Devin Barrios v. Centaur, L.L.C. ( 2019 )

Case: 18-31203 Document: 00515194271 Page: 1 Date Filed: 11/11/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-31203
FILED
November 11, 2019
Lyle W. Cayce
Clerk
DEVIN BARRIOS; ET AL.,
Plaintiffs,
versus
CENTAUR, L.L.C.,
Defendant
Cross Defendant
Appellee,
versus
RIVER VENTURES, L.L.C.,
Defendant
Cross Claimant
Appellant.
Appeals from the United States District Court
for the Eastern District of Louisiana
Before JONES, SMITH, and HAYNES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Devin Barrios—an employee of Centaur, L.L.C. (“Centaur”)—was
injured while offloading a generator from a crew boat to a barge. The crew
boat was owned and operated by River Ventures, L.L.C. (“River Ventures”); the
barge was leased by Centaur. Barrios sued River Ventures and Centaur for
Case: 18-31203 Document: 00515194271 Page: 2 Date Filed: 11/11/2019
No. 18-31203
vessel negligence under general maritime law and the Jones Act. River Ven-
tures crossclaimed against Centaur for contractual indemnity. The district
court granted summary judgment to Centaur, and River Ventures appeals. We
reverse and remand.
I.
Before Barrios’s accident, non-party United Bulk Terminals Davant,
LLC (“UBT”), executed a Master Service Contract (the “MSC”) with Centaur,
a small marine construction company. The MSC added Centaur to UBT’s
approved vendor list for work at its dock facility adjoining the Mississippi River
(the “Davant Facility”).
The MSC contained two provisions relevant to this appeal. The first
imposed on Centaur an obligation to indemnify UBT and its contractors:
CONTRACTOR SHALL RELEASE, DEFEND, INDEMNIFY AND
HOLD UBT GROUP (DEFINED AS UBT AND UBT’S OTHER
CONTRACTORS AND SUBCONTRACTORS OF ANY TIER . . . )
HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS . . .
BROUGHT BY ANY PERSON, PARTY OR ENTITY IN RESPECT
OF PERSONAL OR BODILY INJURY TO, SICKNESS, DISEASE
OR DEATH OF ANY MEMBER OF CONTRACTOR GROUP (DE-
FINED AS CONTRACTOR GROUP . . . REGARDLESS OF
CAUSE OR FAULT, AND EVEN IF CAUSED IN WHOLE OR IN
PART BY THE SOLE, JOINT OR CONCURRENT NEGLIGENCE
OR FAULT OF ANY MEMBERS OF THE UBT GROUP OR THE
UNSEAWORTHINESS OF ANY VESSELS OWNED, OPER-
ATED OR OTHERWISE UNDER THE CONTROL OF ANY MEM-
BER OF UBT GROUP.
The second required Centaur to obtain insurance covering those same parties:
Prior to Contractor commencing Work hereunder for UBT, Con-
tractor shall, but only to the extent of the liabilities assumed by
Contractor in this Agreement, obtain from each of its insurers a
waiver of subrogation in favor of each of the “UBT Group” . . . and,
with the exception of Workers’ Compensation Coverage . . . and the
2
Case: 18-31203 Document: 00515194271 Page: 3 Date Filed: 11/11/2019
No. 18-31203
Hull Insurance . . . name each of the UBT Group as additional
insured to each insurance policy . . . , but only to the extent of the
liabilities assumed by Contractor in this Agreement. . . . Con-
tractor shall ensure that any endorsement naming the UBT Group
as additional insureds shall not exclude from coverage the sole
negligence of the insureds. Contractor shall be responsible for pay-
ment of all deductibles, premiums, retentions and payment for all
expenditures incurred under any sue and labor provision.
The MSC governed future project-specific work orders between the parties.
Centaur and UBT executed several work orders for projects at the
Davant Facility. One—for which Centaur submitted a proposal in October
2015—required installation of a concrete containment rail at one of the facili-
ty’s docks. The dock was principally used to load and offload ships carrying
“dry bulk materials,” including coal and petroleum coke. The containment rail
was necessary to prevent those materials from spilling both onto the dock and
into the river.
