5th Circuit Finds Record Insufficient to Confirm OCSLA Situs in Indemnity Dispute

The U.S. Fifth Circuit Court of Appeals recently addressed the situs requirement of a personal injury claim arising under the Outer Continental Shelf Lands Act (OCSLA).  Tetra Technologies was performing a salvage operation on a decommissioned oil production platform in the Gulf of Mexico and retained Vertex Services to assist with the project.  A rigger employed by Vertex was injured when he fell approximately 80 feet into the water.  He sued Tetra for personal injury and Tetra sought indemnity from Vertex pursuant to a Master Service Agreement between the two companies.  The District Court determined Tetra was entitled to indemnity from Vertex and Vertex appealed to the 5th Circuit.


On appeal, Vertex raised several arguments including that under OCSLA, Louisiana law was applicable and the indemnity agreement was voided under the Louisiana Oilfield Indemnity Act (LOIA).  The first question for the Court was whether OCSLA applied to this case such that Louisiana law should be applied as a surrogate to federal law.  The adoption of state law as a surrogate to federal law requires 1) that the controversy arise on a situs covered by OCSLA (such as a fixed platform on the outer continental shelf); 2) that federal maritime law must not apply of its own force; and 3) state law must not be inconsistent with federal law.  For the controversy to arise on a situs covered by OCSLA in a contractual dispute, the majority of the work performed under the contract must occur on a stationary platform or other OCSLA situs.


After reviewing the plaintiff’s deposition testimony, the MSA, and the Salvage Plan, the Court was unable to conclude whether the majority of Vertex’s work was to be performed on an OCSLA situs.  The Court determined the record was inadequate and the case was remanded to the District Court for further evaluation of this dispositive question.


Tetra Technologies v. Continental Insurance Co.

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.

New District Director for the Sixth Compensation District

Kristina Hall, a longtime Claims Examiner in the Jacksonville office of OWCP, has been named as the new District Director for the Sixth Compensation District, replacing Charles D. Lee, who retired in March, 2015. Ms. Hall has been the acting District Director for the past four months. The Sixth District covers claims arising in Alabama, Florida, Georgia, Kentucky, North Carolina, South Carolina, and Tennessee.

Waiver of Registered Mail Service Approved by OWCP

OWCP, DLHWC has issued Industry Notice 152 effective June 10, 2015, which allows electronic service of notices and orders to longshore stakeholders. First proposed over five years ago by the DOL-Joint Bar Association, Inc., OWCP has issued revised regulations that allow parties to proceedings before OWCP to waive service by registered mail and receive notices and orders via email.

To elect electronic service, a party must complete and submit either Form LS-801 (Employers, Carriers and their representatives) or Form LS-802 (Claimants and their representatives). The forms can be obtained on the OWCP website: http://www.dol.gov/owcp/dlhwc/lsforms.htm.

The full text of the industry notice is below:

