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.
Updated 21 March 2026
This case summary remains legally accurate. The Super Servant Two [1990] 1 Lloyd’s Rep 1 is a Court of Appeal decision and continues to be good law on the doctrine of frustration in English contract law. The core principles stated — that frustration cannot be relied upon where the supervening event results from the defendant’s own fault or negligence, and that frustration will not apply where the contract itself provides for the relevant contingency (here, the availability of an alternative vessel) — remain settled and unaltered by subsequent legislation or case law. These principles are consistently cited in academic texts and case law on frustration. There have been no statutory amendments affecting the analysis. The Law Reform (Frustrated Contracts) Act 1943, which governs the consequences of frustration, also remains unchanged. Readers should note that this summary covers the Court of Appeal decision only and does not address the first instance judgment in detail; the appeal was in fact brought by the defendant (not the plaintiff as stated), though this does not affect the accuracy of the legal principles outlined.
