C H A P T E R

9-1 Carriage of Goods

CHAPTER CONTENTs

O Carriage by Land
Classification of Carriers
O Common Carrier
Private Carrier
O Gratuitous Carrier
Common Carrier and Baidee
Rights of a Common Carrier
Duties of a Common Carrier
O Goods
Carriage by Rail
O Responsibility of Railway Administration as Carriers
O Summary
Test Questions
Practical Problems
Carriage of goods from one place to another within a country or from one country to another
of
plays an important part in the commercial life of the modern world. The contract of carriage
goods must of necessity form an important constituent of it. Goods may be carried by land, sea or
The persons who carry goods, whether by land, sea or air, are known as carr
The law relating to carriage of goods in India is found in the following Statutes:
1. In case ofcarriage by land:
200F
(a) The Carriers Act, 1865.
(6, The Railways Act, 1989.
2. In case of carriage by sea:
(a) The (Indian) Bills of Lading Act, 1856.
(6) The Carriage of Goods by Sea Act, 1925.
c) The Merchant Shipping Act, 1958,
d) The Marine Insurance Act, 1963.
3. In case of carriage by air:
The Carriage by Air Act, 1972.
These Statutes are governed by the principles of the English Common Law whenever any point
is not specially covered by these Statutes.
 490 SPECIAL CONTRACTS

CARRIAGE BY LAND
The law relating to carriage of goods by land is contained in the Carriers Act, 1865 and +h.
Railways Act, 1890. The former deals with carriage of goods over land and inland waterways, the
latter deals with carriage of goods by railways. Both these Statutes are not exhaustive. Where they
are silent, the principles of the English Common Law apply.

CLASSIFICATION OF CARRIERS
Carriers may be classified into common carriers and private carriers. There is also a third type
known as gratuitous carriers.
Common carrier. A common carrier is one who undertakes for hire to transport from one
place to another, either by land, sea or air, the goods of anyone who chooses to employ him. The
Carriers Act, 1865 defines a common carrier as any individual, firm or company (other than the
government) who or which transports goods as a business, for money over land or inland waterways
without discrimination between different consignors. Thus any person who holds himself out as
ready to carry for hire from one place to another the goods of any person who chooses to employ
him for the purpose is called a common carrier. He must do so as a regular business for money.
Anyone who carries goods occasionally or free of charge is not a common carrier. Ordinarily the
common carrier cannot refuse to cary goods for anyone if-
(1) the person asking him to do so is prepared to pay charges
(2) the goods are such as he professes to carry; and
(3) the place of destination is within the area in which he operates.
It should be noted that the Carriers Act, 1865 covers only common carriers of goods (and not
passengers).
Private carrier. A private carrier is one who carries his own goods. Occasionally he may
carry goods for selected persons. He reserves the right to accept or reject requests for carriage
whether or not his vehicle is full [Belfast Ropework Co. Ltd. v. Bushell, (1918) 1 K.B. 210]. For
him, carriage of goods is a casual and non-regular occupation and therefore he may or may not
carry goods of others. He does not make a general offer, but restricts himself to working for
particular persons with whom he negotiates special terms.
A private carrier is governed not by the Carriers Act, 1865 but by the law relating to bailment.
Gratuitous carrier. A gratuitous carrier is one who carries goods or passengers without any
charge. For example, if a car owner gives a lift to passerby, he will be known as a gratuitous
carrier.
Common carrier and bailee. A bailee is responsible only when the goods entrusted to him
are lost or damaged due to his fault or negligence. A common carrier, on the other hand, takes
upon himself the responsibility of safe delivery of the goods. It is immaterial if the loss or damage is
due to his or someone else's negligence

RIGHTS, DUTIES AND LIABILITIES OF COMMON CARRIER

The Carriers Act, 1665 governs the rights, duties and liabilities of a common
carier.
Rights of a common carrier
1. Right to get remuneration. A common carrier is entitled to the agreed remuneration, it
any, for his work. He can also demand payment in advance and if he is not paid he may retuse to
carry. If the charges have not been agreed, he is entitled to reasonable charges.
CARRIAGE O F G O O D s 491

lien. He has the goods carried for his charges which he can enforce
Right of a lien on
lien
hoth the consignor and6the consignee, but
East. He
as a rule this lien is only a particular
refuse to deliver the goods until his charges
Aforth v. Hadfield. (1805) 516]. can
IRush

are paid.

3. Right to recover damages. damages from the consignor if the goods are
He can recover
or if the goods are not properly packed and the carrier
suffers injury
a dangerous character
rofrom Bamfield v. Goole & Sheffield Transport Co., (1910) 32 K.B. 94]. circumstances by a
4. Right to
limit his liability. He can limit his liability under certain
the consignor.
contract with the goods,
recover expenses. He can, if the consignee refuses to take delivery of
5. Right to reasonable
reasonable under the circumstances. He can also
recover
as are
take all such steps such
tfrom the consignor in
a case.
expenses of destination. As
to take delivery of a horse at the station
Example. A consignee delayed it could recover
had to incur some expenses in keeping the horse. Held,
such the railway L.R. 9 Ex. 132]
Northern Rail. Co. v. Suwaffield, (1874)
reasonable expenses [Great under all
to carry goods of all types
6. Right refuse to carry goods. He is not bound
to
circumstances.