To speed delivery of benefits to injured workers covered by the Longshore and Harbor Workers’ Compensation Act (LHWCA), and its extensions, the Office of Workers’ Compensation Programs (OWCP), Division of Longshore and Harbor Workers’ Compensation (DLHWC), now offers an alternative electronic option for service of compensation orders. Any party to a claim or the party’s representative may now choose to waive service by certified mail and instead receive service via email.
BACKGROUND: Section 919(e) of the LHWCA provides that parties have a right to service of compensation orders by registered or certified mail. By practice, the Department has elected to use certified mail and has extended this manner of service to the parties’ representatives. See 20 C.F.R. 702.349(a). Effective June 10, 2015, a new implementing regulation found at 20 C.F.R. 702.349(b) allows parties and their representatives to waive certified mail service and consent to electronic service instead.
Revised 20 C.F.R. 702.349(b) provides:
All parties and their representatives are entitled to be served with compensation orders via registered or certified mail. Parties and their representatives may waive this right and elect to be served with compensation orders electronically by filing the appropriate waiver form with the district director responsible for administering the claim. To waive service by registered or certified mail, employers, insurance carriers, and their representatives must file form LS-801 (Waiver of Service by Registered or Certified Mail for Employers and/or Insurance Carriers), and claimants and their representatives must file form LS-802 (Waiver of Service by Registered or Certified Mail for Claimants and/or Authorized Representatives). A signature on a waiver form represents a knowing and voluntary waiver of that party’s or representative’s right to receive compensation orders via registered or certified mail.
(1) Waiving parties and representatives must provide a valid electronic address on the waiver form.
(2) Parties and representatives must submit a separate waiver form for each case in which they intend to waive the right to certified or registered mail service.
(3) A representative may not sign a waiver form on a party’s behalf.
(4) All compensation orders issued in a claim after receipt of the waiver form will be sent to the electronic address provided on the waiver form. Any changes to the address must be made by submitting another waiver form. Individuals may revoke their service waiver at any time by submitting a new waiver form that specifies that the service waiver is being revoked.
(5) If it appears that service in the manner selected by the individual has not been effective, the district director will serve the individual by certified mail.
The only method of electronic service OWCP is providing at this time is transmission via email. Thus, under section 702.349(b), any party to a claim or their representative may now sign up for email service of compensation orders by waiving certified mail service. This includes claimants, employers, insurance carriers, self-insured employers, and attorneys (or lay representatives) for both claimants and employer/carriers. Parties and representatives who do not waive certified mail service in accordance with the procedures below will receive compensation orders via certified mail.
1. If a party wishes to request service via email, the appropriate “Waiver of Service by Registered or Certified Mail” form must be completed and submitted to OWCP for inclusion in the case file. There are two different waiver forms, and they are both available on the DLHWC website (http://www.dol.gov/owcp/dlhwc/lsforms.htm).
The correct form, based on the party submitting the waiver, must be used or the waiver will be deemed invalid. No other request – written or verbal – will be honored.
LS-801 (Waiver of Service by Registered or Certified Mail for Employers and/or Insurance Carriers) is to be used by Employers, Insurance Carriers, and their representatives.

LS-802 (Waiver of Service by Registered or Certified Mail for Claimants and Authorized Representatives) is to be used by claimants and their representatives.
2. The waiver form requires the author to identify his/her role in the claims process; name, firm or business name (if applicable); and the email address(es) to which compensation orders should be sent. No more than two (2) email addresses can be listed on the form.
A representative, including an attorney, may not sign a waiver form on a party’s behalf.
3. All fields on the form must be completed. It must be signed, dated and submitted to OWCP.
DLHWC’s Secure Electronic Access Portal (SEAPortal) may be used to upload the waiver form into the case file. (See Industry Notice No. 148, issued October 31, 2014.) The SEAPortal can be accessed at the following web address: https://seaportal.dol-esa.gov/. The document category option to be used during the upload process is “Waiver of Service by Certified Mail (LS-801/802).”

Alternatively, the form may be mailed to the DLHWC Central Mail Receipt site at the following address: U.S. Department of Labor, OWCP/DLHWC, 400 West Bay Street, Suite 63A, Box 28, Jacksonville, FL 32202.
4. If the individual who signs the waiver form wishes to revoke the waiver or change the email address(es) for delivery, he/she must submit a new waiver form and check the appropriate box at the top of the form. No other request – written or verbal – will be honored.
5. When a compensation order is served via email, the subject line of the email will be “Compensation Order,” with the case number only, and the order will be attached as an Adobe document that is password protected. The password will be the injured worker’s date of birth in the following format: MM/DD/YYYY. The actual date of birth will not be provided since any party to the claim (or their representative) should have that information.
6. If the order is sent via email and OWCP receives a notice that it is undeliverable or otherwise appears not to have been transmitted, OWCP will then serve the order via certified mail to that recipient. (An out-of-office reply is not considered to be an “undeliverable” email.) If the order is sent via certified mail in this instance, written notice will be sent to that individual party or representative indicating that the attempt to serve the compensation order via email was unsuccessful. If the individual wishes to receive additional orders via email, he/she must file a new waiver form.
Signature on the waiver serves as a knowing and voluntary waiver of the right to receive the compensation order(s) by registered or certified mail. If any party or representative chooses to receive service via email, a hard copy of the order will not be sent via certified or registered mail to that party or representative. All other parties and representatives to the claim will receive service in the usual and customary manner (unless they have also waived their right to certified mail service). In light of the availability of email service, the DLHWC will no longer send courtesy copies of compensation orders to certain parties and representatives by fax as it has occasionally done in the past.