||All England Reporter
|| All ER (D) 99 (Jun)
|| EWCA Civ 547
||Court of Appeal, Civil Division
Rix, Wall and Hooper LJJ
||Elizabeth Blackburn QC and Mark Jones (instructed by Duvan Vassiliades) for the claimants.
||Nicholas Hamblen QC and Timothy Hill (instructed by Eversheds LLP) for the defendant.
||12 June 2007
Shipping - Charterparty - Frustration - Delay - Port authority seizing vessel to secure unrelated debts - Whether actions of port authority amounting to frustration.
Shipping Charterparty. The application of the doctrine of frustration required a multi-factorial approach. Among the factors which had to be considered were the terms of the contract itself, its matrix or context, the parties' knowledge, expectations, assumptions and contemplations, in particular as to risk, as at the time of contract, at any rate so far as those could be ascribed mutually and objectively, and then the nature of the supervening event, and the parties' reasonable and objectively ascertainable calculations as to the possibilities of future performance in the new circumstances. The application of the doctrine could often be difficult. It was not to be lightly invoked; the mere incidence of expense or delay or onerousness was not sufficient; and there had to be a break in identity between the contract as provided for and contemplated and its performance in the new circumstances. The doctrine was one of justice. Ultimately the application of the test could not safely be performed without the consequences of the decision, one way or the other, being measured against the demands of justice.
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