1. The plaintiff in December 1926 delivered to the British India Steam Navigation Company at a jetty on the river Hooghly 194 bundles of iron to be shipped by the company's steamship 'Warroonga' from Calcutta to Akyab. The goods having been delivered to jetty No. 1, the usual place, at which goods for such shipment were received by the shipping company or its agents, Messrs. Mackinnon Mackenzie, a receipt was granted showing the terms of that shipment. The words, which require to be noticed in the receipt, areas follows:
All cargo received at No. 1 jetty remains at shipper's risk until placed on board the steamer.
2. It appears that, for the purpose of transmitting from this jetty to the ship in midstream the goods, which had been in this manner received for shipment, arrangements had been made with the defendant, Ahmad Bux, and embodied in a contract, dated 11th March 1926, between Mackinnon Mackenzie & Co., on the one hand and Ahmad Bux on the other. In this contract, Ahmad Bux, the defendant, was described as carrying on business as 'boating contractors.' It was recited that:
the company has received cargo from various shippers at No. 1 jetty and despatched the same by cargo boat or dingi for loading into steamers in port.
3. It was recited that:
it has been agreed that the contractors shall take possession and receive such cargo, as they may be directed by the firm to receive from such place or places, as the company shall direct, ant safely transport and deliver the same as quickly as possible for shipment or otherwise as directed by the company in or about the port of Calcutta.
4. By the first clause of the contract the defendant undertook to receive from the company cargoes on board his dingis or boats; he was to receive them at such jetty or place, as the company would direct, and he undertook to carry them safely-not merely to carry them carefully, and to deliver them for shipment in the steamer. The contractors were to have no lien over the goods so delivered. The barges were to be sound. The company was to be at liberty to put a representative on board any boat. The goods were, for the purposes of this agreement, to be deemed to be the goods of the company. The contractors undertook to indemnify the company from all actions and claims, which the company might be exposed to by reason of any loss or delay occasioned to any goods, whether belonging to the company or belonging to any other person in the custody or control of the company, but it was provided that the contractors would not be liable to make good to the company any loss or damage to the goods of other persons, where such loss or damage would be caused by accidental fire, earthquake, flood or other act of God or by a mob or by the king's enemies. It was further provided that nevertheless the contractors would pay any sum, which the company might be called upon to pay and in respect of which the contractor's clause of indemnity applied. The amount of the sum to be certified by the company was to be accepted by the contractors. On these terms, the contractors were to get a sum equivalent to a half of such boating charges as might be collected by the company. The agreement was to be subject to a month's written notice.
5. Now, acting under this contract, the defendant, by his servants, received the plaintiff's goods from the jetty into his boat. He seems to have taken them up to the ship, but very soon after their arrival alongside of the ship and before they could be delivered into the ship, by some accident, of the particulars of which we have no evidence, the boat or its contents were upset in the river and save for a small quantity of the goods, which was salvaged, the plaintiffs' goods were lost. The boat, in which the goods were at the time, was boat No. 4 with No. C.4571 and the defendant had a licence for this, being licence No. 1742. In these circumstances, the plaintiff began his suit, making the British India Steam Navigation Company and Ahmad Bux co-defendants. He alleged negligence against both the defendants, and at first made the case that Ahmad Bux was an agent of the shipping company. The plaint contained certain allegations that the goods had been lost by negligence on the part of the defendants. An order for particulars was made and it was not complied with. Another order was made whereby all allegations of negligence were to be excluded from the plaint and the plaint was amended in conformity therewith. At the trial, the case against the British India Navigation Company was withdrawn and the plaintiff proceeded against Ahmad Bux upon the footing that he was a common carrier, that the transaction whereby he received the plaintiff's goods from No. 1 jetty to take them to the ship was a transaction entered into by him as a common carrier and that, accordingly the plaintiff, as the owners of the goods, had a right, apart altogether from any proof of negligence or any allegation or presumption of negligence, to recover the value of the goods from the defendant, merely upon showing that he did not safely carry them.
6. The learned Judge has come to the conclusion, first, that Ahmad Bux was a common carrier by calling. He has come to the conclusion however though apparently with some little hesitation, that in respect of this transaction he was not working as a common carrier. But, even if he was acting as a common carrier in the transaction, the learned Judge thinks that, as Messrs. Mackinnon Mackenzie were not in any way liable for the safety of the goods until the goods arrived in the ship, Ahmad Bux cannot be responsible as an insurer for the plaintiff and cannot therefore be made liable in this suit. A good deal of the difficulty in this case has arisen from the fact that insufficient care has been taken by the plaintiff in the preparation of it. So far as the question is concerned, whether Ahmad Bux was a common carrier within the meaning of the Carriers Act of 1865 the evidence is really the evidence of the terms of the Port Commissioners' licence, which he had obtained for his boat and without which he could not carry on the business of a lighterman at all. It appears that, according to the terms of Rule 57 of the rules for the Port of Calcutta under the Indian Ports Act, one of the rules for licensing and regulating cargo boats and flats is:
No Cargo boat or flat of any description shall ply, whether regularly or only occasionally, in, or partly within and partly without, the limits of the port unless licensed and registered by the Commissioners.
