JUDGMENT
Goods were carried on the defendant's ship, the Dupleix, from Calcutta to Madras under a bill of lading which contains a clause that “the company is not answerable for any fault or negligence whatsoever of its Captain; nor for that of pilots, seamen, or other persons on board its vessel in whatever capacity.”
On arrival at Madras the goods were delivered by the defendants in rain and part of them were damaged by wet. The plaintiff claims damages from the defendants for negligence and misfeasance in delivering those goods so damaged. At the hearing, the learned Chief Judge of the Small Cause Court dismissed the suit holding that the defendants were protected by the above clause, but has stated a case for the opinion of this Court on the question “whether under the Bill of Lading the defendants are liable to the plaintiff.” On behalf of the plaintiff it was contended that the defendants were not common carriers (as was held in Mackillican v. The Compagnie Des Messageries Maritimes De France(1)), but were bound by the Contract Act and could not contract themselves out of their liability as bailees and that, even if they were common carriers, they were not protected by the clause in question as their act in delivering the goods in monsoon rain was misfeasance and not mere negligence.
As regards the first question, we are of opinion that the defendants are common carriers. The only reason given in Mackillican v. The Compagnie Des Messageries Maritimes De France for holding that they were not common carriers is that the defendant's ship is a foreign ship. The defendants are a company who carry goods for any person for hire between certain termini on a certain route. The contract was made at Calcutta and, whatever the nationality of the defendants or their ship, the law applicable to them is the lex loci contractus. The lex loci is lie law of England; the defendants are therefore in our opinion common carriers and the English law as to common carriers applies to them.
By the English law applicable to common carriers, the common carrier may enter into any contract so as to protect himself, but he can only do so by clear, definite, and unambiguous, words. If therefore the words used in the exemption clause of the bill of lading are clear, definite and unambiguous, they may suffice to protect the shipowner even from deliberate acts of misfeasance on the part of himself or his servants. On arrival at Madras the defendants delivered the plaintiff's goods, which were oats, in heavy rain and allowed them to get wet in the process. They might, if they had chosen to do so, have taken the goods on and not delivered them until later when it was fine; and the plaintiff contends that their act in delivering the goods in rain instead of delaying the delivery until it was fine, was an act of deliberate misfeasance and not mere negligence as the learned Chief Judge has found in the case stated. We think the acts of the defendant's servants amounted only to negligence and that the learned Chief Judge is right in so holding. We further think that the words of the clause above quoted are sufficiently clear and definite to protect the defendants and we Answer the question referred to us in the negative.
Mr. James Short—Attorney, for plaintiffs.
King & Josselyn—Attorneys, for defendants.