1. This appeal arises out of a suit brought against the Secretary of State for India in Council for damages for loss sustained by the plaintiff with respect to sixty-eight bales of Jute booked by the Eastern Bengal Railway, and consigned to the National Jute Mills. The Plaintiff alleged that he contracted to sell jute to the National Jute Mills and made over sixty-eight bales of jute to the Eastern Bengal Railway at the Khalulbali Station for carriage to the jute mills at Rajgunge and that in the course of transit the jute got damaged in consequence of which the jute mills refused to take the same and the plaintiff had to sell it (after notice to the Railway Administration) at a loss. The loss suffered by the plaintiff has been found to be Rs. 1,822-7-3.
2. The defendant did not deny that the goods were damaged but the defence shortly stated was that they were damaged by an act of God in a severe cyclone during transit and that he was consequently not liable for damages.
3. The Court of first instance decreed the suit holding that the defendant did not take proper care of the goods during transit, and that the consequences of the act of God would be avoided had proper care been taken. On appeal that decree was reversed, and the plaintiff has appealed to this Court.
4. The facts are not in dispute. The goods after arrival at Chitpur Ghat were transhipped into a boat of the Calcutta Shipping & Landing Company by 10 A.M. on the 20th September 1916 and the boat was detained at the ghat for the day. On the night of the 21st September there was a severe cyclone and the boat sprang leaks as it bumped against the other boats and the jetty to which it was securely fastened during the cyclone. On the 22nd September the leaky boat was towed to Rajgunj where the goods were delivered to the National Jute Mills on the 23rd September. The goods were damaged by water which entered the boat through the leaks, and as stated above they were rejected by the Jute Mills with the consequence that they had to be sold by the plaintiff at a loss.
5. Under Section 72 of the Indian Railways Act, IX of 1890, the responsiblity of a Railway Administration for the loss of goods delivered to it to be carried by railway is that of a bailee under Sections 151, 152 and 162 of the Indian Contract Act, 1872. Section 151 of the Contract Act lays down that 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 and Section 152 provides that in the absence of any special contract, the bailee is not responsible for the loss of the things bailed if he has taken the amount of care of it described in Section 151.
6. It is contended before us on behalf of the appellant that the defendant failed to take care of the goods which he was required by law to take. The first ground is that the boat should not have been detained at Chitpur Ghat on the 20th September but should have been despatched at once to Rajgunj as on the morning of the 20th September, intimation was received of an expected storm with in thirty-six hours. It is urged that the 20th September was a fair day, there was only one shower of rain in the afternoon and the distance from Chitpur Ghat to Rajgunj Ghat being about twenty miles the boat could have reached its destination long before the cyclone. But as the learned Subordinate Judge rightly points out the storm was expected within and not after thirty-six hours, the defendant's agents could not know when the storm would come and the storm signal was given evidently to detain the boats at the ghat. It would have been imprudent to start the boat in these circumstances at once, because it might have been overtaken on its way to Rajgunj by the storm which was expected every moment. We are accordingly of opinion that the Defendant could not be liable on this ground.
7. The second ground urged is that the bales of jute ought to have been unloaded from the boat and stored in the goods shed, at any rate upon the open pontoon with tarpaulins spread over them, and should not have been left in the boat when a cyclone was expected. It appears that after the storm signal was hoisted on the morning of the 22nd September the boat was fastened with the jetty like other boats. The Court of first instance pointed out that coolies were available for the purpose of unloading the boat, and that the goods could have been stored in the goods shed, at any rate placed on the open pontoons, with tarpaulins spread over them which would have saved them from being damaged to any very great extent. But it is found by the Court of Appeal below that in the ordinary course of business boats are not unloaded when the storm signal is hoisted. That being so, this ground also fails.
8. The third ground is that the defendant in sending the bales of jute in a leaky boat from the Chitpur Ghat to Rajgunj did not act as a man of ordinary prudence would have done under similar circumstances with his own goods.
