2. The defendants failed to deliver the said six hampers of cod to the plaintiff in a reasonable time, but delivered them

to the goods or their owners. (Bridden v. Great Northern Rail. Co., 28 L. J. Ex. 51.)

What is

Common carriers are, by the common law, insurers of the goods they They are carry against all accidents except the act of God (i.e. things which could insurers of not happen by the intervention of man, as storms, lightning, and tempest), the goods and the Queen's enemies. In order to come within the exception of loss they carry. by the act of God, the loss need not have been caused directly and exclusively by such a direct, violent, sudden, and irresistible act of nature as the carrier could not by any amount of ability foresee or resist, so as to prevent its effect. A loss is a loss by the act of God if occasioned by the elementary forces of nature, unconnected with the agency of man or other cause. If the loss is occasioned partly by the act of God as above defined and partly by some other cause which, if it had been the sole cause of the loss, would have furnished a defence, the carrier will be entitled to immunity in respect of such loss, if he can show that it could not have been prevented by any amount of forethought and care reasonably required of him. (Nugent v Smith, 1 C. P. Div. 425; 45 L. J. C. P. 697, App.)

"the act of

God."

Carriers of live stock are not liable for injuries caused by the inherent Injury vice of an animal; they are exempted from liability in this respect if through they provide for the carriage a truck that is reasonably fit for the purpose. vice of (Blower v. Great Western Rail. Co., L. R. 7 C. P. 655; 41 L. J. C. P. 2, animal explaining Carr v. Lancashire & Yorkshire Rail. Co., 21 L. J. Ex. 263; carried. and see Richardson v. North Eastern Rail. Co., L. R. 7 C. P. 75; and Gill v. Manchester, &c., Rail. Co., L. R. 8 Q. B. D. 186; 42 L. J. Q. B. 89.) Nor are carriers liable for injuries to goods arising through ordinary wear and tear, or friction during the journey, or for the natural decay of tear, &c. perishable goods. (Story, Bailments, cited with approval, in Blower v. Great Western Rail Co., supra.)

Common carriers from a place within to a place without the realm are subject to the same liabilities as those within the realm. (Crouch v. London & North Western Rail. Co., 23 L. J. C. P. 73.)

Wear and

Carriers may generally limit their business to certain goods, but must do so by a public profession of what goods they are willing to carry; in such cases they are not bound to carry any others. (Johnson v. Midland Rail. Co., 4 Ex. 367; Oxlade v. North Eastern Rail. Co., 26 L. J. C. P. 129.) They may limit or modify their common law liabilities by contract, where persons are willing to enter into such stipulations with them. Thus a carrier of furniture for hire who stipulated with the customer that he should only be liable for breakages not exceeding £5 for any article, was held not liable for the destruction during transit by fire without special negligence on his part of the whole of the goods received by him to be contract. carried. (Scaife v. Tarrant, 44 L. J. Ex. 234, Ex. Ch. ; L. R. 10 Exch. 359.)

Carriers may limit their liability by

Statutory modification of liability.]—But railway and canal com- Statutory panies can only limit their liability by contracts which are signed and modificawhich in the opinion of the Court are reasonable. The liability of carriers tion of has been modified by the following enactments, of which it is proposed liability. to give a summary, adding after each the most important modern decisions:

11 Geo. 4 & 1 Will. 4, c. 68 (Carriers Act), explained by 28 & 29

Vict. c. 94.

17 & 18 Vict. c. 31 (Railway and Canal Traffic Act).

31 & 32 Vict. c. 119 (Regulation of Railways Act, 1868.)

34 & 35 Vict. c. 78.

Carrier by
land not
liable for
loss, &c.,
of specified

articles if

above £10 in value, unless value declared at time of delivery to carrier.

Carrier may demand increased charge.

To give a receipt for increased freight.

General

notices limiting

liability invalid.

two days after the time when they ought to have been delivered and when they had become stale and valueless.

Particulars of damage :

Six hampers of cod at £5 per hamper. £30 00
The plaintiff claims £30.

