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to the benefits of the Act so far as the right to the increased charge is concerned. But apparently, in any event, he is entitled to a declaration of the value and nature of the goods, according to the decision in Caswell v. Cheshire Lines Committee (1907), where it was held that, if a passenger's personal luggage contains articles over £10 in value of the kind enumerated in Section 1 of the Act, the company will not be liable for the loss in the absence of a declaration of value. (4) The carrier is not exempt, therefore, from his common law liability unless the notification and demand have been made, or unless the declaration of value has not been given. When the extra charge is made, the customer is entitled to a receipt.
(5) Other than as provided by the Act, no public notice can limit the liability of the carrier.
(6) Nothing in the Act affects any special contract between the carrier and the customer.
(7) The Act does not protect the carrier from any loss arising from the felonious acts of any person in his employ. But, in Shaw v. Great Western Railway (1894), it was held that a carrier can protect himself from such liability by special contract, and he then only remains liable for gross negligence, e.g., railway rates are quoted as at Owner's risk" and " Company's risk ", and the owner of goods may elect under which he will consign his goods, the former being the cheaper rate.
(8) As regards goods which are not of the kind mentioned
above, or if the value does not exceed £10, the common law liability of the carrier remains, in the absence of a special contract, and no public notice to the contrary is of effect.
(9) It was held in Dyke v. South Eastern and Chatham Railway (1901), that the Act applies equally to personal luggage accompanying a passenger as to that sent unaccompanied; and this was followed in Caswell v. Cheshire Lines Committee (1907), cited above.
Railway and Canal Companies.
Very soon after 1830 traffic by road began to be superseded by railway and canal traffic. The Railway and Canal Companies invariably contracted out of the Carriers Act, 1830, by special contract, as permitted under the Act, and so consignors were left without any remedy in case of loss, etc. Parliament then stepped in and passed the Railway and Canal Traffic Act, 1854, which deals with limitation of liability, and provides
(1) That every railway company shall afford reasonable facilities for receiving, forwarding, and delivering traffic. (2) That any notice given by the company limiting its liability for loss or injury to animals or goods carried by the company shall be null and void, and the company shall be liable for all loss occasioned by the neglect or default of the company or its servants
(3) But that the company may make a special contract, which must be signed by the consignor or his agent, and may thus limit its liability by any agreement, provided that the terms of the contract are held by the court to be just and reasonable.
(4) That the company's liability for loss is limited for (a) horses to the sum of £50, (b) neat cattle £15, and (c) sheep and pigs £2 per head, unless a higher value is declared and an increased rate paid, or agreed to be paid, to be notified as under the Carriers Act. [These sums are increased to £100, £50 and £5 respectively under the Railways Act, 1921.]
The facilities afforded under paragraph (1) above include the collection and delivery of parcels and goods by van or dray, and the maintenance of receiving offices for parcels traffic. The special contract mentioned in paragraph (3) is frequently to be found in the consignment notes signed and handed to railway carmen when goods are collected.
Railway companies may make contracts exempting themselves from liability beyond the limits of their own lines, and to these contracts the Act does not apply.
By the Regulation of Railways Act, of 1868, it is provided that where a company, by through booking, contracts to carry any animals, luggage or goods partly by rail and partly by sea, or partly by canal and partly by sea, a condition exempting the company from liability for any loss by danger of seas and navigation shall be good and considered to be incorporated in the contract if published in a conspicuous manner in the office where the booking is effected, and printed legibly on the receipt or freight note.
By the Railway Companies (Accounts and Returns) Act, 1911, every railway company must annually prepare accounts and returns in accordance with the form set out in the Act, and must submit their accounts to their auditors in that form.
By the Railways Act, 1921, a Rates Tribunal is constituted, which has the power to frame regulations governing the rates, charges, and conditions of carriage of traffic of all sorts. The Act extends the definition of a common carrier to include a common
carrier by land who is also a carrier by water; therefore, in such cases, the Land Carriers' Act applies to carriage by water also. But the Act does not take effect until a date to be announced by the Rates Tribunal.
By the Merchant Shipping Act, 1894, it is provided that when loss or damage occurs to goods, without the actual fault or privity on the part of the owner of the ship, he is not liable at all where
(1) Goods or other things on board are lost or damaged by reason of fire on board the ship;
(2) Gold, silver, precious stones, watches, jewellery, etc., are lost or damaged by reason of any robbery, embezzlement, making away with or secreting thereof, where the owner or master had not, at the time of shipment, received a written declaration of their true nature and value.
Where any loss has occurred without the fault or privity of the owner, viz.
