Odger's English Common Law

,646 TORTS ARISING OUT OF CONTRACTS.
he was held to have consented to' the conditions set out in it
and then the notice had the effect of limiting the common
law liability of the carrier, but even in this case the carrier
was not protected if the loss was occasioned by any wilful
misconduct or gross negligence on his part j for this was
held not to be within the scope of the notice or within the
intention of the parties. 1 And, of course, if the carrier was
guilty of any fraud which affected the contract, the customer
could rescind it. 2
If it was clear that the customer was never aware of the
notice, he was not bound by its terms. But if the customer
was aware that a notice had been given limiting the liability
of the carrier and did not take the trouble to read it, he was
held to have assented to its terms. Hence it became the
custom for the carrier merely to post up a printed notice in
his office in a place where it would catch the eye of those who
entered. 3 But these notices the public often did not see or
did not read, and therefore the Carriers Act, 1830, 4 enacted
that " No public notice shall be deemed in law to limit the
liability of a common carrier." This Act applies to all
common carriers of goods by land for hire in the United
Kingdom, and to them alone.
The next method, which carriers adopted to limit their
liability, was to print conditions on the piece of paper which
they handed to the consignor when the contract of carriage
was made. This piece of paper the consignor was not
required to sign. Further, the conditions were often in small
print on the back of the paper and escaped the notice of the
consignor, who regarded the paper merely as a voucher for
the goods (as is still the case where goods are deposited
infthe cloak-room at a railway station). Nevertheless,
if the carrier had taken reasonable steps to bring the
1 A loss of goods by the felony of the carrier's servant would nob necessarily
have resulted from gross negligence so as to exclude the carrier from the protection
afforded by his notice. See Butt v. G. W.. By. Co. (1851), 11 C. B. 140, explained
in Metcalfe v. L. B. $ S. O. By. Co. (1858), 4 C. B. N. S. at pp. 309, 310 ; and
Marriott v. Teoward Bros., [1909] 2 K. B. 987.
2 See Clough v. L. $ N. W. By. Co. (1871), L. R. 7 Ex. 25 ; cited with approval
in the judgment of the Court in Morrison v. Universal Marine Insurance 4 Co. (1873).
L. R. 8 Ex. at p. 203.
3 Watkins v. Bymill (1883), 10 Q. B. O. 178.
i 11 Geo. IV. & 1 Will IV. c. 68, s. 4 ; but see s. 1, post, p. 648.
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