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SS HIMALAYA Court of Appeal 29 October 1954 ADLER V. DICKSON

11. In all cases where the wrongdoer has escaped it will be found that the injured party assented expressly or by necessary implication to forego his remedy against him. In the case of goods it is not difficult to infer an assent because the owner of the goods habitually insures them against loss or damage in transit. If the carrier is protected by an exemption clause, so should his servants be, leaving the owner to recover against the insurance company. 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 Eastern Railway Company but not in Cosgrove v. Horsfalleven though the clause there purported expressly to exempt the servant. 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 only stipulated for exemption from liability for themselves. They did not in terms stipulate for exemption for their servants or agents, and I see no reason to imply any such exemption. The servants or agents are therefore not excused from the consequences of their personal negligence, see. In any case, even if the Company intended that the stipulation should cover their servants, nevertheless I see nothing whatever to suggest that Mrs Adler knew of their intention or assented to it. If she read the conditions of the ticket (which she probably did not) and considered the possibility of being injured by the negligence or default of the Company's servants (which I trust she thought unlikely) she might well think that her remedy against the Company was barred, but she would not think her remedy against the servants was also barred. Suppose a steward on a liner were to strike a passenger or falsely to imprison her, or injure her by some wilful misconduct, then albeit it was done in the course of his employment, he could not claim the protection of the clause, for the simple reason that the passenger never agreed to his being exempted. She could sue the steward personally, even though her remedy against the Company was barred. So also if the steward is negligent in the course of his employment, for there is no difference in principle between the cases. The passenger has not agreed to 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 without being defeated by the exemption clause. I think the appeal should be dismissed.




15. This appeal arises in an action brought by the Respondent/Plaintiff, Mrs. Rose Marks Adler, against the Appellant/Defendants, Dickson and Wallis, respectively Master and Boatswain of the P. & O. Steam Navigation Company'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 between the ship and the shore to enable passengers to go ashore and return on board. The Plaintiff had been on shore and was walking along one of these gangways on her way back to the ship when it suddenly moved and fell to the side of the ship, with the result that the Plaintiff was thrown from the gangway on to the wharf, some 16 feet below, 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. Passengers and 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) ran thus: "Conditions and Regulations. This ticket is issued by the Company and accepted by the passenger subject to the following conditions and regulations. The Company will not be responsible for and shall be exempt from all liability in respect of any......injury whatsoever of or to the person of any passenger......whether such injury of or to the person of any passenger.......shall occur on land, on shipboard or elsewhere......and whether the same shall arise from or be occasioned 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 or indirectly in the employment or service of the Company, or otherwise, or by the Act of God......dangers of the seas......or by accidents......or any acts, defaults or negligence of the....... Master, Mariners.......Company's agents or servants of any kind under any circumstances whatsoever.....".

19. The above-quoted provisions of the contract admittedly precluded the Plaintiff from suing the Company for damages in respect of the injuries she had sustained, even if the accident could be shown to have been due to the negligence of the Company's servants. She therefore brought the present action against the Defendants, Dickson and Wallis, claiming damages from them on the ground that the injuries she had sustained through the fall of the gangway were caused by their negligence. The way in which this claim is formulated appears from the following passages 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 them was, responsible for berthing the said ship at Trieste and for placing and maintaining gangways leading from the said 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, 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 in paragraph 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, from which 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 to have 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 safe for 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, to which 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 passenger on 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 pursuance or 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 to the 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 while the 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 in contracting with the Plaintiff upon the terms of the said ticket the Company acted in all material respects as the agent 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 or alternatively 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 the trial as a preliminary issue of the point of law raised by paragraph 3 of the Defense, namely, whether the terms of the ticket held by the Plaintiff as a passenger on the ship at the time of the accident, afforded a defence to the Defendants against the Plaintiff's claim upon the assumption that the Plaintiff could establish the matters referred 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, andmade an Order to that effect, from which the Defendants now appeal to this Court. If the matter were free from authority I would have little hesitation in agreeing with the learned Judge's conclusion. For the present purpose it must be assumed that the Defendants were in fact guilty of the negligence alleged against them in the Statement of Claim in the shape of the various wrongful acts or omissions particularised under paragraph 6, and the Defendants must show that even on that assumption the action must fail by reason of the exempting provisions of the ticket. On this assumption, the Plaintiff, while lawfully using the gangway, was injured by the tortious acts or omissions of the Defendants who were servants of the Company which had contracted with the Plaintiff to carry her 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 of contract or alternatively, in tort on the principle of "respondeat superior", and (b) against the Defendants as the persons actually guilty of the tortious acts or omissions which caused the damage. The plaintiff's right of action against the Company is clearly taken away by the exempting provisions of the contract, but I fail to see how that can have the effect of depriving her also of her separate and distinct right of action against the Defendants as the actual tortfeasors. There is certainly no express provision purporting so to deprive her, and in the absence of any express provision to that effect I see no justification for implying one.

The exempting provisions in terms apply only to the liability of the Company, without any reference to the liability of servants of the Company for the consequences of their own tortious acts. Even if these provisions had contained words purporting to exclude the liability of the Company's servants, non constat that the Company's servants could successfully rely on that exclusion in proceedings brought against them by some party injured by their tortious conduct, for the Company's servants are not parties to the contract. But as it is, not only are the Company's servants not parties to the contract, but the contract docs not even mention their liability. I find it quite impossible to accept the suggestion that the contract between the Company and the Plaintiff must be taken to have been entered into by the Company not only on its own behalf but also on behalf of all its servants. There is nothing whatever in the terms of the contract to support this theory, and even if it were tenable I do not see how it would assist the Defendants, inasmuch as the only liability it excludes is the liability of the Company. Finally, I take it to be the law that a Defendant sued in tort who claims that the Plaintiff has by some contract with the Defendant deprived himself in advance of his right of action in respect of the wrong done him must show that the contract relied on does either expressly or by necessary implication clearly deprive the Plaintiff of such right. The contract here relied on to my mind falls far short of this test so far as the Plaintiff's right of action against the Defendants is concerned.

23. A good deal was said in the course of the argument before us about the absurdity of a stipulation relieving an employer of his liability for the negligence of his servant while leaving untouched the servant's liability for that some negligence. I do not follow this. If there is no exempting stipulation at all, then both master and servant are liable, and either can be sued at the option of the injured party. If there is a contract exempting the master but not the servant then the servant's liability remains as it was. The master may find this result inconvenient if he feels impelled either from motives of expediency or from a sense of moral obligation to indemnify the servant. But, if so, the answer is simple. He should have seen that the contract was so framed as to exempt his servant from liability as well as himself. To my mind it is far more absurd to impute to a passenger on a ship who has contracted with a shipowner for a given voyage in terms which exempt the shipowner from liability for his servants' negligence an intention thereby to deprive himself of all right to redress against the servants of the shipowner for any and every negligent act or omission which may be committed by such servants in the course of their duties, however gross the negligence and however grave the resulting damage to the passenger may be.

Accordingly, if left free to do so by the authorities, I would dismiss the appeal.

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