1. What is 'force majeure'?

This article aims to review 'force majeure' and its relation with the ship owner's liability in this opportunity. There must be no opposition against saying that the Great East Japan Earthquake or the Hanshin Earthquake is an unprecedented natural phenomenon. However, we could not say at instant, "the ship owner shall not be liable to the Earthquake and thus to its result because it is force majeure ". In a particular case where the ship owner's liability is an issue, 'force majeure' means an event or effect that can be neither anticipated nor controlled^[1] . Even if an event itself cannot be anticipated or controlled, it cannot be called as 'force majeure' if its effect or loss/damage could be foreseen and avoided. If an event or effect could be foreseen or avoidable, there would in general be fault and based on such fault, the ship owner would be liable to loss/damage caused by such fault. In these terms, 'force majeure' and 'fault' is two side of the same coin. Thus, whether any event or effect should be 'force majeure' will depend on whether such event or effect could be foreseen or resisted in a particular circumstance of the case and whether one should assume duty of care to foresee or control such event or effect.

2. Proof of 'force majeure' vs. 'fault'

On the stage of actual legal action or claim, the claimant (plaintiff) asserts the fault on the side of the ship owner, while the ship owner (defendant) asserts force majeure. In tort claims, the plaintiff shall prove the fault, while in claims for breach of contract the defendant shall prove non-fault or force majeure. However, in an actual procedure or step for legal actions or claims, the party's position would change and the burden or necessity to submit evidence would shift from one party to the other, depending on the nature of the event, which is asserted to be 'force majeure'^[2].

For instance, if a ship collided with and gave damage to the other ship or facility immediately or shortly after the tsunami arisen out of the Great East Japan Earthquake, no fault on the side of the ship owner or the crew is presumed, and the plaintiff should work on showing that there was a fault on the side of the crew or the ship owner.

In another case where the cargo of fish meal became wet during the voyage but was packed into a container with excessive moisture, it is difficult to imagine that the carrier could foresee or avoid the wet damage to the cargo, and the court would seek the plaintiff's activities to prove the defendant's fault^[3].

If however an incident occurred in the circumstances in general where the said incident would not happen without fault, the ship owner should work on proof for 'force majeure'='non-fault' or 'no-causation.'

In a case where a ship was capsized in a rough weather and the crew missed, the court held that the defendant's proof for 'force majeure' was not sufficient. The court reasoned that, though it could not identify the cause of the incident, it could presume that there should be some fault on the side of the defendant. The court was led to this conclusion on its recognition that the 'rough weather' could usually be foreseen and should not yet be called 'force majeure'^[4]. In case where the unusual chopping seas capsized the ship, but still such chopping seas could be anticipated in that area or situation, the court fully reviewed all action of the ship prior to the accident, and found that there was a room for her to avoid the area where the chopping seas were anticipated and that there was a fault^[5].

Further, in a case of carriage by sea, the cargo became wet with the rough weather of the wind force 7 to 9, which was foreseeable in that season and area, the defendant should be demanded to make a proof for the peril of the sea, Act of God or any other fact to exempt the defendant^[6].

3. Causation between force majeure and the incident

If the Act of God with the extraordinal nature causes the incident and the damage in its natural consequence, the ship owner will be exempted, since it could usually not be foreseen or controlled^[7]. However, not in all such cases, the court would find the Act of God to be the cause of the damage/loss^[8]. The court would fully review the fact sequence if the defendant could foresee or avoid the event as asserted as the Act of God.

In the court procedure, where the issue is the Act of God, 'force majeure'or no-fault, the court will examine in detail the fact sequence and its circumstances before the incident. Also, the court will review if the incident was caused by the fault even if that fault is found. The ship owner would be accused only if its fault caused the incident. The review of the cause→causation→result is the factual issue, but very complicated. It would necessitate thorough investigation and evidence collection. On the other hand, there is always a risk that the court would find the facts contrary to those the ship owner recognized. Let me take examples.

In 1996, the forwarder received the machine for export, and temporarily stored it at a warehouse in Kobe before shipping^[9]. The typhoon caused the abnormal high tide (3rd highest in the history, and the wide area flooded in Kobe), which made the cargo wet with the flood. The court reviewed the conditions of the cargo storage, the information re typhoon and high tide, how the forwarder obtained those information, how they respond, any alternative to respond to the flood, etc. The court then found the unforeseeability of the abnormal high tide, and found that the forwarder could not avoid the flooding of the cargo^[10]

A ship tried to leave a port of Hachijo Island due to rough weather, when her anchor was entangled with a underwater rock (not shown on the chart). She lost her maneuverability and went aground and sank^[11] . The court reviewed how she started and kept anchoring, how the weather became worse and the ship obtained the information, when and how the ship determined the departure, how she maneuvered the departure and how she found entangled anchor and whether she could have found it earlier. The court denied the fault on the side of the ship, and found 'force majeure'.

