Stephen, J.:— This is a case in which the Plaintiff sues the Secretary of State, as the authority responsible for the Eastern Bengal State Railway, for the value of four bales of piece-goods which he delivered to the Railway and which, he says, were lost while they were in the custody of the Railway.
I will first consider the facts of the case which are not in themselves complicated, but as to which there is a substantial dispute. We have had the procedure for taking goods by Railway detailed to us very fully by one of the witnesses for defence, and his statement of the procedure may be taken as substantially accurate I need not go through it in detail, but the general lines on which the operation of sending off goods by train is performed, is that the consignor takes his goods to the station, there has filled in a document called the forwarding note; which after he has seen various officials is registered by the registering clerk. Then the consignor, on production of the registered forwarding note, gets the goods marked; afterwards he gets them weighed. After that they have been weighed he does not see either the goods or the forwarding note again. The latter is sent back to the office and various steps are taken with regard to it, and the former are sent to their destination.
Now the evidence of the Plaintiff is that he sent what we may, for purposes of this case, take as two lots of goods to the Railway Station on Friday, the 1st February, 1901. The one lot consisted of four bales, and the other of one, which was sent at a later time, because additional goods had to be inserted in it. On that day, the beginning of the rather lengthy process necessary for transmission of the goods had begun, but before it proceeded far, it stopped because the office closed on account of the death of Queen-Empress. The office remained closed until the ensuing Monday. On the Monday, the servants of the Plaintiff resumed the operation of booking these goods and they carried it through, according to them, in its regular course, until they arrived at the point where the goods are marked. According to them, the four bales and the one bale were marked. Then the Railway officials stated that they would see them weighed, and they accordingly came away believing all would be well.
Next day, on going for the receipt, the delivery of which by the Railway Company is the final operation of booking the goods, they were told that the one bale had gone through all right, and they got the receipt, but the other four bales were not to be found. Search was made, and eventually the Plaintiff's servant went to Goalundo which is a point on the journey towards the final destination of the goods, and there they failed to find any trace of them. Meanwhile the one bale went safely through to its destination.
Taking the story so far as supporting their case, the Plaintiff proves that he purchased these goods through a broker; that is satisfactorily proved by his books. He also produced the forwarding register book of the Railway Company, where there is an entry of these four bales, which so far corroborate his story.
The evidence produced by the Defendant goes to show that those four bales in fact never existed. The various officials, who might have spoken to this point, are unavailable for different reasons. One is said to have left the Defendant's service and gone elsewhere. The absence of other important officials have been satisfactorily accounted for; and all the evidence that we really have on the point is that of the Station Master, who saw the consignor's servants after the receipt for the goods had not been given. The circumstances of that interview are all in dispute.
The Plaintiff's gomastha, says that when he went to see him, on failing to get information, the marker and other officials made certain statements before him. This is denied by the Station Master, who gives an entirely different account of the matter, and in particular, denies the statements said to have been made by the marker. One of the few important documents produced, is the letter which the Station Master gave to the consignor, to allow him to have the goods in the goods-shed at Goalundo overhauled by his servant, in order to see if those goods had been transmitted there by any irregular manner.
It is argued strenuously by the Plaintiff that he could not possibly have suggested this on his own account. This letter must have been given on the suggestion of the Station Master. This, I doubt, but I think the letter is not a very strong piece of evidence, either one way or the other. Taking the story as told by the Plaintiff and considering the credibility which I attach to the witnesses, I incline decidedly to the story told by the Plaintiff, one of my reasons being that very little of the Station Master's evidence was put to the Plaintiff in cross-examination. Also there are parts of the written statement which are not fully consistent with that story. Further, it appears that the Station Master has never in any way recorded the story he tells us until long after the event occurred. I therefore find as a fact that the four bales were brought to the Defendant's premises by the Plaintiff, and were left there by the Plaintiff under the control of the Defendant's servants, with the Defendant's knowledge and consent. Now this raises the second point in the case I have to consider; what is the legal position of the Railway Company under the facts which I have found? Three sections of the Indian Railway Act of 1890, which governs this case, seem to me to be of importance. The first is sec. 72, which puts in a legislative form what I take to be the ordinary law upon the subject, which is that when goods are delivered to the Railway to be carried, they become liable under the law, like any other bailee. It is argued that there was no delivery in this case, because under the circumstances stated, delivery does not take place until receipt is given by the Railway Company. I cannot read this section in that way. “Delivery” I take to be a purely lay word, devoid of any legal significance at all; it alludes to a physical event; I do not think one can say whether there is delivery or not is any way affected by any legal event. Therefore I take “delivery” in that section to refer to a physical event, an important element of which is that whatever is delivered passes from the physical custody of one man to the physical custody of another.
