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 107. 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. The onus of proof, it would be observed, was on the company. The plaintiff was not bound to show that the condition was unjust or unreasonable. It was not necessary to consider whether there was not in this case what would, independently of the statute requiring a signed contract have amounted to a valid contract, absolving the company from responsibility in consideration of their demanding only the lower rate of 55s. per ton for the goods carried. Look ing to all which had previously passed between the plaintiff's agents and the company, a jury might, perhaps, reasonably come to the conclusion that such a contract had been proved; but that would not be a special contract in writing such as was regarded by the statute. There was no written document signed by the person delivering the goods, either stating the terms on which, according to the fourth plea, the marbles were to be carried, or referring to any other document which on general principles of law could be referred to, and which would prove those terms. On these grounds he considered the verdict ought to be entered for the plaintiff on the fourth plea. On the fifth plea, also, he considered the verdict should be entered for the plaintiff. The evidence might be taken to show that the marbles were delivered by the plaintiff to the company, subject to the condition that the company would not be responsible for any injury to them, unless, in addition to the ordinary charge of 55s. per ton, the plaintiff would pay, by way of insurance, 107. per cent. on their value. By the express terms of the statute, no such condition was valid, unless the Judge was satisfied that it was a reasonable condition. He did not think that there was any thing appearing on the special case which ought to have satisfied the Judge, or by consequence, which ought to satisfy their Lordships, that this was a reasonable condition. For that purpose, it was incumbent on the defendants to show, by evidence, not only that marbles were subject to more than ordinary risk when carried by railway, but, further, that 107. per cent. on their value was no more than a fair compensation to the carrier for that additional risk. Whether there was, or was not, more than ordinary risk in the carriage of marbles, was a question not of law, but of fact, and as to which, therefore, a Judge could not have any judicial knowledge. Even if it had been shown that there was more than ordinary risk in the conveyance of marbles, still, he thought, the defendants were bound to show further, that 107. per cent. on the value was no more than a reasonable extra charge. If the defendants were right Even, however, if it had been shown that an extra charge of 107. per cent. on their value was not more than was reasonable by reason of extra risk, still, in his Lordship's opinion, the fifth plea was not proved; for he did not consider that the plaintiff had assented to the condition in the sense in which such assent would be understood after verdict, i. e., he did not think that the plaintiff agreed that the goods should be carried by the company on the terms that the latter should be absolved from all liability by reason of there being no insurance. The fair interpretation of what passed appeared to be that the plaintiff sent the goods, desiring the company to take them with such liabilities only as attached to them as carriers of goods uninsured. The plaintiff had full notice of the conditions imposed by the company; but he could not interpret what the plaintiff said or did as implying that the plaintiff agreed to send the goods on the terms embodied in that condition; but only that, having notice of its terms, the plaintiff did not choose to purchase on the terms offered the extra security which would be afforded by insurance. LORD WENSLEYDALE said, he was sure their Lordships were greatly indebted to the learned Judges for the extraordinary pains they had taken in considering the questions left to them, and the full and able opinions which they had given. Their Lordships had to endeavour to discover the intentions of the Legislature, in a clause which was far from clearly expressed, and was probably drawn by more than one person. He had satisfied himself, however, after full consideration of the very learned and careful opinions which their Lordships had heard, that he ought to concur with the majority of the learned Judges, who had given their advice, and that the judgment of the Exchequer Chamber ought to be reversed. The questions proposed to the Judges were three. The conclusion to which he had come was, that the first question ought to be answered in the negative, and the second and third in the affirmative. Blackburn, J., in his very able and clear judgment, had fully stated and explained most of the various decisions which have taken place as to the liability of carriers. At one time in this country, it was thought by some that notices given by carriers of the conditions on which they would carry, operated as restrictions of the public profession of a carrier, according to which only he was bound to carry, and not as being evidence of a special contract. By others it was treated as evidence of a special contract. Since the Carriers' Act (11 Geo. 4 & 1 Will. 4, c. 68) there was no longer a question on that subject. The first section of that Act expressly provided, that no possible notice or declaration should be deemed or construed to limit or otherwise affect the liability of public common carriers, and that such carriers should be liable, at Common Law, to answer for the loss of, or injury to, any articles in respect whereof they might not be entitled