Scottish Court of Session Decisions

This case came up by reclaiming-note against an interlocutor of Lord Gifford, of date 3d June 1873. The circumstances were as follows:—On 13th July 1871 the pursuer Lieutenant Stevenson, of the 18th Regiment, purchased at the office of the defenders (Robert Henderson and Robert Henderson junior, shipowners, Belfast and Ardrossan, and John Moffat, C. E., Ardrossan), North Wall, Dublin, a ticket which bore to carry him by their steamer “Countess of Eglinton” from Dublin to Whitehaven in Cumberland. The ticket was purchased from the clerk at their booking office in the shed alongside where the steamer was then lying, and it was delivered up by the pursuer to an official of the defenders. The pursuer went on board the steamer immediately after he purchased the ticket. On the afternoon of the same day the steamer, with Lieut. Stevenson on board as a passenger, started on a voyage from Dublin to Silloth, calling at certain intermediate ports, under the command of Mr James Agnew. On the morning of the 14th July the said steamer ran ashore upon the rocks off Langness Point, near Castletown in the Isle of Man, and became a total wreck. The passengers were after some hours rescued from the wreck by means of a communication which was contrived to be effected with the rocks, and they all made their way over the rocks and found refuge in a peasant's but in the adjacent country. The pursuer arrived at Douglas along with some of the other passengers in a car provided by the defenders' agent, about ten hours after the steamer was stranded, with nothing but the clothes he wore, which were much torn and destroyed, and he was himself thoroughly wet—all in consequence of the wreck. Early in the morning of the following day, viz., the 15th of July, the pursuer proceeded from Douglas to Silloth in a steamer provided by the defenders, and he was forwarded from Silloth to Whitehaven by the defenders, free of expense. The defenders refuse to pay the pursuer the expenses to which he was necessarily put in the Isle of Man. These expenses amount to the sum of £1. Mr Stevenson had with him on his journey a large leather portmanteau, which, together with a few loose articles of luggage belonging to him, were duly put on board the steamer at Dublin. The portmanteau and also all the loose articles of luggage were lost when the wrecked vessel broke up, and were never recovered; and the pursuer claimed as the value thereof, and for damage done to his clothes, a sum of £70.

He further averred that (Cond. 5) “the vessel was wrecked as aforesaid through the fault of the defenders or of those in charge of the said vessel, for whom the defenders are responsible. In particular, as the pursuer believes and avers, the negligence of the master or other officers in charge of the vessel, who neglected, although on the morning in question surrounded by a dense fog and near land, either to slow the engines or to use the lead. The Board of Trade inquiry into the circumstances of the wreck was held at Ardrossan on 1st August 1871, and the result of that inquiry was that the cause of the wreck was found to be as above stated, and that the certificate of the said James Agnew was suspended for three months.”

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The defenders, in answer, stated that the going ashore of the vessel was an accident of the seas, and that if the pursuer purchased a ticket as alleged in his Condescendence, the ticket had printed upon it a declaration that it was issued “on the condition that the Company incur no liability whatever in respect of loss, injury, and delay to the passenger or to his or her luggage, whether arising from the act, neglect, or default of the Company or their servants, or otherwise.” Further, that the defenders never entered into any contract with the pursuer for the safe carriage of his luggage; and the contract was subject to the conditions as to non-liability for injury to passengers or their luggage above expressed. The condition was part of any contract made with the pursuer, and he agreed thereto. The defenders would not have carried the pursuer as a passenger had he declined to agree to the said condition. At the time when the steamer went ashore, she was completely equipped and manned for the voyage, and was under the charge of a careful and able seaman as master.

The pursuer pleaded—“(1) The pursuer having suffered loss and damage by the fault of the defenders to the amount concluded for, he is entitled to decree for said amount. (2) The defenders are, quoad the pursuer's luggage, subject to the liabilities of common carriers, and are, as such, liable to make good the loss and damage thereby sustained.”

The defenders pleaded—“(1) The pursuer's statements are not relevant, or sufficient in law to support the conclusions of the summons: (2) The action cannot be maintained, in respect that no contract was entered into between the pursuer and the defenders. (3) In the event of its being held that the defenders were under contract, or the liabilities resulting from contract, with the pursuer, they are entitled to absolvitor in respect of the condition which, as above mentioned, formed part of such contract. (4) The going ashore of the steamer not having been due to the fault of the defenders, or any one for whom they are responsible, but having been an accident of the seas, the defenders are entitled to absolvitor. (5) The pursuer's whole material statements being unfounded in fact, the defenders ought to be assoilzied, with expenses.”

