Scottish Court of Session Decisions

The Railway and Canal Traffic Act 1854 (17 and 18 Vict. cap. 31), enacts—Sec. 2—“Every railway company, canal company, and railway and canal company, shall, according to their respective powers, afford all reasonable facilities for the receiving and forwarding and delivering of traffic” (which term by section 1 includes animals) “upon and from the several railways and canals belonging to or worked by such companies respectively.…”

Section 7—“Every such company as aforesaid shall be liable for the loss of or for any injury done to any horses, cattle, or other animals, or to any articles, goods, or things, in the receiving, forwarding, or delivering thereof, occasioned by the neglect or default of such company or its servants, notwithstanding any notice, condition, or declaration made and given by such company contrary thereto, or in anywise limiting such liability; every such notice, condition, or declaration being hereby declared to be null and void: … Provided always, that no greater damages shall be recovered for the loss of or for any injury done to any of such animals beyond the sums hereinafter mentioned; (that is to say) … for any neat cattle, per head fifteen pounds; … unless the person sending or delivering the same to such company shall, at the time of such delivery, have declared them to be respectively of higher value than as above mentioned.…”

On 1st February 1905 Lord Polwarth, Mertoun House, St Boswells, brought an action against the North British and the North-Eastern Railway Companies to recover, jointly and severally, £800 with interest.

The following narrative of the facts is taken from the opinion of the Lord Ordinary ( Johnston)—“This action is raised by Lord Polwarth to establish liability against the North British Railway Company and the North-Eastern Railway Company

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jointly, or jointly and severally, for the loss of three head of cattle destroyed at Tweedmouth Junction on their way back to Maxton, the station for Lord Polwarth's estate of Mertoun, from the Northumberland Agricultural Society's show at Alnwick on 13th July 1904.

The cattle were despatched from Maxton on the morning of 12th July via Kelso, and travelled by the short route by Coldstream and Wooler to Alnwick. They were returned on the afternoon of the 13th from Alnwick, via Alnmouth Junction, to Berwick, and thence back to Tweedmouth, with the intention of sending them from Tweedmouth, via Coldstream and Kelso, to Maxton. While standing at Tweedmouth Junction the truck in which the cattle were caught fire and they were destroyed.

The cattle being prize animals, the sum of £800 is claimed as their value.

The question raised or intended to be raised depends first upon the special contract made by Lord Polwarth, through his factor Mr Campbell, with the company or companies for the transit of the cattle, and second upon the fact that the North-Eastern Company returned the cattle via Berwick and not via Wooler, and the effect thereof.…

The admitted situation is that Maxton Station is on the North British Railway between St Boswell's Junction and Kelso; that from Kelso to Sprouston is part of the North British line, but is worked by the North-Eastern, and the traffic between the two companies is exchanged at Kelso, so that practically the North-Eastern line may be said to begin at Kelso; that from Kelso Alnwick can be reached by two routes of the North-Eastern—one, the shorter, via Coldstream and Wooler, the other, the longer, via Coldstream, Tweedmouth, and Alnmouth; that the route via Tweedmouth frequently involves the traffic being taken to Berwick and back to Tweedmouth; that besides the routes above mentioned, traffic between Maxton and Alnwick could be taken by a third but a very roundabout route, via Duns and Reston, to Berwick, on the North British, and thence via Tweedmouth and Alnmouth, on the North-Eastern, to Alnwick.

An arrangement exists, as was not denied, though the details of the arrangement and the precise relations of the companies were not before me, between the North-Eastern and the North British Railway Companies (and I gather that the agreement is a general one among all railway companies in the Kingdom) for the transit of cattle for bona fide show purposes to and from agricultural meetings at freight and a-half, i.e., freight for going and half freight for returning. But in order to obtain the benefit of such reduction of freight a somewhat elaborate system of documents requires to pass, the precise terms of which are essential to the contract between Lord Polwarth and the Railway Companies.

