Evidence of the Contract.

563

as to the effect of conditions on the back of a ticket, Harris v. Gt. W. Ry. Co., 1 Q. B. D. 515; Parker v. S. E. Ry. Co., 2 C. P. D. 416, C. A., cited post, p. 584. Where goods are sent by the defendants, "the company accepting no liability," the stipulation does not exempt the company from liability for a loss arising wholly from their own negligence. Martin v. Gt. Indian Peninsular Ry. Co., L. R., 3 Ex. 9. See further, ante, p. 426. But a condition to relieve the carrier "from all liability for loss or damage by delay in transit, or from whatever other cause arising," protects him against the consequences of his servant's negligence, including damage from loss of market. Brown v. Manchester, &c. Ry. Co., 8 Ap. Ca. 703, D. P. And where a passenger, by steamer, takes luggage subject to the further condition, that the ship will not be accountable unless bills of lading had been signed therefor, and the luggage is lost through the negligence of the captain, the plaintiff cannot recover unless the condition has been complied with. Wilton v. Atlantic Mail, &c. Co., 10 C. B., N. S. 453; 30 L. J., C. P. 369. See also Peninsular & Oriental S. N. Co. v. Shand, 3 Moo. P. C., N. S. 272. A contract that goods shall be carried "at owner's risk," ride post, p. 572, does not exempt the carrier from liability in respect of delay. Robinson v. Gt. W. Ry. Co., H. & R. 97; 35 L. J., C. P. 125 ; D'Are v. L. & N. W. Ry. Co., L. R., 9 C. P. 325. The general notice affixed in the offices of carriers, or advertised in newspapers, by which carriers were accustomed to limit, or attempt to limit, their common law liability, are deprived of that effect, so far as regards all common carriers by land, by the Carriers Act, s. 4, post, p. 567. And it would seem that even if a knowledge of such a public notice, could be brought home to the customer, it would not now protect the carrier. There ought to be proof of a specific agreement between the carrier, or his agent, and the individual tendering the goods. The case of special contracts with railway and canal companies is now provided for by stat. 17 & 18 Viet. c. 31, s. 7, cited post, p. 570.

In the Railway Clauses Consolidation Act, 8 & 9 Vict. c. 20, and in most of the special acts constituting railway companies, there are clauses enabling the company to determine upon "reasonable charges" in respect of the carriage of passengers and goods; and it is generally provided, among other things, by what are known as "Lord Shaftesbury's Clauses," that these charges shall also be "equal," i.e., that all persons and classes of goods shall, under like circumstances, be treated alike as to charges. When the question of reasonableness comes in issue at Nisi Prius, as in an action for refusing to carry, &c., it is one for the jury, and is not a question of law. And where the question of "equality," involves an inquiry into the greater or less risk, incurred by the company, in the conveyance of certain parcels as compared with others, it is for the jury. Crouch v. Gt. N. Ry. Co., 11 Exch. 742; L. R., 25 Ex. 137. Under these acts it has been held, that a railway company cannot treat other carriers, on their rail, on a different footing from other customers, and therefore that they cannot charge such carriers on a higher scale for "packed parcels," that is, parcels enclosing smaller parcels, collected by the consigning carrier, from different persons, and consigned to a single agent for distribution among other persons. Parker v. Gt. W. Ry. Co., 7 M. & Gr. 253 ; Crouch v. Gt. N. Ry. Co., 9 Exch. 556 ; 23 L. J., Ex. 148; Id. v. Id., 11 Exch. 742; 25 L. J., Ex. 137; Piddington v. S. E. Ry. Co., 5 C. B., N. S. 111; 27 L. J., C. P. 295; Sutton v. Gt. W. Ry. Co., 3 H. & C. 800; 35 L. J., Ex. 18; L. R., 4 H. L. 226; Baxendale v. L. & S. W. Ry. Co., L. R., 1 Ex. 139. But if the packed parcels are separately directed, so as to give more trouble on delivery, a higher charge is justifiable. Baxendale v. E. Counties Ry. Co., 4 C. B., N. S. 63; 27 L. J., C. P. 137. A railway company charged a through rate, including collection and delivery as well as conveyance, which rate was charged whether the goods were

