gouldvse.doc

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Gould v. South Eastern and Chatham Railway Company.King's Bench Division

KBD

Atkin L.J. and Younger L.J.

1920 March 17.

Railway Company--Goods delivered for Carriage improperly packed--Knowledge of Company--Liability

for Damage due to defective Packing.

Where goods are delivered to a common carrier for carriage insufficiently packed, and are damaged in the

course of the transit, the carrier's knowledge of their condition at the time of their receipt will not preclude

him from setting up as a defence that the damage was due to the insufficient packing.

APPEAL from the Southwark County Court.

In September, 1919, the plaintiff, who was then carrying on business at Ramsgate, was desirous of

removing to London. He accordingly wrote to the defendants requesting them to send and collect his

goods for carriage on their railway. They sent a carman named Perry with a van, and on his arrival at the

plaintiff's premises the plaintiff asked him for a form of consignment note. Perry had not got one, but saidhe could make a consignment note on anything. The plaintiff then made on a postcard a list of the goods,

which consisted of seven packages, including a glass showcase, wrote on it his name with the address to

which the goods were to be sent, together with the words "Carriage forward," and handed it to Perry.

Perry pointed out to him that the showcase was improperly packed, and told him that being glass it would

probably have to be paid for at a higher rate than the other goods. Thereupon the plaintiff asked him "to

do his best" for him, which Perry understood to mean that the plaintiff wished him to fill up and sign for

him the form of consignment note which was applicable. Perry took the goods away in the van, and on

arriving at the railway station filled up a printed form of consignment note with the list of goods to be

carried and signed it with the plaintiff's name. The form bore the heading "Consignment note for

damageable goods when not properly protected by packing, at owners' risk," being the only form that the

company have applicable to that class of goods. During the transit to London the showcase was damaged,

and for that damage the present action was brought.For the defendants it was contended that (1.) the consignment note so signed by Perry in the plaintiff's

name and consigning the goods "at owners' risk" was binding on the plaintiff as being a special contract

signed by the owner within s. 7 of the Railway and Canal Traffic Act, 1854; and (2.) that even if the

goods were carried by them as common carriers and not at owners' risk they were not responsible for the

damage which was caused by the plaintiff's neglect to pack them properly.

The county court judge with regard to the first defence held that there was not sufficient evidence of

Perry's authority to sign an owners' risk note on the plaintiff's behalf, and that consequently the goods

must be treated as having been carried by the defendants as common carriers. On the second defence he

held that even if the showcase was damaged as the result of insufficient packing it was a good answer that

the defendants knew of the insufficiency at the time they received the goods for carriage; and for that he

relied on a ruling of Lord Ellenborough in Stuart v. Crawley. [FN1] He accordingly gave judgment for the

plaintiff.

FN1 (1818) 2 Stark. 323.

The defendants appealed.

C. Incefor the defendants. The proper inference from the facts is that Perry had the plaintiff's authority to

sign the note. There is no objection to a special contract under the Act of 1854 being signed by a common

agent of both consignor and railway company: Aldridge v. Great Western Ry. Co. [FN2]The plaintiff's

instructions were ambiguous, and Perry was entitled to do the best he could under the circumstances. The

alternative to his not consigning the goods at owners' risk was that they would not have been carried at

all. But even if there was no special contract, still the defendants are not liable owing to the condition in

which the showcase was delivered to them. In Hart v. Baxendale [FN3], where a marble toppedwashstand was damaged during carriage in consequence of being badly packed, Martin B. directed the

jury: "A carrier is an insurer and bound to deliver goods committed to him safely, the Act of God and

Queen's enemies excepted. But there is a condition precedent, that the goods if liable to be broken shall be


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properly and carefully packed." The county court judge has held that the bad packing afforded no defence

in view of the fact that the defendants knew of it; and for that he relied on Stuart v. Crawley [FN4], where

a dog was handed to a carrier for carriage without any collar and with a cord round its neck so

insufficiently secured that after the carrier had accepted the custody the dog escaped and was lost. Lord

