b'4American Journal of Transportation ajot.comForce majeure: a short-term fix for supply-chain emergenciesAfter facing unforeseen events like the Ever Given and COVID-19, the bigger issue is what supply chains will do to decrease risk and increase resiliency.By Peter Buxbaum, AJOTSupplychainsaroundtheglobemitigate damages by sourcing materi-aregovernedbycommercialcon- als from another supplier or making tracts that require parties to performalternate shipping arrangements. The certain acts, such as delivering goods,issue of mitigation may have led to supplies, and equipment, within spe- the decision to route some backlogged cific timeframes. What happens whenvessels around Africas southern tip, unforeseen events intervene to makeasHapag-Lloyddidforsixofits compliance impossible? twelve vessels idled as a result of the TheincidentinvolvingtheEverEver Given blockage. Given, the 20,000-TEU containershipWhenitcomestoCOVID-19, that was stuck in the Suez Canal mudsomecommercialcontractsforfuel for six days, provides a recent example.deliverieslisthealthdisasterssuch The blockage left over 400 other ves- asdisease,pestilence,andpandem-sels in the lurch, most waiting for theics, as force majeure events, but many Ever Given to be dislodged and somedo not, according to Barry Schaps, a makingtheirwayaroundsouthernstrategic partner at Stillwater Associ-Africas Cape of Good Hope. It tookates, a consultancy to the downstream several more days for the backlog to be(FIXcontinued on page 8) Two Svitzer tugs, Port Said 1 and Port Said 2, supported the recent refloating of Ever Given.cleared once the Ever Given was freed. The ultimate effects of the Suez snafuwilllikelytakesometimeto playout.Increasedportcongestion thankstolatearrivalsandafurther squeezeoncontaineravailability couldhaveanegativeimpacton supply chains down the line. Longer termwillbetheeconomicdamages suffered by companies, and the claims they are likely to make, as a result of the late arrival of cargo.TheCOVID-19pandemichas disruptedbusinessactivitiesonan evenmoreprofoundscale,upending commercialtransactionsandleading to a myriad of legal claims. The dis-position of many claims surrounding both situations will likely hinge on the applicability of force majeurea legal doctrine that can excuse parties from contractualobligationswhencircum-stances beyond their control intervene. Expertssaythatthedoctrinecould be applied even if a contract does not specify navigational problems or dis-eases as force majeure events. Going forward, supply chains must consider how they will cope with these kinds of extraordinary disruptions if and when they arise in the future.F orCeM ajeure and thee verg ivenTheEvergreenMarinereportthat the Ever Given was suspected of being hitbyasuddenstrongwind,causing the hull to deviate, suggests that force majeure will likely be invoked by parties attempting to wriggle out of contracts. Whenforcemajeurecomesintoplay, obligationsunderbillsofladingand charter parties could be suspended, said Rgis Broudin, global head of marine claimsat AllianzGlobalCorporate& Specialty, conceivably leading to ter-mination of contracts.Buildingconstructiondepends on timely deliveries, so force majeure willlikelybeinvokedinlitigation seekingdamagescausedbydelays that negatively impacted projects. In most cases, according to Eric Ruzicka, a partner at the international law firm Dorsey&Whitney,forcemajeure clauses will be silent on the specific question of whether shipping delays are excusable force majeure events.Courts considering similar claims havegenerallyheldthatextraordi-naryshippingdelaysmayconstitute forcemajeure,Ruzickasaid.But apartymakingsuchaclaimmust'