carrier
Duties of a common
of all persons
c o m m o n carrier is bound to carry for hire goods
1. Duty to carry goods. A the goods
He is however not bound to carry
employ him for the carriage of goods.
who choose to
if
ull
(1) his vehicle is already ;
the goods;
to reasonable charges for the carriage of
(2) the consignor not willing
is pay
cannot carry;
accustomed to carry or
such as he is not
(3) the goods a r e
his regular route;
a route which is not
the goods are to be carried over
(4)
him to extraordinary risk;
(5) the goods are such as subject
(6) the goods are not properly packed; offered for carriage.
refuses to disclose the nature of the goods referred
(7) the consignor in cases other than
those
refuses to carry the
a
goods of person
If the common carrier
v. Sutton, (1869)
4 H.L. 226|.
[Great Western Rail. Co.
o above, he is liable for damages and must not deviate
his customary route
must carry the goods by
2. Duty not to deviate. He
the goods.
reasonable precautions for the safe carriage of
must also take all must deliver the goods
rom it unnecessarily. he the completion of the transit, he
Upon reasonable time. If the
3. Duty to deliver the goods. if o r within a
at the agreed time,
any,
c e a s e s to be liable
as a
as Instructed by the consignor
when tendered to him, he
take delivery of the goods
Consignee refuses to in that case is that
of a bailee.
common carrier, his only liability an insurer of
the goods in the
sense

At Common Law he is
Assignee,
4. Duty a s insurer of goods. In B. Chalapathi v. Official
the goods safely and securely.
at he warrants to carryit was õbserved: for all
A.l.R., (1978) Mad. 112, ingredients in-built in it. No doubt,
has certain peculiar were entrusted by
one party to
A contract of carriage which
of goods
contract for the carriage bailment, nor is the
of
purposes it is a equation of a contract
outward of carriage is not an
the other. But a contract
492 SPECIAL CONTRACTS

carrier liable as a bailee. On the other hand, there is in-built in such contracts the element of an
insurance contract for it could reasonably be said that the carrier is equitable to an insurer who
undertakes the carriage of the goods with all the attendant risks of such carriage.
Strict liability of common carrier. According to the English Common Law, a common
carrier of goods is an insurer of the goods carried. He is bound to make good to the consignor the
loss of damage.to the goods in the course of carriage whether occasioned by his negligence or not.
Example. A was a common carrier of goods. B's goods were stored in A's warehouse for
being loaded to the ship for carriage. Without any negligence on the part of A, the warehouse was
destroyed by fire. Held, A was strictly liable for the loss [Foruward v. Pithard, (1715) 1 T.R. 27].
Exceptions. There are five exceptions to this rule of strict liability. In these cases a common
cárrier is not liable for any loss or damage if it is occasioned by
(1) An act of God. This is some unforeseen accident caused by the elementary forces of
nature, such as storm, earthquake,.etc. It is unconnected with human agency. The occurrence of
such a thing cannot reasonably be foreseen or predicted and therefore the consequences cannot be
prevented by human intervention or by reasonable precautions
Examples. (a) C, a common carrier, received from D a mare to be carried from Aberdeen
to London. During the voyage the ship encountered rough weather and the mare received
injuries as a consequence of which she died. The death was due partly to bad weather and partly
to the struggling of the mare in fright. Held, C was not liable {Nugent v. Smith, (1876) 1
C.P.D. 422].
(b) Owing to frost, the boilers of a ship burst and damaged the cargo in the ship. Held, the
loss was not due to an act of God as sufficient care could have avoided the accident (Siordet v.
Hall, (1828) 4 Bing. 608.
Mere erratic peculiarities of the sea or even a gale or tornado resulting from the fury of the sea
may not by itself amount to an 'act of God' unless the fury is of such a degree or dimension that no
human foresight can provide against and of which human prudence is not bound to recognise the
possibility.
Example. A suit for damages was occasioned due to short supply of goods carried by a
ship. A defence of act of God was raised on the ground that the goods had to be jettisoned due
to sudden deterioration of weather but it was not made out that the tempest or gale in the sea
was so heavy or so unprecedented that the sailors could not have taken precautionary measures
with reasonable foresight. Further there was want of pleadings of facts necessary to constitute
an 'act of God'. Held, the carriers were liable and the defence of 'act of God'. Held, the
carriers were liable and the defence of 'act of God' would not be available to them |General
Traders Ltd. v. Pierce Leslie (India) Ltd., A.I.R. (1987) Ker. 62.
(2) Enemies of the State. A carrier would not be liable if the injury or damage to the goods
is caused by declared enemies of the State. The term 'enemies of the State' means alien enemies at
war with India. But loss or damage to the goods by strikes or rebellions or during internal riots does
not come within the scope of loss or damage caused by the 'enemies of the State'.
(3) Innerent vice in the thing carried. A carrier is not liable for losses arising from
inherent vices in the goods carried over which he has no control and against which he cannot guard.
When, for example, liquids evaporate, the carrier is not liable. Further, if any special care is required,
the common carrier must be intormed of this otherwise he cannot be held liable for damage which
would not have occurred but for it [Baldwin v. London Chatham & Dover Rail Co., (1882) 9
Q.B.D. 582).
CARRIAGE O F G O O D S
493

