8 Vict. c. 20, 8. 88.

Apportionment of tolls.

Guarantee of capital of another company.

Agreement to regulate competition.

Amalgama

tion is invalid.

Company may agree not to carry.

Transfer of

rights to new company.

Contracts not

to affect persons not par

ties thereto.

considered valid. (See, too, S. Yorkshire Ry. & River Dun Co. v. Gt. N. Ry. Co., 3 D. M. & G. 576).

A provision that the receipts from through traffic shall be apportioned between the companies according to their mileage proportion with an allowance for working expenses, is valid (Llanelly R. & Dock Co. v. L. & N. W. Ry. Co., L. R. 7 H. L. 550). The tolls payable may be calculated on a graduated system. Thus, an agreement giving one company power to carry coals over the line of the other, was held good, where the consideration agreed upon was, that if less than a certain amount of coals should be carried during any six months, such tolls should be paid as would enable the company to pay 3 per cent. on their called-up capital less the clear profits they might make in the same six months, the sum to be paid being increased according to the amount of coals carried, up to 400,000 tons, but there being no increase beyond that sum, and that if the advance in quantity should raise the dividend to £4 10s. per cent., the toll should never fall below the sum which would enable that dividend to be paid (Gt. N. Ry. Co. v. S. Yorkshire Ry. & River Dun Co., 9 Ex. 55, 642; 7 R. C. 773; 22 L. J. Ex. 305; 23 ib. 186).

But if the consideration amounts to a guarantee by the running company of the dividends upon the share capital of the other, irrespective of the amount of traffic carried, the agreement is bad.

Thus, an agreement under which one company is to carry the whole traffic of the other company in consideration of such "toll" as will when added to the net profits of the second company make up its dividend to a certain amount, is not valid under this section (Simpson v. Dennison, 10 Hare, 51; 16 Jur. 830).

It seems two companies having the same termini may, in order to avoid competition, come to an agreement with reference to the traffic along existing routes on their lines, with a view to distribute such traffic and the revenue derived from it between the two companies (Hare v. L. & N. W. Ry. Co., 2 J. & H. 480). See the judgment in that case, where Shrewsbury & Birmingham Ry. Co. v. L. & N. W. Ry. Co., 7 R. C. 531; 2 Mac. & G. 324; 3 Mac. & G. 70; 17 Q. B. 652; 16 Beav. 441; 4 D. M. & G. 115; 6 H. L. 113 are discussed; and see Lancaster & Carlisle Ry. Co. v. N. W. Ry. Co., 2 K. & J. 293).

It has been said, however, that such an agreement would be illegal, if it extended to future traffic upon a line of railway which the company may thereafter be empowered to construct (Midl. Ry. Co. v. L. & N. W. Ry. Co., 2 Eq. 524).

A scheme amounting to an amalgamation of two existing companies, the profit and loss being brought into one common fund and divided in certain proportions, is illegal (Charlton v. Newcastle and Carl. Ry. Co., 7 W. R. 731).

A company cannot be compelled to carry over any part of its line, and there appears to be nothing illegal in an agreement that it will not do so (Lancaster, §c. Ry. Co. v. N. W. Ry. Co., 2 K. & J. 293).

to

A company may agree with dock-owners in consideration of the use of the docks pay tolls as well on goods carried on their line and shipped at those docks as on goods so carried and shipped at other docks in connection with the railway (Taff Vale Ry. Co. v. Macnabb, L. R. 6 H. L. 169).

Such an agreement does not prima facie extend to goods carried along a line constructed after the date of the agreement and leased to the company (Ib.).

An agreement by a small company to pay a toll on traffic carried over the line of another company has been held upon the construction of the agreement to entitle an amalgamated company taking over the rights of the small company to carry its enlarged traffic on payment of the same toll (Lancashire & Yorkshire Ry. Co. v. E. Lancashire Ry. Co., 6 R. C. 802; 21 L. J. Ex. 62; 23 ib. 167; 25 ib. 278; 7 Ex. 126; 9 Ex. 591; 5 H. L. 792).

