Page images

damage to the property (r). But it is now pro- Notice vided by the statute already cited, that no notice bmij. shall limit or in any way affect the common law liability of any carriers, in respect of any articles to be conveyed by them; but they shall be liable as at common law for any goods in respect whereof they may not be entitled to the benefit of the Act(Y).

Where the carrier or his servant was guilty of wimt gross negligence, he would be liable before the vailed the statute, even if the case came within the terms of notice." his notice (t). As where the charge had been entrusted by the carrier to an inadequate number of persons(w); or, to one of dubious character(.r); or to one incompetent at the time to the trust, from inebriety, or similar cause{y); or, where any

(r) Moving v. Todd, 1 Stark. N. P. C. 72; Harris v. Packwood,

3 Taunt. 264; Hutton v. Bolton, 3 Dougl. 59; Butler v. Fisher, Peake, Add. Ca. 183.

(s) 11 Geo. IV. & 1 Will. IV. c. 68, s. 4. [The articles are specified in the first section.]

(I) Birkett v. Willan, 2 B. & A. 356; Nicholson v. IVittan, 5 East, 507; Beck v. Evans, 16 East, 244; Duff v. Budd, 6 B. Moore, 469; Lowe v. Booth, 13 Price, 329; Sleat v. Fagg, 5 B. & A. 342; Brooke v. Pickwick, 4 Bingh. 218; Siordet v. Hall,

4 Bingh. 607; S. C. 1 M. & P. 561.

(«) Beckford v. Crutwcll, 5 C. & P. 242; S. C. 1 M, & Rob. 187; Smith v. Home, 8 Taunt. 144; S. C. Holt, 643.

(x) See Macklin v. Waterhoute, 5 Bingh. 212; S. C. 2 M. & P. 319.

(y) Bodenham v. Bennett, 4 Price, 31.

Laches. culpable carelessness was proved against the carrier, his agent or servant (z). So, where the carrier undertook to carry the goods to a certain place, and deviated from the voyage without sufficient cause (a), or carried the goods beyond the appointed place of delivery (b), in the event of loss he would be liable, even though no want of due care could be proved against him.

Cancelling j}ut if any act of interference on the part of the

of liability * ^ *

by act of plaintiff himself, has led directly or indirectly to the loss of the property, the carrier's liability is discharged (c). The mere circumstance, however, that the plaintiff has exercised some care and superintendence over his property entrusted to the carrier, does not absolve the latter from his liability (</); unless indeed he has so far interfered that the goods cannot be considered to have been in the possession of the carrier at all (e). The carrier cannot defend himself on the ground of any default on the part of the plaintiff, which he did not object to at the time(/"). But if the plaintiff has been Cancelling


(z) Langley v. Brown, I M. & P. 583; Garnett v. Willan, 5 B. & A. 53.

(a) Davis v. Garrett, 4 M. & P. 540; S. C. 6 Bingh. 716.

(b) Ellis v. Turner, 8 T. R. 531.

(c) Miles v. Cattle, 6 Bingh. 743; S. C. 4 M. & P. 630. So, where the delivery was caused by some omission on the part of the consignee, the ship-owner will not be liable: Shirwdl v. Shaplock, 2 Chit. Rep. 397.

(d) Robinson v. Dunmore, 2 B. & P. 416; Calye's case, 8 Co. Rep. 33.

(e) East India Company v. Pullen, 1 Stra. 600.

KJ' r of liability.

guilty of gross and culpable neglect (g), or of fraud or unfair concealment (A), he cannot recover in an action against the carrier.

If the carrier assent to an order given to him Discharge respecting the delivery of the goods, even before by performthe goods are actually given into his custody, he will be bound to comply with the terms of such order (j). In general it is his duty actually to deliver the goods at their place of destination (A), perhaps even the residence of the consignee (/). His liability will not be discharged by delivering them at an intermediate place, such as a wharf or warehouse, which he is in the habit of using(m), even when the consignee is cognizant of the fact, that as between the carrier and the owner of the warehouse, his journey is considered to be at an end there, and that the profits of the further carriage are allowed by the carrier to another person (»).

