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In Svo, Sixteenth Edition, price 21s., cloth, SNELL'S PRINCIPLES OF EQUITY. Sixteenth Edition. By Archibald Brown, of the Middle Temple, Barrister-at-Law. Ninth Edition, in Svo, price lbs., cloth, A MANUAL OF THE PRACTICE OF THE SUPREME COURT ok Ji.dicatubk ix tub KING'S BENCH axd CHANCERY Divisions. Ninth Edition. By C. Thwaites, Solicitor. QJonwll Ham ^djonl ffiibratg CORNELL UNIVERSITY JUL IS 1912 LAW LIBRARY. IN EPITOME OF RAILWAY LAW. The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://archive.org/details/cu31924022305464 AN EPITOME EAILWAY LAW. BY ERNEST EDWIN GEORGE WILLIAMS. OF THE INNEE TEMPLE AND SOUTH EASTERN CIEOUIT, BAEBISTEB-AT-LAW. LONDON : STEVENS AND HAINES, BELL TAED, TEMPLE BAE. 1912. // ti/ LONDON : PEINTED BY C. F. EOWOEIH, 88, FETTEB LANE. B.C. CORNELL US !VEP.Sm ( v ) JUL IS 1912 LAW LIBBABY. INTRODUCTION. The object of the author in writing this book was to present a handbook of Railway Law — a small volume, not in competition with the large standard works on the subject, but supplementary to them ; a book small enough for the pocket when going into Court, but yet, by economy of language, full enough to explain, or indicate the explanation of, the multifarious points of law affecting railway companies and their relations with the public. The larger part of the book deals with the legal intricacies which have grown around the carriage of goods ; but it is hoped that Part II., which is concerned with the carriage of passengers, is sufficiently full ; and a short Third Part, epitomizing other branches of the law of State control of railway companies, has been added. The sections in Acts of Parliament relating to goods traffic which are chiefly referred to in practice, and of VI INTRODUCTION. the Schedule to the Kates and Charges Order Confirmation Acts, have been added as an Appendix. The book regards railways as "going concerns," and practically no attempt has been made to set out the law surrounding railway construction, which is a subject by itself, and would require more space for adequate treatment than is available. And so with mines and minerals, workmen's compensation, licensing and other matters, where railway law, properly so called, merges into departments of legal knowledge which are expounded in special and appropriate text books. This epitome has been prepared primarily for the lawyer's use ; it is hoped, however, that it may prove serviceable to railway officers and other laymen who are brought into contact with the subjects discussed. E. E. W. 7, King's Bench Walk. March, 1912. ( vii ) CONTENTS. Part I.— The Carriage of Goods. CHAPTEE PAQE I. — The Law of Common Carriers 1 II. —Railway Companies Common Carriers 5 III. — Railway Companies as Statutory Carriers 23 IV. — The Railway and Canal Commission 56 V. — Special Contracts (Owner's Risk) 63 VI. — Terminals, Sidings, Rebates, &c. 75 VII. — Railway Companies as Warehousemen - 92 VIII. — Lien and Stoppage in Transitu- 97 IX. — The Measure of Damages for Loss, &c. of Goods 108 Part II. —The Carriage of Passengers. X. — The Railway Company's Obligations to Passengees 117 XL— The Passenger's Contract— Fares and Con- ditions 137 XII. — Passenger's Luggage 151 XIII.— Thf, Measure of Damages for Injury, &c. to Passengers 165 XIV. — Offences by Passengers - 175 Vlll CONTENTS. Part III.— Railways and the Public. PAGE XV. — State Control op Bali/ways. The Board of Trade - 183 XVI. — State Control. Miscellaneous Provisions 200 APPENDIX 207 ( ix ) TABLE OF CASES. A. PAOE Adams v. Lancashire and Yorkshire Ey. Co. (1869) 127 Agius v. Great Western By. Co. (1899) - 112 Aldridge v. Great Western Ey. Co. (1864) 66, 67, 68, 69 Alexandra Docks and Ey. Co. v. Tafi Vale Ey. Co. (1907) - 61 Allday v. Great Western Ey. Co. (1864) 44 Andalusian, The (1878) - 48 Anderson r. London and North Western Ey. Co. (1870) 16 Arbroath Corporation v. Caledonian Ey. Co. (1S98) 33 Armsworth v. South Eastern Ey. Co. (1847) 166, 169 Ashenden v. London, Brighton and South Coast Ey. Co. - (1880) - 64 Ashton v. Lancashire and Yorkshire Ey. Co. (1874) 138 Atherton v. London and North Western Ey. Co. (1905) - 120 Att.-Gen. and Birkenhead Corporation v. Mersey Ey. Co. (1907) - 205 Att.-Gen. v. Birmingham and Derby Junction Ey. Co. (1840) - 145 Att.-Gen. v. Great Western Ey. Co. (1S76) 184 Att.-Gen. v. Hurley (1838) 16 Austin v. Great Western Ey. Co. (1867) - 132, 133, 138 Ayrshire and Wigtonshire Ey. Co. v. Glasgow and South Western Ey. Co. (1888) - - 40 B. Baldwin v. London, Chatham and Dover Ey. Co. (1882) 115 Bamfield v. Goole and Sheffield Transport Co. (1910) - 29 Bannatyne v. Great Southern and Western Ey. Co. (1906) - 39 a 5 X TABLE OP CASES. PAGE Barratt v. Great Western Ry. Co. (1904) "° Barret v. Great Northern By. Co. (1857) 150 Barrow, Ex parte (1877) 106 Batchelor v. Fortescue (1883) 133 Batson v. Donovan (1820) I 2 Baxendale v. Eastern Counties By. Co. (1858) 3 Baxendale v. Great Eastern By. Co. (1869) 22, 69, 72 Baxendale v. Great Western By. Co. (1858) 39, 40 Baxendale v. Hart (1851) 17, 18, 21 Baxendale v. North Devon Ry. Co. (1857) 40 Bayley v. Manchester, Sheffield and Linos. By. Oo, (1873) - 131 Beal v. South Devon Ry. Co. (1859) 64 Becher v. Great Eastern By. Co. (1870) 161 Beck v. Evans (1812) 11 Beeston Brewery Co. v. Midland Ry. Co. (No. 1) (1895) 82 Behrens v. Great Northern Ry. Co. (1862) 21 Bendell v. Eastern Counties Ry. Oo. (1857) 31 Bemina, The (1888) 128, 132 Bernstein v. Baxendale (1859) 16, 17 Berries v. Hutchinson (1865) 114 Berringer v. Great Eastern By. Co. (1879) - 124, 134 Bethell v. Clark (1887) 105, 106 Bilhee v. London, Brighton and South Coast Ry. Co. (1865)- 186 Bird v. Great Northern Ry. Co. (1858) 122 Birmingham Corporation v. Midland Ry. Oo. (1896) 84 Birmingham Corporation v. Midland Ry. Co. (1909) 75 Blake v. Great Western Ry. Co. (1882) 134 Blake v. Midland By. Oo. (1852) 169 Blanrires v. Lancashire and Yorkshire Ry. Co. (1873) 136 Blankensee v. London and North Western Ry. Co. (1881) 18 Blower v. Great Western Ry. Co. (1872) 10 Bolton v. Lancashire and Yorkshire By. Oo. (1866) - 106 Boys v. Pink (1838) 1 6 Bradburn v. Great Western Ry. Co. (1874) 168 Bradbury v. Sutton (1872) - 19 Bradley v. Waterhouse (1828) 20 Branly v. South Eastern Ry. Co. (1862) 146 Bradshaw v. Lancashire and Yorkshire By. Co. (1875) - 134, 171 Briddon v. Great Northern Ry. Co. (1858) 8 Bridges v. North London By. Oo. (1874) 118 122 TABLE OF CASES. XI PAGE Brindi;. Dale (1837) 2 British Columbian Saw Mill Co, v. Nettleship (1868) 113 Britten v. Great Northern By. Co. (1898) 160 Brant v. Midland Ey. Co. (1864) 17 Buhner v. Bulmer (1884) 125 Bunch v. Great Western Ey. Co. (1886) 158 Burke v. South Eastern Ey. Co. (1879) 141 Bushell, In re, ex parte Great Western Ey. Co. (1882) 100 Butcher v. London and South Western Ey. Co. (1855) 156 Butler v. Manchester, Sheffield and Lines. Ey. Co. (1888) 177, 179 Butler v. Woolcott (1805) 100 Butt v. Great Western Ey. Co. (1850) 20 Butterfield v, Forrester (1809) 126 Butterworth v. Brownlow (1865) 11 C. Cahill v. London and North Western Ey. Co. (1862) 161 Cailifl v. Danvers (1792) 95 Caledonian Ey. Co. v. Guild (1873) 102 Caledonian Ey. Co. v. Eoper (1908) 176 Castle Steam Trawlers, Ltd. v. Great Western Ey. Co. (1909) 35 Caswell v. Cheshire Lines Committee (1907) 152 Caterham By. Co. v. London, Brighton and South Coast Ey. Co. (1856) 149 Central Wales Ey. Co. v. London and North Western Ey. Co. (1883) 34 Chance and Hunt v. London and North Western Ey. Co. (1909) - 58 Chapman v. Great Western Ey. Co. (1880) 93, 94, 95 Charrington, Sells, Dale & Co. v. London and North Western Ey. Co. (1905) 90, 91 City of Dublin Steam Packet Co. v. London and North Western Ey. Co. (1881) - 40, 146, 150 Clarke v. West Ham Corporation (1909) 140 Clayards v. Dethiok (1848) 127 Cobb v. Great Western Ey. Co. (1891) 123 3 85 xii TABLE OP CASES. PAGE Cookie v. South Eastern By. Co. (1872) ' ! ; Coggs v. Bernard (1704) Cohen v. South Eastern Ey. Co. (1877) 134 Collard v. South Eastern Ey. Co. (1861) HI Collett v. London and North "Western Ey. Co. (1851) 132 Cooke v. Midland Great Western of Ireland Ey. Co. (1909) 133 Cooper, Ex parte (1879) 98 Cooper v. London, Brighton and South Coast Ey. Co. (1879) 143 Cornman v. Eastern Counties Ey. Co. (1859) 119 Coventry v. Gladstone (1868) 105 Cowan v. North British Ey. Co. (1898) 76 Cowan v. North British Ey. Co. (No. 3) (1901) 84 Crompton & Co. v. Lancashire and Yorkshire Ey. Co (1902) Crouch v. Great Western Ey. Co. (1858) 93, 99 Crouch v. London and North Western Ey. Co. (1849) 7 Cutler v. North London Ey. Co. (1887) 155 D. Dalton v. South Eastern Ey. Co. (1858) 170 Daniel v. Metropolitan Ey. Co. (1871) 130 Darlaston Local Board v. London and North Western Ey. Co. (1894) 32 Davey v. London and South Western Ey. Co. (1883) 128 Davey i\ Mason (1841) - 16 Davies v. Garrett (1830) 19 Davis v. Taff Vale Ey. Co. (1895) 59 Denaby Main Colliery Co. v. Manchester, Sheffield and Lincolnshire By. Co. (1885) 27 Denton v. Great Northern Ey. Co. (1856) - 144, 172 De Eothschild v. Eoyal Mail Steam Packet Co. (1852) 20 Dickinson v. North Eastern Ey. Co. (1864) 126 Dickson v. Great Northern Ey. Co. (1886) - 44 Didcot, Newbury and Southampton Ey. Co. v. London and South Western and Great Western Ey. Cos. (1897) 33 Diphwys Carson Slate Co. v. Eestiniog Ey. Co. (1874) 39, 82 Donald v. North Eastern Ey. Co. (1888) 40 Doolan v. Midland Ey. Co. (1877) 45, 47, 68 163 TABLE OP CASES. Xlll PAGE Dover Corporation v. South Eastern Ey. Co. (1873) 149 Drmy v. North Eastern Ey. Co. (1901) 119 Dublin and Meath Ey. Co. v. Midland Great Western Ey. Co. (1883) 84 Dublin Whisky Distillery Co. r. Midland Great Western Ey. of Ireland Co. (1881) - 81 Duckham Brothers v. Great Western Ey. Co. (1899) 64 Dunkirk Colliery Co. v. Manchester, Sheffield and Lincoln- shire Ey. Co. (1876) - 82 Dyson v. London and North Western Ey. Co. (1881) 177 E. East Indian Ey. Co. v. Kalidas Mukerjee (1901) - 1 21, 123, 130 Edwards v. Brewer (1837) 105 Elliotts. Hall (1885) 131 Ellis v. London and South Western Ey. Co. (1857) - 202 Falk, Ex parte (1880) 106 Fawcett v. York and Midland Ey. Co. (1851) 185 Fawcett Association and London, Brighton and South Coast By. Co., In re (1899) - 148 Flower v. London and North Western Ey. Co. (1894) 139 Flowers v. South Eastern Ey. Co. (1867) 17 Ford v. London and South Western Ey. Co. (1862) 117 Forder v. Great Western Ey. Co. (1905) 71 Foreman v. Great Northern Ey. Co. (1875) 38 Foreman v. Great Western Ey. Co. (1878) - 69 Forwood v. Great Northern Ey. Co. (1906) 57 Foster v. Great Western Ey. Co. (1904) - 72 Foulkes v. Metropolitan District Ey. Co. (1880) - 118, 135, 137 Fowler v. Great Western Ey. Co. (1853) 92 France v. Gaudit (1871) - 114 Franklin v. South Eastern Ey. Co. (1858) - 170 Furness Ey. Co. v. Vickers, Son and Maxim (1901) - 83 xiv TABLE OF CASES. G. PAGE Gallin v. London and North Western Ey. Co. (1875) 142 Garnett v. Willan (1833) 19 Garton v. Bristol and Exeter Ey. Co. (1859) 6 Garton v. Bristol and Exeter Ey. Co. (1861) 2, 68 Garton v. Great Western Ey. Co. (1859) 88 Gee v. Lanes, and Yorkshire Ey. Co. (1860) 114 Gee v. Metropolitan Ey. Co. (1873) - 123, 127 George and Eiohard, The (1836) 126 Gill v. Manchester and Sheffield Ey. Co. (1873) 10, 71 Gillstrap, Capp & Co. u. Great Northern Ey. Co. (1901) 85 Girardot v. Great Eastern Ey. Co. (1900) 80 Girardot v. Midland Ey. Co. (No. 2) (1885) 82 Glamorgan County Court v. Great Western Ey. Co. (1894) 33 Goddard v. London and South Western Ey. Co. (1874) 42 Gordon v. Great Western Ey. Co. (1881) 71 Great Northern Ey. Co. ( Ireland) v. Postmaster-General (1909) 23 Great Northern Ey. Co. v. Harrison (1854) 132 Great Northern Ey. Co. v. Hawcroft (1852) 143 Great Northern Ey. Co. v. Palmer (1895) 142 Great Northern Ey. Co. u. Shepherd (1852) 151 Great Northern Ey. Co. v. Swaffield (1874) 96 Great Northern Ey. Co. v. Winder (1892) 176 Great Southern and Western Ey. Co. v. Hourigan (1910) 44 Great Western and Midland Ey. Cos. v. Bristol Port Ey. Co. (1885) - 82 Great Western Ry. Co., Ex parte, In re Bushell 100 Great Western Ey. Co. v. Bunch (1888) 155, 156, 158 Great Western Ey. Co. v. Caswell and Bowden (1904) 54 Great Western By. Co. v. Bail-way Commissioners (1881) 34 Great Western Ey. Co. v. Eedmayne (1866) 111 Great Western Ey. Co. >\ Eimell (1857) - 20 Great Western By. Co. c. Severn and Wye Ey. Co. (1886) - 32 Great Western Ey. Co. v. Sutton (1869) 13, 26, 28 Great Western Ey. Co. v. Phillips (1908) - 90 Great Western Ey. Co. v. Postmaster- General (1906) 23 Greenwood v. Cheshire Lines Committee (1909) SI Gregory r. West Midland Ey. Co (1864) 68 TABLE OF CASES. XV H. PAGE Hadley v. Baxendale (1854) 109 Hall v. North Eastern Ey. Co. (1875) 135, 138 Halls v. London and North Western Ey. Co. (1863) 13, 112 Hamlin v. Great Northern Ey. Co. (1856) 172, 173 Hammond v. Bussey (1887) 111 Harris v. Cookermouth and Workington Ey. Co. (1858) 38 Harris v. Great Western Ey. Co. (1876) -92, 95, 137, 140, 142 Harris t: Midland Ey. Co. (1876) 70 Hearne v. London and South Western Ey Co. (1855) 15 Henderson v. Stevenson (1875) 137, 140 Heugh i: London and North Western Ey. Co. (1870) 93 Hiokleton Main Colliery Co. v. Hull and Barnsley Ey. Co. (1909) 36, 41 Hinton v. Dibbin (1842) 19 Hirschel v. Great Eastern Ey. Co. (1906) 19 Hoare v. Great Western Ey. Co. (1877) 71 Hobbs v. London and South Western Ey. Co. (1875) - 139, 173, 174 Hodgrnan v. West Midland Ey. Co. (1865) - 45 Hodkinson v. London and North Western Ey. Co. (1884) 157 Holmes v. North Eastern Ey. Co. (1871) 133 Holwell Iron Co. v. Midland Ey. Co. (1909) 37, 38, 42 Home v. Midland Ey. Co. (1873) 113 Houghton v. Matthews (1803) 97 Hozier v. Caledonian Ey. Co. (1855) 149 Hudson v. Baxendale (1857) 10 Hudston v. Midland Ey. Co. (1869) 159 Hull and Barnsley Ey. Co. v. Yorkshire and Derbyshire Coal and Iron Co. (1887) - 27 Hull v. North Eastern Ey. Co. (1875) 142 Huntingdon v. Lanes, and Torks. Ey. Co. (1901) 79 Hurst v. Great Western Ey. Co. (1865) - 138 Hyde v. Trent and Mersey Navigation Co. (1793) 7 I. Inverness Chamber of Commerce v. Highland Ey. Co. (1901) 149 XVI TABLE OP CASES. J. PAGE Jackson v. Nichol (1839) - 107 Jenkins v. Great Central Ey. Co. (1911) 47 Jennings v. Great Northern By. Co. (1865) - 178, 182 Johnson v. Midland Ey. Co. (1849) - 6, 25 Jones )<. Eastern Counties Ey. Co. (1858) 149 K. Kearney v. London, Brighton and South Coast Ey. Co. (1871) - 122 Keely v. Metropolitan Ey. Co. (1895) 124 Kendall v. London and South Western Ey. Co. (1872) 11 Kendall v. Marshall, Stevens & Co. (1887) 105 Kent v. Midland Ey. Co. (1874) 103 Kirby v. Great Western Ry. Co. (1868) 69 L. Lambert ,j. Great Eastern Ey. Co. (1909) 131 Lancashire Brick and Terra Cotta Co. v. Jjancashire and . Yorkshire Ey. Co. (1902)- - 35, 81 Lancashire Patent Fuel Co. u. London and North Western Ey. Co. (1903) - 41 Langdon o. Howells (1879) ISO Latch v. Eumner Ey. Co. (1858) 129 Leask v. Scott (1877) 107 Le Blanche v. London and North Western Ey. Co. (1876) 145, 172 Le Couteur v. London and South Western Ey. Co. (1865) - 14, 153, 158 Leggott v. Great Northern Ey. Co. (1876) 171 Levi, Jones & Co. «. Cheshire Lines Committee (1901) 17 Lewis v. Great Western Ey. Co. (1860) - 66 69 Lewis v. Great Western Ey. Co. (1877) - 64 65 Lewis v. London, Chatham and Dover Ey. Co. (1874) - 118 Lister v. Lancashire and Yorkshire Ey. Co. (1903) - 10 TABLE OP CASES. XV11 PAGE Liverpool Corn Traders' Association v. London and North Western Ey. Co. (1891) 41 Liverpool Corn Traders' Association v. Great Western By. Co. (1892) 58 Lloyd v. Waterford and Limerick By. Co. (1862) 64, 67 London and North Western Ey. Co.. v. Bartlett (1861) 94 London and North Western Ey. Co. v. Crooke (1904) - • 96 London and North Western Ey. Co. v. Evershed (1878) 27 London and North Western Ey. Co. v. G-lyn (1859) 19 London and North Western Ey. Co. v. Hinchcliffe (1903) 143 London and North Western Ey. Co. v. South Eastern Ey. Co. (1911) '- 43 London and South Western Ey. Co. v. James (1873) 136 London County Council v. Great Eastern Ey. Co. (1906) 203 London Beform Union and Great Eastern Ey. Co., In re (1899) 147, 148 Lord v. Great Eastern Ey. Co. (1909) 100 Lord v. Midland Ey. Co. (1867) 64 Lyon v. Mells (1804) 11 Lyons v. Caledonian Ey. Co. (1909) 140, 142 Lyons v. Hoffnung (1880) 105 M. Macauley v. Fumess By. Co. (1872) 141 McCance v. London and North Western Ey. Co. (1864) - 18, 116 McDowall v. Great Western Ey. Co. (1903) 130 McMahon v. Field (1881) 174 McManus v. Lancashire and Yorkshire By. Co. (1859) 6, 67 McNally v. Lancashire and Yorkshire By. Co. (1880) 68 Macrow v. Great Western Ey. Co. (1871) 151, 159, 160 McQueen v. Great Western Ey. Co. (1875) - 20 Mahony v. Waterford, Limerick and Western Ey. Co. (1900) - 70 Malpas v. London and South Western Ey. Co. (1866) 73 Manchester, &c. Coal Traders v. Lancashire and Yorkshire Ey. Co. (1897) 89 Manchester, Sheffield and Lincolnshire Ey. Co. v. Brown (1883) 45, 64, 65 Manchester, Sheffield and Lincolnshire By. Co. v. North Central Wagon Co. (1888) - 102 XVlil TABLE OF CASES. Manchester, Sheffield and Lincolnshire Ey. Co. v. Pidcock (1896) - - 76 Manchester Ship Canal Co. v. London and North Western Ey. Co. (1911) 59 Manning v. London and North Western Ey. Co. (1907) 118 Mansion House Association v. Great Western Ey. Co. (1895) ol Mansion House Association v. London and South Western Ey. Co. (1895) 41, 43 Marriage v. Eastern Counties Ey. Co. (1857) 201 Marriott e. London and South Western Ey. Co. (1857) 31 Marriott v. Yeoward (1909) 141 Marshall v. York, Newcastle and Berwick Ey. Co. (1851) 162 Mayhew v. Nelson (1833) 17 Metropolitan Ey. Co. v. Jackson (1877) 122, 123 Meux v. Great Eastern Ey. Co. (1895) 161, 162 Midland Ey. Co. v. Black (1899) 89 Midland Ey. Co. v. Day kin (1855) 202 Midland Ey. Co. v. Myers, Eose & Co. (1909) 90 Millen v. Brasch (1882) 15, 115 Millom and Askam Hematite Iron Co. v. Furness Ey. Co. (1903) 55 Mills, Ex parte (1885) 106 Mitchell v. Lancashire and Yorkshire Ey. Co. (1875) 93, 95 Moore v. Great Northern Ey. Co. (1882) 70 Morrison v. Belfast and County Down Ey. Co. (1904) 149 Morritt v. North Eastern Ey. Co. (1876) 19 Morse i>. Slew (1673) 7 Motteram v. Eastern Counties Ey. Co. (1859) 178 Mulliner i\ Florence (1878) 99 Munster <\ South Eastern Ey. Co. (1858) 152, 153 Myers r. London and South Western Ey. Co. (1869) 13 Mylton v. Midland Ey. Co. (1859) 162 N. Nevin v. Great Southern and Western Ey. Co, (1891) 67, 72 New Union Mills Co. v. v. Great Western Ey. Co. (1896) 51 Newry Navigation Co. v. Great Northern Ey. Co. (1889) 32 TABLE OF CASES. XIX PAGE Nicholson v. Lancashire and Yorkshire By. Co. (1865) - 120 Nitshill and Lesmahagow Coal Co. v. Caledonian Ey. Co. (1874) 39 North v. London and South Western By. Co. (1863) 102 North Staffordshire Colliery Owners' Association v. North Staffordshire By. Co. (1908) . 54 North Staffordshire By. Co. v. Salt Union (1898) 83 Nugent v. Smith (1876) - 8, 9 0. Oakley v. Portsmouth, &c. Steam Packet Co. 9 O'Hanlon v. Great Western By. Co. (1865) 109 Oliver v. North Eastern By. Co. (1874) 185 Osborne v. London and North Western By. Co. (1888) 120 Owen v. Burnett (1834) 17 P. Palmer v. London and South Western By. Co. (No. 2) (1892) - - - 39 Palmer v. London, Brighton and South Coast By. Co. (1871) 39 Pardington v. South Wales By. Co. (1856) - - 66 Parker v. South Eastern By. Co. (1877) 140 Parkinson v. Garstang and Knott End By. Co. (1910) 185 Patscheider v. Great Western Ey. Co. (1878) 157 Peek v. North Staffordshire By. Co. (1863) 63, 64, 70 Pelsall Coal and Iron Co. v. London and North Western Ey. Co. (1889) 50 Phelps v. London and North Western By. Co. (1865) 159, 160 Phillips v. Clark (1857) 73 Phillips v. London and South Western Ey. Co. (1879) - 166, 167, 168 Phipps v. London and North Western By. Co. (1902) 38, 39 Pickford & Co. v. Caledonian By. Co. (1866) 40 Pickford v. Grand Junction Ey. Co. (1841) 13 Pickfords v. London and North Western By. Co. (1905) 49 Pickfords v. London and North Western By. Co. (1908) - 40, 88 XX TABLE OF CASES. PAGE Pidcock v. Manchester, Sheffield and Lincolnshire Ry. Co. (1895) 80, 83 Pontifex v. Midland By. Co. (1877) 107 Portway v. Colne Valley and Great Eastern By. Cos. (1899) 77 Postmaster-General v. Highland By. Co. (1874) 24 Powell Duffryn Steam Coal Co. v. Tafi Vale By. Co. (1874) 28 Pratt v. South Eastern By. Co. (1897) 163 Prenty v. Midland Great Western By. Co. (1866) 98 Pulling v. Great Eastern By. Co. (1882) 134, 171 Pym v. Great Northern By. Co. (1862) 125, 170 E. B. i. Lundie (1861)- 177 B. v. Bailway Commissioners and Distington Iron Co. (1889) 34 Bait v. Mitchell (1815) 98 Bead v. Great Eastern By. Co. (1868) 126 Beadhead v. Midland By. Co. (1869) - 117, 119 Bichards v. London, Brighton and South Coast By. Co. (1849) 2, 156 Bichardson v. Great Eastern By. Co. (1876) 119 Bichardson v. North Eastern By. Co. (1872) 11 Bichardson, Spence & Co. v. Bowntree (1894) 141 Bicketts v. East and West India Docks and Birmingham Junction By. Co. (1852) 202 Biggall v. Great Central By. Co. (1909) 68 Bishton Local Board v. Lanes, and Torks. By. Co. (1893) 39 Bishworth i>. North Eastern By. Co. (1906) 36 Boberts ,-. Great Western By. Co. (1858) 202 Bobinson v. Great Western Ry. Co. (1865) - 72 Eobinson u. South Western By. Co. (1865) - - 19, 46 Bobson ... North Eastern By. Co. (1876) 118 Booth v. North Eastern By. Co. (1867) 68, 69, 92 Bose v. North Eastern By. Co. (1876) 118 Bosevear Clay Co., Ex parte (1879) _ 105 Bowley v. London and North Western By Co. (1873) 170 Bushforth r. Hadfield (1805) 98 99 TABLE OF CASES. XXI S. PAGE Salt Union v. North Staffs. By. Co. (1898) - 85 Saunders v. South Eastern By. Co. (1880) 176 Scaife v. Earrant (1875) - 3 Schofield v. Mayor, &c. of Bolton (1910) 133 Schulze v. Great Eastern By. Co. (1887) 110 Shaw v. Great Western By. Co. (1894) 45, 73 Shepherd v. Bristol and Exeter By. Co. (1868) 94 Simonds v. Great Northern By. Co. (1900) 85 Simons v. Great "Western By. Co. (1856) 66, 67, 68 Singer Manufacturing Co. u. London and South Western By. Co. (1894) 33, 98, 164 Skinner v. London, Brighton and South Coast By. Co. (1850) - 131, 138 Skinningrove Iron Co. v. North Eastern By. Co. (1887) 42 Sleat v. Eagg (1822) 12, 19 Smith v. Great Eastern By. Co. (1866) 121 Smith v. South Eastern By. Co. (1895) 128 Smitton v. Orient Steam Navigation Co. (1907) 159 Somes v. British Empire Shipping Co. (1860) 99 South Eastern By. Co. v. Eailway Commissioners (1881) - 32, 33 Spillers and Bakers v. Great Western By. Co. (1910) 87 Spillers and Bakers v. Great Western By. Co. (1911) 87 Spillers and Bakers v. Taff Vale By. Co. (1903) 41 SteUa, The (1900) - 47 