The general principles of contract law apply to incorporation of terms limiting liability. They must be incorporated in the written contract, implied or notified in advance. The terms of contract may be comprised in a ticket to which the passenger or other relevant party has assented. They must be brought to the attention of that party.
If the party signs a document containing its conditions, even though he does not read them, he is usually bound by their terms. If the carrier is aware that he has not read them and is not aware of its effects, he may not be bound.
Where directions are given in relation to the particulars of dealing with the goods, the carrier is bound by them if he agrees. Consequentially he is liable for loss if there is a failure to comply.
In accordance with o general contract principles a fundamental breach of contract may not be excused by a clause limiting liability if what is given, is wholly inconsistent with the contract. It would be regardless of fundamental breach of the obligation, given the party who has been wronged, the right to treat the contract as terminated so that the limitations of liabilities will not be operative.
An exemption clause is not to be interpreted as exempting negligence unless it contains words which expressly or necessarily confer such limitation and exemption. Very clear language would be necessary to exclude the liability of the common carrier.
In the case of a private carrier, his liability is only for negligence and clear exclusions suffice which are referable to negligence. In contrast, an exclusion of liability for negligence may not be sufficient to exclude the common carrier’s stricter obligations.
The courts do not favour exemption and limitation clauses being invoked where the carrier or his employees have been guilty of misconduct. An exemption in respect of default or negligence may not be sufficient to accept misconduct going significantly beyond negligence. In this context, misconduct is likely to refer to reckless or deliberate action.
Misconduct must be proved and will not necessarily be inferred from failures to perform if goods are simply not delivered and cannot be accounted for. It may be sufficient in some circumstances to lead to a presumption of misconduct, the onus then being on the carrier to prove otherwise or that the misconduct was irrelevant and did not cause the loss.
The Carriers Act 1830 sought to protect common carriers carrying parcels with articles of significant value. The Act provides that no common carrier by land is to be responsible for damage to articles of the property of certain descriptions contained in a parcel or package delivered to the carrier to be carried for hire or a person who is a passenger in a vehicle where the value exceeds a specified (a relatively low) amount, unless at that time of delivery to the carrier’s office or receiving office, the value and nature of the articles have been declared and any increased charges applicable have been paid.
The declaration need not be in a special form. It may be verbal. There must be an intention to make a declaration. If the declaration is not made the carrier is entitled to the protection of the limitation in the Act. Where the declaration is made, the carrier is entitled to demand increased charges provided he gives conspicuous notice in its office, warehouse or receiving house stating the increased rate of charge above the ordinary rates. Where the declaration is made, the carrier takes the goods with his full common law liability. This is irrespective of whether he makes the additional charge or not.
The protection of the Carriers Act applies even if loss is caused by negligence. However, a deliberate act inconsistent with the contract is not entitled to protection. No protection is given for loss arising from delay unless the delay is caused by the loss. It will not be liable if the goods are temporarily lost and recovered and delivered within a reasonable time.
The Act applies to gold, silver, coins, precious metal, stones, jewellery, watches, clocks, trinkets and banknotes, deeds, stamps, paintings, engravings and pictures, China silks and similar small valuable items as set out as well as things which are ancillary to the goods listed in the act. If a package contains items not within the Act and those which are in the Act the carrier is liable in respect of items not within the Act.
Where the consignor has made the requisite declaration and paid the increased charge that is applicable, the carrier must give a receipt for the package. Unless so given, the carrier loses protection of the Act and the increased charges are recoverable by the consignor.
Where the value and contents have been duly declared and where applicable to the increased charge paid, the owner may recover for damages up to the declared amount together with the increased charges themselves.
The carrier may require the owner to prove the value of the items. The declaration is not binding on the carrier. However, it does represent a cap on the carrier’s liability.
The Act does not apply to a serious offence committed by the carrier or his employees. Under the legislation a felony is required, which now refers to an offence, which is subject to imprisonment for a period of five years or upwards. This may arise where the goods have been stolen by the employee.
