Richard Garth, C.J.
1. Whatever doubts may have arisen upon the subject of this reference in consequence of recent legislation, it is at least satisfactory that we are all now agreed upon one very material point, namely, that at the time of the passing of the Indian Carriers Act in 1865, the English law relating to common carriers was in force in this country. My brother WILSON and myself, when we referred this case, had some doubt about that point, but, so far as I am concerned, I am glad to say that my doubts have been entirely removed.
2. It is obvious that the Carriers Act itself assumes two things: first, that there were a class of persons here at that time, who were recognized as common carriers; and, secondly, that there was some special law, which regulated the duties and responsibilities of those persons. It is difficult to imagine what that law could have been, unless it were the English common law; and it seems only reasonable to suppose that, as common carriers were introduced into India by the English, and under English rule, the law by which their duties were regulated was the English law applicable to that class of persons.
2. That being so, the Carriers Act of 1865 merely introduced certain modifications of that law, and in some respects of the bailor which had been previously enacted in England by the Statute 11, Geo. 4th and 1, Wm. 4th, c. 68.
3. The plaintiffs, therefore, in this case are entitled to succeed, if the law of common carriers has not been changed by the Indian Contract Act.
4. It is contended by the defendants that this change has taken place; and in support of their contention they rely upon the judgment of the Bombay High Court in the case of Kuverji Tulsidas v. The G.I.P. Railway Co. I.L.R. 3 Bom. 109.
5. Now, in order to come to a proper understanding of this question, we must first consider what the duties and responsibilities of common carriers were by the law of England. We are dealing now with common carriers of goods. A carrier of goods was bound by the English law to receive all goods brought to him for carriage, provided he had conveniences to carry them, and the employer was ready to pay any reasonable reward for the conveyance see Pick-ford v. The Grand Junction Railway Co. 8 M. & W. 373; Johnson v. The Midland Railway Co. 4 Ex. 367. He was also bound to carry the goods within a reasonable time, and to insure their safety during the carriage, and until delivery to the consignee, the act of God and the Queen's enemies only excepted. And it is important to note, that this duty was imposed upon him irrespective of any contract. It was imposed upon him by the custom of the realm, for the benefit of the public, by reason of the important trust which he undertook. See the observations of Lord Holt in Goggs v. Bernard 1 Smith's L.C. 189 6th edn. : 199 8th edn.
6. Common carriers are largely intrusted with the property of the public. They are intrusted with it under circumstances which make a breach of the trust a very easy matter, and the detection of the breach by the owner of the goods often extremely difficult. They are paid a fair compensation for the carriage proportionate to the risks which they run, and the liability which they incur.
7. The policy of the law, therefore, is no more than just which makes common carriers under ordinary circumstances insurers of the goods they carry.
8. But then it is said that the Indian Contract Act has changed this rule - of the common law, and has reduced the liability of a common carrier to that of a mere gratuitous bailee; and, moreover, if the defendants are right, the law, as it stands at present, renders it practically impossible, in the great majority of cases, to fix a common carrier with liability. It is true, that by Section 9 of the Carriers Act, and by Section 13 of the Railways Act of 1879, a plaintiff, who sues a carrier for the loss of goods, is not bound, in the first instance, to prove how their loss was caused; but nothing is more easy than for the carrier to call his servants as witnesses, and to prove prima facie that the goods were stowed and protected in the usual way, and so to throw upon the plaintiff the onus of proving some negligence or criminality on the part of the carrier or his servants. Take the ordinary case of goods sent from Calcutta to Bombay, or from Delhi to Calcutta, and consider how almost impossible it would be, in the generality of cases, for the plaintiff to bring negligence or criminality home to the carrier; although the goods sent may not be forthcoming, and no explanation may be offered as to how the loss occurred.
9. It therefore seems, to say the least of it, unreasonable that the liability of common carriers should have been reduced as against the public from a maximum to a minimum, without any proportionate reduction being made in the rates which they charge, or any other corresponding advantage to the public whose goods they carry.
10. It is also a remarkable fact, which it seems to me impossible to disregard, that, although the Indian Contract Act has now been in force upwards of ten years, the public and the Courts of law in this province, have, so far as I am aware, always acted on the supposition that the law in this respect has not been changed by the Contract Act.
