                           REVISED MARCH 20, 2013

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

                                                                              FILED
                                                                           February 1, 2013
                                        No. 12-20150
                                                                            Lyle W. Cayce
                                                                                 Clerk
FRANCIS BARKER, JR.,

                Plaintiff - Appellant

v.

HERCULES OFFSHORE, INC; HALL-HOUSTON EXPLORATION II, L.P.;
HALL-HOUSTON EXPLORATION PARTNERS, L.L.C.; HALL-HOUSTON
EXPLORATION COMPANY,

                Defendants - Appellees



                    Appeals from the United States District Court
                         for the Southern District of Texas


Before HIGGINBOTHAM, CLEMENT, and HAYNES, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:*
      After watching his friend and co-worker die as a result of an accident on
a jack-up rig attached to the Outer Continental Shelf (“OCS”), Francis Barker
filed suit in Texas state court seeking relief under general maritime law, the
Longshore and Harbor Workers’ Compensation Act (“LHWCA”), and Texas tort
law. The District Court for the Southern District of Texas denied Barker’s


      *
          Judge Haynes concurs in this opinion except for section I.b., which she does not join.
                                   No. 12-20150

motion for remand and granted summary judgment to Defendants Hall-Houston
and Hercules Offshore under Texas law or, in the alternative, under general
maritime law. On appeal Barker challenges both the denial of the remand
motion and the grant of summary judgment. For the following reasons, we
AFFIRM.
                        FACTS AND PROCEEDINGS
      Hall-Houston Exploration II is the owner of a federal mineral lease located
on the Outer Continental Shelf off the coast of Texas and outside of Texas state
waters. In January 2008, Hall-Houston contracted with Hercules Offshore to
obtain a mobile offshore jack-up drilling unit or drilling rig, known as the
Hercules 251, to drill offshore oil and gas wells including the well at issue in this
case. Hall-Houston also contracted with Frank’s Casing to run a 60 inch casing
over the well before drilling commenced.
      On January 27, 2008, Barker, a welder employed by Frank’s, was
performing work onboard the Hercules 251 rig in preparation for running the
casing over the well. At the time of the incident the drilling rig was in the
“jacked-up” position, meaning that its hull and work deck were lifted completely
out of the water. The legs of the rig extended downward through the water into
the seabed which provided the means of support. In order to drive the casing
over the well, Frank’s employees had to enlarge a hole in the pollution pan,
which sat about six feet below the rig’s floor. Unbeknownst to the Frank’s crew,
the pollution pan was not welded to the rig structure as is customary in the
standard jack-up configuration, but instead was held in place by straps that
were in turn welded to the structure. Barker and his long-time friend Frank
Broussard were told to, and did, cut the straps supporting the pan, causing the
pan to fall 100 feet into the ocean. Frank Broussard was standing on the
pollution pan when it fell, and although he was initially able to hang on to a
beam for support, he lost his grip and fell into the ocean, striking another beam


                                         2
                                  No. 12-20150

on the way down. When the incident occurred Barker was standing about two
feet from the pan with his back turned. Although he did not see the incident
itself, he turned around in time to witness his friend fall to his death.
      Barker filed suit against Hercules and Hall-Houston (“Defendants”) in
Texas state court. Although Barker admits he was not physically injured in the
incident, he claims to have suffered severe emotional distress from witnessing
his friend’s death. He also alleges various physical injuries resulting from that
emotional injury.
      Barker alleged three causes of action in his original petition. He sought
general, special, and punitive damages for negligence, gross negligence, and
wanton disregard for his safety and that of Broussard under general maritime
law or, in the alternative, under 33 U.S.C. § 905(b) of the Longshore and Harbor
Workers’ Compensation Act. He also sought general, special, and punitive
damages under Texas tort law to the extent that Texas tort law supplemented
or supplanted general maritime law.
      Defendants removed this action to the Southern District of Texas under
the jurisdictional grant contained in the Outer Continental Shelf Lands Act
(“OCSLA”). The district court denied Barker’s motion to remand and granted
summary judgment to Defendants, holding that Barker could not recover under
either Texas law or maritime law. On appeal, Barker challenges the district
court’s decisions with respect to both his motion to remand and the Defendants’
motion for summary judgment.
                          STANDARD OF REVIEW
      This court reviews decisions denying remand de novo.            Maguno v.
Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 722 (5th Cir. 2002). On a motion
to remand, “[t]he removing party bears the burden of showing that federal
jurisdiction exists and that removal was proper.” Id. at 723. “Any ambiguities



                                        3
                                       No. 12-20150

are construed against removal because the removal statute should be strictly
construed in favor of remand.” Id.
      “This court reviews a district court’s grant of summary judgment de novo,
applying the same standards as the district court.” Greater Houston Small
Taxicab Co. Owners Ass’n v. City of Houston, 660 F.3d 235, 238 (5th Cir. 2011).
“Summary judgment is warranted if the pleadings, the discovery and disclosure
materials on file, and any affidavits show there is no genuine [dispute] as to any
material fact and that the movant is entitled to judgment as a matter of law.”
Id. (alteration in original).
                                     DISCUSSION
I.    Motion to Remand
      The district court held, and Defendants maintain on appeal, that Barker’s
suit was properly removed to federal court because the Outer Continental Shelf
Lands Act provides federal subject matter jurisdiction over this action pursuant
to 43 U.S.C. § 1349(b)(1). Barker concedes that OCSLA provides original federal
subject matter jurisdiction as required for removal under 28 U.S.C. § 1441(a),
but nevertheless argues that removal was improper because maritime law
provides the rule of decision, and therefore this action can only be removed if no
defendant is a resident of the state where the suit is brought. See 28 U.S.C.
§ 1441(b) (2011).2 For the following reasons, we hold that removal of this action
was proper.
      a.      Background and application of OCSLA
      When it was passed in 1953, the purpose of OCSLA was to allocate to the
federal government “jurisdiction, control, and power of disposition” over “the
subsoil and seabed of the Outer Continental Shelf.”3 43 U.S.C. § 1332(1).

      2
              This is the version of the statute that was in effect when this suit was removed.
      3
             The Outer Continental Shelf consists of the seabed and natural resources
underlying the coastal waters greater than three geographical miles from the coastline. See

                                              4
                                  No. 12-20150

OCSLA asserts exclusive federal question jurisdiction over the OCS by
specifically extending “[t]he Constitution and laws and civil and political
jurisdiction of the United States . . . [to the OCS] and all installations and other
devices permanently or temporarily attached to the seabed . . . for the purpose
of exploring for, developing, or producing resources therefrom.” Id. § 1333(a)(1);
accord id. § 1349(b)(1); see also Recar v. CNG Producing Co., 853 F.2d 367, 370
(5th Cir. 1988) (acknowledging that “OCSLA invests [a] district court with
original federal question jurisdiction.”). The jurisdictional grant in OCSLA is
broad, covering a “wide range of activity occurring beyond the territorial waters
of the states.” Texaco Exploration & Prod., Inc. v. AmClyde Engineered Prods.
Co., 448 F.3d 760, 768 (5th Cir. 2006) amended on reh’g, 453 F.3d 652 (5th Cir.
2006) (quoting Demette v. Falcon Drilling Co., 280 F.3d 492, 495 (5th Cir. 2002),
overruled on other grounds by Grand Isle Shipyard v. Seacor Marine, LLC, 589
F.3d 778 (5th Cir. 2009) (en banc)).
       A plaintiff does not need to expressly invoke OCSLA in order for it to
apply. Amoco Prod. Co. v. Sea Robin Pipeline Co., 844 F.2d 1202, 1205 (5th Cir.
1988) (“In determining federal court jurisdiction, we need not traverse the
Serbonian Bog of the well pleaded complaint rule because § 23 of OCSLA
expressly invests jurisdiction in the United States District Courts.” (citation
omitted)). To determine whether a cause of action arises under OCSLA, the
Fifth Circuit applies a but-for test, asking whether: (1) the facts underlying the
complaint occurred on the proper situs; (2) the plaintiff’s employment furthered
mineral development on the OCS; and (3) the plaintiff’s injury would not have
occurred but for his employment. See Demette, 280 F.3d at 496; Recar, 853 F.2d
at 369. There is no dispute that these requirements are satisfied on the present
record.



