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(a) whether they are common carriers,

(b) whether the English common law relating to carriers by sea applies to them or the provisions of the Indian Contract Act relating to bailees,

(c) if the English common law applies to them, whether the defendants are wholly absolved from liability for the loss caused by the negligence of their agents employed to carry in boats the goods of the plaintiff (consignee) from the mooring place of the steamer to the plaintiff's jetty in the port of Cochin, owing to the defendants' having protected themselves from liability from such loss by appropriate clauses in the Bill of Lading.

(d) whether those general clauses could not legally absolve the defendants because the Bill of Lading did not contain an express provision declaring that defendants shall not be liable even if the boats procured by their agents to take the cargo from the steamer to the plaintiff's jetty were unseaworthy.

2. As regards the first question, the case of Hajee Ismail Sait v. The Company of the Messageris Maritimes of France (1905) I.L.R. 28 M. 400 clearly decides that carriers by sea for hire are common carriers. The Carriers Act, 1865, does not, however, apply to them, as in that Act the term "common carriers" is confined to denoting "a person other than the Government engaged in transporting for hire property...by land or inland navigation'' and is not extended to carriers by sea. The next question is "are common carriers by sea governed by the English Common Law or by the Contract Act ?" In the 'Full Bench case of Sheik Mahomad Ravuther v. The British India Steam Navigation Co. Ltd. (1908) I.L.R. 32 M. 95 the learned Chief Justice and Wallis J. evidently hold as unquestionable that, where the English Common Law and the Indian Contract Act differ, the former and not the latter applied to common carriers by sea. Wallis, J. referred (at page 108) to the argument of the appellant's learned vakil in that case, (Mr., now Mr. Justice, Sundara Iyer) that Section 28 of the Indian Contract Act applied and that the clause in the Bill of Lading absolving the carriers by sea (the same British India Steam Navigation Co., who is the defendant in this case) from all liability arising from whatever cause, is opposed to public policy and hence is void under Section 23 of the Indian Contract Act. The learned Judge, however, did not accept this argument of the learned vakil and says at page 109 " As regards the second point, I am of opinion that it is not open to us to hold that contracts exempting a carrier from liability for the negligence of his servants are void as opposed to public policy. As pointed out by. Walton, J., in Price and Co v. Union Lighterage Co. (1903) I.K.B. 750 the law of England, unlike the law of the United States of America, does not forbid the carrier to exempt himself by contract from liability for the negligence of himself and his servants; but if the carrier desires so to exempt himeslf, it requires that he shall do so in express, plain and unambiguous terms.' So far as the general question goes, this is the law which has been received and applied by the Indian Courts, (Jellicoe v. The British India Steam Navigation Company (1884) I.L.R. 10 C. 489 and Hajee Ismail Sait v. The Company of the Messageries Maritimes of France (1905) I.L.R. 28 M. 400. Contracts have been made and business has been carried on for many years in India on this footing, and if the law is to be altered now it must be by the legislature." White C. J. says on this point at page 107 " Mr. Sundara Aiyar contended that a contract which purported to relieve a ship, owner from his liability as a carrier for negligence was contrary to public policy and should not be enforced. As pointed out by Walton J., in Price & Co., v. Union Lighterage Company (1903) I.K.B. 750 the law of the United States of America forbids a carrier to exempt himself by contract from liability for negligence whilst the law of England does not. I am of opinion that on a question of this character courts in India ought to follow the law of England.'' Mri Seshagiri Aiyar who argued the present appeal before us, contended that White C. J. and Wallis J. did not, in their judgments in Sheik Mahomed Bavuthar v. The British India Steam Navigation Co. Ltd. (1908) I.L.R. 32 M. 95 consider the question whether the Indian Contract Act applied or not, but I am unable to accept this argument. It is no doubt true that Sankarun Nair J. in that case elaborately considered the provisions of the Contract Act, which he assumed to be applicable to common carriers by sea even when such provisions conflicted with the English common law (see page 121.). Mr. Seshagiri Aiyar invited us to refer this question to a Full Bench, as, though White C.J. and Sankaran Nair J. agreed in their ultimate conclusion in that case, they differed on this question of the applicability of the provisions of the Indian Contract Act and the agreement between the views of the Chief Justice and Wallis J. about the non-applicaability of the provisions of the Contract Act did not affect the result of that case, as the learned Chief Justice differed from Wallis J. also as to the result of applying the English Common Law. As I am myself always inclined not to travel beyond Indian cases and Indian Statutes unless I am convinced that they are clearly n6t applicable, I would have gladly referred the question of the applicability of the Contract Act, where it differs from the English Common Law, to a Full Bench, if I did not feel that I am concluded by the pronouncement of the Privy Council on this question. In The Irrawady Flotilla Company v. Bugwandas (1891) I.L.R. 18 C. 620 their Lordships have clearly approved of the decision of the Full Bench in Moothora Kant Shaw v. The India General Steam Navigation Co.(1883) I.L.R. 10 C. 166 and disapproved of the contrary decision in Kwoerji Tuhidas v. The Great Indian Peninsula Railway Company (1878) I.L.R. 3 B. 109. The effect of their Lordships' decision in The Irrawady Flotilla Company v. Bagwandas (1891) I.L.R. 18 C. 620. seems to me to be " that the duties and liabilities of a common carrier are governed in India by the principles of the English Common Law on that subject" (except where they have been departed from in the case of some classes of common carriers by the Carriers Act of 1865 or by the Railway Acts of 1878 and 1890) and " that notwithstanding some general expressions in the chapter on Bailments, a common carrier's responsibility is not within the Indian Contract Act of 1872.

