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lature ; the one that companies, through their mono- sured” was a contract reduced to writing and signed, poly, had imposed harsh and unjust conditions upon by which it appeared that the party agreed to the partiindividuals who could scarcely be said to have the cular consequences stated in the plea in the case of the power of resisting them, which conditions had been non-payment of the insurance. He, therefore, answered made operative by an assent, express or implied, such the second question in the affirmative, and the same conditions and assent forming a special contract; the reasons led him to answer the third question also in other, that these special contracts had been inferred the affirmative. from parol evidence even in cases where the sender of

MARTIN, B., said that in the argument three goods had done all he could to resist, but had been points had been discussed. First, whether upon deemed to have entered into a special contract from the true construction of the 7th section of the Railhaving sent his goods with a knowledge of the condi- way and Canal Traffic Act, 1854, a signed assent tions. The Legislature appeared to have provided to the condition was necessary. Secondly, whether against the first supposed mischief in the first part of the condition itself was just and reasonable. And the 7th section, by saying in effect, “any terms or thirdly, whether the fourth plea had been legally conditions or notices shall have no effect unless they proved. Upon the first point there had been much are held reasonable by the Judge or Court;” in other difference of opinion, and in order to determine the words, “though you may have got the assent of the true meaning of the section, it was essential to party, you shall still be liable for any loss occasioned ascertain what was the law at the time of its enactby the neglect of the company or its servants, unless ment. At the time of the passing of the Carriers' Act, the conditions to which you obtain such assent are notices were in general use. What was their precise held just and reasonable.” After the introduction of operation, whether as creating a limitation upon the some intermediate matter, they proceeded to what he Common Law liability by the mere expression of the thought was a proviso in the previous allowance of will of the carrier, stating terms and conditions upon conditions if held just and reasonable. They enacted which he did business, and the customer delivering that no special contract respecting the receiving, for goods to be carried having knowledge of them ; or sarding, and delivering goods, &c., as aforesaid, should as creating a special contract between them, to which be binding, unless signed, &c. By the use of the same the assent or agreement of the customer is an essential Fords as in the provisions in the earlier part of the element, had been and remained a matter of doubt and section, “receiving, forwarding, or delivering,” and controversy. But it might be stated as certain that by the words “as aforesaid,” the Legislature seemed these notices operated to a considerable extent to proclearly to be referring and making a proviso to refer to tect carriers against unforeseen losses and misfortune, their former enactments. And he construed such pro- but did not, however general and extensive in their viso as meaning, “although such conditions may be language, protect against misfeasance or gross neglijust and reasonable, yet it shall not be left to parol gence. The Carriers' Act contained but few sections, evidence to say what are the terms, nor shall you and if the true meaning of the term, "special contract," imply such assent as will make it a special contract, in the 6th section, was ascertained, it seemed to him unless it is signed by the party delivering." He con- that the construction of the 7th section of the Railway curred, therefore, in the construction put upon this and Canal Traffic Act was free from reasonable doubt. section by the late Lord Chief Justice Jervis in Sim- Assuming that the carriers' notices before the Carriers' monds v. Great Western Railway Company (loc. cit.), Act operated by creating a special contract, it was and understanding the condition made by the company clear that the special contract so created was not in this case to be “we will not carry your goods at all the special contract contemplated by the 6th section of unless you pay us a tenth of their value by way of that Act. The statute provided in express terms what insurance in addition to the charge for carriage on such should and what should not be the operation of the a journey, or unless you agree that we are not to be at public notice or declaration by the carriers. Ho all responsible whatever negligence we may be guilty thought the special contract contemplated in the 6th of, whether, &c.," he held it to be unjust and unrea- section was an express individual contract entered sonable, and answered the first question in the into between carrier and customer, and not the connegative.

tract, so to call it, arising from notice and assent, As to the second question, he thought the fourth evidenced by delivery of goods to be carried with plea not proved, not only on the ground that the con- knowledge of the notice. The term “special contract” dition was not just and reasonable, but because there might be found applied, and not inappropriately, to was no such contract signed as that alleged in that plea. such a bailment ; but when the statute enacted what He had entered so fully into the consideration of this the notice might be and its operation, and that any part of the question in the Court below, that he did other should be of no avail, but that the special connot wish to trouble their Lordships with repeating what tracts should be wholly unaffected by it, it amounted was already in print. Nothing which had been brought to his mind to demonstration that the special contract forward on the present occasion had satisfied his mind contemplated by the Carriers' Act was a thing diffethat the signed order to “forward the goods unin. rent from the implied special contract consequent upon

