Irish Railway Record Society
HISTORY
OF RAILWAY LEGISLATION Part 2
by
Tim Moriarty, Hon. Librarian
THE
RAILWAY AND CANAL TRAFFIC ACTS (1)
To curb this perceived monopoly the Railway and Canal Traffic Acts 1854-1913 were concerned with the provision of reasonable facilities for goods and passengers, the regulation of rates and charges, the granting of through rates between England and Ireland, the monitoring of undue preference between railway and canal companies and their customers and the settling of Working Agreements and differences between companies where these concerned traffic.
The basis of all law of carriage by railway was the Carriers Law of 1830 as amended by subsequent railway legislation. This act passed at the dawn of the railways ironically make no mention of them it being primarily enacted with respect to carriage by stage and mail coach. However the protection of this act was soon evoked by the railways in matters of liability for goods and passengers.
Railways were regarded as common carriers of goods and passengers although the latter was only finally decided in 1909*. The expression "common" arose from ancient custom and was applied to certain professions because of the public nature of their business however indelicate this might be. Hence we have the common informer, common hoy or bargeman, common hangman and common prostitute, Also in this category were ships masters (so designated in the reign of Charles II), Innkeepers and blacksmiths. It has been held that an action could be brought against an Innkeeper/Hotelier for refusing available accommodation and the latter if he refused to shoe your horse! A railway or tramway company was considered a common carrier of passengers where the person was in a fit state to be carried, was willing to pay the fare and there was room for him. (*Clarke v West Ham Corporation)
Railway companies were under no obligation to undertake all the liabilities of common carriers but were bound to carry all ordinary goods offered by anyone for reward and to take all reasonable risks that is risks arising from negligence. Companies incorporated before the Railway Clauses Act of 1845 were merely toll takers like the canals and when carrying goods acted as agents for the long established carriers. Even at this early date railway rates, tolls and charges were in a state of confusion.
Nothing in common law forbade a carrier to treat one customer more favourably than another or to charge one less than the other for similar services. It was said in 1845 that the rates charged by English railways and presumably in Ireland also were practically unlimited in as much as companies were in every instance "left at liberty to charge as high a rate on every part of their traffic as they had ever thought or were ever likely to think for their own advantage and that the maximum was always so high as to exceed the limit which self interest alone would dictate" (Biggs: Special Acts 1845). (Hp467)
RAILWAY COMMISSIONERS
Parliament here interfered to restrain railway companies in their exercise of discretion in dealing with their customers. This it did by Public and General legislation and questions of undue preference were determined at first by the courts then by a statutory body called the Railway Commissioners and its successors.
Lord Cardwell was chairman of the Select Committee appointed to vet the numerous amalgamation bills before parliament in 1853. This committee recommended that "Parliament should secure freedom and economy of transit from one end of the kingdom to the other and should compel railway companies to give the public the full advantage of convenient interchange from one railway system to another". The result was the Railway and Canal Traffic Act of 1854 (known as Cardwell's Act) which imposed new obligations on the railways to afford reasonable facilities for both their own and through traffic and to abstain from unreasonable preference to any particular person or traffic. In addition the act limited railway companies liability by prescribed the maximum compensation for loss or injury to animals unless a higher value was declared and extra payment made. These provisions were well known: for any Horse, £50, for any neat cattle per head, £15, for any sheep or pigs per head, £2 and were increased by the Railways Acts of 1921 and 1924 (Irish). From 1854 to 1873 the only remedy given by Cardwell's Act was summary application to the Courts - Common Pleas in England, to the Court of Session in Scotland and to one of the superior courts in Ireland.
