Sylve v. Subsea 7 US Llc et al

MOTION for Summary Judgment

E.D. La.November 29, 2016

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA MICHAELIN SYLVE VERSUS SUBSEA 7 (US) LLC, OCSV SIEM STINGRAY IN REM, SIEM OFFSHORE REDERI AS, AND BP EXPLORATION & PRODUCTION, INC. CIVIL ACTION NO. 2:15-cv-04148 SECTION “H” MAGISTRATE 1 HONORABLE JANE TRICHE MILAZZO MAGISTRATE JUDGE SALLY SHUSHAN BP’S MOTION FOR SUMMARY JUDGMENT NOW INTO COURT, through undersigned counsel, comes Defendant, BP Exploration and & Production, Inc. (“BP”), to respectfully request that the Court dismiss plaintiff, Michealin Sylve’s, claims against it in this personal injury matter, with prejudice, under Federal Rule of Civil Procedure 56. As explained in the accompanying memorandum, BP is not vicariously liable for the actions of employees of its independent contractor, and owed no independent duty of care to Sylve. The material facts are undisputed and BP is therefore entitled to judgment as a matter of law. WHEREFORE, BP respectfully requests that the Court grant its motion for summary judgment and dismiss Sylve’s claims against it with prejudice. Case 2:15-cv-04148-JTM-JVM Document 37 Filed 11/29/16 Page 1 of 2 -2- Respectfully submitted, /s/ Patrick B. Reagin David W. Leefe, T.A. (Bar #1479) Patrick B. Reagin (Bar #35970) LISKOW & LEWIS 701 Poydras Street, Suite 5000 New Orleans, LA 70139-5099 Telephone: (504) 581-7979 Facsimile: (504) 556-4108 dwleefe@liskow.com preagin@liskow.com Attorneys for Subsea 7 (US) LLC, Siem Offshore Rederi AS, and BP Exploration & Production, Inc. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 29th day of November, 2016, I electronically filed the foregoing with the Clerk of Court by using the CM/ECF system which will send a notice of electronic filing to all attorneys of record. I further certify that, on the same day, I mailed, faxed, or e-mailed the foregoing document and notice of electronic filing to all attorney(s) of record who are non-CM/ECF participants. /s/ Patrick B. Reagin 4533206_1.docx Case 2:15-cv-04148-JTM-JVM Document 37 Filed 11/29/16 Page 2 of 2 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA MICHAELIN SYLVE VERSUS SUBSEA 7 (US) LLC, OCSV SIEM STINGRAY IN REM, SIEM OFFSHORE REDERI AS, AND BP EXPLORATION & PRODUCTION, INC. CIVIL ACTION NO. 2:15-cv-04148 SECTION “H” MAGISTRATE 1 HONORABLE JANE TRICHE MILAZZO MAGISTRATE JUDGE JANIS VAN MEERVELD STATEMENT OF UNCONTESTED MATERIAL FACTS In accordance with Local Rule 56.1, BP Exploration & Production Inc. (“BP”) provides these uncontested material facts that support its motion for summary judgment. 1. The M/V SIEM STINGRAY (the “STINGRAY”) is an offshore services and construction vessel owned by Siem Offshore and time-chartered to Subsea 7.1 2. Pursuant to a contract in effect on September 7, 2014 between BP and Subsea 7 (US) LLC, (“Subsea 7”), entitled Operations & Light Construction Vessel Services Contract, Contract No. BPR-10-04823” (the “Contract”), Subsea 7 agreed to perform various subsea construction services for the benefit of BP in the Gulf of Mexico. In connection with its obligations under the Contract, Subsea 7 provided a fully-crewed offshore construction vessel, the STINGRAY, and two remotely operated vehicles (“ROVs”).2 3. On September 7, 2014, the STINGRAY was in port in Theodore, Alabama. The vessel was newly built and preparing for its initial work under the Contract. Subsea 7 personnel were in the process of installing subsea equipment and performing initial mobilization operations before proceeding to BP’s offshore work site.3 1 Corporate Deposition of Subsea 7, at 325:5-325:11, attached to BP’s supporting memorandum as Exhibit 1. 2 Declaration of Mike Bush, at ¶ 5, attached to BP’s supporting memorandum as Exhibit 2. The first nine pages of applicable BP – Subsea 7 contract are attached as Exhibit A to Exhibit 2. 3 Exhibit 2 (Declaration of Mike Bush) at ¶ 9; Exhibit 1 (Corporate Deposition of Subsea 7) at 327:16-327:21. Case 2:15-cv-04148-JTM-JVM Document 37-1 Filed 11/29/16 Page 1 of 4 -2- 4. On September 7, 2014, during mobilization, the Subsea 7 crew was tasked with loading supplies from the dock to the vessel using the crane on the STINGRAY. No BP personnel were involved in these cargo operations, and no BP personnel supervised or exercised any operational control over Subsea 7’s cargo operations.4 5. The BP/Subsea 7 contract provides that Subsea 7 “is an independent contractor” and “shall control the performance of the details” of the Subsea 7’s work called for under the contract.5 6. The BP/Subsea 7 contract provides that Subsea 7 is “responsible for the mobilization and demobilization of its personnel, equipment and materials to and from the Work Site.”6 7. BP relied upon Subsea 7 to provide the necessary expertise and skill for Subsea 7’s operations. While BP was interested in the results of Subsea 7’s work and provided personnel to attend certain meetings and liaise with Subsea 7 and other BP contractors about contract objectives and scope of work, BP did not control the day-to-day details of Subsea 7’s operations on the STINGRAY.7 8. BP and Subsea 7 executed a HSSE-MS Bridging Document (the “Bridging Document”) that specifies which company’s safety policies apply at particular times on the vessel. Under the terms of the Bridging Document, Subsea 7 safety policies govern exclusively on the vessel when it is in port.8 9. On September 7, 2014, Michealin Sylve, a Subsea 7 ROV Supervisor walked onto the STINGRAY’s back deck area without alerting the vessel’s Deck Foreman.9 10. Sylve entered the ROV Spares Room, located on the STINGRAY’s back deck, in order to retrieve camera cables for one of the Subsea 7 ROVs on the vessel.10 11. Sylve made the decision to retrieve the cables from the Spares Room himself—nobody from BP ordered him to do so.11 4 See Deposition of Michealin Sylve, at 235:14-235:22, attached to BP’s supporting memorandum as Exhibit 3; Deposition of Evan McCarthy, Subsea 7 Offshore Manager, at 45:34-46:3, attached to BP’s supporting memorandum as Exhibit 4; Exhibit 2 (Declaration of Mike Bush) at ¶¶ 6 and 10. 5 Exhibit A to Exhibit 2 (BP/Subsea 7 Contract) at DEF 0635, ¶ 7.01. 6 Exhibit A to Exhibit 2 (BP/Subsea 7 Contract) at DEF 0636, ¶ 8.01. 7 Exhibit 2 (Declaration of Mike Bush) at ¶ 6; Exhibit A to Exhibit 2 (BP/Subsea 7 Contract) at DEF 0635-36, ¶ 7.02. 8 Exhibit 1 (Corporate Deposition of Subsea 7) at 327:22-328:11; Exhibit 2 (Declaration of Mike Bush) at ¶¶ 8 and 9. An excerpt from the BP-Subsea 7 Bridging Document is attached as Exhibit B to Exhibit 2. 9 Exhibit 3 (Deposition of Michealin Sylve) at 289:24 – 290:2. 10 Exhibit 3 (Deposition of Michealin Sylve) at 250:8 – 250:14. Case 2:15-cv-04148-JTM-JVM Document 37-1 Filed 11/29/16 Page 2 of 4 -3- 12. When Sylve exited the ROV Spares Room, the back deck crew was in the process of swinging a crane load from the dock to the vessel.12 13. Deck Foreman Chris Callison, a Subsea 7 employee, noticed Sylve exiting the room and called for him to stop and re-enter the room until the load had passed.13 14. Sylve turned back and re-entered the Spares Room but glanced his head on the top sill of the weathertight door opening as he did so.14 15. Sylve was wearing a hard hat when he hit his head.15 16. With the exception of the crane operator, a Siem Offshore employee, the Stingray’s deck crew was made up entirely of Subsea 7 employees or Subsea 7 contract personnel.16 Respectfully submitted, /s/ Patrick B. Reagin David W. Leefe, T.A. (Bar #1479) Patrick B. Reagin (Bar #35970) LISKOW & LEWIS 701 Poydras Street, Suite 5000 New Orleans, LA 70139-5099 Telephone: (504) 581-7979 Facsimile: (504) 556-4108 dwleefe@liskow.com preagin@liskow.com Attorneys for Subsea 7 (US) LLC, Siem Offshore Rederi AS, and BP Exploration & Production, Inc. 11 Exhibit 3 (Deposition of Michealin Sylve) at 352:5-352:12. 12 Exhibit 3 (Deposition of Michealin Sylve) at 254:25-256:5. 13 Exhibit 3 (Deposition of Michealin Sylve) at 250:12-250:20; Deposition of Chris Callison, at 27:1-27:9, attached to BP’s supporting memorandum as Exhibit 5. 14 Exhibit 3 (Deposition of Michealin Sylve) at 250:18 – 250:20. 15 Id. at 255:10 – 256:5. 16 Exhibit 1 (Corporate Deposition of Subsea 7) at 23:16-23:25; Exhibit 5 (Deposition of Chris Callison) at 7:7-7:23. Case 2:15-cv-04148-JTM-JVM Document 37-1 Filed 11/29/16 Page 3 of 4 -4- CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 29th day of November, 2016, I electronically filed the foregoing with the Clerk of Court by using the CM/ECF system which will send a notice of electronic filing to all attorneys of record. I further certify that, on the same day, I mailed, faxed, or e-mailed the foregoing document and notice of electronic filing to all attorney(s) of record who are non-CM/ECF participants. /s/ Patrick B. Reagin 4546928_1.docx Case 2:15-cv-04148-JTM-JVM Document 37-1 Filed 11/29/16 Page 4 of 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA MICHAELIN SYLVE VERSUS SUBSEA 7 (US) LLC, OCSV SIEM STINGRAY IN REM, SIEM OFFSHORE REDERI AS, AND BP EXPLORATION & PRODUCTION, INC. CIVIL ACTION NO. 2:15-cv-04148 SECTION “H” MAGISTRATE 1 HONORABLE JANE TRICHE MILAZZO MAGISTRATE JUDGE SALLY SHUSHAN NOTICE OF SUBMISSION PLEASE TAKE NOTICE that Defendant, BP Exploration & Production Inc., will bring the attached Motion for Summary Judgment for submission before the Honorable Jane Triche Milazzo, United States District Judge, 500 Poydras Street, New Orleans, Louisiana 70130, on December 14, 2016, at 9:30 a.m., or as soon thereafter as counsel can be heard. Respectfully submitted, /s/ Patrick B. Reagin David W. Leefe, T.A. (Bar #1479) Patrick B. Reagin (Bar #35970) LISKOW & LEWIS 701 Poydras Street, Suite 5000 New Orleans, LA 70139-5099 Telephone: (504) 581-7979 Facsimile: (504) 556-4108 dwleefe@liskow.com preagin@liskow.com Attorneys for Subsea 7 (US) LLC, Siem Offshore Rederi AS, and BP Exploration & Production, Inc. Case 2:15-cv-04148-JTM-JVM Document 37-2 Filed 11/29/16 Page 1 of 2 -2- CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 29th day of November, 2016, I electronically filed the foregoing with the Clerk of Court by using the CM/ECF system which will send a notice of electronic filing to all attorneys of record. I further certify that, on the same day, I mailed, faxed, or e-mailed the foregoing document and notice of electronic filing to all attorney(s) of record who are non-CM/ECF participants. /s/ Patrick B. Reagin 4533210_1 Case 2:15-cv-04148-JTM-JVM Document 37-2 Filed 11/29/16 Page 2 of 2 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA MICHAELIN SYLVE VERSUS SUBSEA 7 (US) LLC, OCSV SIEM STINGRAY IN REM, SIEM OFFSHORE REDERI AS, AND BP EXPLORATION & PRODUCTION, INC. CIVIL ACTION NO. 2:15-cv-04148 SECTION “H” MAGISTRATE 1 HONORABLE JANE TRICHE MILAZZO MAGISTRATE JUDGE JANIS VAN MEERVELD MEMORANDUM IN SUPPORT OF BP’S MOTION FOR SUMMARY JUDGMENT This case arises out of alleged