Mock negotiation of an offshore drilling contract

CIn

Wednesday, March 2, 2016Houston, TX

1:45–3:00 p.m.

MOCK NEGOTIATION OF AN OFFSHOREDRILLING CONTRACT

Presented by

John AlmyAssociate, Houston

Liskow & Lewis

William W. PughShareholder, Houston

Liskow & Lewis

Drilling contracts are key contracts that allocate risk and insurance purchasing responsibil-
ities in the oil patch. There are a number of standardized contracts that are used. Howev-er, all contracts must be reviewed in detail to identify provisions that can impact risk allo-cation and liabilities. Using a mock negotiation of different provisions, this session willhighlight significant risk allocation and commercial contracting issues and outline bestpractices for contract and insurance provisions.
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John AlmyAssociate, Houston

Liskow & Lewis

Mr. Almy is an associate in the firm’s Houston office and works with the firm’s Maritime, Oilfieldand Insurance, and Complex Business, Bankruptcy, and Utility Litigation sections. Mr. Almy’spractice focuses on the negotiation of oil field operational contracts such as drilling contracts,master service agreements, and master time charters. He also deals with bankruptcy mattersand has experience with Chapter 7 liquidations and Chapter 11 reorganizations. Mr. Almy alsoworks on casualty, insurance, and indemnity litigation matters.

He received his law degree in 2005 from the Washington and Lee University School of Law, wherehe was a member of the Washington and Lee Law Review. Prior to law school, Mr. Almy taughthigh school and coached lacrosse in the Houston Independent School District.

William W. PughShareholder, Houston

Liskow & Lewis

Mr. Pugh chairs Liskow & Lewis’s Houston office and serves as a member of its Board of Directors.In his practice, he handles a wide variety of maritime and energy-related cases including contractdisputes, products liability cases, insurance disputes, and casualties.

He has extensive experience analyzing, drafting, and reviewing energy-related contracts and in-surance, indemnity, and other contract issues. His practice background also includes master ser-vice agreements, onshore and offshore drilling contracts, charters, flight service agreements,and onshore and offshore construction contracts.

Mr. Pugh works with companies, both domestically and internationally, to develop comprehen-sive contracts that maximize the company’s risk allocation, including indemnity and insuranceprotection.

Mr. Pugh maintains an active seminar and speaking schedule. He has given numerous presenta-tions on issues related to insurance and risk allocation in the energy industry and speaks beforeleading professional and legal organizations. He has also helped clients, internationally and domes-tically, integrate their contracts, both internally and following mergers or assignment of contracts(such as drilling contracts). Mr. Pugh is currently serving as a member of the Council of the Oil, Gasand Energy Resources Law Section of the State Bar of Texas. In addition, Mr. Pugh previously partic-ipated in drafting the 2002 AIPN International Model Well Services and Seismic Agreements, andhe is currently cochair of the AIPN Model Contract Committee that is drafting an international drill-ing contract and reviewing the 2002 Model Well Services and Seismic Agreements.

Mr. Pugh received his undergraduate degree from the University of Virginia and his J.D. from Lou-siana State University. At LSU he was editor-in-chief of Louisiana Law Review.

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http://www.liskow.com/offices.aspx?id=20&Page=Houston

http://www.liskow.com/offices.aspx?id=20&Page=Houston

Notes

This file is set up for duplexed printing. Therefore, there are pages that are intentionally leftblank. If you print this file, we suggest that you set your printer to duplex.

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Mock Negotiation of An Offshore Drilling Contract

Presented by:John Almy

William PughLiskow & Lewis

#IRMI2016

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• The IADC Contract is “fair” and “industry standard.”

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• Those words do not mean what you think they mean.

Disclaimer- Results of this negotiation are not necessarily typical. - Names have been changed to protect the innocent.

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WARNING!- This is a demonstration by trained negotiators!

DO NOT TRY THIS AT HOME!

