IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-30910

Summary Calendar

JOHN FORNAH, 

 Plaintiff - Appellant

v.

SCHLUMBERGER TECHNOLOGY CORPORATION, 

 Defendant - Appellee

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:16-CV-14354

Before STEWART, Chief Judge, and DENNIS and HAYNES, Circuit Judges.

PER CURIAM:*

Following an offshore accident, Plaintiff-Appellant John Fornah filed 

this tort suit in federal district court against multiple defendants, all of whom 

settled and were dismissed from the suit, except Defendant-Appellee 

Schlumberger Technology Corporation (“Schlumberger”). The district court 

granted Schlumberger’s motion for summary judgment and dismissed 

Fornah’s suit with prejudice. For the reasons that follow, we affirm. 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 5, 2018

Lyle W. Cayce

Clerk

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I. Facts & Procedural History

In 2015, Chevron Corporation (“Chevron”) hired Schlumberger to assist 

in a plugging and abandonment project. Specifically, Schlumberger was to 

perform coiled tubing wellbore cleanout in the Bay Marchand Field where

Chevron U.S.A. Inc. owned a fixed platform on the Outer Continental Shelf in 

the Gulf of Mexico, about five miles off the coast of Louisiana. The contract 

between Chevron and Schlumberger, titled “International Master Agreement 

No. IMA/001A,” provided that Schlumberger was an independent contractor. 

Chevron also hired Tetra Applied Technologies, LLC (“Tetra”) to assist 

with the project. Tetra provided a crew for plugging and abandoning services. 

The contract between Tetra and Chevron, titled “Master Services Contract No. 

CW692570,” provided that Tetra was an independent contractor. 

Chevron also hired Alliance Offshore, LLC (“Alliance”) to assist with the 

project. Alliance owned and operated the M/V MISS LYNNE, a liftboat 

adjacent to the platform, as well as a crane that was used to lift and move the 

hoses in Schlumberger’s coiled tubing job. Alliance was also an independent 

contractor. 

Chevron’s project was conducted 24 hours a day, with two 12-hour 

shifts—a day shift and a night shift. Schlumberger provided a standard sixperson crew consisting of a supervisor and two assistants for each 12-hour 

shift. 

Fornah was employed by Tetra as a rigger and his job duties included 

handling hoses such as those in the coiled tubing job. Tetra supervisor Michael 

Bergeron gave directions to Fornah with respect to completing his job duties. 

On September 15, 2015, Bergeron instructed Fornah that he was responsible 

for handling the hoses for the coiled tubing job. Specifically, once Alliance 

began operating its crane on the adjacent lift boat to lift Schlumberger’s coiled 

tubing injector head into position, it was Fornah’s job to guide the tubing hoses

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during the crane lift. According to Fornah, while he was guiding the tubing, 

acting alone, he jerked an attached hose to untangle it from scaffolding and 

felt a pain in his back and shoulder.1 Fornah continued to work without 

mentioning the incident to anyone and two days later, reported that he was 

injured. The incident was never reported to Schlumberger. 

On September 1, 2016, Fornah filed suit against Tetra, Alliance, the M/V 

MISS LYNNE, Schlumberger, and Chevron U.S.A. Inc. In his suit, Fornah 

sought to recover maintenance and cure under general maritime law and also 

advanced claims of Jones Act negligence against Tetra, unseaworthiness of the 

vessel, and negligence claims under general maritime law against Alliance, 

Schlumberger, and Chevron. Specifically, Fornah claimed that Alliance was 

negligent in failing to stop an unsafe liftboat operation and that Schlumberger 

was negligent in conducting unsafe coiled tubing operations and for failing to 

provide a sufficient coiled tubing crew. Schlumberger moved for summary 

judgment on grounds that Schlumberger and Tetra were co-independent 

contractors of Chevron, that Schlumberger exercised no supervisory or 

operational control over Tetra personnel, and that Schlumberger owed no duty 

to Fornah besides that of ordinary care and did not breach that duty. Before 

the district court ruled on Schlumberger’s summary judgment motion, it was 

informed that Fornah had settled his claims with all parties except 

Schlumberger. 

