1. These five second appeals arise out of five different suits filed by the respective appellants, in the Court of the Subordinate Judge, Upper Assam District at Jorhat, claiming compensation for the loss sustained by them in consequence of the damage caused to their goods, which they consigned to the respondent company for carriage from Jagannathghat, Calcutta to the Neamatighat near Jorhat. As all the suits related to goods carried by one steamer by the respondent company and the damage to the goods occurred at the same time, and as, apparently, common questions of law and fact were involved in the disposal of the suits, they were tried together by the learned Subordinate Judge and disposed of by a common judgment, by which the learned Subordinate Judge decreed each of the suits to a substantial extent.

2. The respondent company preferred appeals against the decision in the suits, to the Court of the District Judge, Upper Assam Districts, Jorhat, and the learned District Judge heard and disposed of the appeals together by Page: 80a comman judgment, by which he allowed the appeals and dismissed the respective suits of the present appellants, who, consequently, have preferred the present second appeals to this Court. The averments in the plaint in each case are substantially similar except for the particulars of the claims made. The facts common to these cases may be briefly noticed. Each of the appellants had entrusted bales of cotton yarn and cloth for conveyance, to the respondent company on 4-9-58 at jagannathghat, Calcutta, the respondent having undertaken to carry the same in their steamers as a common carrier. These consignments arrived at the destination, the Neamatighat near Jorhat, on 6-10-58, and when the appellants proceeded to take delivery of the goods in question, the goods were tound damaged by water and accordingly an open delivery was effected on 7-10-58, and the respondent company issued damage certificates in each case indicating the nature and the extent of the damage sustained by the goods. Subsequently, claims were preferred by the defendant appellants to the respondent company, claiming damages and compensation for the loss sustained by them on account of the damage caused to their goods. These claims were repudiated by the respondent company, which resulted in the filing of the suits by the appeallants which have given rise to the present appeals.

3. It is averred in the plaints in these cases that the loss was due to the damage eaused on account of the respondent company's actionable wrong and negligence. The plaintiffs further denied that the consignments in question were damaged for causes beyond the control of the carrier company.

4. In their written statements, the respondent company pleaded that the goods claimed in dispute were accepted for carriage subject to the conditions of carriage found on the back of the Forwarding Note which represented the contract of carriage between the parties, that the Steamer — Martaban which was carrying the goods of the plaintiffs met with an accident enroute, and as the result of this the goods in question were damaged by water. A protest was lodged by the Master of the steamer, a copy whereof was duly sent to the respective consignees. The respondent company further claimed that the accident in question occurred on account of circumstances over which they had no control, that it was entirely fortuitous and was not due to any negligence or laches on their part. Accordingly they claimed that as per the contract of carriage and in the circumstances, no liability attached to the defendants, and the plaintiff is not entitled to any damages from them.

5. It would be useful and necessary at this stage to set out the facts which are not in dispute. The goods of the plaintiffs were loaded by the respondent in one of the holds of the Steamer Martaban which left Jagannathghat, Calcutta at 9 A.M on 6-9-1958 carrying the plaintiffs' goods. On 7-9-1958 at 9 A.M the Master of the steamer noticed that the steamer had listed to the star-board side. On inspection it was found that hold No. 2 of the Steamer, the hold wherein the goods of the plaintiffs had been stacked, was filled with water to a depth of 1 ft. 9 inches and that this accumulation of water in the hold was caused by reason of two holes in the bottom of the vessel where the hold No. 2 was situate, which were about 1½″ and 1″ in size respectively.

6. The holes were about one foot apart from each other and the water had entered the hold through these holes and the weight of the large quantity of water that filled the hold resulted in upsetting the buoyancy of the vessel and made it list to the side where the hold No. 2 was. The holes were then plugged and closed and attempts made to pump out the water. But by then the bales of yarn and cloth belonging to the plaintiffs were soaked in the water and were damaged. About an hour or so later, the Steamer arrived at Biharikhal where the Customs seals of the hold were removed by the customs authorities there, and the bales were put on deck to dry.

7. The learned Subordinate Judge who tried the suits, framed a number of issues, and all but two were not pressed and the trial proceeded on issues Nos. 8 and 5; the former called into question the liability of the defendant for the plaintiffs' claim and the latter related to the correctness of the quantum of the claims made by the plaintiff in each case. The learned Subordinate Judge on trial held that there was no proof that the steamer carrying the goods had met with any accident, or that the holes in the bottom of the vessel had been caused by an act of God or by the enemies of the State. The learned Subordinate Judge further held that the defendant company was negligent inasmuch as the cloths and yarns were allowed to remain in the wet bales for several days till the vessel reached Neamatighat, and accordingly, came to the conclusion that the defendant company — respondent herein — were liable for the damage caused to the goods of the plaintiffs in these cases. He made an assessment of the damage, and as has been already stated, reduced the claim of the plaintiff in each case to a small extent and substantially decreed the suits of the plaintiffs.

