Joseph Travers & Sons Ltd v Cooper
Court of Appeal
Citations: [1913 J 854];  1 KB 73.
The claimant contracted with the defendant to move his goods by barge. Their contract contained a clause exempting the defendant from liability ‘for any damage to goods however caused which can be covered by insurance.’ The goods were damaged on the barge due to the negligence of the defendant’s employees. The claimant sued the defendant for breach of contract. The defendant relied on the exclusion clause.
- Did the exclusion clause exempt the defendant from liability for negligent breaches of contract?
The Court of Appeal held in favour of the defendant. The words ‘howsoever caused’ were wide enough to relieve the defendant from liability for negligence.
This Case is Authority For…
When considering whether the language of an exclusion clause is wide enough to include negligence, the following formulations will normally be sufficiently wide:
- Damage ‘howsoever caused’;
- Loss ‘under any circumstances whatsoever’;
- ‘any injury however caused’;
- ‘whatever may be the nature of such accident or damage or howsoever arising.’
Phillimore LJ noted that language such as ‘any loss’ would not be enough. This is because that kind of language merely directs attention to the kind of loss, not its origin or how it was caused. To be wide enough, the language must be directed to the cause of the loss.
The court noted that in contracts of bailment, the burden of proof is on the bailee to show that the goods were lost or damaged for some reason other than negligence.
Buckley LJ dissented on the issue of whether the clause covered negligence. He thought that the defendant had taken the goods on as a common carrier, and therefore could be liable either in negligence or as an insurer. The wording of the clause, he argued, indicated to a reasonable person only that the defendant disclaimed liability as an insurer. It did not indicate that they were disclaiming the possibility of negligence liability.
The other judges agreed that the defendant was probably a common carrier. However, they disagreed that this affected the meaning of the clause. This case might be decided differently in the modern era. This is because the courts tend not to hold that a clause covers negligence, even if its wording is wide enough to, if another form of liability was possible: The Raphael  2 Lloyd’s Rep 42.