Ganapatia Pillai, J.
1. These three suits are instituted by the Home Insurance Company, Limited, a company incorporated in the United States of America against the Board of Trustees of the Port of Madras for damages in respect of three consignments of five hundred bales, two hundred bales and fifty bales of American cotton delivered to the defendant by the steamer s.s. 'Jalapanki' towards the end of April, 1952. The three suits were tried together as common questions of law and facts arise. The pleadings in the three suits are identical.
2. Messrs. Finberg Trading Company, Dallas, Texas, in the United States of America consigned to Messrs. Baijnath Gangadhar & Company, Limited, Bombay, the three consignments of high density American cotton by the steamer 'Queen City' towards the end of January, 1952, for carriage to the port of Madras. The said goods were transferred at Bombay to s.s. 'Jalapanki' which arrived at Madras on the 27th of April, 1952. The landing of the goods was completed on 4th May, 1952. Applications for the clearance and survey of the goods on behalf of the consignees were filed in the office of the Port Commissioners of Madras on 12th May, 1952. The landing of the goods was done by stevedores on behalf of the shipowner and the Port Trust took charge of the goods after landing.
3. The safe carriage of the goods was insured with the plaintiff company under a policy of insurance effected by the shippers on behalf of the consignees. It is alleged that the defendant Port Trust after receiving the goods into their custody negligently and wrongfully stored the goods in the open in the harbour premises without covering them with tarpaulins for protection against adverse weather conditions. On the 18th May, 1952, and the following three days there was heavy rain in Madras and the goods got drenched with rain water and considerable damage was caused consequently to the cargo. There was a claim by the consignees in a sum of Rs. 41,537-4-0 in respect of the cargo concerned in Civil Suit No. 4 of 1957, Rs. 13,215-14-0, in respect of the cargo in Civil Suit No. 5 of 1957, a sum of Rs. 3,339-1-0 in respect of the cargo covered by Civil Suit No. 6 of 1957. These claims in respect of the damage sustained by the consignees and also the fees which they had to pay for survey of the goods, were paid by the plaintiff company to the consignees after due enquiry as the claims were valid and unanswerable since the defendants the bailee of the goods were guilty of gross negligence and breach of duty as bailees. The claims were paid by the plaintiff company on the 18th September, 1952, in respect of the cargo covered by Civil Suit No. 4 of 1957 and on 7th November, 1952, in respect of the cargo covered by Civil Suit No. 5 of 1957 and on 31st October, 1952, in respect of Civil Suit No. 6 of 1957. The plaintiff, it is alleged, became subrogated in law to the consignee's rights against the defendant and the sum paid by the plaintiff company to the consignee together with interest at six per cent, per annum from the date of payment up to the date of the plaint are claimed from the defendant in these three suits.
4. The following main common defences are raised by the written statement filed in all the suits. It is stated that as the bales in question were compressed cotton they were not permeable to rain water. It is denied that the defendant acted negligently in taking care of the consignments. The storage of bales of American cotton in the open is stated to be the general prevailing practice of the Madras Port Trust and it is also said that there was no necessity to cover the bales with tarpaulins except during the monsoon seasons. The rains which occurred on and after 18th May, 1952, are said to be unexpected and off season rains and an act of God. It is denied that the Port Trust would be liable for the damage caused by such rains. The suits are also said to be barred by limitation under Section 110-of the Madras Port Trust Act. The defendant also denies liability to pay interest claimed. The following issues were framed in all the suits:
1. Are the defendants guilty of negligence in storing the cotton bales in the open and without covering the said bales?
2. Did the defendant take as much care of the goods as a prudent owner would of his own goods?
3. Are the defendants not liable for the reason mentioned in paragraph 4 of the written statement?
4. Is the suit barred by limitation?
5. Was there any damage to the goods, and if so, whether the defendants are in any way liable-for the same and to what extent?
6. Are the defendants liable to pay interest?
7. To what relief, if any, is the plaintiff entitled?
Application No. 513 of 1960, was filed during the trial of the suit, for amendment of the plaint in Civil Suit No. 5 of 1957. In this Application the plaintiff seeks to amend paragraphs 5 and 6 of the plaint by substituting the date 7th November, 1952, in the place of 31st October, 1952, as the date when the money was paid by the plaintiff company under the policy of insurance in respect of the claim for damages made by the consignees. The amendment being in the nature of a formal amendment to correct an inadvertent mistake, I allow it.
