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PART I.

EXAMINATION OF AMERICAN LEGISLATION.

CHAPTER XXVI.

HISTORY OF STATUTORY REGULATION.

TOPIC A—LEGISLATION IN ENGLAND SINCE 1830.

§ 871. Carriers' limitation of liability before 1830.

872. The Carriers' Act of 1830.

873. The Railway and Canal Traffic Act of 1854. 874. The Railway and Canal Commission.

TOPIC B-LEGISLATION IN AMERICAN STATES.

§ 875. Early railway charters in the United States.

876. Granger legislation.

877. Railroad Commissions.

878. Regulations against discrimination.

TOPIC C-FEDERAL LEGISLATION SINCE 1887.

879. The Interstate Commerce Act.

880. The Elkins Act of 1903.

TOPIC D-INTERPRETATION OF THE INTERSTATE COMMERCE ACT.

881. The long and short haul clause.

882. The fixing of rates.

883. Through routes.

TOPIC E-THE RATE REGULATION ACT OF 1906.

§ 884. Occasion for the act.

885. Extension of scope of the Interstate Commerce Act.

886. Private switches.

887. Private car lines.

888. Dealing by railroads in commodities.

889. Rate fixing and court review.

890. Through routes and rates.

TOPIC A LEGISLATION IN ENGLAND SINCE 1830.

§ 871. Carriers' limitation of liability before 1830.

The practice of the carriers of escaping full liability for goods carried became established at a very early date. The hint for this was given by Lord Coke in his report of Southcote's case.1 In a note to that case he pointed out the desirability of bailees' making a special acceptance of goods to hold as their own in order to escape the absolute liability which, as he believed, all bailees underwent. His view as to the absolute liability of all bailees was soon modified by the courts, but carriers continued under this liability, and indeed the stringent nature of their obligation was increased by the decision of the Court of the King's Bench in the case of Forward v. Pittard.2

In order to escape this excessive obligation, carriers came more and more to limit their liability by special acceptance. This was usually effected by the giving of notice to shippers that the carrier would not be responsible under certain circumstances, or to the full extent of the value of the goods carried. These notices were usually posted in the shipping office, and were often contained in advertisements in newspapers. The courts allowed the practice and permitted the carriers thus to limit their liability.

Eventually the carriers attempted so great a limitation of their liability that shippers were really left without protection, and it became necessary to correct the evil by legislation. This was the occasion of the first English statute.

872. The Carriers' Act of 1830.

The Carriers' Act of 1830 applied to all carriers by land. Its most important provision forbade the limitation of liability by public notice, permitting, however, the carrier to make special

14 Coke, 83b (1601). 21 T. R. 27 (1785).

contracts for the conveyance of goods." The statute further exempted the carrier from liability beyond the value of £10 unless special notice of value was given.*

Under this Act the giving of special notices ceased for several years, but finally the carriers again attempted to limit their liability by the giving of special notice, and the courts finally found a way of permitting the limitation of liability in this way notwithstanding the provisions of the statute. In the case of Walker v. York and No. Midland Railway, the plaintiff sued the carrier for the loss of fish he had shipped, which had been injured by the negligent delay of the carrier. The defendant had distributed to the plaintiff and others printed notices saying it would not be liable for any damage caused by delay and that no servant had any authority to alter this condition. The plaintiff claimed that he was not bound by such a notice, and that it would not protect the carrier, and, so claiming, he shipped the fish. The court advised the jury if they found that the plaintiff had received the notice to find for the defendant, unless the plaintiff had unambiguously refused to deliver the goods on the terms of the notice and the defendant had acquiesced in the refusal. Under this instruction the jury found for the defendant, and the Court of the Queen's Bench held the verdict correct.

§ 873. The Railway and Canal Traffic Act of 1854.

Partly as a result of this practice of the carriers thus legalized by the courts, Parliament passed the Railway and Canal Traffic Act of 1854. This Act applied only to carriers by railway and canal. It forbade the limitation of liability by notice and provided that no contract limiting liability should be valid unless it

3 11 Geo. 4 & 1 Wm. 4, c. 68, §§ 4, 6.

4 Ibid, § 1.

52 E. & B. 750 (1853).

6 17 & 18 Vict. c. 31.

was in writing and signed by the shipper. In addition to this provision it contained several other important regulations of carriage by railway.

In the second section it provided that every railway and canal company should afford all reasonable facilities for the receiving and forwarding and delivering of traffic upon and from the several railways and canals and for the return of carriages, trucks, boats, and other vehicles; that no such company should give any undue or unreasonable preference or advantage to or in favor of any particular person or company, or any particular description of traffic, or subject any person, company, or description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever; and that every such carrier having a railway or canal which formed a part of a continuous line of communication or which had a station near the station of another carrier should afford all due and reasonable facilities for receiv ing and forwarding all the traffic arriving by one or the other such railway without any unreasonable delay or preference or advantage, so that no obstruction might be offered to the public desirous of using such railways or canals as a continuous line of communication, and so that all reasonable accommodation might at all times be afforded to the public.

In the third section it was provided that any company or person might complain of a violation of the act in any of the courts, and that the attorney-general might complain on behalf of the public; that injunctions might be issued and a penalty exacted for disobedience of such injunction.

874. The Railway and Canal Commission.

7

In 1888 a commission was established in Great Britain, called the Railway and Canal Commission, with both administrative and judicial duties. The Commission is composed of two appointed members (one of them experienced in railroad

751 & 52 Vict. c. 25.

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