21 January 1964
|David MacBrayne Ltd|
At delivering judgment on 21st January 1964,—
The question is, what was the contract between the parties ? The contract was an oral one. No document was signed or changed hands until the contract was completed. I agree with the unanimous view of the learned Judges of the Court of Session that the terms of the receipt which was made out by the purser and handed to Mr M'Sporran after he paid the freight cannot be regarded as terms of the contract. So the case is not one of the familiar ticket cases where the question is whether conditions endorsed on, or referred to in, a ticket or other document handed to the consignor in making the contract are binding on the consignor. If conditions not mentioned when this contract was made are to be added to, or regarded as part of, this contract, it must be for some reason different from those principles which are now well settled in ticket cases. If this oral contract stands unqualified, there can be no doubt that the respondents are liable for the damage caused by the negligence of their servants.
The respondents' case is that their elaborate printed conditions form part of this contract. If they do, then admittedly they exclude liability in this case. I think that I can fairly summarise the evidence on this matter. The respondents exhibit copies of these conditions in their office, but neither the appellant nor his agent Mr M'Sporran had read these notices, and I agree that they can play no part in the decision of this case. Their practice was to require consignors to sign "risk notes," which included these conditions, before accepting any goods for carriage, but on this occasion no risk note was signed. The respondents' clerkess, knowing that Mr M'Sporran was bringing the car for shipment, made out a risk note for his signature, but when he arrived she was not there and he dealt with the purser of the "Lochiel," who was in the office. He asked for a return passage for the car. The purser quoted a charge of some six pounds. He paid that sum, and then the purser made out and gave him a receipt which he put in his pocket without looking at it. He then delivered the car. The purser forgot to ask him to sign the risk note.
The Lord Ordinary believed the evidence of Mr M'Sporran and the appellant. Mr M'Sporran had consigned goods of various kinds on a number of previous occasions. He said that sometimes he had signed a note, sometimes he had not. On one occasion he had sent his own car. A risk note for that consignment was produced, signed by him. He had never read the risk notes signed by him. He says:
"I sort of just signed it at the time as a matter of form."
He admitted that he knew he was signing in connexion with some conditions, but he did not know what they were. In particular, he did not know that he was agreeing to send the goods at owner's risk. The appellant had consigned goods on four previous occasions. On three of them he was acting on behalf of his employer. On the other occasion he had sent his own car. Each time he had signed a risk note. He also admitted that he knew there were conditions, but said that he did not know what they were.
The respondents contend that, by reason of the knowledge thus gained by the appellant and his agent in these previous transactions, the appellant is bound by their conditions. But this case differs essentially from the ticket cases. There the carrier in making the contract hands over a document containing or referring to conditions which he intends to be part of the contract. So if the consignor or passenger, when accepting the document, knows, or ought as a reasonable man to know, that that is the carrier's intention, he can hardly deny that the conditions are part of the contract, or claim, in the absence of special circumstances, to be in a better position than he would be if he had read the document. But here, in making the contract, neither party referred to, or indeed had in mind, any additional terms, and the contract was complete and fully effective without any additional terms. If it could be said that, when making the contract, Mr M'Sporran knew that the respondents always required a risk note to be signed and knew that the purser was simply forgetting to put it before him for signature, then it might be said that neither he nor his principal could take advantage of the error of the other party of which he was aware. But counsel frankly admitted that he could not put his case as high as that.
The only other ground on which it would seem possible to import these conditions is that based on a course of dealing. If two parties have made a series of similar contracts each containing certain conditions, and then they make another without expressly referring to those conditions, it may be that those conditions ought to be implied. If the officious bystander had asked them whether they had intended to leave out the conditions this time, both must, as honest men, have said "Of course not." But again the facts here will not support that ground. According to Mr M'Sporran, there had been no consistent course of dealing; sometimes he was asked to sign and sometimes not. And, moreover, he did not know what the conditions were. This time he was offered an oral contract without any reference to conditions, and he accepted the offer in good faith.
