Hunt & Winterbotham (West of England) Ltd v B.R.S. (Parcels) Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DANCKWERTS,MASTER OF THE ROLLS |
| Judgment Date | 06 December 1961 |
| Judgment citation (vLex) | [1961] EWCA Civ J1206-5 |
| Date | 06 December 1961 |
| Court | Court of Appeal |
[1961] EWCA Civ J1206-5
In The Supreme Court of Judicature
Court of Appeal
The Master of the Rolls and
Lord Justice Danckwerts
Mr. JOHN WORDIE (instructed by Messrs. Clyde & Co., Solicitors, London) appeared on behalf of the Appellants (Plaintiffs).
Mr. D.L. McDONNELL (instructed by Messrs. Mawby Barrie and Letts, Solicitors, London) appeared on behalf of the Respondents (Defendants).
: The judgment which I am about to deliver is a judgment of the Court which has been prepared by Lord Justice Donovan.
The problem in this case is more easily stated than solved.
On the 2nd September, 1959, the Appellants consigned 15 parcels of woolen goods to Manchester to be delivered to a shipping concern in that City for export. They were conveyed by the Respondents? Who are common carriers, but who, in this case, were conveying the goods on the terms of a special contract between themselves and the Appellants. 12 only of such parcels ware delivered at their destination. The remaining 3 parcels have been lost.
The Appellants sued the Respondents in the County Court for damages equal to the value of the 3 parcels, i.e. £275.4.3d plus £3.16.4d carriage charges in respect of them. The Respondents admitted that they were carrying the 15 parcels for reward and that they were liable to pay damages in respect of the loss of the 3. They contended, however, that under the written conditions of the contract of carriage they were entitled to limit their liability in respect of the missing parcels to the sum of £63.2.7d. The learned County Court Judge upheld this contention.
The conditions of the contract include the following: "1. These Conditions of Carriage relate to any contract for the carriage of merchandise made between a Trader and the British Transport Commission (when trading as 'British Road Services') or, as the case may be, between a Trader and British Road Services Limited, or between a Trader and B.R.S. (Parcels) Limited."
Clause 4 of the contract reads as follows: "The Carriers shall, subject to these Conditions, be liable for any loss, or misdelivery of, or damage to merchandise, occasioned during transit as defined by these Conditions, unless the Carriers shall prove that such loss, misdelivery or damage has arisen from: - (a) Act of God." Then there are six other somewhat similar but common form instances like "Act of War" and "Restraint of Princes", and then the clause goes on: "Provided that: - (I) Where loss? misdelivery or damage arises and the Carriers have failed to prove that they used all reasonable foresight and care in the carriage of the merchandise, the Carriers shall not be relieved from liability for such loss, misdelivery or damage". I need not read the second proviso.
Clause 9, sub-clause (a) reads as follows: "Subject to these Conditions, the liability of the Carriers in respect of any one consignment shall in any case be limited: - (I) Where the loss however sustained is in respect of the whole of a consignment to a sum at the rate of £400 per ton of the gross weight of the consignment; (ii) Where the loss however sustained is in respect of part of a consignment, to the proportion of the sum ascertained in accordance with (I) of this Condition which the actual value of that part of the consignment bears to the actual value of the whole of the consignment."
Clause 11 reads as follows: "The Carriers shall, subject to these Conditions be liable for loss proved by the Trader to have been caused by delay to, or detention of, or unreasonable deviation in the carriage of merchandise unless the Carriers prove that such delay or detention, or unreasonable deviation has arisen without negligence on the part of the Carriers or their servants,"
If Condition 9 (a) is applicable it is agreed that in respect of the loss of the 3 parcels the Appellants can claim £63.2.7d and no more.
This Condition speaks of a loss "however sustained"; but it is common ground that these words are not to be given their literal interpretation. For example, if the loss were incurred by the carrier doing something with the goods which was wholly alien to the work of carrying them, such a loss would be outside the scope of Condition 9 (a), and the carrier could not rely upon that Condition to limit his liability for damages . The proposition has been conveniently expressed in a number of decisions by saying that the loss must occur inside and not out-side the four corners of the contract for the Condition to apply. The proposition may be otherwise stated thus: the exempting Clause is one of the conditions of the contract of carriage: it can therefore be invoked only where the loss has arisen in the course of the performance of the carriage according to the contract.
