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TMI Blog1910 (7) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... ro then at Madaripur. The jute was shipped by G.R. Chakraverty Co., for delivery to Landale and Morgan or the carriers' Calcutta agent at the Mill of the Ganges Manufacturing Company Limited, to whom I will hereafter refer as the Manufacturing Company. On the 5th of March 1908, the British and Foreign Marine Insurance Company, to whom I will hereafter refer as the Insurance Company, in accordance with a previous letter of cover issued a policy of insurance for Rs. 27,915, in respect of the jute in favour of the Manufacturing Company to whom the bill of lading had been endorsed. The flat Lemro with the jute on board caught fire and had to be scuttled with the result that the jute was lost. On the 23rd of May 1908, the Insurance Company paid the Manufacturing Company Rs. 27,915 under the policy, and they claim by right of subrogation to recover this amount from the Carrying Company. It is to enforce their claim that this suit has been brought by the Insurance Company, and the Manufacturing Company. Harington J., has held in favour of the Carrying Company and dismissed this suit. Hence this appeal. 4. Before attempting to determine the rights of the parties as defined by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f his agents or servants. 7. This then being the nature of a common carrier's liability it now becomes necessary to see how far it has been limited by special contract in this case. 8. The jute, as I have already said, was shipped by G.R. Chakraverty Co., and on the 25th of February 1908, a bill of lading was issued in which G.R. Chakraverty Co. were stated to have shipped the jute in the flat Lemro then at Madaripur, and it was further stated that the jute was received subject to the conditions endorsed thereon to be delivered for and on account of and at the risk of the shipper to Landale and Morgan or to the Carrying Co.'s agent at Calcutta Ganges Manufacturing Co.'s jute mill or as near there to as the state of the river might permit. 9. By the 5th condition it is provided that-- The Company will not be liable for the loss of or damage to any property delivered to them to be carried unless such loss or damage shall have arisen from the negligence or criminal act of their servants or agents. ' 10. This bill of lading was endorsed to the order of the agents Ganges Mill by Landale and Morgan. What the relations were between the shippers and the Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the inference that he was acting for the Manufacturing Co., or that the jute was bought by that Company unshipped. Moreover, this jute was despatched from Madaripur, and not from one of the ports specified in the agreement, and there is not a word on the record of this case, to show that this agreement was extended to jute from Madaripur. It is true that the learned Judge says otherwise; but he must have had in mind what was proved in another case. Further than this the jute was shipped at a rate other than that stipulated in this agreement. There is thus an initial difficulty in the way of applying the terms of agreement to this jute But I will pass that by and consider what is the legal effect of these two documents. Clause 5 of the Bill of Lading contemplates that the Carrying Co. shall be liable for loss arising from the negligence or criminal acts of servants or agents. Clause 10 of the agreement according to the reading proposed by the Carrying Co. is designed to protect them against loss so originating. There is, therefore, here a conflict, but the Carrying Co, would compose it by applying the terms of Section 17. of the Bill of Lading. That, however, only applies when th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany but also against liability to any endorsee of the bill of lading, and this though the liability might arise from a loss occasioned by a criminal act of the Carrying Company, its agents or servants. There is nothing on the record to show that the Manufacturing Company had power to make any such: contract, but apart from that I think this contention must fail. It is true that the agreement of the 23rd of May 1906 is not a bill of lading, but it is a contract between common carriers and intending shippers and Clause 10 is not an independent contract of indemnity but an integral part of this contract as to carriage and must be so construed. Indeed if it were an independent contract in the sense for which Mr. Mitter contends then this would seem in itself to furnish an answer to the Carrying Company's contention that it is not liable in this suit, but this I need not elaborate. The rule of construction which limits the operation of a clause of exemption is based on no technicality but on sound policy and so it is pointed out by Willes, J., in Czech v. G.S.N. Company (1867) L.R. 3 C.P. 14 : 37 L.J.C.P. 3 : 17 L.T. 246 : 16 W.R. 130 that it is consistent with the views of the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solely with loss so originating that I am concerned. I say that it is with loss so arising that I am concerned as in the absence of evidence to the contrary Section 9 of the Carriers Act of 1865 would apply. 17. Does it then make any difference that the Insurance Company is the real claimant. 18. The suit is brought by the Insurance Company and the Manufacturing Company. This is wrong. The Insurance Company claim by way of subrogation and not of assignment so that they had no right to sue in their own name and the suit could only be brought in the name of the Manufacturing Company. I need hardly say that the plea raised in paragraph 12 of the written statement is wholly misconceived and is in fact a complete reversal of the true position. What then is the position of an insurer who relies or the principle of subrogation. It is thus described by Lord Blackburn in Burnand v. Rodocanachi (1882) L.R. 7 A.C. 333 : 51 L.J.Q.B. 548 : 47 L.T. 277 : 31 W.R. 65 : 4 Asp. M.C. 576: The general law (and it is obvious justice) is that where there is a contract of indemnity (it matters not whether it is a marine policy or a policy against fire on land Or any other contract of indemnity) an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported. These words were necessary to protect the Manufacturing Co. against the possibility of an objection by the Insurance Co. that there had been a concealment of the exemption in favour of the Carrying Co. to the extent I have already indicated: but I can see no reason for reading them as equivalent to a relinquishment by the Insurance Co. in respect of risks not so exempted. In that view there would not be a relinquishment of claims where the loss has arisen from negligence of the Carrying Co. its agents or servants. It, therefore, becomes unnecessary for me to discuss whether, if the words bore the meaning for which the Carrying Co. argue, is would be open to that Company to rely on them seeing that they are not parties to the contract in which the words are contained or the arguments in, this connection urge on behalf of the Carrying Co. on the strength of what was said by Mathew. J., in Thomas. Co. v. Brown 4 C.C. 188. 23. I have now dealt with all the points urged before us for though it was unsuccessfully contended before Harington, J., that the Carrying Co, had not received the notice prescribed by Section 10 of the Carriers Act, the contention was expressly abandon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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