Scottish Court of Session Decisions

By contract dated 16th February 1893 between Muirhead's Trawlers, Limited, fish

Page: 419↓

salesmen, and the Caledonian Railway Company, arrangements were made for the carriage of fish from Granton to Glasgow by passenger train at certain reduced rates and at owner's risk. The terms of the contract, which were embodied in a printed form supplied by the Railway Company, sufficiently appear from the following extract from the form of the consignment-note which was in use Consignment—Note for Merchandise to be carried by Passenger Train at Owner's Risk.” “To the Caledonian Railway Company, Granton Station.—17th Sept. 1901—Receive and forward the under-mentioned merchandise, to be carried at the special or reduced rate below the company's ordinary rate, in consideration whereof I agree to relieve the Caledonian Railway Company, and all other companies or persons over whose lines the merchandise may pass, or in whose possession the same may be, from all liability for loss, damage, mis-delivery, delay, or detention, except upon proof that such loss, damage, misdelivery, delay, or detention arose from wilful misconduct on the part of the company's servants. And I also agree to the conditions on the back of this note. This agreement shall be deemed to be separately made with all companies or persons parties to any through rate under which the merchandise is carried. Signature of Sender or his Representative, Pro Muirhead, P. Thomson.”

In the present action the Caledonian Railway Company sued Muirhead's Trawlers, Limited, for £61, 4s., being the balance of their account for the carriage of fish. The defenders did not dispute the account, but averred in defence a counterclaim for loss incurred by the failure of the pursuers to carry their fish in time for market. Besides averments as to fault on the part of the Railway Company on certain specified occasions (which it is not necessary to detail for the purpose of this report) they averred generally that “the pursuers did not carry or arrange for the carriage of the fish in dispute by passenger train as stipulated for in the said contracts.”

The defenders pleaded, inter alia—“(3) The defenders having sustained loss, injury, and damage through the fault of the pursuers, are entitled to set off the amount thereof against the sum sued for, and in respect thereof to have absolvitor. (4) The special contracts founded upon by the pursuers are not binding upon the defenders, in respect that ( c) The stipulated mode of carriage by passenger train was not adopted by the pursuers.”

Proof was allowed and led.

The import of the proof, so far as relating to the question whether the fish were carried by passenger train, is summarised in the opinion of the Lord Ordinary, infra.

On 14th November 1903 the Lord Ordinary ( Low) pronounced an interlocutor whereby he decerned against the defenders in terms of the conclusions of the summons.

Opinion.—[After stating the nature of the action and the contentions of the parties]—“The facts are these—The pursuers run no passenger trains from Granton, and the fish in question was carried by a special fish-train which left Granton at an hour in the morning which enabled it to reach Glasgow in time for the fish-market there. The fish-train was composed of waggons adapted to be run with a passenger train, the engine was a passenger engine, with passenger driver and stoker, and a passenger break-van with a passenger guard was attached. Upon one of the two occasions which are now in question the fish-train appears to have been attached to a passenger train at Slateford, and upon the other occasion, although it was not attached to a passenger train, it was given the same facilities as if it had been a passenger train.

“The question is, whether in these circumstances the fish-train can be regarded as a ‘passenger train’ in the sense in which that expression is used in the consignment-notes? A great deal of light is thrown on that question by the provisions of the Act of Parliament which was passed in 1892 (55 and 56 Vict. cap. lvii.) to confirm a Provisional Order made by the Board of Trade fixing the classification of merchandise traffic and the maximum rates to be adopted by the pursuers. The schedule of maximum rates consists of six parts, and Part V. is described as ‘containing the rates and charges authorised in respect of perishable merchandise by passenger train, with the provisions and regulations which are to apply to such class of merchandise.’ Turning to Part V., I find that the general heading is ‘Perishable Merchandise by Passenger Train,’ and under that heading there is, in the first place, the ‘provisions and regulations applicable to the conveyance of perishable merchandise by passenger train;’ in the second place, a specification of perishable merchandise under three divisions; and, in the third place, the maximum rates and charges for these three divisions.

Now, the first of the provisions and regulations is, that ‘The Company shall afford reasonable facilities for the expeditious conveyance of the articles enumerated in the three divisions set out hereunder either by passenger train or by other similar service.’ In like manner, the third regulation provides that ‘The company shall not be under obligation to convey by passenger train, or other similar service, any merchandise other than perishable.’ The regulations therefore apply not only to passenger trains in the strict sense of the expression, but to ‘other similar service,’ and I think that it is plain that the maximum rates authorised have a similar application. It therefore seems to me that the expression ‘passenger train,’ when used in reference to the conveyance of perishable goods, must be construed as including ‘other similar service.’ Indeed, I think that the statutory regulations which I have quoted amount to an interpretation of the words ‘passenger train’ when used in reference to the conveyance of perishable merchandise as including

Page: 420↓

other similar services,’ and accordingly I think that the words when used in the consignment-notes in question must be read as having that meaning. If that is a sound view, there can, I think, be no doubt that the fish train falls to be regarded as a service similar to a passenger train.

I may add that even if the matter was not so clear as I think it is, the objection could hardly be sustained when taken by the defenders, seeing that they accepted the consignment-notes as embodying the contract under which the fish was to be carried, in the knowledge that it was to be sent, and with the intention that it should be sent, by the fish train.” [ The Lord Ordinary then dealt with the averments of fault on specified occasions, on which he held that the defenders had failed to prove their case.]

The defender reclaimed, and argued—A “passenger train” was a train designed to carry passengers, advertised to stop at and start from particular stations at particular times— Burnett v. Great North of Scotland Railway Company (1885), 10 App. Cas. 147. The Lord Ordinary's construction of the Act of 1892 did not apply to the consignment-notes here in question, which made no reference to “other similar service.” It was not denied that the defenders' fish had been late for market, and this admission imposed on the pursuers an onus, which they had not discharged, to explain the delay— Scottish Marine Insurance Company v. Turner. March 3, 1853, 1 Macq. 334, Lord Truro, p. 340; Dickson on Evidence, sec. 276. Further, the pursuers being in breach of contract could not rely on the terms of their contract with the defenders, and as common carriers were liable for loss of market— M'Connachie v. Great North of Scotland Railway Company, November 6, 1875, 3 R. 79, 13 S.L.R. 39; Anderson v. North British Railway Company, February 18, 1875, 2 R. 443, 12 S.L.R. 312.

Argued for the respondents—The pursuers had fulfilled their obligations in all respects. The defenders' definition of “passenger train” could not be supported. The pursuers had no powers to run trains for passengers between the termini in question—Railway Rates and Charges (Caledonian Railway) Order Confirmation 1892 (55 and 56 Vict. cap. 57).