 

1 Fornah testified in his deposition that, at the time of the alleged incident, at least 

three other Tetra employees were working on the deck where he was working within five to 

seven feet of him. Fornah testified that he did not ask any of the other Tetra employees for 

help because they looked busy and he thought he could handle the job alone. The Tetra 

supervisor came and went on deck where Fornah was working. There were no Schlumberger 

employees or supervisors in the area where Fornah was working at the time of the alleged 

incident. 

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Approximately ten days later, the district court granted Schlumberger’s 

motion for summary judgment. In its reasons for judgment, the district court 

determined that Fornah’s negligence claims were governed by Louisiana law. 

The district court then conducted a duty-risk analysis and concluded that, 

because Schlumberger and Tetra were co-independent contractors, 

Schlumberger did not have a duty to protect Tetra’s employee, Fornah, and 

because Schlumberger owed no duty, it could not be in breach. Fornah filed 

this appeal.

II. Standard of Review

We conduct a de novo review of a district court’s ruling on summary 

judgment, applying the same standard as the district court. Robinson v. Orient 

Marine Co., 505 F.3d 364, 365 (5th Cir. 2007) (citation omitted). Summary 

judgment is appropriate if the record evidence shows that there is no genuine 

issue of material fact and that the moving party is entitled to judgment as a 

matter of law. Id. at 366; Fed. R. Civ. P. 56(a). “Unsubstantiated assertions, 

improbable inferences, and unsupported speculation are not sufficient to 

defeat a motion for summary judgment.” See Brown v. City of Hous., 337 F.3d 

539, 541 (5th Cir. 2003) (citation omitted). “[R]easonable inferences are to be 

drawn in favor of the non-moving party.” Robinson, 505 F.3d at 366 (citation 

omitted).

III. Discussion

On appeal, Fornah argues that “Schlumberger maintained operational 

control, at least in part, of the specialized coiled tubing operations in which 

Fornah participated.” Fornah claims that this assertion is supported by the 

affidavit of former Tetra supervisor, Steven Passman. Fornah also claims that 

the facts are in dispute as to whether Schlumberger was responsible for 

staffing the task of guiding the coiled tubing hoses that Fornah was handling

when he was allegedly injured. He concludes on these grounds that summary 

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judgment was improperly rendered and that this court should reverse and 

remand. We disagree.

Neither party disputes that Fornah’s alleged injuries occurred on a fixed 

platform in federal waters on the Outer Continental Shelf and thus, federal 

jurisdiction is established pursuant to the Outer Continental Shelf Lands Act 

(“OCSLA”). See 43 U.S.C. §§ 1333(a)(1) (“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[.]”); 1349(b) (“[T]he district courts of the 

United States shall have jurisdiction of cases and controversies arising out of, 

or in connection with . . . any operation conducted on the outer Continental 

Shelf which involves exploration, development, or production of the minerals . 

. . or which involves rights to such minerals[.]”). Under the OCSLA, federal 

law generally applies to disputes such as the one herein. Tetra Techs., Inc. v. 

Cont’l Ins. Co., 814 F.3d 733, 738 (5th Cir. 2016). However, when there are 

“gaps in the federal law,” the law of the adjacent state, here Louisiana, is 

adopted and applied as surrogate federal law “[t]o the extent that [the adjacent 

state’s law is] applicable and not inconsistent with [the OCSLA] or with other 

Federal laws and regulations.” Id. 

Fornah disagrees with the district court’s application of Louisiana law to 

his negligence claims and urges this court to instead apply general maritime 

law, although he concedes that “Louisiana’s duty/risk negligence formulation 

is effectively identical to the federal maritime negligence standard, and would 

yield an identical result.” We conclude that the district court properly applied 

Louisiana law to Fornah’s negligence claims and continue to do so on appeal.

“[T]hree requirements must be met for state law to apply as surrogate 

federal law under the OCSLA.” Id. The dispute “must arise on a situs covered 

by OCSLA (i.e., the subsoil, seabed, or artificial structures permanently or 

temporarily attached thereto)[,]” “[f]ederal maritime law must not apply of its 

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own force[,]” and “[t]he state law must not be inconsistent with Federal law.” 

