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Railway and Canal Traffic Act, 1854.

573

In determining whether a condition is reasonable, the courts consider whether any reasonable alternative is offered to the customer, as of sending at a legal higher rate, not subject to the condition. In such case even although the condition relieve the company from all liability, there is strong prima facie ground for holding it to be reasonable. Brown v. Manchester &c., Ry. Co., 8 Ap. Ca. 703, D. P., cited ante, p. 563. See further Lewis v. Gt. IV. Ry. Co., 3 Q. B. D. 195, C. A.

A condition as to risk of luggage on a passenger's ticket is within sect. 7. Cohen v. S. E. Ry. Co., 1 Ex. D. 217; 2 Ex. D. 253, C. A., overruling Stewart v. L. & N. W. Ry. Co., 3 H. & C. 135; 33 L. J., Ex. 199. Sect. 7 does not apply if the railway company do not receive the goods in the capacity of carriers, as where luggage was left at the defendants' cloak-room by a person who had been a passenger by the railway. Van Toll v. S. E. Ry. Co., 12 C. B., N. S. 75; 31 L. J., C. P. 241; and other cases cited post, pp. 577, 583.

Most of the above cases are cases relating to injury, which have happened after the contract for carriage has been completely made; but the statute goes further. Sect. 7, ante, p. 570, in terms, applies to injuries in the receiving, forwarding, or delivering, and protects railway companies, beyond a certain amount, unless the value of the animal is declared. Where injury was done to a horse at a railway station by the negligence of the company, before the declaration of value had been made, or ticket taken, or fare demanded, it was held that this was an injury in the receiving, and the owner could not recover more than 50l., even though it was the usual practice to put horses in their box before declaring their value or paying the fare. Hodgman v. W. Midland Ry. Co., 5 B. & S. 173 ; 33 L. J., Q. B. 233; Ex. Ch., 6 B. & S. 560; 35 L. J., Q. B. 85.

A railway company cannot repudiate a special contract on the ground that it has not been signed by the consignor: the proviso in sect. 7 only applies to cases, where the company seek to relieve themselves from liability, by reason of there being a special contract. Baxendale v. Gt. E. Ry. Co., L. R., 4 Q. B. 244.

To entitle the company to demand the percentage under sect. 7, the sender must make a declaration of the value with the intention of paying the percentage; but the company is bound to carry at the ordinary rate without increased risk if the sender require it, even though the company have notice of the higher value of the animals. Robinson v. L. & S. W. Ry. Co., 19 C. B., N. S. 51; 34 L. J., C. P. 234. The reasonableness of the percentage is a questiou for the jury. Harrison v. L. Brighton & S. C. Ry. Co., 2 B. & S. 152, 167; 31 L. J., Q. B. 113, 119, per Erle, C. J., in Ex. Ch. The principle is not what profit it may be reasonable for the company to make, but what is reasonable to charge the party charged. See Canada Southern Ry. Co., v. International Bridge Co., 8 Ap. Ca. 723, P. C.

The Regulation of Railways Act, 1868, 31 & 32 Vict. c. 119, Part II.] The interpretation clause, sect. 2, is as follows.

"The term 'railway' means the whole or any portion of a railway or tramway, whether worked by steam or otherwise.

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The term company' means a company incorporated either before or after the passing of this act for the purpose of constructing, maintaining, or working a railway in the United Kingdom (either alone or in conjunction with any other purpose); and includes, except when otherwise expressed, any individual or individuals not incorporated, who are owners or lessees of a railway in the United Kingdom, or parties to an agreement for working a railway in the United Kingdom."

"The term 'person' includes a body corporate."

By sect. 14, where a company, by through booking, contracts to carry ary animals, luggage or goods from place to place, partly by railway and partly by sea, or partly by canal and partly by sea, a condition exempting the company from liability for any loss or damage which may arise during the carriage of such animals, &c., by sea, from the act of God, the king's enemies, fire, accidents from machinery, boilers and steam, and all and every other dangers and accidents of the seas, rivers, and navigation, of whatever nature and kind soever, shall, if published in a conspicuous manner in the office where such through booking is effected, and if printed in a legible manner on the receipt or freight note which the company gives for such animals, &c., be valid as part of the contract between the consignor of such animals, &c., and the company, in the same manner as if the company had signed and delivered to the consignor a bill of lading containing such condition. For the purposes of this section the word "company includes the owners, lessees or managers of any canal or other inland navigation.

