Railway and Canal Traffic Act 1854 — BrandWiki

Railway and Canal Traffic Act 1854

short title	Railway and Canal Traffic Act 1854
type	Act
parliament	Parliament of the United Kingdom
long title	An Act for the better Regulation of the Traffic on Railways and Canals.
year	1854
citation	17 & 18 Vict. c. 31
introduced lords	Edward Cardwell, 1st Viscount Cardwell
territorial extent	United Kingdom
royal assent	10 July 1854
repeal date	1 September 1962
status ew	Repealed
status scot	Repealed
status ni	Repealed
status ie	In force
repealing legislation	Transport Act 1962
original text	https://www.legislation.gov.uk/ukpga/Vict/17-18/31/contents/enacted
use new uk-leg	no

The Railway and Canal Traffic Act 1854 (17 & 18 Vict. c. 31), also known as Cardwell's Act, was an act of the United Kingdom Parliament regulating the operation of railways. The railways were already considered to be common carriers and thus subject to the Carriers Act 1830, but the 1854 act placed additional obligations on the railways due to their monopoly status. Each railway company was now required to take all trade offered and to set and publish the same levels of fares to all in respect of any particular service.

The act marked a milestone in English law and has also served as the foundation of similar legislation in the United States.[1]

It is one of the Railway and Canal Traffic Acts 1854 to 1894.[2]

Historical context

The introduction of the railways from the 1830s onwards led to new possibilities for the transport of goods which previously had not been commonly carried at all. This led to the courts affording a certain degree of latitude to railway carriers, permitting them to make agreements for the purpose of protecting themselves against the new risks and dangers of carriage inherent to the goods they were transporting. It was not long before the railway companies were exploiting this new freedom, taking advantage of their dominance of the transport sector to impose stringent and often oppressive terms of business that limited their exposure to risk.

Main provisions

Receiving and forwarding traffic without delay

An obligation was placed on railway and canal companies "to afford all reasonable facilities for the receiving and forwarding, and delivering of traffic" without delay to and from their railways and canals. This provision sought to put an end to the practice whereby an operator, taking advantage of the monopoly it enjoyed over the provision of services within its area, did not deal with all customers in a uniform manner, perhaps favouring some to the disadvantage of others.

In a case decided in 1910, the Court of Appeal rejected a claim by Spillers that the Great Western Railway had breached this obligation when it refused to transport Spillers' loaded grain vans. According to Lord Justice Kennedy, the railway was only obliged to transport "merchandise", this being the only possible interpretation of "traffic".[4]

No undue preference or prejudice

Railways and canal companies had to publish and set the same fares for any particular service, they could not discriminate between passengers or goods transporters by giving or offering "any undue or unreasonable preference or advantage" in respect of the services provided or, conversely, suffer prejudice by comparison with other users.

Continuous and unobstructed services

Transport services were to be provided "at all times" and without any "obstruction" to passengers or goods. This reinforced the idea that the railways and canals formed a special and important category of business services which were to be made freely available and, insofar as possible, permanently available.

Liability for loss and damage

Section 7 of the act imposed liability on an operator for loss or injury to "horses, cattle or other animals", or to any "articles, goods or things" in the course of their carriage by the operator as a result of his "neglect or default". Where the operator had attempted to limit or exclude his liability for such loss in the contract for carriage, the exclusion clause would only operate where it was "just and reasonable". It would fall to the judge trying a case under the 1854 Act to determine whether the clause was just and reasonable.

The damages recoverable from the operator were capped at £50 for each horse, £15 for any cattle per head and £2 for each sheep or pig. It was however open to the customer to ask for the level of compensation to be raised by paying the excess of the increased amount.

Although this provision prevented routine exclusions of liability for gross negligence, misconduct or fraud by operators, it did not disturb the protection afforded by section 1 of the Carriers Act 1830 (limitation of liability for the loss of certain goods above £10), or abridge the right to contact out of strict liability.

This provision is one of the first attempts by Parliament to introduce legislative controls on unfair terms in contracts. It requires the court trying the case to decide whether the clause in question is "just and reasonable". There followed a flurry of cases on the question of what exactly constituted just and reasonable and from there developed the so-called doctrine of the "fair alternative". The definitive judgment on the question was delivered by Justice Blackburn in Peek v The North Staffordshire Railway Company (1863)[3] where he said that:

Remedies for breach of the act

Violation of the act was a civil and not criminal matter and proceedings could be brought before the Court of Common Pleas (England and Wales), Her Majesty's Superior Courts (Ireland) or the Court of Session (Scotland). The court could issue an injunction (interdict in Scotland) and could order the payment of a fine not exceeding £200.

Legacy

Sir William Hodges, a contemporary railway law commentator, welcomed the Parliament's attempt to regulate the carrying of freight and passengers on railways. He believed that

""[t]he necessity of a supervision of some kind over the traffic on our railways has long been acknowledged and it was felt that it would be an intolerable abuse if the Queens' subjects were deprived (by the railways) of the protection which the crown formerly afforded them when travelling over the ancient highways. Moreover, it may be assumed that the need for rigorous control and supervision is even more necessary than formerly when before the railways there could be no monopoly of the means of conveyance."[5]"

The 1854 Act proved, however, to be ineffectual in dealing with the problems posed by dominant railway companies. The requirement that clauses limiting liability should be just and reasonable was taken by the courts to mean that as long as the contract was made in a just and reasonable way, the result would be regarded as just and reasonable. To reach an agreement which would be considered as "just and reasonable", a carrier had just to offer a customer the option of purchasing insurance for negligence at a reduced cost. If the customer proceeded without this cover, he had no grounds for challenging the agreement. Judges considered that the availability of a fairly priced alternative to limited liability gave adequate protection against coercion on the part of the carrier.[6]

A royal commission was established in 1865 to investigate the charges imposed by the railway industry. This was followed up by another select committee inquiry led by Lord Carlingford, President of the Board of Trade, which proposed the creation of a "Railway and Canal Commission" to oversee the rail industry. The committee noted that the Board of Trade was not "sufficiently judicial" to carry out this task, that the courts were insufficiently informed about the workings of the industry and that a parliamentary committee did not have the necessary permanence. The result was the Regulation of Railways Act 1873 which created the Railway Commissioners to enforce the act. The Railway and Canal Traffic Act 1888 (51 & 52 Vict. c. 25) replaced them by a court of record named the "Railway and Canal Commission".