Early Regulation
Context
The first railways in Ireland and Britain were constructed in the 1830s. The middle of the 19th century saw an enormous expansion in the construction of railways. The size of the rail network peaked in the first two decades of the 20th century. After the First World War, the railways declined due to the increasing competition from road, transport, both passenger and freight, bus and car. The private railways were nationalised to ensure their survival.
Over two-thirds of railway lines were closed down and abandoned. In the 1970s, the entire network came close to closure. Since 1980s railways have enjoyed a revival due to considerations of energy, cost, growing urbanisation and pollution issues.
Railways are loss-making throughout most of Europe. The terms on which the State may subsidise railway companies are prescribed by European Union law. A number of light railways / trams have been constructed following the success of the DART in Dublin. Modern railway regulation legislation has been enacted to reflect the European Union requirements and modern circumstances within the last 20 years.
19th century legislation
A good deal of 19th century railway legislation remains on the statute books. The earliest legislation facilitated the construction of railways by private companies. No statutory authority was required for construction of railway on private lands. However, most railways required the compulsory acquisition of land and interfered with the rights of adjoining owners either in construction and operation and thereby needed a basis in legislation to mandate the interference.
Much of the early legislation was by way of private Acts of parliament which was sponsored on behalf of the relevant businesses or undertakers. In the mid-19th century a number of pieces of omnibus public works facilitation legislation in the form of “Clause Acts” were passed to facilitate public works in a range of areas including railway construction. Private Acts incorporated the provisions of the general omnibus legislation.
In the context of railways, a private Act would incorporate the terms of the Railway Clauses Act and the land clauses act; the latter in relation to compulsory acquisition. Prior to general companies legislation special legislation was also required to establish companies. The special act may, for this reason, the special private act may also Companies Clauses Act.
Regulation of Companies
The 19th-century legislation deals with the regulation of private railway companies. In broad terms, the legislation dealt with the following,
- authorisation,
- construction, disposal and abandonment of railways
- finance accounts and returns of railway companies, including arrangements with creditors
- regulation and working of railways
- regulation of railway charges and traffic conditions
- organisation of the railway system
Construction
The Railway Clauses Act in relation to construction and abandonment made a provision relating to acquisition of lands, accommodation works, interference with existing roads, bridges and mines. Once mandated by legislation, the things and works provided for were effectively immunised and legalised.
Private acts were passed incorporating the terms of the clauses act for authorising construction of particular railways. A key aspect of legislation related to the compulsory acquisition of land and rights and procedures or completion of the same. Compensation was paid for acquisition and for certain severe impositions on property rights.
A statutory permission was required to abandon the railway. An act of parliament was not necessarily required. The consent could be given by the railway authority. The terms of the consent and abandonment would require decommissioning of the railway infrastructure.
Authorising Construction
Plans and particulars were incorporated in the original special act specifying what the undertakers or railway business had power to do. Typically, provision was made for parties to inspect the plans and make observations. Provisions dealt with authorisation of deviations from the deposited plan. The plans would specify the precise location of railways, details of gradients, curves, tunnels, arches et cetera.
The legislation authorised such works as were reasonably necessary to complete the railway. Provision was made for the temporary use of adjoining land. Compensation was available for temporary use. Where the railway works interfered with water, gas and electricity, there were provisions in relation to the temporary interference and long-term relocation, et cetera. Procedures existed for authorisation of deviations.
Particular provisions applied to particular types of works. Special provisions existed in relation to works close to sea, interference with existing roads and their restoration, bridges and maintenance of bridges and level crossings.
Accommodation works might be required for the benefit of the owners and occupiers of adjoining land. The works might include communication and connection of land severed by the railway line. Lands could be acquired for the purpose of accommodation works. Communication might be through gates. There were obligations to fence railways from adjoining land.
Special provisions related to the construction of stations and ancillary facilities, junctions and other work. Rights were given to adjoining owners and occupiers to construct such as businesses, to construct sidings and even entire branch railway lines.
Provisions applied to the construction of railway locomotives and carriages. They had to comply with approved standards. Rules also applied to the ongoing equipment and working of railways including communications and signalling.
Operation
Byelaws could be made in relation to the use of the railway. A railway company have power to make regulations in relation to the use of the railway, both for passenger and freight purposes.
For example, the railway company could publish terms and conditions for carriage of particular types of goods. Provided they complied with conditions in the legislation, the byelaws created penalties, for example in relation to good order on trains. Provisions were made for penalties.
Although those matters involving the normal operation of railways were exempted from civil liability, special provision is made in relation to railway fires caused by sparks from railway engines. Provision was made for claims of damage subject to a statutory maximum.
Regulation of Companies
Much of the early legislation was the equivalent of companies legislation in the context of railway companies or undertakers. Provisions were made for such matters as accounts, borrowing and filing of return. There was legislation for the amalgamation and reconstruction of railway company.
