1. This case raises an important question as to the rights and liabilities of the public and of the Railways when goods are despatched under an Owner's Risk-Note Form B. Some timber was despatched on 18th from Nimtolla station on the Eastern Bengal Railway to the Jumna Bridge station at Agra for delivery to the 1 plaintiff. Two Railways were concerned, but it is agreed that for the purposes of this case they may be treated as one Company. I shall, therefore, speak of 'the Company.'
2. The usual period of transit would be about eight days and there is no question as to what the route should have been, i.e., there is no suggestion of ordinarily alternative routes. The goods were in fact sent by the Railway Company to Jubbulpore, where by some further mistake they were delivered there to the Military Authorities.
3. On the 18th of September the timber was traced to Jubbulpore, recovered by the Company and re-booked to Jumna Bridge. On the 25th of September, it was delivered to the plaintiff after a Railway officer had assessed the damage at Rs. 350-6-0. The Company however refused to pay anything on the ground that the goods had been despatched under an ' Owner's Risk-Note Form B.'
4. The plaintiff thereupon sued the Company alleging loss due to delay and deterioration, the consequence of the negligence and carelessness of the Company.
5. The responsibility of. the Company is governed by the Railways Act, No. IX of 1890, Section 72. That section, subject to any provisions of the Act, imposes on the Company responsibility of a bailer under Sections 151, 152 and 161 of the Contract Act No. IX of 1872. Under Section 151 of the Contract Act the Company is bound to take such care of the goods as a man of ordinary prudence would take of his own goods. If it has taken that care, Section 152 lays down that it is not, in the absence of a special contract, responsible for deterioration and under Section 161 if, by default of the Company, the goods are not delivered at the proper, time the Company is responsible for deterioration. So far as responsibility is regulated by Section 72 of the Railways Act, the Common Law of England and the Carriers Act No. III of 1865 are inapplicable.
6. If then the goods have deteriorated by failure of the Company to deliver at the proper time and that failure is duo in its turn to failure of the Company to use ordinary prudence, the Company is, in the absence of a special contract, responsible.
7. Under Section 76 it is sufficient for the plaintiff, apart at any rate from any special contract, to prove the deterioration; the burden of proof is not on him to show how it was caused.
8. Here there is a special contract, the owner's risk-note. It is not a special contract within the meaning of Section 152 of the Contract Act, for it is not a contract increasing the responsibility of the Company and saddling it with responsibility even though it has used the due care required by Section 151. It is a contract purporting to limit it responsibility under Sections 151 and 161, such an agreement as is referred to in Section 2(2) of the Railways Act the important words of the Risk-Note are:
Whereas the consignment * * * its charged at a special reduced rate * * * the undersigned, do in consideration of such lower charge agree and undertake to hold * * * railway administration * * * over whose railways * * * the said goods may be carried in transit from Nimtolla station to Jumna Bridge station harmless and free from all responsibility for any loss, damage, destruction or deterioration of or damage to, the said consignment, from any cause whatever except for the loss * * * duo to wilful neglect * * * or to theft * * * before, during and after transit over the said railway lines.
9. No question of loss duo to neglect or theft has been raised before mo. The plaintiff contends that this Form B did not exempt the Company from liability for damage suffered owing to his goods being sent, not from Nimtolla to Jumna Bridge by the ordinary route but from Nimtolla to Jubbulpore, a place off the ordinary route, and thence later to Jumna Bridge. It is not contended by the defendant Company that Jubbulpore is on the ordinary route or that it could possibly be considered to be on an alternative route; but simply that the Form B absolves them provided they delivered the goods eventually at Jumna Bridge. This defence was accepted by the learned Judge of the Court of Small Causes and the plaintiff has come to this Court in revision.
10. I will deal with the matter first as it presents itself to me independently of authority. The issue seems to me to be really simple. When a contract is entered into the parties must respectively be hold to be bound by the ordinary meaning of the words where the words are not proved to be used in some special sense.
