Scottish Court of Session Decisions

This was an action of damages raised by the trustee on the sequestrated estate of John Lightbody, a marble merchant in Glasgow, against J.&, P. Hutchison, shipowners, Glasgow, in respect of damage through the alleged negligence of the defenders as carriers of a quantity of marble slabs

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which they had received from Messrs Millar & Moon, marble manufacturers, customers of the bankrupt at Galway, on 19th February 1884, to be conveyed in their steamship “Clara” to Glasgow. The pursuer averred that the marble was in good condition when delivered, and denied that he or the bankrupt had any knowledge of the conditions founded on in defence. The defence to the action was twofold—1st, denial of the averments as to negligence, and an averment that the marble was in bad condition and badly packed when brought to the ship; 2nd, averments to the following effect:—That the defenders, in conformity with the usual custom, had sent to Messrs Millar, Moon, & Co. a circular in the following terms:—“Direct steamers. Glasgow to Galway and west of Ireland.—The undernoted or other first-class steamer, is intended to be despatched from Glasgow direct to Galway—s.s. ‘Clara,’ on [a particular date], carrying goods at lowest rates for Athenry, Athlone, &c. All goods carried on conditions as per sailing-bills.” These sailing-bills were hung up and left lying in their office, and ran as follows:—“Hutchison's Direct Line. Regular line of steamers between Glasgow and Galway. The first-class Clyde-built screw-steamers ‘Neptune’ and ‘Clara,’ or other suitable vessels, are intended to sail, &c.… carrying goods on the conditions set forth on the back hereof. To Galway from Glasgow [on dates set forth].” On the back of the sailing bills, printed in small type, was the following:—“The owners and agents of these steamers give notice that they carry passengers and goods on the following conditions only, viz.—that they are not liable for inward condition, leakage or breakage, contents or weight of packages;” nor for any loss or damage “arising from the act of God, … steam navigation, or from any peril of the seas or rivers, or act, neglect, or default whatsoever of the company, or their agents or servants, or from any defect in the steamer, its machinery, equipments, ballusting or stowage,… or any other cause whatsoever, or from any consequences of the causes above stated, it being an express condition that the … owners of … goods undertake all risks whatsoever.” Further, the “shipping and landing of goods is performed at shipper's risk,” and “all bills of lading and other receipts for … goods signed by any agent or officers of the company shall be subject to these conditions, whether or not the same be repeated therein.”

The defenders averred that the terms of these shipping bills were well known to shippers of goods.

The defenders pleaded—“(2) Pursuer's statements, so far as material, being unfounded in fact, defenders are entitled to absolvitor with expenses. (3) Any damage to said goods occurring while in defenders' hands, having been caused by the risks of carriage for which under their conditions of carriage defenders are not responsible, they should be assoilzied. (4) Any damage to said goods having occurred through the unsafe and insecure way in which they were packed, defenders are entitled to absolvitor.”

The import of the proof, which was directed to the two questions of the transmission of the circular and the stowage, on both of which points there was a conflict of evidence, sufficiently appears in the Judges' opinions.

The Sheriff-Substitute ( Guthrie) pronounced this interlocutor—“Finds that in February 1884 Messrs Millar & Moon shipped at Galway, for delivery to the bankrupt, on whose estates the pursuer is trustee, on board the defenders' general cargo steamer ‘Clara,’ the quantity of black marble in slabs condescended on: Finds that by the advertisements or sailing bills of said ship it was notified that the defenders carried goods on the conditions only ( inter alia) that they were not liable for any loss or damage to such goods, arising from any peril of the seas or rivers, or act, neglect, or default whatsoever of the company or their agents or servants, or from any defect in the steamer, its machinery, equipments, ballasting, or stowage, or from any consequences of the causes above stated, it being an express condition that the owners of goods undertake all risks whatsoever: Finds that the advertisement or sailing bill was duly intimated to the public and intending shippers, including Messrs Millar & Moon, who must be taken as acting for the pursuer in this matter: Finds that the marble was badly and unskilfully stowed, the slabs being laid in the hold flat, and not as they ought to have been, on their edges, whereby many slabs were delivered broken: Finds that by the terms of the said advertisement or sailing bills, constituting the contract with the pursuer's author, the defenders are not liable for the damage arising as aforesaid: Therefore assoilzies the defenders, and decerns.