7. Rule 72 is:
The owner or agent or manjhi of a licensed cargo boat, when plying for hire, shall not, without good reason, refuse to carry cargo in such boat;
and Rule 79 is:
The manjhi of every licensed cargo boat plying for hire within the port shall, when waiting for hire at the wharves, have a hiring note showing the rate at which such boat can be hired by the day.
8. In addition to the terms of these rules there is the description in the contract of Ahmad Bux as 'carrying on business of boating contractors,' and there is a page said to represent an entry in this defendant's boat hire book, in which there are a number of columns, one of which is headed 'To whom supplied.' In the entry with reference to the particular journey of the 3rd December 1926, with which we are concerned, the name of British India Steam Navigation Company Ltd., is entered under the heading 'To whom supplied.' Now the defendant in his written statement, has pleaded in a way which is a little embarrassing. He has said that:
In the usual course of his business he carries certain goods in his boats from the jetties to the company's sea-going vessel lying in midstream in the port of Calcutta.
9. He says that he does so as an independent contractor under the contract to which I have referred. In addition to that, he denies that he is or was at any material time a common carrier. The first question is whether, having regard to the definition in the Indian Carriers Act, the defendant is shown on this evidence to have been a 'common carrier.' I agree with the learned Judge that on these materials it is prima facie proved that the defendant carries on the business of a common carrier and that is his vocation. The terms, which are binding upon him, require him and are designed to require him to give the benefit of his services to all persons who may require them, subject, of course, to his having reasonable ground in any particular case for refusal. That is his obligation under the licence and he has given no evidence at all about his business. There is certainly nothing to suggest that he can be carrying on his business contrary to the intention of the rules which require that the people, who carry on this business, shall carry it on for the benefit of all persons, who may require their services. The next question is, whether, though that is the nature and character of his business, namely, that he must be holding himself out to do business with anybody, who requires his services, we should regard his work under the contract of March 1926, as making him a sub-contractor of the British India Steam Navigation Company, in such a sense that, so far as regards the goods received from them, he has departed from the exercise of his vocation as a common carrier and is doing special work of a different character for the British India Steam Navigation Company. It appears to me that, on this question, it is very necessary to apply the test, which was approved by the Privy Council in the case of Dekhari Tea Co., Ltd. v. Assam-Bengal Railway Co., Ltd. AIR 1920 Cal 758, but to be careful not to assume that the facts of one case will produce the same result as the facts of another. Nevertheless, I am of opinion that in this case it is not shown that the business, done under the contract with Messrs. Mackinnon Mackenzie, was not in the course of his business and within the scope of his business as a common carrier. He under takes to carry safely to begin with. He has given a special indemnity to the steamship company, which arises out of the fact that they are going to have a lot of business with goods belonging not to themselves but to other people. It is nowhere prescribed that the defendant shall not be entitled to take other goods into the same boat. There is no restriction as to the liability save as regards the indemnity clause-C1. 8-where there is a restriction, for example, as regards accidental fire. The fact, that a person makes a special stipulation, does not mean that he is acting outside the business of a common carrier. It is quite clear that a common carrier may make a special stipulation; but the question here is not whether he has made a certain special stipulation of any importance for the present purpose but whether, on a review of the contract as a whole, we are to say that it is a contract controlling business to be done in the course of the vocation of a common carrier or whether it is a contract showing that he has really entered into business of a different character. In my judgment, the correct view to take is that the business done under this contract is not business of a different character, but there are special stipulations as regards certain journeys, which are to be performed by the defendant as a common carrier.
