Charles A. Turner, Kt., C.J.
1. The appellant delivered to the respondents at the Trichino-poly Fort Station for carriage for hire to Bombay a box containing seven bars of silver valued at Rs. 4,296-10-9. The box was weighed by the Clerk and its weight ascertained to be 128 lb.
2. The Clerk inquired and was informed of the nature of the contents, but no increased charge for the safe conveyance of the parcel was demanded or tendered.
3. The parcel arrived in due course at Bombay and was again weighed, when its weight was found to be only 78 lb. A telegram was therefore sent to the Station Master at Trichinopoly apprising him of the circumstance, and he was asked to explain the difference. He replied that the correct weight was 128 lb.
4. No information respecting the despatch of this telegram nor of the receipt of the reply was given to the Traffic Manager.
5. The consignee was informed of the arrival of the parcel at Bombay, and went to the station to obtain it. It was delivered to him without the production of the receipt, which had not then reached him from Trichinopoly. A demand was made on him for the payment of extra freight, and, as he had not money with him, a servant of the Company was sent with him to collect the freight. The box was opened in the presence of this servant and was found to contain two bars of silver and a number of stones. It is alleged that five bars of silver had been removed and the space left vacant by their removal filled with these stones. The box had been carefully secured by the consignor and no external indications that it had been tampered with were observed. The consignee has sworn that he obtained no receipt for the extra charge for freight, though he frequently demanded one.
6. The appellant instituted this suit to recover damages from the respondents for the injury occasioned to him by the loss of the silver, which he alleged was stolen by a servant of the Company.
7. The respondents pleaded (inter alia) that the quantity of silver alleged was not delivered to them; that no portion of the silver delivered to them was lost by the misconduct of their servants; that by the provisions of Act. XVIII of 1854, Section 10,1 the Act in force at the time the parcel was despatched, they are not in any case responsible for the loss of silver carried for hire, unless the value and nature of the parcel is declared, and an increased charge for its safe conveyance has been accepted by some person specially authorized to enter into such an engagement on their behalf; and that no such declaration had been made, and no such extra charge accepted in respect of the parcel in question. The appellant produced his accounts and called witnesses described by the Court of First Instance as respectable merchants, to prove that the parcel on its delivery to the respondents contained the quantity of silver alleged. The Court of First Instance found this issue in the appellant's favour, and having regard to the conduct of the servants of the Company at Bombay, it came to the conclusion that the parcel had been tampered with by the servants of the Company while in transit.
8. It held that the 'loss or injury' intended in Section 10 of the Railway Act was accidental loss or accidental injury and not loss or injury occasioned by the gross negligence or criminal acts of the Company's servants. It also held that, inasmuch as the appellant had informed the clerk of the nature of the contents of the box, it was the duty of the clerk to demand the extra charge for insurance, and that consequently the non-acceptance of such charge would not protect the Company from liability if the provisions of Section 10 were otherwise applicable. On these grounds it decreed the claim with costs.
9. On appeal, the District Judge reversed the decree and dismissed the suit.
10. Reading Section 10 of the Railway Act with the section immediately following, the Judge came to the conclusion that the terms 'loss or injury' in Section 10 could not receive the limited construction adopted by the Court of First Instance, and that in providing that no Railway Company should in any case be answerable for loss or injury, the Legislature intended to protect Railway Companies in respect of articles excepted from liability for loss or injury however occasioned, unless the conditions of the section were fulfilled. He held that to affect a Railway Company with liability in respect of such articles, not only must notice be given of the nature and value of the contents, but an increased charge must be paid and accepted, and that assuming the notice were proved and it amounted to a formal declaration of the value of the parcel, inasmuch as it was admitted no more than the ordinary charge had been paid, the plaintiff was not entitled to recover.
11. Exception is taken to the Judge's rulings on the following grounds:
It is contended that there is nothing in the Act to discharge the Company from liability when the loss or injury arises from the criminal acts of their servants--Bradley v. Waterhouse 3 C. & P. 318--that the plaintiff, the appellant in this Court, had done all that was necessary to entitle him to recover when he declared the value and contents of the parcel; and that the omission of the Railway Company to demand an increased charge would not defeat the right of the appellant to recover: Behrens v. The Groat Northern Railway Company 6 H. &. N. 366 : 7 H.N. 950.
