Adler v Dickson 1954

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Adler v Dickson [1954] Int.Com.L.R. 10/29 CA BEFORE : LORD JUSTICE DENNING, LORD JUSTICE JENKINS and LORD JUSTICE MORRIS. 29th October 1954 LORD JUSTICE DENNING: 1. In June, 1952, Mrs Adler, a widow, who keeps a shop, decided to go for a cruise upon the P. & O. Steamship Himalaya . She booked her passage through the travel agents Thomas Cook & Son. She travelled first-class and paid £188 for the trip. In return the Steamship Company issued her with a first-class passage ticket by virtue of whic
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  Adler v Dickson [1954] Int.Com.L.R. 10/29 Admiralty Law Reports. Typeset by NADR. Crown Copyright reserved. [1954] EWCA Civ 31 CA BEFORE : LORD JUSTICE DENNING, LORD JUSTICE JENKINS and LORD JUSTICE MORRIS. 29 th October 1954 LORD JUSTICE DENNING :1.   In June, 1952, Mrs Adler, a widow, who keeps a shop, decided to go for a cruise upon the P. & O. Steamship Himalaya . She booked her passage through the travel agents Thomas Cook & Son. She travelled first-class andpaid £188 for the trip. In return the Steamship Company issued her with a first-class passage ticket by virtue ofwhich she joined the ship at Southampton and sailed on the cruise. On the 16th July, 1952, the ship reachedTrieste and Mrs Adler went ashore. A gangway was placed horizontally from the ship to a gantry on the quay.She went ashore across that gangway. When she returned to the ship, she was walking along the gangway andhad got about half way across when suddenly the gangway came adrift from the gantry at the shore end, and itfell down against the side of the ship. She was thrown on to the wharf below, a distance of 16 feet, and sufferedsevere injuries, including a broken leg, broken pelvis, and broken ribs. She claims damages against the Masterand the Boatswain of the ship alleging that they were negligent in that they failed to see that the gangway wasproperly secured. They deny this and say that the gangway was properly placed and secured and that the causeof the accident was that there was an exceptionally violent gust of wind which suddenly blew the ship severalfeet off the quay dragging the gangway with it.2.   On those allegations there is obviously a serious issue as to whether the Master and the Boatswain were negligentor not. The trial of that issue would be very expensive. The Master and Boatswain say that it is unnecessary to goto that expense because in any event, even if they were negligent, they are protected by the exception clause inthe ticket. The clause says that Passengers and their baggage are carried at Passengers' entire risk and TheCompany will not be responsible for and shall be exempt from all liability in respect of any damage or injurywhatsoever of or to the person of any passenger . Mrs Adler admits that, if she had sued the SteamshipCompany, the exemption clause would have protected the Company; but she says that it does not protect theMaster and Boatswain. Indeed, it is for that very reason, so as to overcome the exemption clause, that she hassued the Master and Boatswain and not the Steamship Company.3.   This raises a point of law which the Court has ordered to be tried first before the facts are gone into. We mustassume for the purposes of the argument that the Master and the Boatswain were personally guilty of negligenceand are prima facie liable in tort for their wrongdoing. The question is whether they are protected by theexemption clause. It is an important question, because the Steamship Company say that, as good employers, theywill stand behind the Master and Boatswain and meet any damages or costs that may be awarded against them.They say that if Mrs Adler's claim is admissible, it means that a way has been found of getting round theexemption clause which no one has ever thought of before.4.   I pause to say that, if a way round has been found, it would not shock me in the least. I am much more shocked bythe extreme width of this exemption clause which exempts the Company from all liability whatsoever to thepassenger. It exempts the Company from liability for any acts, default or negligence of their servants under anycircumstances whatsoever, which includes, I suppose, their wilful misconduct. And this exemption is imposed on thepassenger by a ticket which is said to constitute a contract but which she has no real opportunity of accepting orrejecting. It is a standard printed form upon which the Company insist and from which they would not depart, Isuppose, in favour of any individual passenger. The effect of it is that, if the passenger is to travel at all, she musttravel at her own risk. She is not even given the option of travelling at the Company's risk on paying a higherfare. She pays the highest fare, first-class, and yet has no remedy against the Company for negligence. Nearly100 years ago Mr Justice Blackburn in a memorable Judgment said that a condition exempting a carrier whollyfrom liability for the neglect and default of their servants was unreasonable, see  Peek v. North Staffs Railway Company  (1863) 10 House of Lords Cases at page 511. I think so too.5.   Nevertheless, no matter how unreasonable it is, the law permits a carrier by special contract to impose such acondition; see Ludditt v. Ginger Coote Airways Ltd  (1947 Appeal Cases, page 232: except in those cases whereParliament has intervened to prevent it. Parliament has not so intervened in the case of carriers by sea. TheSteamship Company are therefore entitled to the protection of these clauses, as indeed this Court held in LawReports, Beaumont-Thomas v. Blue Star Line (1939) 64 Lloyd's List Law Reports page 155. The question is whetherthe Master and the Boatswain — the actual wrongdoers — are entitled also to the protection of them.6.   