Tutorial Assessment - Assignment Example

Tutorial Assignment Name Institutional Affiliation Date Parties Plaintiff:Carol Defendant: Crystal Cruise Company Ltd Issues ISSUE 1: Is there a contract between Carol and Crystal Cruises Company for the crash of the cruise? 1a. is the contract based on the information carried in the brochure or the tickets? 1b.does-placing information at the back of the receipt contributes to it not being read. ISSUE 2: why did the cruise’s pilot disappear? 2a.what would have happened different if the passengers were informed of his absence. 2b.is the accident’s cause related absence the pilot who in this case is experienced? ISSUE3: Has Carol received the right compensation? 3a. is Carol to blame for her injury? 3b. did Carol have all the information she needed before travelling? Legal Rules Applicable They took six months before contacting her. 1. Circulars used for advertisement purposes cannot be presumed to be offers but instead should be taken as treat invitations. They open room for the other party to create the offer except or cases where the party offering that advertisement has indicated their intention to assume legal liability as was the case with carlill versus Carbonic Smoke Ball Co case. 2. Since advertisements do not constitute to a legally binding offer, they do not leave room for acceptance. In this case, by Ben the travelling agent offering a brochure containing Crystal Cruises Ltd cruises, he cannot be said to have proposed an offer to Carol despite any promises these cruises made as displayed in the brochure. This means that at this stage, there was nothing to be accepted by Carol as no offer was made to her yet and she has the choice to leave the Ben’s suggested offer. 3. A statement can be taken as term and not mere representation if it is important. By Ben stating that the company’s conditions imprinted on the ticket could not affect her but are mere standards, it convinced her to sign in for she felt her needs were catered for which turned out not to be entirely the case. 4. A contract between Carol and the company was sealed when carol accepted the offer to cruise in their ship by signing the form and offsetting the $ 500 deposit which made up to 10% of full fare which was accepted by the company by confirmation of her booking. Carol accepted the company’s offer by paying the full amount of her transport money meaning that both parties had gained contractual capacity. 5. False representation and deceptive or misleading conduct displays the carelessness of the company and provides the consumer with recourse. In carol’s case, the company’s experienced pilot who had cruised that route severally before was absent. Instead of relaying the information to the passengers, the captain chose to get an inexperienced pilot who had never used the route and was not conversant with the dangers involved. This led to risk of the passengers lives and constituted to negligence by the captain. 6. Written conditions are binding. Therefore, Carol can claim damages for personal physical and psychological injury and loss of important property because it was as a result negligence in terms of miscommunication and lack of expertise from the company employees in this case the captain and the pilot in accordance to the company’s conditions. 7. Counter offer brings to an end the original offer. Another offer is made to Carol by the company employees to offset her by giving $20,786 for the damage she had incurred which was much less than the real estimated value. She signs it under duress as she is not given time to consult on it ant this can be argued out under illegality of a contract. 8. It takes more than a considerable amount of time for the company to get back to Carol after the accident after she had suffered such grave injuries during their cruise. Before contacting her, they took 6 months. Rules Application to the Facts/Issues Issue1: On whether there is a contract between Carol and Crystal Cruise Company. The contact is clearly spelt out in the form that carol fills and Ben sends to the company by e-mail.the information carried in the brochure is merely to entice the prospective clients and is not in any way a sign of contract. Actually, carols experience before the crash is in tandem with the information carried in the brochure. The decision to place the conditions at the back of the receipt is mischievous. In any case, the conditions should be strategically put to allow customers make informed choices. It is possible that by placing the conditions at the back, carol was denied an outright access to this vital information. Advertisements are invitation to treats and therefore lack the legal standing for contracting. They merely contain information aimed inducing prospective customers to consider them at the expense of their competitors. Therefore, brochure is the company’s advertisement as in De Lassalle v Guildford[1901]2KB 215 Summary: De Lassalle sought assurance from Guildford that the drainage system on the farm was in a good working order before he signed the lease. The writtenagreement was silent on this issue. De Lassalle was promised that the drainage system was in excellent condition. Later, it came to realization that this wasn’t the case. Ruling: The collateral contract consists of one express term, namely the promise that the drains on the farm were in excellent condition. The consideration for this promise was the entry into the main contract by De Lassalle. Issue 2: The disappearance of the experienced cruise pilot to Kings Cross in Sidney is an issue at stake. Was the company prepared to handle his disappearance? Did this ambush the company? What plans does the company has incase the experience pilot is unable to steer the cruise for one reason or another? This points at a company that is irresponsible, unprepared, and negligent. A serious company would have at least two experiences navigators on board at all times. More sadly, the company failed to inform the passengers on board as to why the experienced pilot had disappeared. This brings about information loophole. Information is power and informed passengers would have been more psychologically prepared. Carol admits that she has not recovered from both physical and psychological injury resulting from the accident. The accident cause was related to lack of the pilot who is experienced. The captain’s decision to get inexperienced pilot to steer the cruise in unfamiliar waters was ill advised. The blame is on the company. It took for granted the lives of passengers on board by hiring inexperienced navigator who lacked