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Drilling Contract Situation

• Friday - late morning – Knox learns:• Questionable Oil has multi-well drilling contract

with Big Drill Drilling Co.• One well left to drill when Questionable files

bankruptcy • To mitigate the parties’ losses, the parties (and

the bankruptcy court) have agreed Questionable can assign last well slot to Knox if an agreement can be worked out between Knox and Big Drill

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• Knox is under time pressure –– rapidly approaching deadline to lose lease in

GOM– needs this drilling rig

• Big Drill can ill afford to stack the rig and is unlikely to recover much on its breach of contract claim in bankruptcy court if Questionable terminates the contract

• Questionable/Big Drill drilling contract is an unmodified 2003 IADC Offshore Dayworkdrilling contract

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• Knox needs to get the IADC drilling contract modified

• Big Drill doesn’t want to change contract but wants to put the rig to work

• Time limit – 1 hour

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911 (b)• An indemnifying party’s obligations contained in

this Contract shall extend to the indemnified party and shall inure to the benefit of such party, its Affiliated Companies, and their co-owners, co-venturers, co-lessees, farmors, farmees, and joint owners, [other contractors and subcontractors not included] and the officers, directors, . . . of each . . ..

• Best to establish definition of Operator Group and Contractor Group here

92003 IADC Offshore Daywork Contract

• For every instance in which Company owes a broad reciprocal indemnity, but the underlying contract has no pass-throughprovision, Company has no recourse

What Happens without a Pass-Through Provision?

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• 1) Include contractual liability within scope of indemnity

• 2) Extend indemnity protection to those to whom Company owes contractual indemnity

• 3) Extend indemnity protection to other contractors and subcontractors (and others) as indemnified parties– Use a broad defined term (such as “Company Group”)

to refer to a broadly defined group of indemnitees– Can also use “mutual indemnity” or “cross indemnity”

approach• Each option has pros and cons

Options for Obtaining a Pass Through

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911 – Indemnity Obligation• (a) The parties intend and agree that the phrase

“be responsible for and hold harmless and indemnify” in Paragraphs 605, 606, 805 and 901 through 910 hereof means that the indemnifying party shall release, indemnify, hold harmless and defend (including payment of reasonable attorney’s fees and costs of litigation) the indemnified party from and against any and all claims, demands, causes of action, damages, judgments and awards of any kind or character, without limit and. . .


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911(a) continued• . . .without regard to the cause or causes thereof including claims,

demands, and causes of action arising out of operation of any vessel or vessels (including the Drilling Unit), including ingress and egress to the well location, and loading and unloading of personnel and cargo, and also including preexisting conditions, defect or ruin of premises or equipment (whether such conditions, defect or ruin be patent or latent), the unseaworthiness of any vessel or vessels (including the Drilling Unit), breach of representation or warranty (express or implied), breach of duty (whether statutory, contractual or otherwise), strict liability, any theory of tort, breach of contract, fault, regulatory or statutory liability, products liability, the negligence of any degree or character (whether such negligence be sole, joint or concurrent, active, passive or gross) of any person or persons, including such negligence of the party seeking the benefit of a release, indemnity or assumption of liability, or any other theory of legal liability.


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501 – Contractor’s Standard of Performance

• Contractor shall carry out all operations … under the direction and supervision of Operator (which term is deemed to include any employee, agent, consultant or subcontractor engaged by Operator to direct drilling operations). When operating on a daywork basis, Contractor shall be fully paid at the applicable rates of payment and assumes only the obligations and liabilities stated herein. Except for such obligations and liabilities specifically assumed by Contractor, Operator shall be solely responsible and assumes liability for all consequences of operations by both parties while on a daywork basis, including results and all other risks or liabilities incurred in or incident to such operations, …


501 continued. . .notwithstanding any breach of representation or warranty, either expressed or implied, or the negligence or fault of Contractor, its employees, subcontractors, consultants, agents or servants, including sole, concurrent or gross negligence, either active or passive, latent defects or unseaworthiness of any vessel or vessels, including the Drilling Unit, (whether or not preexisting) and any liability based on any theory of tort, breach of contract, breach of duty (whether statutory, contractual or otherwise), regulatory or statutory liability, or strict liability, including defect or ruin of premises, either latent or patent.• Need to add real standard of performance


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508 – Difficulties During Drilling

• . . . In the event Contractor is required to drill a relief well(s) or to undertake well control activities, such operations may be subject to the consent of, and additional conditions imposed by, Contractor’s underwriters. Any additional premiums and all deductibles shall be for Operator’s account during such operations.


510 - Inspection of Materials Furnished by Operator

• Contractor agrees to visually inspect all materials furnished by Operator before using same and to notify Operator of any apparent defects therein. Contractor shall not be liable for any loss or damage resulting from the use of materials furnished by Operator.


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Sonerra Resources Corp. v. Helmerich & Payne Int’l Drilling Co.

