SOA NATIONAL INSTITUTE OF LAW

ASSIGNMENT
On
LAW OF carriage

SUBMITTED
BY

Name:ANOUSHKA MISHRA Regd:1841802021

Batch: BA.LLB(H) 2018-2023 Sem: 6 TH SEM

[1]
1. Make a table of Comparison between Carriers’ Act 1865 and the Carriage by Road
Act, 2007 by finding out their corresponding sections.
For e.g. discuss with provisions or summary of the corresponding sections while
mentioning the improvements in the 2007 Act. Say, section 6 of 1865 corresponds to section
12 of the 2007 law, mention the gist of the provision , its impact and how it has been improved
upon in the later Act.

Any of the following format may be adopted.

Format 1 E.g.

Head of Discussion Carriers’ Act 1865 Carriage by Road Act,2007

(improvements)

LIMIT OF Section 6 says In respect of

Section 12 says 12. Conditions
LIABILITY what property liability of
limiting exonerating the liability of
carrier not limited or affected
the common carrier.—Every
by public notice.Carriers, with
common
certain exceptions, may limit
carrier shall be liable to the
liability by special contract.
consignor for the loss or damage to
any consignment in accordance with
the
goods forwarding note, where such
loss or damage has arisen on account
of any criminal act of the
common carrier, or any of his
servants or agents.
RESPONSIBILITY Section 8 says Common carrier Section 17 says Save as otherwise
OFCOMMON liable for loss or damage provided in this Act, a common
CARIIER caused by neglect or fraud of carrier shall be responsible for the
himself or his loss, destruction, damage or
agent deterioration in transit or non-
delivery of
any consignment entrusted to him
for carriage, arising from any cause
except the following, namely:—
(a) act of God;
(b) act of war or public enemy;
(c) riots and civil commotion;
(d) arrest, restraint or seizure under
legal process;
(e) order or restriction or prohibition
imposed by the Central Government
or a State Government
or by an officer or authority
subordinate to the Central
Government or a State Government
authorised

[2]

DEFINATION OF Sec 2 says “common carrier”
COMMON denotes a person, other than
CARRIER the Government, engaged in
the business of [transporting
property under multinodal
transport document or of]
transporting for hire property
from place to place, by land or
inland navigation, for all
persons indiscriminately
NOTICE Sec 10 says Notice of loss or
injury to be given within six
months
POWERTO MAKE Sec 11 says State Government Sec 20 saysThe Central Government
RULES to add to the Schedule
Format 2 E. g.
[3]
by it in this behalf
Provided that the common carrier
shall not be relieved of its
responsibility for the loss,
destruction,
damage, deterioration or non-
delivery of the consignment if the
common carrier could have avoided
such
loss, destruction, damage or
deterioration or non-delivery had the
common carrier exercised due
deligence and care in the carriage of
the consignment.
Sec 2(a) says “common carrier”
means a person engaged in the
business of collecting, storing,
forwarding
or distributing goods to be carried by
goods carriages under a goods
receipt or transporting for hire of
goods from place to place by
motorised transport on road, for all
persons undiscriminatingly and
includes a goods booking company,
contractor, agent, broker and courier
agency engaged in the
door-to-door transportation of
documents, goods or articles
utilising the services of a person,
either
directly or indirectly, to carry or
accompany such documents, goods
or articles, but does not include
the Government
Sec 16 says Notice for institution of
a suit
may, by notification in the Official
Gazette,
make rules for carrying out the
provisions of this Act.
 On question of liability, section ____ of 1865 Act says..........................................................
But section _______ of 2007 says.................................

2. Discuss two case laws wherein the contract of carriage is held to be void on
account of a clause limiting the liability(diminishing) of carrier even to the extend
of complete immunity.
OWNER’S RISK IS VOID

In Thiruppathi Venkatachalapathy vs The New India Assurance Company 1 , A divisional bench

of this court has held as follows :the next contention is that in the lorry receipt there is a clause
that the goods were transported at owners risk and that since the second plantiff if agreed to
transport the goods through the first defendants lorry at owners risk he is not entitled to claim
any damages.

Under the law of public carriers, the public carrier is not entitled to say that he is a carrying
goods at the owner's risk .So the entry in the receipt the goods were transferred at owners risk
is against the provisions of the public carrier act and it is not bind to the plantiff and the
contention was devoid of merits

In case of G.M Roadways co v. P.G Industries2

Here there being a criminal act of the Carrier's servant, the carrier was held liable
notwithstanding that he had agreed to carry the good only at the owners risk

1
II (1988) ACC 102, (1988) 1 MLJ 64
2
AIR 1971 Cal 494

[4]
3. When does Cause of action arise, so as to make the claimant eligible to file a
civil suit for go for arbitration etc.?? Mention the provisions from all relevant
carriage laws.
Right to sue

Since there is nothing in the Act as to who can sue the carrier for loss of goods, the remedies of the Act
become available to any person who can show an interest in the goods. Section 8 says that the carrier
shall be liable to the owner.

