Executive Summary
The risk to commercial shipping in the Black Sea can no longer be described solely by reference to attacks on Ukrainian ports. In July and August 2026, damage to vessels, port and export infrastructure, as well as temporary operational suspensions, affected both Russian and Ukrainian-controlled waters. The causes, scale and international-law characterisation of individual attacks are not the same. This article draws no political or legal equivalence between them. The question under English contract law is narrower and more practical: what happened to the particular vessel, terminal or route, and did that event actually prevent a party from performing the particular contract?
The short answer remains the same: everything depends on the wording of the clause. An attack may fall within “war”, “hostilities”, “blockade”, “port closure” or a wider category of events beyond a party’s reasonable control. A general reference to the war, however, is not enough. The affected party must establish the necessary geographical and causal connection with performance, the absence of another available contractual means of performance, compliance with the notice provisions and satisfactory contemporaneous evidence.
Black Sea Risk Is No Longer Confined to a Single Port Cluster
In our previous article, we considered the sharp escalation in attacks on civilian shipping and export infrastructure in Ukraine’s Greater Odesa ports. The risk has since spread more widely. The International Maritime Organization describes the continuing armed conflict between the Russian Federation and Ukraine as presenting a serious and immediate threat to the safety and security of crews and vessels in the Black Sea and the Sea of Azov, and has separately condemned attacks on civilian merchant vessels.
According to Reuters, Ukraine reported dozens of attacks on vessels in port and at sea in July 2026, together with numerous strikes on port facilities. Some shipowners suspended calls at Ukrainian ports, war-risk insurance became more expensive and alternative routes became congested.
At the same time, attacks also affected Russian Black Sea port and export infrastructure. In August 2026, two major grain terminals at Novorossiysk temporarily ceased operations following strikes on the city, while oil-loading operations were also briefly suspended. The consequences were not confined to Russian exports: Novorossiysk is an important route for Kazakh oil, and disruption to its grain terminals affects international commodity flows.
Under English Law, Force Majeure Begins with the Contract
English law has no free-standing doctrine of force majeure. Force majeure relief is available only because the parties have provided for it in their contract. The words beneath the heading “Force Majeure” therefore matter more than the heading itself.
The party relying on the clause will ordinarily need to establish four elements. First, the event falls within the contractual definition of force majeure. Secondly, it caused the particular failure of performance. Thirdly, the event and its effects could not reasonably have been avoided or overcome. Fourthly, the party complied with the contractual procedure, including any requirements relating to notice and evidence.
The verb used to describe the required effect of the event frequently determines the dispute. “Prevented” imposes a higher threshold than “hindered” or “delayed”. A closed berth, a physically destroyed terminal or a prohibition on vessel movements may prevent performance from a particular named port. More expensive freight, an increased war-risk premium or a reduced profit margin will ordinarily demonstrate commercial difficulty rather than prevention.
The geographical scope of the clause is equally important. If it applies to events “at the port of loading” or to circumstances preventing transport of the goods to that port, an attack on a vessel during its approach voyage may not necessarily fall within its wording. A court will not rewrite the agreed geographical limits merely because the event arises out of the same war.
This is consistent with the wider English-law approach to exemption clauses. In RTI Ltd v MUR Shipping BV, the Supreme Court emphasised the value of contractual certainty and the principle that parties do not give up contractual rights without clear words. General catch-all wording must likewise be read in the context of the listed events and the relevant obligation, rather than as an unlimited exemption for any external difficulty.
A Background War and a New Event Are Not the Same Thing
The full-scale war has continued since February 2022. A party entering into a Black Sea trade contract in 2026 cannot persuasively describe the general risk of war, expensive insurance or isolated attacks as wholly unexpected.
It does not follow, however, that a war clause can never operate. English law does not impose a universal rule that foreseeability automatically excludes force majeure. Where the contract expressly includes “war”, “hostilities”, “blockade” or “acts of war”, the clause may have been intended precisely to allocate a known risk that had not yet materialised in the relevant form.
In the recent decision in ADM Industries Centers Ltd v Inerco Trade SA [2026] EWHC 1873 (Comm), the Court considered the word “unforeseeable” in the GAFTA 48 force majeure clause. An event was not unforeseeable if the probability of its occurring and affecting performance could not be regarded as negligible. The decision concerns the particular wording of GAFTA 48 and does not introduce an unforeseeability requirement into every contract. It does, however, show the difficulty of relying on a risk that was well known when the contract was concluded without explaining why no contingency plan was made.
The correct question is therefore not simply, “Was the war foreseeable?” It is: “Was the specific event covered by the contract, and were its effects beyond the party’s reasonable control?” A direct strike on the named terminal, a written port closure or the effective suspension of all navigation permitted by the contract may constitute separate triggering events. The party must nevertheless tie them to dates, obligations and evidence rather than relying on the general background of war.
Nominating a Port Does Not Always Make the Chosen Route a Contractual Necessity
Commodity contracts often specify the origin of the goods without identifying a single port of loading. The seller later nominates a port, vessel or terminal. If that port becomes unavailable, the central question is whether the contract itself could no longer be performed, or whether performance became impossible only by the method selected by the seller.
The distinction is fundamental. If the contract requires goods of a particular origin but permits loading from several ports, the unavailability of one port will not necessarily prevent performance. The party may need to show that all realistically available contractual alternatives were affected or could not be used within the shipment period.