• 2003 IADC Onshore form• Sonerra provided items, including “stripper

rubbers” to H&P for use in drilling the well. • The stripper rubbers proved defective resulting in

injuries to an H&P hand and damage to H&Pproperty

• H&P was able to avoid its indemnity obligation by arguing that the provisions of 14.7 (14.9 in the 2013 form) were more specific that the general indemnities of 14.1 and 14.8.

• Sonerra was ultimately held liable

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605 – Drilling Site and Access• […]• Notwithstanding any other provision of this Contract,

should there be any obstructions, impediments, faulty bottom conditions or hazards to operations at or within the area of the drilling location, including the anchor pattern, and these obstructions, impediments, faulty bottom conditions or hazards to operations damage Contractor’s Items, or Contractor’s Items damage these obstructions or impediments, or if seabed conditions prove unsatisfactory to properly support or moor the Drilling Unit during operations hereunder, . . .


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605 continued• . . . Operator will be responsible for and hold

harmless and indemnify Contractor for all resulting damage, including payment of the Standby Rate during required repairs, but Operator will receive credit for any physical damage insurance proceeds received by Contractor as a result of any damage to the Drilling Unit. All expenses associated with improvements to the seabed and repositioning of the Drilling Unit at the drilling location under this Paragraph 605 shall be for Operator’s account.


701 - Payment• Operator shall pay to Contractor . . . in accordance with the

other provisions hereof, notwithstanding any breach of representation or warranty, either expressed or implied, or the negligence or fault of Contractor, its employees, subcontractors, consultants, agents or servants, including sole, concurrent or gross negligence, either active or passive, latent defects or unseaworthiness of any vessel or vessels, including the Drilling Unit, (whether or not preexisting) and any liability based on any theory of tort, breach of contract, breach of duty (whether statutory, contractual or otherwise), regulatory or statutory liability, or strict liability, including defect or ruin of premises, either latent or patent.


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702 and 703 – Mobilization Fee/Demobilization Fee

• Mobilization Fee– In addition to Operator’s obligation to pay the Standby

Rate in accordance with Paragraph 705 and to supply Operator’s Items, Operator shall pay Contractor a Mobilization Fee as specified in Appendix A which shall be earned on the date the Drilling Unit departs for the Operating Area.

• Demobilization Fee– In addition to Operator’s obligation to pay the Standby

Rate in accordance with Paragraph 705 and to supply Operator’s Items, Operator shall pay Contractor a Demobilization Fee as specified in Appendix A which shall be earned on the date of termination of this Contract.


705 – Standby Rate• (b) during any period after the Commencement Date

until the moment when the Operating Rate first becomes payable;

• (d) during any period after the Commencement Date that the Drilling Unit is undergoing periodic inspections required for the maintenance of the Certification and Classification Certificates;

• (e) during any period when operations are suspended to repair the Drilling Unit or other Contractor’s Items as provided in Paragraph 605 or due to blowout, fire, cratering, shifting or punch through at a drilling location;


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705 continued

• (f) during any period when operations are being conducted hereunder to redrill or repair the hole drilled hereunder which is lost or damaged as a result of Contractor’s sole negligence or willful misconduct; and

• (g) as provided in Paragraph 901.


901 (a)• (a) Except as specifically provided herein to the contrary,

Contractor shall at all times be responsible for and hold harmless and indemnify Operator from and against damage to or loss of Contractor’s Items, and the property, equipment, material and services of Contractor’s Affiliated Companies, partnerships, and limited liability companies, and its and all of their co-owners, partners, co-venturers, joint owners, and its contractors and subcontractors of any tier and the officers, directors, employees, agents, assigns, representatives, managers, consultants, insurers and subrogees of each of the foregoing. To the extent that the proceeds from Contractor’s insurance as made available to Contractor do not compensate Contractor therefor,


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901(b)• (b) (1) Operator shall be responsible for […] in-hole equipment

when such equipment is being used in the hole below the rotary table, normal wear excepted. Abnormal wear and/or damage […] include,[s] damage resulting from the presence of H2S or other corrosive elements in the hole[…] and/or damage to Contractor’s choke hoses and manifolds, BOP and other appurtenant equipment. Operator shall pay the cost of repairing damaged equipment if repairable. In the case of equipment lost, destroyed or damaged beyond repair, Operator shall reimburse Contractor an amount equal to the then current replacement cost of such equipment delivered to the Drilling Unit.