5. The extent of damage caused to the cotton bales was the subject of a survey conducted by Messrs. Wilson & Company, agents for Lloyds. One Rozario, P.W. 1, an employee of Messrs. Wilson & Company and one Parkinson (P.W. 2), carding master of Messrs. Buckinghan & Carnatic Mills, Madras, conducted the survey. At the request of Messrs. Wilson & Company, Parkinson inspected the bales on a number of days before delivery was taken from the Madras Port Trust in June, 1952. Exhibits P-6, P-13 and P-27 are the Survey Reports. Since the damage was uniform representative samples were taken from six or seven bales for chemical tests conducted by Messrs. Wilson & Company. Mr. Parkinson inspected each bale and the extent of damage was noted in the schedule to the Survey Reports. Part of the consignments was stored in YY Warehouse and this did not suffer any damage. The rest of the cargo was lying in the open in the quays of the Madras Port Trust. The effect of the evidence of these two witnesses; is that the extent of damage to the goods was assessed as ranging from four to fourteen per cent, and the damaged cotton was rendered totally unusable. A halfhearted attempt was made during the cross-examination of these two witnesses to show that the test carried out by them for assessing the extent of damage was not comprehensive enough, but on going through the evidence of these witnesses, I am' satisfied that the tests carried out by Mr. Parkinson and by Messrs. Wilson & Company were adequate to assess the extent of damage. I accept their evidence on this point. I answer, Issue No. 5 accordingly in respect of the occurence of damage to the goods. The remaining part of Issue No. 5 relating to the responsibility for damage will be considered under Issues 1, 2 and 3.
6. These issues (1, 2 and 3) and the latter part of Issue 5 relate to the question of charge of negligence against the Madras Port Trust in leaving the cotton bales in the open without any covering. This question turns upon the amount of care which the bailee (Port Trust) ought to have taken in respect of the goods. It is undeniable that the Madras Port Trust took charge of the goods under Section 39 of the Madras Port Trust Act and the responsibility of the Trust for the loss, destruction or deterioration of the goods so taken charge of, is that of bailee indicated in Sections 151, 152, and 161 of the Indian Contract Act. The measure of responsibility of a bailee as provided in these sections of the Indian Contract Act is that the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would under similar circumstances take of his own goods of the same bulk, quality and value as the goods bailed.
7. It is necessary to state a few facts before discussing the contentions raised by the-learned Advocate-General on behalf of the defendant on this part of the case. Delivery commenced on the 5th June, 1952, and it was completed by the 15th June, 1952. When rains occurred on the night of 18th May, 1952, Messrs. Best & Company, the agents of the consignor wrote a letter (Exhibit P-26) to the Port Trust Authorities giving notice of the claim for damage caused to the cotton bales by rain water. This is a very important document and I reproduce it below:
S.F. 167/Cr. (iii). 19th May, 1952.The Traffic Manager,Madras Port Trust, Madras.Dear Sir,S.S. 'Jalapanki' arrived 27th April, 1952. O.P.C.D. F.T.C.O. 50 bales High Density cotton. H.U. 342 200 bales High Desity cotton. F.T.C.O. I.A. 78/112.We observe that owing to rain last night all the above bales stored in the open in the harbour premises have got wet due to their not having been covered by tarpaulins. Owing to this we have been forced to suspend the weighment by the supervisors. We regret we shall have to hold the Port Trust Authorities responsible for the resultant damage to the cotton. Please treat this as a notice of claim from the importers. Please arrange to conduct a survey on the bales immediately.
We also request you to waive transit dues on the bales for the period they remain wet making it impossible for a proper weighment by the supervisors.
for BEST & COMPANY, LTD.
Copy to: Home Insurance Company Policy Nos. 404403 and 404398.
The log book maintained by the Port Trust (Exhibit D-6) for May, 1952, shows that even on the 17th of May, the Port Trust received a telegram from the Madras Observatory which led the Port Trust to continue hoisting distant cautionary signal which was hoisted even on the previous day as a result of the then prevailing weather conditions. This book also shows that showers occurred both on the night of 18th May, and on the morning and afternoon of 19th May. The entry relating to 19th which covers the period from 7 A.M. to 12 midnight which takes in the night of 18th May, also shows that rain occurred between 02-43 hours to 03-35 hours and drizzling continued between 03-36 hours and 05-55 hours on the night of 18th-19th May. On the morning of 19th, showers occurred between 08-05 hours and 08-40 hours and light drizzling occurred between 12-15 hours and 13-05 hours and also between 15-45 hours and 16-50 hours. Velocity of wind is noted on that day to be at the rate of thirty-two miles per hour. On the 20th May, the Port Trust received advice from the Madras Meteorological Office, to replace the distant cautionary signal by the local cautionary signal. The entry in the log book on the 20th of May, shows that there was light drizzle that day accompanied by thunder and lightning between the hours 8-30 and 11-45 in the forenoon. There was that day sudden rise of wind with squalls with a velocity up to sixty miles at 4 P.M. and thunder continued at intervals between 9-40 and 3-20 hours in the night. Both on the 20th and 21st May, the sea, outside the harbour was rough and high velocity wind was blowing at fifty miles per hour. Even on the 20th and 21st local warning signal was hoisted though there was no rain after the 20th except for drizzling on the 22nd for about twenty minutes and disturbed weather conditions continued till 25th May. The weather conditions noted in the log book, Exhibt D-6, indicates both drizzling and rain on the night of 18th May and on three subsequent days before the 25th May, with high winds accompanied by thunder on many of these days.