43 U.S.C. §§ 1301(a), 1331(a).

                                         5
                                  No. 12-20150
      OCSLA covers, among other situs, a device “permanently or temporarily
attached to the seabed [of the OCS] . . . for the purpose of exploring for,
developing, or producing resources therefrom.” 43 U.S.C. § 1333(a)(1)). A
jack-up rig attached to the Outer Continental Shelf (like the one at issue in this
case) qualifies as such a device. Demette, 280 F.3d at 498. Accordingly, the
jack-up rig is a proper OCSLA situs for the purpose of this tort action. See
Grand Isle, 589 F.3d at 784-85.
      By his own admission Barker’s employment on the jack-up rig was directly
related to the development of minerals or other natural resources on the OCS.
See Tenn. Gas Pipeline v. Houston Cas. Ins. Co., 87 F.3d 150, 154-55 (5th Cir.
1996). Furthermore, it is clear that but for his employment, Barker would not
have been involved in the incident forming the basis of this suit. See id. at 155.
Therefore, as the parties both acknowledge, this action arises under OCSLA.
      b.    Choice of law under OCSLA
      The more difficult question in this appeal is whether federal, state, or
maritime law provides the substantive rule of decision for Barker’s OCSLA
claim. For the reasons explained below, the panel chooses not to decide this
issue because the result is the same regardless of which law is applied.
      Although my colleagues do not join this section of the opinion discussing
choice of law under OCSLA, I write separately to offer my thoughts on an area
that has given rise to varying conclusions over the last few years. OCSLA
provides a federal cause of action for incidents arising on the OCS, and also
extends federal substantive law to cover these incidents. 43 U.S.C. § 1333(a)(1);
Hufnagel v. Omega Serv. Indus., Inc., 182 F.3d 340, 349 (5th Cir. 1999).     The
Act borrows from state law to fill any gaps in federal law “[t]o the extent that
[state law is] applicable and not inconsistent with this subchapter or with other
Federal laws and regulations.” 43 U.S.C. § 1333(a)(2)(A). However, when
maritime law applies of its own force (meaning that a court could otherwise have

                                        6
                                 No. 12-20150
admiralty jurisdiction over the claim), it displaces not only state law, but any
federal law that might have applied to the action. Union Tex. Petroleum Corp.
v. PLT Eng’g, Inc., 895 F.2d 1043, 1047 (5th Cir. 1990).
      As courts in this circuit have acknowledged, the application of maritime
law under OCSLA was not explicitly contemplated by its framers. Rather, the
application of maritime law under OCSLA is the result of both our long-standing
maritime precedent, as well as gaps within the OCSLA statute itself. As one
court has noted:
      The legislative history of [OCSLA] clearly shows that Congress
      intended to preempt the application of maritime law to activities on
      platforms on the OCS. Unfortunately . . . the statute itself does not
      say this. . . . Therefore, in this Circuit, federal law as defined by
      OCSLA does not apply if maritime law applies “of its own force.”


Walsh v. Seagull Energy Corp., 836 F. Supp. 411, 415-16 (S.D. Tex. 1993) (citing
Rodrigue v. Aetna Cas. & Sur. Co., 395 U.S. 352, 363-66 (1969) and Smith v.
Penrod Drilling Corp., 960 F.2d 456, 459 (5th Cir. 1992), overruled on other
grounds by Grand Isle, 589 F.3d 778)). This circuit has explicitly recognized the
tension between congressional intent and the application of maritime law under
OCSLA:
      [W]e note that our caselaw arguably conflicts with OCSLA. As
      explained in Rodrigue, Congress intended that, after the passage of
      OCSLA, the oil and gas exploration industries would be governed by
      state law. Several of our cases recognize Congress’s intention to
      limit the application of maritime law in oil and gas industry cases.
      See Matte [v. Zapata Offshore Co.], 784 F.2d [628,] 630 [(5th Cir.
      1986)]; Thurmond v. Delta Well Surveyors, 836 F.2d 952, 954-55
      (5th Cir. 1988); Union Texas Petroleum, 895 F.2d at 1048-49. The
      Supreme Court has criticized our “expansive” view of maritime
      employment in Herb’s Welding v. Gray, 470 U.S. 414, 422-23 (1985).
      Only our en banc court, however, can consider whether our
      expansive view of maritime contracts similarly should be narrowed.




                                    7
                                    No. 12-20150
Smith, 960 F.2d at 460 (emphasis in original). Although the application of
maritime law under OCSLA may be contrary to the intention of Congress, we
are bound by our precedent to apply maritime law as the substantive rule of
decision where it otherwise applies “of its own force.” Union Tex. Petroleum, 895
F.2d at 1047. It is to this question that I now turn.
      In order for maritime law to apply to an OCSLA tort action such as this
one, there must be both a “maritime situs and a connection to traditional
maritime activity.”     Hufnagel, 182 F.3d at 351.        The Supreme Court has
repeatedly emphasized the importance of this two-factor test in tort actions, as
distinguished from a mere “locality rule.” In Executive Jet Aviation, Inc. v. City
of Cleveland, Ohio, the Supreme Court recognized that:
      [T]here has existed over the years a judicial, legislative, and
      scholarly recognition that, in determining whether there is
      admiralty jurisdiction over a particular tort or class of torts, reliance
      on the relationship of the wrong to traditional maritime activity is
      often more sensible and more consonant with the purposes of
      maritime law than is a purely mechanical application of the locality
      test.

409 U.S. 249, 261 (1972). This holding was extended to all maritime torts by
Foremost Insurance Co. v. Richardson, after the Supreme Court took note of “the
theoretical and practical problems inherent in . . . applying the traditional
locality rule.” 457 U.S. 668, 673-74 (1982). In Sisson v. Ruby, the Court
emphasized that the two-part test should be applied broadly, looking to “the
general features of the type of incident involved to determine whether such an
incident is likely to disrupt commercial activity.” 497 U.S. 358, 363 (1990). And
in Jerome B. Grubart, Inc., v. Great Lakes Dredge & Dock Co., the Supreme
Court officially adopted the two-prong test we use today, noting that, “[a]fter
Sisson . . . a party seeking to invoke federal admiralty jurisdiction . . . over a tort




                                          8
                                   No. 12-20150
claim must satisfy conditions both of location and of connection with maritime
activity.” 513 U.S. 527, 534 (1995).
      To satisfy the first prong of this test, a plaintiff must show that the tort at
issue either “occurred on navigable water,” or if the injury is suffered on land,
that it was “caused by a vessel on navigable water.” Id. In this circuit, jack-up
drilling platforms (like the one at issue in this suit) are considered vessels under
maritime law. Demette, 280 F.3d 498 n.18 (collecting cases); Smith, 960 F.2d at
460; but see Rodrigue, 395 U.S. at 360 (holding that fixed drilling platforms
“were islands, albeit artificial ones. . . . [and that] drilling platforms are not
within admiralty jurisdiction.”). Even though the first prong of this test is
satisfied, however, maritime law will not apply unless this suit also involves a
“connection to traditional maritime activity.” Hufnagel, 182 F.3d at 351; accord
Exec. Jet, 409 U.S. at 261 (emphasizing the importance of this second factor).
      To satisfy the second prong of the maritime requirement, a plaintiff must
show that the incident caused a “potentially disruptive impact on maritime
commerce,” and that “the general character of the activity giving rise to the
incident shows a substantial relationship to traditional maritime activity.” Great
Lakes, 513 U.S. at 534 (citations and internal quotation marks omitted). Barker
makes no serious allegation that any part of the incident, or any of Defendants’
failures, affected the jack-up rig’s movement across water or affected the
movement of any other ships. This tort arose in the ordinary course of offshore
drilling, when the vessel was attached to the seabed and not scheduled for
travel. In the absence of an explanation as to why a single worker injury upon
a jacked-down vessel has a potentially disruptive impact on maritime commerce,
I would not find the first part of the connection inquiry satisfied.
      The second part of the connection test looks to whether the “tortfeasor’s
activity . . . on navigable waters is so closely related to activity traditionally
subject to admiralty law that the reasons for applying special admiralty rules

                                         9
                                         No. 12-20150
would apply in the suit at hand.” Great Lakes, 513 U.S. at 539-40. In applying
this test, courts look generally to the activity giving rise to the instant suit.
Sisson, 497 U.S. at 365 (“[W]e need not ascertain the precise cause of the
[incident] to determine what ‘activity’ Sisson was engaged in; rather, the
relevant activity was the storage and maintenance of a vessel at a marina on
navigable waters.”). The activity giving rise to this suit was installing casing in
furtherance of oil and gas drilling on the Outer Continental Shelf. So classified,
I would hold that the general character of this suit does not bear a substantial
relationship to traditional maritime activity.4
       The Supreme Court has stated in no uncertain terms that “exploration and
development of the Continental Shelf are not themselves maritime commerce,”
Herb’s Welding, 470 U.S. at 425, and activities upon “drilling platforms [are] not
even suggestive of traditional maritime affairs.” Id. at 422. Although this
circuit had previously adopted a different view, the Supreme Court in Herb’s
Welding rejected the Fifth Circuit’s view that “offshore drilling is maritime
commerce,” finding that position to be “untenable,” in light of the LHWCA and
other congressional dictates. Id. at 421; see id at 421-24 (expressly rejecting the
“Fifth Circuit’s expansive view of maritime employment.”).
       Furthermore, even if traditional maritime principles would lead to a
conclusion that events which occur on jack-up rigs are maritime in nature, we
are bound to look to the intention of Congress when interpreting which law
applies under OCSLA. See Rodrigue, 395 U.S. at 361 (“Even if the admiralty law
would have applied to the deaths occurring in these cases under traditional



       4
          Although this circuit has varied in the level of generality used in classifying tort
actions, see, e.g., Strong v. B.P. Exploration & Prod., Inc., 440 F.3d 665, 669-70 (5th Cir. 2006),
the Supreme Court has cautioned against looking narrowly at the specific cause of the harm
in applying this test, as that would require courts to “decide . . . the merits of the causation
issue to answer the legally and analytically antecedent jurisdictional question.” Sisson, 497
U.S. at 365.

