bound but authorised to carry out works, and in general derived some benefit therefrom, whether in the way of pecuniary profit or gratification of their philanthropic interests. But Government was bound in the administration of justice and for the peace and quietness of the realm to maintain prisons, court-houses, and lock-ups, and the police were bound to bring disorderly persons before the magistrates. The maintenance of prisons and lock-ups was not a source of revenue, but the discharge of an onerous and unpleasant duty incumbent on the Government of all civilised countries. He cited Hawley v. Steele, 6 Ch. Div. 521, as a distinct authority that acts which would be wrongful and actionable if done by private individuals are not necessarily actionable when done by a department of the Government for the benefit of the whole community. He did not regard the Claims against the Government Act as putting the Government in the same position as a private person, for this would amount to submitting to the control of a jury the exercise of various important functions of Government, such as the administration of military matters, of justice, the control and management of prisons, lunatic asylums, public schools, etc. Practically this would render the Government departments in these important matters helpless.

Significance of the Cases.-In both these cases we may note the anxiety of the Courts not to intrude upon the functions of the executive, and to leave control to Parliament, to which the executive are responsible. In America, the incapacity of Courts and juries to deal with matters of administrative determination has influenced the Courts in their ruling as to the liability of municipal bodies (see Mills v. City of Brooklyn, 32 N.Y. 489). Further, the decision that the immunities of the Crown in tort are not solely the consequence of the immunity from suit, may be compared with an analogous decision in regard to subordinate communities. It has sometimes been thought that the origin of the rule that no action will lie for injury received through the non-repair of highways was in the fact that the inhabitants were not a corporation and could not be sued. But in the leading case of Russell v. The Men of Devon, 1788, 2 T.R. 667, it is, as Mr. Beven (Negligence, i. 3) points out, sufficiently indicated that even if the technical difficulty were removed, sufficient reason exists in public inconvenience against giving the action.

With the growth of the activity of Government on the one hand, and the submission of the Crown to the jurisdiction of the Courts, we may expect a clearer enunciation of the relations of executive and subject in modern times than has been possible so long as the Crown enjoyed immunity from suit and the limitations upon the responsibility of officers often left the sole liability on some one who was not worth powder and shot.

66

INTERNATIONAL RAILWAY TRANSPORT.

[Contributed by G. G. PHILLIMORE, ESQ.]

Through" Contracts of Carriage. It seems curious that no step has up to the present been taken by British merchants to urge their Government to consider the question of its adhering to the International Railway Transport Convention of 1890, signed at Berne by Germany, Austria-Hungary, Belgium, France, Italy, Luxemburg, Holland, Russia, and Switzerland, and since acceded to by Denmark. The object of the Convention was to provide for "through" contracts of carriage of goods by railway from one signatory country to another by means of an international code of rules instead of the private arrangements existing between railway companies of different nations, such as those governing the relations of over a hundred railway administrations of Central and North-Western Europe in 1874, or the special ones between different Governments, such as that of 1881 between France, Germany, Denmark, Russia, and Austria, and that between France and Great Britain of 1871. The Convention was the result of conferences held on the invitation of the Swiss Government in 1878, 1881, 1886, and 1890, and in 1893 it was said that 66 per cent. of the continental railways were subject to it. It has been exhaustively explained in the Journal de Droit International Privé by MM. Poinsard and Lyon Caen (1892, 33 ff.; 1893, 465; 1894, 435, 641); and there have been numerous decisions on its provisions in the Courts of France, Germany, Austria, and Switzerland.

Its effect is, briefly, to constitute a "through" contract of carriage of goods (not persons) from one signatory party to another available by railway lines designated by the Governments of their respective countries, subject to uniform rules as to form of contract, description of goods, formalities at departure and arrival of goods, proof of loss, measure of damages for loss or damage, rights and duty of the consignor and consignee, liability of the carrying or part-carrying railway, charges of transport, limitation of actions and the relations of the railways inter se, on which matters the laws of the different countries through which the goods are carried are not the same. The railways so designated are bound to carry the goods on the terms of the Convention consigned to them conformably with it, unless they are goods reserved to the postal service or are excluded from the Convention by

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their great value or dangerous character or difficulty of transport, for which special arrangements can be made. No goods can be carried by them on an "international transit" under a "through contract" except under the Convention, and tariffs of associations or unions of railways, as well as of individual railways, must be conformable with it, and no tariffs are allowed in favour of individuals. The Convention leaves to the decision of the various municipal laws such points as (a) the right and duty of assessing and controlling the weight of the goods or the number of packages (7); (b) the verification of the description of the goods (ibid.); (c) when the delivery of the goods is considered complete (19); (d) the effect of the lien (gage) given to the railway (22); (e) the verification of the damage or loss of the goods (24); (f) what will interrupt the time for limitation of claims when it has begun to run (45).

