FIRMS URGED TO MAKE SURE CONTRACTS ARE WATER-TIGHT TO PREVENT THEM GETTING INTO DEEP WATER
BUSINESSES could be left high and dry if they rely on God as a defence during recent disasters like flooding.
[UKPRwire, Wed Sep 19 2007] Companies countrywide wide are now counting the cost of the flash floods that hit many parts of the UK this summer, which in some areas were the worst on record.
But businesses and suppliers are being urged to check their contracts as freak weather conditions become more common place.
Although the waters have now receded many businesses face legal conflict after failing to fulfill contracts due to extreme weather – claiming an Act of God. That defence may no longer wash due to regular flooding.
Bad floods may not be enough for a company to avoid its duty to complete a contract as our weather patterns change and forecasting techniques improve.
Nicholas Marshall, of Marshall Glover Solicitors (www.marshallglover.com), explained: “If a business has a contract to deliver some goods and they fail because of flooding – which had either affected the goods or the roads on which they would need to travel on to deliver them – they may not be able to escape liability by claiming that the consignment was damaged, destroyed or delayed because of an Act of God.
“A customer could say that despite the flood the onus is still on the contractor to deliver the goods. It’s a tough call on their part but they may demand that they source goods from another supplier at their cost.
“The Act of God defence goes back hundreds of years and by the 16th Century it was recognised in English common law in transportation matters. English law generally places responsibility on a carrier for the goods it transports but a carrier might not be liable if the harm to the cargo or its delay is caused by an Act of God, even if everything is destroyed.
“The onus in such a situation is on the carrier to prove it was an Act of God. The courts have made it clear that the Act of God defence is only available when there is a natural occurrence that is unusual and could not have been anticipated. If a carrier is going to claim that a natural occurrence such as a flash flood, severe rain storm or blizzard etc. caused the problem, the burden will be on the carrier to establish that it was of such magnitude as to be unusual and could not have been reasonably anticipated.
“As our weather changes and some of the scenes we have seen this year become more common, the goalposts could shift where magnitude is concerned and the courts may change their stance. I would urge contractors to check their contracts to make sure they are watertight in the event of flooding or other meteorological disasters.”
Generally, the courts look at four factors in determining whether an Act of God defence will shield a carrier from liability:
1. Severity of the natural occurrence
Was it unusual and of significant magnitude?
2. Reasonable predictability
With modern weather forecasting and media reports, could the carrier have avoided the problem?
3. Lack of human agency
Was it truly the natural occurrence that caused the injury to the goods and not some human error, with the natural occurrence only making the situation worse?
4. Reasonableness of any precautions
Could the carrier have avoided the problem by taking action to protect the goods?
ENDS
For further press information or to arrange an interview please contact Andy Barker or Andrea Thurlbeck at Results Network on 0191 519 7268.
Del.icio.us
Digg
Furl
Blinklist
Reddit