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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Williamson v. North of Scotland and Orkney and Shetland Steam Navigation Co. [1916] ScotLR 433 (25 February 1916)
URL: http://www.bailii.org/scot/cases/ScotCS/1916/53SLR0433.html
Cite as: [1916] ScotLR 433, [1916] SLR 433
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SCOTTISH_SLR_Court_of_Session
Page: 433↓
Court of Session Inner House Second Division.
[
v.
(Reported ante, vol. lii, p. 241.)
Facts:
In an action by a passenger against a steamship company for damages for personal injuries sustained by him while on a voyage on one of their ships through the fault of their servants, the defenders pleaded that they were exempted from liability in respect of a condition in their contract of carriage with the pursuer which was known to the pursuer, and was printed on the ticket issued to him. It was proved that the ticket, which the pursuer had taken when on board, bore on the face of it the words—“This ticket is issued subject to the conditions … that the company is not liable for any injury … or accident to passengers … however the same may be caused, whether by negligence of their servants or otherwise, …” but the printing was in very small type and without distinguishing features; the pursuer knew that there was printing on the ticket but did not know that the printing contained conditions relating to the terms of the contract of carriage. The Court granted decree, holding that the defenders had not done what was reasonably sufficient to give the pursuer notice of the condition.
Mitchell Humphrey Williamson, commercial traveller, Lerwick, pursuer, brought
Page: 434↓
an action against the North of Scotland and Orkney and Shetland Steam Navigation Company, Aberdeen, defenders, for damages in respect of personal injuries sustained by him through the fault of the defenders servants. In the beginning of February 1913 the pursuer left-Scalloway for Aberdeen on the defenders' steamer “St Nicholas” with the object of going to Leith. After the steamer had left Scalloway pier, and was in the course of her voyage, he purchased from one of the defenders' servants a first-class return cabin ticket from Scalloway to Aberdeen. The defenders did not inform the pursuer of, or otherwise bring to his notice, the fact that there were conditions printed on the ticket relating to the contract of carriage between him and them. On 17th February 1913, while the pursuer was on his return journey from Leith to Scalloway, as he was proceeding to leave the steamer at Scalloway, he fell to the main deck of the vessel from a gangway which was laid between the poop and the bridge decks, the railing of the gangway having been left in an insecure condition.
The following is a facsimile of the ticket:—
Endorsed on back—Not transferable. Available to return within three calendar months.
The defenders pleaded, inter alia—“5. The pursuer having accepted the passenger's ticket issued by the defenders, subject to the condition thereon, and being aware of said condition, all as condescended on, the defenders are entitled to absolvitor.”
After sundry procedure and a proof led, the Lord Ordinary ( Anderson) pronounced an interlocutor finding that the pursuer had been injured owing to the defenders' fault, and finding him entitled to damages.
Opinion.—“For a statement of the facts of the case and of the leading authorities on the question of the limitation of the defenders' liability for negligence, I refer to the opinion I formerly pronounced ( 52 S.L.R. 241). I have now taken the proof allowed by the interlocutor of the Second Division, and have to determine the various questions raised by the evidence.
Logically, the first point which falls to be decided is as to the legal effect of the condition printed on the defenders' tickets, of which No. 10 of process is a sample. I have found this an exceedingly difficult question to determine, in respect of the many conflicting decisions which bear on the point.
It would certainly simplify the law on this subject if authority were to be found for either of these propositions—( a) that a passenger is only to be bound by the terms of a contract of carriage which he has subscribed, or ( b) that he is to be bound by all the conditions, printed or written, of such a contract, whether signed or not. But there is no binding authority for either of these propositions. It would probably be impracticable to give effect to the first, and it may be that in certain cases injustice would be done if the second were universally applied.
It has now been established by the proof that tickets are not sold to the passengers until the vessel is at sea. It seems to me, however, that this circumstance does not affect the question which has to be decided, and I accordingly modify the view I formerly expressed that this fact might be material. If a passenger boards a ship without a ticket he must be held to have embarked on the footing that he is bound to pay the advertised fare, and the defenders' position in such a case is that they undertake to carry passengers for that fare only on the conditions printed on their tickets.
As I have already said, the onus appears to be on the defenders to establish that the passenger has assented to the condition on the ticket limiting their common law liability for negligence.
The defenders maintained, on the authority of certain judicial opinions to be found in English cases, that the question whether or not the passenger has assented to the conditions of the contract is a question of law to be determined by the Court. In any event, they urged that in the present case, where the whole terms of the contract were to be found on the face of the ticket, the question was one of law. I am unable to hold that the place where the conditions of the contract are to be found is determinative of the point whether the matter is one of law or fact.