collected and delivered by the company or not. They charged the plaintiff, who collected and delivered the goods, the full amount, as if they had done so; it was held that he could recover such overcharge in an action for money had and received. Barendale v. Gt. IV. Ry. Co., 14 Č. B., N. S. 1; 32 L. J., C. P. 225; 16 C. B., N. S. 137; 33 L. J., C. P. 197, Ex. Ch. ; see Pickford v. Grand Junction Ry. Co., 10 M. & W. 399 ; Parker v. Gt. W. Ry. Co., 7 M. & Gr. 253; Garton v. Bristol & Exeter Ry. Co., 1 B. & S. 112; 30 L. J., Q. B. 273; Baxendale v. Gt. IV. Ry. Co., 5 C. B., N. S. 309; 28 L. J., C. P. 81; Branley v. S. E. Ry. Co., 12 C. B., N. S. 63; 31 L. J., C. P. 286 ; Baxendule v. L. & S. W. Ry. Co., L. R., 1 Ex. 137; and Evershed v. L. & N. W. Rg. Co., 2 Q. B. D. 254; 3 Q. B. D. 134, C. A. ; 3 Ap. Ca. 1029, D. P. The special acts of railway companies generally authorize higher charges for small parcels sent in separate packages, and sometimes provide that large aggregate quantities of goods sent, in several small parcels at the same time, shall be subject to a tonnage charge on the aggregate, and not to the higher rate, as upon small separate packages. See Parker v. Gt. W. Ry. Co., 6 E. & B. 77; 25 L. J., Q. B. 209. But the decisions on all these acts would be out of place in a work of this kind, and are therefore omitted. In order to show

a breach by the railway company of the equality clauses, it may be proved that it was well known in the trade and, inferentially, to the company, that mercantile houses were in the habit of despatching packed parcels by the company, and that the company charged less for these parcels than for the packed parcels of the plaintiff, a carrier. Sutton v. Gt. W. Ry. Co., ante, p. 563. Evidence that the agent and traffic manager of the company were present at a reference between another carrier and the defendants, where facts of this sort were proved in their hearing, is also admissible to prove that the defendants knew the usage of the mercantile houses above stated, and knowingly charged the plaintiff a higher rate than others for the carriage of like packed parcels. S. C.

By the Regulation of Railways Act, 1868, 31 & 32 Vict. c. 119, s. 16, equality is secured to all persons using steamers worked by railway companies; and by sect. 17 railway companies are now bound, on application, to deliver particulars of the charge for the conveyance of goods on their railway, distinguishing how much is for conveyance and how much for loading and other expenses. Vide post, p. 574.

When a railway company undertakes to carry goods, from a station on their railway, to a place on another distinct railway, with which it communicates, this is evidence of a contract with them for the whole distance, and the other railway company will be regarded as their agents, and not as contracting with their original bailor. Muschamp v. Lancaster, &c. Ry. Co., 8 M. & W. 421; Webber v. Gt. W. Ry. Co., 3 H. & C. 771; 34 L. J., Ex. 170; 4 H. & C. 582, Ex. Ch. And the same position obtains in the case of passengers. Vide post, p. 580. But the first railway Company might, by a special contract, evidenced by the terms of the receipt note or otherwise, restrain their own liability, as carriers, to the limits of their own rail, where they expressly act as agents for the other company; Fowles v. Gt. W. Ry. Co., 7 Exch. 699; 22 L. J., Ex. 76; such a condition embodied in a notice, signed by the consignor, has been held just and reasonable within the meaning of the Railway and Canal Traffic Act, and, therefore, to protect the company (assuming they would be otherwise liable) beyond their own line; Aldridge v. Gt. W. Ry. Co., 15 C. B., N. S. 582 ; 33 L. J., C. P. 161 ; and that that act does not apply at all to the carriage of goods over lines not worked by the company. Zunz v. S. E. Ry. Co., L. R., 4 Q. B. 539. Where X. Railway Co. undertook to carry goods over X. and Y. railways, which were damaged on Y. railway, and the contract with X. excluded liability for damage done on Y., it was held that company Y. could not be sued for

Evidence of the Contract.