Stephens v. London and South Western By. Co. (1886) 20 Stevens v. Great Western By. Co. (1885) - 70 Stoessiger v. South Eastern By. Co. (1854) - 16 Stone v. Midland By. Co. (1904) 66 Stuart v. Crawley (1818) - - 11 Sutcliffe v. Great Western By. Co. (1910) - 67 Sykes v. North Eastern By. Co. (1875) • 170 T. Taff Vale By. Co. v. Gordon Canning (1909) 201 Talley v. Great Western By. Co. (1870) 158 Taylor v. Great Northern By. Co. (1866) 13 XXli TABLE OF CASES. PAGE Taylor v. Manchester, Sheffield and Lines. Ey. Co. (1895) 124, 134, 171 Taylor v. Metropolitan Ey. Co. (1906) 28 Thames Ironworks Co. v. Patent Derrick Co. (1860) 99 Tharsis Sulphur and Copper Co. v. London and North Western Ey. Co. (1881) 31 Thatcher v. Great Western Ey. Co. (1893) 133 Thomas v. North Stafis. Ey. Co. (1876) 33 Thomas v. Ehymney Ey. Co. (1871) 135 Thompson v. London and North Western Ey. Co. (1875) 41 " Tigress, The " (1863) 105 Toal v. North British Ey. Co. (1908) 132 Tooney v. London, Brighton and South Coast Ey. Co. (1857) 119 Tread-win v. Great Eastern Ey. Co. (186S) 16 Van Toll v. South Eastern Ey. Co. (1862) 95, 163 Vickers v. Midland Ey. Co. (1901) 79 W. Waite v. North Eastern Ey. Co. (1869) 128 Wakelin v. London and South Western Ey. Co. (1886) - 122, 129 Walker v. Great NorthenfEy. Co. (1891) 134 Walker v. Jackson (1842) 3, 12 Walker v. York and North Midland Ey. Co. (1853) 22 Wallace v. Woodgate (1824) 99 Wallis v. London and South Western Ey. Co. (1869) 102 Watkins v. Eymill (1883) - 140 Watkinson v. Wrexham, Mold and Connah's Quay Ey. Co. (No. 1) (1876) - 6, 82 Watkinson v. Wrexham, Mold and Connah's Quay Ey. Co. (1880) 33 Watson v. Caledonian Ey. Co. (1910) 33 Webb, In re (1818) - - 14 ( 94 Welfare v. London, Brighton and South Coast Ey. Co. (1869) 130 TABLE OF CASES. XX111 PAGE Whaite v. Lancashire and Yorkshire Ey. Co. (1874) 17 Whalley v. Wray (1800) 3, 11 White v. Great Western Ey. Co. (1857) 72 Whitehead v. Anderson (1842) 107 Wilkinson v. Lancashire and Yorkshire Ey. Co. (1907) 70, 154, 161 Williams v. Midland Ey. Co. (1908) 65 Wilson v. Lancashire and Yorkshire Ey. Co. (1861) 109, 110 Wiltshire Iron Co. v. Great Western Ey. Co. (1870) 100 Wise v. Great Western Ey. Co. (1856) 45, 65 Withers v. North Kent Ey. Co. (1858) 120 Woodard v. Eastern Counties Ey. Co. (1861) 175 Woodger v. Great Western Ey. Co. (1867) 109, 115 Woodward v. London and North Western Ey. Co. (1878) - 15, 16 Wright v. Midland Ey. Co. (1873) 130 Wright v. Snell (1822) 101 Wyatt v. Great Western Ey. Co. (1865) 127 Wyborn v. Great Northern Ey. Co. (1858) 120 Wyld v. Pickford (1841) 3, 13, 16 York v. Greenaugh (1703) 98 Z. Zunz v. South Eastern Ey. Co. (1869) 46, 74, 154, 162 ( xxiv ) INDEX TO STATUTES. PAGE Board of Trade Arbitrations Act, 1874, ss. 2, 6 - 193 Carriers Act, 1830 4, 18 et seq. Carriers Act Amendment Act, 1865 - 17 Cheap Trains Act, 1883, ss. 3, 5 - 147 s. 6 - 29, 147 Conveyance of Mails Act, 1838 - 23 County Courts Act, 1888, s. 116 - 124 Explosives Act, 1875, s. 35 - 29 Fatal Accidents Act, 1846, s. 1 124 ss. 2, 3 125 s. 5 - 126 Fatal Accidents Act, 1864 125 Fatal Accidents (Damages) Act, 190S 170 Lord Campbell's Act. See Fatal Accidents Act. Maritime Conventions Act, 1911, s. 2 - 136 Merchant Shipping Act, 1894, ss. 502—4 - 48, 135, 152 Eailway Act, 1844, ss. 17, 18 198 Eailway and Canal Traffic Act, 1854, ss. 1, 2, 3 - 29, 35, 56, 80, 87, 95, 139, 150, 151, 207 s. 7 43, 47, 63, 154, 158, 161, 163, 208 Eailway and Canal Traffic Act, 1888, ss. 2, 3, 4 s. 5 s. 6 s. 7 s. 8 s. 9 s. 10 s. 11 s. 12 - 50 - 57 58 57 56 OS 59 30, 59 37, . 59 INDEX TO STATUTES. XXV Railway and Canal Traffic Act, 1888, PAGE s. 13 37, 60 a. 14 30, 60 s. 16 58 s. 17 61 ss. 18, 19 57 a. 20 58 s. 24 51, 52 s. 25 30, 34,61, 149, 210 s. 26 34, 62 s. 27 35, 38, 212 s. 28 36, 46 s. 29 55, 214 B . 30 36 s. 31 58, 214 s. 32 190, 191, 195 s. 33 49, 215 s. 34 50, 217 s. 38 60, 206 s. 42 206 ss. 50, 51 58 s. 55 77 Railway and Canal Traffic Act, 1894, ss. 1, 3 50, 54 s. 2 57 s. 4 84 Railway Charges Order Confirmation Acts, Scned., s. 1 52, 218 ss. 2—4 53, 75, 77, 86, 218 s. 5 - 53, 77, 78, 89, 220 s. 6 53, 90, 221 s. 7 - 79, 221 s. 9 87, 221 s. 11 53, 222 s. 12 83, 222 s. 22 53, 223 s. 23 88, 224 s. 24 53, 225 s. 26 77, 225 s. 27 - 52, 225 w. XXVI INDEX TO STATUTES. PAGE Railway Charges Order Confirmation Acts, Part IV. 90 Railway Companies (Accounts and Returns) Act, 1911, ss. 1, 2 194 ss. 3 — 5 195 Railway Companies Arbitration Act, 1859, s. 26 192 Railway Companies Powers Act, 1864 197 Railway Employment (Prevention of Accidents) Act, 1900, s. 1 188 ss. 2—8, 10 189 s. 11 190 s. 13 184, 188 s. 15 - . 189 s. 17 190 Railway Fires Act, 1905, ss. 1 , 3 203 s. 2 204 Railway Regulation Act, 1840, ss. 7 — 9 177 Railway Regulation Act, 1842, s. 4 183 ss. 5, 6 184 s. 10 201 s. 11 193 s. 13 - 185 s. 14 199 s. 15 199 Railway Regulation Act, ] 893, 8. 1 192 Railway Regulation Act (Returns), 1873, s. 4 190 s. 5 188 s. 6 184 Railways Clauses Act, 1863, ss. 5—8 186 ss. 13—19 - 198 s. 31 - 47 Railways Clauses Consolidation Act, 1845, s- 47 - 127, 185 s. 61 185 s. 63 - 199 s. 68 b. 75 201 202 INDEX TO STATUTES. XXVll Railways Clauses Consolidation Act, 1845, paqe s. 76 - 34, 80, SI s. 86 24 s. 87 25 s. 89 5 s. 90 - 25, 145, 207 s. 92 - 28 s. 97 101 s. 103 180 s. 105 28 s. 108 177 ss. 110, 111, 145 178 s. 114 202 ss. 120, 122, 124 86 s. 129 192 ss. 162, 163 204 Railways Construction Facilities Act, 1864 - 196 Railways (Electrical Power) Act, 1903, ss. 1, 2 197 s. 3 198 Railways (Private Sidings) Act, 1904, s. 2 80 Regulation of Railways Act, 1842, ss. 5, 6 184 Regulation of Railways Act, 1844, s. 11 24 Regulation of Railways Act, 1868, ss. 6—10, 12 196 s. 14 46 s. 16 - 28, 46, 54, 145, 148, 154, 209 s. 19 202 s. 20 181, 199 s. 22 136 s. 23 133 s. 24 - 204 s. 25 171 s. 26 168 s. 30 192 s. 34 - 204 s. 38 197 Regulation of Railways Act, 1871, b. 5 184 ss. 6, 7 187 s. 8 188 XXV111 INDEX TO STATUTES. Regulation of Railways Act, 1871, PAGB s. 9 195 a. 11 187 s. 12 - 47, 163 s. 14 133 Eegulation of Railways Act, 1873, s. 8 - 60 s. 14 47, 48 ss. 16, 17 205 B . 18 . 24 Eegulation of Railways Act, 1889, s. 1 190, 191 8. 4 192 8. 5 175 s. 6 148 s. 7 - 177 Returns (Continuous Brakes) Act, 1878 191 Sale of Goods Act, 1893, ss. 44, 45 103 s. 46 104 s. 47 105 SECTIONS PEINTBD IN THE APPENDIX. Railway and Canal Traffic Act, 1854, s. 2 (Reasonable Facilities and Undue Preference Clause) 207 s. 7 (the Negligence Clause) 208 Railway and Canal Traffic Act, 1888, s. 25 (Through Traffic) - - 210 s. 27 (Preference) 213 s. 29 (Group Rates) 214 8. 31 (Complaints to Board of Trade) 214 ss. 33 and 34 (Publicity of Charges) - 215 Railways Clauses Consolidation Act, 1845, s. 90 (the Equality Clause) - - 207 Rates and Charges Order Confirmation Acts, Sched. 218 Regulation of Railways Act, 1868, s. 16 (Steam Vessels) 209 AN EPITOME OF RAILWAY LAW. PART I. THE CARRIAGE OF GOODS. — ♦ — CHAPTEE I. THE LAW OF COMMON CARKIERS. 1 . Railway Companies Common Carriers. — Though railway companies are formed and do business under the authority of private Acts of Parliament, and are regulated in regard to their rates and charges and other matters by public Acts of Parliament relating specifi- cally to railways, they are also common carriers, and subject to the common and statute law which governs the business of a common carrier. It will be con- venient, therefore, before regarding the statute law which affects their business, to set out their duties and privileges a-s common carriers, and, as a preliminary, to look at the law of common carriers. 2. Definition. — A common carrier is one who exer- cises the business of carrying goods for hire from one place to another, and in order to bring himself within the definition, he must do this as a public employment : he must undertake, that is to say, to carry goods for w. B 2 THE CARRIAGE OP GOODS. persons generally, and must hold himself ready to transport goods for hire as a business, not as a casual occupation (a). He need not, however, profess to carry goods of all kinds, but may restrict himself to certain classes of traffic, without losing his character of a common carrier; but it is essential that all persons who may seek his services shall be treated alike. 3. Obligations. — In defining a common carrier we have seen one of the obligations which the law imposes upon him — viz., that he shall carry for everybody who wishes to hire his services (assuming they are goods which he is in the habit of carrying, that he is not pre- vented by having his carriage already full, or by other physical disability, and that no extraordinary risk is forced upon him (&)). The common law imposes upon him another obligation: he must answer for the safety of what he carries as an insurer; he warrants the safe delivery of the goods in the same condition in which they were handed to him (c). Thus, the highest possible obligation is imposed upon him; and it is 'not enough for him to plead that he exercised all reasonable dili- gence and care; his hiring fee is a policy of insurance in favour of the consignor, as well as a contract for conveyance. The hire charged by a common carrier must be reasonable. It need not, however, be uniform. That is to say, at common law, one customer may be charged (a) Brind\. Bale (1837), 2 Moo. & Rob. 80 ; 56 R. R. 843. (b) Garton v. Bristol and Exeter By. Co. (1861), 1 B. and S. 112, 162. (c) Richards v. London, Brighton and South Coast Ry. Co. (1849), 7 C. B. 839; 18 L. J. C. P. 251. THE LAW OF COMMON CARRIERS. o more than another for the same service, provided the higher charge is not unreasonable (d) ; but the reader will of course bear in mind that this common law privi- lege has been taken away from railway companies by statute. 4. Common Law Exemptions. — The common law, however, recognizes certain exceptions to this most dras- tic obligation of insurance. A common carrier is free to enter into a special contract with the consignor, whereby his obligations are reduced (e) . And, apart from special contract, the common law recognizes as giving exemp- tion — the act of God and the King's enemies (/). A carrier is further exempt from liability for damage resulting from wear and tear and chafing of the goods in transit, from natural deterioration in quantity or quality during transit, and from inherent infirmities and intrinsic qualities of the goods. Further, any fraud upon the part of the customer will, as in all insurance policies, absolve the insurer (g) . And so, too, will negligence upon the customer's part(^). 5 . Carrier's Rights. — A common carrier is entitled to payment of the hire before carrying the goods (i) . And he has a lien on the goods carried against both consignor and consignee . 6. Statutory Exemption. — The common carrier's duty at common law to act as insurer of all the goods (d) Baxendale v. Eastern Counties By. Co. (1858), 4 C. B. N. S. 63. (e) Scaife v. Farrant (1875), L. R. 10 Ex. 358. (/) c °99 s T - Bernard (1701), 2 Ld. Raym. 909. (g) Walker v. Jackson (1842), 10 M. & W. 161. (4) Whalley v. Wray (1800), 3 Esp. 74. (t) Wyld v. Fickjord (1841), S M. & W. 443 ; 58 R. R. 775. B2 4 THE CARRIAGE OF GOODS. committed to his charge is limited by the Carriers Act, 1830. That Act provides that no common carrier by land shall be liable for the loss of, or injury to, certain articles when the value of the parcel is over 10L, unless the Value and nature of the article were declared at the time of delivery to the carrier, and an increased charge, if demanded, has been paid. The above is a very brief outline of the law of common carriers. Further exposition will be most conveniently made when considering railway companies as common carriers. ( 5 ) CHAPTER II. RAILWAY COMPANIES COMMON CARRIERS. 7. Railway Companies Carriers. — The original conception of a railway company was that of a toll- taker, owning strips of land covered with railway lines, over which carriers and private persons might run their carriages and engines; and this obligation to permit others to use their lines on payment of toll, still reimains upon the statute book. From an early date, however, railway 'companies obtained powers in their private Acts of Parliament to carry goods themselves, and the Railways Clauses Consolidation Act, 1845, made this power general, and gave railway companies " the benefit of every such protection and privilege" as is accorded by law to common carriers (a) . And when they act, as all railway companies in the course of their ordinary business do act, as common carriers, they are subject to the duties and liabilities of common carriers as well . 8. Carriers for all. — The first obligation upon a common carrier is to carry for everybody who may (a) Sect. 89. These privileges have been restricted by subsequent legislation. 6 THE CARRIAGE OF GOODS. demand, and pay for, his services. A railway com- pany, therefore, cannot refuse any traffic which is offered to it, provided it is of the class of traffic which it holds itself out as ready to receive in the course of its business; that it is on the company's line of route (&); that the risk is not extraordinary; that the goods are brought at a reasonable time (c) ; and that the company lias room in its trains (d) . But where a railway com- pany's private Act of Parliament enacts that the company "shall provide all such locomotive power,, engines, carriages, wagons and other rolling stock . . . as shall be proper and sufficient for the working and user of the undertaking, and the reception . . con- veyance and delivery ... of traffic," it undertakes a much wider obligation, and one which will be inter- preted against it rather strictly, in the event of insuffi- ciency (e). A railway company which was in the habit of carrying packed parcels, refused to carry a package because the consignor would not disclose its contents; and it was held it had no power to refuse, firstly,, because a common carrier is not entitled under all cir- cumstances to demand the contents of a package- presented for carriage; and, secondly, because, as it carried packed parcels for some customers, it must do so- (4) Statutory obligations as to through rates will be dealt with later. See par. 31, " Reasonable Facilities." (c) Garton t. Bristol and Exeter Ry. Co. (1859), 28 L. J. C. P. 306. (d) McManus v. Lancashire and Yorkshire Ry. Co. (1859), 28 L. J. Ex. 353 ; Johnson v. Midland Ry. Co. (1849), 4 Ex. 367 ; 80 R. R. 611. (e) Watkinson v. Wrexham, Mold and Connah's Quay Ry. Co. (No U (1876i, 3 Ry. & Can. Cas. 5. EAILWAY COMPANIES COMMON CARRIERS. 7 for all (/) . The same case also decided that the com- mon carrier's obligation to carry did not oeas'e merely because the company carried to a place outside England . But, without the presence of some such reasonable excuse for refusal to carry as is enumerated above, the common carrier's obligation to accept goods of the kind he carries for conveyance on his accustomed route is absolute . 9. Carriers Insurers. — The second great obligation upon a common carrier is to insure the safety of the goods committed to his charge; he warrants safely and securely to carry and deliver. In other words, lack of negligence on his part affords no defence to his lia- bility to repair any loss or damage which may occur to the goods. Even if the loss occurs through robbery (h), or fire (i), the carrier is still liable. 10. Act of God. — But, as has been said, there are qualifications of the common carrier's liability to insure. The act of God is one. " Act of God " means some direct, sudden and irresistible occurrence not caused by human agency, such as an earthquake or a tempest, or an extraordinarily high tide or extraordinarily severe frost. When loss or damage arises from such a cause, (/) Crouch v. London and Forth Western By. Co. (1849), 14 C. B. 255 ; 18 L. J. C. P. 251. (A) Morse v. Slew (1673), Vent. 190. (i) Hyde v. Trust and Mersey Navigation Co. (1793), 5 T. E. 389 ; 2 E. K. 620. 8 THE CARRIAGE OF GOODS. and the consequences of it could not be avoided by any reasonable care upon the part of the carrier, then he is exempt from liability . The leading case in which the term "act of God" was defined (fc) illustrates the nature of an "act of God," and what is incumbent upon the carrier in face of it. A mare, which was being carried on board ship in more than ordinarily rough weather, received injuries, which resulted in part from fright, and the consequent struggling of the animal; all reasonable precautions. and care were used to avoid mischief. It was held that the exceptionally bad weather was an act of God, that the animal's struggling was a natural incident or result of it, and that as those in charge had done what they reasonably could, the carriers were not liable. Extraordinary efforts are not necessary. Where a railway company, whose line was blocked by a great fall of snow, declined to go to extraordinary efforts, such as detaching cattle trucks from a long goods train, and putting on an additional engine, and cattle were injured by the exposure and delay, it was held that the fall of snow was an act of God and exempted the company (I). But not all injury resulting from boisterous weather is an act of God. A towed boat containing goods was, in rough weather, dashed by the tide upon the rudder of a vessel, and, becoming in consequence leaky, the goods were damaged. The boat would not have been thus injured if the steamboat towing it had not stopped at (k) Nugent v. Smith (1876), 1 C. P. D. 423 ; 45 L. J. C. P. 697. (I) Bridden v. Great Northern My. Co. (1858), 28 L. J. Ex. 51. RAILWAY COMPANIES COMMON CARRIERS. 9 a particular moment. There was no negligence in- volved in this stopping, but the intervention of human agency took the accident out of the category of an act of God (m). Nor will the act of God excuse if the carrier goes out of his way to encounter it, such as travelling by unusual roads, or crossing a plain subject to inunda- tions, when he could keep the high ground and be safe; nor if the damage caused by the act of God could have been avoided by the provision of proper covering for the goods (n). 11. The King's Enemies. — Lose or damage arising from the King's enemies also exempts the common carrier from his liability to insure. This, happily, is not, in so far as British railways are concerned, an exemption of practical importance; for the expression is confined to those who are at open war with the State, and does not extend to robbers, or even to rioters or insurgents . 12. Natural Deterioration and Inherent Defect. — The act of God and the King's enemies are the only two excepted perils; but, as has already been stated, there are other causes of loss or damage to goods in transit the happening of which exempts the common carrier from his liability to insure . Wear and tear and chafing of goods and deterioration arising from in- (•«() Oakley v. Portsmouth, #c. Steam Packet Co. (1856), 11 Ex. 618 ; 105 R. R. 684. (») Nugent v. Smith (1876), 1 C. P. D. 423 ; 45 L. J. C. P. 697. B 5 10 THE CARRIAGE OF GOODS. hereut infirmities or the intrinsic qualities of the goods relieve the carrier, when the harm is attributable to- them. The natural decay and deterioration of fruit while in transit is an instance; the evaporation of liquids, the leakage from the cask of liquors — ordinary or due to a defect in the cask (o) ; spontaneous combus- tion of goods, effervescence or acidity, or improper packing by the consignor, are other instances (p). The exemption extends also to damage arising from the. inherent vice or extraordinary restiveness of an animal; but the carrier must exercise reasonable care, and not,, for example, disregard warnings as to the danger of letting a cow loose hurriedly (q). The doctrine of exemption through inherent defect has been extended to include the following case. Com- mon carriers undertook to convey an engine, to which were fitted shafts to enable it to be drawn by horses. One of the shafts was rotten, though the defect could not have been discovered by ordinary examination. The shaft broke, the horses took fright, and the engine was overturned and damaged. It was held that the carriers were exempt (?■) . Damage to perishable soft goods, like fruit, from sinking under their own weight and from the shaking inevitable during conveyance, is not within the carrier's liability, assuming, of course (as in all these cases), that there is no negligence on the carrier's (o) Hudson v. Baxendale (1857), 2 H. & N. 575. r ( »■!«% °^> Baihnent > a PP^ved in Blmcer v. Great Western My. Co. (1872), L. R. 7 C. P. 655. ^(g) Gill v. Manchester and Sheffield My. Co. (1873), L. R. 8 Q. B. (»•) Lister v. Lancashire and Yorkshire My. Co., [1903] 1 K. B. 878. RAILWAY COMPANIES COMMON CARRIERS. 11 part(s). If ventilation, for example, is necessary to keep the goods in proper condition, its absence would be negligence, and so would the provision of an unfit carriage (t). So also is the carrier liable if he takes no measures to stop a leakage in a cask when it comes to his knowledge («). 13. Consignor's Negligence. — Negligence on the part of the consignor also, exempts a common carrier from liability (a?). Defective packing of the parcel would be an instance of such negligence, if the defect were not visible to the carrier; but if it were, and he accepted the goods with knowledge of the defect, his protection would be gone (y) . So when a dog, con- signed for carriage, with a cord round its neck, obviously insecure, escaped and was lost, the carrier was not allowed to shield himself behind the consignor's negligence (z). The exemption extends to an act or omission of a third party, if brought about by the consignor (a), but not otherwise, for then the third party's negligence would be one of the ordinary perils against which the common carrier insures. 14. Consignor's Fraud. — Fraud on the part of the consignor relieves the carrier from liability, just as (s) Kendall v. London and Smith Western By. Co. (1872), L. R. 7 Ex 373; 41 L. J. Ex. 184. (*) Lyon v. Mells (1804), 5 East, 428 ; 7 R. R. 726. («) Beck v. Evans (1812), 16 East, 244 ; 14 R. R. 340. (z) Whalley v. Wray (1800), 3 Ex. 74. {y) Richardson v. North Eastern My. Co. (1872), L. R. 7 C. P. 75. (z) Stuart t. Crawley (1818), 2 Stark. 323 ; 20 R. R. G01. (a) Butterworth v. Brounlow (1865), 19 C. B. N. S. 409. 