TMI Blog1891 (7) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... can be supported. 3. For the present purpose it is not material to inquire how it was that the common law of England came to govern the duties and liabilities of common carriers throughout India. The fact itself is beyond dispute. It is recognized by the Indian Legislature in the Carriers' Act, 1865, an Act framed on the lines of the English Carriers' Act of 1830 (11 Geo. IV. and 1 Wm. IV., c. 68). 4. The preamble of the Act of 1865 recites that, It is expedient not only to enable common carriers to limit their liability for loss of or damage to property delivered to them to be carried, but also to declare their liability for loss of or damage to such property occasioned by the negligence or criminal acts of themselves, their servants, or agents. The Act defines a common carrier as a person, other than the Government, engaged in the business of transporting for hire property from place to place, by land or inland navigation, for all persons indiscriminately, and it includes under the term person any association or body of persons, whether incorporated or not. Section 3 declares that no common carrier shall be liable for the loss of or damage to property deliver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1872, recites that it is expedient to define and amend certain parts of the law relating to contracts. Section 1 repeals the enactments mentioned in the schedule, among which the Carriers' Act, 1865, is not included, and then proceeds as follows: But nothing herein contained shall affect the provisions of any Statute, Act, of Regulation not hereby expressly repealed, nor any usage or custom of trade, nor any incident of any contract not inconsistent with the provisions of this Act. Their Lordships may observe in passing, and indeed it was admitted by the learned Counsel for the appellants, that the words not inconsistent with the provisions of this Act, are not to be connected with the clause nor any usage or custom of trade. Both the reason of the thing and the grammatical construction of the sentence--if such a sentence is to be tried by any rules of grammar--seem to require that the application of those words should be confined to the subject which immediately precedes them. 6. Chapter IX of the Act of 1872 treats of bailments. Section 148 defines bailment in words wide enough to include bailment for carriage. Sections 151 and 152 are in the following terms: 151 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t extent in the hands of the Government, and it will be remembered that the Government is excepted from the definition of a common carrier in the Act of 1865. The Act of 1879, which is now repealed, declared that nothing in the Carriers' Act, 1865, should apply to carriers by railway. But it did not negative the application of the common law of England to such carriers. In Section 10 it spoke of the obligation imposed on a carrier by railway by the Indian Contract Act, 1872 . It did not, however, declare that that obligation was to be the measure of the liability of carriers by railway, but only that their liability was not to be reduced below that limit except in a specified manner. It may be that Section 10 was so expressed, in view of the decision of the High Court of Bombay which had been pronounced in the preceding year, and it may be that the Legislature then assumed that decision to be correct. But, however that may be, the section is much too obscure in meaning to throw any light on the present question. 10. Notwithstanding the able arguments of the learned Counsel for the appellants, it seems to their Lordships that there are several considerations, not all of equa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1872, it is to be observed that the Act of 1865 is not merely left unrepealed by the later Act. As it is not expressly repealed , nothing in the Act of 1872 is to affect its provisions . It seems a strange thing to say that the provisions of an Act are not affected, when the whole foundation upon which the Act rests is displaced, and almost every section assumes a different meaning, or comes to have a different application. Moreover, there is certainly one provision in the Act of 1865 which is deprived of much of its original significance, and, so far at least, is rendered nugatory, if the appellants' view is correct. The combined effect of Sections 6 and 8 of the Act of 1865 is that, in respect of property not of the description contained in the schedule, common carriers may limit their liability by special contract, but not so as to get rid of liability for negligence. On the appellants' construction the Act of 1872 reduces the liability of common carriers to responsibility for negligence, and consequently there is no longer any room for limitation of liability in that direction. The measure of their liability has been reduced to the minimum permissible by the Act of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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