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PETITIONER: THE RIVER STEAM NAVIGATION CO., LT.D

       Vs.

RESPONDENT: SHYAM SUNDAR TEA CO., LTD.

DATE OF JUDGMENT: 05/05/1961

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS GAJENDRAGADKAR, P.B. WANCHOO, K.N.

CITATION:  1962 AIR 1276            1962 SCR  (2) 802

ACT: Common Carrier-Steamship Company carrying, goods by  steamer in  main stream-Feeder service by boats  in  tributary-Goods lost  in  transit in such service-Liability-Company,  if,  a common carrier in the feeder service-Test Carriers Act, 1865 (3 of 1865), s. 2.

HEADNOTE: The  question whether a carrier is a common carrier  or  not has  to  be  decided  on  its  public  profession  and  such profession may be either by public notice or by conduct.  It is immaterial if the carrying is limited to particular goods or particular routes or between specified points. Lane v. Cotton12 Mod. 474; Ingate, v.Christis, (1950) 3 Car. and K. 61 and Jhonson v. Midland Rly., Co. (1849) 4 Ex  367, referred to. 803 Consequently,  where,  as in the instant case,  the  steamer companies,  which were by public profession common  carriers in the main stream and invariably agreed, when requested, to arranged  for  carriage  of goods  by  boats  from  stations situated on its tributary to the steamer station,  accepting goods  as indiscriminately as in the steamer  service,  were sued for loss of goods in the tributary and the High  Court, while  reversing  the finding of the trial court as  to  the negligence  of  the companies, affirmed its  decree  against them on the ground that they were common carriers. Held,  that the decision of the High Court was  correct  and must be affirmed. There  could be no doubt that the service in  the  tributary was in the nature of a feeder service to the main route  and the public profession made in respect of the latter attached to it. Held, further, that it was of no consequence that the feeder service yielded no profits. Nor  was  regularity or otherwise of the  feeder  service  a relevant consideration. Law does not require that a common carrier must have   fixed rate for carriage of all goods and the absence of such fixed rate in the feeder service was wholly immaterial.

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JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 401 of 1957. Appeal  from the judgment and decree dated June 15, 1954  of the Assam High Court in First Appeal No. 23 of 1950. D.   N. Mukherjee, for the Appellants. B.   Sen,  P.  K.  Chatterjee  and  P.  K.  Bose,  for   the Respondent. 1961, May 5. The Judgment of the Court was delivered by. DAS GUPTA, J.-This appeal is from the judgment and decree of the High-Court of Judicature in Assam affirming the judgment and  decree  made by the Subordinate Judge  of  Upper  Assam Districts,  in a suit brought by the respondent  Shyamsundar Tea Co., Ltd., against the present appellants.  The 804 appellant  companies  are joint owners  of  Steamer  service between  Dibrugrah and Calcutta.  The main service is  along the  Brahmputra River.  Desang is one of the tributaries  of the Brahmputra and meets the main stream at Desangmukh Ghat. The  plaintiff’s case in the plaint was that  the  defendant companies  as  common carriers received goods  at  Dillibari Ghat  which  is situated on the Desang about  70  miles  up- stream from Desangmukh Ghat for carriage "therefrom by boats to  Desangmukh Ghat and then by their steamers to  different stations  on  payment  of  freight".   It  is  further   the plaintiff  case  that on September 10, 1946,  the  plaintiff company  delivered  120 chests of tea to the  defendants  at Dillibari  Ghat for carrying therefrom and delivery  of  the same  at Kidderpore in Calcutta.  The boat  carrying  these. tea  chests sank; the tea chests were lost and could not  be salvaged.  The accident was, according to the plaintiff, due to  the negligence on the part of the  defendant  companies’ agents  and servants.  On this ground of negligence as  also on  the  ground that the companies as common  carriers  were liable  to  make  good the loss whether  or  not  there  was negligence, the plaintiff claimed the sum of Rs. 1,6,224-12- 0-is compensation for the loss. The  defendants  raised  a  four-fold  defence.   The  first contention was that there was no delivery to the  defendants at  all  at  Dillibari  Ghat  and  the  defendants  did  not undertake  any  carriage of the goods from  Dillibari  Ghat. Secondly,  it was said that the sinking of the boat was  not due,  to  any  negligence on the  part  of  the  defendants’ servants.  The third contention that the defendants were not a  common  carrier  in respect of  carriage  of  goods  from Dillibari Ghat to Desang.  Lastly it was pleaded that in any case  the  conditions  of  the  Forwarding  Note  which  was executed  by the plaintiff company completely  absolved  the defendants from all liability.                     805 The trial Court held on a consideration of the evidence that the goods were delivered by the plaintiff to the  defendants at  Dillibari  Ghat for carriage from there  to  Kidderpore, Calcutta.  It also held that the sinking of the boat was due to  negligence  on  the part of  the  defendants’  servants. Accordingly,  without coming to a clear  conclusion  whether the  defendants  were common carriers or not in  respect  of this contract of carriage the Trial Court gave the plaintiff a decree for the sum as claimed. On  appeal  the High Court of Assam  affirmed  this  decree, though  not  for  quite the same reasons.   The  High  Court agreed  with  the Trial Courts’ conclusion. that  there  was delivery of the goods to the defendants by the plaintiff  at Dillibari  Ghat  for carriage therefrom.   On  the  question

