REVISED November 10, 2009

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-30930

LOUIS SOLANA; BRENDAN J. LALLY,

Plaintiffs–Appellants,

v.

GSF DEVELOPMENT DRILLER I, her engines, tackle, apparel, etc., in rem;

GLOBALSANTAFE DRILLING COMPANY; GLOBALSANTAFE CORP., in

personam; GLOBALSANTAFE HUNGARY SERVICES, LLC,

Defendants–Appellees.

Appeal from the United States District Court

for the Eastern District of Louisiana

Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

Louis Solana and Brendan Lally commenced an action in admiralty

against GSF Development Driller I, her engines,tackle, and apparel, in rem, and

against GlobalSantaFe Drilling Co., GlobalSantaFe Corp., and GlobalSantaFe

Hungary Services L.L.C. (collectively GSF), in personam. Solana and Lally

asserted that they were entitled to recover, as pure salvors, at least one percent

of the value of a semi-submersible drilling unit. The district court granted

summary judgment in favor of GSF. Although we agree with the district court

United States Court of Appeals

Fifth Circuit

F I L E D

October 29, 2009

Charles R. Fulbruge III

Clerk
No. 06-30930

2

that the facts of this case do not support a salvage award, the present record

does not support the district court’s conclusion that, as a matter of law, the

parties agreed that the plaintiffs would be compensated in the same manner

that they had previously been compensated. We accordingly reverse the

summary judgment and remand for further proceedings.

I

For purposes of reviewing the summary judgment that was granted in

favor of the defendants, we accept the plaintiffs’ assertions regarding the facts

as true. The Development Driller I (DDI) is a semi-submersible drilling platform

that was fabricated for use in the Gulf of Mexico, and its cost was in excess of

$350,000,000. In the summer of 2005, the DDI was anchored in Grand Isle

Block 91 but had never performed drilling services because its cracked,

submerged thruster housings were damaged and undergoing repair. As

Hurricane Katrina approached, GlobalSanteFe evacuated all of its jack-up and

anchored rigs in the Gulf of Mexico, including the DDI, pursuant to its existing

hurricane procedures. As part of that process, the DDI’s power was shut off, and

its crew was flown to the shore. 

Prior to the events giving rise to this suit, Louis Solana had worked for

GlobalSantaFe Drilling Company and its predecessor for almost twenty years.

He had been permanently assigned to the DDI for more than two years before

arrival of Katrina, initially serving as Senior Mate for about eight months before

he was promoted to the position of Offshore Installation Manager, which was the

senior marine officer and the equivalent of the DDI’s captain. The parties

dispute whether Solana maintained a 21-days-on, 21-days-off schedule while

assigned to the DDI, but they agree that his service had been performed on at

least a somewhat similar basis. He was in the midst of his time off when the
No. 06-30930

3

DDI was evacuated on August 27, but the parties agree that he had intended to

return to the DDI on August 31 as the captain of its crew. 

Brendan Lally had worked for GSF since 2003, had served on the DDI as

a senior dynamic positioning operator and ballast control operator, and was

evacuated from the DDI as Katrina was bearing down on it. Neither Lally nor

Solana had signed ship’s articles. They were at-will employees. They were

compensated for time spent aboard the DDI but not for their time ashore. After

Lally was evacuated from the DDI, he found lodging in Lafayette, Louisiana, for

which he, not GSF, paid. The day after the evacuation, August 28, GSF

requested that Lally travel to Houston, Texas to attend a seminar at a hotel on

August 29, and he complied. That evening, he was asked by a representative of

GSF, Randy Clevenger, if he and others who had been evacuated would “return

to the DDI to attempt to save the vessel.” Lally knew at this point in time that

the drilling rig was listing as much as 12 to 15 degrees, which he said was “a

much larger list than I have ever experienced aboard a semi-submersible drilling

vessel.” He normally kept the DDI trimmed to within a 1/4 degree of tolerance.

