To date, there are no announcements on COVID-19 to be classed as force majeure
Another Evergreen related vessel got into trouble. The captain of the Italy-flagged Ital Libera passed away of COVID-19 onboard. Evergreen’s alliance partner Hapag-Lloyd in its advisory said force majeure had been declared, no Asian ports are accepting the vessel. The vessel had to divert to Italy first to repatriate the captain.
A move too soon?
Evergreen’s Italian unit Italia Marittima, which owns Ital Libera was found to have several COVID-19 cases onboard after departing Durban, South Africa for Asia. The vessel was quarantined for 14 days in Jakarta. With the captain’s passing, his repatriation comes first before Ital Libera continues its voyage in Asia. The severity of the pandemic resulted in almost air-tight border restrictions to contain the virus or prevent more imported cases. However, did the shipowner jump the gun by declaring force majeure?
Award-winning solicitor Dr Hassan Elhais described in his article which analyses the “Force Majeure Clause” in maritime contracts: “The Law describes ‘Force Majeure’ Clause as an individual concept capable of terminating the contract partially or completely. In a contractual sense, force majeure refers to an excuse used in any circumstance which has prevented the performance of any contractual obligation, wherein such event was not foreseeable at the time of signing the contract.”
Notwithstanding specific characteristics of this component may vary from country to country, the definition of force majeure is similar in almost all nations.
Typically, such is used to infer incidents out of man’s control, failing to fulfill a contract – typically weather-themed. This is not to say force majeure is a “get out of jail free” card for Mayday situations, but there are advantages for crew and all parties.
First of all, the crew remains entitled to wages, the voyage charter party will be terminated and the parties are not obliged to pay compensation. In cases related to the pandemic, industry players should be relooking at their positions given that the pandemic will eventually become endemic. It is anybody’s guess if the Ital Libera’s case will go before the judge.
Marine Online Media Team
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