The 11 Geo. 4 & 1 Will. 4, c. 68, provides :

Sect. 1. That no common carrier by land for hire shall be liable for the loss of or injury to any articles of the descriptions following; (that is to say.)-gold or silver coin of this realm or of any foreign state, or any gold or silver in a manufactured or unmanufactured state, or any precious stones, jewellery, watches, clocks, or time-pieces of any description, trinkets, bills, notes of the Governor and Company of the Banks of England, Scotland, and Ireland respectively, or of any other bank in Great Britain or Ireland, orders, notes, or securities for payment of money, English or foreign, stamps, maps, writings, title deeds, paintings, engravings, pictures, gold or silver plate or plated articles, glass, china, silks in a manufactured or unmanufactured state, and whether wrought up or not wrought up with other materials, furs or lace (not machine-made, 28 & 29 Viet. c. 94), or any of them,-contained in any parcel which shall have been delivered, either to be carried for hire, or to accompany the person of any passenger, in any mail or stage coach or other public conveyance, when the value of such articles contained in such parcel or package shall exceed £10, unless at the time of the delivery thereof at the office, warehouse, or receiving house of such common carrier, or to his book-keeper, coachman, or other servant, for the purpose of being carried or of accompanying the person of any passenger, the value and nature of such articles shall have been declared by the person sending or delivering the same, and the increased charge hereinafter mentioned, or an engagement to pay the same, be accepted by the person receiving such parcel or package.

Sect. 2 authorises the demand of an increased rate of charge for such articles, notified by a notice publicly affixed in the carrier's office, which all persons sending parcels are to be bound by without further proof of the same having come to their knowledge.

Sect. 3 provides "That when the value shall have been so declared, and the increased rate of charge paid, or an engagement to pay the same shall have been accepted, as herein before mentioned, the person receiving such increased rate of charge or accepting such agreement, shall, if thereto required, sign a receipt for the package or parcel acknowledging the same to have been insured, which receipt shall not be liable to any stamp duty, and if such receipt shall not be given when required, or such notice as aforesaid shall not have been affixed, the

carrier

shall not have or be entitled to any benefit or advantage under this Act, but shall be liable and responsible as at the common law, and be liable to refund the increased rate of charge."

By sect. 4, no public notice or declaration heretofore made, or hereafter to be made, shall be deemed or construed to limit or in anywise affect the liability at common law of any such public common carriers in respect of any articles or goods to be carried by them; but all such common carriers shall be liable, as at the common law, to answer for the loss of or injury to any articles and goods in respect whereof they may not be entitled to the benefit of the Act, any public notice or declaration by them made and given contrary thereto, or in anywise limiting such liability, notwithstanding.

By sect. 5, for the purposes of the Act, every office, warehouse, or re

Defence.

1. The said six hampers of cod were delivered to the defendants and received by them under a special contract in

ceiving house, used or appointed by such common carrier for receiving parcels, shall be taken to be the receiving house or office of such carrier; and any one or more carriers may be sued without joining their coproprietors.

By sect. 6, nothing in the Act shall be construed to annul or affect any special contract between such common carrier and any other parties for the conveyance of goods and merchandises.

By sect. 7, a person who has insured, as above, may recover back the extra charge as well as the value of the goods lost or damaged.

By sect. 8, nothing in the Act shall be deemed to protect any common carrier for hire from liability to answer for loss or injury to any goods whatsoever arising from the felonious acts of any coachman, guard, bookkeeper, porter, or other servant in his employ, nor to protect any such coachman, &c., from liability for any loss or injury occasioned by his own personal neglect or misconduct.

By sect. 9, common carriers shall be liable to pay only the actual value, as proved, not exceeding the declared value, together with the increased charges paid by the owner.

Contracts to carry partly by land and partly by sea are divisible, and as to the land journey, the carrier is within the protection of the above Act. (Le Conteur v. London and South-Western Rail. Co., L. R. 1 Q. B. 54; Baxendale v. Great Eastern Rail. Co., L. R. 4 Q. B. 244, Ex. Ch.)

