Scottish Court of Session Decisions

John Hood, Belfast and New York, U.S.A., pursuer, brought an action against the Anchor Line (Henderson Brothers), Limited, Glasgow, defenders, for payment of £10,000 damages for personal injuries sustained by him through the negligence of the defenders' servants while a passenger on one of the defenders' steamers on a voyage between New York and Glasgow.

The defenders pleaded—“2. In respect that in terms of the contract between the pursuer and the defenders the pursuer cannot in any event recover a larger sum than £10, the action is incompetent in the Court of Session, and ought therefore to be dismissed.”

The facts of the case appear from the opinion of the Lord Ordinary ( Anderson), who, a proof having after sundry procedure been allowed and led, on 23rd December 1916 sustained the defenders' second plea and dismissed the action.

Opinion.—“On 25th February 1916 the Second Division, on a reclaiming note against my interlocutor of 16th December 1915 allowing a proof before answer, remitted the cause to me ‘to allow to the parties a proof of their averments as to the terms and conditions of the contract of carriage between them.’ The proof so allowed has now been taken, partly before me and partly before commissioners in New York.

The material facts and circumstances established by the proof are these:—The pursuer is a Scoto-American who conducts a successful business as a linen importer at New York and Belfast. He has frequently crossed the Atlantic. For five years prior to 1914 he had been in use to make the crossing two or three times a—year, and he travelled oftener by the defenders' line, which plies between New York and Glasgow, than by any other line. The practice of the pursuer as to booking a passage varied. The first step was to reserve a stateroom in anticipation of a particular voyage. The next step was to take the stateroom reserved. The pursuer generally attended to these matters himself. The next step was to pay for and receive the contract ticket. Payment was usually made by a cheque on pursuer's bank account. Occasionally the pursuer went himself with the cheque to defenders' booking-office and obtained his ticket. More usually, however, the pursuer sent a clerk with the cheque to get the ticket. The clerk on his return with the ticket generally handed it to the pursuer.

In June 1914 the pursuer, by telephone message, reserved a stateroom on the defenders' steamship ‘California,’ which was to sail from New York for Glasgow at noon on 20th June. Four or five days prior to the sailing of the vessel the defenders' booking-clerk at New York telephoned the pursuer inquiring whether he was to sail on the ‘California.’ The pursuer replied that he was, and he was then requested to send a cheque for 150 dollars, the amount of the passage money for himself and Mrs Hood. On the defenders' line all fares are payable before the passengers embark. The pursuer drew a cheque in favour of the defenders for the said sum, and on 16th June handed the cheque to his clerk, Mr May, with instructions to take it to defenders' booking-office and get in return the contract ticket. Mr May went to the defenders' office, and in return for the cheque got from the defenders' employee, Mr Newsom, the contract ticket. There was only one ticket containing the names of Mr and Mrs Hood. I hold it proved that No. 11 of process is a portion of the said ticket. The ticket according to the invariable practice of the defenders was handed to Mr May enclosed

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in an envelope, to which I shall make more particular reference in the sequel. When Mr May returned with the ticket to the pursuer's office, the pursuer, who lives 17 miles out of New York, had gone home. Mr May accordingly placed the ticket in the office safe. The legal position of Mr May in connection with this transaction was that of agent of the pursuer.

The ticket remained in the office safe until the evening of the 19th June, when Mr May on the pursuer's instructions took it along with other documents and some parcels to the pursuer's home in the country. The envelope containing the ticket was placed on a chiffonier in the pursuer's bedroom, where it remained until the following day. The arrangements made by the pursuer for embarkation were that Mr May should take the ticket and Mrs Hood to the steamer, and that the pursuer, who had business to transact in the forenoon, should join his wife on board. This arrangement was carried out. Mr May and Mrs Hood went on board together, having given up on embarking two of the three sections of which the ticket consists, and on the pursuer coming on board Mr May handed him the third section of the ticket, which was then unenclosed in its envelope. The pursuer without examining the ticket put it in his pocket. Two days later he handed it over to a deck steward. I hold it proved that the pursuer had not examined the ticket during all this period. It is doubtful whether he even saw it, enclosed in its envelope, while it was in his house on the night of the 19th.