personal injuries sustained by plaintiff, Michealin Sylve, while working aboard the M/V SIEM STINGRAY (the “STINGRAY”), an offshore subsea construction vessel, on September 7, 2014. Sylve filed suit to recover damages against his employer, Subsea 7 (US) LLC (“Subsea 7”), the owner of the STINGRAY, Siem Offshore Rederi AS (“Siem Offshore”), and Subsea 7’s client/customer, BP Exploration and Production Inc. (“BP”). Pursuant to contract, and in fact, Subsea 7 was an independent contractor of BP over whom BP exercised no operational control, and, accordingly, BP owed no legal duty to protect Subsea 7 employees from workplace hazards. Moreover, BP was a non-participant in the operations underway at the time plaintiff injured himself, and no BP employee or agent contributed to the incident. There are no genuine issues of material fact concerning BP’s role, and BP is entitled to summary judgment as a matter of law dismissing plaintiff’s claims against BP. Case 2:15-cv-04148-JTM-JVM Document 37-3 Filed 11/29/16 Page 1 of 13 -2- I. BACKGROUND The SIEM STINGRAY is a 400-foot offshore services and construction vessel owned by Siem Offshore and time-chartered to Subsea 7.1 In accordance with a contract in effect between BP and Subsea 7, entitled Operations & Light Construction Vessel Services Contract, Contract No. BPR-10-04823” (the “Contract”), Subsea 7 agreed to perform various subsea construction services for the benefit of BP in the Gulf of Mexico. In connection with its obligations under the Contract, Subsea 7 provided a fully-crewed offshore construction vessel, the STINGRAY, and two remotely operated vehicles (“ROVs”).2 The STINGRAY was in port in Theodore, Alabama, on the date of plaintiff’s accident – September 7, 2014. The vessel was newly built and preparing for its initial work under the Contract. Subsea 7 personnel were in the process of installing subsea equipment and performing initial mobilization operations before proceeding to BP’s offshore work site.3 During mobilization, the Subsea 7 crew was tasked with loading supplies from the dock to the vessel using the crane on the STINGRAY. No BP personnel were involved in these cargo operations, and no BP personnel supervised or exercised any operational control over Subsea 7’s cargo operations.4 The Contract specifies that Subsea 7 “is an independent contractor” and “shall control the performance of the details” of Subsea 7’s work called for under the contract.5 The Contract further 1 Exhibit 1 (Corporate Deposition of Subsea 7) at 325:5 – 325:11. 2 Exhibit 2 (Declaration of Mike Bush) at ¶ 5. The first nine pages of the applicable BP – Subsea 7 contract are attached as Exhibit A to Exhibit 2. 3 Exhibit 2 (Declaration of Mike Bush) at ¶ 9; Exhibit 1 (Corporate Deposition of Subsea 7) at 327:16-327:21. 4 See Exhibit 3 (Deposition of Michealin Sylve) at 235:14-235:22; Exhibit 4 (Deposition of Evan McCarthy, Subsea 7 Offshore Manager) at 45:24-46:3; Exhibit 2 (Declaration of Mike Bush) at ¶¶ 6 and 10. 5 Exhibit A to Exhibit 2 (BP/Subsea 7 Contract) at DEF 0635, ¶7.02. Case 2:15-cv-04148-JTM-JVM Document 37-3 Filed 11/29/16 Page 2 of 13 -3- provides that Subsea 7 is “responsible for the mobilization and demobilization of its personnel, equipment and materials to and from the Work Site.”6 BP relied upon Subsea 7 to provide the necessary expertise and skill for Subsea 7’s operations. While BP was interested in the results of Subsea 7’s work and provided personnel to attend certain meetings and liaise with Subsea 7 and other BP contractors about contract objectives and scope of work, BP did not control the day-to- day details of Subsea 7’s operations on the STINGRAY.7 BP and Subsea 7 also executed a HSSE-MS Bridging Document (the “Bridging Document”) that specifies which company’s safety policies apply at particular times on the vessel. Under the terms of the Bridging Document, which was in effect on September 7, 2014, Subsea 7 safety policies govern exclusively on the vessel when it is in port.8 Shortly before his accident, Sylve, a Subsea 7 ROV Supervisor, walked onto the STINGRAY’s back deck area without alerting any member of the deck crew, including Deck Foreman Chris Callison.9 Sylve headed to the ROV Spares Room, which is located on the back deck, in order to retrieve camera cables for one of the Subsea 7 ROVs on the vessel.10 Sylve made the decision to retrieve the cables from the Spares Room himself—nobody from BP ordered him to do so.11 Entering the Spares Room, Sylve ducked his head in order to pass under the low top 6 Exhibit A to Exhibit 2 (BP/Subsea 7 Contract) at DEF 0636, ¶ 8.01. 7 Exhibit 2 (Declaration of Mike Bush) at ¶ 6; Exhibit A to Exhibit 2 (BP/Subsea 7 Contract) at DEF 0635-36, ¶ 7.02. 8 Exhibit 1 (Corporate Deposition of Subsea 7) at 327:22-328:11; Exhibit 2 (Declaration of Mike Bush) at ¶¶ 8 and 9. The relevant excerpt from the BP-Subsea 7 Bridging Document is attached as Exhibit B to Exhibit 2. 9 Exhibit 3 (Deposition of Michealin Sylve) at 289:24 – 290:2. “ROV” is a common marine abbreviation for “remotely-operated underwater vehicle.” 10 Id. at 250:8 – 250:14. 11 Exhibit 3 (Deposition of Michealin Sylve) at 352:5-352:12. Case 2:15-cv-04148-JTM-JVM Document 37-3 Filed 11/29/16 Page 3 of 13 -4- sill of the weathertight opening, and he remained in the room for 3-4 minutes.12 Sylve exited the Spares Room as the deck crew was in the process of swinging a crane load from the dock to the STINGRAY.13 Callison, a Subsea 7 employee, noticed Sylve about to walk into the path of the crane load and called out to him to stop and re-enter the Spares Room until the load had passed.14 Sylve turned back and re-entered the Spares Room through the same weathertight door, but this time he failed to duck sufficiently and glanced his head on the top sill of the opening as he did so.15 Sylve was wearing a hard hat when he hit his head.16 With the exception of the crane operator, a Siem Offshore employee, the STINGRAY’s deck crew was made up entirely of Subsea 7 employees or Subsea 7 contract personnel.17 Sylve alleges an injury to his neck as a result of the incident, and his suit names Subsea 7, Siem Offshore, and BP. II. SUMMARY JUDGMENT STANDARD Summary judgment is appropriate when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). “Conclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial.” Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002). The issue of a party’s entitlement to the independent contractor defense is appropriate for summary judgment where the material facts are not in dispute. See, e.g., Iglesias v. Chevron U.S.A. Inc., 656 F. Supp. 2d 598, 602 (E.D. La. 2009). 12 Id. at 304:1-9 and 305:5-7. 13 Id. at 254:25-256:5. 14 Id. at 250:12-250:20; Exhibit 5 (Deposition of Chris Callison) at 27:1-27:9. 15 Exhibit 3 (Deposition of Michealin Sylve) at 250:18 – 250:20, and 304:1-9. 16 Id. at 255:10 – 256:5. 17 Exhibit 1 (Corporate Deposition of Subsea 7) at 23:16-23:25; Exhibit 5 (Deposition of Chris Callison) at 7:7-7:23. Case 2:15-cv-04148-JTM-JVM Document 37-3 Filed 11/29/16 Page 4 of 13 -5- Whether the defendant owed a duty to the plaintiff is a question of law for the Court. Miss. Dep't of Transp. v. Signal Int'l LLC (In re Signal Int'l LLC), 579 F.3d 478, 490 (5th Cir. 2009). III. APPLICABLE LAW The issues in this case are governed by the general maritime law (the “GML”). The parties do not dispute that Michealin Sylve qualifies as a “seaman” for purposes of the Jones Act, 46 U.S.C. § 30104, or that his alleged injury occurred aboard a vessel, the STINGRAY, in the course of his employment for Subsea 7. Sylve’s claims against BP are governed by the GML.18 IV. DISCUSSION A. BP is Shielded by the Independent Contractor Defense Against Claims Arising Out of the Alleged Negligence of Subsea 7 Employees 1. The General Maritime Law Recognizes the Independent Contractor Defense Under the general maritime law, a principal “who hires independent contractors over which he exercises no operational control has no duty to discover and remedy hazards created by its independent contractors.”19 In other words, a principal (BP) is not liable for the acts of the employees of its independent contractors (Subsea 7), unless the claimant establishes that the principal exercised operational control over the independent contractor’s performance under the contract.20 “When the contract assigns the independent contractor responsibility for its own activities, the principal does not retain operational control.”21 The control determination “depends 18 See, e.g., Becker v. Tidewater, Inc., 335 F.3d 376, 387 (5th Cir. 2003) (Jones Act seaman may bring claims of negligence against non-employer third parties). 19 Wallace v. Oceaneering Int’l, 727 F.2d 427, 437 (5th Cir. 1984); see also Landry v. Huthnance Drilling Co., 889 F. 2d 1469, 1471 (5th Cir. 1989); Waggoner v. Wilson Welding, No. 97-1899, 1998 WL 404653, at *3 (E.D. La. July 16, 1998) (collecting cases). 20 See, e.g., Pervyshev v. Interiorent Navigation Co., Ltd., Inc., No. 05-4040, 2007 WL 2344907, at *3-4 (E.D. La. Aug. 15, 2007). 21 Fruge ex rel. Fruge v. Parker Drilling Co., 337 F.3d 558, 564 (5th Cir. 2003). Case 2:15-cv-04148-JTM-JVM Document 37-3 Filed 11/29/16 Page 5 of 13 -6- in great measure on whether and to what degree the right to control the work has been contractually reserved by the principal.”22 The supervision and control which is actually exercised is less significant.23 “The Fifth Circuit has long recognized that there is no operational control unless the principal retains control over the methods and manner of the work, i.e., gives ‘how to’ instructions to the independent contractor.”24 Operational control exists only if the principal has direct supervision over the step-by-step process of accomplishing the work such that the contractor is not entirely free to do the work in his own way.25 The physical presence of a representative of a principal is not sufficient to show supervision or control.26 2. The Terms of the Contract Establish that Subsea 7 is an Independent Contractor The BP/Subsea 7 contract provides that Subsea 7 “is an independent contractor” and “shall control the performance of the details” of the work called for under the contract.27 The contract further specifies that Subsea 7 “is responsible for the mobilization and demobilization of its personnel, equipment and materials to and from the Work Site.”28 It is undisputed that, at the time of Sylve’s incident, the crew were in the process of “mobilizing” (i.e., loading and preparing equipment and personnel) in preparation to proceed for the first time to the work site in the Gulf of Mexico.29 Additionally, BP and Subsea 7 executed a Bridging Document delineating which 22 Ainsworth v. Shell Offshore, Inc., 829 F.2d 548, 550-51 (5th Cir. 1987) (internal citations and quotation marks omitted) (emphasis added). 23 Id. 24 Iglesias v. Chevron U.S.A., Inc., 656 F. Supp. 2d 598, 601 (E.D. La. 2009). 