       IN THE UNITED STATES COURT OF APPEALS
                FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                Fifth Circuit

                                             FILED
                                                            June 9, 2009

                              No. 08-30086              Charles R. Fulbruge III
                                                                Clerk

THOMAS J ALLEMAN, Etc

                                       Plaintiff
v.

OMNI ENERGY SERVICES CORPORATION

                                       Defendant - Third Party Plaintiff -
                                       Appellant

AIG INSURANCE COMPANY

                                       Third Party Plaintiff - Appellant

v.

W & T OFFSHORE INC

                                       Third Party Defendant - Appellee
___________________________________________________________

MARK R PARKER, Etc: ET AL

                                       Plaintiffs

v.

OMNI ENERGY SERVICES CORPORATION

                                       Defendant- Third Party Plaintiff -
                                       Appellant

AIG INSURANCE COMPANY
                              No. 08-30086


                                        Third Party Plaintiff - Appellant

v.

W & T OFFSHORE INC

                                       Third Party Defendant - Appellee
___________________________________________________________

RONALD LEE BART FONTENOT; MARY EVE FONTENOT

                                        Plaintiffs - Appellants

v.

ERNIE DALE SMITH

                                        Defendant - Appellee

OMNI ENERGY SERVICES CORPORATION; AIG INSURANCE COMPANY

                                        Defendants - Third Party Plaintiffs
                                        - Appellants - Appellees

v.

W & T OFFSHORE INC

                                       Third Party Defendant - Appellee
___________________________________________________________

SHARON GAYLE HEBERT, Natural Tutrix on Behalf of Ariel Lynn
Hollier

                                        Plaintiff - Appellant

v.

ERNIE DALE SMITH



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                              No. 08-30086

                                        Defendant - Appellee

OMNI ENERGY SERVICES CORPORATION; AIG INSURANCE COMPANY

                                        Defendants - Third Party Plaintiffs
                                        - Appellants - Appellees

v.

W & T OFFSHORE INC

                                       Third Party Defendant - Appellee
___________________________________________________________

BRIAN LEE HOLLIER

                                        Plaintiff - Appellant

v.

ERNIE DALE SMITH

                                        Defendant - Appellee

OMNI ENERGY SERVICES CORPORATION; AIG INSURANCE COMPANY

                                        Defendants - Third Party Plaintiffs
                                        - Appellants - Appellees

v.

W & T OFFSHORE INC

                                        Third Party Defendant - Appellee


               Appeal from the United States District Court
                   for the Eastern District of Louisiana
                         USDC No. 2:06-CV-2622
                         USDC No. 2:06-CV-2621
                         USDC No. 2:06-CV-2620


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                                  No. 08-30086

                            USDC No. 2:05-CV-1654
                            USDC No. 2:05-CV-1653


Before SMITH, GARZA, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
       In this appeal, we must determine difficult questions of applicable law
following a tragic helicopter accident in the Gulf of Mexico. The two key issues
before us are (1) whether a contract for helicopter services to oil platforms is by
its nature a maritime contract, and (2) where to draw the line between the Outer
Continental Shelf Lands Act (“OCSLA”) and the Death on the High Seas Act
(“DOHSA”). Bert Hollier (“Hollier”) and other passengers of the helicopter sued
the company that operated the helicopter, Omni Energy Services Corp. (“Omni”);
Omni then sought indemnity from W&T Offshore, Inc. (“W&T”), which operated
the oil platform and had contracted with Omni to fly employees to its platforms.
The district court granted summary judgment in favor of W&T finding that a
contract for helicopter services was not a maritime contract and partial
summary judgment in favor of Omni finding that DOHSA applied to Hollier’s
tort claims because the death occurred after Hollier fell into the ocean and
floated there for more than two hours. We affirm the district court’s judgment
on the maritime contract issue and reverse and remand on the DOHSA issue.
                        FACTS AND PROCEEDINGS
      The facts of the case are not in dispute. Omni and W&T had a general
contract setting out the terms and conditions under which Omni would provide
services to W&T. The contract includes a mutual indemnity clause, under which
each company indemnifies the other against claims made by its employees. The
contract also has a choice of law clause, stating, “The general maritime law of
the United States shall govern this Contract.” In a separate letter agreement,




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                                   No. 08-30086

