P L D 1958 Dacca 460 (PLP)

11. In that case, jute was consigned in a flat from a place called Bera to Ruthtolla Ghat at Calcutta but, when the flat reached the discharging Ghat, the consignees were not ready to take delivery, Subsequently the flat went further down the river and ultimately moored near Nimtolla Ghat by the side of another flat. After she had been in this position for 2 or 3 days, a fire broke out in the adjoining flat and spread to the flat in question and destroyed a greater part of the jute consigned. In these circumstances, their Lordships observed that " As the contract of carriage had been terminated by the arrival of the flat at the wharf at which delivery should have been taken, and by the neglect of the plaintiffs to take delivery in due course, the liability of the defendant Company under the bills of lading had ceased, and its responsibility thereafter was that of an ordinary bailee. The limits of this responsibility are defined in the following sections of the Indian Contract Act of 1872 ", and then quoted sections 151 and 152 of the said Act. But for the fact that in that case the carriers were inland navigation carriers and not carriers by sea, as in the present case, that decision would have been an express authority in favour of the appellant. In view, however, of the dicta of their Lordships of the Judicial Committee themselves in the earlier case of Irrawady v Flotilla Company Limited v. Bugwandass (181 A121) that the Contract Act, 1872, "was not intended to deal, with the law relat?ing 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" ; it is not open to us to say that the provisions of the said sections apply also to such carrier, particularly since the question whether the said sections 151 and 152 of the Contract Act applied or not to carriers by sea was the main question for consideration before their Lordships. ,

12. It is, therefore, now necessary for us to consider as to whether the position of such carriers is materially different under the Common Law of England by which they are undoubtedly governed. Carriers by sea who offer to carry the goods of all commerce in a general ship or who run a line of ships from port to port habitually carrying all goods brought to them, are under the Common Law common carriers and thus incur the same liability in respect of loss or damage to the goods carried by them subject to any express exceptions relieving them from such liability. What that liability extends, to is stated in Halsbury's Laws of England, 2nd Edition, Vol. 30, page 315, thus :‑ " Under a contract of charter party (not by way of demise) containing no stipulation relieving the ship owner from liablility for loss of or damage to the cargo, the ship owner would certainly be liable to the charterer, for any loss or damage due to the negligence of himself or his agents. The weight of authority seems to be in favour of the view that under such a charter party his responsibility would be greater than this and that he would be liable not merely as a bailee for negligence but as an insurer for all logs or damage (whether or not it was due to his negligence of that of his agents) which occurred while the goods were in his custody as carrier, and which was not due to the act of God or the King's enemies or to an inherent defect in the goods themselves or to the default of their owner." The position is not different where, instead of a charter party) agreement, there is only a bill of lading, as will appear from the following quotation from the same volume of Halsbury's Law or England at page 504 :‑ " If goods are shipped in a general ship without any express contract being made or under a contract to which the Carriage of Goods by Sea Act, 1924, does not apply, and which does not contain any stipulations relieving the ship owner he under?takes to carry at his own absolute risk, the act of God or of the King's enemies or the inherent defect of the goods themselves or the shipper's default alone excepted. He thus incurs the same liability as a common carrier in respect of loss or damage to the goods."

13. It is clear from the above that the liability of a ship?owner at Common Law is much higher than that of a bailee, for, he is in the position of an insurer of the goods but that he may by express stipulations in the contract also limit that liability. Indeed it is not uncommon for ship-owners to do so and charter parties or bills of lading usually contain many express exemptions similar to those contained in the bill of lading issued by respondent No.

1. The clause in his bill of lading, upon which the Court below has placed great reliance in coming .to the conclusion that all liability of the said respondent was excluded, is in these terms :‑ " In all cases and under all circumstances the Company's liability shall absolutely cease when the goods are free of the vessel's tackle and thereupon the goods shall be at the risk for all purposes and in every‑respect of the shipper or consignee."