11. For the Company it is contended that if they at some time or other eventually got these goods from Nimtolla to Jumna Bridge, irrespective of where they went in the course of their journey or how long they took, the Company is exempt.
12. To establish this defence the Company must show not only that this is the construction which they themselves put and which they intended should be put by consignors on the risk note, but they must further establish that it is the reasonable construction which any ordinary intelligent person acquainted with the English language must put upon it. As it appeared to me when reading this risk-note for the first time no one could fail to understand by it that the consignor's agreement to make no claim for certain cases of damage was limited by the understanding that he was holding the Company free from responsibility while taking his goods from Nimtolla to Jumna Bridge by the ordinary route. The words of the risk note could never to my mind be reasonably hold to raise in the mind of an ordinary person any idea that his goods might be carried half round the world by the act of the railway and that he would have no claim for damage suffered provided that the goods eventually arrived at their destination. The words are plain 'over whose railways *** the said goods may be carried in transit from Nimtolla station to Jumna Bridge.' There is one ordinary transit route from Nimtolla to Jumna Bridge and not an infinite variety of routes spread all over India as the Company would have it. The words that I have just quoted are followed later by the words 'before, during and after transit.' I should not have considered it necessary to mention this second reference to 'transit' but that my attention was invited to it, though I was unable to appreciate the exact argument that it was intended to found thereon.
13. There is no question here of any damage before the transit began or after it was completed. It is clear that the word 'transit' can only have the same meaning that it has, when used earlier in the Note and that the phrase 'during transit' can only mean during transit on 'the route expressly or impliedly indicated,' to quote tho phrase used by Lord Atkinson (page 273) in the case London and N.W. Railway Co. v. Neilson (1922) L.R. 2 A.C. 263 to which I shall later refer.
14. Here there is no question of damage during transit on such route. The damage resulted from departure from the route expressly or at least impliedly indicated.
15. Apart altogether from authority I am of opinion that in taking the goods off the ordinary route the Company went outside the terms of the contract and cannot found a claim for exemption on the terms of that contract.
16. I should have no hesitation in setting aside the order of the Court of Small Causes and. returning the case for decision of the other issues that arise.
17. I will now turn to the authorities. The learned Judge of the Small Causes Court held the Company exempted from responsibility by the risk note, holding that 'the facts in this case are on all fours with those of Ram Kishen v. North-Western Railway A.I.R. 1923 All. 122.'
18. It is true that the facts were much the same in that case, though there was in fact no wrongful handing over of the goods to a third party. Between the despatch and the delivery such as occurred in the present case, which in itself might differentiate the case. A suit was brought against the Railway Company because of damages suffered owing to certain goods despatched from Umballa to Ballia having been carelessly carried by mistake to Bailey. The learned Judges before whom the case came in this Court decided against the plaintiff. If the point which is now before me had been decided I should, of course, be bound by the decision unless I referred the present case. They did not, however, decide the point.
19. It does not even appear that it was raised before them. It is true that it was said 'Under the terms of that risk note, the N.-W. Railway Company would only be responsible in the event of the loss of the consignment * * * due to wilful neglect.' But the very next words show that the only point which, so far as appears from the judgment, was argued was that 'deterioration' was not the same as 'loss.' In other words the judgment only dealt with the second portion of this risk note which makes the Company liable for the loss of a consignment due to wilful neglect or theft.
20. On the other hand, the point now before me was definitely raised and decided in a Bombay Case Valli Muhammad Hamad v. G.I.P. Railway Co. A.I.R. 1922 Bom. 74. That case does not appear to have been referred to in the Allahabad case probably 1 it had not then been published.
21. The learned Judges of the Bombay High Court held, 'it seems obvious that the contract was to carry the goods by the nearest route.' By taking the goods by another route the Company 'went outside the terms of the contract and could no longer rely on the protection afforded by the risk note so as to be absolved from liability for the loss which occurred. The ease for the plaintiff before me is, if possible, even more clear for it cannot even be suggested that Jubbulpore was on an alternative route.