12 THE CARRIAGE OP GOODS. fraud would invalidate any other contract of insurance. If, for example, the consignor misrepresents, or fraudu- lently conceals, the value of the goods, the carrier will not be liable if they should be lost. But mere omission to call attention to the special value of the articles carried, as where a phaeton, under the seat of which there was a box containing jewellery, was shipped at the rate payable for a carriage, the carriers asking no questions, this is not fraud (6). The carriers should! have asked questions, or have put out a notice that they would not be responsible for articles of value. Then they would have been exempt (c); though even a notice would not exempt if the carriers used some other mode of conveyance than that by which the parcel was booked, as when a valuable parcel, not declared, was booked to go by a mail coach, and was sent by a light coach instead, and was lost; here the notice that the carriers would not be responsible for valuable parcels unless declared and insured, was held to be no protec- tion (d). 15. Carrier's Delay.— The common carrier's obliga- tion of insurance against the loss of, or damage to, the goods in his charge does not extend to delay in the conveyance of them; where the delay is occasioned by causes beyond his control, he is not liable. In the absence of a contract to deliver at a particular time, his duty is only to deliver at a reasonable time in all the circumstances of the case (the usual time being only (*) Walker v. Jackson (1842), 10 M. & W. 161 ; 62 R. R. 564. (c) Button v. Donovan (1820), 4 B. & A. 21 ; 22 R. R. 599. (<*) Sleat v. Fagg (1822), 5 B. & A. 342 ; 24 R. R. 407. RAILWAY COMPANIES COMMON CARRIERS. 13 prima facie evidence of what is a reasonable time), and he is justified in incurring- delay where delay is necessary for safety (e). The extent of his obligation is that he should use all reasonable diligence to avoid delay. A common carrier is not bound to carry by his shortest route, even though the charge be a mileage rate (/), if that is not his usual route; but. where a railway company forwarded goods by the ordinary route, past the terminal station, and then kept them some day6 in order to send them back to the terminal station by a road carrier, because that was its usual custom, whereas it could have sent them back by its railway several days sooner, the delay was held to be unreason- able (gr). 16. Payment before Carriage. — A common carrier is entitled to payment of the hire before carrying the goods (h), the consignor, in case of extortionate over- charge, having his remedy in ability to sue, in an action for money had and received by the carrier, for the surplus over a reasonable figure (i) . The hire, how- ever, is not payable until the carrier has taken delivery; it is not therefore necessary, in an action against him for refusal to carry, to prove actual tender of the money, readiness to pay being sufficient (It). (e) Taylor v. Great Northern Ry. Co. (1866), 35 L. J. C. 210 ; L. R. 1 C. P. 385. (/) Myers v. London and South Western Ry. Co. (1869), 5 C. P. 1. (g) Hales v. London and North Western Ry. Co. (1863), 4 B. & S. 66 ; •32 L. J. Q. B. 292. (h) Wyld v. Pickford (1841), 8 M. & W. 443 ; 58 R. R. 775. (i) Great Western Ry. Co. v. Sutton (1869), L. R. 4 H. L. 226. (*) Pickford v. Grand Junction Ry. Co. (1841), 8 M. & W. 372; 58 E. R. 742. 14 THE CARRIAGE OF GOODS. 17. Common Carrier and Warehouseman.— When a common carrier warehouses goods his liability as a common carrier has ceased; and he is not liable as an insurer, but only for loss occasioned by his neglect (Z) . 18. The Carriers Act. — The common law liability of common carriers as insurers is limited by the Carriers Act, 1830. This statute enacts (sect. 1) that a mail contractor, stage coach proprietor, or other common carrier by land shall not be liable for loss of, or injury to, certain specified classes of articles contained in any parcel or package which shall have been delivered, either to be carried for hire, or to accompany the person of any passenger in any mail, stage coach, or other public conveyance, when the value of the articles contained in the parcel or package shall exceed the sum of 101., unless, at the time of delivery at the office or receiving house of the carrier or to his servant, for the purpose of being carried, or of accompanying the person of the passenger, the value and nature of the articles shall have been declared by the person delivering the package, and an increased charge, or an engagement to pay the same, be accepted by the person receiving the package. Though the Act applies only to carriers by land, a contract to carry partly by land and partly by water is divisible, and in such a case the carrier is entitled to the protection of the Act if the loss occurs on land (jn). (1) In re Webb (1818), 8 TauDt. 443; 20 R. R. 520. SeeChap. VII., " Railway Companies as Warehousemen." (m) Le Couteur v. London and South Western JRy. Co. (1865), L. R. 1 Q. B. 54; 35 L. J. Q. B. 40. RAILWAY COMPANIES COMMON CARRIERS. 15 For the nature of the liability on a sea journey, see par. 38, "Sea Traffic." The section protects the carrier against loss of the article; and this means literal loss of the article, and does not include loss to the owner through (for example) unreasonable delay in delivering it (w). Nor does loss include temporary loss; but when found the article must be delivered within a reasonable time afterwards,, or the carrier will be liable for delay (o). 19. The Specified Articles. — The specified classes of articles are gold and silver coin, and any gold or silver, whether in a manufactured or unmanufactured state, precious stones, jewellery, watches and clocks and other time pieces; trinkets, bills, British and Irish bank notes, orders, notes and securities for payment of money; British or foreign stamps; maps, writings, title deeds, paintings, engravings and pictures; gold and silver plate and plated articles; glass and china;: silks, manufactured or unmanufactured, and whether wrought up or not with other articles; furs; and lace. Where there is a doubt whether an article sued for is within the Act or not, the jury decides (p). Trinkets include articles which, though they may be- of use, are yet so ornamental that their main purpose is ornament, as shirt pins, brooches, portemonnaies, scent bottles and ivory fans, but not a plain German silver (n) Searne v. London and South Western By. Co. (1855), 10 Ex. 793; 24 L. J. Ex. 180. (a) Millen v. Broach (1882), 10 Q. B. D. 142. (p) Woodward v. London and North Western Ry. Co. (1878), 3 Ex.. D. 121. 16 THE CARRIAGE OF GOODS. match box or an eyeglass with a gold chain attached (q). A bill must be a completed bill, to come within the Act. A document in the form of a bill of exchange, accepted, but without a drawer, was held to be neither a bill or note or security for money; while as a writing it was only worth the paper it was written on, and so was outside the Act (r) . As to maps, they include the cases which contain them, the two articles not being separable (s). Engravings include prints, coloured or un- coloured (t). A picture includes the frame (w); but where a lace corporal was inclosed, for purposes of exhibition, in a gilt frame and glass, the frame was held to be outside the Act, and only the lace and glass within it (x). By " paintings " is meant works of art only, and painted designs (as of rugs), however valuable and skilfully done, are not comprised within the Act (y). "Glass" includes looking-glasses and glass of any kind or size, notwithstanding that the preamble to the section states as the purpose of the Act the relief of (?) Bernstein v. Baxendale (1859), 6 C. B. N. S. 251 ; 28 L. J. C. P. 265 ; Att.-Gen. v. Hurley (1838), 7 L. J. Ch. 31 ; Darey v. Mason (1841), 1 C. &M. 45. (»•) Stoessiger v. South Eastern Ry. Co. (1854), 23 L. J. Q. B. 293; 3 E. & B. 549. (s) Wyld v. Piekford (1841), 8 M. & W. 443 ; 58 R. R. 775. if) Boys v. Pinl- (1838), 8 C. & P. 361. (u) Anderson v. London and Xorth Western Ry. Co. (1870), L. R. 5 Ex. 90; 39 L.J. Ex. 55. (a:) Treadwin v. Great Eastern Ry. Co. (1868), L. R. 3 C. P. 308 ; 37 L. J. C. P. 83. (y) Woodward v. London and Xorth Western Ry. Co. (1878), 3 Ex. D. 121. RAILWAY COMPANIES COMMON CARRIERS. 17 carriers of articles of great value in small compass (z) . Any article, if enumerated in the section, is included, whatever its size. Opera glasses and photographic apparatus are not within the Act (a) . Under "silks" are comprised such articles as silk tights and hose (b), silk watchguards (c), elastic silk webbing (d), and silk dresses (e). But hat bodies, made partly of wool and partly of fur, are not "furs" (/). " Lace " does (not include machine-made lace (g). If a package contains articles within the Act and articles which are not, and the package (not having been declared in accordance with the Act) is lost, the carrier is liable for the articles not within the Act, and is not liable for those which are within the Act (h) . The term '"parcel or package" is of wide applica- tion. It covers pictures laid upon one another in the owner's open wagon, without any covering or tie, such wagon being delivered to a railway company and placed on one of the company's trucks for carriage (i) . (z) Owen v. Burnett (1834), 2 C. & M. 353 ; 39 R. R. 794. •(«) Levi, Jones $ Co. v. Cheshire Lines Committee (1901), 17 T. L. R. 443. (b) Baxendale v. Hart (1851), 6 Ex. 769 ; 86 R. R. 465. (e) Bernstein v. Baxendale (1859), 6 C. B. N. 8. 251 ; 28 L. J. C. P. 265. (d) Brunt v. Midland By. Co. (1864), 2 H. & C. 889. (e) Flowers v. South Eastern My. Co. (1867), 16 L. T. 829. (/) Mayhew v. Nelson (1833), 6 C. & P. 58. (g) Carriers Act Amendment Act, 1865. (h) Bernstein v. Baxendale (1859), 6 C. B. N. S. 251 ; 28 L. J. C. P. 265. (i) Whaitev. Lancashire and Yorkshire By. Co. (1874), 43 L.J. Ex. 47. 18 THE CARRIAGE OF GOODS. 20. Value. — Value means actual value to the person suing — the invoice price to the consignee. For example, a merchant buys jewellery at a discount, and consigns it to an intending purchaser; the discount is not to be deducted in arriving at the value, even though the discount price would bring the value below the mini- mum 10Z. (k). It also means the intrinsic value at the time of the loss. And though (sect. 9) the sender must, if the goods are lost, prove their actual value, the carrier not being bound by the declaration, yet the consignor is bound by his declaration, and cannot after- wards say the goods are worth more (I) . It is not necessary that any one article in the package should be of the value of 101. Conversely, if a number of articles of one class, of a kind which is within the Act, are consigned together, but in separate parcels, each one separately, or each parcel of them, being worth less than 101., while the aggregate of the parcels would be worth more than 101., they are not within the Act. 21. The Declaration. — This must be made, whether the goods be delivered to the carrier at his office, at the consignor's house, or on the road, or anywhere else (m). There must be a specific declaration of the nature of the goods, but the declaration of value need not be express and formal. But entering the word "silks" in the delivery book is sufficiently specific as to their nature, and adding verbally, " There are about 100L worth of (/.') Blanlcensee v. London and North Western My. Co. (1381), 45 L. T. 761. (I) MeCanee v. London and North Western Jit/. Co. (1864), 34 L. J. Ex. 39; 3H.4C. 343. (m) Baxendalc v. Mart (1852), 6 Ex. 769 ; 21 L. J. Ex. 123. RAILWAY COMPANIES COMMON CARRIERS. 19 goods in the parcel," is sufficient declaration of value (w). If the statement of value is too indefinite, the carrier should ask for more particularity. The declaration of value must be made by the sender; the carrier is not bound by any knowledge of the value which he may learn from another source (o) . And so a declaration under the Customs Act, 1876, is not a declaration under the Carriers Act (p) . The carrier has an insurable interest in the goods, even though they have not been declared (q) . 22. Extent of Protection. — If the conditions of the Act are not complied with by the sender of the goods which are within the Act, the carrier is not liable for the loss of or injury to them, even though caused by his own gross negligence (r), including negligent carrying of the goods beyond their destination (s). But the pro- tection does not extend to misfeasance. If the carrier wilfully does any act inconsistent with his contract to carry, which occasions loss or injury, such as damaging the goods, :or disposing of them to a stranger, or even omitting to forward them (t), or forwarding them otherwise than as agreed (ii), or deviating from the usual route (x), he cannot plead the Carriers Act(?/). But (») Bradbury v. Sutton (1872), 19 "W. R. 800 ; 21 W. R. 128. (o) Robinson v. South Western By. Co. (1865), 34 L. J. C. P. 234. (p) Hirsehel v. Great Eastern By. Co. (1906), 22 T. L. R. 661. (q) London and North Western By. Co. v. Glyn (1859), 28 L. J. Q. B. 188. (>■) Hinton v. Dibbin (1842), 2 Q. B. 646; 57 R. R. 754. (s) Morritt v. North Eastern By. Co. (1876), 1 Q. B. D. 302. (t) Garnett v. Willan (1833), 5 B. & A. 53 ; 24 R. R. 407. (u) Sleat y. Fagg (1822), 5 B. & A. 342 ; 24 R. R. 276. (*) Danes v. Garrett (1830), 6 Bing. 716. (y) Morritt v. North Eastern By. Co. (1876), 1 Q. B. D. 302. 20 THE CARRIAGE OF GOODS. a loss by robbery or theft is an answer to liability, unless the theft has been committed by one of the carrier's own servants (z). Liability in this last case is specifically enacted by sect. 8 of the Act, which section also makes the carrier's servant himself liable for his own neglect or misconduct, so that a railway company's servant could be sued in case where the company itself could not. 'A sub-contractor, the proprietor of a receiv- ing house, and their servants employed by a railway company, are the railway company's servants (a), and sect. 5 enacts that any office, warehouse, or receiving house used by the carrier for the receiving of parcels, shall be deemed to be the carrier's office, warehouse, or receiving house. Where theft by the carrier's ser- vants can be proved, it is not necessary to prove negli- gence on 'the part of the carrier as well (b). 23. Increased Charge and Notice. — The power of increased charge referred to in the first section of the Act is regulated by sect. 2, which enacts that when a parcel or package containing one of the specified articles (z) Be Rothschild v. Royal Mail Steam Packet Co. (1852), 7 Ex. 734 ; 86 R. R. 813. The consignor need not produce such conclusive evidence against a particular servant of the carrier, as would convict him in a criminal court ; it is sufficient to make out a priind facie case that some servant of the carrier must have stolen the parcel. McQueen v. Great Western Ry. Co. (1875), L. R. 10 Q. B. 569 ; 44 L. J. Q. B. 130. But if valuable goods are stolen by the carrier's servants, and they have not been declared, the carrier is not liable. Butt v. Great Western Ry. Co. (1850), 20 L. J. C. P. 241 ; 11 C. B. 140 ; Bradley v. Waterhouse (1828), M. & M. 154 ; 33 R. R. 671. (a) Stephens v. London and South Western Ry. Co. (1886), 18 Q. B. D. 121. (A) Great Western Ry. Co. v. Rimell (1857), 27 L. J. C. P. 201 ; 18 C. B. 585. RAILWAY COMPANIES COMMON CARRIERS. 21 shall have been delivered, and its value and contents declared, the 'carrier may demand the increased charge, but the same must be notified by a notice in legible characters affixed in some public and conspicuous part of the office, warehouse, or other receiving house of the carrier. The notice must state what the increased charges are; and all persons sending parcels under the declaration are bound b}' the notice without further proof of the same having come to their knowledge. The consignor is not obliged to tender the increased' charge until he is asked for it, and omission by tho carrier to ask for it does not relieve him of his lia- bility (c). When the increased charge is paid, and the goods are lost or injured, the consignor is entitled to recover the amount of the increased charge, as well as damages for loss and injury (d). The public notice by the carrier is essential; but, even without the notice, if the consignor fails to declare, in accordance with the Act, the carrier is freed from his liability as insurer (e). Conversely, if the consignor declare the value, and the carrier has not affixed the notice in his office, his com- mon law liability as a common carrier remains, and he cannot make the increased charge. The public notice in the office is sufficient, notwithstanding that the parcel was collected in the road by a cart, where the notice, of course, could not be seen; the requirements of the Act have nevertheless been satisfied (/) . The public notice must be confined to articles within the Act. Sect. 4 (c) Behrens v. Great Northern By. Co. (1862), 31 L. J. Ex. 299 ; 7 H. & N. 950. (d) Sect. 7. (e) Baxendale v. Bart (1852), 21 L. J. Ex. 123 ; 6 Ex. 769. (/) Behrens v. Great Northern By. Co. (1861), 30 L. J. Ex. 156. 22 THE CARRIAGE OF GOODS. provides that no such notice can limit the common law liability of carriers in respect of any goods not specified in the Act. The giving of a receipt for a parcel, if required, acknowledging the parcel to have been insured, is a condition which the carrier must fulfil, in order to entitle him to make the increased charge or to obtain any advantage under the Act; and he would be liable to refund the increased charge if he refused the receipt. This receipt is not liable to stamp duty (g). 24. Special Contracts. — Sect. 6 of the Carriers Act provides that the Act shall not affect the power of carriers to enter into special contracts. A notice specifically delivered to the consignor to form the basis of a special contract is not within the prohibition of sect. 4, supra (h). But sect. 6 does not take away the protection given to the carrier by the Act in the case of special contracts if the terms of the contract are not inconsistent with the protection given by the Act(i). (g) Carriers Act, s. 3. (A) Walker v. York and North Midland Ry. Co. (1853), 23 L. J. Q. B. 13; 2 E. & B. 750. (i) Baxendale v. Great Eastern Ry. Co. (1869), L. R. 4 Q. B. 244 ; 38 L. J. Q. B. 137. ( 23 ) CHAPTER III. RAILWAY COMPANIES AS STATUTORY CARRIERS. 25. Conveyance of Mails. — Under the Conveyance of Mails Act, 1838, the Postmaster-General has power to require all railway companies in the United Kingdom (sect. 1), under penalty (sect. 12) and bond (sect. 13), to carry mails, by ordinary or special trains, and no alteration in the speed of any mail train shall be made without giving six months' notice to the Postmaster- General . The Postmaster-General may require carriages to be exclusively appropriated to the purpose (sect. 2), and may require the companies to provide sorting carriages (sect. 3), and he may send his own coaches, &c, with his guards, &c, instead of using those of the company (sect. 4). The Post Office officials may give all reason- able orders respecting the mail traffic to the company and its servants, except to the engine drivers (sect. 5). The remuneration of railway companies is to be ar- ranged by agreement or settled in case of difference by arbitration (sects. 6, 16, 17 and 18 (a)). The Post- master-General may terminate the agreement on six months' notice, or without notice subject to payment (a) For principles of remuneration, see Great Northern Ry. Co. {Ireland) v. Postmaster-General (1909), 25 T. L. E. 511, and Great Western Ry. Co. v. Postmaster-General (1906), 12 Ry. & Can. Cas. 11. 24 THE CARRIAGE OF GOODS. of compensation, to be settled by arbitration, if the company is not in default (sects. 8 and 9). By sect. 11 of the Regulation of Railways Act, 1844, the Postmaster-General may send his servants as ordinary passengers with the mails, but the railway company is not then responsible for safe custody or delivery of the mails. By sect. 18 of the Regulation of Railways Act, 1873, railway companies must convey all mails tendered to them, whether under the charge of a post office guard or not, and must afford all reason- able facilities for the delivery of the mails, without requiring booking or interposing any other delay, and permit the post office guards, when the mails are in charge of them, to receive and deliver the mails them- selves, the company giving them such aid as they may require. Railway companies may be compelled by in- junction to carry out their statutory duties with regard to mails (£>). 2B. Carriage under the Railways Clauses Act, 1845. — The Railways Clauses Consolidation Act, 1845, empowers railway companies (sect. 86), to carry goods, and to make such reasonable charges within the maxi- mum authorized by their special Acts as they may from time to time determine. The section is permis- sive, and railway companies under it are not bound to convey all kinds of goods from and to all their stations; they may limit their business, in accordance with the general law of common carriers, to such goods and such places as come within their public profession and con- (*) Postmaster-General v. Highland Ry. Co. (1874), 2 Ry. & Can. Cae. 34. KAILWAY COMPANIES AS STATUTORY CARRIERS. 25 venience (c) . The section gives an implied power to a consignor to dispute charges, though within the maximum, on the ground of unreasonableness, but the difficulty, apparently, of proving unreasonableness has made this part of the Act a dead letter, and a procedure for complaint against charges has been provided in the Eailway and Canal Traffic Act, 1888. See Chap. IV., "Railway and Canal Commission." 27. Traffic Arrangements between Railway Com- panies. — By sect. 87 of the Railways Clauses Consoli- dation Act, railway companies are authorized to enter into agreements with each other for the passage over their lines of traffic from the other company at agreed rates, and to agree for the apportionment of the rates. By sect. 88 it is provided that no such agreement shall in any manner alter, affect, increase or diminish any of the tolls which the respective companies are authorized to demand, and that all other persons shall, notwithstand- ing the agreement, be entitled to the use of the railways, upon the same terms as they would have been had no such agreement been made. 28. The " Equality Clause."