The Requirement of Causation
Events within the Control of One Party
Force Majeure and Repayment of Advance Payments
The Requirement of Reasonable Endeavours
The Requirement to Provide Notice
Reasonable Control
Conclusion
[1] A force majeure clause is one in which the parties are excused performance by 1 of a number of ‘supervening events which arise without the fault of either party and for which neither of them has undertaken responsibility’: see The Kriti Rex [1996] 2 Ll Rep 171, 196
[2] As was the case in Entertain Video Limited, BBC Studios Distribution Limited (formerly known as BBC Worldwide Limited), Demon Music Group Limited v Sony DADC Europe Limited [2020] EWHC 972 (TCC)
[3] In Classic Maritime Inc v Limbungan Makmur SDN BHD [2019] EWCA Civ 1102, [2019] 4 All E.R. 1145, [2019] 2 All E.R. (Comm) 592, [2019] Bus. L.R. 2854 [37]
[4] Supra
[5] [2018] EWHC 1640 (Comm), [2019] 1 All E.R. (Comm) 34, [2018] 2 Lloyd's Rep. 628, [2018] 2 C.L.C. 191
[6] [1978] Lloyd’s LR 509: the case has been regarded as authority for the proposition that a force majeure event must generally be the sole cause of the inability to perform, subject to the express wording of the clause
[7] In order to rely upon a force majeure clause, a party must show that the situation and consequences are beyond his reasonable control – B & S Contracts v VG Publications [1984] ICR 419
[8] [2020] EWHC 1030 (Comm) although see Zhoushan Jinhaiwan Shipyard Co Ltd v Golden Exquisite Inc & Ors [2014] EWHC 4050 (Comm), [2014] 2 C.L.C. 922 where Legatt J relied on the principle of ejusdem generis to restrict the apparently unlimited application of general words at the end of the clause to force majeure events where the events were beyond the control of both parties
[9] [2020] 3 WLUK 387
[10] Seadrill Ghana Operations Ltd v Tullow Ghana Ltd (surpa)
[11] Per Lord Wilberforce in Bremer Handelsgesellschaft mbH v Vanden Avenne-Izegem PVBA [1978] 2 Lloyd's Rep 109, 113
[12] For different conclusions on different wording see the obiter observations of Aikens J in Mamidoil-Jetoil Greek Petroleum Co SA v Okta Crude Oil Refinery AD [2002] EWHC 2210 (Comm) [2003] 1 Lloyd's Rep 1, Christopher Clarke J in SHV Gas Supply & Trading SAS v Naftomar Shipping & Trading Co Ltd Inc (the “Azur Gaz”) [2005] EWHC 2528 (Comm); [2006] 1 Lloyd's Rep 163 and of Teare J in Great Elephant Corporation v Trafigura Beheer BV [2012] EWHC 1745 (Comm); [2012] 2 Lloyd's Rep 503
[13] [2015] EWHC 2658 (Comm), [2016] 1 All E.R. (Comm) 536 |
[14] For a case in which the consequences were set out see Zhoushan Jinhaiwan Shipyard Co Ltd v Golden Exquisite Inc & Ors [2014] EWHC 4050 (Comm), [2014] 2 C.L.C. 922
[15] Uncertainty as to information required and the time by which notice/information was to be provided has been held on numerous occasions to be a factor against construing notice requirements as conditions precedent – see, for example, Bremer Handelsgesellschaft mbH v Vanden Avenne-Izegem PVBA [1978] 2 Lloyd's Rep 109, 113 & 128 and Mamidoil-Jetoil Greek Petroleum Co SA v Okta Crude Oil Refinery AD (No.3) [2003] EWCA Civ 1031, [2003] 2 All E.R. (Comm) 640, [2003] 2 Lloyd's Rep. 635
[16] Great Elephant Corp v Trafigura Beheer BV & Ors. [2013] EWCA Civ 905, [2013] 2 C.L.C. 185
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