Dropping Anchor Does Not Trigger a Requirement to Provide Notice Under La. RS § 40:1749.11 for Dredge Owner

A dredge, seeking to secure position for anchoring, lowered its dredge ladder and cutter head into the seabed, striking a pipeline. The pipeline owner sued the owner of the dredge claiming, among other things, the dredge owner acted negligently in failing to discharge its notification responsibilities under the Louisiana Underground Utilities and Facilities Protection Law, La. Rev. Stat. Ann. § 40:1749.11 et seq. (referred to as “the One–Call Statute”), before engaging in the anchoring procedure.


The pipeline owner moved for partial summary judgment seeking a ruling that the dredge owner and operator had engaged in “excavation” and was therefore required to provide advance notice under the One-Call Statute. The district court denied the motion, and the pipeline owner appealed to the U.S. Fifth Circuit. Because it is “excavation” that triggers the notification requirement in the statute, the critical question is whether the dredge owner’s anchoring procedure constitutes “excavation.”

The pipeline owner argued that the dredge owner’s anchoring activity was an “operation for the purpose of movement … of earth,” and thus constitutes “excavation” under § 1749.12(6)’s general definition of the term. Specifically, the pipeline argued that the dredge owner’s activity had “the purpose of” moving earth because, “to accomplish” the objective of stopping the movement of the dredge, “the cutter head would have to dig into the seabed and displace the earth.”

The Court held that under the rule of lenity, Louisiana courts resolve ambiguities in the “penal” statute, such as the one at issue in this matter, in favor of the defendants. As such, the Court was required to adopt a narrow reading of “purpose”. The Court also distinguished between “knowledge” of the operation “moving the earth” and “purpose” of the operation “moving the earth.”

The Court found that anchoring did not have the “purpose” of moving the earth, and the district court’s ruling denying the pipeline company’s motion was affirmed.

Plains Pipeline, L.P. v. Great Lakes Dredge & Dock Co.

No Expansion of the Longshoreman Definition

Coming before the Louisiana Third Circuit Court of Appeals  was the question of whether the Claimant was covered by the Longshore and Harbor Workers’ Compensation Act or the Louisiana Workers’ Compensation Act.  After reviewing the situs and status requirements of the LHWCA, the Court found he did not fall under the longshoremen classification.

Claimant was an employee of UNO Enterprises, LLC. At the time of his injury, he was working under the direction and control of M. Matt Durrance, LLC, a heavy construction company which was hired by Breaux’s Bay Craft to construct a boat ramp on Bayou Tech in Loreauville, Louisiana- a navigable waterway. On the date of his injury, Claimant was cutting timber to be used for construction of the ramp. The uncontested facts of the case established that Claimant was in a grassy area between thirty and one hundred feet from the ramp while cutting the timber.

The Court engaged in a “situs” and “status” analysis to determine whether Claimant met the definition of longshoreman within the meaning of the LHWCA.  The Court was not persuaded by the comparison of the boat ramp to a pier, which is an enumerated situs under the Act, as there was no evidence to establish that the ramp was “a structure built on pilings extending from land to navigable water.” Furthermore, there was no evidence to establish the adjoining area in question was customarily used by the employer in the loading, unloading, repairing, dismantling or building a vessel. Claimant therefore did not meet situs or status test necessary to be covered by the LHWCA.  The Court noted that the Claimant “was performing work on property used to construct physical reinforcements to stabilize the earth around a boat launch.” Claimant’s involvement in building the boat ramp was deemed insufficient to trigger application of the LHWCA.

Hernandez v. Louisiana Workers’ Compensation Corp.

