Adler v Dickson (Himalaya.)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DENNING,LORD JUSTICE JENKINS,LORD JUSTICE MORRIS |
| Judgment Date | 29 October 1954 |
| Judgment citation (vLex) | [1954] EWCA Civ J1029-3 |
| Court | Court of Appeal |
[1954] EWCA Civ J1029-3
Lord Justice Denning,
Lord Justice Jenkins and
Lord Justice Morris.
In the Supreme Court of Judicature.
Court of Appeal.
MR A.A. MOCATTA, Q.C. and MR MICHAEL KERR (instructed by Messrs Ince & Co.) appeared on behalf of the Appellants (Defendants).
MR GODFRAY Le QUESNE (instructed by Messrs Neil Maclean & Co.) appeared on behalf of the Respondent (Plaintiff).
In June, 1952, Mrs Adler, a widow, who keeps a shop, decided to go for a cruise upon the P. &O. Steamship "Himalaya". She booked her passage through the travel agents Thomas Cook & Son. She travelled first-class and paid £188 for the trip. In return the Steamship Company issued her with a first-class passage ticket by virtue of which she joined the ship at Southampton and sailed on the cruise. On the 16th July, 1952,the ship reached Trieste and Mrs Adler went ashore. A gangway was placed horizontally from the ship to a gantry on the quay. She went ashore across that gangway. When she returned to the ship, she was walking along the gangway and had got about half way across when suddenly the gangway came adrift from the gantry at the shore end, and it fell down against the side of the ship. She was thrown on to the wharf below, a distance of 16 feet, and suffered severe injuries, including a broken leg, broken pelvis, and broken ribs. She claims damages against the Master and the Boatswain of the ship alleging that they were negligent in that they failed to see that the gangway was properly secured. They deny this and say that the gangway was properly placed and secured and that the cause of the accident was that there was an exceptionally violent gust of wind which suddenly blew the ship several feet off the quay dragging the gangway with it.
On those allegations there is obviously a serious issue as to whether the Master and the Boatswain were negligent or not. The trial of that issue would be very expensive. The Master and Boatswain say that it is unnecessary to go to that expense because in any event, even if they were negligent, they are protected by the exception clause in the ticket. The clause says that "Passengers and their baggage are carried at Passengers' entire risk" and "The Company will not be responsible for and shall be exempt from all liability in respect of any damage or injury whatsoever of or to the person of any passenger". Mrs Adler admits that, if she had sued the Steamship Company, the exemption clause would have protected the Company; but she says that it does not protect the Master and Boatswain. Indeed, it is for that very reason, so as to overcome the exemption clause, that she has sued the Master and Boatswain and not the Steamship Company.
This raises a point of law which the Court has ordered to be tried first before the facts are gone into. We must assume for the purposes of the argument that the Master and the Boatswain werepersonally guilty of negligence and are prima facie liable in tort for their wrongdoing. The question is whether they are protected by the exemption clause. It is an important question, because the Steamship Company say that, as good employers, they will stand behind the Master and Boatswain and meet any damages or costs that may be awarded against them. They say that if Mrs Adler's claim is admissible, it means that a way has been found of getting round the exemption clause which no one has ever thought of before.
I pause to say that, if a way round has been found, it would not shock me in the least. I am much more shocked by the extreme width of this exemption clause which exempts the Company from all liability whatsoever to the passenger. It exempts the Company from liability for any acts, default or negligence of their servants under any circumstances whatsoever, which includes, I suppose, their wilful misconduct. And this exemption is imposed on the passenger by a ticket which is said to constitute a contract but which she has no real opportunity of accepting or rejecting. It is a standard printed form upon which the Company insist and from which they would not depart, I suppose, in favour of any individual passenger. The effect of it is that, if the passenger is to travel at all, she must travel at her own risk. She is not even given the option of travelling at the Company's risk on paying a higher fare. She pays the highest fare, first class, and yet has no remedy against the Company for negligence. Nearly 100 years ago Mr Justice Blackburn in a memorable Judgment said that a condition exempting a carrier wholly from liability for the neglect and default of their servants was unreasonable, see Peek v. North Staffs. Railway Company (1863) 10 House of Lords Cases at page 511. I think so too.
