Demette v. Falcon Drilling Co.

253 F.3d 840, 2001 A.M.C. 2272, 2001 WL 649670

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 12, 2001
• Docket: No. 00-30165
• Status: Published

Opinions

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Appellee R&B Falcon Drilling USA, Inc. sued appellant Frank’s Casing & Crew Rental Tools, Inc. for indemnity when a Frank’s employee sued Falcon under the Longshore and Harbor Workers’ Compensation Act¹ for injury sustained while working on a Falcon jack-up rig in the Gulf of Mexico. Frank’s argued that the indemnity agreement was voided by LHWCA or by Louisiana law. The district court held that the indemnity agreement was valid.

Determining the validity of the indemnity agreement requires a foray into the federal statutes defining the law applicable to offshore drilling on jack-up rigs. We first consider the application of the Outer Continental Shelf Lands Act (“OCSLA”)² and then construe the LHWCA. We conclude that the OCSLA applies to a rig jacked-up over the outer continental shelf; that state law does not apply to this case by operation of the OCSLA, but the LHWCA does; and that the LHWCA does not invalidate the indemnity agreement. We affirm.

I

Frank’s Casing & Crew Rental Tools, Inc. and R&B Falcon Drilling USA, Inc. are both contractors with Union Oil Company of California for Unocal’s offshore drilling operations. Frank’s provides casing services. “Casing” is an activity performed during the drilling for oil, whether onshore or offshore; it involves the “welding together and hammering of pipe into the subsurface of the earth to create a permanent construction.”³

Frank’s and Unocal signed a “Services and Drilling Master Contract.” Under the Master Contract, Frank’s provided casing services to Unocal at offshore drilling sites. Under the Master Contract, Unocal agreed to defend and indemnify Frank’s against any liabilities Frank’s owes to Unocal, and Frank’s agreed to defend and indemnify Unocal and all of its contractors and subcontractors against liabilities they may owe to Frank’s. Falcon was a contractor of Unocal.

Falcon provides movable rigs from which casing crews drill offshore wells. Falcon has an “Offshore Daywork Drilling Contract” with Unocal. This contract provided Unocal with access to all of Falcon’s vessels for offshore drilling. Falcon provided Unocal the Fal-Rig # 85, a jack-up drilling rig. A jack-up drilling rig is a floating rig with legs that can be lowered into the seabed. Once the legs are secured in the seabed, the rig can be “jacked-up” out of the water to create a drilling platform. The process can be reversed, and a jack-up rig can be towed to new sites.⁴

Pursuant to the Master Contract between Frank’s and Unocal, plaintiff Kermit Demette, an employee of Frank’s, worked aboard the Fal-Rig #85. Demette was injured while performing casing work as a welder on the Fal-Rig # 85. He was part of a “hammer job,” which involves a casing crew welding together sections of pipe end-to-end as the pipe is driven into the seabed by a large hammer. While Dem-ette was working at the base of the derrick where the pipe was being driven, a metal retaining ring used to secure hoses fell from the derrick, striking him on the head. At the time of Demette’s injury, the Fal-Rig # 85 was jacked up. Its legs rested on the outer continental shelf of the United States beyond the territorial waters of Louisiana.⁵

Demette sued Falcon for his injuries. Falcon, pursuant to the Offshore Daywork Drilling Contract, filed a third-party complaint against Unocal for defense and indemnity. Unocal voluntarily assumed the defense of Falcon. Falcon then filed a third-party complaint against Frank’s, seeking defense and indemnity pursuant to the Master Contract.

The district court granted summary judgment to Falcon on the issues of whether Frank’s owed defense and indemnity to Falcon. Frank’s agreed to fund a settlement with Demette and to pay Falcon’s defense costs, but made a full reservation of appeal rights. A consent judgment was entered pursuant to this agreement.

Frank’s appeals the summary judgment ruling on indemnity and defense.

II

The Outer Continental Shelf Lands Act⁶ provides comprehensive choice-of-law rules and federal regulation to a wide range of activity occurring beyond the territorial waters of the states on the outer continental shelf of the United States. Relevant to this case, it applies federal law to certain structures and devices on the OCS, incorporates state law into federal law on the OCS, and applies the LHWCA to certain injuries sustained by persons working on the OCS.

