3PLR – FOSBROKE-HOBBES V. AIRWORK LTD AND BRITISH-AMERICAN AIR SERVICES LTD
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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FOSBROKE-HOBBES
V.
AIRWORK LTD AND BRITISH-AMERICAN AIR SERVICES LTD
KING’S BENCH DIVISION
15, 16, 17, 21 DECEMBER 1936
3PLR/1936/7 (KB)
CITATIONS
[1937] 1 ALL E.R. 108
BEFORE: GODDARD J
MAIN ISSUES
AVIATION LAW – CONTRACT:- Carriers – Carriage by air – Contract by correspondence – Subsequent delivery of ticket containing conditions – Charter of private aeroplane – Liability to charterer’s guests – Evidence of negligence – Res ipsa loquitur.
HISTORY AND SUMMARY OF FACTS
Negotiations were entered into with the first defendants for the hire of an aeroplane for the carriage of the hirer and a party of guests. The aeroplane hired was in fact the property of the second defendants and the pilot was their servant. The negotiations, however, were conducted throughout by the first defendants, and it was found that they held themselves out as principals. No mention was made of any special conditions. Just as the aeroplane was preparing to leave, an envelope containing a “ticket” was handed to the hirer by the pilot. The “ticket” was a document called a special charter which contained inter alia a number of conditions, one of which exempted the second defendants from liability for their own or their servants’ negligence. The ticket contemplated signature by the “passenger” and its return when signed to one of the second defendants’ officials. Before the hirer had an opportunity of seeing the contents of the envelope, the aeroplane started on its journey and almost immediately it crashed, two of the hirer’s guests being killed. The disaster was found to be due to the negligence of the pilot. In an action by the widow of one of the guests on behalf of herself and her three infant daughters for damages under the Fatal Accidents Act:—
Held –(i) as there was no contractual relationship between the first defendants and the hirer’s guests, the first defendants were not liable to the widow.
(ii) a condition binding on the hirer would also be binding on his guests, as the burden was upon the hirer to pass on to his guests the information as to the existence of the conditions.
(iii) the condition exempting the second defendants from liability was not communicated to the hirer before the journey started, and the second defendants were not protected by it. As the pilot was negligent, the second defendants were liable to the plaintiff for her husband’s death.
Notes
The main point of interest in this case is the question whether the second defendants can avail themselves of the exemption from liability contained in the ticket or contract. In the present case there had been a prior agreement by correspondence, and if this was to be varied by the ticket, it is clear that the ticket should have been brought to the hirer’s notice. It must be noted that this is the hire of a private aeroplane and not a ticket for travel in a regular public service. The point that everyone must be taken to know that air carriage of passengers is only undertaken subject to special exemptions is held not to be applicable. Another point in the case is the application of the doctrine res ipsa loquitur to an aeroplane accident.
For the Law on the Point, see Halsbury (Hailsham Edn), Vol 4, pp 63–65, paras 97, 98; and for Cases, see Digest, Vol 8, pp 71, 75, Nos 479–513.
Cases referred to
Carpue v London & Brighton Ry Co (1844) 5 QB 757; 38 Digest 110, 790.
Holliday v National Telephone Co [1899] 2 QB 392; 34 Digest 163, 1271.
Penny v Wimbledon Urban Council [1899] 2 QB 72; 34 Digest 161, 1260.
Honeywill & Stein Ltd v Larkin Bros (London’s Commercial Photographers) Ltd [1934] 1 KB 191; Digest Supp.
Nunan v Southern Ry Co [1923] 2 KB 703,[1924] 1 KB 223; Digest Supp.
Thompson v London Midland & Scottish Ry Co [1930] 1 KB 41; Digest Supp.
Action
Action for damages for the death of Major Adrian Wrigley Fosbroke-Hobbes by Mrs Mabel Mary Fosbroke-Hobbes, suing under the Fatal Accidents Act 1846, as executrix on behalf of herself and her three infant daughters. The facts are fully set out in the judgment.
Roland Oliver KC, Harold Murphy KC and C Leonard for the plaintiff.
Sir Stafford Cripps KC and F W Beney for the first defendants.
D P Maxwell Fyfe KC, H G Robertson and Patrick Browne for the second defendants.
