Liabilities of Carriers at Common Law. Where it appeared that the plaintiff had been in the habit of sending parcels by the defendant's conveyance, and that two parcels had at different times been lost, and that the plaintiff had acquiesced in those losses, desiring the witness for the future to insure the parcels sent, it was held to be evidence of the plaintiff's knowledge that the defendant had limited his responsibility (u). And the defendant may shew, that, when other parcels were delivered to him by the plaintiff, a ticket was delivered with each parcel containing the notice (x). In all cases where the notice could not be brought home to the person interested in the goods, or his agent, directly or constructively, the notice was a mere nullity, and the carrier was responsible according to the general principles of the common law (y). But it must be understood, that common carriers could not, by thus giving a notice, exempt themselves from all responsibility, so as to evade altogether the salutary policy of the common law. In the first place, such notice would not exempt the carrier from any losses by the malfeasance, misfeasance, or gross negligence of himself and servants. If, therefore, he converted the goods to a wrong use; if he negligently made a wrong delivery to a person not entitled to them (z); or if he were guilty of gross negligence in the carriage or care of them, the loss must be borne by the carrier, notwithstanding his notice: for the terms of it are uniformly construed not to exempt him from such losses (a). It was for some time doubtful whether a carrier was liable for losses occasioned by ordinary negligence in cases (u) Roskell v. Waterhouse, 2 Stark. C. 461. (x) Mahew v. Eames, 3 B. & C. 603. (y) Story on Bailments, 358; Brooke v. Pickwick, 4 Bing. 218, (z) Duff v. Budd, 3 B. & Bing. 177; Birkette v. Willan, 2 B. & A. 356. (a) Story on Bailments, 364. where he had given the usual notice. The case of Wyld v. Pickford (b) has, however, decided this question in the affirmative. In that case, the action was brought against the defendants, who were common carriers, to recover the value of certain goods lost by them. The plea alleged, that notice had been given to the plaintiff that the defendants would not be responsible for the loss of the goods mentioned in the declaration, unless the same were insured according to their value, and paid for at the time of their delivery to the defendants; and it was averred that no such notice was given to the plaintiff. The Court of Exchequer, after taking time to consider their judgment, said, "What circumstance may make the defendants responsible after such a notice, whether ordinary negligence, or gross negligence, or wilful misfeasance, is a question which it is necessary to determine. Upon reviewing the cases on this subject, the decisions and dicta will not be found altogether uniform, and some uncertainty still remains as to the true ground on which cases are taken out of the operation of these notices. The weight of authority seems to be in favour of the doctrine, that, in order to render a carrier liable after such a notice, it is not necessary to prove a total abandonment of that character, or an act of wilful misconduct, but that it is enough to prove an act of ordinary negligence,gross negligence, in the sense in which it has been understood in the cases cited; and that the effect of a notice in the form stated in the plea is, that the carrier will not, unless he is paid a premium, be responsible for all events (other than the act of God and the Queen's enemies) by which loss or damage to the owner may arise, against which events he is by common law a sort of insurer; but still he undertakes to carry from one place to another, and for some reward in respect of the carriage, and is (b) 8 M. & W. 443. Liabilities of Car riers at Common Law. riers at Common Law. Liabilities of Car- therefore bound to use ordinary care in the custody of the goods, and their conveyance to and their delivery at their place of destination, and in providing proper vehicles for their carriage; and, after such a notice, it may be that the burthen of proof of damage or loss by the want of such care would lie on the plaintiff" (c). Protection afforded by the Carriers Will. 4, c. 68. The result seems to be, that no substantial protection was afforded to carriers by means of the notices which were usually resorted to. It was generally difficult to prove the fact of notice to the owner of the goods; and the carrier, as we have seen, still remained liable for losses caused by negligence. It is still usual amongst carriers to give such notices; but the Carriers Act, to which we shall now refer, has rendered such general notices (when given by land carriers (d)) of no avail (e), although they are still at liberty to make a special contract with reference to each particular transaction relating to the carrying of goods (ƒ). III. The preamble of the 11 Geo. 4 & 1 Will. 4, c. 68, Act, 11 Geo. 4 & 1 (called the Carriers Act), recites, that, "whereas, by reason