In this case, the parties dispute whether Louisiana state law governs the Master Contract and whether the OCSLA makes the Longshore and Harbor Workers’ Compensation Act⁷ applicable to Demette’s injuries. First, we must determine whether the injury occurred on an OCSLA situs; if so, we then have two inquiries: we must determine whether OCSLA makes state law applicable; and we must determine if the injured party’s status makes the LHWCA applicable under OCSLA. We begin with a review of the three OCSLA inquiries we must make in this case.

A. Section 1333(a)(1): Situs Test

Section 1333(a)(1) describes the reach of the OCSLA and applies federal law within this scope. It states that the laws and jurisdiction of the United States extend

to the subsoil and seabed of the [OCS] 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 exporing [sic] 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 [OCS] were an area of exclusive Federal jurisdiction located within a state.⁸

The Supreme Court and the Fifth Circuit have held that this section creates a “situs” requirement for the application of other sections of the OCSLA, including sections 1333(a)(2) and 1333(b).⁹ Neither the Supreme Court nor this court has parsed the precise language of the statute to specify the exact contours of the situs test it establishes.¹⁰ We are called upon to do so today.

We rely on the text of the statute. A close inspection of section 1333(a)(1) reveals that it applies to two primary sets of subjects: “to the subsoil and seabed of the [OCS]”; and “to all artificial islands, and all installations and other devices permanently or temporarily attached to the seabed.” This latter category is further divided into two categories: those artificial islands, installations, or devices “erected” on the OCS “for the purpose of exploring for, developing, or producing resources” from the OCS, and those “other than a ship or vessel” whose purpose is “transporting such resources.”¹¹

Thus, the OCSLA draws important distinctions between the two categories of artificial islands, installations, and other devices. Each category is defined by the purpose of the device — the former, extraction of resources; the latter, transportation of resources. The former also includes the phrase, “which may be erected [on the OCS],” while the latter does not. Conversely, the latter contains the phrase, “other than a ship or vessel,” while the former does not.

We incorporate these distinctions into the following rule:

The OCSLA applies to all of the following locations:

(1) the subsoil and seabed of the OCS;

(2) any artificial island, installation, or other device if

(a) it is permanently or temporarily attached to the seabed of the OCS, and

(b) it has been erected on the seabed of the OCS, and

(c) its presence on the OCS is to explore for, develop, or produce re- . sources from the OCS;

(3) any artificial island, installation, or other device if

(a) it is permanently or temporarily attached to the seabed of the OCS, and

(b) it is not a ship or vessel, and

(c) its presence on the OCS is to transport resources from the OCS.

B. Section 1333(a)(2): Incorporation of State Law

If the situs test is met, section 1333(a)(2) provides that “[t]o the extent that they are applicable and not inconsistent with this subchapter or with other Federal laws ... the civil and criminal laws of each adjacent State ... are hereby declared to be the law of the United States [on OCS sitases as defined by section 1333(a)(1) ].” Sections 1333(a)(1) and 1333(a)(2) together provide a rule for the incorporation of state law as surrogate federal law governing claims arising out of activity on the OCS. This court has articulated the rule in a three-part test announced in Union Texas Petroleum Corp. v. PLT Engineering {“PLT ”):¹²

[For state law to govern,] (1) The controversy must arise on a situs covered by OCSLA (i.e., the subsoil, seabed, or artificial structure 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.¹³

For disputes arising out of contracts— including indemnity contracts for offshore drilling — the courts of this circuit have held that if the contract is a maritime contract, federal maritime law applies of its own force, and state law does not apply.¹⁴

C. Section 1883(b): Status Test

Section 1333(b) extends the LHWCA to non-seamen employed on the OCS. Specifically, it creates the following “status” test: the LHWCA applies to injuries “occurring as a result of operations conducted on the [OCS] for the purpose of exploring for, developing, removing, or transporting by pipeline the natural resources ... of the [OCS].”¹⁵ In order for the LHWCA to apply under section 1333(b), the injured worker must satisfy the “status” requirement of section 1333(b) as well as the situs requirement of section 1333(a)(1).¹⁶

