General Principle of Liability (VII)
Statutory Exemption: Held: That the words “loss, destruction or deterioration” in the relevant section must be constructed disjunctively and that “loss” must be defined as meaning, not loss to the consignor or consignee by reason of the destruction or deterioration in quality of the articles consigned, but actual physical loss of the possession or control over the articles consigned, or a complete package of such consignment, so that they could not be delivered to the consignee, and that it must be proved that such loss was due to the misconduct or wilful neglect of the servants or agents of the railway administration.
Van Der Meulen J.: “In support of his contention the acting Solicitor-General has referred to Halsbury’s Laws of England, Vol. 4, page 21, and to the cases of Hearn v. L. and S.W. Railway ((1855) 10 Ex. 793 and Millen v. Brasch & Co. ((1882 100 Q.B.D. 142). Each of these cases turns upon what is the meaning to be attached to the word ‘loss’ when used with reference to the protection which is afforded to common carriers under the Carriers’ Act (11 Geo. IV and 1 Will. IV, C 68).
In the first of these cases, a portmanteau was mistakenly carried by the defendants and was temporarily lost to the plaintiff from June 3, 1854, to September 22, following, and it was held that the loss of goods against which a carrier is protected is a loss by him of the goods committed to him and not the loss sustained by the owner in consequence of the non-delivery of the goods in due time or altogether, or the loss of the use of the article by him.
To be continued next week