do not join the court in condemning contractual agreements that provide for Crown indemnification of gross negligence for the additional reason that we believe this is a matter better left to the legislature or the ruling of our Supreme Court.” Maritime Law. In the recent decision issued in connection with the incident, District Deepwater Horizon Judge Carl Barbier of the Eastern District of Louisiana held that, under maritime law, indemnification for gross negligence is enforceable and not void for public policy considerations. At issue was whether BP was contractually obligated to indemnify Transocean with respect to pollution claims in light of the contract that provided, in relevant part, that BP: parties’ SHALL PROTECT, RELEASE, DEFEND, INDEMNIFY, AND HOLD [Transocean] HARMLESS FROM AND AGAINST ANY LOSS, FOR … POLLUTION SPECIFICALLY WITHOUT REGARD TO NEGLIGENCE … OF ANY PARTY OR PARTIES AND SPECIFICALLY WITHOUT REGARD FOR WHETHER THE POLLUTION IS CAUSED IN WHOLE OR IN PART … BY THE NEGLIGENCE OR FAULT OF [Transocean]. An adjacent provision broadly defined the scope of the indemnity, which applied to the parties’ specific indemnity provision concerning pollution at issue: THE PARTIES INTEND AND AGREE THAT THE PHRASE “SHALL PROTECT, RELEASE, DEFENDANT, INDEMNIFY AND HOLD THAT THE INDEMNIFYING PARTY SHALL HARMLESS” MEANS … INDEMNIFY THE INDEMNIFIED PARTY FROM AND AGAINST … … ANY AND ALL CLAIMS WITHOUT LIMIT AND WITHOUT REGARD … TO THE CAUSE OR CAUSES THEREOF, INCLUDING …THE NEGLIGENCE OF ANY PERSON OR PERSONS, INCLUDING THAT OF THE INDEMNIFIED PARTY, WHETHER SUCH NEGLIGENCE BE … GROSS …. Based upon the language of the indemnity provision, Judge Barbier concluded parties’ that BP was required to indemnify Transocean for its own gross negligence, and that the conflicting public policy considerations of freedom of contract and a reluctance to encourage grossly negligent behavior did not preclude such indemnity. Importantly, however, Judge
do not join the Crown court in condemning contractual agreements that provide for indemnification of gross negligence for the additional reason that we believe this is a matter better left to the legislature or the ruling of our Supreme Court.” Maritime Law. In the recent decision issued in connection with the Deepwater Horizon incident, District Judge Carl Barbier of the Eastern District of Louisiana held that, under maritime law, indemnification for gross negligence is enforceable and not void for public policy considerations. At issue was whether BP was contractually obligated to indemnify Transocean with respect to pollution claims in light of the parties’ contract that provided, in relevant part, that BP: SHALL PROTECT, RELEASE, DEFEND, INDEMNIFY, AND HOLD [Transocean] HARMLESS FROM AND AGAINST ANY LOSS, … FOR POLLUTION … SPECIFICALLY WITHOUT REGARD TO NEGLIGENCE OF ANY PARTY OR PARTIES AND SPECIFICALLY WITHOUT REGARD FOR WHETHER THE POLLUTION … IS CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OR FAULT OF [Transocean]. An adjacent provision broadly defined the scope of the parties’ indemnity, which applied to the specific indemnity provision concerning pollution at issue: THE PARTIES INTEND AND AGREE THAT THE PHRASE “SHALL PROTECT, RELEASE, DEFENDANT, INDEMNIFY AND HOLD HARMLESS” MEANS THAT THE INDEMNIFYING PARTY SHALL … INDEMNIFY … THE INDEMNIFIED PARTY … FROM AND AGAINST ANY AND ALL CLAIMS … WITHOUT LIMIT AND WITHOUT REGARD TO THE CAUSE OR CAUSES THEREOF, INCLUDING …THE NEGLIGENCE OF ANY PERSON OR PERSONS, INCLUDING THAT OF THE INDEMNIFIED PARTY, WHETHER SUCH NEGLIGENCE BE … GROSS …. Based upon the language of the parties’ indemnity provision, Judge Barbier concluded that BP was required to indemnify Transocean for its own gross negligence, and that the conflicting public policy considerations of freedom of contract and a reluctance to encourage grossly negligent behavior did not preclude such indemnity. Importantly, however, Judge
FINAL%20-%20Indemnity%20Provisions%20in%20Energy%20Agreements.docx