Madras High Court
Carborundum Universal Ltd. And Anr. vs The Trustees Of Port Of Madras on 8 July, 1993
Equivalent citations: (1994)1MLJ133
JUDGMENT Mishra, J.
1. Second and third plaintiffs in C.S. No. 109 of 1973 have preferred this appeal invoking Clause 15 of the Letters Patent of this Court, against a judgment by a learned single Judge of this Court, under which he has held that the plaintiffs have failed to prove their case. The first plaintiff in the suit Erilon Insurance Company Limited however, has not joined as a party in the appeal. The second plaintiff, it is not in dispute, placed an order with M/s. Carborundum Company. Niagara Falls. New york, for purchasing fused silicon carbine synthetic abrasive grains, silicon carbide and mullite grains and pursuant to the said order, 104 pellets, containing 2078 bags of the said commodity were entrusted by the American company to the first defendant respondent, that is, American Export Inbrandtsen Lines INC for shipment from Newyork to Madras. The ship "S.S. Flying Cloud" belonging to the shipper-company, it is not in dispute, arrived at Madras port on 5.8.1971. The goods were discharged from the ship on 5.8.1971 and 6.8.1971. The condition of the goods and the bags in which the goods were discharged were duly recorded in the import manifest and the tally-sheets, the latter exhibiting discharge of a total number 1925 bags. Out of this number, 485 bags were noted in the tally-sheets as cover-torn and contents falling out. On 9.8.1971, sixty bags were cleared from the Port Trust godown in the wharf, where they were kept after discharge from the ship and taken to the warehouse of the American Company, which was situated in the harbour premises. On 10.8.1971 again 1120 bags were cleared and taken to the American Company's warehouse. According to the plaintiffs, the second plaintiff, who had the bill of entry noted with the customs authorities after complying with all prerequisite formalities, approached the second defendant, that is to say, the Port Trust for the delivery of the cargo, which was offered on 11.8.1971 and they found that the consignment was lying at the Madras Harbour in damaged condition. They applied for a ship survey of the consignment and got a survey held on 11.8.1971 and 12.8.1971atN.lwarehouse, Madras Harbour, by the first defendant's surveyors M/s. Ericson and Richards. The surveyors certified that a total of 898 bags were damaged and gave the details of the damage in their survey report dated 21.8.1971. At the instance of the first plaintiffs a survey was also held by K.O. Massey, surveyor and after the survey, the bags were cleared to the second plaintiffs godown in Madras Harbour on 11.8.1971 and 13.8.1971. The result of the survey revealed that there were 115 empty bags and that there was a total shortage of 20820 kilograms of the silicon carbine.
2. The plaintiffs estimated the loss, and called for the remarks list relating to the landing of the suit consignment into the custody of the second defendant, who stated that the subject consignment was not receipted as pellets and 1925 under the marks were tallied, out of which 485 bags were noted as "cover torn" and "contents falling out". The second-plaintiffs preferred a claim with the first defendant on 16.9.1971, which the first defendant repudiated. On 10.2.1972, a notice under Section 110 of the Madras Port Trust Act, 1905 was issued claiming the loss suffered by the plaintiff, which notice the second defendant did not answer.
3. The plaintiffs thus have pleaded, The plaintiffs state that if it is proved that the said damage and loss occurred before landing then the same would be due to the negligence and misconduct on the part of the first-defendant and on account of their failure to take care of the said consignment as required of them by law. In that event, the first defendant would be absolutely liable to pay the above amount to the plaintiffs. Alternatively, if the damage had occurred subsequent to the delivery of the cargo into the custody of the second-defendant, they would be liable as if they were bailees under the provisions of the Madras Port Trust Act, 1905.
The plaintiffs further state that the condition of the cargo at the time of the delivery into the custody of the second-defendant and the manner in which the cargo was handled while it was in the custody of either of the defendants was entirely within their knowledge and the plaintiffs at this stage are not in a position to state which of the defendants are liable for the damage to the said consignment and hence both the defendants are impleaded so that their respective liability for the suit claim may be determined.
4. The second-defendant-respondent alone has contested the suit. It has stated in its written statement that the cargo in question, there are circumstances stated in the written-statement, was damaged while it was on board the vessel before landing at Madras and before it reached the custody of the second-defendant; no notice of survey was given to this defendant and as such it was not aware of the survey conducted either by M/s. Erickson and Richards on 11.8.1971 and 13.8.1971 or by K.G. Massey on 18.8.1971; this defendants" specific plea, however, has been.