In the first place, before the cattle start on the outward and return journeys respectively declarations are required, Nos. 13 and 16 of process, to be handed to the station agents at the point of shipment for the outward and homeward journeys. These declarations are each of them headed North-Eastern Railway. What the precise relation between the North British and the North-Eastern Railway Companies in the matter is, as I have already said, not disclosed, but the terms preclude the North-Eastern from denying that the North British was at least their agent, except on the footing of denying authority and disclaiming the transaction altogether. But without detailed information there is practically no doubt, having regard to the known relations of the two lines, that as between themselves there exist arrangements for through traffic which cover the occasion in question.

No. 13 of process [ headed “ Agricultural Show Traffic”—“ To the Show”] commences with a certificate by the Secretary to the Agricultural Society that the stock had been entered by Lord Polwarth for exhibition. The rest of the document is titled a certificate … In consideration of the North British receiving and forwarding the stock under the conditions applicable to agricultural show traffic, Lord Polwarth, through his factor, undertook to relieve the North British Company and all other companies over whose lines the animals might pass from all liability for loss, &c., except upon proof that such loss, &c., arose from wilful misconduct on the part of the servants of such companies. Endorsed upon this document are ‘General Conditions of Conveyance,’ which I understand to be the conditions applicable to agricultural show traffic, as none others are referred to. Of these the important articles are that the stock is conveyed—(8) to the show at ordinary rates. (9) From the show, if sold, at ordinary rates. (10) From the show, if unsold, at half rates back to the station whence sent. (1) The live stock can only be conveyed at the owner's risk. (6) On returning, if the animals remain unsold, the exhibitors must produce a certificate of the fact, issued by the secretary of the society and signed by the exhibitor, in order to be entitled to the privilege of having the stock charged at half rates. (7) In order to secure the return of the live stock at half rates if unsold, the exhibitors must in every case take care to consign them on the return journey by the same route as they were sent to the meeting, otherwise full rates will be charged.

On delivery of this document to the station agent at Maxton on 12th July 1904 the usual owner's risk consignment note was prepared by the agent and signed by W. Henderson, the man in charge of the cattle, whose authority from Lord Palwarth was not disputed. It bore simply that the cattle were consigned from Maxton to Alnwick via Kelso.…

What Henderson signed was a request that the cattle ‘be carried at the special or reduced rate, in consideration whereof he agreed to relieve the North British Company and all other companies over whose lines the stock might pass from all liability

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for loss, &c., except upon proof that such loss, &c., arose from wilful misconduct on the part of the company's servants.’ …

On the return journey the document No. 16 of process, also signed by Mr Campbell, Lord Polwarth's factor, was handed to the station agent at Alnwick, similar in terms with the document No. 13 of process, and having the same general conditions of conveyance endorsed, except that it bore the word ‘returned’ as part of the heading ‘Agricultural Show Traffic,’ and ‘from the show’ instead of ‘to the show,’ and also bore a certificate by the Agricultural Society's secretary that the stock had been exhibited instead of had been entered for exhibition, and was addressed, not to the North British, but to the North-Eastern and North British Companies. But then the document No. 16 of process was supplemented by the document No. 15 signed by Henderson, the man in charge, and admittedly representing Lord Polwarth. This bore a declaration, first of all, that the stock had been exhibited and had not been sold, and was still the bona fide property of the exhibitor; and in the second place a request … in terms very similar to that which is embodied in the North British consignment note No. 12. In fact No. 15, with the North-Eastern consignment note No. 14, are the North-Eastern's counterpart of the North British consignment note No. 12.

But though the terms are very similar generally, and have the same object, viz., to relieve the Railway Companies from loss except for wilful misconduct on the part of their servants, and the contract is to be deemed to be made separately with all companies parties to any through rate under which the stock is carried, there is this important difference, that the consignment is expressly for carriage back to the station ‘named’ in the schedule endorsed, which station is Maxton, North British ‘(from which station such animals or goods were consigned here for the above-mentioned show) by the same route as on the journey here at the reduced rate below your ordinary rate, and in consideration of your charging such reduced rate,’ &c. The italics are the company's. Neither in this nor in the consignment note No. 14 is any route otherwise mentioned, but merely the station of destination, viz., Maxton.”

