id. 

The district court in Landry first thought that the statutory language of 28 U.S.C. §

1333(a)(1) "appears to implement specific geographic limitations on OCSLA's

applicability." 43 U.S.C. § 1333(a)(1) provides:

The Constitution and laws and civil and political jurisdiction of the United

States are extended to the subsoil and seabed of the outer Continental

Shelf and to all artificial islands, and all installations and other devices

permanently or temporarily attached to the seabed, which may be erected

thereon for the purpose of exploring for, developing, or producing

resources therefrom, or any such installation or other device (other than a

ship or vessel) for the purpose of transporting such resources, to the same

extent as if the outer Continental Shelf were an area of exclusive Federal

jurisdiction located within a State: Provided, however, That mineral leases

on the outer Continental Shelf shall be maintained or issued only under

the provisions of this subchapter.

43 U.S.C. § 1333(a)(1). But the court also noted § 1349(b)(1), which seemed to the

court to grant broader jurisdiction unconnected to a geographical location:

[T]he district courts of the United States shall have jurisdiction of cases

and controversies arising out of, or in connection with (A) any operation

conducted on the outer Continental Shelf which involves exploration,

development, or production of the materials, of the subsoil and seabed of

the outer Continental Shelf, or which involves rights to such minerals . . . .

43 U.S.C. § 1349(b)(1), quoted in Landry, 2009 WL 3241560, at *2. The court spent the

rest of the opinion resolving this perceived tension between § 1333(a)(1) and § 1349(b).

First, addressing § 1331(a)(1), the court noted that the Supreme Court had found

that "the purpose of [OCSLA] was to define a body of law applicable to the seabed, the

subsoil, and the fixed structures . . . on the Outer Continental Shelf." 2009 WL
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Case No. 4:10cv259-RH/WCS

3241560, at *2, quoting Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 355,

89 S.Ct. 1835, 1837, 23 L.Ed.2d 360 (1969). The court further noted that the Supreme

Court had said in Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 219, 106 S.Ct.

2485, 91 L.Ed.2d 174 (1986) that "Congress determined that the general scope of

OCSLA's coverage . . . would be determined principally by locale, not by the status of

the individual injured or killed." The court then cited Demette v. Falcon Drilling Co., Inc.,

280 F.3d 492, 496 (5th Cir. 2002), finding that the Fifth Circuit "parsed the statutory

language of § 1331(a) to determine the precise situses where the OCSLA could

possibly apply." Id. One situs listed in § 1333 was an artificial installation attached to

the seabed to explore for and develop mineral resources. Id., at *3. The court

reasoned: 

The platform where the allegedly negligent acts occurred undoubtedly falls

within the second category, as it is an artificial installation permanently

attached to and erected on the seabed of the OCS with the purpose of

resource exploration, development, and production. In contrast, the

land-based location where the alleged accident occurred does not fall

within any of the three situs categories.

Id. The court then concluded: "The Fifth Circuit has conclusively stated the 'situs'

required to trigger OCSLA refers to the location of the injury." 2009 WL 3241560, at * 3,

citing to Golden v. Omni Energy Services Corp., 242 Fed. Appx. 965, 967 (5th Cir.

2007); Demette v. Falcon Drilling Co., Inc., 280 F.3d 492, 496 (5th Cir. 2002); Mills v.

Director, Office of Workers' Comp. Programs, U.S. Dept. of Labor, 877 F.2d 356 (5th

Cir. 1989). The court rejected the defendants' suggestion that the negligence "action

arose, not at the point of explosion on land (i.e. the injury), but at the point of their

allegedly negligent act of allowing flammable substances to enter into or remain within
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1

 Thus, Landry stands for exactly what Plaintiff says: it adopts a "situs of the

injury" test for determining a district court's subject matter jurisdiction, and the "but for"

analysis pursuant to § 1349 was dicta. 

Case No. 4:10cv259-RH/WCS

the tank without plaintiff's knowledge (i.e. the breach of duty)." 2009 WL 3241560, at *

3.