25 LeJeune v. Shell Oil Co., 950 F.2d 267, 270 (5th Cir. 1992). 26 Fruge, 337 F.3d 558, 563 (5th Cir. 2003). 27 Exhibit A to Exhibit 2 (BP/Subsea 7 Contract) at DEF 0635, ¶ 7.01. 28 Id. at DEF 0636, ¶ 8.01. 29 Exhibit 1 (Corporate Deposition of Subsea 7) at 327:16-327:21; Exhibit 2 (Declaration of Mike Bush) at ¶ 9. Case 2:15-cv-04148-JTM-JVM Document 37-3 Filed 11/29/16 Page 6 of 13 -7- company’s safety policies govern on the vessel at any particular time. That document provides that Subsea 7 safety policies exclusively govern while in port.30 Accordingly, under the parties’ contract, Subsea 7 is an independent contractor and specifically responsible for mobilization and cargo loading activities. Because Sylve cannot establish that BP exercised operational control over (i.e., gave “how-to” instructions to) Subsea 7 about how to perform mobilization activities, his claims against BP should be dismissed.31 3. BP Did Not Exercise Operational Control over the Subsea 7 Mobilization The relevant inquiry is whether BP had “actual control of the particular activity during which” the claimant was injured.32 In order to exercise operational control, the principal (BP) must have direct supervision of the step-by-step process of accomplishing the work such that the contractor (Subsea 7) is not entirely free to do the work in his own way.33 Here, Sylve alleges he was injured after retrieving camera cables from the ROV Spares Room, located on the back deck, during mobilization (specifically lifting) operations. The evidence is undisputed that BP did not exercise operational control over Sylve’s activities as ROV Supervisor or over the back deck crew during mobilization lifts. 30 Exhibit B to Exhibit 2 (BP/Subsea 7 Bridging Document) at DEF 2168 (“Subsea 7 Procedure to be adhered to when outside 500 meter zone.”); Id. at DEF 2176 (General Safety Rules – “Subsea 7 Procedure to be adhered to by Subsea 7 personnel and BP personnel if onboard the vessel.”) (emphasis added); Exhibit 1 (Corporate Deposition of Subsea 7) at 325:15 – 326:10; Exhibit 2 (Declaration of Mike Bush) at ¶ 8. Indeed, Subsea 7 policies govern under the Bridging Document at all times that the vessel is not within 500 meters of a BP facility. See Exhibit 1 (Corporate Deposition of Subsea 7) at 326:3-326:10 (“Q. So would it be fair to say that the only time BP’s policies apply, BP safety policies and procedures apply is when the vessel is offshore and within a 500-meter radius – A. Yes. Q. – of the BP facility? A. That is correct.”). 31 See Iglesias v. Chevron U.S.A., Inc., 656 F. Supp. 2d 598, 601 (E.D. La. 2009). 32 Cormier v. W & T Offshore, Inc., No. 10-1089, 2013 WL 1567406, at *11 (W.D. La. Apr. 12, 2013). 33 LeJeune v. Shell Oil Co., 950 F.2d 267-70 (5th Cir. 1992). Case 2:15-cv-04148-JTM-JVM Document 37-3 Filed 11/29/16 Page 7 of 13 -8- Sylve testified that he made the decision to retrieve cables from the ROV Spares Room himself.34 Nobody from BP ordered him to do so.35 Sylve further acknowledged that it is the obligation of the Subsea 7 back deck crew—not BP—to ensure their work is performed safely.36 The Bridging Document executed by BP and Subsea 7 expressly provided that Subsea 7 safety procedures—not BP’s—were adhered to for Subsea 7 lifting operations at its facilities.37 The Subsea 7 deck crew performed all lifting and loading operations on the vessel’s back deck.38 BP had no control or authority over these activities while the STINGRAY was in port on September 7, 2014.39 To the extent Sylve may argue the presence of certain BP HSSE personnel on the vessel created operational control, this argument is invalid as a matter of fact and law.40 At the time of Sylve’s incident, any BP personnel on the vessel had only recently arrived and were in the process 34 See Exhibit 3 (Deposition of Michealin Sylve) at 352:5-352:12 (“Q. Who was it that decided that you should go to the store room? A. It was me. Q. Okay. Did somebody order you to go to the store room? A. No. We need some cables for the cameras.”). 35 Id. at 352:12-352:16 (“Q. Okay. So no one from BP told you to go to the store room? A. No.”). 36 Id. at 349:12-350:2 (“Q. . . . It’s the Subsea 7 deck crew’s obligation to do their work safely; right? A. Yes.”). 37 Exhibit B to Exhibit 2 (BP/Subsea 7 Bridging Document) at DEF 2181; Exhibit 1 (Corporate Deposition of Subsea 7) at 327:22-328:11 (“Q. Based on your knowledge of this document, whose safety policies and procedures apply when the vessel is at the dock? A. At the dock, on board the vessel they are entirely Subsea 7 policies. Q. Do BP’s safety procedures and policies apply at all on board the vessel when the vessel is at the dock? A. No, they do not.”) 38 Exhibit 5 (Deposition of Chris Callison) at 18:4-18:10 (“A. At this time, we [the Subsea 7 deck crew] would be loading equipment for them. They [BP] don’t load equipment. Q. What about hand portable equipment, things like that? A. No. Everything is loaded by us.”); see also Exhibit 1 (Corporate Deposition of Subsea 7) at 23:16-23:25; Exhibit 5 (Deposition of Chris Callison) at 7:7-7:23. 39 Exhibit 1 (Corporate Deposition of Subsea 7) at 20:10-20:13 (“A. Thome and BP aren’t involved in the deck. That’s purely a Subsea 7 matter. So it would be purely Subsea 7 employees who would do that.”) (emphasis added). 40 See Fruge ex rel. Fruge v. Parker Drilling Co., 337 F.3d 558, 563 (5th Cir. 2003) (“The physical presence of a representative of a principal is not sufficient to show supervision or control.”). Case 2:15-cv-04148-JTM-JVM Document 37-3 Filed 11/29/16 Page 8 of 13 -9- of acquainting themselves with the vessel as it prepared to depart to the work site for the first time.41 Regardless of how long any BP employees were present on the vessel by the time of Sylve’s incident, their purpose was to serve as liaisons between BP and Subsea 7 and to observe the work performed pursuant to the contract—not to direct the details of Subsea 7’s work.42 “It is well-established that Courts do not require a principal to discover and correct unsafe loading procedures performed by independent contractors.”43 Moreover, the “fact that a principal takes an active interest in the safety of the employees of its independent contractor does not, in and of itself, constitute direct operational control.”44 Accordingly, even if it could be established that BP personnel on the vessel were attending safety meetings or observing Subsea 7 operations at the time of Sylve’s accident, this would not amount to operational control over Subsea 7 activities.45 41 Sylve’s incident occurred on the eve of the vessel’s departure for the work site. At that time, the BP personnel on board, like everyone else, were familiarizing themselves with the vessel and preparing to leave for the worksite. See Exhibit 4 (Deposition of Evan McCarthy) at 45:6-45:13; Exhibit 1 (Corporate Deposition of Subsea 7) at 328:23-329:2 (“A. The role of those BP representatives at the time was they were preparing for the vessels to go offshore to conduct BP works, settling in, and being inducted[.]”). 42 See Exhibit 1 (Corporate Deposition of Subsea 7) at 48:20-49:6 (“Q. What’s their role on board the vessel? A. So, as I previously stated, BP have a number of client representatives that they have on board and they are purely that, so they are there as a point of contact to BP on the beach and also if there are any questions that arise from the vessel crew, then that is who they would go to on board. That is the BP company man, should I say, on board. If there are any questions, that is who they would go to.”); Exhibit 3 (Deposition of Michealin Sylve) at 210:13-210:22 (“Q. But there’s not a BP man standing there telling you, ‘Okay.’ A. ‘We need this.’ Q. ‘Let’s get a screwdriver here, and let’s get this’ – A. No. Q. That’s not the way the system works. You guys – Subsea 7, you’re the ROV experts; right? A. I would like to think so.”); Exhibit 2 (Declaration of Mike Bush) at ¶ 6. 43 Iglesias v. Chevron U.S.A. Inc., 656 F. Supp. 2d 598, 602 (E.D. La. 2009) (Zainey, J.). 44 Duplantis v. Shell Offshore, Inc., 948 F. 2d 187, 193 (5th Cir. 1991). 45 See Toussaint v. Chevron Phillips Chem Co., LLC, No. 03-3481, 2006 WL 2349465, at *2 (E.D. La. Aug. 11, 2006) (“Under Coulter, Chevron’s approval of the JSA [Job Safety Analysis] would likely not subject it to ‘operational control’ liability even if the JSA had described the unsafe practices that actually occurred. Even less can Chevron be liable for its contractor’s actions where the safety analysis that Chevron approved was not followed by the contractor.”). Case 2:15-cv-04148-JTM-JVM Document 37-3 Filed 11/29/16 Page 9 of 13 -10- Because Sylve cannot establish that BP exercised operational control over Subsea 7’s mobilization lifts, his claims against BP should be dismissed as a matter of law. B. BP is Not Liable to Sylve for Direct Negligence Although “the general rule shields a principal from the acts of its independent contractor, the principal remains liable for its own acts of negligence.”46 However, “[i]t is well established that Courts do not require a principal to discover and correct unsafe loading procedures performed by independent contractors.”47 “In determining whether a principal owes a duty to employees of independent contractors, courts consider whether the hazard was created by the principal or the independent contractor.”48 Here, Sylve’s allegations are that Subsea 7 deck crew personnel failed to adequately secure the back deck area and warn others on the vessel prior to beginning lifting operations. BP had no responsibility for performing this task. It therefore cannot have breached any duty of care to Sylve.49 In Iglesias v. Chevron U.S.A. Inc., the plaintiff, an employee of Chevron’s independent contractor, was injured in the course of unloading supplies from a supply vessel to an offshore platform.50 The plaintiff and his co-employees had been given general instructions by a Chevron employee at a morning meeting that the vessel would be arriving and would need to be unloaded.51 46 Iglesias v. Chevron U.S.A. Inc., 656 F. Supp. 2d 598, 602 (E.D. La. 2009) (Zainey, J.) (citing Ellis v. Chevron U.S.A. Inc., 650 F.2d 94, 97 (5th Cir. 1981)). 47 Id. at 602. 48 Thomas v. Burlington Resources Oil and Gas Co., No. 99-3904, 2000 WL 1528082 (E.D. La. Oct. 13, 2000) (Barbier, J.). 49 See, e.g., In re Great Lakes Dredge & Dry Dock Co. LLC, 624 F.3d 201, 211 (5th Cir. 2010) (Under the general maritime law, the plaintiff must show that (1) there was a duty owed by the defendant to the plaintiff, (2) the duty was breached, (3) the plaintiff suffered injury, and (4) a causal connection between the defendant’s conduct and the plaintiff’s injury.). 50 656 F. Supp. 2d 598 (E.D. La. 2009). 