"The object of these provisions is to facilitate the settlement of claims, first by ensuring that all claims are channelled to the licensee, thus avoiding a multiplicity of claims between, for example, injured persons and contractors or one contractor and another; and, secondly, by requiring the claimant to prove only that the cause of the injury or damage was radio-activity from the licensee's reactor. The claimant is thus spared the difficult, if not impossible, task of proving that the licensee was negligent in allowing the radio-activity to be given off . . . Unlike licensees, the Authority and Government Departments will be liable even where the injury or damage is attributable to enemy action. On the other hand, they will have a right to sue a contractor whose negligence has given rise to third-party claims against them. It has been necessary to extinguish this right in the case of a licensee in order to avoid litigation which would arise if insurers or other financial guarantors of a licensee tried to exercise any rights they might have against contractors or sub-contractors responsible for building reactors or supplying parts. But the Authority or a Government Department does not normally insure, and, seeing that the taxpayers' money is involved, it is considered proper that in their case the right to sue a negligent contractor should be preserved."
"(iv) Injury or Death of Employees The position in respect of employers' liability is invariably dealt with by the exchange of mutual indemnities in respect of injuries to or deaths of employees. There is perhaps a simple reason for this. If an individual is injured he will expect to have a right to sue any party who may have been guilty of negligence leading to the circumstances which caused the injury. This party may be another contractor, the Principal or his employer, or any combination of all three. The issue can become complicated by reason of contributory negligence. Determining liability and awarding costs can be a lengthy process in these circumstances, and this can only add to the anguish of the injured party, or the dependents of the deceased who may have been the sole breadwinner. The employer therefore accepts a responsibility to provide for his employees and will generally give the party with whom he is contracting a full indemnity in respect of any suit or action brought against that other party."
"Again, in an offshore context, the liability of an oil company for loss of life or personal injury is invariably going to be governed by a contract, either with another party carrying out services in or about the installation or drilling rig, or with an employee, or a party providing consultancy services. It is usual for such contracts to leave the responsibility for damages or compensation with the party employing the injured person. Nevertheless there are many situations where a genuine third party position will exist. A contractor's employee, if injured on a platform as a result of an incident for which he was, himself, blameless, will have an action for damages against the platform owners. The platform owners may, in turn, be indemnified by the contractor, but in the first instance the action lies against the platform owners. Such a position arose in the case of the 'Piper Alpha' casualty, as a result of which compensations were sought from the Operator and its co-venturers for significant amounts. A third party position will also exist as between one contractor's employee and another."
"The client will, in any event, normally carry insurance cover for his own employees and his own property and the cost of this insurance would not be reduced if the particular contractor was also required to be insured against the same risks. It is thus normal for the client and the contractor to assume full liability, and give each other mutual indemnities, for claims arising out of death of or injury to their own employees and for loss or damage to their own property . . ., regardless of any negligence or default on the part of the other party or its employees, agents or sub-contractors. It will however, normally be provided that neither the contractor nor the operator will be liable to the other for loss of use of the other's property or any loss of profit or other consequential loss of the other"
"This case vividly illustrates how, in the complicated offshore drilling environment with its intricate divisions of responsibility and countless contractors and subcontractors, a simple slip-and-fall can turn into a multiparty morass of contribution cross-claims, third- and fourth-party defendants, reciprocal indemnity agreements, and the ever-popular warranties of workmanlike performance. The plaintiff in this litigation has long since settled and departed but the other parties have chosen to remain on the field of battle to contest the appropriate share of the plaintiff's settlement to be borne by each of them."
"A policy analysis also supports this result. The purpose of the reciprocal indemnity agreement in the Mesa-Rowandrill contract, as it is in so many similar oilfield service contracts, is to divide the responsibility for personal injury/death among the many employers and contractors according to the identity of the injured employee rather than according to which party's fault or negligence caused the injury. In effect, each party assumes the risk of the other's negligence and agrees to be responsible for injuries to its own employees no matter how, or by whom, caused. The purpose of describing the classes of persons in the indemnification provisions is to define those employees for whom each party assumes the risk of injury."
"My Lords, these authorities seem to me to be conclusive that the right of the underwriters is merely to make such claim for damages as the insured himself could have made, and it is for this reason that (according to the English mode of procedure) they would have to make it in his name; . . ."
"It is too well settled by the authorities to admit of question that, as between a common carrier of goods and an underwriter upon them, the liability to the owner for their loss or destruction is primarily upon the carrier, while the liability of the insurer is only secondary. The contract of the carrier may not be first in order of time, but it is first and principal in ultimate liability."
"The right of subrogation is not limited to cases where the liability of the third person is founded in tort; but any right of the insured to indemnity will pass to the insurer upon payment of the loss."
"Appellants were parties to an express contract whereby they assumed responsibility for the loss of the goods of respondents. They thereby accepted primary liability and it cannot be said that appellants stand on equal footing with the insurance company. The equities in this matter do not balance but preponderate in favor of the insurer of the bailor."
