This is an appeal by the Plaintiff in a suit for the recovery of value of goods made over to a Railway Administration for transmission but not delivered at the destination. The case for the Plaintiff is that the Secretary of State for India in Council owns the Eastern Bengal State Bail way, that on the 12th October, 1909, the Plaintiff made over to the Railway Authorities at Rungpore 250 bundles of tobacco worth Rs. 15,335 for despatch and carriage to Calcutta, but that the goods have never been delivered to him. The Defendant pleaded in substance that the goods were destroyed while in course of transmission on the 17th October, 1909 by an Act of God, namely, a severe cyclone, and that he is consequently not liable for the value of the goods. The Subordinate Judge has held that the loss of the goods was caused by an Act of God beyond the control of the Defendant, and that this furnishes a complete answer to the claim. The Plaintiff has now appealed to this Court and has invited us to hold that the decree of the Subordinate Judge is contrary to law.
The evidence shows that the goods were received by the Railway authorities at Rungpore on the 12th October, 1909, and were, in ordinary course of business, loaded into wagons on that very day. They were despatched from Rungpore on the 14th October by a Goods train that runs from Lalmanir Hat through Rungpore to Parbatipur. They could not be despatched on the 13th October as there were goods received earlier, which were despatched on that date, as also a fish-van and two foreign empty wagons. The Station Master explains that preference is given in ordinary course of business to empty wagons which are the property of foreign Railways and have to be speedily returned to them, as also to vans which contain perishable goods. There was consequently no unusual delay or unnecessary; detention of the goods at Rungpore. The train reached, Parbatipur on the evening of the 14th October in due course. The evidence shows that Parbatipur is a junction station where several lines of railway meet, and that the trains from the several lines are dissolved, remarshalled and made into new trains. This was done in the present instance in the usual course of business in the way described by the trains-clerk at Parbatipur, who has been examined as a witness. The goods were sent on by a train which left Parbatipur on the morning of the 15th October. They could not be sent earlier, as precedence had to be given to wagons previously received. The train arrived at Sana at about 8 o'clock in the evening of the 15th October and the wagons were made over to the transhipment department on the morning of the 16th October; (the order for transfer was actually made on the evening of the 15th October immediately after the arrival of the train at Sara). Sara, it may be stated, is on the bank of the river Padma and here goods have to be carried across the river in flats to the station on the Calcutta side, named Goalbathan. The goods were loaded into one of the flats on the 16th October along with a considerable quantity of other goods brought down by various trains. On the 17th October, the steamer which carried the flats, left Sara and reached Goalbathan late in the afternoon. The flats were not unloaded that day, and the goods remained thereon. A severe cyclone passed over the locality in the evening and the result was that the steamer and the flats sank in the river. The question arises, whether, in these circumstances, the Railway authorities can be called upon to make good the loss sustained by the Plaintiff.
Sub-sec. (1) of sec. 72 of the Indian Railways Act, 1890—We quote only so much of the section as is applicable to this case—provides that the responsibility of a Railway Administration for the toss or destruction of goods delivered to the Administration to be carried by railway, shall, subject to the other provisions of the Act, be that of a bailee under secs. 152 and 161 of the Indian Contract Act, 1872. Sec. 152 of the Indian Contract Act provides that 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 sec. 151, that is, 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. Sec. 161 of the Indian Contract Act provides that if, by the default of the bailee, the goods are not returned, delivered or tendered at the proper time, he is responsible to the bailor for any loss, destruction or deterioration of the goods from that time. It is worthy of note that sec. 72 of the Indian Railways Act, 1890, effects a substantial alteration in the law as contained in sec. 10 of the Indian Railways Act, 1879. It is further worthy of note that sec. 2 of Act IX of 1890 repeals secs. 7 and 10 of the Carriers Act (III of 1865). As Lord Macnaghten pointed out in Irrawaddy Flotilla Company v. Bhugwandas(1), the Act of 1890 reduces the responsibility of carriers by railway to that of bailees under the Contract Act, 1872; it also declares in sec. 72(3), that nothing in the Common Law of England or in the Carriers Act, 1865, regarding the responsibility of Common carriers with respect to the carriage of animals or goods, shall affect the responsibility of a Railway Administration as defined in the section. The object of the legislature, when Act IX of 1890 was enacted, was obviously to depart from the law as enunciated by this Court in Mathura Kanta v. I.G.S.N Co.