knowledge of safe routes. For example, in DickBentley Productions v Harold Smith Motors[1965]2 All ER65 Summary: Customer bought a car – said that the car had driven 20,000 miles since engine and gearbox had been replaced. Decision/Reasoning:Held that it was term, thus breach of the contract. If a representation is made to induce the party into the contract and it does induce, then it’s an inferred term. If the statement wasn’t made, then it’s not likely that they would have entered into the contract. Harold Smith was dealer in cars and in a position to know, or at least ascertain, the history of the cars it was selling. Rule: Knowledge and expertise of the parties – if one party is an expert, and there is an inequality of bargaining power, their words are more likely to be taken as a term. Issue 3 On whether Carol has received commensurate compensation from Crystal Company, it is clear the company has contravened its own conditions set in the contract. The decision by the company to award $20,786 to Carol lacks legal grounding. In counter offer, an offer is treated as a generous token meant for a few days. The contract’s conditions are: 2 (a) The Company shall be liable for loss or damage suffered as a result of the death or personal injury to a Passenger only if the incident which caused the damage so suffered occurs in the course of the Carriage and was due to the fault or neglect of the Company or of its servants or agents acting within the scope of their employment. (b) In any circumstances referred to sub-clause (a) of this clause the Company’s liability shall in no case exceed $75, 000 per carriage. 3 (a) The Company shall be liable for loss or damage to luggage owned by the Passenger only if the incident which caused the damage so suffered occurs in the course of the Carriage and was due to the fault or neglect of the Company or of its servants or agents acting within the scope of their employment. (b) In any circumstances referred to in sub-clause (a) of this clause the Company’s liability shall in no case exceed the following limits: (i) Where liability is in respect of the loss or damage to luggage, $1000 per passenger. Based on these conditions and the extent of injury on Carol, the company’s offer is a mockery than an appreciation. Carol is not to blame for injuries got even though she failed to read the conditions. Reading of the contract conditions would not stop the occurrence of the accident. Besides, jumping two meters to a rescue boat was the only option left for her to save her dear life. It occurred 10 mins prior to drowning of the ship. On the issue of being woken up by the siren, seasickness is common and it is not the reason for the accident nor for the injury got during rescue. Carol received information paramount to her travel. Failing to read the conditions does not affect her cruise journey. In any case, the agent, Ben, assured her that the conditions were standard and that there was no need to worry. JJ Savage & Sons Pty Ltd v Blakney (1970) 119 CLR 435 Summary: Blakney purchased a boat from JJ Savage on the basis of a statement set out in a letter that the boat’s engine would propel the boat at an estimated speed of 15 miles p/h but it only did 12 p/h. Blakney claimed that the statement constituted a promise, the consideration for which was the entry into the contract to purchase the boat. Ruling: Held that, in the circumstances, the statement was only an opinion, which, even though it was made with the calculation of Blakney entering into the contract and was a matter of considerable importance to Blakney, not collateral. Three possible things that could have been done by the parties: 1. Required that the speed of the boat be inserted into the contract – breach 2. Purchaser could have sought guarantee of the speed as a precondition – collateral 3. Relied on the vendor’s opinion – representation that existed outside the contract – misrepresentation but not a breach. When establishing whether advertisements can be terms or not, the courts outlined some factors in the case of Ellul & Ellul v Oakes 1972). The more an advert is important, the more it might act as a term and if the advert is oral then it cannot be a contract. The courts must confirm “whether there is evidence of an intention by one or both of the parties that there should be contractual liability in respect of the accuracy of the statement.” Oscar Chess Ltd v Williams [1957] 1All ER325 Summary: Williams wanted to trade his 1948 model (date of model based what on registration papers said) – dealer (Oscar Chess) agreed to trade it in and he got a new car. Dealer discovered it was a 1939 model, paid too much money for it (was worth less), sued for breach of contract claiming the statement of model was a term of the contract. Decision: English Court of Appeal held the statement wasn’t a term; William’s statement was only an innocent misrepresentation. Reasoning: COURT MUST LOOK OBJECTIVELY AT THE TOTALITY OF EVIDENCE (328) - Given that Williams relied on what the registration papers said and was the last in a series of owners and O.C. could have checked whether the car was actually a 1948 model, an objective analysis of facts indicated that Williams didn’t intend the statement to be a term of the contract. Conclusion Advertisements cannot be taken as terms of contracts but instead constitute a gentle man’s promise. It is therefore right to say that the brochures offered to Carol by the company’s agent were a mere source of information and not a signal she had to take the offer. However, there was negligence on the part of Crystal Cruises Ltd by replacing their lost experienced pilot by a new one who was not conversant with that route. This was the major cause of the accident because he did not have the required knowledge and facts about the communication style of the captain as seen from is response when the captain calls to him for “any port in a storm”. Again, the company instead of honoring their conditional clause and cater for the damages she incurred, they give a counter offer to carol and coerce her into signing the offer without any consultation. This is illegal and non binding on her part. Carol can therefore claim damages for the injuries incurred in the accident, humiliation caused when jumping off into a rescue boat and loss of her personal property including her husband’s treasured letters. She can also sue the company for forcing her to sign an offset claim under duress and in an unstable mental and physical condition. References Corones, S. G. 2013. The Australian consumer law. Pyrmont, NSW, Lwabook Co. Read More