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agreed by reason of their not being insured according in their contention, they could have had no difficulty to their value. Even if it could be held that there in establishing all that, if uncontradicted, would be was a well recognised distinction in the carrying trade, necessary. Some of their own servants would probetween the extent of liability in the carriage of goods bably have been able to depose to the fact of additional where they were insured, and where they were un risk, and if it was shown that 101. per cent. was the insured, it by no means follows that insurance must usual extra charge, that, if uncontradicted, would pronecessarily be according to the value of the goods. It bably have been all which the Judge would have might be by doubling or trebling the ordinary rate of required. But in the absence of any evidence, he charge without reference to the value of the goods to could not think that the Judge was warranted in be carried.
holding that the condition was just and reasonable. It was not necessary to consider whether there was the onus of proof, it would be observed, was on the not in this case what would, independently of the company. The plaintiff was not bound to show that statute requiring a signed contract have amounted to the condition was unjust or unreasonable. a valid contract, absolving the company from respon Even, however, if it had been shown that an extra sibility in consideration of their demanding only the charge of 101. per cent. on their value was not more than lower rate of 55s. per ton for the goods carried. Look was reasonable by reason of extra risk, still, in his ing to all which had previously passed between the Lordship's opinion, the fifth plea was not proved; for plaintiff's agents and the company, a jury might, per- be did not consider that the plaintiff had assented haps, reasonably come to the conclusion that such a to the condition in the sense in which such assent contract had been proved; but that would not be a would be understood after verdict, i. e., he did special contract in writing such as was regarded by not think that the plaintiff agreed that the goods the statute. There was no written document signed should be carried by the company on the terms that by the person delivering the goods, either stating the the latter should be absolved from all liability by terms on which, according to the fourth plea, the reason of there being no insurance. The fair intermarbles were to be carried, or referring to any other pretation of what passed appeared to be that the document which on general principles of law could be plaintiff sent the goods, desiring the company to take referred to, and which would prove those terms. On them with such liabilities only as attached to them as these grounds he considered the verdict ought to be carriers of goods uninsured. The plaintiff had full entered for the plaintiff on the fourth plea. On the notice of the conditions imposed by the company; but fifth plea, also, he considered the verdict should be he could not interpret what the plaintiff said or did as entered for the plaintiff.
implying that the plaintiff agreed to send the goods on The evidence might be taken to show that the the terms embodied in that condition ; but only that, marbles were delivered by the plaintiff to the com- having notice of its terms, the plaintiff did not choose pany, subject to the condition that the company to purchase on the terms offered the extra security would not be responsible for any injury to them, which would be afforded by insurance. unless, in addition to the ordinary charge of 55s. per ton, the plaintiff would pay, by way of in LORD WENSLEYDALE said, he was sure their Lordsurance, 101. per cent on their value. By the express ships were greatly indebted to the learned Judges for terms of the statute, no such condition was valid, the extraordinary pains they had taken in considering unless the Judge was satisfied that it was a reasonable the questions left to them, and the full and able condition. He did not think that there was any opinions which they had given. Their Lordships had thing appearing on the special case which ought to to endeavour to discover the intentions of the Legislahave satisfied the Judge, or by consequence, which ture, in a clause which was far from clearly expressed, ought to satisfy their Lordships, that this was a rea and . sonable condition. cumbent on the defendants to show, by evidence, sideration of the very learned and careful opinions not only that marbles were subject to more than which their Lordships had heard, that he ought to ordinary risk when carried by railway, but, further, concur with the majority of the learned Judges, who that 101. per cent. on their value was no more than a had given their advice, and that the judgment of the fair compensation to the carrier for that additional Exchequer Chamber ought to be reversed. risk. Whether there was, or was not, more than The questions proposed to the Judges were three. ordinary risk in the carriage of marbles, was a question The conclusion to which he had come was, that the not of law, but of fact, and as to which, therefore, a first question ought to be answered in the negative, Judge could not have any judicial knowledge. Even and the second and third in the affirmative. if it had been shown that there was more than Blackburn, J., in his very able and clear judgordinary risk in the conveyance of marbles, still, he ment, had fully stated and explained most of the thought, the defendants were bound to show further, various decisions which have taken place as to the that 101. per cent. on the value was no more than a liability of carriers. At one time in this country, it reasonable extra charge. If the defendants were right was thought by some that notices given by carriers of
For that purpose, it was in- "He had satisfied himself, however
, after" full con
the conditions on which they would carry, operated as such an express written contract should contain any restrictions of the public profession of a carrier, species of conditions on which the parties could agree, according to which only he was bound to carry, and whether unreasonable or not, which they could not not as being evidence of a special contract. By others impose where the contract was implied. It seemed to it was treated as evidence of a special contract. Since his Lordship that it was intended that every special the Carriers' Act (11 Geo. 4 & 1 Will. 4, c. 68) there contract for carriage, i. e., subject to any other than was no longer a question on that subject.