Id. Here, there is no dispute that Fornah’s alleged injuries occurred on a “situs 

covered by the OCSLA” as they occurred on a fixed platform located on the 

Outer Continental Shelf. There is also no dispute that Louisiana negligence 

law is not inconsistent with federal maritime negligence law. The dispute on 

this issue rather, is whether federal maritime law applies of its own force. 

Fornah contends that it does. Specifically, he contends that the negligence of 

the Alliance crane operator gives rise to federal admiralty jurisdiction and the 

application of general maritime law. He also notes that this case involves the 

traditional maritime activity of transporting and unloading vessel cargo. We 

are unpersuaded by his position.

As the district court noted, for maritime law to apply of its own force, 

there must be both a maritime location and a connection to general maritime 

activity. See Petrobras America, Inc. v. Vicinay Cadenas, S.A., 815 F.3d 211, 

216 (5th Cir. 2016) (citing Jerome B. Grubart, Inc. v. Great Lakes Dredge & 

Dock Co., 513 U.S. 527, 534 (1995)). The Supreme Court and this court, 

however, have both concluded that work performed on oil production platforms 

affixed to the Outer Continental Shelf is not maritime in nature because it is 

primarily related to oil and gas exploration. Petrobras, 815 F.3d at 218; see 

also Thibodeaux v. Grasso Prod. Mgmt., Inc., 370 F.3d 486, 493 (5th Cir. 2004) 

(“Both this court and the Supreme Court have expressed the opinion that work 

commonly performed on oil production platforms is not maritime in nature.” 

(citing Herb’s Welding Inc. v. Gray, 470 U.S. 414, 423–24 (1985))). Thus, we 

agree with the district court that maritime law does not apply of its own force 

in these proceedings and consequently, that Louisiana law applies to Fornah’s 

negligence claims.

In Louisiana, “[e]very act whatever of man that causes damage to 

another obliges him by whose fault it happened to repair it.” La. C.C. art. 

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2315(A). Louisiana employs a “duty-risk analysis” to determine whether to 

impose liability. Duncan v. Wal-Mart La., LLC., 863 F.3d 406, 409 (5th Cir. 

2017); Lemann v. Essen Lane Daiquiris, Inc., 923 So. 2d 627, 632–33 (La. 2006). 

Under this analysis, a plaintiff must show:

[F]irst, that the defendant had a duty to conform his conduct to a 

specific standard (duty); second, that the defendant’s conduct 

failed to conform to the appropriate standard (breach); third, that 

the defendant’s substandard conduct was a cause in fact of the 

plaintiff’s injuries (cause in fact); fourth, that the defendant’s 

substandard conduct was a legal cause of the plaintiff’s injuries 

(legal cause); and fifth, that the plaintiff suffered actual damages 

(damages).

Duncan, 863 F.3d at 409. “Whether the defendant owes a duty is a threshold 

question and is a question of law.” McCarroll v. Wood Grp. Mgmt. Servs., Inc., 

561 F. App’x 407, 410 (5th Cir. 2014). 

This court has acknowledged that independent contractors owe each 

other “the duty to refrain from gross, willful or wanton negligence, and . . . from 

creating an unreasonable risk of harm or a hazardous condition.” Id. (citing

Lafont v. Chevron, U.S.A., 593 So. 2d 416, 420 (La. App. 1st Cir. 1991)). 

“Independent contractors do not generally owe a duty to protect the employee 

of another independent contractor beyond the exercise of ordinary care that is 

owed to the public generally.” Id. This court has also recognized that, in 

determining whether one independent contractor owes a duty to another 

independent contractor’s employee, relevant considerations are whether one 

independent contractor employs, shares a contract with, or supervises the 

other’s employee. Id. 

Neither party disputes that both Tetra and Schlumberger were 

independent contractors of Chevron and that Fornah was employed solely by 

Tetra when he was allegedly injured. The record also reflects that 

Schlumberger and Chevron were parties to the International Master 

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Agreement and that Tetra and Chevron were parties to the Master Services 

Contract. Tetra and Schlumberger were not parties to the same contract with 

Chevron, nor did they have a contract with each other. The remaining question 

then becomes whether there is evidence in the record that Schlumberger 

personnel exercised supervisory control over Fornah when he was allegedly 

injured during the coiled tubing operations. 

