Scottish Court of Session Decisions

John Hood, linen importer, Belfast, pursuer, brought an action against the Anchor Line (Henderson Brothers) Limited, Glasgow, defenders, for payment of £10,000 damages for personal injuries sustained by him while a passenger on one of thedefenders'steamers on the voyage between New York and Glasgow.

The contract between the parties was expressed on the ticket received by the pursuer on booking his passage, and was in the following terms:—

“ Anchor Line.

Transatlantic Steam Packet Ships

Sailing Regularly between

New York and Glasgow via Moville

(Londonderry) and

New York and Mediterranean Ports.

Agency at June 16th, 1914.

We hereby engage that the persons undernoted (equal to 2 adults) shall De provided with Saloon Passage from New Fork to Glasgow in the British steamship ‘California’ to sail from New York on the 20th day of June 1914 at noon (unless prevented by unforeseen circumstances), and we have received the sum of One hundred and fifty 2/100 dollars in payment of same.

Room D.

Berth.

Name. Age.

Mr John Hood.

Mrs John Hood

“ Henderson Brothers,

General Agents,

per Wm. B. Newson, Sub-Agent.

“ Passengers are particularly requested to carefully read the above contract.”

The pursuer averred—“The pursuer on booking his passage received a ticket. His attention was not drawn to the condition quoted, and he was not aware of same.”

The defenders pleaded, inter alia—“(1) The pursuer's averments being irrelevant and insufficient, if proved, to support the conclusions of the summons, the action ought to be dismissed. (2) In respect that in terms of the contract between the pursuer and the defenders the pursuer cannot in any event recover a larger sum than £10, the action is incompetent in the Court of Session and ought therefore to be dismissed.”

The facts of the case appear from the opinion of the Lord Ordinary ( Anderson), who on 16th December 1915 allowed parties a proof before answer.

Opinion.—“The pursuer is the chief director and shareholder of John Hood & Company, Limited—a company which carries on business as linen importers in New York and Belfast. The management of this business by the pursuer necessitates his visiting several times a year the United Kingdom and the Continent of Europe, and he avers that he has frequently crossed the Atlantic by the defenders' steamers. In June 1914 he booked for himself and his wife two first-class berths in the defenders' steamship ‘California’ from New York to Glasgow, and on 16th June he paid the fares and received the document. He had this document in his possession until the ‘California’ sailed from New York on 20th June.

On 28th June the ‘California’ ran ashore on Long Island, off the north coast of Ireland. On the morning of the 29th the passengers on the ‘California’ were transhipped by means of the ‘California's ‘lifeboats to the steamship’ Cassandra ‘of the Donaldson Line, which had come to the assistance of the’ California,’ and was standing by at some distance from her. The passengers on arriving at the side of the ‘Cassandra’ were transferred to her deck by means of an iron bucket or trough attached to a rope and hauled up by means of a winch and derrick. As the pursuer was being hoisted in this manner he avers that when he had reached the level of the deck of the ‘Cassandra’ the bucket or trough turned over and threw him out. In his fall he struck the side of the lifeboat and fell into the sea, from which he was rescued with difficulty. He alleges that he sustained serious injuries, for which he claims £10,000 as damages. The defenders deny fault, and plead that the pursuer was guilty of contributory negligence.

The defenders plead further that the action is incompetent in the Court of Session in respect that in terms of the contract between the pursuer and defenders he cannot in any event recover a larger sum than £10.

On this plea, so important to both parties, I heard an argument in the procedure roll, and what I have to determine is whether or not I can dispose of it without further inquiry.

The material available for the determination of the question at this stage consists of—(1) the terms of the document No. 11 of process, (2) the averments on record, and (3) the undisputed fact that the pursuer had the document in his possession for four days prior to embarking.

The stipulations contained in No. 11 of process are all printed in legible type on the face of the document. They are preceded by these words, printed in bolder type—“‘Notice.—This ticket is issued to and accepted by the passenger subject to the following conditions’; and at the foot of the document this sentence appears in bold type—‘Passengers are particularly requested to carefully read the above contract.’