This defendant states that before taking delivery of the consignment it is open to the plaintiff to have asked the Port Trust to hold a survey. The Plaintiff did not choose to make a request to this defendant to hold a survey. On the other hand, the plaintiff took delivery of the consignment without any protest or objection. As no notice of loss or damage to the goods was brought to the notice of this defendant prior to the clearance of the cargo no responsibility for alleged loss or damage to the goods shall attach to this defendant in terms of bye-law 31 of the Port Trust bye-laws.
5. Since the contesting defendant-respondent raised a plea of notice of loss or damage to the goods under bye-law 31 of the Port Trust Bye-Laws, the plaintiffs raised a question as to the ultra vires of the bye-law and it appears in the trial court that became the main contention of the contesting defendant. The trial court framed two issues with respect to bye-law 31, namely (1) Whether bye-law 31 of the Port Trust is ultra vires the Madras Port Trust Act, 1905? and (2) Whether the second defendant is not liable under bye-law 31 of Bye-Laws of the port trust? The trial court has answered these issues by holding at one place that copies of Exs. P-13 and P-17 were marked to the Port Trust and received in the office of the Traffic Manager; but, according to it since it did not convey to the Traffic Manager the information about the survey, the time and the venue, it was not enough and the rule and bye-law accordingly was not complied with as well as that the bye-law was not ultra vires to the provisions of the act. On the proof of damage while goods were in the custody of the second-defendant, however, the trial court has said that the plaintiffs have failed to establish their basic claim that any number of bags were damaged while in the custody of the Port Trust. The trial court has also said.
I would be acting wholly in the absence of evidence, if I were to hold that any part of the bags which were in the custody of the Port Trust after they were discharged from the ships side, did become empty or become otherwise damaged. There is no evidence, at all, in this regard. I must, therefore, reject the claim of the plaintiffs....
6. The Madras Port Trust Act, 1905 (Madras Act 2 of 1905), which has been amended from time to time has specific provisions as to works and services, one such provision being Section 39 thereof, which reads as follows:
39(1). The Board shall, according to its powers, provide all reasonable facilities for and shall have power to undertake the followings services.
(a) Landing, shipping or transhipping passengers and goods between vessels in the port and the wharves, piers, quays or docks in possession of the board;
(b) Receiving, removing, shifting, transporting, storing or delivering goods brought within the Board's premises;
(c) Carrying passengers by rail, tramway or otherwise within the limits of the port, subject to such restrictions and conditions as the Central Government may see fit to impose; and
(d) Receiving and delivering, transporting and booking and despatching goods originating in the vessels in the port and intended for carriage by the neighbouring railways, or vice versa, as a railway company or administration under the Indian Railways Act, 1890.
(2) The Board shall, if so required by any owner, perform in respect of goods all or any of the services mentioned in Clauses (a), (b) and (d) of Sub-section (1), provided that the board shall not be bound to perform any service which it has relinquished under the provisions of Clause (a) of Sub-section (1) of Section 41-A. (3) The board shall, if required, take charge of the goods for the purpose of performing the service and shall give a receipt in the form and to the effect prescribed from time to time by the Central Government.
After any goods have been taken charge of and a receipt given for them under his section, no liability for any loss of damage which may occur to them shall attach to any person to whom a receipt shall have been given or to the matter or the owner of the vessel from which the goods have been landed or transshipped.
After introducing the Board of the Trust for rendering services as to landing, shipping or transhipping passengers and goods between vessels in the port and the wharves, piers, quays or docks in possession of the board, receiving, remitting, shifting, transporting, storing or delivering goods brought within board's premises etc., when it has prescribed how the board shall take charge of the goods for the purpose of performing the services, it has specified that after any goods have been taken charge of and the receipt given for them, no liability for any lossor damage, which may occur to the goods, shall attach any person to whom a receipt shall have been given or to the matter or the owner of the vessel from which the goods have been landed or transhipped. The starting point of the liability of the Board of the Trust for any toss or damage, which may occur to the goods, therefore, is the time at which it gives a receipt in the form and to the effect prescribed from time to time by the Central Government that it has taken charge of the goods for the purpose of the services. Section 40, however is the provision that determines the character of the liability, saying.
40(1). The responsibility of the board for the loss, destruction or deterioration of goods of which it has taken charge shall, subject to the other provisions of this Act and subject also in the case of goods received for carriage by railway to the provisions of the Indian Railways Act, 1890, be that of a bailee under Section 151, 152 and 161 of the Indian Contract Act, 1872, omitting the words 'in the absence of any special contract' in Section 152 of the last-mentioned Act, provided that, till the receipt mentioned in Sub-section (3) of Section 39 is given by the Board, the goods shall be at the risk of the owner.