10. If that be so, then the remaining question is whether the defendant has any answer to the claim on the ground that, though he is a common carrier, he is not vis-a-vis the plaintiff an insurer. The learned Judge appears to have thought that, because Messrs. Mackinnon Mackenzie accepted no liability for the safety of the goods during their transit to the ship, even if the defendant received these goods as a common carrier, he was not liable as an insurer. On this point, I am not able to accept the view of the learned Judge. In order to describe the extent of the liability of a common carrier, it is often said that he has the liability of an insurer. That is a simile. It is not a question of any contract to insure and no contract of insurance has to bo made out. The position is that a common carrier, exercising a public employment, has committed a breach of the law by failing to carry safely. An action lies against him, not in any way dependent upon privity of contract between himself and the plaintiffs. This question was raised in the case of Dekhari Tea Co., Ltd. v. Assam-Bengal Railway Co., Ltd. AIR 1920 Cal 758, and in that case I did not think it necessary to decide the point. I appear to have said that I was not satisfied about the matter and, as it was not necessary to decide it, I left the point open. In that case the owner had a clear right under Sections 8 and 9, Carriers Act, and, as the 'owner' is specifically referred to in those sections, there could bo no doubt about the claim to recover the moment negligence had to be admitted. In the present case, the point arises solely because the plaintiff in this suit has debarred himself from alleging or relying upon any case of negligence. It is not necessary to show that the defendant has not carefully carried. The plaintiff has to proceed solely upon the footing that the defendant has not safely carried. Upon a consideration of the matter, from the point of principle, it may well be that the doubt, which I expressed, was overcautious, because in the judgment of Lord Macnaghten in the case of Irrawaddy Flotilla Co. v. Bugwandas (1891) 18 Cal 620, the principle of the matter was explained thus:
The obligation imposed by law on common carriers has nothing to do with contract in its origin. It is a duty cast upon common carrier by reason of their exercising a public employment for reward. 'A breach of this duty,' says Dallas, C, J. [Bretherton v. Wood (1821) 3 Br&B; 54] is a breach of the law, and for this breach an action lies founded on the Common law, which action wants not the aid of a contract to support it.
11. And very soon after the decision in this Court of the Dekhari Tea Co. case AIR 1920 Cal 758, the matter was dealt with in the case of London and North Western Railway Co. v. Richard Hudson and Sons Limited (1920) AC 324 by the judgment of Lord Dunedin, in a manner, which removed all room for the doubt which I had expressed:
That a common carrier is an insurer of goods entrusted to him for carriage, and can only excuse himself on the ground of act of God, or of inherent vice (in which expression I include bad packing) of the goods themselves is axiomatic. Now Lord Mansfield in Forward v. Pittard (1785) 1 TR 27. speaks of this obligation on the carrier's part as an obligation independent of the contract. By that I understand that it is not an adjected term to the contract as made, but is an obligation which attaches from the fact of the goods being carried by a common carrier, in favour of the owner of the goods, whoever he may be. For indeed in many common cases it would seem to be inaccurate to speak of a contract of carriage as being made between the carrier and the consignee.
12. In my judgment therefore the position is that a person, who has suffered loss by the common carrier's breach of his Common law obligation, can maintain a suit independent of contract. There is no question of this suit being defeated merely by reason of the absence of privity of contract or of privity of contract of insurance. The circumstance that Messrs. Mackinnon Mackenzie assumed no liability for the safety of the goods during the transit from the jetty to the ship does not, in my judgment, afford any answer to the common carrier. He was, under the contract, transporting goods, which he knew to belong to other people. The circumstance that Mackinnon Mackenzie and Company did not purport to be themselves common carriers and did not undertake to insure for the transit to the ship does not import that the defendant is relieved from the consequences of any breach of his common law duty. It is no answer to a man who suffers loss by a breach of Common law duty, to say that some one else has taken care to avoid coming under a similar obligation, Whoever tenders the goods to the common carrier, whatever his position vis-a-vis the owner of the goods, if the common carrier's duty is not performed he will make himself liable to the person, who suffers damage-prima facie the owner of the goods-unless he has, at the time of the contract, restricted his obligation so as to give himself greater protection. In the result, the appeal is allowed and the appellants will recover from the defendant, Ahmad Bux, the sum of Rs. 2,926-6-5 as damages with interest on decree at the rate of six per cent. per annum from the date of the decree of Ameer Ali, J. The appellants will have the ordinary costs of this appeal and costs of two days' hearing before Ameer Ali, J.
13. I agree that this appeal must be allowed. The basic matter for consideration in this case is whether or not this defendant was a common carrier. If a person holds himself out to carry goods or if one makes a business of carrying goods from a jetty to a ship in a harbour, he is, in my opinion, a common carrier. The only point of doubt in the present case is whether or not the defendant held himself out as being willing to carry goods for all and sundry. I am satisfied that there was sufficient evidence in the case on which the learned Judge could come to the conclusion he did, that Ahmad Bux was carrying on the business of a common carrier. That question is entirely one of fact and not of law. Having arrived at that decision the only other point of any substance for the determination of the case is whether or not in the circumstances of the case the plaintiff, as the owner of the goods, could sue the defendant and recover from him damages for the goods lost. I do not think it is necessary that I should say anything further on that point because I entirely agree with what has fallen from my Lord with regard to it and I think the matter is concluded by the passages in the judgments of Lord Macnaghten and Lord Dunedin, to which the Chief Justice has referred.