I cannot see how this question—whether or not the passenger has accepted the conditions of the contract—can ever be anything else than a question of fact.
It may be that the fact of assent is so conclusively established against the passenger—as where he has signed the contract—that the Court will not look beyond it for evidence of assent; but this does not make the question one of law, but only one of selfevidenced fact. Moreover, the authorities which are most binding on me have decided that this question is one of fact.
The accurate statement of the question to be decided may aid its determination. The defenders state the question thus, Has the pursuer fulfilled his duty to make himself familiar with the terms of the contract under which he was travelling? In this form of query the onus is apparently placed upon the pursuer. I am of opinion that the onus is the other way, as the condition in question is in the defenders' favour and limits their common law liability for negligence. The other mode of stating the question—which in my judgment is the correct mode of stating it—is, Did the defenders do what was reasonably sufficient to give the pursuer notice of the condition? This rightly lays the onus probandi on the defenders,
Page: 435↓
who must satisfy the Court that they have taken adequate means to make the pursuer acquainted with the terms of the contract. I propose to follow the case of Rowntree, [1894] AC 217, both because it is a judgment of the House of Lords and because the facts are very similar to those in the present case. In that case a passenger ticket was sold on board the steamer. There was, as here, absence of any extraneous calling of attention to the conditions on the ticket, which, as in the present case, were printed in small type. Three questions were put to the jury, who found for the pursuer. I shall put these three questions to myself as covering the whole ground in this case, and shall endeavour to answer these questions from the evidence which was led.
The first question is, Did the pursuer know that there was printing on the ticket? The jury in Rowntree answered that question in the affirmative, and I give a similar answer in this case, as the pursuer admitted that he knew there was printed matter in small type on the face of the ticket. The second question is, Did the pursuer know that the printing on the ticket contained conditions relating to the terms of the contract of carriage? The jury in Rowntree answered that question in the negative, and I give the same answer in this case, as the only evidence on this point is that of the pursuer, which I believe. The third question is that which causes difficulty, Did the defenders do what was reasonably sufficient to give the pursuer notice of the condition? The jury in Rowntree answered that question in the negative, and as the evidence in this case points with at least equal strength in the same direction, I am of opinion that I ought to give the same answer here.
On this last question there was a good deal of evidence as to defenders' practice in reference to the distribution and collecting of tickets. What I hold to be proved is this—the tickets are always sold on board after the vessel has left port. They are sold by the purser and collected by the mate. On a direct voyage—say from Aberdeen to Lerwick—the ticket, if single, is collected by the mate practically simultaneously with its issue by the purser, and if it is a return ticket the outward half is similarly collected. If there are intermediate ports of call on the voyage, as when the vessel goes from Aberdeen to Lerwick via Kirkwall, a single ticket to Lerwick, or the outward half of a return ticket to that port, is not collected until the last stage of the voyage. The materiality of this evidence in the case of a passenger in the position of the pursuer, who made frequent voyages in the defenders' steamships, has reference to the opportunity afforded him for making himself acquainted with the condition printed on the ticket.
The ticket which the pursuer took out for the voyage with which this case is concerned, was a return cabin ticket from Scalloway to Aberdeen, and the ticket as a whole was in his possession for several days after it was issued to him.
There is no evidence as to the condition of the ticket issued to the pursuer for the voyage in question in reference to what was printed on its face—whether or not the printed matter was blurred. I shall assume that the printed matter on that ticket was as legible (or illegible) as that on the ticket produced.
It is common ground that no official of the company ever called the attention of passengers to the condition in question, as might well have been done by the purser when issuing the tickets. There were no placards exposed on the ship in prominent places directing the passengers' notice to the printed condition. There is no arresting phrase, word, or sign on the ticket itself referring to the condition, such as ‘Read this,’ ‘N.B.;’ or the sketch of a hand with index finger directing to the condition. There is no attempt to compel attention to the printed matter by having some prominent word thereof, such as ‘Conditions,’ set in a bolder type.
