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Exemption clause – carrier found not liable for consequences of theft by an employee.

The facts

The consignor hired the carrier to carry a portmanteau containing jewelry from Wooburn Green to Bishops Stortford.

The consignment note contained the following condition: 

“The Great Western Railway Company give public notice that they hold themselves entirely relieved from loss or damage done to all goods, matters, or things described in the Act of Wm.4, c.68 unless the particular articles be declared, and an assurance over and above the carriage paid as compensation for the risk incurred”.

The statute in question, also known as the Carriers Act, 1830 provided that:

 “No …. common carrier by land for hire shall be liable for the loss of injury to any article or articles of property [of certain specified descriptions, including jewelry] contained in any parcel or package which shall have been delivered … to be carried for hire, when the value of such article or articles of property shall exceed ten pounds, unless at the time of the delivery the value and nature of such articles or property shall have been declared by the person or persons sending or delivering the same, and such increased charges thereafter mentioned shall have been accepted by the person receiving such parcel or package.”

Section 6 of that Act ran:

 “Provided always … that nothing in this Act contained shall extend or be construed to anul or in anywise affect any special contract between such common carrier and any other parties for the conveyance of goods and merchandizes”.

Section 8: “Provided also … that nothing in this Act shall be deemed to protect any common carrier for hire from liability for loss or injury to any goods or articles whatsoever arising from the felonious acts of any servant in his employ”.

The other applicable law, 17 and 18 Vict.31, the Railway and Canal Traffic Act, 1854, provided in s7 that every railway company “shall be liable for the loss of, or for any injury done to, any articles, goods or things in receiving, forwarding or delivering thereof occasioned by the neglect or default of such company or its servants, notwithstanding any notice, condition or declaration made and given by such company contrary thereto, or in any wise limiting such liability … Provided always that nothing herein contained shall be construed to prevent the said companies from making such conditions with respect to the receiving, forwarding, and delivering of any of the said articles, goods or things as shall be adjudged by the Court or judge before any question relating thereto shall be tried to be just and reasonable:  … provided also that no special contract between such company and any other parties respecting the receiving, forwarding, or delivering of any articles, goods or things as aforesaid shall be binding or affect any such party unless the same be signed by him, or by the person delivering such articles, goods or things respectively for carriage:  provided also that nothing herein contained shall alter or affect the rights, privileges or liabilities of any such company under Act 11Geo and 1Wm.4,c.68 with respect to articles of the descriptions mentioned in the said Act.” (emphasis added)

The portmanteau and its contents were valued at £250 and were stolen by one of defendant’s servants in transit.


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