1. The Chief Judge found that the sugar, had been imported by the plaintiffs into Rangoon about a year before, was shipped on the 11th and 12th November, 1887, for Bombay on board the Byculla: that no mate's receipt was given for it to the shippers at the time of shipment, owing to a dispute as to the exact number of bags put on board--the shippers declining to accept a receipt for 1,302 bags, the number tallied by the ship's officers, while the mate refused to sign one for 1,306 bags, the number tallied by the shippers: that owing to the non-production by the shippers of the mate's receipt, no bill of lading was granted for the plaintiff's sugar before the steamer left Rangoon on the 15th November: that on the 28th November, 1887, a bill of lading was signed by the defendants' branch office at Calcutta: that the floor of the hold on which the plaintiffs' sugar (which had been put on board in good condition) was stowed had been wetted, before the receipt of the sugar, with water brought on board by logs of timber floated alongside in rafts and shipped before the sugar, and that such water could and did get at and damage the sugar: that the bags of sugar after shipment had been further wetted by water brought on board by other logs of timber shipped in the same way after receipt of the sugary and that the logs of timber were stowed in a heap only two feet from the heap of the bags of sugar, and that the wet from the former could and did get at and damage the latter. The Chief Judge held, on the authority of The Duero L.R. 2 A & E., 393 that the defendants were bound to provide a ship reasonably fit to receive the plaintiffs' goods; that under the circumstances as found by him they had failed to do so; and that on a proper construction of the exceptions in the bill of lading, which he considered only referred to what might occur after the commencement of the voyage, they were not protected from their liability for the damage sustained by the plaintiff's sugar. The Chief Judge gave judgment for the plaintiffs, contingent on the opinion of this Court on the question whether the defendants were protected by the exceptions in the bill of lading.
2. The Chief Judge has held--and, we think, correctly--that the bill of lading, although given to the plaintiffs after the vessel Bailed, must, under the circumstances which occasioned the delay, be taken to express the contract between the parties at the time when the goods were received on board. In the case of The Duero L.R. 2 A. & E., 393 a cargo, through the careless stowage of the master and crew, was damaged iii the course of the voyage. The bill of lading was not signed till after the cargo was stowed. The damage came within one of the exceptions in the bill of lading, and Sir R. Phillimore says (at p. 395): 'It has also been urged, that this bill of lading being subsequent to the stowing, it could not relieve the shipowners from the obligations they were under, as carriers, to repair the mischief done by improper stowage of the goods. It was not exactly contended that there were two contracts in this case; but it was insisted that the bill of lading did not cover the injury arising from the stowage, which act of stowage took place before the bill of lading was granted. The conclusion at which I have arrived at is that I have only to look at the bill of lading as the expression of the true contract existing between the parties, and to consider whether the delivery of these goods in a different condition from that in which they were originally placed on board does or does not fall within the excepted perils mentioned in that bill of lading.'
3. Considering, then the bill of lading to be the contract of carriage between the parties, the Chief Judge held that the exceptions contained in it referred exclusively to occurrences after the commencement of the voyage, and did not protect the shipowners from the obligation of being that the ship was reasonably fit for accomplishing the service which the shipowner engages to perform, as laid down in Steel v. The State Line Steamship Co. L.R. 3 Ap. Cal. 72 . It is plain, in the present case, that if the defendants' ship can be said to be unfit to receive and carry the plaintiffs' goods, it was entirely by reason of the negligence of the defendants' servants see Sandeman v. Scurr L.R. 2 Q.B. 86 in not drying the floor of the ship, or dammering it, before placing 'the sugar on board; and also in stowing the sugar so near to the wet timber previously shipped that the dripping water fell upon it; for it is not suggested that the wet state of the floor was due to any inherent defect in the ship itself as was the case in Tattergall v. The National Steamship Co. L.R. 12 Q.B.D. 97. In Hayn v. Culliford L.R. 4 C.P.D. 18 sugar was damaged by being stowed under oxide of zinc, and Lord Bramwell, delivering the judgment of the Court, assumed that, if the exceptions in the bill of lading had included acts of negligence of agents and servants, the defendants would have been protected; and the same principle must apply to what has been found to be the causes of damage to the sugar in the present case. The question, therefore, for decision is whether the defendants are protected by the exceptions in the bill of lading against the consequences of acts and defaults of their servants; for, otherwise, whether by reason of the implied undertaking that the ship was fit to receive and carry the plaintiffs' goods, or the obligation of the defendants on the ordinary contract of a carrier, as put by the Court in Hayn v. Culliford L.R. 4 C.P.D. 182 the defendants would be liable.