51 Id. at 602 (“Hebert gave general instructions to the crew that morning that a supply vessel [was] coming and would need to be unloaded.”). Case 2:15-cv-04148-JTM-JVM Document 37-3 Filed 11/29/16 Page 10 of 13 -11- The plaintiff attempted to rely on this to argue Chevron created the dangerous condition that led to his injury and was therefore responsible for his injury. The court rejected this argument, noting that loading and unloading procedures on the platform were the responsibility of the independent contractor and were not performed by Chevron employees or at their direction.52 Without evidence that Chevron employees “control the work of [its contractor’s] employees or give ‘how to’ instructions regarding unloading,” the court held that Chevron owed no duty of care to the plaintiff.53 By way of contrast, in Ballew v. Texaco, Inc., fact issues prevented summary judgment where there was evidence a Texaco employee directly ordered the employees of a contractor to clean up certain areas, and the plaintiff was injured during the cleaning up.54 In this case, Sylve admits no BP employee told him to retrieve camera cables from the ROV Spares Room.55 Further, the evidence is clear that back deck mobilization activities are exclusively the responsibility of Subsea 7 personnel.56 The identities of the employees involved in the lift in question is telling: the deck foreman and riggers were employees of Subsea 7 and the crane operator was an employee of the vessel owner, Siem Offshore.57 BP did not direct loading 52 Iglesias, 656 F. Supp. 2d at 602 (“[A] GIS employee . . . testified that GIS was responsible for unloading cargo baskets, had done it hundreds of times, and that they needed no supervision to do the job.”). 53 Id. 54 No. 94-3946, 1995 WL 638595 (E.D. La. Oct. 27, 1995). 55 See Exhibit 3 (Deposition of Michealin Sylve) at 352:5-352:16 (“Q. Who was it that decided that you should go to the store room? A. It was me. Q. Okay. Did somebody order you to go to the store room? A. No. We need some cables for the cameras. Q. Okay. So no one from BP told you to go to the store room? A. No.”). 56 See Exhibit A to Exhibit 2 (BP/Subsea 7 Contract) at DEF 0636, ¶ 8.01 (Subsea 7 is “responsible for the mobilization and demobilization of its personnel, equipment and materials to and from the Work Site.”); Exhibit B to Exhibit 2 (BP/Subsea 7 Bridging Document) at DEF 2181; Exhibit 1 (Corporate Deposition of Subsea 7) at 329:8-329:13 (“Q. Whose operation was mobilization of the vessel? A. That’s Subsea 7. Q. Was it exclusively a Subsea 7 operation? A. That’s correct.”). 57 See Exhibit 1 (Corporate Deposition of Subsea 7) at 23:16-23:25; Exhibit 5 (Deposition of Chris Callison) at 7:7-7:23. Case 2:15-cv-04148-JTM-JVM Document 37-3 Filed 11/29/16 Page 11 of 13 -12- operations on the back deck and simply had nothing to do with the particulars of the vessel mobilization.58 Accordingly, BP owed no duty of care to Sylve, the employee of its independent contractor, in the context of mobilization activities underway on the back deck. There is no merit to Sylve’s negligence claim against BP, and this claim should be dismissed with prejudice. V. CONCLUSION Under the terms of the BP/Subsea 7 contract, Subsea 7 operates as an independent contractor. The parties’ Bridging Document further establishes that mobilization activities, and crane lifts while in port specifically, are the responsibility of Subsea 7 personnel and governed by Subsea 7 safety procedures. Under well-settled law, BP is not vicariously liable for the allegedly negligent conduct of the employees of its independent contractor, Subsea 7. Further, there is no evidence BP directed any of the activities on the back deck or owed any independent duty of care to Sylve. Accordingly, Sylve does not have a valid claim for direct negligence against BP. BP’s continued presence in this case, like that of Siem Offshore, is simply unnecessary. Sylve’s quarrel here is with his employer, Subsea 7, under the Jones Act. Sylve’s claims against BP should be dismissed with prejudice. 58 See Exhibit 1 (Corporate Deposition of Subsea 7) at 328:13-329:7 (“Q. What, if any, control or authority would BP have had over Subsea 7’s operations on the back deck of the vessel on September 7, 2014? A. BP would have had no control of Subsea 7 operations. The BP persons on board were BP representatives. . . . They are the person the offshore manager approaches to – if he has any questions regarding BP.”); Exhibit 2 (Declaration of Mike Bush) at ¶¶ 6 and 10 Exhibit 4 (Deposition of Evan McCarthy, Subsea 7 Offshore Manager) at 45:34-46:3. Case 2:15-cv-04148-JTM-JVM Document 37-3 Filed 11/29/16 Page 12 of 13 -13- Respectfully submitted, /s/ Patrick B. Reagin David W. Leefe, T.A. (Bar #1479) Patrick B. Reagin (Bar #35970) LISKOW & LEWIS 701 Poydras Street, Suite 5000 New Orleans, LA 70139-5099 Telephone: (504) 581-7979 Facsimile: (504) 556-4108 dwleefe@liskow.com preagin@liskow.com Attorneys for Subsea 7 (US) LLC, Siem Offshore Rederi AS, and BP Exploration & Production, Inc. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 29th day of November, 2016, I electronically filed the foregoing with the Clerk of Court by using the CM/ECF system which will send a notice of electronic filing to all attorneys of record. I further certify that, on the same day, I mailed, faxed, or e-mailed the foregoing document and notice of electronic filing to all attorney(s) of record who are non-CM/ECF participants. /s/ Patrick B. Reagin 4546936_1.docx Case 2:15-cv-04148-JTM-JVM Document 37-3 Filed 11/29/16 Page 13 of 13 Page 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA MICHAELIN SYLVE CIVIL ACTION VERSUS NO. 2:15-CV-4148 SECTION "H" MAG. DIV. 1 HONORABLE JANE TRICHE MILAZZO MAGISTRATE SALLY SHUSHAN SUBSEA 7 (US) LLC, OCSV SIEM STINGRAY IN REM, SIEM OFFSHORE REDERI AS, AND BP EXPLORATION & PRODUCTION, INC. 30(b)(6) deposition of Subsea 7, LLC, through its designated representative, SCOTT COUGHLAN, 17220 Katy Freeway, Suite 100, Houston, Texas 77094, taken in the offices of Liskow & Lewis, Suite 5000, One Shell Square, 701 Poydras Street, New Orleans, Louisiana 70139, reported on Tuesday, April 26th, 2016, beginning at 9:00 a.m. EXHIBIT 1 Case 2:15-cv-04148-JTM-JVM Document 37-4 Filed 11/29/16 Page 1 of 10 Page 20 1 created, whoever created it, the shift's 2 supervisor would have approved it? 3 A. Ultimately. 4 Q. Would there need to be any 5 approval above the ship supervisor level? 6 A. It may well have gone to the OM, 7 but I can't confirm that for definite. 8 Q. Okay. What about any input from 9 Thome Offshore or -- 10 A. Thome and BP aren't involved in 11 the deck. That's purely a Subsea 7 matter. 12 So it would be purely Subsea 7 employees who 13 would do that. 14 Q. Okay. Who would be -- which 15 mechanics of the vessel's crew would be 16 required to sign or to go through the deck 17 induction? 18 A. So anybody who as part of their 19 job, it would be identified that they would 20 need to go on the back deck of the ship 21 while construction activities were taking 22 place would be required to complete a deck 23 induction. 24 Q. So not necessarily anybody who 25 would have to go on the back deck at all? Case 2:15-cv-04148-JTM-JVM Document 37-4 Filed 11/29/16 Page 2 of 10 Page 23 1 vessel crew? 2 A. The majority of the marine crew, 3 yes, primarily being because when the ship 4 comes in alongside or leaves the jetty, they 5 would have to go and do line handling at the 6 stern of the ship, so, yes, they would need 7 to do that. 8 Q. Is that -- through the course of 9 your deposition, we use marine crew, would 10 that be safe to identify the actual 11 contingent of individuals who are filling 12 the safe manning document and providing 13 vessel services like ABs, OSs, engineers, et 14 cetera? 15 A. I can, yes. 16 Q. Okay. So you said that Subsea 7 17 is primarily responsible for the back deck 18 operations, but are there any members of the 19 marine crew who are involved in those 20 operations as well? 21 A. So Thome provide crane drivers, so 22 there was an AB crane operator who was 23 provided by Thome as part of that vessel 24 crew. He will work with the Subsea 7 back 25 deck crew. Case 2:15-cv-04148-JTM-JVM Document 37-4 Filed 11/29/16 Page 3 of 10 Page 48 1 cannot remember which position he fills on 2 board. 3 Q. Okay. I have it listed here that 4 he worked for Alf Technical Services, is 5 that a subcontractor of Subsea 7? 6 A. I would need to verify that. 7 Q. Okay. I've also have listed James 8 Landry, BP Exploration and Production? 9 A. James Landry is one of the BP 10 client representatives. 11 Q. When you say client 12 representatives, is he on board the ship? 13 A. I believe so. I need to verify 14 that. But there were a number of BP client 15 representatives who were on board, who had 16 joined the vessel to get into their 17 accommodation, get settled in and get 18 inducted to the boat before she sailed 19 offshore. 20 Q. What's their rule on board the 21 vessel? 22 A. So, as I previously stated, BP 23 have a number of client representatives that 24 they have on board and they are purely that, 25 so they are there as a point of contact to Case 2:15-cv-04148-JTM-JVM Document 37-4 Filed 11/29/16 Page 4 of 10 Page 49 1 BP on the beach and also if there are any 2 questions that arise from the vessel crew, 3 then that is who they would go to on board. 4 That is the BP company man, should I say, on 5 board. If there are any questions, that is 6 who they would go to. 7 Q. Okay. Do you know who the 8 client's rep was on the date of Mr. Sylve's 9 accident? 10 A. I cannot remember at this moment, 11 but I could easily get those for you, if 12 required. 13 Q. Okay. I got a copy of Chris 14 Callison's statement here. I mark it 15 Exhibit 1. 16 (Exhibit No. 1 marked for 17 identification.) 18 EXAMINATION BY MR. CVITANOVIC: 19 Q. And I will pile these up next to 20 you. 21 A. Okay. 22 Q. Keep them organized for the court 23 reporter. We discussed this a little 24 earlier today. You've seen this document 25 before? Case 2:15-cv-04148-JTM-JVM Document 37-4 Filed 11/29/16 Page 5 of 10 Page 325 1 policies will take precedence when. 2 Q. All right. So when the vessel -- 3 now the vessel here is the STINGRAY, right? 4 A. Correct. 5 Q. And the STINGRAY is -- who was 6 responsible as between BP and Subsea for 7 supplying the vessel? 8 A. That's a Subsea 7 responsibility. 9 Q. And did Subsea 7 charter it from 10 someone else? 11 A. The vessel is chartered from Siem. 12 Q. Is it managed by a different 13 company all together? 14 A. It is managed by Thome. 15 Q. When the vessel, under the 16 bridging document, when the vessel, the 17 STINGRAY, is at the dock mobilizing for a 18 job offshore, does the bridging document 19 provide or tell us whose safety policies 20 apply as between BP and Subsea 7? 21 A. It does. Effectively, as it's 22 detailed here within the document, that the 23 Subsea 7 procedures are adhered to outside 24 of 500 meters on board the STINGRAY. 25 Q. Outside of 500 meters of what? Case 2:15-cv-04148-JTM-JVM Document 37-4 Filed 11/29/16 Page 6 of 10 Page 326 1 A. Outside of 500 meters of a BP 2 platform or asset, Subsea 7 asset. 