The appellant had asked his brother-in-law to have a car shipped from Islay to the mainland. The appellant had personally consigned goods on four previous occasions. On three of them he was acting on behalf of his employer; on the other occasion he sent his own car; and each time he signed what was called a ‘ risk note”. The risk note made it plain that the respondents were accepting the goods on their ship on the condition that they would not be responsible for any damages by negligence that the goods might suffer during the course of the voyage. In that case, through negligence, the ship sank and the car was lost. The appellant’s brother-in-law, who took the car to be shipped on the occasion in question, had himself consigned goods of various kinds on a number of previous occasions. He said that sometimes he had signed a note, and sometimes he had not. On one occasion he sent his own car. He said that on the occasion in question no risk note was put before him. Apparently, unknown to him, the purser, by mistake, had taken the car on board without asking him to sign the risk note.
Held: There was no previous course of dealing from which the term of exclusion could be implied into the contract which had been made on behalf of the appellant by his brother-in-law. The appellant himself had only consigned goods on some four previous occasions, but he, ‘the appellant, had always signed a risk note. His brother-in-law had done so many times, sometimes after signing the risk note and sometimes not.’
Lord Reid quoted Gloag on Contract: ‘The judicial task is not to discover the actual intentions of each party; it is to decide what each was reasonably entitled to conclude from the attitude of the other.’
Judges:
Lord Reid
Citations:
[1964] 1 WLR 125, [1964] 1 All ER 430 HL (Sc), [1964] UKHL 4, [1964] UKHL 7
Links:
Jurisdiction:
Scotland
Cited by:
Cited – Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd CA 12-Nov-1987
Incorporation of Onerous Terms Requires More Care
Photographic transparencies were hired out to the advertising agency defendant. The contract clauses on the delivery note included a fee which was exorbitant for the retention of transparencies beyond the set date.
Held: The plaintiff had not . .
Cited – British Crane Hire v Ipswich Plant Hire CA 13-Nov-1973
A big earth-moving machine got stuck in the mud. It sank so far as to be out of sight. It cost much money to get it out. Who was to pay the cost?
Held: Lord Denning MR said: ‘I would not put it so much on the course of dealing, but rather on . .
Cited – Scheps v Fine Art Logistic Ltd QBD 16-Mar-2007
The claimant bought fine art sculptures by Anish Kapoor at auction. They were stored by the defendant who when called upon to deliver them, said they had possibly been thrown away as rubbish. The defendant sought to limit its liability to the sum . .
Cited – Lawrence v Financial Services Commission PC 14-Dec-2009
lawrence_fscPC2009
(Jamaica) The appellant challenged a fixed penalty notice issued in respect of a financial services allegation, saying that it had been made without him having been allowed opportunity to be heard by an impartial tribunal.
Held: Actions under . .
Cited – Hollier v Rambler Motors (AMC) Ltd CA 19-Nov-1971
The plaintiff left his car with the defendant garage for repair. Whilst there it was substantially damaged by fire. The defendant sought to rely upon their terms which would negative liability, saying that the terms had been incorporated by . .
Cited – White v Blackmore CA 15-Jun-1972
The plaintiff attended a jalopy car race and was injured. It was a condition of his entry that he agreed that motor racing was dangerous and that he would not hold the organisers or others responsible if injured. He was injured when a safety rope, . .
Lists of cited by and citing cases may be incomplete.
Contract
Updated: 25 November 2022; Ref: scu.180913