Geographical Proximity is Not the Only Factor in Deciding OCSLA Jurisdiction

Robert Lewis, Jr. filed suit under the Outer Continental Shelf Lands Act (OCSLA), alleging injuries to his left elbow, cervical spine, and lumbar spine as the result of an accident that occurred while working on Ram-Powell, a tension-leg fixed platform, located in the Gulf of Mexico in Viosca Knoll Block 956.  The parties agreed that under OCSLA the substantive law for injuries occurring on fixed offshore platforms located on the outer continental shelf is the law of the adjacent state.  However, they disagreed as to which state’s law applied.  Plaintiff argued that Louisiana law should apply as it was the geographically closest to the platform in question.  Defendants, on the other hand, asserted that Alabama was the adjacent state and its law should apply, and filed a motion for summary judgment on the issue.

The court turned to the Fifth Circuit’s opinion in Snyder Oil Corp. v. Samedan Oil Corp. in resolving the issue.  Samedan set forth four factors in determining adjacency: (1) geographical proximity; (2) which coast federal agencies consider the subject platform to be “off of”; (3) prior court determinations; and (4) projected boundaries if the states’ borders were extended to the shelf.   Plaintiff argued that not only was Ram-Powell geographically closer to Louisiana, but that he also travelled to and from the platform via Louisiana and had no connections to Alabama.  Plaintiff further argued that there were no controlling decisions on Block 956, and that any evidence regarding the projected boundary is not as determinative as geographic proximity.

In finding for Defendants, the U.S. District Court for the Eastern District of Louisiana recognized that while Block 956 was geographically closer to Louisiana due to its peculiar boot shape, the other three factors, viewed together, indicated that Alabama was the adjacent state.  First, various federal and state agencies considered the platform to be off the coast of Alabama.  Next, there was indeed a prior decision ruling that the Ram-Powell was adjacent to Alabama; and the platform in question in Samedon was further to the west than Ram-Powell, and it too was considered adjacent to Alabama.  Furthermore, the projected boundaries as set forth by the Minerals Management Service (MMS), U.S. Commerce Department, and U.S. Bureau of Ocean Energy Management (BOEM) all indicate that Block 956 is within the portion of the outer continental shelf of Alabama.  Lastly, the court rejected Plaintiff’s state of transit argument, stating that the geographic proximity factor does not place import on the state of transit.  Thus, partial summary judgment was granted and Alabama law applied.

Lewis v. Helmerich & Payne International Drilling Co., et al.

Mineral Lessee Does Not Have a Duty to Police the Waterways it Leases

In June 2014, Danny Luke was checking his crab traps when his skiff struck a submerged piling.  Mr. Luke’s vessel was damaged by the collision, and he sustained injuries to his head, neck, back, and other areas.  Mr. Luke alleges that the negligence of Hilcorp Energy Company and Roustabouts, Inc. caused the accident.  It is well established that a private company assumes liability for damages resulting from a collision of a boat with an obstruction in navigable waters when it has ownership, custody or is responsible for placement of the obstruction in the navigable waters.  Here, Hilcorp had held the mineral lease where the accident occurred since July 2010, and Roustabouts was contracted to provide oilfield construction services to Hilcorp.  Luke sued Hilcorp and Roustabouts in the U.S. District Court for the Eastern District of Louisiana.

The defendants moved for summary judgment contending that they did not own, control, maintain, place, or have any connection to the piling that struck Mr. Luke’s vessel.  In an attempt to establish a genuine dispute of material fact, Mr. Luke focused on the facts that Hilcorp and Roustabouts worked in the general area, Roustabouts removed the piling after the accident, and Hilcorp failed to inspect the waterway it leased.  The court emphasized that the mere argued existence of a factual dispute does not defeat an otherwise properly supported motion for summary judgment.  The court granted the motion, ruling that Mr. Luke failed to present any evidence that Hilcorp or Roustabouts owned or were responsible for the piling, and as such, owed no duty to Mr. Luke.  The court reasoned that a mineral lessee does not have a duty to those using navigable waterways to police the waters covered by its lease or to take steps to remove obstructions that it does not own, has not placed there, or does not maintain under its control.

Luke v. Hilcorp Energy Company, et al.