2. The board shall not be in any way responsible for loss of or damage to goods of which it has taken charge, unless notice of such loss or damage shall have been given within one month of the date of the receipt given for the goods under Sub-section (3) of Section 39.
The liability of the board of the trust thus is that of a bailee under Sections 151, 152 and161-of the Indian Contract Act omitting the words 'in the absence of any special contract' in Section 152 thereof. It starts "when the receipt under Sub-section (3) of Section 39 is issued and continues until delivery of the goods to the owner or to any person as directed by the owner. If by the default of the bailee, the goods are not returned, delivered or tendered at the proper time, he is responsible to the bailor for any loss, destruction or deterioration of the goods from that time. The bailor being the person delivering the goods, but if a person already in possession of the goods of another, contracts to hold them as a bailee, he becomes the bailee and the owner becomes the bailor of such goods, although they may not have been delivered by way of bailment. In other words, thus there can hardly be any doubt as to the liability of the respondent-port-trust as that of a bailee under Sections 151, 152 and 161 of the Indian Contract Act, omitting the words 'in the absence of any special contract' in Section 152 thereof. But, Sub-section (2) of Section 40 creates an obligation that this liability of the board shall seize unless notice of loss or damage is given to it within one month of the, date of the receipt given for the goods under Sub-section (3) of Section 39. The Board's liability thus shall be limited to a period of one month from the date of the receipt given for the goods under Sub-section (3) of Section 39, unless a notice of loss or damage is served upon it within the said period. After such notice is served, the liability will continue and the Board shall be answerable for the loss or damage to the goods in its custody from the date of the receipt under Sub-section (3) of Section 39 of the Port Trust Act.
7. The Trustees of the port, who constitute the board and who, it is not in dispute, constitute a statutory authority, have a limited legislative function assigned to them under Chapter XI of the act, Section 95 gives to the board the power to make bye-laws not inconsistent with the provisions of the Act or of the Indian Ports Act, 1905 generally for carrying out the purposes of the Act and for the guidance of persons employed by the board, for the safe and convenient use of the docks, wharves, quays, jetties, sheds, warehouses, railways, tramways, and other works constructed by the Board or vested in the board; for the use of the public lending places constructed by or vested in the Board; for the reception, porterage, shortage and removal of goods brought within the premises of the Board and for the exclusive conduct of these operation by the Board or persons; employed by the Boards; for keeping clean the harbour and basins and the works of the Board, and for preventing filth or rubbish being thrown therein or thereon; for the mode of the payment of the rates leviable under the Act; for regulating, declaring and defining the docks, wharves, quays, jetties, stages and piers vested in the board, on which goods shall be landed from vessels and shipped on board vessels for regulating the lightaroge of cargo between ships or between ships and shore, between shore and ships; for the exclusion from its premises of disorderly or other undesirable persons and of trespassers. It is obvious that for none of the specified purposes for which bye-laws can be framed by the Board cover a notice by the bailors or the owner of the goods, except if it is shown that for carrying out the purpose of this act any such bye-law is framed. These bye-laws, Section 96(1) lays down, are required to be approved by the Central Government and no bye-law or alteration or revocation of a bye-law, Sub-section (2) to Section 96 says, shall be approved by the Central Government until the same has been published for two weeks successively in the Official Gazette and until fourteen days have expired from the date on which the same had been first published in that Gazette. It seems to remove, however doubts whether, in exercise of the subordinate legislative power, the board could prescribe penalties or not, Section 97 of the act has a clear mandate that the Board may in such bye-law prescribe such penalties as it shall does fit for the infringement of the same, provided that no penalty for any one infringement of a bye-law shall exceed Rs. 100 nor in case of a continuing infringement, shall any penalty exceed fifty rupees per diem for every day after the first during which such infringement continues. In exercise of the power to frame bye-laws, it is said, the Board has made a prescription as to liability of the Port Trust or the Board for loss or damage or deficiency in respect of the goods removed from its premises or ship, as the case may be, in these words liability of the Port Trust for the loss or damage in respect of premises or ships as the case may be, the Port Trust shall not be answerable or liable for any loss or damage or deficiency whatever unless the same is brought to the notice of the Traffic Manager in writing and is ascertained previous to the removal of the goods from the Harbour premises or shipment, as the case may