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is that they could have got a licence for the St. Cuthbert if they had so minded. If the case be figured as one in which the St. Cuthbert was removed from the category of privileged trawlers, it was by the appellants' hand that she was so removed, because it was their hand that guided the hand of the
Minister in placing the licences where he did and thereby excluding the St. Cuthbert. The essence of "frustration" is that it should not be due to the act or election of the party. There does not appear to be any authority which has been decided directly on this point. There is, however, a reference to the question in the speech of
185:, a steam trawler fitted with an otter trawl, from Ocean Trawlers Ltd. The hire was to last for twelve months. Both parties knew that the use of such a vessel without a license from the Minister was illegal, under the Fisheries Act (c. 73 Revised Statutes of Canada) 1927. Subsequently, Maritime National Fish applied for five licenses from the Canadian government, for the five trawlers they were using. However, only three were granted. Maritime National Fish did not name the
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in Bank Line, Ltd. v. Arthur Capel & Co. What he says is: "One matter I mention only to get rid of it. When the shipowners were first applied to by the
Admiralty for a ship they named three, of which the Quito was one and intimated that she was the one they preferred to give up. I think it is now
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It is immaterial to speculate why they preferred to put forward for licences the three trawlers which they actually selected. Nor is it material, as between the appellants and the respondents, that the appellants were operating other trawlers to three of which they gave the preference. What matters
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from Ocean
Trawlers as one of the licensed vessels, and refused to go through with the hire, on the grounds the contract was frustrated. At first instance, Maritime National Fish prevailed, the trial judge holding that it was "not unreasonable to imply a condition to the effect that if the law
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202:. Maritime National Fish had not been bound not to select the hired trawler, they had merely chosen not to in lieu of only receiving three of the five licenses they had expected:
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This establishes clearly that frustration must be the fault of neither party; any supervening event must be unforeseeable and vitiated by entirely external factors.
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well settled that the principle of frustration of an adventure assumes that the frustration arises without blame or fault on either side."
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prohibits the operation of this boat as a trawler the obligation to pay hire will cease".
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The reversal of this judgment was subsequently upheld by the
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85:, AC 524; (1935) 51 Ll L Rep 299
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281:English frustration case law
99:Supreme Court of Nova Scotia
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276:Canadian contract case law
226:Frustration in English law
291:1935 in Canadian case law
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67:12 April 1935
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171:frustration of purpose
153:frustration of purpose
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71:1935-04-12
79:Citations
220:See also
194:Judgment
147:Keywords
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64:Decided
167:UKPC 1
83:UKPC 1
232:Notes
177:Facts
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