Lally’s affidavit states that based on the degree of the list in the wake of

Katrina, “we all knew it indicated DDI must have sustained serious damage in

the storm.” Lally and a number of other crew members agreed to return to the

DDI, but several did not.

Solana was in Nevada when the DDI was evacuated, but on August 28 he

traveled with his wife to Houston at his own expense. The following day, GSF

asked if Solana “would be willing to come in from [his] time off to lead a team of

volunteers to save DDI.” In Solana’s words, “I was requested to have the team

board dead DDI, restart her generators, conduct a damage assessment, keep her

from sinking, and attempt to stabilize her. I agreed to lead the team.” Solana’s

affidavit reflects that GSF maintained a description for the Offshore Installation

Manager position that Solana held, and “[t]hose duties do not include boarding
No. 06-30930

4

a sinking, unstable drill unit to restore power, stanch flooding, and correcting

her severe list, all in circumstances of grave danger.”

The morning after GSFrequested Solana,Lally and others to return to the

DDI, the assembled team and Randy Clevenger were flown from Houston to

Lafayette and then to the DDII, the DDI’s sister vessel, which sustained little

damage from the storm. En route, they passed by the DDI and saw that it was

severely listing, was out of position, and was dragging anchors. After arriving

at the DDII, Solana learned that none of the pilots of the larger helicopters were

willing to ferry the group to the DDI because of its list. However, a pilot of a

small helicopter agreed to transport a group of thirteen, two or three passengers

at a time. The helicopter was unable to land on the DDI because its deck was

sloping, and each group of the boarding team jumped from the airborne

helicopter onto the DDI’s deck. The last of the group was onboard the DDI by

4:00 the afternoon of August 30.

Within three hours, emergency power had been established, and by 6:30

that evening, the main power was essentially restored, although there were

repeated blackouts. However, flooding was progressing and the situation was

worsening. The team was gradually able to improve the vessel’s trim and

counteract flooding. They advised GSF of the extent of damage, and GSF

engaged a professional salvage firm. That firm’s salvage master boarded the

DDI the following day, August 31, but due to the list of the drilling unit, it was

not until the following day, September 1, that the professional salvage team

came aboard the DDI to begin operations. Solana and Lally worked with the

professional crew for the next few days, until September 5, when the platform

was stabilized. Eventually DDI was moved to port, and final repairs were

completed eight months later.

Solana and Lally sued GSF in the Eastern District of Louisiana,

demanding payment as salvors of DDI. After discovery, GSF moved to dismiss
No. 06-30930

1

International Convention on Salvage, Apr. 28, 1989, S. Treaty Doc. No. 102-12, 1953

U.N.T.S. 193.

5

or, alternatively, for summary judgment. The defendants asserted that crew

members are not entitled to a salvage award for assistance rendered to their own

vessel and that though there are exceptions to this principle, Solana and Lally

did not come within them. The defendants maintained that the DDI had not

been abandoned, Solana and Lally returned to it to repair damage as part of the

crew, and they were paid their usual salary for the time they spent on the DDI

after Hurricane Katrina.

Solana and Lally responded by arguing that they were volunteers when

they returned to the DDI post-Katrina; the drilling unit was in peril; they, along

with professional salvors, were successful in saving it; and they therefore are

entitled to pure salvage. Relying on general maritime law, Solana and Lally

contended that in certain circumstances, crew members can be salvors. 

In a brief supplemental response to the defendant’s motion for summary

judgment, Solana and Lally argued for the first time that the United States is

a party to the 1989 International Convention on Salvage,1the DDI was subject

to that Convention, and they were entitled to recover as salvors under article 17