3 Q. So would it be fair to say that 4 the only time BP's policies apply, BP safety 5 policies and procedures apply is when the 6 vessel is offshore and within a 500-meter 7 radius -- 8 A. Yes. 9 Q. -- of the BP facility? 10 A. That is correct. 11 Q. So no question then that when the 12 vessel is at the dock, Subsea 7's policies 13 and procedures are applicable exclusively? 14 MR. CVITANOVIC: 15 I object to the form of the 16 question. 17 MR. LEEFE: 18 All right, fine. 19 EXAMINATION BY MR. LEEFE: 20 Q. Under the bridging document, based 21 on your -- your safety background -- well, 22 let me back up. Strike that. 23 Did you have anything to do with 24 the preparation of this bridging document? 25 A. I produced it on the Subsea 7 Case 2:15-cv-04148-JTM-JVM Document 37-4 Filed 11/29/16 Page 7 of 10 Page 327 1 side. My name and signature are near the 2 front of the document. 3 Q. You were intimately involved, 4 would you say? 5 A. Yes, very much so. 6 Q. Based on your knowledge of this 7 document, whose safety policies and 8 procedures apply when the vessel is at the 9 dock? 10 A. At the dock, on board the vessel 11 they are entirely Subsea 7 policies. 12 Q. Do BP's safety procedures and 13 policies apply at all on board the vessel 14 when the vessel is at the dock? 15 A. No, they do not. 16 Q. Now, on September the 7th, 2014, 17 do you know where the vessel was? 18 A. The vessel was alongside at Core 19 Base near Mobile in Alabama. 20 Q. At the dock? 21 A. At the dock. 22 Q. So on September the 7th, 2014, 23 who, as between BP and Subsea 7, whose 24 policies and procedures from a safety 25 standpoint apply? Case 2:15-cv-04148-JTM-JVM Document 37-4 Filed 11/29/16 Page 8 of 10 Page 328 1 A. They were all Subsea 7's, both on 2 the vessel and at the dock. 3 Q. Would BP have had any control or 4 authority over Subsea 7's operations on the 5 back deck of the vessel on September 7, 6 2014? 7 MR. CVITANOVIC: 8 I object to the form of the 9 question. 10 THE WITNESS: 11 No, they would not. 12 EXAMINATION BY MR. LEEFE: 13 Q. What, if any, control or authority 14 would BP have had over Subsea 7's operations 15 on the back deck of the vessel on September 16 7, 2014? 17 A. BP would have had no control of 18 Subsea 7 operations. The BP persons on 19 board were BP representatives. 20 Q. And what was the role of the BP 21 representatives, the role on the vessel on 22 September 7, 2014, alongside the dock? 23 A. The role of those BP 24 representatives at the time was they were 25 preparing for the vessels to go offshore to Case 2:15-cv-04148-JTM-JVM Document 37-4 Filed 11/29/16 Page 9 of 10 Page 329 1 conduct BP works, settling in, and being 2 inducted, and also they are, as I think I 3 mentioned earlier, the BP reps are also the 4 interface between Subsea 7 and the client. 5 They are the person that the offshore 6 manager approaches to -- if he has any 7 questions regarding BP. 8 Q. Whose operation was mobilization 9 of the vessel? 10 A. That's Subsea 7. 11 Q. Was it exclusively a Subsea 7 12 operation? 13 A. Correct. 14 Q. Who is it that conducts, as far as 15 you know, based on your experience as HSE 16 safety manager in the Gulf of Mexico, who 17 conducts the deck inductions on board the 18 STINGRAY? 19 A. The deck inductions are usually 20 conducted by the deck foreman. 21 Q. Now, as I understand it, the deck 22 induction form for Mike Sylve has not been 23 located? 24 A. That is correct. 25 Q. And what is -- based on your Case 2:15-cv-04148-JTM-JVM Document 37-4 Filed 11/29/16 Page 10 of 10 EXHIBIT 2 Case 2:15-cv-04148-JTM-JVM Document 37-5 Filed 11/29/16 Page 1 of 21 Case 2:15-cv-04148-JTM-JVM Document 37-5 Filed 11/29/16 Page 2 of 21 Case 2:15-cv-04148-JTM-JVM Document 37-5 Filed 11/29/16 Page 3 of 21 Contract between BP Exploration & Production Inc. and Subsea 7 (US) LLC Operations & Light Construction Vessel Services Contract Contract No. BP0-10-04823 NOTICE: 11DS CONTRACT CONTAINS ARBITRATION, INDEMNIFICATION. RELEASE, ASSUMPTION OF LIABJUT\', AND HOLD HARMLESS PROVISIONS,SOME OFWIDCHARE IN ARTICLES 16 AND24 ANDTIIE REMAINDER ARE FOUNDTIIROUGHOUf THE CONTRACT. Rev S approved by PC6-l-08 File: C:\Documcntl And Seuinp\ShcccJ\Local ScttinpTempor&ry Internet FildOLK83'MPSV ConU'ld S7 S 9 11 R4.Doc DEF 0629 EXHIBIT 2A Case 2:15-cv-04148-JTM-JVM Document 37-5 Filed 11/29/16 Page 4 of 21 CONTRACT TABLE OF CONTENTS Page No. l: CONTRACT DOCUMENTS AND lNTERPRET ATION ................................................................................................................... I 2· DEFINITIONS ....................................................................................................................................................................................... 2 3: SCOPE OF WORK .AND PERFORMANCE ....................................................................................................................................... 4 4: TERM; TIME OF COMMENCEMENT AND COMPLETION ......................................................................................................... 4 S· CHANGES TO Tl-IE WORK ................................................................................................................................................................ S 6: APPOINTMENT OF REPRESEN1' ATlVES ....................................................................................................................................... S 7: INDEPENDENT CONTRACTOR AND LOUISIANA STATUTORY EMPLOYEE ....................................................................... S 8: CONTRACTOR'S OBLIGATIONS ...................................................................................................................................................... 6 9: COMPENSATION ANDPAYMENT .................................................................................................................................................. 8 10: PROVISIONAL ACCEP'l'ANCE OF THE WORK PRODUCJ' ....................................................................................................... 9 11· WARRANl'Y ..................................................................................................................................................................................... 10 12: TAXES, LIENS, AND CHARGES ................................................................................................................................................... 11 13· CONFLICTS OF INTEREST ............................................................................................................................................................ 11 14· CONFIDENTIALITY ........................................................................................................................................................................ 11 15· NOTICES ........................................................................................................................................................................................... 12 16· INDEMNITY ..................................................................................................................................................................................... 13 17· INSURANCE ..................................................................................................................................................................................... 18 18· FORCE MAJEURE ........................................................................................................................................................................... 22 19: ASSIGNMENT OR SUBCONTRACT ............................................................................................................................................. 22 20: DEFAULT AND INSOLVENCY ..................................................................................................................................................... 23 21 · TERMINATION ................................................................................................................................................................................ 23 22· TITLE ................................................................................................................................................................................................. 24 23: COMPLIANCE WITH LAWS .......................................................................................................................................................... 25 24: INTELLEC11JAL PROPERTY AND INDEMNIFICATION ......................................................................................................... 27 25· AUDIT ................................................................................................................................................................................................ 29 26: APPLICABLE LAW AND ARBITRATION ................................................................................................................................... 30 27: SURVIVAL, SEVERABILll"Yt AND WAIVER. ............................................................................................................................ 31 28: THIRD PARTY BENEFICIARIES ................................................................................................................................................... 31 29· CODE OF CONDUCT ...................................................................................................................................................................... 31 30: ENTIRE CONTRACT AND AMENDMENT .................................................................................................................................. 31 Exhibit" A'- Scope of Work Attachment "A-t •• - Vessel Commitment Tenns Attachment "A·2" - Supplier Management Exhibit 118 11 - Company Change Order Procedures Exhibit "C" - Specifications Attachment .. C-1" - Detailed ROV Requirements Attachment "C-2"- Dietary Guidelines for Americans, 2010- Key Recommendations Exhibit 110• - Contractor's Personnel, Equipment, and Materials Exhibit "E.. Compensation Exhibit "F' - Health, Safety, Security, and Environmental Requirements Exhibit .. 