1. In this second appeal the Clan Line Steamship Co., Ltd., is the appellant; the respondents are certain merchants in Cochin who were consignees of certain goods which the defendant Company had undertaken to carry from Liverpool and London to Cochin under bills of lading Exs. 50, 51 and 52. The language of all these bills is exactly similar and it will be sufficient to refer to one of them in considering the case. The total freight to Cochin was paid as advance freight in England and the goods were pub on board of one of the defendant Company's steamers, ' SECTIONS Clan Mackellar.' The ship duly arrived at the Bombay harbour, but when it arrived there it was commandeered by the Government of India for use as transport and in consequence its voyage with cargo had to be terminated and all its cargo was discharged in that port. The steamship agents gave notice of what happened to all the consignees including the plaintiffs by Ex. 24 and asked them to make arrangements to take delivery in Bombay. Some correspondence passed between the parties the effect of which will have to be considered presently Finally plaintiffs' goods were forwarded to Cochin by the defendant Company's agents in Bombay on Board SECTIONS Upanda, a vessel, belonging to the B.I.S.N. Co. and Were taken delivery of by the plaintiffs on payment of the freight and other charges, amounting to Rs. 1,720 and odd, for the carriage of the goods from Bombay to Cochin. Plaintiffs aver that these charges were wrongfully collected from them and that they are not liable for them and they seek in this suit to get a refund of that money with a small sum for damages for short delivery.
2. The Subordinate Judge who tried the suit dismissed it, but on appeal the District Judge has given the plaintiffs a decree for part of the amount claimed, made up of the freight and incidental charges connected with the transhipment of the goods from Bombay to Cochin, and of the damages claimed. The plaintiffs have nob appealed as regards the amount disallowed bub the defendant Company has appealed and has contended before me that the suit should have been dismissed.
3. The main question for decision is whether the defendant Company was entitled to call upon the plaintiffs to pay the charges for the carriage of goods from Bombay to Cochin. There can be no doubt that when Clan Mackellar was commandeered in Bombay its voyage terminated as the result of 'restraint of rulers', the words used in paragraph 3 of the bill of lading-Ex. 60, and the ship-owners were not liable for any loss or damage occasioned thereby. The restraint of rulers being one of the excepted causes under paragraph 5, the master of the ship was entitled under that paragraph to land the plaintiff's goods is Bombay at their expense and risk, and the ship-owners' responsibility ceased as soon as notice was given to the shippers by Ex. 24, Though the voyage to Cochin had not been completed the shipowners were not bound to refund any portion of the advance freight paid or to carry the goods to Cochin at their expense. These propositions are laid down in a recent decision of this High Court with reference to this very voyage of Sections Clan Mackellar and the bill of lading there was in the same terms as here. The learned Judges have referred to the English authorities on the points and have discussed the questions at length and as I respectfully follow that ruling it is not necessary for me to discuss these questions again. It was urged that the learned Judges were wrong in applying the English Law to the case and that as soon as Clan Mackellar entered the Indian territorial waters, where the commandeering took place, the Indian Law applied and that Section 65 of the Indian Contract Act governed the case. I am unable to accept this argument. The parties have expressly covenanted by the. very first clause in the billl of lading that their contract was to be judged by 'the law of the flag' and that certainly meant in this case the English Law till the contract came to an end by the goods being landed in Bombay. The further dealings between the parties may be governed by the Indian Law, but it is not necessary to decide it definitely as it makes no difference in the result.