of the Convention because there were no employment contracts in effect when

they returned to the DDI following Katrina. At the hearing on the motion for

summary judgment, counsel for the plaintiffs additionally noted that the DDI is

registered in Vanuatu, which is also a signatory to the Convention. At the same

hearing, the plaintiffs advanced an alternative argument urging the district

court to conclude that if there was a contract pursuant to which Solana and

Lally boarded the DDI post-Katrina, the court should consider whether the

services they rendered exceeded their normal duties and would entitle them to

a salvage award.
No. 06-30930

2 Flagship Marine Servs., Inc. v. Belcher Towing Co., 23 F.3d 341 (11th Cir. 1994).

3 James v. Tex. Collin County, 535 F.3d 365, 373 (5th Cir. 2008).

4 FED. R. CIV. P. 56(c). 

6

The district court ruled from the bench at the close of the hearing. The

court concluded that the undisputed facts established an oral contract and that

Solana and Lally expected to be paid even iftheir efforts were unsuccessful. The

district court cited a decision from the Eleventh Circuit2 as supporting its

holding but did not mention the Convention. The court subsequently entered a

judgment in favor of the defendants. Solana and Lally have appealed.

II

We review the district court’s grant of summary judgment de novo.3

Summary judgment shall be entered in favor of the moving party if the record,

taken as a whole, “show[s] that there is no genuine issue as to any material fact

and that the movant is entitled to judgment as a matter of law.”4

We first consider the contentions the parties have advanced regarding

general-maritime-law salvage. In so doing, we wish to make clear that we are

not determining whether the general maritime law in this area survives the

Convention. We simply assume, without deciding, that general-maritime-law

principles are applicable, since in this case, the result is the same irrespective

of whether the general maritime law or the Convention determines whether a

salvage award is owed.

GSFhas maintained throughoutthis litigation that Solana and Lally were

crew members and therefore are barred from recovering as salvors. The

Supreme Courtin Hobart v. Drogan expressed the general proposition that crew

members acting in the performance of their ordinary duties, “imposed upon

[them] by the law and nature of [their] employment,” are not entitled to a
No. 06-30930

5 35 U.S. 108, 122 (1836). 

6

Id. 

7 The Clarita, 90 U.S. 1, 17 (1874). 

8 Hobart, 35 U.S. at 122; see also The C.P. Minch, 73 F. 859, 865 (2d Cir. 1896) (“From

this review of the authorities, it is apparent that, in every case where compensation in the

nature of salvage has been awarded to seamen, the voyage has terminated by the shipwreck

of the vessel, which has either gone to the bottom or left her bones on the shore, or she has

been abandoned by all, or by all except the salvors, under circumstances which show

conclusively that the abandonment was absolute, without hope or expectation of recovery, or

the seaman has been by the master unmistakably discharged from the service of the

shipowner.”); Kimes v. United States, 207 F.2d 60, 64 (2d Cir. 1953) (permitting crew of one

ship that rescued cargo of another ship traveling in the same convoy to recover as salvors even

though crew had received its regular pay); Bertel v. Panama Transp. Co., 202 F.2d 247, 248

(2d Cir. 1953) (“Since all of these libelants were members of the crew when the fire broke out

on the vessel, they must show in order to recover salvage for what they did, however

meritorious their conduct may have been, thatthey had been discharged from their obligations

as such to the ship before they put out the fire.”); see also 3A-VI BENEDICT ON ADMIRALTY § 70

(2008) (concluding that a seamen can recover a salvage award “[w]here the master has

unmistakably discharged the seamen from the service of the shipowner and their contract of

employment”). 

7

salvage award.5 The Court explained that this proposition has been applied to

seamen, “who in the ordinary course of things, in the performance of their

duties, are not allowed to be come [sic] salvors, whatever may have been the

perils or hardships or gallantry of their services in saving the ship and cargo.”6

The Court reiterated this proposition in a subsequent decision when it explained

that “[s]eamen belonging to the ship in peril cannot, as a general rule, claim a

salvage compensation, not only because it is their duty to save both ship and

cargo, if it is in their power, but because it would be unwise to tempt them to let

the ship and cargo getinto a position of danger in order that by extreme exertion

they might claim salvage compensation.”7 However, “extraordinary events may

occur, in which [the seamen’s] connexion [sic] with the ship may be dissolved de

facto, or by operation of law, or they may exceed their proper duty, in which

cases they may be permitted to claim as salvors.”8
No. 06-30930

9 See generally Milton v. The Blue Goose, 188 F.2d 285, 287 (4th Cir. 1951) (concluding

that the claimant was a member of the crew until all left the yacht after she lost power during

a storm and that the claimant could recover as a salvor for his efforts after returning to the

vessel with the Coast Guard to save the yacht).