“ Note.—I am disposed on the merits to think that the pursuer would be. entitled to succeed, although the defenders have thrown some doubt upon the condition of the marble when shipped. It is at least clear that the mode of stowing the slabs which the defenders' men adopted was negligent and improper. But it is not very important to decide this question as the pursuer's action is excluded by the terms of the defenders' advertisements. The case is not, I think, exactly governed by the decisions in England and Scotland upon railway and cloak-room tickets, for these are documents which profess by their very nature and use to make or evidence the contract between the parties, and they pass between the parties for that purpose and only for that purpose. The cases on the subject are now numerous, and are (except Highland Railway Company v. Menzies, 1878, 5 R. 887) well reviewed by Mr Justice Stephen in Watkins v. Rymill, 10 QBD 178, to which I was referred by Mr Spens. It is not unnatural to hold that when a document of that kind is accepted without objection by the person to whom it is tendered, he is, as a general rule, bound by its contents whether he reads it or otherwise informs himself of its meaning or not. But there is an obvious difference in documents which do not by delivery constitute or prove a contract, and which may reach many hands without giving rise to any contract. That is the nature of all mere advertisements or notices, and a bargain in the terms which they set forth, obviously cannot be proved by mere evidence of their receipt. It may perhaps be said that it is necessary to prove some act by one of the public to whom the advertisement is addressed, done in reliance on it, and on its invitation. The advertisement of a general ship has always been regarded as an important document

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in questions as to the constitution and conditions of contracts of carriage with her owners. See Maclachlan, p. 389, Bell's Princ. 412, and the other books. It is readily, I might say necessarily, presumed that the shipper had its information in view in sending his goods on board, and while the books show that it has been effective generally in creating a liability against the ship, there is no reason why it should not be used to limit the liability of the ship or impose a risk on the shipper. It is the natural and ordinary means of acquainting the shipper with the time of sailing and the course of the voyage. It may be said that it requires no evidence to establish the shipper's knowledge of its announcements on these points, for it is his duty and interest to know them, and it will be assumed that he acted upon its information in delivering his goods to the master for carriage. It ought not to require any further evidence to impose upon him conditions set forth upon its face, or as in this case on its back, with a sufficient reference to them on the face of it. It seems, therefore, that although there is this difference between the tickets, about which so many cases have occurred, and the sailing bills of a general ship, the principle is the same, and that a merchant who has acted upon an advertisement containing such conditions as that in question must in general be taken to have assented to them. Here there is more than sufficient evidence that the advertisement was generally circulated, and must have reached the shipper's hands. If that be so, and especially as they must have relied on its information in regard to the sailing of the ship and the course of its voyage—for it is hardly suggested, and certainly not proved, that they had other means of knowledge—it follows that there having been no objection and no different bargain, the pursuer must be bound by the terms which his agents or authors might and ought to have known, if they did not know them.”

On appeal the Sheriff ( CLARK) adhered, referring also to Steel & Craig v. State Line Company, March 16, 1877, 4 R. 657.

The pursuer appealed, and argued—The case must be viewed as one where the defenders had incurred a common law liability, as common carriers, for improper stowage. The Sheriffs were both agreed that the stowage was defective, but were in error as to the special contract which the defenders averred in order to take the case out of the category of ordinary carriage, for (1) in point of fact there was no sufficient proof of the transmission of the circular. The conditions in the sailing-bill, too, were of so unusual a nature ( e.g. the shipowners were not even bound to supply a seaworthy ship) that there must be the clearest proof of the assent to them. At best the circular only applied to the voyage from Glasgow to Galway, and could not be applied to the present voyage, which was from Galway to Glasgow.

Authorities— Stevenson v. Henderson and Others, Nov. 25, 1873, 1 R. 215— aff. June 1, 1875, 2 R. (H. of L.) 71.

The defenders replied—(1) The fair reading of the circular was a notification that their steamers carried goods either way on the conditions as per sailing-bill. In Watkins v. Rymill, January 16, 1883, L.R., 10 Q. B. Div. 178, it was held that if a document containing a

reasonable stipulation is delivered by one of two contracting parties to and accepted without objection by the other, it is binding on him whether he informs himself of its contents or not— Vide also Steel & Craig v. State Line Company, ‘ March 16, 1877, 4 R. 657. (2) The import of the proof was to the effect that no facts inferring liability as common carriers had been proved.

At advising—