be. Learned Counsel for the appellants has contended that the Board's framing a bye-law to the effect that unless a notice is given to the Traffic Manager in writing of loss or damage or deficiency and it is ascertained by him (the Traffic Manager) previous to the removal of the goods from the harbour premises or shipment, as the case maybe, may be justified in the circumstances that the Board should identify some officer to receive intimations as to damage loss or deficiency and that officer is authorised to ascertain the loss or damage or deficiency before the goods are removed from the harbour premises or shipment, as the case may be, but its assumption that it shall not be answerable or liable for any loss or damage or deficiency whatever unless the notice is given to the Traffic Manager in writing and unless he ascertained the loss or damage or deficiency of the goods previous to the removal from the harbour premises or shipment, as the case may be, is ultra vires the act, in particular Sections 39 and 40 thereof. According to him, such a subordinate legislation introduced with the sole object of carrying out the purposes of the Act, cannot be used for creating any statutory limitations upon the bailors or the owner's right to sue the bailee for any loss or damage or deficiency a right which is dully recognised under Sections 151, 152 and 161 of the Indian Contract Act, 1872 and by Section 40(1) it is applied to the Port Trust Board, subject to the provisions of the Act and subject also in the case of goods received for carriage by a railway to the provisions of the Indian Railways Act, 1890 and by omitting the words 'in the absence of any special contract' in Section 152 of the Indian Contract Act, provided that, till the receipt, mentioned in Sub-section (3) of Section 39, is given by the Board, the goods shall be at the risk of the owner and that a notice of such loss or damage is given within one month of the date of the receipt given for the goods under the subsection of Section 39. Learned Counsel for the contesting respondent has, however, stated that the notice to the Traffic Manager previous to the removal of the goods is introduced to provide to the Port Trust opportunity to examine whether any claim of loss or damage o* deficiency is genuine and if it is genuine to honour the same. Traffic Manager, who has to ascertain the loss or damage or deficiency, must do so before the goods are removed from the harbour premises or loaded in the ship, it is only on such intimation of the claimant that the Port Trust can act. Nothing is taken away by the bye-law which has been given by the Act and nothing additional is introduced, which would suggest infringement of any of the provisions of the Act.
8. In Trustees, Port of Madras v. Amimchand Pyarelal , the Supreme Court has said, A bye-law has been said to be an ordinance affecting the public, or some portion of the public, imposed by some authority clothed with statutory powers, ordering something to be done or not to be done and accompanied by some sanction or penalty for its non-observance.
This judgment has also noted, as stated in 'Craies on statute law' (7th Edition pages 325-326), bye-laws may be treated as ultra vires on the grounds, amongst others that they are repugnant to the statute under which they are made or that they are unreasonable.
9. In this judgment, the Supreme Court has particularly considered the Port Trust Rules and Bye-law making power and has said, In Kruse v. Johnson (1898) 2 Q.B. 91 at pages 98,99 as question was raised as to the validity of a bye-law made by a country council for regulation street music. Lord Russel of Killours observed in that case:
When the court is called upon to consider the bye-laws of public representative bodies clothed with the ample authority which I have described, accompanied by the checks and safeguards which I have mentioned. I think the consideration of such bye-laws ought to be approached from a different standpoint. They ought to be supported if possible. They ought to be, as has been said, benevolently interpreted, and credit ought to be given to those who have to administer them that they will be reasonably administered.
The learned Chief Justice said further that there may be, cases in which it would be the duty of the court to condemn bye-laws made under such authority as these were made (by a county council) as invalid because unreasonable. But unreasonable in what sense? If, for instance, they were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the court might well say, 'Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires'. But it is in this and in this sense only, as I conceive that the question of reasonableness or unreasonableness can properly be regarded. A bye-law is not unreasonable merely because particular judges may think that it goes further than is prudent or necessary or convenient, or because it is not accompanied by an exception which some judges may think ought to be there'.
In Slattery v. Maylor (1888) 13 A.C. 452 it was observed that when considering whether a bye-law is reasonable or not, the courts need a strong case to be made out against it and decline to determine whether it would have been wiser or more prudent to make the bye-law less absolutely, nor will they hold that it is unreasonable because considerations which the court would itself have regarded in framing such a bye-law have been overlooked or rejected by its framers.