My duty, in conformity with Rowntree, is to decide the case on the evidence led. If the question be, as I think it may be, expressed in yet another form—‘Have the defenders taken adequate means to bring the existence of the condition to the knowledge of the travelling public? ‘the best testimony on that point is that of members of the travelling public who use the defenders' vessels. If the evidence of that nature which was given in the present case be weighed and given effect to, there is only one answer to the question as I have put it, and that is an answer in favour of the pursuer's contention. He has adduced a large number of witnesses in the habit of travelling in the defenders' ships, who depone that they had never read the condition. These witnesses are mostly commercial travellers. I cannot discard this large body of evidence on the ground suggested by the defenders, that these witnesses were careless of their own interests, and that they ought to have read the condition. The defenders could only find one witness of this type who had read the condition.
I therefore hold that the defenders failed to do what was reasonably sufficient to give the pursuer notice of the condition.
The pursuer founded on the case of Hooper, (1907) 23 T.L.R. 451, where a divisional court in England decided in favour of the pursuer in circumstances similar to the present case.
The defenders founded on the recent Privy Council case of Robinson, [1915] AC 740. It is plain, however, that that case does not touch the point which I have to decide—to wit, whether reasonable notice of the condition was given—because the contract in that case was signed and, as was pointed out by the Lord Chancellor in Henderson, 2 R. (H.L.) 71, where a person has signed a contract he is bound by all its terms, whether he has chosen to make himself familiar with these or not.
The defenders accordingly in my judgment have not succeeded in eliding their common law liability for negligence, and
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the next question is whether the pursuer has proved that they were negligent.” [ His Lordship then discussed the question of the defenders' negligence and the question of contributory negligence.]
The defenders reclaimed, and argued—The defenders were exempted from liability in respect that the condition on the ticket was imported into the contract of carriage between them and the pursuer—Beven's Negligence (3rd ed.), vol. ii, p. 922. There was an onus on the defenders to prove the special condition, but they had discharged that onus by showing that there was a ticket which contained the condition, and that the pursuer had travelled upon it— Harris v. Great Western Railway Company, (1876) L.R., 1 QBD 515, per Blackburn, J., at 525; Rowntree v. Richardson, Spence, & Company and Others, (1893) 9 T.L.R. 297, per Lindley, L.J., at 298; Parker v. South-Eastern Railway Company, (1877) L.R., 2 C.P.D. 416, per Mellish, L.J., at 421; Browne & Theobald's Law of Railways (4th ed.), p. 317. By accepting the ticket the pursuer was barred from pleading that the condition was not a part of the contract. The Court was very slow to allow a passenger to disregard conditions on a ticket by failing to read them, and since the pursuer admitted that he knew that there was printing on the ticket there was an onus on him, which he had failed to discharge, of showing that he did not know that the printing contained conditions relating to the contract of carriage— Zuntz v. South-Eastern Railway Company, 1869, L.R., 4 Q.B. 539, per Cockburn, C. J., at 544; Harris v. Great Western Railway Company ( cit.) per Lord Blackburn at 534; Watkins v. Rymill, (1883) L.R., 10 QBD 178; Richardson, Spence, & Company and “Lord Gough” Steamship Company v. Rowntree, [1894] AC 217; Lyons & Company v. Caledonian Railway Company, 1909 S.C. 1185, 46 S.L.R. 848; Grand Trunk Railway Company of Canada v. Robinson, [1915], A.C. 740, per Viscount Haldane, L.C., at 747; Acton v. The Castle Mail Packets Company Limited, (1895) 8 Asp. 73. The question in all such cases was one of fact only, viz.—Did the facts show that the company had taken all reasonable means to bring the condition to the notice of the passenger— Burke v. South-Eastern Railway Company, (1879) L.R., 5 C.P.D. 1; Cooke v. T. Wilson & Sons, (1915) 32 T.L.R. 160. In the present case the defenders had taken all reasonable means to do so. The pursuer had for long been in the habit of travelling with these tickets. The fact that he did not get the ticket till on board was of no moment, as he was familiar with these tickets, and on the voyage in question had had the ticket in his possession for some days before the accident happened. Admittedly the type was small, but the pursuer did not say that he could not read it, and in no case had smallness of printing been held sufficient by itself to invalidate notice of a condition. Henderson and Others v. Stevenson, (1875) 2 R. (H.L.) 71, was distinguishable. In that case the condition was written on the back of the ticket—see Harris v. Great Western Railway Company ( cit.), per Mellor, J., at 521, and Blackburn, J., at 531. In Parker v. South-Eastern Railway Company ( cit.) the Court merely reversed the verdict of a jury on a question of fact. It did not overrule the decision in Harris v. Great Western Railway Company ( cit.)—see Mellish, L. J., at 421 and 423.