to the protection of the Act, any public notice made by them and given contrary thereto, or anywise limiting such liability notwithstanding; but a subsequent section (the ninth) provided, that nothing in the Act contained should annul or in anywise affect any special contract between such common carrier or any other parties for the carriage of goods. Numerous subsequent cases, between the years 1832 and 1854, established that a carrier might make a contract by notice limiting his responsibility, or even in cases of gross negligence or misconduct. At length, such having become frequent, it was suggested, in the case of Carr v. The Lancashire and Yorkshire Railway Company (loc. cit.), that if any inconvenience should arise from such contracts being entered into, it was not matter for the interference of the Courts; but that it must be left to the Legislature, who might, if they pleased, put a stop to this mode which the carriers had adopted to limit their liability. The Legislature apparently answered that appeal by passing the Railway and Canal Traffic Act, 1854 (17 & 18 Vict. c. 31), and the sole question was, What was the construction to be put upon that ill-penned Act? He had considered its terms fully, and had satisfied himself that the Legislature meant to allow carriers to limit their responsibility by reasonable conditions; but that a Judge in an ordinary trial, or possibly the Court on a trial at bar, should determine whether those conditions were reasonable or not, subject to the control of the Court above. The provision that the company might make conditions, if thought reasonable by the Judge or Court, came by way of qualification to the general prohibition of exempting the company from losses arising from their own neglect or default, or that of their servants. It meant that, notwithstanding that general prohibition, they might make a fair bargain for their remuneration, such bargain being sanctioned by the Judge or Court. When the peculiar condition was sanctioned by the Judge and the Court, in case of appeal, as reasonable, the previous prohibition was done away with. But it was also intended that no special contract should be binding, unless signed by the party sending or delivering goods to the carriers. It was, however, impossible to suppose that the Legislature meant that such an express written contract should contain any species of conditions on which the parties could agree, whether unreasonable or not, which they could not impose where the contract was implied. It seemed to his Lordship that it was intended that every special contract for carriage, i. e., subject to any other than the Common Law liabilities of the carrier, should be a contract in writing, and signed as mentioned, and should contain reasonable conditions. He agreed, therefore, entirely with the view of this statute entertained by Jervis, J., in Simmonds v. Great Western Railway Company (loc. cit.), and expressed in very clear and intelligent terms. "I think," said the learned Judge, "that the fair meaning of the section is this, that in the first place wo will declare that all notices and conditions which heretofore were given, and by which the public were affected by knowledge or notice, shall be null and void in so far as they relieve the company from responsibility for the negligence of its officers, but we shall not prevent conditions being made between the company and the party (as a subsequent part of the clause shows,) which shall appear to be just and reasonable to the presiding Judge of the Court before whom the question comes, subject, I think, of course, to the review of the Court; and then, in order to make that binding and to avoid all discussion, 'it shall not be binding on the party, unless it be signed by the party who is to be affected by the contract;' and, therefore, the section will run thus :-'General notice to limit the liability shall be null and void; but the parties may make special contract and the company themselves, provided those contracts are adjudged by the Court or Judge to be just and reasonable: and whereas, on the one hand, you complain that the monopoly of the company compels the public, willingly or unwillingly, to carry by that particular conveyance and to be drawn as it were into contracts, we will give them the security of the Courts to take care that the contracts which are made under that species of compulsion are just and reasonable.'' This being, as he thought, the true construction of the statute, their Lordships had then to decide the three questions which they would have to put to the Judges. The first question was, whether the condition that the company should not be responsible for injury to the goods (that is, the marbles), unless the same wero declared and insured according to their value, was a just and reasonable condition within the true intent and meaning of 17 & 18 Vict. c. 31 ? And connected with that was the third question-Was the plaintiff entitled to have the verdict entered for him on the fifth plea, which stated that the goods were carried on a just and reasonable condition made by the defendants, and assented to by the plaintiff, that the defendants should not be responsible for loss or injury to marbles, unless declared and insured according to value, and that the goods were marbles, and were not insured? What, then, was the meaning of the alleged condition? Did it mean to protect the company from all liability, however occasioned? Or was there an implied exception of the default or neglect of the company or their servants? He thought it impossible to give that construction to the alleged condition-for the condition was pleaded in bar to the whole course of action. The condition must be proved to apply to loss or