Ascertainment of Liability. One of the great advantages given by the Convention is that the goods owner obtains a more effectual remedy against the railway carrier than he can by private contract, owing to through transit being governed by the same conditions in every country. Under a contract with a railway in this country for a through transit in England, the railway can make itself liable for the goods even when not under its control, as they are always subject to one system of law. In the case of a contract for through transit abroad as well as at home, the goods are subject to foreign law as well as English, and these may not be the same. If nothing is said as to which law is to apply, the intention of the parties has to be inferred, and the general rule of law, foreign as well as English, may be said to be that while the law of the country where the contract is made may govern it generally, yet as to incidents taking place in another country the law of that other country governs. An English railway company is hardly likely under these conditions to accept goods for through transit, say, to Vladivostock, for a consignee in Vladivostock who will pay for the transport only on receipt of the goods, and make itself responsible for the risks they run on the different lines conveying them to their destination as well as for complying with the different conditions imposed by the law of the various countries the goods pass through. In the case of loss or damage to them it might not know which line was responsible, and if it did know it might not be able to sue it under the foreign law. If the goods owner instead of trying a through contract made separate contracts with the separate lines for their transport, he would be in a similar difficulty. The Convention cuts the knot of these difficulties by making the railway which accepts the goods for carriage under an international transport liable for the execution of that transport throughout till delivery, and a similar obligation falls on every railway sharing in it. The goods owner can sue on the contract of carriage either the railway accepting the goods, or that which last received them, or that on whose line the damage was done, at his option, and he can counterclaim against any railway concerned in the act of carriage. The

railway is bound to deliver to the consignee on payment of the charges of transport, which fall on the consignee in the absence of express provision, but certain goods (perishable) can be charged for in advance (12), and the consignor can also charge the goods with the cost of reimbursement up to their full value, and if the railway deliver them to the consignee without obtaining payment of that reimbursement, they are liable to the consignor. The consignor has the control over the goods during their transit (15). The railway has a lien on the goods, and is responsible for the fulfilment of all duties required by customs, octroi, or police authorities in the transit.

Time Limitation for Claims.-A time of limitation for claims is fixed: a year for total or partial loss, damage to goods or delay in delivery, but where there has been fraud or gross negligence by the railway, three years (44, 45); and a special scale of damages for delay in delivery without proof of any actual damage, one-tenth of the transit charges for one-tenth of the delay, and also for the same case where declaration of interest in the delivery has been made, is provided (40). Full indemnity comprising damages and interest can be claimed where the damage is caused by the fraud or grave fault of the railway (41), and the railway is responsible for its agents and servants (29). A judgment pronounced in such cases where both parties have been represented or by default and made executory, can also be made executory in the other signatory States without going into the merits; and no security for costs can be demanded in actions brought on the contract of through transit (56). The Convention also provides for the rights of the various railways carrying goods on through transit inter se; any one receiving payment, whether on departure or arrival of the goods, must pay the others their shares, and the last one carrying the goods is liable for payment of the charges under the waybill if it delivers the goods without receiving payment, saving its own rights against the consignee. The claims of one railway against another arising out of a through transit cannot be attached when the debtor railway is domiciled in a different country from that of the creditor railway, except where the attachment is made under decree of a judicial authority of the country to which the creditor belongs; and the rolling stock and movable property of a railway are not attachable in a country other than that of the railway owning them, except in the case where the attachment is made under a decree of a judicial authority of the country to which the railway owning them belongs (23).

Right-over for Indemnity.-By Art. 47, where a railway has paid the indemnity fixed by the Convention it can recover it wholly from the railway actually to blame for the damage, or if several are to blame, each bears the damage caused by its fault; and if it cannot be proved by whose fault it was caused, all the railways concerned who cannot disprove their fault pay in proportion to the shares they would have had in the charges for transit. A central office is established at Berne for superintending the working of the Convention, receiving and giving in

formation, receiving applications for adherence from other Powers, and if required adjudicating on disputes between railways; and a railway refusing to pay its debts to another can be reported by the office to its Government. The Convention does not apply to the internal railway traffic of the signatory States, nor does it affect existing agreements between railways and their own Governments.

Sea Transit. So far as the United Kingdom is concerned, unless the term "lines of railways" includes sea transits which form part of our railway systems to the Continent, adherence to the Convention would be useless; but that this wider meaning is to be assigned to "railways" seems to be clearly the view of the parties to the Convention, Denmark designating the Danish State railways comprising the steamboat communications managed by them, Italy the Sicilian railway comprising the maritime line across the Straits of Messina, and the steamers on the Lake of Constance and the Rhine having also come under it. Considering the great importance which the new vast railway systems, such as the Siberian, which comes under the Convention, and our own projected Trans-African one, will exercise on trade, simplification of contracts of transit seems to be no less required in the interests of business than that of private international law. British railway companies may not be desirous of pressing for a change which may fetter to some extent their freedom of action; but such an enlargement of the scope of railway contracts would necessarily, it seems, produce greater freedom and volume of international trade of which they would share in the benefit. The Board of Trade might well consider whether British trade would not gain a material advantage by joining in the system, which seems to be so successful on the Continent.