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whether the sinking of the boat was due to the negligence of the  defendants’  servants the learned Judges  of  the  High Court did not however accept the Trial Court’s view.   Their opinion,  it  appears, was that the plaintiff had  not  been able to establish the case of negligence on the part of  the defendant’s  servants.  The High Court however came  to  the conclusion that the defendants undertook this carriage  from Dillibari  Ghat in their capacity as common carriers and  so the  question  whether  there ,was  negligence  or  not  was irrelevant.   The High Court also found that the  terms  and conditions of the Forwarding Note did not in any way absolve the defendants from liability.  Accordingly, the High  Court affirmed the decree made by the Trial Court. It  may be mentioned that though on both the  points,  viz., whether  the delivery of the goods at Dillibari was  to  the defendants  and  whether  the  defendants  were,  for   such carrying from Dillibari, common carrier, one of the  learned judges,  Ram  Labhaya J. appears to have, been  hesitant  in coming to his conclusion but ultimately on both these points he agreed with the Chief Justice and 806 the  agreed conclusions of both the learned judges were,  as we have mentioned above. The  High Court gave a certificate under Art.  133(1)(c)  of the Constitution and on that  certificate the present appeal has been brought. On behalf of the appellants Mr. Mukherjee has J.  tried   to persuade us to examine the findings of the Courts below that the  plaintiff delivered the tea chests in question  to  the defendants at, Dillibari Ghat.  He tried to show that it was Meeneill and Company who used to run this boat service  from Dillibari to Desangmukh and that the defendants had  nothing to  do with this business.  Apart from the fact that such  a case  that  Macneill  and  Company  used  to  carry  on   an independent boat service business to Desangmukh was not made in  the plaint, we are satisfied that there is nothing  that would  justify  us  to  depart  from  the  well  established practice  of  this Court not to  interfere  with  eoncurrent findings of facts, of the Trial Court and the first court of appeal.   We  may however indicate that  having  been  taken through  the evidence we have no hesitation in  stating  our agreement  with  that  finding,’ viz.,  that  the  plaintiff delivered  the tea chests in question to the  defendants  at Dillibari  Ghat  for carriage therefrom.  We see  no  reason also  to interfere with the High Court’s findings  that  the plaintiff  has  not been able to establish its case  of  any negligence on the part of the defendants’ agents. This  brings us to the main question in  controversy,  viz., whether the appellants were common carriers of goods between Dillibari Ghat and Calcutta.  The appellants admit that they are common carriers between Desangmukh Station and all other places  on  its steamer routes.  They contend  however  that that  does  not make them common carrier  between  Dillibari Ghat  or other ’places not in its steamer service route,  to any  places on the steamer service route.  ’The  respondent’ secase, on the other 807 hand is that once it is established that the defendants  are common carriers within- the meaning of the definition in the Carriers Act, they must be held in law to be common carriers whenever  they  undertake  carriage of  goods,  unless  with respect to the particular carriage they show definitely that they did not act as common carriers. The  Carriers Act, 1865 (Act III of 1.865)  defines  "common carrier" in these words