Nevertheless, no matter how unreasonable it is, the law permits a carrier by special contract to impose such a condition: see Ludditt v. Ginger Coote Airways Ltd. (1947 Appeal Cases, page 232:except in those cases where Parliament has intervened to prevent it. Parliament has not so intervened in the case of carriers by sea. The Steamship Company are therefore entitled to the protection of these clauses, as indeed this Court held in Beaumont-Thomas v. Blue Star Line (1939) 64 Lloyd's List Law Reports, page 155. The question is whether the Master and the Boatswain — the actual wrongdoers — are entitled also to the protection of them.
I can imagine that some lawyers would decide in Mrs Adler's favour out of hand: and for a reason which appears at first sight both simple and sufficient. It is this: The Master and Boatswain were not parties to the contract of carriage and cannot therefore claim the benefit of the exemption clause in it, because no one can enforce a contract to which he was not a party. It was reasoning on those lines which appealed to the Court in Cosgrove v. Horsfall (1945) 62 Times Law Reports, page 140: and if that decision was right, it concludes the case in Mrs Adler's favour. Mr Mocatta has, however, urged us to say that that decision was wrong. It is, he says, inconsistent with the decision of the House of Lords in the case of Paterson Zochonic v. Elder Dempster (1924 Appeal Cases, page 522) which was not cited to the Court. He says further that, in the case of carriage of goods by sea, it is well established that the Master and crew are entitled to the protection of the exemption clauses: and that there is no reason why they should not also be so entitled in the carriage of passengers.
This is a serious argument which makes it necessary for as to consider the cases on carriage of goods. They undoubtedly show that when a carrier issues a bill of lading for goods, the exception clauses therein ensure for the benefit, not only of the carrier himself, but also for the benefit of the shipowner, the Master, the stevedores and any other persons who may be engaged in carrying out the services provided for by the contract. Suchpersons are not parties to the contract of carriage, but nevertheless when they are rendering their services, they are protected by the exceptions contained therein; and this is so, even though the clauses are not expressed to be made for their benefit, at any rate, not in so many words. It follows that if they are guilty of negligence in rendering their services and are sued in tort, they can nevertheless rely on the exceptions to relieve them from liability. These propositions have been established in England by the case of Paterson v. Elder Dempster (1924 Appeal Cases, page 422), in Australia by Gilbert Stokes v. Dalgety (1948) 81 Lloyd's List, page 357, and Waters v. Dalgety (1951, 2 Lloyd's List, page 385), and in the United States of America by Collins v. Panama (1952) 197 Federal Recorder, 983, and Ford v. Jarka (1954) American Maritime Cases, 1095. The propositions are further supported by the Rules in the Carriage of Goods by Sea Act, 1924. Article IV (2) exempts "the carrier" and "the ship" from divers responsibilities and Article IV (5) limits their liability in any event to £100 per package. Neither the Master nor the crew nor the stevedores are expressly given the benefit of these exceptions and limitations but Parliament must have intended that they should have the benefit of them.
There was much discussion before us as to the true principle underlying these propositions. No one doubted their correctness but the difficulty is to reconcile them with the proposition that no one can claim the benefit of a contract except a party to it. The speeches in the House of Lords in the Elder Dempster case are so compressed on this point that we have a variety of reasons to choose from. One suggestion which was much canvassed was that, in addition to the contract of carriage between the goods owner and the carrier (which was evidenced by the bill of lading), there were a number of collateral contracts between the goods owner and all the various persons concerned in the carriage. Take, for instance, the stevedores. It was saidthat there was a collateral contract between the goods owner and the stevedores whereby the goods owner agreed that the stevedores should have the benefit of the exceptions. This collateral contract was said to be made by the carriers either as agents for the goods owner or as agents for the stevedores or alternatively to arise out of a bailment upon terms. Take next the crew. It was said that there were collateral contracts with each of them, although there was clearly no bailment to each one. This suggestion of a large number of collateral contracts does not appeal to me, for the simple reason that there are never any such contracts in fact. The goods owner makes one contract only, namely, his contract with the carrier. He makes no contract with anyone else. In particular he makes no contract with the stevedores, or with the Master or the crew. It seems to me that these supposed collateral contracts are...
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