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Dear All,
If a project is suspended for a period more than 60 days due to an accident ,whether the incident comes under
Force majeure since its beyond partys control
Regards
SV
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Hi Sankar,
I will make a few assumptions regarding the situation described by you:
1) By Statutory Authority you mean a government appointed body that regulates and administer safety (such as OSHA in US)
2) The worker who was responsible for the incident belonged to the Contractor.
3) The Contractor is the main contractor and responsible for the whole construction site
As you have mentioned that safety is the responsibility of the contractor, it means a number of things which can be divided into two main categories; 1) safety assurance (something like quality assurance) which will make sure that all the physical measures have been taken (such as railings, provision of safety gears etc.), safety training and 2) Safety implementation which may include supervision and vigilant watch by a qualified person or persons of all the operations and activities going on the construction site. So even if it was a the fault of a worker that resulted in an accident, contractor will be held responsible for that. In case the worker did not belong to the contractor, still it was contractor's responsibility as it would be contractor's responsibilty not to allow an untrained or unequipped person on the site. Another (rather rare) situation may be that all the due diligence was done by the contractor yet the worker did something stupid and unexpected in such a way that no one could have avoided the incident - still it is contractor's fault until the incident report testify that contractor had taken all the required measure and the incident took place due to an unsafe act of an individual.
So to answer you, it may be unfortunate for the contractor but the contractor will be held responsible. Now if it is taking too long to get the clearance from statutory authority then it will have to be determined how much time is normally taken by the authority in such situations. Only such amount of time that is beyond the normal practice should be awarded to the contractor as EOT. It is most likely not a force majeure. Force Majeure is defined as something beyond the control of anyone such as act of God.
Best Regards
Meraj Zia
Hi Sankar
That does seem to be a weird situation.
If the Contractor has responded to the cause of the accident and the work place is now safe there is no need to continue the suspension.
My advice is to engage the services of an independent Health & Safety consultant to give an urgent report.
If the suspension is not lifted then you can consider determining the contract - a step only to be taken after serious legal advice.
It is still not force majeur.
Best regards
Mike Testro
Sir,
Safety is responsibility of Contractor only.But accident happend due to an unsafe act by labour.But work suspension due to accident for this much prolonged duration is rare case . Contractor has done its best to maintain the all the safety standards required to execute the work.Such scenario whether Contractor is entitle for EOT for the suspended dutration ?
Hi Sankar,
If there is delay by the statutory authority, then apparently this won't be counted as a Force Majeure
However, depending on the Contract EOT clauses, Contractor can request an EOT against such delay if a delay by a statutory authority is a qualifying cause for an EOT
Karim
Dear Sankar,
Make it clear whether it is an incident or accident? Kindly Elaborate on the same. Who is responsible for this ? (whose mistake?) Contractor? Employer? or Any Third Party?..answer will depend on this.
As per your Contract who is responsible (who needs to take care of this kind of Risk), look out for the following clauses 1.excepeted risks, 2. Employer risks and 3.Contractor's risk, 5. Insurance related clauses and also check 6.Force Majure Clause 7.Prolonged suspension of Works and 8. Delay caused by Authorities. You may get a better idea. As mike said it may not come under force majure.
regards,
Satish
Hi Sankar
I do not understand why you are combining statutory delay with an accident.
Anyway - If the contractor has taken the risk of a delay by a statutory authority in issuing a permit then he has no grounds for an EoT.
Read the contract to see who has taken the risk.
In any case it is not a "force majeur".
Best regards
Mike Testro
Dear Sir,
Here the relevent event is Delay in receiving permissions from Statutory authority. The Contractor is trying their best to get permission.
Since the safety is fully the responsible of contractor ,whether he is entitle for EOT for this delay.Delay more than 60 days is not normal case due to an accident.Any possibility of classifying such event as Force majeure.
Hi Sankar
First check the insured risks - that should be a relevant event in most contracts.
It could also be your most direct route to payment.
Best regards
Mike Testro
Email: PPadmin@planningplanet.com
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