I can imagine that some lawyers would decide in Mrs Adler's favour out of hand: and for a reason which appearsat first sight both simple and sufficient. It is this: The Master and Boatswain were not parties to the contract ofcarriage and cannot therefore claim the benefit of the exemption clause in it, because no one can enforce acontract to which he was not a party. It was reasoning on those lines which appealed to the Court in Cosgrove v. Horsfall  (1945) 62 Times Law Reports, page 140: and if that decision was right, it concludes the case in MrsAdler's favour. Mr Mocatta has, however, urged us to say that that decision was wrong. It is, he says, inconsistentwith the decision of the House of Lords in the case of  Paterson Zochonic v. Elder Dempster  (1924 Appeal Cases,page 522) which was not cited to the Court. He says further that, in the case of carriage of goods by sea, it iswell established that the Master and crew are entitled to the protection of the exemption clauses: and that thereis no reason why they should not also be so entitled in the carriage of passengers.7.   This is a serious argument which makes it necessary for us to consider the cases on carriage of goods. Theyundoubtedly show that when a carrier issues a bill of lading for goods, the exception clauses therein enure for thebenefit, not only of the carrier himself, but also for the benefit of the shipowner, the Master, the stevedores andany other persons who may be engaged in carrying out the services provided for by the contract. Such persons  Adler v Dickson [1954] Int.Com.L.R. 10/29 Admiralty Law Reports. Typeset by NADR. Crown Copyright reserved. [1954] EWCA Civ 32 are not parties to the contract of carriage, but nevertheless when they are rendering their services, they areprotected by the exceptions contained therein; and this is so, even though the clauses are not expressed to bemade for their benefit, at any rate, not in so many words. It follows that if they are guilty of negligence inrendering their services and are sued in tort, they can nevertheless rely on the exceptions to relieve them fromliability. These propositions have been established in England by the case of  Paterson v. Elder Dempster  (1924Appeal Cases, page 422), in Australia by Gilbert Stokes v. Dalgety  (1948) 81 Lloyd's List, page 357, and Watersv. Dalgety    (1951, 2 Lloyd's List, page 385), and in the United States of America by Collins v. Panama (1952) 197Federal Recorder 983, and Ford v. Jarka (1954) American Maritime Cases, 1095. The propositions are furthersupported by the Rules in the Carriage of Goods by Sea Act, 1924. Article IV (2) exempts the carrier and theship from divers responsibilities and Article IV (5) limits their liability in any event to £100 per package. Neitherthe Master nor the crew nor the stevedores are expressly given the benefit of these exceptions and limitations butParliament must have intended that they should have the benefit of them.8.   There was much discussion before us as to the true principle underlying these propositions. No one doubted theircorrectness but the difficulty is to reconcile them with the proposition that no one can claim the benefit of acontract except a party to it. The speeches in the House of Lords in the Elder Dempster  case are so compressed onthis point that we have a variety of reasons to choose from. One suggestion which was much canvassed was that,in addition to the contract of carriage between the goods owner and the carrier (which was evidenced by the billof lading), there were a number of collateral contracts between the goods owner and all the various personsconcerned in the carriage. Take, for instance, the stevedores. It was said that there was a collateral contractbetween the goods owner and the stevedores whereby the, goods owner agreed that the stevedores should havethe benefit of the exceptions. This collateral contract was said to be made by the carriers either as agents for thegoods owner or as agents for the stevedores or alternatively to arise out of a bailment upon terms. Take next thecrew. It was said that there were collateral contracts with each of them, although there was clearly no bailment toeach one. This suggestion of a large number of collateral contracts does not appeal to me, for the simple reasonthat there are never any such contracts in fact. The goods owner makes one contract only, namely, his contractwith the carrier. He makes no contract with anyone else. In particular he makes no contract with the stevedores, orwith the Master or the crew. It seems to me that these supposed collateral contracts are nothing but a legal fictiondevised to give the stevedores and the others protection under a contract to which they were not parties. The truthis there was only one contract, namely, the contract evidenced by the bill of lading: and the reason why thestevedores and others are protected is because, although they were not parties to the contract, nevertheless theyparticipated in the performance of it, and the exception clause was made for their benefit whilst they were soperforming it. The clause was not made expressly for their benefit, it is true, but nevertheless it was by necessaryimplication which is just as good: and they have a sufficient interest to entitle them to enforce it. Their interest liesin this: they participated in so far as it affected them and can take those benefits of it which appertain, to theirinterest therein. It is one of those cases — by no means rare — where a third person is entitled to enforce acontract made for his benefit. I referred to some of these cases in  Smith v. River Douglas Catchment Board, 1949,2 King's Bench, at pages 514, 515, and Mr Justice Devlin has recently mentioned some more in his illuminatingJudgment in  Pyrene v. Scindia, 1954, 2 Weekly Law Reports, page 1016.9.   