11. This point is also noticed (though apparently little or no weight was attached to it) in the judgment of Sir Michael Westropp in the Bombay case. He observes that one of the reasons for the judgment of the lower Court was that, although the Contract Act had then been in force in Bombay for six years, no judicial authority had been cited to show that Section 152 of that Act applied to carriers for reward, and that, although many actions had been tried in the Court of Small Causes, against the G.I.P. Railway Company, such a defence had never been raised in any of those actions.
12. There is also no doubt that, during the last ten years, similar actions have been constantly tried in this presidency; and, so far as I am aware, this is the first occasion on which the point now before us has been raised.
13. The view which the Courts of law and the public, and even carriers themselves, have taken of the Act for many years after it has become law, is surely a circumstance worthy of our consideration, where the intention of the Contract Act is, to say the least of it, doubtful.
14. Let us now examine the Contract Act itself, and see whether it really did effect this important change in the law.
15. In the first place, as observed by Sir Michael Westropp, the Act purports to be only a partial measure. The preamble recites 'that it is expedient to define and amend certain parts of the law relating to contracts'; and the first Section provides 'that nothing contained in the Act shall affect the provisions of any Statute, Act or Regulation, not thereby expressly repealed, nor any usage or custom of trade, nor any incident of any contract not inconsistent with the provisions of the Act.'
16. Now here at once a question arises, which, as it seems to me, was disposed of without sufficient consideration in the Bombay case.
17. The learned Chief Justice admits, as I understand him, that the law relating to common carriers is a 'custom of trade' within the meaning of this section; but he considers that as this customary law is inconsistent with the general rule laid down in Section 152 of the Act, it is not within the saving clause of the section.
18. Now here I think he is in error; and it seems to me that this clause, when it is rightly understood, affords a solution of the question which, we have now to decide.
19. If the Bombay Court is right, any contract or usage of trade which is inconsistent with the general law laid down by the Contract Act is invalid. Now it seems to me impossible to suppose that this was intended. The Act only lays down certain general rules, which, in the absence of any special contract or usage to the contrary, are binding on contracting parties. But it could never have been intended to restrain free liberty of contract as between man and man, or to invalidate usages or customs which may prevail in any particular trade or business. These customs and usages have only the effect of introducing special terms into all contracts or dealings in any particular trade; their very object is generally to modify or control the general law; and the Contract Act, in my opinion, could never have intended to invalidate all customs or usages which are not in accordance with the general rules which it enacts, or to prevent private persons from entering into contracts which are inconsistent with those rules.
20. For example, the Act lays down rules with regard to the delivery of goods, re-sale, lien, and appropriation of payments. But these rules are only binding in the absence of any agreement to the contrary; and if either particular persons, or persons engaged in any particular trade, choose to contract with one another upon terms inconsistent with those rules, the Contract Act could never have intended to prevent their doing so. It is not necessary for our present purpose to define with precision the meaning of the words 'inconsistent with the provisions of this Act.' But my present impression is, that they mean no more than this; that no general usage or custom of trade, that is, no usage or custom pervading all trades, inconsistent with the provisions of the Act, shall be valid. Any general usage of that kind would of course be equivalent to a general law; and no general law or usage in contravention of the general law laid down by the Act would be consistent with the validity of the Act itself.
21. It then remains to be considered, whether the Bombay High Court was right in considering that the custom, which regulates the duties of common carriers, is 'a custom of trade.' In my opinion they were. I think that in common parlance, and in the more extended sense of the expression, the word 'trade' undoubtedly includes the business of a common carrier.
22. I think, therefore, that the custom of common carriers, upon which the plaintiff relies, has not been affected by the provisions of the Contract Act.
23. It seems to me moreover that, as that Act was only a partial measure, and as its general scope and object was to codify, so far as it goes, the existing law of contracts, the Legislature could never have intended to effect such a material change of the law to the disadvantage of the public, and in favour of common carriers, without some special mention of, or reference to, that intention.
24. Besides which, it must be borne in mind, that the law and liabilities of common carriers are, as I said before, founded on custom, irrespective of contract. A common carrier is, and always has been, liable to be sued for any breach of this common law duty in an action of tort; and therefore, without some special provision relieving them from this duty, it seems to me that an Act which professes to codify the law of contracts, and that only partially, cannot be considered as repealing the law relating to the duties of common carriers.
25. The Bombay High Court, while fully admitting that the English law upon this subject prevails in the Indian mofussil, seems to have lost sight of the fact that this law is founded upon a common law duty apart from contract.