Ill

A. Situs Test

Here, the situs requirement of section 1333(a)(1) is met. The Fal-Rig # 85 was jacked-up over the OCS at the time of Demette’s injury. It therefore falls into the second category of OCSLA situses: it was a device temporarily attached to the seabed, which was erected on the OCS for the purpose of drilling for oil.¹⁷

Frank’s argues that since the Fal-Rig # 85 is a vessel,¹⁸ the OCSLA cannot apply to this case. Frank’s argument is that the qualifier “other than a ship or vessel” in section 1333(a)(1) precludes the application of the OCSLA. This argument has no merit. As discussed above, the statute twice refers to artificial islands, installations, and other devices permanently or temporarily attached to the seabed. Once it inserts the qualifier “other than a ship or vessel”; once it does not. We give effect to the different wording of the two phrases by reading them differently.¹⁹

This result is consistent with the precedent of this circuit. As we noted in Hodgen v. Forest Oil Corp.,20 our holding in Domingue v. Ocean Drilling and Explora tion Co.21 implicitly supports the holding that a jacked-up rig is an OCSLA situs. Domingue applied state law to an indemnity agreement regarding an injury on a jacked-up drilling rig, but failed to explicitly address the situs requirement of the OCSLA, focusing instead on the question of whether state law applied.²² Since the incident occurred on the OCS beyond the territorial waters of Louisiana, the only way state law could have operated was by incorporation into federal law under OCS-LA.²³

The amicus supporting Frank’s quotes Longmire v. Sea Drilling Corp.,24 which states: “The OCSLA covers fixed platform workers, while floating rig workers, even those whose tasks are essentially identical to the tasks performed by fixed platform workers, are treated differently.”²⁵ This out-of-context statement cannot carry Frank’s case. In the context of the facts of the case, this statement addresses the fact that the employee was injured on a tender working alongside a fixed platform.²⁶ Tenders are vessels (in Longmire it was a converted warship) that are often anchored next to drilling platforms to service the platforms and ferry workers to and from the shore. Longmire does not involve a floating rig, let alone a jack-up rig; the “floating” rig the opinion refers to is this tender, which was attached to the OCS only by an anchor. In Parks v. Do-well Division of Dow Chemical Corp.,27 we explained Longmire, noting that tenders are not extensions of drilling rigs fixed to the seabed, and the OCSLA does not apply to them.²⁸ Longmire’s conclusion that a tender is not an OCSLA situs is not relevant to the facts of this case.²⁹

In sum, this case arises out of an injury on an OCSLA situs. Since the section 1333(a)(1) requirement is satisfied, the OCSLA applies to this case.

B. Incorporation of State Law

The next logical step is to consider whether Louisiana law applies as a surrogate to federal law under section 1333(a)(2). As stated above, this circuit applies the PLT test to determine the application of state law. The second prong of the PLT test is that maritime law does not apply of its own force. Because maritime law applies of its own force, Louisiana law does not apply in this case.³⁰

Maritime law applies to the Master Contract between Unocal and Frank’s if the contract is a maritime contract. The Master Contract stated that Frank’s would “provide easing installation services.” The parties indemnified each other against claims brought by their employees. The contract does not explicitly mention any vessels, and it is unclear whether it contemplated work exclusively offshore or work both offshore and onshore.

Determining whether a contract relating to offshore drilling is maritime is often a perplexing affair.³¹ This circuit utilizes the two-step test of Davis & Sons, Inc. v. Gulf Oil Corp.,32 to determine whether a contract is maritime. We consider, first, the contract’s “historical treatment in the jurisprudence” and, second, the specific facts of the case.³³ For some categories of contracts, the historical treatment is sufficiently clear that the fact-specific inquiry becomes unimportant.³⁴ This is such a case.

This court has held that indemnity provisions in contracts to provide offshore casing services are maritime.³⁵ Even a contract for offshore drilling services that does not mention any vessel is maritime if its execution requires the use of vessels.³⁶ This is true for contracts that may also involve obligations performed on land.³⁷ Thus, circuit precedent virtually compels the conclusion that this is a maritime contract.

The Davis factors confirm this result. Davis fists six factors to consider in determining whether the facts of the case lend the contract a sufficiently “salty flavor”³⁸ for a court to deem it maritime:

1) what does the specific work order in effect at the time of the injury provide?