                                               10
                                   No. 12-20150
principles, the legislative history shows that Congress did not intend that
result.”).   This circuit has already acknowledged the tension between
congressional intent and the application of maritime law under OCSLA.
However, as noted by Judge DeMoss in his dissenting opinion in Demette, we
must be particularly mindful of Congress’s 1978 amendment to OCSLA, which
expanded the reach of OCSLA from “fixed structures” to “all installations and
other devices permanently or temporarily attached to the seabed.” 43 U.S.C.
§ 1333(a)(1) (emphasis added). This amendment “made clear that Federal law
[as opposed to maritime law] is to be applicable to all activities on all devices in
contact with the seabed for exploration, development, and production” of
resources, Demette, 280 F.3d at 507 (DeMoss, J., dissenting) (emphasis added)
(quoting H.R. Rep. No. 95-590 (1978)), including devices such as jack-up drilling
rigs.
        I certainly do not disagree that, under our current precedent, incidents
which occur on jack-up rigs may bear a substantial relationship to traditional
maritime activity when they arise out of or implicate the rig’s movement across
water. Thus, for example, incidents on jack-up rigs docked at marinas may be
classified as maritime in nature, even when those rigs are engaged for the
purpose of offshore drilling. Coats v. Penrod Drilling Corp., 61 F.3d 1113, 1119
(5th Cir. 1995) (en banc) (holding that worker injuries in the course of repair and
maintenance “can have a disruptive impact on maritime commerce by stalling
or delaying the primary activity of the vessel.”); see also Sisson, 497 U.S. at 362,
367 (noting that “docking a vessel at a marina on a navigable waterway is a
common, if not indispensable, maritime activity,” and that a fire upon such a
vessel could “spread to nearby commercial vessels or make the marina
inaccessible to such vessels.” (citation omitted)). This circuit also recognizes that
maritime law applies to incidents arising from “repair or maintenance work



                                         11
                                       No. 12-20150
[performed from a vessel] on a navigable waterway,” Great Lakes, 513 U.S. at
540, including work upon jack-up drilling rigs.
       However, our case law reflects that incidents which occur as a result of
offshore drilling are, for the reasons stated above, generally not maritime in
nature. See Texaco Exploration & Prod., Inc. v. AmClyde Engineered Products
Co., Inc., 448 F.3d 760, 771 amended on reh’g on different grounds, 453 F.3d 652
(5th Cir. 2006) (“Texaco’s complaint . . . arises not from traditionally maritime
activities but from the development of the resources of the Outer Continental
Shelf . . . [t]o the extent that maritime activities surround the construction work
underlying the complaint, any connection to maritime law is eclipsed by the
construction’s connection to the development of the Outer Continental Shelf”);
Hufnagel, 182 F.3d at 352 (“Construction work on fixed offshore platforms bears
no significant relation to traditional maritime activity”); Thibodeaux v. Grasso
Prod. Mgmt. Inc., 370 F.3d 486, 493 (5th Cir. 2004) (“Both this court and the
Supreme Court have expressed the opinion that work commonly performed on
oil production platforms is not maritime in nature”); accord Sohyde Drilling &
Marine Co. v. Coastal States Gas Producing Co., 644 F.2d 1132, 1136-38 (5th Cir.
1981); In re Dearborn Marine Serv., Inc., 499 F.2d 263, 272-73 (5th Cir. 1974);
Dozier v. Rowan Drilling Co., 397 F. Supp. 2d 837, 850 (S.D. Tex. 2005).5

       5
               Despite Barker’s allegations to the contrary, contract cases with similar fact
patterns are not binding on whether this tort action is maritime in nature, since tort and
contract cases apply different tests to determine whether maritime law applies. Dozier, 397
F. Supp. 2d at 849 (citing Hufnagel, 182 F.3d at 351 and Great Lakes, 513 U.S. at 534); accord
Grand Isle, 589 F.3d 778. We also note that some such cases are of limited precedential value
after the Supreme Court’s decision in Herb’s Welding, supra. As this court noted in Smith v.
Penrod Drilling:

       After Herb’s Welding, our cases that propound the maritime nature of offshore
       drilling-related contracts have been limited to their facts. See Union Texas
       Petroleum, 895 F.2d at 1049; Lewis [v. Glendel Drilling Co.], 898 F.2d [1083,]
       1086 [(5th Cir. 1990)]. In each new case, a panel of this court must comb
       through a bewildering array of cases that rely upon inconsistent reasoning in
       the hope of finding an identical fact situation. Absent en banc reconciliation,

                                             12
                                       No. 12-20150
       Navigating this precedent I would conclude that, when determining
whether maritime law applies under the second part of the connection inquiry,
this court should look to whether the act which gave rise to the incident in
question—in this case, replacing casing over a well—was in furtherance of the
non-maritime activity of offshore oil exploration and drilling, or whether it was
related to repair and maintenance of a jack-up drilling rig for the purpose of
enabling the rig to move across water. I recognize that courts in this circuit have
not always followed this test with respect to incidents occurring on jack-up
drilling rigs. However, I consider this test to be a faithful application of both
Supreme Court precedent—which is structured to divorce the location of the
activity from the nature of the activity itself—as well as our own case law. See
Laredo Offshore Constructors, Inc. v. Hunt Oil Co., 754 F.2d 1223, 1230 (5th Cir.
1985) (“[I]n the context of oil and gas exploration on the Outer Continental Shelf,
admiralty jurisdiction and maritime law will only apply if the case has a
sufficient maritime nexus wholly apart from the situs of the relevant structure
in navigable waters.”); accord Union Tex. Petroleum, 895 F.2d at 1048 (“[T]he
principal obligation of PLT and the subcontractors was to build the gathering
line and connect it to the platform and the transmission line. These activities are
not traditionally maritime. Rather they are the subjects of oil and gas
exploration and production.”); Dozier, 397 F. Supp. 2d at 850.




       cases thus are decided on what seems to be a random factual basis. See Lewis,
       898 F.2d at 1084 (“[B]ecause of an apparently contradictory line of cases in our
       circuit and the uncertain policy underpinning our result, the appellant would
       justly ask ‘why?’”.)

960 F.2d at 461. We need not delve into the weeds of our contract-based case law here.
Although some of this confusion was clarified by our en banc court in Grand Isle, 589 F.3d 778,
it is worth noting that the difficulty in reconciling our precedent with the Supreme Court’s
dictate regarding the non-maritime nature of oil and gas drilling is not limited to maritime
torts.

                                              13
                                   No. 12-20150
      Barker and Broussard’s work on the jack-up rig likely falls into the first
category. Installing casing is part and parcel of the larger activity of exploring,
developing, and producing resources from the Outer Continental Shelf, and not,
as Barker maintains, of a “general character [that has a] substantial
relationship to traditional maritime activity.” Great Lakes, 513 U.S. at 534
(citations and internal quotation marks omitted).         Instead, the purpose of
installing the casing was to permit the jack-up rig and its crew to begin drilling
for oil, an activity that could have just as easily been done, and is done, on land.
Cf. Herb’s Welding, 470 U.S. at 425 (noting that “[t]here is nothing inherently
maritime about [building and maintaining pipelines]. The[se tasks] are also
performed on land, and their nature is not significantly altered by the marine
environment, particularly since exploration and development of the Continental
Shelf are not themselves maritime commerce”).
      Therefore the general character of this incident appears to be non-
maritime in nature. See Sisson, 497 U.S. at 363.
      c.     Removal of an OCSLA action
      In this case and others, however, the question of whether maritime law
applies is not always conclusively answered at the removal stage of a lawsuit.
There may be insufficient factual development at that time to determine either
the cause of the incident or the general character of the activity giving rise to it.
With this in mind, we note that we need not definitively determine whether
maritime or Texas law applies to this lawsuit, because under either theory,
removal was proper.
      Although we do not decide whether maritime law applies to this suit, we
acknowledge that when maritime law applies under OCSLA, maritime law will
displace the application of federal law and any supplemental state law. Tenn.
Gas, 87 F.3d at 154 (“While OCSLA was intended to apply to the full range of
disputes that might occur on the OCS, it was not intended to displace general

