Charlton's Bagshaw v. Thomas law's & Co. [1912] ScotLR 214 (05 December 1912)

Charlton's Bagshaw v. Thomas law's & Co. [1912] ScotLR 214 (05 December 1912)

The express clause in the bill of lading exempting the shipowner from liability for latent defects not resulting from want of due diligence is not rendered null and void by the Sea Carriage of Goods Act 1904 (Australia), even when that Act is incorporated by reference. The statutory warranty of seaworthiness may be qualified by express agreement between the parties, and the relevant statutory provisions do not prohibit such a qualification for latent defects.

Citation
[1912] ScotLR 214
Parties
Pursuers/appellants: Charlton & Bagshaw; Defenders/respondents: Thomas Law & Company
Jurisdiction
Scotland
Judgment Date
05 December 1912
Procedural Posture
Civil (contract/shipping) / Appeal From Sheriff to Court of Session, Inner House, Second Division
Outcome
Appeal dismissed; interlocutor of the Sheriff affirmed; case remitted for proof.
Legal Topics
Bill of Lading, Seaworthiness, Latent Defect, Statutory Incorporation, Limitation of Liability, Interpretation of Statutes
Shipping Law Contract Law Bill of Lading Seaworthiness Latent Defect Statutory Incorporation Limitation of Liability Interpretation of Statutes

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Parties

Charlton & Bagshaw

Pursuers/appellants

Thomas Law & Company

Defenders/respondents

Procedural Posture

Civil (contract/shipping) / Appeal From Sheriff to Court of Session, Inner House, Second Division

Legal Issues

  1. 1 Whether a clause in a bill of lading exempting shipowners from liability for latent defects is null and void under the Sea Carriage of Goods Act 1904 (Australia) when that Act is incorporated by reference into the contract.
  2. 2 Whether the statutory warranty of seaworthiness can be contracted out of by express agreement.

Ratio Decidendi

The express clause in the bill of lading exempting the shipowner from liability for latent defects not resulting from want of due diligence is not rendered null and void by the Sea Carriage of Goods Act 1904 (Australia), even when that Act is incorporated by reference. The statutory warranty of seaworthiness may be qualified by express agreement between the parties, and the relevant statutory provisions do not prohibit such a qualification for latent defects.

Court Disposition

Appeal dismissed; interlocutor of the Sheriff affirmed; case remitted for proof.

Orders

  • Affirmation of the Sheriff's interlocutor allowing both parties proof of their averments.
  • Remittal of the cause to the Sheriff-Substitute for further procedure.