P L D 1954 Dacca 84 (PLP)

GUHA. J.

‑7 his appeal by the defendants Nos. 1 and 2 involves a question of considerable importance as regards the law relating to carriers, but the facts are few and sample. It arises out of a suit brought by the plaintiff against common carriers to recover Rs. 8,170‑10‑0 on account of loss sustained for non‑delivery of two gunny packed cloths of various kinds pp the allegations that the non‑delivery of the goods w as caused by, or arose from the negligence or misconduct of the carriers or their servants or agents ; the plaintiff being the owner of the goods. The plaintiff, a dealer in cloths carrying on business at Bandarbazar in the town of Sylhet purchased cloths of various kinds worth Rs. 7,170‑10.0 through his agents Messrs. Baldeodas Assaram at Calcutta, who packed them in two gunny packed bundles and delivered them at the Armenian Street Ghat Office of the defendant No. 1, India General Navigation and Railway Co. Ltd., and No. 2, River Steam Navigation Co., Ltd, (hereinafter described as Carriers or Steamer Companies) fur carrying to Sylhet Bazar Station of the defendant No. 3, Bengal and Assam Railway (represented by the Governor‑General in Council, defendant No. 4, and by the Secretary of State for India, defendant No. 5, in this suit) partly by Steamer and partly by rail and to be delivered to the consignors or their nominee, under receipt No. 7031, dated the 1st April 1944, (forwarding note, Exh. 3). The plaintiff' being the owner of the goods and also the endorsee of the consignors demanded delivery of the samo from the defendant No. 3, Railway Company on production of the receipt on different dates from the 12th April to the 10th May 1944 ; but the Railway Company did not deliver the goods on the plea that they had not at all arrived at Sylbet Bazar Station. The plaintiff' alleges that he had sustained loss for non‑delivery and is entitled to recover the value of the goods amounting to Rs. 7,170‑10‑0 and also Rs. 1.,000 as compensation being the amount of profit which he could have earned if the goods were delivered in due course. The plaintiff states that he had served notices on the defendants Nos. 1 to 3 claiming compensation and also served notices under section 80 of the Code of Civil Procedure but the defendants did not make any payment. It is to enforce that claim of the plaintiff that the suit has been filed for recovery of Rs. 8,170‑10.0 from the defendants Nos. 1 and 2 (carriers) or from all the defendants. The defence of the Steamer Companies, defendants Nos. 1 and 2 is that Messrs. Baldeodas Assaram on the 1st April 1944, booked to selves 2 bales said to contain cloths at their Armenian Street Ghat Office to Sylhet Bazar Station of Bengal and Assam Railway (defendant No. 3) via Chandpur at Owner's risk executing risk notes in forms and B and the carriers made over the consignment to the defendant No. 3 at Chandpur on the 7th April 1944, in good condition under a clear receipt and they were not aware how the consignment was disposed of by the Railway Company ; and that according to clause 11 of their special contract entered into between these defendants and the consignors, the agents of the plaintiff, these defendants had been exempted from liability as soon as the consignment was made over to the Railway Company in good condition under a clear receipt. The defence of the Railway Company inter alia is that in spite of every possible care having been taken by them, the bundles in question were lost in transit and that though the bundles contained silk goods worth over Rs. 100, the consignors did not declare when booking the goods their value nor did they pay or engage to pay percentage of the value by way of compensation required under section 75 of the Railways Act and as such the Railway Company was not responsible for the loss of the goods. The learned Subordinate judge, Second Court, Sylhet, decreed the suit against the defendants Nos. 1 and 2 only for Rs. 6,000 (Rs. 5,509‑10‑0 by way of compensation for the lost consignment and Rs 490‑6‑0 as probable and reasonable loss of profits) and dismissed the suit against the other defendants arriving at the following findings, (a) that notices under section 77 of the Railway Act and section 80 of the Code of Civil Procedure have been duly served ; (b) that the Railway Company admitted that they duly took over the two packages in question from the defendants Nos. 1 and 2, at Chandpur Station but they were lost in transit from Chandpur to Sylbet Bazar Station ; (c) .that as the consignment contained silk goods worth Rs. 1,661, which was not declared by the plaintiff's agents and insured when booked in the office of the Steamer Companies, the consignment was hit by section 75 of the Railways Act but that section could not be applied as the consignment was not made over to the Railway for carriage but to the Steamer Companies and the Railway was agent of the Steamer Companies for further carriage but the Railway was not liable to the plaintiff under the contract and that the plaintiff did not press his claim against the Railway ; (d) that the Steamer Companies could not shift their liability to the Railway after the goods were made over to the latter at Chandpur under clause 11 of the forwarding note (Exh, 3) as such contract was void and inoperative under section 8 of the Carriers Act ; and (e) that the value of the silk goods amounting to Rs. 1,661 should be excluded from the liability of the defendants Nos. 1 and

2. Hence this appeal by the Carriers, defendants Nos. 1 and 2, Steamer Companies. Here it may be stated that the plaintiff respondent has filed a cross‑objection against the defendants Nos. 1 to 4 valuing it at Rs. 1,661 and thereby he seeks to get a decree for the entire claim of Rs. 8,170‑10‑0 against the defendants Nos. 3 and 4 or a further decree in this Court for Rs. 1,661 against the defendant Nos, 1 and

2. As proper Court‑fees have not been paid on the cross‑objection, we gave leave to the plaintiff to value the cross‑objection according to the claim and to pay adequate Court‑fees thereon ; but the learned Advocate repre?senting the plaintiff before us refused to do so and to press the cross objection. In the result, we have dismissed the cross‑objection but without costs. The point in contest is whether, as the Steamer Companies contend, they are exempt from liability by the terms of a contract between the consignors (and the consignee) and the carriers (Steamer Companies). Mr. A. C. Chatterjee, the learned Advocate for the Steamer Companies appellants, contends that as they have delivered the consignment in question in good order under a clear receipt to the Railway Company at Chandpur, the defendants Steamer Companies acted as agents of their disclosed principal, namely, the Railway Company for further transport of the consignment by Rail to the destination and as admittedly the loss has occurred while in transit through the Railway System, the Steamer Companies ; in view of the expressed condition No. 11 in the forwarding note (Exh. 3), cannot be held liable for the loss of the goods. Before we determine the rights of the parties as defined by the special contract on which reliance is placed, it is necessary to state what are the relative rights and liabilities of common carrier and others for whom they carry, apart from the special contract. In this connection the learned Advocate for the appellants, on reference to certain passages in Articles 2, 3, 7 to 9, 40 and 41 in Volume 4 of Halisham's edition of Halsbury's Laws of England and to some passages at pages 26, 27, 97 and 98 from Leslie on Transport 2nd edition, 1928, argues that the legal position of a common carrier in England as stated there is the same as that prevails in this country. It is not and cannot be controverted that the rights and liabilities of a common carrier are outside the Contract Act, but are governed by the principles of English Common