amples. (a) B delivered a bullock to a railway company for carriage. During the journey
raped and was killed. I he escape was due to the exertion of the bullock itself and not to the
eligence of the railway company. Held, the railway was not liable [Blower v. Great Western
negli
L.R. C.P. 6551.
Rail. Co., (1872)
(b)L's engine was agreed to be carried by a railway company from L's yard to another
town. While it was being carried to the railway station, one of its shafts, owing to its rotten
condition, broke and the horses which were drawing it were frightened and they upset the
engine which was damaged. Held, the railway company was not liable as the damage was due
toan inherent defect in the thing carried [Lister v. Lancashire & Yorkshire Rail., (1903) 1
K.B. 8781
(4)Defective packing. The is not liable if the loss is due to
carrier of the
defective packing
goods, even if he knew when he received, the goods that the packing was defective.
Example. G consigned a glass show-case by rail. Its packing was defective and the railway
company knew of this when it received the case. The case was damaged in course of carriage
Held, the railuay company was not liable (Gould v. South Eastern & Chatham Rail. (1920) 2
K.B. 186].
(5) Fault or fraud of the consignor. If the consignor is guilty of fraud, the carrier is
relieved of all iability for the loss or damage. The carrier is also not Hiablefor loss or damage arising
from the acts or omissions of the consignor or his agents.
Example. B hid money in a chest of tea which he gave to W, a c o m m o n carrier, for
this
carriage. The chest was stolen. Held, W was not liable for the money lost as he had brought
loss on himself by his own manner of conducting his business [Bradley v. Waterhouse, (1929) 3
C.O.P. 318].
Under Sec. 8 of the Carriers Act, 1865, a common carrier is liable to the owner for loss or
act of
damage to any property delivered to him where loss or damage has arisen from the criminal
the carrier or from the negligence of the carrier or any of this agents or servants. The burden of
proof that there was no criminal act or negligence on the part of the carrier or his agents or servants
is upon the carrier [Banwari Lal v. Road Transport Corpn., A.l.R. (1984) Pat. 203].

GOODS
Scheduled and non-scheduled goods. According to the Carriers Act. goods for the
purposes of the liability of the carrier are divided into two categories, viz., scheduled goods and
non-scheduled goods.
Scheduled goods are those whichenumerated in a Schedule to the Carriers Act. All other
are

g0ods are known as non-scheduled goods. Scheduled goods include, inter alia, gold and siluver
Coins, ornaments, precious stones, clocks and time-pieces of any description, bills, hundis. bank
notes, maps, writings, paintings, photographs, sculptures, woks of art, glass, china or marble, silk,
shaws, furs, opium, articles of ivory, coral, sandalwood or ebony and musical and scientific
instruments.
carrier is not liable for loss of, and or damage to, scheduled goods over Rs. 100, if at the time
of delivery their description and value are not expressly made known to the carrier. He is, however,
iable if the goods are lost by his or by any of his agents' or servants' criminal act or gross
negligence. Further, he cannot limit his statutory liability in respect of scheduled goods by any
Special agreement. He can, however, charge extra for carrying the scheduled goods.
As regards non-scheduled goods he can limit his liability by a special agreement with the
consignor of the goods. He is, however, liable for any loss or damage caused to such goods by his
494
SPECIAL CONTRACTS
or by any of his agents servants' negligence or criminal acts. But even when the
or
agreement limits his liability, he has to prove that he was diligent in avoiding peril before special
the benefits of special claiming
agreement
Dangerous goods. As regards goods of dangerous character, e.g., explosives, acids or
poisons, it is incumbent on the consignor to inform the carrier sufficiently. Even where
the
consignor
the
is unaware of the
dangerous character of the goods, an implied warranty to the effect that
goods are fit be carried exists and the consignor would be answerable. But if the carrier
to
aware of the is
dangerous character of the goods carried, the said implied warranty does not exist and
the consignor would not
be liable for any consequent loss.
Example. D delivered 'ferro-silicon' in casks to a common carrier under the
general cargo but did not inform him that it was description of
fact. The ferro-silicon' during 'ferro-silicon although he was aware of the
carriage gave off poisonous gases which caused the death of the
carrier. Held, even though D was unaware of the
nevertheless to pay damages for causing death of dangerous
character of 'ferro-silicon' he had
the carrier [Bamfield v. Goole &
Transport Co. Ltd., (1910) 2 K.B. 94]. Sheffield

CARRIAGE BY RAIL
Carriage by rail in India is regulated by the Railways Act, 1989.

CARRIAGE OF GOODS
Maintenance of rate-books, etc., for
administration shall maintain, at each station and atcarriage
of goods (Sec. 61).
such other places where
Every railway
carriage, the rate-books or other documents which shall contain gooda are received for
of goods from one station to another and the rate authorised for the
make them available for the reference of carriage
during reasonable hours without payment of any fee.
all any person
Provision of risk rates (Sec. 63). Where
any goods are entrusted to a
for carriage, such carriage shall,
except where owner's risk rate is railway administration
goods, be at railway risk rate. applicable in respect of such
Any goods, for which owner's risk rate and railway risk rate
carriage at either of the rates and if no rate is opted, the
are in force, may be entrusted for
entrusted at owner's risk rate. goods shall be deemed to have been

