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Tuesday, 11 March 14
HOLD HARMLESS CLAUSES ARE NOT ALWAYS MUTUAL! - ITIC
 KNOWLEDGE TO ELEVATE
ITIC provides an insurance related contract review service to all of its members. As the leading professional indemnity insurer for the offshore and hydrographic sector, we are often asked to review contracts which contain a mutual hold harmless or knock for knock clause. We are usually told that the presence of this clause in a contract means the risk of a claim is either significantly reduced or even non-existent! No contract is completely risk free. However, if the clause is worded carefully, and is balanced between both contracting parties, it is good contractual risk management and can help to reduce the chance of a successful claim of negligence against you.
A mutual hold harmless indemnity regime provides that each party to the contract agrees to take responsibility for, and to indemnify the other, against injury and loss to its own personnel and property and its own ‘consequential losses’. This is intended to be effective even if the accident and related losses are caused by negligence.
The mutual hold harmless clause in the LOGIC standard form contracts, does seek to create balance. However, in many of the contracts we review, the party with the greater bargaining power will naturally seek to swing the balance back to their favour. Consequently, there are a number of pitfalls to consider. We shall provide a few of these below. This shall be viewed from an English law and a professional indemnity insurance perspective.
Insurance
First, when asked to review contracts with a mutual hold harmless clause, ITIC would suggest that your other insurers are notified. Potentially you are signing away the recovery rights of both your property and employers’ liability insurer. Therefore, you should seek authority from them before signing a contract containing a mutual hold harmless clause.
They may not be mutual
It is staggering how often we see contracts where “the consultant shall indemnify the company against any and all losses,” but there is no reciprocal benefit to the consultant. Furthermore, the clause can be more beneficial to one party, as one side may be carrying out all of the work, using only their employees and property. The clause should be read carefully to ensure there is a mutual provision.
Third party damage
The mutual hold harmless clauses seen by ITIC, although setting out the losses suffered to the property or employees of the contracting parties, will often leave the distribution of third party liabilities unclear. If, for example, you act as a hydrographic consultant on a survey vessel, you should be protected from third party claims arising from the operation of the vessel. The consultant should not be responsible for potentially multi-million dollar pollution liabilities, or collision damages to third party property. These should fall upon the party who has insurance for these liabilities, such as the vessel’s protection and indemnity or hull and machinery cover.
Gross Negligence
The hold harmless regime provides that neither party shall be liable to the other even where the loss occurred is due to the negligence of one party. However, in some cases we see the clause is amended to state this does not apply in instances of “gross” negligence. Therefore, if one of the parties is found to be grossly negligent they will not be held harmless. This might be fine if the contract was pursuant to Norwegian or US law.
Unfortunately, there is no true concept of gross negligence under English law. You should always operate under the assumption that you are negligent or you are not. Baron Rolfe, in - Wilson v Brett (1843) - stated that he “could see no difference between negligence and gross negligence; that it was the same thing, with the addition of a vituperative epithet.” In other words “gross” did not add anything to the standard negligence test. That being said, if gross negligence is included in a contract, a tribunal will attempt to interpret it. The leading decision comes from Lord Mance in - The Hellespont Ardent (1997) – in which he found that gross negligence: is “conduct so seriously negligent that the defendant should not be entitled to rely on the exemption clause.” He further added that it is “very much a matter of degree and judgment,” and, “all the circumstances must be weighed and balanced.” It should be pointed out that Lord Mance was interpreting a contract pursuant to New York law. Therefore, his words are not binding, and his interpretation on gross negligence may not be followed by subsequent tribunals.
The line between negligence and gross negligence can become blurred, and cases will turn on the facts and expert evidence. Moreover, tribunals may have differing opinions on how to apply the test against the facts, reaching differing decisions. On balance, the inclusion of gross negligence within a hold harmless clause in a contract pursuant to English law can lead to uncertainty and increased litigation costs.
