Murphy v Midland Great Western Railway of Ireland Company

• Jurisdiction: Ireland
• Judgment Date: 18 January 1902
• Docket Number: (1900. No. 8615.)
• Date: 18 January 1902
• Court: King's Bench Division (Ireland)

Murphy

and

Midland Great Western Railway of Ireland Co. (1).

K. B. Div.

(1900. No. 8615.)

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THERE FROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1903.

Railway Company — Condition — Reasonableness — Claim to be made within specified time — Railway and Canal Traffic Act, 1854 (17 & 18 Vict. c. 31), s. 7 — Parties — Principal and agent — Right of agent to sue — Amendment of pleadings.

The plaintiff purchased thirty head of cattle at Moate, and had them booked to Carlisle, under a through contract with the defendant Company. The cattle were not booked by the plaintiff himself, but by a man sent by him, who signed the contract note “on owner's behalf.” In the freight note, which was referred to in the contract note, the plaintiff was stated to be the owner. The defendants have, as the plaintiff knew, two rates for the carriage of live stock, a higher and a lower. The cattle here were, by plaintiff's direction, sent at the lower. The defendants undertake a more extended liability at the higher rate; but in each case the stock are carried subject to a condition that no claim in respect of live stock, for loss, injury, or delay, will be allowed unless made in writing, in case of injury or delay, within three days after delivery, such delivery to be deemed complete at the termination of the transit, or, in

case of loss, within seven days after the time when the live stock should, in the ordinary course, have been delivered. The signed contract in the present case contained this condition. On the passage between Dublin and Holyhead fifteen of the cattle were killed and fifteen injured. The dead cattle were sold by the defendants for the value of their hides. No claim in writing was made in respect of the loss or injury within either three or seven days. The statement of claim contained counts claiming damages for breach of contract and breach of duty in not safely carrying the cattle, and not providing a proper vessel, and also counts in trover and detinue in respect of the dead animals. The statement of defence relied on the above condition as a defence to all the causes of action; and, as a further defence to the counts in trover and detinue, denied that the cattle were the plaintiff's, but there was no traverse of the plaintiff's property in the cattle in respect of the claim for not carrying safely. At the trial the plaintiff admitted that he was not the owner of the cattle at the time of the injury, but had purchased them for one C., since deceased, and the jury found that they were the property of C. Before action brought, C.'s executors had made a claim in respect of the loss of the cattle. Subsequently an arrangement was made between plaintiff and C.'s executors, by which the ownership became vested in plaintiff:—

Held (per Lord O'Brien, L.C.J., and Wright, J., diss. Gibson, J.), that the plaintiff was not entitled to recover on any of the counts, on the ground that the cattle belonged not to the plaintiff but to C.; that the plaintiff, in making the contract with the defendants, was acting merely as agent for C., and defendants had notice of this before action; and that the defendants should be allowed to amend their defence by traversing the contract and the property in the cattle in relation to the counts for not safely carrying; also, per Lord O'Brien, L.C.J., on the further ground that the condition in question was just and reasonable.

Held (per Gibson and Wright, JJ., diss. Lord O'Brien, L.C.J.), that the condition in question was not just and reasonable, and no fair alternative being offered, was void.

Held also (per Gibson and Wright, JJ.), that such condition was one “with respeet to the receiving, forwarding, and delivering of animals, goods, or things” within the meaning of the 7th section of the Railway and Canal Traffic Act. Dictum to the contrary of Fitz Gerald, J., in Moore v. Great Northern Railway Co. (10 L. R. Ir., at p. 106) disapproved of.

Held (per Gibson, J.), that the denial of the plaintiff's property in the cattle being confined in the statement of defence to the counts in trover and detinue, the plaintiff was entitled to succeed on the counts in contract for not safely carrying, and that, having regard to the course of the trial, the defendants should not be allowed to amend their defence—at all events, except upon terms of the defendants paying all costs up to the date of amendment.

