NOTES OF CASES
| DOI | http://doi.org/10.1111/j.1468-2230.1938.tb00410.x |
| Date | 01 December 1938 |
| Published date | 01 December 1938 |
NOTES
OF
CASES
233
NOTES
OF
CASE§
Frustration
HE
doctine of supervening impossibility of performance has
developed by the gradual establishment of a variety
of
circumstances
to which it can be applied. Difficulties thus arose chiefly out of the
struggle over the addition of a new set of circumstances or the definition
of recognised categories, and their number is still not fixed nor can they be
precisely defined. Thus, doubts have been expressed recently’
as
to the
correctness of the decisions in the Coronation cases which established the
most comprehensive
of
these categories, change in circumstances the con-
tinuance of which formed the basis of the contract. The question whether
the objective facts of a given case justify the application of the doctrine
is, however, not the only problem which may arise in connection with
frustration.
Tatem
v.
Gumboa’
deals with the subjective requirements for
the application
of
the doctrine, requirements relating to the states of mind
of the contracting parties.
In this case a British ship was chartered by the Spanish Government for
one month to carry refugees from Santander to France. The hire, at the
rate of
A250
a day, about three times the market rate, was paid in advance
for one month. Having made one voyage the ship was seized by the
insurgents and not returned to the owners until about five weeks after the
expiration
of
the charterparty. The charterers admitted that, under the
rule in
ChandZer
v.
Webster,8
the owners were entitled to retain the sum
paid in advance although the ship had only been available for about two
weeks, but they refused to pay hire for the additional period during which
the ship had been detained on the ground that the seizure
of
the ship
amounted to frustration
of
the contract discharging them from their
obligation to make any further payments in respect
of
hire. This conten-
tion was upheld by the Court. To amve at this decision, Goddard,
J.,
had to meet the argument advanced on behalf of the owners that frustration
could not be effected by
an
event which had been contemplated by the
parties.
It
was common knowledge that many ships had been seized by
the insurgents and the high rate of hire agreed showed that the risk of
capture was appreciated by the parties. Since they had failed
to
provide
that the contract should
be
discharged in the event of capture they must
have been prepared to take their chance on this.
A
term providing for
frustration, however reasonable, could not be implied since
it
would con-
tradict the intention
of
the parties.
In reply to
this
argument Goddard,
J..
did not agree to the finding
of
facts upon which
it
was based. The possibility of seizure and prolonged
detention would have been necessarily in contemplation only
if
a
lawful
blockade had been established.
In
view of the ineffective blockade of the
Spanish coast carried out by forces which had not been granted belligerent
rights and in view of the general uncertainty prevailing
as
to
conditions in
Spah,
it
was difficult
to
maintain that the possibility of events occurring
as
they actually did occur must have been present to the minds
of
the
parties. However, admitting that on these questions of fact “other minds
might take a different view” the judgment proceeds
to
deal with the argu-
ment of the owners, assuming that the happenings which had given rise to
T
Maritime
National
Fish,
LM.
v.
Owan
Trawlsrs,
LM.,
[I9351
A.C.
524.
*
[1938] 3
All.
E.R.
r35.
*
[I9041
I
K.B.
493-
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