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of the goods was obvious and therefore known to the defendant company. If, therefore, that statute applies, the defendant company is liable. It was argued that it did not apply because of the contract which the defendant company set up as having been entered RICHELIEU into between them and the Commercial Travellers' Association, and & ONTARIO under the terms of which they say they received the goods in question,

I assume for the purpose of consideration-first, that this contract was a valid contract; that Mr. Sargent had authority from the Commercial Travellers' Association to make it or that having made it without express authority, they adopted it, and that the plaintiff Dixon and his co-plaintiffs, his employers, were bound by the terms of it. I assume further that he, having accepted the benefit of the contract, is not entitled to be freed from its burdens. And, so assuming, in order to construe the contract we look at its terms. The only limitation which the defendants have set up in that contract or provided for by that contract are as to the amount of baggage to be carried free, and as to the risk to be incurred for casualties.

The limitation as to the amount of baggage is as to the quantity to be carried free. The word "baggage" has been argued to mean personal baggage, and has also been argued to mean commercial travellers' baggage. But I must assume in order to give effect to the finding, and on the facts here, that "commercial traveller's baggage" is a somewhat synonymous term, or is a synonymous term with merchandise; that it covers goods which a commercial traveller carries, not as personal baggage.

Strictly, therefore, the terms of the contract as to limitation do not cover commercial travellers' baggage or merchandise. Assume, however, that the term "baggage" does cover the goods in question. Then the defendant company has provided that it shall not be bound to carry more than 300 pounds free; it does not say that it shall not carry or will not carry more than 300 pounds, or that a traveller tendering himself with more than 300 pounds will be unable to have the whole amount carried. The contrary seems to be the fact, apart from any principle of law applying to any carriers, because we find from the custom of the boat, as given in evidence by the baggagemaster, that he has no means provided by which to determine whether baggage equals or exceeds 300 pounds; and looking at the boxes in question he was unable to say whether, when filled, their contents would exceed 300 pounds, and in fact there is no express testimony, save the conjecture possibly of the plaintiff Dixon, that the three boxes which are chiefly in question did weigh more than 300 pounds.

I think the contract must be read, even assuming the word "baggage" to cover the goods in question, that if the plaintiff Dixon, a commercial traveller, tendered himself for carriage on the contract with more than 300 pounds of baggage, the company were not bound' to carry more than 300 pounds free, and for the excess might charge

NAV. Co.

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DIXON

v.

reasonable rates. If they chose to carry more than 300 pounds, and to carry it free, that was their own concern. I think that they have tacitly abandoned the enforcement of that provision, and possibly, RICHELIEU unless the excess were very great, would in no case take notice of & ONTARIO the excess. However that may be, I think that the word "baggage" NAV. Co. does not cover the goods in question, and I think if it did it would not limit the defendant company's liability for such baggage as they may carry in excess of 300 pounds and carry free. I do not take the word "free" as synonymous with the expression "without hire or reward." I think that the word "free" there, must mean that if the commercial traveller tender himself with 300 pounds of baggage and pay his fare from say Montreal to Toronto, $8, that they will charge him nothing in excess for the baggage unless the baggage exceeds 300 pounds. It seems to me that the contract is one to carry him and 300 pounds of baggage for the price named, and that the 300 pounds are not carried without hire or reward, and if the company choose to carry more than 300 pounds free, that the word "free" will not make them gratuitous bailees.

Further consideration is required as to the expression "casualties." It has been argued on behalf of the defendant company that the plaintiff Dixon and his co-plaintiffs, the owners of the goods, have by this contract freed the company from all responsibility for injury or damage from neglect. It is therefore necessary to see in what light contracts of affreightment and clauses limiting liability have been construed by the courts in England.

