The defendants were the master and boatswain of the P and O passenger liner Himalaya. The plaintiff was a passenger who was injured when an insecure gangway slipped and he fell 16ft to the wharf. The plaintiff had a contract with P and O which excluded liability for such an injury: ‘passengers . . Are carried at passengers’ entire risk’ and ‘The company will not responsible for and shall be exempt from all liability in respect of any injury whatsoever of or to the person of any passenger . . Whether such injury shall occur on land, on shipboard or elsewhere . . And whether the same shall arise from or be occasioned by the negligence of the company’s servants . . In the discharge of their duties, or while a passenger is embarking or disembarking, or whether by the negligence of other persons directly or indirectly in the service of the company, or otherwise by the act of God . . Dangers of the seas . . Or by accidents . . or any acts, defaults, or negligence of the master, mariners . . Company’s agents or servants of any kind under any circumstances whatsoever.’ The defendants sought to rely on that clause. The master had directed that the clause succeeded as a defence.
Held: The defendants were liable. They owed the plaintiff a duty of care in tort. They should have seen that the gangway was properly secured. The defendants’ contractual duty was to their employers but they also owed a duty of care in the law of tort to those who were liable to be affected by any carelessness on their part which was foreseeably capable of causing injury to such persons. It was their conduct which had given rise to the situation (the inadequately secured gangway) which was the situation which caused the plaintiff’s injury. The contract was between the company and the passenger, and the company had not contracted as agents for their servants. The defendants were not able to take advantage of the clause.
Judges:
Denning, Jenkins, Morris LJJ
Citations:
[1955] 1 QB 158, [1954] 2 All ER 397, [1954] 3 WLR 696, 98 Sol Jo 787, [1954] 2 Lloyd’s Rep 267, [1954] EWCA Civ 3, [1955] 1 QB 158, [1954] 3 WLR 696, [1954] 2 Lloyd’s Rep 267, [1954] 3 All ER 397
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – Homburg Houtimport BV v Agrosin Private Ltd (the ‘Starsin’) HL 13-Mar-2003
Cargo owners sought damages for their cargo which had been damaged aboard the ship. The contract had been endorsed with additional terms. That variation may have changed the contract from a charterer’s to a shipowner’s bill.
Held: The specific . .
Cited – Perrett v Collins, Underwood PFA (Ulair) Limited (T/a Popular Flying Association) CA 22-May-1998
The plaintiff was a passenger in an aircraft which crashed, and there was a preliminary issue as to the liability to him of those who certified that the aircraft was fit to fly. The propeller was mismatched to the gearbox.
Held: A certifying . .
Lists of cited by and citing cases may be incomplete.
Personal Injury, Contract
Updated: 27 November 2022; Ref: scu.223887