of the frequent practice of bankers and others, of sending by the public mails, stage-coaches, wagons, vans, and other public conveyances by land, for hire, parcels and packages containing money, bills, notes, jewellery, and other articles of great value in small compass (g), much valuable property (c) See also Hinton v. Dibbin, 2 Q. B. 661. (d) The Carriers Act is only applicable to carriers by land. See sect. 1, supra. (e) See sect. 4, post, 451. Care must, however, be taken to give the notice required by sect. 2, post, 450. (f) Railway companies usually make special contracts when horses and other valuable animals are carried. See Palmer v. The Grand Junction Railway Company, 4 M. & W. 768. The agreement by carriers to be accountable for the safe carriage of a parcel expressed to be of greater value than 207., requires no stamp, if the value of the carriage be below that value; for the carriage, and not the goods, is the subject of the agreement. Latham v. Rutley, 1 Ry. & M. 13. (g) The enacting part of sect. 1 goes beyond the preamble and mis by the Carriers Act, 11 G. 4 & 1 W. 4, c. 68. is rendered liable to depredation, and the responsibility of Protection afforded mail contractors, stage-coach proprietors, and common carriers for hire, is greatly increased: and whereas, through the frequent omission by persons sending such parcels and packages to notify the value and nature of the contents thereof, so as to enable such mail-contractors, stage-coach proprietors, and other common carriers, by due diligence, to protect themselves against losses arising from their legal responsibility, and the difficulty of fixing parties with knowledge of notices published by such mail contractors, stage-coach proprietors, and other common carriers, with the intent to limit such responsibility, they have become exposed to great and unavoidable risks, and have thereby sustained heavy losses; be it therefore enacted, that no mail-contractor, stage-coach proprietor, or other common carrier by land for hire, shall be liable for the loss of, or injury to any article or articles, or property, of the descriptions following, (that is to say), gold or silver coin of this realm, or of any foreign state, or any gold or silver in a manufactured or unmanufactured state, or any precious stones, jewellery, watches, clocks, or time-pieces of any description, trinkets (h), bills, notes of the Governor and Company of the Banks of England, Scotland, and Ireland respectively, or of any other bank in Great Britain or Ireland, orders, notes, or securities for payment of money, English or foreign, stamps, maps, writings, title-deeds, paintings, engravings, pictures, gold or silver plate or plated articles, glass, china, silks (i), in a manufactured or unmanufactured state, and whether wrought up or not wrought up with other materials, furs (k), or lace, or any chief here recited; therefore a carrier is table for the loss of a large lookingglass. Owen v. Burnett, 2 C. & M.357. (h) An eye-glass, with a gold chain attached, are not "trinkets." Davey GG v. Mason, Car. & Mar. 45. (i) Silk dresses made up for wearing, are not "silks." Davey v, Mason, Car. & Mar. 45. (*) Hat bodies, made partly of fur by the Carriers Act, 11 G. 481 W. 4, c. 68. Protection afforded of them, 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 or stage-coach or other public conveyance, when the value of such article or articles, or property aforesaid, contained in such parcel or package, shall exceed the sum of £10, unless, at the time of the delivery thereof at the office, warehouse, or receiving-house of such mail-contractor, stage-coach proprietor, or other common carrier, or to his, her, or their book-keeper, coachman, or other servant, for the purpose of being carried, or of accompanying the person of any passenger as aforesaid, the value and nature of such article or articles, or property, shall have been declared by the person or persons sending or delivering the same (7), and such increased charge as hereinafter mentioned, or an engagement to pay the same, be accepted by the person receiving such parcel or package. By sect. 2, when any parcel or package, containing any of the articles above specified, shall be so delivered, and its value and contents declared as aforesaid, and such value shall exceed the sum of £10, it shall be lawful for such common carrier, &c., to demand and receive an increased rate of charge, to be notified by some notice affixed in legible characters in some public and conspicuous part of the office, &c., stating the increased rates of charge required to be paid over and above the ordinary rate of carriage, as a compensation for the greater risk, and care to be taken for the safe conveyance of such valuable articles; and all persons sending or delivering parcels or packages containing such valuable articles as aforesaid, at such office, shall be and partly of wool, are not "furs." must be an express formal declaration of the value made by the consignor, otherwise the carrier is not liable. Boys v. Pink, 8 Car. & P. 363. |