21 December 1936. The following judgment was delivered.
GODDARD J. On 16 July 1935, a party of some seven persons met at the Heston Airport on the invitation of Mr Horace Vickers, senior partner in the firm of Vickers, da Costa & Co, to fly by aeroplane to the Naval Review. The aeroplane which they entered was the property of the second defendants, who had engaged the services of a pilot, one Mr Fine, for that day. Mr Vickers himself was unable to join the party, as he had been called on a jury, but his son, who had arranged for the hire of the plane, was present, and, I suppose, was to act as host in place of his father. The party got into the plane, which then ran some 400 or 500 yds across the aerodrome, and rose into the air. It achieved a height of somewhere between 75 ft and 100 ft, and then crashed to the ground, not more than 1,000 yds from the place whence it started, and just outside the aerodrome. The plane caught fire, and two of the party, one of whom was the plaintiff’s husband, lost their lives. She brings this action, under the Fatal Accidents Act, for the benefit of herself and her three infant daughters. That this disastrous accident was due to the fault of the pilot is, in my opinion, abundantly clear. In the first place, I hold that the doctrine res ipsa loquitur applies. While it is unnecessary to decide whether this doctrine would apply to every accident occurring to an aeroplane in the course of a prolonged flight, here we have a disaster at the very beginning, just as the machine had taken off and well before it had attained the height at which the journey would be performed. It was an accident which I think all are agreed ought not to have happened.
It was argued that I ought not to apply this doctrine to an aeroplane, a comparatively new means of locomotion, and one necessarily exposed to the many risks which must be encountered in flying through the air, but I cannot see that this is any reason for excluding it. Large numbers of aeroplanes are daily engaged in carrying mails and passengers all over the world, and, as is well known, they arrive and depart with the regularity of express trains. They have indeed become a common-place method of travel, supplementing, though not superseding, rail and sea transport. Railways were just as great an innovation when they took the place of the stage coach, yet the courts found no difficulty in applying to them by the year 1844 the same doctrine that had formerly been applied to stage coaches: Carpue v London & Brighton Ry Co.
The accident happened owing to the plane not gaining enough, or losing, flying speed, and the pilot sought to explain this by attributing it to a down current of air attracted by a ploughed field over which he flew as he left the aerodrome. I cannot accept his explanation; on the contrary, I think the plaintiff’s witnesses established a positive case of negligence in that the pilot started his run and left the ground with the tail-end of the machine too far down, at an angle which prevented the machine from gaining speed, and caused it to stall. It is unnecessary to decide the precise reason why he allowed the machine to be at this angle. It may be that his actuating gear was not enough advanced, or was not so far advanced as he thought it was, so that he did not put enough pressure on his joystick, as it is called, to counteract this state of affairs. That he did start away at an angle, which all witnesses agree would be improper, is, in my opinion, clear enough, and I was particularly impressed by the evidence of a Mr Israel on this point. He was a careful and trustworthy witness, and I am satisfied his evidence was correct. It is only fair to Mr Fine to say that, on realising the danger, he kept his head in a most praiseworthy manner, and did his utmost to minimise the result; it was indeed due to his effort that the consequences were not more disastrous than they were. But I am constrained to hold that the accident was due to his default.
I have now to determine whether this negligence gives the plaintiff a cause of action against either or both of the defendants. The first defendants are, as I have said, the owners of the airport; in fact they do not own any aeroplanes. Mr Vickers, junior, got into communication with them by telephone. Neither he nor his father knew anything of the position of these defendants, except that they were the proprietors of the aerodrome. Mr Vickers told them he wanted a plane capable of holding seven persons to go to the Spithead Review, and they said they would write to him. This they did, on 5 July. There is no indication in the letter that they acted only as agents or brokers, and there is not the least reason to suppose that this was known either to Mr Vickers or to his son. The latter requested a Mr Hazlerigg, who was in their office, and who happened to be going down to the aerodrome for a game of squash rackets, to see if he could get the price reduced, There was a considerable conflict of evidence as to whether, at the interview which he had with these defendants’ representatives at the aerodrome, he was told that they only acted as agents. But I am satisfied that it was never made clear to Mr Hazlerigg that the defendants were acting only as brokers. All he had been asked to do was to see if he could get the price reduced, and that was all he concerned himself with at the interview. I think it very likely that he was told that he had been quoted a standard price, and one that all companies were charging for the trip, but I do not think he was told that the defendants were arranging for any other company to carry out the flight, at any rate in such a way as to indicate to him that they were agents only.
