Australasian United Steam Navigation Company Limited v Hiskens [1914] HCA 56

Australasian United Steam Navigation Company Limited v Hiskens [1914] HCA 56 - HCA 1914 case summary — Zoe

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Limitation of Liability at Common Law. - A general ship has the liability of a common carrier. The authorities are collected in a note at p. 326 of Halsbury's Laws of England, vol. xxvi. But the proposition that at common law a common carrier cannot by a condition limit his liability is too broad. It is clear that if a consignor or a passenger voluntarily enters into a special and limited contract with a common carrier he is, apart from Statute, bound by its terms. See Peninsular and Oriental Steam Navigation Co. y. Shand (1); Henderson v. Stevenson (2); Steel v. State Line Steamship Co. (3); Chartered Bank of India, Australia,and China v. British India Steam Navigation Co. Ltd. (4); and Bacon's Abridgment, "Carriers," p. 52, the latter citation having special reference to amount. But at the same time the view taken by Madden C.J. has a substratum of substance which it is very material to remember. In Garton v. Bristol and Exeter Railway Co. (5) Cockburn 0.3. said: - "I take the law with respect to the obligations of com- mon carriers to be clear. Persons holding themselves out to the world as common carriers are bound to act as such in respect to such goods as they profess to carry, and have accom- modation to carry, on such goods being tendered to them to be carried, and, on a reasonable tender of proper remuneration, without subjecting the person tendering them to any unreason- able condition. Here it is found as a fact that the defendants (admitted on the record to be common carriers, and therefore bound by the law as I have stated it) have sought to impose as conditions terms which were unreasonable, and which it was not competent to them to seek to impose. The effect of that has been to prevent the plaintiffs from having their goods conveyed except by submitting to those unreasonable terms, to which they were not bound by law to submit; and the arbitrator therefore properly awarded damages for that." So also in Carr v. Lanca- shire and Yorkshire Railway Oo. (6), where Martin B. draws

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all, the analogy is helpful. In Barber v. Meyerstein (1) Lord Hatherley says of the shipowner: "He discharges his contract when he delivers his goods." And the point of that case was that until he did deliver the goods his contract was not dis- charged. Now, what is meant by delivery ? This is covered both by reason and authority. Taking authority first, we have the distinct statement of Willes J. in Meyerstein v. Barber (2) that "there can be no complete delivery of goods until they are placed under the dominion and control of the person who is to receive them." This proposition is expressly affirmed in the House of Lords (3) by Lord Chelmsford. See also per Lord Hatherley (4). Manual tradition is not always necessary ; delivery may be con- structive. But unless there be one or the other, there has not been complete delivery. In Pollock and Wright on Possession in the Common Law it is said, at p. 46: - * In all cases the essence of delivery is that the deliveror, by some apt and manifest act, puts the deliveree in the same position of control over the thing, either directly or through a custodian, which he held himself immediately before that act." And at p. 74 : - * Goods may cease to be in transitw while they are still in the carrier's custody, if he attorns to the purchaser and holds no longer as carrier but as his agent. But such an agreement to hold the goods in a new capacity must, if relied on, be distinctly proved. It cannot be implied in or presumed from a contract of carriage made with the purchaser instead of the vendor. 'When goods are placed in the possession of a carrier to be carried for the vendor, to be delivered to the purchaser, the transitws is not at an end, so long as the carrier continues to hold the goods as a carrier, It is not at an end until the carrier, by agreement between himself and the consignee, undertakes to hold the goods for the consignee not as carrier but as his agent. Of course the same principle will apply to a warehouseman or a wharfinger. And 'the contract with a carrier to carry goods does not make the carrier the agent or servant of the person who contracts with him, whether he be the vendor or the purchaser of the goods.' 'The vendor has a right to stop in transitw until the goods have actually got home

