Howard Marine and Dredging Co. Ltd v A. Ogden & Sons (Excavations) Ltd. [1977] EWCA Civ 3 (13 December 1977)

Howard Marine and Dredging Co. Ltd v A. Ogden & Sons (Excavations) Ltd. [1977] EWCA Civ 3 (13 December 1977)

The majority held that the oral representation at the July 1974 Otley interview as to the barges' carrying capacity was a misrepresentation under section 2(1) of the Misrepresentation Act 1967, for which Howard Marine was liable because it failed to prove reasonable grounds for belief in its truth. The exclusion clause in the charterparty did not preclude liability as it was not fair and reasonable to allow reliance on it in the circumstances. No collateral warranty arose, and the earlier telephone representations were not actionable. One judge (Shaw LJ) would also have found liability in negligence at common law.

Citation
[1977] EWCA Civ 3
Parties
Plaintiff/respondent: Howard Marine and Dredging Co. Ltd.; Defendant/appellant: A. Ogden & Sons (Excavations) Ltd.
Jurisdiction
England and Wales
Judgment Date
13 December 1977
Procedural Posture
Civil Appeal / Court of Appeal Judgment on Appeal From High Court (queen's Bench Division)
Outcome
Appeal allowed in part; judgment below varied.
Legal Topics
Misrepresentation, Negligent Misstatement, Collateral Warranty, Exclusion Clauses, Damages
Contract Law Tort Law Misrepresentation Negligent Misstatement Collateral Warranty Exclusion Clauses Damages

Case Brief

Summary, issues, holding and outcome

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Parties

Howard Marine and Dredging Co. Ltd.

Plaintiff/respondent

A. Ogden & Sons (Excavations) Ltd.

Defendant/appellant

Procedural Posture

Civil Appeal / Court of Appeal Judgment on Appeal From High Court (queen's Bench Division)

Legal Issues

  1. 1 Whether oral representations as to barge capacity constituted contractual warranties or actionable misrepresentations
  2. 2 Whether the representations were negligent or innocent misrepresentations under the Misrepresentation Act 1967
  3. 3 Whether the exclusion clause in the charterparty precluded liability for misrepresentation

Ratio Decidendi

The majority held that the oral representation at the July 1974 Otley interview as to the barges' carrying capacity was a misrepresentation under section 2(1) of the Misrepresentation Act 1967, for which Howard Marine was liable because it failed to prove reasonable grounds for belief in its truth. The exclusion clause in the charterparty did not preclude liability as it was not fair and reasonable to allow reliance on it in the circumstances. No collateral warranty arose, and the earlier telephone representations were not actionable. One judge (Shaw LJ) would also have found liability in negligence at common law.

Court Disposition

Appeal allowed in part; judgment below varied.

Orders

  • Howard Marine found liable under section 2(1) of the Misrepresentation Act 1967 for damages caused by the July 1974 misrepresentation.
  • Case remitted for assessment of damages.