Some states, such as Louisiana, have restrictive statutes against contracting for defense and indemnity provisions. Under federal maritime law, however, these defense and indemnity provisions may be permitted. This distinction creates frequent tension in offshore injury lawsuits between the application of the bordering state law (which may prohibit defense and indemnity provisions) and the application of federal maritime law (which may permit defense and indemnity provisions).
The Outer Continental Shelf Lands Act’s Role
For federal maritime law to apply, the Outer Continental Shelf Lands Act (“OCSLA”)[1] must be invoked, which governs oil and gas exploration and production on the Outer Continental Shelf (“OCS”). In 1953, Congress enacted OCSLA and extended federal maritime law to “all artificial islands,” “installations and other devices . . . attached to the seabed,” and other artificial structures in the OCS.[2]
Importantly, for our purposes here, Congress chose not to treat offshore oil and gas platforms as vessels, but instead “as island[s] or as federal enclaves within a landlocked State.”[3] Therefore, in cases regarding contracts pertaining to offshore oil and gas platforms, OCSLA adopts the law of the state adjacent to the relevant part of the OCS as surrogate federal law. Where the relevant contract is a “maritime contract,” however, federal maritime law is applicable.[4] The significant legal implications of contract classification in this context make the question of “what is a maritime contract?” an important one.
The Davis & Sons Six-Factor Test
For decades, district courts within United States Court of Appeals for the Fifth Circuit evaluated this question using the 6-factor test from Davis & Sons, Inc. v. Gulf Oil Corp.[5] The Davis factors focused mainly on the nature of the work being performed and included the following questions:
- what does the specific work order in effect at the time of the injury provide?
- what work did the crew assigned under the work order actually do?
- was the crew assigned to work aboard a vessel in navigable waters?
- to what extent did the work being done relate to the mission of that vessel?
- what was the principal work of the injured worker? and
- what work was the injured worker actually doing at the time of injury?
Courts often criticized this laborious test.
The Fifth Circuit Adopts Simplified Two-Step Test
In 2017, the Fifth Circuit, in In Re Larry Doiron, Inc.,[6] set forth a “simpler, more straightforward” analysis and adopted a two-prong test to determine whether a contract is a maritime contract.[7] Under Doiron, a maritime contract exists if:
- the contract is one to provide services to facilitate the drilling or production of oil and gas on navigable waters and
- the contract provides or the parties to the contract expect that a vessel will play a substantial role in the completion of the project. Id.
Our team wrote about this case when the Fifth Circuit adopted it: Out with Davis & Sons and in with Doiron: The 5th Circuit Simplifies Maritime Contract Test.
Genesis Energy v. Danos Gives Clarity to the Doiron Test
Recently, the Fifth Circuit, in Genesis Energy, L.P. v. Danos, L.L.C.,[8] provided further clarification to the maritime contract test laid out in Doiron. The court in Genesis added to the analysis and placed an emphasis on the question of where the equipment used to perform the maritime work is located when the work takes place. Specifically, the Court focused on whether the equipment is located on the vessel in question or on the platform.
Genesis Case Background
In this case, Genesis Energy, L.P. (“Genesis”) owned an offshore platform located on the Outer Continental Shelf. In 2020, the platform sustained damages from catastrophic Hurricane Laura. Thereafter, Genesis contracted with Danos, L.L.C. (“Danos”) to perform repairs to the platform. Together, Genesis and Danos chartered a vessel from a third party, L&M Botruc Rental, LLC (“Botruc”) to facilitate the repairs to the platform. While working on the repairs, a Danos employee, Maximo Sequera (“Sequera”), suffered injuries after falling from a personnel basket during a vessel-to-platform transfer.
Sequera filed a personal injury suit in Texas state court against Danos, Genesis, and Botruc. Danos removed the action to the U.S. Southern District of Texas. Genesis then filed a cross-claim for defense and indemnity against Danos.