Centaur’s proposal indicated that, at an increased cost, both a barge and
a tug boat would be required to complete the project. UBT accepted the pro-
posal and issued a purchase order in November 2015. That purchase order and
the MSC, in tandem, formed the contract at issue (the “Dock Contract”).
To perform the work, Centaur chartered barge DB-582, which was
equipped with a crane. Because DB-582 was a “dumb” barge that couldn’t self-
navigate, it was moved up and down the river using a tugboat and winch. The
Centaur crew used the barge to perform some construction work on the dock,
including “drilling holes, cutting rebar, and pouring forms.” It also used the
barge to store items, pack and unpack tools, hold safety meetings, take breaks,
and eat lunch.
Because the dock was most easily accessed by boat, UBT contracted with
River Ventures for a crewed vessel—the M/V TROOPER—to transport
3
Case: 18-31203 Document: 00515194271 Page: 4 Date Filed: 11/11/2019
No. 18-31203
Centaur’s employees from the parking area to their worksite. Centaur also
used the crew boat to ferry tools and equipment in addition to its employees.
On the day of the incident, Barrios and other Centaur employees were
transporting a portable generator on the crew boat. While attempting to
offload the generator, the M/V TROOPER began to separate from DB-582.
That movement caused Barrios to fall into the river, where the generator hit
him in the head, severely injuring him.
Barrios sued River Ventures and Centaur, alleging, inter alia, vessel
negligence under general maritime law and the Jones Act. 1 River Ventures—
averring that it was a third-party beneficiary of the Dock Contract—cross-
claimed against Centaur for contractual indemnity and additional assured
status under its insurance policies.
Centaur moved for summary judgment on River Ventures’s crossclaim,
averring that the Dock Contract was nonmaritime and that its indemnity pro-
vision was therefore void under Louisiana law. To determine whether the con-
tract was maritime, the court considered whether “(1) the work Centaur was
performing for UBT involve[d] maritime commerce, (2) it involved work from a
vessel, and (3) the contract provided or the parties expected that a vessel would
play a substantial role in completing the contract.”
Applying that test, the court held that the Dock Contract was a “land-
based construction contract” governed by Louisiana law. It granted summary
judgment because the Louisiana Construction Anti-Indemnity Statute
(“LCAIS”) “applie[d] to prohibit the indemnity and insurance provisions.”
River Ventures filed a notice of interlocutory appeal challenging the
The Jones Act, 46 U.S.C. § 30104, provides a cause of action for seamen against their
1
employer if they are “injured in the course of employment.”
4
Case: 18-31203 Document: 00515194271 Page: 5 Date Filed: 11/11/2019
No. 18-31203
summary judgment, averring that this court had jurisdiction under 28 U.S.C.
§ 1292(a)(3) because its claims against Centaur arose in an “admiralty case”
and determined the “rights and liabilities” between the parties. Centaur
moved to dismiss that appeal for lack of jurisdiction, maintaining that the
appeal “should not go forward until a Final Judgment is entered by the District
Court.” A panel of this court determined that Centaur’s motion should be car-
ried with the case.
While the interlocutory appeal was pending, Barrios’s underlying tort
claims proceeded to a bench trial. The court ruled for Barrios, holding that
River Ventures was liable and that Centaur wasn’t liable because Barrios
wasn’t a Jones Act seaman. The court then entered final judgment.
River Ventures appealed, reasserting its intent to seek review of the
summary judgment. It also filed a notice of appeal of the bench-trial findings,
but it voluntarily dismissed that appeal after settling with Barrios. River Ven-
tures’s crossclaim against Centaur is the only claim remaining on appeal.
II.
“[W]e have a constitutional obligation to satisfy ourselves that subject
matter jurisdiction is proper before we engage the merits of an appeal.” Ziegler
v. Champion Mortg. Co., 913 F.2d 228, 229 (5th Cir. 1990). Therefore, we first
consider Centaur’s motion to dismiss the appeal.