"The question who should sue is not the subject mat ter of the Carriers Act. Particularly that question
has not at all been dealt with by Section 8 of the Act..." It is clear that the question of right to sue the
carrier has to be considered and answered by the general provisions of law and not by reference to the
Carriers Act. Under the general law the right to sue belongs to a person whose civil rights are injured.
The person aggrieved can bring a suit. In conceivable cases a person other than an owner can also be
aggrieved.

Meaning of term "owner"

The court conducted the following extensive survey of authorities to come to this conclusion.

It is true that Section 8 uses the expression "owner" and the carrier is made liable to the owner for the
loss or damage of any property delivered to the carrier.

The earliest judgment is D.P. Narasa Reddy v Ellisetti China Venkata Subbayya378 that of a plaintiff who
being himself a public carrier entrusted the goods in his turn to the other public carrier.

Right to sue is part of general law

In K. Venkat Rao v Commercial Goods Transport Firm,387 P.A. CHOUDHRY J emphasised the importance
of general law:

"The question of right to sue the carrier has to be considered and answered by the general provisions of
law and not by reference to the Carriers Act which in my opinion has nothing to say upon that question.
Now under the general law the right to sue belongs only to a person whose civil rights are injured. In the
now familiar legal par lance [it is believed that] it is only the person aggrieved that can bring a suit. In
conceivable cases a person other than an owner can also be aggrieved."

"Who can sue the carrier.-If goods are lost or damaged during transit, the question arises who can sue
the carrier for breach of the contract of carriage. The general rule is that the owner of the goods is the
proper person to sue, because the goods are at his risk. But a bailee may be able to do so at any rate if
he is responsible to his bailor for the safety of the goods. And the general principle that the owner is the

[5]
4. Can post office be included within the definition of “common carrier” as given
under the 1865 Act? In the light of the ratio of the case of “Union of India v. Amjad
Miyan” put forward your observation in the following hypothetical event.

Post office is not a common carrier and its liability is contractual in nature.

The liability of the postal department was based upon contract, the Legislature would not
have intended to impose an unqualified and absolute liability as in the case of a common
carrier or insurer, but would have made a specific provision that the liability is only that of
a bailee, the duty of the postal department being only to take such care of the article as a
prudent owner would do. The absence of any such provision in the Post Office Act itself
is clear proof that the liability is only statutory and not contractual3

5. Is Airway Bill same as Sea way Bill or there is any difference other than the
mode of transportation.

Air way Bill is same as Sea way Bill, An Air waybill is a type of Bill of Lading. The Air
waybill acts a contract of carriage between the shipper and carrier through air. As such,
it acts as a receipt of goods by airline carriers. The Air Waybill defines the conditions of
the carriage, such as the liabilities as well procedures for claims. The format is fixed
throughout the airline industry where information such as description of goods as well as
the charges can be found. However, the Air Waybill is a non- negotiable instrument as

3
Union of India v. Amjad Miyan on 22 August, 1972 (1972) 2 MLJ 363

[6]
compared to the Bill of Lading. As such, it is not a document to the title of the goods. It
also does not state on which flight number it travels on as well as when the goods would
arrive.

Similar to the Air Waybill, the Sea Waybill acts a receipt given by the shipping line as
well as contract of carriage between the shipper as well as the carrier by sea. In addition,
the Sea Waybill is a non negotiable instrument, just like the Air Waybill. Which means
that the Sea Waybill is also not a document to the title of the goods. The Sea Waybill can
be used to release the cargo immediately to the named consignee as long as the
consignee proves his or her identity. This is a good method for choice of document when
there is high level of trust between the consignor as well as the consignee. As no
additional documents would be needed to submit to the shipping carrier, the cargo could
therefore be released when it reaches the port.

Both Waybills are non negotiable, act as a contract of carriage between the shipper and
carrier, as well as a receipt to the goods.4

6. What is the limitation period for filing suit under carriage law?
Road Carriage Air Carriage Sea Carriage Multimodal
Sec 16,Within Within 2 years Art III Sec 24, within
180 days from period from the clause6,As per nine months
date of booking cause of action limitation act of—
of the arises. within one year (a) the date of
consignment after delivery of delivery of the
goods or the date goods, or
when the goods (b) the date
should have been when the goods
delivered should have
been delivered,
or
(c) the date on
and from
which the
party entitled

4
https://kargo.tech/artikel/export-dictionary-what-is-an-air-waybill-and-a-sea-waybill/

[7]
 to receive
delivery of the
goods has the
right to
treat the goods
as lost under
sub-section (2)
of section 13

7. Who can file suit for claiming damages under the following legislation?
Road Carriage Air Carriage Sea Carriage Multimodal
consignee High contracting Ship owner consignee
parties
consignor insurer consignee insurer
owner Any holder of owner
bill of lading
insurer insurer