The court then assumed, arguendo, that the situs of the injury was not dispositive

of the question of the district court's subject matter jurisdiction, "but yields to the

catch-all jurisdictional grant of § 1349."1

 Id., at *4. The court turned to Tennessee Gas

Pipeline v. Houston Cas. Ins. Co., 87 F.3d 150 (5th Cir. 1996). In that case, the Fifth

Circuit applied a "but-for" test to determine whether an injury arose from or occurred in

connection with an OCS operation to explore, develop, remove, or transport natural

resources from the OCS, as provided in § 1349. The court in Landry then applied the

"but for" test to the facts before it:

Plaintiff's injury in this case does not satisfy the "but-for" test as articulated

in Tennessee Gas. Plaintiff allegedly sustained injuries while welding a

landed tanker containing flammable material. Both the tanker's explosion

and the fact that it contained allegedly flammable materials were not

existent solely because they came from a platform on the OCS. The

tanker could just as easily have come from a nonOCS platform which

would not be subject to OCSLA. Moreover, the location of the platform in

the OCS did not change any material facts. If the platform that sent the

tanker back to land would have been located within Louisiana's territorial

waters, in foreign waters, or on land, the injury would have presumably

happened in the same manner. The mere fact that the tanker involved in

this incident had been in use on the OCS does not confer federal question

jurisdiction.

2009 WL 3241560, at * 4. The court also concluded the manner in which that plaintiff

"allegedly sustained injury simply bears too indirect and attenuated a relationship to any

'operation' on the OCS for defendants to be allowed to invoke OCSLA." 2009 WL

3241560, at * 3. Presumably, this direct versus indirect analysis was another way of
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applying the "but for" test. In concluding its opinion, the court instructed that when

deciding a case where causation and proximity are of paramount importance to

jurisdiction, courts should ask: "Would the injury have otherwise occurred but for the

extractive operations on the shelf and the relationship of the injured's employment to the

OCS activity?" 2009 WL 3241560, at * 5.

If this court need only apply § 1349(b)(1), the answer is plain. But for the

explosion on Defendants outer continental shelf rig, which was actively trying to develop

an oil well when the explosion occurred, Plaintiff would have no injury. Subject matter

jurisdiction is in this court pursuant to § 1349(b)(1) and the motion to remand should be

denied.

The "situs" analysis in Landry arising from the wording of § 1333(a)(1) is

immaterial to the issue of whether this district court has subject matter jurisdiction. In

the enactment of § 1333(a)(1), Congress established substantive law for outer

continental shelf oil rigs and related activity, claiming those places as within the

exclusive federal jurisdiction of the United States. Selection of substantive law for a

federal enclave is distinct legislative act from conferring district court subject matter

jurisdiction.

This can be seen by a review of the cases cited in Landry. Rodrigue v. Aetna

Casualty & Surety Co., 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969) only

concerned whether Plaintiff's remedy (selection of substantive law) was under the Death

on the High Seas Act, or whether that substantive law was supplemented by Louisiana

law. 395 U.S. at 352, 89 S.Ct. at 1836. The Court held that the OCSLA "makes it clear

that federal law, supplemented by state law of the adjacent State, is to be applied to
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Case No. 4:10cv259-RH/WCS

these artificial islands as though they were federal enclaves in an upland State." 395

U.S. at 355, 89 S.Ct. at 1837. The case did not involve district court subject matter

jurisdiction.

Likewise, Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 209, 106 S.Ct.

2485, 91 L.Ed.2d 174 (1986) did not involve the district court's subject matter jurisdiction

under the OCSLA. In that case, two oil rig workers were killed in a helicopter taking

them from the platform to the shore. 477 U.S. at 210, 106 S.Ct. at 2487. The issue was

one of substantive law, whether the Death on the High Seas Act was the sole remedy,

or whether Louisiana wrongful death law also applied. Id. In the course of that

substantive law discussion, the Court said:

Within the area covered by OCSLA, federal law controls but the law of the

adjacent State is adopted as surrogate federal law to the extent that it is

not inconsistent with applicable federal laws or regulations. §

1333(a)(2)(A).