damage of every kind in order to sustain that plea. To be a good plea in that limited sense, it should have been pleaded in bar to all, except that part of the damage which was caused by the neglect or default of the company and its servants, probably the principal part of the damage sustained. As the plea was pleaded, it was unquestionably meant as an answer to the whole damage sustained. tract, in truth, for the carriage of the marbles on any special terms. The correspondence about sending these marbles ultimately came to this-that they were to be sent without any special terms at all, but were delivered in the ordinary way by the company as carriers, subject to their ordinary liabilities as such. In answering the former questions his Lordship said he had already given his reasons for saying that the fifth plea was not proved. He considered, therefore, that the judgment ought to be reversed. LORD CHELMSFORD said, he had the misfortune to differ with all his noble and learned friends who were present at the hearing of the appeal. When he found that this was likely to be the case, he had thought it right to re-consider carefully the grounds of the opinion 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. As such, marbles are liable more than any other goods to be damaged by breakage or damp, and to require greater and more constant care to protect them from that damage in the course of their transit to the place of destination, and the damage when done was generally more serious; he thought it would be perfectly fair and reasonable to ask an increase of the rate of remuneration above that of ordinary goods; and if the notice had stipulated that the defendants would not carry marbles, &c., at the ordinary rate for goods, but should require a larger compensation to be agreed upon or a specified or fixed sum, being apparently reasonable, he did not doubt that such a condition would have been perfectly reasonable within the meaning of the Act. He need not inquire whether the offer of an alternative rate, as some of the Judges had suggested, might be reasonable also; but he was clearly of opinion that it was not reasonable for a carrier to say, I will not be liable as a carrier at all for neglect or any other injury in the course of the carriage of the goods delivered to me, unless I receive a price for insuring the goods against all possible loss. I will not be responsible for any loss, unless you pay me a fixed sum for indemnifying you against all. He must add, with reference to that part of the case, that if his reasoning above stated was correct, the plea that there was a condition simply was a bad plea, though the verdict ought to be entered for the plaintiff, for under the Act a special contract would be necessary to exempt the company from responsibility. The next question was-Is the plaintiff entitled to have the verdict entered for him upon the fourth plea? He was clearly of opinion that the plaintiff was so entitled, for it was perfectly clear that no special contract at all was entered into; certainly no such a special contract as he considered the statute required, viz., a contract for the receiving, carrying, or delivery of these goods, signed by the plaintiff, or the party delivering such goods for carriage. There was no con though he had sought for reasons, he had not, however, been able to find any which were sufficiently satisfactory to his mind to lead him to adopt the conclusion at which his noble and learned friends had arrived. His only consolation was, that if he erred in judgment in the present case, his error was countenanced by many Judges of great learning and ability. At the outset of this inquiry, the question arose, whether their Lordships concurred in the opinion of Jervis, C.J., and the Court of Common Pleas, in Sim. monds v. The Great Western Railway Company (loc. cit.), and The London and North-Western Railway Company v. Durham Railway Company (loc. cit.), and the judg ment of the Exchequer Chamber in M'Manus v. The Lancashire and Yorkshire Railway Company (loc. cit.), decided after the judgment of the Queen's Bench in the present case, but before the argument in the Exchequer Chamber, where the counsel for the company was compelled to abandon the fifth plea, in consequence of that decision. If these two cases were rightly decided, the judgment of the Exchequer Chamber, under consideration, could not be supported. In the cases decided in the Common Pleas, Jervis, C.J., in summing up his examination of the statute of the 17 & 18 Vict. c. 31, said: "The result seems to be this-a general notice is void, but the company may make special contracts with their customers, provided they are just and reasonable, and signed; and whereas the monopoly created by railway companies compels the public to employ them in the convey. ance of their goods, the Legislature have thought fit to impose the further security that the Court shall see that the condition or special contract is just and reasonable." In M'Manus v. The Lancashire and Yorkshire Railway Company (loc. cit.) the same view of the statute was taken, the Exchequer Chamber in effect deciding that there was no difference between notices, conditions, or declarations made and given by a railway company, and special contracts entered into with them; but that all, without distinction, must be 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 Railway Company, 1 H. & N. 63; and Partington v. South Wales Railway Company, 1 H. & N. 392) the Judges of the Court of Exchequer appeared to have considered the provisions in the statute, as to notices and conditions, to be distinct from those relating to special contracts. In order to determine the correct interpretation of the Act, it was necessary