Dauphine, Jr. v. REC Marine Logistics, LLC, et al

Filing 134

ORDER AND REASONS: IT IS ORDERED that the 72 , 74 , and 85 motions for summary judgment filed by Defendants and Cross Claimants Shamrock, Energy XXI, and Wood Group Are GRANTED. IT IS FURTHER ORDERED that the 84 motion for summary judgment f iled by Defendant and Cross Defendant REC Marine is DENIED. IT IS FURTHER ORDERED that Plaintiff's 95 motion for partial summary judgment is GRANTED with respect to Plaintiff's status as a seaman and DENIED with respect to Plaintiff's demand for cure, as set forth in document. Signed by Judge Ivan L.R. Lemelle on 3/27/2018. (jls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GILBERT DAUPHINE, JR.

CIVIL ACTION

VERSUS

NO. 16-15370

REC MARINE LOGISTICS, LLC, ET AL.

SECTION "B"(1)

ORDER AND REASONS
There are five motions for summary judgment before the Court.
Defendants and Cross Claimants Shamrock1, Energy XXI2, and Wood
Group3 moved for summary judgment on their cross claims against
REC Marine Logistics, LLC for defense, indemnity, and insurance
coverage. Rec. Docs. 72, 74, 85. Defendant and Cross Defendant REC
Marine timely filed an opposition. Rec. Doc. 91. Defendants and
Cross Claimants Shamrock, Energy XXI, and Wood Group jointly
sought, and were granted, leave to file a reply. Rec. Doc. 99.
Defendant and Cross Defendant REC Marine filed a cross motion
for summary judgment on Shamrock’s, Energy XXI’s, and Wood Group’s
cross claims for defense, indemnity, and insurance coverage. Rec.
Doc. 84. Defendants and Cross Claimants Shamrock, Energy XXI, and
Wood Group jointly filed an opposition. Rec. Doc. 92. Defendant
and Cross Defendant REC Marine sought, and was granted, leave to
file a reply. Rec. Doc. 101.

1

Shamrock Management, LLC (“Shamrock”)
Energy XXI USA, Inc.; Energy XXI Gulf Coast, Inc.; Energy XXI, Ltd.; and
Energy XXI GOM, LLC (collectively “Energy XXI”)
3 Wood Group PSN, Inc. and Wood Group Production Services, Inc. (collectively
“Wood Group”)
2

1

Plaintiff

Gilbert

Dauphine

filed

a

motion

for

summary

judgment on the questions of whether he is a seaman entitled to
maintenance and cure from Defendant and Cross Defendant REC Marine.
Rec. Doc. 95. Defendant and Cross Defendant REC Marine timely filed
an opposition. Rec. Doc. 109. Plaintiff sought, and was granted,
leave to file a reply. Rec. Doc. 114.
For the reasons discussed below,
IT IS ORDERED that the motions for summary judgment filed by
Defendants and Cross Claimants Shamrock, Energy XXI, and Wood Group
(Rec. Docs. 72, 74, 85) are GRANTED.
IT IS FURTHER ORDERED that the motion for summary judgment
filed by Defendant and Cross Defendant REC Marine (Rec. Doc. 84)
is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s motion for partial
summary

judgment

Plaintiff’s

(Rec.

status

as

Doc.
a

95)

seaman

is

GRANTED

with

respect

to

and

DENIED

with

respect

to

Plaintiff’s demand for cure.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On May 15, 2010, Energy XXI Services, LLC and REC Marine
Logistics, LLC entered into a Master Time Charter agreement (MTC).
See Rec. Doc. 84-4. The MTC governs how the Charterer (Energy XXI
Services, LLC) can charter a vessel from the Owner (REC Marine
Logistics, LLC). See id. at 3. The Charterer is first supposed to
request a vessel from the Owner, in which case the Owner is then
2