Finally, it is understandable that contracting parties do not want the other to rely on a hold harmless clause, as a shield for reprehensible behaviour, beyond the ordinary test of negligence. However, as the line is blurred between that of negligence and gross negligence, a more delineated position to take, is between that of wilful default/misconduct and negligence.
Indirect damages
A further and final point we see, is how consequential or indirect losses are defined in the mutual hold harmless clause. It is usual that these losses are excluded under contract. However, the distinction between indirect and direct loss can be complicated. The famous case of Hadley v Baxendale [1854] found that direct losses were those which arise naturally from the breach of contract, and is therefore foreseeable and recoverable. Whereas, indirect losses were recoverable, but only if they were reasonably foreseeable by both parties, as a possible result of a breach, at the time of contracting.
A common misconception is that all “loss of profits” are indirect losses. This is wrong. Loss of profits can be either direct or indirect, depending on the facts of the case. The following is taken from the hold harmless clause of a contract we have reviewed recently:
“ The consultant nor the company shall be liable to the other… for any consequential indirect damage, that may be suffered by the other.”
This clause could pose problems in the event of a claim, as it only excludes “consequential indirect damages.” Following Hadley v Baxendale, dependant on the facts, loss of profit can either be a direct or indirect result of the breach. If, for example, a consultant was providing design work for sub-sea equipment and carried out the design negligently, not only could this cause damage to property, but also lost drilling time, leading to lost revenue and profit. In this example, a tribunal could find the loss of profit arose naturally from the breach, and therefore, is a direct loss not excluded under the above hold harmless clause. Taking into account the current day rates of drill rigs, this could form a substantial part of any claim.
The clause should be amended to state loss of profits are excluded, whether direct or indirect.
Conclusion
ITIC’s advice is that you carefully review your hold harmless clauses to ensure that they are actually mutual and of benefit to you.
Source: ITIC / Hellenic Shipping
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Thursday, 26 June 14
COAL DIVESTMENT CAMPAIGNS COME WITH RISKY UNINTENDED CONSEQUENCES - WCA
Last week I presented to the Expert Group on investments in coal and petroleum companies, the body set up to advise the Norwegian Government on whe ...
Wednesday, 25 June 14
INDONESIAN COAL EXPORTS ON RISE; EARNINGS FALL ON LOWER SELLING PRICES
COALspot.com: Indonesia, one of the world's largest coal producer and the global largest multi grade coal exporter shipped around $1.84* ...
Wednesday, 25 June 14
THE PANAMAX MARKET REACHED FRESH LOWS FOR THE YEAR, SAYS INTERMODAL
COALspot.com: The Dry Bulk market closed off the week noting a slight decrease, but this image of stability is merely representative of freight rat ...
Wednesday, 25 June 14
SHIPPING: MARKET INSIGHT - YANNIS OLZIERSKY
During his recent visit in London, China's Premier, Li Keqiang, announced that China's economy, the world's second largest after the US ...
Tuesday, 24 June 14
INDONESIAN COAL MINER TARGETS RP 313 BILLION IPO
COALspot.com: Indonesian coal miner PT Mitrabara Adiperdana is aiming to raise up to Rp 313 billion to Rp 368 billion (approximately $26.133 millio ...