the Common Law liabilities of the carrier, should be a The first section of that Act expressly provided, that contract in writing, and signed as mentioned, and no possible notice or declaration should be deemed or should contain reasonable conditions. construed to limit or otherwise affect the liability of He agreed, therefore, entirely with the view of public common carriers, and that such carriers should this statute entertained by Jervis, J., in Simmonds be liable, at Common Law, to answer for the loss of, v. Great Western Railway Company (loc. cit.), and or injury to, any articles in respect whereof they might expressed in very clear and intelligent terms. "I not be entitled to the protection of the Act, any public think," said the learned Judge, “that the fair meannotice made by them and given contrary thereto, or ing of the section is this, that in the first place wo anywise limiting such liability notwithstanding; but will declare that all notices and conditions which a subsequent section (the ninth) provided, that nothing heretofore were given, and by which the public were in the Act contained should annul or in anywise affect affected by knowledge or notice, shall be null and any special contract between such common carrier or void in so far as they relieve the company from re. any other parties for the carriage of goods.
sponsibility for the negligence of its officers, but wo Numerous subsequent cases, between the years 1832 shall not prevent conditions being made between the and 1854, established that a carrier might make a company and the party (as a subsequent part of the contract by notice limiting his responsibility, or even clause shows,) which shall appear to be just and reain cases of gross negligence or misconduct. At length, sonable to the presiding Judge of the Court before such having become frequent, it was suggested, in the whom the question comes, subject, I think, of course, case of Carr v. The Lancashire and Yorkshire Rail to the review of the Court; and then, in order to way Company (loc. cit.), that if any inconvenience make that binding and to avoid all discussion, ‘it shall should arise from such contracts being entered into, it not be binding on the party, unless it be signed by the was not matter for the interference of the Courts; but party who is to be affected by the contract;' and, that it must be left to the Legislature, who might, if therefore, the section will run thus :-General notice they pleased, put a stop to this mode which the to limit the liability shall be null and void ; but the carriers had adopted to limit their liability.
parties may make special contract and the company The Legislature apparently answered that appeal by themselves, provided those contracts are adjudged by passing the Railway and Canal Traffic Act, 1854 (17 the Court or Judge to be just and reasonable : and & 18 Vict. c. 31), and the sole question was, What whereas, on the one hand, you complain that the was the construction to be put upon that ill-penned monopoly of the company compels the public, willAct?
ingly or unwillingly, to carry by that particular conHe had considered its terms fully, and had satisfied veyance and to be drawn as it were into contracts, we himself that the Legislature meant to allow carriers to will give them the security of the Courts to take care limit their responsibility by reasonable conditions ; that the contracts which are made under that species bat that a Judge in an ordinary trial, or possibly the of compulsion are just and reasonable.'' Court on a trial at bar, should determine whether This being, as he thought, the true construction of those conditions were reasonable or not, subject to the the statute, their Lordships had then to decide tho control of the Court above. The provision that the three questions which they would have to put to the company might make conditions, if thought reason- Judges. able by the Judge or Court, came by way of qualifica The first question was, whether the condition that tion to the general prohibition of exempting the com- the company should not be responsible for injury to pany from losses arising from their own neglect or the goods (that is, the marbles), unless the same wero default, or that of their servants. It meant that, not declared and insured according to their value, was a withstanding that general prohibition, they might just and reasonable condition within the true intent make a fair bargain for their remuneration, such bar- and meaning of 17 & 18 Vict. c. 31 ? And connected gain being sanctioned by the Judge or Court. When the with that was the third question—Was the plaintiff peculiar condition was sanctioned by the Judge and entitled to have the verdict entered for him on the the Court, in case of appeal, as reasonable, the pre- fifth plea, which stated that the goods were carried on rious prohibition was done away with.
a just and reasonable condition made by the defendants, Bat it was also intended that no special contract and assented to by the plaintiff, that the defendants should be binding, unless signed by the party sending should not be responsible for loss or injury to marbles, or delivering goods to the carriers. It was, however, unless declared and insured according to valuc, and impossible to suppose that the Legislature meant that that the goods were marbles, and were not insured ?