8. The first contention of the learned Advocate-General was that normally no rain is expected in Madras in the month of May and consequently storage of cotton in the open during this period is nothing unusual. Therefore the Port Trust was under no liability as bailee to provide for a contingency which could not be anticipated. In support of this contention he relied upon the decisions in Moolji Sicka and Co. v. B.N.Ry. Co. : AIR1932Cal257 and Shanti Lal v. Tara Chand : AIR1933All158 . In the former case a consignment of biri leaves was delivered at a station of B.N. Railway Company and was stocked in the open in front of the goods shed awaiting arrival of wagon. A part of the consignment was burnt down during night time and the finding was that the fire must have been caused by some passer-by throwing a burnt cigarette or cigar end on the goods. In considering the liability of the railway company for the damage of the goods Jack, J., observed thus:
What is ordinary diligence must be considered having regard to the habits of business and the general customs of the community and in the present case I think, taking all the circumstances into account that the facts do not show that the company failed to exercise ordinary care. There is no evidence that these goods were particularly inflammable or that there was any reason to suspect that a lighted cigarette might be thrown near the bags by a passer-by.
Applying the test propounded by him the learned Judge held that the railway company did not fail to exercise ordinary diligence expected of a bailee and that it was not liable for any damage. In Shanti Lal v. Tara Chand : AIR1933All158 , damage was caused by unprecedented floods and a large quantity of grain stored by a commission agent in his godown got damaged by the flood waters. The bailee was held not responsible for this loss. The cause of damage in both these cases is, in my opinion, truly not anticipative. The occurrence of floods in the river Jumna may not be unusual but to expect such flood waters to rush into the town and enter the godown of the bailee was certainly unusual. Similarly to expect a damage by a lighted cigaratte accidentally thrown on a consignment of biri leaves is not normal. Equally the learned Advocate-General argued that summer rain in Madras is not normal and one could not anticipate it. Summer rains in this case was not a hit and go affair. It persisted for more than three days commencing from the 18th May. D.W. 1 asserted that rains in summer are only an occasional occurrence and not a regular annual feature, I agree but the warnings which the Port Trust received from the weather forcasts issued by the Meteorological Office as shown in the log book maintained by them are clearly sufficient to indicate that even on the 17th May, the Port Trust ought to have anticipated rain on the 18th. On the 16th May itself, weather conditions began to show indications of the coming summer storm. Having regard to all these circumstances, I am unable to accept that the rains which fell on the 18th of May and the three following days could not have been anticipated. Even if it be that the learned Advocate-General is right in contending that the rains on the 18th May could not have been anticipated, I am afraid I cannot agree with him when he asserts that the rains on the three subsequent days also were not anticipative because D.W. 1, Parthasarathy, in referring to the weather reports entered in the log book of the Port Trust admitted that they received advice of coming stormy weather even on the 16th of May.
9. In passing I may touch upon another argument of the learned Advocate General that the Port Trust could not do better under the circumstances of the case considering that large consignments of cotton bales were unexpectedly received in the months of March and April, 1952. It was said that owing to an unprecedented import of goods into the port during that period sufficient arrangements could not be made for warehousing them or keeping them covered with tarpaulins. The allegation that the arrivals of the cotton bales were without previous notice appears to be unfounded. Parthasarathy, D.W. 1 admitted that even towards the end of 1951 the Port Trust was advised by the Government of India that about 60, 000 bales of American cotton were expected to be landed in Madras Port during the beginning of 1952. Having regard to this I am unable to accept the contention that the arrivals of the goods were unexpected and that the Port Trust could not make adequate arrangements for storage of these goods.
10. The rule as to onus of proof in cases of this kind is very clear. It is upon the bailee to show that the injury or damage did not happen in consequence of his neglect to take such care as a prudent or a careful man would exercise in relation to his own property. See Halsbury's Laws of England, Third Edition, Volume II, Paragraph 227 and Indian Contract Act by Pollock and Mulla, Eighth Edition, Page 576. On the question whether a particular set of circumstances could be anticipated, no hard and fast rule could be laid down. That is obvious, but some guidance on this point is obtainable from the decisions which have dealt with similar questions.
