Archbolds (Freightage) Ltd v S. Spanglett Ltd

JurisdictionEngland & Wales
JudgeLORD JUSTICE SELLERS,LORD JUSTICE PEARCE,LORD JUSTICE DEVLIN
Judgment Date15 December 1960
Judgment citation (vLex)[1960] EWCA Civ J1215-1
Date15 December 1960
CourtCourt of Appeal
Archbolds (Freightage) Limited
and
S. Spanglett Limited
and
James Frederick Randall (Third Party)

[1960] EWCA Civ J1215-1

Before:

Lord Justice Sellers

Lord Justice Pearce and

Lord Justice Devlin

In The Supreme Court of Judicature

Court of Appeal

Mr. DAVID KARMEL Q.C. and Mr. MONTAGUE WATERS (instructed by Messrs. Hart, Leverton & Co.) appeared on behalf of the Appellants (Defendants).

Mr. J.C. LEONARD and Mr. H.K. WOOLF (instructed by Messrs. Herbert Baron & Co.) appeared on behalf of the Respondents (Plaintiffs).

LORD JUSTICE SELLERS
1

: When the argument on this appeal was concluded I was inclined to view the facts differently from those accepted by Mr. Justice Slade, who tried the case. The plaintiffs are Large and experienced undertakers in road transport and include in their activities a busy clearing house organisation whereby goods are collected from and distributed by vehicles, which are not necessarily or usually their own, for the greater economy and better despatch in their transportation. It might be inferred on the face of it that the plaintiffs were familiar with the regulation of the business of road transport by a system of licences for road carriage of goods and their nature and extent; and further that their own business interest would not only have made them aware of but vigilant in watching and ascertaining any inroads on their activities by holders of "C" Licences in respect of vehicles which normally would only carry the holders' own goods and which would in no way compete with those trading generally as the plaintiffs were with "A" licensed vehicles. In the emergency which had arisen the clearing house might well use such transport facilities as were available but I find it hard to believe that those in charge would be unaware of their nature. In my view, with their knowledge of the trade and indeed of the very purpose of their clearing house organisation the plaintiffs, in the circumstances of this case, would have expected the consignment in question to have been carried by the defendants' vehicle which was then about to return to London and none other.

2

Approached in this way — and the evidence to the contrary was not in my view very convincing — it seemed to me more likely than not that not only were the goods the subject of this claim carried, contrary to the regulations, in a "C" licensed vehicle belonging to the defendants as the defendants well knew but that the plaintiffs must have known of it or were recklessly indifferent as to whether it was so or not.

3

If those were the facts it is not disputed that the claim would fail on the ground of illegality, not because there is created any meritorious defence in the defendants but because it is in the public interest that the law should be complied with and a civil court can play its part.

4

Perhaps advisedly, no question was raised of a warranty that the defendants' vehicle to be used for the transport of the goods in question held an "A" licence. If that had been an issue it would have focussed attention on the plaintiffs' position and knowledge in these matters and perhaps have revealed clearly in relation to the Leeds consignment that there was no express or implied agreement to that effect and indeed no belief that the defendants' vehicle would be anything other than what it was, a "C" licensed vehicle.

5

But I feel no regret in the circumstances of this case that both my brethren, whose judgments I have had the advantage of reading, are in accord with Mr. Justice Slade at least to the extent that the defendants did not know that the vehicle on which the goods were placed for carriage held only a "C" licence, nor did they deliberately shut their eyes to the matter. There are therefore concurrent findings of fact with which I do not feel justified in disagreeing and that leaves the case open for argument.

6

The facts which the court accepts are those stated by Lord Justice Pearce and on those facts I am in agreement with the views of my brethren that the contract so entered into was not prohibited by statute and was not ex facie illegal and I do not wish to add to the reason and authority by which my brethren conclude this case in favour of the respondents.

7

I would dismiss the appeal.

LORD JUSTICE PEARCE
8

Judgment was given for the plaintiffs for £3,674. 18s. 3d. damages in respect of the loss of a consignment of whisky which was stolen from the defendants owing to their negligence while they were transporting it as carriers for the plaintiffs from Leeds to the London Docks. Various matters raised in the Defence were decided in the plaintiffs' favour. The issue on this appeal is whether the judge should have held that the plaintiffs could not recover damages because the contract of carriage was illegal.