The interlocutor pronounced by the Lord Ordinary was as follows:—

“ Edinburgh. 3 d June 1873.—The Lord Ordinary having heard parties' procurators, and having considered the closed record, proof adduced, and whole process, Finds that it is sufficiently instructed in point of fact that on or about 14th July 1871 the steamship ‘Countess of Eglinton’ got upon the rocks off Langness Point, near Castletown, in the Isle of Man, and became a total wreck, and that in consequence thereof certain luggage and articles belonging to the pursuer, who was a passenger on said steamer, were lost and injured: Finds that the loss of the said steamer, and the loss of the pursuer's luggage and property, was occasioned by the fault of the defenders, or those in charge of the said steamer, and for whom the defenders are responsible: Finds, in point of law, that the defenders are liable to make good to the pursuer the loss and damage which he has sustained by and through the loss of the said steamer and property thereon: Assesses the said damage at £50 sterling; therefore decerns and ordains the defenders to make payment to the pursuer of the said sum of £50 sterling in full of the damage concluded for: Finds the pursuer entitled to expenses, and remits the account thereof to the Auditor of Court to tax the same, and to report.

Note.—In the Lord Ordinary's view it is not necessary to determine whether, if there had been no proof of fault, the defenders would have been liable for the value of the pursuer's luggage as common carriers, or as quasi insurers, who are liable for the goods entrusted to them, unless they can show that they perished by the act of God or of the Queen's enemies. Passengers' luggage, when lost, and when the cause of its loss does not appear, may often be in a different situation from goods entrusted in ordinary course to a common carrier; and the cases cited at the bar show that it is competent to instruct special contracts, or special limitations of liability, in reference to personal luggage of passengers, for which no separate fare or freight is paid.

All these questions, however, are really superseded in the present case, for the Lord Ordinary thinks that the pursuer has succeeded in showing that the loss of the steamer ‘Countess of Eglinton’ was caused by the fault of those in charge of the vessel. It appears to the Lord Ordinary that if this be instructed, then the defenders are liable for the value of the pursuer's luggage, there being no question raised as to any limitation of liability in point of amount.

On the question, By whose fault the steamer was lost? the Lord Ordinary entertains no doubt the loss was a preventible one. The voyage was the familiar and well-known voyage from Dublin to Douglas, Isle of Man, a voyage performed by many steamers every week. The Langness Rocks, on which the vessel was run, are as well known as any rocks or promontory of the Isle of Man; and if, as is said, these rocks are dangerous, that is only a reason why ships should avoid them, and give them a wide berth. There was no storm, no violent wind, no inevitable accident befel the ship or her machinery; and if there was to some extent a fog, which does not seem to have been very serious, such fog was just a reason why the ship should either stop or proceed with such caution as not to run ashore on any part of the land. There were serious faults in the management of the ship. It is said that the distance she had run was miscalculated; but then, no means whatever were taken to ascertain the distance she had run. The log was never heaved, so as to measure her speed; and no patent log was used, by means of which the distance run would be at once indicated. Then, if the ship's position was merely to be ascertained by observation, the captain was below when the Calf Lights were passed, and did not see these lights, by means of which he could have checked the vessel's position. It is incredible that, from some occult cause which can hardly be suggested, the vessel should have lost or gained way so as to lead to a serious mistake as to her position between the hour of passing the Calf Lights and the hour of the accident.

Again, when the fog came on, the duty of those in charge of the ship was either to have stopped altogether, or to have gone half-speed, or dead slow, so that, in any possible case, they would be able to back and stop in less than the distance they could see, according to the thickness of the fog. Nothing short of this would prevent collisions. It

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is in evidence that when the breakers were seen a good way ahead the ship was going so fast that she had not time to back off them. The lead was never heaved, so as to take the vessel's soundings; and if there was any difficulty in doing this, it was but another reason for stopping her progress, or altering her course. The Lord Ordinary, without inquiring on what individuals the fault rests, has no hesitation in saying that the ship was lost by the fault of those in charge of her.

If this be so, the defenders are responsible to the pursuer for his luggage. They have failed to prove any special contract with the pursuer in regard to the luggage. It has not been shown that the pursuer's attention was called either to the bills in the office, or to the notice on the back of the ticket, or that the pursuer knew either of the one or of the other. There is no reason to doubt the pursuer's word when he says he never read the conditions on the back of the ticket. Now, it seems fixed that, in a case like this, mere notice, not brought home to and not assented to by the pursuer, is not enough.

