Carter (John) (Fine Worsteds) Ltd v Hanson Haulage (Leeds) Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SELLERS,Justice Davies,Lord Justice Sellers |
| Judgment Date | 14 December 1964 |
| Judgment citation (vLex) | [1964] EWCA Civ J1214-1 |
| Date | 14 December 1964 |
| Court | Court of Appeal |
[1964] EWCA Civ J1214-1
In The Supreme Court of Judicature
Court of Appeal
(From: His Honour Judge Suddards Bradford County Court)
Lord Justice Sellers
Lord Justice Davies and
Lord Justice Russel
Mr. DESMOND ACKNER. Q. C. and Mr. ALLISTER LONSDALE (instructed by Messrs. Hyde, Mahon & Pascall, Agents for Messrs. Owen Bailey & Hulme, Huddersfield) appeared on behalf of the Appellants (Defendants).
Mr. DONALD HERROD (instructed by Messrs. Herbert Smith & Co., Agents for Messrs. Simpson Curtis & Co., Leeds) appeared on behalf of the Respondents (Plaintiffs).
The plaintiffs in this action were the consignors of two bales of Terylene worsted suiting, valued at £421. 3s.3d., for carriage by road by the defendants for reward from Bradford to the London Docks to the order of the plaintiffs. The contract was made, as the judgment finds, by conduct or by implication on the 19th July, 1961, and it was accepted that the written Conditions of Carriage of the Road Haulage Association Ltd. (Revised January, 1961) were incorporated and formed part of the terms of the contract. It was accepted also that the defendants were entitled to sub-contract the carriage in whole or in part. The plaintiffs' consignment was carried by the defendants to a depot in London and there transferred to another vehicle for conveyance to the S. S. "Valdinia", North Quay, London Docks. It emerged, unexpectedly it appears, in the course of the evidence that the carriers from the depot were not in fact the defendants but a subsidiary limited company, commonly regarded apparently as the defendents themselves, and it was further accepted at the trial and on appeal that the carriage should be regarded as being by the defendants themselves throughout and that their liability should be judged on the basis that they had engaged and employed the driver of the vehicle who was detailed to take the plaintiffs' goods from the London depot to the docks.
I do not seek to unravel the pleadings and the amendments to them, believing that I have set out briefly above the essential position of the parties as the matter was placed and contended before us.
Before noon on the 20th July, 1961, the plaintiffs' consignment left the London depot on a different vehicle, No. ORH.449, from that which had brought the goods from Bradford. This vehicle was driven by and was in sole charge of a man known at the London depot as Arthur Page but whose true name was Gordon. Gordon (who gave evidence for the defendants) drove the vehicle forthwith to a meeting place pre-arranged with some associates and the plaintiffs' goods together with other contents of thevehicle were stolen and transferred to another vehicle somewhere south of Stamford Hill. The total load which left the depot is listed in Document No. 15 and consisted of 14 separate consignments including that of the plaintiff and was of considerable value. Gordon had entered the employment at the London depot as a driver on the previous day and had done so with the intention of stealing the contents of the first vehicle with which he was entrusted on his own.
By letter of the 26th July, 1961, the defendants stated that the plaintiffs' consignment had been stolen in London and there has been no doubt throughout this case that Gordon, in league with others, played his part in the theft and it would seem sought entry into the defendants' employment for the purpose which was so quickly achieved.
In these circumstances the defendants on the 28th August, 1961, after indications in correspondence that they would reimburse the plaintiffs' loss in full, sent a cheque for £132. 12s. 1d. only and relied on and sought to apply clause 7 of the Conditions of Carriage, which as far as is material is as follows: "In the absence of a special contract between the contractor and the consignor or consignee the liability of the contractor in respect of loss of or damage to goods shall in no circumstances exceed the value of the goods or where neither the consignor nor the consignee is the owner thereof then the liability of such consignor or consignee to the owner (whichever is the less) and shall in any case be limited as follows: (a) where the consignment exceeds hundred weight to the sum of £50 per gross hundred weight and pro rata for any part of a hundredweight of the goods so lost or damaged".
