Scottish Court of Session Decisions

On the 26th August 1878 the pursuer Robert Handon along with his wife and two children arrived at the Caledonian Railway Company's station in Buchanan Street, Glasgow, on their way from America, reaching the station at about eight at night. As they required to find lodgings for the night they deposited certain of their luggage at the “Left-Luggage Office” of the station. This luggage consisted of two trunks—one of ordinary size, and the other very large and standing on four castors. In return for this luggage the pursuer received from the railway clerk a note or ticket containing a statement of the articles deposited. On the front of this ticket there was printed the following:—“The company only receive the within-mentioned articles upon the conditions expressed on the back of this ticket.” On the back of the ticket it was declared that the Caledonian Railway Company give notice that they will only warehouse articles of luggage and other articles subject to the following conditions, viz.:—“(2) That the articles enumerated hereon will be given up to the party producing this ticket, after which all responsibility on the part of the company will cease. (3) That the company will not be responsible for the loss of, injury to, or detention of any parcel, package, or other article deposited in their cloak-rooms or warehouses, when the value of such parcel, package, or other article exceeds five pounds—that is to say, when any parcel, package, or other article deposited in the company's cloak-room or warehouse, exceeding the value of five pounds, is lost, damaged, or detained, the said company will not be liable in any sum whatever unless at the time of the delivery of such package to them its true value is declared to exceed five pounds, on a form to be supplied by the company, and signed by the party depositing such parcel, package, or other article at the time of such deposit, and a charge at the rate of one penny per pound sterling upon the declared value is paid at the time of declaration and delivery to the company for each day or part of a day for which the same shall be left, in addition to the ordinary deposit charges.”

For the articles deposited by him the pursuer paid the ordinary charge of 2d. each, as for articles under the value of £5. He did not comply with the requirements of the third of the above conditions.

The larger of the two trunks was never returned to the pursuer, having been lost while in the possession of the railway company. He, in consequence, raised this action for the value of the trunk and its contents, which he estimated at £100.

He pleaded—“(1) The pursuer having deposited the trunk in question with its contents with the defenders, and received their acknowledgment therefor, in the usual course observed by them in their traffic with railway travellers, they are bound to make good the loss to the pursuer. (2) The attention of the defenders' servant having been called to the trunk in question being valuable, he was bound in like manner to have called the pursuer's attention to the print on the back of the ticket, and not having done so, neither having made any additional demand on the pursuer, the defenders are bound to make good the pursuer's loss. (3) The defenders, by their own actings, having admitted gross carelessness, decree as libelled will fall to be pronounced against them, with costs.”

The defenders pleaded—“(1) The value of the trunk in question not having been declared, and the extra deposit charges paid in terms of the conditions and of the contract between the parties, no liability attaches to the defenders. (2) Under the conditions referred to, which were just and reasonable, the missing trunk having been deposited by pursuer at his own risk, the defenders are not liable for the alleged loss thereof. (3) The defenders having taken the usual and ordinary precautions to protect the left-luggage at their station, where the pursuer's trunk lay, with the pursuer's knowledge and acquiescence, they are entitled to absolvitor.”

On a proof it appeared that the trunk which was lost had not been deposited within the left-luggage office, but had been left outside on the platform of the station, on a spot which, as the railway officials swore, was quite within the view of the left-luggage clerk, and where the company were in the daily practice of leaving articles of large bulk especially during a pressure of traffic. It did not appear when or how the trunk was taken away.

The Sheriff-Substitute ( Lees) decerned against the defenders for payment to the pursuer of £60, adding this note:—

“ Note… … But, in the last place, though the condition be binding on the pursuer, does the case fall within it? The pursuer never agreed to let his box be left on the platform. He made no such contract, and the Court has no power to make it for him. It is not necessary to say he entrusted his luggage to the defenders on the faith they would put it into their cloak-room. That is not the way to view the case. The point is, he entrusted it to them; they must give it back to him. They then plead the condition; they plead that this case is, just because of that condition, an exception to the general rule that a depositary must restore the article deposited with him. But does the case come within the exception? The exception only applies to luggage ‘deposited’ in their ‘cloak-room or warehouses,’—only to ‘warehoused’ articles,—and it is proved that this article was not so deposited, and was not warehoused at all. The defenders stipulate for immunity only where they give protection. The articles to which the conditions apply are expressly said to be ‘warehoused’ articles. Suppose they had put the trunk on the roof of the left-luggage office, or on a barrow, or some place

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outside the office, could it be said they would be protected by the condition. If the condition covers such a case as that, the depositor might well say in that event—I should have preferred to pay for my luggage on the higher scale. It is only fair that if the company ask a higher rate where their risk is greater, the depositor should have the opportunity of judging whether he will pay a higher rate where his risk is greater than on the face of the condition it appears to be. If the election is left to the defenders, they will, when room is scarce, naturally for their own sake put the more valuable articles outside the office, and the articles under £5 inside it. I am quite unable to assent to the view that the luggage is as safe outside the luggage office as inside it. If that is so, why do the defenders specify on the receipt so particularly where the luggage is to be put? If that is so, why do they construct a left-luggage office at all? It is shown that it is a valuable department for them. Even in slack times of the year they draw £5 to £6 a-day. Indeed, I am aware from my experience in the criminal court that luggage left outside the office is not, in fact, as safe as luggage received into it. I think the difference of risk was material, and in this case it must be held either that the defenders infringed their contract with the pursuer, or that the condition they found on is inapplicable to the case. I would only remark in conclusion on this point, that there is no evidence whatever to show that it was impracticable for the defenders to take the box into their left-luggage office. No doubt the trunk was large, and therefore less likely to be carried off. But still there was risk; and their box, through being on castors, could be the more easily moved, and would run the greater risk.