The intent behind OCSLA was to treat the artificial structures covered by

the Act as upland islands or as federal enclaves within a landlocked State,

and not as vessels, for purposes of defining the applicable law because

maritime law was deemed inapposite to these fixed structures.

477 U.S. at 217, 106 S.Ct. at 2491 (emphasis added). The court concluded:

We do not interpret § 4 of OCSLA, 43 U.S.C. § 1333, to require or permit

us to extend the coverage of the statute to the platform workers in this

case who were killed miles away from the platform and on the high seas

simply because they were platform workers. Congress determined that

the general scope of OCSLA's coverage, like the operation of DOHSA's

remedies, would be determined principally by locale, not by the status of

the individual injured or killed. See 43 U.S.C. § 1333(a)(2)(A) ("To the

extent that they are applicable and not inconsistent with this subchapter or

with other Federal laws and regulations . .. , the civil and criminal laws of

each adjacent State . . . 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"); 46

U.S.C. § 761 (DOHSA's coverage extends to the death of any "person . . .
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2

 Herb's Welding, Inc. v. Gray, 470 U.S. 414, 422, 105 S.Ct. 1421, 1426, 84

L.Ed.2d 406 (1985).

Case No. 4:10cv259-RH/WCS

caused by wrongful act, neglect, or default occurring on the high seas

beyond a maritime league from the shore of any State. . ."). Cf. Herb's

Welding, Inc. v. Gray, supra[

2

] (discussing status and situs requirements of

the Longshoremen's and Harbor Workers' Compensation Act as applied to

platform workers making claims against their employers); Director, Office

of Workers' Compensation Programs v. Perini North River Associates, 459

U.S. 297, 103 S.Ct. 634, 74 L.Ed.2d 465 (1983); 46 U.S.C. § 688

(recovery under Jones Act confined to "seaman"). Because the fatalities

underlying this suit did not arise from an accident in the area covered by

OCSLA but rather occurred on the high seas, DOHSA plainly was

intended to control.

477 U.S. at 219-220, 106 S.Ct. at 2492-2493 (footnote omitted). In other words, the

Court was concerned solely with the law applicable to the claims. To that extent, the

case stands for the not surprising result that because the events giving rise to Plaintiff's

claims in the case at bar happened in a locale plainly covered by the OCSLA, on an oil

rig on the outer continental shelf, then the OCSLA will determine the substantive law to

be applied in the case at bar.

To like effect is Demette v. Falcon Drilling Co., Inc., 280 F.3d 492 (5th Cir. 2002),

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

overruling Demette. Those cases involve selection of the proper substantive law to

govern the claims. The cases do not involve the subject matter jurisdiction of the district

courts pursuant to § 1349(b)(1).

Tennessee Gas Pipeline, on the other hand, did concern whether the district

court had subject matter jurisdiction. In that case, a barge negligently collided with an

oil rig on the outer continental shelf. 87 F.3d at 152. After pointing out that the OCSLA

establishes the law to be applied, the court said: "OCSLA not only defines the law
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applicable to the OCS, but also grants federal courts jurisdiction over disputes occurring

there. The jurisdictional grant, contained in 43 U.S.C. § 1349(b)(1), is very broad." Id.,

at 154 (emphasis added). The court noted that "operation" as used in § 1349(b)(1)

certainly included a platform affixed to the seabed used to extract minerals. Id. The

court then said that the phrase "arise out of, or in connection with" in § 1349(b)(1)

requires use of a "but for" test. Id.

Use of the but-for test implies a broad jurisdictional grant under § 1349,

but we have concluded that " 'a broad, not a narrow, reading of this grant

is supported by the clear exertion of federal sovereignty' " over the OCS.

Id. (citation omitted). The court then said:

In our case it is clear there would have been no accident but for

Tennessee Gas's operation on the OCS. Tennessee Gas argues that the

dispute "arose out of" a navigational error, and not an operation on the

OCS. But there would have been no navigational error but for the

existence of the platform and Tennessee Gas's extractive activities. 