2) what work did the crew assigned under the work order actually do?

3) was the crew assigned to do work aboard a vessel in navigable waters[?]

4) to what extent did the work being done relate to the mission of the vessel?

5) what was the principal work of the injured worker? and

6) what work was the injured worker actually doing at the time of the injury?³⁹

In this case, Demette’s work order provided for a hammer operator, a hammer mechanic, and four welders, including Dem-ette, to drive and weld 416 feet of pipe from the Fal-rig #85 while the rig was jacked-up; this crew actually performed the hammer job the work order described; Demette was working on a vessel over navigable waters; casing is an integral part of drilling, which is the primary purpose of the vessel; and Demette’s principal work was as a welder performing casing work; and Demette was performing casing services at the time of the accident. Thus, all six factors point to the same conclusion: the contract and the injury that invoked it were maritime in nature.

C. Status Test

Having concluded that the OCSLA applies, but does not incorporate state law, the only remaining issue under the OCS-LA is whether the LHWCA applies to Demette by virtue of section 1333(b) of the OCSLA. It does. Demette was injured while doing casing work. Casing work is the model case of injuries “occurring as a result of operations conducted on the [OCS] for the purpose of exploring for, developing, removing, or transporting by pipeline the natural resources ... of the [OCS].”⁴⁰

We thus conclude that the injury occurred on an OCSLA situs, that Louisiana law does not apply, and that the LHWCA applies to this case by virtue of section 1333(b). We now address the consequences of our conclusion that section 1333(b) applies the LHWCA to this case.

IV

The LHWCA provides the exclusive remedies for injuries to employees injured while subject to the LHWCA.⁴¹ It creates for such employees an action against the vessel (including its owner) on which the employee was working when injured.⁴² Section 905(b) of the LHWCA bars employers from indemnifying the vessel from LHWCA liability.⁴³ However, if the injured employee is entitled to the benefits of the LHWCA “by virtue of’ section 1333(b) of the OCSLA, then section 905(c) of the LHWCA states that “any reciprocal indemnity provision” between the vessel and the employer is enforceable.⁴⁴

Central to this case is the meaning of the phrase “by virtue of.” Frank’s argues that Demette is directly covered by the LHWCA,⁴⁵ and therefore section 905(b) bars the indemnity agreement between Falcon and Frank’s. Frank’s reads section 905(c) to apply only to persons entitled to receive LHWCA benefits exclusively “by virtue of’ the OCSLA. We acknowledge that this interpretation would not do violence to the text of the statute.

Ordinarily, however, we should give the words of statutes their plain meaning. The most obvious meaning of “by virtue of section 1333” is simply that the worker is covered by section 1333. For example, it is perfectly sensible to say, “Demette is eligible to receive LHWCA benefits by virtue of section 1333 and also by virtue of the LHWCA itself.” This sentence makes sense because we understand that “by virtue of’ does not imply exclusivity. The adverbs “exclusively” or “solely” would have indicated the meaning Frank’s advocates, but those words are absent from the statute.

We might question our plain meaning interpretation of “by virtue of’ if Frank’s identified something in the context of the statute that indicated that those words have a narrower, more technical meaning. But there is none. Further, what little legislative history section 905(c) has supports our reading of the text. Congress enacted section 905(c) as part of the Long-shore and Harbor Workers’ Compensation Act Amendments of 1984.⁴⁶ The House Conference Report⁴⁷ discusses language in the Senate version of the bill; this language became section 905(c). The Conference Report stated that “the Senate bill provides an exemption to the Longshore Act’s current proscription of indemnity agreements under section [905(b) ] of the Act.... The bill would legalize those indemnity agreements insofar as they apply to the Outer Continental Shelf.” Thus, the Conference Report treats section 905(e)’s limitation to persons entitled to benefits “by virtue of section 1333” as applying to all persons connected to the OCS, as defined by the OCSLA, without any reference to any exception for persons qualifying directly under the LHWCA.