565 it, for there was no contract with Y. Co.con v. Gt. W. Ry. Co., 5 H. & N. 274; 29 L. J., Ex. 165. Plaintiff, a passenger, took a ticket from a place on railway X., to a place on railway Y., in the Railway Act for X. the company was made not liable for ordinary passengers' luggage; on railway Y. there was no such provision; plaintiff's luggage was lost on railway Y.; it was held that the Y. company was not liable, the contract being with X.; and, semble, X. company was not liable by reason of their statutable exemption. Mytton v. Midland Ry. Co., 4 H. & N. 615; 28 L. J., Ex. 385; see Bristol & Exeter Ry. Co. v. Collins, 7 H. L. C. 194; 29 L. J., Ex. 41. A receipt note by railway A. for goods "to be sent" to a place on another railway and there" delivered" for one entire sum, is one entire contract with railway A. for the whole distance, and a subsequent company cannot be sued for loss on their railway. S. C. But the effect of such special acceptances, and of the conditions contained in them, when the contract involves an undertaking to cause goods to be conveyed over successive portions of distinct railways forming a continuous line, has been the subject of much difference of opinion among the judges; and it cannot be taken as yet settled how far conditions or limitations inserted in the receipt note, and therein confined to he carriage of the goods while on the railway of the first company, can be considered as accompanying the goods throughout the whole distance ;—or, whether the company is to be considered as carrying with the ordinary common law liability of carriers when beyond its own limits;-or, on the conditions and limitations which may be legally in force on each successive railway. The principle to be adduced from the above cases is, that in respect of any cause of action, arising out of the contract of carriage of goods, the contracting party can alone sue the carrier. The owner of the goods however, although not a party to the contract, may sue for a tort, which would have been actionable, apart from the terms of the contract. Martin v. Gt. Indian Peninsular Ry. Co., 3 Ex. 9, 14, per Bramwell & Channell, BB. As to the rules applicable to passengers and their luggage, vile post, p. 581. Where a railway company A., contract to carry over their own line, and that of another company, B., and enter into such contract, as agents for the company B., the company B. may be sued for an accident on their line. Gill v. Manchester, &c. Ry. Co., L. R., 8 Q. B. 186. Where there has been a general acceptance by company A. to convey goods over another railway B. to C., the bailor may countermand the bailment while in the hands of company B., and, if the goods are lost in consequence of the inattention to the countermand and delivery at C., he may sue A. for the loss. Scothorn v. S. Staffordshire Ry. Co., 8 Exch. 341; 22 L. J., Ex. 121. The plaintiff' sent goods to a carrier, X., to be carried from A. to D. by three independent carriers, X., Y., Z.; there being an arrangement between X., Y., Z. that X. should carry from A. to B., Y. from B. to C., and Z. from C. to D.; X. received the freight for the whole journey, and paid over to Y. and Z. their proportion, after notice that the goods were lost before arriving at B.: held, that X. was not liable, in an action for money had and received, to repay the sums he had so paid over. Greeves v. W. India, &c. S. Ship Co., 20 L. T., N. S. 912, T. T. 1869, Ex. Ch., ex relatione amici, revers. S. C. in Q. B.

A railway company is liable on its contract, whether the transit be over other railways, or partly by sea, or partly by coach, and whether payment for the whole be before or after delivery to the consignee; and where a railway company, receives a parcel directed to a place beyond its line, without objection or special contract, there is an implied contract of carriage over the entire distance, although the consignor may have pointed out a route, different from the one usually adopted by the company. Wilby v. W. Cornwall Ry. Co., 2 H. & N. 703; 27 L. J., Ex. 181. A condition that the

company will not be responsible for loss or injury in receiving, &c., live stock, if occasioned by the restiveness of the animals, does not exonerate them from injury proximately caused through the negligence of the company. Gill v. Manchester &c. Ry. Co., ante, p. 565.

When the carrier's receipt for the goods is offered in evidence in order to prove the contract, the necessity for an agreement stamp depends on the amount payable for the carriage, and not on the value of the goods; Latham v. Rutley, Ry. & M. 13; if the sum payable amount to 5l., a stamp is now required, vide ante, p. 221. The receipt in the case of an inland carrier is exempt from duty as a delivery order, or warrant for goods, vide ante, p. 239, but, where the goods are exported or carried coastwise, it becomes a bill of lading, and must be stamped as such, vide ante, p. 239. A receipt under the Carriers Act, s. 3, post, p. 567, is exempt from duty.

Though a cab driver is not a common carrier, yet if charged on an implied contract to carry a passenger's luggage, "safely and securely," it is no variance; for this shall be taken to mean such obligation to use ordinary care as arises out of the relation between a bailee for him and his bailor, and not the mere extended liability of a common carrier. Ross v. Hill, 2 C. B. 877. As to the liability of the proprietor of a metropolitan cab for a loss occasioned by the driver, see Powles v. Hider, 6 E. & B. 207; 25 L. J., Q. B. 331; and cases cited post, pp. 682, 683. A carrier, even without reward, is liable for gross neglect. Beauchamp v. Powley, 1 M. & Rob. 38.