8. When does the cause of action( and under which provision) arise for claiming
compensation?
Road Carriage

(i) non-issuance of receipt of goods;

(ii) non-disclosure of the whereabouts of the goods in transit when asked by the
consignor or
consignee; or
(iii) detention of goods for delivery without valid reasons; or
(iv) demand for unreasonable additional charges at the time of delivery, which were
neither
disclosed nor agreed upon between the consignor and the consignee earlier; or
(v) non-payment of charges agreed and payable to truck-owners
Air Carriage

Schedule I Rule 17 The carrier is liable for damage sustained in the event of the
death or wounding of a passenger or

[8]
 any other bodily injury suffered by a passenger, if the accident which
caused the damage so sustained
took place on board the aircraft or in the course of any of the operations
of embarking or disembarking.
Rule 18. (1) The carrier is liable for damage sustained in the event of the
destruction or loss of, or of
damage to, any registered luggage or any goods, if the occurrence which
caused the damage so sustained
took place during the carriage by air.
Rule 19The carrier is liable for damage occasioned by delay in the
carriage by air of passengers, luggage
or goods.

Schedule II same as schedule I

Schedule III Rule 17. (1) The carrier shall be liable for damages sustained in case of
death or bodily injury of a
passenger upon condition only that the accident which caused the death
or injury took place on board the
aircraft or in the course of any of the operations of embarking or
disembarking.
(2) The carrier shall be liable for damages sustained in case of
destruction or loss of, or of damage to
checked baggage upon condition only that the event which caused the
destruction, loss or damage took
place on board the aircraft or during any period within which the
checked baggage was in the charge of
the carrier. However, the carrier shall not be liable if and to the extent
that the damage resulted from the
inherent defect, quality or vice of the baggage. In the case of unchecked
baggage, including personal
items, the carrier is liable if the damage has resulted from its fault or
that of its servants or agents.
(3) If the carrier admits the loss of the checked baggage, or if the checked
baggage has not arrived at
the expiration of twenty-one days after the date on which it ought to have
arrived, the passenger shall be
entitled to enforce against the carrier the rights which flow from the
contract of carriage.
Rule 18. (1) The carrier shall be liable for damages sustained in the
event of the destruction or loss of, or
damage to, cargo upon condition only that the event which caused the
damage so sustained took place
during the carriage by air.
Rule 19The carrier shall be liable for damage occasioned by delay in the
carriage by air of passengers,
baggage or cargo.

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 Sea Carriage

Art III clause 5 The shipper shall be deemed to have guaranteed to the carrier the
accuracy at the time of shipment
of the marks, number, quantity, and weight, as furnished by him, and the shipper shall
indemnify the
carrier against ail loss, damages, and expenses arising or resulting from inaccuracies in
such particulars.
The right of the carrier to such indemnity shall in no way limit his responsibility and
liability under the
contract of carriage to any person other than the shipper.
Multimodal Transportation

Sec 13(1) The multimodal transport operator

shall be liable for loss resulting from—
(a) any loss of, or damage to, the consignment;

1. Subs. by Act 44 of 2000, s. 6, for clause (h) (w.e.f. 5-12-2000).

2. Subs. by s. 6, ibid., for clause (k) (w.e.f. 5-12-2000).
3. Ins. by s. 6, ibid. (w.e.f 5-12-2000).
8
(b) delay in delivery of the consignment and any consequential loss or damage arising
from such
delay,
where such loss, damage or delay in delivery took place while the consignment was in his
charge:
Provided that the multimodal transport operator shall not be liable if he proves that no
fault or neglect
on his part or that of his servants or agents had caused or contributed to such loss,
damage or delay in
delivery

9. On whom does the burden of proof (BOP) lies while bringing an action against
the Carrier or Multimodal Transport Operator.

The plaintiff is the 'dominus litus' and as per Section 102 of the Indian Evidence
Act, 1872, the burden of proof in the suit lies on the plaintiff, the person, who
would fail, if no evidence at all were given on either side as held in case of
M/S.Carborandum Universal Ltd vs M/S. M.G.International on 30 October,
20145

5
S.A. No.6 of 2008, https://indiankanoon.org/doc/103663962/

[10]
10. Discuss one case law on Domestic Air Carriage with discussion on relevant
Notification

Case Title : NAMRATA SINGH & ORS , NIRMAL & ANR

vs.DIRECTOR GENERAL CIVIL AVIATION(DGCA) & ORS
Name of Parties :
NAMRATA SINGH & ORS , NIRMAL & ANR and DIRECTOR GENERAL CIVIL
AVIATION(DGCA) & ORS.
Issues Involved :
(i). Whether or not the petitioners are entitled to compensation?

(ii). If, the petitioners are found to be entitled to compensation, can they claim
compensation under the 1972 Act?

(iii). In case the answer to issue no.(ii) is in the affirmative, what would be the
quantum of such compensation?

