In a unanimous en banc opinion authored by Judge Davis, the Fifth Circuit examined its prior jurisprudence surrounding determination of whether a contract is maritime or non-maritime in nature, and adopted a new and streamlined test grounded in the United States Supreme Court opinion in Norfolk Southern Railway Co. v. Kirby.
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Home Perspectives Important Consequences: New Fifth Circuit Test For Determining Nature of Offshore Contracts
The Fifth Circuit standard for determining whether a contract is maritime in nature has often been criticized by practitioners and members of the court for its complexity. In a January 8, 2018, en banc decision, the court lessened that complexity, announcing a new two-part test to determine the nature of such contracts. The new test carries important implications because if the contract is determined to be non-maritime in nature, state law rather than maritime law will likely apply, carrying with it the possibility of negating indemnity obligations between the parties under state anti-indemnity acts.
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