1. Passengers injured due to carrier negligence — dispute over validity of an express exemption clause in the ticket under the Transport Act, 1938. (Para 1 , 2 , 3 )
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1947 Supreme(SC) 6
Privy Council At Canada
Uthwatt, Simonds , Porter, Wright, Justice Lords Macmillan, JJ.
Alfred William Ludditt and others -Appellant
Versus
Ginger Coote Airways Ltd. -Resopndent
Privy Council Appeal No. 44 of 1945
Decided On : 05-02-1947
Advocates Appeared:
Beaumont and Son, Walton, Gasquet Metcalfe , Patrick Browne, H.G. Robertson , Sir David Maxwell Fyfe, Murphy , Paul D, K. Diplock , D.N. Pritt
Beaumont and Son, Walton, Gasquet Metcalfe , Patrick Browne, H.G. Robertson , Sir David Maxwell Fyfe, Murphy , Paul D, K. Diplock , D.N. Pritt
A carrier of passengers may validly exclude liability for negligence through a clear, signed contract, provided it does not violate statutory restrictions. Administrative compliance with tariff filing requirements is sufficient to validate such contractual exemptions, as the carrier is not an insurer of passengers.
Headnote:(A) Transport Act, 1938 - Sections 16, 17, 19, 20, 21, 22, 24, 25, 26, 32 and 33 - Railway and Canal Traffic Act, 1854 - Section 7 - Carriage of passengers by air - Exemption clause - Validity of a contract exempting a carrier from liability for negligence - A common carrier of passengers is bound to carry with due care, but this general duty may be superseded by a specific contract which may enlarge, diminish, or exclude it (Para 7). If the law authorizes such a contract, it cannot be pronounced unreasonable by a court of justice (Para 7).
(B) Common Carrier - Distinction between carrier of goods and carrier of passengers - While a common carrier of goods is generally an insurer of the goods, a carrier of passengers is not (Para 6). A carrier of passengers is free to limit obligations by special contract, provided there are no statutory conditions limiting such right (Para 7).
(C) Statutory Compliance - Where a statute requires the filing of tariffs with an administrative board, and such tariffs are not rejected, the terms contained therein are deemed to comply with the law (Para 11). The obligation to provide reasonable and proper facilities for traffic relates to physical and mechanical facilities and does not restrict the terms of a special contract or their reasonableness (Para 13).
Facts of the case:
Passengers traveling by aircraft signed tickets containing an express condition that the flight was at their own risk and that the carrier was released from all liability for loss, damage, or injury, including those caused by the negligence, default, or misconduct of the carrier or its servants. Following an accident caused by the carrier's negligence, the passengers sought damages, but the carrier relied on the signed exemption clause.
Findings of Court:
The exemption clause is valid and enforceable. The passengers had sufficient notice, the condition was clear and unambiguous, and the carrier had complied with the relevant statutory requirements regarding the filing of tariffs.
Issues: Whether an express condition in a ticket exempting a carrier from liability for negligence is valid and enforceable, or whether it is illegal and void under general law and the relevant transport legislation.
Ratio Decidendi: A carrier of passengers, unlike a carrier of goods, is not an insurer and may, in the absence of statutory prohibition, enter into a specific contract to exclude liability for negligence. Where the governing statute requires administrative approval of tariffs and such tariffs are filed and not rejected, the contract is valid. The duty to provide "reasonable and proper facilities" refers to physical infrastructure, not the contractual terms of carriage.
Result: Appeal dismissed.
Legal Category Hierarchy
Table of Contents
2. Whether an express condition exempting a carrier from liability for negligence is valid and enforceable or illegal and void. (Para 2 )
3. Common carriers of passengers may limit liability via specific contracts unless statutory restrictions apply; the filed tariffs complied with the Transport Act, 1938. (Para 5 , 6 , 9 , 10 , 11 , 12 , 14 )
4. A specific contract excluding liability for negligence is valid and enforceable provided it does not contravene applicable statutory restrictions. (Para 11 )
5. Appeal dismissed. (Para 15 )
6. What is the common law duty of a common carrier of passengers?
A common carrier of passengers is not an insurer of the passenger's safety but is obligated to carry them with due care. (Para 6 )
7. How does the Transport Act, 1938 affect the validity of exemption clauses in air transport tariffs?
If a carrier files tariffs that are not rejected by the Board of Transport Commissioners, the terms are deemed to comply with the law and cannot be pronounced unreasonable or invalid by a court. (Para 11 )
Lord Wright:-
The three appellants were, on 29th November 1940, being carried as passengers for reward on an aeroplane operated by the respondent Company which was flying from the City of Vancouver to Zaballos on Vancouver Island. During the flight the aeroplane caught fire. Owing, as is not now contested, to the negligence of the respondents' servants, each of the appellants was injured. The appellants severally brought action in the Supreme Court of British Columbia claiming damages for the injury which they had sustained. They succeeded in their claim before the trial Judge and damages were assessed under the judgment in their favour dated 25th June 1941; but that judgment was set aside by a majority of the Judges of the Court of Appeal for the Province of British Columbia. On an appeal from that judgment to the Supreme Court of Canada, that Court in its turn by a majority affirmed the decision of the Court of Appeal. From that judgment the present appeal has been brought before this Board pursuant to special leave.
[2] There is now no dispute on the facts or as to the amount of damages. The sole question is whether an express condition contained in the ticket issued to each of the appellants which exempted the respondent from liability is valid so as to exonerate that Company from any obligation to compensate the appellants for their injuries; or whether it is illegal and void. The answer to the question depends on the express terms of the ticket, the general law, and the relevant conditions of the Transport Act, 1938 , and the Orders of the Board of Transport Commissioners established under S. 3 of the Act, which has for one of its purposes the control of contracts of this type.
[3] The express contract was embodied in a single trip ticket from Vancouver to Zeballos dated 28th November 1940, which was issued by the respondents to each of the appellants, the fare being $25 for the carriage. Each passenger signed the ticket before a witness and the most material provision is as follows:
"This ticket is expressly subject to the conditions below:
In consideration of the Ginger Coote Airways Ltd. of Vancouver, B. C., permitting me, at my own risk against all casualties to fly as a passenger in any aircraft owned or operated by the said Ginger Coote Airways Ltd., I hereby agree with the Ginger Coote Airways Ltd. that such flight is, and shall be at my own risk against all casualties to myself or my property and that I take all risk of every kind, no matter how caused, and I hereby release and discharge the Ginger Coote Airways Ltd. and indemnify it of and from all actions, claims and demands of every nature and kind whatsoever, which I, or my heirs, executors, administrators or assigns may now, or may or can at any time hereafter, have against the Ginger Coote Airways Ltd., for or on account of any loss, damage or injury to me, my person or property while so flying, and whether in or on any such aircraft or getting to or from, into or off, or in or out thereof; or in any manner in connection with or in consequence of such flight, and whether any such loss, damage or injury be caused by negligence, default or misconduct of the Ginger Coote Airways Ltd., itself, servants, agents or members, or otherwise howsoever."
4. It is not suggested that the appellants and each of them had not sufficient notice of this condition when the tickets were signed. The condition itself is clear and unambiguous; nevertheless the learned Judge in the first Court and the dissenting Judges in the Appellate Courts in Canada have held it illegal and void. Their Lordships dissent from this view and agree with the decisions of the majority of the Judges in the Provincial Court of Appeal and in the Supreme Court of Canada that the condition is valid and enforceable for the reasons which they will now state.
[5] It will be convenient in the first place to explain what is the general law on the subject before discussing the special legislative provisions which are
