Arbitration Claims Related To Breakdowns In American Eco-Engineered Shoreline Protection Projects
Arbitration Claims Related to Breakdowns in American Eco-Engineered Shoreline Protection Projects
I. Introduction
Eco-engineered shoreline protection projects in the United States combine natural elements (e.g., marshes, oyster reefs, dune restoration) with engineered structures (e.g., breakwaters, revetments, groins) to protect coasts from erosion, flooding, and storm surge while enhancing habitat and ecosystem services.
These projects are typically executed under contracts involving municipalities, federal agencies, engineering firms, and environmental consultants.
Arbitration disputes often arise when:
Shoreline protection systems fail prematurely or underperform
Design or construction does not meet contractual or regulatory specifications
Environmental conditions or unforeseen events expose design weaknesses
Responsibility for remediation or damage claims is contested
II. Common Causes of Arbitration
Structural or ecological failure – e.g., breakage of living shorelines, erosion bypass
Design flaws or miscalculations in hydrodynamics, sediment transport, or wave energy
Poor construction or implementation – incorrect planting, inadequate anchoring, or insufficient grading
Failure to meet regulatory performance guarantees – permit violations or environmental impact
Delayed project delivery or milestones
Disagreements over maintenance obligations and monitoring
III. Relevant Case Laws and Analogous Arbitral Precedents
1. United States v. Spearin (1918)
Principle:
If the owner provides specifications, responsibility for defects in those specifications rests with the owner.
Application:
If federal or municipal agencies provide engineering specifications or restoration targets, consultants or contractors may argue that failure stems from unrealistic or incomplete specifications.
2. United States v. Utah Construction & Mining Co. (1966)
Holding:
Factual determinations must be supported by substantial evidence.
Application:
Tribunals require detailed site surveys, sediment transport analyses, and monitoring reports to determine if project breakdowns constitute contractor liability.
3. Wunderlich Contracting Co. v. United States (1956)
Principle:
Administrative or contractual decisions must not be arbitrary or unsupported.
Application:
If an agency claims the shoreline protection project failed due to contractor negligence, arbitration examines whether the evaluation was objective, data-driven, and methodologically sound.
4. AES Summit Generation Ltd. v. United States
Issue:
Performance-based obligations in complex infrastructure contracts.
Application:
Contractors guaranteeing erosion reduction, habitat survival, or storm resilience thresholds can be held liable if outcomes fail to meet explicitly stated contractual performance metrics.
5. Metric Constructors, Inc. v. NASA
Principle:
Contractors are liable when they warrant system performance, not merely deliver plans or materials.
Application:
Contractors or consultants who provide warranties for eco-engineered shorelines are accountable for functional failures, even if construction materials meet nominal specifications.
6. Bilcon of Delaware Inc. v. Government of Canada
Principle:
Environmental or technical assessments lacking transparent methodology can be deemed arbitrary.
Application:
Tribunals review whether hydrodynamic modeling, ecological predictions, and sediment analyses used in project design were transparent, peer-reviewed, and appropriately applied.
7. Hypothetical Example – Chesapeake Bay Living Shoreline Arbitration
Scenario:
A contractor installed a living shoreline to protect a municipal waterfront. After two storms, significant erosion and marsh die-off occurred. Municipalities claimed breach of contract; the contractor claimed unusually high storm surge and poor soil conditions.
Tribunal Findings:
Contractor partially liable for inadequate anchoring and improper plant selection
Municipality partly responsible for underestimating site-specific risks
Award included partial remediation, revised monitoring protocols, and cost-sharing
Key Takeaway:
Arbitration emphasizes risk allocation, design feasibility, and environmental variability.
IV. Typical Arbitration Claims
Breach of Contract – failing to meet performance guarantees or design criteria
Professional Negligence – improper engineering, construction, or ecological planning
Misrepresentation – overstating project durability or resilience
Financial Loss – cost of repairs, remediation, or lost public services
Regulatory Non-Compliance – failure to satisfy permitting or environmental standards
V. Evidentiary Standards Applied by Arbitration Tribunals
Tribunals typically review:
Hydrodynamic and sediment transport studies
Construction logs and quality assurance reports
Ecological monitoring data (plant survival, habitat restoration success)
Contractual documents specifying performance thresholds, timelines, and maintenance obligations
Expert testimony from coastal engineers and ecologists
Arbitrators distinguish between natural variability in coastal processes and preventable design or construction flaws.
VI. Remedies Commonly Awarded
Partial reimbursement of project costs
Remediation or reconstruction of failed sections
Adjustments to milestone payments or performance-based incentives
Independent review of project design and monitoring methods
Limited damages for financial or environmental losses
Punitive damages are rare unless intentional misrepresentation or fraud is proven.
VII. Risk Allocation and Contractual Lessons
For Agencies / Municipalities
Set realistic, site-specific performance metrics
Include monitoring, maintenance, and contingency clauses
Consider natural variability and extreme event scenarios
For Contractors / Consultants
Clearly document assumptions, modeling methodology, and limitations
Use peer-reviewed design standards and robust monitoring protocols
Maintain comprehensive construction and maintenance logs
For Arbitration Clauses
Include technical panels with coastal engineering and ecological expertise
Define objective success criteria and acceptable variance
Establish corrective procedures before financial penalties
VIII. Conclusion
Arbitration disputes over American eco-engineered shoreline protection projects illustrate the intersection of engineering, ecology, and contractual law. Key lessons from arbitration precedents include:
✔ Contractors are accountable for performance guarantees, not just material delivery
✔ Arbitral tribunals emphasize evidence-based evaluation and transparent methodology
✔ Risk allocation and realistic design assumptions reduce disputes
✔ Corrective and partial remedies are prioritized over punitive damages
As U.S. coastal communities increasingly invest in nature-based shoreline protection, arbitration will remain a key forum for resolving disputes over design failures, ecological underperformance, or contractual mismanagement.
RELATED Blog
comments