We need not decide, however, whether we have jurisdiction under
§ 1292(a)(3). That is because after final judgment was entered, River Ventures
filed a renewed notice of appeal related to its indemnity and insurance claims.
Because we have jurisdiction over River Ventures’s appeal under 28 U.S.C.
§ 1291, Centaur’s motion to dismiss for lack of jurisdiction is denied as moot.
5
Case: 18-31203 Document: 00515194271 Page: 6 Date Filed: 11/11/2019
No. 18-31203
III.
The indemnity dispute presents issues with which this court is familiar.
It boils down to what law governs. If federal maritime law controls, then the
Dock Contract’s indemnity provision is enforceable. See Hoda v. Rowan Cos.,
Inc., 419 F.3d 379, 380 (5th Cir. 2005). If Louisiana law applies, then the
LCAIS voids the indemnity provision as against public policy. See LA. STAT.
ANN. § 9:2780.1. So the question is whether the Dock Contract is maritime.
But before we can resolve that, we must identify the proper test for making
that determination, a task that has vexed this court for decades.
A.
From 1990 to 2018, we applied the six-factor test announced in Davis &
Sons, Inc. v. Gulf Oil Corp., 919 F.2d 313, 316 (5th Cir. 1990), to determine
whether a contract was maritime:
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?
Though Davis & Sons was intended to provide clear criteria for courts to apply,
the test proved unwieldy in practice, with “final result[s] [often] turn[ing] on a
minute parsing of the facts.” Hoda, 419 F.3d at 380.
Fourteen years after Davis & Sons, the Supreme Court erected a guide-
post in Norfolk Southern Railway Co. v. Kirby, 543 U.S. 14 (2004). The Court
considered whether a money-damages claim arising from a train derailment
fell within its admiralty jurisdiction. The cargo destroyed in the derailment
was completing the second, land-based leg of its journey from Australia to
6
Case: 18-31203 Document: 00515194271 Page: 7 Date Filed: 11/11/2019
No. 18-31203
Alabama. The first leg had transported the cargo by boat from Australia to
Georgia. The two legs of the trip had separate but co-extensive bills of lading.
To determine whether the bills of lading were maritime, the Court noted
that it could not merely “look to whether a ship or other vessel was involved in
the dispute” or “to the place of the contract’s formation or performance.” Id.
at 23–24. Geography couldn’t be controlling because “the shore [was] now an
artificial place to draw a line.” Id. at 25. 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 (cleaned
up). 2 That approach vindicated the fundamental interest undergirding mari-
time jurisdiction: “the protection of maritime commerce.” Id. at 25.
Applying those principles, the Court held that the bills of lading were
maritime “because their primary objective [was] to accomplish the transpor-
tation of goods by sea from Australia to the eastern coast of the United States.”
Id. at 24 (emphasis added). “[S]o long as a bill of lading requires substantial
carriage of goods by sea, its purpose is to effectuate maritime commerce—and
thus it is a maritime contract.” Id. at 27 (emphasis added). That some of the
performance was land-based did “not alter the essentially maritime nature of
the contracts.” Id. at 24.
In In re Larry Doiron, Inc., 879 F.3d 568 (5th Cir.) (en banc), cert. denied,
138 S. Ct. 2033 (2018), we sought to remedy the infirmities of Davis & Sons
and harmonize our law with Kirby. We considered whether a “work order . . .
to perform ‘flow-back’ services on a gas well in navigable waters” was a
maritime contract. Id. at 570. The work didn’t require vessels, and neither
2The Court rejected the “spatial approach,” on which several of the factors in Davis
& Sons were based. Kirby, 543 U.S. at 23–24.
7
Case: 18-31203 Document: 00515194271 Page: 8 Date Filed: 11/11/2019
No. 18-31203
party expected to use them. A crane barge was engaged only after the workers
“determined that some heavy equipment was needed to complete the job.” Id.