It was held that a packed wagon sent for carriage by the defendants is a parcel or package under the 1st section of the above Act. (Whaite v. Lancashire and Yorkshire Rail. Co., L. R. 9 Ex. 67.) So the frame of a picture as being accessory to the picture itself. (Henderson v. London and South-Western Rail. Co., L. R. 5 Ex. 90.) Where a packing case contains articles some within the statute and some not, the value of the case and of the articles not within the statute may be recovered, though the statute has not been complied with as regards the articles within the statute. (Treadwin v. Great Eastern Rail. Co., L. R. 3 C. P. 308.) Where the plaintiff sent a valuable picture by railway and declared its nature and value at the time of its delivery for carriage, and the company did not demand any increased rate to which they were entitled under section 2 of the above Act, and only the ordinary charge was paid, the carrier was held not protected by the statute for an injury to the picture during the journey. (Behrens v. Great Northern Rail. Co., 7 H. & N. 950, 953; 31 L. J. Ex. 299, 300.) The word "paintings" in the Act means articles of artistic value as paintings; and models and working designs for carpets and rugs, painted by hand and skilfully designed, but of value in the carpet trade only, are not within the class designated. (Woodward v. The London and North-Western Rail. Co., 3 Ex. D. 121; 47 L. J. Ex. 263.)

Special contracts not affected.

Act not to protect carrier against the felonious act of his servant.

What

articles are and what are not

within the

Act.

A carrier is not deprived of the protection afforded by the Carriers Act Carriers merely by the fact that the loss of goods is temporary, and not permanent, nor can the owner of goods which ought to have been, but which were not, declared pursuant to the statute, recover damages for the consequences of the loss of them, as distinguished from the loss itself. (Millen v. Brasch, 10 Q. B. Div. 142, C. A.)

Since the passing of this Act, if articles mentioned in section 1 are sent without declaring their value, carriers who have complied with the requirements of the Act are not liable for a loss even though occasioned

not protected where delay ground of

action.

Evidence

of loss by felonious

act.

Railway companies, &c., not liable

beyond specified sums for certain

animals

unless

value declared and increased charge paid.

No special

contract

binding unless

signed by the party.

Test for determining reasonableness of condition.

writing, made between the defendants and the said John Smith on the plaintiff's behalf, by which it was agreed, in con

by gross negligence on the part of their servants, or semble of themselves. (Hinton v. Debbin, 2 Q. B. 646.) Wilful misfeasance would however render them liable (ibid.).

In an action against carriers for loss, where the value has not been declared, on the ground that the goods were stolen by the carrier's servants, it is not necessary that the plaintiff should prove that any par ticular servant had stolen them. (Vaughton v. London & North-Western Rail. Co., L. R. 9 Ex. 93; see also Kirkstall Brewery Co. v. Furness Rail. Co., L. R. 9 Q. B. 468 ; and Way v. The Great Eastern Rail. Co., 1 Q. B. D. 692; 45 Q. B. 574.)

Railway and Canal Traffic Act, 17 & 18 Vict. c. 31.-The 7th section provides that every railway or canal company shall be liable for loss of or injury done to any horses, cattle, or other animals, or to any articles, goods, or things, in the receiving, forwarding, or delivering thereof, occasioned by the neglect or default of the company or its servants, notwithstanding any notice, condition, or declaration made and given by such company contrary thereto, or in anywise limiting such liability; and every such notice, condition, or declaration is declared to be null and void. Provided that nothing therein shall be construed to prevent such companies from making such conditions with respect to receiving, forwarding, and delivering such animals, articles, &c., as shall be adjudged by the Court or judge before whom any question relating thereto shall be tried, to be just and reasonable. The section further provides certain limits to damages recoverable for loss or injury to any of such animals (namely, a horse, £50; neat cattle, £15 each; sheep and pigs, £2 each), unless the person sending or delivering the same to the company shall, at the time of delivery, have declared them to be of higher value, in which case the company may charge a reasonable percentage on the excess of value above the limited sum, to be paid in addition to the ordinary charge, such percentage to be notified in the manner prescribed by the Carriers Act (s. 2), and to be binding on the company as therein mentioned. Proof of the value and amount of injury to lie on the claimant. No special contract between the company and the other parties respecting the receiving, forwarding, or delivering of any goods, &c., shall be binding on or affect such party, unless it be signed by him or the person delivering the goods for carriage. Nothing in the Act is to alter or affect the rights or liabilities of the company under the Carriers' Act, with respect to the articles mentioned in that Act.

