THE NEED OF LAW REFORM. I. FRUSTRATION OF ADVENTURE (Concluded). The inevitable reaction against the current in which the Courts have embarked has recently displayed itself in an attempt to mark off regions of human activity in which the doctrine of commercial frustration is not to be allowed to operate. The field of battle chosen was that consisting of time charterparties. In Admiral Shipping Co. Ltd. v. Weidner, Hopkins & Co., Bailhache, J., had held that in the circumstances of that case, commercial frustration had not set in, and expressed a doubt whether that doctrine could have any application to a time charterparty, or to the happening of a contingency for which a charterparty makes provision. The learned judge's doubt was echoed and emphasized in the House of Lords in the notable case of F. A. Tamplin SS. Co. v. Anglo-Mexican Petroleum Products Co. Ltd.,2 where a steamer under timecharter had been requisitioned by the Admiralty. By a majority of three to two the House held that the contract had not been commercially frustrated, and Lord Parker, one of the majority, expressly concurred. in the views expressed by Bailhache, J., in the former case. Meanwhile the Court of Appeal had overruled Bailhache, J., in the Weidner-Hopkins Case, and expressly stated that his view in that case was mistaken, so that when the question again come before him in the case of the Anglo-Northern Trading Co. Ltd. v. Emlyn, Jones and Williams, he found himself in the position of having to choose between his own for 1 [1916] 1 K. B. 429. 3 merly expressed opinion explicitly approved by Lord Parker and impliedly by Lord Buckmaster in Tamplin's Case on the one hand, and the opinion of the Court of Appeal in the Weidner, Hopkins Case on the other. In Tamplin's Case, a tank steamship was chartered for sixty months to be employed in such lawful trades for voyages between safe ports within certain limits for the carriage of oil as the charterers should direct The charterers were to pay for the use and hire of the vessel a fixed sum per month. The charterparty contained an exception of arrests and restraints of princes, and the charterers had the liberty of sub-letting the steamer on admiralty or other service. After the outbreak of the war, when the charterparty had nearly three years to run, the steamer was requisitioned by the Admiralty, and after the necessary alterations, which of course entirely transformed the vessel from being an oil-tanker, was employed by it in the transport of troops. The House of Lords, as has been said, held by a majority that the contract had been neither determined nor suspended. In Anglo-Northern Trading Co. Ltd. v. Emlyn, Jones & Williams, by a charterparty dated October 2nd, 1915, a vessel was hired for a term which would expire on November 19th, 1916, the hire being payable monthly. In the event of loss of time from certain causes preventing the working of the vessel hire was to cease until the vessel was again in an efficient state to resume her service: and there was an exception which included restraint of princes, but there was no provision for cessation of hire in respect of any interruption of the services of the vessel due to that exception. On July 26th, 1916, the vessel was requisitioned by the Admiralty and continued under that requisition until after November 19th, 1916, the rate of hire payable by the Admiralty being considerably less than that payable by the charterers to the owners. Bailhache, J., decided that the contract had been determined. Furthermore in an earlier case of Scottish Navigation Co. Ltd. v. W. A. Souter & Co., a Britisk vessel under time charter had been caught and shut up in a Russian port by the outbreak of war while partly loaded. There was no prospect of the charterparty, which was for one Baltic round, being completed within any ascertainable time. The learned judge, however, held that the doctrine of frustration had no application, as it applies only where the object which both parties had in view is frustrated, and here the shipowner's object, which was to receive the chartered hire, had not been frustrated. If this view be correct, then almost all the cases from Taylor v. Caldwell downwards have been wrongly decided, for the objects of the various lessors and shipowners is never anything other than the receipt of the rent or hire-money, and this object need never be frustrated by anything else than the bankruptcy of the other contracting party. Whether deliberately or not, Sankey, J., has supplied the reductio ad absurdum of a vicious principle. Lastly the case of Anglo-Northern Trading Co. Ltd. v. Emlyn, Jones & Williams," seems hard to recóncile with cases of the class of Grimsdick v. Sweetman® and Hart's Trustees v. Arrol,' as explained and applied in Vancouver Breweries Ltd. v. Dana. In the latter cases, the rule in Taylor v. Caldwell was made to rest on the consideration of a total failure of consideration. Now in Modern Transport Co. Ltd. v. Duneric SS. Co., it was held that a requisition by the Admiralty [1916] 1 K. B. 675. 7 [1903] 6 S. C. 36. VOL. XXXVIII. C.L.T.-15. operated not upon the owner's interest under a timecharter, but upon the interest of the charterer. In other words, the charterer is entitled to the hire paid by the Admiralty, and the owner is entitled to the charter-hire. The charterer does, therefore, obtain some consideration, though, if the hire paid by the Admiralty is less than the hire payable under the charter, the charterer has made a bad bargain. There is therefore no total failure of consideration, nor was there any total failure of consideration in the Coronation Cases. In Vancouver Breweries Ltd. v. Dana, the lessee could still use the demised premises, though not for the only purpose for which he wanted them: in the Coronation Cases the licensee could still avail himself of his license, though not for the only purpose for which he wanted it. In the case of time-charters, the charterer could still make money out of the ship, though, where the ship had been requisitioned by the Admiralty at a lesser rate of hire, not so much money as he had anticipated. Tamplin's Case discloses the full extent of the evil which has been wrought in the body of the Common Law. Upon the simple question of whether a contract was or was not to be maintained, in other words, whether a party was bound to perform his promise, the supreme tribunal was divided in the proportion of three for the affirmative, and two for the negative. The composition of the House of Lords upon the hearing of any particular appeal depends almost wholly upon accident, and it was therefore due merely to chance and the existence or non-existence of engagements in another Court or upon other business that the decision was not the other way. Moreover no one who reads the opinions can help being filled with admiration at the literary elegance, the acuteness of perception, the profundity of learning, and the dialectic skill of these compositions, but this admira tion must be very materially tempered by the reflection that these great qualities were lavished in support of contradictory views upon a question which in a healthy condition of law and morals it ought never to be possible to raise. This case is, of course, but one instance of the pathological condition of English law. As soon as a body of jurisprudence has come to depend for its expression upon the opinions, necessarily swayed by individual idiosyncrasies of a fluctuating body of men, however brilliant and eminent, it has ceased to be a system of law. The primary function of law is the precise delineation of the area within which each citizen may realise his own freedom of will without infringing upon that of every citizen. To perform this function with any measure of success, its rules must be in a high degree definite, stable, and easy of ascertainment. This great and apparently obvious principle was never lost sight of by the founders of the Common Law. They realised, also, that in any system of general application cases of hardship are likely to arise. But they never permitted the sometimes pitiable consequences of the folly or ill-fortune of the particular litigant who was before the Court to divert them from the rigid maintenance of the rules which govern the lives of millions. who will never enter a Court of law. Unfortunately their successors have not been equally successful in resisting the intrusion of considerations of a temporary and sentimental importance. The Common Law accepted in all its consequences the maxim pacta sunt servanda, because that maxim must have embodied the national habit of mind, at the time. The favourite remark of modern Courts that "each case must be decided upon its own circumstances," is a reflection of that shrinking from realities, that dislike of abiding the consequences of actions, that love of equivocations, subterfuges, half-measures, compromises and expedients, which have gone far in demora |