10 Solana stated in his affidavit, “GSF contacted me and asked if I would be willing to

come in from my time off to lead a team of volunteers to save DDI. I was requested to have

the team board dead DDI, restart her generators, conduct a damage assessment, keep her from

sinking, and attempt to stabilize her. I agreed to lead the team.”

Lally stated in his affidavit, “On the evening of August 29, GSF asked if I would

volunteer to return to DDI to attempt to save the vessel. I agreed to go.”

8

Solana and Lally contend that the bar prohibiting crew members from

recovering as salvors does not apply in the present case because they were atwill employees and had no obligation to return to the DDI after Hurricane

Katrina. They assert in the alternative that if they were crew members, their

post-Katrina service far exceeded the contractual duties they performed preKatrina.

We agree that as at-will employees, Solana and Lally were not obligated

to return to the DDI after it was evacuated. The service that they rendered to

the DDI immediately following Katrina was not compelled by a pre-existing

contractual obligation as at-will crew members.9 However, Solana and Lally did

not render service to the DDI when it was in distress as volunteers within the

parameters ofthe law of salvage. In their respective affidavits, Solana and Lally

state that when they were asked by GSF to board the DDI following Katrina,

they expressly agreed to do so.10 Although both state in their respective

affidavits that they were “volunteers,” the context of these statements makes

clear that they were asserting that their prior service aboard the DDI did not

obligate them to return and that they “volunteered” to return, as distinguished

from some of the crew who declined to do so. As their briefing concedes, both

Solana and Lally expected to be compensated by GSF for their efforts to stabilize
No. 06-30930

11 See The Camanche, 75 U.S. 448 (1869).

12 Id. at 477.

13 Id.; see also Flagship Marine Servs., Inc. v. Belcher Towing Co., 966 F.2d 602, 605

(11th Cir. 1992) (finding a binding agreement for salvage services regardless of whether the

services were successful and noting “we agree that there was no contract to pay a given sum

for the services Sea Tow rendered; nonetheless, we cannot agree . . . that the services . . . were

voluntary services” in light of the parties’ prior business dealings); cf. Fort Myers Shell and

Dredging Co. v. Barge NBC 512, 404 F.2d 137, 139 (5th Cir. 1968) (finding insufficient

evidence that a towing company had agreed to a modification and continuation of an existing

“relatively simple” towing agreement when such a modified agreement would have required

“time-consuming and extensive unbeaching operation for the same fee,” but declining to “reach

the issue of whether they might have entered into a salvage contract rather than a

continuation of their prior towage contract”).

9

the DDI after it was damaged by Katrina, regardless of whether those efforts

were successful.

The Supreme Court has long recognized that a binding agreement to pay

for salvage services irrespective of the success of the enterprise will defeat a

claim for pure salvage.11 The Court explained in The Camanche that while “it

is not every agreement which will have the effect to diminish a claim for salvage

compensation[,] . . . the rule is that nothing short of a contract to pay a given

sum for the services to be rendered, or a binding engagement to pay at all

events, whether successful or unsuccessful in the enterprise, will operate as a

bar to a meritorious claim for salvage.”12In the present case, there was a

binding agreement “to pay at all events.”13

We do not agree with the district court, however, that the present record

permits the conclusion that an express or implied agreement was reached that

Solana and Lally would be compensated for their work stabilizing the DDI

immediately following Katrina on the same basis that they had been

compensated just prior to Katrina. The parties have not briefed any legal

theories that support the district court’s conclusion that the plaintiffs should be

compensated on the same basis as they were paid for their prior service on the
No. 06-30930

14 International Convention on Salvage, Apr. 28, 1989, S. Treaty Doc. No. 102-12, 1953

U.N.T.S. 193.

