Rain - force majeur, act of God? 1

[Zambo]

I'm working on a project, non-standard conditions of contract. For "bad weather" as the contractor we are referred to a clause covering force majeur (which includes acts of God). But is unseasonally heavy rain covered by such a clause? Of course maybe the contractor has to prove the rain has been heavier, or longer than usual over a period of years. But is there any grounds for an owner just to reject, claiming it is not a force majeur, or act of God event?

 

[paddingtongreen]

That is a question for a lawyer.

Michael.
Timing has a lot to do with the outcome of a rain dance.

 

[Zambo]

Well it could be a question for a lawyer, but usually for contractors lawyers are a last resort. I think the question would be appropriate for an engineer with experience in contractual claims/disputes.

 

[dik]

Best to talk to the owner and tell him that you have tried to mitigate the construction due to extraordinary rainfall but that you are falling behind because of it. If he is understanding and reasonable, then you should have little problem. If the discussion doesn't work, then send him a letter stipulating same. It's when things get unreasonable, then it's a matter to get some advice from your/a lawyer and find out what you can do without getting the lawyer involved.

Case law is made from 'unreasonable' actions...

Dik

 

[Zambo]

"case law is made from unreasonable actions" thanks dik nice point.

In fact in this case the client doesn't care if he's reasonable or not he has the money so he says no. But the rainfall records show that rain is 150% higher than normal. And although it may be the client's own in house form of contract all the usual conditions are there and there is no reason that they should be seen to be particularly onerous for a contractor.

 

[bridgebuster]

I was resident engineer on a bridge job that had a special provision stating no time extension but the standard specs did allow for force majeur. We had a similar situation of heavy spring rain. The contractor pulled out the official rainfall records for the past 10 years and was able to get a one day extension.

If there's no peaceful way to settle it put the owner on record that you're filing a claim and you'll see him in court when the job is over.

 

[cvg]

quote from wikipedia

For a defendant to invoke force majeure in French law, the event proposed as force majeure must pass three tests:

Externality
The defendant must have nothing to do with the event's happening.

Unpredictability
If the event could be foreseen, the defendant is obligated to have prepared for it. Being unprepared for a foreseeable event leaves the defendant culpable. This standard is very strictly applied:

CE 9 April 1962, "Chais d’Armagnac": The Conseil d'Etat adjudged that, since a flood had occurred 69 years before the one that caused the damage at issue, the latter flood was predictable.

Administrative tribunal of Grenoble, 19 June 1974, "Dame Bosvy": An avalanche was judged to be predictable since it had an antecedent of half a century past.

Irresistibility
The consequences of the event must have been unpreventable.

150% higher than normal probably may not qualify as "force majeure" in my opinion - the flooding is predictable - that is - flooding of this magnitude occurs on a fairly regular basis and in any given year there is a reasonable chance of it happening. However I don't know if the consequences of the flooding were preventable. If you can prove that there was no reasonable way to protect from damage, you might have a case.

 

[dik]

You need a legal opinion... without jumping in with both barristers blazing...

If the client is unreasonable and you have done things to mitigate delays... both positive. In our locale, courts tend not to favour 'unreasonable'.

It's not the thing that a lawyer could guess, but he would likely have a better idea of the outcome than I would. Even in Canada, we rarely get a unanamous (sp?) decision from our Supreme Court...

Dik

 

[Bobber1]

I think you should attribute this to global warming. Since everybody just recently "discovered" this, it passes the test of never having been experienced in the past.

 

[CTW]

I guess anyone has the right to reject this situation if they view it as not falling under force majeure. But force majeure covers unforeseen circumstances beyond each party's respective control. I would say 150% higher than average rain is beyond anyone's control. It's natural for the owner to want the work completed as scheduled, but rain cannot be helped and they're not being reasonable. But I don't know the owner's side of the story for taking that position.

How is anyone supposed to complete their respective work outdoors if it's raining? Not only are there safety issues associated with working in the rain, but quality will suffer too.