By sect. 15, railway companies are to exhibit in their booking offices a table of the fares of passengers by the trains included in the time tables of the company, from that station to every place for which passenger tickets are there issued.

By sect. 16, "where a company is authorized to build, or buy, or hire, and to use, maintain, and work, or to enter into arrangements for using, maintaining, or working steam vessels for the purpose of carrying on a communication between any towns or ports, and to take tolls in respect of such steam vessels, then and in every such case, tolls shall be at all times charged to all persons equally, and after the same rate, in respect of passengers conveyed in a like vessel, passing between the same places under like circumstances, and no reduction or advance in the tolls shall be made in favour of, or against, any person using the steam vessels, in consequence of his having travelled, or being about to travel, on the whole or any part of the company's railway, or not having travelled or not being about to travel, on any part thereof, or in favour of or against any person using the railway, in consequence of his having used or being about to use, or his not having used or not being about to use, the steam vessels; and where an aggregate sum is charged by the company for conveyance of a passenger by a steam vessel and on the railway, the ticket shall have the amount of toll charged for conveyance by the steam vessel distinguished from the amount charged for conveyance on the railway."

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The provisions of the Railway and Canal Traffic Act, 1854, so far as the same are applicable shall extend to the steam vessels and to the traffic carried on thereby."

By sect. 17, "where any charge shall have been made by a company in respect of the conveyance of goods over their railway, on application in writing within one week, after payment of the said charge, made to the secretary of the company, by the person by whom or on whose account the same has been paid, the company shall within fourteen days, render an account to the person so applying for the same, distinguishing how much of the said charge is for the conveyance of the said goods on the railway, including therein tolls for the use of the railway, for the use of carriages and for locomotive power, and how much of such charge is for loading and unloading, covering, collection, delivery, and for other expenses, but without particularizing the several items of which the last-mentioned portion of the charge may consist."

By sect. 18, "where two railways are worked by one company, then in the calculation of tolls and charges, for any distances in respect of traffic (whether passengers, animals, goods, carriages, or vehicles), conveyed on

Regulation of Railways Acts, 1868, 1871.

575

both railways, the distances traversed shall be reckoned continuously on such railways, as if they were one railway."

The equality clauses did not, under the previous act, extend to steamers worked by railway companies. Branley v. S. E. Ry. Co., 12 C. B., N. S. 63; 31 L. J., C. P. 286.

The Regulation of Railways Act, 1871, 34 & 35 Vict. c. 78.] where railway companies under contract to carry passengers or goods by By s. 12, sea, procure the same to be carried in a vessel not belonging to them, they are liable for loss or damage to the same extent as though the vessel had belonged to them.

This section extends the provisions of 31 & 32 Vict. c. 119, s. 16, ante, p. 574, and therefore of 17 & 18 Vict. c. 31, s. 7, ante, p. 570, to the carriage of goods which the company contract to carry, but procure to be carried in ships not belonging to them. Doolan v. Midland Ry. Co., 2 Ap. Ca. 792,

D. P.

Who should be plaintiff.] The proper person to sue, as plaintiff, is the person in whom the property was vested, when lost or damaged. Hence, the consignee is usually the proper plaintiff, because delivering of goods to the carrier commonly vests the property in the consignee. Dunlop v. Lambert, 6 Cl. & F. 600; Fragano v. Long, 4 B. & C. 219; Dawes v. Peck, 8 T. R. 330. But where there is a special contract, between the consignor and carrier, the consignor may be plaintiff, and the ownership is immaterial. Dunlop v. Lambert, supra. If the consignment does not change the property, as where goods are sent on approval, the consignor should sue; Swain v. Shepherd, 1 M. & Rob. 223; or where the sale is insufficient to bind the vendee under the Stat. of Frauds. Coats v. Chaplin, 3 Q. B. 483; Coombs v. Bristol & Exeter Ry. Co., 3 H. & N. 510; 27 L. J., Ex. 401. See cases cited, ante, p. 469, et seq., sub. tit. Action for not accepting goods. On the other hand, where there is a contract between the consignee and the carrier, so that the former is liable to the latter for the freight, the consignee may Mead v. S. E. Ry. Co., 18 W. R. 735, E. T., 1870, C. P.

sue.