The pursuer pleaded—“(1) The pursuer having contracted with the defenders, the North British Railway Company, for the carriage, by themselves or their agents, of the said animals to and from the said show, and the said company having failed to carry them safely, they are liable in damages as concluded for, both at common law and under the Mercantile Law Amendment Act 1856, section 17. (2) Assuming that the defenders, the North British Railway Company, contracted with the defenders, the North Eastern Railway Company, as agents for the pursuer, or that the North British Company acted throughout as agents for the North Eastern Company, or that otherwise the pursuer's claim is against the North Eastern Company, the said latter company is similarly liable to the pursuer in damages as concluded for. (3) Assuming any limitation of the liability of either company under said schedule or otherwise, such limitation is excluded (1st) by reason of the said unauthorised deviation in the return journey; (2nd) by reason of the said loss and damage having been caused by fire.”

The defenders, inter alia, pleaded—“(1) The pursuer's averments are irrelevant and insufficient to support the conclusion of the summons. (3) The defenders should be assoilzied from the conclusions of the action in respect that the animals were at the time of the fire being carried under an owner's risk special contract. (4) The pursuer's loss not having been caused by the negligence or default of the defenders or their servants, the defenders are entitled to decree of absolvitor. (6) No declaration having been made by or on behalf of the pursuer in terms of the Railway and Canal Traffic Act 1854, section 7, the defenders are not in any event liable in excess of £15 for each animal.”

On 20th July 1905 the Lord Ordinary continued the cause till the first sederunt day in October to give the pursuer an opportunity of lodging a minute of amendment if so advised.

Opinion.—[ After the narrative above quoted]—“It is maintained in the first place for the defenders that their liability is, in any event, limited to £15 per animal, in respect that no declaration of an excess value was made on behalf of Lord Polwarth in terms of the Railway and Canal Traffic Act 1854, section 7; and in the second place that the stock was, at the time of the fire, being carried under an owner's risk special contract, which exempted them from liability, in respect that no wilful misconduct on the part of their servants was alleged.

Lord Polwarth's answer is, that assuming that both or either of these defences might, under other circumstances, have been available to the defenders, they cannot in the actual circumstances be pleaded, in respect that the companies had broken their contract with him by diverting the traffic round by Berwick and Tweedmouth instead of sending it back by the route by which it came.

This answer requires, first, a consideration of the contract, and, second, of certain English authorities bearing upon the point.

I am of opinion, in the first place, that it is not open to the Railway Company to plead that the condition endorsed on the documents Nos. 13 and 16, to the effect that the traffic must be consigned on the return journey by the same route as that by which they were sent, is one entirely in their favour, and which may be waived by them if they find it convenient— Bidoulac, 17 R. 144. I do not need to determine absolutely whether this might or might not have been so on the documents Nos. 13 and 16 of process, for the matter does not rest on these documents alone; it rests also on the document No. 15 of process, which having been

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accepted and the cattle delivered for carriage on the faith of it, becomes a mutual contract for the return journey ‘ by the same route as on the journey here.’

But the Railway Companies maintain further that the word ‘route’ is elastic, and that they were not confined to transmitting the stock by the same line of rails by which it had come, but were entitled to return it by any combination of their lines, for though they did not put their argument precisely in these words, I cannot find any other which accurately defines it. I think they limit their contention to this, that so long as they send back by Kelso, it is open to them to send either by Wooler or Tweedmouth. But it appears to me that if their contention is good at all, it would warrant their returning the traffic by Reston and St Boswells, or by any other possible route on their combined systems—say Edinburgh and St Boswells. I cannot hold that the word ‘route’ has this extended meaning, even with the limitation which the company indicates. I think that ‘route,’ particularly in the phrase ‘the same route,’ as ‘on the journey here,’ imports a definite line within the system of a company, or within the combined system of two companies, and not merely the system or systems of one or both as a whole. I do not suggest that this view could be pressed to the extreme point, as for instance to involve a breach of contract if traffic which was taken through Carstairs station were returned by the Carstairs loop line without entering the station; but without pressing the argument to such an extreme, I cannot hold that the route from Alnwick, by Alnmouth and Tweedmouth or Berwick, was not an entirely different route from that by Wooler, and one to which pursuer might reasonably have objected had it been proposed to him as sufficient implement of the company's contract.