Ellenborough held that as the carrier had the means of seeing that it was insufficiently secured he was

responsible, and he distinguished the case of "a delivery of goods imperfectly packed, since there the

defect was not visible." But that case is inconsistent with the later decision in Barbour v. South Eastern

Ry. Co. [FN5] There furniture was delivered to the defendants improperly packed, and was damaged in

consequence in the course of the carriage. It was held that as it was the owner's duty to pack the goods

and he chose to have them go in an unsafe condition he could not complain if they were damaged as the

result of that condition, and that it made no difference that the defendants were aware of it. Cleasby B.

expressly pointed out that "the goods were delivered in a manifestly unsafe condition," that is to say, that

it was known to the defendants; and Field J. pointed out the same thing. Stuart v. Crawley [FN6]was there

referred to in the plaintiff's argument, but no attention was paid to it in the judgments.

FN2 (1864) 15 C. B. (N. S.) 582.

FN3 (1867) 16 L. T. 390.

FN4 2 Stark. 323.

FN5 (1876) 34 L. T. 67.

FN6 2 Stark. 323.

Bickmorefor the plaintiff. There was no evidence on which the county court judge could find an authority

to Perry to fill up an owners' risk note. If there was authority to fill up a consignment note at all it was to

do so on the ordinary terms, the goods being carried by the defendants as common carriers. On the other

point, the defence that the damage was due to insufficient packing cannot be relied on, as the defendants

took the goods with notice of their condition. Stuart v. Crawley [FN7] is good law. In Richardson v.North Eastern Ry. Co. [FN8]it was referred to by Willes J. without any disapproval and distinguished.

That also was the case of a dog delivered for carriage to a railway company. At the time of delivery it had

on an ordinary leathern collar with a strap attached to it. In the course of the journey, it being necessary to

remove the dog from one train to another, it was temporarily fastened by the strap to an iron spout on the

platform of the station, and while so fastened it slipped its head out of the collar, got on the line and was

killed. It was held that the defendants were not liable, as the collar was in fact unsafe and therefore it was

negligent in the consignor to deliver it in that condition, but the unsafety was not apparent to the

defendants. Willes J. distinguished Stuart v. Crawley [FN9] upon the ground that in that case "when the

dog was delivered to the defendant's servant he had the means of seeing that it was insufficiently secured,

whereas here the mode of securing the dog was that which is ordinarily adopted, viz., by a collar and

strap."

FN7 2 Stark. 323.

FN8 (1872) L. R. 7 C. P. 75.

FN9 2 Stark. 323.

Incewas not called on to reply.

ATKIN L.J.

This is an appeal from the judge of the Southwark County Court, who gave judgment for the plaintiff in

an action brought against a railway company for damage done to a showcase which was damaged while

in transit on their railway from Ramsgate to London. The first defence of the railway company is that the

case was carried at owners' risk upon a special contract made in pursuance of s. 7 of the Railway and

Canal Traffic Act, 1854. That contract was contained in a consignment note which purported to be signed


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by the plaintiff. His signature however was in fact affixed by a vanman named Perry in the employment

of the defendants, and the question is whether he had the authority of the plaintiff to sign on his behalf.

That depends upon the proper conclusion to be drawn from the facts. [His Lordship stated the facts as

above set out.] The plaintiff was unable to determine how or on what terms the goods should be carried;

he knew there might be some objection to their being carried at all, or certainly to their being carried at

the company's risk, and he left it to Perry to do the best he could for him. It seems to me plain that the

authority he gave to Perry was expressed in such ambiguous terms that Perry might reasonably suppose

he had authority to sign a consignment note on the terms of owners' risk, and under those circumstances

the plaintiff could not be heard to say that he had not given Perry the authority which Perry thought he

had. If there is any necessity for an authority for that proposition I may refer to Ireland v. Livingston .

[FN10]It seems to me that the only way in which Perry could do his best for the plaintiff to get the goods

conveyed at all was to consign them on an owners' risk note. The idea that a railway company would

carry imperfectly packed goods at company's risk is inconceivable, and I am compelled to the conclusion

that Perry had in fact the plaintiff's authority to procure the goods to be carried at owners' risk.