(iv). Are the petitioners entitled to compensation, over and above that which is
provided in the 1972 Act by virtue of their employment contract, with respondent
no.3?

(v). In the event the answer to issue no.(iv) is in the affirmative, is respondent no.3's
liability towards the petitioners covered under the Insurance Contract executed
between itself and UICL?

(vi). If, the answer to issue no.(v) is in the affirmative, to what extent would UICL be
liable?

(vii). What should be the final relief, if any, in the instant case? Issue no.(i)
Provision of Law discussed :
Section 5 in The Air Force Act, 1950
The Air Force Act, 1950
Section 3 in The Air Force Act, 1950
Section 4 in The Air Force Act, 1950
Section 6 in The Air Force Act, 1950
Section 8 in The Air Force Act, 1950
Article 226 in The Constitution Of India 1949
The Fatal Accidents Act, 1855
The Indian Contract Act, 1872
Courts’ observation on the Issues:

With the 2009 Amendment, several changes were brought about in the Act.
Amendments were made to not only the long title but also to Section 2, 3, 4, 5 and 8 of
the 1972 Act. Two new Sections were inserted i.e. Section 4A and 6A. In addition to
the above, the 2009 amendment inserted a new Schedule i.e. the Third Schedule to the
1972 Act. The GOI by a notification bearing no. SO 142(E) dated 17.01.2014By virtue
of this notification, the GOI brought about changes in the Third Schedule In so far as

[11]
 this issue is concerned, one is required to determine the quantum of compensation
that would be payable to the petitioners. As discussed above, since the 30.03.1973
notification would be applicable in the instant case, the petitioners, in the two writ
petitions, would be entitled to a compensation of Rs.7,50,000/- each as on the date of
the accident, the pilot and the co-pilot were more than 12 years of age. This position
in the instant qua the petitioners has changed as Respondent no.3 arrived at contract
with the crew to provide for a higher liability; an aspect which I discussed here after.
As regards as to whether the petitioners are entitled to compensation, over and above
the 1972 Act, by virtue of the employment contract, the answer would depend upon
the express and / or implied provisions of the said contract .Therefore, the DGCA/
UOI shall file an Action Taken Report (ATR), within four weeks from today, with
regard to the safety recommendations made by the Committee via its report. List for
compliance only on this aspect on 18.03.2016For all other purposes the writ petitions
are disposed of, in the aforesaid terms. Costs in the petitions are fixed at Rs. 15,000/-
each. The UICL will pay the two sets of costs to the petitioners

11.Role of successive Air carriers as against carriers in combined Carriage.

Sec31. (1) In the case of combined carriage performed partly by air and partly
by any other mode of

carriage, the provisions of this Schedule apply only to the carriage by air,
provided that the carriage by air

falls within the terms of rule 1.

(2) Nothing in this Schedule shall prevent the parties in the case of combined
carriage from inserting

in the document of air carriage conditions relating to other modes of carriage,

provided that the provisions

of this Schedule are observed as regards the carriage by air.

12. Differentiate between the role and functions of Bill of lading and Charter Party

Title/headings of Bill of Lading Charter party

discussion

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 For e.g. The shipper and the carrier. Charterer (shipper)and
Parties Involved ship owner
Meaning This represents a document It refers to an
acknowledging receipt of agreement to hire a
goods on board for carrying whole or major part
them over to specified port of of ship when the goods
destination take exported is heavy
Transferable It can be transferred to third It cannot be
party by endorsement and transferred to third
delivery party
Loan Loan can be raised against it Loan cannot be raised
against it
Crew Master and crew remain the Master and crew
agent of ship owner become the agent of
exporter for a
temporary period

Lease It is not a lease of ship It is a lease of ship

13. Role of Endorsement and endorsees’ rights under a Multimodal Transportation.

Sec 8 of Multimodal Act says that: Multimodal transport document to be regarded

as document of title.—(1) Every consignee named in the negotiable or non-
negotiable multimodal transport document and every endorsee of such

document, as the case may be, to whom the property in the goods mentioned
therein shall pass, upon or by reason of such consignment or endorsement, shall
have all the rights and liabilities of the consignor.

(2) Nothing contained in sub-section (1) shall prejudice or affect the right of the
multimodal transport operator to claim freight from the consignor or enforce any
liability of the consignee or endorsee by reason of his being such consignee or
endorsee.

[13]
14. How are mode-specific carriers (i.e. road or sea carrier etc.) are different from
Multimodal transport operator(MTO)? Discuss with 1 Case law.

Contract

Intermodal transportation sees each mode of transportation as a different contract.

On the other hand, multimodal transportation maintains higher efficiency as the
entire process comes under the monitoring radar of one single carrier. Thus, under
intermodal, the product or container’s responsibility moves from one hand to other,
making it challenging to maintain strict control over quality. On the other hand,
multimodal has the advantage of keeping the freight under control. Creating a
unified ticketing system is more accessible with multimodal transportation.
However, the passengers have to take care of individual ticket purchases for each
stage of transit.

