Irish Railway Record Society
History
of Railway Legislation-3
TIM MORIARTY
In 1845 the concept
of the railways as public highways on which anyone could run their engines and
carriages on payment of tolls was established*. But despite being tested in the
courts** this could not happen because the right to run one’s own trains did
not convey any right to use facilities, stations, signals and points. Neither
would the separation of train running and infrastructure even if contemplated
have been then possible because each railway company fortified by its own
special acts had established a monopoly of carriage of goods and passengers at
approved rates and charges. So the concept was realised only in the use of
private owners wagons, running powers and working arrangements but was to become
possible to a greater extent with privatisation of the railways in the UK in our
own times.
(*
Railway Clauses Act, s 92,** Powell Duffryn Coal Co. v Taff Vale Rly, 1874).
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
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)
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.
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 & 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.
In August 1880 the
House of Commons resolved that in their opinion “it is desirable that the
Railway Commissioners, when adjudicating on the differences between Irish
Railway Companies should hold the inquiry in Ireland, unless the Board of Trade
should, for specified reasons, sanction it being held in England”. Thereafter
the Commissioners held sittings in Dublin, Derry and Belfast. Conroy* understood
that only 16 Irish Cases were heard by the Commissioners and 14 Irish Working
Agreements were dealt with.
(*JC
Conroy: History of Railways in Ireland, 1928)
The situation was
again highlighted by the Allport Commission on Irish Public Works in 1886, which
proposed the setting up of an Irish Commission and the cessation in Ireland of
the jurisdiction of the Railway Commissioners. The Irish Commissioners were to
be empowered to “become the recipients of all complaints both general and
particular respecting Irish railway management and have full powers of
inquiry”. They were also to be entrusted with the duty of arranging or
approving terms for railway amalgamation. As most of the Irish minor lines were
in debt to the Government, it would have a sufficient say to initiate measures
of amalgamation. These proposals came to nothing and the jurisdiction of the
Railway and Canal Commissioners continued in this country until Independence.
If the procedure
under the act of 1854 had not favoured the traders, it was no secret that the
Commissioners did not work to the best advantages of the railway companies who
sought a return to some form of a judicial body. Various attempts were made in
the early 1880’s especially by Mr Chamberlin when President of the Board of
Trade (BOT) to introduce bills to modify the procedures of the Railway
Commissioners. Following a bill brought in by Lord Stanley of Preston the
Railway and Canal Traffic Act of 1888 established a new forum for redress of
grievances between companies and their customers called the Court of the Railway
and Canal Commissioners. Like any other court it had its rules, procedures and
forms with appeals lying ultimately to the House of Lords on points of law. This
act of 1888 effected a two-fold change over the procedures before the former
commissioners. It conferred rights to damages which did not exist before and it
allowed the new court to order the repayment of overcharges. However, damages
could only be awarded if the complaint was made within one year of discovery by
the aggrieved party. The BOT made annual reports of complaints of unfair or
unreasonable charges and the RCH published judgements and orders in railway and
canal traffic cases.
Forty-six Irish
cases were held before this court. Most cases were held in Dublin but cases
involving the Postmaster General in disputes over the carriage of mails were
always held in London. In 1894 when the Court of the Railway and Canal
Commission sat at the Four Courts in Dublin Commissioner Pelham heard objections
to the rates of the Royal Canal from the MGWR, Messrs Guinness and others.
The Court of the
Railway and Canal Commissioners was by all accounts a very dull place rarely
enlivened by the wit of the judge or the humour of some evidence. The subjects
dealt with were generally very dry and included interpretations to placed upon
Acts of Parliament or railway working agreements.
However, when the
court was held in Dublin before Mr Justice Madden to consider the application of
through rated between the GWR and the D&SER in 1907 a noticeable departure
from the usual procedure is recorded. He delivered his judgement in favour of
the applicants (the D&SER) with a literary charm, which must have been an
intellectual treat to those present in the court. This is what he said: “To
the archaeologist and in particular to the student of ecclesiastical
antiquities, Glendalough with its seven churches affords an example of a city -
old and deserted in the twelfth century, saved by its remote and isolated
situation among the Wicklow Mountains, from the fate of so many ancient
monuments, which have served as convenient quarries for the masons and
architects of succeeding ages. Literary associations may seem remote from so
prosaic a subject as the fixing of through fares, but I should like to know what
proportion of its receipts the Caledonian Railway owes to the glamour cast over
the Trossachs and Lake Katrine by the genius of Scott: and the poetry of Moore
ought not to be forgotten in estimating the tourist traffic which increased
facilities may attract to Glendalough’s gloomy wave and to the meeting of the
waters in the vale of Ovoca”.
Through rates
between Ireland and England applied where a railway company owned the vessels or
was party to an agreement with the owners. In the application of through rates
where the distance was longer than existing routes by train and ship, rates in
the same amount as those already existing were applied except where the route
exceeded existing ones by 50%. This was decided in various cases involving the
GS&WR, D&SER, GWR, the Dublin Port & Docks and others and was
reinforced by the Railways Act of 1921 s47.
Copyright © 2006 by Irish
Railway Record Society Limited
Revised: January 09, 2007
.