8. On appeal to the District Judge, the only point which appears to have been taken related to the question of the liability in law of the respondent company to the plaintiffs. The quantum of damages awarded by the trial Court was not disputed before the lower appellate Court. The learned District Judge stated that it was not disputed before him that the respondent company was the common carrier under the Indian Carriers Act, 1865. Having set out the legal position under the said Act, the learned District Judge discussed the effect of Condition No. 5 in the Forwarding Note executed between the parties under which it was apparently agreed that the respondent was not liable if damage occurred due to perils of navigation.

9. Thereafter the learned District Judge set to himself for consideration the following quetion Page: 81as the only question to be decided in the appeals before him.

“The only question in the case before me is, therefore, whether the defendants took as much care of the goods as a man of ordinary prudence would, under similar circumstances and answering the question held that there was no negligence or any criminal act on the part of the carrier or his agents and that it was not suggested that the holes were attributable to any fault on the part of the steamer company or their servants. So holding, he allowed the appeals setting aside the judgment and decrees of the trial Judge and dismissed the suits with the direction that the parties should bear their own costs.

10. At the outset, it would be necessary to examine the relevant provisions of the Indian Carriers Act, 1805, hereinafter referred to as the Act. The preamble of the Act runs as follows:—

“Whereas it is expedient not only to enable common carriers to limit their liability for loss of or damage to property delivered to them to be carried but also to declare their liability for loss of or damage to such property occasioned by the negligence or criminal acts of themselves their servants or agents; it is enacted as follows:—”

11. Section 6 of the Act deals with the liability of a carrier and it is in the following terms:—

“The liability of any common carrier for the loss of or damage to any property delivered to him to be carried, not being of the description contained in the schedule to this Act, shall not be deemed to be limited or affected by any public notice;

Carriers, with certain exceptions, may limit liability by special contract, but any such carrier, not being the owner of a railroad or tramroad constructed under the provisions of Act XXII of 1803 may, by special contract, signed by the owner of such property so delivered as last aforesaid or by sotne person duly authorised in that behalf by such owner, limit his liability in respect of the same.”

12. Section 8 of the Act requires to be noticed, and this Section is as follows:—

“Notwithstanding anything hereinbefore confined, every common carrier shall be liable to the owner for loss of or damage to any property delivered to such carrier to be carried where such loss or damage shall have arisen from the criminal act of the carrier or any of his agents or servants and shall also be liable to the owner for loss or damage to any such property other than property to which the provisions of S. 3 apply and in resepect of which the declaration required by that section has not been made, where such loss or damage has arisen from the negligence of the carrier or any of his agents or servants.”

13. Section 9 of the Act reads as follows:

“In any suit brought against a common carrier for the loss, damage or non-delivery of goods entrusted to him for carriage, it shall not be necessary for the plaintiff to prove that such loss, damage or non-delivery was owing to the negligence or criminal act of the carrier, his servants, or agents.”

14. These sections of the Act are based on the English common law relating to carriers and also the common carriers Act of England the English Carriers Act of 1830 (11 George IV & 1 Wm IV C. 68) as pointed out by their Lordships of the Privy Council in Irrawaddy Flotilla Co. v. Bhagwandas, ILR (1891) 18 Cal 620 (PC), wherein Lord MacNaughten observed as follows:—

“For the present purpose it is not material to inquire how it was that the common law of England came to govern the duties and liabilities of Common Carriers thorughout India. The fact itself is beyond dispute. It is recognised by the Indian Legislature in the Carriers' Act, 1865, an Act framed on the lines of the English Carriers Act of 1830.”

15. The learned Law Lord pointed out that the law relating to common carriers in India was partly written and partly unwritten. The former being the Indian Carriers Act of 1865 and the latter comprising of the Common law, the custom of the realm. In this connection, it would be useful to make reference to the English Common Law as set out in Halsbury's Laws of England, IIIrd Edn., Vol. 4 at page 141. The relevant passages are extracted below:—

382: “A common carrier is responsible for the safety of the goods entrusted to him in all events, except when loss or injury arises solely from act of God or the Queen enemies or from the fault of the consignor, or inherent vice in the goods themselves. He is therefore liable even when he is overwhelmed and robbed by an irresistible number of persons. Hs is an insurer of the safety of the goods against everything extraneous which may cause loss or injury except the act of God or the Queen's enemies, and, if there has been an unjustifiable deviation or negligence or other fundamental breach of contract on his part, he will be liable for loss or injury due to the Queen's enemies or, it would seem, due to act of God.