22. The only other case to which it will be necessary to refer, but one of very great importance, is that of The London and North-Western Railway Co. v. Neilson (1922) L.R. 2 A.C. 263. In that case the House of Lords upheld an order of the Court of Appeal Neilson v. London and North-Western Railway Co. (1922) 1 K.B. 192 affirming an order of the Divisional Court Neilson v. London and North-Western Railway Co. (1921) 3 K.B. 213 which reversed a judgment of the County Court given in favour of the defendant railway. On behalf of the defendant Company here an endeavour has boon made to distinguish that case from the present. It is, therefore, necessary to state the facts of it in some detail. Examined carefully believe it will be found to be wholly applicable.
23. A Theatrical Company desired to move with their belongings, including their theatrical costumes, from Llandudno to Bolton. The ordinary route, as was admitted, would be via Manchester. For the benefit of theatrical companies there existed a special form of risk-note.
24. Under ordinary circumstances Neilson Company, having more than ten tickets, were entitled to have their property placed in a sealed van which would travel along with them attached to their passenger train. Had the contract remained at this, it is clear there would have been no shadow of doubt that there was an expressly agreed route for the luggage to travel i.e., the route along which the passenger train would travel.
25. I hold that in the case before me there is also a clearly agreed route, but if those had been the only facts in Neilson's case the point would not have oven been arguable. It was on the ground that in Neilson's case the passenger route was expressly indicated that it was argued on behalf of the Railway hero that that case was distinguishable; but that is not so. I have quoted above the ordinary Theatrical Company contract, but in the case of Neilson's Theatrical Company there was a specific variation of the ordinary contract made with such theatrical companies. The plaintiff Neilson was informed beforehand by the Railway Company that it was impossible to send the van along with the passenger train in which the Theatrical Company would travel further than Manchester, and that thence it would be forwarded later and would arrive at Bolton. 'probably' in time for their theatrical performance.
26. It is therefore important to appreciate that in Neilson's case the special condition of the ordinary theatrical risk note (that the goods should travel with the passengers) only affected the route from Llandudno to Manchester and that from Manchester to Bolton that condition did not apply, and so far as this second portion of the route was concerned upon which the trouble arose, the conditions were identical with those in the present case. I have only quoted the portion of the conditions specially relating to theatrical companies in order to show that these special conditions do not in the particular circumstances of Neilson's contract differentiate that case from the present. The remaining conditions were those of the ordinary owner's risk-note.
27. The terms of the English risk-note in Neilson's case will be found in the judgment of Lord Buckmaster at pages 266 and 268. A comparison will show that the English note differs from the Form B in this case in only two particulars. In the English note the words 'in transit'. only occur and are not followed by the names of the stations of despatch and destination. The insertion of those names in the Indian risk-note, if it makes any difference at all, makes the case stronger against the defendant Railway here. The other point of difference is that there do not occur in the English note the words 'before, during and after transit.' I have already noted that these words do not add anything to the meaning of the word 'transit.'
28. Now, briefly, what happened in Neilson's case was this : The van accompanied the passenger train as agreed as far as Manchester. It was there cut off as agreed. It should have followed later to Bolton but by some accident the label on the van had become detached. Owing to this accident and the further careless reading of a telegram by a Railway servant the latter did not know what to do with the van lie therefore opened it and took out all the luggage. Some members of the Theatrical Company knowing that their luggage was to proceed in a sealed van had not taken the trouble to re-label their own articles with the result that some had no labels and some had old labels the articles with no labels the Railway servant placed in the Manchester Exchange station cloak room and those which had labels he sent to various towns whose names were borne on the labels. The result of course was that the Theatrical Company did not get their costumes in time for their performance and sued the Railway for damages. It may be noted that in Neilson's case an endeavour was made by the plaintiff to show wilful neglect but this was held not to be established (page 276). It would, in fact, be very difficult to establish.