(/) Stuart v. Crawley, 2 Stark. N. P. C. 325.

(g) Bradley v. Waterhouse, Dan. & Lloyd, Merc. Ca. 1; S. C. 3 C. & P. 318, M. & Malk. 154.

(A) Mayhew v. Eames, 3 B. & C. 601; S. C. 5 D. & R. 484; Edwards v. Sherratt, 1 East, 604; Izett v. Mountain, 4 East, 370; Clay v. Willan, 1 H. Bl. 298.

(i) Streeter v. Horlock, 1 Bingli. 34.

(k) Golden v. Manning, 2 Bl. Rep. 916; S. C. 3 Wils. 429; Griffiths v. Lee, 1 C. & P. 110.

(/) Stoer v. Crowley, 1 M'Clel. & Y. 129; Vid. per Curiam.

(m) Wardell v. Mourillyan, 2 Esp. 693.

(n) Hyde v. Trent and Mersey Navigation Company, 5 T. R. 389. In this case, indeed, the defendants were held liable at all

Dj?h"?e If the carrier deliver the goods at a different

of liability. t

direction from that specified, though he may have been innocently induced to do so by a fraud practised on the consignor by a third party, the consignor may recover the value against the carrier (o).


Foim of Where the carrier has lost the goods, a special

action on the case is the proper remedy, and trover will not lie (/»). Nor can trover be supported for a mere omission to deliver, without an actual demand and refusal to evidence a conversion^). But trover may be maintained for a misdelivery, though such misdelivery were occasioned by mistake (r); or, for delivering on a forged order (s); or, for an absolute refusal to deliver (t).

events on their special undertaking. The Court expressed some doubts upon the general question; but all the judges (with the exception of Lord Kenyon, C. J.) were strongly inclined in favour of the liability. If the warehouse belong to the carrier, the nature of his subsequent liability is varied accordingly; for he is thenceforth liable as warehouseman, and not as carrier; Carside v. The same Company, 4 T. R. 581.

(o) Duff v. Budd, 6 B. Moore, 469; S. C. 3 B. & B. 177; Stephenson v. Hart, 4 Bingh. 476; Lubbock v. Inglis, 1 Stark. N. P. C. 104. Supra.

(p) Owen v. Lewyn, 1 Ventr. 223; Anon. 2 Salk. 655; Ross v. Johnson, 5 Burr. 2825. Bull. N. P. 44, 5; Kirkman v. Ilargreaxes, Selw. N. P. 419, (8th Ed.)

(y) Severin v. Keppell, 4 Esp. 157 ; Attersol v. Briant, I Campb. 409; Alexander v. Southey, 5 B. & A. 247.

(r) Youl v. Harbottle, Peake, 49; Devereux v. Barclay, 2 B. & A. 702.

(») Lubbock v. Inglis, 1 Stark. N. P. C. 104.

(0 Thompson v. Trail, 6 B. & C. 36; Dewell v. Maxou, I Taunt. 391 ; Syeds v. Hay, 4 T. R. 260.

The plaintiff must give some proof of damage Amount of sustained. It is enacted by the statute above cited, that the carrier shall not be concluded by the declared value of the goods, but shall be liable only to such amount as may be proved not exceeding the declared value (u). Where the plaintiff has paid an increased rate of charges, he is entitled to recover back such extra charges, in addition to the value of the lost property (.r). If no special proof of the nature and the value of the property can be given by the plaintiff, the judge will direct the jury to allow reasonable damages (y).

(») 11 Geo. IV. & 1 Will. IV. c. 68, s. 9.

(x) Id. section 7.

(J) Butler v. Basing, 2 C. & P. 613.

« PreviousContinue »