Report No. 38
Legal Issues Raised by Interception of Postal Articles
The Question1 Whether Interference By Way Of Interception of postal articles amounts to any illegality at all, may be usefully considered. So far as tangible goods of economic value are concerned, the following points can be made: -
(a) It has been held in one case2, that the Postmaster-General can take on the character of a bailee, so as to be entitled to sue a third person. In that case it was also observed, that the Postmaster-General would have a good answer to an action by the bailor for damages for loss of the thing bailed. But that was because the Crown could not be sued. In India, in view of section 6 (last part), the Post Office may perhaps incur liability also qua bailee; and if that is so, then, by not carrying out the duty of conveying the goods, it commits the tort of conversion, at least if the goods are destroyed or materially interfered with, because the goods were placed in the Post Office only for the purpose of being transmitted to the addressee.
1. See the query raised in Heuston, Essays in Constitutional Law, (1964), pp. 50-52.
2. The Winkfield, (1902), Probate 42, 54, 60.
The following discussion regarding bailment may be cited1-
'Bailment is essentially a delivery on terms, but none of the definitions we have is exhaustive in view of the widely different forms a bailment can take. In Terms de la Ley it is written:
"Bailment is a delivery of things whether it be of writings, goods or stuff to another, sometimes to be delivered back to the bailor, that is to him that so delivered it, sometimes to the use of the bailee, that is to say, of him to whom it is delivered, and sometimes also it is delivered to a third person."
1. Vaines Personal Property, (1957), pp. 67-68.
And in Stephen's Digest of Criminal Law:
When one person delivers, or causes to be delivered, to another any movable thing in order that it may be kept for the person making the delivery, or that it may be used, gratuitously or otherwise, by the person to whom delivery is made, or that it may be kept, as a pledge by the person to whom delivery is made, or that it may be carried, or that work may be done upon it by the person to whom delivery is made gratuitously or not, and when it is the intention of the parties that the specific thing so delivered, or the article into which it is to be made, shall be delivered either to the person making the delivery, or to some other person appointed by him to receive it, the person making the delivery is said to bail the thing delivered: the act of delivery is called a bailment; the person making the delivery is called the bailor, the person to whom it is made is called the bailee."1.
1. These definitions are cited by Romer, L J., in Ashby v. Talhurst, (1937) 2 All ER 837: (1937) 2 KB 242. Cf the first definition given by Sir William Jones, op. cit., "a delivery of goods, on a condition express or implied, that they shall be restored by the bailee to the bailor or according to his direction as soon as the purpose for which they were bailed shall be answered."
The above definitions avoid identifying a bailment with a contract but until recently judges and writers have more or less consistently treated bailment as an express or implied contract"1, and it is curious that the two cases deny that a bailment is an express or implied contract2, and it is a great deal to be said for this mode of treatment and it • might well be asked whether, for practical purposes, bailment is not better regarded as a contract in view of the importance of the contractual terms3 which generally dominate the relationship4.
"However, it is clear that bailment is sui generis, and modern writers5 adopt this view mostly without question and the theoretical difficulties of treating bailment as a contract are apparent when one considers, in addition to the simple case of bailment by finding, the problem of discovering the consideration6 in a gratuitous bailment [said in Coggs v. Bernard (Barnard), (1703) 2 Id Raym 909 and see the well-known and odd case of Bainbridge v. Firmstone, (1838) 8 Ad & Er 743, to be in fact that the owner entrusts the goods with the bailee], the position of a distraining landlord7 or the distrainer of a chattel damage feasant, the undoubted bailment that exists when goods are not collected from a carrier at their destination8, or the bailment that may arise upon a misdelivery.9"
Thus, it is not accurate to assume that a bailment arises only on contract10. "Bailment is necessarily to be dealt with by the Contract Act only so far as "it is a kind of contract. It is not to be assumed that without an enforceable contract there cannot in any case be a bailment."11
If the view that the Post Office is a bailee is accepted, then such bailment would seem to fall within the species "mandatum"-wherein goods are delivered to some who is to carry them or to do something to them without reward12-13.
1. Sir William Jones, op. cit., defines bailment "a delivery of goods in trust, on a contract express or implied: that the trust shall be duly executed, and the goods be delivered, as soon as the time or use for which they were bailed shall have elapsed or be performed." Cf his first definition, supra.
2. R. v. Robson, 1861 Le & Ca 93; R. v. McDonald, (1885) 15 QBD 323; holding respectively that a married woman and an infant could be guilty of larceny as a bailee. Cf. Smith v. Plomer, (1912) 15 East 607. See also Meuz v. Great Eastern Rail Co., (1895) 2 QBD 387.