                                         14
                                  No. 12-20150
maritime law.”); Smith, 960 F.2d at 459 (“When an event occurs on an OCSLA
situs but also is governed by maritime law, maritime law controls.”). This
overlap has caused some confusion among courts considering removal of OCSLA
claims in which maritime law provides the substantive rule of decision, because
even though federal courts have original jurisdiction over maritime claims under
28 U.S.C. § 1333, they do not have removal jurisdiction over maritime cases
which are brought in state court. Romero v. Int’l Terminal Operating Co., 358
U.S. 354, 377-79 (1959). Instead, such lawsuits are exempt from removal by the
“saving-to-suitors” clause of the jurisdictional statute governing admiralty
claims, see id., and therefore may only be removed when original jurisdiction is
based on another jurisdictional grant, such as diversity of citizenship. In re
Dutile, 935 F.2d 61, 63 (5th Cir. 1991).
      The question before this court is whether maritime law, when it provides
the substantive rule of decision under OCSLA, abrogates OCSLA’s grant of
federal question jurisdiction and prohibits removal of an action filed in state
court absent complete diversity. Two previous panels of this circuit have
recognized the “conundrum” posed by the removal of OCSLA claims when
general maritime law provides the substantive law of decision. However, both
panels declined to rule on this issue, instead finding the cases removable on
other grounds. Hufnagel, 182 F.3d at 351 (holding that the claim at issue was
non-maritime in nature); Tenn. Gas, 87 F.3d at 156 (holding that “removal is
consistent with the second sentence of § 1441(b), if not the first”).
      In the absence of guidance from this court, district courts have fallen on
both sides of this issue. Some district courts have held that when maritime law
applies to an OCSLA claim, maritime law will deprive that suit of original
federal question jurisdiction under § 1441(a). See, e.g., Courts v. Accu-Coat
Servs., Inc., 948 F. Supp. 592, 595 (W.D. La. 1996) (“There is no concrete
evidence that Congress intended to supersede the language of § 1441 or have the

                                        15
                                   No. 12-20150
federal courts ignore the parties’ citizenship when it granted broad jurisdiction
under the OCSLA. . . . Based on the foregoing, the Court finds that independent
federal question jurisdiction does not exist.”); Walsh, 836 F. Supp. at 417 (“[T]he
sole question for this Court is a choice of law question: whether Walsh’s claim of
‘negligence’ against the operator of a drilling vessel on the OCS is necessarily an
action ‘arising under’ the laws of the United States, or simply one arising under
the general maritime law. Because the answer is the latter, Walsh has not pled
a cause on which Seagull may base removal.”); Fogleman v. Tidewater Barges,
Inc., 747 F. Supp. 348, 355-56 (E.D. La. 1990) (“The only possible . . . basis upon
which the defendants would have this Court exercise jurisdiction is under
OCSLA. However . . . in the instant case, OCSLA cannot be a basis for federal
question removal because the case necessarily has a maritime character.”).
      Other district courts, however, have recognized that “the question of
subject matter jurisdiction is entirely independent of choice of law analysis.”
Broussard v. John E. Graham & Sons, 798 F. Supp. 370, 373 (M.D. La. 1992).
As this circuit has acknowledged, “the decision to apply maritime law . . . has
nothing to do with whether or not a federal court has jurisdiction.” Dahlen v.
Gulf Crews, Inc., 281 F.3d 487, 492 (5th Cir. 2002). Rather, “[t]he sole question
. . . is whether OCSLA invests [a court] with original federal jurisdiction . . . [and
t]he fact that [a] case may be governed by the substantive principles of general
maritime law does not dictate remand.” Fallon v. Oxy USA, Inc., No. 2049, 2000
WL 1285397, at *3 (E.D. La. Sept. 12, 2000).
      We find the second line of cases to more accurately describe the case law
in this circuit. Maritime law, when it applies under OCSLA, displaces federal
law only as to the substantive law of decision and has no effect on the removal
of an OCSLA action. See Dahlen, 281 F.3d at 492. As will be explained below,
we base this holding on reasoning from three previous panels of this court, as
well as a straightforward reading of the OCLSA statute.

                                         16
                                      No. 12-20150
       As a primary matter, this court has emphasized that “the saving to
suitors” clause under general maritime law “does not guarantee [plaintiffs] a
nonfederal forum, or limit the right of defendants to remove such actions to
federal court where there exists some basis for federal jurisdiction other than
admiralty.” Tenn. Gas, 87 F.3d at 153 (emphasis in original). Instead, removal
of maritime cases is permissible as long as there is an independent basis for
federal jurisdiction. See id. Second, federal courts retain their original federal
question jurisdiction under OCSLA even when maritime law eventually provides
the substantive rule of decision. Recar, 853 F.2d at 369 (holding that a federal
court “may well have both admiralty jurisdiction under the general maritime law
and federal question jurisdiction by virtue of OCSLA.”). This means that
maritime law will not supplant OCSLA’s grant of federal question jurisdiction,
but that both maritime jurisdiction and OCSLA jurisdiction may exist side-by-
side. Third, following this precedent, we have recognized that OCSLA provides
a “basis for federal jurisdiction other than admiralty,” which may permit
removal even when maritime law provides the substantive rule of decision. See,
e.g, Morris v. T.E. Marine Corp., 344 F.3d 439, 444 (5th Cir. 2003); Dahlen, 281
F.3d at 492.6 Therefore, the application of maritime law does not displace
OCSLA’s grant of federal question jurisdiction.
       This conclusion is bolstered by the structure of OCSLA itself. Because
OCSLA’s jurisdictional provisions are independent from the sections outlining
the applicable law, “the application of the law selected by the choice-of-law
analysis [was not intended to] affect the independent basis for federal
jurisdiction conferred by the OCSLA.”             Kenneth G. Engerrand, Primer of


       6
              Both Morris and Dahlen are ultimately distinguishable from this case, although
both cases permitted removal. In Morris the Defendant was not a citizen of the state in which
the action was brought, so there was no question as to whether 28 U.S.C. § 1441(b) barred
removal, a matter which will be discussed below. In Dahlen maritime law was found not to
apply. However, the dictates of both cases provide strong support for our holding today.

                                            17
                                 No. 12-20150
Remedies on the Outer Continental Shelf, 4 LOYOLA MAR. L.J. 19, 25 (2005); see
also 43 U.S.C. §§ 1333(a)(1)-(2). Instead, choice of law and the evaluation of
subject-matter jurisdiction under OCSLA involve two distinct inquiries. See
generally Morrison v. Nat’l Austl. Bank Ltd., 130 S. Ct. 2869, 2877 (2010);
Hartford Fire Ins. Co. v. California, 509 U.S. 764, 812 (1993) (Scalia, J.,
dissenting) (discussing the distinction between federal subject matter
jurisdiction and choice of law). More importantly, however, OCSLA explicitly
provides that district courts have federal question jurisdiction over claims
occurring on the Outer Continental Shelf. 43 U.S.C. § 1333(a)(1). Thus, even
though maritime cases are exempted by statute from original question
jurisdiction under § 1441(a), Romero, 358 U.S. at 377-79, OCSLA statutorily
restores federal question jurisdiction over these claims even when they apply
maritime law as the substantive law of decision.
      The reasoning employed by the district courts in Courts, Walsh, and
Fogelman is not necessarily to the contrary. These cases primarily rely on the
cases of Smith v. Penrod Drilling and Laredo Offshore Constructors v. Hunt Oil,
where we stated that “where admiralty and OCSLA jurisdiction overlap, the case
is governed by maritime law.” Laredo, 754 F.2d at 1229; accord Smith, 960 F.2d
at 459. However, in Laredo, the court rejected petitioner’s claim that admiralty
law should apply to the action, holding that “the case is governed solely by the
OCSLA and the [state] law incorporated by reference thereunder.” Laredo, 754
F.2d at 1229. And in Smith, the only question presented to the panel was
whether maritime law provided the substantive rule of decision, not whether
removal was proper. 960 F.2d at 459-61. Thus, neither Laredo nor Smith stands
for the proposition that maritime law will displace OCLSA’s explicit grant of
federal question jurisdiction to bar removal where it applies.
      Furthermore, to the extent that we can reconcile our precedent with the
legislative history of OCSLA, we must recognize that “[g]iven the national