His Honour Judge Suddards, who tried this case in the Bradford County Court, held "that through negligence a thief was pat in charge of these bales of goods" and he adds "It is not surprising therefore that they were stolen". He gave judgment for the plaintiffs.
Gordon, alias 'Page, was engaged without a reference of anyKind and entrusted, without a companion or any supervisor, with a valuable load. The judgment finds that the employers did not take reasonable care when they engaged Gordon to inquire into his honesty and reliability and the appellants did not seek to attack this finding on appeal. It is unnecessary therefore to inquire into the facts and to indicate what more the defendants could and ought to have done before engaging him. The defendants contended, notwithstanding their engagement and use of Gordon, that they were not liable for an amount greater than provided by clause 7.
This contention makes the case of great importance to those who consign goods by road, for it is a matter of common knowledge that goods are lost in transit by road not infrequently by theft, often by organised theft such as occurred in the present case. The defendants' blunt contention is that although they did not exercise reasonable care to ascertain whether the driver to whom they entrusted the plaintiffs' goods was honest and although he was in fact dishonest nevertheless they can reduce the amount of their liability to the sum stipulated in clause 7.
The plaintiffs' reply to this submission is that in the circumstances of this case the defendants cannot rely on clause 7 and their various grounds of the contention call for consideration.
Clause 7 is a general clause relating to loss of or damage to goods and inferentially to loss or damage occurring whilst the goods were bailed to the carrier for the purpose of transit. The clause does not deal with the causes of loss and does not seek in terms to restrict or exempt the defendants from liability for any particular breach of duty of themselves or their servants. Liability for loss of or damage to goods might arise from negligence or from conversion or from wilful destruction of or damage to the goods. Since the effect of the clause is only operative in case of liability it could be applied in the case of negligence but I can see no reason for applying it in a case of conversion or wilful damage for the clause does not say so andwould not be supportable if it did. The clause is clearly not unlimited in application.
It has frequently been laid down by authority that if a carrier wishes to exempt himself from liability he must do so in clear and unambiguous language. The language must be sufficient clearly to exempt him from the particular duty in which he has failed.
Is the clause properly invoked in respect of all forms of negligence and therefore in respect of the failure by negligence of the defendants themselves to perform the basic or fundamental obligations of the contract of carriage? The clause does not in terms seek to exempt the defendants from liability in respect of these duties under the contract. The defendants were free to exempt themselves in any terms not repugnant to the contract acceptable to a consignor but an express clause exempting them, even partially, from taking reasonable care to employ a competent, efficient, honest and sober driver or to provide a vehicle suitable for the carriage of the goods would scarcely appear to be a tempting offer to induce trade. Has such an exemption (limiting full financial liability) to be read into so general and unspecific a clause?
A duty to check the character of a driver who is to be entrusted with a valuable cargo in respect of his honesty and trustworthiness seems to me as imperative as to check his competence as a driver and a failure to take reasonable care to do so is a grave default of a carrier, likely as the learned judge pointed out to lead to a loss by theft.
The defendants were private carriers and as bailees of the goods for the purpose of carriage for reward were under an obligation to take reasonable care both (a) of the goods and (b) to convey them to their destination and there deliver in accordance with the contract.
Such a contract at common law requires that a carrier should take reasonable care to provide a vehicle suitable for the carriage in contemplation and that it should be driven by aperson not only fully competent to drive but also honest and to whom goods could be properly entrusted.
These are obligations which fall upon the carrier and may properly be referred to as basic or fundamental and a negligent failure to perform them is in my opinion to be distinguished from acts of negligence in the handling or carriage of the goods by the defendants' servants or agents.
The duty of the carrier in respect to these two matters arises at the outset of the contract of carriage and before the carriage commences. It is a duty which is not performed by delegating to a competent servant or independent contractor if either fails to take reasonable care. It is in effect a warranty of reasonable care. The carrier is not liable for latent defects but the duty is not discharged by employing competent people to perform it if, in fact, reasonable care is not taken.
The celebrated judgment of Lord Holt in 1703 in Coggs v. Bernard is the source from which carriers' obligations in all the forms of carriage are derived. The...
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