BUGWANDAS Vs. IRRAWADDY FLOTILLA COMPANY

JUDGEMENT

(1.) THE question involved in this appeal is one which has given rise to a conflict of judicial opinion in India. In 1878 the High Court of Bombay held that the effect of the Indian Contract Act, 1872, was to relieve common carriers from the liability of insurers answerable for the goods entrusted to them "at all events," except in the case of loss or damage by the act of God or the Queen's enemies, and to make them responsible only for that amount of care which the Act requires of all bailees alike in the absence of special contract. In 1883 the same point was brought before the High Court of Calcutta. The case was referred to a Full Bench, and the Court came to the conclusion that the liability of common carriers was not, affected by the Act of 1872.

(2.) THEIR Lordships have now to determine which of these authorities is to be preferred. There is no other question in the case. It was admitted that the appeal must fail unless the decision of the High Court of Bombay can be supported.

(3.) THE preamble of the Act of 1865 recites that, "It is expedient not only to enable common carriers to limit their liability for loss of or damage to property delivered to them to be carried, but also to declare their liability for loss of or damage to such property occasioned by the negligence or criminal acts of themselves, their servants, or agents." The Act defines a common carrier as "a person, other than the Government, engaged in the business of transporting for hire property from place to place, by land or inland navigation, for all persons indiscriminately," and it includes under the term person "any association or body of persons, whether incorporated or not." Section 3 declares that no common carrier shall be liable for the loss of or damage to property delivered to him to be carried, exceeding in value 100 rupees and of the description contained in the schedule, unless the value and description thereof are declared. Section 4 authorizes every common carrier to require payment for the risk undertaken in carrying such property at such rate of charge as he may fix, provided that notice of a rate of charge higher than the ordinary rate is exhibited in the manner prescribed by the Act. Section 5 provides that in case of the loss of or damage to such property, the person entitled to recover in respect of such loss or damage shall also be entitled to recover any money actually paid in consideration of the risk. Section 6 provides that the liability of any common carrier for the loss of or damage to any property delivered to him to be carried, not being of the description contained in the schedule, shall not be deemed to be limited or affected by any public notice, but that any such carrier, not being the owner of a railroad or tramroad constructed under the provisions of Act XXII of 1863, may, by special contract, signed by the owner of the property to be carried, or some one on his behalf, limit his liability in respect of the same. Section 7 declares that the owner of such railroad or tramroad shall be liable for the loss of or damage to property delivered to him to be carried only when such loss or damage shall have been caused by negligence or a criminal act on his part, or on that of his agents or servants. Section 8 declares that, notwithstanding anything therein before contained, every common carrier shall be liable to the owner for loss of or damage to any property delivered to such carrier to be carried where such loss or damage shall have arisen from the negligence or criminal act of the carrier, or any of his agents or servants. Section 9 enacts that in any suit brought against a common carrier for the loss, damage, or non-delivery of goods entrusted to him for carriage, it shall not be necessary for the plaintiff to prove that such loss, damage, or non-delivery was owing to the negligence or criminal act of the carrier, his servants or agents. Section 10, the last section of the Act, is not material to the present inquiry. The schedule to the Act contains a list of articles of large value in small compass, corresponding with the list contained in the English Carriers' Act.