                                      18
                                  No. 12-20150
interests that prompted Congress to pass OCSLA and grant broad jurisdiction
under 43 U.S.C. § 1349, Congress arguably intended to vest the federal courts
with the power to hear any case involving the OCS, even on removal, without
regard to citizenship.”      Tenn. Gas., 87 F.3d at 156.           Following this
understanding, we hold today that the application of maritime law as the rule
of decision does not displace OCSLA’s grant of federal question jurisdiction; 28
U.S.C. § 1331 provides original federal question jurisdiction over this claim
because it “aris[es] under the . . . laws of the United States;” Recar, 853 F.2d at
370, and therefore removal of this action was proper regardless of the citizenship
of the parties. See 28 U.S.C. § 1441(b) (2011) (holding that [a]ny civil action of
which the district courts have original jurisdiction founded on a claim or right
arising under the . . . laws of the United States shall be removable without
regard to the citizenship or residence of the parties.”).
      d.    The effect of the parties’ citizenship on removal
      Although OCSLA provides courts with original federal question
jurisdiction under § 1331, Barker nevertheless argues that this suit was
improperly removed because Defendants are citizens of the state in which the
action was brought. In other words, Barker urges this court to hold that when
maritime law provides the substantive rule of decision under OCSLA, the
“home-state defendant” rule must also be satisfied before an action may be
removed. See 28 U.S.C. § 1441(b) (2011); see also 28 U.S.C. § 1441(b)(2).
Barker’s suggestion is contrary to both the letter and spirit of the removal
statute, especially as it has been recently clarified by Congress.
      At the time that this action was removed, the federal removal statute
provided that:
      Any civil action of which the district courts have original jurisdiction
      founded on a claim or right arising under the Constitution, treaties
      or laws of the United States shall be removable without regard to
      the citizenship or residence of the parties. Any other such action


                                        19
                                       No. 12-20150
       shall be removable only if none of the parties in interest properly
       joined and served as defendants is a citizen of the State in which
       such action is brought.

28 U.S.C. § 1441(b) (2011) (emphasis added). Barker contends that although
original federal question jurisdiction is present in this action, this is not a case
in which original jurisdiction is “founded on a claim or right arising under the
. . . laws of the United States,” because maritime law provides the substantive
rule of decision. He argues that this claim instead falls into the category of “any
other such action” in which removal is only proper if “none of the . . . defendants
is a citizen of the State in which such action is brought.” Id.
       For Barker’s argument to be successful, the phrase “any other such action”
must apply not only to diversity actions, but also to certain actions over which
district courts would have had original jurisdiction under § 1441(a), but for
which jurisdiction is not “founded on a claim or right arising under the laws of
the United States.” The only type of jurisdiction that could arguably satisfy that
standard in this case is admiralty jurisdiction. See Dutile, 935 F.2d at 63 (noting
that the words of the arising under statute “do not extend, and could not
reasonably be interpreted to extend, to cases of admiralty and maritime
jurisdiction.” (quoting Romero, 358 U.S. at 378)).7 Federal question jurisdiction
is not implicated by the second sentence of § 1441(b) because federal question
jurisdiction is, simply put, founded on a claim or right “arising . . . under the
laws . . . of the United States,” 28 U.S.C. § 1331, and therefore expressly
excluded from application of the home-state defendant rule.8

       7
              Note that “[t]he practical effect of these provisions is to prevent the removal of
admiralty claims pursuant to § 1441(a) unless there is complete diversity of citizenship. . . .
[and thus a] defendant who desires to remove a maritime action from state court to federal
court must establish diversity jurisdiction.” Dutile, 935 F.2d at 63.
       8
              Previous panels of this court have contemplated, but not held, that OCSLA
claims applying maritime law are not removable absent satisfaction of the home-state
defendant rule. See, e.g., Morris, 344 F.3d at 444; Hufnagel, 182 F.3d at 350. Following this

                                              20
                                        No. 12-20150
       However, admiralty jurisdiction is not present in this suit because Barker
filed in state court, therefore invoking the saving-to-suitors exception to original
admiralty jurisdiction. See 28 U.S.C. § 1333; Romero, 358 U.S. at 378. Instead,
for the reasons discussed above, jurisdiction in this suit is premised on—and
only on—federal question jurisdiction under OCSLA. Because federal question
jurisdiction is present under OCSLA, and because we hold today that maritime
law does not supplant that grant of federal question jurisdiction, it follows that
this action is removable “without regard to the citizenship or residence of the
parties” under § 1441(b) (2011).
       This interpretation is especially persuasive in light of Congress’s recent
clarification of 28 U.S.C. § 1441(b). Instead of the amorphous dictate that “[a]ny
other such action shall be removable only if none of the . . . defendants is a
citizen of the State in which such action is brought,” the statute now explicitly
specifies that a “civil action otherwise removable solely on the basis of [diversity
jurisdiction] may not be removed if any of the . . . defendants is a citizen of the
State in which such action is brought.” § 1441(b)(2) (emphasis added); accord
H.R. REP. NO. 112-10 (explaining that the updated version is a clarification, as
opposed to an amendment, of the original statute). Thus, it is clear that the
citizenship requirement in § 1441(b) only applies when a case is removed on the


precedent, some have argued that although such claims “aris[e] under the . . . laws of the
United States” by virtue of OCSLA’s jurisdictional grant, they are not “founded . . . on the laws
of the United States,” when maritime law provides the substantive rule of decision. However,
the relevant inquiry is not necessarily whether the cause of action is founded on the laws of the
United States, but whether “original jurisdiction [is] founded on a claim or right arising under
the . . . laws of the United States.” § 1441(b) (2011). See, e.g., Tenn. Gas, 87 F.3d at 153
(noting that “maritime claims do not ‘aris[e] under the . . . laws of the United States’ for
purposes of federal question and removal jurisdiction.” (quoting 28 U.S.C. § 1441(b) (2011))
(emphasis added)); accord Dutile, 935 F.2d at 62-63. Pursuant to our holding today, federal
courts have original jurisdiction over OCSLA claims because they “aris[e] under the . . . laws
of the United States,” 28 U.S.C. § 1441(b) (2011); see also Recar, 853 F.2d at 370, and this
jurisdictional grant is not superseded by maritime law, even when maritime law provides the
substantive rule of decision. Accordingly, we find that the parties need not satisfy the home-
state defendant rule in order to remove this OCSLA action.

                                              21
                                  No. 12-20150
basis of diversity jurisdiction. Although cases invoking admiralty jurisdiction
under 28 U.S.C. § 1333 may require complete diversity prior to removal, Dutile,
935 F.2d at 63, the same is not true for OCSLA claims in which maritime law
provides the substantive rule of decision, because these claims are removable
under federal original question jurisdiction for the reasons discussed above.
      This holding is also consistent with the purpose of § 1441(b). There is no
reason why, in the absence of a requirement of diversity jurisdiction, removal
should be limited based on the citizenship of a defendant. OCSLA provides that
defendants anywhere are entitled to a federal forum for their claims, not because
of a risk that they might be “home-towned” but out of a concern for a uniform
application of the law governing the OCS. See Engerrand, Primer of Remedies
on the Outer Continental Shelf. Accordingly, Defendants’ removal of this suit
was proper, and the district court’s order denying remand is AFFIRMED.
II.   Summary Judgment
      Because we have not decided whether Texas or maritime law applies to
this dispute, we can only affirm the district court’s grant of summary judgment
if there is no genuine issue of material fact under either theory. For the reasons
stated below, we find that there is none.
      a.    Texas law
      As a primary matter, Barker’s cause of action against Hall-Houston for
negligence is barred by Chapter 95 of the Texas Civil Practices and Remedies
Code, which limits the liability of property owners in personal injury actions
brought by independent contractors when the claims “arise[] from the condition
or use of an improvement to real property where the contractor or subcontractor
constructs, repairs, renovates, or modifies the improvement.” TEX. CIV. PRAC.
& REM. CODE § 95.002. When a contractor or subcontractor files a suit against
a property owner for negligence, the property owner will not be liable unless the
plaintiff can satisfy both conditions of Section 95.003, which require the plaintiff


                                        22
                                  No. 12-20150
to show that the property owner (1) exercised or retained “some control over the
manner in which the work is performed” and (2) had “actual knowledge of the
danger or condition resulting in personal injury, death, or property damage,” yet
“failed to adequately warn” of that danger. Id. § 95.003; see also Francis v.
Coastal Oil & Gas Corp., 130 S.W.3d 76, 84 (Tex. App.—Houston [1st Dist.]
2003, no pet.).
       It is undisputed that Hall-Houston was the owner of the mineral lease at
issue, and that the well on which Barker and Broussard were working
constituted an “improvement” to this property, sufficient to trigger application
of Chapter 95. Francis, 130 S.W.3d at 84. Barker presented no evidence that
Hall-Houston either exercised control over his work, or had actual knowledge of
any dangerous condition on the rig, as required by the statute. Barker did not
have a direct contract with Hall-Houston at the time of the accident, and the
mere presence of a representative on site to observe an independent contractor’s
work does not evidence control. Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 157
(Tex. 1999). Accordingly, Barker’s negligence claims against Hall-Houston are
barred by the Texas Civil Practices and Remedies Code.
      As to Barker’s claims against both defendants, Barker cannot recover for
negligent infliction of emotional distress because Texas does not recognize a
cause of action under this theory. Twyman v. Twyman, 855 S.W.2d 619, 621
(Tex. 1993). Nor can Barker recover under a theory of bystander recovery, as
Texas courts have limited this cause of action to incidents involving close family
members.     Rodriguez v. Motor Express, Inc., 909 S.W.2d 521, 525 (Tex.
App.—Corpus Christie 1995) rev’d on other grounds, 925 S.W.2d 638 (Tex. 1996).
Therefore, Barker cannot sustain a claim under Texas law against either
Defendant.


