White v John Warwick (1953) The plaintiff who is a news vendor had hired a trademan's cycle from the

defendants. He intended to use it for his job, but the plaintiff was injured as he rode the cycle and the saddle tilted forward. He wants to claim for damages for breach of contract or negligence. But the defendant claimed to be protected by a clause printed in the agreement which states that "Nothing in this agreement shall render the owners liable for any personal injury". In this case, it is stated that if the defendant desires to exempt himself from the liability imposed to him by the common law, he should by right have a contract that states the clause clearly and precisely in which there is no way of misunderstanding it. But if the clause stated is ambigous and unclear, where the defendant claims to use it as a form of protection against any liabilities, the court will apply a rule theory called the contra preferentum. The contra preferentum rule applies that an ambiguous term will be explained against the interest of the party who imposed the clause into the contract. The reason for this rule is for the imposer of the rule to understand the need to be precise and clear when it comes to creating a clause. Therefore, as the plaintiff wants to claim for damages in breach of contract or negligence, ruling by Denning LJ states the clause to only be effective to protect the defendant from his liability in contract, but not from his negligence. The defendant may not have breached the contract because he successfully delivered the cycle to the plaintiff as promised. But, he has failed in negligence for not being able to provide a cycle that is in good condition. Not only that, his exemption clause was not clear in terms of how he is not responsible for any injuries, such as exemption from providing a defective cycle or exemption from the carelessness of the plaintiff in using the cycle. The clause was too general that it causes misunderstanding and therefore, the court gets to rule that the clause in ambigous and ineffective to protect the defendant from any sorts of liabilities. Glynn v Margetson [1893] AC 351 Shippers in Liverpool had hired shipowners to bring in oranges from Malaga to Liverpool. Both shippers and the shipowner enter into a contract where they agreed to transport fresh oranges from Malaga to Liverpool. The contract stated that, ...now lying in the port of Malaga, bound for Liverpool, with liberty to proceed to and stay at any port or ports, in any rotation, in the Mediterranean, Levant, Black Sea, or Adriatic, or on the coasts of Africa,

Spain, Portugal, France, Great Britian and Ireland, for the purpose of delivering coals, cargo, or passengers, or for any other purpose whatsoever. In this case, the ship called Zeta departed from Malaga, it went in the opposite direction on the north east coast of Spain to the port of Burriana and then back again to Liverpool. When the oranges arrived in Liverpool, the shippers only received rotten oranges and therefore claimed damages for the breach of contract in which the shipowners failed to deliver fresh oranges. The defendants justified that the delay is stated by the terms of the contract. The judge, Lord Herschell LC ruled that the term in the contract is contradicting with the main objective of the contract, which is to deliver oranges from Malaga to Liverpool. The term is said to be unclear and allows the shipowners to have dominance where they can trade as they pleased, and that they can determine when the oranges will arrived regardless if the oranges will still be in good condition or rotten. But the main concern here is whether the shippers will receive their goods as promised, in good condition. Therefore, he ruled out the exemption clause as effective to protect the shipowners from the liability for breaching a contract because the clause seem to serve no purpose to the main objective and intent of the contract. It only serves purpose to give the shipowners the negotiating power to decide when the oranges will arrive, regardless if the shippers will incur losses or not. Evans Ltd v Andrea Merzario Ltd [1976] 1 WLR 1078 This is the case where Evans have always hired Andrea to handle the shipment of goods by sea to England, and Andrea have always had the goods transported below the deck. In 1967, Andrea convinced Evans to have the goods transported in containers, and Evans would agree to have the goods transported in a container as long as it would be below the deck. So, Andrea gave oral assurance that it would be transported under the deck. But during the transport, Evans goods were wrongly shipped on deck and it was lost overboard. Evans wanted to claim damages against Andrea for breach of contract for not having the goods transported below the deck. There is a written agreement between Evans and Andrea with Condition 11 stating that Andrea would not be liable for loss or damage unless it occurred whilst in their actual custody and then only if they were guilty of wilful neglect or default. There is also Condition 13 of the agreement where Andrea's liability was not to exceed the value of the goods or a sum at the

rate of 50 per ton of 20 cwt. For the judging, Lord Denning MR would have to consider if the condition 11 and 13 is applicable to Andreas case because it is more of a collateral contract where both parties of the contract in written form, agrees to enter into another contract, in this case an oral form. Lord Denning MR ruled that the defendant had given assurance orally that the goods in the new container would be carried below the deck. He appears to have made the promise to induce Evans to agree to his suggestion of having goods transported in a container. On the faith of it, Evans has accepted the quotations and gave orders for transport which indicates that the promise is already binded. If there was a breach, it was only a breach of that promise and Andrea as the agent would be held liable- only if it is on printed conditions. In this case, the printed condition such as Condition 4 has allow the company complete freedom to decide on the means, route and procedures of the transportations. As well as Condition 11 and 13 mentioned above. The judge ruled that the defendant did not breach on the contracts condition and therefore the exemption clause was not enough to say that Andrea is liable for the fact that the container is not transported below deck. If there is any breach, it is Andrea breaking the oral promise of having the goods transported in the container which will be below deck. But, the plaintiffs claim for damages is based on the clause from the first contract they made, uneffective to the oral promise they made much later in 1967. Adler v Dickson [1954] It was a case as such that Adler was boarding the ship, Himalaya owned by P&O. Dickson was the master of the ship. So, Adler was walking on the gangway when the ship moved, causing her to fall sixteen feet to the wharf and to suffer serious injuries. As there were exemption clause on the boarding ticket stating that: Passengers... are carried at passengers' entire risk. 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... Adler accepted P&Os exemption clause and decided to sue Dickson for his negligence in allowing the ship to move when she is walking on the gangway. As such, the court would have to consider if Dickson can rely on P&Os conditions to exempt him from liability or that he is negligent. It is understood that for example, a carrier company could apply exemption clause for his company as well as for his employees. As when such clause is imposed, it is effective to protect those who render the service of the contract altought they are not the party who is involved directly to the contract. In the case of goods if the carrier of the goods is protected by an exemption clause, so should his servants be, leaving the owner to recover claims against the insurance company. But in the case of passengers, the shipping company only impose exclusion clause for its company but not the employees though the employees are just participating in transporting for the company. The judge did not see any reason to imply any such exemption as the servants or agents, therefore, will not be excused from the consequences of their personal negligence. The clause is invalid because by all means, the passenger has actually enter into the contract with the shipowner, not the servants. The judge would see it as a scam rather than an actual clause that could effective to protect his company, as he seemed reluctant or obligated to indemnify his servants. It is ruled that the shipowner could not take advantage of the exemption clause printed in the ticket that did not imply benefits for its servants or agents but only itself.