12. The cases cited by the appellant's pleader were decided in reference to the terms of the English Carriers' Act, 11 Geo. IV and 1 Will. IV, c. 68. The provisions of that Act are, with some variation, reproduced in the Indian Carriers' Act III of 1865, but it is expressly declared in the Indian Carriers' Act that nothing therein contained shall affect the provisions of Sections 9,2 10 and 113 of the Railway Act, 1854.
13. It is apparent the Indian Legislature intended to place Railway Companies in respect of their liability as carriers on a different footing from other common carriers. It would, therefore, be unsafe to look to the decisions of English Courts on the Carriers' Act for assistance in construing the law regulating the liability of Railway Companies on any point on which the language of the enactment's is materially different.
14. A comparison of the Indian Carriers' Act and the Railway Act discloses several important differences between the liability of Railway Companies as carriers and the liability of other common carriers, and possibly some difference between the liability of Railway Companies constructed under the provisions of Act X of 1870 and the liability of other Railway Companies; but inasmuch as the respondents' railway was not constructed under the Act of 1870, it is unnecessary to decide the point.
15. The Indian Carriers' Act presumes the general liability of common carriers for the safe conveyance and due delivery of goods delivered to them to be carried for hire. Its object was to afford the common carriers some protection and at the same time to declare that the protection would not extend to loss or injury resulting from certain causes.
16. In the case of certain articles of value which we may term excepted articles, it enacted that no common carrier should be liable for loss or damages to such articles when exceeding in value 100 rupees, unless the consignor should have declared the nature and value of the article : and it authorized common carriers, after giving public notice, to require payment for the risk undertaken.
17. In the case of articles not excepted, it pronounced common carriers with certain exceptions incompetent to limit their liability by public notice, but it authorized them to do so by special contract, and having thus provided a certain measure of protection for common carriers, it declared in Section 8 that notwithstanding anything thereinbefore contained, every common carrier should be liable to the owner for loss of, or damage to, any property delivered to such carrier to be carried, where such loss should have arisen from the negligence or criminal act of the carrier or any of his agents or servants.
18. The Railway Act of 1854 enacted that no Railway Company should in any case be liable for loss of, or injury to, excepted articles, unless the value and nature of the article had been declared by the sender, and an increased charge for its safe conveyance should have been accepted by some person specially authorized to enter in to such engagements on behalf of the Company, Section 10. In the case of non-excepted articles, it prevented any limitation of liability for loss or injury either by private notice or by express contract, but declared the Company liable for such loss or injury only when it should have been caused by gross negligence or misconduct on the part of their agents or servants. Contrasting the language of these sections, we consider the Judge was warranted in regarding the term 'in any case' in Section 10 as including the cases specially mentioned in Section 11--cases where loss results from gross negligence or criminal acts on the part of the agents or servants of the Company--and that unless a person proves he has fulfilled the conditions imposed on him by Section 10, he cannot recover for the loss of excepted articles, although such loss may have been occasioned by a criminal act on the part of the servants or agents of the Company.
19. Bradley v. Waterhouse was decided in reference to provision of the English Carriers' Act analagous to that of Section 8, Indian Carriers' Act, in respect of the criminal acts of carriers' servants, but there is no such provision in the Railway Act to control the operation of the 10th Section of that Act. Unless then it can be shown that the appellant has brought himself within the terms of Section 10, he cannot recover.
20. Inasmuch as the section requires that to render a Company liable an engagement must be made by an agent specially authorized, it appears to be left to the option of a Railway Company whether it will undertake or decline the risk contemplated by the section. We have no evidence that the respondents had exercised their option and authorized their agents to enter into such engagements. Assuming they have done so, is the omission of the Company to make an increased charge a sufficient answer to the suit? The terms of the English Carriers' Act, Section 1, 'unless ** the value and nature of such article * * shall have been declared ** and such increased charge ** be accepted,' sufficiently resemble the terms of Section 10 of the Railway Act to justify the appellant's pleader in relying on the case of Behrens v. The Great Northern Railway Company.
