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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.

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').

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.