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