21. In that case, the sender of a valuable picture had made the declaration required by the Act. The Company, although it had given notice it would charge the extra rate authorized, did not demand nor did the sender tender more than the ordinary rate; and it was held there was nothing in the Statute which protected a carrier from liability, if after a declaration had been made entitling him to receive an increased rate, he chose to accept the goods to be carried without making any demand for such increased rate or requiring it to be either paid or promised.
22. Seeing that the authority to demand an enhanced payment for risk is an advantage conceded to the Company, which it is at liberty to waive, we apprehend that, if other , circumstances were proved entitling the sender to recover, he would not be held to have lost his right by the omission of the Company. If it were shown a Company had by the delegation of authority to its agents intimated its willingness to enter into engagements for the risk attendant on the carriage of excepted articles, and a sender had, with a view to entitle himself to the benefit of such an engagement, made the declaration required by the Act to an agent so authorized, and no extra charge was demanded, we are not prepared to say that the equitable interpretation of the provisions adopted by the Court of Exchequer and of the Exchequer Chamber' would not be followed. But to establish the liability of the Company, it must be shown that the sender made the declaration required by the Act. It is not sufficient that a consignor should merely give an account to the servants of the Company of the quantity and description of the goods he delivers for carriage. He is required by the 13th section of the Act to do this in every case where a demand is made by the servant appointed to receive the goods. If he desires to fix the Company with liability, he must make a declaration in such a manner that it may be, understood he invites an engagement on the part of the Railway Company to undertake the special risk, and is willing to-pay the increased charge. Robinson v. The South-Western Railway Company 34 L.J.C.P. 234.
23. It is not proved in this case that the appellant intended to invite the Company to enter into such an engagement. He took the box to the station and delivered it for conveyance without intimating the nature or value of its contents. When the Booking Clerk presumably in the exercise of his powers under Section 134 inquired the nature of the contents, the appellant furnished the information required. We cannot hold that this constituted such a declaration as would have entitled the Company to make an extra charge, nor the appellant to hold the Company responsible for the risk of conveyance.
24. On this ground, we affirm the decree of the Lower Appellate Court, and dismiss this appeal with costs.
1 No liability for loss of gold, silver, etc., unless in the case of special engagement.
[Section 10: No such Railway Company shall in any case be answerable for loss or injury to any gold or silver, coined or uncoined, manufactured or unmanufactured, or any precious stones, jewellery, watches, clocks or time-pieces of any description, trinkets, Government securities, bills of exchange, promissory notes, Bank notes, orders or other securities for payment of money, Government stamp paper, postage stamps, maps, writings, title deeds, paintings, engravings, pictures, plated articles, glass, China, silks in a manufactured or unmanufactured state, and whether wrought up or not wrought up with other materials, shawls, lace, or any of them contained in any parcel or package which shall have been delivered to such Railway Company, either to be carried for hire, or to accompany the person of any passenger, unless the value and nature of such articles shall have been declared by the person or persons sending or delivering the same, and an increased charge for the safe conveyance of the same shall have been accepted by some person specially authorized to enter into such engagements on behalf of the said Railway Company.]
2 No liability for passenger's luggage.
[Section 9:-No such Railway Company shall in any case be answerable for loss or injury to any passenger's luggage unless it shall have been booked and separately paid for.]
3 Public notice or private contract not to limit liability.
[Section 11: The liability of such Railway Company for loss or injury to any articles or goods to be carried by them other than those specially provided for by this Act shall not be deemed or construed to be limited or in any wise affected by any public notice given, or any private contract made by them; but such Railway Company shall be answerable for such loss or injury when it shall have been caused by gross negligence or misconduct on the part of their agents or servants.
4 Written account of goods to be given on demand.
[Section 13: The owner or person having the care of any goods which shall have, been carried upon any such Railway, or shall be brought on to the premises of any such Railway Company for the purpose of being carried by the Railway, shall, on demand by any servant of the Company appointed to receive goods to be carried on that part of the Railway on which such goods shall have been carried, or shall be about to be carried, deliver to such servant an exact account in writing signed by him of the number or quantity and description of such goods.]