WHETHER "REASONABLE ENDEAVORS" EXTENDED TO ACCEPTING PAYMENT IN NON-CONTRACTUAL TERMS
By Advocate Manisha Tiwari
Maritime & International Trade Lawyer
LL.B, LL.M Maritime Law (Silver medalist)
PGD in Business & Corporate Law
Cell: +91 77380 80815
G-203 Akruti Orchid Park Andheri East, Mumbai, Maharashtra, India 400072
CONTRACT OF AFFREIGHTMENT: FORCE MAJEURE EVENT: US RUSSIAN SANCTIONS PREVENTED PAYMENT OF FREIGHT IN US DOLLARS: WHETHER "REASONABLE ENDEAVOURS" EXTENDED TO ACCEPTING PAYMENT IN (NON-CONTRACTUAL) EUROS INSTEAD OF (CONTRACTUAL) US DOLLARS: IMPACT OF SANCTIONS ON SHIPPING CONTRACTS THAT INVOLVE RUSSIAN AND RELATED PARTIES.
US sanctions on Russia have seriously inflicted payment under international trade and shipping, mostly dominated in US dollars, involving the US banking system, especially secondary sanctions that impose penalties on persons and organizations not directly subject to its legal jurisdiction. In other words, where the contract doesn’t expressly provide an option for payment in a different currency and/or in the absence of such express clause if parties to the contract unable to reach any consensus where sanction imposed after the execution of contract, sanction may prevent performance. A common confusion in the industry is whether, by virtue of the expression “reasonable endeavours” under Force Majeure clause do a party is required to accept non-contractual (e.g., accepting payment in (non-contractual) € instead of (contractual) US$) performance in order to circumvent the effect of a force majeure or similar clause.
In a most welcoming decision in MUR SHIPPING (Owners) V RTI LTD (Charterers) English Commercial Court on 4th March 2022, it has been clarified that the expression “reasonable endeavors” under Force Majeure clause does not contemplate that a party is required, to accept non-contractual performance in order to circumvent the effect of a force majeure or similar clause. The judge also accepted and held that if the loss of a contractual right turns purely on what is reasonable in a case, then “the contractual right becomes tenuous, and the contract is then necessarily beset by uncertainty which is generally to be avoided in commercial transactions.”
Albeit, in this case, a dispute arose due to sanctions imposed on Russian entities in 2018, however, the decision & its ratio is duly applicable to the interpretation of the expression “reasonable endeavor” to overcome the force majeure situation in light of the recent imposition of further sanctions on Russia as a result of the ongoing crisis in Ukraine.
Brief of the case, a claim arose out of a dispute between the Owners and the Charterers in relation to a Contract of Affreightment (the “COA”), which the parties entered into in June 2016. In April 2018, the US imposed sanctions on the Charterer’s parent company, which led the Owners to invoke a force majeure clause under COA. The Owners claimed while invoking the force majeure clause that if they continue with the performance of the COA, it would have an amount violation of US sanctions because sanctions has prevented dollar payments, and COA expressly required payment in dollar & not in any other currency. On the other hand, the Charterers claimed that the parties would have smoothly performed the under the COA in terms of the reasonable endeavored owner would have accepted the Charterer’s payment proposal to pay Euro and then being a non-US entity (Owner’s a registered company under the law of Dutch), would have smoothly performed the contract without running any risk. However, the Owners insisted that the freight in the COA was to be paid in US dollars, and if monetary transfers from the Charterers to the Owners were restricted, the Owners could not be expected to load and discharge without first receiving payment in accordance with the terms of the COA. Ultimately, the Charterers obtained alternative tonnage and brought a claim for the additional costs incurred.
The tribunal accepted that the effect of both "primary" and "secondary" sanctions was drastic. Thus, normal commercial counterparties would be frightened of trading with the party that has been sanctioned, bank finance was likely to be frozen, and underwriters would be reluctant to insure normal trading activities. The tribunal further accepted that sanctions had an impact on the ability of the Charterers to make US dollar payments to the Owners, but the tribunal decided in favor of the Charterers on the ground that the Owners' case on force majeure doesn’t succeed on one point, the point on which it failed was that applying the terms of the force majeure clause, it could have been overcome by reasonable endeavors from the Party affected, the reason the tribunal considered that the exercise of reasonable endeavors required the Owners to accept a proposal made by the Charterers to make payment in €. The tribunal further explained the reason as it was a "completely realistic alternative" to the payment obligation in the COA, which was to pay in US dollars. The Owners could have adopted this alternative with no detriment to themselves because the Charterers had made it clear in correspondence that they would bear any additional costs or exchange rate losses in converting € to US$, and also because a number of payments were, in fact, made by RTI in € and converted on receipt by the Owners' bank, with no evidence that the Owners rejected those payments.
The Owners appeal against the award under section 69 of the Arbitration Act 1996 on a question of law arising out of the Award. The appeal raises a short question of law: whether reasonable endeavors extended to accepting payment in (non-contractual) € instead of (contractual) US$.
The English Court decided in favor of the Owners and ruled that the obligation to pay the freight in the agreed contractual currency is an important contractual obligation. If the contract permits payment in a currency other than US$, then the present argument does not arise at all i.e., there would be no force Majeure in the first place itself. If, however, the contract requires payment only in US$, the consequence would be that the Owners could properly reject a non-contractual payment and require the Charterers to perform according to the COA. Non-performance of the specific freight payment obligation would be non-performance of a significant obligation under the contract and for the reasons set out above, the Owners'appeal succeeds, and the Award should not be upheld.
Similarly, this point comes in some other contexts as well. For example, if cargo is destined for a port in sanctioned or war zone country, or any other place where any Force Majeure incident is prevailing, it will possibly cause a very long waiting until war/ Force Majeure/sanction ceases to exist or get lifted. In such an event, the question arises as to whether owner/charterer (as the case may be) entitled to insist discharge of the cargo at any nearby alternate port and if yes, who will be liable of the associated cost. The second question that arises here is whether we can hold charter or vice versa owners responsible for the losses arising from their refusal to discharge at any alternate port. Albeit the fact of the above case is totally different but the reasoning of the decision will through light to understand this different scenario; here concerned party may insist on discharging the cargo at any nearby alternate port, which is the only realistic alternative available before that party and which could have adopted with no detriment to other party, however, that party can’t claim it as a contractual right or entitlement under the contract especially in the absence of any express clause to this effect under the contract. As a general principle of law, any change will amount to an alteration of the agreed terms and conditions under the contracts. Hence, the question as to if discharge at any alternate port is allowed or accepted, then the question as to at whose risk or cost will majorly rely on the contractual terms, such as if the contract provides any provision to this effect and/or party who position is dominant under the contract plus other prevailing circumstances.
Conclusion: It is clear from the above that reasonable endeavors do not oblige parties to accept non-contractual performance, and at the same time, sanction doesn’t not prevent parties from varying their contractual terms provided they mutually agree to do so. In other words, liberty is available to the parties to agree otherwise if they mutually agree to vary their contractual terms and mauver any rough situation. While doing this, it is pertinent to note that parties need to take all due diligence & precautions. Therefore, when such clauses trigger, the test provided is simply to identify what performance exactly is required under a contract & whether the event prevents that performance.
Disclaimer: The above is general information for understanding purposes and in no manner can be considered legal advice; hence, should you have any doubts please contact expert.