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Chogemul and ors. Vs. the Commissioners for the Improvement of the Port of Calcutta - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1891)ILR18Cal427
AppellantChogemul and ors.
RespondentThe Commissioners for the Improvement of the Port of Calcutta
Cases ReferredNugent v. Smith L.R.
Excerpt:
carrier - carriers by railway, liability of--railway act iv of 1879, section 210--common carriers--insurer--act of god. - .....of his agents or servants.'4. on the 10th of september 1867 it was decided in the case of east indian railway company v. jordan 4 b.l.r. o.c. 97 by a division bench of this court (peacock, c.j., and macpherson, j.) that railway companies in india were common carriers, and liable as such, that is to say, as insurers of goods delivered to them. sections 151, 152 and 161 of the contract act, 1872, limit the liability of bailees of goods to a liability for negligence, but a pull bench of this court on september 13th, 1883, in the case of mothoora kant shaw v. the india general steam navigation company i.l.r. 10 cal. 166 decided that the liability of common carriers was not affected by these sections, and as this court had before, in the case first cited, decided that railway companies in.....
Judgment:

W. Comer Petheram, Kt., C.J.

1. The facts of this case are so fully and clearly set out in the judgment of the Judge of the Small Cause Court that it is not necessary to re-state them.

2. The two questions which have to be considered are, first, whether the liability of a carrier of goods by railway in India was, between the passing of the Railways Act of 1879 and the passing of the Railway Act of 1890, that of insurer against everything but what is known as the act of God, or was that of a bailee as defined in the Contract Act; and second, if the liability was that of an insurer, whether this particular loss was caused by the act of God within the legal meaning of the term

3. In order to answer the first question, it is necessary to ascertain what has been the history of the law relating to carriers by railway, in this country. The first legislation on the subject is that contained in Act XVIII of 1854, Section 11 of which is as follows: 'The liability of such Railway Company for loss or injury to any articles or goods to be carried by them other than those specially provided for by this Act, shall not be deemed or construed to be limited, or in anywise affected by any public notice given, or any private contract made by them; but such Railway Company shall be answerable for such loss or injury when it shall have been caused by gross negligence or misconduct on the part of their agents or servants.' This continued to be the case until the passing of the Carriers' Act, 1865, Section 7 of which related specifically to the owners of railways, and was in these words:The liability of the owner of any railroad or tramroad constructed under the provisions of the said Act XXII of 1863, for the loss of or damage to any property delivered to him to be carried, not being of the description contained in the Schedule to this Act, shall not be deemed to be limited or affected by any special contract; but the owner of such railroad or tramroad shall be liable for the loss of or damage to property delivered to him to be carried, only when such loss or damage shall have been caused by negligence or a criminal act on his part or on that of his agents or servants.'

4. On the 10th of September 1867 it was decided in the case of East Indian Railway Company v. Jordan 4 B.L.R. O.C. 97 by a Division Bench of this Court (Peacock, C.J., and Macpherson, J.) that Railway Companies in India were common carriers, and liable as such, that is to say, as insurers of goods delivered to them. Sections 151, 152 and 161 of the Contract Act, 1872, limit the liability of bailees of goods to a liability for negligence, but a Pull Bench of this Court on September 13th, 1883, in the case of Mothoora Kant Shaw v. The India General Steam Navigation Company I.L.R. 10 Cal. 166 decided that the liability of common carriers was not affected by these sections, and as this Court had before, in the case first cited, decided that Railway Companies in India were common carriers, these sections do not affect the present question.

5. We now come to the Railways Act of 1879. Section 2 of that Act contains the following provision: 'Nothing in the Carriers' Act, 1865, shall apply to carriers by railway.' I cannot read these words in any other sense than as repealing all the provisions of the Carriers' Act which relate exclusively to carriers by railway, and confining the operation of the remaining provisions to carriers other than carriers by railway, so that by the repeal of so much of the Carriers' Act of 1865 as related to railways and that of the whole of the Railway Act of 1854, the liability of carriers by railway as it stood before the Acts of 1854 and 1865 was restored. The case of the East Indian Railway Company v. Jordan decided that carriers by railway are common carriers, and the case of Mothoora Kant Shaw v. The India General Steam Navigation Company decides that the liability of common carriers was not affected by the Contract Act, so that, unless there is something in the Act of 1879 itself which limits it, their liability after the passing of that Act was that of common carriers according to English law, that is to say, of insurers. On behalf of the defendants Section 10 is relied on. That section is in the following words:Every agreement purporting to limit the obligation or responsibility imposed on a carrier by railway by the Indian Contract Act, 1872, Sections 151 and 16.1, in the case of loss, destruction, or deterioration of or damage to property shall, in so far as it purports to limit such obligation or responsibility, be void unless--

(a) it is in writing signed by or on behalf of the person sending or delivering such property, and

(b) is otherwise in a form approved by the Governor-General in Council.

And it is said that by it Sections 151 and 161 of the Contract Act are declared to be the law relating to carriers by railway; but even if that were so, it would not avail the defendants, as those sections merely impose a liability for negligence, and Section 152, which is the section which limits the liability of the bailee, is not mentioned in Section 10 of the Act of 1879. It follows that after the passing of the Act of 1879 the liability of carriers in India, including carriers by railway, was not limited to a liability for negligence, but was a liability as insurers of the goods delivered to them.

6. This being my opinion, it is necessary to decide whether or not the loss in this case was caused by what is known as the act of God, and as to this I am clearly of opinion that it was not. The [443] legal meaning of the phrase is clearly defined in Nugent v. Smith L.R. 1 C.P. IX 423 and there can be no doubt that the present case does not come within that definition. So far from the loss having been caused by any convulsion of nature, it appears that for these steamers and flats to get ashore is quite a usual occurrence, and that the loss was occasioned by a variety of causes, which happened after this steamer with the flats attached to it had got aground and during the many hours which elapsed before the flat sunk, no one of which was occasioned by any tremendous or even unusual disturbance of the elements. For these reasons I would reply that upon the facts of the case as they have been found and stated, the judgment is correct in law.


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