I think it is not unfair to test this point by putting the converse proposition. Suppose at Alnwick the pursuer for his own advantage or convenience had booked his cattle back to Maxton via Tweedmouth or Berwick, could he have had any answer to the company's demand for full freight on the return journey? In my opinion he would not.

But I am bound, in the second place, to consider the English authorities founded upon, as they appear to bear very closely on the question.

I do not think that the case of Great Western Railway Company v. M'Carthy, 1887, L.R., 12 App. C. 218, goes further than to determine that the clause in the owner's risk contract note of both the companies concerned imported quite a legal condition exempting from liability under the Railway and Canal Traffic Act, 1854, section 7, provided a proper alternative was given, and in the present case no question is apparently raised on this score, but the three cases— Morritt v. North-Eastern Railway Company, (1876) L.R., 1 Q.B.D. 302; Mallet v. Great Eastern Railway Company, L.R. (1899) 1 QB 309; and Foster v. Great Western Railway Company, L.R. (1904) 2 KB 306—are more apposite, and the latter was founded upon as the ruling case and as deciding the present question in favour of the Railway Companies.

I pass over Morritt's case as it may be referred to the same principle as Foster's case.

The real question is between Mallet's case and Foster's case, and whether Mallet's case is a sound judgment and applicable to the present, or is substantially overruled by Foster's. In Mallet's case the contract was to carry from Lowestoft to Jersey via London, the Great Western Railway, and Plymouth, whereas the receiving company transmitted goods from London via the the London and South-Western Railway and Southampton. This was done by mistake of their servants, who misread the direction, which was not very distinctly written. There was delay in the transmission and consequent loss. It was held that the delay was delay in the performance of the contract, and arose in consequence of the defendants' doing something which was wholly at variance with the contract.

But in Foster's case the circumstances were different. The goods were being carried also to Jersey, and they ought to have been transmitted from Exeter via London and South-Western to Southampton. But they were accidentally carried past Exeter, and when the mistake was discovered it was too late to send them back to Exeter to catch the Southampton boat, and the Railway Company did what was best in the circumstances by sending them via Weymouth, which was a totally different route from that by which they had undertaken to carry them. The decision was that the breach of their contract was at Exeter, but that it was occasioned by their servants' negligence but not wilful misconduct, and that they were therefore protected by the relieving clause in their contract, that after Exeter they were no longer obliged to have recourse to that clause, because they were no longer carrying under the contract, but as baillees of the goods were doing their best in the circumstances. And the case was carefully distinguished from that of Mallet. It is quite true that in the opinions of the Judges who gave judgment in the case, and particularly of Lord Alverstone, there is an undercurrent of dissatisfaction with the case of Mallet, but it goes no further. It may be that it is justified, if it be held that in Mallet's case at London a similar mistake was made to that made in Foster's case at Exeter, but even if this be so, neither Foster's case nor Mallet's case, assuming it to be corrected by the judgment in Foster's, is like the present. Here there was no mistake in transit. There was a deliberate diversion of the route from the beginning, and I do not think that the doubts indicated in Foster's case strike at the grounds of judgment in Mallet's case, but merely their application in the circumstances. But whether these grounds of judgment properly applied in Mallet's case or not, they apply, in my opinion, here, and I cannot hold them displaced by Foster's case.