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be reasonably ready long before the shipowner, and vice versd. Unless some specified time is mentioned or some incorporated custom otherwise regulates it,a promise to do an act implies that it is to be done in a reasonable time. Where the act is a joint act, each in like manner agrees to perform his part of it ina reasonable time. But that does not mean that each contracts that the joint act is to be done within a reasonable time, but that he will do his part with reasonable diligence (See per Black- burn J. in Ford v. Cotesworth (1)). A reasonable time for the consignee to take delivery depends upon all the circumstances in which he finds himself and which are not occasioned by his own default (Hick v. Raymond (2); Sims & Co. v. Midland Railway Co.(3)). Consequently the mere fact that a reasonable time had elapsed for the carriers to deliver, and that they were ready to deliver, does not indicate that a reasonable time for the consignee to take delivery had elapsed. The question was not raised at the trial, the evidence was not specially directed to it, and if the onus lies on the shipowner to establish more on the part of the con- signee, as in my opinion it does, before he can escape his primary liability, he must fail as to this, leaving him simply the special conditions of the contract to rely upon. The actual demand was made on 8th July by Peterson upon the defendants' delivery clerk, Chillender, who, finding no trace of the hair, thought it had gone on to New Zealand. But though the demand was not made till the 8th, even supposing that were beyond a reasonable time for taking delivery the question still remains, when did the goods disappear? Did they disappear before or after the reason- able time expired? If before, the obligation of the carrier to safely keep them was broken, and no amount of delay in subse- quently demanding them could affect that breach. This, which lies entirely upon the carrier to explain, is left wholly unex- plained. No one says where they were after the morning of Friday the 5th. Consequently, nothing but the special conditions of the bill of lading can absolve the defendants, and the validity of these, so far as they purport to do so, depends upon the effect of the Act.

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For the plaintiff it was contended that the object of the section was to prevent the parties from lowering the standard of duty with respect to delivery which is imposed on the carrier at common law where there is no express agreement as to the nature of the delivery to be made by him, and it was said that that duty is to deliver to the owner or his agents personally, or in the alternative to deliver in accordance with some established usage of the port of delivery. We can find no warrant for this somewhat startling proposition in the words of the enactment or in the abuse which the enactment was intended to remedy. As we understand it, the complaint made against shipowners was not that their conduct was oppressive merely because they required that the method of delivery should be settled by agreement between them and the owners of the goods, or because they desired that the parties interested should retain the right to so settle it, but because they insisted on inserting in their contracts stipulations by which they were freed from liability if they failed to carry out their agreements, or if they or their servants acted negli- gently in the performance of them. In our opinion the expres- sions "proper delivery" and " properly delivered" connote no more than an absence of negligence and an adherence to the terms of the contract. The delivery contemplated by the section is the delivery which the carrier is bound to make under his contract, and what constitutes a sufficient delivery in any par- ticular case must be gathered from the contract itself. If nothing is said on the subject, and there is no usage of the port of delivery to regulate the matter, the delivery must be personal, but the parties are free to stipulate that it shall be made in any other fashion. They may agree by one stipulation, or by many, and with more or less particularity, on the delivery they wish to have made, or they may leave it to the law to introduce into their contract such terms as will be implied when there is no express agreement on the subject, but they cannot relieve the carrier from the liability which attaches to him for non-feasance or misfeasance in respect of such delivery as he has undertaken tomake. The delivery would be improper within the meaning of the section if made either in a manner in itself negligent, or

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would excuse them from a failure to properly deliver - to ex- pressly limit the conditions that can be legally inserted in a bill of lading. What the contract therefore declares to be delivery cannot be the true test; if it is, the words in sec. 5, " failure in the proper delivery," have no effect. If the bill of lading is to be accepted as the test, the shipowner can insist upon any definition in the bill of lading of "delivery," however improper it may in fact be within the meaning of sec. 5. If, therefore, the contract does not decide what delivery under the Act is, we must, I think, fall back on the ordinary meaning of the word as applied to the carriage and "delivery" of goods by common carriers. This is supported by Rowson v. Atlantic Transport Oo. Ltd. (1). Romer LJ. in that case expressed the opinion that under the first two sections of the Harter Act it was clear that the common law liability of the shipowner regarding the necessity for due care being taken in respect of the cargo was specially reserved. In the Harter Act it should be noted, as my brother Zsaacs points out, that the corresponding section expressly includes the word "care" as well as "stowage," "failure to deliver," &.; and in Rowson's Case (1) the only questions under consideration were : whether care had been taken of " butter" in transit; and if not, whether sec. 3 of the Harter Act did not excuse the shipowner under the circumstances because the damage done was through a fault or error in the management of the said vessel. The common law liability of the shipowner regarding proper delivery of goods is, in my opinion, just as much reserved by the Harter Act, sec. 1, and by sec. 5 of the Sea-Carriage of Goods Act, as the common law liability regarding the necessity for "care" being taken of goods during transit is reserved by the Harter Act. If so, the shipowner cannot relieve himself by contract from his common law liability qud carrier to deliver goods received by him for carriage ; although he may contract as to time, place and manner of delivery so long as there is in fact a delivery, and a proper delivery.

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Judgment (264 paragraphs)

18 CLR.) OF AUSTRALIA. 691 ascertain the value, or, if the shipper declines to state the true H. ©. or A. value, from fixing by the contract a value which both parties 1°!+