« PreviousContinue »
liable for their loss through his negligence, even if he is not paid for carrying the goods. In Sciama & Co. vs. Table Bay Harbour Board (10 C.T.R. 145), the plaintiffs, carrying on business at Capetown, were the consignees of a parcel of ostrich feathers, which were sent to them by a Union Co. steamer from Mossel Bay. The parcel was delivered by the steamer to the captain of the tug “ John Paterson,” belonging to the Harbour Board, for conveyance to the shore. On the way to shore the feathers fell overboard. The tug was there for the ship's business, and it was customary to land feathers in this way. The Harbour Board was not paid for the conveyance of the feathers, but were paid by the Union Co. for the trip of the tug. The defendants gave their captain no authority to take cargo, and there was no contract whatever between them and the plaintiffs. It appeared that goods of the kind were only carried by the tug "to oblige the captains of the steamships." The Court found that with ordinary skill and care the accident might have been avoided, and that consequently the damage done to the feathers was occasioned by the negligence__although not gross negligence-of the Harbour Board's servants. The Court further found that “the previous course of dealing between all the parties was such as justify the inference that the captain of the steamer acted and had authority to act on behalf of the plaintiffs in delivering the goods to the master of the tug, and that the master of the tug acted and had authority to act on behalf of the defendants in accepting the goods. In obliging the captain the master of the tug obliged the principal on whose behalf the captain was acting.” The Court decided that though no payment was to be made for the conveyance of the goods, and therefore the defendants did not incur the liability of common carriers, they undertook a gratuitous mandate or agency, and “if they were guilty of negligence in carrying out the mandate they incurred a liability towards the owners of the goods, who are the principals on whose behalf the master of the ship acted." The Harbour Board was consequently held liable for the loss sustained.
From the foregoing case of Sciama & Co. vs. Table Bay Harbour Board it will be seen that, had the Harbour Board received payment for carrying the goods, they would have been in the position of common carriers. It is thus the receipt of payment for carriage which decides whether a person is a common carrier or not. According to this case, "if they had been common carriers. ineritable casualty or accident would alone have freed them from liability." But as gratuitous mandatories they could not be held liable, except for negligence on the part of themselves or those employed by them. Such negligence existed in this case, and they were therefore held liable.
LIMITING LIABILITY-SPECIAL CONDITIONS—Notice.-It frequently happens that carriers seek to escape liability by relying on private regulations of their own limiting such liability. In each case, in order to escape liability, it must be shown that such regulations formed part of the contract between the parties. The following rules were laid down in Stretton vs. Union Co. (1 E.D.C., 315):-“If a person received a ticket and did not see it or know that there was any writing on the ticket, he is not bound by the conditions contained in the ticket; if he knew that there was writing, and knew or believed that the writing contained conditions, then he is bound by the conditions ; if he knew that there was writing on the ticket, but did not know or believe that the writing contained conditions, nevertheless he would be bound, if the delivering of the ticket to him was in such a manner that he could see there was writing upon it containing conditions."
The foregoing case was that of a passenger, but the same rules apply whether the contract is to carry a passenger or to carry goods.
In Zeederberg vs. Frank (O.R. 1894, March, p. 125), plaintiffs were passengers, who took tickets by a coach belonging to defendants. After they had taken their seats in the coach, tickets were handed to them, on the back of which were regulations limiting the liability of the coachowners in case of loss of luggage. The Court-the luggage having been lost- decided that plaintiffs were entitled to the full amount of damage sustained. “The public is not obliged to take notice of arbitrary private regulations, and cannot be presumed to have notice of them, for the regulations are private, and not imposed by public authority.'
LIMITING LIABILITY-REGULATIONS-SIGNATURE.--In Burger Central South African Railways ([1903), T.S. 571), Burger, through his duly authorised agent, delivered a box of books to the C.S.A. Railways at Johannesburg for carriage by rail to Grahamstown.
The agent signed a consignment note, which was also signed by an official of the department, which stated on the face of it that it was issued subject to the goods traffic regulations in force on the railway. Under $ 14 of these regulations the liability of the department was very materially limited in the case of loss or damage to goods entrusted to it, unless the value had been declared and the goods had been specially insured by the consignor. Burger read the note before the goods left Johannesburg, but not not make himself acquainted with the regulations. The goods were lost in transit. It was decided that though the facts proved established a strong prima facie case of negligence, and therefore of liability against the defendants, and though the regulations alluded to in the consignment note had not been annexed to it or printed upon it, yet the signatory was bound by the terms of the document he signed ; that the special written contract signed by both parties limited the liability of the respondents to a certain definite amount, which they had duly tendered ; and that they (the C.S.A. Railways) were therefore not liable to make good the full value of the articles lost. In this case the Court did not decide on the ground that the regulations must be presumed to have come under Burger's notice, but on the ground that by signing the consignment note he was bound by all the provisions which it contained or to which it referred.
LIMITING LIABILITY-REGULATIONS-No SIGNATURE.-It will, however, be different where the consignor does not sign the consignment note. In that case he is not necessarily bound by the regulations. Thus, in Central South African Railways vs. McLaren (, T.S. 727), McLaren delivered a package of a value exceeding £5 at the cloak-room of the Pretoria Railway Station, and received a ticket on which were the words, “The department is not responsible for any article exceeding the value of £5," printed in red ink diagonally across the ticket and partly covered by the clerk's entry of the description of the article deposited. McLaren knew that there was printing on the ticket, but did not know that this printing contained any conditions limiting the department's liability. His attention was not directed to the conditions, nor was any notice placarded in the cloak-room calling attention to the condition. The package was lost, and McLaren now sued for its value. It was held that the department had not done what was reasonably sufficient to give McLaren notice of the condition, and that he was entitled to recover the value of the package.
