RISK ALLOCATION IN OIL AND GAS CONTRACTS BY WAY OF INDEMNITY,

EXCLUSION & LIMITATION OF LIABILITY

Valentine Ataka*

*Valentine Ataka is an Advocate of the High Court of Kenya, a blogger on Energy Law and Policy issues and an LLM Oil

& Gas Law Candidate (RGU-2013)

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS ………………………………………………………….

……………………………….2

ABSTRACT

………………………………………………………………………………………………………………

…. 2

1.0 INTRODUCTION ..……………………………………………………………….

……………………....3

2.0 INDEMNITY…………………………………………………………………………..

……………………….4

2.1 Definition of Indemnity ..…………………………………………….…………..….

………..4

2.2 Examples …………………………………………………..………….……………..

………….…...5

2.3 Interpretation of Indemnity Clauses ……………………………………….

………………6

2.4 Scope of Indemnity

……………………………………………………………………………….. 6

3.0 EXCLUSION OF LIABILITY ……………………………………………………....….

……...10

3.1 Definition of Exclusion …………………………………..…………..

……………………..10

3.2 Examples & Scope of Exclusion ….……………………..….…………………..

…….10

3.3 Interpretation of Exclusion Clause…………….....……..

…………………………...13

4.0 LIMITATION OF LIABILITY ……………………………………………………..

……………. 14

4.1 Definition of Limitation

……………………………………………………………………….. 14

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4.2 Examples and Forms of Limitation

…………………………………………………….. 14

5.0 CONCLUSION ……………………………………………………………………………….

………..….15

BIBLIOGRAPHY…………………………………………………………………………………………..

……………..17

LIST OF ABBREVIATIONS

AIPN – Association of International Petroleum Negotiators

E&P – Exploration and Production

IMHH- Industry Mutual Hold Harmless Scheme

LOGIC - Leading Oil and Gas Industry Competitiveness

NOGEPA - Netherlands Oil and Gas Exploration and Production Association

O&G – Oil and Gas

ABSTRACT

This write-up presents an analysis of the various standard clauses used in Oil and

Gas Industry to apportion liability. The discussion focuses on standard provisions for

indemnity, exclusion and limitation of liability and relies on examples from various

model contracts, industry practice around the world as well as case law.

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The approach taken in the brief is to discuss how such provisions can be negotiated,

drafted, interpreted and applied in order to effectively realize the intended object of

properly allocating contractual liability between and amongst parties in oil and gas

contracts.

This will be achieved by discussing various issues relating to the definitions,

interpretation, scope of and exceptions to liability apportioning by the three

approaches. Each issue will be discussed on the background of case law, other

authors’ opinions and examples from industry standards contracts.

1.0 INTRODUCTION

Players in the oil and gas industry have to contend with a wide range of risks 1.

These include mechanical breakdowns, HSE accidents, unfavorable price changes

etc2. Atoning for the financial consequences of such risks can be very costly3 and

may cause significant financial set-backs to the business.4To minimize exposure,

industry players usually undertake various measures and practices to manage the

1 Greg Gordon, ‘Risk Allocation in Oil and Gas Contracts’ in Greg Gordon et al (eds) Oil and

Gas law: Current Practice and Emerging Trends’ (2nd Edn, Dundee University, 2011)

2 Tobby Hewitt, ‘Who is to Blame? Allocating Liability in Upstream Project Contracts’ Journal of Energy & Natural Resources Law Vol 26 No 2 2008

3 Piper Alpha is said to have occasioned a total insured loss of US$3.304 billion; See Hewitt, ibid

4 According to the Guardian the Deepwater Horizon incident has let to the dip of BP profits by 35% See The Guardian, ‘BP's Deepwater Horizon costs rise $847m’ Tuesday 31 July 2012http://www.guardian.co.uk/business/2012/jul/31/bp-deepwater-horizon-costs accessed 12th April 2013

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risks. In a wide context, risk management includes prevention and mitigation of

risks and remediation of loss in the event of occurrence5.

One element of risk management is risk allocation between or among the parties

involved in an undertaking6. This is particularly problematic in the O&G industry

which is characterized by multiplicity of parties in one project7. Risk allocation in the

industry may be achieved by setting out in the contracts clauses which declare

which party will be liable for (or exempted from) a given risk and to what extent.

