Questões controvertidas em
sinistros de Oil & Gas offshore
Dennys Zimmermann
+ 55 21 2127 4210
dzimmermann@mayerbrown.com
Tauil & Chequer Advogados is associated with Mayer Brown LLP, a limited liability partnership established in the United States.
18 de fevereiro de 2014
Control of well
Questões potencialmente controvertidas:
- O POÇO NÃO ESTÁ FORA DE CONTROLE SEGUNDO A
DEFINIÇÃO LEGAL;
- O POÇO FOI TRAZIDO SOB CONTROLE ANTES DO
ALEGADO PELO SEGURADO, OU PODERIA TER SIDO
TRAZIDO SOB CONTROLE ANTES;
Control of well – Wordings antigos
Objeto do seguro: "To cover expenses entailed by the
assured in regaining control of oil or gas well(s) being
drilled (…) which get out of control as a direct result of the
drilling of wells insured hereunder until completion of (or)
abandonment (…).”
Blowout: “(…) a condition in which a well builds up a
sufficient gas pressure at the bottom of the hole and causes
a rather sudden, forceful eruption or explosion which cleans
out the well and causes it to go out of control.”
Control of well – Precedentes
1) Sutton Drilling Co., Inc., vs. Universal Insurance Co. (Fifth
Cir. 1964):
“(…) the well was out of control to the extent that
extraordinary well operations had to be implemented and
routine drilling could not continue (…)”.
2) Atlantic Richfield Co. vs. Underwriters at Lloyd's London
(D.C. Tex. 1975):
”(…) from a practical point of view (…) a well was not under
control until workers could (…) make the well as planned
(…)”.
OEE – versões antigas
Blowout: “(…) a sudden accidental, uncontrolled and
continuous expulsion from the well and above the surface
of the ground of drilling fluid in an oil or gas well followed
by continuous and uncontrolled flow from the well and
above the surface of the ground of oil, gas or water due to
encountering subterranean pressures and resulting in the
well getting completely out of control."
Well out of control: "A well(s) shall be deemed out of
control only so long as (when) there is a continuous flow of
drilling fluid, oil, gas or water above (or below) the surface
of the ground or water bottom (which is uncontrollable by
the blowout preventer and/or storm chokes and/or
wellheads and/or safety valves installed in or on the well)."
EED 8/86
Well out of control: “For purposes of this insurance, a
well(s) shall be deemed to be out of control only when there
is an unintended flow from the well(s) of drilling fluid, oil,
gas or water above the surface of the ground or water
bottom, 1. Which flow cannot promptly be:
•Stopped by use of equipment onsite and/or the blowout
preventer, storm chokes or other equipment required by the
Due Diligence and Warranties clauses herein; or
•Stopped by increasing weight by volume of drilling fluid or
by use of other conditioning materials in the well(s); or
•Safely diverted into production; or
EED 8/86
2. Which flow is declared to be out of control by the
appropriate regulatory authority.
Nevertheless and for purposes of this insurance, a well shall
not be deemed out of control solely because of the
existence or occurrence of a flow of oil, gas or water into
the wellbore which can, within a reasonable period of time,
be circulated out or bled off through surface controls."
EED 8/86
Well brought under control: “A well(s) deemed out of
control in accordance with (the above) . . . shall, for
purposes of this insurance, be deemed to be brought under
control at the time that:
•Flow giving rise to a claim here under stops, is stopped or
can be safely stopped; or
•Drilling, deepening, servicing, working over, completing,
reconditioning or other similar operation(s) taking place in
the well(s) immediately prior to the occurrence giving rise
to a claim hereunder is (are) resumed or can be resumed; or
EED 8/86
• Well(s) is (are) or can be returned to the same producing,
shut-in or other similar status that existed immediately
prior to the occurrence giving rise to a claim hereunder; or
• Flow giving rise to a claim here under is or can be safely
diverted into production;
Whichever shall first occur, unless the well(s) continues at
that time to be declared out of control by the appropriate
regulatory authority, in which case, for purposes of this
insurance, the well(s) shall be deemed to be brought
under control when such authority ceases to designate the
well(s) as being out of control."
Control of well – Questões controvertidas
• - DESCUMPRIMENTO DE WARRANTIES – “BLOWOUT
PREVENTER OF STANDARD MAKE” – “WHEN THE
ASSURED IS A NON-OPERATOR ON ANY INSURED WELL,
HE WILL ENDEAVOUR TO SEE THAT THE OPERATOR
COMPLIES WITH THE WARRANTIES”.
