The Titanic ticket cases: An early victory for consumer protection?

In 1914, two years after the sinking of the RMS Titanic, the Court of Appeal delivered judgment on the combined ‘Titanic ticket appeals’, cases in which the relatives of four passengers travelling in steerage who died on that fateful night brought claims of negligent navigation against the owners of the vessel. The company tried to avoid liability by way of an exemption clause printed on the back of the tickets, referred to by a ‘notice to passengers’ on the front. 

At first instance, the various juries found that either the print of the notice was too small to be seen or, where it was sufficient, the exemption was inconsistent with the obligation under the Merchant Shipping Act 1824 to carry passengers with reasonable care. The exemptions were therefore found to be invalid and the company was ordered to pay compensation.

This could be an early example of what we now call consumer protection, and we wonder whether the minds of the juries were influenced by the inequality between the company and the relatives of passengers travelling on the cheapest tickets. Of course, nowadays consumer protection has moved on substantially. Under English law, not only are exclusion clauses in all contracts increasingly coming under the microscope, as a recent run of decisions has shown, but section 65(1) of the Consumer Rights Act 2015 (CRA 2015) (practitioners will be familiar with its provisions as the Unfair Contract Terms Act 1977 is mirrored in the new legislation) clearly prevents exclusion of liability for death or personal injury as a result of negligence. 

Section 62 of the CRA 2015 also subjects all consumer contract exclusion clauses to a test of fairness. There are also international standards set out in the 2002 Protocol to the Athens Convention 1974 that regulate the ranges of compensation payable for passenger injury or death resulting from negligence.

If heard today, the Titanic ticket appeals would have surely reached the same conclusion on liability but perhaps much more quickly and without relying on the good sense of the laypeople who formed the juries that considered civil claims in those days, nor what seems to have been a similarly compassionate approach taken by the Court of Appeal.

Although details of our role are lost in the mists of time, Ince & Co still retains some documents from our involvement following the loss of the Titanic near the beginning of the last century and, more recently in the 1980s, we provided further advice on the legal position following the rediscovery of the wreck.

Sadly, despite shipping becoming safer, large passenger vessel casualties continue to make the news: the cruise vessel Costa Concordia grounded in Italy in 2012; the ferry Norman Atlantic that caught fire while on passage between Greece and Italy in 2014; and Le Boreal, a cruise ship that suffered a serious fire off Antarctica late in 2015.

With modern navigational systems and safety requirements, shipping is no doubt getting safer, but there remains the constant thread from the time of the Titanic through to today: human error. At least nowadays those affected by the perils of the sea should not have to take their claims through to the Court of Appeal to receive fair recompense.

Kevin Cooper is a partner at Ince & Co @Incelaw www.incelaw.com