— Sect. 90 of the Rail- ways Clauses Consolidation Act, while giving power to railway companies to vary their tolls, enacts that all tolls (which term includes rates and charges) shall be charged equally to all persons in respect of all goods of the same description, passing only over the same portion of the line under the same circumstances, and ifi) Johnson v. Midland Ry. Go. (1849), i Ex. 367 ; 80 R. R. 611. W. C 26 THE CARRIAGE OF GOODS. no one customer shall be favoured, directly or in- directly . It is important, in view of the subsequent discussion (par. 34) of undue preference under the later statutes, to bear in mind the exact limitations of this section. Its purpose is to abrogate in regard to railway com- panies the common carrier's common law right to charge different customers differently for the same services, provided that those more highly charged are still charged reasonably. It enacts that a railway company shall charge all its customers alike when the following conditions are present: (a) the traffic must consist of goods of the same description; (b) it must be conveyed under the same circumstances; (c) it must pass over only the same portion of line, i.e., between the same starting and arriving points. When all three of these conditions are present the customer can demand equality of charge with other customers, and, if he has been charged more, he may sue in the ordinary courts, in an action for money had and received, for the return of the amount overcharged. That is the meaning and extent of the section; but the following further explanations may be added: "Goods of the same description" means goods which are the same for purposes of carriage; and so packed parcels, whatever their contents, are goods of the same description (d) . "The same circumstances" includes the same cost of the service to the railway company; so that if the quantities and methods of consignment make the service more costly in one case than in another, {d) Great Western By. Co. v. Sutton (1869), L. R. 4 H. L. 226 ; 38 L. J. Ex. 177. RAILWAY COMPANIES AS STATUTORY CARRIERS. 27 the person whose consignment is more costly cannot c'laim an equal charge with that made to him whose consignment is less costly. But if the cost to the rail- way company is the same, then the company cannot, under this Section, say the circumstances are different,, and justify a lower charge to certain traders for the- purpose of enticing them away, from a rival railway (e) . Nor is the fact that the ultimate destination of certain traffic is different, a different circumstance, justifying a lower rate for the purpose of developing a trade (/) .. " Only over the same portion of line " must be con- strued strictly. .Thus, where two railway companies have an agreement under sect. 87 of the Act, whereby there is a special through rate from A., through B., to C ., a consignor from B . to C . cannot claim an appor- tioned part of the through rate. His traffic is neither over the same portion of railway, nor conveyed under the same circumstances (g). So also group rates, i.e. T a level rate from a number of places to one terminus cannot be impugned under this section on the ground that the mileage charge works out higher in one case than in another (h). (See par. 42, " Group Rates.") In an action under this section the claimant, if suc- cessful, is entitled to be repaid the overcharge for the time during which the lower charge was made to the (e) London and North Western Ry. Co. v. Evershed (1878), 3 App. Cas. 1029. (/) Denaby Main Colliery Co. v. Manchester, Sheffield and Lincolnshire- Ry. Co. (1885), 11 A. C. 97. (g) Hull and Barnsley Ry . Co. v. Yorkshire and Derbyshire Coal and Iron Co. (1887), 18 Q. B. D. 761. (h) Denaby Main Colliery Co. v. Manchester, Sheffield and Lincolnshire- Ry. Co., supra. c2 28 THE CARRIAGE OF GOODS. other person (*) . But to succeed he must prove that the lower rate has in fact been charged, not merely that it was in the rate book (fc). The provisions of this section have been extended to the steamship traffic of railway companies by sect. 16 of the Regulation of Railways Act, 1868. 29. Use of Railway. — Sect. 92 of the Railways Clauses Act, 1845, empowers all members of the public, on payment of tolls, to use a railway, meaning thereby with their own engines and carriages, but this provi- sion, obsolete in practice (save in so far as the practice of traders using their own wagons perpetuates it), is further rendered impracticable by the fact that the Courts would not grant an injunction to compel rail- way companies to allow their lines to be used in this manner. Such an injunction would be useless, without an accompanying order for the working of signals, which could not be enforced by the Courts (I). 30. Dangerous Goods. — Sect. 105 of the Railways Clauses Act, 1845, enacts that no one shall be entitled to require a railway company to carry aquafortis, oil of vitriol, gunpowder, lucifer matches, or any other goods, which, in the judgment of the company, may be of a dangerous nature, and that if any person send by the railway any such goods without distinctly mark- ing their nature on the outside of the package, or other- (i) Great Western Sy. Co. v. Sutton (1869), L. R. 4 H. L. 226; 38 L. J. Ex. 177. (k) Tat/lor v. Metropolitan Ry. Co., [1906] 2 K. B. 55 ; 75 L. J. K. B. 735. (2) Powell Duffryn Steam Coal Co. v. Taff Vale By. Co. (1874), L. R. 9 Oh. 331 ; 43 L. J. Oh. 575. RAILWAY COMPANIES AS STATUTORY CARRIERS. 2!> wise giving notice in writing, he shall forfeit to the company 20Z. for every such offence; and railway companies are given power to refuse to take any parcels they may suspect to contain dangerous goods, or require the same to be opened, to ascertain the fact. Guilty knowledge is necessary to support a criminal convic- tion for infringing this section, though even an innocent sender lof undeclared dangerous goods is civilly liable if any damage results (m) . The Explosives Act, 1875, s. 35, provides that railway companies shall make- bye-laws (with ;the sanction of the Board of Trade) for the purpose of securing the safe conveyance of gun- powder and other explosives. But a railway company is obliged to carry ammunition for His Majesty's forces (n) . Under the Bates and Charges Order Con- firmation Acts dangerous goods may be charged such reasonable sum for carriage as the railway company thinks fit. 31. Reasonable Facilities. — The Railway and Canal Traffic Act, 1854 (17 & 18 Vict. c. 31), declares (sects. 1 and 2) that every railway and canal company shall, according to its powers, afford all reasonable* facilities for the receiving and forwarding and deliver- ing of traffic of all kinds, including animals. The same section enacts that every railway and canal com- pany having or working railways or canals forming part of a continuous line of communication, or having a station or wharf of one of such railways or canals,. (m) Bamfield v. Gooh and Sheffield Transport Co., [1910] 2 K. B. 94 ; 79 L. J. K. B. 1070. (») Cheap Trains Act, 1883, s. 6. 30 THE CARRIAGE OF GOODS. near (o) the station or wharf of another of them, shall afford all reasonable facilities for receiving and for- warding traffic from one to the other, without any un- reasonable delay or preference or prejudice, so as to offer no obstruction to the use by the public of the respective railways or canals as a continuous line of ■communication, and so that all reasonable accommoda- tion may be afforded to the public. The above section is explained and amended by •sect, 25 of the Eailway and Canal Traffic Act, 1888, which ordains that the facilities to be afforded include the due and reasonable receiving, forwarding and de- livering, by one company, at the request of either another company or any person interested, of through traffic at through rates, and gives power to such com- pany or person to apply, if necessary, to the Railway and Canal Commissioners, after first complaining to the Board of Trade; and the Commissioners may order a rate, which may he per truck or per ton. The section applies to the steamer traffic of railway companies. Though a railway company is only bound to afford reasonable facilities according to its powers, it is no answer for refusing facilities to plead an agreement which is repugnant to them, unless such agreement has been confirmed by Act of Parliament or the Board of Trade (Act of 1888, s. 11). Two or more companies may be ordered by the Rail- way and Canal Commissioners to make mutual arrange- ments for granting reasonable facilities to the public (Act of 1888, s. 14). (o) That is, within a mile, except in the area bounded by a five mile radius from St. Paul's Church, London. RAILWAY COMPANIES AS STATUTORY CARRIERS. 31 In determining what are reasonable facilities in a given case, regard must be had to the special Acts of the railway company concerned, since, as the powers thus granted to railway companies differ greatly, so may the facilities which it is reasonable to demand from them (p) . For obtaining an order for reasonable facilities, though it is not necessary to show an individual griev- ance, it must be shown that the facilities asked for are needed for the convenience of the public. Thus, where a railway company gave to a cab proprietor the exclusive right to have his cabs standing at its station, and plying there, and another cab proprietor applied for an injunction against the company's refusal to admit him, the injunction was refused on the ground that no public inconvenience was shown (q). But where a rail- way company made a similar arrangement with an omnibus proprietor, and excluded another omnibus pro- prietor, whose omnibus conveyed persons between the station and the same town as the favoured omnibus, and to more distant places as well, to which the favoured omnibus did not go, the company was enjoined to admit the second omnibus on the ground of public conveni- ence^). But the convenience of the public is not alone sufficient to justify an order; it must also be reasonable to require the company to furnish the facili- (p) Tharsis Sulphur and, Copper Co. v. London and North Western Ry. wagons (d) ; the provision of cloak-rooms at stations (e) ; and the conveyance on a branch line of a particular kind of traffic which the company already conveys on other parts of its system (/) . The facility of a through rate will be granted over a route when a through rate is- already in existence on an alternative route, in order ta {y) Thomas v. North Staffordshire Ry. Co. (1876), 3 Ry. & Can. Cas. 1. (z) Arbroath Corporation t. Caledonian Ry. Co. (1898), 10 Ry. & Can. Cas. 252. (a) South Eastern By. Co. v. Railway Commissioners (1881), 6 Q. B. D. 586. (4) Didcot, Newbury and Southampton Ry. Co. v. London and South Western and Great Western Ry. Cos., [1897] 1 Q. B. 33. (e) Watkinson v. Wrexham, Mold and Connah's Quay Ry. Co, (1880), 3- Ry. & Can. Cas. 446. (d) Watson v. Caledonian Ry. Co. [1910], S. C. 1068. (e) Singer Manufacturing Co. v. London and South Western Ry. Co., [1894] I Q. B. 833. (/) Glamorgan County Court v. Great Western Ry. Co. (1894), 8 Ry- & Can. Cas. 196. c5 34 THE CARRIAGE OF GOODS. maintain competition (g) . The Railway and Canal Commissioners may declare a through rate to be just and reasonable notwithstanding that a less amount out of it may be allotted to a forwarding company than the maximum rate which that company is entitled to charge (h). (See also par. 61, "Private Sidings.") 33. Facilities not Reasonable. — Among things which are not reasonable facilities are arrangements for the carriage of goods by road from places away from the railway to the company's nearest station (i) . A company cannot be compelled to accept, in respect to through rates, lower mileage rates than those which it is legally charging for like traffic carried by a like mode of transit on any other line of communication between the same points (k) . Excessive charges {which ■can be recovered, or stopped by injunction, in the ordinary courts) have nothing to do with reasonable facilities (l), and cannot be made the subject of an order by the Railway Commissioners (m) . The obso- lete sect. 76 of the Railways Clauses Act, 1845, which permits private persons to have connections made between their private railways or sidings and the rail- way of a railway company for the purpose of bringing (y) Central Wales Ry. Co. v. London and North Western Ry. Co. (1883), 4 Ry. &.Can. Cas. 211. (h) Railway and Canal Traffic Act, 1888, s. 26. (i) Dublin and Meath Ry. Co. v. Midland Great Western Ry. Co. (1879), 3 Ry. & Can. Cas. 379. (A) Railway and Canal Traffic Act, 1888, a. 25 (9). (Z) Great Western Ry. Co. v. Railway Commissioners (1881), 7 Q. B. D. 182. (m) Reg. v. Railway Commissioners and Dislington Iron Co. (1889), 22 Q. B. D. 642. RAILWAY COMPANIES AS STATUTORY CARRIERS. 35 their own carriages upon the railway, cannot be used to force communication for the purpose of raising a claim to traffic facilities (»). 34. Undue Preference. — Sect. 2 of the Kailway and Canal Traffic Act, 1854, further enacts that no rail- way or canal company shall make or give any undue or unreasonable preference or advantage to or in favour of any particular person or company or any particular description of traffic, nor subject any particular person or company, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage. By sect. 27 of the Eailway and Canal Traffic Act, 1888, it is provided that where it is shown that a rail- way company charges one trader or class of traders, or the traders in one district, lower rates or charges for the same or similar merchandize than it charges to other traders, or makes any difference in treatment between them, the burden of proving that such lower charge or different treatment does not amount to an undue preference shall lie upon the company, and in deciding this point the Court may take into consideration, in addition to other considerations affecting the case, whether the lower charge or different treatment is neces- sary for the purpose of securing, in the interests of the publio (which term includes the interests of any con- siderable portion of the population (o)), the traffic in respect of which it is made, and whether the inequality («) Lancashire Brick and Terra Cottu Go. v. Lancashire and Yorkshire Hij. Co., [1902] 1 K. B. 651. (o) Castle Steam Trawlers, Ltd. y. Great Western Ry. Co. (1909), 24 T. L. R. 317 ; 13 Ry. & Can. Cas. 145. 36 THE CARRIAGE OF GOODS. cannot be removed without unduly reducing the rates charged to the complainant, and any circumstance which makes it .better worth the company's while to carry one trader's rather than another trader's traffic (p); but this is not to sanction any difference between home and foreign merchandize in respect of the same or similar services. The Court is given power to direct that no higher charge shall be made to any person for services in respect to merchandize carried over a less distance than is made to any other person for similar services in respect of the like description and quality of merchandize carried over a greater distance on the same line. When the Court makes an order against an undue preference, the company may level up the rate, instead of levelling it down, if the latter change would involve a great risk of serious loss, and the rate be itself reasonable (q). These pro- visions relating to undue preference apply to the sea traffic of railway companies as well as to their land traffic (Act of 1888, s. 28). Any port or harbour or dock authority which has reason to believe that it is placed by a railway company at an undue disadvan- tage as compared with any other port, harbour or dock on the same company's line, may complain in the same way as a trader (Act of 1888, s. 30). There is a broad distinction between this prohibi- tion of undue preference in the Act of 1854 and the prohibition of unequal charges in the "equality clause " (p) Hickleton Main Colliery Co. v. Hull, Barnsley, $e. Ry. Co. (1906;, 12 Ry. & Can. Cas. 63. (q) Rishworth v. North Eastern Ry. Co. (1906), 12 Ry. & Can. Cas. 34. RAILWAY COMPANIES AS STATUTORY CARRIERS. 37 of the Act of 1845 . For the same description of traffic, carried in the same circumstances, between exactly the same points, the consignor can demand an equal charge with other consignors, and can sue in the ordinary Courts for repayment of overcharge, under the Act of 1845. But where there is any difference in the con- ditions named, the consignor can only complain of an undue preference of others or prejudice of himself, and he goes for remedy to the Railway and Canal Commis- sioners, on the failure of redress through a complaint to the Board of Trade; but though he cannot sue for repayment of the overcharge, he may be given damages to cover the overcharge, if the rate objected to has not been published in the rate book, or the trader's written objection to the published rate has not been satisfied within a reasonable time (Act of 1888, s. 13); and if complaint has been made within a year of the matter complained of (s. 12). A statement when paying rates that payment was made without prejudice to the right to claim a rebate similar to that enjoyed by the rival trader does not prevent the statutory time from running (r) . There must be an "undue or unreasonable" prefer- ence or advantage or prejudice or disadvantage. Not every preference is undue. The Court may, for ex- ample, consider the question of competition with a, railway company, and allow a preference in the rate to A. to traders situated at B., where there is rival rail- way communication, over the rate charged to A. from (r) Holwell Iron Co. v. Midland Ey. Co., [1909] 1 K. B. 486 ; 78 L. J. K. B. 214. 38 THE CARRIAGE OF GOODS. C, where there is no rivalry. Such a preference may- be a difference in treatment " necessary for the purpose of securing in the interests of the public the traffic in respect of which it is made," within the meaning of sect. 27 of the Act of 1888 — the maintenance of com- petition being in the interests of the public (s). But competition, to be taken into consideration, must be real and actual. The mere apprehension, based on a threat that a rival railway may be built if traders in the district are not given a preference, is not suffi- cient (t). Sea competition may also justify a reduced charge in respect of the place at which it operates (w). Here inequality raises a presumption of undue prefer- ence, but only a presumption. When the inequality is the result of a fair and honest bargain, the considera- tion for which has been duly executed and enjoyed by the railway company, it is not an undue preference. Such bargains, however, must be looked upon with sus- picion, and, in case of such an agreement of modern date, with great suspicion (x) . 35. Examples of Undue Preference.— Whether in particular cases there has been an undue or unreasonable prejudice is a question of fact, to be arrived at by looking at the matter broadly, and applying common (s) Phipps v. London and North Western My. Co., [1902] 2 Q. B. 229; Holwell Iron Co. v. Midland My. Co., [1909] 1 K. B 486- 78 L. J. K. B. 214. (0 Harris t. Cockermouth and Workington My. Co. (1858), 3 Q. B. N. S. 693; 111 R. R. 797. (») Foreman v. Great Northern My. Co. (1875), 2 Ry. & Can. Cas. 204. (x) Holwell Iron Co. v. Midland My. Co., supra. RAILWAY COMPANIES AS STATUTORY CARRIERS. 39 sense to the facts that are proved, and. is within the decision of the Railway and Canal Commissioners (y). Among preferences which have been declared undue is one given under an agreement with the owners of land taken for the railway (z) ; a preference granted to one of two products which are competitive, the cost of carrying being the same (a); a preference to a trader for agreeing to employ the company exclusively for a term of years (&) ; a preference to a customer who en- gaged to employ other lines of the railway company for traffic distinct from and unconnected with that in respect of which such preference was given (c); a pre- ference to a trader who acted as the company's agent in another capacity (d) ; a preference by a company of itself, ajs prejudicing other carriers, by closing its station to them at an earlier hour than applied to its own vans, where no public benefit is proved (e).; but otherwise where carriers were admitted late on procuring a pass showing that their papers relating to the goods were in order (/) . It has been held an undue preference to (y) Phipps v. London and North Western Ey. Co., (1902) 2K.B. 229. (z) Rishton Local Board v. Lancashire and Yorkshire Ry. Co. (1893), 8 Ry. & Can. Cas. 74. (a) Nitshill aad Lesmahagow Coal Co. v. Caledonian Ry. Go. (1874), 2 Ry. & Can. Cas. 39. (b) Diphwys Casson Slate Co. v. Festiniog My. Go. (1874), 32 L. T. 271 ; 2 Ry. & Can. Cas. 73. (c) Baxendale v. Great Western Ry. Co. (1858), 28 L. J. C. P. 69 ; 5 C. B. N. S. 309. (d) Bannatyne v. Great Southern and Western Ry. Co. (1906), 12 Ry. 6 Can. Cas. 105. (e) Palmer v. London, Brighton and South Coast Ry. Co. (1871), L. R. 6 C. P. 194; 40 L. J. C. P. 133. (/) Palmer v. London and South Western Ry. Co. (No. 2) (1892), 8 Ry. & Can. Cas. 53. 40 THE CARRIAGE OP GOODS. refuse to make to other carriers a fair deduction from a rate which includes collection and delivery when those other carriers themselves collect and deliver (•) Great Western My. Co. v. Caswell and Bowden, [1904] 2 K. B. 508; 73 L. J. K. B. 834. (s) North Staffordshire Colliery Owners' Association v. North Stafford- shire Tty. Co., [1908] 2 K. B. 765 ; 77 L. J. K. B. 1021. RAILWAY COMPANIES AS STATUTORY CARRIERS. 55 way company in fixing rates, notwithstanding any pro- vision in any g-eneral or special Act, to group together any number of places in the same district, situated at various distances from any point of destination or de- parture, and to charge uniform rates to and from all places comprised in the group from and to any point of destination or departure, provided that the distances be not unreasonable, and that the group rates and the grouped places be not such as to create an undue pre- ference. In case of doubt on this point the railway company may apply to the Railway Commissioners, who, after hearing the parties interested, will deter- mine whether an undue preference would be created, and after such determination, it is always open to ag- grieved persons to apply to vary or rescind the order, and obtain a new hearing. Railway companies are not bound for all time by their grouping; they may change it from time to time, and if on a reconstruction a place is left out of the group which had formerly been within it, that is no proof of undue preference (t) . (f) Milhmi and Aikam Hematite Iron Co. v. Furness My. Co. (1903), 12 Ry. &Can. Cas. 1. 56 THE CARRIAGE OF GOODS. CHAPTER IV. THE RAILWAY AND CANAL COMMISSION. 43. Constitution. — The powers granted to the Courts to determine complaints regarding facilities and undue preference by sects . 