4. The proper rule of construction of a bill of lading was much considered by the Court in Hongkong and Shanghai Banking Corporation v. Baker 6 Bom. H.C. R O.C.J. 71 ; and in appeal, 7 Bom. H.C.R. R, O.C.J., 186 In that case the bills of lading exempted the master from liability from loss occasioned by 'The act of God, the Queen's enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigation, of whatever nature of kind soever.' The goods was lawfully landed on the Custom House Bandar at Bombay, where they were accidentally burned before they were delivered to the consignee. The Court of Appeal, affirming the judgment of Sir Richard Couch, held that the master was protected by the above exception in the bill of lading. Sir Michael Westropp, in delivering the judgment of the Court, said: 'It has been contended for the plaintiffs that the scope of that exception must be controlled by the word 'other' preceding the words, 'dangers and accidents of the seas, rivers, and navigation'; but we cannot accede to that argument. Fire, no doubt, may occur at sea, as well as on shore, but it never has been regarded as a peril, danger, or accident of the sea within the meaning of those terms as known to mercantile usage or the law ' 7 Bom. H.C. R, O.C.J.. 202. At page 206 the Court of Appeal says: 'The case of De Rothschild v. The Royal Mail Steam Packet Co. 7 Ex. 734: 21 L.J. Ex. 273has been referred to as authority for the proposition that exceptions in a bill of lading should be construed strictly, but in the judgment (attributed in the Exchequer Reports to Parke, B., and by the Law Journal to Pollock, C.B.,) the Court lays it down that the ordinary meaning of the words used mast be followed, and the circumstances under which the contract is made must be regarded; and it refused to adopt a meaning which it considered unreasonable, or unlikely to be within the intention of the parties. The same doctrine has been applied to charter parties--Barker v. M'Andrew; Bruce v. Nicolopulo 11 Ex. 129 : 24 L.J. Ex 321 ; Brough v. Whitmore 4 T.R. 206 . The use of the word 'other' before 'dangers and accidents of the seas,' &c;, in the present bills of lading, cannot, we think render 'fire' a peril of the sea, or limit it to fire on board the ship. The reasonable mode of construing the contract contained in the bill of lading is to treat the exceptions as co-extensive with the liability. Were we to apply the word 'other' so as to cut down the shipowner's and master's protection against fire to fire occurring on board the ship, we should be equally bound to apply it in the same manner to limit the exception of the acts of Good, and the Queen's enemies, so that if the goods, even though landed after the expiration of the fifteen days contended for by the appellants, were, whilst yet undelivered, to be destroyed by lightning, or by a hostile force at war with the Queen, the shipowners and master would be unprotected. This we do not think could have been the intention of the parties.' At the conclusion of their judgment, the Court say (p. 208): 'The language of the five bills of lading in this case leads to the conclusion that the exception of fire is co-extensive with the contract to deliver, and does not limit the protection to the time during which the goods are in the ship. The landing of the goods appears to us to have been in conformity with the custom of the port, and without default on the part of the master. For these reasons, we affirm the decree with costs.'