A worker was injured when he was struck by the crane.
In a unanimous opinion, we adopted a two-question test—centering the
inquiry “on the contract and the expectations of the parties,” id. at 576—to
determine whether a contract was maritime:
First, is the contract one to provide services to facilitate the drilling
or production of oil and gas on navigable waters? . . . Second, if the
answer to the above question is “yes,” does the contract provide or
do the parties expect that a vessel will play a substantial role in
the completion of the contract?
Id. That standard jettisoned the irrelevant prongs of Davis & Sons and made
clear that “contract rather than tort principles” control when determining
whether a contract is maritime. 3
Applying the new test, we held that the contract was nonmaritime be-
cause “[t]he use of the vessel to lift the equipment was an insubstantial part of
the job and not work the parties expected to be performed.” Id. at 577. The
crew had involved a vessel only after it had “encountered an unexpected prob-
lem that required a vessel and a crane to lift equipment needed to resolve [it].”
Id. Even though the vessel’s involvement was important, it wasn’t substantial
because its use didn’t comport with the parties’ expectations.
Since Doiron, we’ve had only one occasion to apply its standard: Crescent
Energy Services, L.L.C. v. Carrizo Oil & Gas, Inc., 896 F.3d 350 (5th Cir.), cert.
denied, 139 S. Ct. 642 (2018). There, the contract involved the plugging and
3 Doiron, 879 F.3d at 576–77. When announcing the test, we recognized that we dealt
“only with determining the maritime or nonmaritime nature of contracts involving the
exploration, drilling, and production of oil and gas.” Id. at 577 n.52. We noted, however, that
we expected the standard to be “helpful in determining whether a [non-oil-and-gas] contract
is maritime” if that “activity . . . involves maritime commerce and work from a vessel.” Id.
8
Case: 18-31203 Document: 00515194271 Page: 9 Date Filed: 11/11/2019
No. 18-31203
abandonment of three offshore oil wells on small fixed platforms. Id. at 352.
About half the job involved “wireline work.” 4 To complete the task, Crescent
charted three vessels: a crane barge, a tug boat, and a cargo barge. A Crescent
employee’s leg was severely injured when a piece of pipe struck him while he
was sitting on one of the fixed platforms.
Crescent’s insurers, attempting to limit Doiron’s reach, made two con-
tentions. First, the insurers posited—relying primarily on circuit caselaw
stating that work performed on fixed offshore platforms is nonmaritime—that
Doiron’s first prong wasn’t satisfied because “the plugging and abandoning
work did not occur on ‘navigable waters.’” Id. at 356. Second, and relatedly,
they averred “that Doiron must be read in conjunction with other law,” speci-
fically precedents classifying activities as either maritime or not. Id. at 357.
We rejected both theories, affirming that, for analyzing whether a
contract was maritime, “Doiron now control[led] that endeavor.” Id. at 358.
Because the wells at issue “were located within the territorial inland waters of
Louisiana and . . . the vessels involved . . . were able to navigate to them,” the
contract “was to facilitate the drilling or production of oil and gas on navigable
waters.” Id. at 357. And because the “contract anticipated the constant and
substantial use of multiple vessels,” it was maritime. Id. at 361.
Outside of the instant case, only one district court that we know of has
applied Doiron to a non-oil-and-gas contract. In Lightering LLC v. Teichman
Group, LLC, 328 F. Supp. 3d 625, 627–29 (S.D. Tex. 2018), the court considered
whether a contract for wharfage, storage, and other dockside services was
maritime. In determining how to apply Doiron outside the oil-and-gas sector,
4Crescent, 896 F.3d at 361. “A ‘wireline’ is a continuous cable used to perform various
subsurface functions in a well, including the lowering and raising of various tools, instru-
ments, and other devices.” Roberts v. Cardinal Servs., Inc., 266 F.3d 368, 371 (5th Cir. 2001).