Frank’s argues that construing section 1333(b) to apply to workers already directly covered by the LHWCA causes some anomalies. While this may be so, this is a result of the existence of section 905(c), not of any interpretation of section 905(c). Any line we draw will leave some indemnity agreements valid and others invalid. A line between LHWCA employees on permanent platforms and all other LHWCA employees is not any more arbitrary than a line between LHWCA employees on permanent or temporary platforms and all other LHWCA employees. In fact, as Judge Sear cogently argued in Campbell v. Offshore Pipeline, Inc.,48 interpreting section 905(c) to include employees who are covered by virtue of both the LHWCA and OCSLA eliminates some anomalies.⁴⁹

Given that section 1333(b) of the OCSLA applies to Demette, the plain language of section 905(c) dictates that the indemnity contract, if reciprocal, is valid, notwithstanding section 905(b).⁵⁰ Since Frank’s and Unocal each indemnified the other, the indemnification is reciprocal and therefore valid.⁵¹

Frank’s finally argues that even if section 905(c) removes the section 905(b) prohibition, Louisiana law invalidates the indemnity agreement. As we have already concluded, however, Louisiana law does not apply to this contract.⁵²

V

In sum, the OCSLA applies to this case; Louisiana law does not apply as surrogate federal law under the OCSLA; and because Demette is subject to the LHWCA by virtue of the OCSLA, the indemnity agreement between Unocal and Frank’s is valid.

In reaching this conclusion, we acknowledge the dissent’s puzzlement at the conclusion that a jack-up rig is a vessel and that maritime law can apply on an OCSLA situs. But we disagree that en banc reversal of established circuit precedent is in order. Although current law suffers from the inconsistencies the dissent complains of, changing the law of this circuit may not improve the situation.⁵³ Instead, the source of the dissent’s vexation is the OCSLA itself, a statute that by introducing the law of terra firma to a seaward realm requires unavoidably arbitrary line-drawing between the application of terrestrial law and the law of the sea.⁵⁴

We AFFIRM the district court’s grant of summary judgment against Frank’s.

1 . 33 U.S.C.A. § 901 et seq. (2000).

2 . 43 U.S.C.A. § 1331 etseq. (2000).

3 . See Campbell v. Sonat Offshore Drilling, Inc., 979 F.2d 1115, 1118 n. 2 (5th Cir.1992).

4 .Thomas J. Schoenbaum, 1 Admiralty and Maritime Law § 3-9, 100 n.8 (West 2d Ed. 1994), describes jack-up rigs and other rigs.

5 . In this opinion, we define OCS to exclude lands lying beneath the territorial waters of the states. See 43 U.S.C. § 1331(a).

6 . 43 U.S.C.A. § 1331 et seq. (2000).

⁷

8 . 43 U.S.C.A. § 1333(a)(1).

9 . Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 217-20 & 220 n. 2, 106 S.Ct. 2485, 91 L.Ed.2d 174 (1986); Mills v. Director, OWCP, 877 F.2d 356, 361-62 (5th Cir.1989) (en banc).

10 . Mills interpreted section 1333(b) and held that it could not apply to injuries that do not occur on or over the OCS. 877 F.2d at 362.

11 . 43 U.S.C.A. § 1333(a)(1). The reference "any such installation or other device” suggests that Congress treated "installation or other device" as a unit separate from "artificial islands.” In the context of the entire section, however, it is clear that Congress used "artificial islands, installations, and other devices” as a single category. See 43 U.S.C.A. § 1333(c) (using the phrase "artificial island, installation, or other device referred to in subsection (a) of this section”); 43 U.S.C.A. § 1333(d)(2) (same); 43 U.S.C.A. § 1333(d)(1) (using the phrase "artificial islands, installations, and other devices referred to in subsection (a) of this section”); 43 U.S.C.A. § 1333(e) (same); 43 U.S.C.A. § 1333(f) (same). Further, it is hard to imagine an artificial island that is not subsumed into the category "installations and other devices permanently or temporarily attached to the seabed.” Making sense of text and context, we conclude that "artificial islands, and all installations and other devices” form a single category.

12 . 895 F.2d 1043 (5th Cir.1990).

13 . Id. at 1047.

14 .’ See Hodgen v. Forest Oil Corp., 87 F.3d 1512, 1526 (5th Cir.1996) (observing that the second factor in the PLT test is identical to the determination that the contract is maritime); Diamond Offshore Co. v. A&B Builders, Inc., 75 F.Supp.2d 676, 681 (S.D.Tex.1999) (applying Hodgen to an indemnity contract).

