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When things get out of control

When things get out of control

Marketing Brief

In every older contract we used to see an exclusion of liability for losses caused by "acts of God". The rationale, of course, was that neither party could control certain events, so each party should carry its own insurance against losses caused by them. Of course, not all of these events are caused by weather, earthquakes and the like. Some are caused by shipping delays, other people's strikes and other causes outside the parties' control. The French term "force majeure" is used internationally to describe these events beyond the control of the parties, French having been the "lingua franca" of international law for many centuries.

I confess I am on holiday, though by the time you read this I'll probably be home. Maybe. And I'm in the middle of a force majeure event. You see, I'm on a river cruise through Europe. And guess what - it has been raining chats and chiens and the rivers are flooding. We are in the south of Germany heading for Budapest, and our boat cannot progress further upstream because the locks in the Main-Danube canal are flooding. So what happens? Now before I go any further, let me tell you that I am heaps better off than most. Our ship has an identical ship on the other side of the canal, and although it's a long way away by river, it's not that far by road.  So we are doing a ship swap, and heading along the Danube. Not so bad. But there is a boat moored next to us with a lot of unhappy campers who have no idea what is happening next.

Now force majeure is an interesting concept in relation to the Consumer Guarantees Act. The CGA guarantees for goods generally work because the Act specifies when the guarantees kick in, usually (but not always) after delivery or pickup. However we are all on a holiday cruise, with visits to towns and places of interest along the way, accompanied by too much good food and wine (we are stuck in the home of Nuremburger sausages - imho the best sausages, available in Auckland and Christchurch at least). So the food is good, the wine might well be better, and - but wait! The rest of it is services! And this is where it gets interesting. The CGA guarantee that the service will be supplied with reasonable care and skill is clearly not going to apply - the very best of skill on the part of our captain has got us this far with the tour on schedule. No doubt it applies to other cruises as well.  

But what about the guarantee of fitness for purpose? Now, there is an exclusion in the Act for force majeure causes of failure of the service to be reasonably fit for purpose. But what does this mean in real life? On this boat we have a classic case study. There is the boat swap, in a part of Europe where you can get to many attractions by bus. We are here because the captain anticipated the flood and changed his plans to get here where at least we can stay on the boat. Other tours have offloaded their passengers to suddenly expensive coaches and hotels  For us, it has meant getting on and off at weird places: I write this outside a refuse transfer station. Fortunately the wind has been in the right direction. Our tour director has burned much midnight oil organising buses for us to the places we were meant to go to, and our evening entertainers have travelled long distances to reach us. Maybe it will turn to custard in a few days, but so far, so good.  i could have done without a personal lesson in force majeure, though!

Rae Nield is a solicitor specialising in marketing law. This article is intended for general information, and should not be relied on as specific legal advice. You should consult a lawyer for advice relating to your own specific legal problems.

Rae Nield can be contacted at raenield@marketinglaw.co.nz.


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