It is not necessary to consider a point which would be of more difficulty, viz., that even if the pursuer had assented to the condition, it would not bind him. Certainly a contract that a person is not to be responsible for his own fault—it may be his own wilful fault—is a most unfavourable contract for the party so stipulating, and will be read very strictly against him; but mere notice on one side does not make a contract.

The fact that the pursuer was a passenger is not disputed; and although the value of his luggage, or indeed its loss, rests on the pursuer's own evidence, there is no reason to doubt it. Without imputing any exaggeration, however, to the pursuer, the Lord Ordinary has used the privilege of a jury, and has assessed the damage at somewhat less than the pursuer's claims. Full price can hardly be allowed for articles partly used.”

Argued for the defenders (reclaimers)—In the first place, we deny any fault whatever in the loss of the vessel, either on our own part, or on that of our servants. Even supposing it were held that the fault were proved by the evidence adduced before the Lord Ordinary, any claim is excluded by the condition endorsed on the ticket. As to the question of the pursuer's having read the ticket or not, see the cases of Walker v. York and North-Eastern Railway; Peninsular and Oriental Steam Navigation Company v. Shand; Slim v. Great Northern Railway; and Zunz v. South-Eastern Railway. If we are under a special contract in this case there can at all events be no doubt as to the meaning of that contract. Carr v. Lancashire and Yorkshire Railway; Austin v. Manchester Railway; Hinton v. Dibbin; Stewart v. London and North-Western Railway; Macaulay v. Tenby Railway. In short we maintain—(1) The Lord Ordinary was wrong in holding fault proved. (2) Even were fault proved, it does not signify under the contract. The case is governed by the following material considerations. (1) The defenders are carriers at common law, not under the statute; neither the Carriers Act nor the Railway and Canal Traffic Act apply. (2) The pursuer entered with the defenders into the contract, and his not having seen the conditions printed on the back of the ticket affords him no relief. (3) There can be no doubt as to the terms of the contract if there was one.

Argued for the pursuer (respondent)—By the law of Scotland public carriers cannot enter into a contract by which they are absolved from their own liability. 1 Bell's Com. § 501–4. Public carriers are bound to take goods or passengers on the ordinary terms, and are not entitled to make any limitations of the kind to their contracts. None of the cases quoted by the defenders' counsel were authorities coming up to the point that carriers were to be freed from the consequences of their own negligence by special contract. Addison on Contracts, 446, 472, and 479. In order to escape liability by negligence the carrier must show not only notice but actual assent. Here there is no express consent, and there cannot be held to be an implied consent. Was Mr Stevenson bound to know what was on the back of the ticket? We do not admit that the ticket was part of the contract; it was merely the voucher thereof. There are certain conditions which a company are entitled to make, and others which they are not so entitled to make. This is one of the latter, for it nullifies the material elements of the contract. Three propositions may be laid down—(1) There must be evidence of assent, actual or constructive. (2) There is no evidence of such consent. (3) Looking to the nature of the condition, we cannot construe the mere fact that pursuer went on board the vessel into an assent.

Pursuer's authorities—1 Bell's Com. (M'Laren), 501–2–3; Walker v. York and North-Eastern Railway, 2 Ellis and Blackburn, 750, and 25 L. J. (Q.B.), 75; Peninsular and Oriental Steam Navigation Company v. Shand, 3 Moore P.C. Rep., N.S., 272; Slim v. Great Northern Railway, 23 L.J. (C.P.), 166; Zunz v. South-Eastern Railway, May 1869, 4 L.R. (Q.B.), 539, and opinion of Cockburn, C. J., p. 545; Carr v. Lancashire and Yorkshire Railway, 21 L.J. (Exch.), 261, and 7 Ex. 707; Austin v. Manchester Railway, 21 L.J. (C.P.), 179, and C. B., 454; Hinton v. Dibbin, 2 Ad. and Ellis (Q.B.), 646; Macaulay v. Tenby Railway, Nov. 15, 1872, 8 L. R. (Q.B.), 57; Stewart v. London and North-Western Railway, 33 L. J. (Exch.), 199.

Defenders' authorities— M'Role, 6 L. R. (Q.B.), 618; Addison on Contracts, 446 and 472–9; Ferguson, Rennie, & Co., 2 Macph., 76.

At advising—