14. These words are no doubt of very wide and genera import and the question naturally arises as to whether they operate to exclude any and every kind of liability howsoever arising or whether they merely operate to exclude the liability which the shipowner undertakes under the bill of lading, namely, that, of a carrier at Common Law. The hill of lading constitutes a contract between shipowner and the shipper or the endorsee of the bill but it purports, as a rule, only to embody the terms of the contract on which the goods are carried and not of the t terms of any other contract for any other purpose. To hold otherwise would be manifestly unjust and unreasonable, for, then one would have to go to the extent of holding that the clause quoted above would effectively exclude even the liability arising, say, from the wilful negligence or wanton misfeasance of the shipowner. This surely could not have been the intention behind the said clause and, in our opinion, the Court below was clearly wrong in giving such a wide meaning to the same. The authori?ties, except one, relied upon by the learned Additional District Judge also do not support such a wide construction.

15. In the case of the Chartered Bank of India, Austarlia and China v. The British India Steam Navigation Co. Ltd. (13 C W N 733), the facts were that the goods were delivered over side into the lighters of a landing agent who stored them in the jetty shed from where the goods were fraudulently delivered by a servant of the landing agent to a person who was not the endorsee of the bill of lading and who did not even produce the same. The indorsee then sued the shipowners for damages for non‑delivery of the goods and the shipowners claimed to be saved from liability under a clause identical with the clause quoted earlier. The Supreme Court of Penang held that the said clause exempted the shipowners from liability and the Privy Council upheld the said decision; but, upon a careful reading of the reports, it appears that their Lordships of the Judicial Committee merely agreed with the view taken by the learned Chief Justice of the Supreme Court which, as stated at Page 736 of the reports, was that the ship?owners were exempt from the liabilities which attached to them as carriers only; for, the learned Chief Justice appears to have taken the view that after delivery to the landing agent the ship?owners were holding the goods only as bailees and were liable only to use reasonable care. Since, in the facts of that case, there was no want of reasonable care on the part of the shipowners, they could not be held liable.

16. In the case of Kariadan Kumber v. The British India Steam Navigation Co. Ltd. (I L R 38 Mad. 941: A I R 1915 Mad. 833 ), cited by the lower Appellate Court, Sadasiva Ayyar and Tyabji, JJ., did, however; take the extreme wide view that such a clause was operative even to absolve the shipowner from the negligence of its servants. This view was directly opposed to an earlier Full Bench decision of the same High Court in the case of Sheik Mahammed Ravuther v. The British India Steam Navigation Co. Ltd. (I L R 32 Mad. 95) and purported to be based upon the decision of the Privy Council in the case of the Chartered Bank of India, Australia and China v. The British India Steam Navigation Co. Ltd., referred to above. With great respect to the learned Judges of the Madras High Court, we are unable, for the reasons already indicated, to agree that their Lordships of the Judicial Committee intended to give such a wide import to the said clause.

17. Again the case of Irrawaddy Flotilla Co. Ltd. v. Bugwandass has no bearing on the facts of the present case, for, there the goods were destroyed by fire on board the vessel and the only question was whether the shipowners could avoid their higher liability at Common Law by invoking sections 151 and 152 of the Contract Act.

18. The decision in the case of Haji Shakoor Gany Firm v. Firm of Volkart Brothers and another (A I R 1931 Sind 124) does not also appear to us to have any bearing on the question before us, for, it does not appear from the reports that the construction to be put on any such or similar clause fell to be considered in that case.

