One of the most cited cases in this space is NYK Bulkship (Atlantic) NV v Cargill International SA [2016] EWHC 312 (Comm). In this dispute, a vessel was delayed due to port congestion, and the charterers claimed force majeure due to inaccessibility. However, the High Court ruled in favor of the owners: the force majeure clause lacked clear causative language, did not list congestion as a trigger event, and failed to meet the burden of proving impossibility of performance.
This case—along with others like Tandrin Aviation Holdings Ltd v Aero Toy Store LLC [2010] EWHC 40 (Comm) and Seadrill Ghana Operations Ltd v Tullow Ghana Ltd [2018] EWHC 1640 (Comm)—highlight a critical truth: the success of a force majeure claim often comes down to precise language, timely action, and strong documentation.
Key Risks That Undermine Force Majeure Clauses
- Vague Language: General terms like “events beyond control” lack specificity. Arbitration panels increasingly require precise, listed triggers.
- Weak Causation Links: You must show the event directly prevented contract performance—not merely delayed or complicated it.
- Late or Informal Notice: Failure to give timely and documented notice often voids the clause entirely, even in legitimate cases.
- No Minimum Duration Clause: Without a threshold (e.g., 48+ hours of disruption), short-term issues may not qualify.
- Lack of Supporting Evidence: Charterers and owners alike must maintain logs, formal notifications, and operational documents to defend their position.
What Should Be on File Before the Next Disruption
To safeguard your company in future disputes:
- Maintain Up-to-Date Clause Language: Review your force majeure language annually or after major market/geopolitical changes.
- Define Specific Events: Include examples like government intervention, port closures, labor strikes, war, and supply chain failure.
- Specify Causation & Duration: Ensure the clause states that the event must render performance illegal, unsafe, or impossible—not just uneconomic.
- Add Notice Requirements: Detail the required timeframe and method for notice.
- Implement a Documentation Protocol: Keep all logs, surveys, port status updates, and correspondence archived.
Strategic Tip for Legal and Chartering Teams
Force majeure clause reviews shouldn’t be reactive—they should be scheduled. Build a cross-functional audit rhythm involving operations, legal, and trading, and ensure fallback contract language is approved by counsel and aligned across charterparty templates.
Upcoming Webinar: Draft Smarter Clauses Before It’s Too Late
Join Haugen Consulting on April 29 for a live, expert-led webinar where we’ll break down:
- How real clauses failed in arbitration (and what could have saved them)
- VIP Strategic Clause Review in a live, interactive format
- What arbitrators actually look for in a force majeure defense
- What language to include now—before the next fixture is challenged
VIP strategy hour has limited space. Register now to secure your seat and gain real-world tools to protect your position.
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