ARE THE RAILWAYS COMMON CARRIERS?
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aders know, that the railways are no longer common carriers.
The repeal of the Act may be considered by many to have been ill-conceived and when closely examined it does not appear to reflect any great credit on the then Minister, Mr. Marples. In fact, had the NUR examined the Act they could well have saved themselves the trouble of the threeyear Freightliner terminal ban. This ban imposed by the union and in some quarters considered to have been encouraged by both the Ministry and the Board, because of their delay in tackling the problem, closed terminals to private hauliers. Surety, the lulu= were living in the past although they claimed to be thinking of the future. The fact that the Act releases the Board from its obligation means that it does not have to accept any traffic offered to it and the NUR and BRB could have agreed on "unsuitable traffic". It will now be apparent that not only are the railways not common carriers, the Freightliner terminals are not really open.
Same Category
The London International Freight Terminal at Stratford comes into precisely the same category as the Freightliner terminals. Although shipping and forwarding agents have contracted to occupy space at the terminal and although they intend to pass traffic to the railways, the railways need not accept it. Will the Board take such an action? Maybe not, but the 1962 Act permits it to do so.
There we have it—the open terminals, international terminals and BR handling all types of goods, indeed going out and looking for all types of goods and building containers to carry all types of goods. In addition, the Minister has authorized BRB to carry goods throughout by road in certain circumstances. Certainly it is not a common carrier in law—but in practice it appears to be.
There would seem to be a case for repealing the relevant sections of the Transport Act 1962 to clarify the position.
The 1962 Act does more than relieve the railways of obligations as a common carrier. Section 43(4) reads:
"The Boards shall not be subject to the enactments listed in the Eighth Schedule to this Act which—
(a) impose a duty to afford reasonable services and facilities; (b) regulate liability for negligence in the carriage of goods; (c) authorize the revision of railway freight charges on complaint by competitors or traders."
These sub-sections of Section 43 refer to the Railways Clauses Consolidation Act 1845 which covers the railways' duty to afford facilities for the connection of private sidings. Should any enterprising haulier, clearing agent or groupage service request the facilities of a private siding to pack railway containers the Board need not supply the facility. You may feel that it would be foolish to refuse as such a request would have brought additional rail traffic. However, is it not the case that if the private concern could not handle the traffic, British Railways could offer to handle it direct? By proper use of this clause the Railways Board could ensure that its containers were packed only at its sidings and would capture more road traffic.
A further Act which has been affected by Section 43(4) is the Railway and Canal Traffic Act 1854, Section 7. This relieves the Railway and British Waterways Board of liability for negligence in carriage by railway and canal, in the terms of that Act. The 1962 Act was probably meant to tidy up the number of enactments which controlled railway traffic but it has left a few loopholes.
understand that many shipping and forwarding agents—not only at Stratford— who consign goods by rail, refuse to use railway labour not because they consider it to be totally unsuitable but because they believe that the repeal of Section 7 of the Act of 1953 has given the BRB the right to be negligent. There is no suggestion here that this is so, but then I am not a trader.
At recent Freightliner cases there was a veil of secrecy over BR's freight rate structure. The Board refused to divulge details of how its rates were constructed. "By negotiation with the customer" was the general answer when BR was asked how a rate was arrived at. I asked one BRB official if he thought it correct that the Board should make a secret of its rates. He pointed to the 1962 Act which repeals Section 7 of the Transport Act 1953. This section dealt with the protection of traders against unreasonable or unfair treatment as to freight charges on railways. In his opinion, at least, the BRB had been relieved of any obligation to divulge its charges.
Not a Common Carrier
The 1962 Act has been called by some the "Railway Emancipation Act", but you may think it goes too far in its effort to release the Board from its previous obligations.
The BRB is no longer a common carrier. It can, like any private haulier, refuse to carry any goods. However, if it is not a common carrier it is bound to some degree by the Road Traffic Act 1960, Section 173(6): "In considering whether existing transport facilities are to be treated as suitable, the Licensing Authority shall have regard to the relative efficiency, reliability and adequacy of the existing facilities ... and to all other relevant considerations including to such extent as may in all the circumstances appear proper, the charges made and to be made in respect of these facilities respectively".
On the one hand the Board claims the right of objection in terms of the 1960 Act and on the other the protection of the 1962 Act. The British Railways Board is a haulier like any other and should be as free or restricted as any other haulier. The terms of the 1962 Act are in too many cases a contradiction of the Road Traffic Act 1960.