The pursuer's averments on this part of the case are these—‘The pursuer on booking his passage received a ticket. His attention was not drawn to the conditions quoted, and he was not aware of same.’

There are many decisions bearing on this question. They will all be found in the case of Williamson which I decided last session ( v. infra, following case). Williamson is before the Second Division on reclaiming note, and as the present case is marked to that Division it seems to me that I may with propriety refer to the case of Williamson for my views as to the law which has to be applied.

In Williamson I decided that a question like the present is one of fact and not of law, and that the proper mode of expressing the question is this—Did the defenders do what was reasonably sufficient to giye the pursuer notice of the condition? The Solicitor—General, for the defenders, while disclaiming acceptance of the views I gave effect to in Williamson, argued the present question on the footing that these views were sound.

He maintained that the defenders had discharged any onus which was on them of establishing the pursuer's assent to the conditions (1) by the production of No. 11 of process, which shows that the conditions were made plainly manifest on the face of

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the document, and (2) by establishing that the pursuer had reasonable opportunity before embarking to ascertain what the conditions of carriage were. It was asked, What more could the defenders have done, assuming that their liability can be limited in the way adopted, to bring the conditions to the knowledge of the pursuer. It is difficult to give this query a satisfactory answer.

On the other hand it was maintained for the pursuer that the document No. 11 of process was primarily a receipt for the passage-money, and that nothing was done by the defenders, extrinsically of the document, to inform the pursuer that it was anything else. It was contended that if the pursuer made out that he accepted the document as being nothing more than a receipt, and that on this assumption he never troubled to read the document, then he cannot be held to have assented to the conditions printed thereon.

If this contention is sound the result seems to be that shipowners cannot effectively limit their liability in the way adopted. This would be to carry the decisions much further than they have yet gone, as it seems to me the cases have hitherto assumed that liability may be effectively limited in this way.

The pursuer's counsel further maintained that his averments, if proved, would establish a stronger case against the defenders than was made out in the case of Richardson v. Rowntree, [1894] AC 217, because on the averments in the present case every one of the three questions which were put to the jury would fall to be negatived.

In the case of Williamson the Second Division ordered a proof before answer to be taken ( 52 S.L.R. 241). If I could hold that the Division by their decision in that case laid it down that a similar course should be followed in all cases of this nature, there would be an easy solution of the question I have to decide. But I do not think the Division were enunciating any such general rule of procedure. Each case falls to be decided on its own averments.

I have found the decision of this question a matter of difficulty, but I have reached the conclusion that the proper procedure is to allow a proof before answer for these reasons in addition to those already alluded to—(1) because I am not aware of any case of this nature which has been decided without proof, and (2) because there is less likelihood of injustice being done after a full disclosure of the facts than there would be if the case were decided on the pleadings.”