the notice. To hold it to be so would nullify the Act, proved their fifth plea, that the condition there set out and render it of no avail ; for every sending of goods might be read in the same sense as the condition itself, with knowledge of notice would be said to be a special and that if in fact the injury to the marble had arisen contract, and within the 6th section. The learned from actual negligence or misfeasance, it ought to Judge then passed to the 7th section of the Railway have been new assigned. The above were substanand Canal Traffic Act, 1854, and observed that it con- tially his answers to their Lordships' first and third sisted of an enactment and five provisos. The term questions. “special contract” was not found in the enactment; As to the second question, he had to assume that he the words were “notice, condition, or declaration.” was in error in his construction of the 7th section, These, he thought, did not include special contracts, that the term “ condition " in the first proviso meant which were left unaffected, except as provided in the the same thing as “special contract" in the fourth : fourth proviso. The result was that, in his opinion, and that to render a condition made by a company of both these Acts of Parliament contemplated two avail to them, it must not only be just and reasonable things, --viz., the notice, or condition, or declaration, in the opinion of the Court or Judge, but must be emanating from the carrier himself, of his own mere embodied in a writing, signed by or on behalf of the act and will, and of which the customer had actual or customer. And, assuming this to be so, he thought implied knowledge; and special contracts, to which the judgment of the Court of Exchequer Chamber the assent or agreement of both parties was an right, and that there was evidence of such a contract essential element, and which, by force of the fourth between the parties, signed so as to satisfy the requireproviso, must be signed by or on behalf of the ment of the fourth proviso, and that it was evidence of customer, and therefore must of necessity be in the contract alleged in the fourth plea. The plea writing.

averred that the goods were delivered to the defendants This further observation might be added. If "con- after the passing of the Railway and Canal Traffic Act dition," in the first proviso, meant a condition of 1854; and under and subject to a certain special emanating from the companies themselves of their own contract, signed. mere act and will, it was not unreasonable or contrary The learned Judge then stated the facts, and said he to any legal principle to interpose for the protection thought the letter of the 1st of August, and the deof the public, and submit to the judgment of the fendants' conduct upon it, constituted a contract Court or Judge, whether it were just and reasonable. between the parties; that the letter was a proposal, But if it meant special contract properly so called, it and the defendants' conduct an unconditional accept. would be perfectly novel and contrary to all legal ance. And, according to Smith v. Neale (2 C. B. & S. principle to give a Court or Judge any such jurisdic- 67), the proposal on behalf of the plaintiff being in tion. Contracts were to be judged of by their legality, writing and signed, and unconditionally accepted, according to the rules of law, not by the opinions of satisfied the requirement of the fourth proviso. He Courts or of Judges as to their justness or reasonable therefore thought the averment proved that the goods

were to be carried under and subject to a special In conclusion, the question depended upon the construction of a section in an Act of Parliament; and, The next question was—Was there evidence, in amidst the multitude of conflicting cases and opinions, writing, of the contract averred in the plea ? and he the only safe course was to abide by the language of thought that, even assuming the contention that no the Legislature, adopting the construction which ought recourse could be had to previous letters or documents originally to have been put upon it.

in order to explain the letter of the 1st of August, The next question which arose was, whether the yet that letter by itself made out the contract averred. condition was just and reasonable. And this depended But he thought there could be no doubt that where the upon what was its legal construction. If it were that meaning of a particular expression in a letter was to the

company should not be liable for the actual neglect be determined, the previous correspondence on the or default of their servants, it would be directly con- subject might be looked at in order to ascertain it. trary to the enactment. The cases of Lyon v. Mells The cases upon the Statute of Frauds were not to the (5 East, 428), and Garnett v. Willan (5 B. & A. 57), and contrary, and reason and common sense pointed it out other cases, have established that this was not the as one of the best-probably the very best-test of legal construction of such conditions, and that they exposition. Applying this test, the meaning of “not were to be read as providing against unforeseen and insured” was free from cavil or doubt. He answered unexpected losses and injuries, not occasioned by the first question in the affirmative, and the second actual neglect or default. And reading the condition and third in the negative. in this sense, he thought it just and reasonable, at least he could not say it was unjust or unreasonable, WILLIAMS, J., before answering the questions prowhen the plaintiff's agent, having the fullest notice posed, examined the 7th section of the Railway and of it, elected to send marbles under it without objec- Canal Traffic Act. He said the effect of the first tion or complaint. He thought the defendants had proviso appeared to be, that the first clause of the



