• Frederick J. Kenney

07.02.2020 By: Marco Wölfli / Christian Doepgen

Artikel Nummer: 30607

High hurdles for force majeure

A new start at a traditional old venue. The Swiss Shippers’ Forum in Interlaken was designed mainly for shippers and freight ­forwarders, as well as for other interested parties. Speakers and panel discussions addressing force majeure met with great interest, as legal ­subtleties can make a big difference when it comes to making claims and to taking responsibility.



It’s always good for an industry congress to be caught up in the midst of the ­latest news. In the case of the SSC’s Swiss Shippers’ Forum, the conference’s focus on force majeure was almost a little too much to the point. The impact on logistics of the ‘Wuhan coronavirus’ grew ever larger in the course of the two-day meeting in Interlaken, thus providing the representatives attending the event with a perfect illustration of what force majeure can mean. The speakers at the Hotel Victoria-Jungfrau concentrated on past incidents, however, as their repercussions have already been analysed.



Rastatt and Genoa in court

Frank Wilting, a German lawyer who specialises in transport and forwarding law, shone a stimulating light on the ‘Rastatt case’, which saw a key north–south railway line blocked for several weeks in mid-2017. Wilting’s synopsis – “Rastatt doesn’t actually qualify for the category force majeure.”


It wasn’t an event that happened without any warning, as there had already been geological tremors before the actual incident occurred (a tunnel that was under construction collapsed). It remains to be seen whether infrastructure manager DB Netz will be held legally accountable. The court case is set to start in February.


A Genoa-based Italian lawyer, Enrico Mordiglia, has also not classified the collapse of the Morandi bridge in his home city in mid-2018 as force majeure. “Maintenance work on the viaduct had already been neglected for many years. It’s ­going to be very interesting to see how the courts assess the case.”


Giovanna Montanaro, a lawyer with the Zurich law office Wartmann Merker who specialises in transport law, said that quite a few factors have to converge for managers to be able to base their arguments on force majeure. “Lawyers like to argue that force majeure was in play, but the courts have very high requirements in such cases.” In Swiss law, an event has to be unforeseeable as well as extraordinary, and come on the scene from the outside with unavoidable force. So an avalanche hitting a lorry would be force majeure. The subsequent backlog on the road after it was hit by the avalanche would not.



A plea by an IMO lawyer

Legal expertise is also in high demand at the International Maritime Organization (IMO), whose director of legal and exter­nal affairs, Frederick J. Kenney, posed a crucial question concerning the implementation of IMO 2020 – “Where do we stand, one month after its introduction?”


25 reported incidents stick out from “wide-spread adherence to the rules”. Kenney’s conclusion was unreservedly positive. “We’re impressed by the industry’s implementation so far.” He also pointed out that these regulations have caused the IMO to be noticed by a global public for the first time in its 71-year history. “You must make the most of this pioneering role,” he exhorted his audience.