Where two companies are jointly possessed of a station and line, one of them cannot, under an illegal agreement to take over the traffic of a third company, bring such traffic over the joint station and line (L. B. § S. C. Ry. Co. v. L. § S. W. Ry. Co., 7 W. R. 591; 4 De G. & J. 362).

88. Provided always, that no such contract as aforesaid shall in any manner alter, affect, increase, or diminish any of the tolls which the respective companies, parties to such contracts, shall for the time being be respectively authorized and entitled to demand or receive from any person or any other company, but that all other persons and companies shall, notwithstanding any such contract, be entitled to the use and benefit of any of the said railways, upon the same terms and conditions, and on payment of

the same tolls, as they would have been in case no such contract 8 Vict. o. 20, had been entered into.

8. 89.

89. Nothing in this or the special Act contained shall extend Company not to charge or make liable the company further or in any to be liable to other case a greater than where, according to the laws of the realm, stage coach pro- extent than prietors and common carriers would be liable, nor shall extend in common carany degree to deprive the company of any protection or privilege riers. which common carriers or stage coach proprietors may be entitled to; but, on the contrary, the company shall at all times be entitled to the benefit of every such protection and privilege.

Railway company not bound to

A railway company are not as such bound to be carriers, section 86 being per- I. Carriage of missive merely (Johnson v. Midland Ry. Co., 4 Ex. 367. See Oxlade v. N. E. Ry. goods. Co., 15 C. B. N. S. 680. See also Palmer v. Grand Junction Ry. Co., 4 M. & W. 767). They may, therefore, refuse to carry any kind of goods except upon special terms, subject to this, that if they undertake to carry, they cannot, by reason of the Railway and Canal Traffic Act, 1854 (17 & 18 Vict. c. 31, s. 31), exempt themselves from liability for the neglect or default of themselves or their servants, except in the cases provided by that section, and subject also to this, that the special contract must be signed by the owner of the goods or his agent.

carry.

It appears, however, that there is nothing in that Act to prevent the company Company may from exempting themselves from liability for accidental injuries to goods (see exempt themHarrison v. L. B. & S. C. Ry. Co., 31 L. J. Q. B. 113; 2 B. & S. 152. And see selves from post, section 7 of the Railway and Canal Traffic Act, 1854). liability as But so far as the company hold themselves out as carriers they are bound to insurers. carry. Thus, if they give notice that they will carry to a place outside England, Company they are liable to an action at the suit of a carrier for whom they refuse to carry must carry in beyond the limits of England (Crouch v. L. & N. W. Ry. Co., 7 R. C. 717; 23 accordance L. J. C. P. 73; 14 C. B. 255).

with their

The remedy in such a case of the person whose goods the company refuse to profession. carry is by action, not by mandamus (Ex parte Robins, 7 Dowl. 566).

What consti

If the company in all cases require persons sending a particular class of goods to enter into special agreements with them, they would not, it seems, be common tutes common carriers of such goods (see Liver Alkali Co. v. Johnson, L. R. 9 Ex. 338; Scaife v. Farrant, L. R. 10 Ex. 358).

A carrier cannot refuse to carry a parcel on the ground that he is not informed of its contents (Crouch v. L. & N. W. Ry. Co., 14 C. B. 255).

carrier.

Carrier not entitled to

Where an article is delivered to a carrier, that article, and everything in or upon know conit is delivered to him. It is the duty of the carrier to inquire what the article tents. contains (Walker v. Jackson, 10 M. & W. 161, where a box of jewels was placed Delivery of under the seat of a carriage to be conveyed in a ferry boat. See, too, Gibbon v. article. Poynton, 4 Burr. 2299, for the old law on this subject).

Where a company receives goods to be carried to a station beyond its own line, Liability the contract is with that company only, and that company only can be sued by the under contract owner of the goods if they are destroyed on the line of a second company (Mus- to carry. champ v. Lancaster & Preston Ry. Co., 8 M. & W. 421; Scothorn v. S. Staffordshire Ry. Co., 8 Ex. 341; Bristol & Exeter Ry. Co. v. Collins, 7 H. L. 194. M'Court v. L. & N. W. Ry. Co., I. R. 3 C. L. 462).

