Photolibrary Group Ltd & Ors v Burda Senator Verlag GMBH (2008)
On the evidence, it was clear that a contract for the supply of analogue photographic transparencies incorporated the terms of the delivery notes. The delivery notes provided that loss fees were payable in the event of loss and there was an established course of dealing to show that the defendants had accepted the terms, even though they had not signed the delivery notes.
The court had to determine a preliminary issue as to the terms on which the claimant companies (C) supplied photographs to the defendant German publishing companies (D) in a claim for loss fees based on terms set out in C's delivery notes. C specialised in photographs of gardens, plants, shrubs and trees. D published garden magazines and procured transparencies for onward transmission to Germany. C had supplied analogue photographic transparencies to D for consideration for publication on a number of occasions. The transparencies were accompanied by a delivery note that set out terms of business based on standard terms recommended by the British Association of Picture Libraries and Agencies. The instant action arose from the loss of a substantial parcel of transparencies belonging to C during transit between Germany and London. C's delivery notes provided that in the event of loss, a loss fee was payable. It was normal practice that D never returned a signed delivery note to C. C submitted that the terms set out in the delivery notes formed part of the contract so that delivery of the transparencies accompanied by the delivery note was an offer that was accepted by the retention of the transparencies and their transmission to Germany. D maintained that there were no contracts, as D had not signed the delivery notes and there was simply a gratuitous bailment with a duty to take reasonable care of the transparencies.
The contract between C and D incorporated the terms of the delivery notes. The delivery of transparencies accompanied by a delivery note was to be treated as an offer that was accepted by the acceptance of the transparencies and their onward transmission to Germany. There was no evidence that D had not intended to deal on the basis of the delivery notes. The loss fees had been negotiated on the basis that C were entitled to the amounts stated in their delivery notes but could be persuaded to accept less because they wanted their business with D to prosper. An alternative analysis was equally viable: the faxed requests for transparencies to be submitted were offers to submit them on the usual terms, namely the terms of the delivery notes, and were accepted by the submission of transparencies accompanied by the notes. Likewise the case could be put on the basis of an established course of dealing on the terms of the delivery notes, Circle Freight International Ltd v Medeast Gulf Exports Ltd (1988) 2 Lloyd's Rep 427 CA (Civ Div) considered. The fact that the delivery notes had not been signed did not mean that the terms of the delivery notes had not been accepted; if the terms were not acceptable D were to be asked to return the transparencies, and that had never been done. Furthermore, the loss fees set out in the delivery notes were not unusual or particularly onerous. The loss fees were plainly stated on the face of the delivery notes, were at a level that was normal in the business and were known to D, Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd (1989) QB 433 CA (Civ Div) distinguished. Consequently, the delivery of transparencies could not be considered as bare bailments.
Preliminary issue determined in favour of claimant