A cargo of whisky was lost in carriage by sea between Leith and Newcastle. A second shipment was made and the loss was claimed. The House was asked whether ‘in a question between a carrier and the person to whom the carrier is responsible in the event of the property being lost, whether it be true in law, that the sending of an invoice to the consignee, by which it appeared that the property had been insured and the freight paid by the consignor, and the amount charged by the consignor to the consignee, deprived the consignor of the power of suing, and of an interest or right to recover the value of the property.’
Held: While in general delivery to the carrier was delivery to the consignee and the risk then passed to the consignee, that position could be varied: ‘If a particular contract be proved between the consignor and the consignee, – and it does not follow that the circumstance of the freight and the insurance being paid by the one or the other is to be considered a conclusive evidence of ownership, – as notwithstanding the ordinary rule, of course there may be special contracts; – where the party undertaking to consign undertakes to deliver at a particular place, and if he undertakes to deliver at a particular place, the property, till it reaches that place, and is delivered according to the contract, is at the risk of the party consigning; so although the consignor may follow the directions of the consignee, and deliver the property to be conveyed, either by a particular carrier or in the ordinary course of business, still the consignor may make such a contract with the carrier as will make the carrier liable to him .’ and ‘Although, generally speaking, where there is a delivery to a carrier to deliver to a consignee, the consignee is the proper person to bring the action against the carrier if they should be lost; yet the consignor may have a right to sue if he made a special contract with the carrier, and the carrier has agreed to take the goods from the consignor and to deliver them to any particular person at a particular place, which special contract supersedes the necessity of showing ownership in the goods; and by authority of the case of Davis v. James (5 Burr. 2680), and the latest case of Joseph v. Knox (3 Camp. 320) that the consignor is able to maintain an action, though the goods may be the goods of the consignee. . the authorities seem to me to establish that the consignor is entitled to maintain the action where there is a contract to deliver at a particular place, provided the risk appears in fact to be still on him.’
Lord Cottenham LC discussed whether the delivery to a carrier was delivery to the purchaser: ‘It is no doubt true as a general rule, that the delivery by the consignor to the carrier is a delivery to the consignee, and that the risk is after such delivery the risk of the consignee. This is so if, without designating the particular carrier, the consignee directs that the goods shall be sent by the ordinary conveyance: the delivery to the ordinary carrier is then a delivery to the consignee, and the consignee incurs all the risk of the carriage. And it is still more strongly so if the goods are sent by a carrier specially pointed out by the consignee himself, for such carrier then becomes his special agent.’ and ‘But though the authorities all establish the general inference I have stated, yet that general inference is capable of being varied by the circumstances of any special arrangement between the parties, or of any particular mode of dealing between them.’
Judges:
Lord Cottenham LC
Citations:
(1839) 6 Cl and F 600, (1839) 3 Maclean and R 663, [1839] EngR 824, (1838,1839) 6 Cl and Fin 600, (1839) 7 ER 824
Links:
Jurisdiction:
Scotland
Citing:
Relied upon – Joseph v Knox 1813
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Cited by:
Cited – Alfred Mcalpine Construction Limited v Panatown Limited HL 17-Feb-2000
A main contractor who was building not on his own land, would only be free to claim damages from a sub-contractor for defects in the building where the actual owner of the land would not also have had a remedy. Here, the land owner was able to sue . .
Cited – Campbell v Tyson IHCS 1840
It was asked whether earlier cases established that the mere contracting for the safe carriage, if made by the consignor, entitled him to sue the carrier for damages, if the carrier failed to perform the duty undertaken by him under that contract. . .
Applied – Darlington Borough Council v Wiltshier Northern Ltd and Others CA 29-Jun-1994
The council owned land on which it wanted to build a recreational centre. Construction contracts were entered into not by the council but by a finance company, the building contractors being the respondents Wiltshier Northern Ltd. The finance . .
Cited – Scottish and Newcastle International Limited v Othon Ghalanos Ltd HL 20-Feb-2008
The defendant challenged a decision that the English court had jurisdiction to hear a claim in contract saying that the appropriate court was in Cyprus. The cargo was taken by ship from Liverpool to Limassol. An English court would only have . .
Cited – Gard Marine and Energy Ltd and Another v China National Chartering Company Ltd and Another SC 10-May-2017
The dispute followed the grounding of a tanker the Ocean Victory. The ship was working outside of a safe port requirement in the charterparty agreement. The contract required the purchase of insurance against maritime war and protection and . .
Cited – Lowick Rose Llp v Swynson Ltd and Another SC 11-Apr-2017
Losses arose from the misvaluation of a company before its purchase. The respondent had funded the purchase, relying upon a valuation by the predecessor of the appellant firm of accountants. Further advances had been made when the true situation was . .
Lists of cited by and citing cases may be incomplete.
Damages, Transport
Updated: 24 November 2022; Ref: scu.218898