In Channel Island Ferries Ltd v Sealink UK Ltd, the Court held that a party relying on force majeure must show that it took all reasonable steps to avoid the event or mitigate its consequences. In P.J. Van der Zijden Wildhandel NV v Tucker & Cross Ltd (No. 1), the sellers failed to establish impossibility, in part because their evidence did not show what steps they had taken to obtain supplies from an alternative source.
The Supreme Court’s decision in RTI v MUR Shipping draws an important boundary. Reasonable endeavours do not require a party to accept non-contractual performance – in that case, payment in euros rather than the agreed US dollars. The use of another port, however, may not be a substitute for contractual performance at all; it may simply be another means of performing the same obligation. Where the contract does not fix a particular port, loading at another permitted port may remain performance in accordance with the contract.
This does not mean that a party must pursue every theoretically possible shipment. The alternative must be genuine: a suitable terminal must be able to handle the relevant cargo, appropriate tonnage must be available and shipment must remain possible within the contractual period. Those are matters of evidence. A bare assertion that “no suitable alternatives were available” will rarely suffice.
Causation: The Event Must Have Made a Real Difference
Even an event expressly listed in the clause will not assist a party if it did not cause the non-performance. In Classic Maritime Inc v Limbungan Makmur Sdn Bhd, the Court of Appeal applied a “but for” approach: the party had to show that, but for the excepted event, it would in fact have performed its obligation.
In practice, the party must establish not only that the port was closed or the vessel damaged, but also that it was ready to perform. Had the goods been procured and allocated? Had terminal capacity been booked? Could the vessel have arrived within the shipment period? Was there another obstacle unrelated to force majeure, such as a lack of goods, finance or licences, or a commercial decision not to perform an unprofitable contract?
The issue becomes more difficult where several causes operate. If an attack affected the port but the failure of performance also resulted from the party’s own choice, the absence of a prepared cargo or its failure to investigate an available contractual route, a tribunal may conclude that the force majeure event was not a sufficient cause. This is why contemporaneous documents carry more weight than an explanation assembled after the dispute has arisen.
Prohibition Clauses Require a Separate Analysis
Standard GAFTA and FOSFA forms often contain not only a force majeure clause but also a separate prohibition clause. The two should not be conflated.
A prohibition clause may cover a governmental prohibition on export, an executive or legislative act, a blockade or hostilities restricting export. A de facto suspension of vessel traffic, however, is not necessarily the same as a governmental prohibition. If the contract requires an official act, an oral communication or a market-driven decision by shipowners may not satisfy that requirement.
The scale of the restriction also matters. The closure of one nominated port is not equivalent to a prohibition on exports from the country as a whole where the contract permits other ports. Bunge SA v Nidera BV concerned a Russian governmental export ban – a measure operating directly on the export of the goods. The same conclusion cannot automatically be drawn from the temporary unavailability of one route.
Finally, a standard clause may refer to a port “named herein”. If the port is not stated in the contract itself but is nominated later, a textual issue arises as to whether the relevant part of the clause applies at all. This is a typical example of a few words in a standard form proving more important than the general description of the event.
What Should a Party Invoking Force Majeure Do?
The notice must be served within the time and in the form required by the contract. It should identify the particular clause relied upon, the event and its date, the obligations affected, the anticipated duration and the causal link. As the situation develops, regular updates should be given.
Evidence should be collected at the same time: official communications from port or governmental authorities, terminal notices, correspondence with shipowners and brokers, insurer advisories, confirmation that the cargo was available, enquiries concerning alternative tonnage and ports, and calculations relating to time and cost. A news report may establish the general background, but will rarely prove that this party could not perform this contract.
Alternatives should be documented, not merely discussed. Which ports were considered? Could they handle the relevant cargo? Was suitable tonnage available? Could shipment take place within the shipment window? If an option was rejected for reasons of safety, regulation or disproportionate delay, those reasons should be recorded when the decision is made.
For new contracts, the parties should decide expressly which events they intend to cover: attacks on vessels in port and on approach, damage to a terminal, port closure, shipowners’ refusal to call, war-risk insurance restrictions, blockade, hostilities and governmental measures. They should also specify whether the seller is obliged to use another port, who bears the additional costs, when the shipment period is extended and when the contract may be cancelled.
Conclusion
The widening geographical scope of Black Sea risk does not create an automatic defence to liability. It makes contractual precision more important.
English law distinguishes between an event and its contractual consequences. An attack on a Ukrainian or Russian port may be serious as a matter of fact, but the legal result depends on whether it falls within the particular clause, where it occurred, whether it truly prevented performance and whether another contractual means of delivering the goods remained available.
Where a party’s vessel or the only terminal permitted by the contract has been damaged and navigation has been officially suspended, the force majeure case may be strong. Where a party selected one of several possible ports and cannot show that it investigated the available alternatives, the same case will be considerably weaker. The practical point is simple: do not invoke “the war” as a general force majeure event. Identify the precise triggering event, examine the geographical and causation wording of the clause, serve a timely notice and preserve evidence of every reasonable alternative considered.
If you are facing difficulties performing a Black Sea trade or shipping contract due to port closures, attacks on vessels or infrastructure, or other war-related disruptions, and require advice on force majeure or prohibition clauses, contact us at info@fortiorlaw.com.