Law a, modified by the Carriers Act (III of 1865). which follows the scheme but not the details or the language of and does not closely resemble the English Carriers Act, 1830. It has been so observed by Lord Macnaghten in Irrawaddy Flotilla Company v: Bugwandas (1891 I R 18 I A 121 (125).) ?For the present purpose it is not material to enquire how it was that the Common Law of England came to govern the duties and liabilities of common carriers throughout India. The fact itself is beyond dispute. It is recognised by the Indian Legislature in the Carriers Act, 1865 an act framed on the lines of the English Carriers Act of 1830?. In this country a common carrier is subject to two distinct kinds of liability, the one for loss or damage to the goods delivered to him for which he is liable as an insurer and the other for loss for which he is responsible under the obligation to carry properly and safely. Therefore, generally speaking the first of those two liabilities is an insurable risk from which the element of neglect or default is absent, while the second is the risk of transport or carriage in which that element is present It may be stated here that that Act does not apply to carriage by air or by sea or by Railways except to a very limited extent. Again the English law of liability of a common carrier for safe delivery of goods entrusted to him is regarded as that of an insurer of goods and that rule has remained unaffected by the provisions in sections 151, 152 and 161 of the Contract Act (FX of 1872). See Moothoorakanta Shaw rind others v. The Indian General Steam Navigation. Company ((1883) I L R 10 Cal. 166 (F. B.).), dissenting from Kuverji Tulsidas v. The Great Indian Peninsular Railway Company ((1878) I L R 3 Bom. 109) ; and the decision in the Calcutta Full Bench case has been approved by the Privy Council in Irrawaddy Flotilla Company, Ltd. v. Bugwandas (supra).??????????? The preamble of the Carriers Act shows that it is enacted not only to enable the 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 occasioned by the negligence or criminal acts of themselves, their servants or agents. In section 2 the common carrier is defined as "a parson, 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 "person" is defined as "which includes any association or body of persons, whether incorporated or not". Section 3 provides that a common carrier shall not be liable for the loss of or damage to property delivered to him to be carried exceeding in value of Rs. 100 and of the description contained in the Schedule, unless the value and description thereof are declared by the person delivering or his duly authorised agents. Sections 4 and 5 limit the liability of the common carrier in respect of valuable and perishable goods and his right to demand special rates for their carriage. Section 6, which is applicable in the circumstances of this case 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 to this Act, shall not be deemed to be limited or affected by any public notice ; but any such carrier not being the owner of a railroad or tramroad may, by special contract, signed by the owner of such property so delivered as lost aforesaid or by some person duly authorized in that behalf by such owner, limit his liability in respect of the same While section 8, which also applies here, declares that "Notwithstanding anything hereinbefore 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 criminal act of the carrier or any of his agents or servants and Shall also be liable to the owner for loss or damage to any such property, other than property to which the provisions of section 3 apply and in respect of which the declaration required by that section has not been made, where such loss or damage has arisen from the negligence of the carrier or any of his agents or servants". Section 9 enacts that in any suit for loss, damage or no delivery against a common carrier, the plaintiff is not required to prove negligence or criminal act. The underlinings have been made by us in order to emphasize that those portions require our special attention for determination of this case. It is not disputed that in this case the consignors (and consignee) signed risk note forms, Exhs. B and B (1), when the goods were delivered to the Steamer Companies' Office at Armenian Street Ghat on the 1st April 1944, and relevant portions thereof are as follows Exhibit B‑

"Assam‑Bengal Railway Co., Ltd ???Risk Note form "Z" (To be used as an alternative to Risk Note from B, when the sender desires to enter into a general agreement instead of executing a separate Risk Note for each consignment... __This agreement shall be deemed to be made separately with all Railway Administrations or transport agents or other persons who shall be carriers for any portion ‑of the transit at a 'special reduced' or `owner's risk' note". Exhibit B (1)‑"Indian General Navigation and Railway Co., Ltd. (Incorporated in England), River Steam Navigation Co. Ltd. (Incorporated in England). Special Contract Note Form "Z"?..(To be used as an alternative to Special Contract Form B when a sender desires to enter into a general agreement instead of executing a separate Contract Note for each consignment) I/we, the undersigned do hereby agree and undertake to hold the said I. G. N. and Railway and R. S. N. Companies and also their transport agents or carriers harmless and free from???.This agreement shall be deemed to be made separately with all administration or transport agents or other persons who shall be carriers for any portion of the transit". The receipt or forwarding note (Exh. 3) granted to the consignors on receipt of the goods by the Steamer Companies at their office at Armenian Street Ghat Station is in a form, which is in force since the 12th June 1934, shows that the goods are to be carried partly by Steamer and partly by Railway and that the freight charges separately calculated for the portion of carriage by Railway administration and for transport by the Steamer Companies, and condition 11 printed at the back of the forwarding note runs as follows: ?The Company undertake to carry goods over their own transport system only. When goods are accepted by the Company for carriage beyond their own transport system and where goods are either wholly or partly carried by other carrying administrations in the matter of carriage beyond the Company's own transport system the Company act merely as agents for such other carrying administrations. The contract of carriage shall be deemed to have been entered into between the Consignor (and the Consignee) on the one hand and the one or other of the various carrying administration including the Company, on the other hand that may at any material time to be in control or possession of the goods for carriage to destination and for delivery to the consignee and that any liability for loss, damage, destruction, partial or total deteriora?tion, detention and delivery of the goods shall safely rest on the respective carrying administration in whose charge the goods may have been placed at the time of such loss, damage, etc., is found to have arisen. "In case of goods accepted by the Company for carriage beyond their own system of transport the Consignor (and Consignee) shall be deemed to have agreed that the Company has accepted such goods on the footing that the Consignor (and the Consignee) has entered into a series of contracts with the different carrying administrations and that the Company will not be liable for any loss, damage, etc., which may happen when the transit over the Company's system of transport is over and when the goods are not directly under their control." It may be mentioned here that condition 11 which is for our consideration in this case is materially different from that which was in force before the 12th June 1934, which read : ?In the event of goods booked to be carried by the Company's vessels for transshipment for