Because of the public interest aspects, special rules existed in relation to the appointment of receivers over railway company’s assets. The railway infrastructure itself was protected against execution and distress against the railway company.
The Railways and Canal Commission became the principal regulator.
Liability
There was no action for civil wrong for interference for something that is mandated by statute. Therefore, an owner could not claim that the mere operation of a railway in its normal manner constituted a civil wrong of nuisance.
The common law liabilities of employers apply to railways. A great deal of the early litigation arising from workplace and personal injury claims by members of the public arose out of the operation of railways.
Railway businesses could restrict and exclude liability to passengers and customers by an application by the railway undertaker. The determination of certain personal injury matters could be referred to arbitration.
Accidents
Detailed rules existed which were designed to prevent railway accidents. Under these rules detailed operational provisions apply to the working of the railway.
There was a statutory obligation to give notice of accidents to the railway authority (Commissioners). This covered accidents with loss of life or personal injury, collisions of trains, derailment, and other actions likely to cause loss of life and personal injuries.
The commissioners could investigate accidents. A formal investigation of the cause and circumstances could be ordered. This could be ordered in a court proceeding. The court could order that the costs be paid by any person whose fault or negligence caused the accident.
Bye-Laws
A range of penalties applied in relation to the use of a railway or one above those which may be made by the railway companies under its byelaws. Offences were prescribed together with penalties for a range of matters. Railway police have powers of arrest and provisions were in relation to prosecution of offences.
A range of misuse of the railway, obstruction, trespass, et cetera were (and many remain) offences under the legislation. Railway police could arrest without warrant. It was an offence to interfere with officers of the railway company in the course of the business.
A range of offences apply to ticket, failure to have tickets or adequate tickets. There was a provision for summary recovery of penalties under the legislation. Special increased penalties apply to unlawful interference with the railways and railway signalling which are deemed felonies.
Charges and Terms
Railways could choose whether or not to be common carriers with an obligation to carry all comers. Because of the quasi-monopolistic nature, there were provisions obliging railways to accept passengers and freight. Special provisions applied in relation to carriage of post, armed forces and police.
Independent railways were bound to afford reasonable facilities for receiving, forwarding and delivering passengers and freight. Provisions existed for dealing with complaints where railway companies refused to provide reasonable facilities or there was a disagreement in relation to the terms of the same. Certain disputes under the Railways legislation were subject to statutory arbitration.
Maximum charges were originally fixed in the initial legislation establishing the companies. The provision was given to make charge within certain amounts. Later the Railway Commissioners and other authorities made classified maximum charges by reference to particular types of traffic and freight. In 1888 the Board of Trade provided a general railway classification applicable to all kinds of freight business. There were seven classification of goods that were not bulk traffic.
Early legislations prohibited favourable or discriminatory terms, although these were later modified. Provision was made for the publication of freight rates. Railway companies had to submit their charging schemes for approval. Standard terms and conditions are subject to approval.
Carriage of Freight
There were provisions in relation to the terms and conditions of which freight might be dispatched. A consignment note with certain content was required. The railway undertaking gave a receipt. There were provisions in relation to addressing and labelling and through booking to a further carrier.
A warranty was given by persons delivering freight for dispatch that the freight was fit, could be safely handled and did not include dangerous goods unless declared. Standard conditions give rights to railways in relation to carriage of goods. A lien was applied for moneys due for carriage and other proper charges. A statutory right of detention and sale was given. A common law right might be exercised under the terms of the contract of carriage. Provision are made in relation to the lost luggage, complaints in relation to consignments, mis delivery et cetera.
A limit of of liability for loss of and damage to freight was provided for. The extent to which liability might be limited was restricted.
Provisions existed for contracts between railway companies and business forwarding freight. The term of special contracts required to be signed. Standard terms and conditions were deemed just reasonable. Differing terms could be agreed but subject to an obligation that they must be just and reasonable.
Railway undertakers were excused from loss due to act of god, act of war, act of default or the trader or his employees, orders of government departments, and in relation to certain risks including fire and explosion. There was no liability where goods weren’t properly packed, not labelled, declared et cetera. In the case of certain losses, there was an exemption or limitation of liability unless the particular value was declared in advanced and the increased charge applicable is paid.
Passenger Terms & Conditions
Railway companies could impose terms and conditions on terms of carriage. The ticket must however bear certain details on its face. General terms and conditions could be incorporated by reference. The liability at common law to passengers could be superseded, enlarged or diminished, but the limitation had to be in clear and unambiguous language.
Railway regulator had authority to prescribe terms and conditions
Similar provision applied in respect of the carriage of passenger’s luggage. Railway undertakers were bound to afford reasonable facilities for receiving, forwarding and delivering passenger luggage