ABSTRACT
Lord Denning MR: So, after these containers fell off the deck into the water, the English importers, through their insurers, claimed damages against the forwarding agents. In reply, the forwarding agent said there was no contractual promise that the goods would be carried under deck. Alternatively, if there was, they relied on the printed terms and conditions. The judge held there was no contractual promise that these containers should be carried under deck. He thought that, in order to be binding, the initial conversation ought to be contemporaneous, and that here it was too remote in point of time from the actual transport; furthermore that, viewed objectively, it should not be considered binding. The judge quoted largely from the well known case of Heilbut, Symons & Co v Buckleton in which it was held that a person is not liable in damages for an innocent misrepresentation; and that the courts should be slow to hold that there was a collateral contract. I must say that much of what was said in that case is entirely out of date. We now have the Misrepresentation Act 1967 under which damages can be obtained for innocent misrepresentation of fact. This Act does not apply here because we are concerned with an assurance as to the future. But even in respect of promises as to the future, we have a different approach nowadays to collateral contracts. When a person gives a promise, or an assurance to another, intending that he should act on it by entering into a contract, and he does act on it by entering into the contract, we hold that it is binding: see Dick Bentley Productions Ltd v Harold Smith (Motors) Ltd. That case was concerned with a representation of fact, but it applies also to promises as to the future. Following this approach, it seems to me plain that Mr Spano gave an oral promise or assurance that the goods in this new container traffic would be carried under deck. He made the promise in order to induce Mr Leonard to agree to the goods being carried in containers. On the faith of it, Mr Leonard accepted the quotations and gave orders for transport. In those circumstances the promise was binding. There was a breach of that promise and the forwarding agents are liable – unless they can rely on the printed conditions.