Forwarding note (Sec. 64). Every person entrusting

carriage shall execute a any goods to a
railway administration for
forwarding note in such form may be
Government. as
specified by the Central
The consignor shall be responsible for the
forwarding note. He shall indemnify the correctness of the particulars furnished by him in the
reason of the incorrectness or
railway administration against any damage suffered
incompleteness of the particulars in the forward by it by
note.
Railway receipt (Sec. 65). A railway administration shall
(a) in a case where the goods to be
are loaded by a
completion of such loading; or person entrusting such goods, on the
(b) in any other
case, on the
issue a railway receipt in such
acceptance of the goods by it;
form as may be
A railway receipt shall be specified by the Central Government.
prima facie evidence of the weight and the
therein. number of packages stated
CARRIAGE O F G O O D S

with him on a
of dangerous or goods (Sec. 67). No person shall take
offensive
riage unless
a railway
railk administration to carry such dangerous or oftensive goods,
require servant
or offensive nature to the railway
or
notice in writing of their dangerous
ilway,

1he gives a notice

(1) he and
in this behalf, their dangerous or
authorised
marks on the outside of the package containing such goods
191 the distinctly
offensive n a t u r e . Where a railway
administration for wrong delivery (Sec. 80).
of railway it shall not
1iability the person who produces the railway receipt,
the consignment to thereto o r that
is not entitled
ninistration delivers on the ground that
such person
for any wrong delivery defective.
responsible is forged or otherwise
be.
the railway receipt
endorsement on
ADMINISTRATION AS CARRIERS
RAILWAY
RESPONSIBILITY OF
(ChapterXI-Secs. 93 112
to
A
a s carrier
of goods (Sec. 93).
deterioration in
administration

responsibility of a railway destruction, damage o r

General
shall be responsible for the loss, a d m i n i s t r a t i o n for carriage),
administration entrusted to a railway
railway (goods
non-delivery of any consignment
transit, or
c a u s e except
the following, namely,
arising from any

(a) act of God;

(b) act of war;
enemies;
(c) act of public seizure under legal process;
or a State
Government o r by an
restraint o r Government
authorised by it in
(d) arrest, Central
r e s t r i c t i o n s imposed
by the o r a State
Government

(e) orders of s u b o r d i n a t e to
the Central
government
authority o r the agent
officer o r or the endorsee
o r the
consignee
this behalf; of the consignor
negligence o r vice
of
omission or the endorsee; detect, quality
) act of the consignee o r
to
inherent
consignor o r weight due
or servant of the or wastage in bulk or
deterioration
natural
g)
the goods;
arisen
(h) latent defects; to have
unforeseen risk. is proved
relieved of its
non-delivery
or any or be
explosion deterioration
shall not
) fire, destruction,
damage, administration
of
the railway the carriage
Even where any
loss, and c a r e in
reasonable foresight
aforesaid causes, the
m o r e of
the has used 165].
C o n sequently,

rom any o n e or that it A.l.R. (1979)

Ori.
further proves insurer of goods.
unless it Textile Mills, i.e., an
responsibility Orissa carrier,
India v. broke by the jolts
common

[Union of same as
that of a The cage
ne goods administration
is
to a railway
for carriage. to B and
was

of railway A bullock belonging

doility e n t r u s t e d by killed a the loss is
A tiger was
escaped. It liable for the loss since
basis
Example. and the tiger is not liable to B
o n the
the journey The railway A is
received during the engine. However, the part of
crushed by strong cage.
or
detault o n
a
immediately supplying wiltul neglect
almost of A in not on
a c c o u n t of them.
to the
negligence escaped suttered by
aue the tiger the loss
of every person
tort. If it is
proved that to A
and B for the goods
both
of would be
liable bound to carry
carrier, is
the railway, it c o m m o n