carriage to destination by other transport administrations, the Company shall be under no liability whatsoever for any loss or damage or delay to goods after they have been handed over to the non‑carrying administrations?. In this case it is in evidence and found by the trial Court, and is also not controvertible that the Steamer Companies duly made over to the Railway administration at Chandpur under "clear receipt" the two packages in question and the latter admitted that they took them over in good condition and that they were lost in transit from Chandpur to Sylhet Bazar Station, i.e., while in transit through the Railway system, The trial Court came to the conclusion that the contract in the forwarding note (Exh. 3) was an indivisible contract and that the Railway administration was merely an agent of the Steamer Companies for carriage by Rail from Chandpur to Sylhet Bazar Station and further held relying on the case of Indian General Navigation and Rly. Co. Ltd. v. Jamunadas Ram Kumar ((1931) I L R 59 Cal. 472) that the contract as embodied in condition 11 of the forwarding note was void and inoperative, and moreover the liability could not be avoided by condition 11 in the forwarding note ; and in that view decreed the plaintiff's claim against the Steamer Companies in part, and as the claim against the Railway administration was not pressed by the plaintiff, the suit had been dismissed as against the defendants Nos. 3 to

5. Mr. A. C. Chatterjee, the learned Advocate for the appellants, argues that in view of the admission of the Railway Company in paragraph 5 of the written statement and in view of the finding of the trial Court that the Steamer Companies were the agents of the Railway administration and in that respect the trial Court was wrong in holding that the Railway adminis?tration was agent of the Steamer Companies. Mr. Chatterjee then argues on reference to the preamble and sections 6 and 8 of the Carriers' Act and the terms of the two separate risk notes, Exhs. B and B (1), and the forwarding note (Exh. 3), specially condition 11 in the last document that there were two divisible contracts for carriage between the consignor (and the consignee) on one part and the Steamer Companies and the Railway administration on the other, and in view of condition 11 in Exh. 3 it should be held that the liability of the Steamer Companies ceased as soon as the goods were delivered to the Railway administration at Chandpur. Mr. Chatterjee submits that the decisions in I. G, N. and Rly. Co., Ltd. v. Giridharilal (I L R 54 Cal. 430.), and R S. N. Co. Ltd. v. Jamunadas (sultra), are distinguishable in facts, because there was only one indivisible contract and the Railway was held to be agents of the Steamer Companies and condition 11 in the forwarding note then prevailing was different. Mr. Chatterjee in support of his arguments relied on the cases of Narong Rai Agarwal, v. R. S. N. Co., Ltd. (11 W 171

I L R 34 Cal 419.) Gokul Chandra Das v. I. G. S. N. and Rly Co., Ltd. (11 C W N 1076.) ; Bangal Chand Bagmal v. R. S. N. Co., Ltd. (A I R (1928) Cal. 490.) ; I. G. N. and Rly. Co., Ltd. v. Krishnakanta Das (A I R (1949) Assam 25.) and unreported decision of the Calcutta High Court in Civil Rules Nos. 571‑576 of 1950, Chandubhai Patel v. R. S. N. Co. Ltd. (Unreported case Civil Rule No. 571‑1950.) decided on the 17th February 1951 ; and also an unreported decision of the Madras High Court in Civil Suit No. 530 of 1948, Messrs. Appah & Co. v. The Dominion of India (Unreported case Civil Suit No. 530/1948.), dated the 31st July 1951. We shall refer to the cases hereafter. Mr. Nagendra Chandra Choudbury, the learned Advocate for the plaintiff respondent, resists the contentions of the appellants on the grounds, (i) that the contract was one and indivisible and so the decisions in I L R 54 Cal. 430 (supra) and I L R 59 Cal. 472 (su?ra), applied to the present case, (ii) that it was not established that the Steamer Companies delivered the goods to the Railway administration at Chandpur, (iii) that the Steamer Companies cannot limit their liability for carriage, because section 6 of the Carriers' Act contemplates that they can limit their liability only in their own system ; therefore a special contract will not exempt them from contract of carriage through different system of transports and he cites in support of his arguments the cases of British and Foreign Marine Insurance Co. Ltd. v. I. G. N. and Rly. Co. Ltd. (I L R 38 Cal. 28.) ; and Alfred William Luddit v. G. C. Airways Ltd. (51 C W N 498 (P C).) ; and (iv) that by reason of execution of risk notes, Exhs. B and B (1), the Steamer Companies became agents of the Railway and when they are read along with condition 11 in Exh. 3, it is clear that there was an indivisible contract and so the decisions in I L R 54 Cal. 430 (supra) and I L R 59 Cal. 472 (supra) were applicable and, therefore, the decree of the trial Court was correct. An analysis of the above contentions of both the parties shows that the only point in contest is whether, as the appellants Steamer Companies contend, they are exempt from liability by the terms of the special contract embodied in condition 11 of the forwarding note (Exh. 3). between the consignors (and the consignee) and themselves. It is in evidence and admitted at the hearing that the for warding note (Exh. 3) in the case has been signed by the cognsinors Messrs. Baldeodas Assaram and endorsed in favour of the plaintiff. It appears that the goods delivered to the Steamer Companies' Office at Armenian Street Ghat is to be carried to Sylbet Bazar Station by Steamer and Rail, and it shows separately what charge is to be paid to the Railway and what to the Steamer Company for carriage of the goods in question over the two transport systems. It is also an admitted fact that the consignors have signed two separate risk note forms; Exhs. B and B (1), which also indicate that there were separate contracts between the Steamer Companies and the Railway as regards carriage over the two respective transport systems. There is no controversy before us that the terms of the forwarding note (Exh. 3) and those of the risk notes (Exhs. B and B/1) are binding on the consignors and their endorsee, the plaintiff. Mr. Choudhury, the learned Advocate for the respondent, also argues that the risk notes, Exhs. B and B (1), and the forwarding note (Exh. 3) should be read together. ' If we read them together it is manifestly clear from the forwarding note (Exh. 3) that for the consignment in question though there was one contract entered into between the consignors (and the consignee) on the one part and the Steamer Companies and the Railway on the other part, yet it was in fact divided into the two contracts ‑one between the consignors (and the consignee) and the Steamer Companies for carriage of the goods over their, system of transport, and the other between the consignors (and the consignee) and the Railway administration for carriage over the latter system of transport. In this case the first contract for transport of the consignment by Steamer was between the Steamer Companies as principals while the second contract was made by the Steamer Companies as agents of their disclosed principal, namely, the Bengal and Assam Railway, for the carriage of the consignment over the latter's transport system. The forwarding note No. 165 in Book No. 7031 (described as receipt by the plaintiff in the plaint is in a "Contract Form") between the I. G. N. and Rly. Co., Ltd.. and R. S. N. Co., Ltd , on one part and the consignors (and the consignee) Messrs. Baldeodas Assaram on the other, and is Exh. 3 in the case, which is signed by both parties and the consignors (and the consignee) signed along with it two risk notes, Exhs. B and B (1). They show that the consignment is to be "carried partly by Steamer and partly by Rail" from Armenian Street Ghat Office of the Steamer Companies to Sylhet Bazar