supposed to send a Vessel Charter letter to the Charterer with the
terms of the Charter. See id. at 3. The sample Vessel Charter
letter, attached as a schedule to the MTC, contains a clause
incorporating the MTC. See id. at 18. Every Vessel Charter is
supposed to be “substantially identical” to the sample. See id. at
3. Unless the Charterer cancels the Vessel Charter, it is effective
upon receipt by the Charterer. See id. at 3. Even if no Vessel
Charter is exchanged, the MTC applies when the Owner delivers a
vessel to the Charterer. See id. at 3.
The MTC includes an integration clause stating that the MTC
and any Vessel Charters “contain[] the entire agreement of Owner
and Charterer.” Id. at 15. When there is a conflict between the
MTC and a Vessel Charter, “the provisions in the body of [the MTC]
shall prevail.” Id. No amendments are allowed “except in writing
signed by authorized representatives of both Owner and Charterer.”
Id. While the Charterer can “subcharter or assign” the MTC “and/or
any Vessel Charter[,]” the Owner must get the “written consent of
[the]

Charterer”

before

transferring

any

of

its

“rights

and

obligations under th[e]” MTC. Id. at 13.
The MTC also establishes the duties of the Charterer and Owner
when a vessel is chartered. Two are especially important for the
instant litigation. First, the MTC includes reciprocal defense and
indemnity provisions for the Owner and Charterer. See id. at 611. When applicable, the Owner’s defense and indemnity obligations
3

extend

to

the

Charterer’s

affiliates,

parent

entities,

and

contractors. See id. at 6-9. Second, the MTC requires the Owner to
name, inter alia, the Charterer, its affiliates, parent entities,
and contractors as additional insureds on its insurance policies.
See id. at 6-7.
On May 2, 2015, REC Marine sent a one-page document titled
“Charter Agreement” to Bubba Richard, an Energy XXI Services, LLC
employee. See Rec. Doc. 84-7. The Charter Agreement provides for
an open-ended charter of the M/V EMILY D to Energy XXI (the Charter
Agreement does not specify a subsidiary). Id. Bubba Richard, an
Energy XXI Services, LLC employee, signed the Charter Agreement.
Id. The Charter Agreement specifies a daily rate for the charter
and provides instructions for where the EMILY D was to report, but
neither incorporates the MTC nor includes its own defense and
indemnity terms. See id. Neither the MTC nor the Charter Agreement
were terminated before Plaintiff’s accident occurred. See Rec.
Doc. 74-10 at 10, 20. REC Marine billed Energy XXI, not a specific
subsidiary, for the charter of the EMILY D. See, e.g., Rec. Docs.
74-6 at 7; 74-13 at 7. The invoice was sent to the address for
Energy XXI Services, LLC that is listed on the first page of the
MTC. See id. Energy XXI Gulf Coast Inc. paid REC Marine’s invoices.
See Rec. Doc. 74-6 at 13.
The accident at the heart of the instant lawsuit occurred on
October 9, 2015. At that time, Plaintiff Gilbert Dauphine was
4

employed by REC Marine Logistics, LLC as a deckhand on the M/V
EMILY D, a vessel owned by REC Marine. Rec. Doc. 1 ¶ 6. When the
accident occurred, Plaintiff was working on the EMILY D in the
Gulf of Mexico as it serviced production platform South Pass 57B, which is owned and operated by Energy XXI GOM, LLC. Id. ¶ 8;
Rec. Doc. 74-14 ¶ 4. While the EMILY D was servicing the South
Pass 57-B platform, a personnel basket was lowered or dropped onto
Plaintiff from a crane on the platform. Id. ¶ 8. As a result,
Plaintiff suffered physical and mental injuries that allegedly
limit his current and future employment opportunities. Id. ¶¶ 1417. Plaintiff further alleges that, as a result of these injuries,
he currently needs back and knee surgery. See Rec. Doc. 95.
On October 7, 2016, Plaintiff brought suit against REC Marine
and three Energy XXI entities (Energy XXI USA, Inc., Energy XXI
Gulf Coast, Inc., and Energy XXI, Ltd.). Rec. Doc. 1. Plaintiff
subsequently amended his complaint to add as defendants additional
Energy XXI entities (Energy XXI GOM, LLC and Energy XXI Services,
LLC) and some of Energy XXI’s contractors (Shamrock Management,
LLC, Wood Group PSN, Inc., and Wood Group Production Services,
Inc.).