      b.     Maritime law

                                       23
                                   No. 12-20150
      Because Barker does not allege that he suffered any physical injury as a
direct result of the incident, he may only recover under maritime law if he can
show that (a) the “zone of danger” theory applies to allow recovery for purely
emotional injuries in non-Jones Act cases, and (b) he satisfies the requirements
of that theory.
      Under maritime law, a bystander cannot recover merely for witnessing
harm to another where the bystander suffered no harm or threat of harm.
Gaston v. Flowers Transp., 866 F.2d 816, 818-20 (5th Cir. 1989). However, this
court has left open “the question whether a [bystander] may recover for purely
emotional injuries under a zone of danger theory” at maritime law. Plaisance
v. Texaco, Inc., 966 F.2d 166, 169 (5th Cir. 1992) (en banc); accord Consol. Rail
Corp. v. Gottshall, 512 U.S. 532, 557 (1994) (adopting this theory in Jones Act
cases).   Although some circuits have adopted the zone of danger test for
non-Jones Act maritime claims, Chan v. Soc’y Expeditions, Inc., 39 F.3d 1398
(9th Cir. 1994); see also Chaparro v. Carnival Corp., 693 F.3d 1333, 1338 (11th
Cir. 2012 (per curiam) (noting that “but federal maritime law has adopted
Gottshall'’s application of the ‘zone of danger’ test”), this circuit and others have
“yet to recognize recovery under the zone of danger rule” for general maritime
claims. Genie-Lyn Ltd. v. Del. Marine Operators, Inc., No. 50, 2006 WL 42169,
at *24 n.36 (W.D. La. Jan. 3, 2006) (quoting Ainsworth v. Penrod Drilling Corp.,
972 F.2d 546, 548 (5th Cir. 1992)).
      We need not decide today whether the zone of danger theory applies to
non-Jones act maritime claims, because even if it were to apply, Barker could not
satisfy the requirements of that theory as a matter of law. We agree with the
district court that Barker was not in “immediate risk of physical harm” as
required by the theory, Gottshall, 512 U.S. at 548, because at the time of the
incident he was standing two feet away from the opening in the rig’s drill floor.
Barker specifically testified that he was sanding “on solid ground [which] was

                                         24
                                  No. 12-20150
not going to fall,” and by the time the pan fell, Barker was “out of the dangerous
position where something could have happened . . . if the pan had been cut.” In
fact, Barker had his back turned to the opening at the time of the incident, and
only became aware of it after he heard a noise behind him. Barker further
testified that his initial “reaction was not that [he] was scared that [he] was
going to fall,” but that he should make sure that his co-workers were safe.
Because Barker does not allege any facts which would place him in immediate
risk of physical harm, the zone of danger theory is inapplicable. See id. at 548.
      c.    LHWCA
      If Texas law applies to this action, Barker cannot maintain a cause of
action under the LHWCA, as that statute only applies where maritime law
applies. May v. Transworld Drilling Co., 786 F.2d 1261, 1264 (5th Cir. 1986).
If maritime law applies to this action, then the LHWCA is incorporated through
OCSLA and may be actionable under the provisions of that Act. 43 U.S.C.
§ 1333(b). However, Barker is not entitled to recover under LHWCA for the
same reason that he cannot recover under the bystander rule under general
maritime law. See Dierker v. Gypsum Transp., Ltd. 606 F. Supp. 566, 567-69
(E.D. La. 1985) (discussing the non-recoverability of bystander injuries under
LHWCA). Therefore, for the reasons stated above, Barker cannot maintain a
cause of action under the LHWCA, and summary judgment for the Defendants
on all counts is AFFIRMED.
                                CONCLUSION
      This suit was properly removed to federal court under OCSLA’s grant of
original federal question jurisdiction, regardless of whether maritime law
provides the substantive rule of decision, and regardless of the citizenship of the
parties. Because Barker cannot show a genuine issue of material fact with
respect to his claims under either Texas or maritime law, the district court’s



                                        25
                            No. 12-20150
orders denying remand and granting summary judgment to Defendants are
AFFIRMED.




                                 26
                                        No. 12-20150
HIGGINBOTHAM, Circuit Judge, dissenting:


I write separately because I find it clear that maritime law applies to Barker’s
action against Hercules Offshore and Hall-Houston. As such, my analysis of
both the motion to remand and the motion for summary judgment differs
from that proposed by the majority.


I. CHOICE OF LAW
       Judge Clement’s concurrence expresses doubt as to whether maritime law
applies to Barker’s action, concluding that even though a jack-up rig is a vessel,
“the general character of the incident appears to be non-maritime in nature.”
Although Judge Clement does not “definitively determine” whether maritime
law or Texas law applies to this lawsuit, because under either theory it contends
removal was proper, I respond to the uncertainty her approach brings to settled
law.
       At the outset, we do agree on the basic premises surrounding the choice
of law analysis, and those principles are well-established by this Circuit’s
precedent: Even when the OCSLA’s choice of law provision applies, adjacent
state law does not apply as surrogate federal law if maritime law applies of its
own force.1 And, in order for maritime law to apply of its own force, there must
be both a maritime location and a connection to a traditional maritime activity.2
Specifically, as explained by the Supreme Court in Jerome B. Grubart, Inc. v.
Great Lakes Dredge & Dock Co., the following test should be used to determine
whether maritime law applies:


       1
           Union Tex. Petroleum Corp. v. PLT Eng’g, Inc., 895 F.2d 1043, 1047 (5th Cir. 1990).
       2
         Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534 (1995);
Foremost Ins. Co. v. Richardson, 457 U.S. 668, 673–74 (1982); Hufnagel v. Omega Serv. Indus.,
Inc., 182 F.3d 340, 351 (5th Cir. 1999).

                                              27
                                        No. 12-20150
      A court applying the location test must determine whether the tort
      occurred on navigable water or whether injury suffered on land was
      caused by a vessel on navigable water. The connection test raises
      two issues. A court, first, must “assess the general features of the
      type of incident involved” to determine whether the incident has “a
      potentially disruptive impact on maritime commerce.” Second, a
      court must determine whether “the general character” of the
      “activity giving rise to the incident” shows a “substantial
      relationship to traditional maritime activity.”3

I find that test satisfied in this case.
      The location test is easily satisfied here because the alleged tort occurred
on navigable water. My main departure from Judge Clement’s concurrence
comes in its analysis of the second prong of the Grubart test—whether the claim
has a connection with maritime activity.
      Under the first prong of the connection inquiry, we ask whether the
incident has “a potentially disruptive impact on maritime commerce.”4 In
answering that question, we look “to potential effects, not to the ‘particular facts
of the incident’ . . . focus[ing] not on the specific facts at hand but on whether the
‘general features’ of the incident were ‘likely to disrupt commercial activity.’”5
Importantly, in conducting its analysis, the Grubart Court looked to “the ‘general
features’ of the incident at issue,” not at the activity being undertaken at the
time of the accident.6 Thus, although Barker and Broussard were running
casing over a well, the relevant “incident” upon which the disruption analysis
should be conducted is the fall of the pollution pan from the jack-up rig (a
vessel). “So characterized, there is little question that this is the kind of incident



      3
          Grubart, 513 U.S. at 534 (quoting Sisson v. Ruby, 497 U.S. 358, 363–65 (1990)).
      4
          Id. (quoting Sisson, 497 U.S. at 364 n.2).
      5
          Id. at 538 (quoting Sisson, 497 U.S. at 363).
      6
          Id. (quoting Sisson, 497 U.S. at 363).

                                               28
                                       No. 12-20150
that has a ‘potentially disruptive impact on maritime commerce.’”7 As we
explained in Coats v. Pernod Drilling Corp., a case involving an injury to a
worker on a jack-up rig, “worker injuries . . . can have a disruptive impact on
maritime commerce by stalling or delaying the primary activity of a vessel.”8
      I realize that Coats involved an injury sustained while repairing and
maintaining a jack-up rig that was located in port, while this case involves an
injury sustained while conducting casing operations on a jack-up rig with its legs
extended into the seabed of the outer Continental Shelf. But that distinction
does not undermine our rationale for finding a potentially disruptive impact in
Coats—that “worker injuries . . . can have a disruptive impact on maritime
commerce by stalling or delaying the primary activity on the vessel.”9 That
reasoning rests not on the particular task the worker is completing at the time
of his injury but instead on the delay in vessel operations inherent in dealing
with a worker’s injury or death. I find support for that reading in the Supreme
Court’s articulation of the “potentially disruptive impact on maritime commerce”
standard in Sisson v. Ruby.10 That case involved a fire on a noncommercial
vessel docked at a marina on a navigable waterway. The Supreme Court found
that “such a fire has a potentially disruptive impact on maritime commerce, as
it can spread to nearby commercial vessels or make the marina inaccessible to
such vessels.”11         After so finding, the Supreme Court clarified that the
“potentially disruptive impact” inquiry does not “turn on the particular facts of
the incident in this case, such as the source of the fire or the specific location of


      7
          Id. at 539.
      8
          61 F.3d 1113, 1119 (5th Cir. 1995) (en banc).
      9
          Id.
      10
           497 U.S. 358 (1990).
      11
           Id. at 362.

