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8. In my opinion, the meaning for which the Railway Company contends cannot reasonably be attributed to the term "loss" either in the risk note, or in Section 72 and the kindred sections of the Railways Act, 1890.

9. In the course of the argument in Hearn v. L & S.W. Ry. Co. (1855) 10 Ex. 793, 799 in which case the question arose whether goods, the delivery of which had been delayed, were lost within the meaning of that term as used in the analogous provisions of the Carriers Act. 1830, Baron Martin put this question to counsel: "Suppose a person delivered to a porter at a railway station a casket of jewels, and in consequence of his refusal to forward it the casket remained for some time at the station, would that be a loss within the Act?" And Baron Alderson asked: "Suppose the goods were known by the carrier to exist, but were not delivered by him for a month, would that be a "loss" within the Act?" An affirmation that in such circumstances the goods have been "lost," surely, involves a distortion of the meaning of the word so extravagant as to approach an abuse of the English language. That judicial authority is not wanting in support of the construction of the term "loss" for which the Railway Company contends would appear to be due, if I may say so with great respect, to the fact that the intention of the Legislature in enacting Chapter VII of the Railways Act of 1890 has not always sufficiently been borne in mind. The object, and, in my opinion, the effect, of Section 72 was not to provide compensation for pecuniary losses suffered by the owners of goods consigned for conveyance to a Railway Company, but to lessen the burden of the obligation which prior to the passing of Section 72 had lain on Railway Companies as insurers of such goods.

10. In my opinion, the construction which Baron Parke put upon the term "loss" in Hearn v. L. & S.W. Ry. Co. (1855) 10 Ex. 793, 799 is correct, and the same interpretation should be given to the term in the risk note and in Section 72 of the Railways Act. Baron Parke, in giving the judgment of the Court, which was to the effect that "where goods which ought to be declared and are not declared are detained by a carrier without being lost by him, he is liable for such detention", observed: "The statute then proceeds to enact that no carrier shall be liable for the loss of, or any injury to, any of the enumerated articles. This does not mean the loss of the monies of the carrier, but the loss of the article itself, or injury to it. In ordinary parlance, this appears to mean the loss by the carrier of the articles committed to him, or injury to them, whilst in his care, not the loss sustained, by the owner by non-delivery of the article in due time or altogether, or the loss of the use of the article by him. By the term 'the injury' is clearly meant the injury to the article itself.... and the reason of the law must be considered as being to protect the carrier, not in all cases where the owner of the articles sustained a damage from the neglect of the carrier to carry, but in cases of a similar nature to those recited, where the chattel was either abstracted altogether or taken from the place where it ought to be, and was incapable of being delivered at the time it ought to be by reason of that sort of loss. We think this is the true construction of the clause, and the carrier is exempted only from being responsible for a loss by him of the particular articles named". The same interpretation was given to the term "loss" in Millen v. Brasch (1882) L.R. 10 Q.B.D. 142. The facts in that case were that on 13th November 1879 the plaintiff delivered to the defendants, who were carriers for hire from London to Rome, a trunk to be sent from London to Liverpool by rail, and thence to be shipped to Italy. Through the negligence of the defendants' servants the trunk was placed in a vessel bound for America, and was shipped to New York. The mistake was not discovered until l5th December 1879. The issue in the case was whether the trunk had been "lost" and Lindley L.J. in giving the judgment of the Court observed: "The result comes to this; if goods which ought to be declared and are not declared are lost, whether temporarily or permanently, the carrier is protected from liability for their loss and its consequences. But whether goods permanently lost are lost within the meaning of the Carriers Act, must depend upon whether they have been lost by the carrier as distinguished from lost to the owner: See Hearn v. L. & S.W. Ry. Co. (1855) 10 Ex. 793. 799 and this again, must depend, on the facts of each particular case. If the carrier temporarily loses the goods, and delivers them within a reasonable time after he discovers them, he will not be liable; but if he keeps them after he has recovered them, the Carriers Act will not protect him from such consequent breach of duty. The obligation on the part of the carrier to deliver the goods will remain or revive, and he will be responsible for future breaches of that obligation.... As we understand the facts, the plaintiff's trunk was shipped and sent to New York as Hambergers' case, and was incapable of being traced and found until the mistake in the substitution of one package for the other was discovered; and the carriers had lost possession of the trunk, and did not in fact know where it was or what had become of it. This was, in our opinion, a loss of the trunk by the carriers".