like a requirements.
administration, with o t h e r
A railway and comply
the freight
wno is willing to pay
 SPECIAL CONTRACTS
496
be responsible for the
administration shall owner to have
transit (Sec. 95). A railway by the been
Delay o r detention in of consignment proved
loss, destruction, damage or
deterioration any
administration can
avoid liability if it
their carriage. The railway without negligence or
caused by the delay or detention in its control or
for reasons beyond claim only the
o r detention arose however
proves that the delay
can
servants. The plaintiff
its part o r on the part of any of
its and not loss of profit
misconduct o n damage or deterioration
the value of goods caused by destruction, administration can,
The railway
actual loss inIndia v. S.S.H. Syndicate,
A.l.R. (1976) S.C. 870].
arose without negligence
or
Union of o r detention
that the delay
however, escape liability by proving
misconduct on its or any of its servants part. be carried by a
rate (Sec. 97). A consignment may
Owner's risk rate or railway risk risk rate is a special
railway risk rate. Owner's
either at owner's risk rate or
rate is a special reduced
railway administration risk rate is an ordinary tariff rate. Owner's risk
than the railway risk
reduced rate whereas railway tariff rate. Owner's risk is lower
rate whereas railway risk rate is an ordinary carried at the owner's
risk. In case of
the goods in this case are
unless it is proved that any loss,
rate for the simple reason that
the administration is not responsible
Owner's risk rate, railway or misconduct
deterioration o r non-delivery of goods arose from negligence
destruction, damage or
administration or its servants.
on the part of the railway owner's risk rate.
large machine for carriage at
Examples. (a) B handed over an unusually although it was
took no extra precaution
to load the machine properly
The railway servants when it hit a bridge.
In transit the machine was damaged
obvious that it was dangerously large. liable [Bastable v. North British
misconduct and was, therefore,
Held, the railway was guilty of
Rail., (1912) S.C. 555]
loaded in
wagons
(b) Contrary to the standing order, quality of leaves and bidis were
certain
that they were damaged by rain water. Held,
the railway
right up to the flap door with the result
& Co. A.l.R. (1930) Cal. 815].
was guilty of misconduct [B.N. Rail. v. Moola Sicka
was kept at the station of booking
for four days.
A consignment of 341 bags of potatoes
(c)
was sent to the plaintiff to take delivery
After the goods reached the destination, telegram
a
the goods were auctioned. The plaintiff however
within 15 days but the every next day
take delivery. Held, the railuway was liable for
immediately communicated that he was coming to
the loss [Union of India v. Sobhraj Bhag Chand, A.l.R. (1980) Al. 163).
Liability for damage to goods in defective condition or deceptively packed (Sec. 98).
defective
Goods tendered to a railway administration to be carried by railway (a) may be in a
cordition, or (b) may be deceptively packed. As a result of these, goods are liable to damage,
deterioration, leakage or wastage. lf the fact of such condition or defective or improper packing has
been recorded by the sender or his agent in the forwarding note, the railway administration is not
responsible for any damage, deterioration, leakage or wastage unless negligence or misconduct on
the part of the railway administration or of its servants is proved.
Liability after termination of transit (Sec. 99) Whether the goods are carried at owner's
risk rate or railway risk rate, the lability of the railway administration for any loss of goods within a
neriod of seven days after the termination of transit is that of the bailee under Secs. 151, 152, and
161 of the Indian Contract Act, 1872. But where the goods are carried at owner's risk rate the
railway administration is not liable for such loss, destruction, damage, deterioration or
of goods except on proof of negligence or misconduct on the part of the
non-delivery
railway administration or
any of its servants.
After seven days from the date of
termination of transit, the railway administration is not liable
in any case for any loss of such goods,
Notwithstanding this provision, for the loss, destruction,
CARRIAGE OF

other
explosives and
or articles of perishable goods, animals,
non-delivery of transit. In
damage, ddeterioration,
eterio
after the termination of
administration is not responsible
dangerous g o o d s , the railway or
that the destruction
liabi the railway administration is duty bound to prove
to escape liability, suit for compensation
for non-delivery
escape

order
caused after the termination of the transit. In a n
aae was administration for carriage, notice under Sec.
106 is necessary.
railway
d s entrusted tonotice
a A.l.R.,
India v. B.L. Agarwals,
such the suit is not maintainable [Union of
absence of
the
(1975) Cal., 417] of the
the railways, the responsibility
of any consignment or animals carried by
In respect as may be prescribed.
shall not exceed the amount a
value if the consignor pays
administration
ilway liable for a higher
administration shall however
be caused due
The railway note. But if the loss or damage is
higher charge and declares
the value in the forwarding of the wagon by the consignor o r his agent,
o r from overloading
of the animal itself
toany actiona d m i n i s t r a t i o n is not
liable (Sec. 103). be
administration shall not
the railway (Sec. 100). A railway
carrier of luggage of any luggage (goods
Responsibility a s deterioration or non-delivery
destruction damage, unlesss a
loss, administration for carriage)
esponsible for the in his charge o r
entrusted to a railway c a s e of luggagge
carried by a passenger a receipt therefor and in the
the luggage and given that the loss,
destruction,
servant has booked it is also proved
railway unless
the passenger in his charge, o r o n the part
of any of
which is carried by the negligence o r misconduct
o n its part
deterioration w a s due to
or
damage be
its servants. administration shall not

carrier of animals (Sec.

101). A railway
Responsibility a s a animal carried by railway
arising from
or injuries to, any
loss or destruction of,
responsible for any of wagons by the consignor.
restiveness of the animal or from overloading administration shall not
fright o r c a s e s (Sec. 102).
A railway
certain non-delivery of any
Exoneration from liability in deterioration or
damage or
the loss, destruction,
be responsible for
consignment,- false description of the consignment is
etc. is due to the
fact that a materially
(a) when such loss,
o r by
o r the endorsee.
o r the consignee
given; or
the consignor,
been practised by
(b) where a fraud has endorsee; o r
consignee or the caused by, o r to have
arisen
an agent of the consignor, to have been
the railway administration
cwhere it is proved by
o r by a
from o r the endorsee,
o r the consignee
consignor,
unloading by the
i) improper loading
or
or the endorsee;
of the consignor, consignee
whatever cause
agent or restraint of labour from
strike, lock-out, stoppage
i) riot, civil commotion,
or
arising whether partial or general; damage or for loss of particular
market.
loss or
indirect or consequential (Sec. 106). A person shall
(d) for any refund of over change
compensation and deterioration o r n o n -
Notice of claim for destruction, damage or
for the loss, him o r o n his behalf,-
to claim compensation
be entitled thereof is severed by
not railway, unless a notice
delivery of goods carried by entrusted for carriage; o r
administration to which
the goods a r e
(a) to the railway station lies, o r the loss,
whose railway the destination
administration o n
(b) to the railway occurs.
deterioration
destruction, damage or of the goods.
formed the date of
entrustment

within a period of six months

498
SPECIAL CONTRACTS

Burden of proof (Sec. 110). In an application before the Claims T ribunal for compensation
OOSS, destruction, damage or deterioration or non-delivery of any goods the burden of proving
(a) the monetary loss
actually sustained; or
where the value has been declared in respect of any consignment that the value so declared is
ts true value, shall lie on the person claiming compensation. It shall however not be necessary for
nim to
prove how the los, destruction, damage deterioration
or or non-delivery was caused.