11. In Rampal v. Gourishankar A.I.R. 1952 Nag. 8, a jewel pledged with a pawn-broker was lost by theft. This jewel was kept in a burglar-proof and fire-proof Godrej safe along with other ornaments belonging to the pledgee. The key of the safe used to be kept in a cash box which used to be locked. The pledgee used to carry on his person the key of this box. The room in which both the iron safe and the cash box were kept used to be locked up. This room was in the ground floor. The iron safe was locked and the key was left in the cash box and the room in which the iron safe was kept was also locked. The family of the pledgee used to live in the first floor above the ground floor. None slept on the ground floor to keep watch during night time. On the night of theft when the pledgee was absent from his house, the safe was opened by a burglar with the key which he extracted from the cash box and all the jewels were removed including the pledged jewel. On these facts, Deo, J., held that the pledgee had not taken as much care of the ornaments as a man of ordinary prudence would take of his own goods. He further held that the loss of the goods of the pledgee himself along with the pledged jewel did not make any difference. In an early English case in Campbell's Reports, Leek and Anr. v. Maestaer (1807) 1 Camp Rep 138, the owner of a dry dock situate on the banks of the river Thames was sued by a ship-owner for negligence caused to his ship under the following circumstances:
When the ship was lying in the dry dock for repairs a remarkably high tide occurred in the river Thames as a result of which the gates of the dock were burst open by the flood water and the ship was forced out and it collided with another vessel and sustained 'injuries.' This accident happened during day time but all the workmen were absent except the watchman. Lord Ellenborough ruled in that case that it was the duty of the defendant to have had a sufficient number of men in the dock to take measures of precaution when the danger was approaching and that he was normally answerable for the effects of this dificiency. This case is important for the reasons that the high tide was in a sense not anticipated because it was remarkably high. Even then the ruling shows that it was the duty of the dock owner to take all measures of precaution when the danger was approaching. That principle, in my opinion, applies to the facts of this case as the Madras Port Trust received intimation of the approaching rainy weather even on the 16th-17th May, 1952, and much more so when rains actually fell on the night of 18th May, and the report received on the 18th regarding weather conditions should have been a warning to them that the rainy weather would continue for three or four days more. It was, therefore, their duty to take all measures of precaution at least after the 18th May, to protect the goods which were lying in the open from the effects of rain water. The Privy Council had to consider a similar question in Brabant and Co. v. King L.R. (1895) A.C. 632. There, the goods stored by the Government of Queensland in Australia in warehouses belonging to them were damaged by the heavy floods in the river Brisbane. In indicating the rule applicable to the case, the Privy Council pointed out that the Queensland Government was not only under a legal obligation to exercise the same degree of care which might reasonably be expected from a skilled store-keeper acquainted with the risks to be apprehended either from the character of the storehouse itself or of its locality but that the obligation included not only the duty of taking all reasonable precautions to obviate these risks including the duty of taking all proper measures for the protection of the goods when such risks were imminent or had actually occurred. It was found in this case that no attempt was made for salvaging any part of the goods after the store-house had become flooded. The principle of this case that when the risk of damage was imminent or when damage had actually occurred it was the duty of the bailee to take such measures so as to salvage any of the part of the goods still left undamaged to prevent further damage is quite apposite to the facts of the present case. Even on the 19th May, 1952, Messrs. Best and Company, Limited, pointedly drew the attention of the authorrities of the Madras Port Trust to the fact that the goods were stocked in the open and left uncovered and consequently damaged by rain. This, at least should have served as a warning to the Port Trust of their duty to take care of the goods so that further damage might be prevented. At least then they could have requisitioned the necessary number of tarpaulins and covered the bales so that further damage could have been avoided. It is not the law that a duty is cast upon the consignee of the goods to warn the authorities of the Port Trust of the impending danger though in the instant case such a warning was given when Messrs. Best and Company, Limited, wrote the letter already referred to earlier to the Port Trust on the 19th May soon after rain had fallen on the night of 18th May. I, therefore, find that the Port Trust did not take care of the goods in the manner expected of a bailee and they continued to be negligent even after the 18th May, 1952, when rains had fallen. They cannot, therefore, be held to have discharged the burden of proof that lay upon them to show that they had taken all the care incumbent upon a bailee. I answer these issues accordingly.
Issue No. 4. - The defendant raised the plea of limitation in all the suits based upon the provisions of section no of the Madras Port Trusts Act, 1905. That provision reads:
No suit or other proceeding shall be commneced against any person for anything done, or purporting to have been done in pursuance of this Act without giving to such pesron one month's previous notice in writing of the intended suit or other proceedings and of the cause thereof, nor after six months from the accrual of the cause of such suit or other proceeding.
The plea is based upon the allegation that the suits were not laid within six months of the accrual of the cause of action.
