Scottish Court of Session Decisions

LORD ROBERTSON'S OPINION.—[His Lordship gave the narrative quoted supra, referred to certain matters with which this report is not concerned, and continued]—Both parties have general pleas to the relevancy and specification of the averments of their opponents and the case came before me on the Procedure Roll on 14th and 15th February 1967. The first argument addressed to me by the defender related to the meaning and application of section 17 of the Mercantile Law (Scotland) Amendment Act, 1856. It was said that this section applied to common carriers only, and that the pursuers were not common carriers, but simply private traders who carry goods by contract with other traders. If so, the whole basis of the pursuers' case failed. The pursuers do not aver that they are common carriers, and I did not understand the pursuers' counsel to argue that they were common carriers. Their case is that section 17 of the 1856 Act applies to all carriers, common and private alike.

The basis of the argument in favour of a general application of section 17 of the 1856 Act to all carriers lies in the use of the words "All carriers for hire of goods…" It is said that it has never been disputed in the law of Scotland that there are two types of carriers, viz., (1) common or public, and (2) private. This was accepted in argument by the defender. If so, it is said, the phrase "all carriers" must embrace both classes. Further, the basis of the liability of common carriers is the Edict nautae caupones stabularii, and there is evidence that at one time the Scottish Courts were tending to extend the Edict to all carriers, private as well as common—Ewing v. Miller, (1687) M. 9235; Bell's Commentaries, (M'Laren's ed.) I, 496, note 2. The Carriers Act, 1830 (11 Geo. IV and 1 Will. IV, cap. 68), uses the phrase "common carriers" and is restricted in its application to that class of carriers. As the 1856 Act refers only to "carriers", it must refer to both classes.

For the defender it was argued that, as the preamble to the Act states, the purpose of the 1856 Act was to remedy inconvenience arising out of certain differences in matters of common occurrence in trade which then existed between Scots law and English law. The law of England in 1856 was that a common carrier could be liable for goods destroyed by accidental fire while in his charge, whereas a private carrier would not be so liable (see Belfast Sopework Co. v. Bushell, [1918] 1 K.B. 210; Watkins v. Cottell, [1916] 1 K.B. 10). It has been said that this was the purpose of section 17 of the 1856 Act (Sinclair v. Juner, 1952 SC 35, Lord President Cooper at p. 43) and that this section assimilated the laws of the two countries as regards common carriers (but not as regards innkeepers or stablers).

It is also the case that section 17 of the 1856 Act has been treated in the text-books as referring only to common carriers—see Bell's Law Dictionary, (1890) s.v. "Fire, Loss by"; Encyclopaedia of the Laws of Scotland, vol. iii, p. 10; Gloag and Henderson, (6th ed.) p. 336; Gow's Mercantile and Industrial Law of Scotland, p. 475.

This very point, however, was decided by Lord Mackintosh in the case of Anderson v. Jenkins Express Removals Limited 1967 SLT 215 (1st November 1944, unreported), where his Lordship, after considering all the arguments addressed to him and the points taken, held that, in view of the clear words of section 17 of the 1856 Act, the section must be held to apply to all carriers, and not only common carriers. I have come to the conclusion that Lord Mackintosh was right in so holding and I propose to follow him in this matter, for the reasons given in his judgment, to which I refer and which I adopt. An appeal from his decision was taken, but, according to the minute of proceedings, the parties of consent agreed to a proof before answer in the Inner House after the reclaimers had addressed the Court. No opinions were delivered.

I should perhaps add at this stage that, assuming I am right in holding that the obligation under section 17 of the 1856 Act rests on all carriers, and not simply upon common carriers, it will be in my opinion a question of fact and circumstances whether liability arises under section 17 and, if so, who is liable.

[His Lordship then referred to other matters, with which this report is not concerned.]