9
Case: 18-31203 Document: 00515194271 Page: 10 Date Filed: 11/11/2019
No. 18-31203
the court first observed that “Kirby state[d] that for a contract to be maritime,
its principal objective must be maritime commerce.” Id. at 636. Doiron, the
court inferred, “applie[d] Kirby to interpret a ‘principal objective.’” Id.
Based on that, the court determined that Doiron’s first factor—i.e., “is
the activity at issue oil and gas?”—was a substitute for Kirby’s broader ques-
tion whether a contract involved maritime commerce and work from a vessel.
Id. “Under Doiron and Kirby, determining whether a contract is maritime
requires three steps: (1) [T]he activity must be maritime commerce; (2) the
activity must involve work from a vessel; and (3) the contract must provide or
the parties must expect that a vessel will play a substantial role in completing
the contract.” Id. at 637.
Though the analysis is seemingly clear-cut, applying that test—and
especially the first prong—was far from straightforward. As the court recog-
nized, the caselaw doesn’t clearly define the boundaries of “maritime com-
merce.” Id. As a result, “most courts resort to a case-by-case approach, relying
heavily on precedent.” Id. Utilizing that precedent-focused method, the court
determined that the contract’s wharfage and dockside services were subsumed
within a wide range of land-based activities that facilitate maritime commerce
but that aren’t, themselves, maritime commerce. See id. at 637–38. As a
result, the contract was “[nonmaritime] in nature and character.” 5
B.
The parties agree that Kirby, Doiron, and their progeny govern, but they
read those authorities differently. 6 Their primary disagreement centers on
5Lightering, 328 F. Supp. 3d at 643. Therefore, the court dismissed the case for want
of 28 U.S.C. § 1333 admiralty jurisdiction. Id.
That isn’t unreasonable: “Our cases do not draw clean lines between maritime and
6
nonmaritime contracts,” Kirby, 543 U.S. at 23, and, indeed, they “have long been confusing
10
Case: 18-31203 Document: 00515194271 Page: 11 Date Filed: 11/11/2019
No. 18-31203
how to apply Doiron’s first prong outside the oil-and-gas context. River Ven-
tures avers that “this Court should apply a test that the contract be performed
or facilitate operations on navigable waters and that the contract provide or
the parties expect that a vessel will play a substantial role in the completion
of the contract.” 7 Centaur counters that Lightering sets forth the proper test.
The district court accepted Centaur’s position and applied Lightering.
River Ventures has the better of the argument: Doiron should apply
essentially as written. For non-oil-and-gas contracts, Doiron would ask
whether (1) the contract is “one to provide services to facilitate [activity] on
navigable waters,” and (2) if so, whether “the contract provide[s] or . . . the
parties expect that a vessel will play a substantial role in the completion of the
contract.” Doiron, 879 F.3d at 576. That test is preferable for two reasons:
and difficult to apply,” Doiron, 879 F.3d at 571.
7 Centaur posits that River Ventures is estopped from asserting the test for which it
now advocates because it “initially agreed with the test applied by the district court.” Cen-
taur points to River Ventures’s opposition to summary judgment, in which it stated that “as
applied to this case, critical determinations for this Court to make are: (1) whether the work
Centaur was performing for UBT involved maritime commerce and (2) whether it involved
substantial work from a vessel.” Because River Ventures stated that “maritime commerce”
was an important consideration, Centaur suggests that it cannot be allowed to propose a new
test eliminating that requirement on appeal.
Judicial estoppel is an equitable doctrine that prevents a party from gaining an advan-
tage by asserting contradictory positions in different proceedings. See New Hampshire v.
Maine, 532 U.S. 742, 749 (2001). Judicial estoppel has two elements: “First, the estopped
party’s position must be clearly inconsistent with its previous one, and second, that party
must have convinced the court to accept that previous position.” Gabarick v. Laurin Mar.
(Am.) Inc., 753 F.3d 550, 553 (5th Cir. 2014) (quotation marks omitted). “[T]he rule is in-
tended to prevent improper use of judicial machinery” and is therefore within the court’s
discretion to apply. Maine, 532 U.S. at 750 (quotation marks omitted).