3. Halsbury's Laws (3rd Edn.), 96, states "It must be remembered, however, that bailment is a contract and the parties may "always vary the incidents by the terms of the contract."
4. For an unsuccessful attempt at evasion, see Elder Dempster v. Paterson, Zochonis & Co., 1924 AC 522.
5. Winfield, op. cit., 97; Fifoot, op. cit. 25; Ceshire and Fifoot on Contract; Goodeve Personal Property, Chap 2, section 3; Kenny Outlines of Criminal Law, Chap, XIII; Paton Bailment in Common Law, 29.
6. But conundrums on consideration are sterile to the modem lawyer. Law Revision Committee's Sixth Interim Report; Central London Property Trust Ltd. v. High Tress House, Ltd., 1947 KB 130; Denning LJ in 15 MLR 1.
7. 2 Blackstone's Commentaries 452, says the distrainer subject to a contract implied by law, e.g., to restore the goods on payment before sale. But quaere whether he is a bailee.
8. See Mitchell v. Lancashire and Yorkshire Rail Co., (1875) LQ 10 QBD 256. Here the contract provided for the contingency but the terms did no more than state what in fact was the common law.
9. Cf. Elvin and Powell Ltd. v. Plummer Roddis Ltd., (1933) 50 TLR 158 with Hiort v. Bott, 1874 LR 9 Each 86.
10. See Cheshire and Fifoot Contracts, (1964), p. 72 (73, 74); Vaines Personal Property, (1957), p. 76.
11. Pollock & Mulla Indian Contract Act (1957), p. 562 criticising the assumption to the contrary in Ram Yulam v. State of Uttar Pradesh, AIR 1950 All 206 (207).
12. As to classification of bailments, see Coggs v. Bernard, (1703) 2 Ld Rayman 909; Wilshere, Common Law, (1951), p. 583, 587, Vainces Personal Property, (1957), p. 82.
13. For a full discussion, see Paton Bailment in the Common Law, (1952), p. 29, 37.
(b) As regards conversion, it is true, that ordinarily only a person in possession or entitled to immediate possession can sue in conversion. He must have the right of possession and a right of property in the goods at the time of the conversion or detention1-2-3-4. It is also true, that the sender of goods by post cannot retrieve the goods sent by mail, without the orders of the competent authority5. But that provision seems to be intended only to ensure that the process of transmission is not affected, and not to regulate the proprietory rights of the parties concerned.
(c) Moreover, as has been observed6, sometimes the owner's right to immediate possession is remitted by the very act of conversion, so as to entitle him to sue in trover. Thus, it has been held, that if goods have been placed in the hands of a bailee for a limited purpose, and he deals with them in a manner inconsistent with the terms of the bailment, (as by selling them), the right to possession reverts in the owner, who can forthwith sue the bailee for conversion7-8-9.
(d) Further, an owner has, in any case, a right to sue for goods if he is deprived of possession even if he is not entitled to immediate possession, for an injury to his reversionary interes10-11, and this head of liability (action in the case for damage to his interest in the goods) would seem to be appropriate at least where the articles in question are destroyed.
(e) If the property in the goods has passed to the addressee12, then certainly the addressee can sue for the goods, either as owner or as a person entitled to get immediate possession.
1. Halsbury, 3rd Edn., Vol. 38, p. 783, para. 1297.
2. Jarvis v. Williams, (1955) 1 All ER 108 (111) (CA).
3. Commercial Banking Co. v. Mann, 1961 AC 1: (1960) 3 All ER 482 (PC).
4. Generally, see Warren, "Qualifying as Plaintiff in an action for a conversion" (1936) 49 Harvard L Rev 1084.
5. Section 18 of the Indian Post Office Act, read with rule 201, Indian Post Office Rules, 1933. 6: Fleming Torts, (1965), p. 64.
7. North General Wagon Co. v. Graham, (1950) 2 KB 7: (1950) 1 All ER 780, as explained in Reliance Car etc. v. Roding Motors, (1952) 1 All ER 1935 (CA).
8. See Salmond Torts, (1961), p. 278.
9. See also Paton Bailment in the Common Law, (1952), p. 385.
10. Street Torts, (1959), p. 59.
11. Mears v. L.S.W. Rly. Co., (1862) 11 CBN 850.
12. As between the sender and the addressee, the answer to the question whether property has passed to the addressee depends on many other factors, e.g., whose agent the Post Office is See I.T.C. v. Ogale Glass Works, AIR 1954 SC 429.