Rec.

Docs.

16,

107.

Plaintiff

brought

negligence

and

unseaworthiness claims against REC Marine under the Jones Act and
General Maritime law, seeking damages as well as maintenance and
cure. Rec. Doc. 1 ¶¶ 13-20. Plaintiff brought negligence claims
against Energy XXI, Shamrock, and Wood Group under General Maritime
5

Law, seeking damages for his injuries. Rec. Docs. 1 ¶¶ 12, 14-20;
16 ¶¶ IV-V; 107 ¶¶ IV-V.
Citing the MTC, Energy XXI, Shamrock, and Wood Group each
filed a cross claim for defense, indemnity, and insurance coverage
against REC Marine. Rec. Docs. 40, 46, 50. Also, Energy XXI and
Shamrock each filed a third party complaint against American
Steamship Mutual Indemnity and Protection Association on the basis
that the MTC required REC Marine to name Energy XXI and Shamrock
as additional insureds. Rec. Docs. 53, 57.
Following the exchange of discovery, Energy XXI, Shamrock,
and Wood Group each filed a motion for summary judgment on its
respective cross claim, arguing that REC Marine is obligated to
provide defense, indemnity, and insurance coverage under the MTC.
See Rec. Docs. 72, 74, 85. REC Marine filed a cross motion for
summary judgment on the same issue, arguing that it is not required
to provide defense, indemnity, and insurance coverage under either
the MTC or the standalone Charter Agreement. See Rec. Doc. 84.
Plaintiff also filed a motion for summary judgment on his seaman
status and entitlement to cure, specifically back and knee surgery.
Rec. Doc. 95.
LAW AND ANALYSIS
Summary

judgment

is

appropriate

when

“the

pleadings,

depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
6

issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). A genuine
issue of material fact exists if the evidence would allow a
reasonable jury to return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
When

the

movant

bears

the

burden

of

proof,

it

must

“demonstrate the absence of a genuine issue of material fact” using
competent summary judgment evidence. Celotex, 477 U.S. at 323. But
“where the non-movant bears the burden of proof at trial, the
movant may merely point to an absence of evidence.” Lindsey v.
Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994). When the
movant meets its burden, the burden shifts to the non-movant, who
must show by “competent summary judgment evidence” that there is
a genuine issue of material fact. See Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Lindsey, 16
F.3d at 618.
A. Cross Motions Regarding Defense, Indemnity, and Insurance
Coverage
To determine whether the defense, indemnity, and insurance
coverage provisions in the MTC are applicable, the Court needs to
interpret the MTC and the Charter Agreement.4 “A maritime contract

4

The MTC includes a forum-selection clause stating that disputes about the MTC
shall be brought in the Southern District of Texas, Houston Division. See Rec.
Doc. 74-4 at 11, 15. No party has argued that venue is improper here in the
Eastern District of Louisiana. No party has filed a motion to transfer venue.

7

should be read as a whole, and a court should not look beyond the
written language of the contract to determine the intent of the
parties unless the disputed language is ambiguous.” Channette v.
Neches Gulf Marine, Inc., 440 F. App’x 258, 260 (5th Cir. 2011)
(citing Fontenot v. Mesa Petroleum Co., 791 F.2d 1207, 1214 (5th
Cir. 1986)). “A contract is unambiguous if its language as a whole
is clear, explicit, and leads to no absurd consequences, and as
such it can be given only one reasonable interpretation.” Id.
(citing Chembulk Trading, LLC v. Chemex Ltd., 393 F.3d 550, 555
n.6 (5th Cir. 2004)).
The MTC includes a broad defense, indemnity, and insurance
coverage provision that encompasses, inter alia, personal injury
claims by employees of REC Marine against (1) a company that
charters