Railway authorities may enjoy the provisions of Common Carriers Act or other legislations limiting their liability. The Railway Acts and Transport Acts provide for limitations of liability equivalent for those for common carriers.
Where animals are carried suitable vehicles must be provided. Fit and proper places of loading and unloading must be used. Animals must be fed and cared for in the course of transit. If the consignee does not accept the animal at the end of the carriage, the expenses of caring for the animal may be recovered from the owner. If the animals are accepted but are not physically removed from the carrier’s premises ,his liability as carrier ceases.
Railway and canal proprietors were bound to provide reasonable facilities for receiving and delivering animals. Now, they carry them under their own standard conditions. There are detailed conditions on the standards of welfare for animals in transit. Extensive harmonised EU laws now apply.
It is practice and custom for carriers of passengers to carry a reasonable amount of luggage for their accommodation and that the cost of such carriage is included in the fare for the passenger. A reasonable amount of luggage may be carried free of charge.
The common carriers are carriers of goods in respect of carriage of passenger’s luggage unless the passenger carries the luggage himself in his sole charge.
Whether or not the carrier is a common carrier in the circumstances depends on whether he or it holds himself out as a common carrier of such articles. Where he is a private carrier, he must take reasonable care of the goods. Where he is a common carrier, he must provide reasonable facilities and becomes liable for safe custody of luggage until it is delivered to the passenger or taken by him.
Goods coming within the ordinary description of personal luggage are covered. Where they are outside such descriptions the contract of carriage may be inapplicable and the carrier may not be liable unless, aware of it, he accepts it for its carriage. What is ordinary personal luggage in the circumstances depends on the circumstances of the passenger.
Railway companies publish standard terms and conditions of the carriage of passengers luggage. The passenger’s luggage is carried under those terms and conditions. A certain quantity or a reasonable amount of luggage is usually be charged at the standard fare.
A common carrier is not bound to carry goods which are outside of those which he ordinarily carries. He is not bound to carry dangerous goods. A consignor warrants by implication that the goods may be carried in the ordinary way and are not dangerous unless this is specifically disclosed and accepted by the carrier.
The consignor is liable for damage resulting from breach of the warranty, even if he is not aware that the goods were dangerous. In this context, danger may refer to danger to life, bodily injury or damage to vehicles or other goods being carried.
Railway companies have powers to refuse to carry dangerous goods. The carriage of dangerous goods is subject to extensive modern regulations. See the separate sections on carriage of dangerous goods which are regulated by detailed EU requirements and Conventions (ADR) which supervene older domestic requirements.
Certain classes of dangerous goods are subjected to special requirements. They must be marked, labelled and carried in a particular way. A consignment notice and many safety measures are required in the case of a wide range of dangerous substances. Various harmonised labelling obligations apply.
A common carrier passengers is obliged to carry passengers who offer to pay the standard fair and are in a fit state to travel, provided that there is sufficient accommodation for them. A common carrier of passengers is bound to exercise due care in their carriage. The same level of obligation as quasi insurer that applies to goods, does not apply to passengers.
The carriers must take due care for the safety and comfort of passenger. They are liable for the actions of their employees in the course of their employment. If there are any sources of danger, internal or external, which might be apprehended, reasonable care must be taken to ensure that passengers do not suffer loss or damage.
The carriers are responsible for the sufficiency of their vehicles. They must comply with the requisite standards. Common law obligations require that they be tested to ensure there are no defects which reasonable and careful examination would disclose. More detailed specific statutory rules apply. Periodic testing obligations apply and must be complied with. Vehicles are subject to detailed rules on construction.
A carrier may be liable in respect of foreseeable risks from a vehicle notwithstanding that it is not customary to examine or inspect for them. If there is a latent defect in the vehicle which is not discoverable from taking proper due care and skill, the carrier may not be liable for damage thereby caused.