The respondents also rely on the appellant's previous knowledge. I doubt whether it is possible to spell out a course of dealing in his case. In all but one of the previous cases he had been acting on behalf of his employer in sending a different kind of goods and he did not know that the respondents always sought to insist on excluding liability for their own negligence. So it cannot be said that, when he asked his agent to make a contract for him, he knew that this or, indeed, any other special term would be included in it. He left his agent a free hand to contract, and I see nothing to prevent him from taking advantage of the contract which his agent in fact made. "The judicial task is not to discover the actual intentions of each party; it is to decide what each was reasonably entitled to conclude from the attitude of the other." In this case, I do not think that either party was reasonably bound or entitled to conclude from the attitude of the other as known to him that these conditions were intended by the other party to be part of this contract. I would therefore allow the appeal and restore the interlocutor of the Lord Ordinary.
Assuming in favour of the defenders that the experience of the pursuer and his brother-in-law, who acted as his agent, would establish that on previous occasions the defenders' "risk note" embodying conditions absolving them from the consequences of negligence had been regularly signed, this does not establish that the legal situation was the same on 8th October 1960 when the pursuer's car was shipped by his brother-in-law on his behalf without the risk note being signed. No question of fraud or mistake arises, and the only question is whether in some way the defenders can establish their immunity by incorporating in the contract of carriage the conditions which were present in earlier transactions, but absent on the relevant occasion.
The course of dealing on earlier occasions is often relevant in determining contractual relations, but does not assist when, as here, there was on the part of the defenders a departure from an earlier course in that they omitted to ask the pursuer's agent to sign the document by which they would have obtained protection.
If the only question had been whether the pursuer or his agent had notice of the conditions sought to be imposed, the observations of Baggallay, L.J., in Parker v. South-Eastern Railway Company, at p. 425, would be material. That case, affirmed in Hood v. Anchor Line, established that the appropriate questions for the jury in a ticket case were: (1) Did the passenger know that there was printing on the railway ticket ? (2) Did he know that the ticket contained or referred to conditions ? and (3) Did the railway company do what was reasonable in the way of notifying prospective passengers of the existence of conditions and where their terms might be considered ? It was in this connexion that Baggallay, L.J., after stating the liability of the company in the conduct of their cloakroom business as bailees for reward in the absence of a special contract, constituted by the delivery and acceptance of a ticket or otherwise, proceeded to say—"The question then remains whether the plaintiffs were respectively aware, or ought to be treated as aware, of the intention of the company thus to modify the effect of the ordinary contract. Now as regards each of the plaint-tiffs, if at the time when he accepted the ticket, he, either by actual examination of it, or by reason of previous experience, or from any other cause, was aware of the terms or purport or effect of the endorsed conditions, it can hardly be doubted that he became bound by them."
These observations do not assist the defenders. No effort was made to get the risk note signed, or otherwise to make the conditions therein contained a term of the contract of carriage. In short, the defenders did not seek to impose any conditions. This is a vital distinction between this case and Parker's case, and a decision in favour of the defenders would involve an extension and expansion of what was said by Baggallay, L.J., which seems to me to be un-supported by authority and undesirable on principle.
The law, as it stands, appears hard on the holders of tickets who, unless they are exceptional persons, will not take pains to make an examination of a ticket offered to them to see if any conditions are imposed. It would be scarcely tolerable to take the further step of treating a contracting party as if he had signed and so bound himself by the terms of a document with conditions embodied in it, when, as here, he has done no such thing, but may be supposed, having regard to his previous experience, to have been willing to sign what was put before him if he had been asked.
The defenders seek to have the interlocutor appealed against affirmed on two other grounds, both of which were rejected in the Scottish Courts. First, they claim that the freight invoice, on which the receipt was placed, acknowledging the payment of six pounds five shillings, was a contract document containing a sufficient reference to the conditions and was accepted by the pursuer's agent on his behalf and the pursuer was therefore bound by them. In the second place, they claim that by posting four copies of the conditions on the Port Askaig pier and three copies on board their vessel "Lochiel" they took sufficient steps to give notice of the conditions so as to bind the pursuer. The receipt was handed over, as the Lord Justice-Clerk pointed out, after the contract was completed and cannot be treated as an offer. It played no part in the formation of the contract, and there was no reason to suppose that it referred to conditions.
On both these grounds I agree with the learned Judges in the Scottish Courts that the defenders failed to show that they did what was reasonably sufficient to bring to the notice of the pursuer or his agent the conditions upon which they found.
I would allow the appeal.
