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Judgment
This second appeal is by the Plaintiffs. The suit out of which it arises was instituted by them before the Cochin District Munsiff''s Court for recovering the value of articles alleged to have been short-delivered out of a consignment of goods shipped by them from Bombay to Cochin in a Steamer belonging to defandant 1 company. Defendant 2 is their (lst Defendant''s) local Steamer Agent. The Plaintiffs-Appellants constitute a limited company doing business in Mattancherry. Cochin and they had a branch at Bombay. On 81-10-1944 under a Bill of Lading of even date they shipped from Bombay to Cochin 61 packages of cargo consisting of 40 cases of Lemon Grass Oil, 6 drums of Chaulmoogra Oil, 6 drums of Margosa Oil and 9 bags of betel nuts by Defendant l Company''s Steamer Kalmar sand. The Bill of Lading opens with the statement that the goods were shipped in apparent good order and condition, but when the steamer arrived in the Cochin Port on 4-11-1944 it was found that a part of the Plaintiffs'' cargo was damaged. The boat-note issued by the Ship''s Officer to Defendant 2 when discharging the cargo at the Cochin Port shows that, Defendant 2 took delivery of the goods from the ship and stored them in his go down at Mattancherry, When the Plaintiffs found that the goods were damaged they declined to take delivery of the same and arranged with the Lloyd''s agents to have a survey conducted. After the survey by the Lloyds'' agents, the Plaintiffs took delivery of the goods and on receipt of the report of the survey they called upon the Defendants to make good the loss disclosed by the report. The survey report showed that there was considerable shortage of Lemon Grass, Margosa and Chaulmoogra oils. The total loss was estimated at Rs. 977-4-1 and the Defendants were called upon to pay that amount together with interest thereon from the date the steamer arrived in Cochin Port, and the surveyor''s fee Rs. 15. The Defendants repudiated their liability for the claim made on them and pointed out that under the term3 of the Bill of Lading there was no liability for Defendant 1 company to answer for the loss, if any, sustained by the Plaintiffs and that as the goods on their arrival at Cochin were in the same condition as they were when delivered to the Plaintiffs, Defendant a cannot in any event be made liable. Soon after this repudiation the Plaintiffs brought the suit giving rise to this second appeal to recover from Defendants 1 and 2 Rs. 1026-11.1 together with future interest and costs. Both the Defendants resisted the suit on the grounds mentioned in their respective replies to the Plaintiffs'' letters demanding payment of the amounts by them. The defence raised found favour with the trial Court and that Court dismissed the Plaintiffs'' suit with costs. The Munsiff''a decision was confirmed by the learned Additional District Judge, Anjikaimal, before whom the Plaintiffs'' appeal against it came up for hearing, The Plaintiffs have hence preferred this second appeal before this Court.
That the goods did not arrive in Cochin Port in the condition in which they were ship, ped at Bombay is fairly clear on the evidence on the record and that fact was not disputed either. The Lloyds''s report found that there was ''shortage due to leakage. The report further states that at the time of the survey some drums and tins were leaking and, some empty and that the planks of some cases were broken. The report attributes these conditions to the tins being ''dented, holed and/or soldering given way and the drums being ''dented and opened at the rims'' and states that these were ''probably due to handling during transit. In the Bill of Lading the weight or measurement of the several packages� is noted in the column headed "Said to weigh or measure" and the Lloyds'' surveyor estimates the losses due to leakage on the basis of the difference between the weight or measurement given in the said column of the Bill of Lading and the weight or measurement found at the time of the survey. Among the reasons which the Courts below give to exempt Defendant 1 company from liability for the value of the goods thus found short is that the Bill of Lading contains sufficient clauses to exempt the carrier from liability for the loss. Clauses 1 and 2 among the 37 printed clauses and two stamped clauses or endorsements are relied on in this behalf. The printed clauses are Clauses 1 and 2 and they read as follows :
(1) Weight, contents and value when shipped unknown.