4. Error in navigation/ management of ship and 'force majeure'

It is the basic principle that 'force majeure' or 'no­fault' should be found not only for the ship owner or the carrier itself but for their employee, such as seamen^[12]. The exemption under Hague or Hague­visby Rules for an error in navigation or management of ship originally came from the understanding in general that the ship owner or the carrier on the shore could not foresee or prevent well those errors, and thus the Rules thought such to be a sort of 'force majeure'. This is a sort of legal system adopted to share liability between the parties, taking account of the prevailing circumstances in general. And therefore, even if such circumstances have changed by virtue of the modern technology, by which the ship owner could control the seamen more, the ship owner would be exempted as far as the effective cause of the accident is found as their error in navigation. In case of the carriage overseas a critical issue would be the cause of the incident was error in navigation or something else among the chain of the facts and events leading to the incident.

For instance, a ship was trying to leave the anchorage of Kashima port due to rough weather, but went aground since she could not heave up the anchor and lost her maneuverability. The court examined the details of the fact sequence and situations leading to the incident, such as the conditions of the ship, her engines and equipment, the situations of her entering and staying the port, how she obtained the weather information and how the weather changed, when and how the ship decided to leave the port, and her actions in detail thereafter until her total loss. The court found that the cause of her total loss was the delay of the master's decision to leave the port^[13], which is the master's error in navigation, and the ship owner was found as exempted from its liability for the loss of the cargo. If, however, the other fact (for instance, the defect of the main engines at the commencement of the voyage) were found as the cause, the exemption due to an error in navigation might not necessarily be applied. There were the other ships in the same season which went aground when they were trying to leave Kashima Port due to the bad weather, and in those cases as well, the fact details leading to the grounding were fully examined, and no claim against the ship owner for the cargo loss arose, maybe on the understanding that the grounding was caused by the delay (error in navigation) in the decision to leave the port.

5. Ship owner's liability in 'force majeure'

There are cases where the ship owner is liable to the incident even if it occurred due to 'force majeure'. In the Great East Japan Earthquake, it became an issue whether the ship owner should be responsible for the ship's oil spill and its cleanup/prevention or for the removal of the wreck.

The Law for Compensation of Damage by Oil Pollution from Ships (hereinafter, 'LCDOPS' ) (corresponding to 1992 CLC/FC) provides for the strict liability of the ship owner for the oil pollution damage, and exempts the ship owner only in cases where the pollution is caused by (i) an act of war, hostilities, civil war, insurrection, (ii) a natural phenomenon of an exceptional, inevitable and irresistible character, (iii) a third party's intentional act or omission, or (iv) the government's or authority's negligence for the maintenance of lights or navigational aids^[14], The Law defines a sort of 'force majeure'(the above (ii) very narrowly), and it is submitted that it could be applied only to a sudden eruption of underwater volcano^[15] or a fall-down of satellite, In usual tort or contract cases, the ship owner would be exempted more widely, but such exemption and thus the scope of 'force majeure' was narrowed down in oil pollution cases, Further, under the Law for the Marine Pollution and Marine Casualty Prevention (hereinafter,'LMPMCP'), the ship owner shall take the pollution prevention measures^[16], whether or not the ship owner should be exempted for the pollution damage under the above LCDOPS, but in case where the ship owner shall be exempted from liability for oil pollution damage under the same law^[17], the ship owner need not indemnify the cost for the prevention measures to supplement the ship owners' response taken by the Coast Guard.

The wreck removal is different. The ship owner would be responsible for the wreck removal under the said LMPMCP, only if the wreck would give significant obstacles to keep the marine environment even after the sufficient oil prevention measures^[18]. The ship owner would be obligated to remove or make harmless the wreck under the other law or regulation, e.g. 'if the wreck obstructs the ship's traffic' of the port under Port Regulation Law^[19] or under Port & Harbor Law^[20]; if the wreck should be removed for the necessity to keep and utilize the port facilities^[21] under the Port Facility Maintenance Regulation; if the wreck causes a risk in ship's traffic^[22] under the areas the Marine Traffic Safety Law applies to; if it necessary for keeping the coast^[23]. In these cases, the ship owner should assume the liability to remove the wreck under those administrative laws. In the Great East Japan Earthquake, there are such cases^[24] where the authority issued the order based on the above grounds, and the ship owner responded to it.

