The Stourbridge Observer, Cradley Heath, Halesowen & District Chronicle.
Stourbridge, West Midlands, England, 1875-06-12 00:00:00

The QUESTION as to the LIABILITY

of CARRYING COMPANIES.

Referring to the case of "Henderson v. Stevenson," The
Times of Saturday, in a leader, writes :

The relations between the Railways of the United
Kingdom - and the people they carry were for a long
time extremely uncertaiß, and the uncertainty was
altogether adverse to the public. The application of
the old law of carriers to the new conditions of travel-
ling involved many difficulties and doubts, and in very
few cases was it worth anybody's while to clear away
those doubts and difficulties by legal proceedings. The
Companies had the longest purse, and they could afford
to back their own interpretations of carriers' law in a
way which it was hazardous for any private person to
oppose. But in time a body of law has grown up which
represents the desire of the Courts to restrict the Com-
panies in their lax constructions of their own responsi
bilities, and to enlarge the remedies within " the reach
of the travelling public. An important addition was
made on Tuesday to this collection of valuable decisions
by the judgment which the House of Lords gave in the
case of "Henderson v. Stevenson." The question in-
volved was whether a Railway Company, a firm of
shipowners, or other public carriers could divest them-
selves of a responsibility to which the ordinary law
subjects them by printing a few words of disclaimer
upon a passenger's ticket. In the case referred to,
which came before the House of Lords on appeal from
the Court of Session in Scotland, Lieutenant Steven-
son originally sued the owners of a steamer run-
ning between Dublin and Silloth for loss incurred
through the wreck of the vessel. His alleged loss
was twcfold, consisting in part of personal ex-
penses incurred after the disaster, and in part of
luggage which was not recovered from the wreck. The
owners of the steamer in the first place denied that
there was any negligence which could fix the responsi-
bility for loss upon them; but they contended, fur-
ther, that, whether there .had been negligence or not,
they were relieved from liability by a notice printed on
the hack of every passenger's ticket. The former
defence raised a very simple issue, which the Court of
Session determined unanimously against the ship-
owners. The second, however, turns upon a point
which has not, perhaps, been made as clear heretofore
as it might have been; it was also decided in favour
of Lieutenant Stevenson, hut a minority of the Judges
appear to have held that the shipowners were exone-
rated by the notice given on the back of the ticket.
Upon this difference of opinion,•an appeal to the House
of Lords was to be expected, and on Tuesday the Lord
Chancellor, Lord Chelmsford, Lord Hatherley, and
Lord O'Hagan, without calling upon the counsel for
Lieutenant Stevenson' though after a careful hearing of
all that could be urged on behalf of the shipowners, up-
held the judgment of the Court below upon both points.
The question whether there was negligence in the par-
ticular case was of little public interest, and the House
of Lords very properly declined to disturb the decision
of the Court of Session, which had been informed of
the facts at first hand. But the question whether such
a notice as that printed by the owners of the steamer
on the back of their tickets annuls their responsibility
for losses occurring through negligence affects the
liability of many Railway Companies all over the
United Kingdom, who are in the habit of issuing their
tickets with similar notice, and was important enough
to (lemma(' settlement by some higher authority than
that of a majority of Judges in the Second Division of
the Court of Session in Scotland,

The form of the notice referred to will be familiar to
many Railway travellers, though many more, probably
the majority, are unaware how often such conditions
are imposed, or attempted to be iniposed; upon them.
It runs thus :—" This ticket is isaired on the conditiori
that the Company incur no liability whatever in respect
of loss, injury, or delay to the passenger, or to his or
her luggage, whether arising from the act, neglect, or
default of the Company or their servants or otherwise.
It is also issued subject to all the conditions and
arrangements published by the Company." The con-
tention of the appellants in the case decided
by the House of Lords was that the conditions
specified in the foregoing notice were a part of the
contract between the passenger and the carrier, and
were binding on the passenger from the moment be
took the ticket. It made no difference, it was
argued, whether the conditions were printed on the
front or the back of the ticket, or whether the pas• "
senger received any intimation that there was such a
notice at all . It must he presumed, urged the counsel
for the appellants, that a pasenger who purukissd
ticket with conditions printed ilpofli had 'read an7l
was bound by those conilitions, for it was the duty of
the traveller to look at his ticket in order to ascertain
what the terms of the contract were; he was not en-
titled, it was said, "to put his ticket in his pocket

