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TMI Blog1927 (8) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... elivered to the plaintiff at Honawar harbour. The company's bill of lading was sent by the plaintiff's dalal to the plaintiff. The plaintiff presented it to the company at Honawar, and got delivery of all the goods except the suit cask of nails. The plaintiff then called on the company to deliver the suit cask. The answer was; "it was lost over-board in unloading through an accident due to the ship rolling, and we are not liable under the terms of our contract contained in the bill of lading." 2. The plaintiff nevertheless brought his suit. The trial Court held that the loss was due rather to an incident of the sea than to an accident of the sea, and that accordingly one particular clause in the bill of lading did not pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng and the consignee claims the goods under that bill of lading, yet unless the shipowners can show that the consignee expressly authorised his shipping agent to accept the terms in the bill of lading, the consignee is Hot bound. In other words, the consignee may accept the carriage of the goods, but he is not bound by the special conditions of carriage unless his broker has been authorised to assent to them, and has in fact assented to them, and the consignee has assented to them. 6. Now that view is in the teeth not only of mercantile custom, but also of the statute which has been in force ever since 1856. I refer to the Bills of Lading Act, 1856. There Section 1 provides:- Every consignee of goods named in a bill of lading ... shall h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a forgery, and none the less so because apparently there was no cross-examination. But we decide the case irrespective of that, and solely on the evidence that was actually before the Court. 9. Similarly, we say nothing as to whether the lower Courts were correct in thinking that this was an incident of the sea, and not an accident of the sea, and also in holding that there was any negligence whatever by the shipping company in what happened in the present case. Their findings of fact on this point we must of course, and we do, accept. 10. I must too guard myself against any suggestion that a shipping company has only to produce a duplicate of the bill of lading to a consignee, and the latter is then bound to accept the bill of lading a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iability In this respect there is a marked contrast under Section 152. But there it is expressly provided that in the absence of any special contract the bailee is not liable for the loss if he has taken the amount of care described in Section 151. As far as the Indian Carriers Act is concerned ,that does not, I think, apply to carriage by sea. I exclude of course inland navigation There is some difference of opinion in certain High Courts as to whether the bailment sections of the Indian Contract Act apply to carriage by sea. But in Sheik Mahamad Ravuther v. The British India Steam Navigation, Co Ltd. I.L.R. (1908) 32 Mad. 95 the point now raised was considered, and Sir Arnold White and Mr. Justice Wallis, as he then was, held that "I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oint and to various other decisions, many of which are difficult to reconcile either with the Privy Council decision or as between themselves, it might well be desirable to refer the point to a Full Bench notwithstanding the small amount of money that is involved here. I need only refer to the notes to Section 115 in Mulla's Civil Procedure Code to illustrate what I mean. But in Bombay there are decisions which are binding on this Division Bench to the effect that in the old Bombay Regulation No. II of 1827, Ch. I, Section 5, Sub-section (2), we have certain supplemental powers which we are entitled to exercise. That sub-section runs: "It shall also be competent to the said Court, to call for the proceedings of any subordinate Civi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntinue still in force by virtue of Section 106 of the Government of India Act. 20. Mr Justice Shah says (p. 59):- Evan assuming that the case is not covered by Section 116, I think it would clearly be covered by the words of the second clause of Section 5 of Bombay Regulation II of 1827. Though the Regulation on this point is repealed, this Court still retains the power under the statutes, which the Sadar Devanni Adawlat had under the said repealed clause. 21. Then as regards the Government of India Act, 1915, in addition to Section 106 which Mr. Justice Coyajee referred to, I may mention Section 130 which provides that the repeal was not to affect "the validity of any law, charter, letters patent,...rule...order, regulation,...und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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