"It is, I think, well settled that, if A contracts with B for the carriage by B of A's goods in the knowledge, gained through previous experience of similar transactions, that B carries goods subject to conditions, A is bound by these conditions under this later contract, if it is of a similar nature to those which have gone before, in the absence of agreement or information to the contrary. This applies even if A, knowing that there are conditions, does not take the trouble to ascertain precisely what these conditions are. If, however, the later transaction is carried out in different circumstances and, because of that difference, A believes that the conditions attached to the earlier transactions are not intended to apply, then the conditions will not be held to be binding upon him merely because of his previous knowledge. In each case, the question of the extent of A's knowledge is a question of fact."
Although the Lord Justice-Clerk quotes no authority for these propositions, it is, I think, apparent from the observations of Lord Mackintosh to the same effect, which are said to result from the judgment of Baggallay, L.J., in Parker v. South-Eastern Railway Co., that the Lord Justice-Clerk was relying on Parker's case. In my view, Parker, which has been accepted as the standard authority on what are known as "ticket condition" cases—see Hood v. Anchor Line —was a different case. The observations of Baggallay, L.J., at p. 425, relied on were made with reference to the ticket cases. In a ticket case the offer is made by the company to carry the passenger or goods on the conditions referred to on the ticket, and the passenger or consignor, by purchasing the ticket, accepts the offer with the conditions thereon incorporated. The ticket thus becomes a contractual document containing the conditions, and the passenger is bound by the conditions. It is, in my view, not legitimate to apply the tests of incorporation of conditions in such cases to a case like the present where there is no contractual document. In the present case, it is incorrect to assume that the offer of carriage is made by the respondents on what are described as "standard conditions." The verbal contract is made by the consignor tendering the goods and by the carrier accepting them. A simple contract of carriage is thereby created. In this situation, the respondents, upon whom lies the onus to escape liability, would have to show that exempting conditions have been incorporated into the contract. They cannot do this merely by evidence of a previous course of conduct. All that the previous dealings in the present case can show is that the appellant and his agent knew that the previous practice of the respondents was to impose special conditions. But knowledge on their part did not, and could not, by itself import acceptance by them of these conditions, of the exact terms of which they were unaware, into a contract which was different in character from those in the previous course of dealing. The practice of the respondents was to insist on a written contract incorporated in the "risk note." On the occasion in question a verbal contract was made without reference to the conditions.
No case was referred to by the respondents in which it has been held that a carrier, in circumstances such as the present, was entitled to avoid liability, and their counsel was constrained to admit that the decision of the Second Division would be a novel departure. It would, in my view, be undesirable to extend the doctrine of the applicability of conditions any further than at present. I agree with the Lord Ordinary that it is impossible to hold that M'Sporran as agent for the appellant agreed to any conditions. I would allow the appeal.
"(Q.) Tell us about that document; how did you come to sign it ? (A.) You just walk in the office and the document is filled up ready and all you have to do is to sign your name and go out. (Q.) Did you ever read the conditions ? (A.) No. (Q.) Did you know what was in them ? (A.) No."
There are many other passages in which Mr M'Cutcheon and his brother-in-law, Mr M'Sporran, endeavour more or less successfully to appease the forensic astonishment aroused by this statement. People shipping calves, Mr M'Cutcheon said (he was dealing with an occasion when he had shipped thirty-six calves) had not much time to give to the reading. Asked to deal with another occasion when he was unhampered by livestock, he said that people generally just tried to be in time for the boat's sailing; it would, he thought, take half a day to read and understand the conditions, and then he would miss the boat. In another part of his evidence, he went so far as to say that, if everybody took time to read the document, "MacBrayne's office would be packed out the door." Mr M'Sporran evidently thought the whole matter rather academic, because, as he pointed out, there was no other way to send a car.
There came a day, 8th October 1960, when one of the respondents' vessels was negligently sailed into a rock and sank. She had on board a car belonging to Mr M'Cutcheon which he had got Mr M'Sporran to ship for him, and the car was a total loss. It would be a strangely generous set of conditions in which the persistent reader, after wading through the verbiage, could not find something to protect the carrier against "any loss…wheresoever or whensoever occurring"; and condition 19 by itself is enough to absolve the respondents several times over for all their negligence. It is conceded that, if the form had been signed as usual, the appellant would have had no case. But, by a stroke of ill luck for the respondents, it was upon this day of all days that they omitted to get Mr M'Sporran to sign the conditions. What difference does that make ?