4. In the case above cited the learned judges dismissed the shipper's claim against the Clan Line Co., for the payment of the charges incurred by them in carrying their goods from Bombay to Mangalore, which was the port of destination in that case. The only difference between that case and this case is that whereas in that case the shippers paid the carrying charges here, the Clan Line Co. paid them and collected them from the shippers on delivery of the goods. I do not think this makes any real difference as to the result. It was, however, argued that as the plaintiffs did not ask the defendant Co., to send their goods from Bombay to Ccohin their action in so sending must be treated as one taken by them gratuitously and voluntarily and of their own accord, as a piece of officious interference by them with plaintiffs' goods and, therefore, they were not entitled to be repaid in law the expenses they were put to, This argument was accepted by the District Judge and he directed the money collected for such charges to be refunded. It seems to me that this is an entirely wrong view to take of the case. Within 2 days after the goods were landed in Bombay, the 1st plaintiff wrote Ex. V to the defendants' agents in Cochin and asked when the goods will be transhipped to Cochin. He wrote against Ex. VI to the defendants agents immediately to despatch his goods by country craft as no steamers were then available. The plaintiffs no doubt, offered to take delivery of the goods in Bombay but it was on condition that the company should pay the difference with the freight and the transhipment and other charges. The defendant Co., never agreed to pay these as they were not bound to, under the law. The plaintiffs were apparently under the impression that if the Company sent the goods themselves they would not have to pay the expenses. They again wrote Ex. AA where they say 'as no steamers are available' they will take delivery in Bombay if charges would be paid by the Company. Defendant's agent wrote in reply Ex. D wherein they repudiated their liability to pay any difference in freight and offered to deliver in Bombay only on a guarantee being given freeing them from all claim for charges. In reply to a further letter from the plaintiffs they sent a telegram insisting on the guarantee. Though the plaintiffs wrote Ex. CC on 10th January to say that they would take delivery they did not actually do so. On the 20th a steamer became available to tranship these goods to Cochin and the defendant Company's Bombay agents took advantage of the opportunity and transhipped the goods by s.s. Upada. In the meanwhile they had received instructions from their home office to forward the goods to the port of destination, but at the cost of the consignees from whom the charges were to be collected before delivery, as shown by Ex. 36. It is clear from all this correspondence that the defendants agents never intended to tranship the goods gratuitously but always intended to hold the consignees responsible for the charges, The plaintiff asked the defendants' agents to send the goods to Cochin even by country craft if no steamer was available. Even when they proposed to take delivery in Bombay they did so only because it was thought no steamers were available. See Ex. AA. It seems to me that the correspondence shows that plaintiffs did want their goods to be sent by the defendant's agents to Cochin, whatever dispute their might be as to who should bear the charges. The plaintiff's proposal to take delivery themselves in Bombay was conditional on there being no steamers available. Defendant's agents were, therefore, justified in sending the goods by s.s. Upada when that steamer became available and I agree with the Subordinate Judge that the defendant acted as plaintiffs' agents in doing so. The dispute as to the liability to pay the charges has really nothing to do with the authorisation to send the goods by steamer. That dispute has to be decided not on the ground whether the defendant Company sent the goods voluntarily but on the ground as to who was responsible to pay those charges under the law. Plaintiff's subsequent conduct, after they knew that the goods had been sent on to Cochin, clearly shows that even, if they did not actually authorise such sending they acquiesced in and accepted the defendant's action and ratified it Second plaintiff wrote to the defendants' agents Ex. XI to say that he was entitled to the delivery of the goods and not one Liladhur who was disputing his right and that he would pay the charges on receipt of particulars; the 1st plaintiff wrote Ex. VII the next day to the same effect. Subsequently the plaintiffs took delivery of the goods and paid the charges. They say in their plaint that they paid under protest but that was denied, and on the evidence it does not appear that they made any protest. They did not in any way repudiate defendant's action in bringing the goods to Cochin nor did they insist on delivery in Bombay. If the defendants were bound to pay the expenses for carrying the goods to Cochin under the law, the absence of protest at time of payment may not be material, but it is very material in considering whether the parties treated the defendants' action in carrying the goods as a voluntary and gratuitous one.
6. It seems to me further that even if the defendant Company had no authority be send the goods for the plaintiffs to Cochin and that plaintiffs' subsequent action did not amount to a ratification, defendant Company will still be entitled to claim compensation under Section 70 of the Contract Act. No doubt as stated in Damodara Mudaliar v. Secretary of State for India 4 M.L.J. 205 quoted by the District Judge and approved of in Jarao Kumari v. Basantakumar Roy 32 Cs. 374 'the section should not be so read as to justify the officious interference of one man with the affairs or property of another.' But this is not a case of that sort at all. The defendant Co. were carriers for the plaintiffs and but for the unforeseen action of the Government of India, they would have carried the goods to Cochin In such cases the master has power and ought to act for the cargo owners and make such arrangements with regard to the cargo as prudence dictates. See Carver, 6th Edition, P. 421. It is true he ought to obtain instructions from the cargo owners if it is practicable to do so; but in this case the instructions were, if anything, in favour of sending the goods. Even if he fails to obtain instructions his action cannot be treated as unlawful nor was it so treated by the plaintiffs themselves. Nor can the defendant Co. be looked upon as mere officious interferers in sending the goods. It seems to me they acted lawfully and as they clearly did not intend to act gratuitously in the matter and as plaintiffs have enjoyed the benefit they are bound to pay the charges claimed as compensation.
7. In any view the plaintiffs are not entitled to the refund claimed. No separate argument has been adduced before me regarding the claim for damages for short delivery. That is a claim that should have been made against the B.I.S.N. Co., and not against the defendant Co. in the view I take. The second appeal is, therefore, allowed and the decree of the lower Appellate Court is set aside and the decree of the first Court restored with costs here and in the Court below.