On 11 July, Mr Vickers, junior, again spoke to the defendants on the telephone, and this was followed by the letter of that date. I think it is clear from that letter that Airwork Ltd, were holding themselves out as principals, and did thereby undertake liability as principals, and were the only persons with whom Mr Vickers, senior, or his firm of Vickers, da Costa & Co, contracted. Inasmuch, however, as the deceased was only a guest of Mr Vickers, and no party to the contract, in my view the question as to whether Airwork Ltd, were principals or only agents is really immaterial; but the question was much debated during the trial, and, as this case will probably go higher, it is right that I should state my finding on this point.
A further point also arises on the contract. Mr Roland Oliver argued that it was incumbent on Airwork Ltd, to provide an aeroplane of their own, and one piloted by their own servant, or that alternatively the plane and pilot actually provided must be regarded as theirs. Here again, as the action does not concern a party to the contract, I think the point is really immaterial, but in my opinion the obligation of the defendants was to supply a competent pilot and a safe aeroplane and no more, and I do not think it matters whether the plane and pilot were theirs or some other company’s. There was no suggestion that the first defendants had been selected owing to some particular trust which Mr Vickers reposed in them, or that he or his son had any particular knowledge or particular preference for them. They could perform their contract by getting an equally competent firm to perform it for them. The difficulty in the way of the plaintiff, as against Airwork Ltd, here is this. The deceased was no party to the contract. True it is that they had contracted to convey a party of seven, but their contract was not with all the members of the party, but with Mr Vickers. No duty, therefore, ex contractu arose with the deceased. The duty to him arose because he was carried in the aeroplane, and that duty must be owed by the person who in fact carried him, that is to say, by the second defendants, who were the actual carriers. Mr Roland Oliver argued that this case was brought within the doctrine of such well known cases as Holliday v National Telephone Co, Penny v Wimbledon Urban Council, and, more recently, Honeywill & Stein Ltd v Larkin Bros (London’s Commercial Photographers) Ltd, inviting me to hold that the first defendants had, so to speak, set in motion a dangerous operation, and that they were accordingly liable to all the world for any damage that might result. I do not think I can hold that arranging for a journey by aeroplane is setting in motion a thing dangerous in itself. A risk attaches to an aeroplane flight as to a journey by motor car, or even by rail, but, in my opinion, the reasoning underlying the cases I have mentioned is wholly inapplicable to the present facts. I do not need to consider the question argued by Sir Stafford Cripps as to whether the deceased was an invitee or a licensee, which, with all respect, I think does not arise, though if it did I should hesitate long before I held that a guest was not an invitee of the proprietor of an aeroplane who had agreed to carry a party of which he was a member. It was no concern of the deceased, as a guest of Mr Vickers, who supplied the aeroplane, or whose servant was the pilot. He had a right to expect that the plane would be fit and proper for the journey, and that the pilot would navigate it carefully. If the pilot was negligent, he, as the person to whom the deceased entrusted his safety, was guilty of a breach of duty, for which his employers are prima facie answerable, and, in my judgment, no one else is. The action against Airwork Ltd, therefore fails.
I have now to consider the position of the second defendants, and as I have found that the accident was caused by the negligence of their servant, they are liable unless they can escape owing to the conditions incorporated in the charter, and on which they rely. One of the conditions exempts them from liability for their own or their servants’ negligence. Here again the matter has to be considered from the point of view that the deceased was a guest. Now, it seems to me that if a person engages a means of conveyance for himself and his guests, and the party who contracts to supply the conveyance stipulates that he is to be exempt from liability, or imposes any class of condition, the guest cannot be in any better position than his host, whether the owner of the vehicle knows guests are to be carried or not. The owner may make what contract he likes, and, if it be said that the guest has a right to know of the exemption or conditions, it seems to me that it is for his host to inform him, and not for the owner of the vehicle, who probably knows nothing of him. The obligations of the owner cannot be increased by the fact that the person with whom he has made his contract chooses to bring along persons who are in no contractual relation with the owner. The question, therefore, that I have to determine, as it seems to me, is whether or not Mr Vickers was affected by the condition in question.