Flexibility

Intermodal transportation allows the passenger or carrier contractor to choose the

best of each mode of transportation. For instance, he can choose the fastest ferry
service to save hours in transit and comfortable road transportation over public
transportation. In multimodal transportation, the entire process is the choice or
model provided to the contractor or passenger based on the service provider’s
model.

Delay and Overhead

In terms of overhead and delay, the contractor should keep track of every delay and
complications, in each transportation mode. For instance, if an individual is
traveling from airport to a remote region, he has to take into account the delay in
train arrival, match it up with boarding public road transportation, and so on. One
mode of transportation will not have complete information about the complications
and delays in another, which leads to incoherence in intermodal transport.
However, in terms of multimodal, the entire process is under the control of one
service provider, which gives ease to the contractor or service user.

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Cost

Intermodal transportation deals with a new contract for every mode of

transportation, which increases the overall cost of transportation for the contractor
or passengers. In the case of multimodal transportation, the operation cost of
setting up such a service is high, but the overall package for the user can be cost-
efficient than intermodal. Multimodal transportation gives better routing efficiency
than intermodal transportation.

Government Regulation

In case of both the origin and destination located in the same country, there isn’t a
considerable difference in regulations of intermodal and multimodal transportation.
Let’s say both points (origin and destination) are on different continents, the
shipment company has to create a contract that covers the regulations of both the
governments.

While dealing with international transportation, the regulations ratified on the

process by each country is different. This difference increases the complexity of
the contract of multimodal transportation. Some countries do not have the
infrastructure to implement multimodal transportation. In such cases, intermodal
transportation is the best option.

Reliability / Insurance / Claims

At each node, the carrier provides a contract of lading, which shifts the
responsibility of the cargo or transportation to the next service provider, in the case
of intermodal transportation. Thus, during cargo claimants, the process can
become complicated and tangled into webs of conditions. The claim process can
vary based on the type of bill of lading provided by each carrier service provider.
Depending upon the contractual conditions and agreements, the claimant’s
position will vary. In the case of multimodal transportation, one contract stands
valid, and the service provider is claimable in case of any misfortunate events.

[15]
Insurance

In the case of multimodal transportation, single umbrella insurance covers every

mode of transportation. The intermodal transportation increases the overall cost of
operation by requiring different types of insurance for each contract. However, this
individual insurance can provide better safety and security of transportation for
those transporting fragile or perishable products. The overall insurance concept is
quite applicable while choosing multimodal public transportation for an area or city.

Speed vs. Cost

Multimodal transportation and intermodal transportation are both efficient in terms

of speed and value when compared to conventional trucking logistics. However, in
an in-depth analysis of intermodal vs multimodal concepts, multimodal
transportation is the best when commuters put more emphasis on speed than the
cost of transportation. This reason is why multimodal transportation is the best
replacement for the public transportation system. In terms of intermodal
transportation, it is cost-efficient, but the pressure and complexity of intermodal
routing and creating a combination of transportation modes fall on the head of the
contractor or traveller, which can become a daunting process if used daily.

In the case of M/S.Carborandum Universal Ltd vs M/S. M.G.International on 30

October, 2014Court is of the considered view that multimodal transportation is
applicable, since there are two modes of transportation, one by way of Sea then by
road, again by Sea and as per Bill of Lading, which would make it clear that the suit
consignment could be construed only as multimodal transportation. Hence,
Multimodal Transportation of Goods Act, is applicable to the instant case

It is an admitted fact that the cargo relating to the suit was loaded in the vessel at
Hamburg seaport, then the same had to reach Chennai seaport. However, as there
was no sea port at Hamburg, the consignment of goods were transported through
roadways and again loaded in another vessel, in order to reach Chennai seaport.
As the mode of transport of the consignment of goods was in seaways, roadways
and again seaways, the Multimodal Transportation of Goods Act, 1993 is applicable

When there is no other mode of transportation available other than one single
transportation mode it is said to be intermodal transportation.

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It is well settled that the appellants or other parties are not entitled to take advantage
of their own wrong or default and seek an order to condone the delay. It is well
settled that when the claim is barred by limitation, such delay could not be
condoned by Court. In the instant case, it has been made clear that Multimodal
Transportation of Goods Act, 1993 is applicable, as there was seaways and
roadways and also as per the averments of the Bill of Lading.