to consider shortly the previous state of the law. Before the passing of the Carriers' Act (11 Geo. 4 & 1 Will. 4, c. 68) carriers had been in the habit, for a long course of years, of protecting themselves against their extensive Common Law liability by means of general notices. These notices afforded them no protection, unless they were brought home to the knowledge of the customer: but when so known, they entered into and formed part of the terms upon which the goods were to be carried in each particular case. But besides these notices, upon the mere knowledge of which the terms of carriage were fixed between the parties, it was always open to the carrier and the owner of goods to enter into special agreements with respect to their carriage. To guard, therefore, against the unreasonableness of companies being allowed to protect themselves from responsibility for negligence, it enacted, in the first place, that companies should be liable for any loss or injury occasioned by the neglect or default of themselves or of their servants, notwithstanding any notice, condition, or declaration made and given by them contrary thereto, and it declared "every such notice, condition, or declaration to be null and void.” Having thus protected the public by preventing the companies relieving themselves from liability for negligence by a notice, condition, or declaration, the section proceeded to provide for the case of conditions imposed by companies upon the receiving, forwarding, and delivering of goods, and having an eye to the decisions which had determined that a notice delivered to the owner of goods, and assented to by him, amounted to a contract as to the terms of carriage, and knowing that the assent which was supposed to be given at the time of the delivery of the goods, was often without any actual knowledge of the conditions contained in the delivery ticket, it provided that only such conditions should be made (that is, should enter into the terms of the contract) "as shall be adjudged by the Court or Judge, before whom any question relat ing thereto shall be tried, to be just and reasonable.” The section having thus provided fully against limitation of liability by notices or conditions (which were evidently used as synonymous expressions), in one case absolutely prohibiting them, in the other submitting their reasonableness to the judgment of the Judge, provided by one of its many provisoes that no special contract between such company and any other parties should be binding upon or affect any such party, unless the same should be signed by him or by the This distinction between notices and agreements was recognised by the Carriers' Act, for, while it excluded the liability of carriers for the loss of certain goods above the value of 107. except upon certain terms, and | prevented the limitation of their liability for any other goods by any public notice or declaration, it provided that nothing in the Act contained should annul, or in any way affect, any special contract for the conveyance of goods and merchandise. After the passing of that Act, although carriers could no longer limit their liability by a general notice, yet it was held in several cases, amongst which it would be sufficient to mention Carr v. The Lancashire and Yorkshire Rail-person delivering such animals, articles, goods, or way Company (loc. cit.) and Austin v. Manchester Railway Company (10 C. B. 454), that a notice, expressing the terms on which goods would be carried, delivered to the owner of the goods, and assented to by him, amounted to a special contract, which might exempt the carrier from liability, even for negligence. It was after these decisions, and in all probability in consequence of them, that the provisions in question were inserted in the 17th and 18th Vict. c. 31. That Act, in the last proviso of the 7th section, provided that nothing therein contained should alter or affect the rights, privileges, or liabilities of any company under the 11th Geo. 4 & 1st Will. 4, c. 68. Therefore the limitation of the carriers' liability as to certain descriptions of goods, the prohibition against general notices, and the right to make special contracts, were all continued. The Legislature, by the 7th section of the Act, evidently intended, with reference to what had been previously enacted by the Legislature and decided by the Courts, to place the relation between railway and canal companies and things respectively for carriage. His Lordship had no doubt that the special contract intended by this proviso was the same description of contract which was mentioned in the 6th section of the 11th Geo. 4 & 1st Will 4, c. 68 (which Act, by the very next proviso in the 7th section in question, was to be in force), with this additional provision, that the special contract should not be binding unless signed. He supposed it might be assumed that under the 11th Geo. 4 & 1st Will. 4, the carriers were at liberty to make special contracts with the owners of goods upon any terms of carriage that might be mutually arranged between them. If so, and the special contracts contemplated in the two Acts were of the same description, what was there in the 7th section of the latter Act to deprive the parties of their liberty to agree upon their own terms, unless a Court or Judge should adjudge them not to be just and reasonable? The appellant contended for a construction of this rather complicated and involved section, which would leave no distinction between notices, conditions, or tract was entered into, and duly signed between a railway company and other parties within that section, it was not subject to any judicial discretion as to whether it was just and reasonable in its character or not, and that the