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Hollingworth v Southern Ferries [1977] 2 Lloyd’s Rep 70

Contract – Carriage by Sea – Exclusion Clauses – Incorporation of Terms

Facts

Wishing to go on a holiday, the claimant asked her friend and travelling companion to make arrangements. This friend went to a travel agent where he was given the defendant’s brochure, which stated that the ferry company’s conditions of carriage were printed inside the ticket covers.  A few weeks later the claimant’s friend bought the tickets. The conditions of carriage contained a general exclusion clause. Whilst at sea, the claimant was severely injured when her seat fell over in a storm.

Issues

Whether or not the defendants were liable in negligence. Whether or not the exclusion clause contained in the conditions of carriage could be considered incorporated into the agreement.

Held

The exclusion clause had not been incorporated into the agreement. The defendants were liable in negligence. The claimant Mrs Hollingsworth had not been shown the brochure by the defendants at the time the contract was made, nor before it was made. Whilst her friend had seen the brochure and knew, as a result, the conditions of carriage would be included on the ticket covers, this was not sufficient to incorporate the conditions of carriage into the contract itself. A statement in a brochure is not the same as seeing the conditions at the time the contract is agreed. It only gives the intending passenger notice of the terms they may expect to find when they do enter the contract. To be capable of incorporation, the terms on a printed notice must be presented to the other party at, or before, the contract is entered into.


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