If it were possible for your Lordships to escape from the world of make-believe which the law has created into the real world in which transactions of this sort are actually done, the answer would be short and simple. It should make no difference whatever. This sort of document is not meant to be read, still less to be understood. Its signature is in truth about as significant as a handshake that marks the formal conclusion of a bargain.
Your Lordships were referred to the dictum of Blackburn, J., in Harris v. Great Western Railway Company . The passage is as follows:
"And it is clear law that where there is a writing, into which the terms of any agreement are reduced, the terms are to be regulated by that writing. And though one of the parties may not have read the writing, yet, in general, he is bound to the other by those terms; and that, I apprehend, is on the ground that, by assenting to the contract thus reduced to writing, he represents to the other side that he has made himself acquainted with the contents of that writing and assents to them, and so induces the other side to act upon that representation by entering into the contract with him, and is consequently precluded from denying that he did make himself acquainted with those terms. But then the preclusion only exists when the case is brought within the rule so carefully and accurately laid down by Parke, B., in delivering the judgment of the Exchequer in Freeman v. Cooke, that is, if he ‘means his representation to be acted upon, and it is acted upon accordingly; or if, whatever a man's real intention may be, he so conducts himself that a reasonable man would take the representation to be true, and believe that it was meant that he should act upon it, and did act upon it as true.’"
If the ordinary law of estoppel was applicable to this case, it might well be argued that the circumstances leave no room for any representation by the sender on which the carrier acted. I believe that any other member of the public in Mr M'Cutcheon's place—and this goes for lawyers as well as for laymen—would have found himself compelled to give the same sort of answers as Mr M'Cutcheon gave; and I doubt if any carrier who serves out documents of this type could honestly say that he acted in the belief that the recipient had "made himself acquainted with the contents." But Blackburn, J., was dealing with an unsigned document, a cloakroom ticket. Unless your Lordships are to disapprove the decision of the Court of Appeal in L'Estrange v. F. Graucob, Ld. —and there has been no suggestion in this case that you should—the law is clear, without any recourse to the doctrine of estoppel, that a signature to a contract is conclusive.
This is a matter that is relevant to the way in which the respondents put their case. They say that the previous dealings between themselves and the appellant, being always on the terms of their "risk note," as they call their written conditions, the contract between themselves and the appellant must be deemed to import the same conditions. In my opinion, the bare fact that there have been previous dealings between the parties does not assist the respondents at all. The fact that a man has made a contract in the same form ninety-nine times (let alone three or four times which are here alleged) will not of itself affect the hundredth contract in which the form is not used. Previous dealings are relevant only if they prove knowledge of the terms, actual and not constructive, and assent to them. If a term is not expressed in a contract, there is only one other way in which it can come into it and that is by implication. No implication can be made against a party of a term which was unknown to him. If previous dealings show that a man knew of, and agreed to, a term on ninety-nine occasions, there is a basis for saying that it can be imported into the hundredth contract without an express statement. It may, or may not, be sufficient to justify the importation—that depends on the circumstances; but at least, by proving knowledge, the essential beginning is made. Without knowledge there is nothing.
It is for the purpose of proving knowledge that the respondents rely on the dictum of Blackburn, J., which I have cited. In spite of the great authority of Blackburn, J., I think that this is a dictum which some day your Lordships may have to examine more closely. It seems to me that, when a party assents to a document forming the whole or a part of his contract, he is bound by the terms of the document, read or unread, signed or unsigned, simply because they are in the contract; and it is unnecessary and possibly misleading to say that he is bound by them because he represents to the other party that he has made himself acquainted with them. But, if there be an estoppel of this sort, its effect is, in my opinion, limited to the contract in relation to which the representation is made; and it cannot (unless of course there be something else on which the estoppel is founded besides the mere receipt of the document) assist the other party in relation to other transactions. The respondents in the present case have quite failed to prove that the appellant made himself acquainted with the conditions they had introduced into previous dealings. He is not estopped from saying that for good reasons or bad he signed the previous contracts without the slightest idea of what was in them. If that is so, previous dealings are no evidence of knowledge and so are of little or no use to the respondents in this case.