26. It is true that when the employment of a common carrier has commenced, the law implies a contract on his part to perform the duty imposed upon him; and consequently he is liable to be sued in an action either of tort or contract, according to the convenience or advantage of the plaintiff in each suit, see Bullen and Leake on Pleading, pp. 101 and 243.
27. For these reasons I am of opinion that common carriers are not relieved by the Contract Act from their common law liability; and it only remains now to notice Section 10 of the Indian Railways Act, 1879, on which the defendants strongly rely. That section enacts that 'any agreement purporting to limit the obligation imposed on a carrier by railway by Sections 152 and 161 of the Indian Contract Act, 1872, in the case of loss, destruction or deterioration of, or damage to property, shall be void unless it is signed by the party sending it, and is in a form approved by the Government'
28. From this section we are asked to infer that the Legislature has put a t construction upon Sections 152 and 161 of the Contract Act, which relieves all 'carriers in India from any common law liability.
29. But if, in our opinion, the Contract Act was not intended to have that effect, but, on the contrary, was intended to leave the liability of common carriers as it was before the Act passed, the fact that the Railways Act several years afterwards alludes to Sections 152 and 16.1 as applying to carriers by railway, is not, I think, sufficient to justify us in giving to the Contract Act a construction which we disapprove, and which we believe to be contrary to its meaning.
30. Besides, it is really difficult to say what the Legislature did intend by Section 10 of the Railways Act. Very possibly it may have taken for granted that the view of the Bombay Court was right, or it may have supposed that carriers by railway were not common carriers.
31. It is certainly a very remarkable thing that, in the definition of common carriers in the Carriers Act of 1865, the Government, for some reason or other, are excluded from that category. It is difficult to conceive why, if carriers by railway are ordinarily common carriers, the Government, if they engage in that business, are not to be subject to the same laws and liabilities as other carriers. If the Government engage in any trade for purposes of profit, there would seem no good reason why they should be exempt from duties and liabilities as against the public, by which private persons engaged in that trade are bound; and yet the exclusion of the Government from the definition of common carriers in the Carriers Act would seem to mean one of two things,--either that they were not to be subject to the duties or liabilities of common carriers, or that, being common carriers, they were not to share in the benefit conferred by that Act.
32. Considering the large share which the Government have now appropriated to themselves in the carrying trade and business of this country, it is certainly very desirable that their position as against the public should be satisfactorily defined. Meanwhile, I think, we ought to hold that the Contract Act has not relieved common carriers from their common law liability. As my learned brothers are also of this opinion, the plaintiffs will be entitled to recover, and they will also have their costs of this reference.
33. This was a suit for the recovery of Rs. 296, being the value of 72 drums of jute shipped by the plaintiffs on board the defendants' flat Delta at Kaligunge for being carried to Calcutta. There is no question that the defendants are common carriers under the Indian Carriers Act III of 1865. The learned Judge in the Court below has found that the drums of jute in question were entrusted by the plaintiffs to the defendants for carriage, and that they were not duly delivered to the former. He further finds that the goods in question were lost in the course of their carriage from Kaligunge to Calcutta, and that this loss was not occasioned by the act of God or the Queen's enemies. He has also found that the defendants took as much care of the goods bailed to them as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed.
34. Upon these facts found by him, the learned Judge in the Court below thinks that the defendants are liable for the loss under the English common law rule under which common carriers are liable as insurers of goods against all risks, except the act of God or the Queen's enemies. The question referred to us is, whether the aforesaid English common law rule, being now in force in this country, will regulate the liability of the defendants in this case.
35. I am of opinion that this question should be answered in the affirmative.
36. It seems to me that the English common law defining the duties and responsibilities of common carriers was in force in this country at the time when the Indian Carriers Act III of 1865 was passed. The decision of Sir Barnes Peacock, C.J., and Macpherson, J., in the East India Railway Co. v. Jordan I.L.R. O.C. 98 proceeds upon the ground that the English common law is applicable to common carriers in this country. It is also clear from the preamble of the Indian Carriers Act III of 1865 that the Legislature assumed that the English common law relating to common carriers was then in force in this country. Then, again, the business of a common carrier as a public employment was unknown in this country; it was introduced first here by persons who were governed by the English law. Under these circumstances it is reasonable to hold that the duties and responsibilities of persons carrying on that business in this country should be regulated by the English common law. In Mollwo March and Co. v. The Court of Wards L.R. I.A. Sup. Vol. 86 : 10 B.L.R. 312 a question arose whether the English law of partnership was applicable to partnership transactions in India before the Indian Contract Act was passed. Their Lordships of the Judicial Committee held that 'in the absence of any law or well-established custom existing in India on the subject, English law may properly be resorted to in mercantile affairs for principles and rules to guide the Courts in that country to a right decision.' These observations fully warrant us in holding that the English common law, so far as it was not modified by any Indian enactment, regulates the duties and responsibilities of a common carrier in this country.
