[1941] EACA 3

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR HENRY WEBB, C. J. (Tanganyika) and FRANCIS, J. (Uganda)

H. BOAZMAN & A. H. GEE, Appellants (Original Plaintiffs)

## THE HON. ATTORNEY GENERAL OF UGANDA. Respondent

## (Original Defendant)

## Civil Appeal No. 1 of 1941

Appeal from decision of H. M. High Court of Uganda.

Contract for carriage of goods for reward not as common carrier—Loss in transit by negligence of carrier's servant—Validity of conditions exempting carrier from liability to pay compensation or damages—Special contract—Public policy—Indian Contract Act, sections 1, 151 and 152.

The transport section of the Public Works Department of the Government of Uganda carries goods for reward but not as common carriers from Kabale to Kampala.

Appellants sued the Government of Uganda for damages for the loss in transport of a package delivered by the appellants to the said transport section at Kabale for transport to Kampala under a declaration which contained the condition that "The department only accepts goods for carriage at all on condition that no compensation or damages will be paid for loss, damage, delay, detention or misdelivery whether caused by the act or default of the department or its servants or by accident or otherwise.

The respondents in their defence pleaded the said condition and that the loss complained of arose from the act or default of one or more servants of the transport section of the Public Works Department of the Uganda Protectorate. The suit was dismissed.

Appellants appealed.

Held (15-5-41).-That section 151 of the Indian Contract Act does not prescribe an absolute minimum of care required of a bailee which cannot be reduced by special contract. The effect of sections 151 and 152 is that while section 151 provides the normal standard of care to be observed, Section 152 provides that that standard may be increased or reduced by special contract.

Appeal dismissed.

Appellants appealed from the following judgment of Whitley, C. J.: —

"The material facts in this case are all admitted. The Uganda Government Public Works Department has a transport section which carries goods for reward from Kabale to Kampala. This section is not a common carrier. On the 5th September, 1938, the Department received at Kabale from Mr. Schumacher, the plaintiffs' agent, a package weighing approximately $8\frac{1}{2}$ lb. declared to contain raw gold for carriage to the National Bank of India, Kampala. It was agreed by counsel that the question of proof of the nature and value of the contents should stand over until after the question of liability had been determined. The package was lost by the act or default of one or more of the servants of the transport section. The conditions of the contract of carriage are contained in a declaration which Mr. Schumacher signed and which contains the following condition: -

'The department only accepts goods for carriage at all on condition that no compensation or damages will be paid for loss, damage, delay,

detention or misdelivery whether caused by the act or default of the department or its servants or by accident or otherwise.'

The question which I have to decide is whether the defendants are protected by this condition.

Mr. Ishmael for the plaintiffs contended firstly that notwithstanding any special contract such as this the parties are bound by sections 151 and 152 of the Indian Contract Act and that accordingly in the circumstances of this case the defendants are liable as bailees; secondly that the condition contained in the special contract is contrary to public policy and therefore void; and thirdly that if the defendants can contract out of section 152 they have not done so sufficiently clearly.

The Attorney General submitted firstly that the general provisions of the Indian Contract Act do not apply to carriers at all; secondly that even if they do apply it is lawful to the parties to contract out of them, and thirdly that the parties have by this special contract so contracted out.

I will deal with the question as to whether the Indian Contract Act does apply to private carriers such as the defendants admittedly are. In *Irrawaddy* Flotilla Co. v. Bugwandas 18 Calc. 620 at p. 631, the Privy Council held that the Indian Contract Act, notwithstanding the generality of some expressions in the chapter on bailments, does not apply to common carriers. They approved the decision of the Calcutta full Bench in Moothora Kant Shaw v. The Indian General Steam Navigation Co. 10 Calc. 166 at p. 168. The Attorney General relied strongly on certain passages in the judgments in the latter case as indicating that when Mr. Fritz James Stephen introduced the Bill which subsequently became the Indian Contract Act, 1872, he did not intend it to apply to carriers, but although he did use that general term a careful examination of his observations leaves no doubt in my mind that he intended only to refer to the law as to "common carriers" as not being affected by the Bill and that for the very good reason that their liabilities were already provided for in the Indian Carriers Act of 1865. This latter Act does not deal with private carriers and since there existed no legislation regulating their liabilities and they are nowhere specifically excluded in the Indian Contract Act I can see no reason for holding that the Contract Act does not apply to them.

I will now consider the relevant sections of the Act. Section 1 provides that nothing contained in the Act shall affect any incident of any contract not inconsistent with the provisions of the Act.