                                              29
                                          No. 12-20150
the yacht at the marina, that may have rendered the fire . . . more or less likely
to disrupt commercial activity.”12
       Moreover, it is immaterial whether the accident in this case actually
caused such a delay in maritime commerce. As the Supreme Court explained in
Sisson, the inquiry focuses on whether the incident had a potentially disruptive
impact on maritime commerce:
       We determine the potential impact of a given type of incident by
       examining its general character. The jurisdictional inquiry does not
       turn on the actual effect on maritime commerce of the fire . . . .
       Rather, a court must assess the general features of the type of
       incident involved to determine whether such an incident is likely to
       disrupt commercial activity.13

       Thus, I would find that the incident here had a “potentially disruptive
impact on maritime commerce,” satisfying the first prong of Grubart’s connection
inquiry.14
       Turning to the second prong of the connection inquiry, we “must determine
whether ‘the general character’ of the ‘activity giving rise to the incident’ shows
a ‘substantial relationship to traditional maritime activity.’”15 This inquiry turns
on “whether a tortfeasor’s activity, commercial or uncommercial, on navigable
waters is so closely related to activity traditionally subject to admiralty law that
the reasons for applying special admiralty rules would apply in the suit at




       12
            Id. at 363.
       13
            Id. (emphasis in original).
       14
         Judge Clement’s concurrence seems to rely on the fact that offshore drilling is not
maritime commerce. However, it finds support for that proposition in statements dealing with
offshore drilling from a fixed platform. That analysis does not rebut the argument that
accidents on jack-up drilling rigs (vessels) have a potentially disruptive impact on maritime
commerce even if the jack-up rig is engaged in offshore drilling at the time of the accident.
       15
            Grubart, 513 U.S. at 534 (quoting Sisson, 497 U.S. at 364–65).

                                              30
                                         No. 12-20150
hand.”16 In his complaint, Barker alleges that the Defendants failed to provide
a safe workplace aboard the Hercules 251—a vessel. This Court has previously
explained that “failing to provide a safe workplace aboard a vessel is a maritime
tort,” even when the work the plaintiff is performing is non-maritime in nature.17
Because vessel maintenance is a traditional maritime activity, I would find the
tortfeasors’ activity bears a substantial relationship to a traditional maritime
activity. That conclusion is only bolstered by the fact that this tort occurred
aboard a vessel, and “[p]roviding compensation for shipboard injuries is a
traditional function of the admiralty laws.”18
       Because the Grubart test is clearly satisfied in this case, I would find that
Barker has alleged a maritime tort. It is equally clear to me that Barker’s action
against the vessel and the vessel-owner is cognizable under § 905(b) of the
LHWCA. In § 905(b), Congress preserved the longshoremen’s right to recover
against the vessel-owner for negligence.19 Because the OCSLA, specifically 43




       16
            Id. at 539–40.
       17
            Strong v. B.P. Exploration & Prod., Inc., 440 F.3d 665, 669 (5th Cir. 2006).
       18
           Coats, 61 F.3d at 1119 (citing Sisson, 497 U.S. at 368–75 (Scalia, J., concurring)
(arguing that all vessel-related torts fall within the admiralty jurisdiction)); see Grubart, 513
U.S. at 542–43 (“Grubart makes an additional claim that Sisson is being given too expansive
a reading. If the activity at issue here is considered maritime related, it argues, then virtually
‘every activity involving a vessel on navigable waters’ would be ‘a traditional maritime activity
sufficient to invoke maritime jurisdiction.’ But this is not fatal criticism. This Court has not
proposed any radical alteration of the traditional criteria for invoking admiralty jurisdiction
in tort cases, but has simply followed the lead of the lower federal courts in rejecting a location
rule so rigid as to extend admiralty to a case involving an airplane, not a vessel, engaged in
an activity far removed from anything traditionally maritime . . . . Although we agree with
petitioners that these cases do not say that every tort involving a vessel on navigable waters
falls within the scope of admiralty jurisdiction no matter what, they do show that ordinarily
that will be so.”).
       19
            Scindia Navigation Co. V. Santos, 451 U.S. 156, 165 (1981).

                                               31
                                        No. 12-20150
U.S.C. § 1333(b), makes the LHWCA applicable to Barker,20 section 905(b) by its
terms preserves his action against the vessel and vessel-owner.21


                                II. MOTION TO REMAND
       At the time the action was removed to federal court, the federal removal
statute provided in relevant part:
       (a) Except as otherwise provided by Act of Congress, any civil action
       brought in a State court of which the district courts of the United
       States have original jurisdiction, may be removed by the defendant
       or the defendants, to the district court of the United States for the
       district and division embracing the place where such action is
       pending. For purposes of removal under this chapter, the
       citizenship of defendants sued under fictitious names shall be
       disregarded.

       (b) Any civil action of which the district courts have original
       jurisdiction founded on a claim or right arising under the
       Constitution, treaties or laws of the United States shall be
       removable without regard to the citizenship or residence of the
       parties. Any other such action shall be removable only if none of the
       parties in interest properly joined and served as defendants is a
       citizen of the State in which such action is brought.22

Thus, for removal to be proper, § 1441(a) required that the federal district courts
have original jurisdiction over the action. Then, for certain cases, § 1441(b)
imposed the additional requirement that “none of the . . . defendants is a citizen
of the State in which [the] action [was] brought” (the “forum-defendant
requirement”). I find removal proper here because Barker’s action is one “of



       20
          43 U.S.C. § 1333(b); see Demette v. Falcon Drilling Co., 280 F.3d 492, 497–98 (5th Cir.
2002), overruled on other grounds, Grand Isle Shipyard v. Seacor Marine, LLC, 589 F.3d 778
(5th Cir. 2002) (en banc); Lomand v. Int’l Mooring & Maine, 845 F.2d 536, 541 (5th Cir. 1987).
       21
         See Lormand, 845 F.2d at 541; Longmine v. Sea Drilling Corp., 610 F.3d 1342,
1347–52 (5th Cir. 1980).
       22
            28 U.S.C. § 1441(a), (b).

                                               32
                                     No. 12-20150
which the district courts of the United States have original jurisdiction” by
virtue of the OCSLA’s grant of original jurisdiction. Moreover, § 1441(b)’s
forum-defendant requirement is inapplicable because the case was not removed
on the basis of diversity jurisdiction.


A. Section 1441(a)
      The Defendants removed this action to the Southern District of Texas
based on the OCSLA’s grant of original jurisdiction. Specifically, 43 U.S.C.
§ 1349(b)(1) provides that “the district courts of the United States shall have
jurisdiction of cases and controversies arising out of, or in connection with, . . .
any operation conducted on the outer Continental Shelf which involves
exploration, development, or production of the minerals, of the subsoil and
seabed of the outer Continental Shelf.”23
      Although maritime law applies to Barker’s action, and federal courts do
not have removal jurisdiction over maritime cases which are brought in state
court,24 this Circuit allows removal of a claim governed by maritime law if the
claim falls within the OCSLA’s grant of original jurisdiction.25 In those cases,
the OCSLA provides an independent basis of jurisdiction to make otherwise non-
removable maritime claims removable.
      Here, it is undisputed that the federal district courts have original
jurisdiction over this action based on § 1349(b)(1) because the case arises out of
an operation conducted on the outer Continental Shelf which involves
development of the minerals of the subsoil and seabed of the outer Continental

      23
           43 U.S.C. § 1349(b)(1).
      24
          Romero v. Int’l Terminal Operating Co., 358 U.S. 354, 377–79 (1959). Similarly, a
§ 905(b) action does not arise under a federal statute for purposes of federal question
jurisdiction. Richendollar v. Diamond M, 819 F.2d 124 (5th Cir. 1987).
      25
          Morris v. T.E. Marine Corp., 344 F.3d 439, 444 (5th Cir. 2003); Tennessee Gas
Pipeline v. Hous. Cas. Ins., 87 F.3d 150, 153–55 (5th Cir. 1996).

