Horace Owen Compton Beasley, Kt., C.J.
1. In November, 1932, the appellant, the Maharajah of Pithapuram, bought four valuable dogs from one the Rev. Dr. Bruce in England and on the 30th November, instructed the respondents, Messrs. Thomas Cook & Sons, Ltd., to take delivery of the dogs there and ship them to Bombay. Accordingly the respondents received the four dogs purchased by the appellant from the Rev. Dr. Bruce and shipped them on board the Steamer 'Naldera' belonging to the Peninsular and Oriental Steam Navigation Company for passage to Bombay. During the course of the voyage when the ship had reached the Red Sea it is evident from the certificate given by the Commander of the ship that one of the dogs purchased by the appellant slipped its collar whilst being exercised on the ship's deck and jumped into the sea and was lost. Only three dogs were, therefore, delivered by the ship at Bombay. In the course of a very prolix plaint it appears that the suit is founded upon breach of contract as well as upon negligence. The claim appears to be a mixture of both. The learned City Civil Judge dismissed the appellant's suit. Hence this appeal.
2. It was contended before us that the negligence of the respondents consisted in their not having seen, when the suit dog was shipped on board the Steamer 'Naldera', that it had not a properly fitting collar and that it was therefore through this negligence or neglect of duty that the dog was put on board the ship in an unsafe condition and was enabled during the course of the voyage through the badly fitting collar to get out of it and over the ship's side and into the sea. There is no evidence whatsoever on the appellant's side that the collar was a badly fitting one. It does not follow because the dog was able to slip out of it, that it was a badly fitting collar as it is quite possible that it was not properly adjusted on that particular occasion. It is useless to contend that the respondents are in any way liable for the acts of others during the course of transit from London to Bombay on board the steamer even supposing that one of the ship's company had been negligent in improperly adjusting the dog's collar thereby enabling it to slip out of it. The respondents had in no sense any control over the dog after it was handed over to the Steamship Company. What therefore the appellant was driven to do was to satisfy the Court that the conduct of Messrs. Thomas Cook & Sons, Ltd., was negligent at the time of the receipt of the dog and during the time in which they had the dog in their custody and before they handed it over to the Steamship Company. This, as before mentioned, the appellant has entirely failed to do. He has not shown by any evidence that the collar was ill-fitting when the dog was received by the respondents; and the fact that the dog slipped out of its collar and got into the sea does not give rise to any inference that at the time when the dog was put on board the ship the collar was an ill-fitting one. It is not necessary to set out the various possibilities with regard to this collar which appear; but one certainly does appear and that is that on the day in question no sufficient care was taken on the ship in the adjustment of the collar when it was put on to the dog. Having entirely failed to prove the negligence on the part of the respondent company, the appellant's claim could not possibly succeed and was rightly dismissed by the learned City Civil Judge. I may also point to another circumstance in this case; and that in the conditions under which Messrs. Thomas Cook & Sons, Ltd., undertook the shipment of this dog. It is quite clear from Ex. II that the dog was to be carried at the owner's risk and that Messrs. Thomas Cook & Sons, Ltd., were not to be under any liability whatsoever. Ex. II which contains that condition and a declaration was signed by the seller of the dog Rev. Dr. Bruce who presumably signed it as agent for the purchaser, the Maharajah of Pithapuram. It must also be noted that the Steamship Company are by their own conditions absolved from any liability for negligence in the carriage of dogs. This appeal must therefore be dismissed with costs.
3. There is another appeal (No. 66 of 1935) and that relates to the suit filed by the respondents to recover from the appellant a sum of Rs. 269. This sum was made up of the money paid to the Peninsular and Oriental Steam Navigation Company for the carriage of the dog and other sundry charges such as feeding charges, etc., incurred or to be incurred on the dog's behalf. It is quite clear that all these sums were paid in advance of the dog's journey to the steamship company, by the respondents. Hence the respondents claimed to recover it from the appellant. That suit was decreed by the learned City Civil Judge. Here it is contended that the respondents are not entitled to recover the sum which is represented here as the freight due in respect of the dog because the dog was not safely conveyed to its destination; and this argument is founded upon a passage which appears on page 502 of Maclachlan's Law of Merchant Shipping (V Ed.), viz.:
Freight is the reward payable for the safe conveyance and delivery of goods entrusted for that purpose to a carrier by sea.
and, if goods are entrusted for that purpose to a carrier and do not reach their destination, then no part of the freight can be recovered by the carrier. That principle certainly cannot apply to the present case because even assuming that what was paid by the respondents can accurately be described as freight and the dog as cargo, it is quite clear that, if freight is payable in advance and has been paid, then what has been paid cannot be recovered even if the goods or cargo do not ultimately reach the destination. It is quite clear that this amount was paid before the dog was put on board the ship. The amount paid for the passage of two dogs and the attendance upon them was 13-13-0. That appears from Ex. IV which is described as 'animal ticket'. There is no evidence of course that it was a condition that that sum should be paid in advance; but I think it is quite clear that this being a ticket the ticket would not be issued by the steamship company unless the fare had been paid; and therefore in my view we are entitled to assume that it was a condition precedent to the issue of the ticket that the fare should be paid. It is very difficult really to regard this case as a case where freight was paid in advance in respect of cargo. It is hardly right to describe a domestic animal as cargo particularly if it is travelling by itself or in company with only a few animals of the same description. The animal was travelling more as a passenger, than anything else and just as in the case of a passenger a human being, who is travelling with a ticket, so was this dog. The respondents had, in my view, clearly to make this disbursement on behalf of the appellant in order to secure a passage for the suit dog and are put-of-pocket expenses to that extent. The other payments 'embraced by this claim were also made on behalf of the appellant and the respondents were clearly entitled, having made these payments, to recover the amount from the appellant. The suit was, therefore, rightly decreed; and this appeal must also be dismissed with costs.
4. I agree and wish to add one further matter. In my view, the contract between the appellant and the respondents was not one for carriage but one by which the respondents had to arrange for the carriage of these two dogs including the payment of the charges which the shipping company would demand. This is made quite clear by the words in Ex. II. 'Please arrange for the shipment of the livestock.' Having arranged for the shipment of these two dogs and having paid the charges which the Peninsular and Oriental Steam Navigation Company demanded, the respondents had fully carried out all their obligations under this contract. That being so, they had no liabilities from that moment, having fully complied with all the obligations they were obliged to carry out and are entitled to succeed for the unpaid balance of the freight and on the claim against them in respect of the loss of this dog. They had no responsibility in regard to the dog from the time they handed it over to the shipping company.