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The words "without default on either side" do not impose on party seeking the defence under the doctrine onus of establishing that frustration was not brought into operation by his default …

Last updated: 21-Jun-2015

Per Lord Justice Kennedy in Steamship Knutsford Ltd. v Tillmanns & Co. [1908] 2 K.B. 385 at p.407:

…Inaccessibility is a question of fact …For example, inaccessibility might be one thing for a steamer and another thing for a sailing ship, but, subject to that, it is a fact relating to the conditions existing which affect the entrance of a vessel-the access of the vessel to the port for which she is destined; and it means, as it appears to me, either something which is a permanent obstacle to access, or, if the nature of the obstacle is not absolutely permanent, inaccessibility means an impossibility of access in respect of the duration of time which is so far lasting as to make the delay of the ship until the obstacle shall have ceased to exist a delay which would practically and in a mercantile sense frustrate the adventure…

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