It's probably worth speaking to a lawyer for some feedback. Threatening to lien the project sometimes brings the owner to his senses.

 

[SlideRuleEra]

If the Contractor is talking in "generalities" about the weather it will probably get him nowhere. The Owners that I have represented in these situations need to see the details. Get the Weather Service records for the closest, most representative location. Compare the Contractor's records for total rainfall for the period of interest with the total shown in the official records.

Also, have the Contractor prepare a day-by-day summary of jobsite weather and how the rainfall affected his work. (For example, heavy rain on an average of say, once every three days could make ANY earthwork impractical). If the Contractor does not have (or have access to) daily jobsite weather records, then "proving" his case directly to the Owner will likely be very difficult.

If the Owner rejects this type of presentation, then it is time for the lawyers.

http://www.SlideRuleEra.net

http://www.VacuumTubeEra.net

 

[TenPenny]

When you say the rain is 150% higher than normal, you're saying 2.5 times as much rain as normal? How often has this amount of rain happened in the past, say, 50 years?

That would be helpful to bolster your case. If it's that much more than normal, but has still happened every 5 or 10 years, then you wouldn't have much of a case.

 

[TXStructural]

A 100 year flood is the flood which will likely not be exceeded in 100 years, not one which occurs at 100 year intervals. Dallas has two 100-year floods in three years (IIRC 1988, 1990).

Rain of any amount up to the 100 year rainfall/flood is probably not only predictable, but should be expected.

"Heavier and longer than usual" is probably not a reasonable criteria for saying "we had no idea this could happen during the course of this contract."

 

[BigH]

I thought that the 100 year flood would be defined along the lines of having, say, less than a 10% chance of being exceeded in 100 years (similar to earthquake events) - but then again, . . . I think that SRE gave good advice - if there are no records - hard facts that the rainfall is significantly higher than normal and the economic/time loss, he would have little legs to stand on. I might put forth that it isn't necessarily to point to the "average" rainfall, say over 100 years - but in looking at trends over the last 10 years - how does the rain stack up? If one area is having a drought for the last 5 years - it is not necessarily foreseeable that it wouldn't continue for a one year construction project - might wish to look at the Farmer's Almanac, though . . . .

 

[cvg]

100-year flood has a 1% chance of being exceeded in any given year.

Even if the additional rainfall was predictable, which it certainly was. The 3rd criteria "consequences of the event must have been unpreventable" is the legal condition that might be more worthwhile to pursue. If there was no "reasonable" way to prevent the damages to the project or to the contractor, than you might have a legal defense. A reasonable way would be for the contractor to ask and the owner to grant additional days to the schedule to account for the lost time. If it was flooding that caused the damage, than temporary protective works built to industry standards should have been used.

 

[dik]

a 100 year flood has the chance of being exceeded 1 time in 100 years...

doesn't mean you can't have two of them next week...

Dik

 

[rowingengineer]

a FAQ on stormwater events return periods faq162-1561.

Then length of rain fall should also be considered not just the amount. intermit rain for 100days of the year is normally consider worse than a flood for 1 day in my region, however we have a 4 year flood cycle in my region.


An expert is a man who has made all the mistakes which can be made in a very narrow field

 

[paddingtongreen]

To clarify, I meant that you need a lawyer's opinion, not that you start a guns blazing law suit. Engineers, generally, have only anecdotes based on their own experience, the right lawyer has the jurisdictional records available.

Michael.
Timing has a lot to do with the outcome of a rain dance.

 

[valleyboy]

From my understanding of UK contract law, the Contractor needs to demonstrate that the wet weather encountered which is the reason for the extension of time is exceptional for the period - usually by reference to rainfall records from the Met Office.

At the back of my mind, I had in mind that contract preliminaries were not payable for such EOT - but you would need to verify this with somebody in the legal profession - its has been a little while since I have dealt with any site supervision work.

 

[vandede427]

engineers can work while it rains.