Liability as Carriers of Goods-Packed Parcels. 417 to the station than they received them from their own receiving- 8 & 9 VICT. C. 20. houses. The company acted as carters, and received goods from their own carts as late as 9 P.M., whereas they required complainants to deliver theirs before 6.30 P.M. Held, following Garton v. Bristol and Exeter Railway Co., 6 C. B. N. S. 639, that the complainants were entitled to an injunction: (Baxendale v. London and SouthWestern Railway Co., 12 C. B. N. S. 758.) This case may, however, be now considered to be overruled by In re Palmer v. London and South-Western Railway Co., L. R. 1 C. P. 588. Palmer complained that the London and South-Western Railway Co. refused to admit his vans into their station after 6.30 P.M., but admitted their own vans and those of Baxendale & Co. at a later hour. It was shown that the company acted bonâ fide, and that the goods they received from their own carts after 6.30 P.M. were sorted, weighed, and invoiced by their servants at the various collectinghouses, so that they were ready for immediate forwarding when they arrived at the station. The company received goods from Baxendale & Co. after 6.30 P.M. in consequence of the injunction mentioned above. Held, per Erle, C. J., and Smith, J., that the Whether Court is decisions of the Court under the Railway and Canal Act being sub- bound by preject to no review, and depending upon special facts in each case, are under the Rail not binding in the same way that precedents of law are, and that way and Canal the injunction in Baxendale v. London and South-Western Railway Co. ought not to have been granted. Held, per Willes and Keating, J.J., that the above cases were binding precedents, and were rightly decided. The Court being equally divided, the rule dropped. vious decisions Traffic Act. A long series of decisions, commencing with the case of Pickford Packed parcels. v. The Grand Junction Railway Co., (10 M. & W. 399,) decided in the year 1842, and continuing down to the case of Baxendale v. London and South-Western Railway Co., (L. R. 1 Ex. 137,) in 1866, have fully established that a railway company is not justified in charg ing carriers higher rates for packed parcels than it would charge an ordinary customer for a package of the same weight. In Pickford v. Grand Junction Railway Co., (10 M. & W. 399,) the company's list of rates was divided into seven classes, the lowest being 16s, a ton, and the highest 60s.; but for boxes, bales, and hampers, and other packages, when they contained parcels under 112 lbs. weight each, directed, intended, or consigned for different persons, they charged 1d. per lb. weight. Held that this last was not a reasonable charge in the case of a package above 100 lbs. weight made up by a carrier, and directed to one person. Parke, B., said perhaps some small additional sum might be added to meet the liability of loss, and to defend separate actions of trover by the different owners of the inclosed parcels. But in the next case on this question, viz., Crouch v. Great Northern Railway Co., (11 Ex. 742,) Martin, B., in a learned and elaborate judgment, lays it down that an action of trover would not lie, or if it would, at the suit of no one but the sender of the package. Cockburn, C. J., in Garton v. Great Western Railway Co., (6 C. B. N. S. 639,) said, "I must confess I have always felt that the packed parcel system operates hardly upon the railway;" and Erle, C. J., in disseuting from the other members of the Exchequer Chamber in the case of Sutton v. Great- Western Railway, (3 H. &. C. 800,) 8 & 9 VICT. C. 20. contended strongly that the railway company were justified in charging packed parcels extra. In that case, however, Cockburn, C. J., Byles, Blackburn, Keating, Mellor, and Shee, J.J., supported the ruling of Martin, B., to which exception had been taken, so that the verdict in favour of the plaintiff for the amount he had paid in excess of the ordinary rate stood. Sutton subsequently applied to the Court of Exchequer for an injunction under the C. L. P. Act, 1854, ss. 79 and 82, to restrain the company from charging the petitioner for the carriage of his goods, otherwise than equally with all other persons and after the same rate, in respect of goods of the like description under the like circumstances. The injunction was refused, the Court holding that the act was not intended to apply to such a case: (4 H. &. C. 325.) It is not easy to see why the injunc tion was sought from the Exchequer under the C. L. P. Act, instead of applying to the Court of Common Pleas under the Railway and Canal Traffic Act. Regulations of 1868. The last case upon the packed parcels dispute is that of Baxendale v. London and South-Western