Содержание
In July 2026, after a series of strikes on merchant ships off Odesa, shipowners all but stopped calling at Ukrainian Black Sea ports — and traders holding open contracts faced the question again: can you invoke force majeure when a full-scale war is in its fifth year and shelling is, strictly speaking, no longer news? A recent High Court decision, ADM Industries Centers Ltd v Inerco Trade SA [2026] EWHC 1873 (Comm), arising out of the 2023 “grain deal”, answers that squarely: what counts as an “unforeseeable” event against the backdrop of an ongoing war, why a late notice costs the seller the right to rely on Clause 20, and how the extensions under Clauses 10 and 20 of GAFTA 48 interact.
Summer 2026: ports under fire
On 19 July 2026 the bulk carrier Golden Leo, laden with corn, was hit by three cruise missiles at the Odesa anchorage: ten people were killed, including a Ukrainian pilot, and after six days of progressive flooding the vessel settled on the bottom. By 23 July shipowners had suspended calls — on that day, according to Ukraine’s agriculture minister, not a single vessel transited the maritime corridor. Attacks on merchant shipping continued: on 30 July a drone struck the accommodation of the bulk carrier ATA-2 as she left Chornomorsk with corn, and on 5 August the German-operated bulker Emil caught fire off Odesa — a second drone hit the ship while her crew were abandoning her. By early August, Time estimated, roughly 90% of operators had stopped calling at Ukrainian ports, war-risk premiums had risen sharply, and strikes had reached shore infrastructure at Odesa and Mykolaiv.
The larger the disruption, the more readily parties reach for the words “force majeure” — and the more expensive mistakes in invoking it become. It is telling that ADM v Inerco was handed down on 23 July 2026, at the height of the current escalation. The dispute itself grew out of events in May 2023, when exports from the same ports stopped for a different reason: Russian inspectors stopped clearing vessels moving under the “grain deal”.
ADM v Inerco: the contract and the timeline
Under a contract dated 10 February 2023, Inerco Trade SA (sellers) sold ADM Israel (buyers) 60,000 mt of Ukrainian corn +/-10% CIF FO Ashdod/Haifa, shipment 15 April to 15 May 2023. The contract incorporated GAFTA Form 48 and expressly reflected the war: a special condition provided that if the “corridor” — the Black Sea Grain Initiative — were cancelled, the contract would be null and void.
The export machinery worked like this: every vessel entering the Black Sea to load was inspected by the Joint Coordination Centre (JCC) in Istanbul, whose inspectors included Russian personnel. On 30 March sellers nominated the MV Nikolaos S, giving an ETA at Pivdennyi “subject to passing JCC inspection”. The ship waited for her inspection — and on 7 May 2023 the Russian inspectors stopped inspecting inbound vessels. Port agents described what was happening as sabotage: Russian vessels passed uninspected while everyone else waited. By 11 May, 60 vessels were queued. Inspections resumed only on 18 May — three days after the shipment period expired.
On 16 May sellers served a notice under Clause 20 of GAFTA 48 (Prevention of Shipment) — the form’s force majeure clause (clause numbering throughout is that of the GAFTA 48 edition in force at the contract date) — and on 19 May a notice that the force majeure event had ceased. Buyers rejected the notice and maintained that shipment was due no later than 15 May. Sellers treated that stance as renunciation — words or conduct unequivocally indicating that a party does not intend to perform the contract in accordance with its terms — accepted it on 25 May, and resold the cargo on 26 May. The corn was shipped to the replacement buyers on 4 June.
The GAFTA first-tier tribunal found for the buyers: force majeure was not made out. The GAFTA Board of Appeal took the opposite view in November 2025 and awarded sellers USD 3.12 million. Buyers obtained leave to appeal on questions of law under section 69 of the Arbitration Act 1996 on three issues. The case came before Paul Stanley KC — the same judge who recently dealt with payment deadlines expressed in Banking Days under Saleform 2012.
What is an “unforeseeable” event in a force majeure clause?
