CH. XV. s. 2. carriage by rail from London to Liverpool, and by ship from LiverBailment for pool to Italy. But where the carrier detained goods which have Carriage (Carriers Act). not been lost, he cannot set up the Act in answer to a claim arising out of the detention. This is explained, in Miller v. Brasch, to be the effect of Hearn v. London and South Western Rail. Co. (e), which was decided on demurrer. Extent of protection. Particular descriptions of goods. Timepieces. Bills, notes, securities, writings. The result of the above decisions appears to be that the protection of the Act extends to cases of loss or injury caused by any accident or negligence, even though the acts done may technically amount to a conversion of the goods, but does not extend to cases where the carrier, or those for whom he is responsible, wilfully and purposely does any act inconsistent with the contract to carry, which occasions loss or injury. If goods be delivered to a carrier for a certain purpose, and he wilfully do something else with them, he would seem to be liable notwithstanding the statute (ƒ). We will now proceed to notice the numerous decisions as to particular descriptions of goods. Some of the titles of the articles. enumerated in the section explain themselves, so that no question can arise as to what the titles include. Such judicial decisions as have been given with reference to the others will now be noticed in the order in which the several titles occur in the section. A chronometer comes under the description of a timepiece (g). In Bernstein v. Baxendale (h) it was held that ivory, black and agate bracelets, shirt-pins, common gilt rings, brooches, tortoiseshell and pearl portmonnaies, and glass smelling-bottles, are trinkets, but German silver fuzee-boxes are not. Where a document in the form of a bill of exchange for 111. 108., accepted by the person to whom it was directed, but having no drawer, was sent by railway in a parcel directed to the person who was intended to insert his own name as drawer, and to whom the person who signed as an acceptor was indebted, and was lost, the Court of Queen's Bench held that the Carriers Act did not apply, for the document was not a bill of exchange, nor a promissory note, nor a security for money; and, though it was a writing, was of no value beyond that of the paper (i). (e) Hearn v. London and South Western Rail. Co. (1855), 10 Exch. 793. (f) See per Blackburn, J., in Morritt v. North Eastern Rail. Co. (1876), 1 Q. B. D. 308. (g) Le Conteur v. London and South Western Rail. Co. (1865), L. R., 1 Q. B. 54. (h) Bernstein v. Baxendale (1859), 6 C. B., N. S. 251, overruling Davey v. Mason (1841), Car. & M. 45, in which an eye-glass and gold chain attached were said by Lord Abinger not to be trinkets. (i) Stoessiger v. South Eastern Rail. Co. (1854), 3 E. & B. 549. Erle, J., stated that he wished to leave the ques tion open, whether, if the jury had found that the writing was of value, the finding could have been sustained. See also M'Call v. Taylor (1865), 19 C. B., N. S. 301. This decision shows that a security is an instrument which may CH. XV. s. 2. be put in suit (k). Bailment for The cases of maps are not separable from the maps them- (Carriers Act). selves (1). Maps. Prints and coloured prints have been held to be engravings (m). Engravings. A picture and its frame are considered as one article, and the Pictures. carrier is protected from liability for damage to the frame (n). The word "paintings" denotes works of art, and does not include Paintings. coloured imitations of rugs and carpets and coloured working designs, although valuable, designed by skilled persons and painted by hand, if they have no value as works of art (0). Glass includes glass of any kind or size (p). Glass. In Baxendale v. Hart (q), silk tights and silk hose; in Bernstein Silk. v. Baxendale (r), silk watchguards; in Brunt v. The Midland Rail. Co. (s)," elastic silk webbing," which is a woven fabric composed of silk, indiarubber and cotton, one-third of the material being silk; and in Flowers v. The South Eastern Rail. Co. (t), a silk dress, were held to be silks within the meaning of the Act. Furs. Hat-bodies made of fur and partly of wool are not furs (u). Where a lace corporal, or communion cloth, in a gilt frame, Lace. covered with glass, was lost, it was held that the lace and glass only, and not the frame, came within the Act (x). By the Carriers Act Amendment Act, 1865 (y), the term "lace" is to be construed as not including machine-made lace. Where the plaintiff had packed paintings in his own waggon, which was put on a railway truck, it was held that the waggon was a "parcel or package" within the meaning of the Act (2). value and The declaration of value and nature of goods must be made Declaration of whether the goods are delivered at the office of the carrier, the nature of sender's house, on the road, or anywhere else. This was held by goods. the Exchequer Chamber in Baxendale v. Hart (a). If the value and nature of the articles have been declared, and the carrier receives them without demanding any extra charge, and no (k) See also Goldsmid v. Hampton (1858), 5 C. B., N. S. 94. (1) Wyld v. Pickford (1841), 8 M. & W. 443. (m) Boys v. Pink (1838), 8 C. & P. 361. (n) Anderson v. London and North Western