"war",declared or not, is definitely not a Contractors Risks. The Employer is the indicated Risk holder in such case and the Employee (Contractor) cannot support any of Special risks nor its continous effect ...
Shortage in manpower, materials as well, are Employers liability and the Contractors (Employee) liability cannot be called if the Contractor uses its utmost to solve the shortage. Therefore, the Employer should compensate (outbreak of war) for increased costs (manpower, material,..) till the return to prevailing conditions before the occurence of war event. The Contractor is only responsible for direct damages to the site (including his own equipments) and the uninspected works. Employers liability is also called for time extension and for money compensation (refer to corrected Hudson formula applicable for such event, where compensation dosnt cover OH over OHP). In addition, i draw your attention that the Contract is first of all under Countrys local law then is under Fidic provisions. Do not expect from Engineers side any fair determination in this particular case, because himself is Employers Agent and cannot determine fairly such issue.
In am personally involved in Claims related to war in Lebanon (since 1996) and i cannot predict the issue. Under Fidic 4th edition reprinted 1992 i am using mainly the following sub clauses: 12.2, 20.4a, 44.1, 44.2, 65.1, 65.2, 65.5 etc...
The Engineer and the Employer should be aware that delaying fair compromise in this particular situation will be in first place harmfull for the Project. Contractors difficulties becomes their own problems. Therfore they have to deal with the Contractor on factual basis by proposing an interim determination allowing the Contractor an EOT and money Compensation.
Hope that my experience will helps you.
Ernest J.
Member for
20 years 10 months
Member for20 years10 months
Submitted by Andrew Flowerdew on Tue, 2006-08-15 08:21
Seems clear to me. FM applies if the Contractor is prevented from carrying out any of his obligations (not ALL of them). Internal finishes is just one of the Contractors obligations - so the FM clause must apply.
John
Member for
20 years 10 months
Member for20 years10 months
Submitted by Andrew Flowerdew on Mon, 2006-08-14 20:13
Two important points to think about is whether the clause says "....any of the contractors obligations..." or "....all of the contractors obligations..." must be affected in order for the clause to take effect. Secondly, what is the law of the contract as civil law and common law systems will take slightly differing views, but as can be seen from the paper, a fairly restrictive view is taken in all cases.
Member for
18 years 3 monthsRE: Force Majeure
Dear Friend,
"war",declared or not, is definitely not a Contractors Risks. The Employer is the indicated Risk holder in such case and the Employee (Contractor) cannot support any of Special risks nor its continous effect ...
Shortage in manpower, materials as well, are Employers liability and the Contractors (Employee) liability cannot be called if the Contractor uses its utmost to solve the shortage. Therefore, the Employer should compensate (outbreak of war) for increased costs (manpower, material,..) till the return to prevailing conditions before the occurence of war event. The Contractor is only responsible for direct damages to the site (including his own equipments) and the uninspected works. Employers liability is also called for time extension and for money compensation (refer to corrected Hudson formula applicable for such event, where compensation dosnt cover OH over OHP). In addition, i draw your attention that the Contract is first of all under Countrys local law then is under Fidic provisions. Do not expect from Engineers side any fair determination in this particular case, because himself is Employers Agent and cannot determine fairly such issue.
In am personally involved in Claims related to war in Lebanon (since 1996) and i cannot predict the issue. Under Fidic 4th edition reprinted 1992 i am using mainly the following sub clauses: 12.2, 20.4a, 44.1, 44.2, 65.1, 65.2, 65.5 etc...
The Engineer and the Employer should be aware that delaying fair compromise in this particular situation will be in first place harmfull for the Project. Contractors difficulties becomes their own problems. Therfore they have to deal with the Contractor on factual basis by proposing an interim determination allowing the Contractor an EOT and money Compensation.
Hope that my experience will helps you.
Ernest J.
Member for
20 years 10 monthsRE: Force Majeure
John,
Youre probably right but I rarely see an unamended version of FIDIC, or come to that, any other standard form, these days.
Member for
21 years 3 monthsRE: Force Majeure
Seems clear to me. FM applies if the Contractor is prevented from carrying out any of his obligations (not ALL of them). Internal finishes is just one of the Contractors obligations - so the FM clause must apply.
John
Member for
20 years 10 monthsRE: Force Majeure
Jihad,
Have a read, it may be of help - and the contractor will normally always have an implied duty to mitigate ANY delay.
http://tldb.uni-koeln.de/php/pub_show_document.php?pubdocid=126600
Two important points to think about is whether the clause says "....any of the contractors obligations..." or "....all of the contractors obligations..." must be affected in order for the clause to take effect. Secondly, what is the law of the contract as civil law and common law systems will take slightly differing views, but as can be seen from the paper, a fairly restrictive view is taken in all cases.