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Mylappa Chettiar and anr. Vs. the British India Steam Navigation Company Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1918Mad341; 45Ind.Cas.485; (1918)34MLJ553
AppellantMylappa Chettiar and anr.
RespondentThe British India Steam Navigation Company Ltd. and ors.
Cases ReferredVenkatasubba Row v. The Asiatic Steam Navigation Co. Calcutta I.L.R.
Excerpt:
.....company may be liable in tort for breach of duty arising from the mere fact that it has undertaken the liability of carrying goods or property belonging to another, foulks v. 15. whatever doubt may have existed as to the applicability of article 31 in cases of failure to deliver goods where the action was laid ex contracts the matter has been set at rest by the full bench decision of this court in venkatasubba row v.john wallis, c.j.1. a case somewhat similar to this came before the courts in the british india steam navigation company v. hajee muhamed esack and company i.l.r (1881) 3 m. 107 where it was held that the stipulation for a claim for short delivery being made on the ship-owner at calcutta within a month was not unreasonable. this appears to be a sufficient answer to the claim against the british india steam navigation company.2. as regards the madura company, the second defendant who was the landing agent, sir charles turner, c.j. and innes, j., observe in the course of their judgment, as regards ramanujulu and sons who were in the same position as the madura company here, that ' they were the agents of the appellants (the british india company) to retain the goods, receive freight and.....
Judgment:

John Wallis, C.J.

1. A case somewhat similar to this came before the Courts in the British India Steam Navigation Company v. Hajee Muhamed Esack and Company I.L.R (1881) 3 M. 107 where it was held that the stipulation for a claim for short delivery being made on the ship-owner at Calcutta within a month was not unreasonable. This appears to be a sufficient answer to the claim against the British India Steam Navigation Company.

2. As regards the Madura Company, the second defendant who was the landing agent, Sir Charles Turner, C.J. and Innes, J., observe in the course of their judgment, as regards Ramanujulu and Sons who were in the same position as the Madura Company here, that ' they were the agents of the appellants (the British India Company) to retain the goods, receive freight and give delivery; they were also the agents of the respondents (the consignees) to land the goods, but they were not the agents of the appellants to receive claims for compensation for the non-delivery of goods.'

3. This passage recognises, I think correctly, the existence of a contractual relation between the landing agents and the consignees who paid them for their services. This appears to me to be one of those cases in which privity of contract is readily inferred from the well-known course of business according to which the landing agents are paid by the consignees and from the necessities of the case. Compare the cases referred to by my learned brother, in the recent Full Bench case, Venkatasubba Row v. The Asiatic Steam Navigation Co. Calcutta I.L.R (1915) M. 1 and also the cases as regards carriage of goods over railways having continuous lines. Gill v. Manchester Sheffield and Lincolnshire Railway Co. (1873) L.R. 8 Q.B. 186; The Great Indian Peninsular Railway Co. v. Radhakisan Khusaldas I.L.R. (1881) B. 371.

4. The proper inference appears to be that as in these cases the final stage of performance including carriage from the ship's side, which at Negapatam is a matter of some miles, and delivery, is performed by the 2nd denfendant. The suit as against the 1st defendant is barred under Article 31 according to the Full Bench ruling in Venkatasubba Row v. The Asiatic Steam Navigation Co. Calcutta I.L.R (1915) M. 1 and I see no reason why the second defendant should not also be considered a carrier for the purposes of the article. It would be anomalous if a different article were applicable to the ship-owner and to the landing agent in respect of what are successive stages in the performance of one transaction--the carriage of the goods and delivery to the consignees. The appeal is dismissed with costs of respondents 1 and 2.

Kumaraswami Sastri, J.

5. The plaintiff who was the consignee of certain timber consigned from Rangoon through the British Steam Navigation Company under the bills of lading setting forth the terms and conditions under which the British Steam Navigation Company undertook to carry the goods sued to recover Rs. 2417-12-0 alleged to be due in respect of timber consigned but not delivered. The second defendant which is a firm engaged inter alia in landing goods from the Steamers of the British India Steam Navigation Company is sought to be made liable as they are landing agents at Negapatam in respect of all goods that arrive at the port in vessels belonging to the British India Steam Navigation Company and levy and receive from plaintiff separate charges for their undertaking to land and deliver goods.

6. Various defences were raised but it is only necessary to consider the grounds on which the Subordinate Judge dismissed the suit namely, the question of limitation, so far as the 1st defendant was concerned and want of privity of contract as regards the 2nd defendant.