Section 151 provides that a bailee is bound to take as much care of 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 under . similar circumstances take of his own goods of the same bulk, quality and value as the goods bailed.

Section 152 provides that the bailee, in the absence of any special contract, is not responsible for the loss of the thing bailed if he has taken the amount of care of it described in section 151.

Mr. Ishmael contended that the defendants, not having shown that they took such care, must be held liable for the admitted loss. I find myself unable to agree with that contention. In the absence of any express authority to the contrary, it seems to me that the joint effect of these three sections as applying to any bailee such as a private carrier who is not governed by special legislation is shortly that it is open to him to make any special contract which he and his cailor choose to agree upon, but that if they omit to make any special contract the responsibility of and degree of care demanded from the bailee shall be as laid down in sections 151 and 152.

The case of British Trading Co. v. Governor of Uganda, 2 Uganda Law Reports 1, relied upon by Mr. Ishmael, is clearly distinguishable, for there the Government claimed to be protected by a notice in the gazette that all goods were carried at owner's risk and it was held that was not sufficient communication of the proposal and that such loose words as owner's risk would not excuse a bailee from exercising the degree of ordinary prudence required by sections 151 and 152. In other words there was not there a sufficiently explicit special contract between the parties. In the present case we have a contract in very precise terms signed by the owner specifically exempting the carrier from liability.

Although Sankaran Nair, J., in his dissenting judgment in Sheik Mahamad Ravuther v. British Indian Steam Navigation Co., 32 Mad. 95, expressed the view that the rule of English law which allows shipowners to exempt themselves by express contract from liability for negligence cannot be applied in India as it is inconsistent with the provisions of the Indian Contract, the majority of the Court held otherwise and it is clear from the judgments of the full Bench in B. I. S. N. Co., v. Alibhai Mohamed, A. I. R. 1920 Lower Burma 139 (followed in Fut Chong v. Maung Po Cho, A. I. R. 1929 Rangoon 145) and *Bombay Steam Navigation Co.* v. Vasudey, 52 Bombay 37, that a bailee can, notwithstanding the provisions of the Indian Contract Act, contract himself out of liability for the negligence of himself or his servant subject to the proviso that the condition must be expressed in clear express and unambiguous language.

It is, I think, beyond question that the language of the declaration signed by the defendants' agent in the present case is sufficiently clearly expressed. The word used "default" was described by Fritz Gerald, J., in *Caffarini* $v$ . Walker, 9 Ir. Rep. C. L. 437, as embracing every failure by the defendant to perform his contract unless prevented by superior force over which he had no control such as stress of weather. It must in my opinion include negligence and if the owner chooses to agree with the carrier that the latter shall not be responsible for loss through any default it is difficult to see why he should not be bound by what he has agreed to.

There remains the question of public policy. Mr. Ishmael contended that a condition such as this relieving the carrier from all responsibility is contrary to public policy. I can dispose of this shortly. In *Sheik Mahamed Rayuther* v. B. I. S. N. Co. supra both Sir Amold White, C. J. and Wallis, J. expressed the opinion that it was not open to them to hold that contracts exempting a carrier from liability for the negligence of his servants are void as opposed to public policy and no case has been cited holding otherwise. I can see no reason why the law in India should not be the same as that in England on this point. In England it is well established that the liabilities of private carriers may be varied indefinitely by the terms of their contracts. (See Bevan on Negligence, 4th Ed., Vol. 2, p. 1032, and Turner v. Civil Service Supply Ass. (1926) 1 K. B. 50 and Fagan v. Green & Edwards-(1926) 1 K. B. $102.$ )

I accordingly hold that the defendants are protected from liability by the terms of the declaration signed by the plaintiffs' agent.

I would add a further observation on the question of public policy and whether the defendants ought in fairness to be held bound apart from any question of law. $\mathcal{L}^{\mathcal{L}}$

It is admitted by them that gold worth over £600 was handed over for carriage by road for some 270 miles at the diminutive charge of 1 shilling 37 cents and that the plaintiffs insured the gold in transit. It seems not unreasonable to infer that they realized full well that the intention of the defendants when requiring them to sign the declaration was to exempt themselves from all liability.

There will be judgment for the defendants with costs."

Ishmael with Phadke for the Appellants.

Windsor-Aubrey, Acting Solicitor General, for the Respondent.