section did not apply to such conditions as should be POLLOCK, C.B., said, that, reading the condition adjudged just and reasonable ; they were allowed to with reference to the 7th section of the Railway operate as they did before the statute passed. The and Canal Traffic Act, as limiting the responsicases so fully cited and clearly explained by Black-bility of the company from accidents or mischief burn, J., seemed to establish beyond all question not arising from their neglect or default, applying it that these conditions operated only as special con- to those cases in which it was competent to the tracts; and if this were so, it remained to inquire company to limit their responsibility, he thought it a whether the conditions thus saved by the earlier pro- most just and reasonable condition. It was quito viso did not necessarily fall within the subsequent right that carriers should be responsible for their own proviso, which enacted that no special contract should negligence and that of their servants; but when they be binding unless it were signed. This has been were called upon to pay for damage as insurers only, denied, on a suggestion that the term special contract common fairness seemed to require that they should be there employed ought not to be understood as com- paid according to the risk run- that was to say, prising conditions emanating from the carriers them according to the value of the goods. selves, and assented to by the customer, but as In answer to the second question, he thought the applying only to contracts, properly so called, made plaintiff not entitled to have the verdict entered for him with particular persons by way of mutual bargain. upon the fourth plea, because it appeared to him that It had been argued that it was improbable that the the plea was proved. Looking at the surrounding Legislature could have meant to invade the ordinary circumstances, the letter of the 1st of August was principle of justice which forbade a party to a contract alone sufficient and satisfactory evidence of what the to avoid it by asserting it to be unreasonable. But the parties meant. But if there were any doubt whether words of the proviso seemed to show that the statute that letter alone would be sufficient, he was of opinion meant to include in " special contract” the ordinary that, coupled with the rest of the correspondence and transaction of a condition proposed and assented to, written communications, the meaning and intention for the proviso allowed the sufficiency of a signature of each party was perfectly clear, and they came to by the person delivering the goods for carriage, which the agreement stated in the fourth plea which was appeared to point to the ordinary case of a servant signed in the note of 1st August. In a case where the bringing goods to a railway and signing a ticket. contract was to be collected from a correspondence, Considering also that the proviso only applied to such and a letter was written in answer to another, he special contracts as respected the “receiving, forward- apprehended, if that were clearly shown, the first ing, and delivering” of goods, &c., and that the might be read to explain the second, although the special contracts, the reasonableness of which, accord second did not expressly refer to it. From what ing to the plaintiff's contention, the Legislature passed in writing between the parties here, the mean allows the customer to dispute, were confined to con- ing of the letter of the 1st of August became no ditions limiting liability as to the “receiving, forward- longer doubtful, and the fourth plea was proved. ing, and delivering” of goods ; and that these condi- In answer to the third question, he thought the tions were usually imposed suddenly at the moment of plaintiff was not entitled to have the verdict entered delivery, when reflection on their nature, or repudia- for him upon the fifth plea. The Lord Chief Baron tion of them, if not impracticable, was at least proceeded to analyse the 7th section of the Railinconvenient and irksome to the customer or his way and Canal Traffic Act, 1854, and he arrived at the servant, it did not seem an absurd or harsh piece of conclusion that the special contract named in the legislation to enact that, notwithstanding the company 4th proviso was the same as the special contract of the had obtained the requisite signature, it should be open 6th section of the Carriers' Act, and was a special to the customer to contend before a Court that the agreement in any particular case, taking that indi. conditions contained in it could not be regarded as vidual delivery out of the general law as to carriers, just and reasonable. On these grounds, he thought and also out of any general condition or declaration the true construction of the Act was that put upon it made by the company in pursuance of the first proin Simmonds v. The Great Western Railway Company viso in the 7th section. No doubt, technically, a (loc. cit.). It followed, that he must answer the delivery subject to a condition might be considered a third question in the affirmative. As to the first, he contract, and, in one sense, a special contract, but it answered it in the affirmative, for the reasons given by was not, in his judgment, the sort of special contract Erle, C.J., in his judgment on the second point in meant by the proviso in question. In that Court of Harrison V. The London and Brighton Railway Error before their Lordships, he was entitled to say Company (loc. cit.). As to the second question, he that on that point he differed from the judgment of thought the plaintiff entitled to have the verdict the Exchequer Chamber in McManus v. Lancashire entered for him on the fourth plea : respecting his and Yorkshire Railway Company (loc. cit.), and from opinion thereon, he craved leave to refer their Lord- the opinion of Jervis, C.J., on which it was founded ships to the opinion which he had expressed on that | (18 C. B. 829). With the greatest respect, it appoint in the Exchequer Chamber:- E. B. & E. 997, 1003. peared to him that the learned Judges who delivered


those judgments, omitted to consider that “special and of special importance to the railway companies, contracts,” co nomine, were mentioned and provided and that their Lordships were much indebted to the for in the first Act, and that the fourth proviso of learned Judges for the elaborate opinions which they the 7th section of the second Act merely required such had given in this case. He regretted that those opinions pecial contracts to be in writing.