15 . 43 U.S.C.A. § 1333(b). Section 1333(b)(1) expressly excludes masters and crew of vessels.

16 . See Mills, 877 F.2d at 361-62.

¹⁷

18 . This is beyond dispute. This circuit has repeatedly held that special-purpose movable drilling rigs, including jack-up rigs, are vessels within the meaning of admiralty law. See, e.g., Smith, 960 F.2d at 460; Offshore Co. v. Robison, 266 F.2d 769, 776 (5th Cir.1959). The dissent’s challenge to the definition of vessel is misplaced. The dissent argues that a jack-up rig stops being a vessel when it jacks up. Tinkering with the maritime definition of vessel would overturn a centuries-old understanding of what constitutes a vessel. See The Robert W. Parsons, 191 U.S. 17, 28-32, 24 S.Ct. 8, 48 L.Ed. 73 (1903) (reviewing authority). As long as a boat is able and intended to return to navigation, it remains a vessel, even when in dry dock, storage on land, or otherwise removed from the water. See Thomas J. Schoenbaum, 1 Admiralty and Maritime Law 88-92 (West 2d ed.1994). This circuit has repeatedly rejected the notion that removing a vessel's hull from the water divests it of vessel status. See American Eastern Development Corp. v. Everglades Marina, Inc., 608 F.2d 123, 124-25 (5th Cir.1979) (contractual action involving boat in dry Storage); Delome v. Union Barge Line Co., 444 F.2d 225, 228-32 (5th Cir.1971) (unseaworthiness action involving boat undergoing repairs on marine railway). Thus, the dissent's argument that a jack-up rig stops being a vessel when it temporarily lifts out of the water implicates the treatment of any boat, ship, barge, or special-purpose vessel that is temporarily taken out of navigation. Further, the dissent’s definition of vessel, which requires that the object "float on water,” would also exclude submersible rigs and submarines (when submerged), and boats employing hydrofoils (which displace less water than their mass).

19 . See Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) (“We refrain from concluding here that the differing language in the two subsections has the same meaning in each.”). Also, the use of the term "temporarily” implies that devices that can detach from the seabed and are capable of movement on the sea — i.e., vessels — can fall within the scope of the OCSLA. The distinction the statute draws between devices used to extract and devices used to transport resources serves to exclude vessels that merely transport resources: oil tankers and the like. The transport devices covered by the OCSLA are pipelines, which are explicitly mentioned in section 1333(b), and similar structures. A further indication that the statute contemplates vessels being OCSLA situses is section 1333(b)'s exclusion of “a master or member of a crew of any vessel” from LHWCA coverage on OCSLA situses. If OCS-LA situses are never vessels, this provision would be mere surplusage. The dissent's contention that an OCSLA situs cannot be a vessel ignores these textual indications to the contrary.

20 . 87 F.3d 1512 (5th Cir.1996).

21 . 923 F.2d 393 (5th Cir.1991).

22 . Id. at 395-98. Hodgen, 87 F.3d at 1525-26, notes that Domingue failed to discuss the situs requirement.

23 . Frank’s cites a number of cases challenging this conclusion, none of which are apposite. Frank's relies on Smith v. Penrod Drilling Corp. 960 F.2d 456 (5th Cir.1992), in arguing that a vessel cannot be an OCSLA situs. The holding of Smith was that maritime law, and not Louisiana law, applied to an indemnity agreement regarding a jack-up rig. Id. at 461. This is a straightforward application of the second prong of the PLT test and has nothing to do with the question of whether jack-ups can be OCSLA situses. Indeed, Smith explicitly found that since the accident that implicated the indemnity agreement occurred on a fixed, permanent platform, it need not address the question of whether a jack-up is an OCSLA situs. Dupre v. Penrod Drilling Corp., 993 F.2d 474, 476-77 (5th Cir.1993), follows Smith in this regard and is equally distinguishable. Frank's also cites Tennessee Gas Pipeline v. Houston Cas. Ins. Co., 87 F.3d 150, 155-56 (5th Cir.1996), for the proposition that vessels are not within the OCSLA jurisdiction for removal purposes. This claim is incorrect. Tennessee Gas Pipeline finds removal jurisdiction over maritime claims involving a fixed platform that was within OCSLA jurisdiction; it makes no claims about vessels. Frank's claim stems from its confusion of "vessels” with “maritime claims.” While maritime claims cannot generally be removed to federal court, claims arising under federal statute can be. While the presence of a vessel in the facts of a case may allow a plaintiff to allege claims under maritime law, the presence of a vessel does not convert other, non-maritime claims into unremovable maritime claims.