(2) The Company shall not be liable for loss, damage or delay directly or indirectly resulting from any of the following causes or perils however, occasioned; viz., act of God, King''s enemies; piracy; robbery, theft or pilferage with or without violence on board or elsewhere, and whether by person in the service of their Company or not; arrests and restraints of princes, rulers or people; riots and civil commotions, strikes, lookouts or other labour disturbances barratry, jettison, collision, fire, breakage or leakage; vermin; sweat; rust; temperature of holds; climate; rain; injurious effect of other goods, whether by contact or otherwise, however; perils, dangers and accidents of sea, rivers or navigations; unseaworthiness ; unfitness or defect of any kind in hull machinery tackle equipment, or appurtenances at the commencement or any stage of the voyage (provided reasonable means have been taken by the company to the Port of Shipment to prevent same) any act, neglect, or default whatsoever of pilot, master, officers, matins engineers, stevedore or other servants or agents of whatsoever of the Company on board or elsewhere in the management, navigation or otherwise of the steamer or of any other steamer belonging to the Company, or in the loading, stowing, carriage, unloading or delivery of the cargo.
The stamped clauses are : "On Deck shipper''s risk". "S. N. R. for breakage and leakage". The letters S. N. R. stand for the words ''Steamer not responsible''.
In second appeal the learned Counsel for the Appellant readily conceded that if the above clauses or conditions of the Bill of Lading are good or valid in law the appeal must fail. His contention, however, was that a carrier of goods by sea cannot reduce his liability by contract beyond the limit fixed by Section 151, Indian Contract Act (Section 104, Cochin Contract Act) and that, therefore, those clauses in the Bill of Lading exempting the company, Defendant l, from liability for negligence or reducing the limit prescribed by that section are void. The answer to this must depend on whether a contract of the kind we have before us in this case for carriage of goods by sea is governed by the provisions of the Contract Act or by any other law. Admittedly neither the Carriers Act III [3] of 1865 (Cochin Act XVI [16] of 1112) or the Carriage of Goods by Sea Act, XXVI [26] of 1925 (Cochin Act LIX [59] of 1112) would apply to the suit contract. The former Act relates to the business of transporting for hire property from place to place, by land or inland navigation while the definition of "goods" in Art. 1 of the Schedule to the latter Act exclude cargo which by the contract of carriage is stated as being carried on deck and is so carried. The argument of the learned Counsel for the Appellants is that the provisions of chap. IX of the Indian Contract Act headed "of Bailment" would govern a contract made in India to carry goods by sea on the deck of a ship and that as it is settled law that the bailed cannot contract himself out of the minimum responsibility prescribed there under the company, Defendant 1 must be held responsible for the logs sustained by the Appellants unless they establish that the damage caused to the Appellants" goods was in spite of their exercising the necessary care and prudence. The plaint goes to the .extent of attributing the damage caused as due to culpable negligence on the part of Defendant 1 company''s agents and or servants in the handing, loading and unloading or other operations conducted while. The goods were in their custody and ''control. The Respondents in their reply besides stating that fee damage was due to rough weather beyond the normal also contended that the English Common Law rule permitting a comman carrier to protect himself by express contract from liability for the negligence of himself and his servants is applicable to a contract in India to carry goods by sea, on the deck of a ship and that therefore the various clauses in the Bill of Lading referred to above are valid and binding on the Appellants. Both the learned Munsiff and the learned appellate Judge accept this view point and non-suited the Plaintiffs.
Had the findings of those Courts on the questions whether the company, Defendant 1, bad in carrying the Plaintiffs'' goods exercised that ears which a man of ordinary prudence would, under similar circumstances, take of his own goods or whether there has been negligence on the part of the company Defendant 1, or their agents or servants been to our satisfaction who may perhaps not have had to discuss or decide the Question of law debated at length at the Bar whether the English Common Law rule referred to above or the provisions of the chapter on bailment in the Contract Act should be applied to this case. The trial Co art has no doubt recorded a finding that the company, Defendant 1, had taken the necessary care and precaution and that they wore not at all negligent. We have, however, our own doubts whether that Court''s appreciation of the evidence is correct or its view as to the incidents of the onus of proof is proper. As for the lower appellate Court it is very difficult to make out any definite finding on these matters from its judgment. Its inclination would, however, appear to have been one of agreement with the findings of the trial Court. If the finding of the Courts below on the above questions were clear and in a form acceptable to us it would have made no difference to the result 1 what law applied to the case. But 8,3 matters Bland at present we have to decide what the law to be applied is.
