Page 15: of Maritime Reporter Magazine (November 2019)
INSIGHTS: LEGAL BEAT tion clauses that are not drafted by trial the parties may not be able to contract tract at issue. However, reliance on old huge drafting error: defense and indem- attorneys, but instead by transactional around these state laws with a choice of forms will likely not provide the limited nity clauses or limitation of liability attorneys. If the language is not suf? - law clause. However, creative language exposure sought by the parties. clauses are in the same typeface/font/ cient, the clause is merely optional, and does exist that can reduce the chances of size as the rest of the contract. Most an aggrieved party can sue anywhere a state law invalidating an otherwise ac- Mistake #5 – Fine Print Waivers U.S. jurisdictions, as well as the GML, where they may be able to establish ju- ceptable indemnity agreement. or Indemnity Clauses require that an indemnity agreement be risdiction. In the late 1970s and 1980s, the rock “speci? c and conspicuous.”
Mistake #4 – Not Addressing band Van Halen had a clause in a tech- The easiest way to ? x this is to use a
Mistake #3 – Failure to Launch Limits on Liability nical rider to the band’s contracts with completely different font, and font size.
on Indemnity The GML as well as state law allow concert venues whereby 1) the arena had And, the lack of a speci? c or con-
Many times, especially in a master for limitations on damages, especially to provide a bowl of M&M candies at spicuous indemnity clause can, like the service agreement context, parties will in commercial contracts. Many times, I sound check with 2) all brown M&Ms presence of a brown M&M in a dress- agree to reciprocally defend and in- see poorly drafted damage waivers that removed. This seems like typical rock ing room, be an indicator of far greater demnify each other for certain types of will either not survive judicial scrutiny star/diva behavior. However, National problems with the contract at hand.
claims or situations. However, a fail- or don’t offer the protection the parties Public Radio reported in 2012 that Van I appreciate the need for businesses to ure to understand (1) where the contract believe. Halen used this language to make sure reduce cost. I also appreciate the need will be performed and (2) the applicable An example is the $500 package limi- the arenas and venues read the ? ne print not to reinvent the wheel. However, fail- law resulting therefrom can nullify what tation in the Carriage of Good by Sea in the contract on the technical speci? - ing to use a knowledgeable admiralty would otherwise be a valid indemnity Act. cations needed for Van Halen’s equip- or maritime attorney on the front end agreement. Two examples of state stat- While COGSA applies by default, par- ment and stage set up. Brown M&Ms of a transaction, either with assistance utes that can nullify such agreements are ties can work around the package limita- in the candy bowl meant the venue had in contract negotiation and/or drafting/ the Louisiana Oil? eld Anti-Indemnity tion either by (a) de? ning a package and not read the contract, and there would be reviewing the same can and often does
Act and the Texas Anti-Indemnity Act, the package value in the bill of lading far bigger problems with the set up and lead to a much larger cost on the back especially if OCSLA applies to the con- and/or (b) excluding the application of safety. end, when something goes wrong and tract. Depending on the circumstances, COGSA from the transaction in the con- Along these same lines, I often see a litigation or an arbitration arises.
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