Omni agreed to provide “certain aircraft services in accordance with the [general
contract].” This letter agreement lays out the details of the provision of services.
      Pursuant to the letter agreement, on December 17, 2004, an Omni
helicopter piloted by Omni employee Ernie Smith was flying three W&T
subcontractors between W&T offshore platforms. Smith landed the helicopter
on the helipad, but a boat landing stored on or near the helipad made it
impossible for the passengers to exit. He then attempted to move the helicopter,
but in doing so, the main rotor struck the boat landing. The helicopter skidded
around the helipad, then fell into the Gulf of Mexico. Passengers Thomas
Alleman and Mark Parker were injured. The third passenger, Hollier, floated
in the water for two hours and died of a heart attack while he was being rescued.
      In the district court, several cases were combined to create this
consolidated action.    On several cross-motions for summary judgment, the
district court held that: (1) the contracts between Omni and W&T are governed
by OCSLA, not maritime law, and under OCSLA, Louisiana law, and specifically
the Louisiana Oilfield Indemnity Act (“LOIA”), applies, making the indemnity
provisions invalid; and (2) Hollier’s tort claims are governed under DOHSA, not
OCSLA.
      Omni now appeals, arguing that the contract should be governed by
maritime law and therefore the indemnity provision is valid.           Hollier also
appeals, arguing that OCSLA should govern his tort claims.
                           STANDARD OF REVIEW
      We review the district court’s grant of summary judgment de novo.
Settlement Funding, LLC v. TransAmerica Occidental Life Ins. Co., 555 F.3d
422, 424 (5th Cir. 2009). Summary judgment is appropriate where “there is no
genuine issue as to any material fact and . . . the movant is entitled to judgment
as a matter of law.” F ED. R. C IV. P. 56(c).
                                  DISCUSSION

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                                       No. 08-30086

A. Indemnity and Contribution Claims
       OCSLA extends the laws and jurisdiction of the United States to the
seabed and artificial islands on the outer Continental Shelf, including offshore
platforms. 43 U.S.C. § 1333(a)(1). The laws of the adjacent state also apply, to
the extent they are not inconsistent with federal law. Id. § 1333(a)(2)(A). The
state adjacent to the W&T platform involved in the helicopter accident is
Louisiana, so Louisiana law would apply if OCSLA governs the contract. It is
undisputed that if OCSLA applies, LOIA would bar the indemnity provision of
Omni’s contract. See L A. R EV. S TAT. § 9:2780. Therefore, the dispositive issue
is whether OCSLA applies, as opposed to maritime law.
       We use a three-part test to determine whether OCSLA applies:
       (1) The controversy must arise on a situs covered by OCSLA (i.e. the
       subsoil, seabed, or artific[i]al structures 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.
Union Tex. Petroleum Corp. v. PLT Eng’g, Inc., 895 F.2d 1043, 1047 (5th Cir.
1990). The parties do not dispute that the controversy arose on an offshore
platform and that Louisiana law is consistent with federal law.1 The sole issue,
then, is whether maritime law applies to the contract of its own force.2 If so,
OCSLA would not apply.
       Determining whether a contract is maritime is a well-trod but not
altogether clear area of the law. See Hoda v. Rowan Cos., Inc., 419 F.3d 379, 380
(5th Cir. 2005) (discussing whether our case law offers “the soundest


       1
        As no appeal was taken on these issues, we express no opinion as to whether parts
1 and 3 of the test were actually met in this case.
       2
         The contract contains a choice of law provision stating that maritime law will govern,
but parties cannot choose to be governed by maritime law when OCSLA applies. See Texaco
Exploration & Prod., Inc. v. AmClyde Engineered Prods. Co., Inc., 448 F.3d 760, 772 & n.8 (5th
Cir. 2006).