It may look anomalous that it should be contended on behalf of the shipper that the liability of the Steamship Company carrying goods by sea (deck cargo) is only that prescribed by the Contract Act and not that of an insurer as enjoined by the English Common Law rules relating to common carriers and the carrier should contend in the opposite way. The anomaly is, however, only on the surface. While under the English Common Law applicable to common carriers, the common carrier can enter into any contract so as to protect himself (only he should do so in dear, definite and unambiguous words) the Contract Act does not permit a bailee to contract himself out of the minimum responsibility prescribed by the Act.
For a decision whether the provisions of the Contract Act or the English Common Law rules relating to common carriers should govern this case a few facts and certain salient rules of the law relating to contracts have to be borne in mind. This contract of affreightment was made in Bombay by the Plaintiffs who through their Bombay branch ware doing business in that city with Defendant l Steamship Company which has its Head Office at Bombay. The contract is to carry goods from Bombay to Cochin and to deliver the same to the Plaintiffs at the latter place. The contract was, therefore, made in one jurisdiction and the main or the principal part of the performance thereof was to take place in another jurisdiction. The proper law of a contract of affreightment is the law by which the parties intended that their contract should be governed. See Indian Contract Act, Pollock and Mulla (Edn. 7, p. 492). This accords with the view expressed in Dicey''s Conflict of Laws. Rule 147 in that book (Edn. 6, p. 665) states that the validity, interpretation and effect of a contract of affreightment are governed by the proper law of the contract. In E. 136 (p. 579) it is stated that ''the proper law of a contract'' means the law to which the parties intended or may fairly be presumed to have intended, to submit themselves. Sub rule l (p. 681) to the above rule states that when the intention of the parties to a contract, as to the law governing the contract, is expressed in words, this expressed intention determines the proper law of the contract. The Bill of Lading in this cave states in Clause 20 thereto as follows:
When goods are consigned from a pott in British India to a Port outside British India, or whoa goods ate consigned from a Port outside British India to a Port within British India all suits of whatsoever kind or nature in respect of such goods shall be filed in British Courts only.
The term ''British Court'' occurring in the above clause should with reference to this particular contract be understood as referring to Courts established in what was then British India. Clause 31 of the Bill of Lading expressly states that:
All the terms, provisions and conditions of the Indian Carriage of Goode by Sea Act 1925 and the Schedule thereto are to apply to the contract contained in the Bill of Lading and the Company are to be entitled to the benefit of privileges, rights and immunities contained in such Act, and the schedule thereto as if the same were herein specifically set out. If anything herein contained be inconsistent with the said provisions it shall be to the extent of such inconsistency and no further be null and void. It is hereby expressly further agreed in pursuance of the provisions of Article 7 of Schedule to the said Act that the carrier''s liability, prior to the loading on, and subsequent to the die barge from the ship, shall be governed by the conditions and exceptions of this Bill of Lading.
From these two clauses we can with confidence state that the parties to the suit contract intended that it should be governed by the law prevailing in what was then British India. That that is the only interpretation possible would be clear from illus. 2, 4 and 6 on page 692 in Dicey''s Conflict of Laws. Illustration 3 is the case in Hamlyn v. Tallisker Distillery (1894) A. c 202 : 71 L. T. 1 and that illustration reads as follows:
X and A enter into a contract in London which is to be performed, except as to the arbitration clause, in Scotland. It Is an express term of the contract that any dispute arising cut of it shall be settled by arbitration by two members of the London Corn Exchange in the usual way. English law is the proper law of the Contract.
In that case at page 208 of the report Lord Hershal L. C. has said :
Now in the present case it appears to me that the language of the arbitration clause indicates very clearly that the parties intended that the rights under that clause should be determined according to the law of England. As I have said, the contract was made there; one of the parties was residing there. Where under such circumstances the parties agree that any dispute arising out of their contract shall be ''settled by arbitration by two members of the London Corn Exchange, or their umpire, in the usual way'' it seems to me that they have indicated as clearly as it is possible their intention that that particular stipulation, which is a part of the contract between then, shall be interpreted according to and governed by the law, not of Scotland, but of England, and I am aware of nothing which stands in the way of the intention of the parties, thus Indicated by the contract, they entered into, being carried into effect. As I have already pointed out, the contract with reference to arbitration would have been absolutely null and void if it were to be governed by the law of Scotland. That can�t have been the intention of the parties; it is not reasonable to attribute that intention to them if the contract may be otherwise construed; and for the reasons which I have given, I see no difficulty whatever in construing the language used as an indication that the contract or that term of it, was to be governed and regulated by the law of England.