FN10 (1871) L. R. 5 H. L. 395.

That is sufficient to dispose of the case. But let us assume that I am wrong in holding that Perry hadauthority to make the special contract on the plaintiff's behalf. There remains for consideration the other

point which was discussed before us - namely, whether the defendants, assuming that they carried the

showcase on the terms of the liability of common carriers, are precluded from setting up as a defence that

the damage was due to improper packing because they carried it with full knowledge of its condition. The

county court judge held that as the carriers were aware of the condition of the packing at the time they

received the article they could not disclaim their liability as insurers. That raises an important and

interesting question of law. Now the rule as to the obligation of a common carrier is thus stated in Story

on Bailments, 492 a:

"Although the rule is thus laid down in general terms at the common law, that the carrier is responsible

for all losses not occasioned by the Act of God, or of the King's enemies, yet it is to be understood in all

cases that the rule does not cover any losses, not within the exception, which arise from the ordinary wear

and tear and chafing of the goods in the course of their transportation, or from their ordinary loss,deterioration in quantity or quality in the course of the voyage, or from their inherent natural infirmity and

tendency to damage, or which arise from the personal neglect, or wrong, or misconduct of the owner or

shipper thereof. Thus, for example, the carrier is not liable for any loss or damage from the ordinary

decay or deterioration of oranges or other fruits in the course of the voyage, from their inherent infirmity

or nature, or from the ordinary diminution or evaporation of liquids, or the ordinary leakage from the

casks in which the liquors are put, in the course of the voyage, or from the spontaneous combustion of

goods, or from their tendency to effervescence or acidity, or from their not being properly put up and

packed by the owner or shipper; for the carriers' implied obligations do not extend to such cases."

That passage is cited by Willes J. in Blower v. Great Western Ry. Co. [FN11]as an accurate statement of

the law, and, being so approved, is a sufficient authority for me to act upon without more. Now does it

make any difference that the faulty packing which caused the damage was manifest to the carrier at the

time that the goods were delivered to him to be carried? By analogy to the exception of inherent vice itwould seem that it does not. The inherent vice or natural tendency of certain kinds of goods to depreciate

or become damaged may be perfectly apparent to the carrier, and in most cases would be quite apparent

when he received the goods, nevertheless he is not responsible for the damage resulting from such cause,

and it appears to me that there is no reason for treating the exception of damage caused by defective

packing in any different way. But the case is not without authority, because in Barbour v. South Eastern

Ry. Co. [FN12] a similar question arose. There the plaintiff wanted to send furniture by the defendants'

railway. He made inquiries of the defendants for rates, and the defendants when quoting their rates

informed the plaintiff that one of the conditions of the carriage was that they were not to be responsible

for damage if the goods were not properly packed. The goods, which had been lying at a depository, were

eventually carried by the defendant's railway, and owing to insufficient packing they were damaged. The

facts are thus stated in the judgment of Cleasby B.:

FN11 (1872) L. R. 7 C. P. 655.


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FN12 34 L. T. 67, 68.

"At the depository where this furniture was there were hay bands and matting at hand which might have

been used for the purpose of protecting it, but the plaintiff deliberately chose not to make it safe. The

carman could not use the hay bands, because had he done so he would have been acting in violation of the

company's regulations. The plaintiff therefore, voluntarily left them in the condition they were in, and by

doing so took upon himself the risk of anything happening to them. The real question is, whose duty was

it to pack? No doubt it was the plaintiff's duty to pack. What caused the damage? Why, it was occasioned

by the furniture not being properly packed. No person is entitled to claim compensation from others for

damage occasioned by his neglect to do something which it was his duty to do."