Summary
Goods may be carried by land, sea or air. The persons who carry goods, whether by land, sea or air, are known
as
carriers. The law
relating to them in India isgoverned by the principles of the English Common Law except where it has
been departed from by special Acts.
The carriers may be (1) common carriers, or (2) private carriers.
A common carrier is one who
undertakes for hire to transport from one place to another, either
the goods of such as choose to by land, sea or air,
employ him. A private carrier is a person who carries goods for selected persons and not for
everybody.
Rights of common carrier. (1) He is entitled to the agreed remuneration for his work.
(2) He has a lien over the
goods. (3) He can recover damages from the consignor if the goods are of a dangerous character or are not
and he suffers some loss or properly packed,
injury therefrom. (4) He can limit his liability under certian circumstances by
special contract with the consignor. (5) He can, if the consignor refuses to take entering into a
are reasonable under the circumstances.
delivery of the goods, take all such steps as
(6) he is not bound to carry the goods of all and all types of goods under all
circumstances.
Duties of common carrier. (1) He is bound to
carry the goods of all persons who choose to employ him for the
carriage of goods. (2) Upon the completion of transit, he must deliver the goods at the agreed time, if
any, or within a
reasonable time. (3) He must carry the goods in customary manner without
delay or deviation. (4) He is an insurer of the
goods carried. He is bound to make goods to the consignor the loss or damage to the goods in the course of
where it is occasioned by (a) an Act of Good, (b) enemies of the State, c) inherent vice in the carriage except
thing carried, (d) defective
packing, or (e) fault or fraud of the consignor.

CARRIAGE BY RAIL
Carriage by rail in India is regulated by the Indian Railways Act. 1989. The liability of a railway administration for the
loss, destruction or deterioration of goods or animals entrusted to it for carrlage by rail is that of the bailee.

Test Questions
1. What Statutes govern the law of carriage in India ?
2. Who is a 'common carrier ? What is meant by the statement that the Common Law he is the insurer of goods?
3. How do you distinguish between a commo1 carrier and a private carrier ?
4 What is the liability at Common Law of a common carrier ? Have the railways in India a greater or lesser liability ?
W h a t are the respective rights and dufies of common carriers and private carriers ? Can a common carrier reduce his

liability by a special contract?