Railway, (4 H. & C. 133; L. R. 1 Ex. 137.) The defendants were in the habit of charging to the public on any consignment of goods made to one person, though consisting of several distinct parcels, a tonnage rate on the aggregate weight. The plaintiff sent by Deptford Railway a package of goods consisting of a number of small parcels, the whole package being consigned to the plaintiffs at the station, to which they were to be carried. Many of the parcels, in addition to the address of the plaintiffs, had the names and addresses of the persons to whom the plaintiff intended to deliver them. Held, that the fact that the goods had such names and addresses did not entitle the defendants to charge separately for them, and that the plaintiffs were entitled to recover such extra charges which they had paid under protest. The Regulations of Railways Act, 1868, (31 & 32 Vict. c. 119,) Railways Act, provides, in the 16th section, for equality of treatment where railway works steam-vessels. The 17th section compels the company, on application within one week of the payment of any charge in respect of the conveyance of any goods, to furnish particulars of such charge. Section 18 enacts that where two railways are worked by one company, the calculations of tolls and charges for any distances in respect of traffic (whether passengers, animals, goods, carriages, or vehicles) conveyed on both railways, the distances traversed shall be reckoned continuously on such railways as if they were one railway. At common law the carrier insures the goods: reasonable time. Having considered the nature and extent of railway companies' duty to receive and carry goods, we now have to inquire as to their responsibility for the safe custody and delivery of the articles committed to them as carriers. The common law implies a contract of insurance by the common carrier against all risks and injuries to the goods received by him in and contracts to the way of his trade, save those caused by the act of God or the king's deliver within a enemies: (2 Stephen's Blackstone, p. 87.) There is also an implied contract that the goods shall be delivered at their destination within a reasonable time, according to the usual course of business: (Great Northern Railway Co. v. Taylor, 35 L. J., C. P. 210; Raphael v. PickMight limit his ford, 5 M. & G. 554.) The carrier could diminish this common law liability by special contract. Liability as Carriers of Goods-Carriers Act. 419 liability by making special contracts; and, until the Legislature modi- 8 & 9 VICT. C. 20. fied the law, this was commonly done by posting up and distributing notices that they would not be responsible for more than a certain value, unless the owners insured by paying an additional rate. If this notice could be brought to the knowledge of the sender of Notice incorthe goods, it was incorporated into the contract, and he became porated into conbound by it: (Mayhew v. Eames, 3 B. & C. 601; see 603.) Secus, if to knowledge of not brought to his notice: (Kerr v. Willan, 6 M. & S. 150.) tract if brought customer. liable for loss of, above value of charge paid. It is not necessary to trace more minutely the duty of carriers at common law, as the statute-book has so completely varied it, and therefore we will pass on to explain the law as it now stands thus altered. The Land Carriers Act (1 W. IV. c. 68) enacts that "no common By 1 W. IV. c. 68, carrier by land for hire shall be liable for the loss of, or injury to carriers not any gold or silver coin of this or any foreign realm, gold or silver in or injury to cera manufactured or unmanufactured state, precious stones, jewellery, tain articles watches, clocks, time-pieces of any description, trinkets, bills, notes £10, unless deliof any bank in Great Britain or Ireland, orders, notes, or securities vered as such, for the payment of money, English or foreign stamps, maps, writ- and increased ings, title-deeds, paintings, engravings, pictures, gold or silver plate s. 1. or plated article, glass, china, silks, manufactured or unmanufactured, wrought up or not wrought up with other materials, furs or lace, or any of them, contained in package, which shall have been delivered either to be carried for hire or to accompany the person of any passenger, when the value of such articles contained in such parcel shall exceed £10, unless at the time of the delivery the value of such article shall have been declared at the time of the delivery at the office, warehouse, or receiving-house of the carrier or to his servant, for the purpose of being carried, the value or nature of such articles shall have been declared by the person sending or delivering the same, and increased charge or an engagement to