The care which the carrier must take depends on circumstances. The same broad duties owed by a driver of vehicles to third parties, are owed to passengers. Similar principles apply in respect of liability to third parties outside the vehicle as apply in respect of those within the vehicle.
The high degree of care owed to by a carrier to passengers is not dependent on contract. It exists as an obligation under the law of tort. It does not matter whether or not there is a contract.
A carrier must ensure that his premises are reasonably safe for its intended use. The general principles of occupier’s liability apply.
The terms of the contract between the passenger and carrier are generally referred to in the ticket. The terms and conditions may be expressed in the ticket or incorporated by reference contained in it. Reference in a ticket to the terms and conditions of the carrier are generally sufficient to incorporate them into the contract of carriage.
The passenger must impliedly or expressly agree to the terms and conditions. Generally buying and accepting a ticket is sufficient. He must be shown to be aware that there is writing on the ticket and that it refers to the terms and conditions such that is reasonably sufficient to give notice. It is question of fact in the circumstances as to whether reasonable steps have been taken to give notice of the terms and conditions to the passenger.
A contract which removes the carrier’s duties of care is permissible at common law. However, the courts will hold that reasonable steps must be taken to bring them to the attention of the passenger. Steps which might be reasonable to bring other terms and condition, might not be regarded as reasonable and sufficient, where a clause which is unreasonable or extraordinary is sought to be incorporated. The carrier cannot assert a contractual condition against a minor at common law.
Various legislation regulate exemption clauses for passengers and cargo. In the context of air travel and sea travel, international Conventions provide for permissible limitations of liabilities.
A carrier is generally not liable for failures in his timetable even if the ticket incorporates the timetable. It will usually exclude or by implication exclude any liability for variance from it. There is no warranty that the transport will start in time in general. However, if the service is not provided there may be liability under certain terms under the contract.
The issuing of a ticket may be evidence of a contract to carry a passenger to an agreed destination in a reasonable time. Subject to terms and conditions there may be liability for breach, in some cases. The issue of a ticket with a time might be contrasted with the circumstances of a timetable which is referred to above.
The generally presumption is that the passenger is entitled to travel the agreed journey only. If he uses the ticket for other stations or other trains, it is void and the standard fare is presumptively payable. If it is used for a place with a lower fare, then presumptively it is not voided.
The general principles for civil liability for contract or tort apply to damages arising from breaches of the contract of carriage or negligence as the case may be. Damages for personal injury will generally be measured by reference to tort standards of reasonable care and tort law principles of remoteness.
Where there has been delay in the delivery of goods, the carrier may be liable for loss incurred under general principles of contract laws. Damages are not available for vexation and disappointment caused by delay. If there is real inconvenience which is appreciable and capable have been specific stated, damages may be granted. General principles of remoteness under contract law apply.
The carrier is entitled to freight or equivalent payment for the provision of the carriage. Railway charges are fixed from time to time for passengers and cargo. The carrier has a lien on goods carried for the cost of freight payable. This may be exercised against the owner of the goods.
A private carrier has no lien at common law in relation to goods carried. A common carrier has no lien for a general balance, unless so specified by contract. Particular liens for a general account may arise by custom or usage.
There is no lien where credit is just given for the carriage. An agreement does not necessarily displace the lien. The lien whatever its nature is exercisable when carriage is complete. When the lien is exercised, the carrier must keep the goods safely for a reasonable time. They must be available on tender or payment. He has no right to charge for warehousing in the absence for contract to the contrary.
When goods have been delivered to a common carrier and they’re damaged, the owner is the primary person with a right to sue. Where the consignor remains owner, he retains the right to take action. The principle that the owner is the proper party to sue may be varied by the terms of a contract between the consignor and consignee.
A carrier is obliged to obey notices stopping goods in transit by the seller who is unpaid, exercising the statutory right under the Sale of Goods Act. The seller may elect to resume possession of the goods. The notice need not be given in any particular form. The carrier is obliged to redeliver the goods of the seller. The cost must be borne by the seller. If he fails to do so he may be liable for having converted the goods.