Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 98-30191

RICHARD H. HUFNAGEL,
Plaintiff-Appellant,
versus
OMEGA SERVICE INDUSTRIES, INC.;
KERR McGEE CORPORATION; GLOBAL
INDUSTRIES LIMITED,
Defendants-Appellees.

Appeal from the United States District Court for the
Western District of Louisiana

July 26, 1999
Before GARWOOD, BARKSDALE and BENAVIDES, Circuit Judges.
GARWOOD, Circuit Judge:
On April 23, 1996, plaintiff-appellant Richard H. Hufnagel
(Hufnagel) was injured while working on a drilling platform
permanently affixed to the outer Continental Shelf off the coast of
Louisiana. Hufnagel sued his employer, the platform owner, and the
owner of an adjacent jack-up boat, in Louisiana state court
alleging, among others, claims under the Jones Act, the general
maritime law, and as to each defendant "under the Louisiana Civil

Code, Articles 2315, 2317 and 2322, for the negligence, strict
liability, violations of the Coast Guard and Secretary of the
Interior Regulations, non-delegable statutory duties, rules and
regulations, having the force and effect of law wherein the
accident occurred." He has also alleged alternative claims under
the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 901
et. seq., and/or 33 U.S.C. § 905(B). The defendants removed the
case to the district court below, and Hufnagel moved to remand.
After denying remand, the district court certified its ruling on
the remand motion to this Court under 28 U.S.C. § 1292(b),
inquiring whether removal was prohibited by the Jones Act, and if
not, whether Hufnagel has presented claims which support federal
removal jurisdiction.
FACTS AND PROCEEDINGS BELOW
The pleadings and undisputed facts before the district court
on the motion to remand reflect the following.
Defendant-appellee Omega Service Industries, Inc. (Omega), a
Louisiana corporation, is an oilfield service company which
contracts with offshore platform owners to construct and repair
offshore oil and gas platforms. When a platform owner requests
service, Omega assigns a crew of available employees based on the
type of work requested. The platform owners transport or furnish
transportation for the workers from the shore to the platforms, and
the workers generally remain on the platform until the work is
2

complete. Sometimes, the workers sleep and eat meals on the
platforms. On other occasions, the platform owner supplies a jack-
up vessel to lodge the workers. Omega does not own or hire any
vessels, and no Omega employees are assigned as crew members of any
vessel.
Hufnagel began working for Omega in November 1994. Hufnagel
worked as a rigger, and his duties typically included assisting
welders and fitters. During the course of his employment with
Omega, Hufnagel had been assigned to work on twenty-six different
fixed platforms, for thirteen different customers. These
assignments ranged from one day to twenty-seven days. Hufnagel was
never permanently assigned to any particular customer or platform.
At the time of his injury, Hufnagel was working on a platform
owned by defendant-appellee Kerr-McGee Corp. (Kerr-McGee), which
was permanently affixed to the outer Continental Shelf off the
coast of Louisiana. Hufnagel and other Omega employees had been
assigned to repair pilings located on the platform. Kerr-McGee had
contracted with defendant-appellee Global Industries, Ltd.
(Global), a Louisiana corporation, to provide a vessel (the
AMBERJACK), which was used as a temporary work station and a hotel
where the workers ate and slept. Global supplied its own crew for
the AMBERJACK. Although Hufnagel claims to have spent a majority
of his working hours aboard the AMBERJACK, Hufnagel had no duties
regarding the maintenance, custody, or operation of the vessel.
Hufnagel, a citizen of Louisiana, sued Omega, Kerr-McGee, and
3

Global in Louisiana state court. Hufnagel's state court petition
alleges:
"2.
At all pertinent times herein, the petitioner,
RICHARD H. HUFNAGEL, was an employee of OMEGA, INC.
3.
On or about April 23, 1996, the petitioner, RICHARD
H. HUFNAGEL, was working in the course and scope of his
employment when he was severely injured. The petitioner
was working on a scaffold erected onto a piling of a
fixed platform located at Ship Shoal 239B, said platform
believed to be owned by KERR MCGEE CORPORATION, located
off the coast of the State of Louisiana on the outer-
continental shelf.
4.
While attempting to repair the aforesaid piling, the
petitioner was struck in the face by a chain and/or hook
fixed to a come-a-long which was being used in the course
of repair of the piling."
Hufnagel's state court pleading further alleged that the
AMBERJACK was "owned and operated by Global," and that he was a
member of the crew of the AMBERJACK, and was hence entitled to
bring a claim under the Jones Act. Additionally, Hufnagel raises
claims under maritime law and the Louisiana Civil Code, made
surrogate federal law by application of the Outer Continental Shelf
Lands Act, 43 U.S.C. § 1331 et. seq. (OCSLA).
The defendants removed the case to federal court, asserting,
inter alia, that the Jones Act claim was fraudulently pled.
Hufnagel moved for remand, arguing that Jones Act cases are not
removable. The district court concluded that the undisputed
4