pay the same be accepted by the person receiving the parcel." be affixed in By the 2d section, when any parcel containing any of the above Notice of the articles shall be delivered, an increased rate of charge may be de- rate of charge to manded. The rate of such charge is to be notified by some notice office or receivaffixed in legible characters in some conspicuous part of the receiving house. ing-house of the carrier, and such notice is to bind all persons, with- S. 2. out further proof, that it has come to their knowledge. By the 5th section, every house which shall be appointed by the Receiving-house carrier for the reception of goods shall be deemed a receiving-house, S. 5. By the 3d section, carriers are to give receipts acknowledging the Carriers are to increased rate, such receipt not to be liable to the stamp-duty. If give receipt for such receipt is not given when required, or the notice shall not be S. 3. affixed, the carrier is to lose the benefit of the act. extra charge. limit liability in respect of other goods. The 4th section enacts that no public notice shall limit the car- Notice not to rier's liability in respect of any goods not within the act. The 7th section provides that in case of loss of goods insured by the payment of the extra charge, the sender shall recover the extra sender may charge, as well as the value of the goods. Nothing in the act is to limit the liability of the carrier to answer for loss or injury occasioned by the felonious acts of his servants. The value of the goods is to be proved at the trial, irrespective of value declared. The 10th section provides that in all actions against carriers for recover back extra charge in event of loss. Carriers may pay 8 & 9 VICT. C. 20. loss of, or injury to goods, whether the value has been declared or not, they may pay money into Court in the same way that money may be paid into Court in any other action. "Loss" does not delay: The words "loss of, or injury to goods" do not include loss or include loss by damage occasioned by delay in forwarding the goods, or by omission to forward them: (Hearn v. London and South Western Railway Co., 10 Ex. 793. As to what are trinkets see Bernstein v. Baxendale, 6 C. B. N. S. 251, and 28 L. J. (C. P.) 267.) Trinkets. Cases defining the various articles named in the act. Declaration of value must be made in all cases, but carrier cannot demand without notice. extra charge Special contracts inferred from goods being sent after notice of conditions. Sender not An accepted bill, containing neither a drawer nor payee, is not within the act, either as a bill, order, note, or security for the payment of money or writing of value: (Stoessiger v. South-Eastern Railway Co., 3 E. & B. 549; see also MCall v. Taylor, 19 C. B. N. S. 301.) Smelling-bottles and the like are "glass." Silk watch-guards are silk in a manufactured state: (Bernstein v. Baxendale, 6 C. B. N. S. 251.) Elastic silk webbing, which is a woven fabric, each yard of which contains an ounce and a quarter of India rubber and three quarters of an ounce of cotton, the silk being of greater value than the other two materials, is within the meaning of the act- silks worked up with other materials." Hat bodies which are made partly of fur and partly of wool are not "furs" within the act: (Mayhew v. Nelson, 6 C. & P. 58.) The term "lace" in this act is, by 28 & 29 Vict. c. 94, not to include machine-made lace. The declaration of the value and nature of the property must be made whether the property be delivered at the carrier's office or elsewhere, and whether or not a notice is stuck up in the carrier's office or not. The notice required by the act is not a notice that the carrier means to avail himself of the act, but only a notice of the extra charge which he cannot demand without the notice, and if he refuses to give a receipt, he will lose the benefit of the statute: (Hart v. Baxendale, 6 Ex. 769; Pianciani v. London and SouthWestern Railway Co., 18 C. B. 226.) Although the fourth section of this act does not allow carriers to limit their liability by public notices, yet it has been held that a special contract may be inferred from the fact that the plaintiff had special notice that the goods would not be taken except on certain terms, and from his afterwards persisting in sending them: (Walker v. The York and North Midland Railway Co. 2 E. & B. 750; Van Toll v. South-Eastern Railway Co., 12 C. B. N. S. 75.) The person delivering bound to tender the goods and declaring their value is not bound to tender the extra rate; but the carrier must demand the increased charge mentioned in the notice affixed in his office or receiving-house, whether the goods are delivered at such office or to the carrier's servant sent to fetch them; and if no such demand is made, the carrier is liable for loss of, or injury to the goods, although the increased charge has not been paid: (Behrens v. Great Northern Railway Co., 6 H. & N. 366, and in Cam. Scacc. 