See, too,

In such cases a servant of another company over which the goods are sent is to be considered the servant of the contracting company for the purpose of taking instructions for the countermand of the delivery of parcels. The contracting company are therefore liable if a servant of the second company disobeys an order given to him by the owners of the goods (Scothorn v. S. Staffordshire Ry. Co., 8 Ex. 341).

The contracting company are liable, though the goods are sent partly by sea, Carriage and are injured on the sea voyage, and the company could not in such a case set partly by sea. up that they have no power to carry by sea (Wilby v. W. Cornwall Ry. Co., 2 H. & N. 703; Doolan v. Midland Ry. Co., 2 App. C. 792).

The rule is not altered by the fact, that the contracting company provide that they will receive the charges payable to other companies for conveyance over the lines of the latter, but will not be liable for loss or damage beyond their own line (Coxon v. G. W. Ry. Co., 5 H. & N. 274).

T.

U

8 Vict. c. 20, 8. 89.

Joint traffic arrangement. Evidence of contract.

Company

losing luggage liable.

Parol evidence.

Carrier contracts with owner of the goods.

Who must sue

under contract to carry.

Goods sent on approval.

Bailee of goods. Consignee may alter destination.

Carriers' liability.

Carrier by

sea.

Warranty of seaworthi

ness.

What is an act of God.

Where the traffic upon two lines is carried on for the joint benefit of the two companies, either may be made liable for the loss of goods carried over the joint line (Gill v. Manchester Ry. Co., L. R. 8 Q. B. 186).

Where goods are delivered to an agent of two companies at a place where only one of the two companies has a station, and are handed by him to that company to go by the line of the other, there is evidence of a contract for the whole distance by the first company (Webber v. G. W. Ry. Co., 4 H. & C. 582).

Intermediate carriers by sea receiving goods addressed to an inland station_and delivered by the sea carriers to a railway company cannot be presumed to have contracted to deliver the goods at the inland station (Teats v. Dundalk & Newry Steam Packet Co., I. R. 6 C. L. 536).

Where a passenger takes a ticket from company A. to a station on company B.'s line, and his portmanteau is lost by company B., the latter company is liable (Hooper v. L. & N. W. Ry. Co., 29 W. R. 241; 50 L. J. Q. B. 103, where Mytton v. Midl. Ry. Co., 4 H. & N. 615, was considered overruled by Foulkes v. Metr. Dist. Ry. Co., 5 C. P. D. 157).

Where there is a written contract to carry to a particular station, parol evidence may be given of a further contract to carry to a station at a greater distance (Malpas v. L. & S. W. Ry. Co., 36 L. J. C. P. 166; L. R. 1 C. P. 336). who

Where a servant accepts goods in violation of the rules of the company, carry such goods only under a special contract, the rules being known to the consignor, there is no contract between the company and the consignor (Slim v. Gt. W. Ry. Co., 14 C. B. 647).

In the absence of special circumstances, the carrier's contract is with the person, in whom the property in the goods is vested.

Thus, where goods are delivered to a carrier for a purchaser under a valid contract for sale, the consignee is the proper person to sue the carrier, whether he has nominated him or not (Dutton v. Solomonson, 3 B. & P. 582).

This general rule may be varied by a special contract by the carrier, that he will be liable to the consignor (Moore v. Wilson, 1 T. R. 659; Davis v. James, 5 Burr. 2680; see G. W. Ry. Co. v. Bagge & Co., 15 Q. B. D. 625).

If there is no valid contract between the consignor and consignee, the consignor is the person to sue, and the consignee cannot sue, though he may have appointed the carrier (Coates v. Chaplin, 2 G. & Dav. 552; 3 Q. B. 483; Coombs v. Bristol & Exeter Ry. Co., 3 H. & N. 510).

Where the goods are sent on approval, the consignor is the person to sue (Swain v. Shepherd, 1 M. & Rob. 223).

A bailee of goods forwarding them by a carrier may maintain an action against the carrier, as he has a special property in the goods (Freeman v. Birch, 1 Nev. & M. 420; 3 Q. B. 492, n.).