What, then, was the meaning of the alleged contract, in truth, for the carriage of the marbles on dition ? Did it mean to protect the company from all any special terms. The correspondence about sending liability, however occasioned? Or was there an implied these marbles ultimately came to this--that they were exception of the default or neglect of the company or to be sent without any special terms at all, but were their servants ?
delivered in the ordinary way by the company as He thought it impossible to give that construction carriers, subject to their ordinary liabilities as such. to the alleg condition-for the condition was pleaded In answering the former questions his Lordship said in bar to the whole course of action. The condition he had already given his reasons for saying that the must be proved to apply to loss or damage of every fifth plea was not proved. He considered, therefore, kind in order to sustain that plea. To be a good plea that the judgment ought to be reversed. in that limited sense, it should have been pleaded in bar to all, except that part of the damage which was LORD CHELMSFORD said, he had the misfortune to caused by the neglect or default of the company and differ with all his noble and learned friends who were its servants, probably the principal part of the damage present at the hearing of the appeal. When he found sustained. As the plea was pleaded, it was unques- that this was likely to be the case, he had thought it tionably meant as an answer to the whole damage right to re-consider carefully the grounds of the opinion sustained.
which he had formed, in order to discover the error into. In that sense it was quite clear that the condition which he was satisfied he must have fallen. But was unreasonable.
though he had sought for reasons, he had not, how. As such, marbles are liable more than any other ever, been able to find any which were sufficiently goods to be damaged by breakage or damp, and to satisfactory to his mind to lead him to adopt the conrequire greater and more constant care to protect clusion at which his noble and learned friends had them from that damage in the course of their transit arrived. His only consolation was, that if he erred in to the place of destination, and the damage when done judgment in the present case, his error was countewas generally more serious; he thought it would be nanced by many Judges of great learning and ability. perfectly fair and reasonable to ask an increase of the At the outset of this inquiry, the question arose, rate of remuneration above that of ordinary goods ; whether their Lordships concurred in the opinion of and if the notice had stipulated that the defendants Jervis, C.J., and the Court of Common Pleas, in Sim. would not carry marbles, &c., at the ordinary rate for monds v. The Great Western Railway Company (loc. cit.), goods, but should require a larger compensation to be and The London and North-Western Railway Company agreed upon or a specified or fixed sum, being appa v. Durham Railway Company (loc. cit.), and the judg. rently reasonable, he did not doubt that such a con ment of the Exchequer Chamber in M'Manus v. The dition would have been perfectly reasonable within the Lancashire and Yorkshire Railway Company (loc. cit.), meaning of the Act. He need not inquire whether decided after the judgment of the Queen's Bench in the offer of an alternative rate, as some of the Judges the present case, but before the argument in the had suggested, might be reasonable also ; but he was Exchequer Chamber, where the counsel for the clearly of opinion that it was not reasonable for a company was compelled to abandon the fifth plea, in carrier to say,-I will not be liable as a carrier at all consequence of that decision. If these two cases were for neglect or any other injury in the course of the rightly decided, the judgment of the Exchequer carriage of the goods delivered to me, unless I receive Chamber, under consideration, could not be supported. a price for insuring the goods against all possible loss. In the cases decided in the Common Pleas, Jervis, I will not be responsible for any loss, unless you pay C.J., in summing up his examination of the statute me a fixed sum for indemnifying you against all. of the 17 & 18 Vict. c. 31, said: “The result seems
He must add, with reference to that part of the to be this—a general notice is void, but the company case, that if his reasoning above stated was correct, may make special contracts with their customers, prothe plea that there was a condition simply was a bad vided they are just and reasonable, and signed ; and plea, though the verdict ought to be entered for whereas the monopoly created by railway companies the plaintiff, for under the Act a special contract compels the public to employ them in the convey, would be necessary to exempt the company from re ance of their goods, the Legislature have thought fit sponsibility.
to impose the further security that the Court shall The next question was – Is the plaintiff entitled to see that the condition or special contract is just and have the verdict entered for him upon the fourth plea ? reasonable." In M‘Manus v. The Lancashire and
He was clearly of opinion that the plaintiff was so Yorkshire Railway Company (loc. cit.) the same view entitled, for it was perfectly clear that no special con of the statute was taken, the Exchequer Chamber tract at all was entered into ; certainly no such a in effect deciding that there was no difference between special contract as he considered the statute required, notices, conditions, or declarations made and given by viz., a contract for the receiving, carrying, or delivery a railway company, and special contracts entered into of these goods, signed by the plaintiff, or the party with them ; but that all, without distinction, must be delivering such goods for carriage. There was no con- signed, and must be such as the Judge before whom
any question relating to them may be tried, shall ad. their customers upon a more reasonable footing for the judge to be just and reasonable.