Contrary to Centaur’s assertion, neither prong of Gabarick’s test is satisfied. First,
River Ventures advances essentially the same position on appeal as it did in the district court:
that Doiron’s two-prong test applied. Furthermore, the quote on which Centaur relies must
be considered in its appropriate context. Only a few pages earlier in its motion, River Ven-
tures advanced that Doiron established a two-part test, and it quoted that test. Second, the
district court refused to apply Doiron’s two-part test and instead applied Lightering.
11
Case: 18-31203 Document: 00515194271 Page: 12 Date Filed: 11/11/2019
No. 18-31203
(1) Doiron was meant to streamline the inquiry regarding whether a contract
is maritime; and (2) Doiron’s rule, even applied to non-oil-and-gas contracts, is
consistent with Kirby.
In Doiron, the en banc court clarified that its test was intended to sim-
plify the is-this-contract-maritime inquiry, not complicate it. To do that, we
abrogated a significant portion of Davis & Sons’s six-factor standard. Chief
among those factors that Doiron jettisoned was the second, which required
courts “to parse the precise facts related to the services performed under the
contract and determine whether those services were inherently maritime.” Id.
at 573. That was true even for mixed-services contracts where none of the
services were inherently maritime. Id.
That inquiry, Doiron held, was irrelevant to whether a contract was mar-
itime because it didn’t focus on whether the contract required “substantial
work to be performed from a vessel.” Id. at 573, 576–77. To the extent that
the Davis & Sons factors remained relevant, they were so only as they helped
to explain the “scope of the contract” or “the extent to which the parties
expect[ed] vessels to be involved in the work.” Id. at 577. Doiron’s method, in
contrast to Davis & Sons, ensures that courts aren’t determining whether some
“service work has a more or less salty flavor than other service work when
neither type is inherently salty.” Id.
Centaur’s position would turn Doiron on its head and effectively return
courts to Davis & Sons’s precedent-laden trudge. Lightering recognized as
much. 8 But Doiron and Crescent made clear, and for good reason, that we
should be out of that business. “[R]egardless of what other Fifth Circuit
8 See Lightering, 328 F. Supp. 3d at 637 (“Though the rule from Kirby seems simple in
theory, its application proves to be complicated. Thus, most courts resort to a case-by-case
approach, relying heavily on precedent.” (cleaned up)).
12
Case: 18-31203 Document: 00515194271 Page: 13 Date Filed: 11/11/2019
No. 18-31203
caselaw there may be, nothing in such caselaw detracts from the clarity of our
2018 en banc decision in Doiron.” 9
Centaur contends that applying Doiron outside the oil-and-gas context
would run afoul of Kirby’s command that the “principal objective” of the con-
tract must be maritime commerce. That is so because Doiron established its
two-part test only after it “emphasiz[ed] the importance of first determining
whether the activity is ‘commercial maritime activity.’” 10 Doiron’s first prong,
Centaur posits, merely provides “a short-cut for deciding whether a contract’s
principal objective is maritime commerce, but only for oil and gas contracts.”
“Outside the oil and gas context, the test first requires the court to ask whether
the activity involves maritime commerce and work from a vessel.” Lightering,
328 F. Supp. 3d at 637 (quotation marks omitted). But Centaur’s position,
though somewhat supported by language in the caselaw, doesn’t adequately
grapple with Kirby, Doiron, or Crescent.
In Doiron, 879 F.3d at 576, we found “strong support in Kirby” for our
two-prong test. Several passages provide those buoys. First, Kirby states that
“[t]o ascertain whether a contract is a maritime one, . . . 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.” Kirby, 543 U.S.
at 23–24 (cleaned up). Next, Kirby instructs that “[m]aritime commerce has
evolved . . . and is often inseparable from some land-based obligations.” Id.