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     "   ’Common carrier’ denotes a  person,  other       than  the Government, engaged in the  business       or  transporting for hire property from  place       to  place, by land or inland  navigation,  for       all persons indiscriminately." This  definition  is  based on the  English  common  law  as regards  the  common carriers.  The common  law  in  England developed  from quite early times to make the profession  of common  carriers a kind of public service ; or as stated  by Lord  Holt in an early case "a public trust". (Vide Lane  v. Cotton)  (1).   It  is where such a public  trust  has  been undertaken as distinct from t mere private. contract that  a carrier ceases to be a private carrier but becomes a  public carrier  or  as  English  law  calls  "a  common   carrier." Explaining  the  distinction between a mere  carrier  and  a common  carrier, Alderson B, said in Ingate and  Another  v. Christis(2)       "Everybody who undertakes to carry for  anyone       who  asks  him,  is  a  common  carrier.   The       criterion  is, whether he carries  for  parti-       cular persons only, or whether he carries  for       everyone.  If a man holds himself out to do it       for  everyone  who asks him, he  is  a  common       carrier  ;  but  if  he does  not  do  it  for       everyone,  but  carries for you and  me  only,       that is a matter of special contract." (1)  12 Mad. 474. (2) (1850) 3 Car & K. 61. The question in any particular case  whether the carrier was a  common carrier or a private carrier has therefore  to  be decided on the ascertainment of what he publicly  professes. This  profession,  it  need hardly be mentioned  may  be  by public notice or by actual indiscriminate carrying of goods. It  is also clear that the profession to carry goods  indis- criminately  may  be  limited  to  particular  goods  or  to particular  routes  or  even is to  two  or  more  specified points.   In  Johnson v. Midland Rly., Co.(3)  the  question arose  whether the Railway Company were as  common  carriers bound to carry coal from Melton Mowbray to Oakham, Parke  B, with  whom Alderson B, Rolfe, B, and Platt B, agreed  stated the law thus:       "A  person may profess to carry  a  particular       description  of  goods  only,  for   instance,       cattle  or dry goods, in which case  he  could       not  be compelled to carry any other  kind  of       goods;  or  he  may limit  his  obligation  to       carrying  from one place to another,  as  from       Manchester to London, and then he would not be       bound   to  carry  to  or  from   intermediate       places." Turning  to  the facts of the case before  him  the  learned Baron stated:       "Now, if the defendants stand in the situation       of  carriers  at  common  law,  they  are  not       liable, because it does not appear in evidence       that they ever had been a public profession by       them  that they would carry coals from  Melton       Mowbray to Oakham." Ultimately the learned Judge recorded the conclusion thus: "I  think that the circumstances of their having  undertaken to be carriers does not (3)  (1849) 4 Ex. 367,                     809       bind  them to carry from or to each  place  on       the line, or every description of goods."

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This is goods authority for the appellants’ contention  that the  more  fact that they are engaged in  the  transport  of goods  from  certain places  on  their               Steamer Service  to  other places does not necessarily  justify  the conclusion   that  whatever  carriage  they  may   undertake elsewhere is also done as a common carrier.  It is therefore necessary  to  examine the nature of the  public  profession made by the appellants with regard to the carriage of  goods from  Dillibari  Ghat.  It is true, as pointed  out  by  the appellants’ counsel that there is no public notice, as there is  in respect of places on the Steamer Service route,  with regard  to carriage from Dillibari Ghat.  It  is  legitimate however to consider in this connection the usual conduct  of the  appellant  companies in connection with  carriage  from Dillibari Ghat and other surrounding circumstances.  It  has to be noticed that tea gardens which supply the bulk of  the companies’  cargo traffic for its despatch steamers find  it convenient  and  economical  to bring, their  goods  to  the nearest  point on some river and to enter into contracts  of carriage of goods from these points to places on the Steamer Service routes.  It appears clear from the evidence  adduced in  this  case that for such carriage the tea  gardens  make requests  to the appellants to arrange for carriage  to  the Steamer  station and the companies invariably   comply  with such requests. Their own witness, the Joint Agent at Dibrugarh, has said in this  connection  "We always try to give facilities  to  the interior  tea  gardens and to all  customers  whenever  they require  any  help.  " He has not said a single word  as  to requests" of any customers for arrangements of carriage from Dillibari  Ghat  having  been  refused.   Indeed,  when  one remembers  that  it  is by getting  the  custom  from  these interior tea gardens, not all of which are situated ’on or , near the main stream of the 810 Brahmputra  that  the companies are able to  get  sufficient cargo  for  their steamers, it was only  natural  that  they would  accept goods for carriage from places away  from  the main stream as indiscriminately as they do for carriage from stations on the main steamer route. The  defendants’ witness Mohammad Abdulla who is their  Ghat Supervisor  at  Desangmukh  has  stated  that  "the  Steamer Company  bears  expenses of the clearance of the  rivers  to make  them navigable." Such conduct is consistent only  with the case that the companies are anxious to receive  whatever cargo they get for carriage from places on the river  Desang and other tributaries to stations on the main steamer  route for  further carriage on the steamer route.  The service  on these tributaries can therefore be reasonably described as a "feeder service" for the main route and the admitted  public profession for indiscriminate carriage of the goods of every person on the main route cannot but attach to the service on these "feeder routes" also. Against   all   this,   Mr.  Mukherjee   pressed   for   our consideration  three  circumstances: (i) that the  rate  for carriage  from  Dillibari was not a fixed  rate;  (ii)  that there was no regular service but boats were supplied only on requisition;  and (iii) that the carriage was  made  without profit. Nothing  turns on the third fact-assuming that it  has  been established-that  carriage from Dillibari to  Desangmukh  is made  without  profit.  If this is actually the case  it  is obvious  that the defendants deliberately do this as a  part of their business so as to attract good business on the main steamer  service  route where they hope to  make  sufficient

