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Further, the carrier may, under the Nitro-Glycerine Act, (y) refuse to accept goods of a nature such as to subject him to risks of an extraordinary kind; and, if a consignor delivers goods of a dangerous character to a carrier, who is ignorant of their nature, he is liable for any damage that ensues to the carrier. Thus, in Bamford v. Goole and Sheffield Transport Co. (1910), the defendants, who were forwarding agents, delivered to a common carrier casks with the description of "general cargo " but which actually contained, as defendants knew, ferro-silicon, and this during the transit emitted poisonous gases which caused the death of the carrier. Evidence showed that such material was liable to be dangerous under certain conditions, but that neither the defendants nor the carrier knew the fact and, therefore, defendants were not guilty of negligence. Defendants were, however, held liable in damages for having caused the death of the carrier.
Ordinarily, the person to sue the carrier is the consignee, the consignor being but the agent to retain the carrier on his behalf; but, where no property in the goods has been acquired by the consignee, the consignor is the proper person to sue.
Passengers' Luggage.-It is the duty of a railway company to carry passengers' personal luggage up to a certain weight free of charge; and in respect of this the company is a common carrier and an insurer of its safety; and it would appear, too, that the company has the same liability in respect of personal luggage conveyed in the carriage with the passenger, save that if the passenger's interference with the company's exclusive control of his luggage contributes to its loss or injury the company would not be liable. So that the company will be liable where, as in Great Western Railway Co. v. Bunch (1888), a passenger arrived at the station a reasonable time before the time of departure of the train and, leaving his luggage with a porter, he went to another part of the station for a purpose necessary for travelling, and the luggage was lost. But where the luggage is left in the charge of a porter under such circumstances as to make him the agent of the passenger the company will not be liable. In Welch v. London & North Western Railway Co. (1885), where the passenger missed his train and, intending to travel by the next train, left his luggage in charge of a porter and, during the interval, went to an hotel and the luggage was lost, it was held that the company were not liable. Where the goods carried by a passenger do not fall within the definition of passenger's luggage, the company will be liable only as a voluntary bailee. A voluntary bailee in this respect is one who does the act of carrying without reward. He is, therefore, only liable for gross (y) Carriage and Deposit of Dangerous Goods Act, 1866.
negligence. On the other hand, where the luggage is carried for a charge, the company will be an ordinary bailee and therefore liable for ordinary negligence. There are many conflicting decisions as to what is or is not passengers' personal luggage, but it would appear to mean not only wearing apparel, but also all things which for convenience a passenger would, in the circumstances of the case, carry with him. Where goods are deposited in a cloak-room, the railway company will be liable as an ordinary bailee, subject to any notices limiting its liability.
Termination of Liability.
The liability of the company, in respect of any goods, terminates on the goods being delivered to the owner or his agent; and one of the porters of the company may be such an agent. In Hodkinson v. London & North Western Railway (1885), a passenger, on arriving at her destination, instructed a porter to remove her luggage from the van and take care of it as she was walking to her home and would send for the luggage. The luggage was lost and it was held that the company was not liable.
Where goods are addressed to a consignee at a certain station "to be called for," the company's liability as a common carrier ceases after the goods have arrived at the station, and they are then merely bailees for hire, and liable only in the event of negligence; but the general rule that applies to all goods carried by companies is that they must keep them for a reasonable time at their risk as common carriers, so that the consignee may have a chance to claim them.
A railway company is bound by what are known as equality clauses" in the Railway Clauses Consolidation Act, 1845, and in the special Acts relating to the company. By these clauses the company has a duty to charge to all persons equally in respect of carriage of goods, and the Railway and Canal Commission is empowered, inter alia, to restrain any railway or canal company from giving undue preference to any particular persons or any particular description of traffic.
At common law, shipowners were liable for goods carried on a voyage to the same extent as carriers by land; but special contracts in the form of either a charter party or a bill of lading were made between the consignor and the shipowner exonerating the latter from the liability as a common carrier and from liability resulting from perils of the sea and other accidents. By the Merchant Shipping Act, 1894, it is now provided that
(1) The owner of a British ship is not liable for any loss or damage to goods on board caused by fire happening without his actual fault or privity.
(2) Nor for loss or damage (without his actual fault or privity) caused by robbery, embezzlement, or theft, of any gold, silver, diamonds, jewels or precious stones, unless the nature and value thereof are at the time of shipment declared in writing to the shipowner or master.
(3) Where loss or damage has occurred without the actual fault or privity of the owner of a British or foreign ship, he is not liable in respect of personal injuries (either alone or with loss to ship or goods) to an aggregate amount beyond £15 per ton of the ship's tonnage, nor in respect of injuries to ship or goods either on land or water (whether there be in addition personal injuries or not) to an aggregate amount beyond £8 per ton. But it seems that this provision may be excluded by express contract in the Bill of Lading or Charter Party. Affreightment is the name given to a contract which has for its object the carriage of goods by sea for a price which is called "freight." It is found in two forms, viz., Charter Party and Bill of Lading.