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I speak of the above cases with the respect due to them as decisions pronounced by the English Courts in pari materia though not binding on me, but I should myself have adopted the ground of judgment in Mallet's case in the circumstances of the present.

On the documents therefore upon which the case must ultimately depend, and on which it was argued by the pursuer, I should be prepared to hold that he might have a good case to recover untrammelled by the owner's risk contract embodied in the special agreement for carriage to and from the show. But then the documents are not his record, but are only embodied in it, and that insufficiently by reference, and while Mr Mackintosh presented a very able argument upon the documents and authorities, he failed to my mind to connect them with his record.… I shall therefore continue the case to give him an opportunity of considering his position.”

The pursuer having lodged a minute of amendment, the Lord Ordinary on 25th November 1905 repelled the first, third, and sixth pleas-in-law for the defenders and allowed the parties a proof of their averments as to, inter alia, the value of the cattle in question.

Opinion.—“The record in this case has been amended in terms of my interlocutor of 27th October, and the defenders admitted at the bar that the pursuer had complied with the requirements of the opinion expressed by me on 19th July, and stated that they did not propose to raise further the question of relevancy. But they contended that, though it might be implied from the form of my opinion that the question raised in their sixth plea-in-law had been disposed of, that was not really the case. That plea-in-law—the sixth—is to the effect that ‘no declaration having been made by or on behalf of the pursuer in terms of the Railway and Canal Traffic Act, section 7, the defenders are not in any event liable in excess of £15 for each animal.’

It is true that I did not expressly consider or dispose of that plea, though I stated that the point raised was the first point maintained for the defenders. My recollection is, however, that I thought it unnecessary to deal with it separately, and considered it covered by the opinion which I expressed with reference to what was maintained in the second place in support of the defenders' third plea-in-law, which was that ‘the defenders should be assoilzied from the conclusions of the action, in respect that the animals were at the time of the fire being carried under an “owner's risk” special contract.’

The defenders having asked to be reheard on their sixth plea-in-law, I have now heard a full argument, and have reconsidered the question, with the result that I shall now repel the plea.

Prior to the passing of the Carriers Act 1830 (11 Geo. IV and 1 Will. IV, cap. 68) common carriers were practically in the position of guaranteeing the safe delivery of goods which they accepted for carriage. And all goods which they accepted for carriage for one person, they were bound to carry for all the lieges. The law, however, allowed them to relieve themselves, by notice published with the intent to limit such heavy responsibility. But in respect of the practice of persons tendering for carriage, parcels, the value of which was grossly disproportionate to the bulk, without notifying to the carrier the value and nature of the contents, and of the difficulty of fixing parties with knowledge of such limiting notices, the Legislature thought fit, by section 1 of the above Act of 1830, to enact that no common carrier by land for hire should ‘be liable for the loss of or injury to any article or articles of property of the descriptions following’—[and there followed an enumeration of bullion, gold and silver plate, jewellery, bank-notes,’ paintings, china, silks, furs, lace, and other articles of similar nature of value disproportionate to bulk]—contained in any parcel or package delivered for carriage ‘when the value of such article or articles or property aforesaid, contained in such parcel or package, shall exceed the sum of £10, unless at the time of the delivery thereof … the value and nature of such article or articles or property shall have been declared by the person sending or delivering the same, and such increased charge as hereinafter mentioned, or an engagement to pay the same be accepted by the person receiving such parcel or package. By this provision therefore the carrier was entirely relieved for the loss of or injury to any such article, unless it was declared, and what was practically a premium of insurance paid.

But when railways and canals came practically to supersede the common carriers of 1830, while the Act of 1830 still continued to regulate the carriers' liability where it applied, a further limitation was found necessary, and was introduced by the Railway and Canal Traffic Act 1854, sec. 7, but the relief given was not absolute, but qualified and limited. [ His Lordship here quoted the section, supra.]