6. How does the liability of a railway administration in India differ from that of other carriers?

Practical Problems
problems, giving reasons
Attempt the following
h o of a railway company provides that in consideration of the
company carrying the goods at a
reduced rate, the sender shall be precluded from holding the railway liable for loss or damage to the goods specially
from any cause
C H A P T E R
9-3 Carriage by Air
CHAPTER CONTENTS
O Definitions
O Documents of Carriage
Passenger ticket
Baggage check or Luggage Ticket
Air Way Bill or Air Consignment Note
International Carriage by Air
Liability of Air Carrier
O Summary
Test Questions
Practical Problems
The law relating to carriage of goods and passengers across international borders is regulated in
India by the Carriage by Air Act, 1972. The Act is based on the Warsaw Convention of 1929 as
amended by the Hague Protocol of 1955.1 This Act replaces the Indian Carriage by Air Act, 1934.
It also makes provisions for applying the rules contained in the Warsaw Convention and the Hague
Protocol (subject to certain exceptions, adaptations and modifications) to non-intemational carriage
by air.
On 1st March, 1964, the provisions of the Act of 1934 were extended to domestic carriage
subject to certain exceptions, adaptations and modifications. After the repeal of the Act of 1934,
now the provisions
of the Act of 1972 apply to domesticcarriage.
The references in this Chapter are to the Sections and the Rules contained in the First Schedule
to the Carriage by Air Act, 1972. Wherever a reference to the provisions of the Second Schedule is
made, it is specifically mentioned.
DEFINITIONS
Convention. It means the Convention for the unification of certain rules relating to
nternational carriage by air signed at Warsaw on the 12th day of October, 1929 (Sec. 2].
Amended Convention. It means the Convention as amended by the Hague Protocol on the
28th day of September, 1955 (Sec. 2 (1)].
High Contracting Party. The term 'High Contracting Party' means ll the parties originally
Signatories to the Convention, together with those who adhere thereto subsequently, as and wher
they adhere |Rule 1 (2)].
.The development of international air transport has given rise to special codes of rules agreed on at Internationa
onventions, namely, the Warsaw Convention of 1929 and the Hague Protocol of 1955.
 SPECIAL CONTRACTS
508
'International Carriage means a carriage in which
International Carriage. The expression
are situated within the territories of two Hin
the place of departure and the place of destination
Contracting Parties or within the territory of a single High Contracting Party it there is an agreed
stopping place within a territory subject to the sovereignty, suzerainty, mandate or authority of
another power, even though that power is not a party to the Convention [Rule 1 (3)].
Application of Convention and Amended Convention to India (Secs. 3
and 4)
The rules contained in the First Schedule (being the provisions of the Warsaw Convention) and
in the Second Schedule (being the provisions of the amended Convention) relating to the rights and
liabilities of carriers passengers, consignors, and other persons, shall have the force of law of India.
But this is subject to the provisions of the Carriage by Air Act, 1972. Further in relation to any
carriage by air to which these nules apply, these rules shal have the force of law in India irrespective
of the nationality of the aircraft performing the carriage.
DOCUMENTS OF CARRIAGE
When passengers and goods are carried by air, the following documents are issued
Passenger ticket
For carriage of passengers, the carrier must deliver a passenger ticket which must contain the
following particulars:
(1) the place and date of issue;
(2) the place of departure and of destination;
(3) the agreed stopping places, but the carrier may reserve the right to alter the
in case of
necessity and the exercise of this right would not stopping places
character; deprive the carriage of its international
(4) the name and address of the
carrier or carriers;
(5) a statement that the carriage
Schedule IRule 3 (1).
subject to the rules relating
is
to liability contained in the First
The passenger ticket shall
the contract of
constitute prima facie evidence of the conclusion and
carriage [Rule 3 (2) of the Second conditions of
The Schedule].
absence,
irregularity loss of the
or
validity of the contract of passenger ticket does not affect the
existence or the
ticket, the provisions of thiscarriage.
Act
However, if the carrier accepts a
passenger without a passenger
(2)1 excluding
or limiting his liability are not applicable to him [Rule 3
Baggage check or luggage ticket
The carrier must deliver a
small baggage
personal objects of which the check or a
luggage ticket for carriage of luggage other than
must made out in duplicate, one part for thetakes charge himself [Rule 4 (1)]. The baggage check
be passenger
(2). The baggage check passenger and the other part for the carrier [Rule 4
must contain the
(1)the place and date of issue; following particulars :
 CARRIAGE BY AIR
509
12) the place of departure and of destination :
(3) the name and address of the carrier or carriers
the baggage check
(4) the number of
K a statement that delivery of the luggage will be made to the bearer of the
(6)the number and weight of the packages;
baggage check:
(7)the amount of the value declared; and
(R1 a statement that the carriage is subject to the rules relating to liability stated hereinafter
[Rule 4 (3)).
The absence, irregularity or loss of the baggage check does not affect the existence or the
validity of the contract of carriage. But ifthe carrier accepts luggage without a baggage check having
been delivered, or if the bag9age check does not contain the particulars set out in clauses (4), (6) and
(S) above, the carrier is not entitled to avail himself of the provisions which exclude or limit his
liability [Rule 4 (4)].
Air way bill or air consignment note
Goods carried by air must be covered by an air way bill or an air consignment note. Every
carrier of goods has the right to require the consignor to make out and hand over to him a
document called an 'air way bill"'. The consignor has in turn the right to require the carrier to accept
this document [Rule 5 (1). The absence, irregularity or loss of this document does not affect the
existence or the validity of the contract of carriage [Rule 5 (2).
The air way bill must be made out by the consignor in three original parts. It must be handed
over with the goods [Rule 6 (1)]. The first part is marked for the carier' and must be signed by the
and
consignor. The second part is marked 'for the consignee ; it must be signed by the consignor
carrier and handed
by the carrier and must accompany the goods. The third part is signed by the
over by him to the consignor after the goods have been accepted [Rule 6 (2)].
The carrier must sign the acceptance of the goods [Rule 6 (3)]. His signature may be stamped
that of the consignor may be printed or stamped [Rule 6 (4]. If at the request of
the consignor, the
to have done so on
carrier makes out the air way bill, he is deemed, subject to proof to the contrary,
the consignor to
behalf of the consignor [Rule 6 (5)]. The carrier of goods has the right to require
make out separate air way bills when there is more than one package |Rule 7.
The air way bill must contain the following particulars:
(1) the place and date of its execution;
(2) the place of departure and of destination;
alter the stopping places
(3) the agreed stopping places, but the carrier may reserve the right to
he
right the alteration does not deprive the carriage of t