future. In two prior cases (Wise v. The Great Northern Rail To guard, therefore, against the unreasonableness of way Company, 1 H. & N. 63; and Partington v. companies being allowed to protect themselves from South Wales Railway Company, 1 H. & N. 392) the responsibility for negligence, it enacted, in the first Judges of the Court of Exchequer appeared to have place, that companies should be liable for any loss or considered the provisions in the statute, as to notices injury occasioned by the neglect or default of them. and conditions, to be distinct from those relating to selves or of their servants, notwithstanding any notice, special contracts.
condition, or declaration made and given by them In order to determine the correct interpretation of contrary thereto, and it declared "every such notice, the Act, it was necessary to consider shortly the condition, or declaration to be null and void.” previous state of the law. Before the passing of the Having thus protected the public by preventing the Carriers' Act (11 Geo. 4 & 1 Will. 4, c. 68) carriers companies relieving themselves from liability for nego had been in the habit, for a long course of years, of ligence by a notice, condition, or declaration, the secprotecting themselves against their extensive Common |tion proceeded to provide for the case of conditions Law liability by means of general notices. These imposed by companies upon the receiving, forwarding, notices afforded them no protection, unless they were and delivering of goods, and having an eye to the brought home to the knowledge of the customer : but decisions which had determined that a notice delivered when so known, they entered into and formed part of to the owner of goods, and assented to by him, the terms upon which the goods were to be carried in amounted to a contract as to the terms of carriage, each particular case. But besides these notices, upon and knowing that the assent which was supposed to be the mere knowledge of which the terms of carriage given at the time of the delivery of the goods, was were fixed between the parties, it was always open to often without any actual knowledge of the conditions the carrier and the owner of goods to enter into contained in the delivery ticket, it provided that only special agreements with respect to their carriage. such conditions should be made (that is, should enter
This distinction between notices and agreements was into the terms of the contract) “as shall be adjudged recognised by the Carriers' Act, for, while it excluded by the Court or Judge, before whom any question relatthe liability of carriers for the loss of certain goods ing thereto shall be tried, to be just and reasonable." above the value of 101. except upon certain terms, and The section having thus provided fully against limitaprevented the limitation of their liability for any tion of liability by notices or conditions (which were other goods by any public notice or declaration, it evidently used as synonymous expressions), in one case provided that nothing in the Act contained should absolutely prohibiting them, in the other submitting annul, or in any way affect, any special contract for their reasonableness to the judgment of the Judge, pro. the conveyance of goods and merchandise. After the vided by one of its many provisoes that no special con. passing of that Act, although carriers could no longer tract between such company and any other parties limit their liability by a general notice, yet it was held should be binding upon or affect any such party, in several cases, amongst which it would be sufficient to unless the same should be signed by him or by the mention Carr v. The Lancashire and Yorkshire Rail person delivering such animals, articles, goods, or way Company (loc. cit.) and Austin v. Manchester things respectively for carriage. Railroay Company (10 C. B. 454), that a notice, express His Lordship had no doubt that the special contract ing the terms on which goods would be carried, delivered intended by this proviso was the same description of to the owner of the goods, and assented to by him, contract which was mentioned in the 6th section of amounted to a special contract, which might exempt the 11th Geo. 4 & 1st Will 4, c. 68 (which Act, by the carrier from liability, even for negligence. the very next proviso in the 7th section in question, · It was after these decisions, and in all probability was to be in force), with this additional provision, that in consequence of them, that the provisions in ques- the special contract should not be binding unless signed. tion were inserted in the 17th and 18th Vict. c. 31. He supposed it might be assumed that under the 11th That Act, in the last proviso of the 7th section, pro-, Geo. 4 & 1st Will. 4, the carriers were at liberty vided that nothing therein contained should alter or to make special contracts with the owners of goods affect the rights, privileges, or liabilities of any com upon any terms of carriage that might be mutually pany under the 11th Geo. 4 & 1st Will. 4, c. 68. arranged between them. If so, and the special conTherefore the limitation of the carriers' liability as to tracts contemplated in the two Acts were of the same certain descriptions of goods, the prohibition against description, what was there in the 7th section of the general notices, and the right to make special con- latter Act to deprive the parties of their liberty to tracts, were all continued. The Legislature, by the agree upon their own terms, unless a Court or Judge 7th section of the Act, evidently intended, with refer- should adjudge them not to be just and reasonable? . ence to what had been previously enacted by the The appellant contended for a construction of this Legislature and decided by the Courts, to place the rather complicated and involved section, which would relation between railway and canal companies and leave no distinction between notices, conditions, or
