The plaintiffs claimed damages for non-delivery and short-delivery respectively. Both sought to establish their title to sue on the basis of Brandt v. Liverpool implied contracts,5 that is, the implied contract incorporating the terms of the bill of lading that may be held to arise6 between the carrier of the goods and their receiver upon presentation of the bill of lading and the giving of delivery. The holders of bill of lading No. 6 also brought alternative actions in contract, alleging that rights under the bill of lading had passed to them by virtue of the Bills of Lading Act 1855, and in tort. While he did not consider it necessary to decide these latter points, Evans, J., did make some interesting comments concerning the 1855 Act, and these are discussed below.

The question arose in respect of both bills whether a Brandt v. Liverpool contract could be held to exist in the absence of the payment and acceptance of freight, and in respect of bill No. 5 the further question was whether a Brandt v. Liverpool contract could be implied where no goods at all were delivered under the tendered bill. Counsel for the defendants argued7 that a contract could only be inferred from some unequivocal act, such as delivery of goods or acceptance of freight. However, having considered the judgments in Brandt v. Liverpool, Evans, J., in the present case concluded that, while the contract which was held to exist in Brandt v. Liver