The Super Servant Two [1990]

The Super Servant Two [1990] 1 Lloyd’s Rep 1;

(1989) Independent, 30October; (1989) Financial Times, 24October

CONTRACT, FRUSTRATION OF CONTRACT, FORCE MAJEURE, SHIPPING LAW, PROBLEM WITH DELIVERY, CONTRACTUAL DUTY PRIOR TO THE COMMENCEMENT OF THE CONTRACT

Facts

The defendant agreed to transport the plaintiff’s drilling rig from Japan to Rotterdam, using a transportation unit, described as Super Servant One or Super Servant Two. Under the contract, the defendant could replace the transportation unit by other means of transport or cancel the contract on grounds of force majeure or any other circumstances, which reasonably prevented him from the performance of the contract. There was a duty of care clause in favour of the plaintiff.

Super Servant Two sank before the performance of the contract and the defendant informed the plaintiff that he could not use Super Servant One for the transportation of the rig as Super Servant One was engaged on another contract. The rig was transported by burge and tug under a later “without prejudice” agreement between the parties. The plaintiff claimed damages for breach of the contract of carriage. The defendant claimed that the contract had been frustrated. The court of first instance ruled in favour of the plaintiff. The plaintiff appealed to the Court of Appeal.

Issues

Was the defendant entitled to cancel the contract on grounds of frustration?

Decision/Outcome

The appeal was dismissed.

(1) The defendant owed no contractual duty to the plaintiff in regards to events that happened before the contract of carriage commenced.

(2) The defendant was not entitled to cancel the contract if the loss of the vessel was caused by the negligence of the defendant, his servants or agents, before the time for the performance had arrived.

(3) The contract provided for the use of another vessel and so the sinking of the Super Servant Two did not frustrate it.