At p. 212 of the report Lord Watson said :
....the clause of reference is expressed in terms which clearly indicate that the parties had in contemplation and agreed that it should be interpreted according to the rules of English law. If they had stipulate d that all disputes arising out of the contract were to be decided in the Court of Session, I should have been of opinion that they bad in view the principles of Scotch Law, and meant that their mutual stipulations should be ''construed according to these principles. And, to my mind, their selection from the membership of a commercial body in London of a conventional tribunal which is to act ''in the usual way'', or, in other words, in the manner which is customary in London, indicates, not less conclusively, that, in agreeing to such. arbitration they were contracting with reference to the law of England.
It is necessary to quote the other illustrations here. Read in the light of Lord Watson''s views Clause 20 of the Bill of Lading makes it abundantly dear that the parties to this contract intended it to be governed by the law obtaining in Bombay or other parts of British India.
From the above discussion or references it should not be inferred that that the Appellants contended, or that we think, that the law in Cochin relating to common carriers not governed by the provisions of the Carriers Act or the Railways Act or the Carriage of Goods by Sea Act, is any the different from what obtained in Bombay or in other parts of the erstwhile British India. What Mr. M.S. Menon, the learned Counsel for the Appellants contended was that on a proper examination of the different Indian or Cochin Statutes relating to common carriers and the provisions of the Contract Act it would be found that after the respective dates on which the Contract Act was made law in India and in Cochin, contracts of affreightment not governed by any special statutes relating to the same were, and would still be, governed by the provisions of the Contract Act and not by the English Common Law rules relating to common carriers which no doubt must be taken to have been the law in Cochin as elsewhere in India before the intervention of Statute law. Decided cases in the various Indian High Courts have, however, authoritatively laid down that the duties and liabilities of a common carrier are governed in India by the principles of the English Common law on that subject except where they have been departed from by the Carriers Act or the Railways At or the Carriage of Goods by Sea Act and that notwithstanding some general expressions in the chapter on bailments, a common carrier''s responsibility is not within the Indian Contract Act of 1872. Decisions laying down this rule will presently be referred to, but just now we refer to this to point out that when the parties to the suit contract had agreed to be bound by the law obtaining in Bombay or elsewhere in British India it is not open to us here to investigate and decide for ourselves what that law is. Our duty is to ascertain what the law has been expounded to be by the Indian High Courts and apply the same to the decision of the case before us.
We now proceed to refer to certain decided cases dealing with the above aspect. In English and Empire Digest, Vol. XI under the heading "application of Foreign law by Court" on p. 307 in footnote (o), it is stated thus :
ln applying the law of a foreign State, the construction shown by the evidence to be placed upon the provision of its statutes by the Courts of that state must be given effect to, The interpretation cannot depend on the view taken of it by the domestic Court : Allen v. Standard Trusts (1919) 3 W. W. R. 974
In Madhavan Nayar v. Erechan Nayar 16 KER L. B. 123, while repelling the argument that the Cochin Court should enquire for itself that law should be applied to the Cochin acquisitions (landed property) of a junior member of a British Malabar Tarwad than follow the law as laid down by the Madra3 High Court Varugis J. (as he then was) quoted the above extract with approval and himself observed as follows at p. 129 of the report :
This subtle application, if I may so call it, of the lex loc may perhaps be described more aptly than elegantly as making foreign law at home instead of importing it from its own country. This is a business not sanctioned by any authority known to me. Such authority as there is, is against it.