Rail. Co. (1870), L. R., 5 Ex. 90. (0) Woodward v. London and North Western Rail. Co. (1878), 3 Ex. D. 121. (p) Owen v. Burnett (1834), 2 Cr. & M. 353. (q) Baxendale v. Hart (1851), 6 Ex. 769, Ex. Ch. (r) Bernstein v. Baxendale (1859), 6 C. B., N. S. 251. (s) Brunt v. Midland Rail. Co. (1864), 2 H. & C. 889. In this case the Court had power to draw inferences of fact, but expressed an opinion that the question was one for the jury. (t) Flowers v. South Eastern Rail. Co. (1867), 16 L. T. 329. (u) Mayhew v. Nelson (1833), 6 C. & (x) Treadwin v. Great Eastern Rail. (z) Whaite v. Lancashire and York- CH. XV. s. 2. extra charge is paid, the carrier is not protected (b). It is not essen- Declaration need not be formal. Demand of increased charge, s. 2. Receipt to be or carrier to The 2nd section empowers the carrier to demand an increased rate of charge, upon giving public notice of it, in the following terms: "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 10l., it shall be lawful for such mail contractors, stage-coach proprietors, and other common carriers 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, warehouse, or other receiving-house where such parcels or packages are received by them for the purpose of conveyance, 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 bound by such notice, without further proof of the same having come to their knowledge." The carrier must still demand the increased charge, or he will be liable (d). By s. 3: "When the value shall have been so declared, and the increased rate of charge paid, or an engagement to pay the same shall have been accepted as herein before mentioned, the person receiving such increased rate of charge, or accepting such agreement, shall, if thereto required, sign a receipt for the package or parcel, acknowledging the same to have been insured, which receipt shall not be liable to any stamp duty; and if such receipt shall not be given lose benefit of when required, or such notice as aforesaid shall not have been affixed, the mail contractor, stage-coach proprietor or other common carrier as aforesaid, shall not have or be entitled to any benefit or advantage under this Act, but shall be liable and responsible as at the common law, and be liable to refund the increased rate of charge." this Act. Public notices not to limit liability, s. 4. By s. 4: "No public notice or declaration hereafter to be made shall be deemed or construed to limit, or in anywise affect the liability at common law of any such mail contractors, stage-coach proprietors, or other public common carriers as aforesaid, for or in respect of any articles or goods to be carried and conveyed by them, but all such mail contractors, stage-coach proprietors, or other common carriers as aforesaid, shall be liable, as at the common law, to answer for the loss of, or any injury to, any articles and goods in respect whereof they may not be entitled to the benefit of this Act, any public notice or declaration by them made and given contrary thereto, or in anywise limiting such liability, notwithstanding" (e). Every office, By s. 5: "For the purposes of this Act, every office, warehouse or receiv&c., a receiving-house (ƒ), which shall be used or appointed by any mail contractor or ing-house, s. 5. stage-coach proprietor, or other such common carrier as aforesaid, for the (b) Behrens v. Great Northern Rail. Co. (1862), 7 H. & N. 950, Ex. Ch. (c) Bradbury v. Sutton (1872), 19 W. R. 800; 21 W. R. 128, Ex. Ch.; overruling, though not expressly, a dictum of Lord Denman, C. J., in Boys v. Pink 1838), 8 C. & P. 363. (d) Behrens v. Great Northern Rail. Co. (1862), 7 H. & N. 950, Ex. Ch. (e) See Hinton v. Dibbin (1842), 2 Q. B. 646. (f) See Syms v. Chaplin (1836), 5 A. & E. 634, in which case the defendant was a coach proprietor, and an inn at which more coaches than the defendant's called was held to be a receiving-house. receiving of parcels to be conveyed as aforesaid, shall be deemed and taken to CH. XV. s. 2. be the receiving-house, warehouse or office of such mail contractor, stage- Bailment for coach proprietor or other common carrier; and that any one or more of such Carriage (Carriers Act). mail contractors, stage-coach proprietors or common carriers shall be liable to be sued by his, her or their name or names only; and that no action or suit commenced to recover damages for loss or injury to any parcel, package or person, shall abate for the want of joining any co-proprietor or co-partner in such mail, stage-coach or other public conveyance by land for hire as aforesaid." By s. 6: "Nothing in this Act contained shall extend or be construed to Special conannul or in anywise affect any special contract between such mail contractor, tracts not affected, stage-coach proprietor or common carrier and any other parties for the convey- s. 6. ance of goods and merchandise" (g). In Baxendale v. Great Eastern Rail. Co. (h) the railway com- Part carriage by sea. pany owned a railway from Harwich to London, and also owned a ship; and pictures were delivered to their agents at Rotterdam for conveyance thence to London, the bill of lading stating that the goods were "to be delivered at the port of London viâ Harwich (the act of God, &c. as also railway accidents, being excepted), and the owners being in no way liable for any of