evidence demonstrated that as Hufnagel was not a seaman he had no
arguable Jones Act claim and therefore the Jones Act did not bar
removal. The court found that Hufnagel had stated a claim against
Kerr-McGee arising under the OCSLA, thus supporting removal
jurisdiction under 28 U.S.C. § 1441(a) & (b). Therefore, the court
denied Hufnagel's motion to remand despite the absence of complete
diversity and the fact that two of the three defendants are
Louisiana citizens. We hold that the district court correctly
denied the motion to remand.
DISCUSSION
I. The Jones Act
"As a general rule, . . . Jones Act cases are not removable."
Burchett v. Cargill, Inc., 48 F.3d 173, 175 (5th Cir. 1995); 46
App. U.S.C. § 688 (incorporating general provisions of Federal
Employers' Liability Act, including 28 U.S.C. § 1445(a), which bars
removal). However, "`defendants may pierce the pleadings to show
that the Jones Act claim has been fraudulently pleaded to prevent
removal.'" Burchett, 48 F.3d at 175, quoting Lackey v. Atlantic
Richfield Co., 990 F.2d 202, 207 (5th Cir. 1993). A fraudulently
pleaded Jones Act claim does not bar removal. See id. While a
district court should not pre-try a case to determine removal
jurisdiction, the court may use a "summary judgment-like procedure"
to dispose of the assertion that the Jones Act claim was
fraudulently pleaded. See Burchett, 48 F.3d at 176. The court may
5

deny remand where, but only where, resolving all disputed facts and
ambiguities in current substantive law in the plaintiff's favor,
the court determines that the plaintiff has no reasonable
possibility of establishing a Jones Act claim on the merits. Id.
The district court correctly held that the undisputed evidence
establishes that Hufnagel was not a seaman and hence could not
recover under the Jones Act. To maintain a cause of action under
the Jones Act, the plaintiff must be a seaman. Land-based workers
are not seamen. See Harbor Tug and Barge Co. v. Papai, 117 S.Ct.
1535, 1540 (1997).
The Supreme Court has established a two-part test to determine
seaman-status:

"First . . . an employee's
duties must
contribute to the function of the vessel or to
the accomplishment of its mission . . .
"Second, and most important for our purposes
here, a seaman must have a connection to a
vessel in navigation (or to an identifiable
group of such vessels) that is substantial in
terms of both its duration and its nature."
Harbor Tug, 117 S.Ct. at 1540 (quoting
Chandris, Inc. v. Latsis, 115 S.Ct. 2172, 2179
(1995)) (citations and internal quotation
marks omitted).
The requirement that a seaman have a substantial connection to
a vessel or identifiable fleet of vessels serves to distinguish
sea-based workers whose employment regularly exposes them to "the
perils of the sea," from primarily land-based workers who have only
sporadic or tangential connections to navigation. See Harbor Tug,
6