In the first place, port trusts are bodies of a public representative character who are entrusted by the legislature with authority to frame a scale of rates and statement of conditions subject to which they shall or may perform certain services. Port Trusts are not commercial organisations, which carry on business for their own profit. Section 39(1) and (2) of the act cast on the Board an obligation, according to its powers, to provide all reasonable facilities, if so required by any owner, for various kinds of services mentioned in Clauses (a), (b) and (d) of Section 39(1). Which include services in regard to landing of goods between vessels and docks in possession of the Board and receiving storing or delivering goods brought within the Board's premises. The Board under Section 39(3) shall, if required, take charge of the goods for the purposes of performing the service. After the goods are thus taken charge of and a receipt given for them, no liability for any loss or damage which may occur to the goods attaches to any person to whom the receipt has been given or to the master or owner of the ship from which the goods have been landed. The responsibility of the Board for the loss, destruction or deterioration of goods of which it has taken charge is, under Section 40 of the Act, that of a bailee under Sections 151, 152 and 161 of the contract act, subject to some modifications. Thus the rates which the Board levies are a consolidated charge for the various services it renders and the liability which it is compelled by statute to undertake.
The Board of Trustees is a representative body consisting of 21 Trustees out of whom eleven are elected. The Collector of Customs, the Municipal Commissioner, the General Managers of Railways, a representative each of the Mercantile Marine Department and the Defence Services of the Central Government, and two representatives of labour are the other members of the Board. Out of the eleven elected trustees, one is elected by the Municipal Corporation and the remaining by provincial or local bodies representing commercial interests. The Board of Trustees is thus a broad based body representing a cross-section of a variety of interests. It is the Board thus constituted that frames the scale of rates and statement of conditions under which the services shall or may be performed by it. Every scale and every statement of conditions framed by the Board has to be submitted to the Central Government for sanction under Section 44 and it is only when it is so sanctioned that it has the force of law. The requirement of sanction by the Central Government is a restraint on unwise, excessive or arbitrary fixation of rates. Section 44(2) confers on the Board power, in special cases and for reasons to be recorded in writing, to remit the whole or any portion of rates or charges leviable according to any scale in force under Section 44. Thus, the statute provides for the necessary safeguards, checks and counterchecks as an insurance against fixation and levy of harsh or unjust rates.
Section l09of the Act provides that nothing in the act shall affect any power vested in the Chief Officer pf Customs under any law for the time being in force. Section 49 of the Customs Act 1962 confers power on the Assistant Collector of Customs, if he is satisfied on the application of the importer that the goods cannot be cleared within a reasonable time, to permit that the goods may, pending clearance, be stored in a public warehouse and if such a facility is not available, then in a private warehouse. This provision together with Section 44(2) of the Act constitutes a measure of mitigation. In face of these considerations, it is impossible to characterise the scheme for the levy of rates as arbitrary or unreasonable.
10. In Trustees, Port of Bombay v. Premier Automobiles , a Bench of a High Court of Bombay considered somewhat similar provisions of the Bombay Port Trust Act, Sections 61-A and 61-B of the Bombay Act are couched in almost the same language as Sections 39 and 40 of the Madras Act. The bye-law making power is found in Section 95 of the Madras Act and Section 73 of the Bombay Act. The bye-law referred to in the Bombay case was bye-law No. 80, framed under the Bombay Port Trust Act, which provided as follows:
The Trustees will not be answerable or liable for any losses or deficiencies in the goods unless they are acknowledged by the docks manager previous to the removal of the goods from the docks.
and another, the Trustees will accept no liability or responsibility whatsoever for loss or damages to goods unless notice of loss or of the damage alleged shall have been received prior to the shipment or delivery, as the case may be, Kothaval, C.J., speaking for the court, upon this has said, The next point which would throw light upon its provisions is to inquire why was it necessary to enact Section 61-B?
