The U.S. Fifth Circuit Court of Appeals recently addressed competing indemnification provisions in a maritime contract.  A pipeline operator, W&T Offshore, hired a diving contractor, Triton Diving Services, for an offshore pipeline decommissioning project.  Triton provided their own vessel and personnel, but operated under W&T’s instruction pursuant to a Master Service Contract.  W&T also hired a safety contractor, Tiger Safety, to assist with filtration of pipeline fluids.  An employee of Tiger was working on Triton’s vessel under supervision of W&T when he fell and injured himself. 

The Tiger employee sued both W&T and Triton in U.S. District Court.  W&T and Triton filed cross-claims against one another seeking defense and indemnity based on their Master Service Contract.  W&T had agreed to indemnify Triton for personal injury claims brought by members of the “W&T Group”.  Likewise Triton had agreed to indemnify W&T for personal injury claims brought by members of the “contractor group”.  The contract defined the “contractor group” to include Triton’s “invitees on the work sites” and “W&T Group” included W&T’s “invitees on the work sites”.  The indemnification question therefore boiled down to whether the Tiger employee was an “invitee” of W&T or Triton.  At the time of the accident, the Tiger employee was working on Triton’s vessel under the direction of Triton personnel, but he was hired by W&T and was being monitored by a W&T employee also on the vessel. 

The District Court sided with Triton, finding that the plaintiff was W&T’s invitee and W&T appealed to the Fifth Circuit.  On appeal, the Court confirmed that the Master Service Contract was a maritime contract and turned to Fifth Circuit precedent that defined “invitee” as “a person who goes onto premises with the expressed or implied invitation of the occupant, on business of the occupant or for their mutual advantage”.  The Court concluded that even though the plaintiff was injured on Triton’s vessel, he was a W&T invitee because he was hired by W&T and was working under the supervision of W&T.  The Fifth Circuit affirmed the District Court’s finding that W&T owed Triton defense and indemnity. 

Grogan v. W&T Offshore