117 S.Ct. at 1540. Therefore, seaman-status is determined by the
employee's entire employment-related connection to a vessel, and
not by the immediate circumstances or location of the plaintiff's
injury. See Chandris, 115 S.Ct. at 2187 ("[C]ourts should not
employ a <snapshot' test for seaman status, inspecting only the
situation as it exists at the instant of injury; a more enduring
relationship is contemplated in the jurisprudence.") (internal
quotation marks and citation omitted).
Hufnagel claims to have been a crew member of the AMBERJACK,
entitling him to bring a Jones Act claim.1 However, Hufnagel was
an employee of Omega, which neither owned nor controlled any
vessel. The AMBERJACK, owned and controlled by Global, came with
its own crew, supplied by Global. Global was hired by Kerr-McGee,
not Omega. In his deposition, Hufnagel was not able even to
identify these AMBERJACK crew members or their responsibilities.2
1
It is clear that the fixed platform on which Hufnagel was
working when he was injured was not a vessel. Such platforms are
legally man-made islands, not vessels, and Hufnagel does not
contend otherwise. See generally Rodrigue v. Aetna Casualty and
Surety Co., 89 S.Ct. 1835 (1969) (holding injuries occurring on
fixed platforms not within admiralty jurisdiction). See also,
e.g., Lormand v. The Superior Oil Co., 854 F.2d 536, 540 (1987)
(finding worker who spent majority of working hours aboard platform
was not a seaman); Barrett v. Chevron U.S.A., Inc., 781 F.2d 1067,
1076 (5th Cir. 1986) (same).
2
"Q. Global is the company that supplied the
boat crew; is that correct?
A. Yes.
Q. And that was comprised of a captain;
A. Yes.
. . .
7

Hufnagel concedes that no Omega employee was involved with the
navigation of the AMBERJACK, and that the Omega employees and
AMBERJACK crew had separate duties, although the Omega employees
may have assisted to position the vessel over the platform.3
Furthermore, Hufnagel does not allege, and no facts suggest, that
he acted as a borrowed servant of Global or the AMBERJACK, since
Global maintained no supervision or control over Hufnagel or the
performance of his duties. See Addison v. Gulf Coast Contracting
Servs., 744 F.2d 494, 499 (5th Cir. 1984).
Hufnagel's duties in no way "contribut[ed] to the function of
the vessel or to the accomplishment of its mission." See Chandris,
115 S.Ct. at 2184 (internal quotation marks and citation omitted).
Hufnagel's duties involved platform work, and were not related to
Q. A crane operator;
A. Yes.
. . .
Q. Who else was a Global employee on that
jack-up barge that you can recall?
A. I believe they had an engineer and I
believe they just had a couple of hands.
There was a bunch of them running around. I
don't know specifically what everybody did."
3
"Q. As an employee of Omega, you didn't have
any responsibilities for jacking the boat up
or down, did you?
A. No, sir.
Q. Or moving that jack-up boat into position?
A. No, sir.
Q. The boat crew did that sort of thing;
correct?
A. Yes. We assisted when we got to the
platform to position."
8

the navigation, maintenance, or voyage of the AMBERJACK.
Hufnagel's sole purpose for being present on the platform or the
AMBERJACK related to the repair of the platform. The AMBERJACK, by
contrast, was present to support the repair crew by providing
lodging quarters and a work area. Hufnagel's duties as a platform
worker in no way contributed to "doing the ship's work." See
McDermott, Int'l v. Wilander, 111 S.Ct. 807, 817 (1991).
The facts that Hufnagel ate, slept, and spent time on the
AMBERJACK do not make him a crew member. See Golden v. Rowan
Companies, Inc., 778 F.2d 1022, 1025 (5th Cir. 1985) ("The facts
that Golden lived on the tender and that some of his tools and
machine parts were stored there do not mean that he was permanently
assigned to the tender."). Nor does the fact that Hufnagel may
have performed minor duties aboard the AMBERJACK transform his
position as a platform worker into that of a seaman. See Barrett
v. Chevron, U.S.A., Inc., 781 F.2d 1067, 1075 (5th Cir. 1986)
(considering amount of time spent working on vessels during
claimant's one-year employment with employer); Longmire v. Sea
Drilling Corp., 610 F.2d 1342, 1346 (5th Cir. 1980) (holding
platform worker who was injured while assisting to stow anchor
chain of tender vessel was not a seaman where he was not
permanently assigned to that vessel, and work on vessel was
incidental to worker's primary responsibilities).
Hufnagel did not have a substantial connection with the
9