0.. - Substance Abuse Policy Exhibit "H" - Marine Assurance Table of Contents Rev S approved by FC 6-1..08 Contract No. BP0-10-04823 DEF 0630 Case 2:15-cv-04148-JTM-JVM Document 37-5 Filed 11/29/16 Page 5 of 21 CONTRACT between BP EXPLORATION & PRODUCTION INC. and SUBSEA 7 (US) LLC THIS CONTRACT is made this 9th day of May, 2011 (the Effective Date) by and between BP EXPLORATION & PRODUCTION INC. (hereinafter referred to as "Company"), having an office at 501 Westlake Parle Boulevard, Houston, Texas 77079, and SUBSEA 7 (US) LLC (hereinafter referred to as "Contractor"), having an office at 10787 Clay Road, Houston, Texas 77041. Company and Contractor may hereinafter be referred to collectively as "Parties" or individually as a "Party." In consideration of the covenants and provisions hereinafter provided, the Parties agree as follows: ARTICLE 1: CONTRACT DOCUMENTS AND INTERPRETATION 1.01 The following Contract documents together constitute this Contract: Articles 1 to 30, inclusive Exhibit 11A0 - Scope of Work Attachment "A-1" - Vessel Commitment Terms Attachment "A-2" - Supplier Management Exhibit 118 11 - Company Change Order Procedures Exhibit 11C" - Specifications Attachment "C-1" - Detailed ROV Requirements Attachment "C-2" - Dietary Guidelines for Americans,2010 - Key Recommendations Exhibit "D11 - Contractor's Personnel, Equipment, and Materials Exhibit "E 11 - Compensation Exhibit "F" - Health, Safety, Security, and Environmental Requirements Exhibit "G" - Substance Abuse Policy Exhibit "H" - Marine Assurance 1.02 Exhibits "A" to "H" inclusive are incorporated herein by reference and Contractor agrees to comply with all the provisions thereof. 1.03 Each Article in this Contract contains provisions that are sometimes referred to as a Section(s) of an Article(s). Unless the context otherwise requires, a general reference to any Article includes the entire Article and a reference to any specific Section(s) ofan Article refers to the identified Section(s). 1.04 In the event of any conflict, inconsistency, or ambiguity between the Articles of this Contract and any of the Exhibits referred to above, the Articles shall prevail. 1.05 In the event of any conflict, inconsistency, or ambiguity among any of the Exhibits that are part of this Contract, they shall prevail in the order listed above. 1.06 Reference to any statute, statutory provision or statutory instrument includes a reference to that statute, statutory provision or statutory instrument as from time to time amended, extended or re-enacted. 1.07 Reference to the singular includes a reference to the plural and vice versa and reference to one gender includes a reference to the other gender. 1.08 Headings are used for convenience only and will not affect the construction or validity of this Contract 1.09 The Parties agree that each has had the opportunity to review the terms and provisions of this Contract with counsel of their choosing and to request any desired changes or clarifications and that the tenns of this Contract - t - Rev S approved by FC 6-1-08 Contract No. BP0-10-04823 DEF 0631 Case 2:15-cv-04148-JTM-JVM Document 37-5 Filed 11/29/16 Page 6 of 21 will not be interpreted against one Party or the other on the ground that such Party drafted or revised a particular provision. Instead, in the event of any ambiguity, this Contract will be interpreted in accordance with the intent of the Parties as evidenced by the Contract taken as a whole. ARTICLE 2: DEFINITIONS In this Contract, the words and phrases shall have the meanings ascribed below or as defined separately in the individual Articles of this Contract. 2.01 "Affiliate or Affiliates" of a company shall mean a current or future Person directly odndirectly controlling, controlled by, or under common control with such company. "Control" for this purpose shat~ in the case of a corporation with outstanding voting stock, require the direct or indirect ownership of or power to vote with respect to outstanding shares of a corporation's capital stock constituting fifty percent (50%) or more of the votes of any class of such corporation's outstanding voting stock, and with respect to any Person other than a corporation, the possession, directly or indirectly, of the power to direct or cause the direction of such person's management or policies. 2.02 "Approved" shall mean approved in writing (including subsequent written confirmation of previous verbal approval) and "Approval" means approval in writing (including subsequent written confinnation of previous verbal approval). 2.03 "Change Order" shall have the meaning set out in Article 5. 2.04 "Claim/Loss" and "Claims./Losses" shall mean all claims and losses of all kind and description concerning bodily injwy, personal injury, illness, death, and property damage including claims and/or losses for the above regardless of how such claims and/or losses may be characterized. Included, without limitation, are damages of all kinds and descriptions, liabilities, liens, privileges, and other encumbrances, causes of action (including actions in rem or in personam, at law or in equity) obligations, judgments, interest, costs, expenses, and awards whether created by law, contract, tort, arbitration, voluntary settlement (to the extent authorized by the Indemnitor), or otherwise, and shall, except as otherwise expressly provided, include claims based on contractual indemnity. 2.05 "Company" shall refer to BP Exploration & Production Inc .. 2.06 "Company Group" shall mean the following Persons individually and collectively: Company and its Affiliates, its and their co-venturers, co-owners, co-lessees, co-working interest owners, joint venturers, partners, and all of their Affiliates, and the officers, directors, shareholders, employees, agents and representatives of all those entities. Company Group does not include any Person who is a member of Contractor Group. 2.08 "Connected With" shall have the meaning set out in Section 16.0 I. 2.09 11Contract11 shall have the meaning set out in Article 1 hereo£ 2.10 "Contractor" shall refer to the Party designated in the preamble to this Contract. 2.11 11Contractor Group" shall mean the following Persons individually and collectively: Contractor and its Affiliates, its subcontractors and their Affiliates, and the officers, directors, shareholders, employees, agents and representatives of all of those entities. Contractor Group does not include any Person who is a member of Company Group. 2.12 "Contractor's Property" shall mean all materials, supplies, equipment, or other property, real or persona~ that is owned, leased, rented, chartered, or opera~ed by Contractor Group in connection with the perfonnance of the Contract. 2.13 "Creative Material(s)" shall have the meaning set forth in Section 24.04. -2- Rev S approved by FC6-l-08 Contract No. BP0-10-04823 DEF 0632 Case 2:15-cv-04148-JTM-JVM Document 37-5 Filed 11/29/16 Page 7 of 21 2.14 "Day or Days11 shalJ mean calendar day or days. 2.15 "Default" shall have the meaning set forth in Article 20. 2.16 "Defend" or "Defense" shall have the meaning set forth in Section 16.0 I. 2.17 "Developed lnfonnation" shall have the meaning set forth in Section 24.02. 2.18 ''Effective Date" shall refer to the date set forth in the preamble of this Contract. 2.19 "Existing PrQperty11 shall include all machinery, structures, equipment, risers, pipelines, wells, manifolds, wellheads and other tangible property owned by Company Group that is located at, on or adjacent to the Work Site{s), (including without limitation all property of Company Group identified in Exhibit "A"). The tenn "Existing Property' shall not be deemed or interpreted to include any of Contractor's Property. 2.20 "Extra Work" shall refer to additional Work that Company may request Contractor to perfonn under the a Change Order as described in Article S. Extra Work shall include any additional Work that may be performed by Contractor to repair physical damage to the Work Product or Items, or to replace the Work Product or Items that have been lost or have become a total or constructive total loss as a result of physical damage in accordance with Article 16. 2.21 "Final Acceptance" shall have the meaning set forth in Section 11.06. 2.22 "Force Maieure11 shall mean any event beyond the reasonable control of the Party claiming to be affected thereby including without limitation acts of God, storms named by the National Weather Service, war, fire, flood, nation or industry wide strikes, acts of the public enemy, terrorism, insurrections, riots, or rules or regulations of any governmental authority asserting jurisdiction or control, compliance with which makes continuance of the Work impossible. Notwithstanding the foregoing, Force Majeure shall not include events contributed to by the Negligence/Fault or gross negligence or willful misconduct on the part of the Party claiming Force Majeure nor shall Force Majeure include effects that could have been avoided or mitigated by the exercise of reasonable care on the part of the Party claiming Force Majeure. Inability of either Party to secure funds shall not be regarded as Force Majeure. 2.23 "Indemnify" or "Indemnification" shall have the meaning set forth in Section 16.01 2.24 "Indemnitee" shall have the meaning set forth in Section 16.0 I. 2.25 "lndemnitor' shall have the meaning set forth in Section 16.01. 2.26 "Items" shall mean all tangible property, including without limitation materials, equipment, supplies, or machinery, provided by Company or Contractor under the tenns hereof and intended for incorporation into the Work Product 2.27 "Negligence/Fault" shall have the meaning set out in Section 16.01. 2.28 "PartY" or "Parties" shall have the meaning set out in the preamble to this Contract. 2.29 "Person" or "Persons" shall include any natural person(s) as well as any legal entity, including without limitation either Party or any member of Company Group or Contractor Group. 2.30 "Provisional Acceptance" shall have the meaning set forth in Article 10. 2.31 "Required Commencement Date" shall have the meaning set fortb in Exhibit II A." 2.32 The tenn "subcontractor" or "subcontractors" when used in connection with Contractor shall include any subcontractor, including vendors, of any tier hired by Contractor to perform any services or furnish any -3- Rev S approved by FC 6· 1.08 Contract No. BP0-10-04823 C .. >- ~ DEF 0633 Case 2:15-cv-04148-JTM-JVM Document 37-5 Filed 11/29/16 Page 8 of 21 materials or equipment at, on or adjacent to, or in transit to or from, the Work Site, provided such services or materials or equipment are part of the Work to be performed by Contractoc 2.33 "Taxes" shall mean all applicable taxes, including all (federal, state, and local) ad valorem, income or net worth, property, occupation, payroll, employment, first use, gross receipts, privilege, sales, use, consumption, excise, and other governmental charges, duties, tariffs, levies, licenses, fees, permits and assessments. 2.34 "Tenn" shall have the meaning set forth in Article 4. 2.35 11Third Party or Third Parties" shall mean any Persons not included in Company Group or Contractor Group. 