Station of the Bengal and Assam Railway. The forwarding note (Exh. 3) contains several conditions, which are binding on the parties to it and these conditions are in force from the 12th June 1934. Con?dition 11 in the forwarding note starts with the words that "the Company undertake to carry the goods over their own transport system only" and that shows that the contract between the Steamer Companies was with reference to the carriage of the consignment over their own transport system only. In the next sentence in condition 11 of the forwarding note it is stated that "where goods are accepted by the Company (as in the present case) for carriage beyond their own transport system, the Company act merely as agents for such other carrying "'administrations". It is abundantly clear from the aforesaid words that in so far as the Steamer Companies were concerned they were accepting the goods for carriage over the transport system belonging to any other carrying administrations (here the Bengal and Assam Railway) as agents of that other transport system, namely. It B. and A. Railway. This is also indicated from the fact ha the transport charges for carriage by Steamer and Railway are separately assessed. There is no doubt that in this case the consignors (and the consignee) accepted that position and knew that the consignment was being transported over the B. and A. Railway system also. The B and A. Railway was disclosed in the forwarding note as the principal and the Steamer Companies were acting as the agents of such disclosed principal. Therefore there cannot be any question that for transport of the consignment from Chandpur to Sylhet Bazar Station of the B. and A. Railway, the Steamer Companies were agents of the Railway, and not that the Railway was the agent of the Steamer Companies as bas been held by the trial Court and maintained by the learned Advocate for the respondent. In this context, the words subsequent to those referred to above are very pertinent, which point to the conclusion that the Steamer Companies are agents of the B. and A. Railway. In those words it is expressly and unequivocally stated that the contract of carriage shall be deemed to have been entered into between the consignors (and the consignee) on the one hand and the one or other of the various carrying administrations including the Railway on the other, that it may at any material time be in control or possession of the goods for transport to the destination and or for delivery to the consignee and that any liability for loss or damage, etc., shall solely rest on the respective transport systems in whose charges the goods may have been placed at the time of such loss, damage, etc.. is found to have arisen. It is then expressly stated that when the Company (Steamer) accepted goods for carriage beyond their own system of transport the consignor (and the consignee) shall be deemed to have agreed that the Company (Steamer) has accepted such goods on the footing that the consignor (and the consignee) has entered into a series of contracts with the different carrying administrations so that the Steamer Companies will not be held liable for any loss or damage, etc., which may happen when the transit of the goods over their transport system is over and when the goods are not directly under their control. In the facts of this case,. it is manifestly clear that the consignor (and the consignee) must have agreed or at least must be deemed to have agreed that the Steamer Companies have accepted the consignment in question on the basis that the consignor (and the consignee) has entered into a series of contracts with different carrying administrations. This is also evident from the two separate risk note forms, Exhs. B and B (1) separately executed by the consignor (and the consignee) with the B. and A. Railway and the Steamer Companies, respectively, and also from the fact that the freight charges for carriage of the goods have been separately assessed for the two separate systems. The consignor (and the consignee) executes two separate risk note forms in favour of the Railway and Steamer Companies and signs the same agreeing to abide by the terms contained therein and also agrees that the goods will be carried by two systems of transport. Then the consignor (and the consignee) signs the forwarding note (Exh. 3) agreeing to abide by the terms and conditions of the Steamer Companies embodied in that forwarding note, which provides that the goods will be carried partly by Steamer and partly by Rail, and for this freight charges, shown separately as payable to the Steamer Companies and to the Railway administration and amounting to a certain sum of money, shall have to be paid. Again the forwarding note provides that the Steamer Companies undertake to carry the goods over their own transport system only, and when they accept the goods for carriage beyond their own system, they act only as agents for such other carrying systems and when the goods are placed in the custody of the other transport system, the ones in whose custody the goods are placed shall be liable for loss or damage, etc, of the said goods ; and that also appears to be the intention of both parties, that is of the Steamer Companies and the consignor (and the consignee). Again the facts of this case and the terms of the forwarding note make it demonstrably clear that the parties have agreed that in so far as the Steamer Companies are forwarding the consignment to the B. and A. Railway, they purported to act not as common carriers but as forwarding agents of the B, and A. Railway. Again in a case like the present one, where though booking is made first by Steamer and then by Rail for convenience of the public and where the carriage is partly by Steamer of the Steamer Companies and partly in trains of the Railway Company and the freight charges payable to each are subsequently adjusted, it seems reasonably clear to us to treat the Steamer Companies, which received the goods, as the agents of the Railway administration. The Steamer Companies described themselves as such in the forwarding note, and neither the consignor (and the consignee) nor the plaintiff ever disputed their character as forwarding agents but on the other hand; accepted that position. On a consideration of all the facts and circumstances, we, therefore, hold that the contract embodied in the forwarding note (Exh. 3) is not an indivisible one but it has been intended and treated as consisting of a series of contracts, which are divisible ; and in this particular case there are two contracts, one with the Steamer Companies and the other with B. and A'. Railway. It is; therefore, futile to contend, as has been urged by the learned Advocate for the plaintiff-respondent, that the contract evidenced by the forwarding note is an indivisible one and cannot be divided. The case of the appellants has all along been that the forwarding note evidenced a divisible contract, divided into two contracts one in their character as common carriers over their own system of transport and the other in their character as forwarding agents of their disclosed principal, namely, the B. and A. Railway for carriage of the consignment over the said Railway system, and that they have a "clear receipt" from the B. and A. Railway indicating that the consignment in question had been delivered in good condition to the said Railway. In this case the Railway administration as represented by the defendants Nos. 3 . to 5 was sued along with the Steamer Companies, but in .the trial Court the plaintiff did not press his claim against them and the suit had, therefore, been dismissed against them ; and in view of our order of dismissal of the cross objection, the claim of the plaintiff against the Railway administration is not before us either. We shall now deal with the cases cited at the Bar and referred to by the trial Court and some other decisions, and point out how far they