vessels

from

REC

Marine

and

(2)

that

charterer’s

affiliates, parent entities, and contractors. See Rec. Doc. 74-4
at 7-8. Specifically, the MTC states that the “Owner” owes defense
and indemnity to the “Charterer Group.” Id. at 6-11. The MTC also
states that the “Owner” will (1) obtain sufficient insurance for
claims that might arise under the MTC and (2) “name Charterer Group
as additional insureds” on its insurance policies. Rec. Doc. 74-4
at 6-7. “’Owner’ as used in [the MTC] shall include [] the party
signing as Owner in [the MTC],” which is REC Marine. Rec. Doc. 74-

Accordingly, the court will proceed to analyze the cross motions for summary
judgment.

8

4 at 1, 2, 16. “’Charterer Group’ shall mean” the “Charterer; its
parent, subsidiaries, affiliates, partners and limited partners;”
and “the contractors and subcontractors” thereof. Rec. Doc. 74-4
at 6.
The first point of debate among the parties focuses on the
definition of “Charterer.” REC Marine argues that, because only
Energy XXI Services, LLC signed the MTC, only Energy XXI Services,
LLC can charter a vessel under the MTC. See Rec. Doc. 84-1 at 35, 6-9. REC Marine’s position is that Energy XXI Services, LLC did
not charter the EMILY D because (1) Energy XXI GOM, LLC owned the
platform where the EMILY D was working when Plaintiff was injured
and (2) Energy XXI Gulf Coast, Inc. paid REC Marine’s invoice. See
id. Energy XXI, Shamrock, and Wood Group argue that the MTC applies
because Energy XXI Services, LLC is the contracting entity for all
Energy XXI entities. See Rec. Docs. 72-1 at 9-10; 74-1 at 6-7; 851 at 3-4.
The MTC states that “’Charterer’ shall mean the entity listed
on page one of [the MTC], which is requesting for its own account
that Owner provide vessel(s) and/or services to such entity.” Rec.
Doc. 74-4 at 2. The entity listed on the first page of the MTC is
“Energy XXI Services, LLC.” Rec. Doc. 74-4 at 1. REC Marine
advances

an

incredibly

restrictive

interpretation

of

this

definition, arguing that the phrases “for its own account” and
“provide vessel(s) . . . to such entity” mean that the MTC only
9

applies when Energy XXI Services, LLC requests a vessel to work on
structures owned by Energy Services, LLC. See Rec. Docs. 84-1 at
7; 97-1 at 2. This is not the natural or reasonable interpretation
of the MTC’s definition of the term “Charterer.” See Holmes Motors,
Inc. v. BP Expl. & Prod., Inc., 829 F.3d 313, 315-16 (5th Cir.
2016) (“Under admiralty law, a contract should be read as a whole
and its words given their plain meaning unless the provision is
ambiguous.”).
First, the phrase “for its own account” requires that the
entity requesting the vessel assume financial responsibility for
the charter. The Oxford English Dictionary defines the phrase “on
one’s own account” to mean “for one’s own interest, and at one’s
own risk[.]” On (also upon) one’s own account, Oxford English
Dictionary (3d ed. 2011). This understanding of the phrase makes
sense in context because a primary purpose of the MTC is to
allocate and clarify the parties’ obligations with respect to the
Vessel, notably, the Charterer is required to pay for the charter.
See Rec. Doc. 74-4 at 4.
Second, there is no indication that the phrase “provide
vessel(s) . . . to such entity” limits how the Charterer can use
the vessel it seeks to charter. The natural reading of this phrase
simply states what a Charterer does, namely ask a vessel owner for
use

of

a

vessel.