12. The first argument of the learned Advocate-General was that since the consignee himself would have been bound by the six months' rule of limitation contained in Section 110 the plaintiff in these three suits was equally bound by that rule as his cause of action was obtained by suborgation by reason of payment of damages to the consignee under the insurance policy. There is no dispute that at the time when damages claimed by the consignee were paid by the plaintiff the cause of action of the consignee under the policy of insurance was in time and had not become barred by limitation. It is well-settled that an insurance company in the position of the plaintiff entering into a contract of assurance containing the element of warranty is entitled in law to claim subrogation to the rights of the assured after payment is made under the policy. The question for my decision is whether and how far a subrogee in such a case would be bound by the rule of limitation applicable to the person to whose rights he has become subrogated. Obviously, the circumstances under which a suit would be brought by the subrogee could not be the same as that applicable to the person to whose rights he has become subrogated. I specifically refer to the relief obtainable by using the words' content of the right'. Beyond this he is not affected by any rule of limitation which applies to the other person.
13. In this case the relevant language of section no is:
nor after six months from the accrual of the cause of such suit or other proceeding.
None can dispute that the cause of action for a subrogee is not the same as the cause of action for the person to whose rights he has become subrogated because, in addition to the facts which constitute the cause of action for the latter the subrogee must allege and prove payment of money which the defendant was bound to pay. (See pargraph 1682 of MacGillioray on Insurance Law, Fourth edition). Thus the accrual of the cause of such suit for a person like the plaintiff in these suits within the meaning of that phrase in Section 110 can only be from the date when the subrogee gets the right to sue. There is, therefore, no substance in this contention.
14. I shall now state a few relevant dates before I deal with the next contention of the learned Advocate-General. In Civil Suit No. 4 of 1957, the payment of money was made by the plaintiff on 22nd September, 1952 and the suit was filed on 4th July, 1953. In Civil Suit No. 5 of 1957, the payment was made on 17th November, 1952, and the suit was filed on 4th July, 1953. It should be noted in connection with this suit that the High Court was closed for the summer recess between 4th May, 1953, and 3rd July, 1953 and consequently the suit was filed immediately on the reopening of the High Court after summer recess and under the provisions of the Limitation Act, the period of the summer recess could be excluded in computing the period of limitation. In Civil Suit No. 6 of 1957, the payment was made on 31st October, 1952 and that suit was filed on 29th April, 1953. Thus even if the six months period of limitation provided by section no of the Madras Port Trust Act applies Civil Suits Nos. 5 and 6 of 1957 would be in time. However, the question has to be examined with reference to Civil Suit No. 4 of 1957, because the period of six months in regard to this suit would have expired by 22nd March, 1953. There is no direct authority of this Court upon this point. Mr. Thyagarajan for the plaintiff, contended that the cause of action in all these cases is based upon the neglect of duty by the bailee and this act of the Port Trust or its omission could not be construed as anything done or purporting to have been done in pursuance of the Madras Port Trust Act. Referring to Section 39 of the Act and other provisions, Mr. Thyagarajan contended that the duty of warehousing of the goods imported was not an obligation cast upon the Madras Port Trust by the Act but was only a permissive service which the Port Trust was authorised to undertake. In making this distinction between obligatory duties and permissive duties of the Port Trust he relied upon Clause (2) of Section 39 of the Madras Port Trust Act which reads thus:
The Board shall if so required by any owner, perform in respect of goods all or any of the services mentioned in Clauses (a), (b) and (d) of Sub-section (1) provided that the Board shall not be bound to perform any service which it has relinquished under the provisions of Clause (a) of Sub-section (1) of Section 41-A.
According to him despite the language of Clause (1) of this section which casts an obligation on the Board to provide facilities for landing, shipping or transhipping goods between vessels in the port and the wharves, piers, quays or docks in possession of the Board and receiving, removing, shifting, transporting, storing or delivering goods brought within the Board's premises, the Board was not under any duty to act as a warehouseman in respect of imported goods and consequently neglect in this case was caused not in the course of performance of any duty imposed upon the Port Trust by the Act but only in the exercise of a power which was optional to the Board. I shall deal later with the authorities of this Court and other High Courts which have construed Section 39 of the Madras Port Trust Act or similar provisions in the two other Port Trust Acts but for the present I must refer to Mr. Thyagarajan's contention about the difference in the phraseology between the Madras Port Trust Act and the Bombay and Calcutta Port Trusts Acts.
15. Section 113 of the Calcutta Port Trust Act, 1890, provides:
The Commissioners shall immediately upon the landing (by them) of any goods take charge thereof and store such as are liable to suffer from exposure in any shed or warehouse belonging to the Commissioners.