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                                  No. 08-30086

jurisprudential approach” to this area of law); Planned Premium Servs. of La.,
Inc. v. Int’l Ins. Agents, Inc., 928 F.2d 164, 165 (5th Cir. 1991) (“The waters
become murky when we seek the precise parameters of a maritime contract.”);
Domingue v. Ocean Drilling & Exploration Co., 923 F.2d 393, 393–94 (5th Cir.
1991) (“Once more we embark on a voyage through the familiar marshland area
of the law set aside for classifying the oil and gas exploration services contract
as wet or dry.”). Because the general contract does not provide for specific work
to be done, it and the letter agreement are considered as a single contract. See
Davis & Sons, Inc. v. Gulf Oil Corp., 919 F.2d 313, 315 (5th Cir. 1990).
      In determining whether that contract is a maritime contract, we look to
the “nature and subject-matter” of the contract, determining whether it has
“reference to maritime service or maritime transactions.” New England Mut.
Marine Ins. Co. v. Dunham, 78 U.S. 1, 26–27 (1870); see Exxon Corp. v. Cent.
Gulf Lines, Inc., 500 US. 603, 611 (1991) (“[T]he nature and subject-matter of the
contract at issue should be the crucial consideration in assessing admiralty
jurisdiction.” (internal quotation omitted)). The contract need not, however, be
purely one on the high seas. In a “maritime case about a train wreck,” the
Supreme Court said that “[t]o ascertain whether a contract is a maritime one,
we cannot look to whether a ship or other vessel was involved in the dispute, as
we would in a putative maritime tort case.” Norfolk S. Ry. Co. v. Kirby, 543 U.S.
14, 18, 23 (2004). “Instead, the answer depends upon the nature and character
of the contract, and the true criterion is whether it has reference to maritime
service or maritime transactions.” Id. at 24 (internal quotation and alteration
omitted).
      In this circuit, we utilize the two-part inquiry laid out in Davis & Sons,
919 F.2d 313, to determine whether a contract is maritime. We look both to the
“historical treatment in the jurisprudence” as well as to six fact-specific factors:



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                                    No. 08-30086

       1) what does the specific work order in effect at the time of injury
      provide? 2) what work did the crew assigned under the work order
      actually do? 3) was the crew assigned to work aboard a vessel in
      navigable waters; 4) to what extent did the work being done relate
      to the mission of that 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 injury?
Id. at 316. Analyzing these factors, it is clear that Omni was instructed to fly
workers to an oil platform, and that the workers were simple passengers on their
way to the platform. We are left, however, with the central question of whether
a contract to transport workers to an oil platform by helicopter is a maritime
contract. Is the “nature and subject-matter” of transportation by helicopter a
“maritime service”?
      Omni points us to tort cases where admiralty jurisdiction applies to
helicopter accidents that occur over water.         See Offshore Logistics, Inc. v.
Tallentire, 477 U.S. 207, 218–219 (1986). In Tallentire, the Court said that
“admiralty jurisdiction is appropriately invoked here under traditional principles
because the accident occurred on the high seas and in furtherance of an activity
bearing a significant relationship to a traditional maritime activity.”            Id.
“Although the decedents were killed while riding in a helicopter and not a more
traditional maritime conveyance, that helicopter was engaged in a function
traditionally performed by waterborne vessels: the ferrying of passengers from
an ‘island,’ albeit an artificial one, to the shore.” Id. at 219. Similarly, this court
has held that “[t]he crash of the deceased’s helicopter, while it was being used
in place of a vessel to ferry personnel and supplies to and from offshore drilling
structures, bears the type of significant relationship to traditional maritime
activity which is necessary to invoke admiralty jurisdiction.”             Ledoux v.
Petroleum Helicopters, Inc., 609 F.2d 824, 824 (5th Cir. 1980). So, helicopter
transport to offshore platforms bears a “significant relationship to a traditional



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                                   No. 08-30086

maritime activity” and essentially replaces a “function traditionally performed
by waterborne vessels.”
      But the tests for maritime contract law and maritime tort law have long
been different. See State Indus. Comm’n of N.Y. v. Nordenholt Corp., 259 U.S.
263, 271 (1922). Maritime jurisdiction covers torts that occur on the high seas
and bear a significant relationship to traditional maritime activity. Executive
Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 268 (1972). Conversely,
maritime contract law applies based on the nature and character of the contract,
rather than looking to where it occurred. Norfolk, 543 U.S. at 24. In Executive
Jet, the Supreme Court specifically addressed both whether maritime tort law
and other maritime law applied to aircraft. 409 U.S. 249. The Court stated
clearly that “in contexts other than tort, Congress and the courts have
recognized that . . . aircraft are not subject to maritime law.” Id. at 270; see also
id. at 261–62 (listing the numerous ways in which Congress and the courts have
excluded aircraft from typical maritime law). “Through long experience, the law
of the sea knows how to determine whether a particular ship is seaworthy, and
it knows the nature of maintenance and cure. It is concerned with maritime
liens, the general average, captures and prizes, limitation of liability, cargo
damage, and claims for salvage.” Id. at 270. These rules and concepts “are
wholly alien to air commerce, whose vehicles operate in a totally different
element, unhindered by geographical boundaries and exempt from the
navigational rules of the maritime road.”         Id.   “The matters with which
admiralty is basically concerned have no conceivable bearing on the operation
of aircraft, whether over land or water.” Id. This court has also clearly held that
helicopters are not “vessels” for purposes of maritime commerce, even if they fly
over the sea. Barger v. Petroleum Helicopters, Inc., 692 F.2d 337, 339–40 (5th
Cir. 1982).