Control of well – Questões controvertidas
- DESCUMPRIMENTO DE WARRANTIES:
“It is warranted that where the Assured is the operator (...)
on any insured well being drilled, deepened, serviced,
worked over, completed and/or reconditioned, a blowout
preventer(s) of standard make will, when in accordance
with all regulations, requirements and normal and
customary practices in the industry, be set on surface
casing or on the wellhead and installed and tested in
accordance with usual practice.”
“When the assured is a non-operator on any insured well,
he will endeavour to see that the operator complies with
the warranties”.
Control of well – Questões controvertidas
Continuação:
- É NECESSÁRIO HAVER UM BLOWOUT?
- FOI ADOTADO O MÉTODO MAIS
ECONÔMICO NA REPERFURAÇÃO?
PRUDENTE
E
- AS ATIVIDADES CONSTITUEM “DECOMMISSIONING”?
- NÃO HÁ DEFINIÇÃO DE “PROPERTY DAMAGE”; ISTO PODE
AFETAR A COBERTURA PREVISTA NA SEÇÃO C?
- A EFETIVAÇÃO DA COBERTURA PARA CLEAN-UP DEPENDE
DA RESPONSABILIZAÇÃO LEGAL DO SEGURADO?
- DUE DILIGENCE CLAUSE
Control of well – Questões controvertidas
DUE DILIGENCE CLAUSE
“It is a condition of this insurance that the Assured shall
exercise due care and diligence in the conduct of all
operations covered hereunder, utilizing all safety practices
and equipment generally considered prudent for such
operations, and in the event any hazardous condition
develops with respect to an insured well, the Assured shall
at their sole expense make all reasonable efforts to prevent
the occurrence of a loss insured hereunder. “
Control of well – Questões controvertidas
EED 8/86 – Section C
“Underwriters, subject to the Combined Single Limit of
Liability, terms and conditions of this Policy, agree to
indemnify the Assured against:
a. all sums which the Assured shall by law or under the
terms of any oil and/or gas and/or thermal energy lease
and/or licence be liable to pay for the cost of remedial
measures and/or as damages for bodily injury (fatal or nonfatal) and/or loss of, damage to or loss of use of property
caused directly by seepage, pollution or contamination
arising from wells insured herein;
Control of well – Questões controvertidas
EED 8/86 – Section C (Cont.)
b. the cost of or of any attempt at removing, nullifying or
cleaning up seeping, polluting or contaminating substances
emanating from wells insured herein, including the cost of
containing and/or diverting the substances and/or
preventing the substances reaching the shore;
(…)
provided always that such seepage, pollution or
contamination results from both (1) (…) and of which notice
has been given in accordance with Clause 10 of the General
Conditions hereto and (…).”
Offshore construction - Questões controvertidas:
(i) “EACH PRINCIPAL ASSURED IS DEEMED TO BE
SEPARATELY INSURED (...)”. EXCLUSÃO DE REGRA DE NONVITIATION ENTRE PRINCIPAL ASSURED E OTHER ASSUREDS?
(ii) QUAL O LIMITE DA COBERTURA CONFERIDA AOS OTHER
ASSUREDS (“FOR THEIR DIRECT PARTICIPATION IN THE
VENTURE, UNLESS SPECIFIC CONTRACT(S) CONTAIN
PROVISIONS TO THE CONTRARY”)?
(iii) CONDIÇÃO PRECEDENTE ESPECIAL PARA OS OTHER
ASSUREDS (QA/QC)? A OBRIGAÇÃO DE PERFORMANCE DE
ACORDO COM O QA/QC ESTENDE-SE AOS FUNCIONÁRIOS
DO OTHER ASSURED?
Offshore construction - Questões controvertidas:
“The interest of the Other Assured(s) shall be covered
throughout the entire Policy Period for their direct
participation in the venture, unless specific contract(s)
contain provisions to the contrary. The rights of any Assured
under this insurance shall only be exercised through the
Principal Assureds. Where the benefits of this insurance
have been passed to an Assured by contract, the benefits
passed to that Assured shall be no greater than such
contract allows and in no case greater than the benefits
provided under the insuring agreements, terms, conditions
and exclusions in the Policy.”
Offshore construction - Questões controvertidas:
“SPECIAL CONDITIONS FOR OTHER ASSUREDS
It is a condition precedent for any party identified in
Other Assureds definition clause iii. and iv. above to
benefit from the Other Assureds status under the
Policy that they perform their operations according to
Quality Assurance/Quality Control system(s) which
comply with the Quality Assurance/Quality Control
provisions passed on by the Principal Assureds through
each and every written contract awarded within the
scope of insured works as scheduled under the Policy.”