24 . 610 F.2d 1342 (5th Cir.1980).

25 . Id. at 1348.

26 . Id. at 1344-45.

27 . 712 F.2d 154 (5th Cir.1983).

28 . See id. at 157. Although arguably an anchor "attache[s]” a ship to the seabed, a tender, unlike a jack-up rig, is not "erected” on the OCS.

29 . Frank’s also cites legislative history stating that the phrase "waters above the [OCS]” was deleted from the situs requirement of what became section 1333(b) in order "to make more definite the application of the [LHWCA] to workers other than those employed on vessels.” Sen. Rep. No. 411, 83d Cong., 1st Sess. 16, 23 (1953). Unfortunately for Frank’s, the situs requirement that this deletion left behind was later deleted, leaving no situs requirement in the enacted version of that subsection. As noted above, section 1333(b) contains only a status requirement.

30 . Since Louisiana law does not apply, we need not decide whether it is inconsistent with federal law in this case. If the contract in this case were not maritime, we would then consider whether Louisiana law is inconsistent with applicable federal law.

31 . See Davis & Sons, Inc. v. Gulf Oil Corp., 919 F.2d 313, 315 (5th Cir.1990) ("The attempt to determine whether a contract, particularly one linked to offshore gas and oil production, is governed by state or maritime law has led to much confusion.”).

32 . 919 F.2d 313, 315 (5th Cir.1990).

33 . Id. at 316; see also Campbell v. Sonat Offshore Drilling, Inc., 979 F.2d 1115, 1121 (5th Cir.1992) (describing two-step character of the Davis test).

34 . An example of such a case is Smith, 960 F.2d at 459-60.

35 . See Campbell v. Sonat Offshore Drilling, 979 F.2d at 1120-21; see also Smith, 960 F.2d 456 (holding that contract to "work over" a jack-up rig is maritime); Diamond Offshore Co. v. A&B Builders, Inc., 75 F.Supp.2d 676, 679-81 (S.D.Tex.1999) (holding that a contract for repair of a jack-up rig is maritime); Gilbert v. Offshore Production & Salvage, Inc., 1997 WL 149959, at *4 (E.D.La. March 21, 1997) (holding that a contract to provide drilling supervision services is maritime); Campbell v. Offshore Pipeline, Inc., 1993 WL 302623, at *3-4 (E.D.La. Aug.5, 1993) (holding that a contract for welding services of pipeline on the OCS is maritime).

36 . See Lewis v. Glendel Drilling Co., 898 F.2d 1083, 1086 (5th Cir.1990) (holding that a contract to provide offshore drilling services is maritime even if it does not mention vessels). Contracts involving vessels tend to be deemed maritime. See PLT, 895 F.2d at 1048 (describing an "oversimplified" test as "whether the transaction relates to ships and vessels, masters and mariners, as the agents of commerce”). Schoenbaum, 1 Admiralty and Maritime Law § 3-10 provides an extensive list of contracts found to be maritime and non-maritime.

37 . See Davis, 919 F.2d at 315-16.

38 . See Kossick v. United Fruit Co., 365 U.S. 731, 742, 81 S.Ct. 886, 6 L.Ed.2d 56 (1961).

39 . Davis, 919 F.2d at 316.

40 . 43 U.S.C.A. § 1333(b). That Demette maybe a longshoreman by operation of the LHWCA itself seems to be of little consequence; the language of the OCSLA is clear. This point becomes important in the analysis of 33 U.S.C.A. § 905(c) below.

41 . See 33 U.S.C.A. § 905(a).

42 . See 33 U.S.C.A. § 933.

43 . See 33 U.S.C.A. § 905(b).

44 . See 33 U.S.C.A. § 905(c).