• (2) Operator shall be responsible for and hold harmless and indemnify Contractor for damage to or loss of Contractor’s subsea and mooring equipment, including […] subsea BOP, […] and shall reimburse Contractor an amount equal to the then current replacement cost of such equipment delivered to the Drilling Unit, or the repair cost, whichever is applicable.


901(b) continued• (3) Operator shall be responsible for and hold harmless and

indemnify Contractor for loss or destruction of or damage, including corrosion and contamination, to Contractor’s surface equipment resulting from the presence of H2S, CO2 or other corrosive elements […] In the case of equipment lost, destroyed, damaged or contaminated beyond repair, Operator shall reimburse Contractor an amount equal to the then current replacement cost of such equipment delivered to the Drilling Unit In addition, notwithstanding the provisions of Paragraph 706 of this Contract, the Standby Rate shall apply with respect to any downtime that may occur or result from such damage, including decontamination operations.

• (4) Operator shall be responsible for and hold harmless and indemnify Contractor for damage to or loss of the Drilling Unit caused by Operator furnished helicopters, tugs, supply or service vessels.


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901(c)

• Contractor’s operating practices require the BOP stack to be operated at one (1) degree or less from vertical to avoid abnormal wear and damage. In the event the stack angle exceeds one (1) degree from vertical, Operator shall be responsible for and hold harmless and indemnify Contractor for loss or damage to Contractor’s subsea and in-hole equipment which may result.


901(c) continued• Operator shall pay the cost of repairing

damaged equipment if repairable. In the case of equipment lost, destroyed or damaged beyond repair, Operator shall reimburse Contractor an amount equal to the then current replacement cost of such equipment delivered to the Drilling Unit. In addition, notwithstanding the provisions of Paragraph 706 of this Contract, the Standby Rate shall apply with respect to the period of time required to repair or replace Contractor’s subsea and in-hole equipment that may occur or result from such loss or damage.


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902 – The Hole

• In the event the hole should be lost or damaged at any time, Operator shall, except as provided in Paragraph 705(f), be responsible for and hold harmless and indemnify Contractor and its suppliers, contractors and subcontractors of any tier from such damage to or loss of the hole, including all downhole property therein.


905 – Pollution and Contamination• Notwithstanding anything to the contrary contained herein, the

responsibility for pollution or contamination shall at all times be as follows:

• (a) Contractor shall be responsible for and hold harmless and indemnify Operator for control and removal of pollution or contamination which originates above the surface of the water from spills of fuels, lubricants, motor oils, normal water base drilling fluid and attendant cuttings, pipe dope, paints, solvents, ballast, bilge and garbage wholly in Contractor’s possession andcontrol and directly associated with Contractor’s equipment and facilities. For purposes hereof the term “normal water base drilling fluid” means drilling fluid which does not exceed toxicity limits specified for offshore discharges by the environmental protection entity having jurisdiction over the Operating Area.


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905(b)• (b) Operator shall be responsible for and hold harmless and

indemnify Contractor and its suppliers, contractors and subcontractors of any tier against all claims, demands, and causes of action of every kind and character (including control and removal of the pollutant involved) arising directly or indirectly from all pollution or contamination (including radioactive contamination), other than that described in Paragraph 905(a) above, which may occur including, but not limited to, that which may result from fire, blowout, cratering, seepage or any other uncontrolled flow of oil, gas, water or other substance, as well as the use of or disposition of radioactive sources, lost circulation and fish recovery materials and fluids, oil emulsion, oil base or chemically treated drilling fluids and attendant cuttings, and drilling fluids other than “normal water base drilling fluid” defined in Paragraph 905(a) above.


906 – Debris Removal and Costs of Control

• Operator shall at all times be responsible for and hold harmless and indemnify Contractor for the cost of removal of all wreck and debris (including Contractor’s Items) except as provided below. Contractor shall be responsible for and hold harmless and indemnify Operator for the cost of wreck and debris removal of Contractor's Items to the extent required by law or to prevent interference with Operator's operations. Operator shall at all times be responsible for and hold harmless and indemnify Contractor for the cost of regaining control of any wild well.


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907 – Underground Damage• Operator shall at all times be responsible for and hold

harmless and indemnify Contractor and its suppliers, contractors and subcontractors of any tier from and against any and all claims on account of injury to, destruction of or loss or impairment of any property right in or to oil, gas or other mineral substance or water, if at the time of the act or omission causing such injury, destruction, loss, or impairment, said substance had not been reduced to physical possession above the seabed, and for any loss or damage to any formation, strata, or reservoir beneath the seabed.