                                            33
                                        No. 12-20150
Shelf.26 Although the OCSLA does not define the term “operation,” this Court
has explained that the term “refers to the doing of some physical act.”27 43
U.S.C. § 1331 defines “development” to mean “those activities which take place
following discovery of minerals in paying quantities, including . . . drilling . . . for
the purpose of ultimately producing the minerals discovered.”28 The Hercules
251 was in the process of drilling on the outer Continental Shelf at the time of
the accident, and Barker and Broussard were “preparing the rig’s drill floor
substructure to run casing,” such that they were undertaking an operation
involving development of minerals of the subsoil and seabed of the outer
Continental Shelf. We have employed a but-for test to decide whether a dispute
“aris[es] out of or in connection with” an operation, thus granting federal subject
matter jurisdiction.29 Because Barker would not have been injured but for the
work he was performing on the Hercules 251, his action “aris[es] out of or in
connection with” an operation on the outer Continental Shelf which involves
development of minerals. Thus, his action is “a civil action . . . of which the
district courts of the United States have original jurisdiction” and was properly
removed by the Defendants under § 1441(a).


B. Section 1441(b)
       I interpret § 1441(b)’s forum-defendant requirement as only applying to
cases removed on the basis of diversity jurisdiction. Because this case was




       26
           Indeed the district court below found that the case calls within the OCSLA’s
jurisdictional grant, and the parties do not dispute that finding.
       27
            Amoco Prod. Co. v. Sea Robin Pipeline Co., 844 F.2d 1202, 1207 (5th Cir. 1988).
       28
            43 U.S.C. § 1331(l).
       29
         See, e.g., Tenn. Gas Pipeline, 87 F.3d at 155; Recar v. GNG Producing Co., 853 F.2d
367, 369 (5th Cir. 1988).

                                               34
                                        No. 12-20150
removed on the basis of the OCSLA’s independent grant of federal jurisdiction,
the forum-defendant requirement does not limit its removal.
       As part of the Federal Courts Jurisdiction and Venue Clarification Act of
2011, Congress amended § 1441(b) to clarify that the forum-defendant
requirement only applies to actions removed on the basis of diversity
jurisdiction.       The statute now explicitly states: “A civil action otherwise
removable on the basis of jurisdiction under section 1332(a) of this title may not
be removed if any of the parties in interest properly joined and served as
defendant is a citizen of the State in which such action is brought.”30 The House
Report accompanying the amendment explains: “Proposed paragraph 1441(b)(2)
restates the substance of the last sentence of current subsection 1441(b), which
relates only to diversity.”31 Based on that explanation, I view the amendment
as a clarification that Congress, when it enacted § 1441(b), only intended the
forum-defendant requirement to apply to cases in which removal was based on
diversity; Congress did not intend the limitation to apply in other cases.32
       Moreover, this interpretation of § 1441(b) as only applying the forum-
defendant requirement to actions removed on the basis of diversity jurisdiction
is consistent with the purpose of both the OCSLA’s jurisdictional grant and the
forum-defendant requirement. “Absent diversity . . . it simply does not make any


       30
            28 U.S.C. § 1441(b)(2).
       31
            H.R. REP. NO. 112-10, at 12 (2011).
       32
          I realize Congress provided that the amendment only applies to actions commenced
on or after the expiration of the 30-day period beginning on the date of enactment (December
7, 2011). Federal Courts Jurisdiction and Venue Clarification Act of 2011, Pub. L. 112-63,
§ 105, 125 Stat. 758 (2011). Congress also explained that “an action or prosecution commenced
in State court and removed to Federal court shall be deemed to commence the date the action
or prosecution was commenced, within the meaning of State law, in State court.” Id. Because
Barker filed his action in state court on January 27, 2010, the pre-amendment version of
§ 1441 applies. Despite the fact that the amendment to § 1441(b) does not apply retroactively,
I believe that it illuminates a key aspect of congressional intent that is helpful in interpreting
the applicability of § 1441(b)’s forum-defendant requirement.

                                                  35
                                        No. 12-20150
sense to make removal of a saving-clause case turn on whether one of the
defendants is a citizen of the forum state. The fortuity of citizenship is totally
irrelevant to the policy factors germane to the removal question under
discussion.”33 As this Court has previously explained, “[g]iven the national
interests that prompted Congress to pass OCSLA and grant broad jurisdiction
under 43 U.S.C. § 1349, Congress arguably intended to vest the federal courts
with the power to hear any case involving the OCS, even on removal, without
regard to citizenship.”34
      In sum, I find removal proper here because the OCSLA provides an
independent basis of federal jurisdiction to make otherwise non-removable
maritime claims removable, and section 1441(b)’s forum-defendant requirement
does not limit removal because the case was not removed on the basis of
diversity jurisdiction.


                   III. MOTION FOR SUMMARY JUDGMENT
      I disagree with the majority opinion’s conclusion that summary judgment
was proper under maritime law. To my eyes, a genuine issue of material fact
exists as to whether Barker was in the zone of danger at the time of the accident,
and as such I would reverse the district court’s grant of summary judgment in
favor of the Defendants and remand for further proceedings on the merits.
      To be clear, this Circuit has not yet decided whether a plaintiff may
recover under maritime law for emotional injury claims based on the “zone of
danger” theory. It is true, as the majority opinion explains, that “a bystander
[cannot] recover for merely witnessing harm to another where the plaintiff




      33
           C. Wright, A. Miller, & E. Cooper, 14A Federal Practice & Procedure § 3674.
      34
           Tenn. Gas, 87 F.3d at 156.

                                             36
                                        No. 12-20150
suffered no harm or threat of harm.”35 However, this Circuit has explicitly “[left]
open[] the question [of] whether a plaintiff may recover for purely emotional
injuries under a zone of danger theory.”36 Based on the Supreme Court’s recent
decision in Consolidated Rail Corp. v. Gottshall and other Circuits
interpretations of that decision, I would hold that the zone of danger theory
applies in maritime cases. In Gottshall, the Supreme Court held that a plaintiff
who brings a Jones Act claim for emotional injury unaccompanied by a physical
injury may recover under a zone of danger theory.37 Barker urges that after
Gottshall, claims for negligent infliction of emotional distress unaccompanied by
physical injury are compensable under maritime law as long as the plaintiff was
within the zone of danger. I agree. Although Gottshall did not explicitly hold
that the zone of danger theory applies in non-Jones Act maritime cases for
negligent infliction of emotional distress, at least two other Circuits have held
that the Gottshall test, which allows plaintiffs “to recover for injuries—physical
and emotional—caused by the negligent conduct of their employers that
threatens them imminently with physical impact,”38 applies in the maritime law
context.39 I would join them.




       35
         Plaisance v. Texaco, 966 F.2d 166, 169 (5th Cir. 1992) (en banc) (citing Gaston v.
Flowers Transp., 866 F.2d 816 (5th Cir. 1989)).
       36
            Id.
       37
         Consol. Rail Corp. v. Gottshall, 512 U.S. 532 (1994). To be clear, although Gottshall
involved claims under FELA, because the Jones Act incorporates FELA, decisions in FELA
cases are applicable to cases brought under the Jones Act.
       38
            Id. at 566.
       39
          See Chaparro v. Carnival Corp., 693 F.3d 1333, 1338 (11th Cir. 2012) (per curiam)
(explaining that “federal maritime law has adopted Gottshall’s application of the ‘zone of
danger’ test”); Stacy v. Rederiet Otto Danielsen, 609 F.3d 1033, 1035 (9th Cir. 2010) (explaining
in a maritime case that “[t]he federal standard for the negligent infliction of emotional distress
is provided by Consolidated Railway Corp. v. Gottshall”).

                                               37
                                 No. 12-20150
      Under the zone of danger theory, summary judgment in favor of the
Defendants was not proper. Contrary to the conclusion reached by the majority
opinion, the evidence before the district court on summary judgment created a
genuine issue of material fact as to whether Barker was threatened imminently
with physical impact. Barker testified that he was standing a mere two feet
from the hole when the pan fell, and that he feared he was going to fall into the
hole himself. Looking at the accident, we must ask what a reasonable trier of
fact might conclude. With that cast of sight, this was a man standing two feet
from certain death with no protective harness, stunned at witnessing his friend
cling to a beam then fall to his death. An involuntary reach out and he, too,
would have died. This is the stuff of a live trial, not a paper review. He was at
least arguably within the zone of danger, and the final determination of that
issue should have been left with the jury.


                                      IV.
      Today, Judge Clement brings uncertainty to the law applicable to
accidents occurring on jack-up rigs. To these eyes her approach defies our
precedent. Clarity of the metric in the law of the sea and its relations is
especially prized as it is so much the law of insurance—define the rules and the
underwriter can assess the risk and cost its distribution. I would hold that
Barker has alleged a maritime tort and has created a genuine issue of material
fact as to whether he was in the zone of danger at the time of the accident and
reverse and remand.




                                       38
