The decision of the Court of Appeal in J. Lauritzen A.S. v. Wijsmuller B.V. (The Super Servant Two)1 deals with a number of issues of some considerable practical and theoretical significance in relation to the limits of the doctrine of self-induced frustration and the construction of force majeure clauses. It illustrates the narrow confines within which the doctrine of frustration currently operates and it demonstrates the practical advantages which can be obtained by the incorporation into a commercial contract of a suitably drafted force majeure clause.

The defendants agreed to transport the plaintiffs’ oil rig, using, at their option, either Super Servant One or Super Servant Two (both of which were self-propelling, semi-submersible barges especially designed for the transportation of rigs). Prior to the time of performance of the contract, the defendants allocated Super Servant Two to the performance of the contract with the plaintiffs. They allocated Super Servant One to the performance of other concluded contracts. After the conclusion of the contract, but before the time fixed for performance, Super Servant Two sank and became a total loss while transporting another rig in the Zaire River. The plaintiffs’ rig could not be transported by Super Servant One because of its allocation to the performance of other concluded contracts. At this point the parties entered into “without prejudice negotiations” and it was agreed that the defendants should transport the rig by another, more expensive method. In these circumstances the plaintiffs sued to recover the losses which they had incurred as a result of this more expensive method of transportation, alleging that the defendants were in breach of contract in failing to transport the rig in the agreed manner. The defendants denied liability on two principal grounds. The first was that the sinking of Super Servant Two frustrated the contract between the parties. The second was that the sinking of Super Servant Two entitled them to cancel the contract under cl. 17, which was a force majeure clause.