MEMORANDUM RULING

REBECCA F. DOHERTY, District Judge.

Pending before this Court is the Motion for Summary Judgment [Doc. 14] filed by defendant/cross-claimant Seacor Liftboats, Inc., which avers "there is no genuine issue of material fact that co-Defendant Superior Energy Services, LLC ["Superior] owes SEACOR Liftboats defense, indemnity, and insurance coverage from the claims of Plaintiff Myron L. Butler." Therefore, Seacor seeks "judgment as a matter of law on its cross claim against Superior Energy Services, LLC." Superior opposes the motion [Doc. 16], and Seacor filed a Motion for Leave to File a Reply Brief (Doc. 17], which is herein GRANTED. Seacor's Motion for Leave to File a Rule 7.4.1 Certificate [Doc. 18] is also GRANTED, as is Superior's Motion for Leave to File a Sur-Reply Brief [Doc. 20]. For the following reasons, Seacor's motion for summary judgment is GRANTED IN PART and DENIED IN PART for the reasons stated below.

I. Factual and Procedural Background

The instant litigation involves a lawsuit for personal injuries allegedly sustained by plaintiff onboard the SEACOR LIBERTY on April 23, 2014. Plaintiff alleges that, at the time of his accident, he was attempting to maneuver a section of pipe being transferred by crane from the SEACOR LIBERTY to a platform. The SEACOR LIBERTY was being used to transport workers and materials to McMoRan's offshore platform located in block 193 of the West Cameron field on the Outer Continental Shelf in the Gulf of Mexico. Superior was under contract to provide services and labor to McMoRan to assist in plugging and abandoning the oil and gas well at that platform. Once in position, the SEACOR LIBERTY housed workers of other McMoRan contractors (such as Superior) and stored materials for the work being performed on the adjacent platform.

The following facts are undisputed:

II. INDEMNITIES

Once it was named in the lawsuit as a defendant, Seacor filed a cross-claim against Superior alleging "[t]he [VBA] provided for mutual indemnities, with Superior obligated for defense and indemnity of SEACOR for injuries to Superior's personnel — in this case Butler."2 Superior has denied Seacor's claim, arguing Seacor's claim is barred by the LOIA, and/or Section 905(b) of the Longshore and Harbor Worker's Compensation Act ("LHWCA").

In the instant motion for summary judgment, Seacor argues "there is no genuine issue of material fact that co-Defendant Superior Energy Services, LLC ["Superior] owes SEACOR Liftboats defense, indemnity, and insurance coverage from the claims of Plaintiff Myron L. Butler," on the basis that the VBA between Seacor and Superior is a maritime contract that is not subject to the Louisiana Oilfield Indemnity Act, La. Rev. Stat. 9:2780 ("LOIA"). Therefore, Seacor seeks "judgment as a matter of law on its cross claim against Superior Energy Services, LLC." In opposition, Superior argues Seacor has not met its burden to show the VBA is a maritime contract, and that disputed facts prevent this issue from being determined at this time. Superior suggests Louisiana law, rather than maritime law, governs the VBA, and if it is ultimately decided that Louisiana law does govern, the LOIA renders the defense and indemnity clause relied upon by Seacor void and unenforceable.

After consideration of the record and the arguments of the parties, this Court concludes the VBA in question is a maritime contract, and consequently, is not subject to the LOIA, however whether Superior actually owes Seacor defense, indemnity, and insurance coverage pursuant to that contract, remains to be determined. First, Superior, also, argues applicability of Section 905(b) and (c) of the LHWCA. Additionally, whether any other contractual impediment might apply has not been presented or argued to this Court in this procedural vehicle. Rather, this Court determines, only, that the contract at issue is a maritime contract, and thus, the LOIA does not apply to the contract at issue, and the provisions of the LHWCA — Sections 905(b) and (c) do not preclude the argued contractual provisions.

II. Summary Judgment Standard

"A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in the party's favor as to all or any part thereof." Fed. R. Civ. Proc. 56(b). Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. Proc. 56(c).

As the Fifth Circuit has pointed out:

In evaluating the evidence provided in support of, and in opposition to a Motion for Summary Judgment, "[t]he court must view facts and inferences in the light most favorable to the party opposing the motion." Hunt v. Rapides Healthcare Sys. LLC, 277 F.3d 757, 762 (5th Cir. 2001). "A factual dispute precludes a grant of summary judgment if the evidence would permit a reasonable jury to return a verdict for the non-moving party." Id. In evaluating evidence to determine whether a factual dispute exists, "[c]redibility determinations are not part of the summary judgment analysis." Id. To the contrary, "[i]n reviewing all the evidence, the court must disregard all evidence favorable to the moving party that the jury is not required to believe, and should give credence to the evidence favoring the non-moving party, as well as that evidence supporting the moving party that is uncontradicted and unimpeached." Roberts v. Cardinal Servs., 266 F.3d 368, 373 (5th Cir. 2001) (emphases added).

