Lloyd's Maritime and Commercial Law Quarterly


Edwin Peel*

MUR Shipping v RTI
It is not uncommon for a force majeure clause to contain wording the effect of which is that it cannot be relied upon to excuse a failure to perform if the event or state of affairs, or its effect on performance, could have been overcome by the exercise of “reasonable endeavours”. As has been pointed out,1 such a provision may just make express what is implicit in other parts of the force majeure clause, eg whether the event is “beyond the control” of the party affected (it is not beyond their control if it could have been avoided by taking reasonable steps) or whether the necessary causal link is met (performance is not “prevented” by the event in question if it was still possible by the taking of reasonable steps).2 Where it is made express that the party affected must make “reasonable endeavours”, the same problem emerges in this context, as in others, as to what is meant by “reasonable”.3 In the context of a force majeure clause, it is now accepted that such an obligation requires the party in question to compromise their own commercial interest to some extent,4 but just how far they are required to go will depend very much on the particular circumstances of each case. In MUR Shipping BV v RTI Ltd 5 the Court of Appeal dealt with a more fundamental point of principle, namely whether the requirement of overcoming by reasonable endeavours extends to the party affected having to accept some form of non-contractual performance by the other party. At first instance,6 Jacobs J held that it does not, but a majority of the Court of Appeal held that no such restriction was necessary, as had been the conclusion of a Tribunal which first considered the matter in arbitration. A divided Court of Appeal which reversed the decision of the High Court—which had itself departed from the conclusions of a Tribunal on a point of


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