By: Yujin Jang*
Abstract
The year 2020 marked the onset of the global crisis wrought by the COVID-19 pandemic, reshaping every aspect of life. Many governments closed their borders and ordered lockdowns that paused daily activities, including those of businesses around the world. Most international trade companies faced challenges with maritime international shipping. Container shipping firms canceled more than a thousand voyages in the first six months of 2020.
Thus, an important question arises regarding the international trade delay: Who should be responsible for this damage? Regardless of where responsibility is placed, the responsible party could argue that COVID-19 caused the delay. More specifically, that party could argue that COVID- 19 is a natural disaster that qualifies for a Force Majeure defense or that the government action that addressed COVID-19 qualifies for a Force Majeure defense. But should a COVID-19 Force Majeure defense be available for international trade delays?
To answer the question of whether COVID-19 should trigger the Force Majeure defense in maritime international trade delay, this Comment discusses how U.S. courts should handle international shipping delays regarding COVID-19 and the Force Majeure clause. This Comment argues that U.S. courts should evaluate the specific wording of the Force Majeure clause in international trade shipping contracts, evaluate the intervening factors of nonperformance, and consider the time frame of nonperformance to determine whether COVID-19 was an unforeseeable event. Depending on the specific facts of the international trade delay case, COVID-19 could or could not qualify for a Force Majeure defense. This Comment argues that if the specific wording of the Force Majeure clause includes language that a pandemic or epidemic is a Force Majeure event, COVID-19 should qualify as a Force Majeure event. However, if there is an intervening factor between COVID-19 and the international trade delay, COVID-19 should not qualify as a Force Majeure event.
* J.D. Candidate, The Pennsylvania State University School of Law, 2024.