Hollingworth v Southern Ferries Ltd (The Eagle) [1977] 2 Lloyd’s Rep 70
Contract law: incorporation of an exclusion clause into a passenger’s booking.
Facts
Mrs Hollingworth left her holiday travel arrangements to a friend. A travel agent gave the friend the shipowners’ brochure, which referred to their conditions of carriage. The friend later received the tickets containing an exemption clause. He had read the brochure and the ticket conditions.
The booking was made by telephone. During the voyage, Mrs Hollingworth suffered a back injury when her restaurant chair fell during a storm. She brought a negligence claim, and the shipowners sought to rely on their exemption clause.
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Issue
Had the exemption clause become a term of the particular contract made for Mrs Hollingworth’s passage?
Decision and reasoning
The exemption clause was not incorporated into the contract. The telephone booking had departed from the usual method of bringing the carrier’s standard conditions into the agreement.
Deputy Judge Michael Ogden QC applied the reasoning in McCutcheon v David MacBrayne Ltd. Knowledge that a carrier normally uses standard conditions does not, by itself, establish that those conditions formed part of the contract actually made. A carrier must abide by that contract, just as it expects its customers to do.
The important distinction is between awareness of a company’s usual terms and their incorporation into a particular agreement. The case does not establish that a passenger must personally read every condition or that a brochure can never give effective notice of contractual terms.
References: Lloyd’s Law Reports, [1977] 2 Lloyd’s Rep 70; judicial discussion in Robinson v Somers Isles Shipping Ltd [2008] SC (Bda) 8 Civ, paragraphs 22–23.
