5. In consequence of the delay in delivering the said six Against hampers of cod, the same became stale, and were much de- common teriorated in value. sue. (Ib.; Drain v. Shepherd, 1 M. & Rob. 223.) If, however, there is a contract between the consignee and carrier, under which the former is liable for freight, he may sue. (Mead v. South Eastern Rail. Co., 18 W. R. 735.) carrier for nondelivery and late delivery. entitles sender to sue. A special property of the sender in a thing lost enables him to sue. Special (Freeman v. Birch, 3 Q. B. 492, n.) Where separate property of two property persons is sent in one box or parcel by a joint agent of both they may join in an action for the loss. (Metcalf v. London & Brighton Rail. Co., 27 L. J. C. P. 333.) If a master pays for his servant's ticket, and the luggage of the latter is lost or injured, the servant may sue for the loss or injury in his own name, the tort being independent of contract. (Martin v. Great Indian Peninsular Rail. Co., L. R. 3 Ex. 9; Austin v. Great Western Rail. Co., L. R. 2 Q. B. 442.) See post as to injury to person by negligence of carriers. In cases where the cause of action is loss through delay or by reason of the defendant's neglect to carry, the person damnified should bring the action. Defence that the goods were within sect. 1 of 11 Geo. 4, and their value not declared.]-This defence formerly required to be set forth by a special plea, and of course it must now be stated in a not less specific manner. Value not Acts or default of consignor.]-If the plaintiff has not properly packed Consignor's goods that are brittle and they are broken or injured he cannot recover own default from the carrier if the latter has used due care. It has been thought that contribut where the foundation of the action is negligence and non-performance ing to loss. of duty so as to be founded on tort rather than on contract, it would be a defence that the loss was owing to the plaintiff's own default. (Burrows v. March Gas Co., L. R. 5 Ex. 67.) Where it was proved that the defendant's cart was unfit to carry the plaintiff's goods and that they were improperly packed, evidence would be admissible to show that the plaintiff himself packed them and represented them as under their real weight, thus causing the defendant to put them in a cart which was too slight or small for them, assuming of course that the nature of the defence is set forth on the pleadings. (Webb v. Page, 6 M & G. 196.) Fraud.]-If the consignor fraudulently concealed the value and risk Fraudulent from the carrier in order to be charged at a lower rate for carriage, he concealcannot recover on account of a loss occasioned through such concealment. ment of (M' Cance v. London & North Western Rail. Co., 31 L. J. Ex. 65.) risk. If a person intentionally makes false answers to the carrier's inquiries, the contract is void on account of fraud. (Walker v. Jackson, 10 M. & W. 168, 169.) It was formerly necessary to plead such a defence specially; now it is equally essential to set forth the defence with sufficient explicitness. Shipowners and master of ship liable as insurers. COMMON CARRIERS BY SEA.]-The owners of a general ship and the master were liable at Common Law as common carriers, that is to say, they were bound to redeliver the goods delivered into their charge, the act of God and the Queen's enemies only excepted. But this extensive liability is limited: (1) By the bill of lading which the master gives to the consignor of the goods and which evidences the contract between How this the parties; and (2) by the operation of several statutes. It is usual for liability is the bill of lading to contain an exception from liability for "accidents restricted. or damage of the seas"; but this exception does not protect the ship Against common carrier for nondelivery and late delivery. The plaintiff claims : (1.) £10 for the deterioration in the value of the six hampers of cod. owner or the master from liability for loss or damage caused by the negli gence of the crew. (Grill v. General Iron Screw Colliery Co., L. R. 3 C. P. Liability of 476, Ex. Ch.) So an exception for "breakage, leakage, or damage," does shipowners not protect the shipowners from liability for damage accruing through and ship- the negligence of their servants. (Martin v. Great Indian Peninsular master. Rail. Co., L. R. 3 Ex. 9; Czech v. General Steam Navigation Co., L. R. 3 C. P. 14.) But it is said that the effect of such exceptions is to shift the onus of proof, and oblige the plaintiff to prove affirmatively the negligence of the defendant's servants. (The Helene, B. & L. 429, P. C.; L. J. 35 P. C. 63.) Limited