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- Intertek Mineral Services - Indonesia
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- Energy Development Corp, Philippines
- Mercator Lines Limited - India
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- Carbofer General Trading SA - India
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- Bukit Asam (Persero) Tbk - Indonesia
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- The State Trading Corporation of India Ltd
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- Sojitz Corporation - Japan
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- Marubeni Corporation - India
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- Romanian Commodities Exchange
- Coal and Oil Company - UAE
- Price Waterhouse Coopers - Russia
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- Banpu Public Company Limited - Thailand
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- IEA Clean Coal Centre - UK
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- GAC Shipping (India) Pvt Ltd
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- Indonesian Coal Mining Association
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- Indian Oil Corporation Limited
- Eastern Coal Council - USA
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- Eastern Energy - Thailand
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- Asmin Koalindo Tuhup - Indonesia
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- McConnell Dowell - Australia
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- Tata Chemicals Ltd - India
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- Central Electricity Authority - India
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- Indogreen Group - Indonesia
- TNB Fuel Sdn Bhd - Malaysia
- Parry Sugars Refinery, India
- Tamil Nadu electricity Board
- Indian Energy Exchange, India
- IHS Mccloskey Coal Group - USA
- New Zealand Coal & Carbon
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Gujarat Electricity Regulatory Commission - India
- Ministry of Finance - Indonesia
- Vizag Seaport Private Limited - India
- Maharashtra Electricity Regulatory Commission - India
- Global Coal Blending Company Limited - Australia
- GVK Power & Infra Limited - India
- Dalmia Cement Bharat India
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- London Commodity Brokers - England
- Simpson Spence & Young - Indonesia
- Wood Mackenzie - Singapore
- CNBM International Corporation - China
- Therma Luzon, Inc, Philippines
- Aditya Birla Group - India
- Australian Coal Association
- Semirara Mining and Power Corporation, Philippines
- PTC India Limited - India
- Bangladesh Power Developement Board
- Edison Trading Spa - Italy
- Semirara Mining Corp, Philippines
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- Ministry of Transport, Egypt
- GMR Energy Limited - India
- White Energy Company Limited
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- Metalloyd Limited - United Kingdom
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- Rashtriya Ispat Nigam Limited - India
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Toyota Tsusho Corporation, Japan
- Goldman Sachs - Singapore
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- San Jose City I Power Corp, Philippines
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- Kaltim Prima Coal - Indonesia
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- Planning Commission, India
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- Anglo American - United Kingdom
- PowerSource Philippines DevCo
- Thai Mozambique Logistica
- Straits Asia Resources Limited - Singapore
- Alfred C Toepfer International GmbH - Germany
- Xindia Steels Limited - India
- Directorate Of Revenue Intelligence - India
- Port Waratah Coal Services - Australia
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- Sakthi Sugars Limited - India
- Minerals Council of Australia
- Vedanta Resources Plc - India
- Energy Link Ltd, New Zealand
- Petron Corporation, Philippines
- Jaiprakash Power Ventures ltd
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- Ministry of Mines - Canada
- Kohat Cement Company Ltd. - Pakistan
- Coastal Gujarat Power Limited - India
- Central Java Power - Indonesia
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- Kumho Petrochemical, South Korea
- Samtan Co., Ltd - South Korea
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- PNOC Exploration Corporation - Philippines
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- Pendopo Energi Batubara - Indonesia
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- Essar Steel Hazira Ltd - India
- Leighton Contractors Pty Ltd - Australia
- PetroVietnam Power Coal Import and Supply Company
- Merrill Lynch Commodities Europe
- Heidelberg Cement - Germany
- Larsen & Toubro Limited - India
- Siam City Cement PLC, Thailand
- Power Finance Corporation Ltd., India
- Medco Energi Mining Internasional
- Singapore Mercantile Exchange
- SMG Consultants - Indonesia
- Coalindo Energy - Indonesia
- Deloitte Consulting - India
- OPG Power Generation Pvt Ltd - India
- Agrawal Coal Company - India
- GN Power Mariveles Coal Plant, Philippines
- Meralco Power Generation, Philippines
- Sree Jayajothi Cements Limited - India
- Directorate General of MIneral and Coal - Indonesia
- Standard Chartered Bank - UAE
- Bhushan Steel Limited - India
- Independent Power Producers Association of India
- Karbindo Abesyapradhi - Indoneisa
- Malabar Cements Ltd - India
- Bhoruka Overseas - Indonesia
- South Luzon Thermal Energy Corporation
- Riau Bara Harum - Indonesia
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- Neyveli Lignite Corporation Ltd, - India
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- Baramulti Group, Indonesia
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- Chettinad Cement Corporation Ltd - India
- Meenaskhi Energy Private Limited - India
- Petrochimia International Co. Ltd.- Taiwan
- Mintek Dendrill Indonesia
- Vijayanagar Sugar Pvt Ltd - India
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