2 and 3 of the Railway and Canal Traffic Act, 1854, and sect. 16 of the Regula- tion of Railways Act, 1868, were by the Regulation of Railways Act, 1873, vested in a judicial body called the Railway Commissioners. By the Railway and Canal Traffic Act, 1888, there was substituted for it a new Court called the Railway and Canal Commission (s. 8). The Court consists of two appointed and three ex officio Commissioners; the former are appointed on the recommendation of the President of the Board of Trade, and one of them must be experienced in railway business, and they must both, when appointed, cease to be interested in railway securities. A temporary Com- missioner may be appointed in case of necessity. They are removable by the Lord Chancellor for inability or misbehaviour. The three ex officio Commissioners are for England, Scotland and Ireland respectively, and are Superior Court Judges. (Railway and Canal Traffic Act, 1888, ss. 2, 3 and 4.) 44. Procedure. — The Commissioners may hold sit- tings in any part of the United Kingdom, as may be most convenient for the determination of the proceed- ings before them. The central office is in London. THE RAILWAY AND CANAL COMMISSION. 57 On the hearing of a case no fewer than three Commis- sioners must attend, and the ex officio Commissioner presides; his opinion upon any question of law shall prevail (s. 5). The Commissioners have all the powers, as to attendance of witnesses, &c, which are vested in a superior Court (s. 18). In cases other than disputes between railway companies, the Commis- sioners have no power to award costs to either side, unless they are of opinion that the claim or defence was frivolous or vexatious (Railway and Canal Traffic Act, 1894, s. 2). Complaints may be brought before the Commis- sioners not only by traders and any other person, such as a wharfinger, whose trade is directly prejudiced (a), but by harbour : boards and conservancy authorities, city and borough councils, county councils, and any urban or rural sanitary authority. In addition, any associa- tion of traders or freighters, and any chamber of com- merce or agriculture, which may obtain a certificate from the Board of Trade that it is a proper body to make a complaint, may bring a complaint before the Commissioners — the Board of Trade having power to order security for costs as a condition of granting the certificate (s. 7) . It is not necessary that these local au- thorities and associations should show that they are aggrieved by the matter complained of, nor can they be called upon to give particulars of the traders they repre- sent (&). They may also appear in opposition to a complaint, if they, or those they represent, appear to the (a) Forwood v. Great Northern By. Co. (1906), 12 Ry. & Can. Cas. 89; 20 T. L. R. 320. (6) Mansion House Association v. Great Western Ry. Co., [1895] 2 Q. B. 141. D 5 58 THE CARRIAGE OF GOODS. Commissioners likely to be affected by the determina- tion of the matter (s. 6). But they must say whether they are in opposition or not, before leave to appear will be granted (c) . Parties may appear before the Commissioners in person, by counsel, or by a solicitor (s. 50), including Parliamentary agents of two years' standing (s. 51). The Commissioners may make and vary rules for their procedure with the approval of the Lord Chancellor and the President of the Board of .Trade, the rules to be laid before Parlia- ment (s. 20). Before a complaint regarding facilities or undue preference can ho brought before the Commissioners it must be made to, and heard by, the Board of Trade (cc). Where a through rate is complained of as an undue preference, all the companies concerned in making it must be joined as defendants (d). 45. Jurisdiction.— The powers of the Commis- sioners to determine complaints regarding facilities and undue preference extend to complaints which may arise out of enactments in special Acts relating to the same matters, or requiring a railway company to provide any station, road or other similar work for public accom- modation or relating to private branch railways or pri- vate sidings, or otherwise imposing on a company any obligation in favour of the public or an individual (ss. 9 and 16). Complaints of increased charges (c) Liverpool Corn Traders' Association > . Great Western lly. Co. (1892), 8 Ry. *c Can. Cas. 114. (cc) See, for procedure, Railway and Canal Traffic Act, 1888, a. 31. (d) Chance and Hunt v. London and North Western My. Co., [1909] 1 K. B. 550; 78 L. J. K. B. 305. THE RAILWAY AND CANAL COMMISSION. 59 under the Railway and Canal Traffic Act, 1894, are by that Act ordered to be made to the Commissioners; and by the same Act they are given jurisdiction to determine disputes as to siding rebates. The Com- missioners have further jurisdiction to determine complaints by port or harbour authorities or dock com- panies that a railway company is placing the port, harbour, or dock at a disadvantage with some other port, &c. to which it carries, in the same way that they can determine complaints of undue preference under the Act of 1854. Further, any question or dis- pute which involves the legality of any toll, rate or charge for merchandize traffic, may be determined by the Commissioners (s. 10), but not an alleged over- charge, which must be decided by a Court of law (e). ; The Commissioners have power to confirm agreements (but not to vary a through rate apportionment when;; agreed in an existing agreement (/)), and no agree- ment which is not so confirmed (or otherwise con- firmed by Parliament or the Board of Trade) shall prevent the Commissioners from making or enforcing any order with respect to traffic facilities (s. 11). The Commissioners may, in substitution for, or in addition to, other relief, award damages, which, when awarded, are in complete satisfaction of any claim, including repayment of overcharges (s. 12). In cases of undue preference, however, the Commissioners may not award damages if the rates complained of have been duly published in the railway company's rate (e) Davis v. Taff Vale Ry. Co. (1895), 64 L. J. Q. B. 488. (/) Manchester Ship Canal Co. v. London and North Western Ry. Co., [1911] 1 K. B. 657; 80 L. J. K. B. 676. gO THE CARRIAGE OF GOODS. books, unless and until the complainant shall have given written notice to the company to remedy the complaint, and the company has failed to do so within a reason- able time (s. 13). The Commissioners further have jurisdiction to order two or more companies to make mutual arrangements for carrying into effect an order of the Commissioners, and to submit for their approval a scheme for carrying the order into effect, and they may determine the pro- portions in which the various companies are to defray the expense (s. 14). The Commissioners have also power to act as arbi- trators, and where, in any general or special Act of Parliament, provision is made for a reference to arbitration, any company a party to the difference may (with the consent of the Commissioners) have the matter referred to the Commissioners, instead of to an arbitrator, unless an arbitrator is mentioned by name in the Act (g), or there is a standing arbitrator to whom, in the Commissioners' opinion, the matter might more conveniently be referred (Regulation of Railways Act, 1873, s. 8). The Commissioners have jurisdic- tion over canals controlled by railway companies where it is alleged that the companies so arrange the canal rates and charges as to divert traffic from the canal to the railway; they may prescribe reasonable rates and charges in such a case (s. 38). 46. Appeals. — No appeal shall lie from the Com- missioners upon a question of fact or of the locus standi (y) Alexandra Bocks and Ry. Co. v. Taf Vale Ry. Co., [1907] 1 K. B. 356; 76 L. J. K. B. 303. THE RAILWAY AND CANAL COMMISSION. 61 of a complainant, but upon a question of law an appeal lies to the Court of Appeal (in England and Ireland; in Scotland, the Court of Session in either Division of the Inner House), which has the same powers as though the appeal were from a judgment of the High Court (or the Court of Session in Scotland) and may make any order which the Commissioners could have made. The decision of the Court of Appeal is final, save where there has been a difference between any two Courts of Appeal, when leave may be given to appeal to the House of Lords. Otherwise an order or proceeding of the Commissioners may not be questioned or reviewed or restrained or removed by prohibition, injunction, certiorari, or in any other way (Railway and Canal Traffic Act, 1888, s. 17). 47. Through Rate Applications. — The following is a summary of the procedure provided by sect. 25 of the Act of 1888, in respect to applications for through rates : — The company or person requiring the traffic to be forwarded shall give written notice of the proposed through rate to each forwarding company. Each for- warding company shall then, within ten days, or such other time as the Commissioners may determine, state whether it agrees to the rate or route, and if not its ground of objection (costs are payable in oases of neglect or refusal); if no objection is sent, the rate comes into operation at the end of the prescribed time . If an objection is made, the matter is referred to the Commissioners for decision, who shall consider whether the proposed rate is a due and reasonable facility in the interest of the public, and whether in all the circum- (32 THE CARRIAGE OF GOODS. stances the rate is reasonable, and shall allow or refuse accordingly, or fix some other rate. If the apportion- ment of the through rate is not agreed between the forwarding companies the Commissioners shall decide, and they must take into consideration all the circum- stances, including any special expense incurred in the construction, maintenance or working of the route, and any special charges any of the companies may have been entitled to make. And they may not compel any com- pany to accept lower mileage rates than those which the. company may, for the time being, be legally charging, for like traffic on any other line of communication between the same points. These provisions apply to steam vessel traffic . Subject to the foregoing the Com- missioners have full power to decide that any proposed through rate is just and reasonable, notwithstanding that a less amount may be allotted to a forwarding company out of it than the maximum rate such com- pany is entitled to charge, and the Commissioners may allow and apportion the through rate accordingly (s. 26). Preliminary to these proceedings before the Com- missioners complaint must be made to the Board of Trade, the customary procedure in which is first a letter of application to the railway managers, which, together with the reply, is set out verbatim in a letter of application to the Board of Trade. The Board of Trade then forwards copies of the complainant's letter to the railway companies, and of their replies to the complainant. If there is any prospect of a settlement, the parties are invited to an informal meeting at the Board's offices. ( 63 ) CHAPTER V.- SPECIAL CONTRACTS (OWNER'S RISK) . 48. Special Contracts under Traffic Act, 1854. — Though railway companies are subject to the law of common carriers, and their powers of charge and methods of doing their business are in other ways regu- lated by statute, some freedom of contract yet remains- to them. The Carriers Act left them free to make- special contracts to which the liabilities imposed by the Act would not apply; and sect. 7 of the Railway and Canal Traffic Act, 1854, which imposes upon rail- way companies liability for the consequences of their negligence or default in the receiving, forwarding or delivering of animals and merchandize, also reserves to the companies freedom to contract with their customers, out of such liability. 49. " Just and Reasonable." — Two limitations are^ however, imposed by the same section upon this freedom to contract out of it. First, the conditions of the special contract will not be enforced unless they "shall be adjudged by the Court or judge before whom any question relating thereto shall be tried to be just and reasonable." The onus of proving them to be just and reasonable is on the railway company (a) . («) Peek v. North Staffs. Ry. Co. (1863), 32 L. J. Q. B. 241 y at p. 272. 64 THE CARRIAGE OF GOODS. What is " reasonable " is a question to be decided on the facts of each particular case, and by looking at the surrounding circumstances (6). But the following general principles will be applied: The consignor must have a real alternative offered to him (c) (though there are exceptions to this rule), and the alternative must itself be fair (d) . The conditions must not be so wide as to include absolute protection for the company, such as would free it from liability for even the wilful misconduct of its servants (e). Conditions exempting a company from liability to extraordinary loss by the customer caused by ordinary detentions of the traffic are in principle reasonable (/). The onus is on the company to show that the conditions are just and reasonable (g) . 50. Illustrations of Reasonable Conditions. — The following are illustrations of conditions held to be just and reasonable (a real and fair alternative being assumed): A contract to carry cheeses at a rate lower than the ordinary rate, where the sender relieves the (6) Lewis v. Great Western Ry. Co. (1877), L. R. 3 Q. B. D. 195; 47 L. J. Q. B. 131. (c) Buelcham Bros. v. Great Western Ry. Co. (1899), 80 L. T. 774. (d) Lloyd v. Waterford and Limerick Ry. Co. (1862), 15 Ir. C. L. 37; 9 L. T. 89; Manchester, Sheffield and Lincolnshire Ry. Co. ,. Brown (1883), 8 A. C. 703. (e) Ashenden v. London, Brighton and South Coast Ry. Co. (1880), 5 Ex. D. 190; 42 L. T. 586. (/) Lord v. Midland Ry. Co. (1867), L. R. 2 C. P. 339; 36 L. J. C. P. 170; Beal v. South Devon Ry. Co. (1859), 3 II. & C. 339; 29 L. J. Ex. 441. iff) Peek v. North Staffs. Ry. Co. (1863), 10 H. L. Cas. 473; 32 L. J. Q. B. 241. SPECIAL CONTRACTS (OWNER'S RISK). 65 company from " all liability of loss, damage or delay, except upon proof that such loss, damage or delay arose from wilful misconduct on the part of the company's servants " (k). A condition that goods must be loaded or unloaded by the owners or their agents, and that the company will not be responsible for any risk of stowage, loss or damage, however caused, nor for discrepancy in the delivery as to either quantity, number or weight, nor for the condition of the articles, nor for detention or delay in conveyance or delivery, however caused (i) . A condition to carry fish at a fifth less than the ordinary rate, if the company is relieved " from all liability for loss or damage by delay in transit, or from whatever other cause arising" — if it is not interpreted ,as pro- tecting the company from liability for wilful mis- conduct (fc). A condition that the railway company would not be responsible for dogs beyond 21., unless a higher value was declared at the time of delivery and a percentage of 1^ per cent, paid upon the excess of value so declared — though here there was. no alterna- tive (I) . A condition exempting the company from liability for damage to any horses conveyed on the rail- way (m) . A special rate for the carriage of tailor's (h) Lewis v. Great Western Ry. Co. (1877), 3 Q. B. D. 195; 47 L. J. Q. B. 131. (i) Simons v. Great Western Ry. Co. (1856), 26 L. J. C. P. 25; 18 C. B. 805. But this must be read in connection with the other cases cited. (fc) Manchester , Sheffield and Lines. Ry. Co. v. Brown (1883), 8 App. Cas. 703. (I) Williams v. Midland Ry. Co., [1908] 1 K. B. 252; 77 L. J. K. B. 157. (m) Wise v. Great Western Ry. Co. (1856), 25 L. J. Ex. 258; 1 H. & N". 63. 66 THE CARRIAGE OF GOODS. clothing by passenger train, no alternative rate being offered — because railway companies are exempted by statute from obligation to carry non-perishable goods by passenger train (n). A condition in; a through book- ing contract that the company will not be answerable for loss, &c. of goods when delivered over to another carrier in the usual course for further conveyance (o) . A condition that the company will not be answerable for goods untruly or incorrectly described (p). A con- dition that no claim for loss will be allowed unless made within seven days after the time when the goods should have been delivered (g); a limit of three days has also apparently been allowed (r) . A condition that the company would not be liable in respect of the suffo- cation of cattle in transit (s) . A condition that the companj- will not be responsible for certain damageable goods unless they are properly protected by packing, save for wilful misconduct on the part of the company's servants — no lower rate being offered in consideration of this condition; the only advantage in declining the condition being the saving in the cost of packing, and O) Stone v. Midland Ry. Co., [1904] 1 K. B. 669; 73 L. J. K. B. 392. (o) Aldridge v. Great Western Ry. Co. (1864), 33 L. J. C. P. 161; 15 C. B. N. S. 582. O) Lewis v. Great Western Ry. Co. (1860), 29 L. J. Ex. 425; 5 H. & N. 867. (as "a station or place upon the railway at which a consign- ment of merchandize is loaded or unloaded before or after conveyance on the railway, but does not include any station or junction at which the merchandize in respect of which any terminal is charged has been exchanged with, handed over to, or received from any other railway company, or a junction between the rail- way and a siding let by or not belonging to the com- pany, or in respect to merchandize passing to or from such siding, any station with which such siding may be connected, or any dock or shipping place the charges for the use of which are regulated by Act of Parlia- ment" (/). Station terminals do not include coal drops, fori which accommodation, as well as for the use of the company's weighing machines, a special charge may, however, be made (g) . 58. Service Terminals. — What service terminals comprise is defined in detail in the Rates and Charges Order Confirmation Acts (h) — the loading, unloading, covering and uncovering of merchandize, including the provision by the company of labour, machinery, plant,, (e) Portway v. Colne Valley and Grea{ Eastern My. Cos. (1899), 10 Ry. & Can. Cas. 211. (/) Rates and Charges Order Confirmation Acts, Sohed. s. 26. (g) Ibid. Sched. s. 5. (A) Ibid. Sched. s. 4. 78 THE CARRIAGE OF GOODS. stores and sheets. But where merchandize conveyed in a separate truck is loaded or unloaded elsewhere than in a shed or building of the company, the company may not charge to a trader any service terminals for the performance by the company of any of these ser- vices, if the trader has requested the company to allow him to perform the service for himself, and the company has unreasonably refused to allow him to do so — any dispute on the matter to be determined by the Board of Trade. When these services of loading, &c. are performed for a trader at his request or for his convenience in respect of merchandize falling within Classes A or B of the classification — i.e., certain goods, like coal and cement, in consignments of four tons and upwards — for which no maximum service terminals are provided in the Acts, the company may charge a reasonable sum by way of addition to the tonnage rate — differences to be settled by an arbitrator appointed by the Board of Trade (i). The subject of rebates from terminal charges is dis- cussed below, par. 62, "Siding Rebates." 59. Siding Rent. — Sidings, or small branch lines leading to works, wharves, &c, belong in some cases to the railway company from whose line they run, but they also commonly belong to the traders who own the works, &o. Where a railway company provides sidings for the particular use of certain traders, these are an accommodation additional to the conveyance and ter- minal services which are comprised in railway rates; (0 Rates and Charges Order Confirmation Acts, Sched. a. 5. TERMINALS, SIDINGS, REBATES, ETC. 79 and the company has statutory power to demand charges and payments, by way of rent or otherwise, for sidings or other structural accommodation, if they are provided for the private use of the traders, and are not required by the company for dealing with the traffic for the purposes of conveyance. The amount of such charges or payments is to be fixed by agreement in writing, signed by the trader, or by some person duly autho- rized on his behalf, or determined in case of difference by an arbitrator to be appointed by the Board of Trade (k) . Siding rent is payable by traders using sidings belonging to the railway company where they form an indispensable connecting link between the running lines and private sidings, though a number of traders use these connecting sidings, if they are ex- clusively devoted to such traffic (Z), and are not needed by the company for handling the traffic for purposes of conveyance . It is not always easy to determine whether a siding belongs to a railway company or not. It does not follow that the siding belongs to the railway company merely because the company is the legal owner. The answer to the question depends upon whether the company has the possession, use and control of the siding (to) . A siding does not belong to the railway company, even though it owns the land, and it was made under the company's superintendence, and the points, crossings and switches were made by and are (k) Rates and Charges Order Confirmation Acts, Sched. s. 7. (1) Vickers v. Midland Railway Go. (1901), 11 Ry. & Can. Cas. 249. (m) Huntingdon v. Lanes, and Yorks. My. Co. (1901), 11 Ry. &Can. Cas. 237. flO THE CARRIAGE OF GOODS. repairable by the company, and it has at all times the right to use the sidings for shunting its general traffic, as well as the right to control and manage the siding, if it was made, and has to be maintained, and may be used by, the trader (w) . But if the siding is main- tainable by the railway company, and the company has the primary use of it, only a right to use it, and not an exclusive right, being in the trader, then the siding does belong to the company, notwithstanding that the trader's right to use it has been conferred by deed (o). 