19. On the other hand, there appears to us to be abundant authority in support of the proposition of law convessed by the learned Advocate for the appellant. In Halsbury's Laws of England, 2nd Edition, page 549, the law is thus enunciated " Apart from contract or special custom, the shipowner's liability does not at Common Law cease on the landing of the cargo ; though he is no longer liable as a carrier, he incurs a new liability as a warehouseman," Similarly, Carver in his Treatise on the law relating to the Carriage of Goods by Sea, 6th Edition at page 609, gives the following exposition of the law on the subject :‑ ????? " But, if by arrangement, or following a usual course of business, the carrier at the end of the transit puts the goods into warehouse for their owner, to stay there until he is ready to take them, or until another person who is to carry them forward is ready to do so, the carrier ceases to be responsible as such and becomes answerable only as a warehouseman for any want of reasonable care in keeping the goods : . . ??.. . And the same rule applies when the consignee fails to take delivery in proper time. If the cargo is ready to be deli?vered, it is the duty of the consignee to come and take it, and if he does not come within the agreed time, or within a reasonable time, where no fixed period is allowed, the shipowner is improperly saddled with the care of the goods. He may, there?fore, terminate his responsibility as carrier by warehousing them ; and after doing so, he becomes, subject to the statute as to warehousing, responsible as a warehouseman only. When once the consignee is in mora, by delaying to take away the goods beyond a reasonable time, the obligation of the carrier becomes that of an ordinary bailee, being confined to taking proper care of the goods as a warehouseman ; he ceases to be liable in case of accident. If the ship-owner still holds the goods as carrier, he does so under the contract, and is entitled to the benefit of the excep?tions. But if he has warehoused the goods, under such circum?stances as to have become responsible as a warehouseman. it would seem open to question whether exceptions of negligence, in the bill of lading, continue to protect him."

20. In this connection, we would also like to refer to the observation of Blackburn, J., in the case of Mitchell and others v. The Lancashire and Yorkshire Railway Company (1875 L R 10 Q B 256 (260)), where His Lordship propounded the principle .of the English Common Law applicable to common carriers thus :‑ " I take it the law is very clear to this extent, that where a carrier receives goods to carry to their destination with a liability as carrier (except so far as that duty is qualified by exceptions), he may be said to be an insurer. The goods are then to be carried at the risk of the carrier to the end of the journey, and when they arrive at the station to which they were forward?ed, the carrier has then complied with his duty when he has given notice to the consignee of their arrival. And, after this notice, if the consignee does not fetch the goods away, and becomes in mora, then I think the carrier ceases to incur any liability as carrier, but is subject to the ordinary liability of bailees."

21. Again in the case of Chapan v. The Great Western Railway Company (1880 L R 5 Q B Divn. 278 (281 and 282)), Cockburn, C. J. observed :‑ " The contract of the carrier being not only to carry, but also to deliver, it follows that, to a certain extent, the custody of the goods as carrier must extend beyond, as well as precede, the period of their transit from the place of consignment to that of destination. In these cases, while, on the one hand, , the delay being un?avoidable cannot be imputed to the carrier as unreasonable or give a cause of action to the consignor or consignee, on the other hand, the obligation of the carrier not having been fulfilled by the delivery of the goods, the goods remain in his hands as carrier, and subject him to all the liabilities which attach to the contract of carrier. A fortiori, will this be the case where there is unreasonable delay on the part of the carrier, if the consignee is ready to receive. The case, however, becomes altogether changed when the carrier is ready to deliver, and the delay in the delivery is attributable not to the carrier, but to the consignee of the goods. Here, again, just as the carrier is entitled to a reasonable time within which to deliver, so the recipient of the goods is entitled to reasonable time to demand and receive delivery. He cannot be expected to be present to receive delivery of goods which arrive in the right time, or of which the arrival is uncertain, as of goods coming by sea, or by a goods train, the time of arrival of which is liable to delay. On the other hand, he cannot, for his own convenience, or by his own laches, prolong the heavier liability of the carrier beyond a reasonable time. He should know when the goods may be expected to arrive. If he is not otherwise aware of it, it is the business of the consignor to inform him. His ignorance at all events where the carrier has no means of communicating with him which was the case in the present instance cannot avail him in prolonging the liability of the carrier, as such, beyond a reasonable time. When once the consignee is in mora by delaying to take away the goods beyond a reasonable time, the obligation of the carrier becomes that of an ordinary bailee, being confined to take proper care of the goods as a warehouseman; he ceases to be liable in case of accident."