15. Differentiate between Government Railway and Non –Government Law and
provisions relating to them under the law

Government Railway NON Government Railway

Def
Example:IRCTC IN INDIA
Sec 2(20) “Government railway”
means a railway owned by the
Central Government
Sec 32“railway administration”, in
relation to—
(a) a Government railway, means
the General Manager of a Zonal
Railway
Sec 13. Protection for Government
property.—Nothing in sections 11
and 12 shall authorise—
(a) a railway administration of the
Government railway to do anything
on or to any works, lands
or buildings vested in, or in the
possession of, a State Government
without the consent of that
Government;
Def
Example:ARRIVA IN UK
Sec2(25)“non-Government
railway” means a railway other than
a Government railway
Sec 32“railway administration”, in
relation to-
(b) a non-Government railway,
means the person who is the owner
or lessee of the railway or
the person working the railway
under an agreement
Sec 13. Protection for Government
property.—Nothing in sections 11
and 12 shall authorise—
(b) a railway administration of a
non-Government railway to do
anything on or to any works,
lands or buildings vested in, or in
the possession of, the Central
Government or a State
Government,

[17]
 without the consent of the
Government concerned.

16. What is a risk rate? How is owners’ risk rate different from railways risk rate (
‘risk rate’) under the Railways Act.

Sec 63. Provision of risk rates.—(1) Where any goods are entrusted to a railway
administration for carriage, such carriage shall, except where owner's risk rate is
applicable in respect of such goods, be at railway risk rate.

(2) Any goods, for which owner's risk rate and railway risk rate are in force, may be
entrusted for carriage at either of the rates and if no rate is opted, the goods shall
be deemed to have been entrusted at owner's risk rate.

Sec 97 A railway administration shall not be responsible for any loss, destruction,
damage, deterioration or non-delivery in transit, of any consignment carried at
owner’s risk rate, from whatever cause arising, except upon proof, that such loss,
destruction, damage, deterioration or non-delivery was due to negligence or
misconduct on its part or on the part of any of its servants: Provided that,— (a)
where the whole of such consignment or the whole of any package forming part of
such consignment is not delivered to the consignee or the endorsee and such non-
delivery is not proved by the railway administration to have been due to fire or to
any accident to the train;

(b) where in respect of any such consignment or of any package forming part of
such consignment which had been so covered or protected that the covering or
protection was not readily removable by hand, it is pointed out to the railway
administration on or before delivery that any part of that consignment or package
had been pilfered in transit, the railway administration shall be bound to disclose to
the consignor, the consignee or the endorsee how the consignment or the package
was dealt with throughout the time it was in its possession or control, but if
negligence or misconduct on the part of the railway administration or of any of its
servants cannot be fairly inferred from such disclosure, the burden of proving such
negligence or misconduct shall lie on the consignor, the consignee or the endorsee.

[18]
17. What is the role of railway servant, Station Master, General Manager under the
Railways Act.

Role of railway servant:

Sec 50 A railway servant supplies ticket to passenger upon payment of fare.

Sec 53 Railway servant may permit change of name of a passenger having reserved
seat or berth subject to such circumstances as may be prescribed.

Sec 54 Railway servant will examine the ticket during the journey or at end of the
journey.

Sec 56 (3) without the permission of railway servant a person suffering from
infectious or contagious disease shall not enter the train.

Sec 66 Railway servant takes statement of description of goods

Sec 67 Railway servant has reason to believe that good containing are dangerous
and offensive ,will take notice from the person sending such good and may refuse
it also

Sec 90 Railway servant disposes unremoved goods at notified stations.

Sec 100 Railway servant has to book the luggage and give a receipt unless which
the railway administration will not be liable.

Sec 105 Railway servant checks the contents of certain consignment or luggage.

Sec 134 Railway servant needs to be in duty in order to be liable

Role of station master

Sec 49. Exhibition of certain timings and tables of fares at stations.—(1) Every
railway administration shall cause to be pasted in a conspicuous and accessible
place at every station in Hindi and English and also in the regional language
commonly in use in the area where the station is situated,—

(i) a table of times of arrival and departure of trains which carry passengers and
stop at that

station; and

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(ii) list of fares from such station to such other stations as it may consider
necessary.

(2) At every station where tickets are issued to passengers, a copy of the time table
in force shall be kept in the office of the station master.

Sec 113. Notice of railway accident.—(1) Where, in the course of working a

railway,—

(a) any accident attended with loss of any human life, or with grievous hurt, as
defined in the Indian Penal Code (45 of 1860), or with such serious injury to property
as may be prescribed; or

(b) any collision between trains of which one is a train carrying passengers; or

(c) the derailment of any train carrying passengers, or of any part of such train; or

(d) any accident of a description usually attended with loss of human life or with
such grievous hurt as aforesaid or with serious injury to property; or

(e) any accident of any other description which the Central Government may notify
in this behalf in the Official Gazette,

occurs, the station master of the station nearest to the place at which the accident
occurs.

General Manager

Sec 4. Appointment of General Manager.—(1) The Central Government shall, by

notification, appoint a person to be the General Manager of a Zonal Railway.

(2) The general superintendence and control of a Zonal Railway shall vest in the
General Manager.