9. It is found that the boat while fastened to the jetty at Chitpur Ghat during the cyclone had bumped against the jetty and other boats and had sprung 20 to 30 leaks of 1 or 1 1/2 inches in length. Although the leaks had been caused by bumping due to the cyclone which was beyond the control of the defendant, the defendant as a bailee was bound to use all reasonable care, skill and diligence to avoid the consequences of an act of God, and if there was any damage which is attributable to this breach of duty he is liable for damages. A man of ordinary prudence would not have sent the bales of jute in boat with 20 to 30 leaks of 1 or 1 1/2 inches in length. The Court of first instance found that 'the boat was kept afloat by continuous pumping of the water that got into the hold.' When the leaks were on the sides, the water would naturally pass over the bales lying about them and no amount of pumping out the water could save them from being wetted. The goods as a matter of fact remained in that Condition for thirty hours, and from the letter, Ex. III, addressed by the Mills to Messrs. Ducat and Co., the brokers, we got it that some of the bales when received appear to have been lying in the water. That the goods would be further damaged if sent in such a boat struck even the manji, and he asked for orders for unloading it, but the Agent of the Calcutta Landing and Shipping Co. did not permit him to do so. On the contrary, he sent for a launch and ordered the boat with the cargo to be towed to its destination. That it was a very rash act none possessed with a sense of fitness of things could doubt for one moment. The facts found by the Court of first instance have practically been accepted by the Court of Appeal below. The learned Subordinate Judge observed: 'It appears that the boat was kept afloat by continuous pumping and the goods were delivered to the consignee not long after the storm subsided. No doubt the bales were about thirty hours within the hold of the boat, but that fact does not show that the defendant's agents did not take care of them. As the boat sprang leaks it would have sunk if the pumping was not going on. In these circumstances it cannot be argued that the defendant's agents did not take steps for the protection of the goods. I find that they took steps for the protection of the goods as well as for their speedy delivery to the consignee.'
10. The degree of the care required of a carrier in dealing with goods depends upon and varies with the nature and condition of the thing carried. Had the goods been of such a nature that they would not have been damaged even if carried in a leaky boat, and left in the hold of the boat for thirty hours, the pumping out of the water would be sufficient to show that reasonable care was exercised, because in that case the only thing necessary was to see that the boat was not sunk. But bales of jute would be wetted and damaged by water entering the boat; the defendant's agent must have been perfectly aware of the same. A man of ordinary prudence would not have sent his own jute in a boat with twenty or thirty leaks of 1 or 1 1/2 inches in length and kept the jute in the hold of the boat for thirty hours. The pumping out of the water no doubt saved the boat from being sunk, but it is clear that the goods were damaged by their being despatched in such a leaky boat, as the learned Subordinate Judge himself finds that they were damaged by water which entered the boat through the holes. It was not, and could not, be suggested that a good boat was not available at the Chitpur Ghat, and we think the learned Subordinate Judge upon the facts found should have come to the conclusion that the defendant by despatching the sixty-eight bales of jute in a boat with 20 to 30 leaks, 1 or 1 1/2 inches in length, on its sides and allowing the jute to remain in the hold of the boat for 30 hours did not take as much care of the goods as a man of ordinary prudence would under similar circumstances take of his own goods of the same bulk, quality and value.
11. It is contended by the learned Pleader for the respondent that the finding arrived at by the Court of Appeal below is a finding of fact which cannot be interfered with in second appeal. We are, however, not questioning the facts found, indeed the facts are not in dispute in this case. We are differing as to the inference which the Court below draw from those facts and as to the legal standard of reasonable care set up by it. We think it is open to us to see whether the Court below was right in holding that the defendant in dispatching baled jute in a boat with 20 or 30 leaks, 1 or 1 1/2 inches in length, through which water entered into the boat, the jute being left in the hold of the boat for thirty hours, complied with the requirements of Section 151 of the Contract Act, merely because there was continuous pumping out of the water which had only the effect of saving the boat.
12. We are of opinion that the decree of the lower Appellate Court should be set aside and that of the Court of first instance restored with costs here and below, and we direct accordingly.