60. Private Sidings. — Eailway companies are obliged by law to grant to traders reasonable facili- ties for the junction of private sidings or private branch railways with any railway belonging to or worked by them, and also to give reasonable facili- ties for receiving, forwarding and delivering traffic upon or from those sidings and branch railways. The Bailways 'Private Sidings) Act, 1904 (s. 2;, (which takes the place of the obsolete sect. 76 of the Railways Clauses Consolidation Act, 1845), brings the granting of such facilities within the reasonable facilities or- dained by sect. 2 of the Eailway and Canal Traffic Act, 1S54. (See par. 31. "Reasonable Facilities.") And therefore the reasonableness or otherwise is a matter for the determination of the Railway Commissioners. They will not order a junction to be made if it is doubtful whether the Board of Trade would ap- (n) Pideoch v. Manchester, Sheffield and Lines. Si/. Ci>. (1895), 9 lly. ic Can. Cas. 45. (o) (lirm-dul »•. Great Eaxtern Ry. Co. (1900), 11 Ry. A; Can. ). For the same reason it need not be in writing; it is sufficient if it is brought to the notice of the owner of the goods, and he implies acceptance of the condition by leaving them with the company (q). But a contract of that kind must be specific, and a notice that the company holds the goods " as warehouse- men at owner's sole risk" does not get rid of lia- bility for negligence (r) . 71. Expenses. — A railway company may become a warehouseman owing to the default of the consignee in not taking delivery, or not doing so within a reason- able time. The company may then charge a reasonable sum for expenses incurred in preserving the article — it may be the feeding of an animal; and there is an O) Cailiff v. Banvers (1792), 1 Peake, 114. («) Chapman v. Great Western By. Co. (1880), 5 Q. B. D. 278; 42 L. T. N. S. 252. (o) Harris v. Great Western By. Co. (1876), 1 Q. B. D. 515; 45 L. J. Q. B. 729. (p) Van Toll v. South Eastern By. Co. (1862), 31 L. J. C. P. 241; 12 C.B.N. S. 75. (?) Harris v. Great Western By. Co., supra. (r) Mitchell v. Lanes, and Yorhs. By. Co. (1875), 44 L. J. Q. B. 107; L. K. 10 Q. B. 256. 96 THE CARRIAGE OF GOODS. implied contract to pay such charge (s) . A railway company may act in the capacity of warehouseman before, as well as after, transit. This occurs when a railway company receives goods to be forwarded according to orders to be given subsequently. Until such orders are given the company is warehouseman only of the goods, and has not the carrier's liability, which arises afterwards. But a distinction must be drawn when the company receives the goods into its warehouse for its own convenience as well as the con- signor's, the deposit being simply an accessory of the carriage, and to facilitate it. The common carrier's liability in that case begins with the receipt of the goods (t). See further the next chapter, " Lien and Stoppage in Transitu." (s) Great Northern It;/. Co. v. Sweffield (1874), 43 L. J. Ex. 89; L. R. 9 Ex. 132; London and Xorlh Western Ry. Co. v. Crooke (1904), 20 T. L. R. 505. (0 Story on Bailment, ss. 536, 537. ( 97 ) CHAPTER VIII. LIEN AND STOPPAGE IN TRANSITU. 72. Lien. — Lien is a method whereby creditors are enabled to enforce their legal rights without recourse to legal process. It is a right in one man to retain some J thing which is in his possession, but belongs to another, until certain demands on that other person are satisfied. The right attaches to him who is entitled to it while he retains the thing in his possession; as soon as he parts with possession the lien is gone. There are two species of liens known to the law, viz., particular liens and general liens . Particular liens are where persons claim a right to retain goods in respect of labour or money expended upon them; and those liens are favoured in law. General liens are claimed in respect of a general balance of account; and these are founded in custom, only, and are therefore to be taken strictly (a). 73. Railway Company's Particular Lien. — The right of lien is enjoyed by railway companies in respect of goods in their possession upon which charges for carriage are unpaid. It is a common law right, in regard to the particular (or specific) lien ; and this par- ticular lien is exerciseable over the particular goods (a) Houghton v. Matthews (1803), 3 Bos. & Pull. 485; 7 R. E. at p. 822. W. F 98 THE CARRIAGE OF GOODS. the charges for which are unpaid (b); where several parcels are carried at the same time, the carriage on some of which has been paid, the lien is only upon those parcels on which the carriage has not been paid (c) . But the delivery of part of a consignment does not prevent the retention of the rest until the carriage upon the whole consignment has been paid (d), unless such part delivery has been made under circum- stances which show an agreement to waive the lien (e) — as, e.g., the delivery of an essential part of a machine. 74. Right against True Owner. — The right exists even against the true owner, supposing the consignor not to be the true owner, provided that the carrier has no knowledge that the consignor is in wrongful pos- session, because the carrier cannot refuse to carry goods tendered to him for the purpose (/). For the same reason a railway company has a lien for cloak-room charges upon articles deposited at the cloak-room, avail- able against the true owner, as, for instance, an article deposited by a man who had possession of it under a hire-purchase agreement (g). The lien would be de- stroyed by an agreement to give credit {h), unless during the currency of the credit the debtor became insolvent, as that would destroy the credit. Also, after (*) Rushforth v. Hadfield (1805), 6 East, 519; 8 R. R. 520. O) Prenty v. Midland Great Western Ry. Co. (1866), 14 W. R. 314. {d) Ex parte Cooper (1879), 11 Ch. D. 68. (e) Sale of Goods Act, 1893, ». 42. CO Yorhe *. Greenaugh (1703), 2 Ld. Raym. 866. (<7) Singer Manufacturing Co. v. London and South Western Ry. Co., [1894] 1 Q. B. 833. (A) Rait v. Mitchell (1815), 4 Camp. 146; 16 R. R. 765. LIEN AND STOPPAGE IN TRANSITU. 99 the expiration of the term of credit the lien revives. If the owner carries away the goods against the carrier's will, and the latter regains possession, his lien revives (i) . 75. Expenses. — While detaining goods in the exer- cise of a lien the railway company cannot make a charge for warehousing (fc) ; and it must keep the goods safely, and in a convenient place if not at the place of delivery, ready for the owner, should he tender payment (Z) . Its lien give6 no right of sale, even though the detention of the goods involves expenses (m) ; sale would act as a waiver of the lien, and render the seller liable for the value of the goods, without deduction for the amount of the lost lien (w) . 76. Railway Company's General Lien. — A railway company has not by common law a general lien; that it to say, it cannot, apart from agreement, explicit or implicit, or from general usage or course of dealing, detain goods upon which no charge is payable, in order to enforce a debt owing in respect to other consign- ments (o) . But the company may obtain a general lien by one of the methods indicated. Even then, how- ever, if the lien is against the consignor, the company (i) Wallace v. Woodgate (1824), Ry. & M. 193. (fc) Somes v. British Empire Shipping Co. (1860), H. L. Cas. 338. (0 Crouch v. Great Western Ry. Co. (1858), 27 L. J. Ex. 345. (m) Thames Ironworks Co. v. Patent Derrick Co. (1860), 29 L. J. Ch. 714; 1 J. & H. 93. (») Mulliner v. Florence (1878), 3 Q. B. D. 484. (o) Bushforth v. Hadfield (1805), 6 East, 519; 8 R. R. 520. F 2 100 THE CARRIAGE OF GOODS. cannot withhold the goods from the consignee, for the consignor's goods become the property of the consignee from the moment they come into the company's posses- sion as carrier (p) . A railway company maj- agree with a trader for a general lien upon the trader's wagons and goods upon the company's premises; and even if the trader rents from the company the plot of ground upon which the goods are kept (as, e.g., a, place for stacking the trader's coal), the lien remains, and so the agreement is not bad for want of registration under the Bills of Sale Act (#). A general lien may, by agreement, have a power of sale attached to it (r) ■ An agreement for a general lien gives the railway cornpairy no rights against the goods of the receiver, if one is appointed to carry on the trader's business (s). And so in the case of a company wound up, where the business is carried on by the liquidator; goods coming into the railway company's hands after the winding-up are not subject to the general lien which existed by agreement when the company was sni juris (t). Unlike a particular lien, a general lien is not operative against the true owner. Thus, if a carrier acquires such a lien, 0;) Sutler v. Woolcott (1805), 2 B. & P. N. R. 64; 9 R. R. 615. (q) Lord s. Great Western By. Co., [1909] A. C. 109; 78 L. J. K. B. 160. O) Ibid. (s) Ex parte Great Western By. Co., In re SusfieU (1882), 22 Ch. D. 470. (*) Wiltshire Iron Co. v. Great Western By. Co. (1870), 40 L. J. Q. B. 43, 308; L. R. 6 Q. B. 776. LIEN AND STOPPAGE IN TRANSITU. 101 and seeks to exercise it upon certain goods in his pos- session, in respect of a balance of account, and those goods really belong to some third party, the lien cannot be exercised (w) . 77. Railway Company's Statutory Lien. — In addi- tion to their common law particular lieu and the general lien which they may acquire by agreement railway companies have a special statutory lien conferred upon them by sect. 97 of the Railways Clauses Consolidation Act, 1845. That section enacts that "if, on demand, any person fail to pay the tolls due in respect of any carriage or goods, it shall be lawful for the company to detain and sell such carriage, or all or any part of such goods, or if the same shall have been removed from the premises of the company, to detain and sell any other carriages or goods within such premises belong- ing to the party liable to pay such tolls, and out of the moneys arising from such sale, to retain the tolls pay- able as aforesaid, and all charges and expenses of such detention and sale, rendering the overplus, if any, of the money arising by such sale, and such of the carriage and goods as shall remain unsold, to the person entitled thereto." This lien, it will be seen, is much wider than the common law lien; for it includes a power of sale, and is in the nature of a general lien, as it enables other goods to be held, where the unpaid-for goods have been removed. The section, however, speaks only of tolls, and it has been held that this word confines the lien to cases of money due from persons who have used the O) Wright v. Snell (1&22), 3 B. & Aid. 350. 102 THE CARRIAGE OF GOODS. line by conveying goods thereon in their own car- riages (x) . But the contrary has been held in Scotland, where the section has been applied to rates for carriage by the compan}-, as well as tolls in the narrower sense (y). Though the lien is a general one, it does not include a right to detain wagons for tolls due only in respect of the goods carried in them (2) . And where the person indebted for tolls in respect of wagons is not the owner of them, the lien under the section (unlike the common law lien) does not arise (a) . It will have been seen that a demand of the money due precedes the right to sell the goods under the section. If a bill is given by the owner of the goods, and is dishonoured, that is not a demand and refusal to pay,, justifying a sale (b). 78. Right of Action. — The existence of a lien does, not abrogate a railway company's right to sue for money owing to it. The alternative of an action is- specially reserved by sect. 97 of the Eailways Clauses- Act, in regard to the lien created by that section, not- withstanding the right to sell. In regard to a common law lien the right to sue always remains . (x) Wallis v. London and South Western Ry. Co. (1869), 39' L. J. Ex. 57; L. R. 5 Ex. 62. (y) Caledonian Ry. Co. v. Guild (1873), 1 Rettie, 4th series, 198. (z) Manchester, Sheffield and Lines. Ry. Co. v. North Central Wagon Co. (1888), 13 App. Cas. 554. (a) Ibid. (6) North >. London and South Western Ry. Co. (1863), 32 L. J. C. P. 156; 14 0. B. N. S. 132. LIEN AND STOPPAGE IN TRANSITU. 103 79. Stoppage in Transitu— Sale of Goods Act.— Stoppage in transitu is a right akin to lien, but it only arises on the debtor's insolvency. It is a right pertaining to an unpaid vendor of goods with which the carrier must comply. The nature of the right has now received statutory definition in the Sale of Goods Act, 1893, which enacts (s. 44) that "when the buyer of goods becomes in- solvent, the unpaid seller who has parted with the pos- session of the goods has the right of stopping them in transitu, that is to say, he may resume possession of the goods as long as they are in course of transit, and may retain them until payment or tender of the price." And (s. 45, s.-s. 1) "goods are deemed to be in course of transit from the time when they are delivered to a carrier . for the purpose of trans- mission to the buyer, until the buyer, or his agent in- that behalf, takes delivery of them from such carrier." If the buyer obtains delivery of the goods before their arrival at the appointed destination, the transit is at an end (s.-s. (2)). So also if, after arrival at the destination, the carrier acknowledges to the buyer that he holds the goods on his behalf, and continues in possession of them as bailee or custodier for the buyer, the transit is at an end, and it is immaterial that a further destination for the goods may have been indi- cated by the buyer (s.-s. (3)). But if the goods are rejected by the buyer, and the carrier continues in possession ,of them, the transit is not deemed to be at an end, even if the seller has refused to receive them back (s.-s. (4)). Where the carrier wrongfully refuses to deliver the goods to the buyer or his agent, the transit 104 THE CARRIAGE OF GOODS. is deemed to be at an end (s.-s. (6)). Where part delivery of the goods has been made to the buyer, the remainder may be stopped in transitu, unless such part delivery has been made under circumstances which show an agreement to give up possession of the whole of the goods (s.-s. (7)). By sect. 46 (1) "the unpaid seller may exercise his right of stoppage in transitu either hy taking actual possession of the goods, or by giving notice of his claim to the carrier ... in whose possession the goods are. Such notice may be given either to the person in actual jDOSsession of the goods or to his principal. In the latter case, the notice, to be effectual, must be given at such time and under such circumstances that the principal, by the exercise of reasonable diligence, may communicate it to his servant or agent in time to prevent a delivery to the buyer. And (s.-s. (2)) "when notice of stoppage in tran- situ is given by the seller to the carrier he must re-deliver the goods to, or according to the directions of, the seller. The expenses of such re-delivery must be borne by the seller." The right of stoppage in transitu " is not affected by any sale or other disposition of the goods which the buyer may have made unless the seller has assented thereto." But if a document of title to the goods " has been lawfully transferred to any person or buyer or owner of the goods, and that person transfers the docu- ment to a person who takes the document in good faith and for valuable consideration, then, if such last-men- tioned transfer was by way of sale, "the right of stoppage in transitu is defeated, and if the transfer was by way of pledge or other disposition for value, the LIEN AND STOPPAGE IN TRANSITU. 105 right can only be exercised subject to the rights of the transferee" (s. 47). 80. Stoppage in Transitu — Comments. — The fol- lowing comments may be made upon the above enact- ments. The right of stoppage arises when a buyer becomes insolvent ; that is a wider term than bankrupt . And "becomes insolvent" is not the same as "found insolvent"; the seller stops at his own risk(c). If the buyer has partly paid for the goods, or has given acceptances, the seller's right to stop is not thereby defeated (d) . The right remains as long as the goods "arc in course of transit." The course of transit con- tinues while the goods are in the hands of the carrier as such, until the buyer takes actual possession, or has •obtained constructive possession, as by leaving the goods with the carrier as warehouseman (e) . But a mere j>romise by the carrier to give the consignee the goods as soon as they can be got at does not constitute a taking possession (/) . And the fact that it is the consignee who has appointed the carrier (though in- volving to some extent a constructive delivery to the consignee) is not such constructive possession as will defeat the consignor's right to stop (g). And the mere arrival of the goods at their appointed destination is (c) The Tigress (1863), 32 L. J. Adm. 97. (d) Edwards v. Brewer (1837), 2 M. & W. 375; 46 R. R. 626. (e) Bethell v. Clark (1887), 19 Q. B. D. 553; Kendall v. Marshall, Stevens # Co. (1883), 11 Q. B. D. 356. (/) Coventry v. Gladstone (1868), 37 L. J. Ch. 492; L. R. « Eq. 44. (g) Ex parte Rosevear Clay Co. (1879), L. R. 11 Ch. D. 560; Lyons v. Hofnung (1890), 15 App. Cas. 391. F 5 106 THE CARRIAGE OF GOODS. not enough to end the transit, and so the seller's right to stop . " Appointed destination '' is the plaoe to which the goods are consigned, and necessarily includes the mention of a particular person to receive them Qi) ; it is immaterial that a further journey of the goods is anticipated. When, e.g., a railway company receives goods to deliver on board a ship, whence they will go on a voyage, the transit ends with delivery on the ship, but it must be a real delivery, a real taking possession by the buyer or his agent: the giving a bill of lading would indicate that; a simple mate's receipt would not, however, terminate the transit (i) . If the goods are delivered to a warehouseman who acts merely as forwarding agent for the buyer, that is not a taking possession by the buyer or his agent, effectual to end the transit; the seller has still his right to stop (k). As the refusal by the buyer to receive the goods, and of the seller to take them back, does not end the transit, the subsequent insolvency of the buyer while the goods are still in the carrier's possession, enables the seller to exercise his right of stoppage, notwithstanding his previous refusal to take back the goods (I) . There is no particular form of notice of stoppage necessary; a telegram is sufficient (m). With regard to the loss of the seller's right to stop in transitu when the buyer has transferred to a third (A) Ex- parte Miles (1885), 15 Q. B. D. 39. («) Bethell ». Clark (1887), 19 Q. B. D. 553. (A) Ex parte Barrow (1877), 6 Ch. D. 783. (I) Bolton v. Lanes, and Yorks. Ry. Co. (1866), 35 L. J. C. P. 137; L. R. 1 C. P. 431. (»») Ex parte Folk (1880), 14 Ch. D. 446. LIEN AND STOPPAGE IN TRANSITU. 107 party, it has been held that the right was lost in the following circumstances: A. sold a shipment of nuts to B., who, being indebted to C, gave the bill of lading to C. as a cover, and then became insolvent during the transit; the transaction between B. and C. being bond fide, A. could not stop the goods (w). Though the statute provides that the taking of the goods out, of the carrier's possession by. the consignee before the appointed destination is reached ends the transit, the carrier would have a right of action, if it were done without his consent (o) . The seller's right to stop is not defeated by any general lien against the buyer which the carrier may have (p) ; the carrier can only claim a particular lien for payment of the charges for the conveyance of the goods which are stopped and for the expenses connected with re-delivery. If the carrier wrongfully refuses to re-deliver the goods claimed by the seller, and delivers them to the buyer, and they are thereby lost to the seller, the carrier will have to pay him their value (g) . When conflicting claims upon goods are made in a stoppage claim, as in other disputes, and the carrier is in doubt, his course is to interplead. (») leash v. Scott (1877), 2 Q. B. D. 376. O) Whitehead v. Anderson (1842), 9 M. & W. 535; 60 R. R. 819. (p) Jacksen v. Nichol (1839), 5 Bing. N. C. 517; 50 R. R. 777. (?) Pontifex v. Midland Ry. Co. (1877), 3 Q. B. D. 23. 108 THE CARRIAGE OP GOODS. CHAPTER IX. THE MEASURE OF DAMAGES FOR LOSS, ETC. OF GOODS. 81. General Principles. — In certain cases — under the Carriers Act (see par. 18, "The Carriers Act"), and under sect. 7 of the Railway and Canal Traffic Act, 1854 (see par. 37, "Liability for Negligence") — Par- liament has provided a statutory measure of damages for the loss of goods and for loss or injury by negli- gence to animals in transit; for the most part, how- ever, the liability of railway companies is determined by the rules of common law and the decisions there- under. The measure of damages for the loss, or delay in the delivery, of goods has often been determined with great difficulty. The following, however, are the main principles of assessment. If the goods are lost or badly injured, their value, and as a rule only their value, is recoverable; and that is generally their market value at the place and time at which they ought to have been delivered. If there is no market price for the sale of such goods at the place, the value is ascertained by taking into consideration the circumstances which would have determined the price had there been a market, such as the price at the place of manufacture, plus the cost of carriage, and a reasonable sum for the importer's MEASURE OF DAMAGES FOR LOSS OF GOODS. 109 profit (a) . In regard to delay, the damages will vary with the nature of the goods. In the words of Mayne on Damages, "a carrier will be liable to different damages according as he delays a basket of fish or a basket of coals, for the simple reason that delay frus- trates the object of sending the fish, but not that of sending the coals." Damages may be recovered for loss of market by delay — as, in the case of seasonal goods, the deterioration in their marketable value by reason of the season having passed (&). But loss of profit is not included (c) . The damages must arise naturally from the breach of the contract, or be such as may be reason- ably supposed to have been in the contemplation of both parties at the time they made the contract as a probable result of a breach of it. (This is commonly known as the rule in Hadley v. Baxewdale (d).) The rule applies also to expenses incurred by the owner in connection with the loss or delay, extraordinary ex- penses not being allowed (e) . 82. Loss of Market. — Difficulty has naturally arisen in drawing a distinction between the loss of profit and loss of market value through delay in delivering goods. The distinction, however, is im- portant, as lost profits are not, and diminished market («) O'JIaulon v. Great Western Ry. Co. (1865), 34 L. J. Q. B. 154; 6 B. & S. 484. (b) Wilson v. Lanes, and Ybrks. Ry. Co. (1861), 30 L. J. C. 1>. 