are applicable to the facts of this case. On the question whether the contract in the present case is a divisible one, it will be pertinent to refer to the case of Le Conteur v. The London and South Western Railway Company ((1865) L R I Q B 54.). which follows the earlier decision in the case of Pianciani v. The London and South Western Railway Company ((1856) 18 C B 226.). where Cockburn, C. J. observed as follows "???it was said that the provisions of the (Carriers) Act were not applicable to the case because the contract was one to carry not only to the terminus of the Railway by land, but also by water, the contract was not divisible (as has been argued on behalf of the respondent in this case) ; and, therefore, although the article was lost on land, that was not within the terms of the contract. I think that argument fails both on princi?ples and on authority, on authority because the point was directly before the Court of Common Pleas in the case of Pianciani v. The London and South Western Railway Company (supra) in which the Court expressed the strongest opinion that the contract was divisible ; .... .... It would be a matter of most serious inconvenience if Companies established for the purpose of conveying goods by land, but having one of the termini of their Railway connected with water communication, should be prevented from affording the public the great accommodation which arises from being able to send goods to the ultimate place of destination, the water carriage included, without the necessity of separate contracts with separate Companies. If that accommodation were withdrawn from the public, as it might be, if so far as the land carriage is concerned, Companies were deprived of the protection of the Act of Parliment affords, it would be a matter of very serious inconvenience and damage to the public ; and I see no reason why that damage and inconvenience should be inflicted upon the public, at the same time that loss would accrue to Companies for not having the opportunity which they at present possess of making the entire contract. I see no , reason why the contract should not be held to be divisible, and the carrier protected so far as the land carriage is concerned by the Act of Parliament". The same view has been taken in the case of Baxendale v The Great Eastern Railway Company ((1869) L R 4 Q B 244.). The facts in the case of Narong Rai Agarwalla v. R. S. N, Co. Ltd. (supra) are that silk goods worth more than Rs. 100 were made over to the Steamer Company at Gauhati without declaring them as Silk goods for transmission to. Calcutta, via Goalendo and it was known to both parties that the goods would be carried up to Goalundo by the Steamer Company and thence by Railway to Calcutta. Some goods were found missing when delivery was taken at Culcutta and it was proved that the goods were received by the Railway in good condition at Goalundo. The suit was dismissed against the Railway Company giving them protection under section 75 of the Railway Act. The learned Subordinate judge after remand dismissed the suit holding that there was no negligence on the part of the Steamer Company or its agents or servants, though under section 9 of the Carriers Act onus lay on the Company, they bad discharged the onus by proving that the Railway Company admitted that the goods were received from the Steamer in good order at Goal‑undo. In facts, which are similar to the present case, Brett, J. has held that it is reasonable to treat the Steamer Company which receives the goods as the agents of the Railway Company and the contract for carriage of goods partly by river and partly by land is divisible and observed "It appears that the Steamer Company issues printed book of their rules and in it the conditions are set out under which goods are booked by the Company through to stations on the Eastern Bengal Railway Company and connected lines. These support the conclusion that the part of the journey by river and the part of the journey by rail are to be treated as distinct, the total charge for the journey being the sum of the charges levied at rates fixed by the rules of the Steamer Company for the portion of the journey by the river and by the rules of Railway Company for the portion of the journey by rail ; and, therefore, that the contract is divisible". We may say respectfully that this decision cited on behalf of the appellants, is in accord with the view we have taken in this case. Mr. Choudhury for the respondent argues that the above case has been distinguished in decision reported in I L R 54 Cal. 430 (sutra), and we shall show that the latter decision is not applicable to the facts of the present case. The case of Gokul Chandra Das v.

1. G. S: N. and Rly. Co., Ltd. (supra) arises in similar set of facts and the contract was held to be a divisible one and has been decided following the above decision reported in I1 C W N 1071 (supra). The next case cited by the learned Advocate for the appellants is of Mangalachand Bagmal v. P. S. N. Co, Ltd. (sutra), where certain goods delivered to Steamer Company at their Hajigunge Ghat Office for carriage to Dibrugarh Bazar Station of Dibru Sadia Railway but as there was short delivery, the plaintiff used the Steamer Companies but not the Railway. In carrying the goods the first part of journey was by Steamer and the last part by Rail and the Steamer Companies produced a "clear receipt" from the Railway. The Munsif dismissed the suit holding that the Steamer Companies were protected by reason of the receipt and as Railway was not impleaded, the plaintiffs could have no remedy. In delivering the judgment Mukherji, J. observed ?This risk note suggests that the Stealpler Companies were acting as agents for the Eastern Bengal Railway ; in any event there were two parallel contracts for the carriage of the same goods and for the same journey. It is sufficient to say that the suit could not under such circumstances be proceeded with in the absence of the Railway Company and that the plaintiffs cannot possibly recover from the Steamer Companies when they have been able to produce a clear receipt of the goods from the other.? The case before us is exactly similar. It is in evidence (vide D.Ws. 1 and 2 and Exhs. D. 2 and D. 3) that the "clear receipt" from the Railway Company at Chandpur and in the forwarding note (Exh. 3) it is expressly stipulated that the Steamer Companies were acting as agents of the Railway Company and that the claim against the Railway Company is not pressed. So this case supports the appellants. The decision of the Assam High Court on which the appellants greatly rely is in the case of I G. N. and Rly. Co., Ltd. and another v. Krishana Kanta Das (supra), and arises in circumstances similar to that appearing in the present case with only this difference that in that case the Railway Company was not sued for, while in the present case the claim against the Railway Co., though parties, was not pressed ; and we may say with respect that their Lordships of the Assam High Court arrived at the same conclusion, to which we have arrived, on consideration of the terms of condition 11 of the forwarding note and dismissed the suit against the Steamer Companies. The learned Advocate for the appellants has also referred to an unreported decision of the Calcutta High Court in Civil Rules Nos. 571‑576 of 1950, Chandubhai Patel v. The R. S. N. Co., Ltd., (supra) decided on the 17th February 1951, by Sen and Chunder, JJ. and to an unreported decision of Mark, J. of the Madras High Court decided on the 31st July 1951, in Civil Suit No. 530 of 1945, Messrs. Allah F Co. v. The Dominion of India and others (supra) in which the learned judges arrived at the same conclusion as regards condition 11 in the forwarding note and the liability of Steamer Companies in similar circum?stances. The learned Advocate for the respondent relies on the case of British and Foreign Marine Insurance Co. Ltd v.

