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Is it time for everyone to admit that global warming is upon us? If so, "Act of God" or Foreseeable risk?
The more frequent occurrences of natural disasters have certainly led to safety concerns by many ship owners. 2017 saw a trio of super-strong hurricanes flatten the Caribbean and US Gulf Coast, each storm causing tens of billions of dollars in damage. Similarly, earthquakes in Mexico and Iraq saw a combined loss of over 1000 lives and the worst floods in a decade poured over South Asia. For this reason it is natural to wonder if these disasters fall under the "Act of God" defence.
This is one of the exceptions available to a common carrier under the Hague/Hague-Visby Rules and English Law.
But in reality, is this defence still in existence.?
The English Law provides no clear definition - "Act of God" is historically literally construed. It is usually understood to be an inevitable accident caused by natural force and without human agency. There is no requirement for "foreseeability", but there has been no case record of a carrier attempting to reply on the "Act of God" defence in decades.
However, the matter gets more complicated under Chinese Law, where the "Act of God" defence is more frequently relied upon by the carrier.
"Act of God" is a defence available under the China Maritime code ("CMC"), which follows the doctrine of the Hague-Visby Rules, and governs all maritime matters. However, this defence is customarily treated in the same way as a Force Majeure event under the Chinese Contract Law, which only applies in the absence of express provisions under the CMC in a shipping dispute.
Under the Chinese Contract Law, the three characteristics of a Force Majeure event are unpredictability, inevitability and uncontrollability. Thus, when an "Act of God" defence is assessed under these criteria, it will be extremely difficult for a carrier to overcome the first hurdle: unpredictability. Given the accuracy of weather forecast these days, many natural phenomenon CAN be predicted.
It is no surprise then that the number of cases in China where a carrier successfully defends his case using the "Act of God" defence is minimal.
So what is our suggestion?
The carrier should expressly list out the exceptions (for example, typhoon, flood etc.) to form his own defence, in order to avoid being caught by the definition of Force Majeure under Chinese Law.
In other words.do not just leave it in God's hands!
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