232; 9 C. B. N. S. 632. (c) Hadley v. Baxendale (1854), 23 L. J. Ex. 179 ; 9 Ex. 341. (rf) Ibid. (e) Woodger v. Great Western Ry. Co. (1867), 36 L. J. C. P. .177; L. R. 2 C. P. 318. 110 THE CARRIAGE OF GOODS. value is, the subject of damage*. The distinction received judicial interpretation in a case where a cap manufacturer sued for the loss sustained by- delay in the delivery of cloth, by which he had lost the season for making it into caps, and so disposing of it; and it was held that though he could not recover the loss of profits he might have made by the manufacture of the cloth into caps, he was entitled to recover for the de- terioration in the market value of the cloth by reason of the season having passed for making caps which he might then have sold (/). In his judgment in this case Willes, J., said: "The deterioration in value of the goods in consequence of their arriving at a time when they were less in demand and less capable of being applied to an immediate use, is the natural and legal consequence of the delay, for which the carriers are answerable . ' ' The principle of this decision was applied in a case where a railway company delayed the delivery to a firm of woollen merchants of samples until the season for travelling in the goods was over, and the samples had become valueless. It was held they wore entitled to a sum equivalent to what the samples were worth to them when they should have been delivered, and which they would have been willing to pay had it been possible to replace them in time (g) . The fol- lowing is another case which helps to explain the rule. A railway company carried a consignment of hops, and delivered it late, and some of the hops in a damaged condition from wet, which reduced their value. The (/) Wilson v. Lance, and York*. My. Co. (1861), 30 L. J. C. P. 232; 9 C. B. N. S. 632. (y) Schitlze v. Great Eastern My. Co. (1887), 19 Q. B. D. 30. MEASURE OF DAMAGES FOR LOSS OF GOODS. Ill whole consignment had then to be dried, to fit the hops for sale, an operation which occupied some days, during which period the price of hops fell by fifty per cent. It was held that the owner of the hops could recover, not only the diminution in the value of the damaged hops, but a sum which represented for the whole con- signment the difference in the price of hops between the time when the consignment should have been de- livered and fit for sale, and the time when it was actually ready for sale (h) . But the loss of market value must be independent of any circumstances peculiar to the owner of the goods ; and so, where goods were sent by a merchant to his traveller, and delivery was delayed until after the traveller had left the town, the merchant was held not entitled to claim as a loss in the market value of the? goods the amount which he would have made had his- traveller been able to sell them (i) . It may be that a seller of goods is sued by the buyer for breach of contract to deliver, and that the delay arises with the railway company. In such a case the seller may recover, as a natural result of the railway com- pany's breach of contract, not only any damages he may have to pay to the buyer, but, whatever the result of the action brought by the buyer, the costs reasonably in- curred by him in defending it (/c), and, if he wins, the (A) Collard v. South Eastern Ry. Co. (1861), 30 L. J. Ex. 393; 7 H. & N. 79. (t) Great Western Ry. Co. v. Redmayne (1866), L. R. 1 C. P. 329. (ft) Hammond v. Bussey (1887), 20 Q. B. D. 790. 112 THE CARRIAGE OP GOODS. costs incurred over and above what he receives as party and party costs (Z). 83. The Contemplation of the Parties.— Where damages are claimed beyond what would flow naturally from a breach of the contract, they can only be recovered if they fall within the second branch of the r.ule in Hadley v. Baxendale : the special damage must have been within the contemplation of both parties when the contract for carriage was made. In a case where, owing to the railway company's unreasonable delay in delivery, the plaintiff was unable to carry out a contract to supply equipments and ornaments for a Foresters' Festival, it was held that he could only recover expenses incurred in searching for his goods, and not the loss of hire, because he had not given the company any information as to the purpose for which the goods were sent, or the day on which it was desired that they should arrive (m) . The reference to damages " within the contemplation of both parties" must be interpreted strictly. Failure to deliver part of the machinery which was to be put in a mill, involving eleven months' delay in replace- ment, did not fix the carrier with contemplation of all the unfortunate results which flowed, or might be sup- posed to have flowed, therefrom, merely because he knew it was machinery. In that case the damages awarded were confined to the cost of replacing the lost machinery , (I) Agius v. Great Western Colliery Co., (1899) 1 Q. B. 413. (m) Hales v. London and North Western By. Co. (1863), 32 L. J. Q. B. 292; 4 B. & S. 66. MEASURE OF DAMAGES FOE LOSS OF GOODS. 113 including the freight, with the addition of interest, as compensation for delay (n) . Nor, where manufacturers had obtained a special price beyond the market price for a consignment of boots to be supplied to the French Army by a certain day, and lost their contract through the railway com- pany's failure to deliver in time, could they get as damages the difference between the ordinary market price and the special price, merely because they had given notice to the company that if the boots were not delivered by the date mentioned they would be thrown back on their hands. There was no special contract, express or implied, to be liable in special damage, nor even a, notice to the company that it would be held liable for a specific amount (o). And in this case the doubt was raised whether any mere notice by the con- signor, however specific, would have availed to fix the railway company with liability for an abnormal amount, for the company, as a common carrier, was bound to carry the goods, and as a railway company had no power on its side to demand an abnormal hire. The "contemplation of the parties" in the rule in Hadley v. Baxendale may, then, it is submitted, be read as the ' ' agreed contemplation . ' ' 84. Remote Damages. — The question of remote damages, discussed in the preceding: paragraphs, may be further illustrated. A railway company delivered some (») British Columbia Saw Mill Co. v. Nettleship (1868), 37 L. J. C. P. 235; L. R. 3 C. P. 499. (o) Home v. Midland Sy. Co. (1873), 41 L. J. C. P. 264; 42 L. J. C. P. 59; L. R. 8 C. P. 136. 114 THE CARRIAGE OF GOODS. cotton to a mill three or four days late, and, because the mill was short of cotton, it remained idle. It was held that the mill owners were not entitled to he recouped, either the lost profits or the wasted wages paid, because the railway company was not to suppose that the mill had no other cotton in stock; the damages in such a case are exceptional, and therefore too remote (p). Though, in ascertaining the value of a lost article for the purpose of assessing damages, the price at which the article has been sold by the consignor is, where the sale is a bond fide one, the proper measure of damages (g), no account can be taken of further sales. Thus, where A . sold to B ., and B . resold to C . , A . cannot add to the damages payable to him for loss of the goods on the way to B., the difference between the price at which B. bought and the price at which he had agreed to sell to C. (r). If the owner of the goods is at fault, the damages recoverable may be only nominal. Where a railway, company delayed the delivery of a consignment of rags, which were packed in a damp state, and thereby, owing to the delay, became unfit for use, it was held that the owner could not recover the value of the goods; for the company had no knowledge of their damp con- dition, apart from which the delay would not have (/,) Gee v. Lanes, and Yorks. Ry. Co. (1860), 30 L. J. Ex. 11; 6 H. &N. 211. (?) France v. Gandit (1871), 40 L. J. Q. B. 121; L. R. 6 Q. B. 199. (/■) Sorties v. Hutchinson (1865), 34 L. J. C. P. 169; 18 C. B. N. S. 445. MEASURE OF DAMAGES FOB LOSS OF GOODS. 115 caused damage, and therefore only nominal damages for breach of contract by delay could be recovered (s) . 85. Expenses. — To what extent expenses incurred by the owner of lost or delayed goods while waiting and trying to recover them are recoverable as damages is a matter also to be determined by the rule in Hadley v . Baxendale : they must, to be recoverable, be a natural result of the breach of contract. Where a commercial traveller sent his case of goods by luggage train, and they were delivered some days late, he was not allowed hotel expenses which he incurred in waiting for the case to arrive; for the company was not to know that he wanted the case by a particular time, or that he did not live in the place of consignment (t). But "I do not say that a person cannot recover because of having to call two or three times, employ cabs and incur expenses in search of his goods, if they were expenses naturally incurred in such search" (m). 86. Articles of Personal Use. — Similarly, in the case of articles not of commerce, but of direct use by the owner, the measure of damages for loss or deten- tion is the price of similar articles; but this class of goods would frequently fall within the Carriers Act, because of their nature and value, and the question of damage would be determined by the provisions of that Act(cc). (See par. 20, "Value.") (s) Baldwin v. London, Chatham and Dover Ry. Co. (1882), 9 Q. B. D. 582. (t) Woodger »-. Great Western By. Co. (1867), 36 L. J. C. P. 177; L. E. 2 C. P. 318. (w) Ibid, per Smith, J. Or) Millen >. Brasch (1881), 8 Q. B. D. 35; 51 L. J. Q. B. 166; 10 Q. B. D. 142; 52 L. J. Q. B. 127. 116 THE CARRIAGE OF GOODS. 87 Insured Value Decisive. — Where a declaration of value is made before carriage, the owner cannot recover a greater sum, the contract of carriage in such a case being based upon the agreed statement of value, and the real value is immaterial (y) . (y) M'Cance v. London and North Western By. Co. (1864), 34 L. J. Ex. 39; 3 H. & C. 343. ( 117 ) PART II. THE CARRIAGE OF PASSENGERS. CHAPTER X. THE RAILWAY COMPANY'S OBLIGATIONS TO PASSENGERS. 88. Duty to Carry with Care. — Though a railway company, as a common carrier, is an insurer of goods, it is not an insurer of passengers (a). It is only. liable, for damage to the passenger whom it carries if it is guilty of negligence. The company's contract with the passenger, and the obligations which it undertakes, are to take due care (including in that term the use of skill and foresight) to carry the passenger safely (&). "Due care" un- doubtedly means a high degree of care, and casts on the company the duty of. exercising all vigilance to see that whatever is required for the safe conveyance of their passengers is in fit and proper order (c) . The company is bound to take reasonable care to use the best precautions in known practical use for securing the safety of its passengers (d) . The duty to carry (a) Seadhead v. Midland My. Co. (1869), 38 L. J. Q. B. 169;. L. E. 4 Q. B. 379. (b) Ibid. In this case the earlier authorities are exhaustively summed up. (c) Ibid. (d) Ford v. London and South Western My. Co. (1862), 2 I<\ . per mile second class, and Id. per mile third class. The Equality Clause of the Railways Clauses Con- solidation Act, 1845 (s. 90), applies to passenger fares as well as to merchandize rates. Fares, therefore, must be charged equally to all passengers conveyed by a like carriage passing only over the same portion of rail- way under the same circumstances — i.e., between the same points of arrival and departure. (See par. 28, "The Equality Clause.") The section therefore does not apply to the charging of lower fares for long than for short distances (gr) . The Regulation of Railways Act, 1868, s. 16, enacts (/) Le Blanche r. London and North Western Ry. Co. (1876), 1 C. P. D. 286; 45 L. J. C. P. 521. (gr) Att.-Gen. v. Birmingham and Derby June. Ry. Co. (1840), 2 Ry. Ca. 124. W. I-I 146 THE CARRIAGE OP PASSENGERS. that in steam vessels worked by railway companies equality of toll shall also be maintained "in respect of passengers conveyed in a like vessel between the same places under like circumstances " ; and no reduction or advance in the tolls shall be made in favour of or against any person using the steam vessels in conse- quence of his having or not having travelled, or being about to travel on the company's railway, or in favour of or against any person using the railway in conse- quence of his having or not having used, or being about to use, the steam vessels; and where an aggregate sum is charged for conveyance by steam and railway, the ticket shall have the amount charged for the steamer conveyance distinguished from the railway fare; though the Railway Commissioners will not interfere in this matter unless damage is shown to result from 'the omis- sion (h). It is very doubtful if the provisions of this section would apply in the case of a contract made abroad with an English company running steam vessels to a foreign port, such contracts being presumably under the lex loci contractus, and not the law of England (i). 106. Workmen's Trains. — If, in the opinion of the Board of Trade, a due and sufficient proportion of the accommodation upon a railway is not provided at fares not exceeding a penny a mile, or if there is not a proper and sufficient provision of workmen's trains at such fares and times between 6 p.m. and 8 a.m. as the Board (h) City of Dublin Steam Packet Co. v. London and North Western Ry. Co. (1881), i Ry. & Can. Caa. 10. (t) Branly v. South Eastern Ry. Co. (1862), 31 L. J. C. P. 286; 12 C. B. N. S. 63. THE PASSENGER'S CONTRACT — FARES, ETC. 147 thinks reasonable, the Board may make inquiry, or may, if required by the company concerned, refer the matter for the decision of the Railway Commissioners, and either the Board of Trade (with an appeal to the Comrnissioners) or the Commissioners shall have power to order the company to provide such accommodation or workmen's trains at such fares as may appear to them to be reasonable. Neglect beyond a month to comply with the order renders the company, on the certificate to that, effect of the Board of Trade to the Inland Bevenue, liable to pay passenger duty on its fares of a penny a mile and under (Cheap Trains Act, 1883, 8.3). By the same Act (s. 5) it is provided that, for the purpose of the Act, children between three and twelve years of age shall travel at half fare (with a minimum of a penny), and children under three years free. Sect. 6 of the same Act provides that officers and men of the army (regular and volunteer), navy, and police force shall travel at three-fourths of the ordinary fare, if the number of persons travelling is less than 150, and if in excess of 150, one-half. The same rule is to apply to such wives and children of the men as are entitled to be conveyed at the public expense. In ordering workmen's trains and the fares to be charged, the Court has refused to consider whether these trains will yield any profit to the company, on the ground that, by running workmen's trains, the com- pany escapes passenger duty (k) . Even some loss on (k) In re London Reform Union and Great Eastern Ry, Go. (1899), 10 Ry. & Can. Cas. 280. H 2 148 THE CARRIAGE OF PASSENGERS. working might be ignored (I). But workmen's trains will not be ordered, unless there is proved to be in exist- ence a class of workmen residing in the neighbourhood, and requiring such a service: the Court will not order trains in advance of requirements (to) . Nor will the Court order a workmen's service because it might re- lieve a congested district elsewhere (n). And there must be some relation between the benefit asked for and the cost to the company of giving it, and some relation between the size of the demand for accommoda- tion and the difficulty of giving it (o) . 107. Publication of Fares. — A railway company must exhibit in a conspicuous place in the booking office of each of its stations a list of the fares by the trains included in the time tables from the station to every place to which tickets^ are issued from that station. But there appeal's to be no penalty for non-com- pliance (p) . Every ticket must have printed or written upon it the fare chargeable for the journey for which it is issued, non-compliance being subject to a penalty, re- coverable on summary conviction, not exceeding forty shillings for ©very ticket so issued (g) . 108. Undue Preference of Passengers. — The law against undue preference — see par. 34, "Undue Prefer- (l) In re London Reform Union and Great Northern Ry. Co. (1899), 10 Ry. & Can. Cas. 293. (m) Ibid. («) Ibid. (o) In re Fawcett Association and London, Brighton and South Coast Jiy. Co. (1899), 10 Ry. & Can. Cas. 299. (p) Regulation of Railways Act, 1868, s. 16. (?) Regulation of Railways Act, 1889, s. 6. -FARES, ETC. 149 «nee " — applies to passenger as well as to goods traffic. It also extends to the steamboats of railway companies (Railway and Canal Traffic Act, 1888, s. 25). It is not an undue preference to charge lower fares upon one portion of a railway system than on another part, nor to issue return tickets on one branch, and not on another, so long as the same fares are charged to all passengers over the same portion of the line (r). Nor does the mere fact that season tickets are issued at lower rates from a town on the same system farther from, than from a town nearer to, the terminus in itself con- stitute undue preference (s) . It is not necessarily an undue preference to give lower rates for season tickets to traders who send a certain amount of business over the line than to others (t). But the Railway Commis- sioners have jurisdiction to hear complaints of the undue preference of one town over another in the matter of passenger fares (u), and will forbid the preference whiere there are competing interests involved (x) . It is not undue preference to refuse a season ticket to a man who has violated certain conditions which are just and reasonable in themselves, and are applied to all season-ticket holders (y) . (»■) Caterliam Ry. Co. v. London, Brighton and South Coast Ry. Co. (1856), 1 Ry. & Can. Caa. 32. (s) Jones v. Eastern Counties Ry. Co. (1858), 1 Ry. & Can. Cas. 45. (t) Inverness Chamber of Commerce v. Highland Ry . Co. (1901), 11 Ry. & Can. Cas. 218. («) Dover Corporation v. South Eastern Ry. Co. (1873), 1 Ry. & Can. Cas. 349. (a>) Bozier v. Caledonian Ry. Co. (1855), 1 Ry. & Can. Cas. 27. (y) Morrison v. Belfast and County Sown Ry. Co. (1904), 12 Ry. & Can. Cas. 99. 150 THE CARRIAGE OF PASSENGERS. It is undue preference for a railway company having a through rail and steamboat service, with an alternative steamboat route— one route its own and another another company's — to charge a lower through fare if its own steamers are used, the services on both routes being approximately equal (z) . 109. Reasonable Facilities. — The reasonable facili- ties and accommodation ordained by sect. 2 of Rail- way and Canal Traffic Act, 1854, also apply to pas- senger traffic. (See par. 31, "Reasonable Facili- ties," and cases there cited.) A public inconvenience, and not merely an individual grievance, :must be shown, in order to justify the interference of the Court (a). And in determining what is reasonable, regard must be had to the general traffic of the railway com- pany (b). (zj City of Dublin Steam Packet Co. v. London and A'oilh Western By. Co. (1881), 4 Ry. & Can. Cas. 10. (a) Barret v. Great Northern liy. Co. (1857), 1 Ry. & Can. Cas. 38. (6) Ibid. ( 151 ) CHAPTER XII. passengers' luggage. 110. Common Carrier's Liability. — The fare which a passenger pays for a journey by railway includes the right of having carried, without extra charge, his per- sonal luggage, to a specific amount. The obligation so to carry this luggage is imposed upon railway com- panies by their special Acts, and is further enforced by general legislation, such as the "reasonable facili- ties" section of the Traffic Act of 1854, which is; specifically applied to passengers' luggage (s. 1). An action will lie against a railway company for refusing to carry luggage (a) . The statutory amounts of free lug- gage allowed are not uniform in the companies' Acts, but modern practice gives 150 lb. to first class, 120.1b. to second class, and 100 lb. to third class passengers. The amount of luggage which may be taken when more than one person are travelling together is the aggregate allowed on all the tickets; and one of the party may have more than the amount allotted to a single ticket, if another has less, and the total is within the sum allowed to the combined tickets (&). («) Mucrow v. Great Western By. Co. (1871), 40 L. J. Q. B. 300; L. E. 6 Q. B. 612. (6) Great Northern liy. Co. v. Shepherd (1852), 21 L. J. Ex. 114; 8 Ex. 30. 152 THE CARRIAGE OP PASSENGERS. Kailway companies are common carriers of luggage, just as they are of goods, and are therefore (subject to special contract) insurers of its safe conveyance when it is duly put into their charge (c). Their liability for the safety of a passenger's luggage, of which he has not himself taken charge, is therefore greater than their liability for the safety of the passenger himself, which is limited to negligence. 111. Carriers Act — Limitation of Liability. — By sect. 1 of the Carriers Act, companies are not liable for the loss of, or in j ury to , certain articles of comparatively small bulk and of considerable value contained in any parcel or package accompanying any passenger when the value of the package exceeds 101., unless the value and nature of the articles are previously declared, and an additional charge be paid. (See further, Chap. II., par. 18, "The Carriers Act," and subsequent pars.) These provisions apply to the ordinary personal lug- gage which is carried free (d). The Carriers Act does not apply to sea traffic, and therefore not to the steamboat traffic of railway com- panies, which is subject to the limitations upon the common carrier's liability which are imposed by sects. 502-^ of the Merchant Shipping Act, 1894. See par. 38, "Sea Traffic." The exemption from liability conferred upon railway companies by the Carriers Act was held to extend to the case of a passenger who handed a chronometer (c) Minister v. South Eastern Ry. Co. (1858), i C. B. N. S. 676; 27 L. J. C. P. 308. (d) Caswell v. Cheshire Lines Committee, [1907] 2 K. B. 499; 76 L. J. K. B. 734. passengers' luggage. 