n case of necessity, and if he exercises this
internationalcharacter;
(4) the name and address of the consignor;
5) the name and address of the first carrier;
and address of the consignee, if the
case so requires;
(6) the name
(7) the nature of the goods; numbers
marks
packing and the particular
or
number of the packages, the methods of
(8) the
on the packages of the goods;
or dimensions
(9) the weight, the quantity and the volume
 SPECIAL cONTRACTSs
510
the packing
of the goods and of
(10) apparent condition
the date and place
of payment, and the p e ron
sr
upon, the
(11) the freight, if it has been agreed
who is to pay it .
of the goods, and if the case SO
(12) if the goods are to be paid
for on delivery, the price
incurred;
requires, the amount of the expenses
(13) the amount ofthe value declared;
(14) the number of parts of the air way bill
bill
to accompany the air way
(15) the documents handed over to the carrier
and a brief note of the route to be
(16) the time fixed for the completion of the carriage
followed. if these matters have been agreed upon ; and
that the carriage subject to the rules relating
is to liability discussed hereinafter
(17) a statement
(Rule 8).
lt the carrier accepts goods without an air way bill having been made out, or if the air way bill
does not contain all the particulars set out in clauses (1) to (9) and (17), the carrier is not entitled to
avail himself of the provisions which exclude or limit his liability (Kule 9.
The consigrnor is responsible for the correctness of the particulars and statements relatirng to the
goods which he inserts in the air way bill [Rule 10 (1)}. He will be liable for all damage suffered by
the carrier or any other person by reason of the irregularity, incorrectness or incompleteness of the
said particulars and statements [Rule 10 (2).
The air way bill is prima facie evidence of the conclusion of the contract, of the receipt of the
goods and of the conditions of carriage and also of the statements relating to the weight,
dimensions and packing of the goods and the number of packages (Rule 11).
The consignee is entitled on arrival of the goods at the place of destination, to require the
carrier to hand over to him the air way bill and deliver the
goods to him. The consignee will have to
pay the charges which are due and comply with the conditions of carriage set out in the air way bill
Rule 13 (1).
Unless it is otherwise agreed, it is the duty of the carrier to give notice to the consignee as soon
as the goods arrive [Rule 13 (2)]
The consignor must furnish such information and attach to
the air way bill such documents as
are necessary to meet the formalities of
customs, octroi or police before the goods can be delivered
to the consignee. The consignor is liable to the carrier for any damage occasioned by the absence,
insufficiency or irregularity of any such intormation or documents, unless the darnage is due to the
fault of the carrier or his agent [Rule 16 (1)). The carrier is under no obligation to
correctness or sufficiency of such information or documents
[Rule 16 (2)..
inquire into the
INTERNATIONAL CARRIAGE BY AIR
The rules contained in the First Schedule (Sec. 3) and the Second Schedule (Sec. 4) to the
apply to all international carriage of
persons, luggage Act
aircraft for reward. They apply
(baggage) or goods (cargo) performed
equally to gratuitous carriage by aircraft performed by
transport undertaking lRule 1 (1)|. by an air
These rules apply carriage to
pertormed by the State or by
legally constituted public bodies
provided it falls within the conditions laid
carriage of mail and pcstal packages [Kule down
in Rule 1 |Rule 2 (1)). These rules do not
2 (2) of the
Second Schedule]. apply to
 CARRIAGE BY AIR
511
Liability of the air carrier
1. Liability in the event of death or
bodily injury. The carrier is liable for damage
stained in the event ot the death or wounding of a other bodily injury suffered by
cSenger, if the accident which caused the damagepassenger
or any
so sustained took
r in the course of any of the operations of embarking or
place on board the aircratt
2. Liability for damage to luggage. The carrier disembarking
(Rule 17).
is liable for damage sustained in the event
of the destruction or loss of, or damage to, any registered
luggage or any goods [Rule 18 (1)).
3. Liability for delay. The carrier is also liable for
damage occasioned by delay in the carriage
by air of passengers, luggage or goods (Rule 19). The liability of the carrier ceases if he proves that
he and his agents have taken all necessary measures to avoid the damage or that it was impossible
for him or them to take such measures |Rule 20 (10]. If the carrier proves that the damage was
caused by or contributed to by the negligence of the injured person, the Court may exonerate him
wholly or partly from his liability (Rule 21).
4. Quantum of damages. (a) Death of a passenger. In the carriage of passengers the
liability of the carrier for each passenger is limited to the sum of 1,25,000 francs. (In the Second
Schedule, this limit has been raised to 2,50,000 francs.) However, by special contract, the carrier
and the passenger may agree to a higher limit of liability [Rule 22 (1).
Sec. 5 further provides that the rules contained in the First and in the Second Schedule shal
determine the liability of a carrier in respect of the death of a passenger. These rules apply
notwithstanding anything contained in the Fatal Accidents Act. 1855, or any other enactment or
rule of law in force in any part of India. The liability shall be enforceable for the benefit of such of
the members of the passenger's family as sustained damage by reason of the death of the passenger.
The expression 'member of a family' means wife or husband, parent, step-parent. grand-parent,
brother, sister, half-brother, half-sister, child, step-child and grandchild. It also includes any
illegitimate children of adopted person. The amount recovered in any such action, after deducting
dependant (claimant), shall be divided between the persorns entitled
any costs not recovered from the
such proportion as the Court may direct.
and of goods, the
(b) Carriage of registered luggage. In the carriage of registered luggage
22
liability of the carrier is limited to a sum of 250 francs per kilogram [Rule has(2) j. If the value of the
the value to be made and a
luggage is more than this amount, a special declaration of
Airlines Corpn. v. Akhileshwar Prasad,
supplementary sum paid if the case so requires [Indian
A.I.R. (1986) Patn. 306].
of which the passenger takes
c) Luggage in charge of passenger. As egards objects
22 (3)].
charge himself this liability is limited to 5,000 francs per passenger [Rule
French franc which consists of 1/2
The sums mentioned in the above rules refer to the
900 (Rule 22 (4)].
milligrammes gold of millesimal fineness
to relieve the carrier of liability fix a lower limit than that which is
or to
Any provision tending
laid down in the above rules is null and void (Rule 23).
exclude
entitled to avail himself of the provisions which
5. General. (1) The carrier shall not be
or linit his liability if the damage is
caused
is
default on his part as is in the opinion of the Court
a) by his wilful misconduct or by such
equivalent to wilful misconduct [Rule 25(1));within the scope of his employment .Rule 25 (2)].
(b) by any agent of the carrier acting is prima
to delivery ot luggage o r goods without complaint
(2) Receipt by the person entitled delivered in good condition and in
accordance with the
Jacie evidence that the same have been entitled to delivery must
In the case of damage, the person
document of carriage [Rule 26 (1)J.