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International Construction Law Review

INTERNATIONAL PERSPECTIVES ON UNFORESEEN SITE CONDITIONS * JULIAN BAILEY Partner, White & Case LLP ABSTRACT One of the recurring problems for construction and engineering projects is “the unexpected”, particularly when adverse site conditions are encountered. Who bears the risk of adverse site conditions? Is the employer legally responsible for the accuracy of information provided to the contractor regarding conditions on site? These are universal issues, and this paper considers aspects of their legal treatment in the United States, England, Australia and the Arabian Gulf. INTRODUCTION This is a centenary year for two milestones – one profound and global; the other less so, although still of great significance for those involved in the construction industry in the United States. The major centenary is, of course, the end of the First World War. Given its scale and the plurality of nations fighting the war, it was inevitable that the conflict would come to an end not in a single event, but through a series of collapses and capitulations during 1918. Nevertheless, the moment that most prominently encapsulates the conclusion of the war was the signing of the Armistice, in a railway carriage north of Paris, on 11 November of that year. World War I was the most devastating conflict that Europe had suffered in all its history, and we can scarcely conceive of what it must have been like to have fought in, or lived through, those times. The other centenary I wish to refer to is one that is unlikely to be marked, let alone celebrated, anywhere in the world. The centenary is that of the decision of the United States Supreme Court in US v Spearin . 1 Spearin turned on the issue of contractual responsibility for site conditions that were unknown to the contractor, because the particular conditions were not shown on the drawings it was given by the US Navy. * A paper presented at the 8th Society of Construction Law Conference, Chicago, USA, 26–28 September 2018. 1 248 US 132 (1918). 6

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