153 (which is one of the specified articles in the Carriers Act) to a porter, without previously declaring it in compliance with the Act; the porter placed it on the seat of a carriage, and both porter and passenger went away for a short time, during which the chronometer dis- appeared. The company would have been liable but for the protection of the Carriers Act (e) . 112. Special Contracts. — As in the case of goods, so with passengers' luggage, a railway company can relieve itself of its obligation to carry luggage at all (as is sometimes done in cheap excursions), and of its liabilities with regard to the safety of the luggage, by entering into a contract of exemption with the pas- senger ; but certain distinctions in regard to such special contracts must be noted. If the company wishes to contract out of its liability, it can do so (with the passenger's consent (/)) up to the point of not contracting put of liability for its own negligenoe, by bringing the condition under the notice of the passenger when he purchases his ticket, or doing what is sufficient to bring the condition to the passenger's notice, as in the case of other conditions, such as making a regulation exempting itself, and printing legibly upon the face of the ticket that it is issued subject to the company's regulations (see par. 102, "Conditions on Ticket"). But the com- pany cannot by this method free itself from liability (e) Le Couteur v. London and South Western My. Co. (1865), 35 L. J. Q. B. 40; L. R. 1 Q. B. 54. (/) Munster v. South Eastern My. Co. (1858), 27. L. J. C. P. 308; 4 C. B. N. S. 676. H 5 154 THE CARRIAGE OF PASSENGERS. for its negligence; for passengers' luggage is subject to sect. 7 of the Railway and Canal Traffic Act, 1854 (. 78, per Field, J. (b) Armsworth v. South Eastern Ry. Co. (1847), 11 Jur. 760; 81 R. R. 918. (e) Phillips v. London and South Western Ry. Co., supra. MEASURE OF DAMAGES FOR INJURY, ETC. 167 if the disablement is at an end when the case is tried; if disablement has not yet ceased, but a definite term may be fixed, the time likely to elapse before recovery, based upon medical and similar evidence, is calculated (<£) . Even, how- ever, when calculating the loss by past disablement, care must be taken to consider any relevant circum- stances; and if, for example, the plaintiff's place of business had been shut down during part of the time of his disablement, so that, if he had not been disabled, he would not have earned his usual income, that fact must be used in mitigation of the damages (e). 121. Compensation for Injury — Pain and Ex- penses. — An injured person is also entitled to a sum of money by way of compensation for the pain he has suffered by the injury, and this should be additional to the amount awarded for pecuniary lass — though all items of compensation are comprised in one lump sum in the verdict. For example, in the case cited in the preceding paragraph, the jury returned a verdict for 16,000?., and it was assumed that 1,000/. of this represented compensation for the plaintiff's bodily suf- fering — though in this case there was a sum of 923/. claimed for expenditure incurred in connection with the alleviation of the plaintiff's sufferings (/) . But the rule is to give a "fair compensation for the pain, inconvenience, and loss of enjoyment," Which the in- jured man has suffered (g). And it has been held that (d) Phillips v. London and South Western Tiy . Co. (1879), 5 •C. P. D. 280. («) Ibid. ,(/) Ibid., 5 Q, B. B'. 78. "'.(g) ibid. 168 THE CARRIAGE OF PASSENGERS. the same amount should be given to a working man and to a person of great wealth, if the accompanying suffering is the same (h). Yet in this matter " the pos- session of an independent income may come into con- sideration, because a man may suffer very much more from bodily suffering when he is deprived of all means of support, and is reduced to such poverty that he cannot provide for himself what will alleviate his sufferings ; he . . may probably be entitled to a larger com- pensation for his misfortune, because he has no private income out of which he may alleviate his suffer- ings" (f). The injured man is also entitled to be reimbursed all reasonable expenses he may have incurred consequent), upon the accident (fc) . In an action for compensation the judge may order the person injured to be examined by a duly qualified medical practitioner, not being a witness in the case, and may make such order with respect to the costs of such examination as he may think fit(Z). 122. Compensation for Injuries — Insurance. — The damages in an action for negligence causing per- sonal injury are not subject to any deduction of money paid to the plaintiff by an insurance company as com- pensation for the same injury under a policy of in- surance against accidents — otherwise he would be a loser to the extent of the premiums paid (to) . (h) Phillips v. London and South Western Ry. Co. (1879), 5- C. P. D. 280, per Brett, L.J. (t) Ibid., 5 Q. B. D. 78, per Cotton, L.J. (*) Ibid., 5 Q. B. D. 78. (Z) Regulation of Railways Act, 1868, s. 26. (m) Bradburn v. Great Western Ry. Co. (1874), 44 L. J. Ex. 9; L. R. 10 Ex. 1. MEASURE OF DAMAGES FOR INJURY, ETC. 169 123. Compensation for Fatal Accidents. — The statutory principles upon which compensation is awarded in respect of fatal accidents has already been discussed (par. 93, "The Fatal Accidents Act"). It may further be pointed out here that the Act "intro- duced by implication a measure of damages far more comprehensive than is recognised in the common law" (n). At the same time the damages which may be awarded must be confined to the pecuniary loss suf- fered by the dependants named in the Act by the death of the deceased, and the jury must not give anything as solatium for the mental sufferings of the bereaved persons (o). But there must be pecuniary loss; and the mere proof of death and negligence will give no right to even nominal damages (oo). But in estimating the pecuniary loss juries must only give what they regard as fair compensation; and damages are not to be estimated according to the value of the deceased's life calculated by annuity tables (p). But where the deceased had covenanted to pay an annuity during the joint lives of himself and the bene- ficiary under the Act, the jury may estimate the damages by calculating what sum would buy the bene- ficiary an equally, good annuity, and for that purpose O) 88 R. R. Pref. VI. 0) Blake v. Midland Ry. Co. (1852), 18 Q. B. 93; 88 R. R. 543. (oo) Duckworth v. Johnson (1859), 29 L. J. Ex. 25; 4 H. & N. ■653. (p) Armsworth v. South Eastern Ry. Co. (1847), 11 Jur. 758 ■ 81 R. R. 918. W. I 170 THE CARRIAGE OF PASSENGERS. the annuity tables of insurance companies may be consulted (q) . The loss of the benefit of a superior education and the enjoyment of greater comforts and conveniences of life is a pecuniary loss which, may be allowed in assessing damages, where the income of the deceased is distributed in accordance with a settlement after his death, or where premature death prevents the de- ceased from making the extra provision for his family which he might reasonably have been expected to make had he lived out his natural life (r). Where a son assists his aged and infirm father in doing work, for which the father is paid, the latter may claim under the Act, if his son is fatally injured, com- pensation for the value of his lost assistance (s) . But a father who pays wages to his son cannot claim under the Act for the loss of his son's services (t) . Funeral and mourning expenses are not allowed in computing pecuniary 1oss(m). Insurance money is not to be taken into account in assessing the damages (v) . 124. Executor's Action outside the Act. — It has been held that if a man dies before receiving com- pensation for loss of business and expenses, the exe- (g) Rowley v. London and North Western Ry. Co. (1873), 44 L. J. Ex. 153; L. R. 8 Ex. 221. 00 Pym v. Great Northern My. Co. (1862), 31 L. J. Q. B. 249. («) Franklin v. South Eastern Ry. Co. (1858), 3 H. & N. 211. (0 SyJees v. North Eastern Ry. Co. (1875), 44 L. J. C. P. 191. («) Bolton v. South Eastern Ry. Co. (1858), 27 L. J. G. P. 227; 4 C. B. N. S. 296. 00 Fatal Accidents (Damages) Act, 1908. MEASURE OF DAMAGES FOR INJURY, ETC. 171 outor can bring an action for that compensation (x),. in addition to an action under the Fatal Accident® Act (y), if the action be founded in contract, but it has since been held (for other purposes, and presum- ably for all purposes) that an action for damages by a railway company's negligence is an action in tort,, whether there was a contract to carry or not (2) . It is doubtful, therefore, if such an action would lie. Where the cause of action is clearly a pure tort, as of a man being run over at a level crossing, an action by the executor for such compensation, whether in addition to, or instead of, an action under the Fatal Accidents- Act, would certainly not lie (a) . 125. Compensation for Accidents — Arbitration- — Where a person has been injured or killed by an accident on a railway, the Board of Trade, upon appli- cation in writing made jointly by the company against whom compensation is claimed and the person, if he is injured, or his representatives, if he is killed, may appoint an arbitrator to determine the compensation (if any) to be paid by the company (b). 126. Compensation for Delay. — Where a railway company, through a false representation in its time- (x) Bradshaw v. Lanes, and Yorks. Ry. Co. (1875), 44 L. J. C. P. 148; L. R. 10 C. P. 189. (y) Leggott v. Great Northern Ry. Co. (1876), Q. B. D. 599; 45 L. J. Q. B. 557. (z) Taylor v. Manchester, Sheffield and Lines. Ry. Co., [18952 1 Q. B. 134. (a) Pulling v. Great Eastern Ry. Co. (1882), 51 L. J. Q. B. 153; 9 Q. B. D. 110. (6) Regulation of Railways Act, 1868, a. 25. ~ i2 172 THE CARRIAGE OF PASSENGERS. tables, causes a passenger to miss a business appoint- ment, it may be held liable for the pecuniary loss re- sulting therefrom (c), but not if there has been no such false representation (d) . With regard to delay, apart from false representa- tion, the rule is that, as the company has failed to perform its contract to carry with reasonable prompti- tude, the passenger may perform it for himself as nearly as is reasonably possible, and recover from the rail- way company the reasonable expense of so doing. If the passenger might have mitigated or avoided the loss or inconvenience to himself by taking a particular course, he is not entitled to damages resulting from taking another course (e). The passenger must not do what is unreasonable or extravagant. He would not in all circumstances be justified in taking a special train; he would not, for example, be justified in doing this for the purpose of avoiding an hour's delay in arriving at the end of a journey to the seaside (/); and it has been suggested that one mode of determining what, under the circumstances, is reasonable, is to con- sider whether the expenditure is one which any person in the passenger's position would have been likely to incur if he had missed the train through his own fault fo). (c) Denton v. Grant Northern Ry. Co. (1856), 25 L. J. Q. B. 129; 5 E. & B. 860. (d) Hamlin v. Great Northern Ry. Co. (1856), 26 L. J. Ex. 20; 1 H. & N. 408. (e) Ibid. (/) Le Blanche v. London and North Wrstern Ry . Co. (1876), 1 C. P. D. 286; 45 L. J. C. P. 521. (<7) Ibid, per Mellish, L.J. MEASURE OF DAMAGES FOR INJURY, ETC. 173 Expenses incurred, however, are not the only damages that may be recovered ; a sum may be awarded for personal physical inconvenience suffered, as where a man and his wife and children were taken to a wrong station late at night, and had to walk home, being unable to procure a conveyance (h) ■ But damages for mere vexation or mental annoyance are not recover- able (*) . 127. Compensation for Delay, &c. — Remoteness. — In claiming damages for delay it is easy to reach the point at which they are considered in law to be too remote to be recovered. The rule in Hadley v. Baxen- dale — that damages must arise naturally from the breach of the contract, or be such as may be reasonably supposed to have been in the contemplation of both parties at the time they made the contract as a prob- able result of the breach of it (see Chap. IX., "The Measure of Damages for the Loss, &o. of Goods") — is rigidly applied. Thus, a delayed passenger who missed appointments with customers was not allowed to recover for lost profits, or the expense and incon- venience he was put to in waiting and visiting these customers afterwards at a distance (here, however, the passenger might have avoided these consequences by taking a certain road and ferry journey, the expenses of which he could have recovered (k)). Nor was a pas- senger allowed damages for an illness supervening upon (A) llobbs 21 Q. B. D. per Lord Esher, at p. 211. I 5 178 THE CARRIAGE OF PASSENGERS. As evidence the bye-laws rank as public documents, a certified copy of which is admissible in Court (A). Their substance must be published on boards to be hung up on the front, or other conspicuous part of every wharjf or station of the company, according' to their nature or subject-matter, and so as to give public notice thereof to the parties interested therein or affected thereby, and no penalty under them may be recovered unless they are so kept published (i) . But though proof that they have been so published is necessary to sup- port a prosecution under them (k), it is sufficient to prove publication at the station or stations used by the offender on the occasion (I) . A railway company cannot prosecute under a bye- law, if it has, before the commission of the alleged offence, done anything to promote the breach of the bye-law, or which can be interpreted as a waiver of its rights under it (mi) . Penalties under the bye-laws are recoverable before a Court of summary jurisdic- tion (n) . 131. Offences in Bye-laws. — As most of the offences which railway passengers can commit, and the acts which railway companies regard as offences against the proper use of their property, are contained in the (A) Motteram v. Eastern Counties Ry. Co. (1859), 29 L. J. M. 0. 57; 7 C. B. N. S. 58. (J) Railways Clauses Consolidation Act, 1845, s. 110. (£) Ibid.' a. 111. (I) Motteram v. Eastern Counties Ry. Co., supra. O) Jennings v. Great Northern Ry. Co. (1865), 35 L. J Q. B. 15; L. R. 1 Q. B. 7. (») Railways Clauses Consolidation Act, 1845, s. 145. OFFENCES BY PASSENGERS, 179 bye-laws of the company, it may be useful to sum- marise them here. No. 1 provides for a penalty not exceeding 40s. for the first offence, and not exceeding 51. for a subsequent offence, for infringement of Bye-laws Nos. 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 18, 19, 20, 21, and 22, and a penalty not exceeding 51. for every infringe- ment of Bye-laws Nos. 15 and 17. No. 2 forbids a person to enter a railway carriage without a ticket, and gives power to the company's servants to remove an offender. This provision for forcible removal, which did not appear in the earlier bye-laws, was inserted to overcome the decision that a man, having entered into contractual relations with the company for conveyance, could not be forcibly re- moved (o); and it is questionable if that decision is not still operative in the case of a passenger who, e.g., has lost his ticket, and is forcibly removed, unless he •can be taken to have assented to the provision as a •condition of the contract. No . 4 provides that, when the fare to an intermediate station exceeds the fare to a more distant station, a person, meaning to go to the intermediate station, shall not take a ticket for the more distant station; and it reserves the company's right, notwithstanding the liability to, or the infliction of, a penalty as provided in No. 1, to treat the ticket as forfeited, and recover the full fare for the distance actually travelled. No . 5 forbids the alteration or defacement of a ticket, (o) Butler v. Manchester, Sheffield and Lines. Ry. Co. (1888), 21 Q. B. D. 207; 57 L. J. Q. B. 564. 180 THE CARRIAGE OF PASSENGERS. with intent to defraud, or an attempt to use a materially altered ticket. No. 6 prohibits the transfer of a portion of a ticket, whether the other part be used or not. This has been held to be an offence under sect. 103 of the Railways Clauses Consolidation Act, 1845, as travelling without having paid the fare, and with intent to avoid payment (p). No. 7 forbids entry into an already full compart- ment . No. 8 forbids entry by a male above eight years of age into a compartment reserved for females. No. 9 forbids the mounting of an engine, or the roof of a carriage, or travelling in a luggage or guard's van, or on the footboard. No. 10 forbids entering or leaving a train while it is in motion, or at any other than the appointed place adjoining a platform. No.- 11 forbids (save with the company's special per- mission) any person suffering from an infectious or contagious disease to travel on the railway, or enter any part of the company's premises. In addition to- the penalty provided in No. 1, the person offending is made liable for the cost of disinfecting the premises or carriage; any one having charge of such a person, or who aids him in offending, is also deemed to be an offender . No. 12 forbids a person in a state of intoxication, or otherwise in an unfit or improper condition, or whose clothing might, in the guard's opinion, soil or injure (p) Langdon v. ItowelU (1879), i Q. B. D. 337; 48 L. J. M. C. 113. OFFENCES BY PASSENGERS. 181 the carriage or the clothes of other passengers, to travel by railway, or enter the company's premises, or be on the station approach. No. 13 forbids the use by any person in a train or station or station approach of language which is abusive^ offensive, &c. It also forbids any disorderly or offen- sive conduct, and the committal of any nuisance, or any interference with the comfort or convenience of passengers. No. 14 prohibits the taking of an animal or bird into a passenger carriage, without the guard's permis- sion, or the retaining it in the carriage, even after the guard's permission, if any other servant of the com- pany or any passenger objects. No. 15 forbids the taking into a carriage, or upon the company's premises at all, or the station approach,, of loaded firearm®, or, without the company's permis- sion, any receptacle containing inflammable, explosive, or corrosive gas or liquid, &c. But this bye-law does not apply to small quantities of spirit or liquid carried for a passenger's personal use, and not for trade pur- poses, provided proper precautions are taken to prevent accidents'. No. 16 forbids smoking in a non-smoking compart- ment, or wherever on the company's premises it is ex- pressly prohibited, or elsewhere on the premises if requested by a servant of the company not to do so.. But a railway company is bound to provide smoking compartments of each class in its trains, unless exempted by the Board of Trade (q) . And it may {q) Regulation of Railways Act, 1868, ». 20. 182 THE CARRIAGE OF PASSENGERS. possibly be questioned whether, if it fails to provide this accommodation, it can prosecute under this bye- law, or whether such failure to provide would not be interpreted as a waiver of its rights under the bye- law (r) . No. 17 23rohibits malicious or wanton damage to the company's property, and enacts that the offender shall be liable for the damage, as well as for the penalty provided in No . 1 . jSTo. 18 prohibits the hawking of goods, or any solicit- ing of custom on the company's premises, without the company's permission. No. 19 prohibits betting in trains or on the com- pany's premises, and loitering without lawful excuse (proof to lie on the person charged) on the company's premises or station approach. No. 20 prohibits the wanton, malicious, or negli- gent throwing or dropping from carriages of bottles, or anything capable of injuring person or property. No. 22 prohibits spitting upon the floor or any part of a carriage, or upon the platform, or in any room or passage at the station . In addition to the power to remove offenders given in bye-law No. 2 already noticed, similar power is given in Nos. 7, 8, 9, 11, 12, 13, 16, 18, 19 and 22. 0) See Jennings v. Great Northern Ry. Co. (1865), 35 L. J. Q. B. 15; L.R.I Q. B. 7. ( 183 ) PART III. RAILWAYS AND THE PUBLIC. CHAPTER XV. STATE CONTROL OF RAILWAYS — THE BOARD OF TRADE. Railway companies are, in the assumed interests of the public, subjected to State regulation in various other matters besides those already discussed, the power being chiefly exercised by the Board of Trade, which has a special railway department. Many of these powers have been noticed in the preceding chapters. Addi- tional powers are noted in this chapter. 132. Opening Line — Board of Trade Inspection. — Though powers to construct railways are in each case granted by Parliament, no railway or portion of a railway or of an additional or deviation line, station, junction or level crossing, which forms a portion of, or is directly connected with, a railway on which pas- sengers are conveyed, may be opened for the conveyance of passengers until one calendar month after notice to the Board of Trade, and until ten days after notice of the time when the railway or station, &c. will be, in the company's opinion, sufficiently completed for the safe conveyance of passengers, and ready for inspection; but the Board may, on the company's application, dis- pense with the notice in the case of an additional or deviation line, station, &c. (a). A penalty of 20Z. (a) Railway Regulation Act, 1842, s. 4, and Regulation of Railways Act, 1871, s. 5. 184 RAILWAYS AND THE PUBLIC. per day during which a railway is open until the notices shall have been given, and have expired, is attached to default (6). If the Board of Trade inspector reports that the open- ing of the new line, &c. would be attended with danger to the public using it, through structural incompleteness or inadequacy of working staff, the Board of Trade may order postponement of opening for any period not exceeding one calendar month at a time; disregard of this order (if a copy of the inspector's report has been sent to the company) entails a penalty of 20/. for every day the line, &c. remains open contrary to the order (c) . And until the Board's requisitions are complied with, it may go on ordering further monthly postponements, without making fresh inspections (, price 10s. 6d. , doth, OUTLINES OF THE LAW OF TORTS. 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