AMBERJACK during the course of his employment with Omega. The
Omega job on this particular fixed platform began March 28, 1996,
and Hufnagel had never previously been aboard the AMBERJACK.
Indeed, Hufnagel had never been aboard the AMBERJACK before April
16, 1996. Nor could Hufnagel ever expect to board the AMBERJACK
during the future course of his employment. Hufnagel's connection
to the AMBERJACK was only transitory and fortuitous, and does not
qualify him as a seaman. See Barrett, 781 F.2d at 1074 ("[T]o be
deemed a <seaman' within the meaning of the Jones Act, a claimant
[must] have more than a transitory connection with a vessel or a
specific group of vessels.") (internal quotation marks and footnote
omitted).
Similarly, Hufnagel cannot establish a connection to any
identifiable group or fleet of vessels. Over the course of his
employment, Hufnagel had been assigned to work for thirteen
different customers on twenty-six different platforms. Each
assignment involved essentially the same platform-related services.
These assignments were all short-term and none entailed a permanent
assignment to any vessel. While Hufnagel and other Omega employees
slept on vessels during some assignments, the vessels were always
different, provided by different customers, and owned and operated
by different companies. The vessels were not subject to common
ownership or control. They were not an identifiable fleet of
vessels for purposes of Jones Act seaman status. See Barrett, 781
10

F.2d at 1074 ("By fleet we mean an identifiable group of vessels
acting together or under one control. We reject the notion that
fleet of vessels in this context means any group of vessels an
employee happens to work aboard.") (footnote omitted).
Papai, the respondent in Harbor Tug, had obtained short-term
maintenance, longshoring, and deckhand jobs on several vessels
through a union hiring hall. During the two and one-quarter years
before his injury, Papai had worked for several different vessels
owned by three separate employers. See Harbor Tug, 117 S.Ct. at
1540. After suffering injuries in the course of his employment,
Papai filed a Jones Act claim, and argued that the three vessels on
which he had worked were an identifiable group of vessels because
Papai had been hired by each of them through the same hiring hall.
Id. The Supreme Court noted that the "substantial connection to a
vessel" criterion does not mechanically require that the worker
have a connection to one single vessel. See Harbor Tug, 117 S.Ct.
at 1540. However, a group of vessels will only qualify where it is
a specific, identifiable fleet or a finite group of vessels,
subject to common ownership or control. Id. at 1540, 1541. This
corresponds to the Act's primary mission to protect only those
employees who are "more or less permanent[ly] assign[ed]" to a
vessel in navigation. See Chandris, 115 S.Ct. at 1290. Thus, the
rule might apply where a sea-based repairman, for example, worked
on several different boats from his employer's fleet. However, in
11

Harbor Tug, the vessels were not subject to common ownership or
control. See Harbor Tug, 117 S.Ct. at 1540. The Court found no
identifiable grouping in a series of ships which, by happenstance,
had hired the same employee from a common place. See Harbor Tug,
117 S.Ct. at 1541.
The vessels in this case share even less of a connection to
each other than did those in Harbor Tug. In Harbor Tug, the
vessels had each hired Papai from one hiring hall. Here, the
vessels had been hired by various companies whose only connection
was that they had contracted with the same third party, Omega.
This remote connection is too attenuated to qualify these vessels
as "an identifiable fleet." There was no common ownership or
control of the vessels. Indeed, there was no link whatever among
them other than the coincidence that they happened to be the
vessels provided as support or jack-up rigs by Omega's various
customers.
The undisputed evidence reflects that as a matter of law
Hufnagel was not a seaman and hence had no even arguable Jones Act
claim. Therefore, remand was not required by the Jones Act.
II. Removal Jurisdiction
A. OCSLA
The absence of a valid Jones Act claim, of course, does not
automatically vest jurisdiction in the district court. We must
determine, therefore, whether Hufnagel's suit was removable.
12

Removal must be proper under 28 U.S.C. § 1441, which authorizes
removal of cases "of which the district courts of the United States
have original jurisdiction," section 1441(a), provided that, apart
from cases "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," removal is not proper
unless "none of the . . . defendants is a citizen of the State in
which such action is brought."4
We hold that removal was proper because of the Outer
Continental Shelf Lands Act, 42 U.S.C. § 1331 et. seq. (OCSLA).
OCSLA provides, in pertinent part, that "[t]he subsoil and
seabed of the outer Continental Shelf appertain to the United
States and are subject to its jurisdiction, control, and power of
disposition. . . ." 43 U.S.C. § 1332(a). The district courts of
the United States have jurisdiction over claims "arising out of, or
in connection with (A) any operation conducted on the outer
Continental Shelf which involves exploration, development, or
4
It is settled that general maritime claims do not "arise under
the Constitution, treaties, or laws of the United States" for
purposes of original federal question jurisdiction under 28 U.S.C.
§ 1331 and an admiralty action filed in state court under the
savings to suitors clause, 28 U.S.C. § 1333(1), is not removable
solely because as an admiralty action it could have initially been
filed in federal court; but removal of such an action is
nevertheless possible if federal jurisdiction is based on something
other than admiralty, such as diversity or a statutory provision.
See Tennessee Gas Pipeline v. Houston Casualty Insurance Company,
87 F.3d 150, 153 & ns.5&6 (5th Cir. 1996). Here there is no
diversity.
13