1. G. N. and Rly. Co., Ltd., (supra) but that is a decision arising in different set of facts and circumstances and is distinguishable. Incidentally the learned Advocate for the respondent referred to the decision of Rankin, J. (as his Lordship then was in Dekhari Tea Co., Ltd. v. A. P

3. Rly. Ca., Ltd. (I L R 47 Cal. 6.), and the decision of the Privy Council there from in the case of

1. G. N. and Rly Co., Ltd. v. Dekhari Tea Co., Ltd. (L R 51 A 28.). In that case certain tea chests were booked with A. B. Rly. Co., at Bordubi for carriage to Chittagong and thence to England under a Railway receipt in usual from. There being a breach in the rail line, the goods delivered for transport from Assam to Chittagong had to be transported from Gauhati to Chandpur by river in Steamers of the Steamer Companies under some arrangement with the Railway Company. The tea chests while lying in flats of Steamer Company at Gauhati for transport to Chandpnr were destroyed by fire. It was held that there was no contract between the plaintiffs Tea Company and the Steamer Company and that under these circumstances, the Railway Company had no authority to act as agent of the Steamer Company and enter into a contract for carriage on behalf of the latter. By consent the suit was? dismissed as against the Railway Company in the trial Court, but it was decreed against the Steamer Companies, whose appeals to the High Court and also to the Privy Council were dismissed. In our opinion, that decision rests on the finding that as the Railway Company alone contracted to act as common carrier for the entire journey by rail up to Chittagong, any diversion made in an emergency by the Railway Company under an arrangement with the Steamship Company, would not make them agents of the Steamer Companies and in those circumstances it was plainly a case of one indivisible contract. But in the present case the Steamer Companies did not undertake to act as common carriers for the entire journey but they contracted to be common carriers for transport over their own system only and beyond their own system they were only agents of the Railway Company ; and so those decisions do not apply to the present case. The learned Advocate for the respondent as well as the trial Court placed great reliance on the case of India General Navigation and Railway Co,, Ltd. v. Giridharilal Goberdhone Das (supra) ; and the case of River Steam Navigation Co., Ltd,. v. Jamunadas Ramkumar (supra) ; which followed the former decision. The case of I. G. N. and Rly. Co., Ltd. v. Giridharilal (supra). arises on the following facts : One Rambilasb consigned certain quantities of betelnuts to defendant No. 4 appellants I. G. N. and Rly. Co., Ltd. and R. S. N. Co., Ltd.. at Daulatkhan Steamer Station for delivery to them at Bankura, who undertook to carry them to Bankura, via E. B. Rly. (defendant No. 3), the E. I. Rly. (defendant No. 2) and the B. N. Rly. (defendant No. 1). There was short delivery and it was alleged that it transpired that the servants of the E. I. Rly. misappropriated the same. The defendants Steamer Companies con? tended inter alia that they made over the goods in good order to the E.. B: Rly. at Khulna and so their liability ceased. The Munsif held that the loss took place while the goods were in transit through the E. I. Rly. and decreed the suit against that Railway and dismissed as against the others. The E. I. Rly, appealed making the plaintiff only respondent and theca joined the Steamer Companies as a party .respondent after the period of limitation and the plaintiffs' suit as against the E. I. Rly. was dismissed for want of notice but a decree was passed against the Steamer Companies; who filed a second appeal in the Calcutta High Court. In dealing with the second contention that the goods were admittedly in order when they were made over to the E. B. Rly. The liability of the Steamer Companies ceased as it was admitted that the loss took place in the E. I. Rly., D. N. Mitter J. distinguished NaronR's case (supra) and Gokul's case (supra) observing that there it has been held that liability for any loss over the river portion of the journey is to be governed by the Carriers Act and the liability for loss over the rail journey is to be determined by the Railways Act and this differentiation of liabilities is open to doubt and there is indication of a contrary opinion in Dekhri Tea Co., Ltd. v. A. B. Rly. Co., Ltd. (supra). in the judgment of Rankin J. (as his Lordship then was) and Mitter J. quotes with approval the passage from the judgment of Rankin J. at page 19 of the report in

1. L. R. 47 Cal. (supra) to the following effect. ?Subject to any written documents, it is a question of fact for a jury to say whether there was one contract or more than one. The basis, however, of the above decisions is that it would be a strained and improbable inference to hold that a sender or an ordinary 'through‑booking' transaction enters into a series of contracts with Carriers 1. 2 and 3 making each Carrier except the last his agent to make a further contract or treating him as the next Carrier's agent to make a fur?ther contract with the sender. If it be said that though there is an entire contract with the first Carrier for the whole journey yet there may also be a contract with each of the other carriers for their own part of the transit, this no doubt is true. But as an inference it is still store elaborately improbable. It involves a contract and a parallel series of other contracts. This series has to be operated either by each Carrier being treated as the sender's agent to contract with the next which involves a doubtful scheme for the transmission of authority; or else by each carrier being treated as having made the previous one (or perhaps the first one) his agent to contract on his behalf, while himself being the previous Carrier's agent to perform. Again this latter view is possible and in some cases it is right.? Then referring to the risk note executed by the plaintiff in favour of the E. B. Rly., D. N. Mitter J. at pages 441‑442 of the report in 54 Cal. 430 (supra). observes that the risk note does not protect the Steamer Companies from liability as the loss did not take place while the goods were in transit over that Railway because "as apt inference it is improbable, as it involves a contract and a series of parallel contracts?..whether in the absence of the terms of agreement between the different Companies it is impossible to infer that the East Indian Railway were the agents of the Steam Navigation Company may be a matter open to doubt. It is difficult to say how the Steam Navigation Company and another can escape liability if the contract was one and indivisible with them, as the carrier would be responsible for any loss which occurred before delivery of the same to the plaintiff." Mr. Justice Duval at pages 443‑444 observes referring to the cases reported in l I C. W. N. 176 (supra) and I L. R. 34 Cal. 419 (supra) (ante) that there was no definite finding as to whether in point of law one Company was an agent of another and as to whether there were separate contract; and "But it appears to me that the matter is really one of fact. The judge has come to a finding, though I must admit that he has not dealt very much with the evidence, that the East Indian Railway was an agent of the Steamer Company. The