There are three forms of risk allocation approaches common to contracts used in

the O&G industry8. These are

(a) Indemnity

(b) Exemption and

(c) Limitation of liability

The approaches are discussed separately below.

2.0 INDEMNITY

2.1 Definition

Under an indemnity arrangement the indemnifying party agrees to make a

payment to the party having the benefit of the indemnity in the event that the

indemnified party suffers loss as a result of the occurrence of a specified event9.

5 Aven T et al ‘A Decision Framework For Risk Management, With Application To The Offshore

Oil And Gas Industry’ Reliability Engineering and System Safety 92 (2007) 433–448

6 Adedeji Bodunde Badiru & Samuel Olusola Osisanya, Project Management for the Oil and Gas Industry: A World System Approach (CRC Press, 2013) e-book

7 For instance according to the House of Lords in Caledonia Northsea vs British

Communication Plc & Others [2002] UKHL 4, the Piper Alpha project whose accident of 6th

July 1988 killed over 160 workers, there were over 24 Contractors involved

8 Greg Gordon, (above n1)9 ibid

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In a more simple approach a Canadian Court in Lafrentz v. M & L Leasing10

defined contractual indemnity as ‘an obligation to protect against or keep free

from loss, to repay for what has been lost or damaged, to compensate for a loss’

To contradistinguish contractual ‘Indemnity’ from ‘Exclusion’ the Supreme Court

of England in Farstad Supply AS VS Enviroco11 has stated that a clause that

uses both phrases ‘indemnify’ and ‘hold harmless’ amounts to risk allocation by

indemnity and exclusion. The Court explained that the operation of the Clause

would in fact determine its true nature i.e. if it serves to create responsibility for

the exposure of ‘a third party’ it would be an indemnity Clause; whereas if it

operates only to create responsibility for the exposure of a party in the contract

then it would be ‘an exclusion’ clause.

Indemnity may be further dichotomized as ‘unilateral’ or ‘mutual’ indemnity12. The

former refers to a situation whereby only one party (A) takes up responsibility to

indemnify another (B) in the event that B suffers loss in the course of their

contractual relationship. Mutual indemnity however refers to a situation whereby

each party is simultaneously a potential indemnifier and beneficiary of possible

indemnity.

2.2 Examples

An example of an indemnity Clause is set out at Clause 19.1 LOGIC Standard

Offshore Service Contract13 reproduced in part below:

19.1 The CONTRACTOR shall be responsible for and shall save, indemnify, defend and hold harmless the COMPANY GROUP from and against all claims, losses, damages, costs (including legal costs) expenses and liabilities in respect of:

102000 ABQB 714 (CanLII)

11 [2010] UKSC 18

12 Gordon (above n1)13 LOGIC, ‘Standard Contracts for the UK Offshore Oil and Gas Industry: Service Onshore &

Offshore’ http://www.logic-oil.com/sites/default/files/documents/Services%20Onshore

%20and%20Offshore%20Edition%202.pdf accessed 3rd March 2013

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(a) loss of or damage to property …….

The addition of the term ‘defend’ to the obligation of the indemnifier for example in

the LOGIC contract above implies that the obligation extends to conducting the

defence of any litigation that may arise against the benefiting party.14

2.3 Interpretation of Indemnity Clauses

2.3.1 Contextualism

Courts will construe an indemnity clause in the context of the entire contract. This

resonates with Lord Hoffman’s restatement in Investors Compensation Scheme

Ltd vs West Bromwich Building Society15. He acknowledged that while the old

rule of ‘objective bystander’ still applied in interpretation of contracts, such a

bystander should be assumed to be informed of most of the background facts to the

disputing parties’ contract.

2.4.2 Contra proferentem rule

Where there is ambiguity in the clause, the ambiguity will be construed to give an

outcome least favourable to the party likely to benefit from (in this context to be

indemnifying pursuant to) the clause.16 However according to Lord Glennie in

Slessor vs Vecto Gray17 where indemnity is mutual (for example in a knock for

knock clause) the rule ceases to apply since both parties stand to be beneficiaries.