the causes above excepted." The goods were conveyed by the company's ship to Harwich, and were lost on the railway between Harwich and London. It was held that the company were protected by the Carriers Act; that the 6th section applied only to contracts the terms of which were inconsistent with the exemption claimed by the carriers under s. 1, and that the true effect of the contract by means of the bill of lading was that the goods, so far as related to the carriage from Harwich to London, were delivered to the defendants in their character of common carriers; and they were to have all the liabilities of common carriers, except those excepted in the bill of lading; and they were also entitled as common carriers to the protection from liability conferred on them by s. 1. recover back By s. 7: "Where any parcel or package shall have been delivered at any Parties ensuch office, and the value and contents declared as aforesaid, and the increased titled to rate of charges been paid, and such parcel or package shall have been lost or damages to damaged, the party entitled to recover damages in respect of such loss or increased damage shall also be entitled to recover back such increased charge so paid as charges. aforesaid." By s. 8: "Nothing in this Act shall be deemed to protect any mail con- Not to protect tractor, stage-coach proprietor, or other common carrier for hire from liability felonious acts. to answer for loss or injury to any goods or articles whatsoever arising from the felonious acts of any coachman, guard, book-keeper, porter, or other servant in his or their employ, nor to protect any such coachman, guard, (g) The question whether a carrier is not bound to carry without a special contract if the sender of the goods tender a reasonable sum for their carriage is raised but not decided in Carr v. Lancashire and Yorkshire Rail. Co. (1852), 7 Exch. 707. If this liability exists it is (h) Baxendale v. Great Eastern Rail. CH. XV. s. 2. book-keeper, or other servant from liability for any loss or injury occasioned Bailment for by his or their own personal neglect or misconduct.” Carriage (Carriers Act). Servant at receivinghouse is servant of L. & S. W. Proof of negli- sary if felony proved. Evidence of felony. Vaughton v. Rail. Co. to show felonious act of particular servant. Although not actually employed by the carrier himself, a servant employed by an agent of the carrier to receive goods at a receivinghouse is a servant "in the employ" of the carrier within the 8th section, so that the carrier is liable for the felony of such servant. So it was held in Machu v. London and South Western Rail. Co. (i), which was followed with approval in Stephens v. London and South Western Rail. Co. (k). Proof of a felony by the carrier's servants is a sufficient answer to a defence under s. 1, without proof of negligence on the part of the carrier (1). Sect. 8 has also given rise to numerous decisions (m) as to what is sufficient evidence to go to the jury of a felony having been committed by the carrier's servants. the In Vaughton v. The London and North Western Rail. Co. (n), North Western principal case, a parcel of jewellery was sent by the defendants' line from Birmingham to Liverpool, and lost. A carman employed by Not necessary the defendants' agent to deliver parcels took two parcels to an hotel, and presented his book, which mentioned three, for signature; the missing parcel was the plaintiff's. Some days afterwards a pin, which had been in the parcel, and pieces of the wood of the box, were found on a siding of the defendants, and another pin was found in the possession of one of the defendants' servants. The defendants called no witnesses, and the jury found for the plaintiff. The Court discharged a rule to enter a verdict for the defendants, holding that it was not necessary for the plaintiff to give such evidence of felony as would have sustained a criminal prosecution against any of the defendants' servants, and that the defendants might have called the suspected servants as witnesses (o). The question again arose in M'Queen v. The Great Western Rail. Co. (p), where the Court, while approving of Vaughton v. The London and North Western Rail. Co., held that the judgment of Pigott, B., in that case, which was relied on for the plaintiff, (i) Machu v. London and South Western Rail. Co. (1848), 2 Ex. 415. (k) Stephens v. London and South Western Rail. Co. (1886), 18 Q. B. D. 121, C. A. (1) Great Western Rail. Co. v. Rimmell (1856), 18 C. B. 585; Metcalfe v. London, Brighton and South Coast Rail. Co. (1858), 4 C. B., N. S. 307. (m) Boyce v. Chapman (1835), 2 Bing. N. C. 222; Great Western Rail. Co. v. Rimmell (1858), 27 L. J., C. P. 201; Metcalfe v. London, Brighton & South Coast Rail. Co. (1858), 27 L. J., C. P. 333; Kirkstall Brewery Co. v. Furness Rail. Co. (1874), L. R..9 Q. B. 468; Turner v. Great Western Rail. Co. (1877), 2 Q. B. D. 125. (n) Vaughton v. London and North Western Rail. Co. (1874), L. R., 9 Ex. 93. (0) The head-note to the report of this case in the Law Reports, L. R., 9 Ex. 93, goes further than the facts of the case warrant, and cannot now be taken as stating the law correctly. See M'Queen v. Great Western Rail. Co., post. (p) M'Queen v. Great Western Rail Co., L. R., 10 Q. B. 569 (1875); 44 L. J., Q. B. 130. r |