It was maintained that this provision limited the defenders' liability for the loss of the pursuer's cattle to the sum of £15 per head, in respect that he had not declared them to be of higher value and paid the consequent increased freight. But I think that the grounds on which I have already disposed of the defenders' third plea-in-law apply to the plea founded upon this provision and warrants my rejecting it. I think that it is an implied condition of the Railway Company taking benefit by the limitation of liability provided, that they shall carry on the contract on which the cattle were delivered.

I have again considered the English authorities to which I was referred at the first debate and certain further authorities which were quoted, but I have not changed my view of their bearing.

The former authorities quoted were Morritt v. North-Eastern Railway, 1 Q.B.D. 302; Mallet v. Great Eastern Railway (1899), 1 Q.B. 309; and Foster v. Great Western Railway Company (1904), 2 K.B. 306. I am

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prepared on further perusal to admit that Mallet's case was wrongly decided, and that it was in reality not distinguished but disapproved by the Court of King's Bench in Foster's case. But that does not alter my view of the bearing of the two other cases. They determine that a mistake even negligently made by a railway company in the course of executing the contract of carriage, which resulted in goods being diverted from the route by which they were contracted to be carried, did not deprive the companies in the one case of the benefit of the provision of section 1 of the Carriers Act 1830, and in the other case of the benefit of a special condition just and reasonable, and therefore permissible to be made, under section 7 of the Railway and Canal Traffic Act 1854. But they leave open the question what is to happen when the mistake or the neglect or the default occurs, not in course of executing the contract, but where the contract is never even commenced to be executed.

The distinction between these cases and certain others to which I will immediately refer, was, I think, correctly noted by Lord Blackburn, then Mr Justice Blackburn, when he says in Morritt's case at 1 Q.B.D. 304—In each of these (that is, the latter cases) there was an intentional act on the part of the defendants in sending on or misdelivering the goods; here there was only negligence.’

The new cases to which I have been referred are Sleat v. Fagg, 5 Barn. & Ald. 342, and 25 R.R. 407, and Garnet v. Willan, 5 Barn & Ald. 53, and 24 R. R. 276, in both of which carriers were held responsible for loss notwithstanding notice equivalent to the provisions of the Carriers Act 1830, brought home to the knowledge of their customer, because they were not carrying under their contract but outwith their contract, and these decisions seem to me to support the view which I have already expressed. I was also referred to Hearn v. L. & S. W. Railway, 24 L. J. Ex. 180; Millen v. Brasch, 10 Q.B.D. 142; and Handon v. Caledonian Railway Company, 7 R. 966. The first two are illustrative of the general question; the latter, like the cases of Sleat and Garnet, are more directly in line with the present.

In fact I remain of the opinion which I formerly held that the question at issue in the case depends upon whether Lord Polwarth's cattle were returned ‘by the same route as on the journey’ out. I have already expressed my reason for the opinion that they were not so returned. If so, they were not carried on the contract, but contrary to the contract of carriage.” [ His Lordship then dealt with another point which was not argued in the Inner House.]

A joint minute of admission for the parties was then lodged, in which they agreed—(1) That the value of the animals in question should be held to be £550. (2) That the animals died in consequence of the injuries caused by fire while in the waggon. And (3) that certain general notices (in which defenders declared they were not common carriers of cattle) had been publicly exhibited by the defenders; and quoad ultra renouncing further probation.

On 22nd February 1907 the Lord Ordinary pronounced this interlocutor—“Having considered the cause along with the joint-minute of admissions, inter alia, assessing the value of the cattle in question at £550 sterling, and renouncing further probation, decerns against the defenders, conjunctly and severally, for the agreed-on sum of £550 sterling, with interest thereon, as concluded for in the summons.”