The liability of carriers by land is the same as that of carriers by water (Tregidga & Co. vs. Sivewright, 14 J. 81).
The foregoing cases define the general rules relating to carriers' liability. Such rules are, of course, subject to any regulations made by Statute Law. In the Transvaal the liability of the Central South African Railways is regulated by Statute, and what is provided for by Statute takes precedence of what is laid down by the foregoing rules made under the Common Law. Where the Statute Law and the cases under the Common Law conflict, the Statute Law governs the matter. Where the Statute Law is silent, the Common Law contained in the foregoing cases decides. The Transvaal Railways (including the Central
Central South African Railways) are regulated by Ordinance No. 60, 1903.
The following are the provisions of Ordinance No. 60, 1903, relating to the carriage of goods on the Transvaal Railways :
ORDINANCE No. 60, 1903.
Sections relating to the earriage of goods, the liability of the railways carrying the same, and actions against the railways :
10. (1) The consignor of property is presumed to be liable for the carriage, but if the contract between him and the Administration provides that the consignee shall pay it, and the Administration allows the consignee to take the property, it cannot afterwards recover the carriage from the consignor.
(2) The consignee of property is liable for the carriage and other charges, if he accepts the property with notice that the same are unpaid.
11. (1) If a consignee receives property at a place short of that appointed for the delivery, the Administration is entitled to a just proportion of the carriage, according to distance. If the Administration, being ready and willing, offers to complete the conveyance of the property, it is entitled to full carriage.
(2) If property is carried further or more expeditiously than was agreed upon between the parties, the Administration is not entitled to additional compensation, and cannot refuse to deliver it on the demand of the consignee, at the place and time of its arrival.
12. When the Administration does not deliver the property to the consignee or his agent personally, it must give notice to the consignee of the arrival of the property, and keep the same in safety upon its responsibility as a warehouseman. If the place of residence or business of the consignee be unknown to the Administration, it may give the notice by posting to the consignee a letter addressed to the consignee at the address given on the property or papers relating thereto.
13. If property is not removed or instructions for the disposal thereof are not given within fourteen days of the posting of the notice, the responsibility of the Administration in respect thereof shall cease.
Any consignee or person entitled to receive the delivery of any property from the Administration shall have twenty-four working hours, free of expense, after notice of arrival has been posted or forwarded to him by the Administration, to remove the
from the trucks other vehicles of the Administration, which twenty-four working hours shall be held to commence from such time as the truck or other vehicle containing such property is placed and kept by the Administration in a convenient and proper place for unloading, and it shall not be held to be a proper place for unloading unless it can be reached with suitable means of removing the property from the trucks or other vehicles, and reasonably convenient to the station at which it is usual to receive and unload property consigned to that station or place.
14. (1) If a person fail to pay on demand, made by or on behalf of the Administration, any carriage or other charge due from him in respect of any property, the Administration may detain the whole or any part of the property, or, if it has been removed from the railway, any of the property of such person then being in or thereafter coming into its possession.
(2) When any animals or goods have been detained under sub-section (1), the Administration may sell, in the case of perishable goods at once, and in case of other goods or of animals by public auction on the expiration of at least ten days' notice of the intended auction, published in one or more of the local newspapers, or when there are no such newspapers, in such
as the High Commissioner may prescribe, sufficient of such animals or goods to produce a sum equal to the carriage or other charges, and all expenses of such detention, notice and sale, including in the case of animals the expense of the feeding, watering and tending thereof. Every such notice of sale shall state the name of the consignor and consignee, if known.
(3) Out of the proceeds of the sale the Administration may retain a sum equal to the carriage and other charges aforesaid, including any balance due in respect of former carriage or charges, and the expenses aforesaid, rendering the surplus (if any) of any of the proceeds and such of the animals or goods (if any) as remain unsold to the person entitled tereto.
(4) If a person on whom a demand for any carriage or other charge due from him has been made fails to remove from the railway within seven days any animals or goods which have been detained under sub-section (1), or any animals or goods which have remained unsold after a sale under sub-section (2), the Administration may sell the whole of them, and dispose of the proceeds of the sale as nearly as may be under the provisions of sub-section (3).
(5) Notwithstanding anything in the foregoing sub-sections, the Administration may recover by action in any competent Court any such carriage or other charge as aforesaid, or balance thereof.
15. (1) When any property has come into the possession of the Administration for carriage or otherwise, and is not claimed by the owner or other person appearing to the Administration to be entitled thereto, the Administration shall, if such owner person is known, cause a notice to be served upon him, requiring him to remove the animals or goods.
(2) If such owner or person is not known, or the notice cannot be served upon him, or he does not comply with the requisition in the notice, the Administration may, after the expiration of ten days, sell the property as nearly as may be under the provisions of the foregoing section, rendering the surplus (if any) of the proceeds of the sale to any person entitled thereto.
16. If the consignee does not accept and remove the property within the time specified in any regulations framed under this Ordinance, or in the consignment notes, after the Administration has fulfilled its obligations to deliver or duly offered to fulfil the same, the Administration may relieve itself from further liability by placing the property in a suitable warehouse or store, when available, on account of the consignee, and giving notice thereof to him.
17. (1) The Administration is exonerated from liability for property by delivery thereof in good faith to any holder of a receipt or duplicate registered number given by or on behalf of the Administration therefor, specially endorsed or given to the party presenting it.