### 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), i n 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 summaryjudgment in favor ofGSF. 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 ClerkNo. 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 o

f reviewing the summary judgment that was granted in favor ofthe defendants, we accept the plaintiffs’ assertions regarding the facts
astrue. 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 drilli ng services because its cracked, submerged thruster housings were damaged and undergoing repair. As Hurricane Katrina approached, GlobalSanteFe evacuated all of itsjack-up and anchored rigs in the Gulfof 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 ofKatrina, initially serving asSenior Matefor about eight months before hewas promoted tothe position ofOffshore Installation Manager, which wasthe 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 theNo. 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, hefound 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, ifhe and otherswho 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 ifSolana “would be willing to come in from [his] time offto 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 damageassessment, keep her from sinking, and attempt tostabilize her. I agreed to lead the team.” Solana’s affidavit reflectsthat GSF maintained a description for the Offshore Installation Manager position that Solana held, and “[t]hose duties do not include boardingNo. 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 GSF requested Solana, Lally and otherstoreturn tothe 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 ofthe pilots ofthe larger helicopterswere willing to ferry the group to the DDI because of its list. However, a pilot of a small helicopter agreed totransport a group ofthirteen, twoor 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 ofthe drilling unit, it was not until the fol lowing 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 dismissNo. 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 membersare not entitled toa salvageaward for assistancerendered totheir 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 ofthe 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 tothe 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, 1 the DDI was subject tothat Convention, and they were entitled to recover assalvors 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 summaryjudgment, counsel for the plaintiffs additionally noted that the DDI is registered in Vanuatu, which is alsoa signatory tothe 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 F ED

. 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 tobe paid even iftheir effortswere 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 ofthe moving party ifthe record, taken as a whole, “show[s] that there is nogenuine 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 ofwhether the general maritime law or the Convention determines whether a salvage award is owed. GSF hasmaintained throughout thislitigation that Solana and Lally were
crew members and therefore are barred from recovering as salvors. The SupremeCourt in Hobartv. Drogan expressed thegeneral 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 aNo. 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; seealsoTheC.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 w hich 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 cargoofanother ship traveling in thesame 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 ofthese libelants were members ofthe crewwhen the fire broke out on the vessel, they must show in order to recover salvage for what they did, however meritorioustheir conduct may have been, that they had been discharged from their obligations as such to the ship before they put out the fire.”); seealso 3A-VI B ENEDICT ON A DMIRALTY § 70 (2008 ) (concluding that a seamen can recover a salvage award “[w]here the master has unmistakably discharged the seamen from the service ofthe 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 oftheir services in saving the ship and cargo.”6 TheCourt reiterated thisproposition 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, ifit is in their power, but because it would be unwise to tempt them to let the ship and cargoget intoa position ofdanger 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.”8No. 06-30930

9 Seegenerally Milton v. The BlueGoose , 188 F.2d 285, 287 (4th Cir. 1951) (concluding that the claimant was a member ofthe crewuntil 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 theteam board dead DDI, restart her generators, conducta damageassessment, 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 asat-will crewmembers. 9 However, Solana and Lally did not render service to the DDI when it was in distress as volunteers within the parametersofthe lawofsalvage. 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 aff idavits 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 decli ned to do so. As their briefing concedes, both Solana and Lally expected tobecompensated by GSF for their effortstostabilizeNo. 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 Towrendered; nonetheless, we cannot agree
. . . that the services

. . . were voluntary services” in light of the parties’ prior business dealings); c f

. 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 ofan existing “relatively simple” towing agreement when such a modified agreement would have required “time-consuming and extensive unbeaching operation for thesamefee,” 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 o f 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 wi ll 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 todiminish 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.”1 2 In 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 theNo. 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 and Lally 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 otherwiseapplicable, Article 3oftheConvention expressly excludesvesselssuch
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 resolvewhether GSF
was entitled to summaryjudgment. 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, stanc h 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. * * * Thissmall team was toattempt torestore power aboard thedead rig, determine the sources ofand 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 whatcan be reasonably considered asdue 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 tothe DDI following Katrina, they knewthe drilling unit had been severely damaged, and they knewofthe risk involved. 15 Nor didNo. 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 crewwas to attempt to restore power aboard the dead rig, determine the sources ofand 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 ofthe undertaking to which they agreed. The Convention affords no basis for denying summary judgment in this case. * * * For the foregoing reasons, the summaryjudgment is REVERSED and we REMAND for further proceedings consistent with this opinion.