production of the minerals, of the subsoil and seabed of the outer
Continental Shelf. . . ." 43 U.S.C. § 1349(b)(1).
Congress enacted OCSLA to provide a federal body of law to
govern operations on the outer Continental Shelf. See Rodrigue v.
Aetna Casualty and Surety Co., 89 S.Ct. 1835 at 1837 (1969) ("The
purpose of the Lands Act was to define a body of law applicable to
the seabed, the subsoil, and the fixed structures such as those in
question here on the outer Continental Shelf."). OCSLA is
exclusively federal law. However, recognizing that the statutory
federal law may in some areas be inadequate, OCSLA incorporates
aspects of the laws of adjacent states, where those laws are not
inconsistent with OCSLA. These incorporated state laws become
"surrogate federal law," and are considered exclusively federal law
when applicable under OCSLA. 43 U.S.C. § 1333(a)(2)(A).5 See
Rodrigue, 89 S.Ct. at 1838 ("It is evident from this [legislative
5
Section 1333(a)(2)(A) provides in relevant part:
"To the extent that they are applicable and not
inconsistent with this subchapter or with other Federal
laws and regulations of the Secretary now in effect or
hereafter adopted, the civil and criminal laws of each
adjacent State, now in effect or hereafter adopted,
amended, or repealed are hereby declared to be the law of
the United States for that portion of the subsoil and
seabed of the outer Continental Shelf, and artificial
islands and fixed structures erected thereon, which would
be within the area of the State if its boundaries were
extended seaward to the outer margin of the outer
Continental Shelf . . . . All of such applicable laws
shall be administered and enforced by the appropriate
officers and courts of the United States." (Emphasis
added).
14

history] that federal law is <exclusive' in its regulation of this
area, and that state law is adopted only as surrogate federal
law.").
Hufnagel's petition does not plead OCSLA eo nomine. But it
does expressly plead that the "fixed platform" is located, and the
events occurred, "on the outer continental shelf." Furthermore,
Hufnagel sues Kerr-McGee under the Louisiana Civil Code, which,
inter alia, provides for strict liability for the ruinous condition
of a structure.6 There is nothing which would make Kerr-McGee's
platform or its condition subject to Louisiana law other than
OCSLA, which incorporates this Civil Code provision as "surrogate
federal law." Hufnagel's petition also generally alleges against
Kerr-McGee unspecified "violations of the Coast Guard and Secretary
of the Interior Regulations . . . having the force and effect of
law wherein the accident occurred," apparently referring to the
platform. This presumably refers to regulations issued under the
authority of OCSLA. See 43 U.S.C. § 1333 (d)(1) ("[t]he Secretary
of the Department in which the Coast Guard is operating shall have
authority to promulgate . . . regulations . . . relating to the
promotion of safety of life and property on the artificial islands,
6
Hufnagel's petition alleges that Kerr-McGee is liable to him
by virtue of "strict liability for the ruinous condition of the
platform's piling, pursuant to LA Civil Code Article 2322." See
Haas v. Atlantic Richfield, 799 F.2d 1011, 1012-1014 (5th Cir.
1986). Hufnagel's petition also alleges, among other things, that
Kerr-McGee "failed to provide" him "with a safe place within which
to work."
15