condition that the company should not be responsible for the loss or injury to marbles unless declared and insured according to their value was a just and reasonable condition. Of course, if that condition meant that the company was to be exempt from responsibility for the neglect and default of themselves or of their servants, it would be null and void declarations, and special contracts, but would require that notices, &c., should be signed, and that special contracts should, in the opinion of the Judge, be just and reasonable. He could not accede to this interpretation of the section. He found a marked distinction in terms between the two species of engagements, and he must suppose that the Legislature intended something different by their difference of language. Nor could he perceive anything unreasonable in supposing that the Legislature meant to apply a different rule to notices and to special contracts. It might be 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 were ordinary and reasonable, to require that a contract should be signed upon each occasion, the owner of the goods being sufficiently protected against any surprise, or the imposition of hard terms, by interposing the judgment of the Judge as to their unreasonableness. But it was quite a new principle that parties were to be debarred from making contracts for themselves, not being contrary to law nor to public policy, because the uncertain opinion of some Judge who accidentally had to try any question relating to them, should adjudge them not to be just and reasonable. He ventured to think that the best test of the reasonableness of the Court was, not the occasional opinion of the Judge who might happen to preside in Court when the contract was in question, but of the parties who had deliberately chosen to enter into it. Why, if owners were willing, upon terms which they considered advantageous to themselves, to undertake the risk of all goods sent by railway, even including the negligence of servants of the company, and agreed with the company to bind one another by a special contract duly signed to that effect, should a Judge be invested with authority to say-Whatever you may think, I consider your contract not just and reasonable, and however willing you may be to be bound, I release you from your engagement? Now it appeared to his Lordship that the 7th section was not only capable of, but demanded a different construction from that which was contended for by the appellant, not only from the change of expression in the different provisoes of the section, but also from the difference of the subjects to which each part of it was applicable. The former part was confined to notices or conditions, treating them as the same, and providing for them in every case, by declaring a certain class of them to be null and void, and all of them to be subject to the approval of a Judge. The latter dealt with "special contracts '-a description made familiar to the Legislature by the Act of 11 Geo. 4 & 1 Will. 4, c. 68, which was before them when they were framing the 7th section, and did not prohibit such contracts from containing terms at variance with the provisions respecting the notices; but merely provided that they should not be binding unless they were signed. pretation would be contrary to what must have been the understanding of the parties. It must be assumed in considering the present question, that the appellant assented to this condition, and that the goods were to be carried on the terms which it contained. Now, both parties must be taken to have known the Act of Parliament, and could not be supposed to have agreed upon conditions of carriage of the goods which the Act expressly declared should be null and void. The words of the condition, therefore, must have been understood by both parties, and ought reasonably to be construed as if there was no exception of the default or neglect of the company or their servantswhich exception, he considered the Act itself would engraft upon the condition, and with this reasonable (not to say necessary) limitation of the generality of its terms, the condition appeared to be unobjectionable. His Lordship further considered that the special contract alleged in the fourth plea was established by the evidence, and that the company were entitled to the verdict upon that plea. The letter of the 1st of August, 1857, directed the company to forward the cases of marble "not insured." Those words were not self-interpreting, but required some explanation to ascertain their particular meaning between the parties. He thought that the previous correspondence might be resorted to, to furnish this explanation, although the letter in question contained no reference to it. It seemed to him to fall exactly within the principle stated with so much clearness by Sir James Wigram in his admirable treatise, as it was "evi dence which is ancillary only to a right understanding of the words to which it is applied, and which is simply explanatory of the words themselves," and not “evidence which is applied to prove intention itself as an independent fact." The intention was clear that the goods should be carried "uninsured." What this meant, was explained by the notices which were delivered to the agent of the appellant containing the condition as to the responsibility of the company, upon the footing of which all the subsequent correspondence proceeded. The correspondence could not be used as part of the agreement, as there was no reference to it in the letter which accompanied the delivery of the goods, but that letter constituted the agreement, and with the explanatory aid of the correspondence was rendered com He considered, therefore, that where a special con- plete in itself. |