16. This responsibility as an insurer is imposed upon a common carrier by the custom of the realm, and it is not necessary to prove a contract between him and the owner of the goods in order to establish liability. Failure on the part of the carrier to deliver the goods safely is a breach of the duty placed upon him by the common law; and therefore an action of tort lies against him for such breach, the owner not being bound to prove any contract. Where, however, there is a contract, liability may arise either at common law or under the contract, and the contract may limit the carrier's responsibility.

17. A common carrier is liable for loss or injury caused wholly by the negligence of other persons over whom he has no control; as where the carrier's barge runs against an anchor wrongfully left the water by a stranger, or where the goods which he is carrying are destroyed by accidental fire or by rats, or where they are stolen from him, even though; taken by force.

18. The general obligation of a common carrier of goods to carry the goods safely whatever happens renders it unnecessary to import into the contract for carriage a special warranty of the roadworthiness of the vehicle or the seaworthiness of the vessel, for, if the goods are carried safely the condition of the vehicle or vessel is immaterial, and, if they are lost or damaged, it is unnecessary to inquire how the loss or damage occurred; where however, a common carrier of goods is seeking relief from liability by reason of one of the excepted perils the condition of the vehicle or vessel is material in determining the question of negligence, and if the carrier fails to prove a sufficient and proper conveyance and loss or damago results therefrom he will be liable.”

“383. Duty as regards excepted perils:

A common carrier must use all reasonable care, skill and diligence to avoid the consequences of excepted perils; and if damage occurs which is attributable to a breach of this duty, he is liable.”

19. To summarise:

(i) a common carrier is normally liable for all damage caused in transit to the goods which he has undertaken to carry. This liability however is not enforceable against the carrier if the damage was exclusively due to:

(1) Act of God

(2) Enemy action

(ii) In order to enforce this liability against the carrier, it is not necessary for the consignor to establish or to prove the cause of the damage.

(iii) It is open to the carrier to stipulate by special contract with the owner or consignor of goods that in the event of certain excepted perils, the carriers would not be liable for the amage caused to goods by reason of these excepted perils. In such an event the liability of the carrier for the damage would still be there but he would not be made liable for the damage only if he is able to establish that the peril in question could not be avoided in spite of the employment of all reasonable care, skill and diligence to avoid the peril.

(iv) In other words, even in the case of a special contract for excepted perils, it would be still obligatory on the carrier to establish that he tried to avoid the peril which resulted in the damage, by exercising all reasonable care, skill and diligence, and that inspite of it the peril could not be avoided and consequently the damage.

(v) In such a case it is not obligatory on the part of the plaintiff consignor to prove negligence on the part of the carrier; it is for the carrier to establish that he had not been negligent, by showing that he had exercised all reasonable care, skill and diligence, but still the peril could not be escaped and the damage had resulted.

20. The facts of the instant case shall now be examined in the light of these principles. The respondent company contended that in Clause 5 of the Forwarding Note they had stipulated that they would not be liable for perils of navigation and that as the damage was due to such a peril and as they had acted with reasonable care, they are not liable. In order to enable the respondent to take advantage of this exception contained in the special contract, it would be necessary to establish, firstly that the Steamer carrying the plaintiffs goods had to face a peril of navigation in the course of its voyage, and secondly that the respondent and his agents and servants in charge of the steamer had taken all reasonable care and exercised all necessary diligence and employed all skill in avoiding the navigation peril, and that, in spite of all that care, skill and diligence exercised by them the ship sustained damage and sprang two holes in the hull with the ??? quential damage to the goods of the plaintiffs.

21. It is unfortunate that the learned District judge did not approach the consideration of these cases bearing in mind the correct legal principles applicable thereto.

22. At the outset, it may be pointed out that in the written statement, no specific plea appears to have been taken to the effect that the ship in question—steamer Martaban, had to face a navigation peril during its voyage, nor was it pleaded that such a peril could not be avoided by the respondent's employees in charge of the navigation of the steamer in spite their having exercised the necessary care, skill and diligence to avoid the peril in question. All that was pleaded was that there was an accident. No particulars of the alleged accident had been mentioned, such as the time, the place and the manner and the circumstances in which the steamer met with the alleged accident. At the trial, however, the defendant, respondent herein sought to support his case on the basis that the steamer met with a navigation peril, which came within the excepted peril in Clause 5 of the Forwarding Note to which reference had been made earlier.

