Irish Railway Record Society
History of Railway Legislation- Part 4
TIM MORIARTY
THE
RAILWAY AND CANAL TRAFFIC ACTS (2)
It is not unreasonable to suggest that nearly all cases of loss delay or injury in transit may be traced to some negligence on the part of a railway company or its servants. At common law carriers were always able to limit by special contract their liability of insurers of goods and animals delivered to them for carriage as per s 6 of the Carriers Act. The railways were not slow to avail themselves of this power and many questions arose between them and their customers as to the meaning of such contracts. It was decided in numerous cases that railway companies could even exempt themselves against *gross negligence. It was also established to be immaterial whether the consignor had signed a written document or not it being sufficient if a document was given to him or even if a verbal statement was made to him by a booking clerk. Therefore, clause s7 of the RCTA of 1854 rendered a railway company liable notwithstanding notices.
*The older legal expression was "wilful misconduct" and was defined in rather tongue twisting terms in the case of Graham v BNCR in 1901 where according to Justice Johnson it meant: "... misconduct to which the will is party as contradistinguished from accident, and is far beyond any negligence, even gross or culpable negligence, and involves that a person wilfully misconducts himself who knows and appreciates that it is wrong conduct on his part in the existing circumstances to do, or to fail, or omit to do, a particular thing, and yet intentionally does, or fails, or omits to do it, or persists in the act, failure, or omission regardless of consequences".
In the Graham case itself unexplained unreasonable delay in forwarding perishable goods was held not to constitute "wilful misconduct" because there was no proof that the delay was intentional.
Special contracts were required for delicate goods or goods of high value. The case of Peek v the North Staffordshire railway known as the Peek's marbles case is worthy of consideration because it finally settled the disputed question whether conditions exonerating a company from liability although just and reasonable were not binding unless signed and conversely even if signed were not binding unless just and reasonable.
The facts of this case are briefly these: Mr Peek was the owner of three marble fireplaces who wished them conveyed by rail to London. The North Staffordshire railway advised him in writing of the conditions under which they would convey goods. The company fetched the chimneypieces and they got as far as the station where they remained apparently with no definite instruction about their transit. Verbal and written communications took place over the conveyance of same as to whether they should be sent at carriers or owners risk, whether they should be insured and at what premium. Finally, Mr Peek instructed through his agent "Please forward the three cases of marbles uninsured to be collected at Camden Town station". Therefore, they began their London journey but as luck would have it they were damaged by water, the owner sued and the case eventually went to the House of Lords. It was held by the law lords that the note to forward the marbles uninsured did not constitute a signed contract and the conditions were also held to be unreasonable in this case. So as one law commentator put it in legal jargon: "the plaintiff recovered judgement for the damage to his marbles".
In Ireland, eggs and bacon exported to the UK were also the subject of claims for damage by wet as well as pillage. Claremorris Quarter Sessions in January 1914 hear the case of Muller the egg merchant from Ballinrobe against the MGWR. He claimed on three counts for consignments of eggs sent from Maam Cross to the UK, which had got wet in transit and had to be sold off at a loss. The station master at Maam Cross told the court that he sent the eggs as soon as he could but denied that they could have got wet as "he had put them in the waiting room"!
LIVESTOCK TRAFFIC
Reasonable facilities for the carriage of animals were prescribed by the Railway and Canal Traffic Act of 1854. Now this traffic was formerly very lucrative to the railways. Towards the close of the 19th Century it represented some £80,000 per annum or one fifth of all goods revenue on the GSWR. On the Great Northern it represented one eight and on the Midland one sixth.
Some interesting statistics came to light during the Inquiry into the Internal Transit of Animals in 1898. Wagons used only for cattle were open i.e. had no roofs but general purpose covered wagons were often used when there was increased demand on fair days. The GSWR had 320 open cattle wagons and some 850 closed wagons. The GNRI had 515 opens. The Midland had 605 open and 1581 covered wagons. The average speed of cattle trains was 23mph.
Many orders for the transport of livestock were made under the Diseases of Animals Act of 1894. Included was the Water at Railway Stations Order of 1895 for the provision of food and water at loading docks.
Where it became necessary that animals should be fed in transit, a request to that effect could be implied and it was the duty of the carrier to supply food at the cost of the owner. A railway company would have a lien on future consignments of livestock until such money was recovered. In GSWR v Hourican 1910 (44 ILT 89) it seems that the company had difficulty in getting paid for their services in fulfilling this implied request.
A railway company could also be held responsible if in consequence of neglect to provide food and water animals deteriorated and failed to realise their full market value. In Curran v MGWR in 1896 where the company normally fed the plaintiffs pigs in transit but omitted to do so on this occasion it was found negligent.
Cleaning of Cattle Trucks was regarded as a terminal facility for which charges could be made. In 1929, the charge for cleaning a cattle truck was two shillings as decided by the Irish Railway Tribunal. In times of cattle plague i.e. Foot and Mouth disease there was an obligation to disinfect cattle trucks within 24 hours of last use.
There were also provisions for dealing with sick, injured and dead animals. Most injuries were caused by rough shunting. The GSWR damages bill was around £100 pa, which was very small and represented only .01% of the livestock revenue. The Inquiry of 1898 already mentioned recommended that all future cattle trucks should be roofed and fitted with screw couplings - although the latter never became a total reality. No claim would be entertained for loss or injury if it was proved that the disposition, inherent vice or mischief of the animal caused the injury or death in transit. This was because unlike inanimate objects animals have minds of their own, have feelings and could be truculent and bad tempered sometimes just like the people entrusted with their transport!
While inherent vice is best understood in the case of animals or humans it is also applies to substances such as perishable goods which have a propensity or potential to deteriorate in time and in transit. Liquids are also regarded as having an inherent vice to evaporate or leak from their containers. Unless wilful negligence or unreasonable delay were proved on the part of the railway they were not responsible for the deterioration of perishables, evaporation or leakages in transit.
When animals were sent by rail it was the duty of the consignee to provide for their collection at the end of the journey. Failing this the obligation rested with the company to provide for the animals welfare at the expense of the owner/consignee. A railway company could not for example turn animals out onto the road or let them starve! So where a horse was sent by rail and no one to receive it and the company placed it in a livery stable because there was no station accommodation, they were adjudged to have acted properly. The owner was liable for the stable charges, which had accrued to seventeen shillings during a protracted dispute between the parties. (GNR v Swaffield, 1874).
Copyright © 2007 by Irish
Railway Record Society Limited
Revised: January 09, 2007
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