On 8 October 1960 the MV Lochiel, a ferry operated by David MacBrayne Ltd, struck rocks and sunk between Islay and the mainland resulting in the loss of McCutcheon's car.

In all but one of the previous cases he had been acting on behalf of his employer in sending a different kind of goods and he did not know that the Respondents always sought to insist on excluding liability for their own negligence.

"The judicial task is not to discover the actual intentions of each party: it is to decide what each was reasonably entitled to conclude from the attitude of the other" (Gloag, Contract p. 7).

"If the ordinary law of estoppel was applicable to this case, it might well be argued that the circumstances leave no room for any representation by the sender on which the carrier acted.

Unless your Lordships are to disapprove the decision of the Court of Appeal in L'Estrange v Graucob [1934] 2 KB 394,—and there has been no suggestion in this case that you should,—the law is clear, without any recourse to the doctrine of estoppel, that a signature to a contract is conclusive.

If previous dealings show that a man knew of and agreed to a term on ninety-nine occasions, there is a basis for saying that it can be imported into the hundredth contract without an express statement.

If the Respondents had remembered to issue a risk note in this case, they would have invited your Lordships to give a curt answer to any complaint by the Appellant.

He might say that the terms were unfair and unreasonable, that he had never voluntarily agreed to them, that it was impossible to read or understand them and that anyway if he had tried to negotiate any change the Respondents would not have listened to him.

It is just as legitimate, but also just as vain, for the Respondents to say that it was only a slip on their part, that it is unfair and unreasonable of the Appellant to take advantage of it and that he knew perfectly well that they never carried goods except on conditions.

That is what Parliament has done in the case of carriage of goods by rail and on the high seas.Lord Pearce held that the course of dealings was not consistent, because previously risk notes were signed.