So far as goods having no economic value, or goods having a value besides an economic one, are concerned, these points can be made:-
(i) The sender or the addressee-whoever is regarded as entitled to the immediate possession of goods-can sue in detinue1. It is not the economic loss that is significant in the case of such goods (for example, letters), but another kind of loss, i.e. loss of the literary matter of information or views in question. The sender or addressee would like to have the goods in specie-which is possible in detinue alone2-3-4.
Detinue is the form of action which lies when one person wrongfully detains the goods of another. The gist of the action is unlawful failure to return the goods, when the goods are demanded5.
Thus, wrongful taking is redressed by trespass; wrongful detention is redressed by detinue; and wrongful destruction or disposal is redressed by conversion. This applies to papers also6. In fact, any chattel can be the subject-matter of conversion7.
"The standard remedy of a person who has been deprived of goods is conversion; and detinue is the standard remedy against a person who fails to return the goods"8. In detinue, the suit is primarily for the return of the chattel9.
The gist of the action of detinue is unlawful detainer, and it is an action of tort. It is no longer necessary to allege "delivery" (detinue sur bailment) or "finding" (detinue sur trover), and it can be brought against any one who unlawfully detains goods from a person entitled to immediate possession, without regard to the means by which possession is obtained10. For wrongful deprivation of use and possession of the plaintiff's goods, conversion is the recognised legal expression11. The action of detinue, on the other hand, is based upon a wrongful detention of plaintiff's chattel12-13.
(ii) The recipient of a letter acquire the property in the paper14-15-16. But the property in the contents is in the sender, at least so far private matters are concerned17-18-19.
(iii) A letter is an "original literary work", and the writer has copyright therein, and can restrain any publication of copies of his letter as an infringement20-21.
Would not the destruction of a literary work amount to destruction- of a recognised literary property, and thus be actionable?
(iv) The writer of a confidential work can, in certain cases, prevent its publication22-23.
Opening of such letters may, perhaps therefore, constitute an injury, though this has not yet been decided.
In a case before the House of Lords24, publication of unpublished lectures of a university professor was restrained, and this was on the ground that such publication was in the nature of a breach of confidence which fell within the ordinary scope of equitable restraint25-26.
An English case27 relating to photographers may be cited in this connection. In that case, a photographer had, by arrangement, taken and sold to the plaintiff some photographs of herself, (i.e. the plaintiff). The photographer, then, at a subsequent date, without the plaintiff's knowledge, used the negative to have her likeness inserted in Christmas cards. The plaintiff applied for an injunction to restrain this. She had not (as was the necessary) registered any copyright in the negative, but she contended that there was an implied condition in her contract that the negative should not be used for any other purpose than to supply photographs to herself.
The court held that, a photographer was not justified in striking off copies of a photograph for his own use unless, expressly or implied, he had authority from his client. "I say expressly or impliedly", the Court stated, "because a photographer is frequently allowed, on his own request, to take a photograph of a person under circumstances in which a subsequent sale by him must have been in contemplation of both parties, though not actually mentioned."
The court considered that an abuse of a confidence-analogous to the misuse of information obtained in confidential employment-arose in this case, and granted the injunction prayed for. It was said that, that though failure to register the copyright barred the plaintiff from enforcing a remedy for breach of copyright, she was still entitled to relief on the grounds of breach of a contract28.
Injury to feelings may justifiably enhance the damages. Thus, in one case29, the Court of Appeal, with reference to an unauthorised publication of the photograph of a murdered man along with his daughter and son-in-law, observed, "It was an intrusion into his life, deeper and graver than an intrusion into a man's property".
(v) Interception of letters, moreover, may raise many questions, for example, whether it is legally open to a post office official (apart from a valid statutory provision) to read and (thus interfere with) letters between a husband and wife, letter conveying business secrets, letters containing confidential communications, and the like. The last words of section 6 of the Indian Post Office Act show, that the Act gives no protection in case of wilful acts. If the law recognises (or, in future, is likely to recognise), the interest of the sender or addressee in these matters, then such interception is, or is likely to become, actionable.
It is likely, that courts would be inclined to extend the protection which has so far been extended to tangible goods, (or intangible goods with a pecuniary value), to communications and similar interests also.
(vi) The question is not of a physical object only; it may also be of the personal interest30. If the language of property fails to meet the object of protecting this personal interest, the law may, in future, evolve other methods. The uncertainty that has existed so far on the subject is due to the fact that the interest sought to be protected has remained ill defined and unidentified. It is for this reason that statute may have to intervene, to define the position.
(vii) The matter is, however, not very important in India, because, even if there is no breach, of any right recognised at ordinary law, the fundamental right under Article 19(1)(a) is violated, and the remedy under Articles 32 and 226 of the Constitution is always open.
