where trinkets within the Carriers Act to the value of 250l., but the value of which was not declared under that Act, were stolen, so that if the value had been declared, the company would by virtue of the last proviso of the section and 8th section of the Carriers Act have been liable as insurers (n). The above case applies only to theft by a servant of the company. As to theft by a stranger to the company, the law is the same except that if the goods be within the Carriers Act, the company are liable only if the goods have been declared and an extra charge for them paid under that Act. CH. XV. s. 3. Theft by stranger to company. Loss of or injury to. Loss of The words "loss of or injury to" appear to have been taken from the Carriers Act. They will include either a temporary or a permanent loss arising from a mis-delivery; and they have market. been assumed to be applicable to a delay resulting in loss of market, and not in injury to the goods or animals themselves (0). "Injury." Deterioration of cattle from want of food and water is an “injury "(p). Contributory negligence on the part of the consignor would Contributory seem to excuse the company (q). negligence. The necessity of the signature applies only where the company Non-applicais seeking to exempt itself from liability by the terms of the contract, so that, if the consignor be setting up the contract, it is no consignor sets answer to say that he has not signed it (1). The limitation of liability applies to injury happening prior to booking. Where a horse backed upon some girders negligently left in the station of the defendants and was killed, it was held, by the Exchequer Chamber, that the owner could not recover more than 501., although the injury happened before the declaration of increased value could be made in the ordinary course (8). tion of section to case where up contract. Injury before booking. Horse. Dogs, it will be observed, are not expressly named in the Dogs. opening general enumeration of "horses, cattle, or other animals," and are not included in the special enumeration of "horses, neat cattle, sheep or pigs," with respect to which there is a limit of liability. They are, however, clearly included by implication in the opening enumeration (t), and were probably not mentioned therein, in analogy to the toll clauses of the special Acts which usually comprehend them under the words "sheep, pig, or other (n) Shaw v. Great Western Rail. Co., [1894] 1 Q. B. 373. (0) See Brown's case (1883), 8 App. Cas. 703, and p. 411, post. (p) Allday v. Great Western Rail. Co. (1864), 5 B. & S. 903. (q) Wise v. Great Western Rail. Co. (1856), 25 L. J., Ex. 258; 1 H. & N. 63. (r) Baxendale v. Great Eastern Rail. Co. (1869), L. R., 4 Q. B. 244, Ex. Ch. (t) Harrison v. London, Brighton and CH. XV. s. 3. Contracts). Cloak-room, Through traffic. Sea traffic. Passengers' luggage. Separable conditions. Conditions held reason able. Alternative rates small animal." With respect to the limitation of liability, there is none under the section; a contract, however, in the form held unreasonable in Ashendon's case (u), would probably be held reasonable if it contained after the words "in any case," the words "except in case of wilful misconduct," or words to the like effect (x). The 7th section has no application to goods left at the cloakroom of a station (y); but the provision of such a room is a facility which every railway company is bound to provide, and such company has a lien on goods deposited there for the payment of the cloak-room charges (2). Nor does the section apply to a contract exempting a company from liability on a railway not worked by themselves. Therefore, a through passenger from London to Paris, and whose portmanteau was lost between Calais and Paris, on a French railway, failed to recover for the loss of it from the English company (a). The section does not extend to sea traffic (b), but it extends to passengers' luggage during transit (c). If conditions are separable they may be separated, and one upheld as reasonable whilst another is held void as unreasonable (d); and a reasonable condition may be applied to a state of facts which makes it unreasonable (e). The following conditions have been held to be reasonable :— "I beg to inform you that to parties willing to free and relieve this company, and the other railway companies over whose lines fish may be forwarded from any of our stations, from all liability for loss or damage by delay in transit, or from whatever other cause arising, the company agree that the rates charged will be one-fifth lower than where no such undertaking as the annexed is granted. "[Signed for company.] "In reference