The quotation from the English and Empire Digest follows these observations and the learned Judge then refers to a Bombay decision reported in Mahomed Haji Abu v. Kkatubai 43 Bom. 647 : AIR 1918 Bom. 39 and then proceeded to state thus:
Indeed the matter admits of little doubt, for, when International Law speaks of foreign law it means authoritative foreign law, that is, either statute law or the law authoritatively laid down by the duly constituted Courts of the foreign Stale Law is sometimes used as synonymous with the ''sources of law.'' This is quite legitimate in relation to matters not passed upon by the Courts having authority and not covered by statute. But in connection with a point expressly decided by a foreign Court, the distinction between law and the sources of law must be respected.
The following observations of Macleod J. (as he then was) at p. 681 of the Bombay decision now named would also seem to be apposite here;
If the Pore bunder Courts have decided that the particular custom exists, then there is a rule of decision and with all due respect to the learned Judge it is not open to us to question whether the Porebunder Courts were right or wrong, for then our conclusion would be not what the law of Porebunder is but what we think it ought to be.
In placing reliance upon Varugis J.''s views in Madhavan Nayar v. Erechan Nayar 16 KER L. R. 123, we are not unmindful that the learned Judge was in the minority in that case. The majority opinion turned on the existence of a conflict between the Madras High Court on the one hand and the Cochin Chief Court on the other as to the rule of devolution to the self acquired properties of a junior member (SIC) deliberate departure the Cochin Chief Court had made in previous cases from the Madras view and but for its opinion that the Madras view did not correctly interpret the law, the Madras rule of devolution would have had to be applied to the Cochin acquisitions of the deceased owner. Narayana Menon J., the other learned Judge points out that when there is no positive rule of its own a domestic Court can as a rule of equity and good conscience adopt the exposition of the law on a given question by a foreign Court; see pp. 137 and 198 There is no rule laid down by the Cochin High Court as to the law applicable to a contract like the one in this case and the view we take does not therefore in effect go against the majority opinion in Madhavan Nair v, Erechan Nayar, 16 coch. L. B. 123. In other words, the present case is clearly distinguishable. In the later Cochin case cited et the Bar viz., SivaramakriShna v. Govindan Nair 34 KER L. B. 522, the Cochin High Court had to choose between conflicting interpretations given by that Court and High Court of Madras on almost identical provisions of two statutes viz., the Madras Marumakkathayam Act, and the Cochin Nair Act. Following the case in Madhavan Nair y. Erechan Nayar, 16 KER L. R. 123, the High Court preferred its own previous interpretation and Applied the majority view in Madhavan Nayar v. Erechan Nayar 16 KER L. R. 123, to the decision of the case before it. That later case like the earlier one in Madhavan Nayar v. Erechan Nayar 16 Coch. L. R. 123 can be distinguished on same or similar grounds. The passage quoted in the judgment in the later case from Dicsy''s Conflict of Laws (Edn. 5, p. 861 corresponding to Edn. 6, p. 869) refers to rare instances ''of making foreign law at home and those exceptions only emphasize the rule. In Ramalinga v. Swaminatha AIR (28) 1941 Mad. 638 : I.L.B. (1941) Mid. 891 the question arose whether a decree passed by the District Court of Trichur was valid for purposes of execution by a Court in the Province of Madras, to wit the District Munsiff''s Court of Cannannore. The patents of the Defendant were subjects of the Cochin State but the Defendant was a British subject as he was born in British India. At the time of the institution of (he suit, the Defendant was resident in British India and there was no submission 11 the jurisdiction of the Court in Cochin. The learned Judges, Leach C. J. and Somayya J., held that the question whether the decree was good for purposes of private interrnational Law should be decided with reference to the question whether the Defendant (SIC) decision of the Chief Court of Cochin reported in Meenakshi Amma v. Subramania Iyer 22 KER L. R. 893, the learned Judges held that under the Cochin law the Defendant was a Cochin subject as well as a British subject and therefore the decree was binding on the Defendant and could be executed against him in British India. The observation relevant for our preeent purpose occurs at p. 690 of the report where the learned Chief Justice says that the Chief Court of Cochin was the highest Court of the Cochin State at that time and a pronounce, ment of the Full Bench of that Court must be accepted as the authoritative statement of the law which existed in the State. No undue importance need in our opinion be attached to the reference made by the learned Chief Justice to a decision by the Full Bench; the particular Cochin decision which the learned Judges fol lowed happened to be a decision by a Full Bench.
