Case: The River Steam Navigation Co., Lt.D Vs. Shyam Sundar Tea Co., Ltd

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 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. 10. 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. 11. 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 profits to make up for the loss in feeder service. 12. The circumstance that there was no regular 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 ((1869) L.R., 4 H.L. 226 at. 237.) : 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 shouldnot charge any more than was reasonable. 13. 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. 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. 14. 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 plaintiffs goods from Dillibari. 15. 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 Dillibari.All the contentions raised in the appeal therefore fail.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 Courts findings that the plaintiff has not been able to establish its case of any negligence on the part of the defendants agentsThis 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 requestsIf 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 serviceThe circumstance that there was no regular 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.All that the law required was, that he shouldnot charge any more than was reasonableThat 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 DillibariIf 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 irrelevantOn 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 plaintiffs goods from DillibariIn 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 Dillibari.All the contentions raised in the appeal therefore fail.