1939-11-24 — Page 20

(Continued from Page 17) cloakroom but was left in the book- ing hall without protection, and, bw- ing to this negligence, was stolen. The Court held that the defendants were protected by a condition excluding not liability though the bicycle had been deposited in the cloak-room. Mr. D'Almada relies on the judgment of Lord Sterndale M.R. at p.431: "The plaintiff's contention is that this con- dition does not apply at all, because the contract of bailment was to keep in the cloak-room, and if the article the were kept somewhere else than

that no

condition plaintiff contends can apply at all, because there was a breach of the contract of bailment. With the principle that is stated there "That has of course I quite agree. been laid down in Lilley v. Doubleday and also in Davis v. Garrett and a number of other cases, and I accept of course the proposition that if a bailee he acts in breach of his bailment cannot rely upon the conditions in- tended only to protect him in the ful- In as ballee." filment of his duty Neilson v. London and North Western Railway Company, (1922) 1 K.B. p.192, theatrical properties were consigned from Llandudno to Bolton via Man- chester. By an error on the part of the defendant company's servants they were consigned to various other towns and reached Bolton only after considerable delay. To an action by the Plaintiff the Defendants pleaded that the terms of their contract ex- In his empted them from liability.

PRESIDENT LINER

12

SAILINGS

BANK CLAIM

THE CHINA MÁIL, NOVEMBER 24, 1939

FAILS

the

be

cir-

stances', 'Any injury however cause', When I read the clause "Will not be in any way responsible' it seems to me that these words. are clearly suf- judgment Bankes L.J. says: "As the, these two cases. As soon as the car- ficient to protect the company, parti- contract had reference to the convey-rier deliberately deviates from the cularly in a case where it is eminent- ance by the prescribed route and by stipulated route he carries the goodsly reasonable that they should be pro- consignor never. agreed tected if the man who deposits pro- that route alone, when once the goods where, the were diverted by the defendants from that they should be carried, and where perty of large value has not taken the

he (the carrier) by his special con- trouble to pay the company for the prescribed route and taken on an- other journey, even though that di- tract never agreed that he would car-excess in value of the property which So far as the $500 condition is con- version was the result of a pure mis- ry them. So far from performing the he is leaving with them." take on the part of their inspector, duty to which the special protective they ceased to be covered by the con- provision applies he abandons the at-cerned the wording of the two godown tract and by the exceptions which it tempt to perform it ceases to act in warrants in this case is, for the Hong contained." That case was carried on accordance with it, in fact violates it." Kong and Kowloon Godown Company

ARRAY OF AUTHORITIES Limited "The Company will not I have dealt with these cases at responsible", and for the Ocean Steam- appeal to the House of Lords (1922) 2 A.C. p.283. There, Lord Buckmas- ter L.C. said "The exemption is from length for the reason that, in view of ship Company Limited "The Company liability during "the transit," and when the even more lengthy and formidable will not be responsible in any once the goods are diverted from that array of authorities cited by Mr. Pot- cumstances whatsoever." In the lat- ter contra, it is necessary to deter- ter case the wording is clearly as ex- route the protection ends. If the route be abandoned, whether it was mine what was the ratio decidendi in plicit and wide as the wording which

two categories. In baud's case. The due to oversight; ignorance, accident the various cases falling into one or Scrutton L.J. was considering in Gi- wording. in the or design, equally the agreed transit other of these

there former case "Will not be responsible" is departed from and the privileges some of Mr. D'Almada's cases

In all of them there Toll v. South Eastern Railway Com- the carrier enjoys by contract during has been open repudiation of the ori-was held to protect a bailee in Van that transit cease"; and Lord-Atkinson ginal contract:

departure pany (1862) and later in Pratt puts it thus:-"The special provision has been at least such a would admittedly have no application from the terms of the contract as to South Eastern Railway Company. to a route wholly different, from start amount in law to a new contract or a hold therefore that the conditions in the stipulated route, new voyage to which the terms of the the godown warrants negativing the In Defendants' liability for packages of a to finish, from Neither can it, in my view, have any original contract cannot attach.

a deliberate diversion the words of R. A. Wright, K.C. (as value exceeding H.K.$500 is in each application to

he then was) in his argument in Buer-case a good defence to these actions. from the route indicated in the con-