The Appellants contend that if the Respondents wish to avail themselves of Condition 9 (a) they must prove that the loss arose from something so done, i.e. Within the four corners of the contract. Or, putting the matter the other way round, that the Respondents must show, not with certainty, but at any rate as a matter of probability, that the loss is not attributable to something done by them outside the four corners of the contract. In fact the Respondents called no evidence at all at the trial: and so, say the Appellants, they failed to discharge the onus which was upon them, and cannot, therefore, rely on Condition 9 (a). The Respondents deny the existence of any such onus. They say that Condition 9 (a) is part of the contract, and that if the Appellants assert that the contract was departed from, and that this departure caused the loss, they must prove it in accordance with the normal rule that he who assorts must prove.
The County Court Judge in the body of his judgment did not deal with this question of onus of proof. He took the view that as he had no material before him for finding that the loss occurred outside the four corners of the contract? Condition 9 (a) applied to limit the Respondents' liability. But when asked at the end of his judgment to deal with the question of the burden of proof he said that had there been (which there was not) an allegation in terms in the pleadings that the Respondents did something outside the four corners of the contract, he would have held that the onus lay upon the Respondents to show that they were within the contract.
The narrow question which emerges is this: having regard to the terms of the contract in this case, and or the Pleadings, upon whom is the burden of proof in question?
The material conditions of the contract have already been quoted. The material parts of the Pleadings are as follows: paragraph 4 of the Particulars of Claim reads: "It was the duty of the Defendants, their servants and agents under the said agreement and or as carriage for reward to carry the said 15 parcels safely to Manchester and to deliver the same to the said premises at Manchester. Alternatively it was the duty of the Defendants, their servants or agents under the said agreement and/or as carriers for reward to take proper care of the said 15 parcels whilst the same were in their custody and possession." Paragraph 5 reads: "In breach of the said agreement and/or of their aforesaid duties the Defendants failed to deliver 3 of the aforesaid 15 parcels at the said premises at Manchester or at all, whereby the Plaintiffs have suffered loss and damage." Then particulars of the damage follow.
These allegations are really allegations of negligence and no more. The Respondents by their Defense admitted non-delivery of the 3 parcels. They went on to allege that all 15 parcels were being carried under a contract embodying their written conditions of carriage: and that by Condition 9 (a) of these conditions their liability for the loss was limited: so that they were liable for £63.2.7d only. Certain other defenses were raised which it is not material to mention since they were abandoned at the hearing.
A Reply was delivered which joined issue with the Defense, and went on to deal with other contentions by the Respondents which were later abandoned and alternatively alleged that the Defendants were by reason of certain letters stopped from denying all liability to the Appellants.
Looking at the matter apart from authority, it would seem fairly plain upon general principles that any allegation that the Respondents did some act wholly outside the contract and thus caused the loss of the 3 parcels, ought to be made expressly in the Pleadings and proved by the Appellants. But it is said, there is no authority for the view that it is for the Respondents in such a case as the present case to prove that the loss arose from no such cause. Apart from one decision in the Southward County Court in 1957, there is no case of loss of the kind here being considered where such a burden of proof has been put upon the carrier. The County Court case in question was Vincent v. British Transport Commission, reported only in The Law Journal for the 8 29th March, 1957. This was a case of failure to redeliver a suit case deposited in a Station cloakroom, But the Appellants' contention does derive some support from certain cases decided in higher Courts whore the contract was one of deposit or bailment.
The authority upon which the Appellants principally relied was that of Woolmer v. Dolmor Price, Ltd. (1955 1 Q.B., page 291). A fur coat had been deposited with the Defendants for storage. They failed to return it on demand, and in a claim by the owner for the return of the coat or for damages, pleaded a condition in the terms of storage reading "All goods left at customer's risk". They also pleaded that the coat had in fact been returned to the owner on demand...
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