Similarly it was contended that under Section 61-A of the Bombay Port Trust Act of 1879 a duty was cast upon the Trust Board to take charge of the goods immediately upon landing and store such as are liable in their opinion to suffer from exposure in any shed or warehouse belonging to the Board. Mr. Thyagarajan contended that the language of Section 39 of the Madras Port Trust Act was dissimilar to the language of the corresponding sections in the Bombay and Calcutta Port Trust Acts and by Section 39(1) of the Madras Port Trust Act no statutory duty is cast upon the Board except in respect of the duty of carrying passengers by rail, tramway or otherwise within the limits of the port subject to such restrictions and conditions as the Central Government may see fit to impose - vide Clause (c) of Section 39(1). He also referred to the provisions of Section 41 of the Madras Port Trust Act which empowers the Trust Board to relinquish to any person the performance of any or all of the services under Clauses (a) and (b) of Sub-section (1) of Section 39. According to him the result of reading these two sections together would be that no statutory duty was cast upon the Port Trust in respect of the goods imported into the port either for accepting the goods as bailees or for storing them as warehousemen.
16. He then proceeded to elaborate his argument thus:
The power of storing the goods as warehousemen and to accept the landed goods as bailess on behalf of the consignees was only an optional power and not a statutory duty, and in the performance of such function the Board could not claim the benefit of the special rule of limitation contained in Section 110 of the Act apart from the ordinary rule applicable to all warehousemen or bailees. He sought support for this argument in two decisions of the House of Lords which dealt with the construction of Section 1 of the Public Authorities Protection Act of England. The first decision is Bradford Corporation v. Myers L.R. (1916) 1 A.C. 242 and the second is Griffiths v. Smith L.R. (1911) A.C. 170. Both these decisions deal with the question of the period of limitation within which suits had to be brought against public bodies for damages. Before considering these decisions it is necessary to set out the relevant portion of Section 1 of the Public Authorities Protection Act of 1893 which is in these terms:
Where after the commencement of this Act any action, prosecution or other proceeding is commenced in the United Kingdom against any person for any act done in pursuance or execution or intended execution of any Act of Parliament, or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such act, duty or authority, the following provisions shall have effect.
The rest of the section is unnecessary because its purport is that such action should be commenced within six months after the neglect or default complained of takes place and in case the defendant in such action succeeded costs should be awarded as between the solicitor and the client. In the Bradford Corporation Case L.R. (1916) 1 A.C. 242, a ton of coke was sold by the Bradford Corporation to the plaintiff and in delivering the goods the plate glass window of the plaintiff's premises was damaged by the negligence of the charterer. The Corporation resisted the claim on the plea of limitation based upon Section 1 of the Public Authorities Protection Act. The House of Lords held that the act complained of was not an act done in the direct execution of a statute or in the discharge of a public duty or in the exercise of Public Authority and, therefore, the Public Authorities Protection Act afforded no defence to the action. The speech of Lord Buckmaster referring to the distinction between power and duty of public authorities to perform acts was relied upon by Mr. Thyagarajan. It reads thus:
In other words it is not because the act out of which an action arises is within their power that a Public Authority enjoys the benefit of the statute. It is becuase the act is one which is either an act in the direct execution of a statute or in the discharge of a public duty or the exercise of a public authority. I regard these latter words as meaning a duty owed to all the public alike or an authority exercised impartially with regard to all the public.
Basing his argument on this distinction, learned Counsel for the plaintiff contended that section no can be availed of by the defendant only in cases where they were sued in respect of an act done in the discharge of their obligation under the statute in which category he placed only the duty cast upon the Board to perform acts enumerated in Section 39(1)(c) of the Madras Port Trust Act and he excluded from this category the other services enumerated in Section 39(1) of the Act.
17. This decision was followed in Griffiths v. Smith L.R. (1941) A.C. 170, by the House of Lords where the managers of a public elementary school issued invitations to the parents of the pupils to attend an exhibition in the school premises of work done by the pupils. While this display was in progress the floor of the room in which the parents were assembled collapsed and one of the parents suffered severe injuries in respect of which a suit was brought. The managers of the elementary school relied upon the Public Authorities Protection Act and sought to defeat the claim of the parent on the ground that it had not been brought within the period fixed in Section 1 of that Act. The House of Lords following the Bradford Corporation Case L.R. (1916) 1 A.C. 242, held that the managers of the school were a Public Authority within the purview of the Public Authorities Protection Act and that the neglect or default complained against was one which occurred in the exercise of as tatutory duty and consequently the suit was not in time as it was not brought within six months next after the neglect or default complained of. In both these cases the noble Lords who took part found difficulty in drawing the line of distinction between what was public duty and public authority in the case of a Corporation which was entitled to engage in private trade or was rendering service to the public as distinguished from duties which were purely incidental or subsidiary, with regard to their permissive powers. The Privy Council had to consider both these decisions in Firestone Tyre and Rubber Co. (S.S.) Ltd. v. Singapore Harbour Board L.R. (1952) A.C. 452. I find there an illuminating discussion of the principles of the abovementioned two decisions of the House of Lords and an attempt being made to correlate those principles to the duties of the Harbour Board of Singapore. I have derived much assistance from this decision in considering the argument of Mr. Thyagarajan with reference to section no of the Madras Port Trust Act. In Firestone Tyre and Rubber Co. (S.S.). Ltd. v. Singapore Harbour Board L.R. (1952) A.C. 452, seventeen tyres belonging to the Firestone Company out of a large consignment of tyres imported into the Port of Singapore were lost, while the consignment was in the custody of the Harbour Board. In a suit brought to recover damages for this loss the Harbour Board relied upon Section 2 of the Public Authorities Protection Act of the Straits Settlement which is in pari materia with Section 1 of the Public Authorities Protection Act of the United Kingdom. The Privy Council came to the conclusion that in acting as warehouseman in respect of imported goods the Singapore Harbour Board was performing a public duty and was entitled to the protection of the Public Authorities Protection Ordinance of the Straits Settlements. In posting the question for decision Lord Tucker observed thus:
In the present case it has been admitted throughout that the Board is a 'Public Authority' within the meaning of the Ordinance so interpreted. The sole issue, accordingly, is whether in taking the appellant's goods into their custody for delivery to them they were doing an act in pursuance of any public duty 'or authority.' In this connection it is also well-settled that this question cannot be resolved merely by ascertaining whether the act or activity in question was intra vires the authority The protection of the Ordinance does not cover all lawful and authorized acts of a Public Authority. Some acts are excluded. The difficulty is to define what acts or classes of acts are excluded.