7. The bill of lading provides that 'the company is to have the option of delivering the goods or any part thereof, into receiving ship, or landing them at the risk and expense of the shipper or consignee, as per scale of charges to be seen at the agent's office, and is also to be at liberty until delivery to store the goods or any part thereof, in receiving ship, godown or upon any wharf, the usual charges wherefor being payable by the shipper or consignee. In all cases and under all circumstances the liability of the Company shall absolutely cease when the goods are free of the ship's tackle and thereupon the goods shall be at the risk for all purposes and in every respect of the shipper or consignee.'

8. It seems to me that the bill of lading provides that goods are to be conveyed from Burmah and landed at Negapatam by two agencies, one carrying the goods up to the port and the other from the ship's tackle to the godowns on shore and that the agreement limits the liability of the company to the period when the goods pass from the ship to the landing agent.

9. Mr. M'Conchy of the second defendant's firm who is the only witness called in the case, deposes that the 2nd defendant collects landing charges from merchants to whom goods are consigned through the 1st defendant Company which has nothing to do with the 2nd defendant's charges though the charges are subject to the 1st defendant's sanction. He states that the 2nd defendant Company owns a number of boats and that it is bound to unload goods from all the steamers of the 1st defendant Company and has the option of refusing to unload goods of others. He also states that merchants cannot engage the services of any other boat-agency to land goods from the 1st defendant's steamers.

10. The case is therefore one of continuous carriage of goods, the 1st defendant company making arrangements for the carriage though limiting its own liability to one stage of the transit.

11. There can be little doubt that the 2nd defendant company, are carriers though not common carriers within the meaning of the Carriers Act of 1865. The word 'carrier ' in its general sense means a person or company who undertakes to transport the goods of another person from one place to another for hire (Wharton Law Lexicon) and the second defendant falls within the definition.

12. I do not think that the 2nd defendant Company can, on the facts proved in this case, escape liability on the ground of any want of privity between itself and the plaintiff.

13. In case of continuous carriers the authorities establish (1) that when the goods have to be carried with the aid of different transport agencies in order to arrive at the destination to which they are booked, the carrier with whom the contract is made at one end is in the absence of any contract limiting his liability to his own transport system liable for the loss or destruction on portions beyond his own system or in consequence of acts or default of persons other than his own servants. Muschamp v. Lancestor &c.; Junction Railway Co. (1841) 8 M. & W 421 Bristol and Exeter Railway Co. v. Collins (1859) 7 H.L.C. 194 Foulhs v. Metropolitan District Railway Co. (1880) 5 C.P. D. 157 Aldridge v. G. W. By Co. (1864) 15 C.B.N.S. 582; (2) that in the absence of a contract to the contrary the consignor could not hold the company with whom he did not contract, liable for damages when all that could be complained of was nonfeasance though such company may be liable in tort for breach of duty arising from the mere fact that it has undertaken the liability of carrying goods or property belonging to another, Foulks v. Metropolitan Dist. By. Co (1880) 5 C.P. D. 157; (3) when there is an agreement between two companies the effect of which is to constitute one company the agent of the other and the traffic is carried for the joint benefit of both companies either company may be sued on at the option of the consignor; Gill v. Manchester, Sheffield & Lincolnshire Ry. Co. (1178) L.R. 8 Q. B 186 The Great Indian Peninsular Railway Co. v. B. Badhakishan Khusaldas I.L.R (1881) B 371.

14. If, however, the second defendant company are carriers and I think they are, it is clear that Article 31 of the Limitation Act would apply equally to them. It is not necessary for the purposes of Article 61 that they should be common carriers.

15. Whatever doubt may have existed as to the applicability of Article 31 in cases of failure to deliver goods where the action was laid ex contracts the matter has been set at rest by the Full Bench decision of this Court in Venkatasubba Row v. The Asiatic Steam Navigation Co. Calcutta I.L.R. (1915) M. 1. It is therefore unnecessary to refer to the various conflicting prior decisions on the point referred to by Mr. Venkatarama Sastri.

16. It was admitted before the Subordinate Judge that if Article 31 applies the suit is barred by limitation as the claim arose more than a year before suit. There is nothing in the records to show that there was any acknowledgment of liability so as to take the case out of the statute of limitation.

17. I agree with the Chief Justice that the suit is barred and dismiss the appeal with costs of Respondents 1 and 2.


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