declarations, and special contracts, but would require tract was entered into, and duly signed between a that notices, &c., should be signed, and that special | railway company and other parties within that section, contracts should, in the opinion of the Judge, be just it was not subject to any judicial discretion as to and reasonable. He could not accede to this inter- whether it was just and reasonable in its character or pretation of the section. He found a marked distinc. not, and that the condition that the company should tion in terms between the two species of engagements, not be responsible for the loss or injury to marbles and he must suppose that the Legislature intended unless declared and insured according to their value was something different by their difference of language. a just and reasonable condition. Of course, if that condiNor could he perceive anything unreasonable in sup- tion meant that the company was to be exempt from posing that the Legislature meant to apply a different responsibility for the neglect and default of themrule to notices and to special contracts. It might be selves or of their servants, it would be null and void very inconvenient, when goods were to be sent by rail- by the express words of the Act. But such an interway, if the terms on which they were to be carried pretation would be contrary to what must have been were ordinary and reasonable, to require that a con. the understanding of the parties. It must be assumed tract should be signed upon each occasion, the owner in considering the present question, that the appellant of the goods being sufficiently protected against any assented to this condition, and that the goods were to surprise, or the imposition of hard terms, by inter- be carried on the terms which it contained. Now, posing the judgment of the Judge as to their unreason both parties must be taken to have known the Act of ableness. But it was quite a new principle that par- Parliament, and could not be supposed to have agreed ties were to be debarred from making contracts for upon conditions of carriage of the goods which the themselves, not being contrary to law nor to public Act expressly declared should be null and void. The policy, because the uncertain opinion of some Judge words of the condition, therefore, must have been who accidentally had to try any question relating to understood by both parties, and ought reasonably to them, should adjudge them not to be just and reason be construed as if there was no exception of the able. He ventured to think that the best test of the default or neglect of the company or their servantsreasonableness of the Court was, not the occasional which exception, he considered the Act itself would opinion of the Judge who might happen to preside in engraft upon the condition, and with this reasonable Court when the contract was in question, but of the (not to say necessary) limitation of the generality of its parties who had deliberately chosen to enter into it. terms, the condition appeared to be unobjectionable.
Why, if owners were willing, upon terms which they His Lordship further considered that the special considered advantageous to themselves, to undertake contract alleged in the fourth plea was established by the risk of all goods sent by railway, even including the evidence, and that the company were entitled to the negligence of servants of the company, and agreed the verdict upon that plea. The letter of the 1st of with the company to bind one another by a special August, 1857, directed the company to forward the contract duly signed to that effect, should a Judge be cases of marble “not insured." Those words were not invested with authority to say-Whatever you may self-interpreting, but required some explanation to think, I consider your contract not just and reason ascertain their particular meaning between the parable, and however willing you may be to be bound, I ties. He thought that the previous correspondence release you from your engagement ?
might be resorted to, to furnish this explanation, Now it appeared to his Lordship that the 7th section although the letter in question contained no reference was not only capable of, but demanded a different con to it. It seemed to him to fall exactly within the struction from that which was contended for by the principle stated with so much clearness by Sir James appellant, not only from the change of expression in Wigram in his admirable treatise, as it was “evi“. the different provisoes of the section, but also from dence which is ancillary only to a right understanding the difference of the subjects to which each part of it of the words to which it is applied, and which is was applicable. The former part was confined to simply explanatory of the words themselves," and not notices or conditions, treating them as the same, and “evidence which is applied to prove intention itself as providing for them in every case, by declaring a cer an independent fact.” The intention was clear that the tain class of them to be null and void, and all of them goods should be carried “uninsured.” What this meant, to be subject to the approval of a Judge. The latter was explained by the notices which were delivered to dealt with “special contracts”-a description made the agent of the appellant containing the condition as to familiar to the Legislature by the Act of 11 Geo. 4 the responsibility of the company, upon the footing of & 1 Will. 4, c. 68, which was before them when they which all the subsequent correspondence proceeded. were framing the 7th section, and did not prohibit The correspondence could not be used as part of the such contracts from containing terms at variance with agreement, as there was no reference to it in the letter the provisions respecting the notices ; but merely pro- which accompanied the delivery of the goods, but that vided that they should not be binding unless they letter constituted the agreement, and with the explawere signed.
natory aid of the correspondence was rendered comHe considered, therefore, that where a special con. plete in itself.