Opinion.—[ After referring to the minute of admissions finding that the defenders were not common carriers and pointing out that there was no proof of either fault or negligence, his Lordship proceeded]—“But the case has been taken throughout on the footing that the pursuer founded entirely on breach of contract, and though I think that their record might have deduced this more pointedly, I think that it is their real case on record. If so, then the contract was broken; the cattle were not carried on it, but in contravention of it. It was no mere negligence or fault of the defenders' employees diverting the cattle in transit. They never were carried on the contract at all, and this was done intentionally. Whether for the defenders' convenience, or whether it was assumed that the pursuer would thereby get better expedition, does not appear to me to affect the question. Under their contract the defenders, whether they were common carriers or carrying on a special contract, were bound to deliver the cattle at Maxton, and they could not do so. They cannot, therefore, plead any of the conditions of the contract to excuse their breach. Nor can they so plead the statutory limitation of liability, for the statute subsumes a contract of carriage, and that the carriage proceeds under that contract. I cannot distinguish from Handon v. Caledonian Railway Company, 1880, 7 R. 966, in Scotland, and from Sleat v. Fagg, 1822, 24 R.R. 407; Lilley v. Doubleday, 1881, L.R., 7 Q.B.D. 510, and Royal Exchange Shipping Company v. Dixon, 1886, L.R., 12 A.C. 11, in England. The damage then is the value of the cattle. ‘The question is whether the defendant was responsible for the goods, and if so the damage must be their value’ ( per Lindley, J., in Lilley v. Doubleday, supra, and cf. Ellis v. Turner, 1800, 5 R.R. 441), unless indeed the damage was too remote. But this I cannot hold in face of the English cases of Davis v. Garett, 1830, 31 R.R. 524; Scaramanga v. Stamp, 1880, L.R., 5 C. P.D. 295, to which I have referred. I do not think that even a damnum fatale would have excused the defenders, but the defenders do not attempt to show that the accident was occasioned by the agency of nature, and could not reasonably have been avoided. Nugent v. Smith, 1876, L.R., 1 C.P.D. 423.

I shall, therefore, decern against the defenders for the agreed-on sum of £550 with expenses. I do not think that there should be any modification in respect of the amendment of record, for if the

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defenders did not add to their statement in defence, they brought forward for the first time the important plea last disposed of, and occasioned the third hearing.”

The defenders reclaimed, and argued—(1) They were not liable at all for the loss of the cattle, ( a) The cattle were carried to Alnwick by the route agreed upon. They were consigned to Alnwick via Kelso; they were sent to Alnwick via Kelso— via Kelso being the only prescribed route, they had the option of sending them either via Wooler or via Tweedmouth. As to the return journey, it was true the special contract contained a request “for carriage back” “by the same route as on the journey here.” That meant by the same route before stipulated for— i.e., via Kelso. It did not mean by the same set of rails. Their sending the cattle by Wooler on the outward journey in the exercise of their option did not preclude them from sending them by Tweedmouth on the return journey. ( b) Even assuming “by the same route as on the journey here” meant by Wooler, it was a condition inserted solely for the company's benefit, and which they could waive— Bidoulac v. Sinclair's Trustees, November 29, 1889, 17 R. 144, 27 S.L.R. 93. ( c) Assuming that the obligation was to carry by Wooler, yet in sending them by Tweedmouth they were executing the contract to the best of their ability with the view of getting them to their destination as speedily as possible, and there being no proof of wilful misconduct, they were protected by their special agreement and risk clause— Morritt v. North-Eastern Railway Company, 1876, L.R., 1 Q.B.D. 302; Foster v. Great Western Railway Company, [1904] 2 K.B. 300, which disapproved of Mallet v. Great Eastern Railway Company, [1899] 1 QB 309. Deviation from the strict route might be justifiable, as in the case of a ship— Scaramanga v. Stamp, 1880, L.R., 5 C.P.D. 295. (2) Assuming there was a breach of contract which put them outside the benefit of their special contract, then while the Railway and Canal Traffic Act, section 7, made them liable for the loss of cattle “in the receiving, forwarding, or delivery thereof,” it limited that liability to £15 per head, there being no prior declaration of higher value. They received the cattle at Alnwick as carriers, and as such their liability then commenced— Hill v. London & North-Western Railway Company, 1882, 42 L.T. 513. They were “forwarding them” as carriers when the loss occurred, and consequently the limitation applied— Great Western Railway Company v. M'Carthy, 1887, L.R., 12 App. Cas. 218; Hodgman v. West Midland Railway Company, 1865, 35 L.J. Q.B. 85; Foster v. Great Western Railway Company ( cit. supra). This conclusion was supported also by Hinton v. Dibbin, 1842, 2 Q.B. (A. and E.) 646; Baxendale v. Hart, 1852, 21 L.J. Ex. 123; and Morritt v. North-Eastern Railway Company ( cit. supra), which were decided under the Carriers Act 1830 (11 Geo IV and 1 Will. IV, cap. 68, section 1); and also by the cases of London & South-Western Railway Company v. James, 1872, L.R., 8 Ch. App. 241; Wahlberg v. Young, 1876, 4 Asp. Mar. Cas. 27—reported in a footnote to Dyer v. The National Steamship Company—which were decided under the Merchant Shipping Act 1854 (17 and 18 Vict. cap. 104), section 514. The cases of Sleat v. Fagg, 1822, 5 Barn, and Ald. 342, 24 R.R. 407, and Garnet v. Willan, 1821, 5 Barn. and Ald. 52, 24 R.R. 276 (referred to by the Lord Ordinary) were decided on the old law of carriers prior to the Carriers Act, and there was no question as to the application or otherwise of a statutory limitation. In Hearn v. London & South-Western Railway Company, 1855, 24 L.J. Ex. 180, 10 Ex. (H. and G.) 793, the goods were detained not lost, and it was so distinguished in Millen v. Brasch, 1882, L.R., 10 Q.B.D. 142.