Argued for the respondent—The defenders were not exempted from liability in respect of the condition on the ticket. There was an onus on them, which they had failed to discharge, of showing that the pursuer had consented to the condition either expressly or impliedly. The onus could only be discharged by the strongest evidence. Knowledge on the part of the pursuer must not be assumed— Henderson and Others v. Stevenson ( cit.); Parker v. South-Eastern Railway Company ( cit.). The defenders must show, and this they could not do, that they had taken adequate steps to bring the condition to the notice of the pursuer— Richardson, Spence, & Company, and “ Lord Gough” Steamship Company v. Rowntree ( cit.); Grieve v. The Turbine Steamers, Limited, (1903) 11 S. L.T. 379; Caird v. Adam, (1907) 15 S.L.T. 543; Stephen v. The International Sleeping Car Company, Limited, (1903) 19 T.L.R. 621; Hooper v. Furness Railway Company, (1907) 23 T.L.R. 451; Skrine v. Gould and Others, (1912) 29 T.L.R. 19; Ryan v. Oceanic Steam Navigation Company, Limited, [1914] 3 KB 731, per Buckley, L.J., at 756; M'Connell & Reid v. Smith, 1911 S.C. 635, 48 S.L.R. 564; Van Toll v. South-Eastern Railway Company, (1862) 12 C.B. (N.S.) 75; Lightbody's Trustee v. J. &P. Hutchison, (1886) 14 R.4, perLord Young at 6, 24 S.L.R. 7, at 9. The case of Zuntz v. South-Eastern Railway Company ( cit.) was disapproved in Henderson and Others v. Stevenson ( cit.), and Watkins Reymill ( cit.) was disapproved in Marriott v. Yeoward Brothers. [1909] 2 KB 987, per Pickford, J., at 992. Lyons & Company v. Caledonian Railway Company ( cit.) was distinguishable from the present case. There the printing was in red ink. In Grand Trunk Railway Company of Canada v. Robinson ( cit.) the passenger was bound by the condition, but that was because it had been signed by his duly authorised agent.
At advising—
(First) In my opinion the first of these questions falls to be answered in the negative. I do not propose to canvass the numerous authorities which were cited to us. I think the decisions are perhaps capable of reconciliation, but in some respects the opinions expressed by the many eminent
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So far as the present case is concerned the result of the authorities may be expressed thus—that the common law right of a passenger to be carried with due care and without negligence on the part of the carrier can only be displaced if it is shown that by special contract this right has been surrendered, and such special contract may be express or implied, or the passenger may be barred from maintaining his original common law right.
In this case the pursuer embarked at Scalloway on the defenders' vessel with a view to his making a return voyage to Aberdeen and back. Shortly after the vessel left Scalloway the pursuer received a return ticket, for which he paid. The original ticket has not been produced, but it is admitted that No. 10 of process is a duplicate of that ticket. The small print on it contains the conditions printed in answer 2. The defenders maintain in their fifth plea that “the pursuer having accepted the passenger's ticket issued by the defenders subject to the condition thereon, and being aware of said condition, all as condescended on, the defenders are entitled to absolvitor.” In my opinion the onus of making good that plea lies on the defenders, and I think they have failed to discharge it. I do not think the ticket constituted the contract between the parties
The three questions which seem to have originally been formulated in Parker's case, 2 C.P.D. 416, and which were expressly approved of by Lord Hersehell in Rowntree's case, [1894] AC 217, I accept as aptly expressing the points to be determined.
There is no difficulty as to the first question. The pursuer admits that he knew there was printing on the ticket. As to the second and third questions, in my opinion the evidence in the case would not justify us in answering either of them in the affirmative. On the contrary, I think both of them as a result of the proof fall to be answered in the negative. The pursuer says in his evidence-in-chief (I admit in answer to leading questions) that he did not know that the printed matter contained conditions relating to the contract of carriage. In cross-examination the precise question was not put to the pursuer, counsel apparently preferring (I am far from saying unwisely) to rely on the legal inference to be drawn from the acceptance of the ticket with the condition printed on it. But I think the true result of the pursuer's evidence, supplemented by that of other witnesses with experience of the defenders' tickets, is that it was not brought home to the pursuer that there were conditions relating to the terms of the contract of carriage set out in the small type. The proof for the defenders is not in my opinion sufficient to alter this result.
