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TMI Blog1938 (3) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... lost. There is no suggestion that they were lost through any dishonest action on the part of the defendants. Nobody knows how they were lost, but the presumption is that they were stolen. At any rate they were lost, and the plaintiffs sued for damages for the loss of those three bars. The learned Judge held upon the facts that the defendants were guilty of negligence in the manner in which they kept the bars. I do not think that point can be seriously disputed. The defendants kept the bars, with a number of other bars, in their pedhi in Bombay, placed against the wall, the pedhi being open. They were not locked up in any way. The defendants say that the pedhi was never left without somebody being present, there was always either a servant o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts in acknowledging these telegrams reported that the bars had been purchased and "kept here at your risk." The learned Judge treated the contract between the parties as a contract in which the bars were retained by the defendants at the risk of the plaintiffs, but he held that the words "at your risk" were not enough to absolve the defendants from the act of negligence which resulted in the plaintiffs' loss. If I agreed with the learned Judge as to the nature of the contract between the parties, I should not be prepared to accept his view as to its legal effect. But, in my opinion, the contract between the parties was not a contract to keep the bars at the risk of the plaintiffs. The offers contained in the telegra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of Sheik Mohamad Ravuther v. The British India Steam Navigation Co., Ltd. I.L.R. (1908) Mad. 95., held that it was open to a bailee to contract himself out of the obligations imposed by Section 151, and I feel no doubt whatever that that view is correct. The Act does not expressly prohibit contracting out of Section 151 and it would be a startling thing to say that persons sui juris are not at liberty to enter into such a contract of bailment as they may think fit. Contracts of bailment are very common, although they are not always called by their technical name. I can see no reason why a man should not be at liberty to agree to keep property belonging to a friend on the terms that such property is to be entirely at the risk of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n respect of negligence, any contract excluding liability must apply to acts of negligence because there is nothing else on which it can fasten. Had I therefore taken the same view as the learned Judge as to the nature of the contract between the parties, I should have said that the defendants have contracted themselves out of their liability as bailees. But, in my opinion, the true contract between the parties was that the defendants were to hold the bars for a reasonable trine as ordinary bailees, and it was not open to the defendants to alter the contract until a reasonable time had expired, and they never suggested that a reasonable time had expired. In my opinion, therefore, the appeal fails and. must be dismissed with costs. H.J. Kan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the very commencement they had kept the bars at the risk of the plaintiffs. They can so intimate after the expiry of a reasonable time. The additional term was his offer which had never been accepted. There being no obligation to repudiate the additional term, no question of acquiescence to form a later contract arises. That case has not been set out in the written statement and was not even suggested by defendants' witness. On that ground the appeal must fail. 5. It is not necessary for me to express an opinion as to the meaning of the words "at your risk" used in the particular circumstances of this case or the extent to which McCawley v. Furness Railway Co. (1872) L.R. 8 Q.B. 57 or Rutter v. Palmer [1922] 2 K.B. 87 would ..... X X X X Extracts X X X X X X X X Extracts X X X X
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