THE LIABILITY OF CARRIERS.
THE two decisions on the liability of Carriers which were given last week, the one by the House of Lords, the other by the Court of Exchequer, have been spoken of as if they were in some way inconsistent with one another; but the truth is, that the one case merely destroyed a false impression, which had been produced by a careless or carelessly-reported observation made by Lord O'Hagan in the other. In the earlier case, the House of Lords decided that a Steamship Company is liable for the loss, by negligence, of a passenger's luggage, notwithstanding that the passage-ticket bears on the back of it a condition exempting the Company from such liability, when the condition has not been brought to the passenger's notice, and there is no evidence that he has even tacitly assented to it. Neglect, that is, to put on the front of the ticket a reference to the condition on the back of it, or otherwise to call a passenger's attention to that condition, leaves a Company liable for negligence in carrying on its business, when the passenger has been so careless as not to notice or so wary as not to look at the con- dition, or cannot be shown to have done so. This, we dare say, is common-sense, as Lord Cairns says it is,— it certainly is not very hard upon Steamship Companies ; but, at any rate, it is a small matter, too small to call for any strong expressions. On the question of real importance raised in the discussion of the case—whether a passenger who has had notice of a condition exempting the Company which is to carry him from liability for negligence can recover from the Com- pany for a loss caused by its negligence—Lord Cairns pointedly declined to give an opinion ; the decision in no degree turned upon it; nor was anything clear or definite said about it by any of the Law Lords. On a subsidiary question Lord Hather- ley is reported to have given an opinion which seems rather strong, and which has been taken as made in favour of the public, but it may be doubted whether his view, if it prevailed, would be more inconvenient to the public or to shipowners. He is stated to have declared that a ticket is a mere receipt for passage-money, and that, therefore, no condition printed upon it can bind a passenger,—which must mean that a special con- tract, signed by the passenger, is necessary to protect a carrier against excessive liability. There is one case in which it may justly be said that a ticket is a mere receipt for passage- money, by means of which it should not be possible to impose conditions, and it is a very common case. Where tickets are issued, as is not unusual in coasting steamers, when the voyage is half through, they clearly are mere receipts for passage- money ; and it is, or should be, too late for the shipowner to make conditions with the passenger of which previous notice has not been given. But where tickets are issued in advance,
to print the conditions on them, so that a passenger cannot fail to see them, seems a convenient, simple means of making known to a passenger the terms on which the shipowner will carry him which he has no interest in objecting to. Nothing but trouble to him could be the result of making him sign a special contract printed on the ticket, for in general he has no choice but to accept the carrier's terms ; and for the carrier there would be much trouble also; although there would be the additional security obtained by the definite exclusion of all question about notice. In the case decided by the Court of Exchequer, however, neither this question nor the point on which the decision in the House of Lords was given, arose; there was a special contract with a Steamship Company, printed on a passage ticket, and signed by the passenger before the commence- ment of the voyage, and the question for the Court was whether the passenger was absolutely bound by the terms of the contract which he had subscribed. The Court, in holding him bound, merely decided, according to a precedent which bound it, the question which the House of Lords had carefully avoided deciding. The passenger's case was, it must be ad- mitted, a hard one,—a mixture of bad fortune and bad usage such as is said to make bad law, but which sometimes strongly shows the badness of the law. He had agreed to a condition holding the Steamship Company under all circumstances free from liability for loss incurred by him on the voyage, and also to a condition entitling the Company to put him ashore if he should be taken with any infectious disease. He took typhoid fever, and was put ashore insensible at Kingston, in Jamaica ; his luggage was put ashore also, but while it may be presumed that some care was taken of himself, no care was taken of his luggage ; it was merely landed on the wharf, and when he got well, he found it was gone. He brought his action to recover the value of his luggage, and the Court held that he had di- vested himself of the right to do so. No matter how gross the negligence of the carrier, the passenger had contracted that he was to have no claim for loss from whatever cause, and the Court held him bound by his contract. If he appeal, and his -ease reach the House of Lords, that august tribunal will find itself compelled to face the question which it shirked on Tuesday week, and definitively to decide it. In the meanwhile, we are free to consider what the law applicable to such cases ought to be.