with respect to accidental fires on shipboard and robbery of certain articles. Shipowner not liable beyond so much a ton of the ship's tonnage. Coming next to the statutory limitations of the shipowner's liability, there is the 17 & 18 Vic. c. 104, by which it is provided (sect. 503) that no owner (it must be noted nothing is said about the master, and he does not seem to get the benefit of this statute) of any sea-going ship shall be liable to make good to any extent whatever any loss or damage that may happen without his actual fault or privity of or to goods or things taken on board by reason of fire happening on board, or of or to any gold, silver, diamonds, watches, jewels, or precious stones on board by reason of robbery or embezzlement, unless the shipper shall at the time of shipping the same have inserted in his bill of lading, or otherwise have declared in writing to the master or shipowner their true nature and value. It will be noted that this statute protects a shipowner entirely for loss by fire not occasioned by his personal default occurring to goods generally; but that the exemption for liability resulting from robbery of goods is strictly confined to certain classes of valuables specified in the Act. The next statute is the 25 & 26 Vic. c. 65, which by its 54th section enacts that the owners (no mention of the master) of any ship, whether British or foreign, shall not in cases which occur without their fault or privity be answerable in damages in respect of loss or damage to any goods, merchandise or other things on board, to an amount exceeding £8 for each ton of the ship's tonnage; but it has been decided that the section does not extend to protect the shipowner for damage caused by delay. (London & South Western Rail. Co. v. James, L. R. 8 Ch. 241.) Neither A third statutory exemption is found in the 388th section of the shipowner 17 & 18 Vic. c. 104, which provides that neither owner nor master is nor master liable for loss or damage occasioned by the fault or incapacity of a liable for qualified pilot, where the employment of one is compulsory. Except, default of however, in cases coming within one or other of these exceptions, or pilot. where the bill of lading limits the liability of the shipowner and master of a general ship, the latter are both liable to the consignor or consignee of the goods as insurers of the same, and bound to deliver safely unless the loss is occasioned by the act of God or the Queen's enemies. Liability of carrier of passengers less than that of carrier of goods. CARRIERS OF PERSONS-ACTIONS AGAINST.]-The liability of passenger carriers is more limited than that of carriers of goods. They are not insurers of the persons of the passengers and are only liable for want of due care. (Readhead v. Midland Rail. Co., L. R. 4 Q. B. 379 Ex. Ch.) They are not liable for accidents caused by hidden defects in their carriages which could be guarded against in the process of construction or by subsequent observation. (Readhead v. Midland Rail. Co., supra.) But they are liable for defects in their carriages caused by the negligence of their sub-contractors. (Frances v. Cockrell, L. R. 5 Q. B. 184; and Ex. Ch. Ibid. 501.) (2.) £20, the value of the four hampers undelivered by the Against defendants. common carrier for non delivery, &c. Liability of carriers of passengers. If a railway company issues a ticket for a journey extending beyond their own line, that is evidence of a contract to carry over the other as well as their own line, and their liability to the passengers in such cases is not affected if the injury is caused on the line not belonging to them. (Buxton v. North Eastern Rail. Co., L. R. 3 Q. B. 549; Thomas v. Rhymney Rail. Co., L. R. 5 Q. B. 226; S. C., Ex. Ch. L. R. 6 Q. B. 266.) However, they are not liable for the wrongful act of third persons over whom they have no control. (Wright v. Midland Rail. Co., L. R. 8 Ex. 137.) A carrier may contract himself out of his liability for negligence. (See Me Cawley v. Furness Rail. Co., L. R. 8 Q. B. 57; Gallin v. London and North Western Rail. Co., L. R. 10 Q. B. 212.) The issuing of a ticket for a journey from one place to another is evidence of a contract to convey the passenger within a reasonable time on such journey, but not that the train shall arrive at the time expected. (Hurst v. Great Western Rail. Co., 34 L. J. C. P. 264.) Railway companies are liable to any person who has taken a ticket for a train advertised in their time- within bills to run at a particular time if it does not run (Denton v. Great reasonable Northern Rail. Co., 25 L. J. Q. B. 129), or there is not room in it