Though I thus arrive at the result that the defenders must be viewed as not under the protection of the condition, it is right to own that I am aware that the recent case of Harris above mentioned, decided by the Queen's Bench Division in England, favours a different result. But I point to these considerations. It is plain the Judges in that case viewed it as one of circumstances, and I am not aware what the position of the vestibule of the office where the luggage was left in that case was, and whether it caused a material change in the amount of the risk. In the second place, the Judges differed in opinion. Justice Lush took one view; Justice Blackburn, now Lord Blackburn, another; and Justice Mellor, only with hesitation, agreed with Lord Blackburn. Apparently, too, Baron Pollock had in trying the case taken the same view as Justice Lush. In the next place, the words of the condition were not the same, nor as explicit as they are in this case, and the decision is one of an English Court, which, though I cannot but respect, I am not bound to follow, but to look for guidance to the Supreme Court of this country or of the kingdom.” … ..

The Sheriff ( Clark) adhered, adding this note—“ Note.—The questions here raised are of a kind in which the laws of England and Scotland in no respect differ. I should therefore hold myself bound by the decision in the English case— Harris v. The Great Western Railway Co.—until I was otherwise directed by the Supreme Court, if I thought that the facts in that case and in the present were substantially alike. But it appears to me that these facts differ in a very important element, viz., that whereas in the English case the goods were deposited in a vestibule in such a manner as to satisfy the condition of being kept with reasonable and proper care, in the present case it is proved that the trunk was taken by the defenders out of their cloak-room or warehouse and left on the platform of the station outside the luggage office, and that without the consent of the pursuer. Such conduct cannot be described as giving reasonable or proper care, but must be characterised as an instance of the grossest negligence. Now, this is just an element which, if it had been present in the English case, would, in so far as I understand the opinions of the Judges, have turned the decision the other way. Blackburn, J., says—‘The condition relieving them (the company) from liability for a loss applied to a loss occurring whilst they are carrying out the contract, not to one incurred when acting in violation of it.’ Now, here the loss plainly occurred while the defenders were acting in direct violation of their contract with the pursuer, and was the direct consequence of such violation.”

The defenders appealed, and argued—Although the contract was with a railway company, it was a contract of deposit, not of carriage, and consequently all the defenders were under an obligation to do was to use reasonable care. They had done so here, for they had placed the trunk which was lost in a perfectly safe part of the station where it was under the eye of their officials. The place in fact was safer than the vestibule in the case of Harris v. The Great Western Railway Company, May 30, 1876, L.R. 1 Q.B. Div. 515, for any passenger might enter that vestibule and leave his luggage there without putting it in charge of the railway officials, although he might also, as Mrs Harris did, leave it in charge of the officials and get a ticket like the present. But if anyone might leave his luggage in the vestibule without asking for the company's permission, anyone might also walk away with it, as a thief did with Mrs Harris', pretending that it was his own. But no one could easily go away with a heavy trunk like the present, which was placed where only luggage under the charge of the company was put. The case on this branch therefore was a fortiori of the case of Harris. On the other branch, as to notice of the conditions, Harris was also a direct authority—See also Parker v. South-Eastern Railway, April 25, 1877, L.R. 2 C. P. Div. 416. Henderson v. Stevenson, June 1, 1875, 2 R. (H.L.) 71, did not apply, for that was a contract of carriage, and secondly, there was no printed reference there, as there was here, on the front of the ticket to the conditions on the back.

Argued for pursuer—(1) Assuming the conditions to be binding, whether the company had used reasonable care or not was not here the question. The company had chosen to stand on certain conditions as part of the contract, and they must therefore fulfil their part of these conditions before they could enforce them against the pursuer. Now, they had not fulfilled their part of the contract, for they had undertaken to warehouse this trunk, and they had not done so. In Harris' case the obligation was not so plainly one to warehouse—at anyrate, the majority of the Court there thought that the particular vestibule in question came up to the description of a warehouse;

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here there was no such vestibule, merely the open platform. But (2) the conditions were not binding, as the company had not given due notice of them to the pursuer. The company officials ought orally to have directed the pursuer's attention to the condition limiting their responsibility when they were receiving a piece of goods plainly over £5 value. For if the pursuer had known of the condition he either would have paid the additional charge or would not have deposited the luggage at all. What he wanted was safe custody. But if the conditions did not apply, then the question was one of common law, and the company had not fulfilled their common law obligation of due and reasonable care; for it could not be contended that the open platform was as safe as the luggage office, or even as the vestibule in the case of Harris, or that it was as safe a place as the company were bound to provide. The company were therefore liable.

At advising—