The defenders reclaimed, and argued—A shipowner was not a common carrier and was not an insurer. As between shipowner and passenger there was perfect freedom of contract. If a shipowner carried passengers for payment, then in the absence of an express agreement to the contrary he was bound to carry with reasonable care and was liable for the negligence of his servants, but he could contract that his liability for such negligence could be limited or excluded. It was the duty of a passenger to make himself acquainted with the terms of the contract on which he travelled, provided he had an opportunity to do so. In the present case on the pursuer's averments he had such an opportunity. When the passenger took his ticket on board the ship or at an office at the quay, the owner was bound to give him notice of any limiting terms on the ticket, but that only applied when the ticket was taken at the beginning of the journey on the quay or on board the ship. If at the time of taking the ticket the passenger accepted the ticket knowing that its terms regulated his right of passage, he was bound by any conditions on the face of the ticket limiting his liability whether he had read them or not. The present case was ruled by Grand Trunk Railway Company of Canada v. Robinson, [1915] AC 740. In that case no doubt the pursuer signed the ticket, but that fact was not made the ground of judgment. In the present case the pursuer admitted that there were conditions on the ticket. The pursuer could not say he knew the conditions but did not think he was bound by them— W. H. White & Company, Limited v. Dougherty, 1891, 18 R. 972, 28 S.L.R. 732. If the pursuer knew there were conditions he could not say he did not read them— Parker v. South—Eastern Railway Company, 1877, 2 C. P.D. 416, per Mellish, L.J., at p. 421. Where a shipowner gave a passenger a ticket with the conditions printed on it so clearly that he could not fail to read it, and sufficiently long before the departure of the ship that he had time to do so, he would be bound by the conditions— Acton v. Castle Mail Packet Company, 1895, 73 L.T. 158, 8 Asp. Mar. Law Cas. 74; Cooke v. T. Wilson & Sons, 1915, 32 T.L.R. 160; Marriott v. Yeoward Brothers, [1909] 2 KB 987; Watkins v. Ryemill, 1883, 10 QBD 178; Lyons & Company v. Caledonian Railway Company, 1909 S.C. 1185, 46 S.L.R. 848; Ryan v. Oceanic Steam Navigation Company, Limited, [1914] 3 KB 731. The present case was on the same footing re notice as many cases in other branches of the law, e.g., auction sale-room cases and cases under the Food and Drugs Acts and Weights and Measures Acts.

Argued for the pursuer—The pursuer had stated a relevant case. Mere notice on the ticket without the assent of the passenger could not discharge the shipowner from performing what was the essence of his duty, viz., to carry with care. A passenger was not bound by limiting conditions unless he knew or must be held to have known of the conditions and assented to them either expressly or impliedly. Any limitation or exclusion of the legal liability of the shipowner ought to be most strictly construed and the passenger's assent thereto distinctly proved. The onus was on the shipowner to prove that the conditions limiting or excluding liability were assented to by the passenger. Whether the defenders did what was reasonably sufficient to notify the pursuer of the conditions was entirely a question of fact for the jury and not a question of law for the Court— Zunz v. South-Eastern Railway Company,

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1869, L.R. 4 Q.B. 539, which was founded on Van Toll v. South-Eastern Railway Company, 1862, 12 C.B. (N.S.) 75; Parker v. South-Eastern Railway Company, cit. sup.; Henderson and Others v. Stevenson, 1875, 2 R. (H.L.) 71; Richardson, Spence, & Company v. Rowntree, [1894] AC 217; Harris v. Great-Western Railway Company, 1876, 1 QBD 515; Hooper v. Furness Railway Company, 1907, 23 T.L.R. 451; Stephen v. The International Sleeping Car Company, Limited, 1903, 19 T.L.R. 621; Skrine v. Gould and Others, 1912, 29 T. L. R. 19; Caledonian Railway Company v. Symington, 1912 S.C. (H.L.) 9, 49 S.L.R. 49; Caird v. Adam, 1907, 15 S.L.T. 543; Grieve v. The Turbine Steamers, Limited, 1903, 11 S.L.T. 379; Denton v. Great Northern Railway Company, 1856, 5 E. & B. 860. [M'Connell & Reid v. Smith, 1911 S.C. 635; 48 S.L.R. 564, was referred to by the Lord Justice-Clerk.] In some of the earlier cases the construction placed by the Courts on limiting liability had been more favourable to the carrier, e.g., Stewart v. The London and North-Western Railway Company, 1864, 3 H. & C. 135, but that law had been overruled in Henderson and Others v. Stevenson, cit. sup., which was further supported by Richardson, Spence, & Company v. Rowntree, cit. sup. Harris v. The Great Western Railway Company, 1876, 1 QBD 515, was a decision against the passenger, but did not affect the principle. Cases arising out of the Food and Drugs Acts, the Weights and Measures Acts, and auction sales depended on the interpretation of special Acts raising wholly different questions— Galbraith's Stores, Limited v. M'Intyre, 1912 S.C. (J.) 66, 6 Ad. 641, 49 S.L.R. 783.

At advising—