Smith v. Penrod Drilling Corp.

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 91-3103 _______________

BRUCE SMITH, Husband of/and TERESA SMITH,

Plaintiffs,

VERSUS

PENROD DRILLING CORP., et al.,

Defendants.

* * * * * * * * * *

CHEVRON U.S.A., INC.,

Third-Party Plaintiff-Appellee,

CERTAIN UNDERWRITERS AT LLOYD'S LONDON and Various Insurers,

Third-Party Defendants-Appellants.

_________________________

Appeal from the United States District Court for the Eastern District of Louisiana _________________________ (May 29, 1992)

ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC

(Opinion April 30, 1992, 5th Cir., 1992, ___ F.2d ____) Before POLITZ, Chief Judge, SMITH, Circuit Judge, and FITZWATER,* District Judge.

PER CURIAM:

We make the following modifications to the panel opinion,

neither of which affects the result:

The first paragraph of part II.B is modified to read as

follows:

Deciding whether the contract at issue is a maritime contract fortunately does not require us to traverse the now-familiar maze of cases interpreting similar contracts. In Theriot v. Bay Drilling Corp., 783 F.2d 527 (5th Cir. 1986), we stated that "[a] principal determinant is the relation the contract bears to the ship ...." (Internal quotation omit- ted.) Noting that in Theriot "the main piece of equipment to be supplied by [the contrac- tor] was a vessel," we held that "[t]he contract thus focused upon the use of a vessel in a maritime transaction and is a maritime contract governed by maritime law." Id. In Lewis, 898 F.2d at 1086, we opined that "[t]he court's conclusion in Theriot that the con- tract 'focused upon the use of a vessel', i.e. the drilling barge identified in an exhibit to the contract, inescapably leads to the same conclusion in this case." We reach the same result in the case sub judice.

The third paragraph of part II.B is modified to read as

1) Provisions of Work Order

The original contract was for drilling services, and the specific agreement was for workover operations of wells, primarily from, and with the use of, the vessel furnished by the contractor pursuant to the agreement. The contract "focused upon the use of a vessel," Theriot, 783 F.2d at 539, and thus, in this case, is maritime.

* District Judge of the Northern District of Texas, sitting by designa- tion. Treating the suggestion for rehearing en banc as a petition

for panel rehearing, it is ordered that the petition for panel

rehearing is DENIED. No member of the panel nor Judge in regular

active service of this Court having requested that the Court be

polled on rehearing en banc (Federal Rules of Appellate Procedure

and Local Rule 35), the suggestion for Rehearing En Banc is DENIED.