Where a single box containing the separate property of A. and B. is delivered to the carrier by a joint agent, A. and B. may join in the action. Metcalfe v. L. & Brighton Ry. Co., 4 C. B., N. S. 317; 27 L. J., C. P. 333. A special property is sufficient to support the action. Thus, a laundress may sue a carrier employed by her, who loses the linen returned by her through him. Freeman v. Birch, 3 Q. B. 492, n.

Where the contract is made with one railway company, for carriage of goods over the lines of several other companies, vide ante, p. 565.

Proof of delivery to defendant.] In an action against the proprietor of a stage-coach for the loss of a parcel, it is sufficient to prove the delivery of the parcel to the driver. Williams v. Cranston, 2 Stark. 82. A delivery of goods on the wharf, to some officer accredited for that purpose, as to the mate, binds the shipowner; Cobban v. Downe, 5 Esp. 41; British Columbia, &c. Co. v. Nettleship, L. R., 3 C. P. 499; or if the master receives goods at the quay or beach, or sends his boat for them, the shipowner's responsibility commences with the receipt; Abbott on Shipping, 10th Ed., p. 258, citing Molloy, B. 2. c. 2, s. 2; unless it appears that the consignee does not intend to trust the shipowner with the custody, as where he sends his own servant in charge of the goods, who has the exclusive management of them. E. India Co. v. Pullen, 1 Str. 690. Where the only proof of delivery was, that the goods were left at an inn-yard where defendant and other carriers put up, it was held to be insufficient. Selway v. Holloway, 1 Ld. Raym. 46

So, leaving goods at a wharf piled up among other goods, without communication with any one there, is not a delivery to the wharfinger. Buckman v. Levi, 3 Camp. 414. Where the ordinary course of business, at a railway office, was to accept goods, with a special limitation of liability, in writing, and this was known to the plaintiff, who, nevertheless caused his goods to be left with a railway porter at the station, without complying with the regular course, and the porter received them, and they were lost: held, that the company was not liable as on contract, the delivery not being in due course, and the porter not being shown to have, or to have professed to have, power to contract with the plaintiff otherwise than in the ordinary course. Slim v. Gt. N. Ry. Co., 14 C. B. 647; 23 L. J., C. P.

166.

Proof of non-delivery by defendant.] Very slight evidence of non-delivery is sufficient to call upon the defendant to prove delivery. Griffiths v. Lee, 1 C. & P. 110; Hawkes v. Smith, Car. & M. 72. Whether the carrier is bound to deliver at the residence of the consignee, seems to depend on the circumstances of each particular case. In the absence of any express contract or usage, carriers by land are bound to deliver the goods to, or at the house of, the consignee. See Hyde v. Trent and Mersey Navigation Co., 5 T. R. 389; Storr v. Crowley, M‘Cl. & Y. 129; Duff v. Budd, 3 B. & B. 182, citing Bodenham v. Bennett, 4 Price, 31. And, if it be the carrier's course of trade to deliver goods at the consignee's residence, he is clearly bound to do so. Golden v. Manning, 2 W. Bl. 916. Where goods are conveyed by sea, it seems to be sufficient for the captain, to deposit them in some place of safety, and give notice to the consignee. See Hyde v. Trent and Mersey Navigation Co., 5 T. R. 397. And, he is bound to keep them a reasonable time until fetched, and is liable during that time. Bourne v. Gatliffe, 3 M. & Gr. 643; 7 M. & Gr. 850, D. P. Although the consignor of goods directs the carrier to deliver them at a certain place, the carrier may deliver them wherever he and the consignee agree; L. & N. W. Ry. Co. v. Bartlett, 7 H. & N. 400; 31 L. J., Ex. 92; and in such a case the carrier is not liable to an action by the consignor for not delivering at such place, as the nondelivery was pursuant to the orders of the consignee. S. C.; Cork Distilleries Co. v. Gt. S. & W. Ry. Co., L. R., 7 H. L. 269. But semble, where there is a special contract between the carrier and the consignor, he may sue the carrier for breach thereof. S. C. If the carrier deliver the goods at the place directed, in accordance with the ordinary usage, he has fulfilled his obligation, although he has delivered them to a person the sender did not intend. M'Kean v. M‘Ivor, L. R., 6 Ex. 36. If the consignee refuse to receive the goods, and the carrier puts them into his warehouse, he is not bound as a carrier to give notice to the consignor of the refusal; it is a question for the jury "whether the carrier has done what is reasonable under the circumstances." Hudson v. Baxendale, 2 H. & N. 575; 27 L. J., Ex. 93. Quære, if the carrier is bound to keep possession of them after refusal. S. C. In an action for non-delivery of a parcel, it appeared that, on refusal of the plaintiff, the consignee, to pay the carriage, the company had sent it back forthwith to a distant terminus where it had been first delivered to them, and took no further step. Held, that they ought to have kept it for the consignee a reasonable time, and that, on tender of the charges the next day, plaintiffs might sue defendants. Crouch v. Gt. W. Ry. Co., 2 H. & N. 491; 26 L. J., Ex. 418; Ex. Ch., 3 H. & N. 183; 27 L. J., Ex. 345. Where the consignee makes default in receiving the goods, the carrier is entitled to recover from him the expenses reasonably incurred in taking care of the goods. Gt. N. Ry. Co. v. Swaffield, L. R., 9 Ex.

