The River Steam Navigation Co., Ltd V.
Shyam Sundar Tea Co., Ltd.  INSC 221 (5 May 1961)
K.C. DAS GAJENDRAGADKAR, P.B.
CITATION: 1962 AIR 1276 1962 SCR (2) 802
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.
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.
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
1961, May 5. The Judgment of the Court was
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
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 upstream from Desangmukh Ghat
for carriage "there from 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 there from 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. 1,6,224-120-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 there from. On the
question 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
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 there from. 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
The Carriers Act, 1865 (Act III of 1.865)
defines "common carrier" in these words " '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 particular 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 indiscriminately 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." 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
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 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-Freund 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 cannot therefore be any reason to
think that appellants were not common carriers in respect carriage from
(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
A last contention was raised, again, on the
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 beextended to the
journey' from Dillibari.
All the contentions raised in the appeal
The appeal is accordinly dismissed with