These cases afford sufficient authority for us to hold that we should in deciding this case apply the law as to the rights and liabilities of a carrier of goods by sea as laid down by the Bombay High Court or other High Courts in India.
What remains for us now to do is to refer to decided cases in the Indian High Courts which lay down the rule that with respect to contracts of affreighment not governed by any Indian Statute specifically dealing with the law relating to common carriers the English Common Law rules apply and not the bailment sections of the Indian Contract Act. On an examination of the authorities it would be found that practically every Indian High Court whioh has anything to do with the exercise of maritime jurisdiction has so held. See Mohamad Rowuther v. British India Steam Navigation Co. Ltd. 32 Mad. 95 : l I. C. 977 F.B ., C.V. Venugopal Mudali Vs. C. Venkatasubbiah Chetty and Others, , The Bombay Steam Navigation Co. Ltd. Vs. Vasudev Baburao Kamat, and Haji Shakoor Gany Firm v. Firm of Volkari Brothters AIR 1931 Sind 124 : 25 S. L. K. 222. These aro cases where the question mooted before us was specifically considered and decided with reference to good3 carried by sea. Of the two Madras cases referred to, in the earlier case Sankaran Nair J. had taken a different view bat the latter decision mikes it clear that the question had earlier been authoritatively decidtd by the Privy Council in the deoision reported in Irrawaddy Flotilla Co. v. Bugwandas 18 Cal. 620 : 18 I. A 121 P. C. Further any expression of opinion on this question by Sankaran Nair J., was not necessary in the view th& learned Judge had taken of the other questions arising in the case. The learned Judge had agreed with White C. J. in allowing the appeal and then proceeded to ventilate his views on the matter. {See p. 118 of the report).
The Privy Council decision no doubt relates to a case of inland nAVvigation, but as pointed out by Sadasiva Aiyar and Tyabji 33. in their judgments in Kariadan Kumber v. British India Steam Navigation Co. Ltd. 38 Mad. 941 : AIR 1915 Mad. 833, Lord Mac. Naghten''s discussion of the subject leaves no room for doubt that the decision cannot be brushed aside in the manner the Appellants'' learned Counsel wanted to do by saying that it deals with a case of Inland navigation. His Lordship categorically stated that notwithstanding some general observations in the chapter on bailments, a common carrier''s responsibility is not within the Indian Contract Act, 1872. At p. 628 it is seen observed :
Notwithstanding the above arguments of She learned Counsel (or the Appellants, it seems to theiz Lordships that there are several considerations,, not all of equal weight, bat all pointing in the same direction, whiCh lead irresistibly to the conClusion that the Act of 1872 was not intended to alter the law applicable to Common carriers.
Again at page 631 in concluding his judgment his Lordship observed:
These considerations lead their Lordships to the conclusion that the ACt of 1872 was not intended to deal with the law relating to Common carriers, and notwithstanding the generality of some expressions in the chapter on bailments, they think that Common carriers are not within the Act.
No useful purpose will be served by our trying to go over the grounds covered by His Lordship as to the reasons for the above conclusion.
In Kariadan Kumber v. British India Steam Navigation Co.Ltd 38 Mad. 941: AIR 1915 Mad. 833, Sadasiva Ayyar J. stated as follows as to the effect of the Privy Council decision.
As I am myself always inolinednot to travel beyond Indian Cases and Indian Statutes unless I am convinced that they are clearly not applicable, I would have gladly referred the question of the applicability of the Contract Act. Where it differs from the English Common Law to a Full Bench, if I did not feel that I am concluded by the pronouncement of the Privy Council on this question. In Irrawaddy Flotilla Co. v. Bugwandas 18 Cal. 620 : 18 I. A. 21 P. C. their Lordships have dearly approved of the deoision of the Full Bench in Moothora Kant v. India General Steam Navigation Co. 10 Cal. 168 : 13 C. L. R. 542 F. B. and disapproved of the oontrary deoision in Kuverji Tulsidas v. G.I.P. Rly. Co. 3 Bom. 109. The effect of their Lordships'' decision in the Irrawaddy Flotilla Co. v. Bugwandas 18 Cal 620 : 18 I. A 21 P. C. seems to me to be ''that the duties and liabilities of a common carrier are governed in India by the principles of the English Common Law oa that subject'' (Except where they have been departed from in the caae of some classes of common carriers by the Carriers Act of 1865 or by the Railway Aots of 1878 and 1890 and ''that notwithstanding some general expressions in the chapter on bailments, a common carrier''s responsibility is not within the Indian Contract Act of 1872.