Such being the rule in respect of goods, the question is whether a similar rule applies to the carriage ofpassengers? In principle it clearly does. A good instance is  Hall v. North Eastern Railway Company, Law Reports, 10Queen's Bench, page 437, which was decided eighty years ago. A drover was given a free pass to take somesheep on the railway from Scotland to England. The North British Company gave him a ticket which said that, ashe travelled free, he travelled at his own risk. His journey took him over an English line, the North Eastern Railway,and he was injured by the negligence of the servants of the English Company, not by the servants of the ScottishCompany. It was admitted that there was only one contract, namely, the contract with the Scottish Company. TheEnglish Company was not a party to that contract but nevertheless it was entitled to the benefit of the exceptionwhich it contained. The reason was, in Mr Justice Blackburn's words, that the drover must be taken to have assented that the ticket should protect the North Eastern Company just as well as the North British . In short it was a necessaryimplication that the English Company should be protected. I should add that in Mr Justice Blackburn's Judgment asreported in the Law Reports there are some words which suggest a contract between the drover and the EnglishCompany but the suggestion seems to me unreal as I notice that the Law Journal (44 Law Journal, Queen's Bench,page 164) does not contain those words. In further support of the rule in respect of passengers, I would refer tothe Carriage by Air Act, 1932. The provisions under that Act contain certain exemptions and limitations in favourof the carrier . The pilot of the aircraft is not expressly given the benefit of them, but Parliament must haveintended that he should have the same protection as the carrier.10.   My conclusion therefore is that, in the carriage of passengers as well as of goods, the law permits a carrier tostipulate for exemption from liability not only for himself but also for those whom he engages to carry out thecontract: and this can be done by necessary implication as well as by express words. When such a stipulation ismade, it is effective to protect those who render services under the contract, although they were not parties to it,subject however to this important qualification: The injured party must assent to the exemption of those persons.His assent may be given expressly or by necessary implication, but assent he must before he is bound: for it isclear law that an injured party is not to be deprived of his rights at common law except by a contract freely anddeliberately entered into by him; and all the more so when the wrongdoer was not a party to the contract, butonly participated in the performance of it.  Adler v Dickson [1954] Int.Com.L.R. 10/29 Admiralty Law Reports. Typeset by NADR. Crown Copyright reserved. [1954] EWCA Civ 33 11.   In all cases where the wrongdoer has escaped it will be found that the injured party assented expressly or bynecessary implication to forego his remedy against him. In the case of goods it is not difficult to infer an assentbecause the owner of the goods habitually insures them against loss or damage in transit. If the carrier isprotected by an exemption clause, so should his servants be, leaving the owner to recover against the insurancecompany. As Lord Justice Scrutton said in the Elder Dempster  case: Were it otherwise there would be an easy way round the bill of lading ; and as Lord Finlay said: It would be absurd that the owner of the goods could get rid of the protective clauses of the bill of lading ... by suing ... in tort . 12.   In the case of passengers, however, it is not so easy to infer an assent. It was inferred in  Hall v. North EasternRailway Company  but not in Cosgrove v. Horsfall  even though the clause there purported expressly to exempt theservant. At least, that seems to me the correct explanation of those cases.13.   Applying those principles to the present case, the important thing to notice is that the Steamship Company onlystipulated for exemption from liability for themselves. They did not in terms stipulate for exemption for theirservants or agents, and I see no reason to imply any such exemption. The servants or agents are therefore notexcused from the consequences of their personal negligence, see City of Lincoln v. Smith , 1904 Appeal Cases,page 250. In any case, even if the Company intended that the stipulation should cover their servants, neverthelessI see nothing whatever to suggest that Mrs Adler knew of their intention or assented to it. If she read theconditions of the ticket (which she probably did not) and considered the possibility of being injured by thenegligence or default of the Company's servants (which I trust she thought unlikely) she might well think that herremedy against the Company was barred, but she would not think her remedy against the servants was alsobarred. Suppose a steward on a liner were to strike a passenger or falsely to imprison her, or injure her by somewilful misconduct, then albeit it was done in the course of his employment, he could not claim the protection of theclause, for the simple reason that the passenger never agreed to his being exempted. She could sue the stewardpersonally, even though her remedy against the Company was barred. So also if the steward is negligent in thecourse of his employment, for there is no difference in principle between the cases. The passenger has not agreedto forego his remedy against the actual wrongdoer and can still pursue it.14.   