Sec 192. Service of notice, etc., on railway administration.—Any notice or other

document required or authorised by this Act to be served on a railway
administration may be served, in the case of a Zonal Railway, on the General
Manager or any of the railway servant authorised by the General Manager, and in
the case of any other railway, on the owner or lessee of the railway or the person
working the railway under an agreement—

(a) by delivering it to him; or

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(b) by leaving it at his office; or

(c) by registered post to his office address.

18. How is the Railways Claims Tribunal Act 1987 related to Railways Act 1989

Sec 3. Establishment of Railway Claims Tribunal.—The Central Government shall,

by notification,establish a Claims Tribunal, to be known as the Railway Claims
Tribunal, to exercise the jurisdiction, powers and authority conferred on it by or
under this Act 3[and under Chapter VII of the Railways Act,1989 (24 of 1989).]
Sec 13. Jurisdiction, powers and authority of Claims Tribunal.—(1) The Claims
Tribunal shall exercise, on and from the appointed day, all such jurisdiction, powers
and authority as were exercisable immediately before that day by any civil court or
a Claims Commissioner appointed under the provisions of the Railways Act,—
(a) relating to the responsibility of the railway administrations as carriers under
Chapter VII of
the Railways Act in respect of claims for—
(i) compensation for loss, destruction, damage, deterioration or non-delivery of
animals or
goods entrusted to a railway administration for carriage by railway;
(ii) compensation payable under section 82A of the Railways Act or the rules made
thereunder; and
(b) in respect of the claims for refund of fares or part thereof or for refund of any
freight paid in respect of animals or goods entrusted to a railway administration to
be carried by railway.
[(1A) The Claims Tribunal shall also exercise, on and from the date of
commencement of the provisions of section 124A of the Railways Act, 1989 (24 of
1989), all such jurisdiction, powers and authority as were exercisable immediately
before that date by any civil court in respect of claims for compensation now
payable by the railway administration under section 124A of the said Act or the rules
made thereunder.]

[(1B) The Claims Tribunal shall also exercise, on and from the commencement of
Part XIV of Chapter VI of the Finance Act, 2017 (7 of 2017), the jurisdiction, powers

[21]
and authority conferred on the Tribunal under Chapter VII of the Railways Act,1989
(24 of 1989).]
(2) The provisions of the 3[Railways Act, 1989 (24 of 1989)] and the rules made
thereunder shall, sofar as may be, be applicable to the inquiring into or determining,
any claims by the Claims Tribunal under this Act.

19. Describe the process of filing complaint against a railway administration

If you wish to submit any suggestions and complaints related to the railway, click on the link given below.
Step 1. http://www.coms.indianrailways.gov.in/

Step 2.Fill the following form online to register your complaint with the railway

Step 3: To know the current status of your complaint and to ensure that whether any action has been taken on your complaint or
not . Click on the above link
or
DIAL 138 DIRECTLY

20. Whether Railway is a bailee or a common carrier? Substantiate with

case laws.

• East Indian Rly. Co. v. Jogpat Singh

• M. and S.M.Rly. Co. Ltd. v. Subbarao,

• Sheo Dayal Niranjan Lal v. G. I. P. Rly. Co

For the interpretation of the term "loss" in risk notes, and the opinion
expressed therein is that the railway company is liable if the goods are lost

[22]
in transit involuntarily or through inadvertences and that the word "loss"
does not mean pecuniary or other loss suffered by the owner of the goods
through being wrong-fully deprived of the possession, use, or enjoyment
thereof, but means loss of the goods while in transit, and such loss occurs
whenever the railway company to which the goods have been consigned for
conveyance involuntarily or through inadvertence loses possession of the
goods.

• The English common law regulating the responsibility of a common

carrier as stated by Cotton, L.J., in Bergheim v. The Great Eastern
Railway Co. L.R. 3 C.P.D. 221:

"The liability of a common carrier," says he, "as compared with that of
other bailees, is exceptional. He is answerable for the loss of goods
entrusted to him as such, though the loss be in no way caused by any
default on his part.

He is considered as having contracted to insure the safe delivery of, that is

to say, as having contracted to carry and deliver safely and securely (the
act of God and of the enemies of the Queen alone excepted) the goods of
which he, as common carrier, is bailee.

• Now this responsibility of a common carrier is an incident of his contract

which the law implies as having been agreed to by him when he accepts
goods delivered to him for carriage.

• Is such an incident of the contract inconsistent with the provisions of the

152nd Section of the Indian Contract Act?

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• Its seems that it is not; because any carrier (whether he is a common
carrier or not) under the provisions of the S.152, would incur the same
responsibility if he binds himself by a special contract to that effect.seems

• In the case of a common carrier, the law implies that he contracts to

undertake the insurance liability, the act of God and of the Queen's
enemies alone being excepted.

•The rule of English law regulating the responsibility of a common carrier

is therefore not inconsistent with the provisions of the section 152, or any
other section of the Indian Contract Act.