Tennessee Gas also argues that the platform itself did nothing to cause

the accident, so that the controversy is not connected with any physical

act constituting an operation. This contention is meritless. The

undeniable fact is that there would not have been an accident had

Tennessee Gas not built its platform to extract minerals from the OCS.

Jurisdiction therefore exists under OCSLA.

Id. Applying that case here, subject matter jurisdiction under § 1349(b)(1) exists

because, but for the explosion on Defendants' oil rig, Plaintiff would have no claim at all.

Which brings us to Golden v. Omni Energy Services Corp., 242 Fed. Appx. 965,

967 (5th Cir. 2007) No. 07-30057) (not selected for publication), cited by Plaintiff. Doc.

8, p. 3. The case involved another helicopter crash. 242 Fed. Appx. At 966. It is

unclear to what extent the operation of the helicopter arose "out of, or in connection

with" the operation of an outer continental shelf oil rig. The court said:
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OCSLA merely establishes jurisdiction while conferring no substantive

rights. In Offshore Logistics, Inc. v. Tallentire, the Supreme Court held

that OCSLA does not "require or permit [courts] to extend the coverage of

the statute to platform workers" injured "miles away from the platform and

on the high seas" based solely on their occupational status. 477 U.S. 207,

219, 106 S.Ct. 2485, 91 L.Ed.2d 174 (1986). The scope of OCSLA's

coverage must be "determined principally by locale." Id. In line with the

Court's interpretation of OCSLA, the Fifth Circuit in Texaco Exploration

and Production, Inc. v. AmClyde Engineered Products Co., Inc., set forth

three conditions for employing OCSLA: "(1) The controversy must arise on

a situs covered by OCSLA (i.e. the subsoil, seabed or artificial structures

permanently or temporarily attached thereto). (2) Federal maritime law

must not apply of its own force. (3) The state law must not be inconsistent

with Federal law." 448 F.3d 760, 774 (5th Cir.2006). For OCSLA

jurisdictional purposes, both cases compel the district court to take into

account the location of incidents giving rise to the lawsuit. Here, the

undisputed facts show that the helicopter accident giving rise to Golden's

lawsuit did not occur on the Continental Shelf. The helicopter crash

instead occurred in a field near Mouton Cove, Louisiana. Therefore, the

district court cannot exercise jurisdiction over instant lawsuit under

OCSLA.

242 Fed. Appx. At 967-968. 

Golden is probably wrongly decided as it conflates the substantive law issue of §

1331(1) with the subject matter jurisdictional issue of § 1349(b)(1). The three part test

quoted above originally came from Union Texas Petroleum Corp. v. PLT Engineering,

Inc., 895 F.2d 1043 (5th Cir. 1990), cert. denied, 498 U.S. 848 (1990). The context of

the formulation of that three part test was selection of substantive law, not subject

matter jurisdiction:

Rodrigue made clear that "for federal law to oust adopted state law,

federal law must first apply." 395 U.S. at 359, 89 S.Ct. at 1839, 23

L.Ed.2d at 366. But for adjacent state law to apply as surrogate federal

law under OCSLA, three conditions are significant. (1) The controversy

must arise on a situs covered by OCSLA (i.e. the subsoil, seabed, or

artific[i]al structures permanently or temporarily attached thereto). (2)

Federal maritime law must not apply of its own force. (3) The state law

must not be inconsistent with Federal law.
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895 F.2d at 1047 (emphasis added). But even if rightly decided, Golden supports

subject matter jurisdiction in this case. The "location of the incidents giving rise to the

lawsuit" in the case at bar plainly occurred when the oil rig exploded, an oil rig that was

a site covered by the OCSLA. This court has subject jurisdiction pursuant to 43 U.S.C.

§ 1349(b)(1).

Accordingly, it is RECOMMENDED that Plaintiff's motion to remand to state

court, doc. 8, be DENIED. 

IN CHAMBERS at Tallahassee, Florida, on July 30, 2010.

s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

 

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 14

days after being served with a copy thereof. Failure to file specific objections

limits the scope of review of proposed factual findings and recommendations.