present case, therefore, appears to me to be strictly speaking governed by the ruling in the case of Muschamp v. The Lancashire and Preston Junction Railway Company ((1841) 8 M: and W. 421.) (which is till the law), that the proper person who is liable is the person to whom the goods were delivered and that the contract is not a divisible one and that it is really a matter for the Jury to decide with whom the contract really was." It will thus be seen that the decision in I. L. R. 54 Cal. 430 (supra) is based on two material facts that E.I. Rly. was agent of the Steamer Companies and that there was one contract. It will, however, be seen from the portions we have italicized in the extract from the above decision that subject, to any written documents" the question whether the contract of "through‑booking" tray be one and indivisible or a divisible one consisting of several contracts and whether the person to whom the goods are, delivered is agent of the other transport systems over which the goods are to be carried are questions of fact, and it is recognised in that case that there may be a series of contracts with different carrying Companies in a "through‑booking" even when there is an entire contract with the first carrier; but what is objected to and held not permissible is that such a fact cannot be inferred but must have to be proved. In the case before us there is the forwarding note (Exhibit 3). which on analysis, as we have already pointed out, shows that though there is one contract yet it is divided into two contracts and in the present case it is expressedly agreed between the parties that in so far as the Steamer Companies were forwarding the consignment in question to the B. and A. Railway, they were not acting or purporting to act as common carriers but merely as agents of the Railway Company; and we have already found that those facts have also been proved from other materials on the record; and, therefore, the decisions reported in I. L. R. 54 Cal. 430 (supra) and I. L. R. 59 Cal. 472 (supra.) (which follows the former decision) have no application here and are clearly distinguishable; and we may say with respect to the learned judge, who decided those cases relying on the observations of Rankin J. in I. L. R. 47 Cal. 6 (19) (supra) that the view taken by the learned judge Mitter J. does not in any way militate against the view we have taken in the facts of this case; and in our opinion, those observations in a way support our view. The only other decision which was cited by Mr. Choudhury before us is a decision of the Privy Council in the case of Alfred William Luddit and others v. Ginger Coote Airways Ltd. (supra), which turned upon the question arising on the express terms of the ticket and the relevant conditions of Transport Act, 1938, as regards travel by air, and in our opinion has very little bearing on the question that is for our determination under the Carriers In this context observations of Rankin C. J. in the case of K. C. Dhur v. Ahmad Bux (I L R 60 Cal. 879) though the case has not been cited at the Bar by the learned Advocates of either parties, are pertinent, in our opinion, for determination of the question at issue. In that case the plaintiff K. C. Dhur delivered to the B. I. S. N. Co. at Jetty No. 1 on the river Hooghly some bundles of iron to be shipped by the Company's steamer "Waroonga" from Calcutta to Akyab. The goods having been delivered at that Jetty, a receipt showing the terms of that shipment was granted in the following words: "All cargo received at No. 1 Jetty remains at Shipper's risk until placed on board the Steamer". For transmitting the goods from that Jetty to the ship in the midstream, arrangements had been made with the defendant Ahmad Bux under a contract between the latter (described as a "boating contractor") and the agents of the shipping Company Messrs. Mackinnon Mackenzie by which the defendant under‑took to receive from the Company cargoes in his boat or dingis and to carry them safely and to deliver them for shipment in the Steamer in consideration of some remuneration and there was also a clause in which the contractors undertook to indemnify the Company for all actions and claims, which the Company might be exposed to by reason of loss or delay occasioned to any goods in their custody except for loss or damage caused by accidental fire, earthquake or other act of God, etc. The defendant received the goods from the Jetty and before they could be delivered major portion of them lost by upsetting of the boat by some accident. The suit was filed against the shipping Company and Ahmad Bux, but the suit was withdrawn as against the shipping Company, and Ameer Ali J. dismissed the suit also against Ahmad Bux because in his Lordship's opinion he was not an insurer. The learned trial judge held that Ahmad Bux was a common carrier. On appeal by the plaintiff Rankin C. J. reversed the decision of the trial Court and at pages 887‑890 of the report in I. L. R. 60 Cal. (supra), observed as follows ?It is quite clear that a common carrier may make a special stipulation??? In my judgment the correct view to take is that the business done under this contract is not business of a different character. The position is that a common carrier, exercising a public employment, has committed a breach of law by failing to carry safely. An action lies against him, not in any way dependent upon privity of contract between himself and the plaintiffs. This question was raised in the case of Dekhari Tea Co., Ltd. v. Assam Bengal Railway Co., Ltd. (supra), and in that case I did not think it necessary to decide the point ???..Upon a consideration of the matter, from the point of principle, it may well be that the doubt, which I expressed, was over cautious, because in the judgment of Loard Macnaghten in the case of Irrawaddy Flotilla Company v. Bugwandas (supra), the principle of matter was explained thus: ? ?The obligation imposed by law on common carriers has nothing to do with contract in its origin. It is a duty cast upon common carriers by reasons of their exercising a public employment for reward. A breach of this duty says Dallas, C. J. in Bretherton v. Wood ((1821) 129 E R 1203 (1226).) is a breach of the law, and for this breach an action lies founded on the common law, which action wants not the aid of a contract to support it. And very soon after the decision in this Court of the Dekhari Tea Co.'s case (supra) the matter was dealt with in the case of London and North Western Railway Company v. Richard Hudson and Sons. Limited ((1920) A C 324 (333)) by the judgment, of Lord Dunedin, in a manner which removed all room for the doubt which I had expressed: 'That a common carrier is an insurer of goods to him for carriage????.Now Lord Mansfield in Forward v. Pittard ((1785) 1 T R 27 (33).) speaks of this obligation on the carriers part as an obligation independent of the contract. By that I understand that it is not an adjected term to the contract as made, but is an obli?gation which attaches from the fact of the goods being carried by a common carrier, in favour of the owner of the goods, whoever he may be. For indeed in many common cases it would seem to be inaccurate to speak of a contract of carriage as being made between the carrier and the consignee'. In my judgment, therefore, the position is that a person, who has suffered