7 H. & N. 950,) extra charge without demand. Felonious acts of A railway company is responsible for the felonious acts of any sub-contractor's servant of a sub-contractor whom it employs: (Machu v. SouthWestern Railway Co., 2 Ex. 415.) servants, Carriers are not liable for the loss of goods mentioned in section 1 of 1 Will. IV. c. 68, although caused by the gross negligence of their servants, unless the sender has complied with the provisions of that act: (Hinton v. Dibbin, 2 Q. B. 647.) Carriers of Goods-Railway and Canal Traffic Act. 421 liable for neglect notice to the Railway companies having a practical monopoly of the carrying 8 & 9 VICT. C. 20. trade were able to insist upon special contracts, not merely limiting their liability, but in some cases removing it altogether, and rendering them irresponsible for the gross negligence of their servants. This conduct created great dissatisfaction and much litigation, which culminated in the cases of Carr v. Lancashire and Yorkshire Railway, (7 Ex. 707,) and Walker v. The Yorkshire and North Midland Railway, (2 E. & B. 750; Pardington v. South Wales Railway Co., 1 H. & N. 392.) Blackburn, J., in delivering his opinion to the House of Lords in the case of Peek v. North Staffordshire Railway, (10 H. of L. C.; see p. 504,) points out the great injustice done by these contracts, whereby the companies were enabled to protect themselves from liability to their customers for acts which would have afforded a right of action even to a wrong-doer. To meet this anomalous state of the law, the Legislature, in 1854, passed the Railway and Canal Traffic Act, (17 & 18 Vict. c. 31,) the 7th section of which enacts that- 17 & 18 Vict. c. "Every such company as aforesaid shall be liable for the loss of or 31, s. 7. for any injury done to any horses, cattle, or other animals, or to any Company to be articles, goods, or things, in the receiving, forwarding, or delivering or default in the thereof, occasioned by the neglect or default of such company or its carriage of goods, servants, notwithstanding any notice, condition, or declaration made notwithstanding and given by such company contrary thereto or in anywise limiting contrary. such liability; every such notice, condition, or declaration being hereby declared to be null and void: Provided always, that nothing herein contained shall be construed to prevent the said companies from making such conditions with respect to the receiving, forwarding, and delivering of any of the said animals, articles, goods, or things as shall be adjudged by the Court or Judge before whom any question relating thereto shall be tried to be just and reasonable: Provided always, that no greater damages shall be recovered for the Company not to loss of or for any injury done to any of such animals, beyond the be liable beyond sums hereinafter mentioned; (that is to say,) for any horse, fifty in certain cases, pounds; for any neat cattle, per head, fifteen pounds; for any sheep unless the value or pigs, per head, two pounds; unless the person sending or deli- extra payment vering the same to such company shall, at the time of such delivery, made. have declared them to be respectively of higher value than as above mentioned; in which case it shall be lawful for such company to demand and receive by way of compensation for the increased risk and care thereby occasioned a reasonable percentage upon the excess of the value so declared above the respective sums so limited as aforesaid, and which shall be paid in addition to the ordinary rate of charge; and such percentage, or increased rate of charge, shall be notified in the manner prescribed in the statute eleventh George Fourth and first William Fourth, chapter sixty-eight, and shall be binding upon such company in the manner therein mentioned: Provided also, that the proof of the value of such animals, articles, Proof of value to goods, and things, and the amount of the injury done thereto, shall be on the person in all cases lie upon the person claiming compensation for such loss. pensation. or injury: Provided also, that no special contract between such No special concompany and any other parties, respecting the receiving, forward- tract to be binding, or delivering of any animals, articles, goods, or things as afore- signed. said shall be binding upon or affect any such party, unless the same be signed by him or by the person delivering such animals, articles, a limited amount declared and claiming com ing unless |