132.

Liability of Carriers.-Damages.

577

The liability of a carrier continues till he delivers the goods or ceases to hold them, qua carrier. Therefore where goods are destroyed by fire after they are deposited in the defendant's wharf, and before a reasonable time has elapsed for the plaintiff to fetch them, the defendant is liable. Bourne v. Gatliffe, ante, p. 576. And where the question is, whether the goods have been delivered by the defendant at London, evidence is admissible to show what constitutes a delivery in London, according to the usage of that port; and former dealings between the plaintiff and defendant are evidence of such usage. S. C.; and see ante, pp. 429, 430, 575.

Where there has been a delivery by the carrier, actual or constructive, though the goods remain on his premises, he is no longer liable as carrier, but only as warehouseman, or on any special terms of bailment which he may choose to impose on the customer. See Mitchell v. Lancashire & Yorkshire Ry. Co., L. R., 10 Q. B. 256. Thus where cattle sent by railway were kept at the arrival station, by the direction of the owner's servant, until they could be removed according to the police regulations, the company were held not liable as carriers. Shepherd v. Bristol & Exeter Ry. Co., L. R., 3 Ex. 189. So where goods are carried "to be left till called for," and the carrier does not know the consignee's address, and the consignee does not call for the goods within a reasonable time, the carrier becomes an involuntary bailee, and is liable only for negligence. Chapman v. Gt. W. Ry. Co., 5 Q. B. D. 278. So after refusal of the goods at the consignee's address, Heugh v. L. & N. W. Ry. Co., L. R., 5 Ex. 51. As to the liability of a railway company in respect of goods deposited at a cloak-room at its station, vide post, p. 584.

The declarations of the coachman respecting the loss of a parcel are evidence against the coach proprietor. Mayhew v. Nelson, 6 C. & P. 58. So, where in an action for not delivering a parcel sent by rail to V., the plaintiff, to a plea of the Carriers Act, replied felony of the company's servants : the statements of the station-master at V. to the superintendent of police, with reference to the loss, and to the absconding of the parcel porter at V., are admissible in evidence. Kirkstall Brewery Co. v. Furness Ry. Co., L. R., 9 Q. B. 468. But, the statements of a night inspector at a railway station, as to the detention of goods, which would pass through the station, and there be under the inspector's charge, were held to be inadmissible against the company. Gt. W. Ry. Co. v. Willis, 18 C. B., N. S. 748; 34 L. J., C. P. 195. If the carrier delivers the goods to a wrong person, he is liable in trover. Stephenson v. Hart, 4 Bing. 476; aliter, if only lost; Ross v. Johnson, 5 Burr. 2825.

Damages.] Where goods are sent from A. to B. and are lost, the consignee is entitled to their value at B., as distinguished from the place where they were delivered to the carrier. Rice v. Baxendale, 7 H. & N. 96; 30 L. J., Ex. 371. And in such case the measure of damages is, in general, the market value of the goods, at the place and time, at which they ought to have been delivered; and if there is no market, for the sale of such goods at the place, the jury must ascertain their value, by taking their price at the place of manufacture, together with the cost of carriage, and a reasonable sum for importer's profits. O'Hanlan v. Gt. W. Ry. Co., 6 B. & S. 484; 34 L. J., Q. B. 154.

The damages recoverable are either "such as may fairly and reasonably be considered arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it." Hadley v. Baxendale, 9 Exch. 341; 23 L. J., Ex. 179; see also Cory v. Thames Iron Works Co., L. R., 3 Q. B. 181, and Elbinger Actien-Gesellschafft v. Armstrong, L. R.,

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