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such a delivery. (b) This general liability, however, may in particular instances be limited by a special contract between the parties, or, as it should seem, by some local custom or usage of trade. (c)
418. If a company take charge of goods directed to a particular place, and do not by positive agreement limit their responsibility to a part only of the distance, that is primâ facie evidence of an undertaking to carry them to the place to which they are directed, even although that place avowedly be beyond the known limits of the company's business as carriers. (d)
419. 4thly. Of the effect of special contracts, or particular statutory enactments, in qualifying the above liabilities, &c. of a railway company. And 1st, of special contracts. A railway company may, it is conceived, like any other common carrier, insist on special and qualified terms on receiving goods for the purpose of carriage; (e) and in this case, their liability will of course be measured by the particular terms of the contract. The usual practice of a railway company in this respect is, upon the receipt of goods, to deliver to the consignee a ticket explaining the terms upon which they are willing to
(b) Judgment of Lord Denman, C. J., in Syms v. Chaplin, 5 A. & E. 642; Hyde v. Trent and Mersey Navigation Company, 5 T. R. 389, by three judges, Lord Kenyon, C. J., dissenting; Golden v. Manning, 3 Wils. 429; Storr v. Crowley, M'Clel. &
(c) Storey on Bailments, sects. 540, 541, 543.
(d) Muschamp v. Lancaster and Preston Junction Railway Company, 2 Railw. Cas. 607; S. C. 8 M. & W. 421.
(e) See argument of counsel in Pickford v. Grand Junction Railway Company, 10 M. & W. 399.
accept them. (ƒ) Proof of the delivery on the one side and the acceptance on the other of such a ticket would seem sufficient to constitute a special contract. (f) If there is no proof of the production and delivery of the ticket to the other party, the ground of exemption fails, and the company consequently must be taken to stand on the ordinary footing of carriers at common law. (f) But the company cannot, it seems, by any special agreement so limit their responsibility as to evade altogether the salutary policy of the common law. (g) They
(f) Palmer v. The Grand Junction Railway Company, 4 M. & W. 752.
(g) See Report of Officers of Railway Department of Board of Trade, (1842, p. xix.) which contains the following remarks upon this point:
The carriers' act distinctly provides that no general notice shall limit the liability of common carriers with regard to objects other than those enumerated in the act, and the proper rule appears to be, that although railway companies may refuse to take charge of passenger's luggage, unless such reasonable regulations as they find necessary to lay down are complied with, yet that, if they do actually take charge of such luggage, they incur the ordinary common law liability of carriers, subject only to the limitations of the carriers' act.
"The same principles apply to regulations limiting the company's liability as regards carriages and horses. This is sometimes done by refusing to carry horses or carriages unless the owner will sign a special agreement exempting the company from all liability. This is clearly illegal as regards the general liability, railway companies being bound like other carriers by the common law to undertake the carriage of all articles offered to them, unless there is some reasonable ground for refusal, and it is only allowable to the extent of guarding against any extraordinary risk arising from the nature or value of the object, unless a proper insurance is paid. In the case of carriages it is generally admitted that there is no ground for charging any insu
cannot therefore by any special terms discharge themselves of all their duties as carriers in respect of goods which they receive for the purpose of conveyance. (i) They must still, it is conceived, be understood as contracting for the personal care and attention of their agents and servants about their carriage, and for delivering them at their proper place of destination. If therefore the goods are sent by a different conveyance, or in a different manner from that implied by the undertaking of the company, the company, it is conceived, would be liable for the loss, although otherwise they might have been exonerated by the terms of a special contract. And the same where the goods are carried by the rance; but in the case of horses, it appears fair that the company should not be responsible for accidents arising from the viciousness or restiveness of the animal, and that they should not be responsible for more than a fair average value, unless the horse has been entered as of extraordinary value, and a reasonable insurance paid."
That the company would not be held liable for accidents to horses arising from the animal's own viciousness, &c. see post, p. 315, n. (y).
The report goes on to remark in a subsequent part (p. xx), that "in two instances representations had been made to the department of the Board of Trade to the effect that railway companies were in the habit of enforcing an illegal regulation, requiring parties who sent carriages or horses by the railway to sign a special agreement, exempting the company from all liability for loss, however occasioned. Letters were written to the companies pointing out the illegality of such a course, excepting so far as might be necessary to protect themselves against extraordinary risk, arising from the nature or value of the object, and the result was, that the regulation as regarded carriages was entirely withdrawn, and as regarded horses modified, in conformity with the principles above stated.”
(i) Storey on Bailments, sect. 549.
company beyond their place of destination, and are lost. And generally a special contract cannot operate to exempt the company from responsibility in cases of gross negligence and fraud. (k)
420. Although, as we have just seen, it is competent for the company to insist on special terms on receiving goods for carriage, yet those terms must be reasonable, and semble, should not go beyond what is necessary to guard them against extraordinary risks incidental to the carriage of particular descriptions of goods, or else to secure them the payment of a due insurance for the same. It would therefore, it is conceived, be illegal for a railway company to require parties sending any particular description of articles by the railway, such, for instance, as carriages or horses, to sign a special agreement exempting the company from all liability for loss however occasioned.
421. It is proposed in the next place to consider the effect of the carriers' act in qualifying the position of a railway company as common carriers. As a railway company, when they take goods for the purpose of conveyance, thereby place themselves on the footing of any other common carrier, it seems clear that they must, in all that respects their character of carriers, be within the scope of the act. To consider the effect then of the statute more at large, let us consider, (1st,) the duties which it imposes on each party to the contract; (2ndly,) on whom it is obligatory; (3rdly,) to what articles the act applies; (4thly,) the liability to which the company as carriers remain subject, notwithstanding the act; and (lastly,) the general results of the act.
(k) Storey on Bailments, sects. 549, 561.
422. (1st.) Of the duties imposed on each party by the statute. The company must take care to affix in all their offices, warehouses and receiving houses a proper notice within the meaning of the act, notifying the increased rate of charge which they demand for all goods comprised in the act. (1) The company are also bound, if required, to give a receipt for parcels, acknowledging them to have been insured.(m) To constitute an office, receiving house, &c., within the meaning of the above provision, no regular or formal appointment is necessary; but any place is to be deemed such where the company's trains are in the habit of stopping and taking in parcels. (n) On the other hand, the owner of the goods is bound, at the time of delivering them at the company's offices, &c., provided, that is to say, a proper notice is affixed there, to declare the value of the goods, and pay or enter into an engagement to pay the increased charge required by the company for insuring them. (o) Though the circumstances of the case are such as show an actual or presumed knowledge on the part of the company's servants of the contents of a parcel, yet this is no equivalent for what is required by the act: but there must be an express formal declaration of the value. (p)
423. (2ndly.) On whom the statute is obligatory. Provided the company comply with the statute, by affixing a proper notice in their offices, &c. the sta
(1) 11 Geo. 4 and 1 Will. 4, c. 68, sect. 2.
(m) Ibid. sect. 3.
(n) See Syms v. Chaplin, 5 A. & E. 642.