No. 27 of process is a specimen of the contract ticket issued by the defenders at New York. As I have said, it consists of three portions—(1) the contract proper or left-hand section, which is delivered up by the passenger on board and at the end of the voyage is handed by the purser of the steamer to the defenders' officials in Glasgow; (2) the middle section, which contains statistical information required by the Emigration Department of the United States Government; this portion is taken from the passenger at the moment of embarkation and is handed to a Government official before the ship sails; (3) the embarkation slip or ‘outward ticket,’ which is also delivered up on embarkation and taken possession of by the New York officials of the defenders for the purpose of making up the ship's complete passenger account. After these embarkation slips have been kept for a time they are destroyed, and this part of No. 11 of process is no longer in existence.

The question arising for decision on the proof is one of fact, and although the pursuer led in the proof the onus probandi is on the defender. I find that when the case was being advised in the Inner House (the report is 1916 S.C. 547, 53 S.L.R. 429) Lord Dundas in his judgment indicates that the averments of parties raises two questions—(1) Was the pursuer aware of the condition in question? and (2) if not, did the defenders do what was reasonably sufficient to give him notice of the conditions? These questions may be more shortly and colloquially stated thus—(1) Did he know? and (2) ought he to have known?

1. Did he know?—The burden of proof being where it is, I must hold that the defenders have failed on this first point. I have already stated, with reference to the ticket for the voyage in question, that it is proved that the pursuer never looked at its terms. With reference to the many other tickets he has handled, his evidence is ‘that in all the course of my travelling and receiving and giving up tickets similar to No. 11 of process I never, either from motives of curiosity or to see what the conditions of my carriage were, read what was printed on them.’ No evidence was brought by the defenders to contradict this sweeping and explicit statement. No witness was adduced to depone that he had seen the pursuer on any occasion perusing one of the defenders' tickets. Although the pursuer's statement which I have quoted seems to me to be, on the part of an acute business man perfectly familiar with a variety of written contracts and well aware that most contracts contain a number of terms or conditions, an extraordinary admission of indifference and supineness, I saw no reason to doubt the credibility of the pursuer on this point, or indeed as to any part of his evidence.

2. Ought he to have known?—I think the defenders have proved that they took means which were reasonably sufficient to give the pursuer notice of the conditions which the contract contained. The present case may be usefully contrasted with that of Williamson, 1916 SC 554, 53 S.L.R. 433, where it was held that reasonable means were not adopted to notify the passenger of the existence of a similar condition of the contract. In the case of Williamson I find this general statement in Lord Salvesen's opinion (pp. 564, 439) as to the proper method of discharging the obligation of a carrier in a question of this nature. I agree,’ Lord Salvesen says, ‘that it has not been proved that the pursuer knew of the conditions and assented to them either expressly or impliedly by accepting his ticket without objection. This, however, is not necessary in order to free the defenders from responsibility, if they did what was reasonably sufficient to give the pursuer notice of the conditions by which they sought to limit their common law liability. The test of this, as expressed by Lord Justice Mellish in Parker's case, is that if the carrier does what is sufficient to inform people in general that the ticket contains conditions, then a particular pursuer ought not to be in a better position than other persons on account of his exceptional ignorance or stupidity or carelessness. In the general case I think that the carrier satisfies this test if on the face of the ticket which he issues, and which constitutes evidence of the contract of carriage, there is printed, in type such as ordinary persons can easily read, the conditions upon which he contracts, or if there is printed upon the face of the ticket a notice which calls the passenger's

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attention to conditions in similar type printed upon the back.’

The pursuer's counsel maintained that the defenders have proved nothing except that they delivered the ticket, and that something additional by way of directing the passenger's attention to the condition must be established to entitle the defenders to succeed. No authority was cited in support of this contention, and I am not prepared to assent to it. The defenders are entitled to assume that a passenger will look at his contract ticket, and if the contract ticket presents proper means of directing attention to the conditions, the defenders, in my opinion, discharge the onus which the law lays upon them.

It was also contended on behalf of the pursuer that the condition limiting liability was in effect an offer by the defenders requiring acceptance by the pursuer before it had contractual effect. I agree, but the assent of the pursuer to the restriction of the carrier's liability does not require to be express; it may be implied, and it will be held to have been given impliedly if the carrier takes reasonable means of directing the passenger's attention to the condition in question. The case of Robinson, [1915] AC 740, decided that a party who signed a contract of carriage was bound by all its terms although he had not troubled to read the contract. The same principle ought to prevail in the case of unsigned contracts if reasonable means have been employed to direct the passenger's attention to the existence of conditions.