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profits to make up for the loss in feeder service. The circumstance that there was no regular                     811 service but boats were supplied only on requisition is  also wholly  irrelevant  for  ascertaining whether  there  was  a public profession to carry indiscriminately.  Even if  there was  a regular service, there might not be a  profession  to carry  indiscriminately ; whereas even if there was  such  a profession  it  would not necessarily  happen  that  regular service  should be maintained.  If, as the evidence  appears to  establish,  the  companies were ready  to  supply  boats whenever requested, without picking and choosing, that would be sufficient public profession to act as a common carrier. Nor is the fact that there was no fixed rate for carriage of goods from Dillibari to Desangmukh of any assistance to  the appellants’  contention that they were not common  carriers, for the law does not require that a common carrier must have one  and  the same rate for all goods.  The law  was  stated thus by Blackburn J. in G. W. Ry.  Co., v. Sutton (4) :       "There was nothing in the common law to hinder       a   carrier   from   carrying   for   favoured       individuals  at an unreasonably low  rate,  or       even  gratis.  All that the law required  was,       that  he should"not charge any more  than  was       reasonable." "The requirement of equality of charges", as pointed out  by Prof.   Otto Kahn-Fre-und in the law of Carriage  by  Inland Transport (3rd Edition) at P. 190, "in so far as it existed, was  entirely the creation of statute while the  common  law regards inequality as nothing more than possible evidence of ’unreasonableness." That   there   was  no  fixed  charge  for   carriage   from Dillibari  can  not therefore be any reason  to  think  that appellants were not common carriers in respect carriage from Dillibari. (4)  (1869) L.R., 4 H.L. 226 at. 237. 812 The  next argument of  Mr. Mukherjee was almost an  argument of despair.  He points out that there was a Forwarding  Note (Ex.  B) executed by the plaintiff in respect of the journey from Desangmukh to Calcutta and there was a special contract there  limiting the carriers’ liability.  If the  appellants were really common carriers in respect of the carriage  from Dillibari, is it conceivable, he asks, that there would  not be  a  similar Forwarding Note covering  the  carriage  from Dillibari  to Desangmukh?  That however is a  totally  wrong approach to the problem.  A common  carrier may restrict his liability  by  special  contract.  ’But  the  absence  of  a special  contract  cannot  show  that he  is  not  a  common carrier.  The fact that the appellants did not,take care  to make  a  special  contract  in  respect  of  carriage   from Dillibari is therefore wholly irrelevant. On  a consideration of the entire evidence therefore we  are of  opinion  that  the  appellants  did  profess  by  their. conduct,  even if not by any public notice, that they  would carry goods indiscriminately for all those who ask for  such carriage  from  Dillibari to various places  on  their  main steamer route.  They were thus common carriers in respect of the carriage of the plaintiff’s goods from Dillibari. A last contention was raised, again, on the Forwarding Note. It was urged. that in any case this should be interpreted as covering  the  carriage from Dillibari also.  In  terms  the Forwarding  Note was limited to the contract of carriage  as from  Desangmukh to Calcutta.  By no method of  construction of  the  document can it be- extended to the  journey’  from

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Dillibari. All  the  contentions raised in the appeal  therefore  fail. The appeal is accordinly dismissed with costs. Appeal dismissed. 813