The

Oxford

English

Dictionary

defines

a

“charterer” as “[o]ne who hires a vessel under a charter-party.”
10

Charterer, Oxford English Dictionary (3d ed. 2011). A “charterparty” is defined as “[t]he charter or deed made between owners
and merchants for hire of a ship . . . .” Charter-party, Oxford
English Dictionary (3d ed. 2011). Neither definition implies that
the term “Charterer” incorporates a restriction on the vessel’s
use.
This plain language understanding of “provide vessel(s) . . .
to such entity” is consistent with later provisions in the MTC
that require the Charterer, when requesting a vessel, to describe
its intended use of the vessel. See Rec. Doc. 74-4 at 3. At that
time, the Owner can decide if it wants to charter a vessel for
that specified use. See id. If, as REC Marine suggests, the
definition of “Charterer” somehow contained its own restrictions
on the use of the vessel, the two provisions would be superfluous,
suggesting further that REC Marine’s suggested interpretation of
the term “Charterer” is incorrect. See Foster Wheeler Energy Corp.
v. An Ning Jiang MV, 383 F.3d 349, 354 (5th Cir. 2004) (“Federal
courts sitting in admiralty adhere to the axiom that a contract
should be interpreted so as to give meaning to all of its terms—
presuming that every provision was intended to accomplish some
purpose, and that none are deemed superfluous.”).
REC Marine also argues that the MTC is only applicable if
Energy XXI Services, LLC paid for the charter itself. See Rec.
Doc. 7-8. In support of this argument, REC Marine cites a provision
11

from the “Payment” section of the MTC that states, “[f]or the use
of said Vessel, Charterer shall pay Owner charter hire at the daily
charter rate agreed upon in the applicable Vessel Charter for each
day . . . .” Rec. Doc. 74-4 at 4. But this provision is separate
from the “Definitions” section, suggesting that the identity of
the payer is not part of the definition of “Charterer.” Instead,
the reasonable conclusion is that the “Payment” provision stands
for the unremarkable proposition that the Charterer must pay the
Owner for its use of the vessel.
In fact, REC Marine appears to agree with this common sense
interpretation. In his 30(b)(6) deposition, REC Marine’s owner
implied that the company pays little attention to who pays the
invoices “as long as they pay . . . .” Rec. Doc. 85-4 at 14. This
attitude further suggests that the parties did not intend the
identity of the invoice payer to determine whether the MTC applied
to a given charter. Moreover, it would make little sense for the
applicability of the MTC to depend on the identity of the invoice
payer because, if a Charterer was liable for an accident, it could
after-the-fact escape its defense and indemnity obligations under
the MTC by having a different subsidiary pay the invoice. This is
the type of “absurd consequence” that should be avoided when
interpreting a contract.
The parties’ actions in connection with the charter of the
EMILY

D

are

consistent

with

the
12

conclusion

that

Energy

XXI

Services, LLC was a Charterer for purposes of the MTC. Sometime on
or before May 2, 2015, Bubba Richard, an employee of Energy XXI
Services, LLC, requested a vessel from REC Marine. See Rec. Doc.
84-7. REC Marine memorialized the request in a “Charter Agreement,”
which was sent back to Mr. Richard for his signature. See id. The
“Charter Agreement” does not contain billing information, but the
invoices were sent to the attention of an “Energy XXI” accounts
payable clerk at the address for Energy XXI Services, LLC that was
listed on the first page of the MTC. See Rec. Docs. 74-4 at 1; 746 at 7. Based on a plain and natural understanding of the term
“Charterer” as defined in the MTC, Energy XXI Services, LLC was a
“Charterer” when one of its employees requested a vessel from REC
Marine, the vessel was provided pursuant to the instructions from
the Energy XXI Services, LLC employee, and the invoices for the
use of the vessel were sent to the address for Energy XXI Services,
LLC. Therefore, the MTC applied to the charter of the EMILY D at
issue in this case.
The second point of debate among the parties focuses on the
relationship

between

the

MTC

and

the

subsequently-executed

“Charter Agreement.” Specifically, the parties disagree about
whether the defense, indemnity, and insurance coverage provisions
of the MTC apply to the Charter Agreement. REC Marine argues that
they