1. As to detinue, see Salmond, Torts, (1961), p. 290, Article 48; Snell, Equity, 91960), p. 531, para. 4; Paton, Bailment in the Common Law, (1952), p. 379.
2. Street Torts, (1959), p. 57.
3. As to specific restitution, see Keeton Equity (1955), pp. 118-119; Salmond Torts (1961), p. 292.
4. See Halsbury, 3rd Edn., Vol. 38, p. 77 et seq.
5. See Ballett v. Mingay, (1943) 1 All ER 143 (145) (CA).
6. M'Leod v. M'Ghie, (1841) 2 Man & G 326 (mutilating a guarantee), cited in Fleming Torts, (1965), p. 60.
7. See definition of conversion in Salmond, Torts, (1961), p. 262.
8. J.A. Weir, Note-"Tort, Contract and Bailment". (November, 1965), Camb 1_,J 186, 190.
9. See Sinnan Chetty v. Aiabigi Aiyer, 1923 ILR 45 Mad 852 (861).
10. Wilshere Common Law, (1951), pp. 324, 325.
11. Clerk & Lindsell Torts, (1961), para. 899.
13. Clerk & Lindsell Torts, (1961), para. 934.
14. For damage by negligence, see Simpson Action on the Case for Conversion, (1959) 75 LQR 364.
15. Paton Jurisprudence, (1946), p. 128.
16. Cf. section 10, Illustration (c), Specific Relief Act, 1877(1 of 1877) (repealed); now section 8, Specific Relief Act, 1963 (47 of 1963).
17. See also Oliver v. Oliver, (1861) 11 CB (NS) 139: 132 RR 505: 31 LJ CP 4.
18. Cf section 54, illustration (y), and section 55, illustration (d), Specific Relief Act, 1877 (1 of 1877) (repealed); now sections 39-39, Specific Relief Act, 1963 (47 of 1963).
19. Halsbury, 3rd Edn., Vol. 8, pp. 437-438.
18. Copinger Copyright, (1958), p. 28.
20. Copinger on Copyright, (1958), p. 27.
21. British Oxygen Co. v. Liquid Air Co., (1925) 1 Ch 383.
22. Halsbury, 3rd Edn., Vol. 8, p. 438.
23. For a full discussion, see Gopinagar Copyright (1958), pp. 31 to 38.
24. Caird v. Sime, (1887) 12 App Cas 326.
25. See Halsbury Modem Equity, (1957), p. 551.
26. See also Snell, Equity, (1966), pp. 721, 722. See also D.L., Mathieson, in (1961) 39 Canadian Bar Review 409.
27. Pollard v. Photographic Co., (1888) 40 Ch D 345.
28. As to injunctions to prevent breaches of confidence, see Snell Equity, (1966), p. 721.
29. Cf. William v. Settle, (1960) 2 All ER 806 (812) (CA).
30. See Paton Jurisprudence, (1946), p. 128 as to personal interest.
The position resulting from this discussion can be thus summarised:
(1) The relationship between the Post Office and the sender is either of a bailor and bailee, or akin to that of a bailor or bailee. At the worst, the Post Office is a stranger, and the owner has all rights against the Post Office that he has against any other person.
(2) Whatever be the relationship, the proprietary remedy of conversion or of injury to reversionary interests is available to the owner-(who may be the sender or addressee) if the articles have a pecuniary value.
(3) The remedy of detinue is available to the owner (who may be the sender or addressee), for all articles.
(4) Further, in the case of articles having mainly literary or sentimental value, destruction of the article [under section 23(3), for example] would perhaps amount to interference with literary property; opening of the article would often amount to a breach of confidence; and even where no question of literary property or confidence is involved, the law may in future recognise and protect other interests, so that interference may become actionable.
Regarding literary property, it may be noted that while destruction of a literary work does not seem to have so far figured in any reported case, this is because there is only a partial understanding of literary property. As has been observed1-
"Much of the difficulty surrounding the concept of copyright arises from the fact that while it protects economic rights, the concept of property involves rights other than economic rights. Copyright is unique because it is special form of intangible property and should be limited to economic rights. But it is a derivative right, being derived from the larger property interest an author has in his works.
As it exists today, the derived right destroys the larger property interest, but if the larger interest is recognised, the result is that literary property has two component parts-a commercial right and a creative right. Since one is primarily economic in nature and the other primarily personal in nature, they provide both a basis for delineating problems of literary property, and a framework for resolving the problems in terms of purpose without resort to technicalities."
1. Patterson Statute of Anne, (1966) 3 Harvard Journal of Legislation 223, 252 (February, 1966).