Mr. Tyabji J., states as follows with reference to that case :
...t is not open to this Court to say that the liability of such carriers as we have to deal with in this case is governed by Section 151 of the Indian Contract Act, after the decision of the Privy Council in the case of Irrawoddy Flotilla Co. v. Bugwandas 18 Cal. 520 : 18 I. A. 21 P. C. In that case the Privy Counoil had to decide whether the view of the Bombay High Court as expressed in Kuverji Tulasidas v. G. I. P. Rly. Co., 3 Bom. 109, was correct or the view of the Calcutta High Court in Moothora Kant v. India General Steam Navigation Co. 10 Cal. 168 : 13 C.L.R. 342 (F.B.) and they said that they were ''compelled to decide in favour of the view of tho Calouttft High Court and against that of the High Court of Bombay.'' In deciding against the view of the High Court of Bombay, they decided against the argument on which the Appellant relied. They decided that the liability of carriers such as we have to deal with is not governed by the sections of the Indian Contract Act, relating to bailees. Mention has already been made that the decision in KariarJen. Kumber v. British India Steam, Navigation Co. Ltd. 38 Mad. 941 : AIR 1915 Mad 833 related to a case of carriage of goo Is by sea. The fact that the decision in Irrawoddy Flotilla Co. v. Bugwandas 18 Cal. 320 : 18 I. A. 121 P. C. related to a case of inland navigation did not induce the learned Judges in Kanadan Kumber v. British India Steam Navigation Co. Ltd. 38 Mad. 941 : AIR 1915 Mad 833 to distinguish it on that ground. In Jellicoe v. British India Steam Navigation Co. 10 Cal. 489 and Hajee Ismail Satt v. Company of the Messangertes Maritimes of France 28 Mad. 400 which are both cases relating to carriage of goods by sea it was held that the English Common Law rules as to the rights and liabilities of common carriers apply to India and that jit was open to the carrier to protect himself by (appropriate olauaes from liability for all kinds {of loss or damage, to the shipper. The question of the applicability of the contract Act was not however, specifically disoussed or decided in these oases.
Referenae may also usefully be made to two other Calcutta decisions. Those cases arose from contracts relating to carriage of goods in inland waters. They are the decisions reported in Moothora kant v. I. Q, Steam Navigation Co. 10 Cal. 166 : 13 C. L. R. 342 F. B. and British and Foreign Marine Insurance Co. Ltd. v. India General Navigation and Rly. Co. Ltd. 38 Cal. 28 : 9 I. C. 364 what was laid down in those cases is that the rights and liabilities of the common carrier in India are outside the Indian Contract Act and that they are governed by the principles of English common Law as modified by specific statutes dealing with the subject of carriage of goods. The decision in Moothorakant v. I. G. Steam Navigation Co. 10 Cal. 166 : 13. C.L.R. 342 F. B. is a decision by a Bench of five learned Judges and their opinion was unanimous. Even independent of the reasoning: given by Garth, C. J. and Mitter J. for their decisions which reasoning we do not propose to reproduce here�the history of the legislation in India relating to carriage of goods sot out by Prinaep J. in his judgment will in our opinion conclusively dispel the theory that the Contract Act should govern the rights and liabilities of carriers for hire where there is no specific statute law applicable. That short judgment may with advantage be extracted here:
I agree in holding that the law relating to carriers in India in not affected by the Indian Contract Act (IX [9] of 1872).
It is unusual to refer to the objects and reasons given for introducing a Bill into the Legislative Counoil, for they can safely be referred to only as expressing tha motives which were present to the particular member of that Council, and experience has abundantly shown us tbat in the course of legislation the objects and reasons so stated are altogether lost eight of or abandoned, different arguments are put forward to justify legislative action, and the law ultimately passed bear3 only a slight resemblance to the Bill on which it professes to be based. But in the present case the objects and reasons for introducing the Bill which subsequently becoame the Indian Contract Act 30 far as they relate to the law regarding carriers may safely be referred to, as they are altogether in accordance with, and corroborated by, proceedings in the Legislative Council immediately after the passing of the Indian Contract Act.