to the above, I request that you will forward all fish delivered by me or on my account from any of your stations at the lower rate, and I undertake and agree to free and relieve the railway companies from all claims or liability for loss or damage. "This undertaking to continue in force from the present date (28th December, 1880) until the 31st December, 1885. "[Signed by consignor] (ƒ). (c) See p. 413, post. (d) Simons v. Great Western Rail. Co. (1856), 26 L. J., C. P. 25; M'Cance v. London and North Western Rail, Co. (1861), 7 H. & N. 477. (e) Per Martin, B., in Gregory v. West Midland Rail. Co. (1864), 33 L. J., Ex. at p. 157. (f) Manchester, Sheffield and Lincolnshire Rail. Co. v. Brown (1883), 8 App. Cas. 703; and see p. 411, post. "Goods conveyed at special or mileage rates must be loaded and unloaded by the owner or their agents, and the company will not be responsible for any risk of stowage, loss or damage, however caused, nor for discrepancy in the delivery as to either quantity, number or weight, nor for the condition of articles so carried, nor for detention or delay in the conveying or delivery of them, however caused (g). CH. XV. s. 3. Carriers (Special Contracts). "That the company will not under any circumstances, be liable for loss of Loss of market or other claim arising from delay or detention of any train, whether market. at starting or at any of the stations or in the course of the journey;" in answer to a claim arising from loss of market (h). "The bearer undertakes all risk of loading, unloading and carriage, whether arising from the negligence or default of the company or their servants, or from defect or imperfection in the station, platform or other places of loading or unloading, or of the carriage in which they may be loaded or conveyed, or from any other cause whatsoever” (1). Rooth v. rates. Brown's case. Companies often offer "alternative rates," that is, a higher Alternative rate, at which the company undertakes the full risk of a carrier, and a lower rate at which it carries upon condition of being relieved from that risk. These alternative rates have frequently come before the Courts, and the conditions have been upheld as just and reasonable, if the company offer a bonâ fide option, and if the higher rate is reasonable as well as the lower one. Such is the effect of Manchester, Sheffield, and Lincolnshire Rail. Co., apps., Brown, resp. (k), in which a fish merchant relieved the company" from all liability for loss or damage by delay in transit or from whatever other cause arising," in consideration of an alternative rate one-fifth lower than the ordinary, and the House of Lords held that such a contract was just and reasonable, and that the company were not liable for loss of market arising from a pressure of business whereby they failed to carry fish in time. The higher rate need not be published in the manner that tolls Publication are directed to be published by sect. 93 of the Railways Clauses of higher rate. 1845; the posting up the effect of it, as that it is ten per cent. above the owner's risk rate, is enough (1). An exception for "wilful misconduct "—which has passed into "Wilful m'sconditions as a common form-comprehends only actual wilful conduct.” misconduct with knowledge that it will probably result in injury (m), as where a station-master kept goods, misdirected to "Jeeves," for a week, and then delivered them, without (g) Simons v. Great Western Rail. Co. (1857), 26 L. J., C. P. 25. (h) White v. Great Western Rail. Co. (1857), 26 L. J., C. P. 158. (i) Rooth v. North Eastern Rail. Co. (1867), 36 L. J., Ex. 83. For full list, see Hodges, at p. 370. (k) Manchester, Sheffield and Lincolnshire Rail. Co., apps., Brown, resp. CH. XV. s. 3. previous inquiry of the consignor, to a person of the name of "Jarvis" (n). Railway "Detention." Power to exceed maximum for animals. Obligation to carry luggage without charge. Parliamentary trains. The withholding of cattle under a groundless claim to retain them, at the end of the transit, is not "detention" within the meaning of conditions that the company are not to be liable in respect of loss or detention or injury except upon proof that such loss, &c., arose from wilful misconduct. This was held in a case where cattle were delivered at Waterford to be carried to Gloucester, but were detained at Gloucester in consequence of the negligent omission of the defendants' clerk at Waterford to enter them on the consignment notes as "carriage paid" (o). It would seem that the "reasonable percentage," which the companies are authorised to demand by the section for the carriage of certain animals of high value, may exceed the maximum