were much at variance with one another. He attributed

that difference of opinion to the conflicting decisions COCKBURN, C.J., said, in answer to the first ques- upon this subject; but, with deference, he could not tion, that the effect of the condition was to secure

believe that there was in the matter itself any very immunity to the company from all liability in respect serious difficulty. of injury arising from their own negligence, and he

The question depended entirely, or almost entirely, was of opinion that such a condition was not just and

upon the construction to be given to the 7th section of reasonable. He entered at length into the position of the Railway and Canal Traffic Act, passed in the year railway companies as carriers, and referred to the

He concurred entirely with the interpretaseries of decisions on the Carriers' Act, culminating in tion put upon that section by Jervis, C.J., in the case Carr v. Lancashire and Yorkshire Railway Company of Simmonds v. The Great Western Railway Comloc. cit.), where Lord Wensleydale (then Baron Parke) pary (loc. cit.). He thought that the true construcobserved, with reference to the inconvenience of im- tion of that section might be expressed in a few words. plied special contracts, that “that was not matter for He took it to be equivalent to a simple enactment that the interference of the Court, but must be left to the

no general notice given by a railway company should Legislature, who might, if they pleased, put a stop to be valid in law for the purpose of limiting the Com. this mode which the carriers had adopted of limiting

mon Law liability of the company as carriers. Such their liability.” The Legislature did interfere. Shortly Common Law liability may be limited by such condiafter the decision, the Act was passed on which the tions as the Court or Judge should determine to be question under discussion arose. It could not be

just and reasonable ; but with this proviso, that any doubted that the object of the Legislature in passing such conditions so limiting the liability of the comit was to prevent these contracts in which liability for pany shall be embodied in a special contract in negligence was either entirely excluded or made con- writing between the company and the owner or person ditional on the payment of a premium. Besides the delivering the goods to the company, and which congeneral reasons, which he examined, for preventing tract in writing should be signed by such owner or railway companies from too easily divesting them

person. It was true that the section is expressed in a selves of responsibility for negligence, there were two confused manner, but those conclusions, his Lordship special grounds in this case. In the condition no

thought, were plainly deducible from the cumbrous exception was made in respect of loss or injury arising language which was there employed. from felonious acts by the company's servants, which

The points, therefore, which arose in the present was in direct opposition to the Carriers' Act. Again,

case were, first, - Was the condition on which the a maximum rate of carriage was fixed for railway com

company in the present appeal rested its defence a panies, which would be stultified by allowing them to

just and reasonable condition ? make extra charges for insurance. He, therefore,

Now, it was important in the first place to observe, thought the plaintiff entitled to judgment on the fifth that not only did the section of the Act of Parliament plea. As to the fourth plea, he thought the Exto which he had referred, declare that the general chequer Chamber right in holding that the corre

conditions should be invalid, so far as they sought to spondence amounted to a signed contract; but as he affect the Common Law liability of a railway company thought the fourth proviso of the 7th section of

as carriers, but the words expressly stated that any the Railway and Canal Traffic Act was not an inde- condition, having for its object to relieve a company pendent enactment, but a proviso on the first proviso, from liability occasioned by the neglect or default of both being provisions on the enactment of the section, such company, should be null and void. Now, if the he held that the plaintiff was entitled to judgment on

present condition were embodied in a contract between the plea. The plea would be bad, on the view he the company and the owner of the goods delivered took of the section, as not setting forth the condition, to be carried by that company, the necessary effect of and averring it to be just and reasonable ; and if it such a contract would be, that it would exempt the had contained such an averment, the defendants

company from responsibility for injury, however must have been defeated on the fact. For the reasons

caused, including therefore gross negligence, and even given, he answered the first question in the negative, fraud or dishonesty on the part of the servants of the and the second and third in the affirmative.

company, for the condition is expressed without any

limitation or exception. 28 JULY, 1863.

THE LORD CHANCELLOR* said, the present question was one of great interest to the community at large, ance at the Wedding of the Princess Alice. - See O'Cannellos

Case, 11 Cl. & F. 421-5. It will be observod, however, that in

the present instance there was a znajority of the law Lords, * During the argument, his Lordship was absent in attend- : exclusive of the Lord Chancellor, in favour of the appellant.