In introducing the Bill which subsequently became the Indian Contract Act, 1872, Mr. Pitz James Stephen; said: ''We have omitted all reference to special branches of the Law of Contract whioh at present are regulated either by express legislation or recognised custom e. g., the law of shipping, of bills of exchange, isuranoe, master and servant, carriers, &a. This omission renders tbe present Bill so far incomplete; but we consider this incompleteness a less evil than the inconvenience of dealing with so many varied and intricate subjects in a single enaotment. It will be easy at a future period, when the present Bill has been for a time in operation, and its results have been praotioally tested, to deal with all or any of the subjects above referred to, and to add them as a new chapter to the Act. With this view, leave has already been asked to introduce a Bill to amend and consolidate the law relating to carriers, and it would no doubt be desirable that the law of master and servant should at any early date be put into a clearer farm than that in whicb it is at present. No sufficient information has at present been collected to render legislation on this subject safe. The proceedings of the Legislative Council, as reported in the supplement to the Gazette of India, 1872 page 569, show that immediately on the passing of the Indian Contract Act, and at the very same sitting of the Council, Mr. Fitz James Stephen obtained leave to introduce a BUI to amend the law relating to carriers. For some reason or other (probably because Mr. Stephen left India a few days later) no further proceedings have been taken in this direction; but to my mind, quite independently of the proper construction to be put on Section 1, Indian Contract Act (IX [9] of 1872) these faotaafford ample indication of the intention of the Legislature ; indeed they seem to me to negative any inference to the contrary from the terms of the Railways Act of 1879.
To this we may add our humble contribution that the Carriage of Goods by Sea Act, XXVI [26] of 1925 gives no indication that the Indian law relating to Carriage of Goods by Sea was till then governed by the provisions of the Indian Contract Act. Indications, if any, in that Act are to the contrary. No doubt the observation may look out of place when we have said that it is unnecessary for us to make any independent examination of the question, but that we have only to ascertain what the proper law of the contract as expounded by the High Courts in India is and apply the same to the decisiop of the case in hand. But when Prinsep J. was speakirjg with reference to the state of affairs in 1883 and we are now in 1950 we do not consider the above comment totally irrelevant.
Likewise we may also add tint the passage on page 493 of the Iniian Contrast Act by Pollock and Mulla (Edn. 7) relied upon by the Appellants'' Counsel does not appear to us to be definitely in favour of the view that the bailment sections of the Contract Act should govern a case of the present nature. The observation is couched in very guarded terms and it is specifically stated that no attempt at a detailed discussion of the subject is made as the question relates to a different branch of the law. The passage relied upon is this :
It may well be that in the absence of any contrary intention, a shipowner carrying goods from Calcute to Madras can be presumed to contract with reference to the Indian Contract Act;.......
With due deference to the eminent Editor we venture to observe that a shipowner making such a contract may well be presumed to be aware of the Indian decisions bearing on the subject referred to in this judgment and presumed to contract with reference to the law as laid down by those decisions.
Before concluding we must not omit to notice that the effect of Clause 20 of the Bill of Lading was to oust the jurisdiction of the Cochin Courts from entertaining the present Buit. However as that defence was not raised the Defendants must be deemed to have waived it.
Following what the Indian High Courts have held that with reference to a contract of the nature of the one before us in this case it is spen to the carrier to protect himself by appropriate clauses from all liability regarding any loss or damage caused to tha goods carried by him and in view of the fact that the company, Defendant 1, has so protected themselves by the various provisions in the Bill of Lading the second appeal must be dismissed as against them.
As against Defendant 2, the Steamer agent, in the face of the concurrent findings that the goods were delivered to the pluintiffs m the same condition as they were when they were landed at Cochin we fail to appreciate why ha should have been made a party at all here in the second appeal. It is not the Plaintiffs'' case that Defendant was being sued as the local agent of a foreign principal. The appeal fails against him as well.
In the reSult the second appal will stand dismissed with costs.