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La clause Himalaya tire son nom de l'affaire anglaise Adler v Dickson. Mme Adler était un passager sur 'Himalaya', paquebot de la compagnie P & O et qui fût grièvement blessé lorsque la passerelle de débarquement sur laquelle elle avait pris place s'effondra, la projetant sur le quai. Le billet de passage contenait une clause d'exemption de non responsabilité au profit du transporteur P & O. Mme Adler poursuivit donc le capitaine du navire, Dickson, et le maître d'équipage afin d'être indemnisée de son préjudice. La Cour d'appel jugea le capitaine Dickson responsable et accorda des dommages à Mme Adler. La Cour décida cependant qu'il était possible pour P & O pour d'incorporer dans les conditions de vente de ses tickets de passage une clause lui permettant d'étendre à ses employés le bénéfice de sa clause de non responsabilité ; Cependant, ne l'ayant pas fait dans le cas du ticket de passage de Mme Adler, P&O et le capitaine Dickson ne pouvaient s'en prévaloir. Une conséquence de l'affaire «Himalaya» est que les clauses des contrats de transport (que ce soit pour les passagers ou de la cargaison) incluent au bénéfice des préposés du transporteur, les agents et sous-traitants, manutentionnaires, les exeptions ou limitations de responsabilité qui pourraient être avancées par le transporteur.

 

ADLER V DICKSON 29 OCTOBRE 1924 - English Court of Appeal - SS HIMALAYA

 

 

DECISION

 

Adler v Dickson [1955] 1 QB 158 (the Himalaya)

Tribunal : Queen's Bench Division (UK)

[1954] 2 All ER 397; [1954] 3 WLR 696; 98 Sol Jo 787;

 

[1954] 2 Lloyd's Rep 267

 

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 which she joined the ship at Southampton and sailed on the cruise. On the 16th July, 1952, the ship reached Trieste 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 and had got about half way across when suddenly the gangway came adrift from the gantry at the shore end, and it fell down against the side of the ship. She was thrown on to the wharf below, a distance of 16 feet, and suffered severe injuries, including a broken leg, broken pelvis, and broken ribs. She claims damages against the Master and the Boatswain of the ship alleging that they were negligent in that they failed to see that the gangway was properly secured. They deny this and say that the gangway was properly placed and secured and that the cause of the accident was that there was an exceptionally violent gust of wind which suddenly blew the ship several feet 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 negligent or not. The trial of that issue would be very expensive. The Master and Boatswain say that it is unnecessary to go to that expense because in any event, even if they were negligent, they are protected by the exception clause in the ticket. The clause says that "Passengers and their baggage are carried at Passengers' entire risk" and "The Company will not be responsible for and shall be exempt from all liability in respect of any damage or injury whatsoever of or to the person of any passenger". Mrs Adler admits that, if she had sued the Steamship Company, the exemption clause would have protected the Company; but she says that it does not protect the Master and Boatswain. Indeed, it is for that very reason, so as to overcome the exemption clause, that she has sued 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 must assume for the purposes of the argument that the Master and the Boatswain were personally guilty of negligence and are prima facie liable in tort for their wrongdoing. The question is whether they are protected by the exemption clause. It is an important question, because the Steamship Company say that, as good employers, they will 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 the exemption clause which no one has ever thought of before.

4. pause to say that, if a way round has been found, it would not shock me in the least. I am much more shocked by the extreme width of this exemption clause which exempts the Company from all liability whatsoever to the passenger. It exempts the Company from liability for any acts, default or negligence of their servants under any circumstances whatsoever, which includes, I suppose, their wilful misconduct. And this exemption is imposed on the passenger by a ticket which is said to constitute a contract but which she has no real opportunity of accepting or rejecting. It is a standard printed form upon which the Company insist and from which they would not depart, I suppose, in favour of any individual passenger. The effect of it is that, if the passenger is to travel at all, she must travel at her own risk. She is not even given the option of travelling at the Company's risk on paying a higher fare. She pays the highest fare, first-class, and yet has no remedy against the Company for negligence.

Nearly 100 years ago Mr Justice Blackburn in a memorable Judgment said that a condition exempting a carrier wholly from liability for the neglect and default of their servants was unreasonable, see . I think so too.

