YOU GET WHAT YOU PAY FOR: REASONABLE ENDEAVOURS AND <i>FORCE MAJEURE</i>

MANY force majeure clauses include the proviso that they cannot be used to affect a contract if the relevant obstacle to performance could reasonably be overcome by the parties.In RTI Ltd. v MUR Shipping BV [2024] UKSC 18, [2024] 2 W.L.R. 1350, the question was whether such a proviso can require a party to accept an offer of alternative, but equivalent, noncontractual benefits, instead of using the force majeure clause.Arbitrators initially answered "yes, as long as the offer is reasonable", but on appeal to the High Court ([2022] EWHC 467 (Comm), [2022] 2 All E.R. (Comm) 522), Jacobs J. answered with a firm "no".The Court of Appeal again reversed that decision ([2022] EWCA Civ 1406, [2023] 1 All E.R. (Comm) 501), concluding that it depends on the language of the clause, and on the facts, this meant that an offer must be accepted if it causes no detriment to the offeree.The Supreme Court has now turned the ship around once more, agreeing with Jacobs J. thatas a general principleoffers of alternative benefits do not need to be accepted instead of simply engaging a force majeure clause.Under a contract of affreightment signed by MUR and RTI in 2016, MUR's vessels were to be used for RTI's shipping.The loading of each vessel triggered a freight payment to MUR, which was to be made in US dollars.Two years into the contract, RTI's parent company was sanctioned by the US Treasury, making it impossible for RTI make timely payments in dollars.MUR argued that the sanctions therefore constituted a force majeure event, such that they could serve a notice under clause 36.1 to suspend the contract until the sanctions were lifted.RTI sought to reject this notice by reliance on clause 36.3(d), which stated that an event could only constitute force majeure if it "cannot be overcome by reasonable endeavors" (at [4]).They offered to make the freight payments to MUR in euros, and cover any additional costs involved in then exchanging that amount into dollars.Their argument was that MUR could therefore have "overcome" the effect of the sanctions by acting reasonably and accepting that offer.MUR, however, rejected it, and insisted that the payment be in dollars, as stipulated in the contract.The arbitrators dealt with this point briefly, without citation of any authorities (at [11]).They concluded that RTI's offer involved no detriment to MUR; therefore MUR had acted unreasonably and could not rely on clause 36.1.This reasoning is clearly suspect.It presumes that the clause 36.3(d)"reasonable endeavours" proviso is a general obligation to act reasonably under all the circumstances, rather than an obligation to take reasonable steps to achieve a specific goal.In the High Court, Jacobs J.