installations, and other devices referred to in subsection (a) . .
. .)." Finally, Hufnagel has consistently acquiesced in the
defendants-appellees' characterization of his suit as including
OCSLA claims. We therefore interpret Hufnagel's complaint to
assert claims under OCSLA.
We apply a broad "but-for" test to determine whether a cause
of action arises under OCSLA. See Recar v. CNG Producing Co., 853
F.2d 367, 369 (5th Cir. 1988). In Recar, we held that OCSLA
applied to a personal injury suit brought by a platform worker when
a rope from which he was swinging on the platform broke, causing
him to fall on the deck of an adjacent transport vessel. The
worker's employment furthered mineral development on the outer
Continental Shelf, and "but for" that employment the worker would
not have been injured. Therefore, the federal court had original
jurisdiction over Recar's claims. Id.
Similarly, Hufnagel's employment furthered mineral production
on the shelf. Hufnagel's injuries occurred on a stationary
drilling platform involved in the "exploration, development, or
production" of minerals on the shelf. See 43 U.S.C. § 1349(b)(1).
But for Hufnagel's work on the platform, his injury would not have
occurred. Hufnagel's injuries arose out of an operation involving
the production of minerals on the shelf, and his claims fall within
the jurisdictional grant of the OCSLA. Therefore, the district
court would have had jurisdiction over Hufnagel's claims had he
16

chosen to file them in federal court. See also Tennessee Gas
Pipeline v. Houston Casualty Ins. Co., 87 F.3d 150, 154-55 (5th
Cir. 1996).
However, OCSLA does not necessarily transform maritime claims
falling within its jurisdictional grant into claims arising under
federal law. Because OCSLA does not displace general maritime law,
substantive maritime law continues to govern where both OCSLA and
general maritime law could apply. See Smith v. Penrod Drilling,
960 F.2d 456, 459 (5th Cir. 1992) ("When an event occurs on an
OCSLA situs but also is governed by maritime law, maritime law
controls.") (citation omitted).7 Moreover, maritime cases do not
"arise under" federal law for purposes of federal removal
jurisdiction. See Tennessee Gas Pipeline v. Houston Casualty Ins.
Co., 87 F.3d 150, 153 (5th Cir. 1996), and note 4, supra.
Therefore, where a claim within OCSLA's grant of original federal
7
We stated in Tennessee Gas Pipeline, 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 maritime law. . . . According to the
statute, `this subchapter shall be construed in such a
manner that the character of the waters above the outer
Continental Shelf as high seas and the right to
navigation and fishing therein shall not be affected.'
[quoting 43 U.S.C. § 1332(2)] Furthermore, 43 U.S.C. §
1333(f) makes clear that the applicability of OCSLA law
under 43 U.S.C. § 1333(a) shall not give rise to any
inference that other provisions of law (such as general
maritime law), do not also apply. It is not surprising,
therefore, that this court has declared that where OCSLA
and general maritime law both could apply, the case is to
be governed by maritime law." (Footnotes omitted).
17

court jurisdiction is nevertheless governed by maritime law, it
arguably does not provide removal jurisdiction unless no defendant
is a citizen of the state of suit, notwithstanding that it would
fall within the federal district court's original jurisdiction
under OCSLA. As previously noted, the federal removal statute
allows defendants to remove civil actions originally filed in state
court, if the federal district court would have had original
jurisdiction over the plaintiff's action. 28 U.S.C. § 1441(a).
However, section 1441(b) places a restriction on removal: While
claims "arising under" federal law may be removed without regard to
citizenship, "[a]ny other such action" may be removed only if no
defendant is a citizen of the state in which the action was filed.
28 U.S.C. § 1441(b). Consequently, where plaintiffs have alleged
maritime claims which fall within OCSLA's jurisdictional grant,
some courts have held that those cases may be removed only subject
to subsection 1441(b)'s restriction that no defendant may reside in
the state in which the case is filed. See, e.g., Bulen v. Hall-
Houston Oil Co., 953 F.Supp. 141, 144-45 (E.D. La. 1997) (where
admiralty and OCSLA claims overlap, substantive maritime law
applies and OCSLA does not provide basis for removal); Courts v.
Accu-Coat Services, Inc., 948 F.Supp. 592, 595 (W.D. La. 1996)
(remanding maritime claims); Fogleman v. Tidewater Barges, Inc.,
747 F.Supp. 348, 355-56 (E.D. La. 1990) (OCSLA cannot provide
removal jurisdiction where claim is governed by maritime law).
18