After referring to the Bradford Corporation Case L.R. (1916) A.C. 1 and Griffith's Case L.R. (1941) A.C. 170, Lord Tucker laid down the following rules for determining what acts performed by the Singapore Board fall within the category of public duties:
1. It is essential to the protection afforded by the statute that the act or default in question should be in the discharge of a public duty or the exercise of a public authority. This assumes that there are duties and authorities which are not public.
2. In deciding whether the duty or authority has this public quality it is sometimes relevant to consider whether it arises out of or is imposed by a contract voluntarily entered into by the Public Authority with an individual with whom it is under no obligation to contract. This rule has no application to the instant case because there is no contract here.
3. The mere fact, however, that in the discharge of its duty or the exercise of its authority the Public Authority may have made a contract does not of itself deprive the duty or authority of its public quality. The existence or absence of a contract is not a decisive test. See per Lord Shaw in the Bradford Corporation Case L.R. (1916) 1 A.C. 242.
4. Effect must be given to the word ' Authority'. This excludes the test of obligatory as opposed to permissive powers. The authority quoted for the fourth test is the speech of Viscount Maugham in the Griffith's Case L.R. (1941) A.C. 170. Having regard to this authoritative pronouncement of the effect of the Griffith's Case L.R. (1941) A.C. 170, I am unable to accept the contention of Mr. Thyagarajan that a distinction could be drawn between obligatory duties cast upon the Corporation (the Commissioners for the Port of Madras) as opposed to their permissive powers. I may point out that in the Firestone Tyre and Rubber Company Case L.R. (1952) A.C. 452, there is no indication that the duty of taking care of the goods undertaken by the Singapore Harbour Board was an obligatory duty or a permissive service. This, however, makes no difference because the Privy Council held that once the duty of warehousing was permitted by the Act it should be deemed to be a public duty since it was performed by the Board in respect of all the members of the importing public irrespective of the contract between the Board and any individual importer.
18. The other tests propunded by Lord Tucker equally apply to the present case, and I must hold that even though the duty of receiving goods imported into the Port and taking care of them till delivery to the consignee be held to be a permissive duty cast upon the Port Trust it is still a duty performed by the Port Trust in pursuance of the Act. After all the statutory provision, I have to consider is Section 110 of the Port Trust Act which though similar in some respects to the provisions of Section 1 of the Public Authorities Protection Act of the United Kingdom, is not entirely identical. I repeat the relevant words of Section 110:
No suit or other proceeding shall be commenced against any person for anything done, or purporting to have been done, in pursuance of this Act, without giving to such person one month's previous notice....
The limited question for my consideration, therefore, is whether the duty undertaken by the Port Trust in accepting the goods landed in the Port and warehousing them is an act done or purporting to be done in pursuance of the Madras Port Trust Act. There is no scope for the argument that this is a duty done in the purported exercise of the powers under the Act, because specifically such power is conferred upon the Port Trust. In this view the different language employed in the Bombay and Calcutta Port Trust Acts is of no significance. That an omission in the performance of a statutory duty stands on the same footing as an act done in pursuance of a statute is too well-known to need citation of authorities. The Privy Council has laid this down in Calcutta Port Commissioners v. Corporation of Calcutta (1937) 2 M.L.J. 594 : L.R. 64 IndAp 363 : I.L.R. (1938) Cal. 440, where the Port Commissioners of Calcutta were charged with damages for leaving unrepaired a portion of the track of their railway as a consequence of which the pumping station of the Calcutta Corporation was flooded.