9

The facts material to this issue are these. The defendants are furniture manufacturers in London and own five vans for use in their business. Those vans have "C" licences under the Road and Rail Traffic Act, 1933, which enable them to carry the defendants' own goods but do not allow them to carry for reward the goods of others. The plaintiffs are carriers with offices at London and Leeds and also have a clearing, house to assist with sub-contracting contracts of carriage. Their vehicles have "A" licences which enable them to carry the goods of others for reward. When some other carrier is returning home with an empty van having made a delivery, he may ask the plaintiffs if they have a load available for him; and if they have one available, it is obviously an economy for them to sub-contract that load to him instead of sending their own van with the risk of its having to return empty.

10

At the time of the Suez crisis there was a shortage of petrol and the Minister enlarged the scope of "C" licences to permit licensees to carry the goods of others which would normally be carried under "C" licences. This limited extension was presumably designed to leave the trade of "A" licence-holders unaffected. Although it was not strictly proved, it was assumed that the whisky in question was not whisky that would normally be carried under a "C" licence. Therefore it could not legally be carried for reward on any of the defendants' vans.

11

The plaintiffs' London office as a result of a telephone conversation with some unidentified person who spoke from the defendants"' office believed that the defendants' vehicles had "A" licences and were entitled to carry general goods. They therefore employed the defendants to carry for them a part load of goods on the defendants' van which was taking some of the defendants' own furniture from London to the Leeds area.

12

On the 27th March, 1956 Randall, the defendants' driver, having delivered those goods, spoke on the telephone to one Field, the traffic manager at the plaintiffs' office in Leeds in order to see if he could obtain a load for his empty van back from Leeds to London. Randall said who he was, that he was from the defendants and that he had just carried goods from the plaintiffs' London office to Leeds and "if possible would like a return load". He then said: "Have you anything for a covered van?". Field replied that he had 3 3/4 tons. He left the telephone to make certain that the load was suitable for a covered van, returned to the telephone and told Randall to come to the plaintiffs' Leeds office. Field made no enquiry about Randall's licence because, to use his own words, "I knew he had been loaded by our London office". Randall came to the office, the van was loaded with the 3 3/4 tons, which was in fact 200 cases of whisky, and set off for the London docks. The whisky was stolen owing to Randall's negligence.

13

On the issue of illegality the judge said this: "This case is one which falls within the class of case where the contract is not ab initio illegal, or indeed illegal at all vis-a-vis the plaintiffs in this action. In the contract of carriage, no stipulation was made as to what form the carriage should take. It was open to the defendants to carry the goods in any vehicle they liked so far as the plaintiffs were concerned. It is, of course, true that Mr. Field would contemplate that as it was a return load, it would in fact be taken back by Randall in the vehicle in which he brought the goods to Leeds on the outward journey, but Mr. Field never even saw the vehicle. As I have said, no one whose knowledge could possibly be imputed to these plaintiffs ever did see the vehicle, and I have already found as a fact that they did not know that the vehicle in which Randall intended to take the goods to the Royal Albert Docks had in fact only a "C" licence. In so far, therefore, as it is a question of fact, and in so far as it is a question of law, I hold as a matter of law that this contract was not of itself illegal, and that any illegality arose only in the method of its performance by the defendant company. I therefore find that the plea of illegality fails".

14

Mr. Karmel, in a concise and powerful argument, contended that the learned judge should have found as a fact that the plaintiffs knew or that they ought to have known that the defendants' van had only a "C" licence and therefore could not legally carry the whisky. He also argues that even assuming that the plaintiffs were imposed on (as the judge found) and did not know of the "C" licence and were not negligent in failing to find out, yet the plaintiffs must fail because the contract of carriage was in fact unlawful, since it was a contract for carriage in that particular van (Randall's van) which could not be performed legally. The judge is in error, he contends, in saying: "It was open to the defendants to carry the goods in any vehicle they liked so far as the plaintiffs were concerned".

15

On the question of the plaintiffs' knowledge the matters which were urged before us were urged before the trial judge, but he heard the...

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