Law of Carriage by Rail Essay

1) a) Explain how the making of the contract between the consignor and the railway station can exist? The contract between the consignor and the railway company will existing when the railway company has accepted the goods for carriage from the consignor and together with the consignment note make by consignor. The acceptance will be established with the consignment note and will be stamp of the forwarding station. The consignment note is made by the consignor with three copy, each copy for each carriage freight, and the content of the consignment note are correspond with all the terms and condition that was agreed by the Rules. When the consignment note had been made by the consignor and was being stamped by the forwarding station, the consignment note will be an evidence of the making contract between the consignor and the railway station or forwarding station, the content that stated in the consignment shall be correspond or exactly same with the consignor with railway station previously agreed. The responsible of the consignor is extraordinary of the consignment note, which may in accordance with the agreement between consignor and the railway company. In the consignment note was related to the goods such as quantity of the goods or to the amount of packages shall only be evidence against the railway when it had been verified by the railway to regulate that is not any deviation with the particular of the consignment note and has be certified in the consignment note. If that was any necessary these particulars may be verified by other means or it was obvious that there is no actual insufficiency corresponding to the discrepancy between the quantity or amount of packages and the particulars in the consignment note, the latter shall not be evidence alongside the railway. This shall apply in particular when the carriage is handed over to the consignee with the original stamps complete. After the railway company has verified the goods, and they shall to certify a receipt that include the date of acceptance of the carriage and stamped on the consignment note before it was duplicated to the consignor. The railway shall declare acceptance of the goods and the date of acceptance for carriage by assigning the date stamp to or else making the entry on the duplicate of the consignment note before compensating the duplicate to the consignor. The duplicate will not have influence as the consignment note complementary the goods, nor as a bill of lading. Grand Trunk Railway Co. of Canada v. McMillan [1889] In this case is the Grand Trunk Railway Company of Canada as defendant and Robert McMillan as plaintiff. The fact in the case is the railway company have the contract with Robert McMillan, which is a contact for carriage of the goods and it was go beyond of the station of line. The railway company undertakes to carry goods to a point beyond the station of its own line its contract is for carriage of the goods over the whole transit. However the other companies which over of the line they must pass are merely agents of the contracting company for such carriage, and it was in no private of contract with the transporter. In addition, such a contract being one which a railway company may refuse to enter into the contact, it is because of according to section 104 of the Railway Act it does not prevent from restrict the liability for negligence as carriers or else in respect to the goods to be carried after they had gone from its own line. Moreover, inside the contract have a condition from the Grand Trunk Railway Company (defendants), it was stated, they carry the goods form Toronto to Portage la Prairie, Man., it was a place that beyond the station of their line, and the company shall not be responsible for any loss, damage or delay and detention that may happen to goods sent by them. If that has be happen (loss, damage or delay and detention) after said the goods had arrived at the stations or places on their line nearest to the points or places which they were committed to or beyond their held limits. Furthermore for the condition of the contract is provided that no claim for loss, damage, delay or detention of goods should be allowed unless notice in writing with particulars and it was given to the station agent at or nearby to the place of delivery within thirty-six hours after delivery of the goods in order to the claim that was made. The held in this case is because of the condition are not relieve with the company from the liability for the loss and damage that happened during the goods in transit, even if the loss, damage, delay or detention had happened beyond the limits of the company in that own line. As well as the loss having occurred after the transit was over, and the goods delivered at Portage la Prairie, and the liability of the company as carriers having ceased, this condition reduced the contract to one of mere bailment as soon as the goods were delivered, and also exempted the company from liability as warehousemen, and the goods were from that time in keeping of the company on whose line Portage la Prairie was place and it was as an bailees for the goods. That a plea setting up non-compliance with this condition having been demurred to, and the plaintiff not having appealed against a judgment over-ruling the demurrer, the question as to the sufficiency in law of the defense was res judicata. Likewise for the part of the consignment having been lost such notice should have