J Lauritzen AS v Wijsmuller BV (The Super Servant Two) [1990] 1 Lloyd’s Rep 1
Facts
Wijsmuller agreed to transport Lauritzen's drilling rig from Japan to Rotterdam using one of two specialist vessels, Super Servant One or Super Servant Two. It allocated Super Servant Two to the job and committed the other vessel elsewhere. Super Servant Two later sank while carrying out another operation. Wijsmuller cancelled the transport arrangement, arguing that the loss and its remaining commitments prevented performance. Lauritzen disputed the cancellation. The proceedings raised common-law frustration and the operation of express contractual provisions, including the significance of a surviving vessel that the carrier had allocated to other customers.
Legal Issue
Could the carrier rely on frustration after one nominated vessel sank when its other permitted vessel survived but had been allocated to other contracts?
Held
The Court of Appeal rejected the proposed frustration analysis based on the sinking of Super Servant Two and the allocation of Super Servant One to other jobs. The carrier had promised performance using either vessel. The continued existence of the other vessel mattered even though commercial commitments made its use difficult. The carrier's own contractual choices could not simply turn that difficulty into an external frustrating event. The court treated the allocation of available capacity as a risk on the carrier's side, drawing on Maritime National Fish. The case also involved contractual cancellation provisions, which must be kept separate from common-law frustration. It does not establish that every accident affecting an optional method of performance leaves all contractual defences unavailable.
⭐ Legal Principle
A party cannot establish frustration merely by choosing to allocate an available contractual means of performance elsewhere after another means is lost. The contract's promised alternatives and allocation of risk matter; express cancellation or force-majeure provisions require their own construction.
Significance
The Super Servant Two illustrates the difficulty of claiming frustration where non-performance depends partly on a party's own allocation decisions. It should not be reduced to a finding that the vessel's sinking itself was deliberately caused. The relevant choice concerned the remaining means of performance. In a problem, separate the external event, the available alternatives, existing commitments and any express clause. The common-law doctrine and a contractual right to cancel are distinct routes and may produce different results.
Common exam questions about this case
Why was the surviving vessel important?
The contract allowed carriage by either of two vessels, and one remained physically available. Its allocation to other contracts reflected the carrier's commitments and choices. The court therefore did not treat the sinking of the selected vessel as automatically making the promised performance impossible.
Does self-induced frustration mean the sinking was intentional?
No. The relevant reasoning concerned the carrier's choice not to use the surviving alternative, not an allegation that it deliberately sank the other vessel. A frustrating event and the contractual consequences of allocating resources must be distinguished, especially where the agreement permits alternative performance.
Could a cancellation clause still matter?
Yes. A contractual cancellation or force-majeure provision may allocate risks differently from the common-law doctrine of frustration. Its wording and conditions must be examined separately. Rejection of frustration does not justify ignoring an express contractual route or assuming that the same test governs both.