The result in my opinion is that Mrs Adler can pursue her claim against the Master and the Boatswain withoutbeing defeated by the exemption clause. I think the appeal should be dismissed. LORD JUSTICE JENKINS: 15.   This appeal arises in an action brought by the Respondent/Plaintiff, Mrs. Rose Marks Adler, against theAppellant/Defendants, Dickson and Wallis, respectively Master and Boatswain of the P. & O. Steam NavigationCompany's steamship Himalaya , in the following circumstances.16.   On the 15th or 16th July, 1952, the Himalaya , in which the Plaintiff was travelling as a first-class passenger,was lying berthed at Trieste in the course of a Mediterranean cruise, and gangways had been placed betweenthe ship and the shore to enable passengers to go ashore and return on board. The Plaintiff had been on shoreand was walking along one of these gangways on her way back to the ship when it suddenly moved and fell tothe side of the ship, with the result that the Plaintiff was thrown from the gangway on to the wharf, some 16 feetbelow, and sustained serious injuries.17.   The contract between the Company and the Plaintiff, as evidenced by the ticket issued to her by the Company,included the following provisions. Printed on the ticket itself were the words: Your attention is specially directed to the conditions of transportation on the covers containing this ticket. Passengersand their baggage are carried at passengers entire risk . 18.   Printed on the inside front cover were certain conditions which (so far as material for the present purpose) ranthus: Conditions and Regulations. This ticket is issued by the Company and accepted by the passenger subject to thefollowing conditions and regulations. The Company will not be responsible for and shall be exempt from all liability inrespect of any....... injury whatsoever of or to the person of any passenger......whether such injury of or to the personof any passenger.......shall occur on land, on shipboard or elsewhere......and whether the same shall arise from or beoccasioned by the negligence of the Company's servants on board the ship or on land in the discharge of their duties,or while the passenger is embarking or disembarking, or whether by the negligence of other persons directly orindirectly in the employment or service of the Company, or otherwise, or by the Act of God......dangers of theseas......or by accidents......or any acts, defaults or negligence of the....... Master, Mariners.......Company's agents orservants of any kind under any circumstances whatsoever..... . 19.   The above-quoted provisions of the contract admittedly precluded the Plaintiff from suing the Company fordamages in respect of the injuries she had sustained, even if the accident could be shown to have been due to thenegligence of the Company's servants. She therefore brought the present action against the Defendants, Dicksonand Wallis, claiming damages from them on the ground that the injuries she had sustained through the fall of thegangway were caused by their negligence. The way in which this claim is formulated appears from the followingpassages in the Statement of Claim: 4. The Defendants in the course of their respective duties as Master and Boatswain of the ship were, and each of themwas, responsible for berthing the said ship at Trieste and for placing and maintaining gangways leading from thesaid ship to the shore so as to enable the passengers of the said ship to go ashore and to return to the said ship,and such berthing and the placing and maintaining of such gangways were carried out under the supervision,  Adler v Dickson [1954] Int.Com.L.R. 10/29 Admiralty Law Reports. Typeset by NADR. Crown Copyright reserved. [1954] EWCA Civ 34 control, management and direction of the Defendants and each of them, who at all material times well knew and intended that the Plaintiff should use the said gangway.6. The said injuries and loss and damage (i.e. those resulting from the accident as described and particularised inparagraph 5) were occasioned to the Plaintiff by reason of the negligence and/ or breach of duty on the part of the Defendants and each of them . 20.   Then follow a number of sub-paragraphs of particulars of the alleged negligence and/or breach of duty, fromwhich I select the following: (a) Failing to make any or adequate precautions for the safety of the Plaintiff in the use which they knew or ought tohave known she would be making of the said gangway.(b) Causing or permitting the said gangway to be placed from the ship to the shore without taking any or any adequate or effective measures to ensure that it was and would remain safe and secure for the Plaintiff to use.