In the present case the circumstances which in my opinion called the attention of the passenger to the existence of conditions which it was his interest and duty to read were these—(1) The fact that in every case the defenders' officials in New York enclose a passenger's ticket in an envelope similar to No. 24 of process. The front of this envelope is covered with printed matter in varying type. The top line, on which the eye of an observer ought first to rest, consists of a hand with index finger pointing to these words printed in prominent type, ‘Please read conditions of the enclosed contract.’ (2) The size of the contract ticket. The essential particulars which the contract ticket must presumably set forth are these—( a) the names of the contracting parties, ( b) the name of the ship, ( c) the description of the voyage, ( d) the date and hour of sailing, ( e) the stateroom let, and ( f) the amount of the fare. It is obvious that the contract ticket has more available space than is necessary for the setting forth of these essential particulars, and the passenger ought to have examined the ticket to ascertain how that available space was disposed of. (3) The conditions are all printed on the front of the ticket; they occupy a prominent position in the centre of the ticket, and they are printed in type which is quite legible. (4) The printed conditions are preceded by the word ‘Notice’ printed in arresting type, and these words in a specially distinct type—‘This ticket is issued to and accepted by the passenger subject to the following conditions.’ (5) At the foot of the document, and in a position and in type specially calculated to catch the eye, there is printed this sentence—‘Passengers are particularly requested to carefully read the above contract.’

I am unable to conceive what further or better means the defenders could have employed to bring to the knowledge of passengers the existence of the contract conditions.

I shall therefore sustain the second plea-in-law stated for the defenders and dismiss the action.”

The pursuer reclaimed, and argued—The purchase of the ticket did not constitute the contract here. The contract was formed by the request of the pursuer to the defenders to reserve a berth for him, whereby he got an option to take the berth, and by his subsequent intimation to them of his decision to exercise his option and their agreeing thereto. At the time of that intimation there was no mention of any conditions. And these could not be added at a later period. The pursuer naturally did not look at the conditions printed on the ticket. That was procured by his clerk and constituted merely the voucher entitling the holder to the cabin as well as the receipt for the fare paid. Express notice should have been given to the pursuer of a condition which, in the most unreasonable manner, and framed in obscure terms, excluded him from the ordinary rights of a traveller, viz., to be carried with care. Any limitation or exclusion of the legal liability of the shipowners ought to be most strictly examined and the passenger's assent thereto distinctly proved. The onus was on the shipowners to prove that the passenger assented to the condition. There was one thing common to all the cases which dealt with the issue of tickets, namely, that the ticket was issued as a voucher for something. These cases fell under one or other of two classes—first, where a person lying by virtue of a relationship such as carrier, well settled in the law, under certain common law liabilities, sought to impose restrictions on the holder of a ticket; second, where the contract set up depended on what occurred at delivery of the ticket in exchange for goods or the like. In these latter cases there was no antecedent common law relationship to be varied, but everything turned on what was said and done at the time. Examples of the latter type of case were— Lyons v. Caledonian Railway Company, 1909 S.C. 1185, per Lord Kinnear at p. 1195, 46 S.L.R. 848; Parker v. South-Eastern Railway Company, [1877] 2 C.P.D. 416; Watkins v. Rymill, [1883] 10 Q.B.D. 178. A carrier being at common law liable to a passenger for injury, the onus rested on him to prove the passenger's assent to a condition excluding that common law liability, seeing that the passenger was not bound to read the printed matter on the ticket. The carrier preserved silence, although being in direct personal communication with the passenger; he was quite able to draw the latter's attention to the special condition. What was essential and was lacking here was something to prove

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the passenger's assent thereto— Henderson and Others v. Stevenson, (1875) 2 R. (H.L.) 71, per Lord Chancellor Cairns at pp. 74 and 75. In the case of unreasonable or unusual conditions of conveyance such consent could not be presumed, but the carrier must bring the conditions to the passenger's notice— Van Toll v. South-Eastern Railway Company, (1862) 12 C.B. (N.S.) 75, per Mr Justice Byles at p. 88. Counsel also referred to Gloag on Contract, p. 37; Spence v. Rowntree, 9 T.L.R. 297, per Lord Justice Lindley; Grand Trunk Railway Company of Canada v. Robinson, [1915] AC 740.

The defenders argued—The communications by telephone did not constitute the contract, but were only to be regarded as the preliminaries leading up to it, which was actually made when the ticket was given in exchange for the money. The defenders were not common carriers—Macnamara's Law of Carriers by Land, p. 17. From the fact that the pursuer used the ticket he must be held to have expressly or impliedly accepted the conditions, his attention to which was drawn by the word “notice,” and a reference to the conditions printed in large type on the envelope wherein the ticket was contained. The defenders could not have employed a better method of drawing their passenger's attention to the conditions, and none had been suggested.