5. The exceptions in the bill of lading in the present case are: 'the act of God, the Queen's enemies, restraint of princes or rulers, pirates or robbers by sea or land, accidents, loss, and damage from vermin, barratry, jettison, collision, fire, accidents to, or defects latent or otherwise in, hull, tackle, boilers, or machinery or their appurtenances, steam, and all the perils, dangers, and accidents of the sea, rivers, land carriage and steam navigation of whatsoever nature and kind; and accidents, loss or damage from any act, neglect, or default whatsoever of the pilot, master, or mariners, or other servants of the company, or from any deviation excepted.' It is said that as the exception as to 'acts of servants' of the company comes in the bill of lading after the exception of 'perils of the sea,' it must have been intended to apply only to acts after the voyage had commenced. The Chief Judge relies on the conclusion come to in Steel v. The State Line Steamship Co. L.R. 3 A.p. Ca. 72 that the acts contemplated by the bill of lading were subject to the sailing of the ship; but the language of that bill of lading was very exceptional, and pointed clearly to all the exceptions being so restricted. The exceptions in the present case are, on the contrary, of the most comprehensive kind, and clearly comprehend occurrences which might happen immediately after the sugar had been delivered over to the shipowners. There seems, therefore, to be no sufficient reason for holding that the exception, in general terms, against the negligence and default of the pilot, master, mariners, or other servants of the company, should be restricted to the voyage, simply because it is found at the close of the bill of lading. It is entirely independent of the provision against the perils of the seas, and indeed separated from it by a semicolon. And we may here observe that the exception as to acts of pilots and mariners in Hayn v. Culliford L.R. 4 C.P.D. 182 which the Court said would have applied to negligent stowage had agents and servants been included in it, is found at the end of the bill of lading after 'perils of the seas.' If after the plaintiffs' goods had been shipped at Rangoon, and during the three days that the steamer lay there before she left for Bombay, she had been run down on a dark night by another vessel, as a steamer has before now been run down and sunk when at anchor in the harbour of Bombay (on the 15th November, 1887, the day the Byculla left Rangoon, according to the Bombay almanack there was a new moon), it would, we think, be most unreasonable to hold that the defendants were not entitled to rely on the word 'collision' in the exemption clause. So if the steamer had during those three days been burnt, or been attacked and sunk by the Queen's enemies, or if the plaintiffs' goods had suffered from 'pirates or robbers by sea or land,' why is the company not entitled to rely on the exceptions applicable to such a state of things? The case of Hongkong and Shanghai Banking Corporation v. Baker 7 Bom. H.C. R O.C.J. 186 is, we think one of high authority. It was argued in the Court of Appeal in December, 1869, by the then Advocate-General, Mr. Scoble, and Mr. M'Culloch for the plaintiffs, and by Mr. Green and the present Advocate-General for the respondent, the arguments extending over five days. Sir M.R. Westropp, C.J., delivered the decision of the Court in October, 1870, and at page 207 of the report towards the close of a very careful and elaborate judgment, said: 'The reasonable mode of construing the contract contained in the bill of lading is to treat the exceptions as co-extensive with the liability.'
6. We adopt a similar construction in regard to the bill of lading in the present case. Any other view would, in our opinion, be unreasonable, and contrary to the intention of the parties, as evidenced by the terms of the bill of lading itself. It was, no doubt, the duty of the defendants to supply a seaworthy steamer. In the present case the Byculla was, according to the facts stated by the Chief Judge, reasonably fit for the carriage of the plaintiffs' 1,306 bags of sugar from Rangoon to Bombay but the master, mariners, or other servants of the defendants negligently put them in a part of the hold which was not dry, and 1,046 of the bags, from such improper stowage, and also by the subsequent improper stowage of other wet logs of timber, became wetted and damaged.
7. For the above reasons we reply, in answer to the question referred for the opinion of the High Court, that the defendants were protected from liability by the terms of their bill of lading, the damage complained of being, in our opinion, covered by the words 'and accidents, loss, or damage from any act, neglect, or default whatsoever of the pilot, master, or mariners, or other servants of the company...excepted.'
8. Section 620 of the Civil Procedure Code, we think, applies, and by that section the costs consequent on a reference are made 'costs in the case.' That being so, they must be left to the Judge of the Small Cause Court for him to deal with.