wide range of customers, might have been able to raise the price of his end product, thereby spreading the increased cost among a greater number of people. In some instances, it is arguable that the best insurer principle has been ignored with the result that the judicial allocation of risk may have been subject to criticism. Arguably, such a case was Tatem Ltd v Gamboa, in which the ship detained during the Spanish Civil War was considered to be at the risk of the owner, because the contract was held to be frustrated. However, it has been observed already that the contract provided that the charterer would not be responsible for hire charges if the ship was lost, but made no provision for the allocation of responsibility should the ship be detained. Although the parties were silent on the matter, one reason for not making any such provision might have been that the owners would have found it easier to insure against loss rather than detention and that it was the implied intention of the parties that the charterer should obtain insurance in this last respect, if he was able to do so. In relation to long term contractual arrangements such as a lease of land, there used to be a view to the effect that the doctrine of frustration had no application. It is clear now that this is no longer the case and that there is no

doi:10.4324/9781843141518-152

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wide range of customers, might have been able to raise the price of his end product, thereby spreading the increased cost among a greater number of people. In some instances, it is arguable that the best insurer principle has been ignored with the result that the judicial allocation of risk may have been subject to criticism. Arguably, such a case was Tatem Ltd v Gamboa, in which the ship detained during the Spanish Civil War was considered to be at the risk of the owner, because the contract was held to be frustrated. However, it has been observed already that the contract provided that the charterer would not be responsible for hire charges if the ship was lost, but made no provision for the allocation of responsibility should the ship be detained. Although the parties were silent on the matter, one reason for not making any such provision might have been that the owners would have found it easier to insure against loss rather than detention and that it was the implied intention of the parties that the charterer should obtain insurance in this last respect, if he was able to do so. In relation to long term contractual arrangements such as a lease of land, there used to be a view to the effect that the doctrine of frustration had no application. It is clear now that this is no longer the case and that there is no

ABSTRACT

In some instances, it is arguable that the best insurer principle has been ignored with the result that the judicial allocation of risk may have been subject to criticism. Arguably, such a case was Tatem Ltd v Gamboa,83 in which the ship detained during the Spanish Civil War was considered to be at the risk of the owner, because the contract was held to be frustrated. However, it has been observed already that the contract provided that the charterer would not be responsible for hire charges if the ship was lost, but made no provision for the allocation of responsibility should the ship be detained. Although the parties were silent on the matter, one reason for not making any such provision might have been that the owners would have found it easier to insure against loss rather than detention and that it was the implied intention of the parties that the charterer should obtain insurance in this last respect, if he was able to do so.