Where the action is for refusing to carry, the plaintiff need not aver or prove a strict tender of the fare; it is enough that he was ready to pay. Pickford v. Gd. Junction Ry. Co., 8 M. & W. 372. But where the carrier has limited his liability unless a certain charge be paid, payment or tender of that charged must be proved. Wyld v. Pickford, Id. 443.

A contract to undertake sea risk for additional freight or otherwise, is, under 30 & 31 Vict. c. 23, s. 12, ante, p. 248, a contract for sea insurance, and must comply with the stamp and other provisions of that statute, vide ante, p. 247, et seq.

Carriers Act, 11 Geo. 4 & 1 Will. 4, c. 68.] This act and the acts next following (pp. 570,573, 575) govern almost all the cases which now come before the courts, so far as regards the liability of carriers, by land or by canal navigation, and it has therefore been thought superfluous to insert the numerous cases decided before the passing of them upon the efficacy of general notices issued by such carriers in order to restrain liability. For the same reason many of the cases before the Railway and Canal Traffic Act, in which the special contracts of railway companies have been held sufficient to exempt them from the consequences of their own negligence, are omitted. See Carr v. Lancashire, &c. Ry. Co., 7 Exch. 707; Austin v. Manchester, &c. Ry. Co., 10 C. B. 454; 21 L. J., C. P. 179, and other cases.

By stat. 11 Geo. 4 & 1 Will. 4, c. 68, s. 1,'no common carrier by land for hire shall be liable for the loss of or injury to any articles 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, 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 in a manufactured or unmanufactured state, and whether wrought up or not wrought up with other materials, furs, or lace (not machine-made, 28 & 29 Vict. c. 94), or any of them,-contained in any parcel which shall have been delivered, either

Carriers Act.

567 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 articles contained in such parcel or package shall exceed 101.-unless at the time of the delivery thereof at the office, warehouse, or receiving-house of such common carrier, or to his book-keeper, coachman, or other servant, for the purpose of being carried or of accompanying the person of any passenger, the value and nature of such articles shall have been declared by the person sending or delivering the same, and the increased charge hereinafter mentioned, or any engagement to pay the same, be accepted by the person receiving such parcel or package.

Sect. 2 authorises the demand of an increased rate of charge for such articles, notified by a notice publicly affixed in the carrier's office, which all persons sending parcels are to be bound by without further proof of the same having come to their knowledge.

Sect. 3 provides "that 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 when required, or such notice as aforesaid shall not have been affixed, the" carrier. "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."

By sect. 4, no public notice or declaration heretofore made, or hereafter to be made, shall be deemed or construed to limit or in anywise affect the liability at common law of any such public common carriers in respect of any articles or goods to be carried by them; but all such common carriers shall be liable, as at the common law, to answer for the loss of or injury to any articles and goods, in respect whereof, they may not be entitled to the benefit of the act, any public notice or declaration by them made and given contrary thereto, or in any wise limiting such liability, notwithstanding.

By sect. 5, for the purposes of the act, every office, warehouse, or receiving house, used or appointed by such common carrier for receiving parcels, shall be taken to be the receiving house or office of such carrier; and any one or more carriers may be sued without joining their co-proprietors.

By sect. 6, nothing in the act shall be construed to annul or affect any special contract between such common carrier and any other parties for the conveyance of goods and merchandises.

By sect. 7, a person who has insured, as above, may recover back the extra charge as well as the value of the goods lost or damaged.

By sect. 8, nothing in the act shall be deemed to protect any common carrier for hire, from liability to answer for loss or injury, to any goods whatsoever arising from the felonious acts of any coachman, guard, book-keeper, porter, or other servant in his employ, nor to protect any such coachman, &c., from liability for any loss or injury, occasioned by his own personal neglect or misconduct.

By sect. 9, common carriers shall be liable to pay only the actual value, as proved, not exceeding the declared value, together with the increased charges paid by the owner.

Where a carrier makes one contract to carry by land and sea, and goods are lost on the land journey, the carrier is within the protection of the act. Pianciani v. L. & S. W. Ry. Co., 18 C. B. 226; Le Conteur v. Id., L. R., 1 Q. B. 54; Barendale v. Gt. E. Ry. Co., L. R., 4 Q. B. 244, Ex. Ch.

Under sect. 1, articles more for ornament, than use, have been considered