2.4 Scope of indemnity

14 Gordon (above n1)15 [1998] 1WLR 896

16 Ibid

17 [2006] CSOH 104 paragraph 12

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2.4.1 Scope where there are multiple parties

Multiplicity of parties as is common in O&G contracts may give rise to abstract

results in effecting an indemnity clause. In Slessor18 under Clause B13 of the

Agreement in question, the parties

mutually and irrevocably [undertook] to release, defend and indemnify each other

for damage to any property and/or injury to/or death of the personnel of the

others, arising out of or in connection with the Work, howsoever caused

[emphasis added].

The Court interpreted ‘personnel of the others’ to mean that the three parties in the

contract (say A, B and C) had agreed that A would indemnify B&C for the injury of

B&C’s personnel, B had agreed to indemnify A&C for the injury of A&C’s personnel

and similarly C to indemnify A&B’s for the injury of A&B’s personnel. While

concerned that this interpretation ‘was not supported by any commercial or

business commonsense’ Lord Glennie held that since it was the clear wording of the

Clause, it would be upheld.

2.4.2 Scope of indemnity where there is subrogation

Where the Indemnifier has taken out an insurance policy to cover the same risk that

is the subject of the contract, the obligation to indemnify may be extinguished

depending on whether or not there is an express obligation on the indemnifier to

take out the policy.

In BP Exploration Operating Co. Ltd. V. Kvaerner Oilfield Products Ltd19 Clause 10.5 of the Contract in question imposed an obligation on BP to take out an insurance policy whose cover was found to extend to the contractor. The Court held that in the circumstances, the Insurance Company had no right to subrogate and the duty to indemnify was extinguished once the insurance company settled the claim.

By contrast in Caledonia North Sea Limited (Respondents) v British

Telecommunications Plc (Appellants) (Scotland) and others20 the court found

that there was no obligation on the part of the operator to take out an insurance

18 Ibid 19 [2004] All ER (D) 87

20 [2002] UKHL 4

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policy. Still it did and the insurance company met the claims. The Court therefore

upheld the insurer’s right to subrogate and be reimbursed in full as secondary

indemnifiers.

2.4.3 Extension of scope to third Parties

Indemnity will ordinarily not extend to third parties if not contemplated by the

contract. In Westerngeco v ATP Oil & Gas,21a contractor (Westerngeco) entered

into a contract for streaming of seismic cables from a vessel with ATP (company)

whereby

‘The parties agree[d] that the Contractor’s Group’s [the claimant’s] liability under

this Contract shall not exceed the aggregate amount of payments received by the

Contractor for the work and Company [Clause 19.8]

In carrying out the work, Westerngeco damaged wellheads belonging to Total

who were not a party to the contract. The Court had to determine whether

pursuant to Clause 19.8 Westerngeco could claim indemnity to also cover losses

incurred by Total.

The Court found that the words ‘under this Contract’ in Clause 19.8 referred to the

defendant only hence held that a limitation of liability could only be effective to limit

liability to the other contracting party, not third parties.

2.4.4 Extending scope through Knock for Knock Indemnities

The UKCS industry offers a model approach to resolving the complexities of

indemnity in a multi-party industry. Under the auspices of LOGIC, industry players

have put together a Mutual Hold Harmless (IMMH) Scheme with a Draft Deed (IMMH

21 [2006] All ER (D) 254

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Deed22). Contractors join the scheme by signing standard Deeds of Adherence.

Under Clause 2.1 of the deed, the signatories are obliged to

be solely responsible for and shall defend, indemnify and hold harmless the other Signatories and the other members of their respective Groups against all Claims arising from, out of, or relating to the Services in connection with:(i) personal injury to or sickness……; and(ii) loss of, recovery of, or damage to any Property ……; and(iii) Consequential Loss ……...

The Deed extends the scope of indemnity to the signatories and their affiliates,

personnel and invitees23. At Clause 5.1 it also resolves the subrogation problem by

enjoining signatories to procure waiver of subrogation rights from their respective

insurers.

