In re Whistler Energy II, LLC

571 B.R. 199, 2017 Bankr. LEXIS 937
CourtUnited States Bankruptcy Court, E.D. Louisiana
DecidedApril 4, 2017
DocketCASE NO. 16-10661
StatusPublished

This text of 571 B.R. 199 (In re Whistler Energy II, LLC) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Whistler Energy II, LLC, 571 B.R. 199, 2017 Bankr. LEXIS 937 (La. 2017).

Opinion

MEMORANDUM OPINION

Jerry A. Brown, U.S. Bankruptcy Judge

This matter came before the court on December 12, 13, 19 and 28, 2016 as a hearing on Nabors Offshore Corporation’s (“Nabors”) Motion for Allowance of Administrative Expense' Claim (P-354), and the objections thereto. At the same time Apollo Franklin Partnership L.P., Apollo Centre Street Partnership, Apollo Special Opportunities Managed Account, LP, Apollo Credit Opportunity Fund III AIVI LP, ANS Holdings (WE), Ltd., and Apollo Management, LP’s (“Apollo) Objection to Claim 48 by Nabors Offshore Corporation (P-438) was heard. Considering the testimony and evidence presented by the parties, and for the reasons set forth below, the court finds that Nabors is entitled to an administrative priority claim for a part of its post-petition services. Nabors is also entitled to a general unsecured claim in the amount of $6,967,925.98. Nabors has not shown that it is entitled to a gap period claim.

I. Background Facts

The debtor in this case, Whistler Energy II, LLC (referred to alternatively as “Whistler”, the “debtor”, or the “debtor-in-possession” as the case may be), owns a platform for oil and gas production in the Gulf of Mexico known as Green Canyon 18. On February 25, 2014 the debtor and Na-bors entered into a drilling contract whereby Nabors placed a drilling rig, MODS 201, on the debtor’s platform.1 On March 10, 2016 there was an accident on the rig that resulted in the death of a Nabors’ employee. The drilling operations were shut down the next day by the United States Bureau of Safety and Environmental Enforcement (“BSEE”). On March 24, 2016, an involuntary .bankruptcy petition was filed against Whistler by several of its creditors. On May 25, 2016, Whistler consented to the entry of an order for relief under Chapter 11 of the U.S. Bankruptcy Code.2

Nabors seeks a gap period claim in the amount of $2,264,690.88, an administrative priority claim for work performed prior to demobilization in the amount of $4,320,364.78, and an administrative priority claim for the demobilization in the amount of $2,647,561.20.3 The debtor-in-possession, Apollo, and the Unsecured [202]*202Creditors’ Committee (“UCC”) object to most of Nabors’ motion for administrative priority on the basis that most of Nabors’ claim is more properly classified as a general unsecured claim. The dispute focuses on both the interpretation of the force majeure clause in the contract between Whistler and Nabors, and on the law regarding administrative claims and contract rejection.

II. Legal Analysis

A. The Force Majeure clause in the contract and the Gap Period

The gap period in this case is the time between March 24, 2016 when the involuntary petition was filed, and May 25, 2016 when the order for relief was entered. Section 507(a)(3) gives a second priority to claims “arising in the ordinary course of the debtor’s business or financial affairs after the commencement of the case but before the earlier of the appointment of a trustee and the order for relief.”4 These claims are treated as if the claim had arisen before the date of the filing of the petition. Nabors’ proof of claim asserts a § 507(a)(3) claim in the amount of $2,264,690.88.5

Whistler, Apollo and the UCC contend that the entire gap period claim is governed by the force majeure language in the contract. Whistler, Apollo and the UCC argue that the force majeure provision of the contract went into effect right after the accident of March 10, 2016 that resulted in the death of Nabors’ employee. There are two clauses in the contract that pertain to a force majeure event. The first, at paragraph 7.7 states:

The Force Majeure Rate specified in Appendix A will be payable during any period in which operations are not being carried on because of Force Majeure as defined in Paragraph 13.3, including periods required to repair damage caused by a Force Majeure event, up to a maximum of ten (10) consecutive days, after which and during the continuous existence of the Force Majeure condition no day rate will be payable and the Contract may be terminated at the option of either party, subject to demobilization as provided in Paragraph 7.3.6

The second clause, which is at paragraph 13.3 states:

Except as otherwise provided in this Paragraph 13.3, each party to this Contract shall be excused from complying with the terms of this Contract, except for the payment of monies when due, if and for so long as such compliance is hindered or prevented by riots, strikes, wars (declared or undeclared), insurrections, rebellions, terrorist acts, civil disturbances, dispositions or orders of governmental authority, whether such authority be actual or assumed, acts of God (except however adverse sea or weather conditions other than named storm hurricanes), inability to obtain equipment, supplies or fuel, or by any act or cause (other than financial dis[203]*203tress or inability to pay debts when due) which is reasonably beyond the control 'of such party, such cause being herein sometimes called “Force Maj-eure.” In the event that either party hereto is rendered unable, wholly or in part, by any of these causes to carry out its obligation under this Contract, such party shall give notice and details of Force Majeure in writing to the other party as promptly as possible after its occurrence. In such cases, the obligations of the party giving notice shall be suspended during the continuance of any inability so causes except that Operator shall be obliged to pay to Contractor the Force Majeure Rate provided for in Paragraph 7.7.7

At trial, the court was under the impression that all parties agreed that the Force Majeure clause went into effect on March 11, 2016, after the accident, and that after the ten days specified in the Force Maj-eure clause expired on March 21, 2016, no day rate was to be charged. In its post-trial brief, however, Nabors argues for the first time, that no force majeure rate was ever in effect because Whistler did not timely notify Nabors that a force majeure event had occurred. The parties also disagree as to when the force majeure event ended.

1. Notice of Force Majeure

First the court will address Na-bors’ newly raised argument that the force majeure notice was not timely. The court rejects this argument for several reasons: 1) both parties were unarguably aware of the incident on March 10, 2016 resulting in the death of Nabors’ employee and the almost immediate orders from BSEE shutting down the drfiling operations—the basis of the force majeure declaration; 2) Whistler issued the written notice of force majeure after it received its Notification of Incident(s) of Non-Compliance (“INC”) from BSEE notifying Whistler that it would not be able to resume drilling operations; 3) the language of the contract- at paragraph 13.3 requiring the notice in writing to the other party states that the notice shall be given “as promptly as possible”; and 4) Nabors’ own invoice dated April 4, 2016 clearly states that the force majeure rate went into effect on March 11, 2016 and ended on March 21,2016.8

The incident causing the death of Na-bors’ employee occurred on March 10, 2016, and resulted in an almost immediate shutdown of the drilling rig.

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Cite This Page — Counsel Stack

Bluebook (online)
571 B.R. 199, 2017 Bankr. LEXIS 937, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-whistler-energy-ii-llc-laeb-2017.