37. The rule of the English common law, which is applicable to the facts of this case beyond all dispute, is that a common carrier is liable for all losses of goods entrusted to him for carriage, except those occasioned by the act of God or the Queen's enemies. The question is, whether this rule of law has been modified by any Indian enactment. It has been contended on behalf of the defendants that the rule in question is no longer in force in India, as it has been replaced by the provisions of Sections 151 and 152 of the Indian Contract Act, IX of 1872. And in support of this contention the decision of the Bombay High Court in Kuverji Tulsidas v. G.I.P. Railway Co. I.L.R. 3 Bom. 109 has been strongly relied upon. The decision cited fully supports this contention; but with due deference to the learned Judges who decided that case, it appears to me that the contention put forward on behalf of the defendants is not correct.
38. The learned Judges who decided that case appear to me to have not given full effect to that part of Section 1 of the Indian Contract Act (IX of 1872) which provides that nothing contained in it 'shall affect any usage or custom of trade, nor any incident of any contract not inconsistent with the provisions of this Act.' With reference to this provision of the Contract Act, Westropp, C.J., in delivering the judgment of the Court in the case cited, says: 'The provisions of its first section,' i.e., the first Section of the Indian Contract Act, 'that nothing contained in the Act 'shall affect any usage or custom of trade or incident, of any contract not inconsistent with the provisions of the Act,' does not aid us in arriving at a solution of the question submitted to this Court, inasmuch as if the 152nd Section of the Act is applicable to common carriers for hire, the Act is in that respect inconsistent with the rule or usage of common law relied upon by the Court of Small Causes as the basis of its opinion.' Then the learned Chief Justice simply cites the rule in question, and the provisions of Sections 151 and 152 of the Indian Contract Act, without showing in what respect the rule of the English common law is inconsistent with the 152nd Section of the Indian Contract Act.
39. But it seems to me that a careful consideration of the provisions of Sections 151 and 152 of the Indian Contract Act, and of the rule of the English common law in question, shows that they are not inconsistent with one another. The 151st Section of the Indian Contract Act is as follows: 'In all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed.' The 152nd Section enacts: 'That the bailee, in the absence of any special contract, is not responsible for the loss, destruction, or deterioration of the thing bailed if he has taken the amount of care of it described in Section 151.' Now I shall cite the rule of the English common law regulating the responsibility of a common carrier as stated by Cotton, L.J., in Bergheim v. The Great Eastern Railway Co. L.R. 3 C.P.D. 221: 'The liability of a common carrier,' says he, 'as compared with that of other bailees, is exceptional. He is answerable for the loss of goods entrusted to him as such, though the loss be in no way caused by any default on his part. He is considered as having contracted to insure the safe delivery of, that is to say, as having contracted to carry and deliver safely and securely (the act of God and of the enemies of the Queen alone excepted) the goods of which he, as common carrier, is bailee.' Now this responsibility of a common carrier is an incident of his contract which the law implies as having been agreed to by him when he accepts goods delivered to him for carriage. Is such an incident of the contract inconsistent with the provisions of the 152nd Section of the Indian Contract Act? It seems to me that it is not; because any carrier (whether he is a common carrier or not) under the provisions of the 152nd section, would incur the same responsibility if he binds himself by a special contract to that effect. In the case of a common carrier, the law implies that he contracts to undertake the insurance liability, the act of God and of the Queen's enemies alone being excepted. The rule of English law regulating the responsibility of a common carrier is therefore not inconsistent with the provisions of the 152nd Section, or any other section of the Indian Contract Act. That rule consequently remains unaffected by the Contract Act as provided in its first section.