22. Although both the above cases were against Railway Companies it is clear from a perusal of the above judgments that their Lordships were discussing the general liability of common carriers at Common Law, for, some of the earlier cases referred to in the said judgments were cases against carriers by sea. Moreover these decisions appear also to have been relied upon by the learned authors we have referred to earlier, to support the views expressed by them. The lucid and cogent reasons given by the learned Chief Justice, in the last case referred to above by us, leave no room for doubting that at Common Law, after the contract of affreightment ends, the common carrier, incurs a new liability as an involuntary warehousemen or a bailee if the goods still continue to remain in his custody even by reasons of some fault of the consignee and he is bound to take such care of the goods as a prudent man would take of his own goods of the same kind, bulk or value in similar circumstances. Such bailmen arises by necessary implication from the nature of the transaction itself as indicated by Cockburn, C. J. The lower Appellate Court, therefore, in our opinion, clearly erred in failing to examine the liability of respondent No. 1 from this point of the view.

23. Having come to the conclusion that after the goods, in the present case, left the ship's tackle and were stored on the wharf of respondent No. 1, the said respondent become a bailee of the said, goods we have now to examine whether as such bailee he took the necessary care that the Common Law required him to take. It is clear from the evidence that the goods, which were to the knowledge of the said respondent bales of old newspaper, were kept in the open on the floor of the wharf exposed to the sun and the rain. The evidence of the witness examined on behalf of respondent No. 1 who attempted to prove that the goods were stacked on a platform and were covered over with a tarpaulin were disbelieved by both the Courts below and, in fact, described as exaggerated and untrue by the lower Appellate Court. As such, the only question is whether upon the findings of the Court below, respondent No. 1 can in law be said to have taken reasonable care of the goods. The lower Appellate Court seems to think that in the absence of any further proof as to the weather conditions at the time it could not be said that such care was not exercised. We are unable to agree with this view, for, we are satisfied on the findings of the lower Appellate Court itself that knowing that the goods were of such a kind as were easily liable to be damaged by water and exposure to the sun no prudent man would have kept such goods m the manner in which they were found by the Courts below to have been kept by respondent No.

1. In these circumstances, respondent No. 1 must on these findings be held to have failed in law to take such reasonable care of the? goods as he was bound by the Common Law to take as a bailee,? even though merely an involuntary bailee of the goods.

24. As for the question as to how far the action of the appellant himself, in not taking delivery in due time, i.e., as soon as the goods left the ship's tackle, contributed towards such damages, we are constrained to observe that the question was wholly irrelevant in the present case, for, the appellant was not the bailee and the only question here was as to how far respondent No. 1, who became after the landing of the goods the bailee thereof, had discharged his duty as such bailee.

25. It remains now for us to consider the question of limitation. The lower Appellate Court has, of course, held upon the basis of the erroneous view that it took of the case made out in the plaint, that the special limitation of. one year provided by Article III of the `Rules relating to bills of lading set out in the Schedule to the Carriage of Goods by Sea Act (Act XXVI of 1925) applied and the suit was barred by limitation. In the view we have taken of the liability of respondent No. 1, we must also hold that since the liability did not arise under the bill of lading but apart from it by implication, under the principles of the English Common Law, the said special limitation did not apply in the present case and that the suit must be held to be governed by the general law of limitation and, in our opinion, Article 115 of the First Schedule to the Limitation Act applied in the resent case.

26. We might add here that so far as respondent No. 2 is concerned the appellant throughout appears to have taken. up the position that the latter was in no way liable for the loss and even before us no argument has been advanced as to the liability of this respondent. Both the Courts below have also taken the view that the appellant had no cause of action against this respondent and we think rightly, held that the suit as against. this respondent must be dismissed.

27. For the reasons given above, this appeal must, in our opinion, b? allowed and the judgment and decree of the lower Appellate Court set aside and the suit must be decreed for the, amount claimed, which is not in serious dispute, against res?pondent No.

1. In these circumstances, we set aside the judgment and decree of the Court of Appeal below and restore those of the trial Court, which decreed the suit as against res?pondent No. 1 without costs. Both the appellant and respondent No. 2 will be entitled to their costs in this Court and the lower Appellate Court and will recover the same from respondent No.

1. AMIN AHMED, C. J.‑I agree. Z. A. S. Appeal allowed.