do

not

apply

because

the

Charter

Agreement

(1)

is

not

“substantially identical” to the sample Vessel Charter attached to
13

the MTC and (2) does not include language expressly incorporating
the MTC. See Rec. Doc. 84-1 at 4-5. Energy XXI, Shamrock, and Wood
Group advocate the opposite conclusion based on parties’ intent
for the MTC to apply to all vessels chartered by Energy XXI
Services, LLC from REC Marine. See Rec. Docs. 72-1 at 3; 74-1 at
2; 85-1 at 6.
While REC Marine is correct that the “Charter Agreement” lacks
language expressly incorporating the MTC, this silence is not
sufficient to rebut the parties’ unambiguous and emphatic intent
for the MTC to govern when Energy XXI Services, LLC charters a
vessel from REC Marine. First, the MTC states that the Vessel
Charter used should be “substantially identical” to the sample
attached to the MTC. Rec. Doc. 74-4 at 3. The Charter Agreement in
fact shares many similarities with the sample Vessel Charter. Both
documents state when and where the charter will begin, identify
the vessel to be chartered, quote the daily rate, include special
provisions, and provide signature blocks for the Charterer and
Owner. Compare Rec. Doc. 74-4 at 18 and Rec. Doc. 84-7. The only
significant difference is that the sample Vessel Charter includes
a statement that the charter is “[p]ursuant to the terms and
conditions” of the MTC. See Rec. Doc. 74-4 at 18. This difference
merits further discussion because it is relevant to the instant
dispute over defense, indemnity, and insurance coverage. But it is
not dispositive.
14

Second, the MTC makes clear that the Vessel Charter is not
necessary for Energy XXI Services, LLC to charter a vessel from
REC Marine pursuant to the terms of the MTC. “Even if Owner shall
fail to send such confirmation letter or Charterer shall fail to
acknowledge such letter, [the MTC] shall apply to any Vessel
delivered to Charterer by Owner unless the Vessel Charter is
cancelled by Charterer.” Rec. Doc. 74-4 at 3. Here, REC Marine
delivered the EMILY D to Energy XXI Services, LLC. Therefore, even
if there had been no written communication between the parties,
any resulting charter would have been pursuant to the MTC.
Third, the integration clause in the MTC makes clear that the
parties wanted the MTC, with its defense, indemnity, and insurance
coverage provisions, to prevail over any subsequently-executed
documents. The integration clause states:
[The MTC], together with any and all Schedules attached
hereto and any Vessel Charters, supersedes all other
agreements, oral or written, heretofore made with
respect
to
the
subject
matter
hereof
and
the
transactions contemplated hereby, and it contains the
entire agreement of Owner and Charterer. In the event of
a conflict between the body of this Agreement and any of
the attached Schedules or any Vessel Charters, the
provisions in the body of this Agreement shall prevail.
This Agreement, including the attached Schedules and any
Vessel Charters, shall not be amended or modified except
in writing signed by authorized representatives of both
Owner and Charterer. . . . Each party agrees that the
Agreement and any Vessel Charters have been purposefully
drawn and correctly reflect their understanding of the
transactions that the parties contemplate.

15

Rec. Doc. 74-4 at 15-16 (emphasis added). Therefore, the MTC, with
its defense, indemnity, and insurance coverage provisions, would
prevail

over

any

later-executed

Vessel

Charters

that

had

inconsistent language. Also, the MTC states that the parties
“purposefully dr[ew]” the MTC and sample Vessel Charter so that
the defense and indemnity provisions would apply to charters. The
Charter Agreement at issue does not disclaim the MTC or declare
that neither party will have defense, indemnity, or insurance
coverage obligations; instead, the Charter Agreement is silent on
the issue. Given the otherwise consistent evidence that the parties
intended defense, indemnity, and insurance provisions to apply
when a Vessel was chartered, the parties’ subsequent silence on
the issue is not sufficient to defeat the MTC.5 See Tippmann Constr.
Inc. v. Prof’l Serv. Indus., Inc., No. 4:11-CV-591-Y, 2013 WL
169267,

at

*4-5

(N.D.

