After three decades of developed jurisprudence regarding whether offshore energy services agreements are maritime contracts, the United States Court of Appeals for the Fifth Circuit has replaced the established Davis & Sons test with the Doiron test. Generally speaking, indemnity provisions that indemnify a party for its own negligence are valid and enforceable under maritime law. Many states, including Texas and Louisiana, have anti-indemnity statutes that render some indemnity and insurance clauses void and unenforceable. These statutes have requirements that must be strictly followed for certain, but not all, indemnity and insurance provisions to remain enforceable. Whether an offshore services agreement is a “maritime contract” will determine whether maritime or state law applies, and, in an offshore indemnity dispute, the choice of applicable law can be outcome-determinative.

In its 1990 decision in Davis & Sons, Inc. v. Gulf Oil Corp., 919 F.2d 313 (5th Cir. 1990), the Fifth Circuit established a six-part test to determine whether a contract was maritime or nonmaritime. The questions focused on the nature of the work described in the contract, the type of work actually performed, whether the crew was required to perform the work on a vessel, whether the work performed related to the mission of the vessel, the principal work of the injured worker, and the work the injured worker was performing when injured. Courts also considered the historical treatment of similar contracts in jurisprudence, which, over time, provided some predictability to the choice-of-law question.

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