J Lauritzen A/S v Wijsmuller BV (The Super Servant Two) [1990] is the leading authority that frustration cannot be pleaded where the impossibility arises from the defendant’s own commercial choice or “election”.

Facts of the Case

Wijsmuller agreed to transport a drilling rig for Lauritzen, the contract allowing the use of either Super Servant One or Super Servant Two at Wijsmuller’s option. Before performance, Super Servant Two sank while working on another contract. Wijsmuller said it could not perform with either vessel, as Super Servant One had been allocated to other clients.

Key Details and Legal Principles

  • Definition of frustration: Bingham LJ described it as a doctrine to “mitigate the rigour of the common law’s insistence on literal performance” where a change makes performance “radically different”.
  • The “election” bar: a plea fails if the event is due to the “act or election” of the party relying on it. Because Wijsmuller had the option to use Super Servant One and chose to use it elsewhere, the impossibility was self-induced.
  • Automaticity: frustration kills a contract automatically and forthwith; here it did not, since Wijsmuller took two weeks to review options.
  • Negligence and fault: a frustrating event must occur “without blame or fault”; if the sinking was caused by Wijsmuller’s negligence, they could rely on neither frustration nor the cancellation clause.

Bingham LJ rejected a “legalistic” definition of fault, asking pragmatically whether the party had the “means and opportunity to prevent” the event. McKendrick notes the doctrine has limited practical significance today because most commercial contracts contain force majeure clauses: where the contract makes express provision (e.g. “perils of the sea”), the contract regulates the impact, not the doctrine. Frustration also cannot be invoked for foreseeable events — here the parties used an option precisely because they foresaw one vessel might be unavailable.

Related Cases

  • Davis Contractors: established the “radically different” threshold applied here.
  • Maritime National Fish Ltd v Ocean Trawlers Ltd: the primary parallel — frustration must not be due to the party’s “act or election”.
  • Canada Steamship v The King: rules of construction used to interpret the force majeure clause against covering one’s own negligence.
  • National Carriers Ltd v Panalpina (Northern) Ltd: a frustrating event significantly changes the nature of the outstanding obligations.
  • Taylor v Caldwell (1863): the foundational case, from which Super Servant Two marks a departure from the “implied term” theory.
  • The Nema: the restrictive approach — frustration is “not lightly to be invoked”.