for time. such person. (Great Northern Rail. Co. v. Haweroft, 21 L. J. Q. B. 178.) Where railway companies stipulate in their time-tables, &c., that they will not be responsible for delays in arrival or departure of trains, they will still be liable for unreasonable delays, though they are not liable in case of reasonable delay. (Prevost v. Great Eastern Rail. Co., 13 L. T. N. S. 20.) Where passengers are carried at their own risk (as in the case of cattle drovers holding a free pass with such a stipulation), the carrier is not liable for injuries through negligence, either on the transit or on the company's premises, in consequence of their being in a dangerous condition. (Gallin v. The London and North Western Rail. Co., 44 L. J. Q. B. 80.) A similar contract with one company protects another company over whose lines the passenger is carried for injuries caused through the negligence of the latter on their line. Issuing ticket evidence of contract to carry Where passenger is carried by a free pass. Liability of carrier for passenger's Liability for personal luggage.]-With regard to the luggage of passengers it seems that the liability of carriers with reference to it is the same as with reference to ordinary goods. (Richards v. London & Brighton Rail. Co., 7 C. B. 839; Macrow v. Great Western Rail. Co., L. R. 6 luggage. Q. B. 612, 618.) See, however, Stewart v. London & North Western Rail. Co., 33 L. J. Ex. 199, where Pollock, B., says that the liability with regard to luggage is only co-extensive with the liability as regards the passengers, and see Tallay v. Great Western Rail Co., L. R. 6 C. P. 44, 50, 51. Personal luggage means the class of articles which are ordinarily or usually carried by passengers as their luggage. (Hudston v. Midland Rail. Co., L. R. 4 Q. B. 366; Macrow v. Great Western Rail. Co., supra.) See decisions on questions whether certain things were personal luggage. (Macrow v. Great Western Rail. Co., supra; Phelps v. London & North Western Rail. Co., 34 L. J. C. P. 259; Mytton v. Midland Rail. Co., 4 H. & N. 615; 28 L. J. Ex. 385; Becher v. Great Eastern Rail. Co., L. R. 5 Q. B. 241.) Where passenger If a railway company which, by the terms of its regulations allows a passenger to take personal luggage, takes as luggage what it knows to be merchandise, it cannot claim exemption from liability for the loss of such takes mermerchandise, on the ground of its not being personal luggage; but if a pas- chandise senger who knows he is only entitled to take personal luggage takes as personal merchandise, he is not entitled to recover for its loss from a railway com- luggage. pany to whom he has given no notice of the contents of the package; he Defence to action against common carrier for loss and delay. What damages a passenger may or may not recover from the carrier. Contributory negligence. Defence in case of lug gage that passenger took it under his own care. Luggage deposited in" cloak" room. Statement of Defence. 1. The defendants deny that, on the 1st of February, 1875, Messrs. F. & M., of B., delivered to the defendants ten ham takes it at his own risk. (Cahill v. London & North Western Rail. Co., 31 L. J. C. P. 271; Belfast & Ballymena Rail. Co. v. Keys, 9 H. L. Cas. 556.) The fact of a package being marked "Glass" is not sufficient notice to a company that the contents are merchandise within the meaning of the foregoing propositions. (Ib.) Measure of damages. ]-If in consequence of the wrongful delay or erroneous information of a carrier, a passenger is obliged to hire another conveyance or to stop a night on his journey, he can recover his expenses. but he is not entitled to general damages for the derangement or loss of business, trouble, or inconvenience caused to him. (Great Northern Rail. Co. v. Hawcroft, 21 L. J. Q. B. 178; Denton v. Great Northern Rail. Co., 25 L. J. Q. B. 129; Woodger v. Great Western Rail. Co., L. R. 2 C. P. 318.) Where a railway company instead of conveying the plaintiff to the station to which she had booked turned her out on a wet night where she could get no accommodation or conveyance, and in consequence she had to walk a distance of four miles to her home, whereby she took a cold and was laid up, and incurred expense in getting cured, and was hindered in her business, she was held entitled to recover damages for the inconvenience suffered in consequence of being obliged to walk home, but not for the other consequences just mentioned, they being regarded as too remote. (Hobbs v. London & South Western Rail. Co., L. R. 10 Q. B. 111.) With regard to personal injuries or death of a passenger caused by the negligence of carriers besides other damages, the plaintiff can recover in proportion to the average income of the person injured or killed at the time of the accident. See" Negligence,” and “ Executors and Administrators." Defences.]