I think that the defenders have not made out that they did what was reasonably sufficient to give the pursuer notice of the conditions. They adopted a card the size of the familiar railway ticket with its very limited area as their basis, and this compelled them to adopt for printing the condition the smallest type known. They printed in larger type the word “over” to direct special attention to what was printed on the back of the ticket. Nothing, however, was done to direct attention to the condition printed in small type on the face of the ticket, which must have been difficult to read by any passenger, and impossible to read by many passengers, without artificial assistance and very favourable surroundings, though the pursuer does not say that with ordinary care if he had directed his attention to it he could not have read it. We were referred to several methods of directing attention to such conditions which have been adopted by other steamship companies. I think the defenders contented themselves with doing the very least they could have done to give the necessary notice of the condition to their passengers, that that very least was not in fact effective, and was not reasonably sufficient.
As to the question of the defenders' fault it seems to me conclusively made out by the evidence of the defenders' own witnesses that there was such fault. [ His Lordship then discussed the question of the defenders' fault.]
As to the plea of contributory negligence I do not think this question really arises. [ His Lordship then discussed the question of contributory negligence.]
A more difficult point in the case, which logically precedes consideration of the merits and is of general interest and importance, arises out of the defenders' fifth plea-in-law. A mass of cases, Scots and English, was cited to us. I think there is, as is perhaps natural, some conflict here and there amongst judicial dicta, but the decisions themselves do not appear to me to be so out of harmony with one another as learned counsel would have us suppose. I have, however, no intention of discussing the various cases in detail. I am content to base my opinion upon the principles (or I would rather say the rules) laid down in a passage which has become a locus classicus in the judgment of Mellish, L.J., in Parker v. South— Eastern Railway Company, 2 C.P.D. 416, at p. 423, from which sprang the three questions afterwards approved by the House of Lords in Richardson v. Rowntree, [1894] AC 217, as the proper
Page: 438↓
For the reasons stated, I am of opinion that we should adhere to the interlocutor reclaimed against.
Page: 439↓
We had a very full citation of authorities on this particular branch of the law, and some of these were represented as conflicting. For my own part I think there is no conflict. There are, indeed, dicta by Lord Chelmsford and Lord Hatherley in the case of Henderson v. Stevenson, 2 R. (H.L.) 71, which read by themselves, and apart from the context, are not in harmony with later decisions. These dicta were made the subject of comment in the case of Harris, 1 QBD 515, and especially by Blackburn, J., in whose opinion I respectfully concur. All the authorities subsequent to the decision in Henderson v. Stevenson proceed on the assumption that the broad propositions of Lord Chelmsford, as stated in the last paragraph on page 76 of the report, do not state the law as it has now been settled. Were it otherwise, the third of the questions which were put to the jury in the case of Richardson v. Rowntree, [1894] AC 217, and were there approved by the House of Lords, would be entirely superfluous if the first and second were answered in the negative, for it would then be plain that assent to the terms of the contract of carriage had not been proved in fact. In every case where conditions have been found not binding upon passengers it was because the Court held as a mixed question of fact and law that the carrier did not do what was reasonably sufficient to give the pursuer notice of the special conditions on which alone he was prepared to carry passengers.
On the question of fault and contributory negligence I am content with the findings of the Lord Ordinary. [ His Lordship then discussed the question of contributory negligence.]
The defenders' case based on the words printed on the front of the pursuer's ticket, namely—to read the condition short—“The Company is not liable for any injury … to passengers … by negligence of their servants,” raises a question of onus. Is the onus on the pursuer or the defenders, and what is its extent?
I agree with your Lordships that the onus is on the defenders, and that the extent of the onus is that they must prove that they took reasonable means to bring to the pursuer's notice that the ticket contained conditions relating to carriage, which conditions varied, or might vary, their common law liability. On the one hand the condition in question is clearly expressed, and is not hidden away among other conditions; it is so printed that the pursuer could not check his place of embarkation and disembarkation, and the class of ticket, as the defenders were entitled to expect that he would do, without seeing the print containing the condition; and while the pursuer was on his outward journey—the accident happened at the end of the return journey—he had ample opportunity to read the condition on the ticket while it was still undivided. On the other hand, the defenders have done nothing to indicate on the front of the ticket—in marked contrast to what they have done for the conditions on the back of the ticket—that the print containing the condition in question is something that the passenger ought to read and is expected to
Page: 440↓
The Court adhered.
Counsel for the Pursuer (Respondent)— Crabb Watt, K.C.— D. M. Wilson. Agents— Menzies, Bruce-Low, & Thomson, W.S.
Counsel for the Defenders (Reclaimers)— Horne, K.C.— Lippe. Agents— Boyd, Jameson, & Young, W.S.