I say "of little or no use" because the appellant did admit that he knew that there were some conditions although he did not know what they were. He certainly did not know that they were conditions which exempted the respondents from liability for their own negligence, although I suppose, if he had thought about them at all, he would have known that they probably exempted the respondents from the strict liability of a carrier. Most people know that carriers exact some conditions, and it does not matter in this case whether Mr M'Cutcheon's knowledge was general knowledge of this sort or was derived from previous dealings. Your Lordships can therefore leave previous dealings out of it and ask yourselves simply what is the position of a man who, with that amount of general knowledge, apparently makes a contract into which no conditions are expressly inserted ?
The answer must surely be that, either he does not make a contract at all, because the parties are not ad idem, or he makes the contract without the conditions. You cannot have a contract subject to uncommunicated conditions the terms of which are known only to one side.
It is at this point, I think, that their Lordships in the Second Division fell into error. The Lord Justice-Clerk said:
"It is, I think, well settled that, if A contracts with B for the carriage by B of A's goods in the knowledge, gained through previous experience of similar transactions, that B carries goods subject to conditions, A is bound by these conditions under this later contract, if it is of a similar nature to those which have gone before, in the absence of agreement or information to the contrary. This applies even if A, knowing that there are conditions, does not take the trouble to ascertain precisely what these conditions are."
Similarly Lord Mackintosh said:
"In these circumstances, I am of opinion, following what I understand to be the law as laid down in the Parker case, and particularly by Baggallay, L.J., at the foot of p. 425, that the pursuer, being aware by reason of his own previous experience, and of that of the agent who happened to be acting for him in the present transaction, that goods were carried on the defenders' vessels subject to certain conditions, and having been given no reason to think that these conditions were not still operative on 8th October 1960, was bound by the conditions, although, as was proved to have been the case, he had never at any time acquainted himself with their purport."
I think, with great respect, that this is to introduce a new and fundamentally erroneous principle into the law of contract. There can be no conditions in any contract unless they are brought into it by expression, incorporation or implication. They are not brought into it simply because one party has inserted them into similar transactions in the past and has not given the other party any reason to think that he will not want to insert them again. The error is based, I think, on a misunderstanding of what are commonly called the ticket cases; I say this because the single authority cited for the proposition is one of the leading ticket cases, Parker v. South-Eastern Railway Company . The question in these cases is whether or not the passenger has accepted the ticket as a contractual document. If he knows that it contains conditions of some sort, he must know that it is meant to be contractual. If he accepts it as a contractual document, then prima facie (I am not dealing with questions of reasonable notice) he is bound by the conditions that are printed on it, or incorporated in it, by sufficient reference to some other document, whether he has inquired about them or not. That is all that Baggallay, L.J., is saying in Parker v. South-Eastern Railway .
In the present case there is no contractual document at all. There is not so much as a peg on which to hang any terms that are not expressed in the contract nor a phrase which is capable of expansion. It is as if the appellant had been accepted as a passenger without being given a ticket at all. There is then no special contract and the contract is the ordinary one which the law imposes on carriers. As Baggallay, L.J., said, at p. 424:
"This clearly would be the nature of the contract if no ticket were delivered, as occasionally happens."
If a man is given a blank ticket without conditions or any reference to them, even if he knows in detail what the conditions usually exacted are, he is not, in the absence of any allegation of fraud or of that sort of mistake for which the law gives relief, bound by such conditions. It may seem a narrow and artificial line that divides a ticket that is blank on the back from one that says "For conditions see time-tables," or something of that sort, that has been held to be enough notice. I agree that it is an artificial line and one that has little relevance to everyday conditions. It may be beyond your Lordships' power to make the artificial line more natural: but, at least, you can see that it is drawn fairly for both sides, and that there is not one law for individuals and another for organisations that can issue printed documents. If the respondents had remembered to issue a risk note in this case, they would have invited your Lordships to give a curt answer to any complaint by the appellant. He might say that the terms were unfair and unreasonable, that he had never voluntarily agreed to them, that it was impossible to read or understand them and that, anyway, if he had tried to negotiate any change, the respondents would not have listened to him. The respondents would expect him to be told that he had made his contract and must abide by it. Now the boot is on the other foot. It is just as legitimate, but also just as vain, for the respondents to say that it was only a slip on their part, that it is unfair and unreasonable of the appellant to take advantage of it, and that he knew perfectly well that they never carried goods except on conditions. The law must give the same answer: they must abide by the contract they made. What is sauce for the goose is sauce for the gander. It will remain unpalatable sauce for both animals until the Legislature, if the Courts cannot do it, intervenes to secure that when contracts are made in circumstances in which there is no scope for free negotiation of the terms, they are made upon terms that are clear, fair and reasonable and settled independently as such. That is what Parliament has done in the case of carriage of goods by rail and on the high seas.