The Act was passed in 1879 and for the first 46 years of its existence the Act continued without any provisions such as Section 61-B. The reason why that section came to be enacted is clear if one considers the provisions of Section 61-A, Sub-section (1). That Sub-section provides that the Board shall, immediately upon the landing of any goods, take charge thereof, except as may be otherwise provided in the bye-laws, and store such as are liable in their opinion to suffer from exposure in any shed or warehouse belonging to the Board. By Section 61-A(1), therefore, the Board which is a statutory corporation is saddled with the authority duty to take charge of all goods as soon as they are landed in the Port of Bombay. It is curious that in the whole Act there is no provision for delivery of the goods to the proper parties and no obligation is cast upon the Port Trust Authorities to deliver the goods of which they take charge under Section 61-A(1) except perhaps of implication. It is clear that Section 61-A(1) was brought into force because it was necessary to legalise the possession of the Port Trust Without Section 61-A, the possession which the Port Trust takes of all goods which arrive in the Bombay Docks would be illegal and would make them liable as trespassers in respect of goods. Therefore, Section 61-A(1) puts the seal of legality upon the possession of the goods by the Port Trust; but having given them legal possession it was also necessary to provide for the safety, care protection and preservation of the goods while they were in the possession of the Board and to circumscribe their liabilities. After all, the Board was in possession of something which belonged to third parties namely the consignees and the law had given them the statutory power to take possession, compulsively. Therefore, the law had to provide that during the period of the statutory possession the goods should be safeguarded and also prescribe the limits of the Board's duty to safeguard. That is why Section 61-B was brought into force. In simple terms Section 61-B says that the responsibility of the Board for the goods shall be that of a bailee under Sections 151, 152 and 161 of the Indian Contract Act. Section 151 provides that in all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances take of his own goods of the same bulk, quality and value as the goods bailed. The standard of care imposed therefore is that of a man of ordinary prudence. Section 152 says that the bailee in the absence of any special contract is not reasonable for the loss destruction or deterioration of the thing bailed, if he has taken the amount of care described in Section 151. Therefore, so long as he takes that case which a man of ordinary prudence would take, the bailee is exonerated from the liability for loss, destruction or deterioration of the goods bailed to him. Section 152 reaffirms the same principle of liability but negatively. It says that if the bailee has taken that amount of care of the thing bailed as prescribed by Section 151 then the bailee is not liable for loss, destruction or deterioration. But this limit of liability in Section 152 is subject to the words 'in the absence of any special contract'. Thus, if the section by itself were to operate, the bailee may make a special contract, making himself liable for loss, destruction or deterioration of the goods even though he may have taken the same care as a man of ordinary prudence would, but in imposing the same liability upon the Port Trust Section 61-B says that the words 'in the absence of any special contract' in Section 152 shall be omitted. Therefore, the only meaning of that provision is that the Bombay Port Trust cannot make any special contract incurring greater responsibility than that of a bailee i.e. a man of ordinary prudence. They cannot for instance act as insurers of the goods of which they are enjoined to take charge. That appears to be the only effect of the last clause of Section 61-B and counsel were agreed that, that would be the effect. Fortunately so far as the points arising in this appeal are concerned, we are not concerned with that clause at all except to understand the full effect of Section 61-B, Sections 151 and 152 are thus complementary. They lay down affirmatively and negatively the ambit of the duty of care which she bailee owes to the person who is the owner of the goods (we will not use the word 'Bailor' because under Section 61-B there is no 'bailor').
Section 161 of the Contract Act lays down the bailee's responsibility when goods are not duly returned and it says that if, by the fault of the bailee the goods are not returned, delivered or tendered at tho proper time, he is reasonable to the bailor for any loss, destruction or deterioration of the goods from that time. This refers to the time when the bailee (in this case the Port Trust authorities) will have to deliver the goods to in true owner and it must be within a reasonable time it no exact time is specified.
The next thing to notice is that while these Sections 151, 152 and 161 of the Contract Act are bodily lifted from the Contract Act and applied with a minor modification to the Port Trust to indicate the ambit of their responsibility to the consignees of the goods of which they took charge, the Bombay Port Trust do not thereby become bailees themselves. Section 61 -B does not say chat Section 148, which defines who a 'bailee' is, is applicable to the Bombay Port Trust. Therefore though for the purpose of judging their responsibility Sections 151, 152 and 161 of the Contract Act will have to be referred to, the Bombay Port Trust is in no sense a bailee of the goods. Section 61-B does not say they shall be deemed to be bailees or that they are bailees but only that their responsibility shall be that of a bailee as described in the stated sections of the Contract Act. Therefore, at the most of all that can be said of their responsibility or duty towards the goods or the owner of the goods is that they are under a statutory duty imposed by Section 61-B and nothing more. The provisions of the Bombay Port Trust Act do not bring in the bailor as in the case of the Contract Act and its provisions are not made with reference to the owner of the goods at all. The provisions are unilateral and unilaterally the statute imposes on the Bombay Port Trust alone the duties uhder Sections 151, 152 and 161 of the Contract Act. Thus without making the Port Trust a bailee the statutory duties corresponding to the bailee are imposed upon them. The further point that therefore must be noted upon this analysis of the provisions of Section 61-B is that if these duties are not fulfilled or are broken by the Board, the board can be sued for damages by the person to whom the goods belonged but the board will be liable not as bailees or upon a contract but because a statutory duty has been imposed upon them by Section 61-B and there has been a breach of it. The claim is thus not founded upon any provisions of the Contract Act nor is it founded in tort. It is founded upon the breach of a statutory duty. Another and a very important point to note is that one and the same action whereby the statutory duty of the Port Trust imposed by Section 61-B is breached, may give rise to more than one cause of action. For instance, we have already shown that it gives rise to liability to pay damages for a breach of the statutory duty. It may also in given cases amount to a tort and if it amounts to a tort it may give rise also to a claim for damages. The same may also in certain circumstances give rise to a crime and may be punishable as such, but so far as Section 61-B is concerned, it does not speak of liability for a contract or a tort, much less for a crime. It only speaks of the statutory obligations which it prescribes and for the breach of which a Suit may lie for damages. It is essential that this distinction must be clearly understood. It arises upon a clear provision of Section 61-B and it is upon the under standing of this distinction that the true scope and effect of paragraph 2 of Section 87 only will become clear.