Argued for the respondent (pursuer)—The defenders had broken their contract and were liable for the loss of the cattle. Even on the outward journey the company had no option as to route, because the time at which the cattle were sent to Maxton Station showed that they were intended go by Wooler. But in any case; as the cattle were in fact carried by Wooler on the outward journey, the company were bound to return them “by the same route as they were sent”—i.e., by Wooler—for “route” did not mean “system,” nor did “sent” mean “consigned.” The condition as to route was not made solely in the interest of the Railway Company, and Bidoulac v. Sinclair's Trustees ( cit. supra) had no bearing. By intentionally sending the cattle by a route not that stipulated for in the contract the defenders had put themselves outside the contract, and lost both the benefit of the limitation of liability therein, and also the benefit of the statutory limitation of liability under the Railway and Canal Traffic Act. They relied on the general principle of contract law stated in Just. Inst, iii., 14, 2; Ersk. Inst. iii., 1, 22; and in Jones on Bailments, pp. 68 and 69, and illustrated in Davis v. Garret, 1830, 6 Bing. 716; Royal Exchange Shipping Company v. Dixon, 1886, L.R., 12 App. Cas. 11; Scaramanga v. Stamp ( cit. supra); Ellis v. Turner, 1800, 8 Term Rep. 531; Garnet v. Willan ( cit. supra); Sleat v. Fagg ( cit. supra); Lilley v. Doubleday, 1881, L.R., 7 Q.B.D. 510; Handon v. Caledonian Railway Company, June 18, 1880, 7 R. 966, 17 S.L.R. 664; Mallet v. Great Eastern Company ( cit. supra). The ground of judgment in Mallet was not questioned in Foster v. Great Western Railway Company, but its application to the circumstances. The intentional breach of contract in the present case distinguished it from Morritt v. North-Eastern Railway Company, Foster v. Great Western Railway Company, Great Western Railway Company v. M'Carthy, Baxendale v. Hart, Hinton v. Dibbin, Hodgman v. West Midland Railway Company, London & South Western Company v. James, Wahlberg v. Young ( omnes cit. supra), all of which were cases of negligence in carrying out the contract, and not, as here, an intentional acting outwith the contract.

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No distinction was to be drawn between the special limitation of liability in the risk clause and the general limitation given by the Railway and Canal Traffic Act.

At advising—