been given in respect to the same within thirty-six hours after the delivery of the goods which arrived in safety. Finally it was be an action against the Grand Trunk Railway Co. and the Canadian Pacific Railway Company jointly for damages caused by injury to the plaintiff’s goods that carry on the Grand Trunk for carriage of goods from Toronto to Manitoba. The goods were only carried by the Grand Trunk over a portion of the route and by the Canadian Pacific from Winnipeg to the place of consignment, and they were in the actual ownership of the latter company when injured. And because of the damage to the goods was not disputed, but the defendants claimed that they were carried under a special contract, by the terms of which they were relieved from liability. b) Briefly explain the party that have the liability to be liable under the carriage by rail? The rail carrier has the liability to be liable for the loss, damage or any delay of the goods that who was under CMR. According to Article 55 is provided that the railways may bring an action to forwarding railway. That is for claim against the railways company due to arising of loss, damage or delay of the goods, and is an action that for reclamation of totality of funded under the contact of carriage of goods might be taken against the railways which have composed that totality or against to railways on behalf it was collected. Based on Article of 54, that is the action against the railways might be brought by the consignor. If any happen action arising from the contact of carriage of goods, the action might brought by consignor until the consignee was take a proprietorship of the consignment note, accepted the goods from the consignor, or declared he has the right to deliver the goods. Or the action against the railways also can brought by the consignee, when the consignee are take a possession of the consignment note, accepted the goods, declared his right or he had been provided that he has the right of action that shall be quenched from the time when a person was entitled by the consignee. However, if they might brought an action against the railways, consignor shall to produce the duplicate of the consignment note, because that will be an evidence that he produce an authorisation from the consignee or deliver resistant that the consignee has refused to accept the consignment note, or the consignee shall to produce the consignment note if it has been furnished terminated to him. In addition, that Article of 36 that is the extent of the liability. The railways has a number of exclusion from the liability. In fact the railways shall to be liable for the loss, damage or delay of the goods, and occasioning from the total or some of the partial of loss, damage or delay from the consignor or between the time that had acceptance for carried out the goods loading and the time delivery and inherent vice of the goods such as defective packaging, decay of the goods or wastage. The railway company shall be relieved of such liability when the loss, damage or delays or the goods that had carried, due by the cause of fault on part of the person entitled, or by the person that entitled other than as result of a fault on the part of the railway which the railway could not avoided and which is unable to prevent the consequence. For instance, under the agreement between the consignor and the railway in the consignment note, the goods should be under the condition that applicable that had been stated in consignment note, any absence or lack of the filler of the good which by their nature shall be liable to loss or damage when the goods was not packed or not be properly packed, or defective loading that had been carried by the consignor, any irregular, incorrect or any incomplete description of the article not been acceptable for carriage or acceptable matter to conditions or failure on part of the consignor to observe the prescribed protections in respect of article acceptable matter to conditions, or the carriage of the live animal and what stated in the consignment note must be accompanied by any attendant, if the loss, damage or delay of the goods had been resulted in the risk of the attendant was intended to obviate, all the circumstance, the railway shall be relieved of the liability when it was cause in resulted in loss, damage or delay of the goods. For example in the case of Mitsubishi Heavy Industries Ltd. v. Canadian National Railway Co., Rainbow Industrial Caterers Ltd. v. Canadian National Railway Co., [1991], see as well the case of Grand Trunk Railway Co. of Canada v. McMillan [1889]. Mitsubishi Heavy Industries Ltd. v. Canadian National Railway Co. In this case the Mitsubishi Heavy Industries Ltd is the plaintiff and Canadian National Railway Company is the defendant in the cases. The fact in the case was as an import of a train derailment cargo owned by the plaintiff was severely damaged. The cargo was being accepted under a â€Å"Master Transportation Agreement† between the plaintiff and Fujitrans as a freight forwarder. The goods made in Japan and were carried by sea to Vancouver where it was discharged for further carriage to Ontario by rail. Furthermore, the defendant rail carrier assumed, pursuant to Section 137(1) of the Canada Transportation Act, S.C. 1996 and an agreement between Casco, another freight forwarder, that it was entitled to limit its liability to $50,000. However the rail carrier was entitled to limit his liability. The held in the case is