Where a shipowner lets the ship, or some part of it, for the conveyance of goods for a particular voyage, or for a specified period, to a person (who is termed the charterer) for a sum of money which that person undertakes to pay as freight for their carriage, such an agreement is known as a charter party. It may or may not be under seal, and in either case it must be stamped, which may be done by means of a 6d. adhesive stamp, if the contract is not sealed, provided that such stamp is cancelled by the person who signs the agreement last and thus makes it of binding effect. Generally, the ship remains in the possession of the owner, the charterer acquiring only the right to put his goods on the vessel to have them carried, but the vessel may be altogether in the power of the charterer for a specific voyage or time.
Form of Charter Party. Certain trades have forms peculiar to themselves, but there are stipulations that are usually found in all charter parties. The following is a digest of a typical charter party
It is this day mutually agreed between A. B., agents for owners of the good ship or vessel called . . . . . . of the burden of . tons register measurement or thereabouts, whereof C. D. is master, now in the port of . . . . . . and E. F'. merchant of . . . the said ship being tight, staunch and strong, and every way fitted
for the voyage shall with all convenient speed proceed to
tons in or so near
or so near thereto as she may safely get and there load a full and
if the ship is not sooner
like days for all
days on demurrage over and above
purposes abroad, and
The act of God, the King's enemies, restraint of Princes and Rulers, fire and all and every other dangers and accidents of the seas, rivers, and navigation, of what nature and kind soever during the said voyage, being always excepted. Penalty for non-performance of this agreement £ .
Then follow the signatures of the parties and the attestation of one or more witnesses.
The "running days," or "lay days" as they are more generally called, mentioned in the charter party, are the days allowed for loading and unloading the goods carried in the ship. If this stipulated time should be exceeded the charterer has to pay a sum known as "demurrage" for every day in excess.
The above example of a charter party does not cover all possible stipulations that may be included. There may be many others. For instance, the sections relating to limitation of liability may be extended to contain many other matters than those mentioned above. It is important in this connection to note that the clause states "dangers and accidents of the seas." This means any peril occasioned without the negligence of the shipowner by happenings that could not have been foreseen, i.e., of an unexpected nature.
Thus, in Hamilton v. Pandorf (1887), injury was caused to a cargo of rice on a ship by rats having gnawed a hole in a pipe, whereby sea water damaged the rice without neglect of the shipowner or his servants. It was held that the damage was within the exception and the shipowner was not liable. But had there been direct injury to the cargo by rats, that would not have been an excepted peril.
The phrase "Charterer's liability under this charter party to cease on the cargo being loaded" is termed the cesser clause, as under it the intention is that the shipowner, having a lien on the cargo when loaded for freight and demurrage, there is no need to continue the charterer's liability beyond that time. But whether or not he will still remain liable will depend on all the circumstances, e.g., in Schmaltz v. Avery (1851), PATTESON J.
said, "There is nothing in the argument that the plaintiff's responsibility is expressly made to cease as soon as the cargo is shipped,' for that limitation plainly applies only to his character as agent, and, being real principal, his responsibility would unquestionably continue after the cargo was shipped." But in Oglesby v. Yglesias (1858) it was held that the agent, though personally liable on the charter, was freed by such a clause from all liability after shipping of cargo, and this seems the better decision to follow.
Conditions and Warranties.-The various stipulations in the charter party may be either conditions or warranties, according to circumstances. In a charter party, the non-fulfilment of a condition entitles the charterer to repudiate the contract, whereas in the case of a warranty it would only entitle him to sue for damages and not to repudiate the contract. The phrase in the charter party that the ship is "Now at . . . . " is usually regarded as a condition precedent, as it is a very important statement in inducing the charterer to enter into the contract. Most of the other statements are warranties.
Implied Warranties.-Apart from express warranties there are some which are implied, in the absence of any expression. These implied warranties are
(1) Seaworthiness and fitness to receive cargo. The implication is that the ship is fit to undertake the particular voyage contemplated and to encounter the ordinary perils of navigation. The implied warranty ceases as to seaworthiness at the time of sailing, and as to fitness at the time of loading. There is no warranty that the ship will remain seaworthy or fit during the voyage, but should a ship prove unseaworthy very shortly after sailing it will be necessary, as in Ajum Goolam Hossen & Co. v. Union Marine Insurance Co. (1901), for the shipowner to show that the unseaworthiness resulted from causes arising after the voyage had commenced.
(2) That the voyage will be commenced and completed within a reasonable time. In Dunn v. Bucknall Bros. (1902), the shipowner allowed goods destined for an alien enemy to be loaded on his ship, and, as a result, the ship was seized and detained by the naval authorities. The plaintiff brought an action for damage caused by the delay in delivering his goods, which were being carried on the ship, and it was held that the shipowner was liable.
(3) That there shall not be unnecessary deviation. Deviation is any departure from the usual course of navigation, by reason of which the ship may be exposed to more than