2.36 "Work" shall mean the design, construction, installation, and other services to be performed, and Items to be procured, fabricated, constructed, completed, and warranted by Contractor, if any, pursuant to this Contract, as more particularly described in Exhibit "A." 2.37 "Work Product>>. Please call or e-mail reporters@psrdocs.com if you need a Username and Password. Professional Shorthand Reporters, Inc. Phone:504-529-5255 Fax:504-529-5257 Email:reporters@psrdocs.com Internet: http://www.psrdocs.com EXHIBIT 3 Case 2:15-cv-04148-JTM-JVM Document 37-6 Filed 11/29/16 Page 1 of 14 Michealin A. Sylve, Sr. Michealin Sylve v. Subsea 7 (US), et al Offices in New Orleans and Baton Rouge www.psrdocs.com Professional Shorthand Reporters, Inc. 1-800-536-5255 Page 210 1 A. Oh, it is? Okay. 2 Q. I mean BP's not telling you what to do 3 when you're getting your equipment ready. You're 4 getting your own equipment ready; right? 5 A. BP is telling us what equipment we need 6 in order to do a specific task. 7 Q. Yeah. Okay. 8 And then the details of how to put it 9 together, that's what you're an expert at? 10 A. Well, that's what BP -- Well, if it's a 11 BP tool, they're going to have all the literature 12 with it, diagrams and stuff like that. So ... 13 Q. But there's not BP man standing there 14 telling you, "Okay." 15 A. "We need this." 16 Q. "Let's get a screwdriver here, and let's 17 get this" -- 18 A. No. 19 Q. That's not the way the system works. 20 You guys -- Subsea 7, you're the ROV 21 experts; right? 22 A. I would like to think so. 23 Q. All right. 24 So you know how to put these tools 25 together. You know how to maintain your ROVs; Case 2:15-cv-04148-JTM-JVM Document 37-6 Filed 11/29/16 Page 2 of 14 Michealin A. Sylve, Sr. Michealin Sylve v. Subsea 7 (US), et al Offices in New Orleans and Baton Rouge www.psrdocs.com Professional Shorthand Reporters, Inc. 1-800-536-5255 Page 235 1 And based on your seeing the log, seeing 2 the records, what they would have said that the 3 deck crew was going to be doing was mobilizing and 4 getting cargo on board and securing it for transit 5 because the vessel's leaving at 2:00 a.m. the next 6 day? 7 A. No. 8 Q. No, you don't agree with that? 9 A. Only thing they would have discussed in 10 the pre-tour meeting was that, "We're going to be 11 mobilizing the vehicle" -- I mean "the vessel to 12 leave." That's it. 13 Q. Okay. 14 Well, what does that mean, "mobilizing"? 15 A. Getting it ready to leave. 16 Q. And that means getting everything on 17 board from the dock? 18 A. Securing it, doing whatever they have to 19 do. 20 Q. And getting it on board with the crane? 21 A. Mobilizing -- Yeah, getting it ready to 22 leave. 23 Q. You understand that -- 24 A. Okay. 25 Q. -- that the deck crew -- The deck crew's Case 2:15-cv-04148-JTM-JVM Document 37-6 Filed 11/29/16 Page 3 of 14 Michealin A. Sylve, Sr. Michealin Sylve v. Subsea 7 (US), et al Offices in New Orleans and Baton Rouge www.psrdocs.com Professional Shorthand Reporters, Inc. 1-800-536-5255 Page 250 1 But you didn't have everything on there 2 that you needed in the ROV area; did you? You 3 still had some stuff to be loaded on? 4 A. I think we had the majority of the stuff 5 that we needed. 6 Q. Well, did you have it all? 7 A. I mean I'm not sure. 8 Q. So tell me what happened on September 9 the 7th when you hit your head. 10 A. Where do you want me to start? 11 Q. Wherever you want. 12 A. We was integrating some HD cameras. And 13 I went down to the supply room on the deck to get 14 some HD camera cables. And when I came out, 15 stepped out of the -- out of the storage room and 16 got one step out, Chris yelled, whistled, and 17 pointed up. And when he pointed, I looked up, and 18 I turned around, and I just -- I was going back in 19 in haste, and when I stepped in, (witness claps 20 hand), I jammed my head on the -- on the door sill. 21 And then I sit on the door sill. Tommie 22 asked, he said, "Are you all right?" And Chris 23 said, "Man, good thing you had a hard hat on. I 24 heard" -- You know, "I heard it way up here. He 25 was on the mezzanine deck. And once the load Case 2:15-cv-04148-JTM-JVM Document 37-6 Filed 11/29/16 Page 4 of 14 Michealin A. Sylve, Sr. Michealin Sylve v. Subsea 7 (US), et al Offices in New Orleans and Baton Rouge www.psrdocs.com Professional Shorthand Reporters, Inc. 1-800-536-5255 Page 254 1 Q. Okay. 2 I've got some pictures. We'll look at 3 some pictures in a second. 4 But there's more than one way to get 5 down there? 6 A. You could have went -- The fastest way 7 for us -- for me to do it is the stairs is right 8 there. My ROV's right here. (Indicating) If you 9 look at the pictures where the ROVs that goes down 10 in the middle, they got stairs that goes down 11 there. So I went down that way. 12 Q. All right. Well, let's take a look. 13 Let me show you first. Okay. This is a 14 witness statement from Chris Callison. It's DEF 15 87. And let's see if there's anything about this 16 witness statement that you disagree with. 17 Okay. There you go. (Indicating) 18 Let me just read it. I'll read it into 19 the record. Okay? This is Subsea 7 WITNESS 20 STATEMENT FORM, Exhibit 12, from Chris Callison. 21 And it reads: "I state that during mobilization 22 activities on the Siem" -- S-i-e-m, Siem -- 23 "Stingray, the incident in question happened during 24 a lift of equipment from the dock onto the vessel. 25 The path of the lift ran over top of the ROV stores Case 2:15-cv-04148-JTM-JVM Document 37-6 Filed 11/29/16 Page 5 of 14 Michealin A. Sylve, Sr. Michealin Sylve v. Subsea 7 (US), et al Offices in New Orleans and Baton Rouge www.psrdocs.com Professional Shorthand Reporters, Inc. 1-800-536-5255 Page 255 1 room" -- ROV's all caps -- "which I was unaware 2 someone had entered while the crane was being 3 hooked up. Prior to landing the lift, the ROV 4 Supervisor Mike Sylve started to come out of the 5 stores room, and was starting to walk out under the 6 load. I immediately instructed him to remain in 7 the stores room until the lift was completed. He 8 turned around quickly and bumped his head on the 9 top of the door sill as he was going back into the 10 stores room. He was wearing his hard hat at the 11 time, and after the lift was completed he exited 12 the stores room. I did ask him if he was alright 13 and he told me yes, and carried on." 14 All right. Is that -- Do you have any 15 disagreement with what Chris has written here? 16 A. No. 17 Q. It's an accurate reflection of what 18 happened? 19 A. No. He didn't ask me if I was okay. 20 Q. At some point after you hit your head 21 and you exited the store room, did he ask you if 22 you were okay? 23 A. No. 24 Q. Okay. All right. 25 That's the last sentence in the Case 2:15-cv-04148-JTM-JVM Document 37-6 Filed 11/29/16 Page 6 of 14 Michealin A. Sylve, Sr. Michealin Sylve v. Subsea 7 (US), et al Offices in New Orleans and Baton Rouge www.psrdocs.com Professional Shorthand Reporters, Inc. 1-800-536-5255 Page 256 1 statement; right? 2 A. Yes. 3 Q. Okay. Let's put that one aside. 4 Everything else looks accurate? 5 A. Yes. 6 Q. Now, your lawyers produced to me three 7 photographs. 8 A. Okay. 9 Can I take a pee break before we get 10 started? 11 Q. Absolutely. Absolutely. 12 (Whereupon a brief recess was taken 13 at this time.) 14 MR. LEEFE: 15 Okay. Back on the record. 16 EXAMINATION BY MR. LEEFE: 17 Q. All right. 18 So your lawyers have produced three 19 photographs to me, and here they are. I'll just 20 produce them -- I mean I'll attach them together as 21 Exhibit 13. And actually, they're Bates-numbered 22 Sylve 0196, 0197, and 0198. 23 There you go. (Indicating) 24 Do you know who took these pictures? 25 A. (Witness examines photographs.) Case 2:15-cv-04148-JTM-JVM Document 37-6 Filed 11/29/16 Page 7 of 14 Michealin A. Sylve, Sr. Michealin Sylve v. Subsea 7 (US), et al Offices in New Orleans and Baton Rouge www.psrdocs.com Professional Shorthand Reporters, Inc. 1-800-536-5255 Page 289 1 Q. Did you bother, when you came along -- 2 When you came out on the back deck I know you 3 didn't look up overhead to see if there was 4 anything going on, but did you glance over at the 5 crane to see whether the crane was in use? 6 A. No. 7 Q. Okay. 8 So now we've established that when you 9 came out on the back deck, you looked straight 10 ahead and saw the two riggers in the back, you did 11 not look up, and you did not look at the crane. 12 All that's established; right? You agree? 13 A. Yes. 14 Q. All right. 15 And you also did not notify Chris 16 Callison, who was right there above you, that you 17 were going to the store room; true? 18 MR. CVITANOVIC: 19 Object to the form. 20 THE WITNESS: 21 I didn't have to notify Chris 22 Callison. 23 EXAMINATION BY MR. LEEFE: 24 Q. Did you notify Chris Callison when you 25 came out on to the back deck that you were going to Case 2:15-cv-04148-JTM-JVM Document 37-6 Filed 11/29/16 Page 8 of 14 Michealin A. Sylve, Sr. Michealin Sylve v. Subsea 7 (US), et al Offices in New Orleans and Baton Rouge www.psrdocs.com Professional Shorthand Reporters, Inc. 1-800-536-5255 Page 290 1 the store room? 2 A. No. 3 Q. All right. 4 And Chris Callison, as you walked to the 5 back deck, was standing right up there; right? 6 A. Yes. 7 Q. You knew he was up there? 8 A. When I came back out and he yelled at 9 me, yes. 10 Q. When you walked out there, did you know 11 where Chris was? 12 A. No. 13 Q. Okay. 14 Did you look up to see whether there was 15 anything going on in this upper level right here? 16 (Indicating) 17 A. No. 18 Q. If they were going to be -- If they had 19 been moving with the crane when you walked out, if 20 they were moving something to the ROV hangar, is 21 that something you should have known about? 22 A. Yes, either me or Aaron Poage. 23 Q. Okay. 24 Now, isn't it something that you've been 25 trained to do, is when you come out of a room that Case 2:15-cv-04148-JTM-JVM Document 37-6 Filed 11/29/16 Page 9 of 14 Michealin A. Sylve, Sr. Michealin Sylve v. Subsea 7 (US), et al Offices in New Orleans and Baton Rouge www.psrdocs.com Professional Shorthand Reporters, Inc. 1-800-536-5255 Page 304 1 Q. If you had only ducked your head under 2 the doorway -- 3 A. Like I did when I walked in there. 4 Q. If you had only -- Yes. Yes. 5 If you had only ducked your head under 6 the doorway as you went in that watertight door, 7 you would not have bumped your head and you would 8 not have hurt your neck; true? 9 A. True. 10 Q. All right. Thank you. 11 A. Now, can I say something? 12 Q. You can. 13 A. All right. 14 The reason why I hit my head is because 15 when he yelled and pointed up and I looked and the 16 load was coming over my head, my past experience 17 have taught that you got to get away; get 18 completely away from the load. So, matter of fact, 19 I didn't -- I stepped over that -- that little step 20 and stepped on that and stepped up, and I jarred my 21 head. 22 Q. All right. 23 When you came out of the store room, did 24 you -- You looked up? 25 A. When he yelled and pointed, yeah. Case 2:15-cv-04148-JTM-JVM Document 37-6 Filed 11/29/16 Page 10 of 14 Michealin A. Sylve, Sr. Michealin Sylve v. Subsea 7 (US), et al Offices in New Orleans and Baton Rouge www.psrdocs.com Professional Shorthand Reporters, Inc. 1-800-536-5255 Page 305 1 Q. You did look up? 2 A. Yeah. 3 Q. Did you see a load? 4 A. Yes. It was a tote tank. 5 Q. And you were only in the store room for 6 three minutes? 