JUDGMENT FOR DEFENDANTS The next exception common to both tract, after a portion of the authoris- ger v. Cunard Steamship Company

A condition Defendant Companies is worded thus:, ed transit has been performed. I fail "The law as to abrogation of special to appreciate the grounds upon which, contracts is well settled.

or exception ceases to operate as soon so far as material:--

will deliver according to common sense and rea-

as the carrier ceases to do that which "The Company son, a distinction can be made between

he has contracted to do." As Lord packages only on production to Sumner puts it in London and North Company of a delivery order signed West Railway Company v. Neilson "I by the party who shall be for the time do not wish to be understood as adopt-❘ being registered in the Company's ing the appellant's argument that 're- books as entitled to the packages, and nunciation of the contract is the test the production by the Company of liability. If the carriers so con- such delivery order shall at all times ducted themselves as to show that be conclusive proof that the packages they no longer meant to be bound by have been properly delivered by the the contract the law provides for the Company, and shall exempt the Com- case accordingly; if they break the pany from all responsibility in connec- contract without showing such an in- tion with the said packages or goods." tention they must seek relief from liability somewhere in its terms."

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In the present case I can find noth- ing in the admitted facts to indicate that the defendants did anything to show that they no longer meant to be bound by their contract with the plaintiffs. On the contrary everything that they did was done honestly but mistakenly in furtherance and execu- tion of that contract. What they did amounts at most to misdelivery with- out negligence in the performance of their contract with the plaintiffs. 1 hold therefore that the Defendants are entitled as against the Plaintiffs to avail themselves of the conditions in their several contracts limiting or ne- gativing liability.

LANGUAGE OF CONDITIONS

V..

I

the the

of

In respect of every one of the pac- kages for which a claim is made the Defendants respectively produced સ delivery order duly signed by the Plaintiffs by endorsement.

'The same considerations in my judgment apply to the exception in- voked by the Hong Kong and Kow- loon Wharf and Godown Company Limited "The Company. shall not be said responsible for any loss to the cargo whilst the goods are being stor- ed or remain on storage which is caused by misfeasance of other per- sons whether in any way acting for or under contract with or in the em- ploy of the Company or not." It is difficult to imagine a wider and more comprehensive form of words.

Mr. D'Almada's argument on this condi- tion in my opinion has not substance. At the moment of loss, which in this: case was by misdelivery the goods lost. were clearly being stored.

I pass now to consider whether the language of these conditions is suf- ficiently clear and explicit to afford either of the Defendants protection against the Plaintiffs' claim. The lo- Judgment must be for the Defen- cus classicus is the last paragraph of dants in both cases, and it is unneces- the judgment of Scrutton_L.J. in Gi- sary for me to consider. Loo for the baud v. Great Eastern Railway Com-defence of estoppel would avail the pany, a passage that has been cited | Defendant in the circumstance of these with approval in several later cases cases. There will be judgment in each **If you merely enumerate losses case for the Defendants with costs. without dealing with causes such a clause may not protect you from your own negligence: if you enumerate causes and suggest you are free from all losses however caused that will

The Undersigned have receiv-- protect you from your own negli-ed instructions to sell by Public gence. The words. that have been held to give protection are 'Under 'any

Auction on circumstances whatsoever', 'In any cir- cumstances'. 'Under any cireum-

PUBLIC AUCTIONS

"

Wednesday, the 29th Nov., 1939* commencing at 10.30 a.m. at No. 5, Shan Kwong Road,- (Happy Valley) 2nd. Floor. A Quantity of VALUABLE HOUSEHOLD

FURNITURE

also

One Piano by "Moutrie"

and

One "Frigidaire”_Refrigerator On View from Tuesday, the 28th. November, 1939

Terms: Cash on Delivery

LAMMERT BROS.,

Auctioneers.-

Hong Kong, 24th. Nov., 1939.

The Undersigned have receiv- ed instructions to sell by Public Auction on

Wednesday, the 29th. Nov., 1939* commencing at 5.15 pm. at their Sales Room, No. 2, Connaught Road, Central. (Room No. 205, 2nd. Floor)

A Valuable Collection POSTAGE STAMPS

On View from Tuesday, the 28th. November, 1989

? Terms: Cash on Delivery

LAMMERT BROS,

Auctioneers.

Hong Kong, 24th. Nov., 1989.