Further on he says: "But here the goods were delivered in a manifestly unsafe condition, and, as I have

said before, the plaintiff chose to have them go in the condition they were in, and the damage was the

consequence. I think therefore he is not entitled, under the circumstances, to recover." And Field J. says

the same thing: "I also think the county court judge was quite right in the conclusion he arrived at in this

case. I base my judgment entirely on the finding in the case, that the damage complained of was caused

by improper packing." Now there is a case where goods were handed to common carriers, they were

manifestly in an unsafe condition, the damage arose from their being in that condition, and it was held

that the plaintiff could not recover. The facts in the present case are precisely the same, and the sameresult must follow. The only doubt that has been thrown upon this proposition arises from a case of Stuart

v. Crawley. [FN13] There the plaintiff's servant took a valuable greyhound with a string round his neck to

the warehouse of the defendant, a carrier, to be carried from London to Harefield Lock. The defendant's

bookkeeper to whom the dog was delivered gave a receipt for it. The dog was tied by the string in a watch

box, but shortly after slipped from the noose and was not afterwards heard of. Lord Ellenborough held

that the defendant was responsible. He said:

FN13 2 Stark. 323, 324.

"The case was not like that of a delivery of goods imperfectly packed, since there the defect was not

visible, but in this case the defendant had the means of seeing that the dog was insufficiently secured. ...

After a complete delivery to the defendant, he became responsible for the security of the dog, the propertythen remained at the risk of the defendant, and he was bound to lock him up, or to take other proper

means to secure him. The owner had nothing more to do than to see that he was properly delivered, and it

was then incumbent on the defendant to provide for its security."

It appears to me that that case is sufficiently supported by the consideration that even if goods are

delivered to a carrier imperfectly packed the carrier is nevertheless under an obligation to take reasonable

care of them in that state, and the judge there was of opinion that the defendant in only availing himself of

the meagre means of confining the dog provided by the plaintiff was not discharging his duty of taking

proper care of it, and was therefore liable. That case is I think no authority for the proposition that where

goods are handed to a common carrier imperfectly packed he accepts full responsibility if he knows that

that is the case. If it is an authority for that it seems to me inconsistent with Barbour v. South Eastern Ry.

Co. , [FN14] and I doubt much whether Lord Ellenborough meant to lay down any such proposition of

law. In my opinion the defendants' knowledge of the improper packing in the present case did notmake them responsible, and the plaintiff, even if he is right in his first contention, still cannot

recover. The appeal must be allowed and judgment entered for the defendants.

FN14 34 L. T. 67.

YOUNGER L.J.

I am of the same opinion on both points. When one considers the conversation that took place between

the plaintiff and Perry with reference to the absence of a consignment note it seems abundantly clear that

the plaintiff authorized Perry to make out a proper consignment note on his behalf with respect to these

goods, and further I think the inference is irresistible that the consignment note so authorized was, as

Perry himself inferred, to be a note at owners' risk. I should myself have thought so even if the goods had

been consigned to some person other than the plaintiff. But here they were consigned to the plaintiff

himself carriage forward; they were received by him, and he paid for them without objection at owners'


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risk rate. It seems to me that the plaintiff both authorized Perry at the beginning of the transaction to

consign the goods for him at owners' risk, and at the end of the transaction he ratified Perry's action by

accepting the terms on which they had in fact been carried.

With regard to the second point, while accepting with deference what my Lord has said on the question of

law arising on this branch of the case, I will pass it by for the moment to point out that the plaintiff's

contention is not supported by the facts. I will assume that Mr. Bickmore's contention is right that a

railway company are not absolved from responsibility for the safe carriage of goods imperfectly packed if

at the time they received the goods the fact of the improper packing was brought to their notice by the

consignor. But that contention is entirely displaced by what took place between Perry and the plaintiff.

When the goods were tendered to Perry it was not the plaintiff who pointed out to Perry that they

were improperly packed, but Perry who pointed out that fact to the plaintiff; the proper inference

from which is that the plaintiff in substance said to Perry: "Whether they are well packed or badly

packed, take them as they are." And if that is the effect of what took place between them the

railway company are to my mind in exactly the same position as if they had had no notice of the

improper packing. I agree that the appeal must be allowed.

Representation

Solicitor for the railway company: Herbert H. Groves.

Solicitors for the plaintiff: Edgar & Co.

Appeal allowed. (J. F. C. )

(c) Incorporated Council of Law Reporting For England & Wales

[1920] 2 K.B. 186

END OF DOCUMENT

Copr. (c) West 2001 No Claim to Orig. Govt. Works

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