7 A. Three to four, somewhere in that area. 8 Q. Okay. 9 So it's your testimony that in three to 10 four minutes they were able to get that crane 11 moving, get over to the dock, rig up to a load, 12 pick up the load, and get it to where it was over 13 that store room exit? That's your testimony? 14 A. That's not my testimony. 15 Q. Because that wouldn't happen; would it? 16 That's not realistic; is it? 17 A. I don't know if the crane was already -- 18 I don't know if they was loading the crane on the 19 dock side. 20 Q. Isn't that something you should have 21 looked at when you came out on to the deck to see 22 whether the crane was over there picking up a load? 23 A. No. No, sir, because they didn't have 24 the caution tape up blocking all the areas. Had 25 they would have had the -- Had they would have had Case 2:15-cv-04148-JTM-JVM Document 37-6 Filed 11/29/16 Page 11 of 14 Michealin A. Sylve, Sr. Michealin Sylve v. Subsea 7 (US), et al Offices in New Orleans and Baton Rouge www.psrdocs.com Professional Shorthand Reporters, Inc. 1-800-536-5255 Page 349 1 back or get a new one out there. 2 Q. All right. 3 And he helps identify hazards and 4 discusses hazards and things like that? 5 A. Yes. That's -- 6 Q. Okay. 7 But once the meeting is over, you know, 8 it's -- Subsea 7 goes out and does its work. You 9 do your ROV work; right? 10 A. Yes. 11 Q. Okay. 12 And then it's up to you to do your work 13 safely? 14 A. Yes. 15 Q. And the same is true for the deck 16 department. You know they have tool box talks. 17 You know that? 18 A. Okay. Yeah. 19 Q. And you know -- 20 A. So? 21 Q. -- that when their tool box talks are 22 over, it's up to them to go do their work safely? 23 A. Yes. 24 Q. That's their obligation. Okay. 25 It's the Subsea 7 deck crew's obligation Case 2:15-cv-04148-JTM-JVM Document 37-6 Filed 11/29/16 Page 12 of 14 Michealin A. Sylve, Sr. Michealin Sylve v. Subsea 7 (US), et al Offices in New Orleans and Baton Rouge www.psrdocs.com Professional Shorthand Reporters, Inc. 1-800-536-5255 Page 350 1 to go do their work safely; right? 2 A. Yes. 3 Q. Who do you take your orders from? Who 4 did you take your orders from on the STINGRAY? 5 A. My general -- I mean direct orders? 6 Q. Yeah. 7 A. Aaron and the shift supervisor. 8 Q. Okay. David Park? 9 A. Yes. 10 Q. Aaron and David Park are both Subsea 7 11 employees? 12 A. Yes. 13 Q. And the tools you need to do your work 14 and the equipment you need, those are provided by 15 Subsea 7? 16 A. What -- Well, we have Subsea tools and 17 just general tools. 18 What tools are you talk -- referring to? 19 Q. Well, the ROV tools that you need to do 20 your work, those are provided by Subsea 7? 21 A. I want to make sure I give you the 22 proper answer. 23 Is it -- When you say "ROV tools," you 24 mean like to do the maintenance on the sub or to do 25 the work with the ROV? Case 2:15-cv-04148-JTM-JVM Document 37-6 Filed 11/29/16 Page 13 of 14 Michealin A. Sylve, Sr. Michealin Sylve v. Subsea 7 (US), et al Offices in New Orleans and Baton Rouge www.psrdocs.com Professional Shorthand Reporters, Inc. 1-800-536-5255 Page 352 1 manipulating underwater, they might be owned by 2 some other party. 3 A. Yes. 4 Q. Yeah. 5 Who was it that decided that you should 6 go to the store room? 7 A. It was me. 8 Q. Okay. 9 Did somebody order you to go to the 10 store room? 11 A. No. We needed some cables for the 12 cameras. 13 Q. Okay. 14 So no one from BP told you to go to the 15 store room? 16 A. No. 17 Q. All right. 18 No one from Siem Offshore told you to go 19 to the store room? 20 A. No. BP needed the cameras installed on 21 the system. They wanted the HD cameras on there, 22 so ... 23 Q. Yeah. 24 A. And we had the cameras on. We needed 25 the cables to match the pin out. Case 2:15-cv-04148-JTM-JVM Document 37-6 Filed 11/29/16 Page 14 of 14 Transcript of the Testimony of Videotaped Deposition of Evan Michael Douglas McCarthy Date taken: July 12, 2016 Michealin Sylve v. Subsea 7 (US), et al All electronic deposition & exhibit files are available at <<>>. Please call or e-mail reporters@psrdocs.com if you need a Username and Password. Professional Shorthand Reporters, Inc. Phone:504-529-5255 Fax:504-529-5257 Email:reporters@psrdocs.com Internet: http://www.psrdocs.com EXHIBIT 4 Case 2:15-cv-04148-JTM-JVM Document 37-7 Filed 11/29/16 Page 1 of 3 Videotaped Deposition of Evan Michael Douglas McCarthy Michealin Sylve v. Subsea 7 (US), et al Offices in New Orleans and Baton Rouge www.psrdocs.com Professional Shorthand Reporters, Inc. 1-800-536-5255 Page 45 1 was the idea to deploy your ROVs and do work 2 subsea? 3 A. Yes. 4 Q. Did that, in fact, happen? 5 A. Yes, that did. 6 Q. Do you recall the date that the STINGRAY 7 left Core base in Mobile to go offshore to go to 8 work? 9 A. I believe it was September 8th, 2014. 10 Q. And the incident that we're talking 11 about involving Mr. Sylve, do you remember the date 12 that took place? 13 A. The evening beforehand, yes. 14 Q. September 7th? 15 A. September 7th, yes. 16 Q. So -- So given -- Given that the vessel 17 was about to leave the dock on September the 8th, 18 what -- what sort of activities were taking place 19 on board the STINGRAY on September 7, 2014? 20 A. September 7, we'd be completing our 21 mob., taking on our all our final supplies and 22 equipment that we needed, and making the vessel 23 ready for sail. 24 Q. What do you mean by "mob."? 25 A. Mobilization. It's basically Case 2:15-cv-04148-JTM-JVM Document 37-7 Filed 11/29/16 Page 2 of 3 Videotaped Deposition of Evan Michael Douglas McCarthy Michealin Sylve v. Subsea 7 (US), et al Offices in New Orleans and Baton Rouge www.psrdocs.com Professional Shorthand Reporters, Inc. 1-800-536-5255 Page 46 1 interfacing all the equipment, making sure we have 2 all the equipment that we need, preparing the ROVs 3 and the crane to do the work scope ahead. 4 Q. So before you leave on September 7 5 and -- and earlier when you're at the dock, as 6 between Subsea 7 and BP, which company was in 7 control of the back deck? 8 A. Subsea 7. 9 Q. All right. 10 And how do you -- How do you know that? 11 Is there a document that -- that you can resort to 12 to know that? 13 A. It's denoted in the bridging document 14 between BP and Subsea 7, and -- 15 Q. Okay. I'm sorry. 16 Bridging? 17 A. Yes. 18 Q. Let me show you -- And I'm going to 19 label this as Exhibit 6. 20 This document, tell me -- Tell me what 21 that is -- 22 A. Thank you. 23 Q. -- if you know. 24 A. I'm sorry. 25 This is the bridging document between Case 2:15-cv-04148-JTM-JVM Document 37-7 Filed 11/29/16 Page 3 of 3 Page 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA MICHEALIN SYLVE ) ) CIVIL ACTION NO. 2:15-CV-4148 vs. ) SECTION "H" ) MAG. DIV. 1 SUBSEA 7 (US) LLC, OCSY ) SIEM STINGRAY IN REM, SIEM) OFFSHORE REDERI AS, AND BP) HONORABLE JANE TRICHE MILAZZO EXPLORATION & PRODUCTION, ) MAGISTRATE SALLY SHUSHAN INC. ) ORAL DEPOSITION CHRIS CALLISON June 29, 2016 ORAL DEPOSITION OF CHRIS CALLISON, produced as a witness at the instance of the Plaintiff and duly sworn, was taken in the above-styled and numbered cause on the 29th day of June, 2016, from 9:32 a.m. to 1:46 p.m., before Teresa Saucier, Certified Shorthand Reporter in and for the State of Texas, reported by computerized stenotype machine at the Homewood Suites, 14450 Park Row Boulevard, Houston, Harris County, Texas, pursuant to Notice and the Federal Rules of Civil Procedure. EXHIBIT 5 Case 2:15-cv-04148-JTM-JVM Document 37-8 Filed 11/29/16 Page 1 of 4 Page 7 1 Q. Okay. Did you always work with the same crew 2 of riggers? 3 A. No, sir. It was different. 4 Q. Okay. 5 A. For the most part, yes, but there were, you 6 know, new people that you work with. 7 Q. When you went to the STINGRAY, who were the 8 riggers that were working under you? 9 A. I had Tommie Allen, Cardy Bennett, Hector 10 Guillen, Wilmer Miles and then we would have Compass 11 personnel. Do you want them too or do you want just 12 Subsea 7 employees? 13 Q. If they were riggers working under you. 14 MR. LEEFE: Is there a time? 15 Q. When you started working on the STINGRAY. So, 16 this would be back in August of 2014. 17 A. Yeah. 2014, yes. Who do I have so far? 18 Q. You've got Tommie, Cardy, Hector and Wilmer. 19 A. And -- 20 Q. It's not a memory test. If you can't remember, 21 that's fine. 22 A. It was from Compass personnel, but they get 23 switched out a lot, so.... 24 Q. Okay. Are all of these riggers still employed 25 by Subsea 7? Case 2:15-cv-04148-JTM-JVM Document 37-8 Filed 11/29/16 Page 2 of 4 Page 18 1 they're going to be doing, redoing the job, scope as 2 per, you know, like BP, you know, policies and what 3 they're going to be doing. 4 Q. Would they still be loading equipment at this 5 time? 6 A. At this time, we would be loading equipment for 7 them. They don't load equipment. 8 Q. What about hand portable equipment, things like 9 that? 10 A. No. Everything is loaded by us. 11 Q. Okay. So, if something weighs 20, 30 pounds, 12 they wouldn't just walk it up the gangway? 13 A. Oh, no. We would. 14 Q. You would walk it up the gangway for them? 15 A. Yes. We would have to walk it for them. 16 Q. Why is that? 17 A. It's kind of just our -- I mean, it's kind of 18 how we control our deck, you know, that we bring, you 19 know. They're not allowed to actually lift things up. 20 We lift it up for them. Usually if they have a lot of 21 equipment that needs to be loaded onto the boat, we 22 bring a crane. 23 Q. What about any other third party contractors 24 that may be involved in the mobilization? Are they 25 coming on the boat or their technicians coming on the Case 2:15-cv-04148-JTM-JVM Document 37-8 Filed 11/29/16 Page 3 of 4 Page 27 1 Q. Okay. You said in your statement prior to 2 landing the lift, the ROV supervisor, Mike Sylve, 3 started to come out of the storage room and was starting 4 to walk out under the load. Is that an accurate 5 statement? 6 A. Yes, sir. 7 Q. Okay. Was the load directly over? 8 A. No, sir. He started to walk out underneath the 9 load. So, it wasn't completely there yet. 10 Q. Okay. From the position that -- you say it 11 wasn't completely there yet. It was still coming 12 inboard from the key side? 13 A. Yes, sir. 14 Q. Okay. From the position where Mike was 15 standing, when you first saw him start to come out of 16 the storage room, would he have been able to see the 17 load swinging at that point? 18 A. Swinging over, no, he wouldn't have. 19 Q. Okay. At the point in time when Mike stopped 20 his forward progress because he was walking out of the 21 storage room, correct? 22 A. Yes, sir. 23 Q. At the point in time when he stopped his 24 forward progress out of the storage room, from that 25 position, would he have been able to look up and see the Case 2:15-cv-04148-JTM-JVM Document 37-8 Filed 11/29/16 Page 4 of 4