I have now given my opinion on the main point in the case and the one on which the respondents succeeded below. On the other points on which the respondents failed below and which they put forward again as grounds for dismissing the claim, I have nothing to add to what your Lordships have already said. In my opinion, the appeal should be allowed.
A special contract may also be made orally in express terms which set out the exclusion of liability or incorporate by reference conditions that do so. But no such express oral contract is suggested here.
It follows that the defenders must seek to rely on some implied special contract. In this they are hampered by the fact that the common law already implies a contract between carrier and customer (in default of other agreement) to the effect that a carrier will be entitled to a reasonable reward, and that he must carry the goods with care and will be liable for negligence. No special contract can be inferred from the basic facts that the pursuer's agent handed over the car for carriage and paid to the defenders a sum for the freight. For the normal inference is that an ordinary common law contract for carriage of goods was intended. What other facts, then, can the defenders adduce which will show that the normal inference is erroneous and that in truth a special contract should be implied ?
The defenders rely on the course of dealing. But they are seeking to establish an oral contract by a course of dealing which always insisted on a written contract. It is the consistency of a course of conduct which gives rise to the implication that in similar circumstances a similar contractual result will follow. When the conduct is notconsistent, there is no reason why it should still produce an invariable contractual result. The defenders, having previously offered a written contract, on this occasion offered an oral one. The pursuer's agent duly paid the freight for which he was asked and accepted the oral contract thus offered. This raises no implication that the conditions of the oral contract must be the same as the conditions of the written contract would have been had the defenders proferred one.
Recourse is then sought to knowledge and intention. This is not a case where there was any bad faith on the part of the pursuer or his agent. Had the pursuer's agent snatched at an offer that he knew was not intended, or deliberately taken advantage of the defenders' omission to proffer their usual printed form for his signature, the situation would be different and other considerations would apply. But neither the pursuer nor his agent gave any thought to conditions. Nor had they any knowledge that clause 11 would contain, wrapped in thirty lines of small print and in language intelligible only to a lawyer or a person of education and perspicacity, a total exclusion of liability for almost every conceivable act of the defenders that might damage the pursuer's goods.
The defenders never intended to offer to make any oral contract on the terms of the printed conditions. They intended to offer a written contract and by mistake they offered an oral one. The pursuer was unaware of the mistake. He accepted an oral contract, but he never intended to accept an oral contract on the printed conditions. He knew that he usually had to sign a form which he supposed contained some conditions. When he was offered an oral contract without conditions he accepted, with no thought about its terms. Why should such intentions or knowledge on the part of the contracting parties lead the Court to create a contract which neither intended ? The furthest to which this argument of the defenders could lead is to the conclusion that the parties were never ad idem; in which case there was no special contract and the common law contract prevails.
Some reliance was placed on the fact that the pursuer and his agent were in no wise misled nor suffered from the absence of the written form since they would not have read it or paid any attention to it in any event. This argument has a cynical flavour. It really amounts to saying that because the pursuer would have been bound by a harsh condition, of which he did not know, if the defenders had taken the proper legal steps, he should be likewise bound when they neglected to take those steps. The law inflicts some hardship on ignorant or careless pursuers who accept a ticket or sign a printed form in that it holds them bound by printed conditions which they have not read and of which they know nothing. The reasons for this are given in Parker v. South-Eastern Railway Company . If the defenders are to have the benefit of the reasoning in Parker'scase they must take the necessary steps. To decide in the defenders' favour on the facts of this case would be a further extension of the protection afforded to defenders by the ticket cases. Such an extension seems to me very undesirable.
With all respect to the contrary view of the Inner House, I agree with the reasoning and conclusions of the learned Lord Ordinary. I would therefore allow the appeal.
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