5. Nevertheless, no matter how unreasonable it is, the law permits a carrier by special contract to impose such a condition; see : except in those cases where Parliament has intervened to prevent it. Parliament has not so intervened in the case of carriers by sea. The Steamship Company are therefore entitled to the protection of these clauses, as indeed this Court held in Law Reports, . The question is whether the 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 appears at first sight both simple and sufficient. It is this: The Master and Boatswain were not parties to the contract of carriage and cannot therefore claim the benefit of the exemption clause in it, because no one can enforce a contract to which he was not a party. It was reasoning on those lines which appealed to the Court in : and if that decision was right, it concludes the case in Mrs Adler's favour. Mr Mocatta has, however, urged us to say that that decision was wrong. It is, he says, inconsistent with the decision of the House of Lords in the case of which was not cited to the Court. He says further that, in the case of carriage of goods by sea, it is well established that the Master and crew are entitled to the protection of the exemption clauses: and that there is 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. They undoubtedly show that when a carrier issues a bill of lading for goods, the exception clauses therein ensure for the benefit, not only of the carrier himself, but also for the benefit of the shipowner, the Master, the stevedores and any other persons who may be engaged in carrying out the services provided for by the contract. Such persons are not parties to the contract of carriage, but nevertheless when they are rendering their services, they are protected by the exceptions contained therein ; and this is so, even though the clauses are not expressed to be made for their benefit, at any rate, not in so many words. It follows that if they are guilty of negligence in rendering their services and are sued in tort, they can nevertheless rely on the exceptions to relieve them from liability. These propositions have been established in England by the case of , in Australia by , and , and in the United States of America by , and . The propositions are further supported by the Rules in the Carriage of Goods by Sea Act, 1924. Article IV (2) exempts "the carrier" and "the ship" from divers responsibilities and Article IV (5) limits their liability in any event to £100 per package. Neither the Master nor the crew nor the stevedores are expressly given the benefit of these exceptions and limitations but Parliament 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 their correctness but the difficulty is to reconcile them with the proposition that no one can claim the benefit of a contract except a party to it. The speeches in the House of Lords in the Elder Dempster case are so compressed on this 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 bill of lading), there were a number of collateral contracts between the goods owner and all the various persons concerned in the carriage. Take, for instance, the stevedores. It was said that there was a collateral contract between the goods owner and the stevedores whereby the, goods owner agreed that the stevedores should have the benefit of the exceptions.

This collateral contract was said to be made by the carriers either as agents for the goods owner or as agents for the stevedores or alternatively to arise out of a bailment upon terms. Take next the crew. It was said that there were collateral contracts with each of them, although there was clearly no bailment to each one. This suggestion of a large number of collateral contracts does not appeal to me, for the simple reason that there are never any such contracts in fact. The goods owner makes one contract only, namely, his contract with the carrier. He makes no contract with anyone else. In particular he makes no contract with the stevedores, or with the Master or the crew. It seems to me that these supposed collateral contracts are nothing but a legal fiction devised to give the stevedores and the others protection under a contract to which they were not parties. The truth is there was only one contract, namely, the contract evidenced by the bill of lading: and the reason why the stevedores and others are protected is because, although they were not parties to the contract, nevertheless they participated in the performance of it, and the exception clause was made for their benefit whilst they were so performing it. The clause was not made expressly for their benefit, it is true, but nevertheless it was by necessary implication which is just as good: and they have a sufficient interest to entitle them to enforce it. Their interest lies in this: they participated in so far as it affected them and can take those benefits of it which appertain, to their interest therein. It is one of those cases — by no means rare — where a third person is entitled to enforce a contract made for his benefit. I referred to some of these cases in, and Mr Justice Devlin has recently mentioned some more in his illuminating Judgment in .

9. Such being the rule in respect of goods, the question is whether a similar rule applies to the carriage of passengers? In principle it clearly does. A good instance is, which was decided eighty years ago. A drover was given a free pass to take some sheep on the railway from Scotland to England. The North British Company gave him a ticket which said that, as he 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 Scottish Company. It was admitted that there was only one contract, namely, the contract with the Scottish Company. The English Company was not a party to that contract but nevertheless it was entitled to the benefit of the exception which 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 necessary implication that the English Company should be protected. I should add that in Mr Justice Blackburn's Judgment as reported in the Law Reports there are some words which suggest a contract between the drover and the English Company 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 to the Carriage by Air Act, 1932. The provisions under that Act contain certain exemptions and limitations in favour of the "carrier". The pilot of the aircraft is not expressly given the benefit of them, but Parliament must have intended 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 to stipulate for exemption from liability not only for himself but also for those whom he engages to carry out the contract: and this can be done by necessary implication as well as by express words. When such a stipulation is made, 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 is clear law that an injured party is not to be deprived of his rights at common law except by a contract freely and deliberately entered into by him; and all the more so when the wrongdoer was not a party to the contract, but only participated in the performance of it.

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