9 Crescent, 896 F.3d at 359. Crescent’s rejection of precedent-based arguments was
critically important to its outcome because this court’s precedent had long held that wireline
work was nonmaritime even when performed from a vessel. See, e.g., Domingue v. Ocean
Drilling & Expl. Co., 923 F.2d 393, 398 (5th Cir. 1991); Thurmond v. Delta Well Surveyors,
836 F.2d 952, 956 (5th Cir. 1988). Moreover, Lightering’s analysis didn’t consider Crescent.
That is understandable, given that Lightering was issued only two days later.
10 Centaur seizes on one paragraph in Doiron, 879 F.3d at 575, which begins “[o]ur
cases have long held that the drilling and production of oil and gas on navigable waters from
a vessel is commercial maritime activity.”
13
Case: 18-31203 Document: 00515194271 Page: 14 Date Filed: 11/11/2019
No. 18-31203
at 25. And finally, Kirby declares that “[c]onceptually, so long as a bill of lading
requires substantial carriage of goods by sea, its purpose is to effectuate mari-
time commerce—and thus it is a maritime contract.” 11
Those statements are entirely consistent with Doiron’s standard as
applied to any mixed-services contract. Doiron’s first prong—though requiring
some nexus to the traditional maritime predicate of activity on navigable
waters 12—doesn’t exclude non-sea-based obligations. And Doiron’s second
prong clarifies that cursory or unexpected vessel involvement, even if impor-
tant, isn’t enough; the involvement must be substantial. In that sense, both
prongs of Doiron stand in for Kirby’s requirement that the “principal objective”
of the contract be maritime commerce. 13
In short, Doiron’s two-part test applies as written to all mixed-services
contracts. To be maritime, a contract (1) must be for services to facilitate
activity on navigable waters and (2) must provide, or the parties must expect,
that a vessel will play a substantial role in the completion of the contract.
11Kirby, 543 U.S. at 27 (emphasis added). The Doiron en banc court found particular
support for its rule in that statement. See Doiron, 879 F.3d at 576.
12 “In general, a contract relating to a ship in its use as such, or to commerce or navi-
gation on navigable waters, or to transportation by sea or to maritime employment is subject
to maritime law and the case is one of admiralty jurisdiction, whether the contract is to be
performed on land or water.” 1 BENEDICT ON ADMIRALTY § 182 (Joshua S. Force & Steven F.
Friedell eds., 2019); accord Gulf Coast Shell & Aggregate LP v. Newlin, 623 F.3d 235, 240
(5th Cir. 2010); J.A.R., Inc. v. M/V Lady Lucille, 963 F.2d 96, 98 (5th Cir. 1992).
13 For that reason, applying Doiron to non-oil-and-gas contracts won’t cause the sea
change that Centaur fears. For example, contracts for the sale of vessels would presumably
remain nonmaritime. See, e.g., Newlin, 623 F.3d at 240; Jones v. One Fifty Foot Gulfstar
Motor Sailing Yacht, Hull No. 01, 625 F.2d 44, 47 (5th Cir. 1980). As would contracts to build
ships when the construction doesn’t require vessels. See, e.g., E. River S.S. Corp. v. Trans-
america Delaval, Inc., 476 U.S. 858, 872 n.7 (1986); Thames Towboat Co. v. The Schooner
“Francis McDonald”, 254 U.S. 242, 243 (1920); Jones, 625 F.2d at 47. So too would contracts
for wharfage that don’t relate to a specific vessel. See, e.g., Lightering, 328 F. Supp. 3d at 638
(collecting cases).
14
Case: 18-31203 Document: 00515194271 Page: 15 Date Filed: 11/11/2019
No. 18-31203
IV.
Having fashioned the appropriate test—and because “the interpretation
of a maritime contract is a question of law”—we now apply it. See Int’l Marine,
L.L.C. v. Integrity Fisheries Inc., 860 F.3d 754, 759 (5th Cir. 2017).
1.
The Dock Contract easily satisfies Doiron’s first prong. It called for Cen-
taur to install a concrete containment rail at one of the Davant Facility’s docks.
