Hold-harmless Clauses May Not Be So Harmless

Posted by Michelle Howard
Friday, February 28, 2014
Robert Hodge

ITIC has warned that the so-called ‘hold harmless’ clauses in many of the contracts entered into by its members may contain pitfalls which could prejudice their rights.
 


A mutual hold-harmless indemnity clause should provide 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, even if the accident and related losses are caused by negligence. But ITIC notes that, in many of the contracts it reviews, the party with the greater bargaining power will naturally seek to swing the balance back in its favour.
 


Writing in the latest issue of The Wire, the ITIC newsletter for the offshore and hydrographic sector, Robert Hodge, Senior Underwriter for the Offshore Sector, says, “It is staggering how often we see contracts stipulating that ‘the consultant shall indemnify the company against any and all losses’, yet there is no reciprocal benefit to the consultant. The clause must have a mutual provision.”



Meanwhile, the mutual hold-harmless clauses seen by ITIC often leave the distribution of third-party liabilities unclear. Hodge says, “A hydrographic consultant on a survey vessel, for example, 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 on the party which has insurance for these liabilities.”
 


ITIC notes that, in some cases, it sees hold-harmless clauses amended to state that if one of the parties is found to be grossly negligent it will not be held harmless. Robert Hodge emphasises, “There is no true concept of gross negligence under English law. The line between negligence and gross negligence can become blurred, and cases will turn on facts and expert evidence. 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.”



ITIC also warns that the distinction between indirect and direct loss can be complicated. Robert Hodge says, “A common misconception is that all ‘loss of profits’ is indirect loss. This is wrong. Loss of profits can be either direct or indirect, depending on the facts of the case. If, for example, a consultant was providing design work for sub-sea equipment and carried out the design negligently, this could cause not only damage to property but also lost drilling time, leading to lost revenue and profit. In such a case, a tribunal could find that the loss of profit arose naturally from the breach and was therefore a direct loss not excluded under the 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 that loss of profits is excluded, whether direct or indirect.”



ITIC concludes that hold-harmless clauses should be carefully reviewed to ensure that they are actually mutual.
 

 

  • The Wire also includes a contract checklist for offshore and hydrographic consultants, and an explanation of why there is a growing need for them to take out professional indemnity insurance in an increasingly litigious business environment. Copies of the newsletter can be requested from: chris@merlinco.com
  • ITIC, the leading professional indemnity insurer for the offshore and hydrographic sector, will be exhibiting at Oceanology International 2014 at London Excel from 11 to 14 March. You can find us on Stand N550, where we will be holding a daily competition inviting visitors to complete a lap on a racing-car simulator. Participants will be entered into a champagne draw.
  • ITIC is managed by Thomas Miller. More details about the club and the services it offers can be found on ITIC’s website at www.itic-insure.com


 

Maritime Reporter August 2014 Digital Edition
FREE Maritime Reporter Subscription
Latest Maritime News    rss feeds

People & Company News

Sri Lanka Port Project: China Merchants, CHEC Invest $601-M

Two of China's largest port operators and engineering firms have agreed to invest in a $601 million terminal in Sri Lanka's Hambantota port, part of a series of

Viking Supply Ships Sell PSV 'SBS Cirrus'

Rederi AB TransAtlantic subsidiary Viking Supply Ships says it has sold the 1985 built platform supply vessel SBS Cirrus. The vessel has been delivered to its new owners,

UK Chamber Stance Neutral on Scottish Independence

The UK Chamber of Shipping is taking a neutral position in the Scottish independence debate and has given both the Yes and Better Together sides space on its website

Contracts

Sri Lanka Port Project: China Merchants, CHEC Invest $601-M

Two of China's largest port operators and engineering firms have agreed to invest in a $601 million terminal in Sri Lanka's Hambantota port, part of a series of

Viking Supply Ships Sell PSV 'SBS Cirrus'

Rederi AB TransAtlantic subsidiary Viking Supply Ships says it has sold the 1985 built platform supply vessel SBS Cirrus. The vessel has been delivered to its new owners,

SBM Offshore Announces Thunder Hawk Tiebacks

SBM Offshore is pleased to announce it has signed a Production Handling Agreement (PHA) with Noble Energy to produce the Big Bend and Dantzler fields to the

Legal

Bangladeshi Albedo Survivors Helped by their Govt.

Yesterday, 16th September 2014, Chirag Bahri, MPHRP's Regional Director for South Asia, attended a ceremonial event organised by the Ministry of Shipping, Bangladesh

ICS Counsels Wisdom on Ballast Water Convention

The International Chamber of Shipping (ICS) has reiterated its call for governments to address the serious implementation issues concerning the IMO Ballast Water

Ship Safety: IMO Committee Agree Draft IGF Code

IMO informs that the draft International Code of Safety for Ships using Gases or other Low flashpoint Fuels (IGF Code), along with proposed amendments to make the Code mandatory under SOLAS,

Finance

Sri Lanka Port Project: China Merchants, CHEC Invest $601-M

Two of China's largest port operators and engineering firms have agreed to invest in a $601 million terminal in Sri Lanka's Hambantota port, part of a series of

Viking Supply Ships Sell PSV 'SBS Cirrus'

Rederi AB TransAtlantic subsidiary Viking Supply Ships says it has sold the 1985 built platform supply vessel SBS Cirrus. The vessel has been delivered to its new owners,

UK Chamber Stance Neutral on Scottish Independence

The UK Chamber of Shipping is taking a neutral position in the Scottish independence debate and has given both the Yes and Better Together sides space on its website

Insurance

RRI Launch Marine Services J/V with a Trans-Atlantic Reach

Regional Reporting Inc. (RRI) and Global Risk Evaluations (GREvL) inform of the creation of a joint venture aimed at expanding their marine services offerings.

3rd India Ship Recycling Conference Set to be a Big Draw

Delegate registeration for the 3rd India Ship Recycling Conference is going on at a hot pace with a lot of interest having generated with the new Indian Government

Arctic Shipping Routes: P&I Insurance FAQs

The UK P&I Club has compiled an FAQ which focuses on the implications for P&I insurance of choosing to use the Northern Sea Route. The Northern Sea Route (NSR),

 
 
Maritime Careers / Shipboard Positions Maritime Contracts Maritime Standards Naval Architecture Navigation Port Authority Ship Simulators Shipbuilding / Vessel Construction Sonar Winch
rss | archive | history | articles | privacy | terms and conditions | contributors | top maritime news | about us | copyright | maritime magazines
maritime security news | shipbuilding news | maritime industry | shipping news | maritime reporting | workboats news | ship design | maritime business

Time taken: 0.2464 sec (4 req/sec)