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Force Majeure

8 replies [Last post]
Sankar Vijayan
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Dear All,

If a project is suspended for a period more than 60 days due to an accident ,whether the incident comes under

Force majeure since its beyond partys control

Regards

SV

Replies

Meraj Zia
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Joined: 4 Jan 2011
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Hi Sankar,

I will make a few assumptions regarding the situation described by you:

1) By Statutory Authority you mean a government appointed body that regulates and administer safety (such as OSHA in US)

2) The worker who was responsible for the incident belonged to the Contractor.

3) The Contractor is the main contractor and responsible for the whole construction site

As you have mentioned that safety is the responsibility of the contractor, it means a number of things which can be divided into two main categories; 1) safety assurance (something like quality assurance) which will make sure that all the physical measures have been taken (such as railings, provision of safety gears etc.), safety training and 2) Safety implementation which may include supervision and vigilant watch by a qualified person or persons of all the operations and activities going on the construction site. So even if it was a the fault of a worker that resulted in an accident, contractor will be held responsible for that. In case the worker did not belong to the contractor, still it was contractor's responsibility as it would be contractor's responsibilty not to allow an untrained or unequipped person on the site. Another (rather rare) situation may be that all the due diligence was done by the contractor yet the worker did something stupid and unexpected in such a way that no one could have avoided the incident - still it is contractor's fault until the incident report testify that contractor had taken all the required measure and the incident took place due to an unsafe act of an individual.

So to answer you, it may be unfortunate for the contractor but the contractor will be held responsible. Now if it is taking too long to get the clearance from statutory authority then it will have to be determined how much time is normally taken by the authority in such situations. Only such amount of time that is beyond the normal practice should be awarded to the contractor as EOT. It is most likely not a force majeure. Force Majeure is defined as something beyond the control of anyone such as act of God.

Best Regards

Meraj Zia

Mike Testro
User offline. Last seen 20 weeks 5 days ago. Offline
Joined: 14 Dec 2005
Posts: 4407

Hi Sankar

That does seem to be a weird situation.

If the Contractor has responded to the cause of the accident and the work place is now safe there is no need to continue the suspension.

My advice is to engage the services of an independent Health & Safety consultant to give an urgent report.

If the suspension is not lifted then you can consider determining the contract - a step only to be taken after serious legal advice.

It is still not force majeur.

Best regards

Mike Testro

Sankar Vijayan
User offline. Last seen 28 weeks 1 day ago. Offline
Joined: 21 Sep 2010
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Sir,

Safety is responsibility of Contractor only.But accident happend due to an unsafe act by labour.But work suspension due to accident for this much prolonged duration is rare case . Contractor has done its best to maintain the all the safety standards required to execute the work.Such scenario whether Contractor is entitle for EOT for the suspended dutration  ?

Karim Mounir
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Hi Sankar,

If there is delay by the statutory authority, then apparently this won't be counted as a Force Majeure

However, depending on the Contract EOT clauses, Contractor can request an EOT against such delay if a delay by a statutory authority is a qualifying cause for an EOT

Karim

Satish Kumar
User offline. Last seen 4 years 9 weeks ago. Offline
Joined: 8 Feb 2010
Posts: 56

Dear Sankar,

Make it clear whether it is an incident or accident? Kindly Elaborate on the same. Who is responsible for this ? (whose mistake?) Contractor? Employer? or Any Third Party?..answer will depend on this.

As per your Contract who is responsible (who needs to take care of this kind of Risk), look out for the following clauses 1.excepeted risks, 2. Employer risks and 3.Contractor's risk, 5. Insurance related clauses and also check 6.Force Majure Clause  7.Prolonged suspension of Works and 8. Delay caused by Authorities. You may get a better idea. As mike said it may not come under force majure. 

 

regards,

Satish

 

Mike Testro
User offline. Last seen 20 weeks 5 days ago. Offline
Joined: 14 Dec 2005
Posts: 4407

Hi Sankar

I do not understand why you are combining statutory delay with an accident.

Anyway - If the contractor has taken the risk of a delay by a statutory authority in issuing a permit then he has no grounds for an EoT.

Read the contract to see who has taken the risk.

In any case it is not a "force majeur".

Best regards

Mike Testro

Sankar Vijayan
User offline. Last seen 28 weeks 1 day ago. Offline
Joined: 21 Sep 2010
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Dear Sir,

Here the relevent event is Delay in receiving permissions from Statutory authority. The Contractor is trying their best to get permission.

Since the safety is fully the responsible of contractor ,whether he is entitle for EOT for this delay.Delay more than 60 days is not normal case due to an accident.Any possibility of classifying such event as Force majeure.

Mike Testro
User offline. Last seen 20 weeks 5 days ago. Offline
Joined: 14 Dec 2005
Posts: 4407

Hi Sankar

First check the insured risks - that should be a relevant event in most contracts.

It could also be your most direct route to payment.

Best regards

Mike Testro