without reading it and then endeavour to set up an
entirely new contract which the person who gave the
ticket never intended to enter into. It was imma-
terial whether the passenger read the ticket or not;
if he took it, he was bound by the conditions upon it."
These arguments have the merit of throwing into a
clear and concise form the policy which the Railway
Companies have for a great many years endeavoured
to put into force against the public interest, and
their repudiation by the House of Lords we may re-
gard, with Lord O'Hagan, as "salutary and in ac-
cordance with common sense." The decision of the
Lords is satisfactory as far as it goes, though it may be
thought that it might go much further, and condemn
distinctly the practice on which it only imposes an in-
direct check. The law, therefore, as now declared by the
highest tribunal in the kingdom, is that no conditions
printed upon a ticket are binding upon a passenger as a
part of his contract with a railway company or other
carrier, unless his attention has been specially drawn
to them. The contract which ordinary travellers be-
lieve they are entering into with a railway company is
of the simplest kind, and is complicated, so tar as one
of the parties is aware, by no conditions whatever. It
is a bargain for conveyance from one place to anothca-
in consideration of a certain sum of money, and it is
completed on the passenger's side when the money is
paid. The ticket, as both Lord Chelmsford and
Lord Hatherley pointed out, is is no essential
instrument of the contract, but a mere voucher
or receipt for the fare. If a man signs a
deed, he may be presumed to have acquainted
himself with all its contents, and may be
reasonably bound by all its conditions; but it is pre-
posterous to claim such a character for a railway or
steamboat ticket. If, however, that claim be aban-
doned, no binding force can be conceded to conditions
printed on tickets, unless special notice of them be
given to the passenger. It would be impossible to
admit arguments as to the probability of the passenger
having read the conditions ; in any case he could only
have read them after he had paid his money, and pro-
bably after he had started on his journey; and in the
greater number of instances, when the conditions were
printed on the back, while the voucher for his money
and the specification of the place to which he was to
be carried appeared upon the front, he would -not be
likely to perceive that there were any printed condi-
tions at all.
Apart, however, from the legal bearings of the deci-
sion in the House of Lords, a large part of the question
was still left untouched. Lord Chelmsford was the
only one of the Judges on Tuesday who ventured to
approach the question how far public policy ought to
sanction such conditions as those attempted to be im-
posed on Lieutenant Stevenson. "In a case like this,"
he said, " where the shipowners sought to secure them-
selves against the consequences of their own negligence,
the conditions should be most strictly construed against
them, and the assent of the passenger to them should
be clearly established." This condemnation of the at-
tempt to extort from a passenger an assent to conditions
intended to obviate a responsibility which public policy
maintains. as a necessary restraint upon public carriers
seems to us to be altogether inadequate. It tells public
carriers that their conditions must be construed strictly
against them, and, as they were printed where they might
not be seen, the passenger must be held not to have had
notice of them. But this decision leaves it apparently
open for a carrier to impose conditions relieving him
from liability for negligence if he takes care to give
full notice to the passenger. Are we to take this as
settled? If Lieutenant Stevenson's attention had been
called to the words printed on the back of his ticket,
would he have had no case against the Company? The
House of Lords did not expressly lay this down as law,
but the decision of Tuesday rather favours than dis-
courages such a contention. If so, it is time for Par-
liament to interfere, and to determine the controversy
finally in the only fair way—by enacting that no
amount of notice and no cunningly-devised condi-
tions are to exonerate a Railway or Steamboat
Company or other carriers from the consequences
of negligence. If negligence is a wrong to be
punished, why should any one be allowed beforehand
to discharge himself from its results? We should not
allow a maxi to knock another down with impunity
because he gave notice beforehand, and Parliament
should not be afraid to enforce the obligation which
alone imposes a certain proportion of care for the tra-
velling public upon the Railways. It may be that no
new law is needed, and that the House of Lords pur-
posely narrowed its view so as to dispose merely of the
equities of the case before them. But if Carrying
Companies take advantage of the narrowness of this
Wan. ent to act as if liability for negligence could be
obviated by notice, the inoperative character of any
condizions imposed by carriers for this purpose will
have to be made clear by a Declaratory Act.