The deed however serves only as a gap filler since it does not take precedence over

any existing indemnity agreements between parties.24 Further being a voluntary

Scheme, it has been shunned by some important players in the industry such as

several large drilling companies who are wary of the potential losses which they

may suffer since they have relatively larger numbers of personnel on the

platforms.25

A similar arrangement is adopted by the Industry in Netherlands through the Mutual

Indemnity Agreement in the E&P Industry administered by NOGEPA26. The Dutch

scheme aims to provide clarity in allocation of liabilities and avoidance of

22LOGIC ‘Mutual Indemnity And Hold Harmless Deed’(2012)

http://www.logic-oil.com/sites/default/files/documents/IMHH%202012%20Deed.pdf Accessed

12th April 2013

23 See definition of ‘Group’ under Clause 1 in reference to the entitlement of ‘Groups’ under

Clause 2

24 Clause 11 of the Deed

25 Gordon (above n1)

26 NOGEPA, ‘Mutual Indemnity Agreement’ http://www.nogepa.nl/en/Home/MIAwederzijdsevrijwaring.aspx accessed 20th April 2013

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overlapping insurances covering identical risks. Unlike the IMHH model, it permits

the participation of Operators.

3.0 EXCLUSION OF LIABILITY

3.1 Definition

The sum effect of an exclusion clause is to absolve a party from responsibility for loss arising from an identified risk27. The absolution may be in respect of a class of risks or any risks whatsoever arising from the contract.

These provisions in a contract create a class of injury or loss whose occurrence are expressed not to be qualified for remediation by the party with the obligation to remedy the risk covered.

3.2 Examples & Scope of Exclusion Clauses

In O&G contracts parties usually agree to exclude liability for

(i) Consequential loss(ii) Loss resulting from wilful conduct (iii) Loss resulting from gross negligence

3.2.1 Consequential/indirect Loss

The common law basis for this kind of exclusion is inferable from the celebrated

case of Hadely vs Baxendale28 which established the two-limb rule that an injured

party can only claim

(i) damages that are fairly and reasonably considered to have arisen naturally from the breach itself, or

(ii) such damages as may be reasonably supposed to have been in the contemplation of both parties at the time the contract was made.

27 Fastard Case [2010] UKSC 18

289 Exch. 341, 156 Eng. Rep. 145 (1854)

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The English courts have held the view that Consequential loss for the purposes of exclusion connotes matters falling under the second limb in Hadley vs. Baxendale such as production costs and loss of profit by relating it to. For instance in Croudace Construction v Cawoods Concrete Products29 the liability clause provided that:

we are not under any circumstances to be liable for any consequential loss or damage caused or arising by reason of late supply or any fault failure or defect in any material or goods supplied by us or by reason of the same not being of the quality or specification ordered or by any other matter whatsoever.

The Court of Appeal in England held that the word consequential excluded any loss

which directly and naturally resulted in the ordinary course of events from late

delivery which included the indemnification of a claim made by sub-contractors

against the claimants. The claim was made in respect of a delay in the sub-

contractors’ work which was said to have been caused by the absence of the

material which the defendants ought to have delivered.

However a Victorian (Australia) Court of Appeal in Environmental Systems Pty

Ltd v Peerless Holdings Pty Ltd30has discredited the English approach and held

that

it was not correct to construe consequential loss as limited to the second limb

in Hadley v Baxendale in accordance with the English authorities. Instead,

consequential loss in the exclusion clause should have the meaning that

‘ordinary reasonable business persons would naturally conceive of’. Namely,

as “everything beyond the normal measure of damages, such as profits lost or

expenses incurred through breach”

Under the Australian approach therefore, costs incurred in curing the breach would

be excluded as consequential loss.

3.2.2 Gross negligence

Contractual allocation of liability defies the common law rule that a party will not be

compensated for their own negligence31. Liability clauses generally permit

compensation irrespective of the negligence of the beneficiary. However this is

29 [1978] 2 Lloyds Rep 55 CA30 [2008] VSCA 26

31 Timur Makarov, ‘Indemnity in the International Oil and Gas contracts: Key Features, Drafting and Interpretation’(CEPMLP, June 2009)

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usually qualified by exempting liability for losses arising out of the beneficiary’s own

‘gross negligent’ acts.

