The main legal point established in the judgment is the applicability of the English Common Law to carriers by sea and the effect of clauses in the Bill of Lading on the company's liability for loss caused by the negligence of their agents.

Sadasiva Aiyar, J.

1. Though my learned brother has prepared a separate judgment dealing fully with the facts and the law, I thought that I should add a judgment of my own as the questions raised are important and as I am differing from the conclusions arrived at by the majority of the Full Bench in Sheik Mahomed Ravuther v. The British India Steam Navigation Co. Ltd. (1908) I.L.R. 32 M. 95. The defendant in this case is the powerful company well known as the British India Steam Navigation Co. The legal questions we have to consider are: --

(a) whether they are common carriers,

(b) whether the English common law relating to carriers by sea applies to them or the provisions of the Indian Contract Act relating to bailees,

(c) if the English common law applies to them, whether the defendants are wholly absolved from liability for the loss caused by the negligence of their agents employed to carry in boats the goods of the plaintiff (consignee) from the mooring place of the steamer to the plaintiffs jetty in the port of Cochin, owing to the defendants having protected themselves from liability from such loss by appropriate clauses in the Bill of Lading.

(d) whether those general clauses could not legally absolve the defendants because the Bill of Lading did not contain an express provision declaring that defendants shall not be liable even if the boats procured by their agents to take the cargo from the steamer to the plaintiffs jetty were unseaworthy.

2. As regards the first question, the case of Hajee Ismail Sait v. The Company of the Messageris Maritimes of France (1905) I.L.R. 28 M. 400 clearly decides that carriers by sea for hire are common carriers. The Carriers Act, 1865, does not, however, apply to them, as in that Act the term "common carriers" is confined to denoting "a person other than the Government engaged in transporting for hire property...by land or inland navigation and is not extended to carriers by sea. The next question is "are common carriers by sea governed by the English Common Law or by the Contract Act ?" In the Full Bench case of Sheik Mahomad Ravuther v. The British India Steam Navigation Co. Ltd. (1908) I.L.R. 32 M. 95 the learned Chief Justice and Wallis J. evidently hold as unquestionable that, where the English Common Law and the Indian Contract Act differ, the former and not the latter applied to common carriers by sea. Wallis, J. referred (at page 108) to the argument of the appellants learned vakil in that case, (Mr., now Mr. Justice, Sundara Iyer) that Section 28 of the Indian Contract Act applied and that the clause in the Bill of Lading absolving the carriers by sea (the same British India Steam Navigation Co., who is the defendant in this case) from all liability arising from whatever cause, is opposed to public policy and hence is void under Section 23 of the Indian Contract Act. The learned Judge, however, did not accept this argument of the learned vakil and says at page 109 " As regards the second point, I am of opinion that it is not open to us to hold that contracts exempting a carrier from liability for the negligence of his servants are void as opposed to public policy. As pointed out by. Walton, J., in Price and Co v. Union Lighterage Co. (1903) I.K.B. 750 the law of England, unlike the law of the United States of America, does not forbid the carrier to exempt himself by contract from liability for the negligence of himself and his servants; but if the carrier desires so to exempt himeslf, it requires that he shall do so in express, plain and unambiguous terms. So far as the general question goes, this is the law which has been received and applied by the Indian Courts, (Jellicoe v. The British India Steam Navigation Company (1884) I.L.R. 10 C. 489 and Hajee Ismail Sait v. The Company of the Messageries Maritimes of France (1905) I.L.R. 28 M. 400. Contracts have been made and business has been carried on for many years in India on this footing, and if the law is to be altered now