CH. XV. s. 3. Carriers Meaning of Kent v. Midland Rail. Co. Sea traffic. Carriers Act does not apply to carriage by water. liability by Merchant Shipping Act. off its own lines, when applied to luggage, is not merely "off the lines of railway," but "off the station or any part of the premises which may be called part of the line;" and to bring themselves within such a condition a railway company must show that the luggage when lost was out of their custody. This is the effect of a case where luggage was removed from a Midland train across the Birmingham station in the direction of a platform from which a North Western train was to start, the Birmingham station being owned by the North Western, but the Midland Company, who had contracted to carry the plaintiff from Bath to Chester, having the use of the stations and the service of the porters (ƒ). Another kind of through traffic is where railway companies, either as owners of steam-vessels themselves or under agreements made with the owners, contract to carry passengers or goods beyond the seas (g). The Carriers Act does not apply to carriage by water (h). But a section of the Merchant Shipping Act (post, sect. 4 (c) ) partially takes its place, and where there is a contract to carry partly Limitation of by land and partly by water, the contract is divisible, and the Carriers Act is a protection where the loss happens during the land carriage (i). On the same principle, where there is a contract to carry partly by land and partly by water, the Merchant Shipping Act applies to such part of the carriage as is by water, and a railway company has the full benefit of the limitation of liability, imposed by that Act, to the amount of 15l. per ton on the tonnage of the ship. For it was held in London and South Western Rail. Co. v. James (k), that where a ship owned by a railway company comes into collision with another ship and sinks, causing both loss of life and goods, actions are not maintainable by surviving passengers for loss of luggage, by shippers of goods for loss of goods, or by the representatives of lost passengers for damage. Limitation of liability during sea transit of goods. For statutory limit of liability under sects. 502, 503 of Merchant Shipping Act, 1894, 57 & 58 Vict. c. 60, see post, sect. 4 (c). There are some important legislative enactments of recent date, relative to the sea traffic of railway companies. It is ante. In this case the company was (f) Kent v. Midland Rail. Co. (1874), enacted by the Regulation of Railways Act, 1868, 31 & 32 Vict. c. 119, s. 14, that where a company by through booking contracts to carry animals, luggage or goods, partly by railway and partly by sea, a condition exempting the company from liability for loss arising 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 sea," shall, if published conspicuously in the booking office, and printed legibly on the freight note, be valid as part of the contract as if the company had delivered a bill of lading containing such condition. This section applies to goods only, and allows the companies to limit their liability as insurers. CH. XV. s. 3. 1868, s. 14. ment of whether com- used or not. To protect passengers, sect. 16 of the same Act provides, that Equal treatwhere a company works steam vessels between any towns or ports, they must charge the same fares equally to all persons passing between the same places under the same circumstances, and must make no reduction or advance in their fares in consequence of the passenger using or not using the company's railway or the company's steam vessels; and further, that where a lump sum is charged for the whole transit, "the ticket shall have the amount of toll charged for conveyance by the steam vessel distinguished from the amount charged for conveyance on the railway. It was also enacted by paragraph two of the above section, that "the provisions of the Railway and Canal Traffic Act, 1854, so far as the same are applicable, shall extend to the steam vessels and to the traffic carried on thereby." This latter paragraph incorporated the whole of the Act of 1854 (1), including the 7th section, which, as construed by the House of Lords (m), provides that special contracts are not binding on any party unless signed by him. A condition, therefore, made by a railway company, limiting their liability in respect of passengers' luggage carried by sea, was not binding unless reasonable and contained in a contract signed by the passenger (n). But the 59th section of the Railway and Canal Traffic Act, 1888, 51 & 52 Vict. c. 25, repeals the 2nd paragraph of sect. 16 of the Regulation of Railways Act, 1868, and the 28th section of the same Act specifically applies to sea traffic the prohibition of undue preference, &c., only, so that the 7th section of the Act of 1854 no longer applies to sea traffic. (1) Doolan v. Midland Rail. Co. (1877), 2 App. Cas. 792, affirming Cohen v. South Eastern Rail. Co. (1876), 1 Ex. D. 217; and Moore v. Midland Rail. Co. (1874), Ir. R., 8 C. L. 232. (m) In Peek v. North Staffordshire Rail. Co. (1863), 10 H. L. Cas. 473, and p. 408, ante. (n) See the cases, supra. Signature and ness of special contract. Doolan v. reasonable Midland Rail. Co. CH. XV. s. 3. It is further provided by the Regulation of Railways Act, 1871, Railway 34 & 35 Vict. c. 78, s. 12, that where the company procure either Companies as Carriers persons, animals or goods to be carried in a vessel not their own, (Through the company shall be "answerable in damages in respect of loss Trathe and Sea Traffic). of life or personal injury, or of loss of, or damage to, animals or Company goods," in the same manner as if the vessel were their own, liable for loss during transit provided that the loss happen during the transit in such vessel, by vessels not the proof to the contrary to lie upon the railway company; and this enactment seems to be unaffected by the Act of 1888. their own. Continental traffic.