Held (per Gibson, J.): A condition by a Railway Company, that in respect of animals booked through by them or their agents for conveyance partly by railway and partly by sea, or partly by canal and partly by sea, the Company shall be exempted from liability for any loss, damage, or delay which may arise during the carriage of any such animals by sea from the act of God, the Queen's enemies, fire, accidents from machinery, boilers, and steam, and all and every other dangers and accidents of the seas, rivers, and navigation, of whatever nature and kind soever, in the same manner as if the Company had signed and delivered to the consignor a bill of lading containing such condition, is a just and reasonable condition.

New Trial Motion.

The action was brought by the plaintiff, who was engaged in the cattle trade, for loss of and injury to certain cattle. The plaintiff bought thirty head of cattle at Moate, in county Westmeath, on the 2nd October, 1899, and early that morning had them booked to Carlisle to a man named Coyle, under a through contract with the defendant Company. The plaintiff did not book the cattle himself, but sent a man named Creevy to do so, giving him the amount of the freight. The contract note was signed by Creevy “on owner's behalf,” the plaintiff's name not appearing; but in the freight note, which was referred to in the contract note, the plaintiff was stated to be the owner. The defendant Company have two rates, at either of which cattle may be consigned at the sender's or owner's option:—Rate A, when the Company convey the cattle on conditions A, as specified in the contract note; and rate B, a reduced rate at which, when adopted by the sender or owner, the Company convey the cattle on conditions B, as specified in the contract note, rate A being somewhat less than one-fifth higher than rate B. In the present case the cattle were booked at rate B, the lower rate, by the plaintiff's directions, and the contract note signed by Creevy incorporated conditions B. These conditions were as follows:—

CONDITIONS B.

1. No claim in respect of live stock for loss, injury, or delay, for which the Company may be liable, will be allowed unless the same be made in writing in the case of injury or delay within three days after delivery of the live stock in respect of which the claim is made, such delivery to be considered complete at the termination of the transit; or, in the case of loss, within seven days after the time when the live stock should in the ordinary course have been delivered.

2. After the termination of the transit the lire stock will be subject, in addition to the charge for carriage, to a further charge for demurrage of 3s. per truck per day until unloaded, and after unloading to a reasonable charge for lairage or other accommodation or service. Provided that no such charge shall be made if the Company have not given proper opportunity for the removal of the live stock or the discharge of the truck.

3. Consignors ordering trucks and failing to load and order them away within twenty-four hours after such trucks shall be ready for loading at the station or siding to which they were ordered will be subject to a charge of 3s. per truck per day for demurrage for every day or fraction of a day they shall be detained, after the expiry of such twenty-four hours.

4. All live stock delivered to the Company will be received and held by them subject to a lien for money due to them for the carriage of and other charges upon such live stock, and also to a general lien for any other moneys due to them from the owners of such live stock upon any account; and in case such lien is not satisfied within a reasonable time from the date upon which the Company first gave notice to the owners of the live stock of the exercise of the same the live stock may be sold by the Company by auction or otherwise, and the proceeds of sale applied to the satisfaction of every such lien and expenses.

5. The Company will not be liable for the loss of or for any injury done to live stock in the receiving, forwarding, or delivering thereof, except upon proof that such loss or injury was caused by neglect or default on the part of the Company or their servants.

6. The Company will not be liable for any loss of market.

7. The Company will not be liable for any indirect or consequential damages in respect of live stock lost, injured, or delayed.

8. In all cases where the Company's charges are not prepaid, the live stock is accepted for carriage only upon the condition that the sender remains liable for the payment of the amount due to the Company for the carriage of such live stock, without prejudice to the Company's rights, if any, against the consignee or any other person.

9. When the reduced rate is elected, the Company will not be accountable for any loss caused by delay, or injury to horses, sheep, cattle, pigs, or other live stock, taking place upon the premises of any Steamship or Shipping Company, or any quay, wharf, or yard, used by such Steamship or Shipping Company, before, at, or after shipment, or on the passage, or on the premises, of any Steamship or Shipping Company, or any quay, wharf, or yard, used by such Steamship or Shipping Company, at or after landing, nor for any loss of or injury to any such live stock, whether arising from or consequent upon the dangers or accidents of the seas, rivers, harbours, or navigation, or from the act of God, the Queen's enemies, pirates...