III. Law and Analysis

1. What law applies to the VBA

Seacor argues "there is no genuine issue of material fact that co-Defendant Superior Energy Services, LLC ["Superior] owes SEACOR Liftboats defense, indemnity, and insurance coverage from the claims of Plaintiff Myron L. Butler." Therefore, Seacor seeks "judgment as a matter of law on its cross claim against Superior Energy Services, LLC."

The first issue raised in the pending motion is what law applies to the contract, which will govern whether the LOIA is applicable. Superior alleges the contract cannot yet be determined to be maritime or not maritime and thus the LOIA could apply by way of the OCSLA, barring any claims by Seacor for defense and indemnity. Seacor alleges the LOIA is not applicable, as maritime law applies to the VBA contract. It appears to be undisputed that if the contract is a maritime contract, federal maritime law applies and the LOIA would not be applicable and thus would not act to bar the validity of the defense and indemnity provision in the contract. However, if the contract is non-maritime in nature, OCSLA likely would apply, and thus Louisiana law — as the law of the adjacent state — likely would apply and the LOIA could operate to invalidate the defense and indemnity provision of the VBA.

Thus, the parties' dispute centers on whether the defense and indemnity provision of the May 25, 2012 VBA is valid, first, as a matter of law. To decide that, this Court must first determine what body of law governs the contract. Seacor argues the contract is governed by the general maritime law; Superior argues there are disputed facts that preclude a determination of what law governs the VBA, but suggests the contract is governed by Louisiana law by virtue of OCSLA. It is undisputed that if Louisiana law is applicable, the LOIA could act to invalidate the defense and indemnity provision at issue. This Court concludes the question of what law applies is a matter of law for the Court's determination; the determination is one to be made based upon the contract in question. Therefore, this Court makes the determination of what law applies.

First, by way of context only, OCSLA was enacted in 1953 to extend the jurisdiction and control of the United States government to the seabed and subsoil of the outer Continental Shelf and to its natural resources, to wit:

43 U.S.C. § 1333(a)(1). OCSLA goes on to provide in pertinent part:

43 U.S.C.A. § 1333(a)(2)(A) (emphasis added). Therefore, "OCSLA adopts the law of the adjacent state (Louisiana) as surrogate federal law, to the extent that it is not inconsistent with other federal laws and regulations." Fruge v. Parker Drilling Co., 337 F.3d 558, 560 (5th Cir. 2003); see also 43 U.S.C. § 1333(a)(2)(A).

The law of the adjacent state, Louisiana, has promulgated the LOIA, which provides in pertinent part:

La. Rev. Stat. § 9:2780(B) (West 2009).

The general maritime law, or law of the admiralty exists by way of historical application and provides its own jurisprudential context. The question at hand keys to the nature of the contract involved. Seacor argues the question of whether a VBA, such as the one at issue, is subject to the LOIA or is a maritime contract has been definitively answered in the negative by the Fifth Circuit in Johnson v. SEACOR Marine, 404 F.3d 871 (5th Cir. 2005). In Johnson, the plaintiff's employer, PMI, was under contract with an oil company to provide services and labor for the oil company's platforms. Seacor was also under contract with the oil company to deliver equipment, supplies, and personnel to the platform. After PMI's employee was injured during a transfer between the platform and the vessel and brought suit against Seacor, Seacor demanded defense, indemnity, and insurance coverage from PMI, but was rejected. Like Superior, PMI asserted that the indemnity and insurance provisions of the Seacor VBA were unenforceable pursuant to LOIA. The Fifth Circuit rejected this argument and held the VBA was supported by consideration and was a legally enforceable contract and maritime in nature. Johnson, 404 F.3d at 877.

Seacor argues the provisions of the VBA in Johnson are identical to the provisions of the VBA in the instant case. However, the precise language of the VBA in Johnson is not provided in the case, consequently this Court does not have the benefit of the precise language involved in that contract. In the instant case, the purpose of the VBA is stated as follows:

Id. at 874.

The facts of Johnson appear to show the plaintiff was injured while being transported between the platform in question and the vessel provided by the contractor. On the question of the applicability of the LOIA, the Johnson court held:

404 F.3d at 877.

In the instant matter, Superior agrees Johnson stands for the proposition that the LOIA does not preclude enforcement of the indemnification terms of a VBA with a scope that solely involved the transportation of employees in a vessel in navigable waters. However, Superior argues because the scope of Superior's work under the VBA was much broader than vessel transportation, and because Butler was injured on the McMoran fixed platform during a lifting operation — a fact certainly relevant to a tort analysis, but less relevant to a contractual analysis — using the vessel/liftboat's crane, and not while being transported to or from the platform, Louisiana law would appear to govern the VBA, the contract, and the LOIA would invalidate the indemnification provisions of the contract.

This Court disagrees. First, one must not conflate those considerations called for in tort analysis to one of contract. Furthermore, the fact that the purpose of the VBA between Seacor and Superior might be broader in scope than the VBA in Johnson does not, necessarily, take the instant case out of the realm of Johnson, which held a similar VBA was a maritime contract. Indeed, in the instant case, the VBA extends to provide employees of Superior with "transportation, working, living or operating support aboard the Vessels" (emphasis added). In order to determine whether the "work" that the liftboat was performing is maritime in nature, this Court is informed by the nature of the contract between McMoran and Seacor for the liftboat. The record shows the liftboat in question was provided by Seacor for McMoran pursuant to a time charter, the purpose of which was to provide for the "lawful transportation of materials, supplies, equipment and personnel incidental to [McMoran's] operations in the exploration for and the production of oil and gas," clearly a maritime mission.