-Denial of negligence is one of the most usual defences set up in actions against passenger carriers, and in the large class of cases where injuries are caused by railway collisions or trains running off the lines or the like, is as a rule the only available defence. But where an action is brought in the case of isolated accidents, as where a passenger steps out of a railway carriage, on its stopping a short distance behind or beyond the platform in consequence of the train being pulled up too soon or its "over-shooting" the platform, the defence of contributory negligence is generally set up together with the denial of the negligence. These defences will be found noticed under the head of negligence. With regard to the loss of luggage it is a good defence that the owner thereof has specially undertaken to watch it. (Brind v. Dale, 2 M. & W. 775.) It is also a good defence in such cases that the loss was occasioned by the passenger's negligence. (Talley v. Great Western Rail. Co., supra.) But where carriers provide servants to assist passengers to remove their luggage on arrival, the liability of the carriers continues until the servants have done their duty, such as placing the luggage in a cab. (Richards v. London, Brighton, & South Coast Rail. Co., 7 C. B. 839; Butcher v. London & South Western Rail. Co., 24 L. J. C. P. 137. See also Patscheider v. Great Western Rail Co., 38 L. J. N. S. 149.) Where articles are deposited in the cloak-room at a railway station and a ticket is given, on which is printed "see back," and on the back is an intimation that the company will not be responsible for any package pers of cod, as alleged in the statement of claim. Messrs. Defence to F. & M., of B., did deliver to the defendant, on the evening of action against the 2nd of February, 1875, six hampers of cod, to be by them common safely and securely carried and delivered to the plaintiffs carrier for at M. 2. The defendants deny the 3rd paragraph of the statement of claim. 3. The defendants say that on the morning of the 4th of February, 1875, they delivered the said six hampers of cod to the plaintiff, and deny that they failed to deliver the same within a reasonable time. 4. The defendants do not admit the 5th paragraph of the statement of claim. Action for injury to Goods during transit. 1. The defendants are common carriers of goods. loss and delay. Against injury to carrier for 2. On or about the 1st of May, 1875, the plaintiff delivered to the defendants, and the defendants, as such common carriers, received from the plaintiff two packages of glass, to be by goods. them safely and securely carried from N. to M., for reward in that behalf. 3. On the arrival of the said packages of glass at M., they exceeding the value of £10, in an action for over £10, the jury found Effect of that the plaintiff neither read nor knew the condition, and that he was conditions not guilty of negligence in not so reading or knowing. It was held that printed on the defendants' liability was established by these findings, the con- tickets tract being one of bailment simply, and that it was necessary for a given on person seeking to impose special terms to show they brought them to the depositing knowledge of the other party. (Parker v. South Eastern Rail. Co., 45 luggage. L. J. C. L. 515.) But see Harris v. Great Western Rail. Co., ib., 729, in which it is broadly laid down that if a cloak-room ticket has on the face of it an unequivocal reference to the conditions printed on the back of it, the person taking the ticket is bound by the conditions, whether he has made himself acquainted with them or not. These cases were all examined by the Court of Appeal in Parker v. South Eastern Rail. Co., and Gabell v. South Eastern Rail. Co. (46 L. J. C. L. 771), where the law was thus laid down by Mellish, L. J.: "If the person receiving the ticket did not see or know that there was any writing on the ticket, he is not bound by the conditions; if he knew there was writing, and knew or believed that the writing contained conditions, then he is bound by the conditions; if he knew that there was writing on the ticket, but did not know or believe that the writing contained conditions, nevertheless he would be bound if the delivering the ticket to him in such a manner that he could see there was writing upon it, was in the opinion of the jury reasonable notice that the writing contained conditions." Decision of Court of Appeal. |