which is the right of the defendant as a rail carrier to limit its liability depends on it establishing the existence of a â€Å"confidential contract† under ss. 126 and 137 of the Canada Transportation Act that is a â€Å"written agreement signed by the shipper† and that contains a limitation of liability. The â€Å"shipper† within the meaning of the Canada Transportation Act in the circumstances of this case was Casco not the plaintiff. In addition, the requirement of a â€Å"signed† copy of the agreement does not necessarily require that an actual contracted copy be produced. In this case, the existence of signed consignment of the agreement was sufficient. The plaintiff impliedly or expressly agreed to and authorized the subcontracting by Fujitrans to Casco and by Casco to the rail carrier. Moreover, the plaintiff had express awareness of the terms of the agreement between Casco and the rail carrier. Accordingly, the plaintiff is guaranteed by the limitation even without any private of contract between it and the rail carrier. Rainbow Industrial Caterers Ltd. v. Canadian National Railway Co., [1991] In this case the Rainbow Industrial Caterers Ltd as an appellant however Canadian National Railway Company as a defendant in the cases. The fact in the cases is actually they have two different industrial caterers, both of them is from Albert and in BC, and they was joined and administer as one entity that called as â€Å"Rainbow†. Canadian National Railway Company decided to call for tender for the catering of the meals and service for all the work of crews on a nation-wide basis for the good weather work period in 1985. It had estimated that 1,092,500 meals that will be required. Canadian National Railway Company was notified to Rainbow that the meals are total expected to be 85% of the values listed in the tender document, after the Rainbow was made the bids at $4.94 per meal. It was caused the Rainbow was to increase its bid to $5.02 per meals. As a result that the Rainbow was accumulate that it was losses month by month, because of the number that the meals required was very less than the number given as by the Canadian National Railway Company, and it was caused the Rainbow lost about $1,000,000 on the contact and sued to Canadian National Railway Company. Rainbow was brought an action in tort on the basis of negligent misstatement and misrepresentation in the contact. It is mean that was a breach of the contact and negligent misstatement. The held in the cases is the appellant is looking for the damages in an action for the negligent of misrepresentation is entitled to be put in the position, which if the misrepresentation had not been made. Thus, in tort of action the object is to put the appellant in the position that would have been in if the tort had not been committed. The position would have been is a matter that the appellant must to establish on a balance of the probabilities. However the Canadian National Railway Company was argue that the much of the losses was not caused by the negligent misrepresentation and would have been suffered even had the estimated was accurate. Canadian National Railway Company position is that the losses caused by the conduct that cannot be recoverable in the misrepresentation claim. But, the Canadian National Railway Company is bore the burden of proving the Rainbow would have a bid even if the estimate had been accurate. That was not being proved and it is taken as a fact that the Rainbow would not have to contract had the estimate been accurate. The conduct would not have occurred if there had been no contracted and these losses are causally and directly connected to the contract and the contact is causally connected to the negligent misrepresentation. Finally, this damage was foreseeable and there are not remote. The court was not satisfied that the Rainbow would have entered into the contract in the absence of the misrepresentation, so the damages claimed by the Rainbow were predictable. Furthermore the appellant may compete that all its losses on the contract were caused by the negligent misrepresentation but if it is shown that the loss was caused by factors other than the misrepresentation, and then the chain of causation is broken down. Generally, the plaintiff establishes a prima facie case by proving losses resulting from the contract. But the defendant may demonstrate that the chain of causation was broken by. For instance that the appellant was acts in own, the acts of third parties, or other factors disparate to the circuitous misrepresentation. Tort responsibility is based on mistake, and losses not caused by the defendant’s fault cannot be charged to it. It is for the appellant in constricting to make appropriate allowance for contingency such as conditions. The plaintiff may also have claim against third parties who cause it loss. To strengthen, the plaintiffs’ losses may have been caused by the respondent in negligent misrepresentation, or other wrongful acts or omissions of the respondent, whether in negligence or breach of contract and the plaintiffs’ acts or errors, the acts of third parties, factors unrelated to the faulted either the plaintiffs or the defendant. Trial judge wrongly held that all the appellant contract losses must be certified to and made no findings with respect to the other potential, in spite of the fact that the defendant Canadian National Railway Company led verification on them. These findings must be made if fairness is to be done.