1. In this suit the plaintiffs seek to recover from the defendants a sum of Rs. 644-1 in respect of the loss of three cases of files consigned to them by the steamship 'City of Delhi' from New York. I do not think that I need refer in detail to the agreed brief of correspondence, which is Ex. C. in this suit. But it appears from that correspondence that the plaintiffs were informed that the goods had never been landed. If that had been the case, the defendants in this suit would have been involved in no liability. But on further enquiry it appeared that the four cases of files consigned by the steamship 'City of Delhi' to the plaintiffs were in fact landed and placed in the Port Commissioners' warehouse. Of these four cases of files the plaintiffs received delivery of one case only' and the suit is brought with regard to the three cases of which the plaintiffs have never received delivery.
2. I am satisfied upon the evidence before me that the three cases of files were in fact landed and put into the warehouse of the Port Commissioners at the latest on the early morning of the 16th September. That being so, the only question that arises in the suit is with regard to the construction of two sections of Act III of 1890, the Calcutta Port Act. The defendants say that, as more than three clear working days elapsed from the time of landing on the 16th September, until the plaintiffs applied for delivery, which they did on the 22nd September, by virtue of the provisions of Section 113 of Act III of 1890, they are under no liability in respect of the three cases of files to the plaintiffs. Section 112 of the Act provides for the responsibilities of the Commissioners for the loss, destruction or deterioration (inter alia) of goods, whether landed for import, or received for export, or for carriage by railway, it also provides that during such time as the goods remain in the possession or under the control of the Commissioners, they shall, subject to the other provisions in the Act, be under the liability of a bailee under Sections 151, 152 and 161 of the Indian Contract Act. Section 113 provides that the Commissioners shall upon landing, take charge of goods and store such as are liable to suffer from exposure, in any shed or warehouse belonging to them; and Sub-section (2) provides that if any owner, without any default on the part of the Commissioners, fails to remove any goods from the premises of the Commissioners within three clear days from the time of landing, such goods shall remain on the premises of the Port Commissioners at the sore risk and expense of the owner. Section 114 provides that when the owner of any goods fails to remove the same within the time specified in Section 113, the Commissioners shall give notice to the consignee or owner of such goods, if his address be known, by letter sent by post to such address, stating that all liability which the Commissioners may have hitherto incurred in respect of such goods has ceased; and Sub-section (2) provides for the publication of such notice. In this case, as I have already stated, the goods were landed at the latest on the morning of the 16th. The 16th was a Thursday, and therefore four clear working days--Friday, Saturday, Monday and Tuesday elapsed before the plaintiff applied for the goods. That being so, I think the defendants rightly contend that they are protected by the provisions of Section 113. I think the words 'sole risk' mean what they say, and that, after the expiration of three days, unless there has been any default on the part of the Commissioners, they are free from liability in respect of the goods, whatever may have happened to them.
3. The plaintiff's action accordingly fails and must be dismissed with costs. Cost will be taxed on the Small Cause Court scale, including the costs of transferring the suit from the Small Cause Court to the High Court.