Offshore construction - Questões controvertidas:
QA/QC Clauses
“As a condition precedent to coverage as an
additional insured and to a waiver of subrogation,
contractor must have carried out the works in
compliance with a Quality Assurance/Quality Control
(“QA/QC”) programme.”
“Underwriters agree to waive rights of subrogation against
any Principal Assured(s) and/or Other Assured(s). The
Assureds shall not grant any waiver of subrogation to
drilling contractors and/or their sub-contractors without
obtaining Underwriters’ agreement to a specific
endorsement to this Policy prior to the commencement of
operations.”
Offshore construction - Questões controvertidas:
(iv) A CLÁUSULA DE DIVESTMENT DEVE APLICAR-SE A
QUALQUER PRINCIPAL ASSURED?
(v) DISCOVERY PERIOD – TRANSFORMA A APÓLICE EM
CLAIMS MADE? CONTA-SE DO FINAL DO PROJETO OU DO
FINAL DO PERÍODO DE MANUTENÇÃO?
Offshore construction - Questões controvertidas:
DIVESTMENT CLAUSE
“Upon divesting a portion or all of its interest in the project,
a Principal Assured shall immediately notify Underwriters
of the divestment. Underwriters agree to provide cover
hereon for the new owners of the divested interest for a
period of 14 days from the date of divestment on the
same terms and conditions. Coverage for the divested
portion will automatically terminate 14 days after the
divestment unless Underwriters and the new owner reach
agreement to continue the coverage.”
Offshore construction - Questões controvertidas:
DISCOVERY CLAUSE
“Claims under the Policy shall only be recoverable
hereunder if the Assured has discovered and reported such
loss, damage or Occurrence to Underwriters within 12
months from expiry of the Project Period set out in Item 3
of the Declarations and concurrent with specific
maintenance period(s) set out in Item 3 of the
Declarations and described in Section I, Terms and
Conditions, Clause 19 below.”
Offshore construction - Questões controvertidas:
• APLICAÇÃO DE LIMITE SOBRE SCHEDULE B PARA SUE AND
LABOUR;
• POLICY LIMIT E ESCALATION CLAUSE – LIMITE SOBRE OS
VALORES “INICIAIS” DO SCHEDULE B VS. “ÚLTIMO VALOR
ACORDADO” DO MESMO SCHEDULE;
• DEFECTIVE PARTS – DEFINIÇÃO DE “PARTE” (SCHEDULE
B?);
• PROMISSORY WARRANTIES;
• OTHER INSURANCE CLAUSES.
Offshore construction - Questões controvertidas:
“Underwriters’ total liability under Section I for all
claims arising out of any one Occurrence shall not
exceed 125% of the latest agreed Schedule “B” values,
including payments made under the sue and labour
clause, the additional work clause and the removal of
wreckage and/or debris clause (…).
In the event of escalation as provided under clause 5 of
Section I, Underwriters’ total liability under Section I for
all claims arising out of any one Occurrence shall not
exceed 150% of the initial Schedule “B” values (…)”.
Offshore construction - Questões controvertidas:
Defective parts
”(…) covers physical loss and/or physical damage to the property insured (…)
resulting from a Defective Part, faulty design, faulty materials, faulty or
defective workmanship or a latent defect even though the fault in design may
have occurred prior to the attachment of the Policy.
(…) does not provide coverage for loss or damage to (including the cost of
modifying, replacing or repairing) any Defective Part itself unless all of the
following is satisfied:
a) such Defective Part has suffered physical loss or physical damage
during the Policy Period;
b) such physical loss or physical damage was caused by an insured peril
external to that part; and
c) the defect did not cause or contribute to the physical loss or physical
damage.”
Offshore construction - Questões controvertidas:
“For the purposes of this clause a ‘Defective Part’ shall
mean any part of the subject matter insured which is or
becomes, defective and/or unfit or unsuitable for its
actual or intended purpose, whether by reason of faulty
design, faulty materials, faulty workmanship, a
combination of one or more thereof or any other reason
whatsoever. The term ‘Defective Part’ shall also include
such ancillary components, which are not themselves
faulty, but which would normally be removed and
replaced by new components when the component that is
faulty is rectified.”