(c) Causing or permitting the said gangway to be used by the Passengers of the said ship, including the Plaintiff,without taking any or any adequate measures to ensure that the same was properly and effectively secured and made fast and would not and could not move suddenly while the Plaintiff was lawfully using the same,(e) Causing or permitting the Plaintiff to use the said gangway without first ascertaining or ensuring that it was safefor her to do so, and when they knew or ought to have known it was in an unsafe, unstable and insecure state and condition, and was a danger and trap for the Plaintiff to use.(g) Failing to make any or any adequate measures or to provide any or any proper system to maintain the said gangway in a safe and secure state and condition . 21.   The Defendants by their Defence pleaded (inter alia) the material provisions of the ticket issed to the Plaintiff, towhich I have already referred, and founded upon them (in paragraph 3 of the Defence) the following conditions: 3. The accident to the Plaintiff referred to in the Statement of Claim......occurred while the Plaintiff was a passengeron the 'Himalaya' upon the terms of the said ticket. If (which is denied) either of the Defendants was personally responsible for the safety of the gangway......then the Defendants' acts or omissions (if any) in relation to the said gangway and any other material acts or omissions on the part of either of the Defendants took place in pursuanceor performance of the contract between the Plaintiff and the Peninsular and Oriental Steam Navigation Company (herein referred to as 'the Company') as contained in or evidenced by the Plaintiff's said ticket and/or subject tothe terms of the said ticket and the Defendants are in the premises entitled to rely upon the terms of the said ticket. Further or alternatively any such acts or omissions on the part of either of the Defendants occurred whilethe Defendants were acting as the servants or agents of the Company and the Defendants are accordingly entitled to the same protection as that afforded to the Company by the terms of the said ticket. Further or alternatively incontracting with the Plaintiff upon the terms of the said ticket the Company acted in all material respects as theagent of its servants and agents (including the Defendants) and thereby exempted the Defendants from any liability such as is referred to in the Statement of Claim. The said agency arises by implication of law. Further oralternatively by reason of her acceptance of the ticket and of the terms thereof the Plaintiff expressly or impliedly agreed to travel in all respects at her own risk and/or impliedly agreed with the Company's servants and agents(including the Defendants) that they should be under no liability to the Plaintiff in connection with any injury sustained by her as a passenger on the 'Himalaya' . 22.   On the 14th June, 1954, an Order was made under the Rules of the Supreme Court, Order 25, Rule 2, for thetrial as a preliminary issue of the point of law raised by paragraph 3 of the Defense, namely, whether the termsof the ticket held by the Plaintiff as a passenger on the ship at the time of the accident, afforded a defence tothe Defendants against the Plaintiff's claim upon the assumption that the Plaintiff could establish the mattersreferred to in her Statement of Claim. This issue was argued before Mr. Justice Pilcher on the 19th and 20th July,1954, and on the 30th July he delivered a reserved Judgment determining it in the Plaintiff's favour, and madean Order to that effect, from which the Defendants now appeal to this Court. If the matter were free fromauthority I would have little hesitation in agreeing with the learned Judge's conclusion. For the present purpose itmust be assumed that the Defendants were in fact guilty of the negligence alleged against them in the Statementof Claim in the shape of the various wrongful acts or omissions particularised under paragraph 6, and theDefendants must show that even on that assumption the action must fail by reason of the exempting provisions ofthe ticket. On this assumption, the Plaintiff, while lawfully using the gangway, was injured by the tortious acts oromissions of the Defendants who were servants of the Company which had contracted with the Plaintiff to carryher as a passenger. If her contract with the Company had contained no exempting provisions, the Plaintiff would,as I understand the law, have had separate and distinct rights of action (a) against the Company for breach ofcontract or alternatively, in tort on the principle of respondeat superior , and (b) against the Defendants as thepersons actually guilty of the tortious acts or omissions which caused the damage. The plaintiff's right of actionagainst the Company is clearly taken away by the exempting provisions of the contract, but I fail to see how thatcan have the effect of depriving her also of her separate and distinct right of action against the Defendants asthe actual tortfeasors. There is certainly no express provision purporting so to deprive her, and in the absence ofany express provision to that effect I see no justification for implying one. The exempting provisions in terms applyonly to the liability of the Company, without any reference to the liability of servants of the Company for theconsequences of their own tortious acts. Even if these provisions had contained words purporting to exclude theliability of the Company's servants, non constat that the Company's servants could successfully rely on thatexclusion in proceedings brought against them by some party injured by their tortious conduct, for the Company'sservants are not parties to the contract. But as it is, not only are the Company's servants not parties to the contract,
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