A Brave New World – Tariffs And Force Majeure

My colleague (Graham Quinn) recently wrote an article about the potential financial impact of the impending steel and aluminum tariffs on the construction industry. See hyperlink: The Impact of President Trump's Steel and Aluminum Tariffs on the Construction Industry | Texas Construction Law Blog. One question that we are receiving is whether the ensuing tariffs on steel and aluminum qualify as a force majeure event. The short answer is it depends on the language of your contract.

For instance, the AIA 201 defines a force majeure event as a labor disputes, fire, unusual delay in deliveries, unavoidable casualties, adverse weather conditions ... or other causes beyond the Contractor's control. The ensuing tariffs would arguably qualify as a cause beyond the Contractor's control. Other contracts specifically define a force majeure event as "restrictive governmental laws or regulations," which again is beneficial language seeking to enforce a force majeure provision.