W agreed to transport L’s rig and had two boats at its disposal. It allocated boat 2 for this job (NB internally i.e. it wasn’t stated in the contract which boat would be used) and boat 1 for other contracts. Boat 2 sank before performance and boat 2 was unavailable since it was engaged n other contracts. CA held that frustration was not applicable since it was W’s own election not to use the remaining boat and, even if this choice was not a real one, due to the other contracts, it should still be imputed to W as a choice since W controls how many contracts it will enter into. It is therefore fair to allow the risk to go with W (i.e. if W has over-exposed himself, he should bear the consequences of this position). Bingham LJ also said that CA here was restricted by Maritime National Fish to find frustration where there was any election.
CW: this is harsh and can be criticised. Firstly it is not a real option open to W to perform since ship 1 was unavailable. Secondly, the claim that W is still to be blamed regardless of this because he controls how many contracts he enters into is de facto returning to the absolute liability principle of Paradine. This is because if we require parties to perform in all circumstances or pay damages, even where this is impossible, then there are no cases where frustration will apply. It would be like saying that if a contract fails to provide for a situation then performance must continue, as in Paradine. Thirdly, this case could have been distinguished from Maratime National Fish. In that case there was a genuine choice for M as to whether or not M would use O’s boat and alow performance. Here W had no genuine choice, since its movements were restricted by other contracts.