10

DDI. Summary judgment should not have been granted regarding the amount

of compensation.

III

Although Solana andLally have briefed and argued general-maritime-law

principles governing salvors, their primary contention on appeal is that their

claims for salvage are instead governed by the International Convention on

Salvage of 1989.14 GSF counters by arguing that the Convention is not selfexecuting, has not been implemented in its entirety by enabling legislation, and

that the United States has not implemented it to apply to offshore drilling

platforms or units. GSF further contends that even were the Convention

otherwise applicable, Article 3 ofthe Convention expressly excludes vessels such

as the DDI. Article 3 provides: “This Convention shall not apply to fixed or

floating platforms or to mobile offshore drilling units when such platforms or

units are on location engaged in the exploration, exploitation or production of

sea-bed mineral resources.” Solana and Lally respond that the DDI had never

engaged in exploration when it was damaged by Katrina and had drifted

approximately a quarter of a mile from its original location as a result of the

hurricane.

It is unnecessary to reach the foregoing questions to resolve whether GSF

was entitled to summary judgment. We will assume, but we stress that we are

not deciding, that the Convention is enforceable in this nation’s courts and that

the DDI is not excluded by Article 3. Articles 6(1) and 17 of the Convention

require us to conclude that each of the plaintiffs had an agreement with GSF

that forecloses a pure salvage claim.
No. 06-30930

15 Solana’s affidavit states:

I was requested to have the team board dead DDI, restart her generators,

conduct a damage assessment, keep her from sinking, and attempt to stabilize

her. I agreed to lead the team.

* * *

[My pre-Katrina duties did] not include boarding a sinking, unstable drill unit

to restore power, stanch flooding, and correcting her severe list, all in

circumstances of grave danger. What the volunteer team and I were asked to

do far exceeded my and their normal duties.

* * *

This smallteam was to attempt to restore power aboard the dead rig, determine

the sources of and control the water ingress into the sinking vessel, and return

the vessel to a stable condition. Each of us was at risk as the unstable, sinking

vessel might capsize and sink with us aboard.

Lally’s affidavit states:

[Before returning to the DDI] I learned that GSF had been informed by one of

its customers, BP, that following Hurricane Katrina DDI was damaged and

11

Article 6(1) provides that “[t]his Convention shall apply to any salvage

operations save to the extent that a contract otherwise provides expressly or by

implication.” As discussed previously, Solana and Lally do not dispute that they

reached an agreement with GSF to render aid to the DDI after it had been

damaged by Katrina and that they expected to be compensated for their efforts

even if unsuccessful. Article 6(1) forecloses the application of the Convention

under the circumstances of this case even were it otherwise applicable.

Nor are Solana and Lally entitled to rely upon Article 17 of the

Convention, which is entitled “Services rendered under existing contracts,” and

provides: “No payment is due under the provisions of this Convention unless the

services rendered exceed what can be reasonably considered as due performance

of a contract entered into before the danger arose.” The summary judgment

record is conclusive that Solana and Lally agreed to render aid to the DDI after

“the danger arose.” Their respective affidavits are replete with admissions that

when they agreed to return to the DDI following Katrina, they knew the drilling

unit had been severely damaged, and they knew of the risk involved.15 Nor did
No. 06-30930

listing as much as 12-15 degrees. This is a much larger list than I have ever

experienced aboard a semi-submersible drilling vessel, and we all knew it

indicated DDI must have sustained serious hull damage in the storm.

* * *

Our small crew was to attempt to restore power aboard the dead rig, determine

the sources of and control the water ingress into the sinking vessel, and return

the vessel to a stable condition. Each of us was at risk as the unpredictable,

sinking rig might capsize and sink with us aboard.

12

their services to the DDI in the wake of Katrina reasonably exceed due

performance of the undertaking to which they agreed. The Convention affords

no basis for denying summary judgment in this case.

* * *

For the foregoing reasons, the summary judgment is REVERSED and we

REMAND for further proceedings consistent with this opinion.