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Then we turn to consider whether one or more of the bye-laws relied upon help the appellants to escape liability, the bye-laws relied on are bye-laws Nos. 80, 82 and 93. So far as bye-law No. 80 is concerned only the last sentence of it is relied on. 'The trustees will not be answerable or liable for any losses or deficiencies whatever, unless ascertained, pointed out to and acknowledged by the Docks Manager previous to the removal of the goods from docks'. Before the learned single Judge there was some dispute as to who the Docks Manager was but then the definition in bye-law No. 2(5) was referred to where Docks Manager means the trustees, officer for the time being in charge of any Dock or Docks and includes the disputes and assistants to the Dock Manager and any other officer or officers acting under the authority of the Docks Manager. That is a very wide definition and includes any officer acting under the authority of the Docks Manager. The shed superintendent was present when the goods in the present case were unloaded from the ship and reloaded on the tolley for conveyance to the shed. Admittedly several other employees were also present. There is nothing to show who were officers and who were not. It is hot disputed that the shed superintendent is an officer. They were all acting under the authority of the docks manager and therefore they would be included in the definition of 'Docks Manager' within the meaning of bye-law No. 80. The question only is whether the bye law No. 80 is otherwise complied with.
The learned Judge held that the provision of the bye-law that the Board will not be answerable or liable for any losses or deficiencies in the goods unless they are acknowledged by the Docks Manager is inconsistent with the provisions of Section 61-B and therefore invalid. In that view, the learned judge did not consider whether the plaintiffs had or had not complied with the provisions of the bye-law No. 80. In our opinion, the view which the learned judge took upon the point he decided was correct because there is no point in Section 61-B making the trustees answerable for the loss, destruction or deterioration of goods if they do not take the same care that a bailee does namely the standard of care of an ordinary prudent man and the bye-law protecting them by saying that they will not be answerable or liable for any losses or deficiencies unless (1) ascertained, (2) pointed out to and (3) acknowledged by the Docks Manager previous to the removal of the goods from the Docks. These are additional conditions put upon the liability created by Section 61-B. Obviously, the bye-law lays down limitations to the parent section. To the extent that the liability under the section is being limited by the bye-law it must necessarily be declared inconsistent with Section 61-B and therefore invalid.
11. Once the functions and the purpose of the bye-laws are known, and the limitations under which they have to operate are ascertained, do we find that bye-law 31 afore-quoted is not inconsistent with the provisions of the Madras Port Trust Act? We have already noticed that on taking charge of and on receipt given for the goods taken charge of under Section 39(3) of the act, the Board (the Port Trust) alone has the liability for any loss or damage which may occur to the goods, its liability is that of a bailee under Sections 151, 152, omitting the words 'in the absence of any special contract' and 161 of the Indian Contract Act and the statute requires that the board should be served with a notice of loss or damage within one month of the date of the receipt given for the goods under Sub-section (3) of Section 39. There can be little doubt to the proposition that nothing specifically granted, created or withdrawn by the Act can be denied, destroyed or introduced by a subordinate legislation, such as a bye-law which a statutory authority make to achieve the purpose of the Act. In that sense, bye-law 31 afore-quoted may be found violating the express provisions under Sections 39 and 40 of the Act and accordingly in excess of the bye-law making power of the board. The rules, however, of interpretation of a statute require courts to protect as far as possible any legislation and allow it to operate without infringing what is available under the provisions of the statute under which they are made and without such unreasonable parts thereof, which appear to render it ultra vires. If we see bye-law 31 in this light, what appears offensive are the words that seem to give to the Port Trust immunity from the liability or answerability for any loss or damage or deficiency, unless a notice in writing is given to the Traffic Manager and unless the Traffic manager ascertains previous to the removal of the goods from the harbour premises or shipment, as the case may be. The words 'the Port Trust shall be answerable or liable for any loss or damage or deficiency whatever', thus have to be read as only enabling the Port Trust to base its defence upon the findings of the Traffic Manager, who may, on ascertaining loss or damage or deficiency, indicate that the port should discharge its liability or that he has found that the allegations of loss or damage or deficiency are exaggerated or are not the liabilities of the Port trust as a bailee. The provision