Clause 20 of GAFTA 48 defines an “Event of Force Majeure” by a list of twelve categories: prohibition of export, blockade, acts of terrorism, hostilities, strikes, breakdown of machinery, ice, Act of God — and sub-paragraph (k), which took centre stage:
“(k) unforeseeable and unavoidable impediments to transportation or navigation”.
Sellers relied on it: the suspension of inspections was an impediment to navigation. The dispute turned on the word “unforeseeable”. Buyers advanced the low threshold familiar from tort (the approach in The Wagon Mound (No 2) [1967] AC 617): anything that is not “far-fetched” is foreseeable. Inspection stoppages had happened before — so the event was foreseeable, and Clause 20 was not engaged.
The court rejected that. In a force majeure clause, “unforeseeable” means an event whose probability is negligible — so small that, in commercial terms, it can justifiably be disregarded when the contract is made. The neighbouring items on the list — blockade, hostilities, strikes — are rare but perfectly imaginable events; requiring sub-paragraph (k) to be wholly unimaginable would make it stand out starkly from the company it keeps.
The second layer of the reasoning matters most for today’s events: foreseeability is assessed as a matter of degree, not merely of occurrence. Short stoppages had happened — 14 times in 288 days of the corridor’s operation — but ten lasted one day and three lasted two. The Board found the probability of a stoppage lasting more than two days to be negligible: it was the duration that made the event unforeseeable. The judge agreed, with a useful example: bad weather may be foreseeable, but three days of hurricanes may not be. Exactly where the line falls is a matter of commercial judgment for the arbitrators, which the court will not disturb.
Force majeure notice: condition or formality?
The right to suspend performance under Clause 20 does not arise automatically. The second paragraph of the clause puts it this way:
“…the performance of this contract shall be suspended for the duration of the Event of Force Majeure, provided that Sellers shall have served a notice on Buyers within 7 consecutive days of the occurrence or not later than 21 consecutive days before commencement of the shipment period, whichever is the later, with the reasons therefor.”
Performance is suspended “provided that” sellers notify buyers within 7 days of the occurrence (or not later than 21 days before the shipment period begins, whichever is later), stating the reasons.
Sellers gave notice on 16 May — the ninth day, counting from 7 May. The Board excused the delay: nothing important turned on the exact date, buyers suffered no prejudice from two days, and technicalities should not prevail over “commercial logic and natural justice”.
The court disagreed — and this is the decision’s central practical holding. The words “provided that” are, in this context, the unmistakable language of a condition precedent: a mandatory prior requirement without which the right to rely on Clause 20 does not arise at all. There is no “late but harmless” category here: if the notice is late, Clause 20 simply does not apply, with everything that follows. The requirement, the judge noted, is not onerous, serves an obvious commercial purpose — both sides understand their legal position — and needs no softening through a vague test of substantial prejudice.
When does the clock start: the “creeping” force majeure problem
If the relevant event began on 7 May, the 16 May notice was late and sellers lose the right to rely on Clause 20. But what exactly is the “event”? Not every suspension of inspections was force majeure: short pauses were foreseeable. The stoppage became force majeure when it grew beyond the usual one- or two-day hiccup — on sellers’ case, no earlier than 9 May. Measured from 9 May, a notice on 16 May falls inside the seven days.
The Board made no express finding on when the event began, so the court remitted the award to the arbitrators for reconsideration, with a precise question: did the unforeseeable and unavoidable impediment begin before 9 May 2023? If it did, sellers never properly relied on Clause 20 and their USD 3.12 million evaporates. The entire award now hangs on two days of chronology.
Can Clause 10 still be used after a Clause 20 extension?
The third issue was the interaction of the force majeure clause with Extension of Shipment (Clause 10). Clause 10 lets sellers extend the shipment period by up to 8 days, but not for free: buyers receive an allowance off the contract price — 0.5% for 1–4 days, 1% for 5–6, and 1.5% for 7–8. The extension notice must be served “not later than the next business day following the last day of the originally stipulated period”.