Compare Stokes v. Petroleum Helicopters, 1997 WL 695557 (E.D. La.
1997) (not reported in F.Supp.) (holding OCSLA transformed state
law claims into claims arising under federal law for removal
purposes); Broussard v. John E. Graham & Sons, 798 F.Supp. 370,
374 (M.D. La. 1992) (finding diversity of citizenship irrelevant
where OCSLA applied).
In Tennessee Gas, we noted the "conundrum" that section
1441(b) places citizenship restrictions on the removal of claims,
even though citizenship is arguably irrelevant to the district
court's original jurisdiction under the OCSLA. See Tennessee Gas,
87 F.3d at 156. However, we did not resolve the dilemma because
the only defendant there, though a citizen of the same state as was
the plaintiff, was not a citizen of the state in which the suit was
brought. See id. (suggesting in dicta that congressional intent of
OCSLA might support removal under first sentence of subsection
1441(b)).
We need not resolve this conundrum today either, as we
conclude as a matter of law that Hufnagel has asserted against
Kerr-McGee a non-maritime claim, a claim governed not by maritime
law but by La. Civil Code § 2322, which is made applicable federal
law by OCSLA, 43 U.S.C. § 1233(a)(2)(A). See, e.g., Haas v.
Atlantic Richfield, 799 F.2d 1011 (5th Cir. 1986). Such claim is
one "arising under" OCSLA within the meaning of section 1441(b) and
section 1331 and hence is not subject to section 1441(b)'s
19

restriction to cases in which no defendant is a citizen of the
state of suit. Indeed, for the reasons stated below we conclude
that none of Hufnagel's claims against Kerr-McGee--or the other
defendants for that matter--is a maritime claim.8
B. Not Maritime Claims
Hufnagel's claims are not maritime. To give rise to a tort
claim in admiralty, an incident must have both a maritime situs and
a connection to traditional maritime activity. Jerome B. Grubart,
Inc. v. Great Lakes Dredge & Dock Co., 115 S.Ct. 1043 (1995);
Sisson v. Ruby, 110 S.Ct. 2892 (1990); Foremost Ins. Co. v.
Richardson, 102 S.Ct. 2654 (1982); Executive Jet Aviation, Inc. v.
City of Cleveland, Ohio, 93 S.Ct. 493 (1972). Hufnagel's claims
fail both requirements.
The situs requirement or "location test" requires the
plaintiff to show that the tort either occurred on navigable
waters, or if the injury is suffered on land, that it was caused by
a vessel on navigable waters. See Grubart, 115 S.Ct. at 1048; 46
App. U.S.C. § 740. Hufnagel's accident, which occurred on an off-
shore fixed drilling platform, did not occur on navigable waters.
See, e.g., Rodrigue, 89 S.Ct. at 1839-40 (drilling platforms are
not within admiralty jurisdiction); Smith, 960 F.2d at 459
("Drilling platforms constitute <artificial islands' under section
8
Even if one of the other claims might be characterized as
maritime, it too would be removable under section 1441(c).
20

1333(a)(1)."). Fixed drilling platforms do not exist for any
purpose related to traditional maritime navigation or commerce.
For this reason, the Court has compared fixed platforms to piers,
jetties, bridges, and ramps running into the sea, which have not
supported the application of maritime law. See Rodrigue, 89 S.Ct.
1839-1840 ("[The platform] was an island, albeit an artificial one,
and the accidents had no more connection with the ordinary stuff of
admiralty than do accidents on piers.").
Further, the accident was not caused by any vessel on
navigable waters. Neither Hufnagel nor the platform nor any
equipment involved was struck by a vessel. Hufnagel was struck by
equipment attached to the platform, which is not a navigable
vessel. See Rodrigue, 89 S.Ct. at 1840 ("The legislative history
of the Lands Act makes it clear that these structures were to be
treated as island or as federal enclaves within a landlocked State,
not as vessels."). Thus, the accident fails the location test.
The accident also fails the connection test. The connection
test requires that the activity which caused the plaintiff's injury
bear a significant relationship to traditional maritime commerce.
Id. The court must determine whether the general character of the
activity giving rise to the accident bears a "substantial
relationship with traditional maritime activity." See Grubart, 115
21