In the Red Sea Tankers Ltd v Papchristidis32the Court described ‘gross

negligence’ as embracing:

serious negligence amounting to reckless disregard without any necessary

implication of consciousness of the high degree of risk or the likely consequences

of the conduct on the part of the person acting or omitting to act;

3.2.3 Wilful misconduct

Wilful misconduct on the other hand was dealt with at length by Colman J in the

case of National Oilwell (UK) Ltd v Davy Offshore Ltd33 where the judge

adopted the definition coined by Johnson J in Graham v Belfast and Northern

Counties Ry Co34 where he says:

Wilful misconduct in such a special condition means misconduct to which the will

is party as contradistinguished from accident, and is far beyond any negligence,

even gross or culpable negligence, and involves that a person wilfully misconducts

himself who knows and appreciates that it is wrong conduct on his part in the

existing circumstances to do, or to fail or omit to do (as the case may be), a

particular thing, and yet intentionally does, or fails or omits to do it, or persists in

the act, failure, or omission regardless of consequences.

In a more recent case of De Beers UK Limited v Atos Origin IT Services35, the

judge defined ‘wilful misconduct' as conduct by a person who knows that he

is committing, and intends to commit a breach of duty, or is reckless in the

sense of not caring whether or not he commits a breach of duty.

32 [1997] 2 Lloyd’s Rep 547

33 [1993] 2 Lloyd’s Rep 582

34 [1901] 2 IE 13

35 [2010] EWHC (TCC)

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The ingredients of wilful conduct as interpreted by the English Courts

therefore include knowledge, intention and recklessness.

3.3 Interpretation of Exclusion Clauses

3.3.1 Clause to be interpreted in the contractual and commercial context

The Supreme Court of Canada in Tercon Contractors Ltd v. British

Columbia36has taken the view that an exclusion clause should not be interpreted in

isolation. The Court bears in mind the other provisions of the contract as well as the

commercial context of the contract and subject transaction.

3.3.2 Where ‘exclusion’ in not express

The words used to exclude liability have a great influence on the likely

determination of what the parties intended to omit from the ambit of liability. In

many cases the Courts usually look to the express usage of the phrases such as

‘consequential’, wilful conduct’ to find the existence of an exclusion.

However, in Sonat Offshore SA v Amerada Hess Development Ltd37 the Court

noted that exclusion does not have to be express in the contract. The court stated

that

it does not follow that because there is no express reference to the exclusion or

limitation of liability the agreement cannot have the effect on its true construction

of clearly providing for the consequences of breach or other fault.

Saville in that case J followed the decision in The Evia38, where it was held that a

provision requiring charterers to pay for extra insurance if the vessel was ordered

into a war zone should be construed as providing exclusively for the consequences

of the charterers’ breach in ordering the vessel to such a zone, though the provision

did not expressly limit liability to the amount of the extra premiums.

4.0 LIMITATION OF LIBILITY

36 [2010] SCC 4 (S.C.C.)

37 [1988] 1 Lloyd’s Rep. 145 at 15738 [1982] 2 Lloyd’s Rep. 307

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4.1 Definition

A liability clause may apportion the responsibility for remedying loss arising out of

an act of the benefiting party but at the same time put a cap on it39. The cap may

be on the basis of a predetermined portion of the loss or a fixed sum40.

While an Exclusion clause completely absolves liability, a limitation clause merely

curtails the scope of the liability of the duty bearer.

4.2 Examples and forms of Limitation

4.2.1 Fixed amount limitation

It may be the desire of parties to specifically provide for the maximum amount of

loss that either of them would be liable for in the event of risk occurrence. An

example is found at Clause 35 of LOGIC Standard Contract for Supply of Major

Items41. It provides that

the CONTRACTOR’s total cumulative liability to the COMPANY arising out of or related to the performance of the CONTRACT shall be limited to the sum specified in Appendix 1 to Section I – Form of Agreement, or in the absence of such sum the CONTRACT PRICE

This type of limitation is used especially in O&G contracts where there is a prospect

of unlimited and potentially exorbitant liability if left unchecked42. They may serve

as a compromise where the parties cannot agree on a mutual hold harmless

indemnity or exclusion of consequential loss provision.