That was where the damages issue arose. Under Clause 20, once inspections resumed sellers had until 2 June to ship. Buyers argued that under the replacement sale the cargo was in fact only shipped on 4 June — so sellers could not have made 2 June either, and their damages should be nominal. The only way sellers could still have shipped in time was to add up to 8 further days under Clause 10. But on buyers’ reading, the “originally stipulated period” was the contractual period ending 15 May, and the time for a Clause 10 notice had long passed.
The court upheld the Board: where the shipment period has been extended under Clause 20, the period as so extended becomes the “originally stipulated period” for the purposes of Clause 10. The word “originally” does no more than confine sellers to a single extension under Clause 10 itself. Sellers may serve a Clause 10 extension notice no later than the next business day following the last day of the shipment period as extended by Clause 20. The opposite construction produced an odd result: a seller who had invoked the extension would end up worse off than one who never thought of it.
Strikes and blockaded ports: applying this now
The question a trader asks in 2026 is a blunt one: what “unforeseeable” event can there possibly be when a full-scale war is in its fifth year?
Can shelling be force majeure when the war is in its fifth year?
The objection that will be raised in every such dispute is predictable. The war began in February 2022; missiles hit the port of Odesa as early as July 2022 — the day after the “grain deal” was signed — and from the summer of 2023, when Russia withdrew from it, strikes on port and grain infrastructure became systematic. Contracts for Ukrainian grain have long made provision for war risks, through insurance arrangements, specific war clauses and other terms. If all of that is known, the argument runs, shelling is foreseeable and force majeure is impossible by definition. It sounds devastating — and it is precisely the logic the court rejected in ADM v Inerco.
The contract in ADM v Inerco was itself a wartime contract: signed in February 2023, a year into the invasion, with a special condition about the grain corridor. The parties contracted with full knowledge that the war was already under way — and the sellers’ case on unforeseeability still survived. The reason is that the “event” was not the war as such, but a specific impediment: a stoppage of inspections that departed from the corridor’s established pattern. The war is the backdrop against which the contract is made. Force majeure is what steps outside even that backdrop.
That yields a workable formula for 2026. The test is not “could this have been imagined” — in a war, anything can be imagined. The test is whether the probability of the event was, in commercial terms, negligible at the contract date, judged by scale and duration as well as by kind. Individual strikes on port infrastructure, short pauses in the corridor, expensive cover — that is the foreseeable backdrop, long since priced in. A sustained campaign against merchant ships at anchor, seafarers killed, nine operators in ten withdrawing and weeks without a single call is an event of a different order, and may fall outside what it was commercially justifiable to disregard when the contract was concluded. In the same way, in ADM v Inerco the short inspection stoppages — 14 in 288 days of the corridor — were foreseeable, while an eleven-day one was not.
The reference point is the date of your contract, and that cuts both ways. The maritime corridor with which Ukraine replaced the “grain deal” in late summer 2023 had by July 2026 been running for nearly three years: vessels had been hit before, but calls never stopped. For a contract concluded before the July escalation, the corridor’s operating record is the central evidence of unforeseeability, exactly as the inspection statistics were in ADM v Inerco. For a contract concluded in August 2026, after Golden Leo and the operators’ withdrawal, the same argument barely works: the event was unfolding in front of the parties before they signed.
None of this is a guarantee. The assessment remains a question of fact for commercial arbitrators — the judge in ADM v Inerco said in terms that he would not interfere with that judgment — and a tribunal may conclude that, for trade in a war zone, even the current escalation was a risk assumed, particularly where the contract allocates war risks through special clauses. But the decision makes the main point: the mere fact that a war is in progress does not, by itself, make every later impediment foreseeable for the purposes of sub-paragraph (k). The dispute will be won by the side with the better chronology — call statistics, insurance circulars, official warnings, correspondence with agents and brokers, day by day.