It has been held that this section only applies to carriage of goods over lines which the company are working themselves, and not to contracts by the company to carry over other lines. (Zunz v. South-Eastern Rail. Co., L. R. 4 Q. B. 539.) But where the company contract to carry over their own as well as other lines, they must prove that the loss did not occur on their line in order to avail themselves of a condition of nonliability. (Kent v. Midland Rail. Co., L. R. 10 Q. B. 1.)

The question of what conditions limiting liability will be considered by the Court fair and reasonable has frequently arisen. In Peek v. Staffordshire Rail. Co., 10 H. L. Cas. 473; 32 L. J. Q. B. 241, all the cases on the subject up to that time are elaborately examined; and in the case of Brown v. The Manchester, Sheffield & Lincolnshire Railway Co., in the House of Lords, in the present year, the authorities were again reviewed. In that case the plaintiff, a fish merchant, signed a contract by which, in consideration of the defendants carrying his fish at a rate one-fifth less than the ordinary rate, he agreed to free the defendants from "all liability for loss or damage by delay in transit or

sideration of a lower rate of freight, that the said cod should be carried at owner's risk, and that the defendants should not be liable for any delay in the delivery of the same.

from whatever cause arising.' It was held by the Court of Appeal (10) Q. B. Div. 250), overruling the Q. B., that, as by the exigencies of trade the plaintiff, in order to compete with others in the trade, was obliged to send his fish at the lower rates offered by the defendants, he practically had no option, and therefore the contract was not just or reasonable. This decision was overruled in the Lords. (8 App. Cases, 703.)

Passengers' luggage is within section 7 of the Act, and therefore railway companies are liable for loss of or injury to such luggage occasioned by their neglect, notwithstanding any notice given by them. (Cohen v. South-Eastern Rail. Co., 2 Ex. Div. 253; 46 L. J. Ex. 417; overruling Stewart v. London & North-Western Rail. Co., 33 L. J. Ex. 199.)

Regulation of Railways Act, 1868 (31 & 32 Vict. c. 119).-The Act applies to the owners, whether companies, or individuals, of the whole or any part of a railway or tramway, whether worked by steam or otherwise. (Sect. 2.)

If journey partly by sea, a notice exempting from liability for injury through fire, &c., at sea, if published in the

By sect. 14 where a company, by through booking, contracts to carry any 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 booking. consignor a bill of lading containing such condition. For the purposes office, is of this section the word "company "includes the owners, lessees, or binding. managers of any canal or other inland navigation.

The 34 & 35 Vict. c. 78, enacts (sect. 12), that where railway companies under contract to carry passengers or goods by 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 belonged to them.

delivery to carrier.

What is sufficient delivery to carrier.]—In the case of shipowners, a Decisions delivery of goods at the wharf or quay to some person accredited for the as to what purpose, binds the shipowner. (British Columbia, &c., Co. v. Nettleship, amounts to L. R. 3 C. P. 499.) A delivery to the driver of a stage-coach is sufficient to make the proprietor liable. 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 they were lost, it was held that the company was not liable as on contract, the delivery not being in due course, and there being no evidence that the porter had or professed to have power to contract with the plaintiff otherwise than in the ordinary course. (Slim v. Great Northern Rail. Co., 23 L. J. C. P. 166.)

Non-delivery by carrier.]-In the absence of any express agreement Where the or usage, carriers by land are bound to deliver to or at the residence of carrier the consignee; and with regard to carriers by sea, it seems to be suffi- should decient if the captain deposits the goods in some place of safety, and gives liver. notice to the consignee. (Hyde v. Trent & Mersey Navigation Co., I. R.