As previously noted, at the safety meeting prior to the beginning of 

Fornah’s shift on September 15, 2015, Bergeron, Fornah’s Tetra supervisor, 

informed Fornah that he was responsible for handling the hoses for the coiled 

tubing job. It was Bergeron’s decision to task Fornah alone, rather than with 

additional crewmen. Fornah conceded in his deposition that he was not 

directed to handle the hoses for the coiled tubing job by anyone from 

Schlumberger.2 

At the time of the incident, three Tetra employees were working on the 

deck where Fornah was working and Fornah’s Tetra supervisor came and went 

periodically on deck where he was working. There were no Schlumberger 

employees or supervisors in the area where Fornah was working at the time of 

the alleged incident. Fornah never asked for help or additional crewmen from 

anyone since he believed he could handle the job alone and because the other 

nearby Tetra employees looked busy. Although Tetra and Schlumberger, as 

independent contractors hired by Chevron, worked simultaneously to fulfill 

their contractual individual duties owed to Chevron, there is no evidence in the 

 

2 Fornah cites to the part of Chevron and Schlumberger’s International Master 

Agreement which states that Schlumberger has control, supervision and direction over its 

equipment. To the extent that Fornah is suggesting that Schlumberger’s ownership of the 

hoses somehow results in its liability for Fornah’s alleged injuries, we disagree. As the 

district court correctly observed, there is no evidence in the record that the hoses were 

intrinsically dangerous nor does ownership of the hoses somehow factor into a finding of 

negligence. 

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record that Schlumberger personnel supervised Tetra employees at any point 

during these time periods.3 Moreover, Fornah never reported his alleged 

injuries to anyone at Schlumberger.

For these reasons, we agree with the district court that Fornah failed to 

produce evidence supporting his argument that Schlumberger owed a duty to 

Fornah, or any Tetra employee, “beyond the exercise of ordinary care that is 

owed to the public generally.” McCarroll, 561 F. App’x at 410 (citing Lafont, 

593 So. 2d at 420). Likewise, Fornah failed to present any evidence that 

Schlumberger breached the duty owed between independent contractors to 

“refrain from gross, willful or wanton negligence, and . . . from creating an 

unreasonable risk of harm or a hazardous condition.” Id.(4)

 

IV. Conclusion

For the foregoing reasons, the district court’s summary judgment in 

favor of Defendant-Appellee Schlumberger Technology Corporation is 

affirmed. 

 

3 Fornah attempts to rely on his September 5, 2017 affidavit wherein he states that 

he took orders and was supervised by Schlumberger “during operations related to the coiled 

tubing operation” while he was assigned to the M/V MISS LYNNE. To the extent that these 

statements can be read as contradicting Fornah’s previous deposition testimony from May 

23, 2017 wherein he stated that he was assigned the specific task of handling the hoses for 

the coiled tubing operation by his Tetra supervisor Michael Bergeron, we decline to consider 

the affidavit as competent summary judgment evidence. See S.W.S. Erectors, Inc. v. Infax, 

Inc., 72 F.3d 489, 495–96 (5th Cir. 1996) (“It is well settled that this court does not allow a 

party to defeat a motion for summary judgment using an affidavit that impeaches, without 

explanation, sworn testimony. . . When an affidavit merely supplements rather than 

contradicts prior deposition testimony, the court may consider the affidavit when evaluating 

genuine issues in a motion for summary judgment.”).

4 Fornah dedicates part of his argument on appeal to the content of former Tetra 

supervisor Steven Passman’s affidavit which generally describes Passman’s experiences 

when he was employed with Tetra. The district court rejected the content of the affidavit 

concluding that Passman’s unsubstantiated statements regarding his past personal 

experiences as a Tetra supervisor have no bearing on the events that took place on the day 

Fornah was allegedly injured. We agree. See Brown v. City of Hous., 337 F.3d 539, 541 (5th 

Cir. 2003) (“Unsubstantiated assertions, improbable inferences, and unsupported 

speculation are not sufficient to defeat a motion for summary judgment.”). 

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