Публикация посвящена вопросам, связанным с форс-мажором. Специалистами Международной юридической службы (Interlegal) освещаются, в частности, договорная природа правовых норм, регулирующих последствия действия форс-мажорных обстоятельств, а также средства доказывания таких обстоятельств.
Severe weather conditions during the 2012 winter have obviously caused serious negative consequences for business. The mass media and official sources have repeatedly announced the news related to a difficult ice situation in the Sea of Azov and the Black Sea as a result of which the loading/unloading in ports and vessels sailing to the destination were significantly delayed.
Execution of sale and purchase contracts on delivery of goods under CIF and FOB terms in such a situation could be considerably delayed or repudiated resulting in damages and losses for the parties of such agreements.
We turned to the experts, Artem Skorobogatov, associated partner, and Natalia Myroshnychenko, senior lawyer, International Law Offices, with questions as to what degree the parties of sale and purchase contracts connected with carriage by sea can invoke unfavorable weather conditions as an excuse for failure to fulfill their obligations under such agreements.
UJBL: Which obligations of the parties under agreements could be the subject of claims and disputes?
Artem Skorobogatov (A.S.): Both sellers and buyers under purchase and sale agreements on FOB and CIF terms are exposed to the consequences of difficult ice, depending on the particular terms of a contract. If one of the parties in pursuance of its obligations under sale contract chartered a vessel, it will be responsible also as the Charterers before the ship owner according to the charter party.
In particular, due to severe weather conditions the cargo shipment from a frozen port can be delayed or the obligation on vessel delivery in such port is unfulfilled. Depending on the conditions of a contract a party therefore can be liable for delay of the vessel waiting for ice convoy/loading (demurrage, detention), delay of cargo delivery or for repudiation of the contract as a whole.
UJBL: Severe weather conditions are often recognized as force-majeure circumstances in international practice. Is that happens in this case?
Natalia Myroshnychenko (N.M.): A lot of standard purchase and sale agreements as well as the majority of charter parties are governed by English law.
Unlike continental legal systems, there is no doctrine or concept of the force-majeure in English law. A force-majeure clause can be included in the agreement and so will have the force determined by the parties and English case law.
A force-majeure clause is so interpreted as an agreement between the parties which releases one or both parties from execution of the contract in cases when such performance is impossible in view of the occurrence of force-majeure circumstances listed in the clause. Such failure to execute will not be considered as breach of a contract and will not cause reimbursement of damages caused thereby.
UJBL: Was it enough for the party of sale and purchase contract to apply to the force-majeure circumstances such as ice situation in the Black Sea region this winter and to the relevant clause to avoid responsibility for failure to perform obligations?