39 Glenn D. Well et al, ‘Contracting to Avoid Extra-Contractual Liability—Can Your Contractual Deal Ever Really Be the “Entire” Deal?’(2007) http://www.weil.com/files/Publication/563ccf98-648d-4e5b-b3e5-129805230615/Presentation/PublicationAttachment/fb77618a-f943-4797-98a1-2a69d92a4522/Extra-Contractual%20Liability%20Article.pdf accessed 13th April 2013

40 Gordon (above n1)

41 LOGIC, ‘General Conditions of CONTRACT for Supply of Major items of Plant and

Equipment’ http://www.logic-oil.com/sites/default/files/documents/Supply%20of%20Major

%20Items%20of%20Plant%20and%20Equipment%20Edition%202.pdf Accessed 3rd April

2013

42 Gordon (above) pg 497

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They are advisable in the Oil and Gas industry for two key reasons summed up by

Gordon as follows

(1) Some O&G projects are so valuable that even the potential losses which are unequivocally direct may be more than a contactor can bear; (2) even if the losses which the contractor fears should be shut out by the indemnity or exclusion clause there is always a risk that those clauses might for some reason be susceptible to challenge. A liability cap therefore performs the valuable function of providing a second line of defence of indeterminate or disproportionate liability

4.2.2 Proportionate Limitation

Some contracts specifically limit the liability of parties involved to the proportion of

their participation in the undertaking. An example is the AIPN Model International

Operating Agreement43 provides as follows at Clause 4.6

(A) Except as set out in this Article 4.6, neither the party designated as operator nor any other indemnitee (as defined below) shall bear (except as a party to the extent of its participating interest share) any damage, loss, cost, expense or liability resulting from performing (or failing to perform) the duties and functions of the operator, and the indemnitees are hereby released from liability to non-operators for any and all damages, losses, costs, expenses and liabilities arising out of, incident to or resulting from such performance or failure to perform, even though caused in whole or in part by a pre-existing defect, the negligence (whether sole, joint or concurrent), gross negligence, strict liability or other legal fault of operator (or any such indemnitee).

5.0 CONCLUSION

The use of indemnity, exemption and limitation in O&G contracting is generally

intended to manage risks in such a way that liability is borne by the person most

capable of meeting it. Besides, such clauses are a safety net in an industry that is

prone to occurrence of risks which albeit far apart may have devastating financial

ramifications. They are also a response to the dependence of the industry on

uninterrupted operations; driven by the desire to expeditiously dispense with any

disputes involving the occurrence of operation risks. The clauses further serve the

difficult purpose of balancing the interests of the often multiple parties in O&G

undertakings.

43 AIPN ‘Model International Operating Agreement’ (1995)

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In order to meet these objectives, persons negotiating, drafting and/or relying on

the three forms of risk allocation clauses in the O&G contracts are invited to bear in

mind the following among other matters:-

In drafting the clauses there is need for clarity on the intention of the

parties since as a general rule courts will, look to the agreement and

provided it is clear and unequivocal apply the agreed provision.44

Each negotiating party must secure a scope that serves its interest since

the court may extend scope to liability not anticipated unless the parties

are unequivocal on the scope.45

In drafting and applying liability clauses parties need to be aware of stray

liability i.e. provisions within the contract which do not necessarily fall

under a Clause aptly titled ‘Liability’ or ‘Indemnity’46

Parties need to be aware of statutory provisions which have overriding

effect on industry practice and common law positions e.g. the Texas

Oilfield Anti-Indemnity Act, 197347 which generally proscribes contractual

indemnification for one’s own negligence

Above all, interpretation of the clauses should be approached objectively taking into

account the discernible intention of the parties as well as the contractual and the

commercial context of the parties’ engagement.

BIBLIOGRAPHYStatutesOilfield Anti-Indemnity Act, 1973 (Texas)

Unfair Contract Terms Act, 1977 (UK)

44 Canada Steamship Lines Ltd. v. The King (1952)

45 Campbell vs Conoco [2002] All ER (D) 4

46 Gordon

47 As endorsed by Atlantic Richfield Co. v. Petroleum Personnel Inc 758 S.W.2d 843 (1988)

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BooksGreg Gordon et al (eds) Oil and Gas law: Current Practice and Emerging Trends’ (2nd Edn, Dundee University, 2011)

Adedeji Bodunde Badiru & Samuel Olusola Osisanya, Project Management for the Oil and Gas Industry: A World System Approach (CRC Press, 2013) e-book

Case law Atlantic Richfield Co. v. Petroleum Personnel Inc 758 S.W.2d 843 (1988)