SIR JOSEPH SHERIDAN, C. J.-I am so much in agreement with the conclusions of the learned Chief Justice in this case that I find it unnecessary to say very much. The main ground on which the appeal was argued by Mr. Ishmael was that on a proper construction of section 152 of the Indian Contract Act a bailee could not contract out of the provisions of section 151 of the Act and limit his responsibilities by special contract. Without the assistance of the very clear Indian judgments on the point, I would, I believe, have had little difficulty in coming to the same conclusion as the learned Chief Justice. In Fut Chong v. Maung Po Cho, A. I. R. (1929) Rangoon 145 at 146, Otter, J. refers to the full bench case of B. I. S. N. Co. Ltd. v. Alibhai Mahomed, (1920) A. I. R. (Lr. Burma) 139, and quotes from the judgment of Robinson, J. as follows:-

"Lastly I am quite unable to agree that a bailee cannot limit his liability under section 152 of the Act. That he can do so by making a special contract was pointed out in Moothora Kant Shaw's case. Section 151 lays down the ordinary duty of a bailee in all cases of bailment and section 152 enacts that that degree of care is to be exacted from him in the absence of a special contract. To read it otherwise than as allowing him to reduce his liability is to

hold that the legislature enacted an unnecessary provision and to give a forced meaning to the language used".

With regard to the point raised by appellants' counsel that the respondent's pleading was defective, I might dispose of it by saying that it is not mentioned in the memorandum of appeal. But apart from that I do not find any substance in it. I would dismiss the appeal with costs.

SIR HENRY WEEB, C. J.—The appellants sued the Government of Uganda for damages for the loss of a package delivered to the transport section of the P. W. D. for carriage from Kabale to Kampala. The Government, which, it is admitted, is not a common carrier in respect of its transport activities, relied on a condition in the contract with the appellants providing that "no compensation or damages will be paid for loss, damage, delay, detention or misdelivery, whether caused by the act or default of the department or its servants, or by accident, or otherwise". The learned Chief Justice of Uganda dismissed the case.

The first point taken by Mr. Ishmael on behalf of the appellants is, as I understand it, that having regard to the wording of para. 4 of the defence, the condition quoted protects the Government from liability only in respect of the defaults of the servants of the P. W. D. and that, as the loss may have been occasioned by the default of some other person, the admission contained in that paragraph that "the package was lost by the act or default of one or more of the servants of the transport section of the P. W. D. of the Government" is insufficient in the absence of proof that the loss was in fact so caused. I can find no substance in this argument, for, apart from any other consideration, it having been pleaded and admitted that the package was delivered to the transport section, there could be no better proof that it had passed out of their custody and control by their default, than an admission of that fact, whoever may be the person who ultimately obtained possession of it and whatever may have been the means by which he obtained such possession.

Then it was argued that section 151 of the Indian Contract Act prescribes the absolute minimum of care required of a bailee, and that section 152 only allows that standard to be increased, but not to be diminished, by special contract. In my opinion the two sections are to be read together; section 151 gives the normal standard of care to be observed, and section 152 provides that that standard may be increased or reduced by special contract. The only authority quotes in support of the appellants' proposition was the minority judgment of<br>Sankaran Nair, J., in Sheikh Mahamed Ravuther v. B. I. S. N. Co. (32 Madras 95), which has been uniformly dissented from in every subsequent case in which the point has arisen.

Finally it was argued that the condition relied upon by the respondents is contrary to public policy because, if it is held to be valid, it will open a door to frauds upon the public by carriers. As to this it must be remembered, in the words of Burrough, J. in Richardson v. Mellish, 130 E. R. 2 Bing. 252, that public policy "is a very unruly horse, and when once you get astride of it you never know where it will carry you", and that, as was said by Cave, J. in re Mirams (1891) 1 Q. B. 594), "Judges are more to be trusted as interpreters of the law than as expounders of what is called 'public policy'". The matters that fall within the<br>scope of the doctrine of public policy have been long since defined, and if the consequences of such a condition being held to be valid (as it has been in England), will be so deplorable as Mr. Ishmael suggests, it is for the legislature and not for the Courts to intervene.

In my opinion the appeal should be dismissed with costs.

The judgment of Francis, Ag. C. J., was read by Gamble, J.—I have had the advantage of reading the judgment of the learned President and am in complete agreement with it. I have only to add that with regard to the question of public policy 1 am of the opinion that the learned Chief Justice of Uganda effectively disposed of the point. It has not been shown by the appellants that the subject of the agreement between themselves and the P. W. D. of the Uganda Government comes within any of the principles of public policy recognized by the law, and in Janson v. Driefontein Consolidated Mines (1902) A. C. 484, it was held by the Privy Council that public policy is not a safe or trustworthy ground for legal decision, and that no Court may invent a new head of public policy.

I agree that the appeal should be dismissed with costs to respondents. $\cdot$