Now, the facts on this point are that Mr Vickers, or his firm, made a contract with the first defendants, and, even if they were only agents, the contract is contained in the letters they wrote on 5 and 11 July. That contract, whether made by them as principal or agent, is entirely silent on the matter of conditions, nor does it seem to me to contemplate the execution of any further document, or that any further document is to be incorporated in the contract. True, they refer to the charter of an aeroplane and a charter flight, but I do not think an ordinary person reading those letters would contemplate that something in the nature of a charterparty was to be tendered at a later stage, containing further conditions of the contract. It would have been a simple matter to have stated, or, indeed, to have printed on their own notepaper, that all hirings were to be subject to conditions which would appear on a ticket or other document. I see no reason for holding that Mr Vickers ought to have contemplated that the letters from the first defendants did not contain all the terms of the hiring, and, indeed, as the letters are silent on the subject of conditions, it was not open to the first defendants, without a breach of contract on their part, to add to or subtract from the open contract they had made, nor could they perform their contract by tendering a plane the pilot of which would not start on a journey except on the acceptance of terms and conditions which were no part of the original contract; but equally, if, when the plane arrived at the aerodrome, the pilot had said,”I am not going to start except upon the acceptance of certain conditions,” the hirer could, of course, have refused to accept them and claimed his money back, and any damage he could prove; but if he gave way and started, he must be considered to have agreed to be bound by the conditions.
Now, what happened was this: The first defendants fixed the hire of the aeroplane with the second defendants certainly by 13 July. No form of charter was submitted, or any further communication made, by either of the defendants before 16 July, the day of the flight. As the party were getting into the plane, when, indeed, the guests were seated, the pilot handed to Mr Vickers, junior, an envelope, saying:”Here is your ticket.” The so-called ticket was in fact a document called a “Special Charter,” addressed to Vickers, da Costa & Co, containing a description of the plane and details of the flight, price, and so on, and a variety of terms and conditions. The document contemplated signature by the “passenger,” and a return of it when signed to one of the company’s officials. Before young Mr Vickers had any opportunity of seeing the contents of the envelope, the plane started and the disaster happened. On these facts, it seems to me impossible to hold that there had been a communication of the conditions to the hirer before the journey started, and an acceptance of them, express or implied, by him. Young Mr Vickers said that he had travelled on one or two occasions by Imperial Airways, and received a ticket which he knew contained conditions; but there seems to me to be a great difference between taking a ticket for an ordinary journey by an air-liner and the hiring of a special plane, so far as knowledge of the existence of conditions is concerned, especially when it is remembered that this contract had been fixed and concluded by correspondence with the first defendants, in which no reference to conditions appeared, several days earlier.
No useful purpose would be served by reviewing the long line of authority to be found in the reports on these ticket cases, but I may refer to a passage in the judgment of Swift J, in the case of Nunan v Southern Ry Co at p 707, which was cited with approval by the Court of Appeal in the case of Thompson v London Midland & Scottish Ry Co. The learned judge said:
‘I am of opinion that the proper method of considering such a matter is to proceed upon the assumption that where a contract is made by the delivery, by one of the contracting parties to the other, of a document in a common form, stating the terms upon which the person delivering it will enter into the proposed contract, such a form constitutes the offer of the party who tenders it, and if the form is accepted without objection by the person to whom it is tendered this person is as a general rule bound by its contents and his set amounts to an acceptance of the offer to him whether he reads the document or otherwise informs himself of its contents or not, and the conditions contained in the document are binding upon him.’
Here, the documents forming the contract are silent as to any terms other than the price and the time to be occupied in flying over the Review area, and nothing was done by the sub-contractors here, who were carrying out the contract for the first defendants, who were, in my judgment, the contracting parties, or, at any rate, the principals of the second defendants, to bring it to the mind of the hirer that they would only start on the journey if further terms were agreed upon. Consequently, in my opinion, they cannot rely on this condition, and the plaintiff is accordingly entitled to judgment against the second defendants.
The damages necessarily must be heavy, and it has caused me a good deal of anxiety to come to a conclusion as to the proper amount to award. In losing a husband and father in the early prime of life, with the further expectation of life of some 30 years, in a good position which had excellent prospects of improvement, the plaintiff and her daughters have suffered a grievous injury. On full consideration, I have come to the conclusion that a fair sum to award is £10,000, and for that sum, together with the sum of £25 16s 6d claimed for funeral expenses, I give judgment against the second defendants, with costs.
Solicitors: Hyman Isaacs Lewis & Mills (for the plaintiff); Linklaters & Paines (for the first defendants); Glover Scott & Apthorpe Webb (for the second defendants).
W J Alderman Esq Barrister.