S.Ct. at 1048 (internal quotation marks and citation omitted).9
The key inquiry is whether the allegedly tortious activity 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 hand." See Grubart, 115 S.Ct. at 1051.
The activity giving rise to Hufnagel's accident may be
characterized as the repair and construction of a fixed offshore
drilling platform. Construction work on fixed offshore platforms
bears no significant relation to traditional maritime activity.
See Herb's Welding, Inc. v. Gray, 105 S.Ct. 1421, 1428 (1985)
(finding offshore platform worker not engaged in maritime
employment). See also, e.g., Rodrigue, 89 S.Ct. at 1841 (finding
within OCSLA's legislative history "the view that maritime law was
inapposite to these fixed structures."); Laredo Offshore
Constructors, Inc. v. Hunt Oil Co., 754 F.2d 1223, 1231 (5th Cir.
1985) (contract for construction of stationary drilling platform
bore no direct relationship to traditional subjects of maritime
law); In Re Dearborn Marine Services, Inc., 499 F.2d 263, 272-276
9
The connection test actually has two parts. First, the court
must assess the general features of the incident giving rise to the
lawsuit and determine whether that general sort of incident has a
"<potentially disruptive impact on maritime commerce[.]'" Grubart,
115 S.Ct. at 1048 (quoting Sisson v. Ruby, 110 S.Ct. 2892, 2896,
(1990)) (internal quotation marks omitted). Second, the court must
determine whether the general character of the activity giving rise
to the tort has a "substantial relationship to traditional maritime
activity." Id. Because a positive answer to the second inquiry is
precluded by precedent, we do not address the first.
22

(5th Cir. 1974) (holding platform worker's death, which occurred as
a result of an explosion on a platform, bore no significant
relation to maritime law, despite fact that death occurred while
worker was actually located on vessel in navigable waters).
Hufnagel's accident similarly occurred on a fixed drilling
platform having no function in navigation, and bearing no purpose
relating to traditional maritime activities. The platform existed
solely to obtain minerals from the shelf. Hufnagel's accident had
no greater connection to traditional maritime commerce than did the
accident in Rodrigue.
This case is unlike the limited situations in which this Court
has found off-shore drilling accidents giving rise to admiralty
tort claims. See, e.g., Coats v. Penrod Drilling Corp., 61 F.3d
1113, 1119 (5th Cir. 1995) (en banc) (accident and injury actually
occurred on jack-up vessel on navigable waters when vessel's
pressure plug failed).10
Hufnagel's injury occurred entirely on the fixed platform and
was caused entirely by his work on the platform. According to his
10
Tennessee Gas Pipeline held (or at least assumed) that a tort
claim for damages to a fixed platform caused by its being struck by
a vessel in navigation due to the vessel's negligence was governed
by maritime law. See 46 App. U.S.C. § 740. Smith v. Penrod
Drilling Corp., 960 F.2d 456, 459, 460 (5th Cir. 1992), involved
the question whether a contract between the owner of a fixed
platform on the outer Continental Shelf off Louisiana and the owner
of a jack-up drilling vessel for services to be performed by the
vessel at the platform was governed by Louisiana law or maritime
law; we held maritime law applied because "`the main piece of
equipment to be supplied [by the contractor] was a vessel.'"
23

complaint, Hufnagel was struck by a come-a-long, owned by Omega,
and attached to the platform itself. The AMBERJACK's presence
beside the platform in no way contributed to Hufnagel's injury.
Hufnagel has failed to present any claim within the admiralty
jurisdiction of the federal courts.
Hufnagel's claims are nonmaritime ones "arising under" and
governed by OCSLA. Accordingly, the case may be removed without
regard to the citizenship of the parties.
CONCLUSION
The undisputed evidence shows as a matter of law that Hufnagel
was not a Jones Act seaman. At the time of his injury, Hufnagel
was a primarily land-based employee, and had no permanent
connection to any vessel or fleet of vessels in navigation.
Therefore, remand was not required by the Jones Act.
Furthermore, Hufnagel has alleged against Kerr-McGee a non-
maritime claim under and governed by Louisiana law, made applicable
federal law by OCSLA, and his claim is thus one arising under OCSLA
for purposes of sections 1331 and 1441(b), and is hence removable
without regard to the citizenship of any of the parties. If any
other claims alleged were maritime, they would be removable under
section 1441(c), but in any event Hufnagel alleged no maritime
claim.
Accordingly, the district court correctly denied the motion to
remand.
24