-Book of coupons. Burke v. S. E. R. Co. A whole book of coupons constitutes the contract with a passenger, and he cannot reject a condition appearing on an inside leaf on the ground that he has not read it. Therefore, where the outside of a book of coupons contained the words "London to Paris and back," &c., and an inside leaf contained a condition limiting the responsibility of the issuing company, which was English, to their own trains, and the passenger was injured in a French train, it was held that the condition prevented him from recovering from the English company (o). Usual terms. SECT. 4.-Shipowners as Carriers. (a) The Charter-party (p). Definition of A charter-party is an agreement in writing whereby a shipcharter-party. owner lets an entire ship, or part thereof, to any person (who is called "the charterer") for the carriage of goods on a specified voyage or during a specified period for a sum of money which the charterer agrees to pay as freight. By this charter-party the shipowner usually undertakes that the ship, being seaworthy and furnished with necessaries, shall be ready by a certain day to receive the cargo, shall sail when loaded and deliver her cargo at the port of destination (the act of God and the Sovereign's enemies excepted); and the charterer to load and unload the ship within a certain number of days, called the "lay or running days," and if he detain her longer to pay demurrage, and also to pay freight as agreed on. What a bill of lading is. (b) The Bill of Lading. A bill of lading is a memorandum signed by the master of a ship acknowledging the receipt of goods. It is usually in (6) Burke v. South Eastern Rail. Co. (1879), 5 C. P. D. 1, distinguishing Henderson v. Stevenson (1875), L. R., 2 H. L. (Sc.) 470, and p. 417, ante; and see Watkins v. Rymill (1883), 10 Q. B. D. 178. (p) See Scrutton on Charter-parties, 3rd ed. (1893). Carriers. triplicate; one being kept by the consignor, one sent to the CH. XV. s. 4. consignee, and one kept by the master. It is the evidence of the Shipowners as title of the goods shipped, and by its indorsement and delivery the transfer of the property of the goods is effected. By the Bills of Lading Act, 1855, 18 & 19 Vict. c. 111, Bills of s. 1 (q): "Every consignee of goods named in a bill of lading, and every indorsee of a bill of lading to whom the property in the goods therein mentioned shall pass, upon or by reason of such consignment or indorsement shall have transferred to and vested in him all rights of suit, and be subject to the same liabilities in respect of such goods, as if the contract contained in the bill of lading had been made with himself." Lading Act, 1855. Rights and liabilities pass to consignee or indorsee. By sect. 2 there is a saving for right for stoppage in transitu Saving. or claims for freight, and by sect. 3 the bill of lading becomes conclusive evidence as against the master or other person signing it, unless the holder has had actual notice that the goods had not in fact been laden on board; but it is provided that the party signing may exonerate himself by showing that the misrepresentation was caused without default on his part, and wholly by the fraud of the shipper, the holder or some person under whom the holder claims. decisions. But the master, by signing, does not bind the owner to Judicial deliver the amount specified (r), nor is the owner estopped by the signature of the master from showing that the goods were not put on board (s). Only the party signing is bound (t); and the master may show a difference in weight from that signed for (u). (c) The Limitation of Liability under the Merchant Shipping Act. Another part of the same section (the Carriers Act (see ante, p. 401) not applying to carriers by water) similarly exempts the (q) See Sewell v. Burdick (1884), 10 App. Cas. 74, where it was held that the mere indorsement and delivery of a bill of lading by way of pledge for a loan does not pass the property in the goods to the indorsee so as to transfer to him the liabilities in respect of the goods within the meaning of this Act. (r) McLean v. Fleming (1867), L. R., 2 H. L. Sc. App. 128. (8) Brown v. Powell Duffryn & Co. (1875), L. R., 10 C. P. 562. (t) Jessel v. Bath (1867), L. R., 2 Ex. 267. (u) Blanchet v. Powell's Llantivit Colliery Co. (1874), L. R., 9 Ex. 74. Robbery, &c., gold, jewels, of undeclared &c. CH. XV. s. 4. Limitation of liability for loss of life or goods, or damage to persons or goods. owner. owner from liability, "where any gold, silver, diamonds, watches, jewels, or precious stones taken in or put on board his ship, the true nature and value of which have not at the time of shipment been declared by the owner or shipper thereof to the owner or master of the ship in the bills of lading or otherwise in writing, are lost or damaged by reason of any robbery, embezzlement, making away with, or secreting thereof" (x). The 503rd section of the same Act limits the liability of the owners of a ship (y), British or foreign, if the occurrence take place without their actual fault or privity for loss of life or personal injury, to an aggregate amount not exceeding 157. for each ton of their ship's tonnage, and for damage to or loss of Procedure by goods to an aggregate amount not exceeding 81. for each ton of their ship's tonnage, and the 504th section prescribes a procedure by which the owner may apply to the High Court to determine the amount of his liability, and distribute that amount rateably amongst the claimants thereto in cases where several claims are made or apprehended in respect of any liability alleged to have been incurred by the owner"in respect of loss of life, personal injury, or loss of or damage to vessels or goods." (x) See Acton v. Castle Mail Packets Co. (1895), 73 L. T. 158. (y) The owner of an unregistered British ship is not entitled to the limitation. The Andalusian (1878), 3 P. D. 182. |