909 – Consequential Damages

• . . . Operator shall at all times be responsible for and hold harmless and indemnify Contractor from and against all claims, demands and causes of action of every kind and character in connection with such special, indirect or consequential damages suffered by Operator’s co-owners, co-venturers, co-lessees, farmors, farmees, partners and joint owners.


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1003 - Subrogation• For liabilities assumed hereunder by Contractor, its

insurance shall be endorsed to provide that the underwriters waive their right of subrogation against Operator, its Affiliated Companies and their co-owners, co-venturers, co-lessees, farmors, farmees, and joint owners and the officers, directors, stockholders, partners, managers, representatives, employees, consultants, agents, servants and insurers of each. Operator will, as well, cause its insurer to waive subrogation against Contractor and Contractor’s Affiliated Companies and their co-owners, and the officers, directors, stockholders, partners, managers, representatives, employees, consultants, agents, servants and insurers of each for liabilities it assumes.

• Needs to be extended to Groups


1004 – Additional Insured• Contractor shall name Operator as additional insured,

where permitted, under its policies of insurance, but only with respect to and to the extent of the liabilities specifically assumed by Contractor under this Contract. Operator shall name Contractor as additional insured, where permitted, under its policies of insurance, but only with respect to and to the extent of the liabilities specifically assumed by Operator under this Contract.

• Needs to be extended to Groups, and additional insured coverage should be primary coverage.


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Basic Insurance Protections

• Waiver of subrogation• Additional insured• Coverage should be primary, at least for risks

assumed• Insurance requirements should dovetail with

indemnity provisions • Extend all protection to “Company Group”• Consider insurance issues in any cross indemnity

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Broad Additional Insured Endorsement

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Restrictive Additional Insured Endorsement

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1305 – Compliance with Laws• Each party hereto agrees to comply with all laws,

rules and regulations of any federal, state or local government authority which are now or may become applicable to that party’s operations covered by or arising out of the performance of this Contract. . .. If any act or omission by Contractor in response to an instruction of Operator’s Personnel violates such law, Operator shall indemnify Contractor for any consequences thereof.


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Results of Negotiation

• 501 – Good and workmanlike standard of performance added, “all other risks” language deleted

• 508 – Unchanged• 510 – Made subject to base indemnities,

otherwise unchanged.• 605 – Operator’s liability limited to $5,000,000• 701 – Regardless of fault language deleted

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Results of Negotiation• 702/703 - Given to commercial people to hash out• 705 – (d) deleted, (e) only owed if loss not caused by

Contractor, limited to thirty days, (f) deleted in favor of special redrill rate

• 901 (b)(1) No change• 901 (b) (2) loss or damage to BOP arising out of

Operator negligence limited to $5,000,000• 901 (b) (3) Standby limited to times of no negligence of

Contractor, capped at thirty days• 901(b) (4) Operator liability capped at $5,000,000

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Results of Negotiation• 902 (and throughout contract) – “Suppliers”

deleted, new provision added that Operator will extend its indemnity obligations to a supplier of Contractor for a claim assumed by Operator if Contractor owes such supplier indemnity for that claim.

• 905 – Contractor agrees to take claims arising out of pollution allocated to it. No change to remainder

• 907 – no change to “any”

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Results of Negotiation

• 909 – Contractor agrees to broad reciprocal protections

• 911 (a) Contractor agrees to both• 911 (b) Contractor agrees• 1003 – Contractor agrees• 1004 – Contractor agrees• 1305 – No change

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W7. MOCK NEGOTIATION OF AN OFFSHORE DRILLING CONTRACT

Rating scale for all questions:

4 = Excellent 3 = Very Good 2 = Average 1 = Somewhat Disappointing 0 = Very Disappointing

Overall rating for this workshop? 4 3 2 1 0 John Almy Preparation and quality of information 4 3 2 1 0

Energy and enthusiasm of delivery 4 3 2 1 0

Educational focus (not a sales pitch) 4 3 2 1 0

William Pugh Preparation and quality of information 4 3 2 1 0

Energy and enthusiasm of delivery 4 3 2 1 0

Educational focus (not a sales pitch) 4 3 2 1 0

Comments: _____________________________________________________________________________________________

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Mock negotiation of an offshore drilling contract

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