Statement of Objects and Reasons.-The defective state of the Law of India in respect of the liabilities of carriers, whether companies or individuals, has for some time past attracted the attention of the Governor General in Council, but it was thought desirable to postpone any enactment on the subject, until it should be seen whether the labours of Her Majesty's Commissioners for preparing a Body of Substantive Law would relieve the Indian Legislature from the necessity of special legislation.

Meantime, however, the question has become pressing, from the increase in the numbers of carrying companies, from the transfer of part of the Government carrying business to one of them, and from the prospect of Tramways being constructed under Act XXII of 1863 (to provide for taking land for works of public utility to be constructed by private persons or companies, and for regulating the construction and use of works on land so taken). The necessity for prompt legislation has further been urged on the Government in petitions, and by the Government of Madras in an official letter.

The Bill now published by the Viceroy's permission follows the principles, though not the form or the language, of the English Statutes regulating the liability of carriers.

The earlier sections extend to India the principle embodied in the English Statute II, Geo. IV, and 1 Will. IV, cap. 68. They relieve carriers from the extraordinary liabilities which would be imposed on them by the delivery to them, without notice, of articles of peculiar value or perishableness. Any customer, delivering to the carrier any of the articles enumerated in the Schedule, must declare them, and then the carriers may charge at a higher rate for the additional risk, in conformity with a scale to be publicly exhibited in his place of business under the ordinary Law of Contract, the carrier might relieve himself from the liability by such a notice, but it would be necessary to bring the notice home to the customer by evidence. From the necessity of giving such evidence, the carrier will now be relieved by this enactment.

By section VI it is provided that the carrier shall not rid himself of his liability for articles, neither unusually valuable nor unusually perishable, by any public notice, but (unless he be the owner of a Tramway) he is permitted to modify his legal obligations by special contract.

Section VII extends to Tramways constructed under Act XXII of 1863, the same rule which is applied to Railway by Act XVIII of 1854. It seems highly expedient that the same law should, if possible, be made to govern both Railways and Tramways.

The rule applicable to Indian Railway Companies is contained in section XI of Act XVIII of 1854, and is as follows:-

"The liability of such a Railway Company for loss or injury to any articles or goods to be carried by them other than those specially provided for by this Act, shall not be deemed or construed to be limited, or in anywise affected by any public notice given, or any private contract made by them; but such a Railway Company shall be answerable for such loss or injury when it shall have been caused by gross negligence or misconduct on the part of their agents or servants."

On this section the Government of Madras observes:-

"The first clause prohibiting any private contract in limitation of liability goes far beyond the Common Law of England, and Statutes 17 and 18 Vic., cap. 31, section VII, which admits of such contracts if just and reasonable. It is difficult to see why a Railway Company in India should be deprived of that power of protecting itself by special contract which a Railway Company in England possesses. If the latter clause of the section, which makes a company liable for gross negligence or misconduct of their agents, is meant to relieve them from liability in all other cases, it would be well to say so by distinct negative words. But it is very questionable whether so wide an exemption from responsibility is desirable or was intended."

If, however, the word "only " be supplied after "answerable " in the last line but two of the extract from the Railways Act as printed above, the section becomes intelligible. It limits the liability of Railway Companies to the consequences of gross negligence or misconduct on the part of their agents or servants, but declares that from his liability so limited, they shall not be allowed to relieve themselves by any kind of contract. There cannot indeed be much doubt that the intention of the Legislature was to place all Railway Companies in what was once supposed to be the exact position of a carrier who had contracted for himself as favourably as the Law of England would permit.

It was, in fact, long supposed in England that, while a carrier could by contract relieve himself from most of his liabilities, his power of doing so stopped short of liability for negligence or misconduct. Such is the view of the law taken by Mr. Justice Story in his "Commentaries on Law of Bailments," section 549 and such is understood to be still the law in America. But a series of decisions in the English Courts overturned the older doctrine, and it was settled that a carrier could, by a properly framed contract, deliver himself from liability even for misconduct or negligence. The liberty thus conceded was, however, found to be a practical evil, and the English Legislature intervened by 17 and 18 Vic., cap. 31.

The nearly contemporaneous enactment of the Indian Legislature, embodied in section XI of Act XVIII of 1854, is obviously aimed at the same object.

It seems very undesirable to adopt the rule contained in section VII of 17 and 18 Vic., cap. 31, which permits companies to contract themselves, on certain conditions, out of their liability for negligence. The section in question has been severally condemned by the present Lord Chancellor of England on the ground both of obscurity of expression and of difficulty of application:-(Peek v. The North Staffordshire Railway Company, 32 Law Journal, N.S. Q.B. 241). On the other hand the rule of the Indian Legislature is comparatively simple; it would probably be sustained by the general sense of the mercantile community, and it is especially applicable to a country in which there exists considerable difference of opinion as to the general liabilities of carriers.

[14th February, 1865]

An Act relating to the rights and liabilities of Common Carriers.

Preamble .-Whereas it is expedient not only to enable common carriers to limit their liability for loss of, or damage to property delivered to them to be carried but also to declare their liability for loss of or damage to such property occasioned by the negligence or criminal acts of themselves, their servants or agents; It is enacted as follows:-