Report No. 13
120. Section 151.-
This section embodies the common law rule as to the liability of bailees other than common carriers and innkeepers. Common carriers and innkeepers were liable as insurers of goods; i.e., they were responsible for every injury to the goods occasioned by any means, except only the act of God and of the King's enemies. The English Common Law with regard to common carriers was partly incorporated in the Carriers Act, 1865. According to the Privy Council1 the responsibility of a common carrier is not within the Contract Act and is governed by the Carriers Act, 1865, and the common law of England.
1. Irrawaddy Flotilla Co. v. Bugwandass, 18 IA 121 (129).
Carriers by sea for hire are not common carriers within the meaning of the Carriers Act. There is a conflict of authority as to the responsibility of such carriers being governed by the Common Law of England or by sections 151 and 152. The Calcutta High Court, in Mac Killican v. The Compagnie Des Messageris Maritimes des France, ILR 6 Cal 227, held that a foreign carrier is not a commercial carrier and that if the contract of affreightment is made in India, the liability would be governed by the provisions of sections 150 and 151. The Madras High Court1 has held that the liability was that of common carriers according to the Common Law of England. The correct view would appear to be that the proper law of Contract of affreightment is the law by which the parties intended that their contract should be governed.
1. See Hajee Sait v. Company of the Messageries Maritimes of Rance, 28 Mad 4000; Kumber v. British India Steam Navigation Co. Ltd., 38 Mad 941.
We do not, however, make any recommendation with regard to the law of carriers in this part of our report, as we propose to deal with that subject separately.
121. The liability of an innkeeper should be governed by sections 151 and 152. The view of the Allahabad High Court in Jain & Son v. Cameron, ILR 44 All 735 should, in our opinion, be preferred to the view of the Bombay High Court in Whateley v. Palanji, (1866) 3 BHC (OC) 137. We do not think that it is necessary to make any change in the sections on this account, as we feel that the Courts are not likely to take a view contrary to the decision of the Allahabad High Court on this point.
122. Whether a bailee can contract himself out of the liability imposed by section 151 has been the subject of controversy in Courts. In Sheikh Mahamad Ravuther v. The British India Steam Navigation Co. Ltd., ILR 32 Mad 95 Sankaran Nair, J. held (contrary to the views of the other two judges-White C. J., and Wallace J.) that a contract by a bailee purporting to exempt himself wholly from liability for negligence was not valid. This view was founded on the fact that while there are express provisions for contracting out in a number of other sections e.g., sections 152, 163, 165, 170, 171 and 174 there is no such provision in section 151.
This view did not find favour even in later cases in the Madras High Court1 nor was it ever followed in Bombay.2 Indeed Beaumont C. J. of the Bombay High Court thought that it would be a startling thing that persons sui juris are not at liberty to enter into such a contract of bailment as they may think fit. He relied on the absence of an express provision in the Act prohibiting a party from contracting out of section 151. We accept the majority view as correct. In order to resolve this controversy we recommend that the words 'in the absence of any special contract' be added in section 151.
1. Home Insurance Co. v. Ramnath Co., AIR 1955 Mad 602.
2. Bombay Steam Navigation Co. Ltd. v. Vasudev, 52 Bom 37l; Lakhaji Dollaji v. Boorugu, AIR 1939 Bom 101.
123. Sections 152-158.- No change is necessary in sections 152 to 158.