Frustration of contracts of affreightment in the event of capture of merchant ships by pirates in waters off Somalia

Abstract

This thesis examines the application of the doctrine of frustration under the English private law of contracts to situations of capture of merchant ships for ransom by pirates operating according to the model which has developed in recent years off the coast of Somalia. The examination is centred on the question whether and how contracts of affreightment (or carriage of goods by sea) (including time and voyage charters as well as bills of lading) which may have been concluded by a captured ship would be terminated in the event of capture pursuant to the doctrine. The thesis analyses the wording of standard carriage contract forms and clauses, as well as the provisions of relevant international conventions and statutes, which could deal with the standing of contracts following a capture.
The outcome of the research is that standard contract and clauses often leave the question of the fate of the contract in the event of capture untouched with the result that the doctrine of frustration may apply by default. The contract will only be terminated, however, if an elaborately long detention of the vessel is anticipated, or the prospects of recovery, either against payment of a ransom or through forceful repossession, are very weak.
The thesis equally considers the application of the concept of self-induced frustration by taking several examples of actions or default by one of the parties to the contract of carriage which may have led to or exacerbated the capture scenario. The main findings are that it will usually be difficult to establish self-induced frustration in the event of capture.
An analysis is also made of the application of the concepts of actual and constructive total loss under English marine insurance law to a ship that has been captured by pirates according to the same model of operation.
The consequences of termination of the contract are not discussed in this thesis.

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