The leading case, well known to counsel, is that of Philips v. Clark (a), which, with the other cases I have referred to, may be found collected in the last edition of Addison on Contracts, page 496. The general rule of law is expressed in the text, and I think accurately expressed. A stipulation in a bill of lading that the shipowner is not to be accountable for leakage or breakage absolves him from responsibility for leakage and breakage the result of mere accident, where no blame is imputable, or for leakage, the result of bad stowage where the shippers have themselves superintended the stowage, but does not exempt him from the obligation which the law imposes upon him of taking reasonable care of the goods intrusted to him to be carried. And an exception in a bill of lading of "accidents or damage of the seas, rivers and steam navigation of whatever nature or kind soever does not protect the shipowner from liability for damage arising from a collision caused by gross negligence of his ship's master and crew."

Reference to the case will, I think, discover that the word "gross" is dropped from use or thought in the discussion of the matter; and the term "gross negligence," I think, may be replaced by the term "negligence" in the text without affecting the accuracy of the reported decision. "An exception of loss by thieves means, primâ facie, persons outside the ship and not belonging to it."

(a) 2 C.B.N.S. 156.

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And in the case of Lyon v. Mells (a) —I am citing from the text of Lord Ellenborough's observations: "We cannot construe a contract for the carriage of goods between the owners of vessels carrying goods for hire and the persons putting the goods on board so as to RICHELIEU make the owners say 'we will not be answerable at all for any loss & ONTARIO occasioned by our own misconduct,' for this would in effect be saying NAV. Co. 'we will be at liberty to receive your goods on board a vessel, however leaky; we will not be bound to provide a crew equal to the navigation of her; and if through these defaults the goods are lost we will pay nothing."

We find, also, from the cases referred to in the text, that from losses occasioned by the act of God, the Queen's enemies, and the dangers and the perils of the sea and of navigation, a carrier by water is, and always has been, exempt by common law; but he is not exempt, nor does the exception in the bill of lading or other contract of affreightment exempt him, from accidents occasioned by his own negligence and misconduct or want of skill, or the negligence, misconduct or want of skill of the persons whom he has entrusted with the management of the vessel. I find the word "accident" is used in some dictionaries as a synonym for the word "casualty."

If we should read in this contract the word "accident" or "accidents" as replacing the word "casualties," we have authority distinctly in point that the contract must be read as exempting the carrier from damage for accidents happening without negligence.

I think, having reference to the cases mentioned, and also the American cases which are referred to in the foot-note of Phillips v. Clark (b), that I must read this contract as not freeing the defendant company from damage occasioned by casualties which were the result of negligence on the part of the company.

I refer particularly to the following cases: Phillips v. Clark(b); Ohrloff v. Briscall (c); Czech v. General Steam Navigation Co.(d); Lloyd v. The General Iron Screw Collier Co. (e).

I think, therefore, as there is nothing in the contract to limit the liability of the defendant company, and they have been found guilty of negligence, they must be held responsible by the findings of the jury.

There must be a reference to ascertain the amount of the damage; and the plaintiffs will have their costs. Unless the parties can agree upon the referees, I shall within a few days name them myself.

From this judgment an appeal was taken to the Queen's Bench Division, when the judgment below was affirmed. (unreported), the only reasons delivered were the following:

(a) 5 East 428.

(c) L.R. 1 P.C. 231.

(b) 2 C.B.N.S. 156.

(d) L.R. 3 C.P. 14.

(e) 3 H. & C. 284.

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DIXON

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WILSON C.J.:-I do not consider the charge of negligence, because there was certainly evidence of it, and the jury have expressly found the charge against the defendants' employees who were in RICHELIEU charge of the boat. The evidence shews the plaintiff was, at the & ONTARIO time of the accident, and had been for years, and still is a member NAV. Co. of the Commercial Travellers' Association of Canada, and that he was provided with a ticket as such member issued by the society to shew, on production, that he was entitled "to all the rights and privileges which the association may enjoy with railroads, steamboats," etc. On the back of that ticket there was printed at the time of its issue on the 5th of January, 1886, a declaration signed by Mr. Dixon, the plaintiff, that in consideration of the privileges granted by the different railways to him as a commercial traveller, he agreed to the conditions thereon stated as endorsed upon the railway company's tickets, and to be bound thereby.