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                                       No. 08-30086

       The contract at issue was to provide helicopters and other aircraft to ferry
workers between platforms and the shore. If those aircraft crash on the high
seas, maritime tort jurisdiction applies.           Tallentire, 477 U.S. at 219.          But
helicopters and other aircraft are not generally governed by maritime law in
their normal operations.         Indeed, as the subject matter of this contract is
aviation services, which are not governed by maritime law, we hold that a
contract to ferry workers to offshore oil platforms is not a maritime contract.
Because federal maritime law does not apply of its own force, see PLT, 895 F.2d
at 1047, OCSLA, and thus LOIA, applies, rendering the indemnity provision of
the contract void and unenforceable. L A. R EV. S TAT. § 9:2780.
B. Tort Claims
       The district court held that DOHSA governed Hollier’s tort claims.
DOHSA provides a right of action for any death occurring on the high seas
beyond a marine league from the shore, or, in the case of a commercial aviation
accident, more than 12 nautical miles from shore. See 46 U.S.C. § 761 (2000).3
OCSLA applies to accidents “actually occurring” on oil platforms, Rodrigue v.
Aetna Cas. & Sur. Co., 395 U.S. 352, 366 (1969), and applies state law as
surrogate federal law on those platforms. 43 U.S.C. § 1333.
       “[I]n Rodrigue, the Court held that an admiralty action under DOHSA
does not apply to accidents ‘actually occurring’ on these artificial islands, and
that DOHSA therefore does not preclude the application of state law as adopted
federal law through OCSLA to wrongful death actions arising from accidents on
offshore platforms.” Tallentire, 477 U.S. at 217–18 (citing Rodrigue, 395 U.S. at
366). This is because “Congress did not intend . . . that these island-platforms




       3
          DOHSA was amended in October 2006. See 46 U.S.C. § 30301. Because the events
at issue in this case occurred in 2004, we apply the version of DOHSA that was in effect at the
time.

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be within admiralty’s jurisdiction.” In re Dearborn Marine Serv., Inc., 499 F.2d
263, 272–73 (5th Cir. 1974).
          The facts of this case are undisputed. The helicopter landed on the deck
of the oil platform; the pilot then tried to reposition it, and in so doing hit a boat
landing; after skidding on the helipad, the helicopter fell into the sea with its
occupants. The helicopter had completed its journey and was being positioned
on the helipad. This accident “actually occurred” on the oil platform and OSCLA
applies. It does not impact our analysis that the victims fell into the sea after
the accident occurred on the platform. See Smith v. Pan Air Corp., 684 F.2d
1102, 1110 (5th Cir. 1982) (“[W]e have applied OCSLA and, consequently, state
law, to incidents in which platform workers who were the victims of torts
originating on these artificial islands were not actually injured or killed until
they fell, jumped, or were pushed into the surrounding seas.”); Dearborn, 499
F.2d at 273 (“Congress did not intend that application of state law necessarily
should cease at the physical boundaries of the platform. The same concerns may
be equally applicable to accidents fortuitously consummated in the surrounding
sea.”).
                                  CONCLUSION
          We AFFIRM the district court’s grant of partial summary judgment in
favor of W&T finding that OCSLA applies to the contractual indemnity and
contribution claims. We REVERSE the district court’s grant of partial summary
judgment in favor of Omni finding that DOHSA governs Hollier’s tort claims,
and REMAND this case to the district court for further proceedings consistent
with this opinion.




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