Report No. 38
34. Position apart from statutory provisions.-
It would be an interesting inquiry to man as to what would be the position of the Post Office apart from statutory provisions. The following points may be made:-
(i) The Post Office is not perhaps a or common carrier" as known to the common law.1-2 Therefore, the common law rule of absolute liability of a carrier (with certain qualifications) may not apply to the Post Office.
(ii) The Post Office is not (apart from V.P.P, and insured articles) a bailee by contract, because, (apart from V.P.P. and insured articles), it does not receive any consideration from the sender, and what it receives is merely a statutorily fixed fee. It is, of course, possible to argue, that such fee is the consideration for carrying all kinds of postal articles, but the position3 is not very clear as to how far there is a contract. If there is no contract, the Post Office is not a bailee, by contract, because bailment requires delivery of goods "on contract" under the Indian Contract Act.4 Hence the obligation of a bailee to take as much care of the goods as a man of ordinary prudence would take of his own goods5, may not apply. It must, however, be noted, that in an English case-the Winkfield-the Postmaster-General has been held to be entitled to sue for damages for loss of malls due to collision, of ships caused by the defendant's negligence6-7, apparently as a bailee in possession8-9
Winfield gives this summary of the case10:-
"When conversion of a thing bailed is committed by a third person (i.e., one who is neither bailor nor the bailee), the bailee can recover the full value of the thing from the third party, although he (the bailee) would have a good answer to the bailor if he were sued for the loss of the chattel. Thus, in the Winkfield,11 mails were lost in a collision, between ships one of which was carrying the mails. Now, the Postmaster-General was not liable to the senders of the letters and parcels for their loss. Yet he was held entitled to recover their value from the owners of the ship responsible for the accident. But he was also bound to pay to the bailors any excess above his own interest and this "serves to soothe a mind disconcerted by the notion that a person who is not himself the complete owner should be entitled to receive back the full value of the chattel converted or destroyed."12.
(iii) The Post Office is not an "involuntary bailee". It gets possession by choice13.
(iv) Since, however, the Post Office professes to accept goods of a certain description for conveyance to the addressee, it must be regarded as standing in some position akin to a bailee14. As a matter of fact, there is one view, that a bailment can exist independently of contract15. But, apart from that, a person who receives goods knowingly, and for certain service to be performed thereon, cannot remain absolutely without legal obligation.
On this reasoning, the duty to take reasonable care may arise, and an action may lie in tort irrespective of contract. The relationship existing between the sender and the Post Office, and the nature of the service performed by the Post Office (apart from statute), might impose on the Post Office the obligation to take reasonable care of the goods16. This is nearest to the position of a private carrier, i.e., a carrier who is not a common carrier.
(v) The discussion may appear to be academic in view of the express, provisions of section 6. But it is useful to bear these points in mind, in order to appreciate how section 6 has changed the rules that could otherwise have prevailed.
1. Cf. section 2, Carriers Act, 1885, which, while defining "common carrier", excludes the Government.
2. See also Lane v,. Cotton, (1701) 1 Ld. Raym 646, where it was held that the Postmaster-General is not a common carrier. in that case, he was held not liable for the loss of Exchequer Bills in the post, though there was a powerful dissent of" Holt C.J. See Winfield, Selected Legal Essays, (1952), p. 36.
3. See paras. 24-30, supra.
4. Section 148, Indian Contract Act, 1872.
5. Section 151, Indian Contract Act, 1872.
6. See the Winkfield, (1902) Probate 421 (1900-1903), All Eng. Reports Reprint 346, 349 (CA).
7. Street Torts, (1959), p. 35.
8. See Halsbury, 3rd Edn., Vol. 30, p. 176, footnote (m), and Vol. 2, p. 144.
9. Also see Winfield Tort, (1963), p. 52.
10. Winfield Tort, (1963), pp. 545-546.
11. The Winkfiled, (1902), Probate 42, overruling Claridge v. South Staffs Transway Co., (1892) 1 QB 422; see Holdsworth History of English Law, p. 448 et. seq., for the history of the matter.
12. Collins M.R, in The Winkfield, (1902), Probate 42, 60.
13. As to involuntary bailees, see Winfield on Tort, (1963), p. 5321; Halsbury, 3rd Edn., Vol. 2, p. 98, para. 1971; Burnett "Conversion by an Involuntary Bailee", (1960) 76 LQR 364.
14. Compare the discussion by Lord Denning in the case cited in para. 29, supra.
15. Winfield on Tort, (1963), p. 7 citing his "Province of the Law of Tort", (1931), pp. 97-99.
16. As to the theory that there is a general conception of the relations giving rise to a duty of care, see Lord Atkins's judgment in Donoghue v. Stevenson, 1932 AC 562, and the discussion in (1953), Current Legal Problems, 236, 238.
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