2. In all cases and under all circumstances, the liability of the company shall absolutely cease when the goods are free of the ship's tackle and thereupon the goods shall be at the risk for all purposes and in every respect of the shipper or consignee.

4. As regards these very wide clauses, White C.J. and Sankaran Nair J. held in Sheik Mahomad Ravuther v. The British India Steam Navigation Co., Ltd. (1908) I.L.R. 32 M. 95 that they did not absolve the company from liability for loss occasioned by the negligence of their servants before delivery and after landing. Wallis J. held otherwise. (I might remark that Sir S. Subramania Aiyar J. and Miller J. similarly differed in the earlier stage of the same case, reported in Sheik Mahomad Ravuther v. The British India Steam Navigation Co., Ltd (1906) I.L.R. 30 M. 79. I am bound, of course, by the judgment of the majority unless it is opposed to a judgment of the Privy Council, not brought to the notice of the majority, or reported after the Full Bench decision. Such a judgment of the Privy Council, it seems to me, has been pronounced in Chartered Bank of India, Australia and China v. British India Steam Navigation Co. Ltd. (1909) A.C. 369. The defendant in that case was this very same British India Steam Navigation Co. The bill of lading which had to be construed in that case contained this very same clause about the liability of the company ceasing absolutely when the goods were free of the ship's tackle &c., and the defendants' landing agents (as in this case) received the goods into lighters to be carried to jetties. The only difference between the facts of this case and the facts of that case is that, whereas the goods were lost in the present case through the negligent overloading of the lighter by the defendants' landing agents, the goods were lost in the other case by the misfeasance and fraud of the landing agents. Their Lordships of the Privy Council applied the English Common Law relating to common carriers by sea in that case as we have to do in this case. I shall just quote the concluding sentences of their Lordships' judgment:--" Now it may be conceded that the goods in question were not delivered according to the exigency of the bills of lading by being placed in the hands of the landing agents, and it may be admitted that bills of lading cannot be said to be spent or exhausted until the goods covered by them are placed under the absolute dominion and control of the consignees. But their Lordships cannot think that there is any ambiguity in the clause providing for cesser of liability. It seems to be perfectly clear. There is no reason why it should not be held operative and effectual in the present case. They agree with the learned Chief Justice that it affords complete protection to the respondent company." It seems to me that this decision of the Privy Council pronounced on the 3lst March 1909 (about 31/2 months after the pronouncement of the Full Bench decision in Sheik Muhanad Ravuther v. The British India Steam Navigation Co., Ltd. (1908) I.L.R. 32 M. 95. on the 15th December 1908,) clearly over-rules the decision in the latter case, unless we are to accede to the ingenious argument of Mr. Seshagiri Iyer that we are not bound by the decision of the Privy Council unless it was given in a case which went up on appeal from an Indian tribunal. (The appeal case of 1909 was an appeal from the decision of the Supreme Court of the Straits Settlements). I am wholly unable to hold that the binding nature of a decision of the Privy Council depends on the locality of the tribunal which pronounced the decision from which the appeal was preferred to the Privy Council, any more than the binding nature of a decision of this Madras High Court upon a Madras District Court depends on the question whether the High Court's decision was pronounced in an appeal preferred in a case which arose in that particular district. (The tribunal which decided the case in Chartered Bank of India Australia and China v. British India Steam Navigation Co., Ltd.(1909) A.C. 369. consisted of Lord Macnaughten Lord Atkinson Lord Collins and Sir Arthur Wilson who have taken part in deciding many Indian appeals). The last question I have to consider is whether this case can be distinguished from the case decided by the Privy Council by reason of the fact that the boat in which the goods were placed by the defendant's landing agent was unseaworthy. Having regard to the language of their Lordships of the Privy Council that the clause in the bill of lading absolutely absolving the defendant as soon as the goods are free of the ship's tackle protects the defendant from liability for whatever happens afterwards, I do not think the question whether what happened afterwards was negligent overloading by, or fraudulent dishonesty of, the landing agents is of the least importance. If it is necessary to decide this question, I should be inclined to follow the English Law on this question also, whatever may be the American Law. (See, as to the American Law, Carver's Carriage by Sea, Section 251(a), last paragraph). Arnould on Marine Insurance (Vol II) says. " The Warranty of seaworthiness which is implied as to the ship does not extend to lighters employed to land the cargo. It is enough to satisfy this warranty (of seaworthiness) that the ship be originally seaworthy for the voyage insured when she sails on it; the assured makes no warranty that the ship shall continue seaworthy in the course of it" " Every ship" says Lord Mansfield " must be seaworthy when she first sails on the voyage insured but she need not continue so throughout the voyage" (Arnould in footnote (b) at p. 848 refers to the cases decided by Lord Mansfield and Lord Eldon establishing the above proposition).