That dock extended into the Mississippi River, a waterway on which both
DB-582 and the M/V TROOPER were navigated. The dock was used to load
and offload ships carrying dry bulk materials. And the containment rail was
meant to prevent those materials—principally coal and petroleum coke—from
spilling onto the dock or into the river, which would result in adverse effects to
both commerce and the environment. Collectively, those facts establish that
the Dock Contract required services to be performed to facilitate the loading,
offloading, and transportation of coal and petroleum coke via vessels on naviga-
ble waters. That some services were also performed on the dock, which was
affixed to the land, isn’t dispositive. 14
2.
When considering whether there was substantial involvement of a ves-
sel, “[w]e must remember that the contracting parties’ expectations are cen-
tral.” Crescent, 896 F.3d at 359. “When work is performed in part on a vessel
and in part on a platform or on land, we should consider not only time spent
on the vessel but also the relative importance and value of the vessel-based
work to completing the contract.” Doiron, 879 F.3d at 576 n.47. Doiron
14 See Kirby, 543 U.S. at 27 (“Its character as a maritime contract is not defeated
simply because it also provides for some land carriage.”).
15
Case: 18-31203 Document: 00515194271 Page: 16 Date Filed: 11/11/2019
No. 18-31203
suggests that a rule of thumb similar to the thirty-percent guideline in Jones
Act cases might be useful. Id. 15 But that “would not include transportation to
and from the job site.” 16 Even significant vessel involvement isn’t enough if
that involvement was unexpected. Crescent, 896 F.3d at 359–60.
Based on that standard, Doiron’s second prong is likewise satisfied. The
Dock Contract makes clear that the parties expected DB-582 to play a signifi-
cant role in the completion of the work. Centaur’s project proposal indicated
that the “[p]rice is significantly higher due to having [a] crane barge on site to
mix the concrete and pour it for the concrete containment rail.” It also stated
that a “[t]ug boat will . . . need to be present to shift the barge as needed.” Far
from being “an insubstantial part of the job and not work the parties expected
to be performed,” Doiron, 879 F.3d at 577, the proposal shows that the parties
expected the barge to play a critically important role.
Moreover, Taylor Roy, Centaur’s lead project manager, admitted that “at
the end of the day, Centaur could not have done the job properly without [the]
crane barge.” That differs materially from Doiron, where the vessel was used
only after the “crew encountered an unexpected problem.” Id. Instead, like
the situation in Crescent, the parties here recognized that DB-582 provided a
necessary work platform, an essential storage space for equipment and tools,
and a flexible area for other endeavors related to the construction work. See
Crescent, 896 F.3d at 361.
The district court’s findings of fact show that the parties’ expectations
about the use of the barge were borne out. Just as the proposal indicated,
15 But that “figure . . . serves as no more than a guideline established by years of
experience, and departure from it will certainly be justified in appropriate cases.” Chandris,
Inc. v. Latsis, 515 U.S. 347, 371 (1995).
16Doiron, 879 F.3d at 576 n.47. River Ventures’s contentions regarding the involve-
ment of its crew boat to reach the worksite are irrelevant.
16
Case: 18-31203 Document: 00515194271 Page: 17 Date Filed: 11/11/2019
No. 18-31203
Centaur’s crew used DB-582 to perform construction work for the containment
rail, including “drilling holes, cutting rebar, and pouring forms.” The crew also
used the barge for several activities related to the construction, including stor-
ing and packing tools, holding safety meetings, taking breaks, and eating
lunch. That Centaur’s workers may have worked on the dock a majority of the
time doesn’t alter that conclusion. 17
* * * *
In sum, the district court misapplied Doiron and erroneously concluded
that the Dock Contract was nonmaritime. Because federal maritime law
applies, the LCAIS does not. The summary judgment is REVERSED and
REMANDED. We place no limitation on the matters that the district court
may consider, as appropriate and in its discretion, on remand.
17See Crescent, 896 F.3d at 359 (“Doiron did not hold that to be a maritime contract,
the parties must have contemplated that a vessel will be used for a majority of the work.”).
17