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1923 Supreme(SC) 48
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD ATKINSON, LORD SHAW, LORD WRENBURY, LORD CARSON, AND SIR ROBERT YOUNGER.
INDIA GENERAL NAVIGATION AND RAILWAY COMPANY, LIMITED - Appellant
Versus
DEKHARI TEA COMPANY, LIMITED - Respondents
On Appeal from the High Court at Calcutta.
Decided On : November 23, 1923.
Solicitors for appellants :Morgan, Price, Gordon & Marley. Solicitors for respondents: Sandersons & Orr Dignams.
A statutory common carrier remains liable for goods unless liability is limited by a signed written contract or the transaction constitutes a departure from their usual business into a different category of business. Special routing or vessel assignments do not remove this status.
Headnote:(A) Indian Carriers Act, 1865 - Sections 2, 6, and 9 - Definition of common carrier - Liability for loss of goods - Special contract for limitation of liability - A person who fits the definition of a "common carrier" is liable in damages for goods delivered for carriage unless liability has been limited by a special written contract signed by the owner or the carrier was departing from their usual business to engage in a different type of business.
(B) The phrase "for all persons indiscriminately" in the statutory definition of a common carrier means that the person engaged in the business satisfies the demands of customers as they come and is not at liberty to refuse business, arising from the public employment in which they are engaged.
(C) To divest themselves of the responsibilities of a common carrier, the contractor must either have the limitation of liability made expressly and in writing via a signed contract or demonstrate that the transaction involved a departure from their usual business into a different category of business.
Facts of the case:
Goods were delivered to a railway company for transport. Due to a line breakdown, the goods were transferred to a shipping company for river transport under an agreement to use specific vessels for a direct route without calling at intermediate ports. The goods were destroyed by fire while on the vessel. There was no privity of contract between the owners of the goods and the shipping company.
Findings of Court:
The shipping company remained a common carrier despite the special arrangement with the railway company. The use of a specific flotilla and a direct route did not constitute a departure from the usual business of a common carrier, nor did it create a temporary and exclusive monopoly that would change the legal status of the carrier.
Issues: Whether a shipping company, by entering into a special arrangement with a railway company to provide direct transport via specific vessels, ceases to be a common carrier under the statutory definition and thus avoids the strict liability associated with such a status.
Ratio Decidendi: A carrier who fits the statutory definition of transporting goods for hire for all persons indiscriminately remains a common carrier unless they enter into a different type of business entirely or limit their liability through a special written contract signed by the owner. Special arrangements regarding routes or vessel assignments do not decategorize a carrier from being a common carrier.
Result: Judgment of the High Court affirmed; appeals dismissed with costs.
Legal Category Hierarchy
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tort
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bailment
- common carrier
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bailment
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commercial law
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carriage of goods
- inland navigation
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carriage of goods
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statutory law
- indian carriers act 1865
Carrie r—Common Carrie r—Liability for Goods carrie d-—Alle ge d Carriage othe rwise than as Common Carrier—Indian Carriers Act (III, of 1865), ss. 2, 6, 9.
A person who is within the definition of a " common carrier" in s. 2 of the Indian Carriers Act, 1365, is liable in damages as a common carrier in respect of goods delivered to him for carriage, unless either
(a) his liability has been limited by a special written contract as provided by s. 6 of the Act, which contract may involve a different category of liability, or (6) in carrying the particular goods he was departing from his usual business and engaging in one differing from that of a common carrier.
The appellants, who were common carriers between ports on a river, agreed with a railway company to assign vessels for the purpose of carrying from port A to port B, without calling at intermediate ports, goods consigned to the railway company for carriage, but without any special written contract under s. 6. There was no evidence that if persons other than the railway company had tendered to the appellants goods for carriage from A to B those goods would not also have been carried in the vessels—
Held, that the appellants were common carriers of goods which they carried under the contract with the railway company, and in respect of the destruction of them by fire were liable under s. 9 of the Act to the owners of the goods, without proof of negligence.
Judgment of the High Court affirmed.
Judgement
Law. Rep. 51 Ind. App. 28 ( 1923- 1924) India General Navigation v. Dekhari Tea Company, Limited 145
Consolidated Appeal (No. 53 of 1923) from decrees made on the Appeal Side of the High Court (November 30, 1921) affirming decrees made by Rankin J. sitting on the Original Side.
The several respondents brought suits in the High Court against the appellants claiming damages for the loss of packages of tea delivered by them to the Assam-Bengal Railway Company for carriage from Assam to Chittagong, and delivered by that company to the appellants for carriage by river from Gauhati to Chandpur ; the packages had been destroyed by fire while on board the appellants vessel at Gauhati. The railway company also were made defendants, but the suits not being maintainable against them in the absence of notice under the Railways Act, were dismissed as against them by consent.
The facts material to the present appeal are stated in the judgment of the Judicial Committee.
The plaintiffs by their plaints (as amended at the trial) alleged that the present appellants at all material times were common carriers ; they further alleged that the loss was due to the negligence of the appellants.
The trial judge (Rankin J.) found that there was no privity of contract between the plaintiffs and the present appellants. In considering whether the present appellants were common carriers of the tea, he said " the Steamship Company is 1 engaged in the business of transporting for hire property from place to place by inland navigation for all persons indiscriminately ; the question remains whether, because it was doing this particular set of journeys for the Railway Company by a special flotilla, which was devoted for the time to this purpose only and which was making a through run to Chandpur, it was departing from its usual business and engaging in a different type of business, viz., the business of a sub-contractor for the Railway in such special sense as takes it quoad these journeys out of the avocation of a common carrier." He was of opinion that that question should be answered in the negative, and that accordingly ss. 8 and 9 of the Indian Carriers Act, 1865, applied to the suits. He found that the appellants had not exonerated themselves from their liability under those sections. He further found affirmatively, on an application of s. 106 of the Evidence Act, 1872, that the loss was due to the appellants negligence. The learned judge made decrees in favour of the plaintiffs.
On appeal the decrees were