19. The argument was that in neglecting to take proper care of the goods the Madras Port Trust was not doing anything or purporting to do anything in purr suance of the Madras Port Trust Act. The word 'purporting' is a common word which occurs in many statutes and has come up for decisions before Courts on numerous occasions. The ordinary meaning of the word purporting is 'conveying an impression'. The expression 'purporting to be done in the execution of his duty' as a servant of the Crown in India occurring in Section 270(1) of the Government of India Act, 1935, was interpreted by the Federal Court in Hori Ram Singh v. The Crown (1939) 2 M.L.J. (Supp) 23 : (1938) F.L.J. (F.C.) 153 : (1939) F.C.R. 159, Sulaiman, J., observed at page 179 as follows:
An act cannot purport to be done in execution of duty unless the offender professes to be acting in pursuance of his official duty and means to convey to the mind of another the impression that he is so acting.
Applying this test I have no hesitation in holding that the Madras Port Trust in taking care of the goods as bailee not only acted but also purported to act in pursuance of the provisions of the Madras Port Trust Act and any act or omission done in the course of performance of such duty as a bailee was an act done in pursuance of the Act. The Madras Port Trust in taking charge of the landed goods as bailee was exercising a power conferred upon it by Section 39 read with Section 95(4) of the Madras Port Trust Act and consequently it was doing a thing in pursuance of the Act. In construing the words 'anything done in pursuance of the Act', one should not import the idea that the act done must be a duty compulsorily performable by the Authority. It also includes anything done within the power of the Port Trust. One cannot thus escape the conclusion that handling imported cargo, was an act done by the Port Trust in pursuance of the Act. Therefore, even if Section 39 of the Madras Port Trust Act does not impose a duty in respect of handling of imported cargo it at least confers a power which was exercised in pursuance of the Act. Section 110 speaks of anything done in pursuance of the Act and consequently the default of the Port Trust in carrying out its duty as bailee of the imported cargo would be an act or omission occurring in the performance of something done in pursuance of the Act. I should not, however, be understood as laying down that every act done within the power of the Madras Port Trust would be an act in the discharge of their public duty and, therefore, protected by the provisions of Section 110 of the Port Trust Act. Such instances are subsidiary contracts entered into by statutory bodies with third parties in the course of the discharge of their duties which fall within their power as defined by the enactment creating the Corporation. Clearly the test is not whether the doing of the thing was authorised by the statute but it must be something done in the execution of a public duty or authority, that is covered by the statute. The handling of imported cargo by the Madras Port Trust by taking charge of such goods as bailee is certainly an instance of an act done by the Port Trust in execution of its public duty or authority.
20. I would now advert to the argument of the learned Advocate-General that Section 39(1) of the Madras Port Trust Act makes no distinction between what is called obligatory duty and permissive power. Having regard to the view I have taken as regards the applicability of Section 110 of the Port Trust Act to the facts of this case, it may not be necessary for me to deal with the arugument of the learned Advocate-General that Section 39(1) of the Port Trust Act, by enacting that the Port Trust shall provide all reasonable facilities for certain purposes, and have power to perform other services imposes a duty upon the Port Trust in respect of both classes of services. In support of this argument the learned Advocate-General relied upon a recent decision of Rajagopalan, J., in Writ Petition Nos. 889 and 908 to 923 of 1959. The learned Advocate-General also relied on the provisions of Section 39(2) and (3) of the Madras Port Trust Act for his contention that in authorising Port Trust to act as bailees of imported cargo the statute laid a duty upon them. My conclusion that the language of Section 110 which speaks of anything done in pursuance of the Act must cover even the class of functions for which no duty is cast by Section 39(1) but only power is given to undertake them, relieves me from the duty of examining the argument of the learned Advocate-General in regard to this matter because even if it is not a duty but only a power it is still like handling imported goods, done in the exercise of and in pursuance of the provision of the Madras Port Trust Act. I have the persuasive authority of the Privy Council in the Firestone Tyre and Rubber Company Case L.R. (1952) A.C. 452, for holding that in the matter no distinction could be based or made upon the test of obligatory functions as opposed to permissive functions of a statutory body like the Madras Port Trust. I find that the period of limitation provided for in Section 110 applies to this case and consequently Civil Suit No. 4 of 1957 was filed out of time but the other two suits are in time. I find Issue 4 accordingly. No finding is called for upon Issues 3 and 6 as those questions were not argued before me.
21. In the result Civil Suit No. 4 of 1957 is dismissed and Civil Suits Nos. 5 and 6 of 1957 are decreed as prayed for in the respective plaints. There will be no order as to costs in Civil Suit No. 4 of 1957 because the Port Trust has succeeded not on merits but on the question of limitation. In the other two suits the plaintifi will be entitled to its costs payable by the defendant, Port Trust which will bear its own costs.