1. A very strenuous argument has been put forward in this Rule by Mr. Dhirendra Lal Khastagir who has appeared for the petitioners. He has said all that could be said in this case for the petitioners, but notwithstanding this I am of opinion that this Rule should be discharged.
2. The facts lie within a short compass.. It appears that Shama Nand Tamsuk Bail delivered six boxes described as containing stationery to the River Steam Navition Co. Ltd.--the India General Navigation Ry. Co. Ltd.--who are the petitioners before me for carriage of those goods from A.S. Ghat station via Chandpur to Tinsukia, a station on the Assam Bengal Railway for delivery to Messrs. Jamuna. Das Earn Kumar. The consignor described the goods as stationery in the forwarding note and signed a declaration; agreeing to abide by the conditions mentioned in the forwarding note. The consignment contained other goods besides stationery and included silk handkerchiefs of the value in excess of Rs. 100 and other gold and silver articles. Each class of such articles was of the value of less than Rs. 100. The articles are excepted articles in the schedule to the Carriers Act.
3. Four of the six boxes were given to the consignee at Tinsukia. The plaintiff after a mass of correspondence with the railway company brought a suit in the Court of the Munsif at Dibrugarh for recovery of the value of the goods in the two boxes and laid the claim at Rs. 440-9-0 valuing the price of the goods at Rs. 352-9-0 and claiming the rest as compensation.
4. The Munsif dismissed the plaintiff's claim for compensation and disallowed the claim of silk handkerchiefs on the ground that they were excepted articles of the value of Rs. 122 in respect of which no declaration was made and decreed the claim for Rs. 230-9-0.
5. On appeal by the carriers the Subordinate Judge affirmed the decision of the Munsif and the carriers have obtained the present Rule.
6. The Assam Bengal Railway Co. have not been made a party to the suit.
7. Both the Courts have concurrently found that the loss of the goods took place while in transit on the Assam Bengal Railway and all the six boxes were delivered to the Assam Bengal Railway; and the loss was due to the negligence of the railway company.
8. It is argued on this finding that the River Steam Navigation Co. are not liable for the price of the goods as by condition 11 of the forwarding note it was stipulated that in the event of goods being carried by the company's vessels for carriage to destination by other transport administration the company shall be under no liability for any loss or damage or delay to the goods after they have been handed over to the on carrying administration. It is argued that even if the contract with the Steam Navigation Company was indivisible one the petitioners are not liable for the loss because their liability is restricted by the contract as contained in para. 11 of the forwarding note, and reliance is placed on a decision to which I was a party in the case of Indian General Navigation and By. Co. Ltd. v. Giri Dhari Lal Gober Dhan Das : AIR1927Cal394 and stress is laid on the following passage in my judgment in the said case:
The law in England is to the effect that where goods are addressed to a place beyond the sphere of the carriers business so that from another point he must forward them by another carrier he is responsible for the goods for the whole journey unless he limits his liability by agreement.
9. This view is undoubtedly subject to the qualification that contract restricting liability is not inconsistent with the Carriers Act (3 of 1865). The stipulation in the forwarding note by which the Navigation Co. were to be exonerated from liability even for the negligence of its servants or agents is contrary to the provisions of Section 8, Carriers Act and such a contract is void. It has been so held in the case of Indian General Steam Navigation & By. Co. v. Joy Krishna Saha  17 Cal. 39 The Assam Bengal Ry. Co. must be treated as agents of the petitioners in the matter of the transport. There was no contract with the consignors and the Assam Bengal Ry. Co., but by certain arrangement between the petitioners and the Assam Bengal Ry. Co. the goods were to be carried from Chandpur to Tinsukhia. The power of limiting liability by special contract can be exercised subject to the limitations imposed by Section 8 of the Act. As was pointed out by Sir Lawrence Jenkins, C. J., in the case of British Foreign Marine Insurance Co. v. Indian General Navigation & By. Co, Ltd.  38 Cal. 28 the effect of Sections 6 and 8 of the Act is that the liability of a common carrier for the loss of goods not being of the description contained in the schedule may be limited by special contract signed by the owner save when such loss shall have arisen from the negligence or criminal act of the carrier or any of its servants. In this view the special contract being in contravention of Section 8 cannot be given effect to.
10. Even in England it has been held that where carriers made a contract with their customers that they would not be liable for any loss however occasioned such a. contract was bad and unreasonable and could not be enforced in any part of it: see Ashendon v. London and Brighton South Coast By. Co.  5 Ex. D. 190. I think the portion of the contract embodied in para. 11 which exonerates the Steam Navigation Companies from the negligence of their servants or agents is bad both as being unreasonable and as being in contravention of Section 8.
11. The next point taken is that the consignor is guilty of fraud as it did not give the declaration in respect of the scheduled articles exceeding Rs. 100 in value required by the Act and that therefore the consignor is not entitled to get the price of the non scheduled articles also as the Court should refuse all relief where the transaction is vitiated by the fraud of the party seeking relief. There is no foundation for this contention. Under the English law, when a package containing both scheduled and nonscheduled articles is lost, the value of the nonscheduled articles may be recovered although the value of the scheduled articles (exceeding 10 or 25 in the case of railway companies under the Railways Act of 1921) cannot be recovered: see Flowers v. S.E. By. Co. [18671 16 L.T. 329 and also the case of Treadwin v. G.E. By. Co.  3 C.P. 308. This is also the law in India in case of carriers who are governed by the Carriers Act, and Section 3, Carriers Act is clear on the point. Section 3 says that a common carrier is not to be liable for the loss of the scheduled articles only. This point fails.
12. The next point taken is that there were other scheduled articles (each class not being of the value in excess of Rs. 100) but the aggregate value of which exceeds Rs. 100 besides the silk handkerchiefs and the compensation for their loss should not have been allowed. The point was not specifically taken in the written statement, nor before the lower appellate Court and I am not prepared to allow it to be raised for the first time in revision. It is argued that the point arises on the statements made in the plaint. If the point had been taken in the written statement some answer might have been forthcoming. This point also fails. The Rule is accordingly discharged with costs--; one gold mohur.