Contract EXEMPTION CLAUSES and UNFAIR TERMS
Julia and Dave have spent the past 30 years teaching in inner city secondary schools. They have decided to take early retirement at the end of July 2011 and to invest all their retirement lump-sum payments, savings and an inheritance into buying a motor boat to cruise the Mediterranean.
Julia and Dave visit the Southampton Boat Show (SBS) during September 2010. On Saturday 29th September they place an order for a 2-berth a?SuperU X2a for A?300,000, manufactured and sold by Sunsearchers Ltd (S Ltd). Sunsearchers sell directly to the public as well as to the trade. Julia and Dave are in possession of one of Sunsearchersa catalogues which, on its penultimate page, includes the following statements:
a?We limit our liability to A?20,000 in respect of any loss resulting from the purchase of any of our range of a?SuperUa boats.a?
a?Whilst we will endeavour to deliver your SuperU to the port or marina or your choice, we exclude liability if we need to designate an alternative port or marina as the point of delivery.a?
On 2nd October, Julia and Dave receive an invoice for the SuperU 2X and a request for 50% of the contract price. On the reverse of the invoice a general reference is made to the contract but not to the specific clauses in the a?cataloguea (see above). However, a cross-reference to the two clauses in the catalogue is made in feint writing at the bottom of the contract. Julia and Dave sign the contract and return it to Sunsearchers along with the 50% payment.
On 1st April, 26 weeks after the contract was signed, Julia and Dave are advised that delivery of their SuperU will be made and that the remainder of the payment price is now due. However, Sunsearchers, who are based in Blythe, Northumberland, advise that delivery will be made to Amble-by-the-Sea, Northumberland, rather than to the river Hamble, near Southampton (a difference of 480 nautical miles). With no berth for the SuperU in Amble, and ongoing teaching commitments at home, Julia and Dave feel they have no alternative but to hire a crew in order to re-deliver the SuperU to the Hamble, at a cost of A?900.
During the Easter school holidays Julia and Dave set off in their SuperU to visit friends in Guernsey. Half way between the Hamble and Cowes (Isle of Wight), owing to a malfunction of the throttle of their SuperU, they collide into an 18-berth super boat a?the Sunharvesta. They cause significant damage to the multi-million pound vessel and Julia slips on deck, breaking her leg, following the collision of the vessels.
(a) Advise Julia and Dave in respect of:
(i) the failure by Sunsearchers Ltd to deliver the SuperU to the marina chosen by Julia and Dave;
(ii) of their liability in respect of the damage to the Sunharvest; and
(iii) whether Julia will be able to claim against Sunsearchers Ltd in respect of the personal injuries she sustained following the malfunction of their SuperU
(b) Would your answers be any different if Julia and Dave were marine traders?
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