WAR, ATTACKS ON PORTS AND DISRUPTED DELIVERIES: FORCE MAJEURE OR FRUSTRATION UNDER ENGLISH LAW?
14 August, 2026
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Against the backdrop of the full-scale war in Ukraine, the issue of performance and termination of international trade contracts due to unforeseen circumstances has become particularly relevant.
This issue is particularly acute in shipping and agricultural trade. The Black Sea and the Danube remain important export and import routes, while port infrastructure, terminals, warehouses and shipping are regularly exposed to security risks.
Missile and drone attacks may result in damage to port infrastructure, terminals and cargo. Shipowners may refuse to call at certain ports or may change their routes. These circumstances, in turn, may lead to delivery delays, failure to perform contractual obligations and defaults under international trade contracts.
In such circumstances, parties increasingly face the question: do wartime circumstances constitute force majeure, do they release a party from liability, and can a contract be terminated under the doctrine of frustration?
Force Majeure
Under English law, force majeure is primarily a contractual mechanism. Therefore, the first step is to refer to the contract itself and analyse the wording of the relevant clause.
The mere fact of war, an attack on a port, closure of a port or a shipowner’s refusal to call at a port does not automatically release a party from its obligation to perform the contract.
First of all, it is necessary to determine:
- whether the relevant event falls within the wording of the force majeure clause;
- whether there is a causal link between the event and the impossibility of, or impediment to, performance of the particular obligation;
- whether the party could have performed the contract by alternative means;
- whether the contract requires the party to use reasonable endeavours to overcome the consequences of the relevant event;
- whether the contractual procedure and time limits for serving a force majeure notice have been complied with.
For example, damage to port infrastructure may prevent the loading or unloading of a particular vessel. However, if the contract allows for the use of another port or another method of performance, the question of force majeure becomes less straightforward.
This is particularly important in GAFTA and FOSFA contracts, where it is necessary to analyse not only the occurrence of wartime circumstances themselves, but also the specific wording of the force majeure clause, the shipment period, the nature of the impediment to performance and the notification procedure prescribed by the contract.
Late service of a notice or failure to comply with the contractual procedure may have significant consequences for a party’s ability to subsequently rely on force majeure.
At the same time, a force majeure clause does not necessarily result in the final termination of the contract. Depending on its wording and the relevant circumstances, the consequences may include, for example, temporary relief from performance, an extension of time, or a right to terminate the contract after a specified period.
What if There Is No Force Majeure Clause?
In that case, English law does not provide a general rule under which war or another extraordinary event automatically releases a party from its contractual obligations.
However, in certain circumstances, the doctrine of frustration may apply.
The Doctrine of Frustration
Frustration is an independent doctrine of English law and, unlike force majeure, does not require a specific contractual provision.
It may apply where, after the contract has been entered into, an event occurs through no fault of the parties which makes performance of the contract impossible, illegal, or so radically different from what the parties originally contemplated that the contractual obligation effectively becomes of a different nature.
It is not sufficient that the contract has merely become more difficult or economically disadvantageous to perform.
For example, an increase in freight costs, the need to change the route, a delay to the vessel or the need to use an alternative port do not automatically amount to frustration. The particular circumstances and the extent to which the nature of contractual performance has changed must be assessed.
Importantly, a party cannot simply “declare” that a contract has been frustrated. If a dispute arises, the question of whether frustration has occurred may be determined by a court or arbitral tribunal.
What Happens When the Contract Has Already Been Disrupted?
In practice, the greatest risks arise precisely when the parties need to decide what to do next.
For example:
- the seller is unable to load the goods within the agreed period because of an attack on the port;
- the vessel does not call at the port because of security risks;
- the buyer does not accept the goods because delivery is impossible;
- the cargo is damaged or destroyed;
- the shipment period has expired and delivery has not taken place;
- the counterparty invokes force majeure after a default has already occurred;
- one party declares cancellation, while the other disputes its right to do so;
- following the disruption of the contract, the goods have to be sold or replacement goods purchased at a different price.
In each such case, a separate question arises: which party bears the contractual risk and what damages may the other party claim?
It is particularly dangerous to terminate the contract prematurely or effectively acknowledge one’s own breach of contractual obligations. If reliance on force majeure proves unjustified, the party may itself end up in the position of the defaulting party and face claims for the recovery of damages.
If your contract has already been disrupted or is at risk of disruption due to war or security-related circumstances, it is important to assess your legal position before serving a force majeure, cancellation or default notice, or agreeing to the counterparty’s demands.
Key Takeaways
It is important to remember that:
- War does not automatically amount to force majeure.
- The existence of a force majeure clause does not automatically mean that the contract is terminated.
- A late notice may deprive a party of the right to rely on force majeure.
- A change of route, an increase in freight costs or a delay to a vessel does not always amount to frustration or force majeure.
- Premature cancellation may turn a party into the defaulting party, exposing it to claims for damages.
What Should You Do if You Are Already Facing a Similar Situation?
If your contract has already been disrupted or is at risk of disruption due to war or security-related circumstances, Interlegal can promptly:
- analyse the contract;
- assess the factual circumstances and correspondence between the parties;
- determine which party bears the risk of non-performance;
- assess whether there are grounds for force majeure or frustration;
- assess potential claims for damages;
- develop a further strategy — from pre-arbitration negotiations to arbitration under English law, GAFTA or FOSFA rules.
We will help you assess your legal position, risks and possible next steps before a notice is served or a decision is made to terminate the contract.