One last point concerns which limb of the clause to rely on. The word “unforeseeable” appears only in sub-paragraph (k); it is absent from the limbs dealing with blockade and hostilities. Whether that means the foreseeability argument disappears altogether when hostilities are invoked was not decided: in ADM v Inerco sellers relied on blockade and hostilities as well, but the tribunal addressed only sub-paragraph (k), and buyers contended that blockade was not, in law, available at all. While the question remains open, the practical conclusion is simply this: do not pick a single limb in your force majeure notice — invoke every applicable ground at once, because they are not mutually exclusive.
The notice: the cheapest and most important step
The seven-day period is a hard condition precedent, and lateness is not forgiven by absence of prejudice. The difficulty is that the current escalation is a classic example of an event that develops over time: isolated strikes first, then rising war-risk premiums, then the shipowners’ decision not to call. What counts as the start — the strike on Golden Leo on 19 July, the suspension of calls on 23 July, some date in between? Nobody knows in advance, and it may only be settled in arbitration — as in ADM v Inerco, where the argument over “7 or 9 May” is now worth USD 3.12 million.
The decision shows that both extremes are dangerous: a notice served too early is invalid in its own right — until the event has acquired its force majeure character, there is nothing to notify — and a notice served too late is fatal. That points to a practical course the judgment does not itself prescribe: where the event develops over time, it may be prudent to serve further notices as the situation changes, each identifying the event and the reasons. That reduces the risk of losing an argument about the start date, though it does not in itself guarantee that any particular notice is valid. Nobody can revive a missed deadline.
Force majeure suspends the contract, it does not end it
Clause 20 does not terminate the contract: performance is suspended for the duration of the event. If the event continues for 21 consecutive days after the end of the shipment period, buyers have an option to cancel the unfulfilled part of the contract; if they do not exercise it and the event runs a further 14 days, the unfulfilled part is cancelled automatically. If the event ceases earlier, sellers must notify without delay and are entitled to the time that remained for shipment — but no less than 14 days. The full mechanics — notices, the buyers’ option, the burden of proof — are covered in the dedicated guide to Prevention of Shipment in GAFTA contracts.
The special conditions parties add to the standard form deserve separate attention. In ADM v Inerco the contract provided that if the grain corridor were cancelled, the contract would be null and void. War reaches contracts through more than the standard clauses — and the parties’ own wording has to be drafted at least as carefully as the printed form.
The mistake costs more than the force majeure
ADM v Inerco is a good illustration of the mirror-image risks. The Board of Appeal proceeded on the basis that the buyers, by rejecting the force majeure notice and insisting on shipment within the original period, had themselves renounced the contract — and on that basis awarded USD 3.12 million against them. Whether that conclusion survives now depends on the remitted question. Sellers carry the symmetrical risk: a seller who, without any contractual ground — or too late, so that Clause 20 never bites — unequivocally refuses to deliver may in turn be held to have repudiated the contract. In either case the innocent party can accept the renunciation, close its position in the market and quantify its loss under the Default Clause. Wartime trade in Ukrainian grain has already generated a line of English decisions — see, for instance, Trans Trade v State Food and Grain Corporation of Ukraine, where an FOB seller could not recover the price.
Conclusions
ADM v Inerco establishes three practical points. Unforeseeability is measured by the probability it is commercially justifiable to disregard, and is assessed with duration in mind: a foreseeable impediment may become unforeseeable because of how long it lasts. The seven-day notice is a condition precedent: a late notice costs the seller the right to rely on Clause 20 altogether, however harmless the delay looks. Clause 10 remains available after a Clause 20 extension — the notice must be served no later than the next business day following the last day of the shipment period as already extended. The fate of the USD 3.12 million now turns on the remitted question of whether the event began before 9 May 2023.
For traders caught in the present crisis the lesson is twofold. An ongoing war does not by itself close the door to force majeure — what matters is whether the particular event departs from the backdrop against which the contract was signed. And a force majeure case is built in the first seven days, not at the arbitration: by keeping a chronology, preserving the evidence and serving notices properly. Those who do that work from day one arrive at the dispute with their case already built; the rest arrive to argue about dates.
If your contract is affected by the situation in the Black Sea ports — whether you need your force majeure position assessed, notices prepared, or a dispute is already under way — get in touch:
