Judgement

APPEAL from a judgment of the Recorder (Jan. 3, 1890), in favour of the Respondent for Rs.3315 in an action to recover the value of 195 bales of cotton destroyed by fire whilst on board the SS. Yomah, belonging to the Appellants.

On the 4th of December, 1888, the Respondent delivered to the Appellants, at Myingyan, 195 bales of cotton for carriage to Rangoon by their SS. Yomah.

After the said goods had been shipped on board the said steamer a fire broke out by which they were totally destroyed.

On the 30th of March, 1889, the Respondent brought this suit, alleging that the goods had, by reason of the negligence and carelessness of the servants of the Appellants, been destroyed by fire; and that, having regard to the circumstances attendant upon the fire, it was possible to save the goods from destruction, as the Respondent had sent a gang of coolies for such purpose, but the servants of the Appellants refused to allow them to do so.

The Appellants, by their written statement, pleaded, amongst other defences, that the goods were shipped by the Respondent and received by the Appellants on the terms and conditions that the Appellants should take such care of the goods so bailed to them as is defined by sect. 151 of the Indian Contract Act, 1872, to be the duty of bailees of goods ; that the Appellants did take such care of the said goods as is in the said section defined; and that, under the provisions of sect. 152 of the said Act, they were not liable for the loss of the goods so bailed to them.

The sections of the Indian Contract Act, 1872, are as follows

"Sect. 151. 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.

" Sect. 152. 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 sect. 151."

And by sect. 148, a bailment is defined to be c< the delivery of goods by. one person to another for some purpose upon a contract that they shall, when the purpose is accomplished, be returned or otherwise disposed of, according to the directions of the person delivering them."

The Recorder found on the facts that the fire broke out sud denly, and was not due to any negligence on the part of the servants of the Appellants that all usual precautions were taken on the night of the fire; that, when the fire had once been detected, everything possible was done to stop it, and that its progress was exceedingly rapid; that, even assuming that an application had been made to save the cotton, with the assistance of a gang of coolies, which he greatly doubted, such application could not have been granted, as the only possible chance of putting out the fire would have been lost if the hatches had been removed; and that there was no negligence on the part of the Appellants servants. The learned Recorder, nevertheless, considered that the case in the Calcutta High Court of Moothoora Kant Shaw v. India General Steam Navigation Company (Ind. L. R, 10 Cal. 166), was an express authority that the Appellants were liable as common carriers, and that such liability was unaffected by sects. 151 and 152 of the Indian Contract Act, 1872; and that, notwithstanding a decision to the contrary effect by the Bombay High Court, in Kuverji Tulsidass v. Great Indian Peninsular Railway Com-. pany (1), he was absolutely bound by the decision of the Calcutta High Court, and he gave judgment accordingly for the Respondent for Rs.3315.

Finlay, Q.C., and R. Brown (J. D. Fitzgerald, with them), for the Appellant company, contended that the judgment of the Calcutta High Court in the case referred to was wrong, and that the decision of this case should be in accordance with the judgment of the Bombay High Court (Ind. L. R. 3 Bomb. 109.). The delive