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Maritime Proctor Blog

Admiralty and Maritime Law Blog

Maritime Proctor

As a practicing attorney at Chamberlain Hrdlicka in Houston, the focus of my practice is two-fold: I represent companies and individuals in civil litigation. I also do extensive work (of both a litigation and transactional nature) in the Admiralty, Maritime, and Energy fields.

I have been licensed to practice law since 2003. During that time, I've first and second chaired several trials to verdicts, as well as handled hundreds of other cases to amicable resolutions.

I'm a product of public schools, specifically Friendswood High School in Friendswood, Texas (Class of 1996), The University of Texas at Austin (BA-2000), and The University of Texas School of Law (JD - 2003).

Texas Super Lawyers magazine named me as a “Texas Super Lawyer” in the field of Transportation/Maritime Law in 2019 and 2020. Prior to turning 40, I was recognized by Super Lawyers as a Transportation/Maritime Law “Rising Star” from 2011-2018. In the past, both H-Texas Magazine and Houstonia Magazine named me as a “Top Lawyer in Houston” in the field of Admiralty and Maritime Law.

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Das Problem Der Braunen M&Ms

Discussions of generations – or more particularly how members of one generation can relate to members of another generation – dominate discussions of how businesses operate,[1] jury selection,[2] and even familial relations.[3]  Famed German sociologist Karl Mannheim published Das Problem Der Generationen (translated as “The Problem of Generations”) in 1928.  Mannheim’s central thesis is that generations have similar formative experiences in their youth that unite people across gender, class, race, or other classifications to have a shared, common experience.[4] 

Your author is a member of Generation X, which is generally accepted to be those persons born between 1965 and 1980.[5]    My generation, for the most part, got their first email address in college, repurposed AOL CD-Roms into beverage coasters, used rotary phones to call people, was possibly unable to leave a message if someone wasn’t home, couldn’t take pictures or send messages on their phone, and, among other things, saw the rise of home video games slowly kill the oasis of entertainment and escapism known as the video arcade.

One of the defining musical voices of Gen X was Eddie Van Halen, who died on Tuesday, October 6, 2020 at the age of 65 from cancer.  Known best for his eponymous band and transcendent guitar playing talent, Eddie Van Halen’s music served as the soundtrack for many a Gen Xer’s life experiences.  I am a Van Halen fan, as I was mesmerized in my youth watching the group’s videos on MTV (back when MTV showed music videos). 

So what the heck does Van Halen have to do with Admiralty law? 

Quite a bit, actually, if you are familiar with a bit of urban legend surrounding the band from back in its heyday.  When a band of any renown books a venue, the venue has a standard, form contract it customarily presents to the artist(s).  Van Halen was famous (or infamous) for their contract rider, which would amend this standard contract.  Indeed, the Van Halen Rider is often used as an example of the excess of 80’s rock bands.  Among other things, it required, as cold drinks for the Band (four men – David Lee Roth, Eddie Van Halen, Alex Van Halen, and Michael Anthony), the following:[6]

In addition to enough adult beverages to fuel a small fraternity party, Van Halen’s rider also contained a demand for munchies in their dressing room, which included:[7]

Why did Van Halen ask for brown M&M’s to be picked out of the candy bowl?  Van Halen was known for their over-the-top shows that had massive light and sound displays different from that of most touring rock acts in the early to mid 1980s.  Van Halen lead singer David Lee Roth explained in 2012 the thinking behind the clause, since the contract rider also provided all the technical specifications (electrical, stage support, etc.) when he said:[8]

“If I came backstage, having been one of the architects of this lighting and staging design, and I saw Brown M&Ms on the catering table, then guaranteed the promoter had not read the contract rider and we had to do a serious line check.  Frequently we had danger issues or accidental issues.”[9]

Roth also recounted a time when Van Halen played a show in New Mexico in an arena with a new rubber floor, and “the promoter had not read all of the physical requirements of the contract, and our super heavy stage sank about 6 ½ inches into their brand new rubberized floor.  Backstage, not knowing this, I walked in and saw Brown M&Ms, so I trashed the dressing room a little bit.”[10] Roth said the trashing of the dressing room was a few hundred dollars, but the floor damage was over $400,000.00.[11]

So, what does the Brown M&M clause tell people who draft/read/enter into contracts?  Attention to detail matters, and little errors could be the sign of a larger problem.

One of the first things I do when I review a maritime contract for a client is to check for a choice of law clause, because that frames my entire analysis of the agreement.  Contracts that I draft usually have a choice of law clause that reads something like this:

This Agreement, as well as any disputes arising under or relating to this Agreement shall be governed, interpreted, and construed under the General Maritime Law of the United States, excepting the conflicts of laws principles thereto.  If the GML is silent, the Agreement, as well as any disputes arising under or relating to this Agreement shall be governed, interpreted, and construed under the laws of the State of Texas [or insert your preferred state], again excepting Texas’ conflicts of laws principles.

