Nature of the Case
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Facts
P and his brother-in-law, McSporran, contracted to arrange to ship P’s car onboard a ferry operated by D. McSporran took the car to D’s office, signed papers, and paid the shipping fees. D always had consignors sign risk notes, placing the risk of loss on P. McSporran was not given such a written waiver. In the past, McSporran had dealt with D on a number of occasions and had been required to sign such a waiver on some of those occasions. On 8 October 1960, MV Lochiel (1939), D’s ferry sank, P's car en route. P and McSporran said they knew notes contained conditions but not what the conditions were. P sued D for the loss. D argued that even though it was not signed, the term letting P assume the risk of an accident had been incorporated into their contract through a course of dealing. The court found for P in that D failed to prove that the terms or the risk note were applicable. D appealed. The Second Division reversed finding the terms did apply. P appealed.
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