Where the goods are delivered to the carrier to be carried to a certain place for a consignee whose name is disclosed, the inference being that the contract of carriage is between the carrier and the consignee, the latter may direct them to be delivered at any place agreed upon between himself and the carrier (L. & N. W. Ry. Co. v. Bartlett, 7 H. & N. 400; 31 L. J. Ex. 92; Cork Distilleries Co. v. Gt. S. & W. Ry. Co., L. R. 7 H. L. 269).

Where the contract to carry is with A., it is no answer to an action by him that compensation has been paid to B., who delivered the goods to the company (Coombs v. Bristol & Exeter Ry. Co., 3 H. & N. 1).

A common carrier by land is responsible for all losses not occasioned by the act of God or of the Queen's enemies, or by the inherent vice of the thing carried, though such losses occur without any negligence on his part (Oakley v. Port of Portsmouth & Ryde United Steam Packet Co., 25 L. J. Ex. 99; 11 Ex. 618; Nugent v. Smith, 1 C. P. D. 423).

It seems that a carrier by sea, whether a common carrier or not, in the absence of special agreement, undertakes to carry at his own absolute risk, the act of God or of the Queen's enemies alone excepted (see Liver Alkali Co. v. Johnson, L. R. 9 Ex. 338).

And a carrier by sea, whether common carrier or not, warrants the seaworthiness of his vessel at the time when the perils of the intended voyage commence (Kopitoff v. Wilson, 1 Q. B. D. 377; Steel v. State Line Steamship Co., 3 App. C. 72: Coln v. Davidson, 2 Q. B. D. 455).

To be an act of God, an event must be one the happening of which could not have been reasonably expected. The fact that the event has happened before is only evidence to show that its recurrence might have been expected (Nitrophosphate & Odam's Chemical Manure Co. v. London & St. Katherine Dock Co., 9 Ch. D. 503).

Loss from the inherent vice of the thing carried would include deterioration of

perishable articles, and also evaporation and leakage of liquids (Hudson v. Baxendale, 8 Vict. c. 20, 2 H. & N. 575. See Ohrloff v. Briscoll, L. R. 1 P. C. 231).

A railway company undertaking to carry live animals is subject to the ordinary carrier's liability with regard to them (M'Manus v. Lancashire & Yorkshire Ry. Co.,

8. 89.

Carriers of

4 H. & N. 327; 28 L. J. Ex. 358; Harrison v. L. & B. Ry. Co., 2 B. & S. 122, 149; animals. Kendall v. L. & S. W. Ry. Co., L. R. 7 Ex. 373, pp. 374, 376).

In the case of animals, the carrier is not liable for an injury arising from the Vice in case inherent vice of the animal. But this does not mean that the animal must be shown of animals. to be vicious in the ordinary sense. It is sufficient if, there being no negligence on the carrier's part and nothing extraordinary being shown to have happened, the animal is found injured owing to its own struggles (Blower v. Gt. W. Ry. Co., L. R. 7 C. P. 655; Kendall v. L. & S. W. Ry. Co., L. R. 7 Ex. 373; Nugent v. Smith, 1 C. P. D. 423).

The carrier cannot be charged with negligence, if an animal escapes by reason of the insufficiency of a chain and collar, which is sent with it by the owner and appears to be sufficient (Richardson v. N. E. Ry. Co., L. R. 7 C. P. 75).

The case, would, however, be different if the fastening could be seen to be insufficient (Stuart v. Crawley, 2 Stark. 323).

In Richardson v. N. E. Ry. Co., supra, the company would probably, upon the facts, have been held liable, whether there was negligence or not, on the ground that the conditions upon which they undertook to carry the dog were not signed by the owner, and that therefore the ordinary carrier's liability attached. But the special case expressly found that the company were not common carriers of animals.

The company are subject to the ordinary liabilities of carriers with regard to the Passengers' personal luggage of a passenger carried for hire, when the luggage is placed in a luggage. separate van or other place appropriated for the purpose (Macrow v. Gt. W. Ry. Co., L. R. 6 Q. B. 612; Cohen v. S. E. Ry. Co., 2 Ex. D. 253, 259).

may

It appears to be immaterial by whom the fare is paid. Thus, a servant whose Servant fare has been paid by his master can maintain an action for loss of luggage (Marshall sue though v. York, Newcastle, & Berwick Ry. Co., 21 L. J. C. P. 34; 16 Jur. 124; 11 C. B. 655. See Austin v. Gt. W. Ry. Co., L. R. 2 Q. B. 442, p. 445).

