On March 19, 2019, the United States Supreme Court took a middle-ground approach in deciding when, under federal maritime law, a “bare-metal” manufacturer is liable for failure to warn of dangers posed by parts used with its products, even though they are made by other manufacturers. Rejecting both a “foreseeability” standard and the “bare metal defense,” the 6-3 majority in Air & Liquid Systems Corp. v. DeVries held that “[i]n the maritime tort context, a product manufacturer has a duty to warn when (i) its product requires incorporation of a part, (ii) the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and (iii) the manufacturer has no reason to believe that the product’s users will realize that danger.”
In an important new en banc opinion, the Fifth Circuit has abandoned its historic criteria for determining whether a contract relating to servicing oil or gas drilling on navigable waters is controlled by maritime law in favor of a “simpler, more straightforward test.” See In re Larry Doiron, Inc., 879 F.3d 568, 569 (5th Cir. Jan. 8, 2018).
Historically, courts in the Fifth Circuit applied a six-factor test to determine whether a contract is governed by maritime law. As articulated in Davis & Sons, Inc. v. Gulf Oil Corp., 919 F.2d 313 (5th Cir. 1990), this six factor approach considered: (1) what the contract provides; (2) the actual work done by the crew; (3) whether the crew was assigned to work on a vessel in navigable waters; (4) the extent to which the work being done related to the vessel’s mission; (5) the principal work of the injured worker; and (6) the work the injured worker was actually doing at the time of the injury. Id. at 316. Continue reading “Fifth Circuit Announces New Test to Determine if Certain Contracts for Services on Navigable Waters Are Maritime”