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 April 2015 Digital Edition
FREE Maritime Reporter Subscription
Latest Maritime News    rss feeds

People & Company News

Solarworld Wants Duties on Chinese Solar Goods in U.S. Extended

German solar manufacturer SolarWorld will apply to the United States for an extension of duties on Chinese panel imports that are due to end this year, weekly Euro am Sonntag said.

Sea Urchin Haven Disturbed by Oil Spill

Stephanie Mutz makes a living plucking sea urchins from the Santa Barbara coast and selling the prickly treasure to upscale restaurants in Southern California.

5 Tunisian Migrants Die in Shipwreck

At least five Tunisian migrants died on Saturday when their boat sailing to Italy capsized off the Tunisian coast, officials said. "A migrant boat carrying

Contracts

Solarworld Wants Duties on Chinese Solar Goods in U.S. Extended

German solar manufacturer SolarWorld will apply to the United States for an extension of duties on Chinese panel imports that are due to end this year, weekly Euro am Sonntag said.

Viking Orders 2 Liebherr Cranes

An LR 1300 with super lift equipment and an LR 1160 crawler crane will strengthen the fleet of Viking Cranes. The Tallinn-based company with branch offices

KPCT Launches New Gulf Service

Containerized volumes are steadily increasing on the East Coast of India. Keeping pace with the growth, Krishnapatnam Port Co. Ltd. (KPCT) now offers a new service to the Gulf sector.

Legal

Sea Urchin Haven Disturbed by Oil Spill

Stephanie Mutz makes a living plucking sea urchins from the Santa Barbara coast and selling the prickly treasure to upscale restaurants in Southern California.

5 Tunisian Migrants Die in Shipwreck

At least five Tunisian migrants died on Saturday when their boat sailing to Italy capsized off the Tunisian coast, officials said. "A migrant boat carrying

Oil-coated Pelicans Being cleaned at Rehab Center

Several petroleum-stained pelicans rescued from the blackened muck of California's latest oil spill spent the day on Friday being gently, painstakingly scrubbed

Finance

Solarworld Wants Duties on Chinese Solar Goods in U.S. Extended

German solar manufacturer SolarWorld will apply to the United States for an extension of duties on Chinese panel imports that are due to end this year, weekly Euro am Sonntag said.

Sea Urchin Haven Disturbed by Oil Spill

Stephanie Mutz makes a living plucking sea urchins from the Santa Barbara coast and selling the prickly treasure to upscale restaurants in Southern California.

Viking Orders 2 Liebherr Cranes

An LR 1300 with super lift equipment and an LR 1160 crawler crane will strengthen the fleet of Viking Cranes. The Tallinn-based company with branch offices

Insurance

Shell CEO Backs Fossil Fuels, Climate Change Warnings

The world's fossil fuel reserves cannot be burned unless some way is found to capture their carbon emissions, Royal Dutch Shell Plc Chief Executive Officer Ben van Beurden said on Friday.

CMA CGM Implements War Risk Surcharge in Yemen

French container shipping company CMA CGM said it has implemented a War Risk Surcharge on all shipments to Hodeidah, Yemen.   Applicable with immediate effect,

Freeport LNG Was Not Advised Against Inviting Chinese Investors

The head of Freeport LNG on Friday said that the U.S. Department of Energy did not advise against inviting Chinese investment in the company's Texas export plant,

 
 
Maritime Careers / Shipboard Positions Maritime Security Navigation Pipelines Pod Propulsion Salvage Ship Simulators Shipbuilding / Vessel Construction Sonar Winch
rss | archive | history | articles | privacy | 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: 0.3082 sec (3 req/sec)