(a) Where any loss of life or personal injury is caused to any person being carried in the ship;
(b) Where any damage or loss is caused to any goods, merchandise, or other things on board;
(c) Where any damage to person or property in or on another vessel, or to the vessel itself, is caused by improper navigation of the ship-the limit of liability is as follows(i) In respect of loss of life or personal injury (with or without damage to vessels or goods) to an aggregate amount not exceeding £15 for each ton of the ship's tonnage;
(ii) In respect of damage to vessels or goods (with or without loss of life or personal injury) to an aggregate amount not exceeding £8.
By the further Act of 1900, this limitation of liability was extended to any loss of or damage to property or rights of any kind, whether on land or water, resulting from improper navigation or management of the ship, without the fault or privity of the shipowner.
Where there is a loss of life as well as loss of goods, the claims in respect of the loss of life are entitled to £7 per ton and the remaining claims for loss of life, if any, and the claims for loss of goods, rank equally against the balance of £8 per ton.
When Liability of Carrier Ceases.
The liability of a carrier ends on delivery, actual or constructive, of the goods carried, to the consignee or his agent, or where the goods are tendered at the address to which con
signed and that turns out to be a wrong address. Similarly, where goods are forwarded to a station "to be called for " and are not removed within a reasonable time. Where goods still remain with the carrier and the transit has come to an end in such circumstances as above mentioned, the carrier becomes a warehouseman and his liability as insurer ceases, he being in future liable only for ordinary and reasonable custody of the goods.
Carriage of Passengers.
The question of the liability of railway companies as insurers of passengers has already been considered; and although not strictly within the purview of a chapter on carriers, possibly a few words on the general question of the carriage of passengers by railway may prove of interest. Railway companies are usually bound by their particular statutes to carry all passengers who tender the proper fare, unless they are in such a condition as to prove an annoyance to other passengers or to cause detriment to the companies' premises or rolling stock. Further, where a company advertises a certain train to arrive or depart at a specified time, the company may be liable in damages if a person suffers expense or other harm by reason of considerable delay caused through their negligence, even though a general condition issued by the company may be that the company does not guarantee the punctual starting or arrival of their trains. Where, as is usual, the company issues a ticket stating that they will not be liable for loss or inconvenience caused by delay unless such delay be occasioned by the wilful misconduct of the company's servants, it has been held that such a condition is not unreasonable and in such cases there is no liability unless there is actually wilful misconduct on the part of the company's servants. It was held in Le Blanche v. London and North Western Railway Co. (1866) that in particular circumstances, although not as a matter of course, a passenger may be justified in taking a special train and charging the cost to the company.
The taking of a ticket only entitles the passenger to be carried to the destination named therein within a reasonable time. The act of taking a ticket is the entering into a contract, and provided that the passenger is aware, or could reasonably become aware, of the company's Conditions and By-laws, he is bound thereby. Usually a condition is that the passenger will be carried by any train unless it is full. If it is full, therefore, he must wait for the next train. Another condition is that the passenger must travel only in the class of carriage for which the ticket has been issued, unless he tenders the excess fare when requested, and if he breaks his contract he can be prosecuted. So that if the third
class carriages are full the passenger has, strictly speaking, no right to travel in a superior-class carriage without paying the difference between the two fares, but this condition is not always enforced by the companies. A passenger is obliged to show his ticket, whether an ordinary ticket or a season ticket, when asked to do so by any of the company's servants, and if he fails to do so he must, on demand, pay the full fare from the point of starting to his destination. Should he fail to do this he can be asked for, and he must give, his name and address, and on refusal he can be arrested by the company's servants. They have no power to detain the passenger provided that he furnishes his name and address.
(1) To carry all goods of the class he professes to carry for anybody who delivers them to him, provided he has room in his carriage and the person offers to pay the proper charges.
(2) To carry by his ordinary route, not necessarily by the shortest, even though he is entitled to charge a mileage rate, and with reasonable diligence, i.e., without unreasonable deviation or delay.
(3) To deliver the goods to the consignee at the place designated by the consignor, unless the consignee requires delivery at another place, when he may deliver them accordingly.
(4) As held in Scothern v. South Staffordshire Railway Co. (1853), where there is a right in the consignor to change the destination during transit, the carrier must, on receiving due notice, deliver to the new destination, e.g., where an unpaid seller of goods exercises his right of stoppage in transitu. Should the carrier disobey the directions of the consignor, he will be responsible in the event of their non-delivery at the place indicated. Ordinarily, when the carrier has offered delivery of the goods and the goods are refused, his liability as a common carrier comes to an end. He then becomes only an involuntary bailee and, as such, is responsible merely for negligence, either his own or that of his servants. He cannot be compelled to accept goods for transit if his carriage is already full, or if the goods are such as he does not profess to carry; although railway companies may be compelled, under the provisions of the Railway and Canal Traffic Act, 1854, to provide facilities as mentioned above.(x)
(x) See ante, p. 211.