45 . Both parties seem to agree that Demette is a longshoreman by operation of the LHWCA itself. To qualify as a longshoreman under the LHWCA, the employee must be engaged in maritime employment over navigable water, but not a seaman. See 33 U.S.C.A. § 902(3); Director, OWCP v. Perini North River Assoc., 459 U.S. 297, 103 S.Ct. 634, 74 L.Ed.2d 465 (1983).

46 . Pub.L. No. 98-426, 98 Stat. 1639 (1984).

47 . H. Conf. Rep. No. 98-1027 (1984), reprinted in 1984 U.S.C.C.A.N. 2734, 2771.

48 . 1993 WL 302623 (E.D.La. Aug.5, 1993).

49 . See id. at *5 (noting that a contrary interpretation would lead to different treatment of two indemnity agreements when two workers are injured on the same platform, but one is not entitled to benefits directly under the LHWCA).

50 . Frank's also argues that this interpretation of section 905(c) renders section 905(b) a nullity. This is nonsense. Section 905(c) applies only on the OCS and only when the contract is reciprocal.

51 . That Falcon was not a signatory to the reciprocal Unocal-Frank's indemnity agreement does not alter this result. We have so held in Campbell v. Sonat Offshore Drilling, Inc., 979 F.2d 1115, 1124 (5th Cir.1992).

52 . We do not imply that if Louisiana law did apply to this contract, it could invalidate the indemnity agreement. State law is incorporated as surrogate federal law by OCSLA only to the extent it does not conflict with federal law. State law therefore could not invalidate indemnity agreements declared valid by the LHWCA. See 33 U.S.C.A. § 905(c); H. Conf. Rep. No. 98-1027, at ."3 (1984), reprinted in 1984 U.S.C.C.A.N. 2771, 2773 (stating that section 905(c) "would [ ] preempt the application of state laws prohibiting such indemnity agreements.”).

53 . The dissent's recourse to legislative history of the OCSLA to argue that OCSLA situses cannot also be deemed vessels does not grapple with the text of the OCSLA, which contemplates OCSLA situses that are vessels. See Parts II.A and III.A. We also note that even if we were to ignore the text of the OCSLA, examination of the purposes of the OCSLA does not yield so clear an answer as the dissent indicates. This circuit has noted that OCSLA was originally designed as a gap-filling statute. Mills v. Director, OWCP, 877 F.2d 356, 358 (5th Cir.1989) (en banc). This was because fixed platforms on the OCS were neither vessels nor within the territorial jurisdiction of any state; thus, no law applied to them. The OCSLA filled this gap by applying state law as surrogate federal law to those platforms. Floating rigs, however, were always subject to maritime law, and thus did not linger in the lawless limbo occupied by drilling platforms prior to the enactment of the OCSLA. Thus, applying the OCSLA's choice-of-law provision only when “maritime law [does] not apply of its own force,” PLT, 895 F.2d at 1047, is consistent with the gap-filling purpose of the OCSLA.

54 . By applying state law as surrogate federal law to offshore situses, the OCSLA requires courts to draw lines between the zones in which surrogate federal law applies and in which admiralty law applies. No interpretation of the OCSLA can eliminate the arbitrariness of such lines. Our circuit precedent essentially draws a line between floating rigs and fixed platforms, which may seem arbitrary in light of the purposes cited by the dissent. PLT, 895 F.2d at 1047. One alternative, treating jack-up rigs as vessels but also applying to them surrogate federal law instead of maritime law, would draw a strange line between rig operators who are permanently assigned to floating rigs (who are crew members, and thus would be excluded from LHWCA coverage by section 1333(b)(1), but would also lack seaman’s remedies because maritime law would not apply) and rig operators temporarily assigned to floating rigs or assigned to platforms (who are covered by the LHWCA by section 1333(b)). Another alternative, proposed by the dissent, would deem floating rigs no longer vessels when they jack-up on the OCS. This draws an equally strange line between rigs that lift out of the water to drill and rigs that do not, even when both are OCSLA situses. Further, this creates the problem of determining when a rig has been sufficiently jacked-up to switch the applicable law from admiralty to surrogate federal law. This in turn complicates questions of what law applies to incidents that occur while a rig is jacking up or which law applies to contracts governing the use of jack-up rigs.