fixed by the special Acts, so far as the animals specified in the section are concerned. With regard to animals not specified, and with regard to goods, the section gives no power to exceed the maximum, and the higher "alternative rate” must in any case not exceed it (p). (d) The Carriage of Passengers' Luggage. Passengers by railways are accustomed as of right to take a certain specified quantity of luggage, for which no charge in addition to the fare is made. This right is secured by a clause of the special Act of each company. The clauses differ as to the amount allowed, but otherwise mostly follow a common form. The London and North Western Railway Company's Act of 1846, 9 & 10 Vict. c. cciv., s. 66, provides as follows :— "Every passenger travelling upon the railway in a first-class carriage may take with him his ordinary luggage not exceeding 112 lbs. in weight, and every passenger travelling in a second-class carriage may take with him his ordinary luggage not exceeding 60 lbs. in weight, and every passenger travelling in a third-class carriage may take with him his ordinary luggage not exceeding 40 lbs. in weight, without any charge being made for the carriage." Each passenger by a parliamentary train was, by sect. 6 of the Railway Regulation Act, 1844, 7 & 8 Vict. c. 85, entitled to take with him 56 lbs. weight of personal luggage, but that section, with other sections of the same Act, is repealed by the Cheap Trains Act, 1883, 46 & 47 Vict. c. 34, which Act contains no corresponding provision. (n) Hoare v. Great Western Rail. Co. (1877), 37 L. T. 186. (0) Gordon v. Great Western Rail. Co. (1881), 8 Q. B. D. 44. (p) See per Cockburn, C.J., in Peek v. North Staffordshire Rail. Co. (1863), 10 H. L. C., at p. 561. The doctrine seems now to be firmly established (q), that rail- CH. XV. s. 3. way companies receive passengers' luggage as insurers, under Railway Companies as the same responsibility as that which was held to attach to the Carriers proprietors of coaches (r). The Carriers Act clearly includes passengers' luggage; and it has been decided (s) that the 7th section of the Railway and Canal Traffic Act, 1854, does so also. (Passengers Luggage). Company liable as insurers. Carriers Act carriage. Bergheim v. Great Eastern Rail. Co. A railway company have been said not to be insurers in respect and Traffic of luggage placed at a passenger's request in the same compart- Act. ment in which he travels or intends to travel, and not to be, Luggage placed in without negligence on their part, liable to compensate the pas- passenger senger if luggage so placed is lost or stolen. So it was laid down. by the Court of Appeal in Bergheim v. Great Eastern Rail. Co. (t); but the correctness of this doctrine has been questioned by the House of Lords, which was of opinion in Bunch's case (u) that the contract as insurers subsists, "modified only to the extent that if loss happens by reason of want of care of the passenger himself, who has taken within his own immediate control the goods which are lost, their contract as insurers does not apply to loss occasioned by the passenger's own default." The passenger must be travelling in the same train with the Servant. luggage in order to recover for the loss of it, so that where a passenger sent on his luggage by a servant, and himself followed by a latter train, it was held that no action lay for the loss of the luggage (x). But a servant may sue in his own name for loss of his own luggage, although his master takes the ticket (y). If a passenger by excursion train, "no luggage allowed," takes Excursion luggage, he must pay for the carriage of it, or the company may detain it for the amount (z). The case in which a company was held not liable for the loss of luggage in an excursion train, "luggage under 60 lbs. free, at passenger's own risk," on the ground that sect. 7 of the Railway and Canal Traffic Act, 1854, () Macrow v. Great Western Rail. Co. (1871), L. R., 6 Q. B. 612; Mrs. Bunch's case, 13 App. Cas. 31, and p. 415, post. (r) Robinson v. Dunmore (1801), 2 B. & P. 416; Clark v. Gray (1805), 6 East, 564. (s) Cohen v. South Eastern Rail. Co. (1876), 1 Ex. D. 217. This case assumes what is perhaps doubtful, and that is, the right of the companies to refuse to carry luggage except upon signed conditions. (1) Bergheim v. Great Eastern Rail. Co. (1878), 3 C. P. D. 221, C. A., overruling or distinguishing Richards v. London, Brighton and South Coast Rail. Co. (1849), 7 C. B. 839; and affirming Talley V. Great Western Rail. Co. (1870) L. R., 6 C. P. 44. (u) See per Lord Halsbury, L. C., in (x) Becher v. Great Eastern Rail. Co. (y) Marshall v. York, Newcastle, and train. |