The real question depends upon the construction that is to be placed upon secs. 47 and 54 of the Railway Act. For the present purposes these two sections need not be distinguished. By sec. 47, the Railway Company may make general rules for regulating the terms on which it will warehouse or retain goods at any station. By sec. 54 the Railway Company may impose conditions for receiving goods. For the present purposes, these two things are the same. In both cases these rules and conditions have to be consistent with this Act. Now, what does that mean? The Railway Company has cast upon it the duties of an ordinary bailee. As I read these sections it cannot wholly divest itself of those duties, but it may determine the conditions under which that duty may vest, and, in particular, it may specify the point of time at which it shall vest. The general common law embodied in sec. 72, is by those sections liable to be cut down to a certain extent by those rules under secs. 47 and 54. The question is, to what extent? And the answer is, as far as is reasonable, which really means the same thing as being consistent with the Act.
This brings me to the further point that any of the bye-laws or conditions of the Company are void if and in so far as they are unreasonable: and I have to consider whether the conditions imposed by the rules in this case are or are not reasonable. Two rules have been so imposed; one under sec. 47, the other under sec. 54, and again we need not distinguish between the two. By the former, the goods are at the owner's risk until a receipt has been signed by an authorised Railway servant, by the latter, which in this case is endorsed on the back of the forwarding note, the Company are not accountable for any article received unless receipt has been given. In both cases what the Railway say is:—“We are not liable for your goods until we have given you a receipt for them.”
We have seen in the procedure detailed to us, that giving that receipt is the last act performed by the Company in booking the goods.
But there appears to be no rule as to when the receipt is to be given. It might not be given for a considerable time and we have evidence that it is sometimes given on the day after the goods have been received and I suppose it might be given after the goods had arrived at their destination. In the present case the receipt for the bale that went through was not given till the bale had been for 3 nights in the Company's possession; and, in any case, when the process of booking is interrupted by the end of office hours, goods must necessarily be so left.
The Company however claims a right to delay the beginning of its own responsibility till a performance of a formal act of its own; which may be delayed till the goods have passed out of their possession at the other end of their journey. This seems to me unfair and I cannot think the condition is reasonable. It is also open to this view, that construction was never intended by the framers of the rules. I think it is not unreasonable that as long as the consignor's servant is seeing the goods through the process of booking, marking and weighing, the Railway Company should not be responsible; but that the Company should become responsible if the booking process is interrupted for any substantial time, and the goods are left in their possession; as in such a case they practically must be. I think this construction might not unreasonably be put on the rules in question. But then they would not apply to the present case.
Under the circumstances I hold that the Defendant is liable for the loss of these 4 bales. There has been no question as to the value of the bales; judgment is accordingly be for the Plaintiff for Rs. 2,381-11 with interest at 6 per cent from the 4th February, 1901 until date of action and costs on scale No. 2. Interest on decree at 6 per cent.
Mr. Dunne asks for special costs of the correspondence.
Mr. O'Kinealy contra.— Whatever property included under costs of suit.
Stephen, J.:— Yes, only costs of suit, whatever they are.
Mr. A.T Dey, Attorney for the Plaintiff.
Mr. Eggar, Attorney for the Defendant.
A.N.C