In response, Danos moved for summary judgment on the basis that defense and indemnity was precluded under Louisiana law. Specifically, Danos argued that Louisiana law, and not federal maritime law, applied because none of the contracts between the parties could properly be classified a “maritime contract.” The trial court agreed and granted Danos’s motion for summary judgment. Because there was no maritime contract between Genesis and Danos, Louisiana state law applied, and precluded Genesis’s claim for defense and indemnity. The Fifth Circuit affirmed the trial court’s ruling. In doing so, the Fifth Circuit applied the two-prong analysis set forth by the court in Doiron.
Applying the Doiron Test: Substantial v. Ancillary Vessel Roles
As is frequently the case in a maritime dispute, the classification of the contract in Genesis came down to the second prong of the Doiron analysis. Namely, “does the contract provide or did the parties to the contract expect that a vessel would play a substantial role in the completion of the project?”
Historically, the Fifth Circuit appreciates that “[f]or a vessel to have a ‘substantial role,’ there must be a ‘direct and substantial link between the contract and the operation of the ship, its navigation, or its management afloat.’”[9]
When work is performed in part on a vessel and in part on a platform or on land, we should consider not only time spent on the vessel but also the relative importance and value of the vessel-based work to completing the contract.” Doiron, 879 F.3d at 576 n.47. The focus “should be on whether the contract calls for substantial work to be performed from a vessel.” Id. at 573. This analysis “ignores the need for vessels to transport equipment and crew to the platform and considers only the other roles the vessels played.” In re: Crescent Energy Servs., L.L.C., 896 F.3d 350, 360 (5th Cir. 2018); see also Doiron, 879 F.3d at 576 n.47 (explaining that the substantial role “calculus would not include transportation to and from the job site”).[10]
The Court’s Analysis of the Parties’ Expectations
Following Fifth Circuit precedence, the Court in Genesis reviewed the parties’ contracts and then turned to evidence of the parties’ expectations. The Court determined that because the contracts only provided that “crews will live on the vessel and transfer to the platform daily via man basket,” the contracts did not establish a “direct and substantial link between the contract and the operation of the ship, its navigation, or its management afloat.” Earnest, 90 F.4th at 813.”[11]
With respect to evidence of the parties’ expectations, Genesis argued that the parties contemplated a unique arrangement wherein the extensive nature of the damage to the platform made it necessary to position the Vessel alongside the platform for the duration of the repairs. Genesis asserted that the continuous use of the Vessel was necessary to complete the repair work because:
- the Vessel would be used for living quarters and a mess hall,
- the Vessel would maintain a position alongside the Platform for the duration of the repairs,
- each morning personnel aboard the Vessel were to meet for daily safety meetings,
- the Platform’s crane would transfer crewmembers from the Vessel to the Platform where they would work, and
- the Vessel would house necessary equipment and cargo that would be transferred to the Platform as needed.
Based on the foregoing, Genesis argued that the second prong of the Doiron analysis was satisfied.
In response, Danos argued that it understood that the Vessel would be providing initial transportation and mobilization and living quarters for the crew.
Why Genesis’s Arguments Were Unpersuasive
The Fifth Circuit was unpersuaded by Genesis’s argument and noted that “vessels are often necessary for offshore work” but that necessity may not equate with the Vessel’s role being substantial as required to satisfy the second prong of the Doiron analysis.
In support of its conclusion, the court referenced the prior Fifth Circuit cases wherein the Court determined that a contract did meet the requirements of a maritime contract. In re: Crescent Energy Services, LLC,[12] the Fifth Circuit determined that a contract to plug and abandon three offshore wells was maritime because the work therein required the use of a barge for “its crane, the wireline unit, and other equipment that could not be moved onto a platform.”[13] “The wireline operation, which was ‘substantially controlled from the barge,’ comprised about 50% of the job.”[14] The Court also cited Barrios v. Centaur, L.L.C.,[15] wherein the parties contracted for the use of a barge with a crane which was to be used as a “necessary work platform, an essential storage space for equipment and tools, and a flexible area for other endeavors related to the construction work.”[16]
The court also cited Doiron, wherein the Fifth Circuit determined the contract at issue was not a maritime contract, and stated:
In Doiron itself, on the other hand, the vessel’s role was insubstantial. There, the parties contracted to repair a gas well that was accessible only from a platform. After work began, the parties encountered an unexpected problem that required them to charter a crane barge to lift equipment onto the platform. We concluded that “lift[ing] the equipment [onto the platform] was an insubstantial part of the job and not work the parties expected to be performed.”[17]
Comparing Genesis to Prior Cases
The court distinguished between Barrios and Crescent versus Doiron and Genesis and stated that in Barrios and Crescent the work was performed from the vessel itself, and the equipment was affixed to or at least located on the vessel while the work was being performed. In contrast, in Genesis and Doiron, the equipment involved was used while physically on the platform, not the vessel. Thus, the Court appeared to place great emphasis on where the work in question was primarily performed.