If the choice of law clause does not read something akin to what is above, I know to review the contract with a careful eye, because it is likely that there are not only other possible drafting errors requiring correction, but also potential issues with the validity of standard clauses incorporated by the drafter from a non-maritime contract to a maritime agreement.  Note that, at least in the Fifth Circuit, a choice of law clause cannot make a non-maritime contract into a maritime contract.[12]

An oft-litigated litigated issue is the enforceability of indemnity provisions in maritime contracts.  The General Maritime Law allows parties to enter into defense and indemnity agreements in a contract,[13] provided such agreements satisfy the express negligence test and are otherwise conspicuous in the contract.[14]  In contrast, Texas law, particularly those laws related to offshore drilling (and related services) prohibits indemnity clauses for certain types of oilfield activities under the Texas Oilfield Anti-Indemnity Act (“TAOIA”).[15]  Unless there is a mutual mistake,[16] the contract is going to be the operative agreement. 

What seems like a small detail (the scope of work description, the choice of law clause) can, like the presence of a Brown M&M backstage at a Van Halen concert, be an indicator of a much larger problem in the proposed agreement.  Thus, it may be best to act like Van Halen and trash a dressing room in the negotiation stages so as to avoid a stage collapse (or some similar maritime equivalent) during the actual “concert” constituting the work under the maritime contract. 

Always be looking for Brown M&Ms, and not necessarily to eat them.  And, rest in peace, Eddie.

 

[1] Shama Hyder Here’s What You Need To Know About Millennials, Forbes, Mar. 4, 2014, available at https://www.forbes.com/sites/shamahyder/2014/03/04/here-is-what-you-need-to-know-about-millennials/#51688859311d

[2] Lee Hollis and Zachary Martin, 6 Things You Need to Know About Millennial Jurors, Law 360.com, Dec. 11, 2017, available at https://www.law360.com/articles/993706/6-things-you-need-to-know-about-millennial-jurors

[3] Amanda Barroso, Kim Parker, & Jesse Bennett, As Millennials Near 40, They’re Approaching Family Life Differently Than Previous Generations, Pew Research Center, May 27, 2020, available at https://www.pewsocialtrends.org/2020/05/27/as-millennials-near-40-theyre-approaching-family-life-differently-than-previous-generations/

[4] Pilcher, Jane, Mannheim’s sociology of generations: an undervalued legacy, British Journal of Sociology (Vol. 45, Issue 3 – September 1994).

[5] M.J. Stephey, Gen-X: The Ignored Generation?, Time, April 16, 2008, available at http://content.time.com/time/arts/article/0,8599,1731528,00.html

[6] See http://www.thesmokinggun.com/file/van-halen-1982-backstage-rider?page=7

[7] http://www.thesmokinggun.com/file/van-halen-1982-backstage-rider?page=8

[8] Ganz, Jacob, The Truth About Van Halen and Those Brown M&Ms, NPR.com, Feb. 14, 2012, available at https://www.npr.org/sections/therecord/2012/02/14/146880432/the-truth-about-van-halen-and-those-brown-m-ms

[9] The full story from David Lee Roth can be seen here: https://www.youtube.com/watch?v=_IxqdAgNJck

[10] https://www.youtube.com/watch?v=_IxqdAgNJck

[11] Id.

[12] Verdine v. Ensco Offshore Co., 255 F.3d 246, 254 (5th Cir. 2001).

[13] See Larry Dorion, Inc. v. Specialty Rental Tools Supply, 879 F.3d 568, 570-71 and n.10 (5th Cir. 2018), citing to Hoda v. Rowan Cos., 419 F.3d 379, 380 (5th Cir. 2005).

[14] One Beacon Ins. Co. v. Crowley Marine Services, 648 F.3d 258, 266 (5th Cir. 2011).

[15] Tex. Civ. Prac. & Rem. Code §127.001-127.007.  The TAOIA allows for “additional insured” provisions to create indemnity obligations, meaning that one party can agree to indemnify another ,but only up to the limits of applicable insurance.  See Roberts v. Energy Dev. Corp., 235 F.3d 935 (5th Cir. 2000).  In contrast, the Louisiana Oilfield Indemnity Act, codified at La. Rev. Stat. Ann. § 9.2780:(A), does not allow for such a work-around. See Grand Isle Shipyard, Inc. v. Seacor Marine, LLC, 589 F.3d 778 (5th Cir. 2009).

[16] Which both the GML and Texas/Louisiana law allow to be reformed in equity through introduction of parol evidence outside the contract, as described in Richard v. Anadarko Petroleum Corp., 850 F.3d 701 (5th Cir. 2016).