So an officer carried under contract with the Government may sue for the loss of his luggage through negligence (Martin v. Gt. Indian Peninsular Ry. Co., L. R. 3 Ex. 9).

The liability is only to the passenger, whose property the luggage appears to be. Thus a person sending his luggage by his servant cannot maintain an action for its loss (Becher v. Gt. E. Ry. Co., L. R. 5 Q. B. 241).

master took ticket.

Person not travelling with the luggage cannot

The liability of the company for passenger's luggage cominences from the time when it is delivered to the servants of the company for the particular journey, sue. though the train may not start for a considerable time (Lovell v. L. C. & D. Ry. Co., 45 L. J. Q. B. 476; 34 L. T. N. S. 127).

The company are not justified in refusing to take charge of passengers' luggage as common carriers, because it is packed up in a shawl (Munster v. S. E. Ry. Co., 27 L. J. C. P. 308; 4 C. B. N. S. 676).

When liability

commences.

The ordinary carrier's liability does not extend to luggage placed at the passen- Luggage ger's request in the carriage in which he intends to travel. The company are only placed in liable for the loss of such luggage if there has been negligence (Bergheim v. Gt. E. compartment Ry. Co., 3 C. P. D. 221. See Talley v. Gt. W. Ry. Co., L. R. 6 C. P. 44, overruling, with passenso far as contra, Le Conteur v. L. & S. W. Ry. Co., L. R. 1 Q. B. 54).

ger.

But where luggage is entrusted to a porter to be placed in the railway carriage Luggage on with the passenger, and is lost before it is placed in the carriage, the company is its way to or liable if the circumstances are such as to show that the luggage was entrusted to from the carthe porter for the purpose of the transit, and not to be taken charge of while the riage. journey was suspended (Bunch v. Gt. W. Ry. Co., 17 Q. B. D. 215. See Welch v. L. & N. W. Ry. Co., 34 W. R. 166).

The same rule applies at the other end of the journey if luggage carried with the passenger is given to a porter to be taken to a cab and lost on the way (Butcher v. L. & S. W. Ry. Co., 16 C. B. 13; Richards v. L. B. & S. C. Ry. Co., 7 C. B. 839; Leach v. S. E. Ry. Co., 34 L. T. 134. See Bunch v. G. W. Ry. Co., 17 Q. B. D. 215).

If the passenger carries among his luggage merchandise, for which the company Merchandise are entitled to charge, he carries it at his own risk (Cahill v. L. & N. W. Ry. Co., carried as 13 C. B. N. S. 818; 31 L. J. C. P. 271; Belfast & Ballymena Ry. Co. v. Keys, 9 luggage. H. L. 556).

Possibly, if the company have notice that the passenger has with him goods which are not personal luggage, and choose to carry them, they would be responsible

8 Vict. c. 20, 8. 89.

Personal luggage defined.

Empties.

Place for delivery.

Misdelivery.

Notice of arrival.

Delivery within reason able time.

Unreasonable delay.

(see Gt. N. Ry. Co. v. Shepherd, 8 Ex. 20; 21 L. J. Ex. 286; Cahill v. L. & N. W. Ry. Co., 13 C. B. N. S. 818; 31 L. J. C. P. 271).

On the other hand, if the passenger has notice, that the company carry merchandise only upon certain payments being made, and he is allowed to take a parcel which is obviously merchandise, he cannot maintain an action (Belfast & Ballymena Ry. Co. v. Keys, 9 H. L. 556).

Whatever the passenger takes with him for his personal use or convenience, according to the habits or wants of the class to which he belongs, either with reference to the immediate necessities or to the ultimate purpose of his journey, must be considered as personal luggage (Macrow v. Gt. W. Ry. Co., L. R. 6 Q. B. 612, p. 622).