It is well-settled in the Fifth Circuit that time charters are maritime contracts, which come within federal maritime jurisdiction. See Angelina Cas. Co. v. Exxon Corp., U.S.A., Inc., 701 F.Supp. 556, 558 (E.D. La. Oct. 26, 1988), citing Kossick v. United Fruit Co., 365 U.S. 731, 735, 81 S.Ct. 886, 890, 6 L.Ed.2d 56 (1961). Thus, to the extent the liftboat in question was provided by Seacor for the purpose of the performance of maritime services, and as the VBA itself is a contract that addresses the use and boarding of the vessel, this Court concludes the VBA in question does not fall outside the purview of Johnson, and the VBA in the instant matter is a maritime contract. Therefore this Court concludes the VBA is a maritime contract and as such, maritime law applies to that contract. Therefore the OCSLA does not apply to this contract, and therefore Louisiana law does not apply to the VBA, and therefore the LOIA, also, does not apply and is, therefore, not applicable.

2. LHWCA

As a defense to Seacor's claim for defense and indemnity, Superior, also, argues the VBA is unenforceable pursuant to Section 905(b)3 of the LHWCA. Seacor, however, actually argues the exception contained in § 905(c), which addresses reciprocal indemnity agreements4 applies and argues the prohibition of 905(c). Superior's argument is two-pronged: (1) first, Superior argues the LHWCA applies only to non-seamen employed on the outer continental shelf, and that because the plaintiff claims to be a Jones Act seaman, there are questions of material fact that preclude a determination of whether the LHWCA bars the indemnity provisions at issue; (2) second, Superior argues that pursuant to Fifth Circuit jurisprudence, the reciprocal indemnity agreement in question must be between the employer and the vessel in its capacity as vessel owner. In this case, Superior argues Seacor admits it had a contract with McMoran pertaining to a well, and the vessel was, in fact, used to support the temporary plugging and abandonment of the WC 193 #1 well. Thus, Superior argues there are unresolved questions as to whether Seacor, in contracting with Superior, was acting in its capacity as vessel owner, or only as a contractor of McMoran.

This Court concludes both of Superior's arguments are misplaced. First, with respect to Superior's argument that because the plaintiff claims to be a Jones Act seaman, there are questions of material fact that preclude a determination of whether the LHWCA bars the indemnity provisions at issue, the Court concludes this argument is not persuasive. The plaintiff is either a Jones Act seaman, or he is not. If he is a Jones Act seaman, as alleged, the LHWCA does not apply as to the plaintiff's recovery, however, even if this Court were to accept Superior's argument — which it does not for reasons this Court need not express at this time — if the LHWCA were not to apply — its provisions would, therefore, not act to bar the indemnity provisions. However, under Superior's argument, if the plaintiff is not a Jones Act seaman, then Superior argues by inference, the exception contained in § 905(c) of the LHWCA would apply. Even if this Court were to assume that was the case, under the language of § 905(c), reciprocal indemnity provisions are not barred, thus, the LHWCA would, in that instance, not act to bar the indemnity provisions as well. Thus, under either prong of Superior's argument, the LHWCA would not bar application of the indemnity provisions of the VBA.

Consequently, Superior's argument that there are unresolved factual questions as to whether Seacor, in contracting with Superior, was acting in its capacity as vessel over, or only as a contractor of McMoran, is, again, unpersuasive. Here, the agreement in question is the Vessel Boarding Agreement between Seacor and Superior. This Court has concluded the contract to be a maritime contract. Thus, maritime law governs the contract and even if one were to assume the LHWCA were to apply — § 905(c) would not bar a reciprocal provision contract such as those in the VBA. Thus, Superior's argument must fail. However, the relief requested by Seacor is overly broad. Whether the actual contractual language is otherwise enforceable, is not a matter raised by the arguments made by the parties and this Court declines to reach beyond the findings noted — the VBA is a maritime contract; the LOIA does not apply and assuming § 905(c) were to apply, it would not, as a matter of law, vitiate the reciprocal indemnity agreement.

IV. Conclusion

Considering the foregoing,

IT IS ORDERED that the Motion for Summary Judgment [Doc. 14] filed by defendant/cross-claimant Seacor Liftboats, Inc. is GRANTED IN PART and DENIED IN PART. It is GRANTED to the extent that this Court concludes that maritime law governs the Vessel Boarding Agreement between Seacor and Superior, and the defense and indemnity provisions contained therein are not barred by the LOIA, nor would they be barred by § 905(c), if applicable. This Court is unable to determine whether other provisions of the Vessel Boarding Agreement might impact the defense and indemnity provisions, therefore, this Court concludes only that the provisions are not vitiated by the application of the LOIA, nor § 905(c) of the LHWCA.