29. The House of Lords, upholding the two lower Courts, hold that the Railway Company was liable. Lord Buckmaster (page 268) said:
The exemption is from liability during the 'transit,' and when once the goods are diverted from that route the protection ends and again (page 269.) 'If the route be abandoned, whether it was due to oversight, ignorance, accident or design, equally ho agreed transit is departed from, and the privileges the carrier enjoys by contract during that transit cease.
30. In quoting the English note Lord Buckmaster put the words ' the transit' in italics; and the above quotations make it perfectly clear that the breach of contract referred to was not in the breaking open of the van nor in the failure to send the luggage in company with the passengers from Manchester to Bolton, a condition of the contract which had been specifically waived by agreement between the parties but in sending the goods off the ordinary route. That is what has happened in the present case.
31. Lord Atkinson said (page 273):
The special provision absolving the railway must be hold to refer to the subject-matter of the con tract and of that alone namely the carriage of the goods from the point of departure to the destination named by the route expressly or impliedly indicated.' And again 'As, soon us the carrier deliberately deviates from the stipulated route he carries the goods where the consignor never agreed that they should be carried, and whore he (the carrier) by his special contract never agreed that he would carry them. So far from performing the duty to which the special protective provision applies, ho abandons the attempt to perform it, cases to act in accordance with it, in fact violates it.
32. It may be incidentally noted that Lord Sumner, J., held (page 277) 'that even taking the goods out of the sealed van and storing them in the cloak room of a station on the agreed route was a breach of the contract to take them by the agreed route.
33. Neither on the findings nor on the printed contract did the route from Llandudno to Bolton run through the Manchester Exchange; Cloak room.
34. With how much more force would this apply to actually delivering the goods to some third party, as in this case to the Military Authorities in Jubbulpore and leaving them with them for weeks. But even without this element the case against the Railway is clear. On this question of 'transit', we find further in Halsbury's Laws of England, Volume IV, 'Carriers' (page 70).
A carrier is bound to carry by his usual and, customary route and must not deviate therefrom unnecessarily'; and (at page 14) 'the carrier is bound to carry the goods by the ordinary route by which he professes to carry, and is therefore liable to damages for delay caused by unnecessary deviation from that route.
35. I hold that in fact there is no ambiguity about Form B on the only point which I have to decide; but if there were such ambiguity it is certain that it is not the defendant company who could avail themselves of it; and it could be said as was said in Neilson's case by Lord Buckmaster at page 269 (in reference to the use of the word 'misconveyance' in the English note).
were the appellant's contention accepted1 it would amount, as counsel were compelled to concede, to reading the clause as one providing that the company should not be liable for loss or damage for any cause other than wilful negligence on the part of their servants * * * I decline to give to confused phrases in such a contract a moaning which an ordinary man would be slow to realise
36. Lush, J., in the Divisional Court Neilson v. London and North-Western Railway Co. (1921) 3 K.B. 213 commented: 'A consignor may well consent to bear the risk of loss or delay while his goods are being carried a specified distance of say twenty miles but it is quite another thing to ask him to bear that risk while his goods are being carried a distance of perhaps five hundred miles through some mistake on the part of the Railway Company's servants'.
37. No further authority is required for the well-established proposition that limitation of the liability of the Company if they wish to plead it, must be in pre case terms.
38. The result is that in my opinion the route by which the timber was to travel was 'expressly indicated' at the very least 'impliedy indicated by the terms of the contract to be the ordinary route from Nimtolla to Jumna Bridge and that in taking the goods off that route the Company violated the contract and are not exempted by the owner's risk note from liability. I therefore set aside the decree of the Court of Small Causes with costs on the higher scale against the defendant on this application in revision and return the case to the Court of Small Causes for the decision of the remaining points in issue.