To Mr. Baron Bramwell this appears a very plain and easy matter. He disposes of it at once by the simple maxim that a bargain's a bargain, be it what it may. As people make their beds, so they must lie on them. There may be, the learned Baron allowed, poor creatures, like miners, who are not really free agents, being too ignorant and too dependent to take care of themselves, and it may be right that the law should make provision for their protection. But people in general, and especially the sort of people who make voyages to the West Indies, are rational beings, and should be left to make for themselves such contracts as they choose or as they can. If they don't take good care of themselves, let them take the conse- quences. If circumstances are against them, and force them into unfavourable contracts, let them either take their bad luck quietly, or change the circumstances, if they can ; and as for the public, it may wait in faith that if the circumstances are really unfair to the public, competition will change them in time. At any rate, it is not the business of Courts of Law to make people's contracts for them,—to deprive one set of rational beings of any advantage which circumstances may have given them over the other rational beings with whom they deal, or to say whether this advantagehas been fairly or unfairly used. Of course this sort of reasoning condemns the policy of our law at many points, and no doubt the learned Judge would say that in such cases the law is wrong, the result -of false views formed in days of darkness, and should be amended as speedily as possible. The weakness of such reasoning is that it shows too grand a disdain for facts. It is thoroughly doctrinaire, and if thoroughly adopted, it would in practice be constantly leading to intolerable results. In theory, no doubt, where competition is not precluded, the conditions which arise with perfect freedom of contract are those which are fair both to the public and those who serve it; the latter getting no more than a fair profit, -and the public getting good service upon reasonable terms. But in practice, there are many cases in which, with com- petition possible—that is, permitted—the public are as much at the mercy of those who serve it as if competition were excluded ; and a much greater number of cases in which those who compete against each other in serving the public are pretty sure in certain matters to combine to impose terms upon the public, and pretty sure, also, to succeed in doing se. Is the public, then, out of deference to the
theory, to disregard the practice ? Is it not the business of Legislatures and Courts of law to deal with things, not as they might be, but as they are ? And is not the community within its right when, where individuals are helpless against bad treatment, it does for them what each would do for himself if he could,—in meeting combination by public action,—in pre- scribing, at any rate, some limits to the use that may be made against the public of combination or an exceptional position ? We have a great respect for Baron Bramwell, but it does not seem very sensible to doubt or deny this. Of course, the interference of the State in such matters should be as slight in amount as possible, and in the case of carriers to hold them liable whatever their contract, for gross negligence might be enough. We do not see how any one can complain of being held liable for the consequences of gross negligence or misfeasance in doing anything he has contracted to do, or of being precluded from contracting himself out. of his liability; and if the House of Lords does not by-and-by hold the public protected against carriers, at any rate to the extent involved in this, we think a case for legislation will have arisen. Happily our greatest carriers' the Railways, being monopolies, and the creatures of law, are already subject to restriction, and are, now that they are under the jurisdiction of the Railway Commis- sioners, being compelled to abstain from abuse of their power. They are answerable for the negligence and the default of their servants. They are required to serve the public upon what the Commissioners decide to be just and reasonable terms, and the Commissioners are not likely to hold all terms just and reasonable which they may have chosen to impose, and which the public may have submitted to.
As has already been said, the policy of our law has, in a great variety of matters, always been hostile to the simple theory enunciated by Mr. Baron Bramwell. Neither the Courts of law nor the Legislature has ever made a fetish of freedom of contract. Parliament has constantly interfered with it, and usually without giving it a thought, merely noticing that some interference was needed in the interest of the public. The sanctity of freedom of contract, indeed, has scarcely ever been alleged as a reason for rejecting a legisla- tive proposal, except when upon other grounds, Parliament has been extremely unwilling to agree to it. A great deal is heard of it in connection with agricultural tenancies, but we should doubt if it was much considered in connection with the Bank Acts, or if it would be considered for a moment, were it used as an argument for repeal in the case of the greater number of the statutes by which, upon grounds of public utility, it has been invaded. That interference with freedom of contract has been carried too far, both by Parlia- ment and by the Law Courts, we do not doubt, and there should be extreme care taken in interfering with it anew ; but that there are many cases in which such interference is neces- sary we hold to be beyond question, and the liability of carriers seems to present one of those cases. And the carrier's trade has been so much regulated by the law already that it would. be pedantry, in deference to any theory, to hesitate where it seems necessary to interfere with it once more.
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