loss by the common carrier's breach of his common law obligation, can maintain a suit independent of contract .........The circumstances that Messrs Mackinnon Mackenzie assumed no liability for the safety of the goods during the transit from the jetty to the Ship does not, in my judgment, afford any answer to the common carrier???..Whoever tenders the goods to the common carrier, whatever his position vis-a-vis the owner of the goods, if the common carrier's duty is not performed he will make himself liable to the person, who suffers damage prima facie the owner of the goods, unless he has, at the time of the contract, restricted his obligation so as to give himself greater protection." We respectfully agree with the above observations of his Lordship. On a review of the above authorities and on a consideration of the forwarding note (Exh. 3) and the circumstances of the case, we hold that the Steamer Companies were agents of their disclosed principal‑the B. & A Railway and that the contract was not one and indivisible but was divisible contracts and as the goods were delivered to the Railway administrations in good order on "clear receipt" by the Steamer Companies and admittedly lost in carriage over the Railway transport system, the Steamer Companies are not liable for loss of or damage to the consignment ; and we accept the contention of the appellants as sound and reject that of the respondent as untenable. Then there remains only one other question for our determina?tion, namely, whether in the circumstances of this case, the Steamer Companies can contract out of their liabilities as common carriers by the contract as evidenced by the forwarding note (Exh. 3). Mr. Chatterjee for the appellants argues that they can do so, while Mr. Choudhury for the respondent urges that they are not entitled to do so. Mr. Choudhury argues that under section 6 of the Carriers Act they can limit their liability only as to the measure of damages for loss of goods in their own transport system; but such contract will not absolve them from their liability as common carriers and the limit to which they can absolve them?selves from liability is to be found in sections 3 and 4 of the Act and any contract beyond the exemptions provided for in the last two sections will be void in view of the provisions of section 8 of the Act. The trial Court relaying on the decision of D. N. Mitter J. in R. S. N. Co., Ltd. v. Jamunadas Ramkumar (supra) has held that the defendants Nos. 1 and 2 want to shift their liability for fulfilment of the contract to the Railway after the goods were made over to the latter at Chandpur under condition 11 of the forwarding note (Exh. 3) ; but such contract or modification of the main contract has been held to be void and inoperative in view of section 8 of the Carriers Act in the above decision which is on all fours with the present case as the facts are similar. Mr. Choudhury for the respondent for his argument places great reliance on that decision and supplement it by relying on the cases of British Foreign Marine Insurance Co. v. I. G. N. & Rly. Co., Ltd. (supra), and Alfred William Luddits v. Ginger Coote Airways, Ltd. (supra). We have already referred to the provisions of the Carriers Act and have underlined those portions of the provisions, which are relevant for our purpose. There is no question here that c the Steamer Companies are carriers as defined in section 2 of the Act. It will be clearly manifest from the provisions in section 6 and 8 of the Act and the portions in those we have underlined that the liability of a common carrier is that of an insurer for the carriage of goods. That appears to be the intention and policy of the legislature and it should be kept in view when dealing with exemption clauses and in construing limits permissible under the Act. There cannot be any question that as provided in the Carriers Act a common carrier can limit or reduce his liability as an insurer for carriage of goods. Although in ‑ the present case the Steamer Companies, whose business is that of a common carrier for the carriage of goods over their own system have booked the goods in question from the Armenian Street Ghat Station to Sylhet Bazar Station, which is a station of the Bengal and Assam Railway they have, as we have already indicated, acted as common carriers over their own system, that is between Armenian Street Ghat Station and Chandpur Station, where they made over the goods in question to the Bengal and Assam Railway for transport to Sylbet Bazar Station, and for the carriage between Chandpur Ghat to Sylhet Bazar Stations, they at the time of the booking at Armenian Street Ghat Sta?tion and entering into the contract with the consignor, acted as agents of the Bengal and Assam Railway to whom they made over the goods in question as stated; and so far as the carrying of goods between Armenian Street Ghat and Cbandpui is concerned they will be governed by the Carriers Act and for the transport of the goods over the Bengal and Assam Railway they will be governed by the Railways Act, inasmuch as they purported to act as agents of that Railway from the very beginning. In this connection we may conclude by referring to the following observations of Lord Shaw of Dunfermline in the case of Indian General Navigation and Railway Company, Limited v. Dekhari Tea Company Limited (surpa): "What is required' in the case of a person who answers the definition under the Indian Carriers Act, namely, of transporting for hire goods from place to place for all persons indiscriminately, is that the nature of the contract entered into must either have the limitation of the liability under the Act made expressly and in writing of the facts must be such that for the contract in question the contractor was departing from his usual business and engaging in a different type of business from that of common carrier." It is plain to us that be appellants in so far as the transport of the goods over the Bengal and Assam Railway was concerned, were not doing their business as common carriers but that of the Railway as latter's agents and were engaged in a business of a different character from that of a common carrier, and they were common carriers over their own system only and did not purport to act as such over the Bengal and Assam Railway, where the latter was the disclosed principal, while the Steamer Companies were their agents. In that view, we need not refer to the case reported in I L R 38 Cal. 28 (surpa) and 51 C W N 498 P C (supra) which are distinguishable. This disposes of the contentions of Mr. Choudhury, which does not appear to us to be sound. We do not find any substance either in the contention of Mr. Choudhury that the limit permissible under the law refers only to limit of damages within their own system of transport. The result, therefore is that this appeal is allowed and the judgment and decree of the learned Subordinate judge are set aside and the plaintiff's suit against the Steamer Companies is dismissed and the plaintiff‑respondent must pay the costs of the Steamer Companies appellants in this and in the trial Courts. Mr. Asir's clients, the Railway Administration, will bear their own costs in this Court. The cross‑objection is dismissed but without costs. AMIN AHMED, J.

‑I agree. A.H.???????????????????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.