The following articles have been held not to be passenger's luggage:-Merchandise carried for sale (Cahill v. L. & N. W. Ry. Co., 13 C. B. N. S. 818; 31 L. J. C. P. 271; Gt. N. Ry. Co. v. Shepherd, 8 Ex. 30; 21 L. J. Ex. 286; Belfast & Ballymena Ry. Co. v. Keys, 9 H. L. 556); deeds and money of a client carried by an attorney (Phelps v. L. & N. W. Ry. Co., 19 C. B. N. S. 321; 34 L. J. C. P. 259); a spring horse (Hudston v. Midland Ry. Co., L. R. 4 Q. B. 366); a quantity of sheets, blankets, and quilts, for the use of the passenger's household (Macrow v. Gt. W. Ry. Co., L. R. 6 Q. B. 612); pencil sketches of an artist (Mytton v. Midland Ry. Co., 28 L. J. Ex. 385).

It has recently been held in a county court that a hamper containing provisions intended as a present was personal luggage (Case v. L. & S. W. Ry. Co., L. J. Jan. 3, 1880, p. 9. The decision seems to be inconsistent with the other authorities). Empties carried on the return journey by the company without any extra payment are, it would seem, carried with the ordinary carrier's liability, the charges made being presumed to cover the return journey (Aldridge v. Gt. W. Ry. Co., 15 C. B. N. S. 582).

Where goods are delivered improperly packed, and they are damaged, the carrier is liable if the damage is only partly caused by the bad packing (Higginbotham v. Gt. N. Ry. Co., 10 W. R. 358; 2 F. & F. 776).

It is part of the duty of the carrier to provide a proper place for delivery, and he is liable for a loss arising from neglect to provide a proper place (Rooth v. N. E. Ry. Co., L. R. 2 Ex. 173).

A carrier is liable for mis-delivery; but he is not liable if he acts in the usual course of business and in accordance with his instructions.

Thus, where A. fraudulently induces B. to send goods to a fictitious firm at a given address, and the carrier sends to the address notice of arrival, and delivers the goods upon the signature of the firm fraudulently made by A., the carriers are not liable (M Kean v. M'Ivor, L. R. 6 Ex. 36).

The case would be different if there is anything to awake the carrier's suspicions (Stephenson v. Hart, 4 Bing. 476).

Where the carrier by mistake advises the consignee that certain goods have arrived when they have not in fact arrived, the carrier is not estopped from explaining the mistake, and cannot be made liable for the non-delivery of the goods (Carr v. L. & N. W. Ry. Co., L. R. 10 C. B. 307).

But if the company issue two delivery orders in different forms relating to the same consignment, they will be estopped as against a holder for value from denying that there are two consignments (Coventry v. G. E. Ry. Co., 11 Q. B. D. 776. See Seton v. Lafone, 19 Q. B. D. 68; Lishman v. Christie, 19 Q. B. D. 333).

In the absence of a special contract, the carrier is bound to deliver the goods within a reasonable time. He is not liable for delay caused by circumstances beyond his control, such as an accident due to the negligence of another company having running powers over the line (Taylor v. G. N. Ry. Co., L. R. 1 C. P. 385).

Where delivery of rags packed wet was delayed, but the delay would not have injured the rags if they had been packed dry, the owner of the rags was held entitled to nominal damages only (Baldwin v. L. C. & D. Ry. Co., 9 Q. B. D. 582). A contract to carry by a particular train, which usually arrives at a certain hour, does not amount to a warranty that the train will so arrive, though the company is informed that the object of the sender requires that it should so arrive (Lord v. Midland Ry. Co., L. R. 2 C. P. 339).

But the fact that a train arrives several hours after the proper time is primâ facie evidence of unreasonable delay in carrying goods, and requires explanation from the company (Roberts v. Midland Ry. Co., 25 W. R. 323).

It is a question of fact for the jury whether upon the whole circumstances of the case there has been unreasonable delay.

If the ordinary course of conveyance is departed from, owing to the negligence of a servant, this would be evidence of unreasonable delay (Wren v. Eastern Counties Ry. Co., 1 L. T. N. S. 5).