Sir William Hodges* a contemporary railway law commentator greeted the Railway and Canal Traffic Act of 1854 in the following words: "The necessity of a supervision of some kind over the traffic on our railways has long been acknowledged and it was felt that it would be an intolerable abuse if the Queens' subjects were deprived (by the railways) of the protection which the crown formerly afforded them when travelling over the ancient highways. Moreover, it may be assumed that the need for rigorous control and supervision is even more necessary than formerly when before the railways there could be no monopoly of the means of conveyance". (*Hodges: Law of the Railway)
Over the next twenty years during which time Hodges had been knighted, become Chief Justice in the Cape of Good Hope and was honoured with a public funeral when he died in Capetown in 1868, the law had become a dead letter. No cases came before the Courts in Ireland and only four before the Court of Sessions in Scotland. Despite Hodges's eloquence the editor* of a subsequent edition of his work was forced to admit that: "the act was administered by the Courts with indifferent success. Indeed with respect to both main and through traffic considered irrespective of undue preference the act was a complete failure not a single successful application having been made although the decisions of the courts...had been successful in principle” (Hodges 437). Lord Campbell (Fatal Injuries Act 1846 - Campbell's Act - dependents' compensation) had foretold the legislations failure when he opposed the bill: "They should have a lay tribunal for the decision of questions of the nature contemplated by the Bill and not one composed of Judges". (*Hodges: op cit, 6th ed.1867)
In 1865 a Royal Commission was appointed to inquire into the charges of Railway Companies. In examining how far it was desirable for Parliament to endeavour to control railway rates the report said that they did not consider: "that it would be expedient even if it were practicable to adopt any legislation which would abolish the freedom railway companies enjoyed of charging what sum they deemed expedient within their maximum rates ... limited as that freedom was by the conditions of the Traffic Act (of 1854).
Therefore, Hodges (op. cit.) concluded that the legislature must be taken to have purposely adopted the "crude method" of allowing all charges to be disputed in the courts between the customer or passenger and the railway companies.
RAILWAY AND CANAL COMMISSION
Because the existing implementation of the act of 1854 had failed the Joint Select Committee dealing again with the numerous Amalgamation Bills before Parliament in the Session of 1872 and headed by Lord Carlingford president of the Board of Trade recommended the appointment of a "Railway and Canal Commission". This new statutory body was proposed because The Board of Trade was not sufficiently judicial, the courts not sufficiently informed and a parliamentary committee not sufficiently permanent. Moreover by this time it had become obvious that charges were matters of administrative policy rather than simple questions of law and could be better and more cheaply be investigated by a special tribunal. Their report concluded "if the recommendations are adopted ... the public will know what they are charged and why they are charged and give them better means for getting unfair charges remedied”. The Railway Commissioners were accordingly established by the Regulation of Railways act of 1873 to give better effect to the provisions of the Act of 1854. The title of the act of 1873 was later changed to the Railway and Canal Traffic Act 1873.
The jurisdiction of the Commissioners was however confined to enforcing obedience to the law for the future. While past infringements were necessary to enable them to exercise their powers and to enable a complainant to seek protection they had no power to order compensation for injury or loss. Money penalties could however be imposed on a railway company for failing to redress a situation where fault was found by the Commissioners.
Proceedings before the Railway Commissioners were both formal and costly. The Select Committee on Railway Rates and Fares of 1882 had said that railway companies were prepared to "litigate to an extent which few traders would dare to contemplate"! The sittings of the commissioners were to be "at such times and places as may seem to them most convenient for the dispatch of business". As they usually sat in London at the Royal Courts of Justice and their offices were in the West Front Committee Room of the House of Lords the expense to an Irish trader bringing a case was prohibitive. Even if redress was granted an Irish trader would certainly be out of pocket from the proceedings and might also fear disadvantage by daring to bring the case in the first place! The Commissioners could sit also in Scotland or Ireland but had up to 1876 refused to hear two cases in Dublin not being of the opinion in either case that a hearing in Dublin would be for the benefit of the parties. Certain jurisdictions of the Board of Trade including Working Agreements were transferred to the Commissioners.
The remainder of this article appears in IRRS Journal number 159, published February 2006.
Copyright © 2006 by Irish
Railway Record Society Limited
Revised: June 12, 2006
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