23. The learned trial Judge negatived the defendants' case that there was any accident. He observed:—

“In the cases before us the accident itself is not proved.”

24. The learned District Judge made no finding that there was any accident or that the steamer had to meet with a navigation peril nor did he examine and arrive at a finding that the respondent company and their empolyees navigating the steamer exercised all reasonable care, skill and diligence in avoiding the so-called peril.

25. As already pointed out, before the claim of the plaintiffs could be negatived, it must be found as a fact that the damage was the result of a navigation peril which was agreed upon by the parties as an excepted peril in clause 5 of the Forwarding Note and that all reasonable care, skill and diligence were exercised by the respondent and his employees in charge of the steamer to avoid that peril. If these are not found as a fact then Section 6 of the Act would come into operation and the plaintiffs' claim to the extent which has been proved would have to be decreed. In the instant case the trial Judge was right in holding that there was no proof of any accident at all in this case, and therefore, no proof that the steamer met with a navigation peril excepted Page: 83in clause 5 of the Forwarding Note. On these findings the further question whether the respondent and their servants manning the steamer Martaban exercised all reasonable care, skill and diligence in avoiding the peril did not arise for consideration.

26. In (1899) 26 Cal 398, Rivers Steam Navigation Co. v. Choutmull Doogar it was a case of fire breaking out on board the ship resulting in the goods carried by the steamer having been burnt and damaged. The cause of the fire was not known and in that context it was observed by Lord Morris as follows:—

“A fire took place, and it is the common case that it did not arise from spontaneous combustion. It therefore, must have arisen from some cause either external to the flat or internal in the flat. If it occurred from a fire within, it would appear that the onus is not discharged by the defendants, because they had the control of the flat. If the fire took place inside, they must have done something or other, or something must have happened on the vessel inside or the flat, which lead to the fire. They are, therefore, driven to suggest cause for its occurring from something external to the flat; and it certainly is a very remote and rather a fanciful, suggestion that it arose from some spark coming from certain dinghies or smaller boats that were in the neighbourhood.”

“If the cause was inside as has been said, the onus is not discharged because the whole of the flat was under the control and management and care of the defendants.”

27. Similarly here, the onus is on the defendant company to prove how the two holes in the bottom of the steamer came to be found and that was not due to any negligence on their part. This burden obviously the defendant had not discharged in this case.

28. Reference has been made to a decision of this High Court in AIR 1955 Assam 85, the decision subsequently confirmed by the Supreme Court in AIR 1962 SC 1276. A detailed reference to these decisions would be unnecessary in the context of this case as on the facts of that case the relevant clause in the Forwarding Note in the contract between the steamer company and the consignor did not apply to the conveyance of goods on the connecting feeder service to the main service, which took place before the special contract in the Forwarding Note was executed.

29. Mr. Bhattacharjee placed reliance on Rivers Steam Navigation Co. Ltd. v. Milapchand Hiralal Firm, reported in AIR 1958 Assam 115. In that case there was both a plea and proof of an accident having occurred due to some hard substance submerged under the water striking against the bottom of the vessel resulting in damage to the hold where the goods were stocked and damage to the goods on account of the water that entered the hold. The learned Judges in that case found as a fact that there was an accident of that description, to the steamer carrying the goods, resulting in damage to the bottom of the ship thus causing damage to the consigned goodi.

30. One significant feature in the instant case is, that two holes of size 1½″ and 1″ were found in the hold of the steamer through which water accumulated inside the hold of the ship. This could be caused by one of two causes. Either the ship was not in a sufficiently seaworthy ??? river worthy state to undergo the voyage in question or that the keel of the steamer was ??? by some very hard and pointed object ??? underneath the water. If the first; true, there can be no question of the respondent escaping the liability of a carrier under Act. As regards the second possibility there is no evidence at all that the steamer met with an accidfitit by striking against any hard substance and which could not be avoided even after employing all reasonable care, skill and diligence. In the circumstances the judgment of the learned District Judge is clearly unsustainable in law and the decision of the trial Judge is correct on the facts and accords with law and the learned District Judge was wrong in reversing the same. In the result, these appeals are allowed and the judgment and decree of the learned District Judge in each case are set aside and the judgment and decree of the trial Judge in each case are restored with costs throughout.

31. Leave to appeal has been prayed for. I do not think there is any justification for granting the leave. The leave is accordingly refused.

FK/NRK/G.G.M

32. Appeals allowed.