THE

CANADIAN LAW TIMES.

JANUARY, 1900.

THE CONTRACTS OF RAILWAY COMPANIES LIMITING LIABILITY.

THE question calling for consideration in the present

article is the difficult one of the extent of a railway company's liability as carrier of passengers and goods, in view of the provisions of the Railway Acts of Ontario and Canada which say that a railway company shall not be relieved by any notice, condition, or declaration, if the damage arises from negligence or omission of the company or its servants.

In order to discuss this subject intelligently, it will be necessary to take a short review of the history of the law affecting carriers, before its enactment, and to refer to corresponding but not identical English provisions which govern cases frequently cited in our Courts.

The law affecting carriers has always been in an anomalous condition, as their liabilities for many years were not governed only by the terms of a contract or by the general law of negligence where no agreement exists, but by certain peculiar and stringent rules enunciated two centuries ago. Its history best summed up by Sir John Beverley Robinson in Ham v. Pherson (a), where he says: "It seems to have been at first a general principle of common law applying to the case of common carriers, as well as to bailees for hire, that they were to take reasonable care of the goods intrusted to them, and were to be liable only for losses arising from their neglect;

(a) 60. S. at p. 363.

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but afterwards, for the security of persons engaged in commerce, it was laid down and maintained as a principle that a common carrier should be held liable for goods delivered to him to carry in all cases except where the losses occurred from the act of God or the King's enemies, by which latter is meant the public foreign enemies of the King, for carriers are liable in case of the destruction of the goods by the irresistible violence of rebels and rioters."

There is a third exception to the carrier's general liability, namely, where the damage to the article carried arises from some defect or vice inherent in the thing itself. The authority for this third exception is Nugent v. Smith (b), decided in 1865, and therefore long after Sir John Robinson's decision. With these three limitations, carriers are at common law insurers of the goods they profess to carry for hire.

It is stated by that learned Judge that the rule he enunciates is as old as Queen Elizabeth; and Lord Holt, in Coggs v. Bernard (c), refers to and relies upon Mors v. Slue, decided in 26 Car. II., reported in Raymond at p. 220 and 1 Vent. 190 and 238.

In support of the proposition under discussion Lord Holt quotes the civil law, and therefore the rule lying at its root has all the respectability of a very hoary antiquity. The reasons given are those referred to by Powell, J., and Lord Holt, the latter saying: "That it was contrived by the policy of the law for the safety of all persons the necessity of whose affairs oblige them to trust these sort of persons, that they may be safe in their ways of dealing; for else these carriers might have an opportunity for undoing all persons that had any dealings. with them by combining with thieves, etc., and yet doing it in such a clandestine manner as would not be possible to be discovered" a line of argument which does not pay a high compliment to the carriers of Lord Holt's time, and recalls thrilling tales of those days when the stage-coach driver and the highwayman were in league to beset the adventurous traveller and despoil him of his goods.

(b) 1 C. P. D. 423.

(c) 1 Sm. L. C., 9th ed., p. 354.

Powell, J., in the same case, says that, while not liable for damages arising from the act of God or the King's enemies, a carrier is liable for other accidents, because he has his remedy over against the person causing them, as in the case of goods stolen from him, where "an appeal of robbery will lie, wherein he may recover the goods, which cannot be had against enemies.”

But, however strong the necessity for such a rule might be, the desire to promote the public welfare, and to protect their patrons against their nefarious connivances with thieves was not felt by people who, as common carriers, were bound to accept all goods which they professed to convey upon a tender thereof, and the price of carriage, to such an unusual extent that they did not attempt to escape from its results either by notice given to all consignors with more or less publicity, or by entering into a special contract when receiving the consignment. Provided that the carrier could show that the notice or contract came to the knowledge of the consignor, he would then be absolved from liability to pay damages arising from any of the excepted risks, and this extended to his own negligent acts, and those of his servants, if the contract was sufficiently explicit (d).

If the owner could show that he received no consideration for the exemption he granted other than the promise to convey the goods, it has been suggested, but apparently not authoritatively decided, that, as the carrier was bound by law to carry them anyway, the exemption granted would fail for want of consideration (e), and it has also been held that a carrier may be sued in tort for damages where he refuses to convey goods which he professes to carry, unless a special contract is signed, if the owner can prove tender of the goods and of a reasonable compensation (f); but at common law in other cases the owner had no option but to sign the agreement presented to him, or keep his goods at home. Except in the

(d) Hinton v. Dibbin, 2 Q. B. 646; Hamilton v. Grand Trunk R. W. Co., 23 U. C. R. 600; Bates v. Great Western R. W. Co., 24 U. C. R. 544; and Spettigue v. Great Western R. W. Co., 15 C. P. 315.

(e) Richards, J., in Sutherland v. Great Western R. W. Co., 7 C. P. 409.

(f) Leonard v. American Express Co., 26 U. C. R. 533.