(2) subsequently approved in Chogemul v. Commissioners of the Port of Calcutta(3) and Irrawaddy Flotilla Company v. Bhugwandas in cases of liability under the Indian Railways Act, 1879. It is plain that, in the case before us, the liability of the Defendant must be measured solely by the test formulated in secs. 151 and 152 of the Indian Contract Act. This view accords with the decisions in Sesham Patter v. Moss(4), Lakhichand v. G.I.P Ry. Co.(5) and Hirji Khetsi & Co. v. B.B & C.I Ry. Co.(6). It is also clear that when goods have not been delivered to the consignee at the place of destination, the Plaintiff need not prove how the loss occurred; the burden lies upon the bailee to prove the existence of circumstances which exonerate him from liability for the loss [Trustees of the Madras Harbour v. Best and Company(7) and Sesham Patter v. Moss]. In our opinion, the Defendant has discharged this burden. The Railway authorities acted at every step in the ordinary course of business; they took as much care of the goods 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. There was no unusual or unnecessary delay or detention in course of transit; the case for the Plaintiff was put before the Court on the hypothesis that whenever goods are delivered to a Railway Administration for transmission they must be despatched by the very next train available and if the goods have to be carried over several lines or across rivers, they must have precedence at every stage and this must be done regardless of other demands on the railway. If the theory, which underlies this assumption, were to prevail, it would be manifestly impossible to run a railway on business lines. We feel no doubt that in the present case there was no negligence whatever on the part of the Railway authorities, and whatever took place, was done in the usual course of business.
It has finally been argued that a Railway Administration, when it accepts goods for transmission is, in the position of insurers as common carriers. There is no foundation for this contention. Even under the Common Law of England, a common carrier is not responsible for the consequences of an act of God. It is sufficient to refer to the celebrated judgment of Holt, C.J, in Coggs v. Bernand(8), where, with reference to bailees who exercise a public employment for a reward, he makes the following observation:—“The law charges this person, thus entrusted, to carry goods against all events but acts of God and of the enemies of the King” [Nugent v. Smith(9) and Lloyd v. Guibert(10)]. Even upon this view, the claim is unfounded. We may add that even if it was established that there was avoidable delay in the transmission of the goods, it is at least doubtful whether the Plaintiff would have any remedy against the Defendant. Assume that the conduct of the Defendant has been negligent within the definition formulated by Baron Alderson in Blyth v. Birmingham Water Works Co.(11): “Negligence is the omission to do some thing which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing some thing which a prudent and reasonable man would not do”. Still, the question arises, whether the Act of God is not the proximate cause of the loss and the alleged lack of diligence of the Defendant nothing more than the remote cause. Beven in his work on Negligence (1908), Vol. I, p. 81, states the law in the following terms: “Where the negligence of a person concurs with some ordinary cause and the conjunction produces an effect injurious to some other person, the operation of such an ordinary cause, extraneous to the negligent person, will not excuse his liability for the whole of the joint effect. The law is otherwise, where an extraordinary cause is the primary means of setting in motion an injurious agency and by co-operating with the negligence of a person produces injury to some other person. In this case, the negligent person is not liable; for not only would his negligence alone fail to produce the injurious effect (this circumstance, however, is common to the two cases, and notwithstanding this, in the former, there is no immunity from liability), but the exciting cause being an extraordinary occurrence or an act of God, was not reasonably to be anticipated nor guarded against. The negligent act is not followed by injurious results in natural and probable sequence, but only by the occurrence of something abnormal and not to be anticipated”. This exposition of the law receives support from the unanimous judgment of the Supreme Court of the United States in Memphis Bail Road Co. v. Reeves(12), where the facts were very similar to those of the case before us. The goods (Tobacco) were delivered to a Railway Company for transmission, there was delay in transit which was not satisfactorily explained; while in transit, the goods were destroyed by a sudden, violent and extraordinary flood and storm. It was proved that but for the delay in the course of transit, the goods would have escaped the flood. The Court ruled that the Railway Company was not liable and added that the flood was the proximate cause of the injury and the delay in transportation the remote one. It was also observed that although there was some divergence of judicial opinion on the subject in the Courts of the various States, the balance of authority and reason was on the side of the conclusion unanimously accepted by the Supreme Court of the United States. It follows that from whatever point of view the present case is examined, the claim cannot be sustained.
The result is that the appeal is dismissed with costs. It is conceded that this judgment will govern the other appeal which also is accordingly dismissed with costs.
S.C.M
Appeals dismissed.