He was therefore, in the first place, clearly of LORD CRANWORTH said, the question to be deopinion that the condition insisted upon by the com- cided by their Lordships in this appeal was, whether pany, even if it had been duly embodied in a special on the issues joined on the fourth and fifth pleas, the contract between the parties to this appeal, was a verdict ought to have been entered for the plaintiff or condition which it would have been the duty of a the defendants. Court or Judge to hold to be neither just nor reason- By the Carriers' Act, 11 Geo. 4 & 1 Will. 4, c. 68, able.

various enactments were made regulating the rights The effect of this view of the case would be, that the and duties of carriers in reference to goods delivered plaintiff Peek, in the Court below, would be entitled to them to be carried. And the 6th section provided, to a verdict upon the fifth plea ; for the fifth plea that nothing in the Act contained should extend to depended entirely upon the averment that the condi- annul or affect any special contract between the carrier tion was just and reasonable.

and other parties for the conveyance of goods. But it was not only necessary that the condition Then came the Railway and Canal Traffic Act, should be just and reasonable, but it was also neces- 17 & 18 Vict. c. 31, on which the present question sary that it should be embodied in a special contract arose. By the 7th section of that Act it was enacted, in writing signed by the owner of the goods or the that every railway company should be liable for any person delivering the goods.

injury to any goods in the forwarding thereof occa. The second question that arose, although in truth sioned by the neglect or default of the company and the first point would dispose of the whole case, was their servants, notwithstanding any condition made whether there existed in the present case any special by the company limiting such liability, every such contract in writing embodying the condition, signed condition being thereby declared to be void; provided by the owner of the goods, or the person delivering that nothing therein contained should prevent the the goods. It was insisted, on behalf of the company, company from making such conditions as to the that that requisition of the statute was answered and forwarding of such goods as the Court should deem fulfilled by the letter of the 1st of August, 1857. It reasonable ; provided also, that no special contract was contended that the words which are found in that between the company and the party forwarding the letter, “not insured,” referred to and incorporated goods should be binding on him, unless it be signed the condition. His Lordship was clearly of opinion by him, or by the person delivering the goods for that there was no foundation for that contention on carriage. their part, and he was also of opinion that it was not The special contract referred to in the proviso must, competent by any description or parol evidence so to he thought, be a contract similar to that which by interpret the words “not insured,” as to embody, or 11 Geo. 4 & 1 Will. 4, c. 68, s. 6, was excepted from incorporate, the condition itself into the letter, and the general operation of that Act, the only difference thereby make it a special contract in writing. Such being, that by the express provision of the latter Act, special contract in writing, signed by the party deliver- every such special contract must be signed by the ing the goods, must itself, either in terms or by party delivering the goods. distinct reference, set out or embody the condition in The question on the fourth plea was, whether there question. But he considered that those words, “not was such a contract in writing, signed by the plaintiff, insured,” did not refer to the written condition, or or his agent, agreeing that the goods in question afford any ground upon which the written condition should be carried on the terms stated in the plea, i. e., could be regarded or incorporated with the letter. In that the company should not be responsible for injury order to embody in the letter any other document or to them, unless declared and insured according to memorandum, or instrument in writing, so far as to their value. make it part of a special contract contained in that The only document which could be contended to be letter, the letter must either have set out the writing a document answering the description, was the letter of referred to, or so clearly and definitely referred to the the 1st of August, 1857. That letter might be taken writing, that by force of the reference the writing to be a document signed by the person delivering the itself became part of the instrument it referred to. goods; but unless it was apparent on the face of it

Even if the conditions had been just and reasonable, that the person signing it thereby agreed that the there would not be found in the present case any company should not be responsible for injury to the special contract in writing sufficient to answer the goods unless they were insured according to their exigency of the 7th section ; and he should therefore value, it was not a contract which sustained the plea. have been of opinion that in the action below, the He considered it was wholly insufficient for this purplaintiff Peek was entitled to a verdict on the fifth plea. pose. It showed that the person sending the goods

On every ground, therefore, he humbly submitted chose to send them with the incidents attaching by to their Lordships that the judgment of the Court of law to the sending of them uninsured ; but it did not Exchequer Chamber was wrong, and that the plaintiff show that he agreed to a stipulation by the conipany was entitled to a verdict upon the fourth and fifth pleas that they were to be absolved from responsibility by in the action.

reason of their being so gent, still less that ho so

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