as to the notice to the Traffic Manager in writing is in one sense a help to the owner or the person entitled to delivery of the goods that at the first knowledge of the loss or damage or deficiency, he informed in writing the Traffic Manager and gave opportunity to the latter to ascertain the loss or damage or deficiency before the goods are removed from the harbour premises or put into the ships. Once such a notice in writing is given and it is before the removal of the goods from the harbour premises or shipment, as the case may be, it is for the Traffic Manager to ascertain and he must complete this duty of his before the goods are removed from the harbour premises or put into the ships. The bailor or the owner of the goods, however, cannot be made to suffer for any fault of the Traffic Manager, who, inspiteof a notice in this behalf, failed to ascertain and report. No one can claim any premium on his own recalcitrance. The Port Trust cannot claim any advantage of any default of its agents or servants. Traffic Manager's failure thus will be a failure of the Port Trust and the Port Trust alone shall bear the consequences. We, however, do not see anywhere in this bye-law any requirement of the date, time and venue of the survey on behalf of the owner, bailor or any other person entitled to the goods to the Traffic Manager or that this bye-law required that any survey of the goods to assess loss or damage or deficiency should be done only in the presence of the Traffic Manager or any other officer of the Port Trust. It is one thing to say that no one can enter the port Trust premises without being duly authorised by the competent authority and another to say that no survey will be allowed by or on behalf of the owner, bailor or any other person entitled to the goods, except in the presence of the Traffic Manager. If any such provisions is made and its vires is questioned, different considerations may arise. In the bye-law afore-mentioned, however, there is no such requirement, except that the notice in writing should be given previous to the removal of the goods from the harbour premises or shipment, as the case may be, on the above premises. Thus, we are inclined to hold that bye-law 31 afore-mentioned is not a provision granting to the Port Trust immunity from answering its responsibilities as a bailee of the goods under Sub-section (3) of Section 39 or the Act or exempt ii from its liability as a bailee. It is only an enabling provision and the bailor, owner or by other person entitled to the goods, may take advantage of it, give notice to the Traffic Manager in writing, so that the Traffic Manager may ascertain the loss or damage or deficiency and thus give to the Port Trust its own information as to the truth or otherwise of the allegations of loss or damage or deficiency and such other matters. The Traffic Manager, however, has to ascertain loss, damage or deficiency before the goods are removed from the harbour premises or are loaded on the ship. Whether Traffic Manager ascertains or not, it will be necessary before any loss or damage is claimed from the Board of the Port Trust to give notice to it within one month of the date of the receipt given by the Port Trust or on its behalf for the goods under Sub-section (3) of Section 39 of the Act.
12. We have, however, seen that the trial court has also recorded a finding that the plaintiffs have failed to establish their basic claim that any number of bags were damaged while in the custody of the Port Trust and has also found that nothing was lost or damaged by the negligence of the Port Trust. This finding has been recorded mainly on the basis of the evidence that the goods were surveyed while in the custody of the Port Trust without any notice of date and time to the Traffic Manager of the Port Trust. The trial court has, on that basis, concluded almost ex pane. "I would be acting wholly in the absence of evidence. If I were to hold that any part of the bags which were in the custody of the Port Trust, after they were discharged from the ships side, did become empty or become otherwise damaged". Since we have taken the view that there is no mandate in bye-law 31, which will cause any impediment to the right of the bailor, the owner or any other person en titled to the goods, claiming from the Port Trust what according to it was its liability as a bailee evidence as to loss and damage will have to be ordered and considered unaffected by the said bye-law. We are, in the instant case, persuaded to think that a reappraisal of evidence on all counts is necessary and the trial court's endeavour in this behalf on the assumption that 96 empty bags and 317 damaged bags must be accounted for by the Port Trust will not meet the requirement of consideration of the evidence on such a question. We are inclined, for the above reasons, to interfere with the judgment of the trial court, we do not think we, sitting in appeal, should do a re-appraisal of evidence and form our own opinion in such a situation of the fact and the law, when everything, in our opinion, has to be looked into fresh.
13. In the result, the appeal is allowed, the impugned judgment is set aside and the case is remitted to the trial court for a re-hearing and disposal in accordance with the law. In the circumstances of this case, there shall be no order as to costs.