1. There are not so many books or articles, discussing about 'force majeure'in tort Morishima, Fuhokoi-Ho Kogi, p.76; Kawahara, Fuhokoi to Menseki, Sonpo Kenkyu 58-3-107. It is originated from French law, and the discussions are made about 'force majeure' in contract and in relation to 'force majeure' or 'hardship' clause, McKendrick, Force Majeure and Frustration of Contract 2nd ed. Treitel, Frustration and Force Majeure, 2nd ed
2. Even if the case has not developed to a level of'prima facie' proof, it is often occurred that actual burden or necessity for one party's activities for proof would shift to the other.
3. Judgment of Tokyo District Court dated Jul. 30, 1997; Judgment of Tokyo High Court dated Nov. 26, 1998
4. Judgment of Nagoya District Court, Handa Branch dated Aug. 27, 1963
5. Judgment of Hiroshima District Court, Takehara Branch dated Jul. 30, 1970
6. Judgment of Tokyo District Court dated Jan. 31, 1964 (encountered rough weather with the wind speed of 20m/s in winter at the China Sea); Judgment of Tokyo District Court dated Feb. 10, 1982 (encountered rough weather with the wind force 9 at the Pacific Ocean in winter); Judgment of Kobe District Court dated Mar. 30, 1983 (wind force 10-11 at the China Sea in winter). In the case where encountered rough weather with the wind force of 10-11 in Taiwan Strait in winter, and there were other ships'casualties the court found Act of God and/or Peril of Sea. Judgment of Tokyo District Court dated Mar. 1, 2001
7. Judgment of Tokyo District Court dated Jun 22、 1999. This is the case where cargoes were lost by the fire that broke out of the leaked chemical agents from warehouse by collapse and combined with moisture came out of other cargo due to Great Hanshin Earthquake. It was held that collapse and leakage of chemical agents were caused due to Great Hanshin Earthquake and the liability was denied.
8. Judgment of Kobe District Court dated Aug. 18, 1998. This is the case where hotel guests died in the collapse of the extended hotel building in the occasion of Hanshin Great Earthquake. It was found that the extended part of the building was lack of earthquake-resistant usually required and the hotel was found liable.
9. The forwarder falls under "the person for carriage" of Article 577 of Commercial Law. Judgment of Tokyo High Court dated Jul. 16, 2000
10. Judgment of Kobe District Court dated Apr 20, 2000
11. Judgment of Tokyo District Court dated Feb. 26, 1979
12. Therefore, the fault or force majeure of the person other than this person (so-called independent person) cannot be disputed. Judgment of Tokyo District Court dated Sep.21 , 2010 (Ogasawara Techno Super Liner)
13. Judgment of Tokyo District Court dated Feb. 16, 2010
14. Article 3 (1), Article 29 (39〉(i) of the LCDOPS. However, this does not prohibit the ship owner to claim against the third person when he is at fault (Article 3 (5) and Article 39 (2) (ii) of the same Law) or to set-off when the victim is at fault (Article 4 and Article 39 (2) (ii) of the same Law).
15. Tokioka, Tanikawa, Sagara, Law for Limitation of Ship owner's Liability, Law for Compensation of Damage by Oil Pollution from Ships
16. Articles 38 and 39 of LMPMCP
17. Proviso of Article 41 (i) of LMPMCP and Article 37 of its Regulations
18. Article 40 of LMPMCP
19. Article 26 of Port Regulation Law
20. Article 12 (2) and Article 43 (3) of Port & Harbor Law
21. There are provisions in each prefecture's Port Facility Maintenance Regulations or Fishing Port Maintenance Regulations. For instance, Article 2 (6) and Article 4 (2) of Fukushima Prefecture Port Facility Maintenance Regulations
22. Article 33 of Maritime Traffic Safety Law
23. In accordance with Article 8 (2) of Seacoast Law, the notice to designate the seashore preservation area or property is issued and in accordance with Article 12 of Seacoast Law, supervisory order or removal order is issued.
24. National Road Law or Park Law was also reviewed if they could be applied to ships washed up into far inland.