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Force Majeure

13 replies [Last post]
Hemanth Kumar
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A Marble Block Was Inspected Jointly By The Contractor & Consultantt In Intaly
When It Was Brought To UAE for a Hotel Project for Processing (ie Cutting And Ploshing) a majour fissure was found which made the whole block useless.

it took another 4 week for another block sourcing,approval , shipment etc

we lost 4 weeks
can this time can be claimed under force majeure??
Informal response from client was NO!
any similer claim experiances ?

Replies

Samer Zawaydeh
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Dear Mike and H.,

Yes clause 4.12 can apply in this case.
The Contractor must notify the Engineer, and the Engineer shall make the determination. The Engineer must also review the tender documents in this case per requirements of FIDIC clause 4.12.

H., do you have the Engineer determination regarding this case?

Best Regards,

Samer
Mike Testro
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Hi All

Sounds to me like a classic FIDIC clause 12 - unforeseen physical conditions - it does not just apply to groundworks.

Best regards

Mike Testro
Hemanth Kumar
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We took the second time , to hit the supplier at head
Anoon Iimos
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but there’s always a hammer available on site i supposed?
Hemanth Kumar
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Hi Trevor
It Was An Internal Fissure

You Cant See What Is Inside A 8’X 6’X 6’ Marble Block
And X Rays Are Not Normal In Marble Selctions

Thanks For All


Samer Zawaydeh
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Dear Hemanth,

What Trevor said is valid. You need to know what your Contract is saying. You need to go through all the clauses and identify the items related to unforeseen conditions as well.

Best Regards,

Samer
Dieter Wambach
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Hemanth

So the customer was involved. As even with greatest experience you can’t exclude a risk for an inclusion in a block of marble, what does the contract say - apart from FIDIC? Is a discussion possible with the customer to get an agreement? Check the items Samer wrote. I would ask an advocate for advice.

But still I can’t really believe the four weeks project’s delay.

Good luck!

Dieter
Trevor Rabey
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Hemanth,
I was asking questions in order to get sufficient information to provide solutions. If you don’t want to have the conversation just say so and I have better things to do.
If contractor wants to claim Force Majeure he must have to identify the Force Majeure event that caused the mysterious crack to appear between the inspection at the quarry and the final result on the site. Otherwise, the marble was ok at the quarry but got broken en-route while in the contractor’s control. Or, the inspection failed to find the flaw which existed at that time. Prove that and you have a case.
Hemanth Kumar
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Dear Trevor
I was looking for solutions, not questions
inspection and approval of block by client at source was required as per contract (facilitated by contactor )

Dear Dieter
Customer approved the block at source

Dear Samer
Thank you Very Much
I will proceed with the points

Hemant
Trevor Rabey
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If a contractor is paid to source, procure, obtain, inspect, transport and install materials which meet a specified standard, and has control over that entire process, and has stated that he has the expertise to do it and takes responsibility for it, and that whole process falls apart, I would suggest that it is not Force Majeure.

Isn’t Force Majeure flood, fire, earthquake, tsunami, war etc?
Samer Zawaydeh
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Dear Hemanth,

Per FIDIC 1999, clause 19/1 In order to determine if the issue is Force Majeure or not, four items must be present:

1) Beyond the party’s control
Your case: yes

2) Party could not reasonably have provided against before entering into the Contract.
Answer: You need to prove that your % waste ordered was sufficient or over the industry norm.

3) having arisen, such party could not reasonably have avoided or overcome.
Answer: You need to prove that you remedy/ repair actions were the latest and it did not work.

4)not substantially attributable to the other part.
Answer: valid in your case.

If you have the necessary supporting documents, then yes you can consider it as force majeure since the four conditions are all present.

Best Regards,

Samer

Dieter Wambach
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Hemanth
If you work with marble, you know there is a big risk for inclusions. Why didn’t you include the customer into inspection - would have been a nice journey to Italy for him as well.
What I can’t understand: Italian marble in general is used for decoration purpose - can be mounted later. Did you really have to stop all work for those 4 weeks - strange?

Dieter
Trevor Rabey
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Does client say why?
Do you think should be yes? Why?