Offshore construction - Questões controvertidas:
PROMET ENGINEERING (SINGAPORE) PTE LTD (Formerly SelfElevating Platform Management Pte Limited) v. NICHOLAS
COLWYN STURGE and ors [1997] EWCA Civ 1358 (26th March,
1997)
“The suggested criteria - what can be physically separated, what
performs a separate function - are not derived from anything
contained in the clause nor from anything said by Walton J and
Branson J. The word part is capable of being used in a whole
variety of ways depending upon the context. Its use provides no
answer to any relevant question. The weld is a part just as much
as is a bracket or bulkhead or plate or the totality of the leg
structure.”
Offshore construction - Questões controvertidas:
• Mitsubishi Electric UK Ltd v Royal London Insurance (UK)
Ltd & Ors [1994] C.L.C. 367
“Summary
judgment—Insurance—Construction
of
insurance policy—‘Deductibles’ clause—Installation of 94
prefabricated toilet modules into building under
construction—Defects in cementitious board to which wall
and floor coverings attached caused bowing and
cracking—Remedial works required—Whether loss
covered by insurance policy—Whether claim arose from
cementitious board as single defective component part—
Whether each damaged module was relevant component
part—Whether single deduction of £250,000 to be made
or deductions in respect of each module extinguishing
claim—RSC, 0.14
The Deepwater Horizon Insurance Litigation
Macondo Loss
• 11 mortos
• 17 lesionados
• 4.9 milhões
de barris perdidos
•O custo total da
resposta monta a
aprox. USD 11.2bilhão
The Deepwater Horizon Insurance Litigation
RANGER INS., LTDA., TRANSOCEAN OFFSHORE DEEPWATER
DRILLING, INC. ET AL. AND CERTAIN UNDERWRITERS AT
LLOYD’S LONDON, V. BP P.L.C. ET AL.
-Transocean mantinha seguros com cobertura de
responsabilidade, primários e em excesso, no valor de
USD750MM, durante o período em que a explosão na
Deepwater Horizon ocorreu.
-Transocean era um contractor de BP, e a BP e suas
entidades afiliadas foram nomeadas como “segurados
adicionais” nas apólices de seguro.
The Deepwater Horizon Insurance Litigation
- Novembro/2011: A cobertura de um “segurado adicional”
é tão extensa quanto sejam os dispositivos constantes do
contrato subjacente acerca da obrigação de o “segurado
adicional” prover indenizações. Segundo o art. 24 do
Drilling Contract, Transocean era responsável por
indenizar BP com relação a poluição ou contaminação
originada em ou sobre a superfície da água, enquanto BP
era responsável por indenizar Transocean com relação a
poluição ou contaminação originada abaixo da superfície,
p.ex., em razão de um blowout. Para a Corte de origem, o
contrato só exigia que a BP fosse nomeada uma “segurada
adicional” em relação às obrigações assumidas pela
Transocean – i.e., em ou sobre a superfície da água.
The Deepwater Horizon Insurance Litigation
- Março/2013:
A
Corte
de
Apelação
decidiu
diferentemente: “Under Texas Law, to discern whether a
commercial umbrella insurance policy (…) provides direct
liability coverage for the third party, we look to the terms
of the umbrella policy itself, instead of looking to the
indemnity agreement in the underlying contract. We apply
this analysis so long as the indemnity agreement and the
insurance coverage provision are separate and
independent. (…)
Because we find that the (…) policies (…) do not impose
any relevant limitation upon the extent to which BP is an
additional insured and because the additional insured
(…)”
The Deepwater Horizon Insurance Litigation
Cont.:
“(…) provision in the Drilling Contract is separate from and
addicional to indemnity provisions therein, we find BP is
entitled to coverage under each of Transocean’s policies as
an additional isured as a matter of law”.
- Novembro/2013: O Quinto Circuito reviu sua decisão e
remeteu o caso à Suprema Corte do Texas para apreciação,
que a admitiu.
The Deepwater Horizon Insurance Litigation
BP x Transocean contract:
•Insured Contract provision:
“(…) shall mean any written or oral contract or agreement
entered into by the ‘Insured’ and pertaining to business
under which the ‘Insured’ assumes the tort liability of
another party (…)”.
•Additional Insured provision:
“[BP] shall be name as additional insured in each of
[transocean’s] policies, except workers’ compensation, for
liabilities assumed by [Transocean] under the terms of this
Contract”.
Questões controvertidas em
sinistros de Oil & Gas offshore
Dennys Zimmermann
+ 55 21 2127 4210
dzimmermann@mayerbrown.com
Tauil & Chequer Advogados is associated with Mayer Brown LLP, a limited liability partnership established in the United States.
18 de fevereiro de 2014