Tex.

Jan.

16,

2013)

(explaining

that

contracts executed at different times will be interpreted together
when they refer to the same subject matter).

5

REC Marine argues that Channette v. Neches Gulf Marine, LLC, 440 F. App’x 258
(5th Cir. 2011), forecloses the argument that the MTC and Charter Agreement
should be read together. See Rec. Docs. 91 at 9; 101 at 7. In Channette, the
Fifth Circuit reasoned that a subsequently-executed charter agreement was not
part of a previously-executed master agreement because the charter agreement
did not incorporate the master contract by reference. See Channette, 440 F.
App’x at 262-63. But the master contract at issue in Channette stated that
“[t]he terms and provisions of th[e] [m]aster [a]greement shall not, however,
be applicable to the charter of any vessel upon which such a separate time
charter is executed.” Id. at 262. Therefore, the master contract in Channette
envisioned situations in which the parties would charter vessels on terms
different from those memorialized in the master contract. The contract at issue
in this case has no such limitation and offers no indication that the parties
envisioned any future charters where the MTC would not apply. Therefore,
Channette does not control the instant dispute.

16

Fourth, both parties testified that it would be rare for a
company

to

charter

a

vessel

without

a

master

time

charter

agreement. See Rec. Docs. 74-5 at 32-33; 74-10 at 15. When two
companies spend time and resources negotiating a detailed contract
for the purpose of chartering vessels, it would be surprising for
the parties to later charter a vessel in a skeletal one-page
contract—especially

without

any

explicit

indication

that

the

parties intended to disregard the previously-negotiated contract.
The fact that the Charter Agreement does not explicitly incorporate
the defense and indemnity does not alter the Court’s conclusions
that those provisions apply to the charter of the EMILY D at issue
in

this

case.6

See

Tajonera

v.

Black

Elk

Energy

Offshore

Operations, LLC, No. 13-0366, 2014 WL 431340, at *7 (E.D. La. Feb.
4, 2014) (explaining that it is common for a “blanket contract”
and individual work orders to be interpreted together).
Therefore, as a matter of law, (1) the MTC was applicable
when the EMILY D was chartered because Energy XXI Services, LLC
was the Charterer and (2) the MTC and Charter Agreement are read
together as one contract. Therefore, the defense, indemnity, and
insurance coverage provisions of the MTC are in effect. See Rec.

6

The parties devote a fair amount of time debating whether REC Marine is
judicially estopped from arguing that the MTC is inapplicable because REC Marine
submitted a claim in the Energy XXI bankruptcy that was based on work performed
under the MTC. See Rec. Docs. 85-1 at 9-10; 92 at 3; 101 at 4-6. Because the
MTC and Charter Agreement are unambiguous and entitle Cross Claimants to
defense, indemnity, and insurance coverage, it is unnecessary to reach the
judicial estoppel argument.

17

Doc. 74-4 at 6-11. The parties do not appear to dispute that, if
Energy XXI Services, LLC is the Charterer, the benefits of the MTC
extend

to

the

remaining

Cross

Claimants

as

affiliates

and

contractors of Energy XXI Services, LLC. As set out in the MTC,
when an Owner initially denies defense, indemnity, and insurance
coverage, the defense obligation encompasses “payment of . . . any
attorneys’ fees, costs and expenses associated with recovery of
the

indemnified

party’s

claims

for

defense,

insurance

or

indemnity.” Rec. Doc. 74-4 at 10.
B. Plaintiff’s Motion Regarding Seaman Status and Cure
Plaintiff also filed a motion for partial summary judgment on
two issues: (1) whether he is entitled to seaman status and (2)
whether he is entitled to cure in the form of back and knee
surgeries. Rec. Doc. 95. To be a seaman, “1) an employee’s duties
must