"It appears to me that the status of a policy of insurance as res inter alios acta so far as third parties are concerned, and the cases to which the Court of Session refers where a right of subrogation has been held to exist, suggest that where, as here, there is a contract for services which contains within itself an indemnity provision, together with insurance which may also cover the events the subject of the indemnity, it is generally appropriate to regard the insurance as a secondary rather than a co-ordinate obligation. I would not be prepared to suggest that this must invariably be the case; rather, it appears to me that the terms of the particular indemnity provision will be relevant. However, in this case, the works and services contract is, as one would expect, a document dealing in detail with all the rights and liabilities of the parties arising in relation to the work to be performed by Speno. It does appear to me that in the context of that contract, the indemnity clause is, as Lord Sutherland put it, intended 'to allocate primary responsibility'."
"The facts of this case lie in a narrow compass. The argument turns much on want of precision in stating the case, as most arguments do. The office paid without suit, not in ease of the hundred, and not as co-obligors, but without prejudice. It is, to all intents, as if it had not been paid. The question, then, comes to this, can the owner, having insured, sue the hundred? Who is first liable? If the hundred, it makes no difference; if the insurer, then it is a satisfaction, and the hundred is not liable. But the contrary is evident from the nature of the contract of insurance. It is an indemnity. Every day the insurer is put in the place of the insured. In every abandonment it is so. The insurer uses the name of the insured. The case is clear: the Act puts the hundred, for civil purposes, in the place of the trespassers; and, upon principles of policy, as in the case of other remedies against the hundred, I am satisfied that it is to be considered as if the insurers had not paid a farthing."
"The better way is to consider this as a contract of indemnity. The principle is, that the insurer and insured are one, and, in that light, paying before or after can make no difference. I am, therefore, clearly of opinion, that the hundred cannot avail themselves of this defence."
"is the contractor liable to indemnify the operator only if and to the extent that the operator's insurer fails to do so, or is the operator's insurer liable to indemnify the operator only if and to the extent that the contractor fails to do so?"
"The fundamental question in the present case, therefore, is whether upon the true construction of the bargain between the bank and Mrs Zyngier, Mrs Zyngier placed herself, as regards bills of exchange accepted by Zinaldi and thereafter dishonoured, in the position of a co-surety alongside the drawer or indorser; or whether, upon the true construction of the bargain, her liability to the bank upon a bill was intended to be limited to a case of default by the parties liable upon the bill. If it were the true meaning of the mortgage that the bank was required to call upon the parties to the bill before it called upon Mrs Zyngier to make good her default, then ex hypothesi no injustice ensued to the drawer upon the bank's adoption of that course and no case for the intervention of a court of equity could arise. If a third party (in the instant case Mrs Zyngier) guarantees a bill of exchange for the benefit of a bank which discounts it, the normal understanding will be that the surety guarantees that payment will be made by one or other of the parties to the bill who are liable upon it, whether as acceptor or drawer or indorser. It will not be the normal understanding that the surety intends to place himself on a level with the drawer, so as to be answerable equally with the drawer if the acceptor defaults. There is no reason why he should. There is no reason to suppose that, in a contract between the bank and the surety, the surety desires to confer a benefit on the drawer and to share with him the responsibility for a dishonoured acceptance. Nor is there any reason why the bank should wish to call upon the surety for payment until the parties to the bill have defaulted." and at p 575 he continues: "
"Without prejudice to the foregoing generality, the contractor shall indemnify…[the operator]…against any claim, demand, cause of action, loss, expense, or liability (including but not limited to the costs of litigation) arising…by reason of- " and the subclause then listed five heads under which indemnity could be claimed. For example, head b included: "
"Injury to or death of persons employed by or damage to or loss or destruction of property of the contractor…irrespective of any contributory negligence, whether active or passive, of the party to be indemnified, unless such injury, death, damage loss or destruction was caused by the sole negligence or wilful misconduct of the party who would otherwise be indemnified."
"It is…normal for the client [ie the operator] and the contractor to assume full liability, and to give each other mutual indemnities, for claims arising out of death of or injury to their own employees and for loss or damage to their own property…regardless of any negligence or default on the part of the other party or its employees, agents or sub-contractors."
"In marine insurance a rule which has long been recognised is that when the insured has recovered to the full extent of his loss under one policy, the insurer under that policy can recover from other underwriters who have insured the same interest against the same risks a rateable sum by way of contribution. The foundation of the rule is that a contract of marine insurance is one of indemnity, and that the insured, whatever the amount of his insurance or the number of the underwriters with whom he has contracted, can never recover more than is required to indemnify him. The different policies being all with the same person, and against the same risk, are therefore regarded as truly one insurance, and if one of the underwriters is compelled to meet the whole claim, he is entitled to claim contribution from the other underwriters, just as a surety or cautioner who pays the whole debt is entitled to claim rateable relief against his co-sureties or co-cautioners."
"The question, then, comes to this, can the owner, having insured, sue the hundred? Who is first liable? If the hundred, it makes no difference; if the insurer, then it is a satisfaction, and the hundred is not liable."