Narrowing the Scope of Doiron
The Court here also emphasized the importance of the nature of the work and whether that work is connected to the heart of the contract at issue. For instance, the court stated that the pumping of non-potable water and diesel fuel onto the platform in Genesis did not comprise “work” under the contract, but rather “transportation of supplies” in furtherance of the work contemplated under the contract. In other words, the Genesis Court suggested that ancillary work performed to facilitate the essential work under the contract should not be considered under the Doiron analysis.
Key Takeaway for Offshore Contracts
The Court here indicated that to be “substantial” as required under the Doiron analysis, the vessel must play an essential role, not a supporting role. Practically, this means the contemplation of the use of a vessel for housing, transportation, facilitation of supplies, etc. is insufficient to satisfy the Doiron analysis and deem a contract maritime. For these purposes, “essential” means “prominent” or “central to the mission” rather than merely “necessary for completion of the task.” As the court succinctly provided: “Although the parties anticipated that the Vessel would perform some ancillary purposes like housing and transportation, those uses do not reveal that ‘substantial work [was] to be performed from’ the Vessel.”[18]
In short, while transportation to and from the worksite were clearly excluded from the prior maritime analysis, the Fifth Circuit in Genesis clarified that housing and “ancillary functions that facilitate the platform repairs” also do not count towards the “substantial” role of the vessel in performing the work of the contract. This decision provides further clarity in the maritime contract analysis and decisively narrows the scope of the analysis as set forth in Doiron.
Additional insights are available in Lauren Guichard Hoskin‘s recent blog post on this topic: The United States Fifth Circuit Narrows Maritime Contract Scope: Where the Fifth Circuit Stands After Earnest and Offshore Oil Services.
Ambrose Stearns and Taylor Ashworth are members of Kean Miller’s Offshore Energy & Marine group, which represents a wide range of clients in litigation, transactions, and regulatory matters involving offshore oil and gas exploration, decommissioning, drilling activities, barges, tugs and towage, marine insurance, and other maritime and energy related matters.
[1] 43 U.S.C. §§ 1331–1356b.
[2] 43 U.S.C. § 133(a)(2)(A); OCSLA, Pub. L. No. 83-212, 67 Stat. 462 (1953).
[3] Rodrigue v. Aetna Cas. & Sur. Co., 395 U.S. 352, 361 (1969).
[4] Willis v. Barry Graham Oil Serv., L.L.C., 122 F.4th 149, 156 (5th Cir. 2024).
[5] 919 F.2d 313 (5th Cir. 1990).
[6] 879 F.3d 568, 576 (5th Cir. 2018) (en banc).
[7] 879 F.3d 568, 576 (5th Cir. 2018) (en banc).
[8] No. 24-20357, 2025 WL 2642490 (5th Cir. Sept. 15, 2025).
[9] Id. at *2.
[10] Id. at *2.
[11] Id. at *3.
[12] 896 F.3d 350, 361 (5th Cir. 2018).
[13] Id.
[14] Genesis at *4 (citing Crescent at 361-62).
[15] 942 F.3d 670 (5th Cir. 2019).
[16] Barrios at 681.
[17] Genesis at *5 (citing Doiron at 577).
[18] Genesis at *7 (citing Doiron at 573).