contribute

accomplishment

of

to

the

its

function

mission,

and

of
2)

the
a

vessel
seaman

or
must

to

the

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.” Wilcox v. Wild Well Control, 794 F.3d 531, 536
(5th Cir. 2015) (citing Chandris, Inc. v. Latsis, 515 U.S. 347,
368 (1995)). The parties agree that Plaintiff worked for REC Marine
as a deckhand on the EMILY D and the performance of his duties
contributed to the EMILY D’s mission as a utility vessel. See Rec.
Docs. 95-7; 95-12 ¶¶ 1, 5; 109-10 at 2. In fact, REC Marine admits
18

that Plaintiff was a seaman. Rec. Doc. 95-6 at 1. Therefore, there
is no genuine issue of material fact about whether Plaintiff was
a seaman. See In re Two-J Ranch, Inc., 534 F. Supp. 2d 671, 68283 (W.D. La. 2008).
The question then becomes whether Plaintiff is entitled to
the cure he presently demands, namely back and knee surgery.
“Maintenance and cure is an obligation imposed upon a shipowner to
provide for a seaman who becomes ill or injured during his service
to the ship.” Boudreaux v. United States, 280 F.3d 461, 468 (5th
Cir. 2002). “The duty to provide cure encompasses not only the
obligation to reimburse medical expenses already incurred, but
also to ensure that the seaman receives the proper treatment and
care . . . [until] maximum cure has been reached, i.e., where it
is probable that further treatment will result in no betterment in
the

claimant’s

condition.”

Id.

“[C]onflicting

diagnoses

and

prognoses from various physicians present a question of fact as to
the seaman’s entitlement to maintenance and cure benefits.”7 Howard
v. Offshore Liftboats, LLC, No. 13-4811, 2015 WL 5944310, *6 (E.D.
La. Oct. 13, 2015); see also Snyder v. L&M Boat Rental, Inc., 924
F. Supp. 2d 728, 733-34 (E.D. La. 2013); Domingue v. Offshore Serv.

7

Plaintiff relies heavily on Vaughn v. Atkinson, 369 U.S. 527 (1962), for the
proposition that the Court should resolve conflicting facts in favor of
Plaintiff, even at the summary judgment stage of proceedings. See Rec. Doc. 951 at 11-16. But Plaintiff points to no case in which a court has taken this
position. Plaintiff instead cites cases where Vaughn was applied at trial.

19

Vessels, LLC, No. 08-4668, 2010 WL 936295, at *2-3 (E.D. La. Mar.
11, 2010).
Plaintiff seeks payment for a “C5-6 and C6-7 anterior cervical
discectomy and fusion as well as arthroscopic surgery on his left
knee . . . .” Rec. Doc. 95 at 1. One of Plaintiff’s doctors opines
that Plaintiff is not yet at maximum medical improvement (MMI) and
should undergo the back and knee surgeries. See Rec. Doc. 95-5 at
3, 18. REC Marine hired Dr. Christopher Cenac to examine Plaintiff
and

Plaintiff’s

medical

records.

Dr.

Cenac

concluded

that

Plaintiff “has long since reached MMI for any injuries sustained
to the cervical spine, lumbar spine, or left knee.” Rec. Doc. 1096

at

8.

Dr.

Cenac

specifically

“do[es]

not

agree

that

the

recommended surgical procedure to the cervical spine is medically
necessary or clinically indicated.” Id. These conflicting medical
opinions raise a genuine issue of material fact about Plaintiff’s
right to cure at this time because they create the possibility
that a jury could reasonably conclude that Plaintiff has already
reach MMI. See Howard, 2015 WL 5944310 at *6 (denying a plaintiff’s
motion for partial summary judgment on his entitlement to cure
because

of

conflicting

evidence

about

plaintiff’s

“proper

diagnosis and treatment needs”).
New Orleans, Louisiana, this 27th day of March, 2018.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE
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