BP Exploration Operating Co. Ltd. V. Kvaerner Oilfield Products Ltd [2004] All ER (D) 87

Caledonia North Sea Limited (Respondents) v British Telecommunications Plc (Appellants) (Scotland) and others [2002] UKHL 4

Campbell vs Conoco [2002] All ER (D) 4

Canada Steamship Lines Ltd. v. The King (1952)

Croudace Construction v Cawoods Concrete Products [1978] 2 Lloyds Rep 55 CA

De Beers UK Limited v Atos Origin IT Services [2010] EWHC (TCC)

Environmental Systems Pty Ltd v Peerless Holdings Pty Ltd [2008] VSCA 26

Farstad Supply AS VS Enviroco [2010] UKSC 18

Graham v Belfast and Northern Counties Ry Co[1901] 2 IE 13

Hadely vs Baxendale 9 Exch. 341, 156 Eng. Rep. 145 (1854)

Investors Compensation Scheme Ltd vs West Bromwich Building Society [1998] 1WLR 896

Lafrentz v. M & L Leasing 2000 ABQB 714 (CanLII)

National Oilwell (UK) Ltd v Davy Offshore Ltd[1993] 2 Lloyd’s Rep 582

Northsea vs British Communication Plc & Others [2002] UKHL 4

Red Sea Tankers Ltd v Papchristidis [1997] 2 Lloyd’s Rep 547

Slessor vs Vecto Gray [2006] CSOH 104Sonat Offshore SA v Amerada Hess Development Ltd [1988] 1 Lloyd’s Rep. 145 at 157

Tercon Contractors Ltd v. British Columbia [2010] SCC 4 (S.C.C.)

The Evia [1982] 2 Lloyd’s Rep. 307

Westerngeco v ATP Oil & Gas [2006] All ER (D) 254

ArticlesAven T et al ‘A Decision Framework For Risk Management, With Application To The Offshore Oil And Gas Industry’ Reliability Engineering and System Safety 92 (2007) 433–448

17

Glenn D. Well et al, ‘Contracting to Avoid Extra-Contractual Liability—Can Your Contractual Deal Ever Really Be the “Entire” Deal?’(2007) http://www.weil.com/files/Publication/563ccf98-648d-4e5b-b3e5-129805230615/Presentation/PublicationAttachment/fb77618a-f943-4797-98a1-2a69d92a4522/Extra-Contractual%20Liability%20Article.pdf accessed 13th April 2013

Greg Gordon, ‘Risk Allocation in Oil and Gas Contracts’ in Greg Gordon et al (eds) Oil and Gas law: Current Practice and Emerging Trends’ (2nd Edn, Dundee University, 2011)

Timur Makarov, ‘Indemnity in the International Oil and Gas contracts: Key Features, Drafting and Interpretation’(CEPMLP, June 2009)

Tobby Hewitt, ‘Who is to Blame? Allocating Liability in Upstream Project Contracts’ Journal of Energy & Natural Resources Law Vol 26 No 2 2008

Others

AIPN ‘Model International Operating Agreement’ (1995)

LOGIC - -‘Standard Contracts for the UK Offshore Oil and Gas Industry: Service Onshore & Offshore’ http://www.logic-oil.com/sites/default/files/documents/Services%20Onshore%20and%20Offshore%20Edition%202.pdf accessed 3rd March 2013

- ‘Mutual Indemnity And Hold Harmless Deed’(2012) http://www.logic-oil.com/sites/default/files/documents/IMHH%202012%20Deed.pdf Accessed 12th April 2013

- ‘General Conditions of CONTRACT for Supply of Major items of Plant and Equipment’ http://www.logic-oil.com/sites/default/files/documents/Supply%20of%20Major%20Items%20of%20Plant%20and%20Equipment%20Edition%202.pdf Accessed 3rd April 2013

NOGEPA, ‘Mutual Indemnity Agreement’ http://www.nogepa.nl/en/Home/MIAwederzijdsevrijwaring.aspx accessed 20th April 2013

The Guardian, ‘BP's Deepwater Horizon costs rise $847m’ Tuesday 31 July 2012http://www.guardian.co.uk/business/2012/jul/31/bp-deepwater-horizon-costs accessed 12th April 2013

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