40. It appears from the judgment of the learned Judge in the Court below that the learned Counsel who appeared for the defendants in support of his contention relied upon Section 10 of the Indian Railway Act IV of 1879. He contended, on the strength of that section, that the responsibility of a carrier by a Railway, who is undoubtedly a common carrier, is now regulated by Sections 151 and 152 of the Indian Contract Act, and not by the rule of the English, common law on the subject. He then argued that if the rule of the English law was not in force as regards a carrier by Railway, it would be anomalous to hold that it was in force as regards any other kind of common carrier. It seems to me that this argument is based upon a misconception of the provisions of Section 10 of the Indian Railways Act, 1879. That section enacts: 'Every agreement purporting to limit the obligation or responsibility imposed on a carrier by Railway by the Indian Contract Act, 1872, Sections 151 and 161 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.'
41. This section does not say that the provisions of Section 151 of the Indian Contract Act, 1872, shall be the measure of the responsibility of a carrier by a Railway. It simply provides that if he intends to reduce it below that provided in Section 151 of the Indian Contract Act (IX of 1872), he must comply with the provisions of Clauses (a) and (b) of Section 10 of the Indian Railways Act, 1879. The Section 10 does not declare what shall be the measure of his liability, but lays down the particular mode in which alone he can reduce it below a certain degree. The section in question does not say that in the absence of the special contract referred to therein, that liability shall not be regulated by the rule of the English common law on the subject. Section 10 of the Indian Railways Act, 1879, is analogous to Section 6 of the Indian Carriers Act, 1865, which by Section 2 of the Act does not apply to carriers by Railway. The object of both sections is not to declare what shall be the carriers liability, but to provide for the mode in which alone he can limit that liability, whatever it may be, according to the law in force.
42. For these reasons I am of opinion that the rule of the English common law regulating the responsibility of a common carrier is still in force in this country, and that, therefore, the opinion expressed by the learned Judge in the Court below is correct.
43. I agree in holding that the law relating to carriers in India is not affected by the Indian Contract Act (IX of 1872).
44. It is unusual to refer to the objects and reasons given for introducing a Bill into the Legislative Council, for they can safely be referred to only as expressing the motives which were present to the particular member of that Council, and experience has abundantly shown us that in the course of legislation the objects and reasons so stated are altogether lost sight of or abandoned, different arguments are put forward to justify legislative action, and the law ultimately passed bears only a slight resemblance to the Bill on which it professes to be based. But in the present case the objects and reasons for introducing the Bill which subsequently became the Indian Contract Act so far as they relate to the law regarding carriers may safely be referred to as they are altogether in accordance with, and corroborated by, proceedings in the Legislative Council immediately after the passing of the Indian Contract Act.
45. In introducing the Bill which subsequently became the Indian Contract Act, 1872, Mr. FitzJames Stephen said: 'We have omitted all reference to special branches of the law of Contract which at present are regulated either by express legislation or recognised custom, e.g., the law of shipping, of bills of exchange, insurance, master and servant, carriers, etc. This omission renders the present Bill so far incomplete: but we consider this incompleteness a less evil than the inconvenience of dealing with so many varied and intricate subjects in a single enactment. It will be easy at a future period, when the present Bill has been for a time in operation, and its results have been practically tested, to deal with all or any of the subjects above referred to, and to add them as a new chapter to the Act. With this view, leave has already been asked to introduce a Bill to amend and consolidate the law relating to carriers, and it would no doubt be desirable that the law of master and servant should at an early date be put into a clearer form than that in which it is at present. No sufficient information has at present been collected to render legislation on this subject safe.'
46. The proceedings of the Legislative Council, as reported in the supplement to the Gazette of India, 1872, page 569, show that immediately on the passing of the Indian Contract Act, and at the very same sitting of the Council, Mr. Fitz James Stephen obtained leave to introduce a Bill to amend the law relating to carriers. For some reason or other (probably because Mr. Stephen left India a few days later) no further proceedings have been taken in this direction; but to my mind, quite independently of the proper construction to be put on Section 1 of the Indian Contract Act (IX of 1872), these facts afford ample indication of the intention of the Legislature; indeed, they seem to me to negative any inferences to the contrary from the terms of the Railways Act of 1879.
47. After the several concurrent judgments which have just been delivered in this case, it is unnecessary that I, having arrived at the same conclusion as therein expressed, should say more than that I entirely agree in that conclusion.
48. I also concur in that conclusion.