The conditions must not be stated, as they are not the same which the association had made with the defendants. The ticket is referred to because on its face it states the members of the association are entitled to all the privileges which the association may enjoy with railroads, steamboats, etc., and because it requires the member using it "to present it when purchasing ticket, and to conductor when required."

At the time of the accident the association had an arrangement with the defendants that fares which members of the association and the wives of members when travelling with their husbands would be charged would be 20 per cent. under the regular fares with an allowance of 300 pounds of baggage free, "but this baggage must be at the owner's risk against all casualties," and members will be required to produce their tickets of membership.

The arrangement that was made by Mr. Sargent, the secretary of the association, was by the direction of the board of management with the defendants. Mr. Sargent reported that arrangement as follows: "When in Montreal your secretary called on Mr. Labelle, general manager of the Richelieu & Ontario Line of steamers and arranged for rate for 1886-20 per cent. off to members and their wives and 300 pounds of baggage free." The minute of last meeting says: "That the secretary's report referring to railway privileges be read, received and reported." That was at a meeting of the board in August, 1885. The like arrangement subsisted in 1886, and was renewed in 1887. It is not mentioned in the report of the secretary of the association which is the memorandum of the arrangement made for 1886, that "the baggage was to be at the owner's risk against all casualties," as contained in the letter of the 28th of May, 1885, of Mr. Milloy, one of the officers of the defendants' company, and which letter was the agreement for 1885. It may be that the terms for 1885 were the like terms for 1886, but it does not appear to be so in the report to or on the minutes of the board of management of the association. Dixon, the plaintiff, said he handed his

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certificate of membership to the purser of the boat and he got his passage ticket for $8 on that certificate, and the ticket he got has on it 158 T., the figures being the number of his association's certificate, and the T. is for Toronto. The plaintiff also said the association RICHELIEU must have had some arrangement with the defendants or he would & ONTARIO not have got a commercial travellers' ticket from them. He under- NAV. Co. stood there was some arrangement, but what it was he did not know. I cannot make out that there was any bargain about the baggage of the members of the association being at their own risk for 1886. If there was no such bargain, then the only question about the baggage is, whether any question, and if so what that question is, which arises about its being checked as ordinary personal baggage instead of being specifically put on board and delivered to be carried as merchandise.

If there was a contract that the baggage was to be carried at the risk of the owner, it would, I think, apply only to the 300 pounds that were to be carried free and not to the whole of the baggage. Then as to the goods that were carried, the evidence shews plainly that the kind of trunks that Dixon had with him were not such trunks as personal or ordinary travellers' baggage is carried in. They were plainly commercial travellers' baggage, and their baggage consists in such trunks of merchandise.

The plaintiff Dixon said he never paid for any excess of baggage or merchandise upon boats, and he did not know what was allowed. I agree with the learned judge who tried the case, that the plaintiff must be presumed to have knowledge of the terms of the arrangement between the association and the defendants, of which he was taking and claiming as of right the benefit, and that he knew therefore he was not entitled to have more than 300 pounds carried free; but that is of little consequence, as there is no question about free or not free, so long as the other condition relating to the free part, at any rate, being at the risk of the owner, is not a part of the agreement between the association and the defendants, as it appears not to be according to the report of the secretary of the association to the board of management, and the minute of the same on the association books; so that members of the assocation cannot be said, whatever the facts may be, to be presumed to have had knowledge that their baggage-300 pounds of it at any rate-is at their own risk, unless actual knowledge of the fact, if it be a fact, is brought home to the member that there is such an unwritten condition in truth in the agreement of the association in their favour.

If there was negligence on the part of the defendants, and that I think has been not improperly found against them, and if the trunks in question were delivered to them without fraud as trunks of merchandise, as I think they were, for they were the ordinary commercial travellers' baggage-trunks used for the carriage of their merchandise, and not for the carriage of ordinary personal baggage; and if the defendants, by their employees, received the trunks knowing them