Provided that even where such 1 oss, destruction, damage, deterioration or

non delivery is' proved to have arisen from any one or, more of the
aforesaid causes, the railway administration shall not be relieved of its
responsibility for the loss, destruction, damage', deterioration or non
delivery unless the administration further proves that it has used
reasonable foresight and care in. the carriage of the animals or goods."

Railway is a 'COMMON CARRIER WITH FORESIGHT'

It is expected to carry the goods or animals of the consignor with the care
with which a man of prudence would carry his own goods or animals.

Such carrier knowing the perishable nature of the goods is bound to carry
the goods without unavoidable delay so that the goods may not be damaged
or deteriorated due to delay or detention in transit.

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The legislature in its wisdom, therefore, while making the railway liable as
a common carrier by the amending Act of 1961 thought it fit to introduce a
new provision by enacting SECTION 76.

Under the Act

• The object and reasons for SECTION 73 of the Railways Act, 1890 is
stated, to treat it on par with common carriers.

Save as otherwise provided in this Act, railway administration shall be

responsible for the loss, destruction, damage, deterioration or non-delivery,
in transit, of animals or goods delivered to the administration to be carried
by railway, arising from any cause except the following, namely,

(a) act of God;

(b) act of war:

(c) act of public enemies,

(d) Arrest, restraint or seizure under legal process:

(e) Orders or restrictions imposed by the Central Government or a State

Government or by any officer or authority subordinate to the Central
Government or a State Government authorized in this behalf.

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(f) Act or omission or negligence of the consignor or the consignee or the
agent or servant of the consignor or the consignee

(g) Natural deterioration or wastage in bulk or weight due to inherent

defect, quality or vice of the goods,

(h) Latent defects.

(j) Fire, explosion or any unforeseen risk:

River Steam Navigation Co. Ltd. v. Shyam Sunder Tea Co. Ltd.. AIR 1962
SC 1276

• The question whether a carrier is a common carrier or not has to be

decided on its public profession and such profession may be either by
public notice or by conduct.

. It is immaterial if the carrying is limited to particular goods or particular

routes or between specified points.

Sued for loss of goods in the tributary( in transit)

The H.C. reversed the finding of the Trial court and held;

[26]
There could be no doubt that the service in the tributary was in the nature
of a feeder service to the main route and the public profession made in
respect of the latter attached to it.

Further, that it was of no consequence that the feeder service yielded no

profits. Nor was regularity or otherwise of the feeder service a relevant
consideration.

Tugun Ram v. Dominion Of India And Ors.

• Whether a carrier is a private or a common carrier depends upon the

nature of 'the public profession made by the carrier with regard to the
carriage of goods under taken by it elsewhere.

• It follows, therefore that the mere fact that a common carrier is engaged
in the transport of goods from places on its transport system to places
outside it would not be sufficient to justify the conclusion that whatever
carriage it may undertake elsewhere is also in his capacity as a common
carrier.

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 Extra Question
(for those who could not do the assignment through Insert Learning platform)

M/S.Carborandum Universal Ltd v. M/S. M.G.International Transports GmbH

Follow the given link https://indiankanoon.org/doc/103663962/#insertlearning and answer

the following questions

Q1. Who filed the suit and against whom?

The suit is filed by M/s.Carborandum Universal Ltd and M/s. National Insurance Co.,
Ltd against M/s. M.G.International Transports GmbH and M/s. Falcon Air Services
(India) Pvt. Ltd

Q2. What was the role of M/s.Carborandum Universal Ltd.?

M/s Carborandum has a role of consignee and as per Sec 20 of Multimodal transport
Act the consignor should give a notice general nature of loss or damage in writing to
the multimodal transport operator at the of delivery of goods.

Where the loss or damage is not apparent sub sec 1 of sec 20 shall apply until notice
is given in writing by the consignee of loss or damage of the goods within six
consecutive days. After the date when the goods are handed over to the consignee.

Q3. State if it is a sea carriage or Multimodal carriage as per their definition and the
rout mentioned herein?

It is not in dispute that there is no port in Laufenburg and the nearest port is only
Hamburg in where the consignment had to be carried by road other than by sea.
Hence, it is evident to state that the carriage was multimodal and hence, the
provisions as found in the Multimodal Transportation of Goods Act, 1993 is
applicable. Learned counsel for the respondent submitted that there was no port in
Laufenburg and therefore, the road transport was also used to carry the consignment,
however the said factum is not in dispute. Therefore, the appellants cannot say that
the Multimodal Transport Act is not applicable and Carriage of Goods by Sea Act is
applicable, on account of the multimodal transportation.

When the term is Multimodal Transportation legally it has to be presumed that the
transportation is a multimodal Transportation, since the same was not by way of sea
alone. In the instant case, admittedly, the suit consignment was transported in the
vessel by way of sea and then roadways and again by way of sea, which shows only a
multimodal transportation and that was availed for importing of the suit consignment
to Chennai Port apart from the averments of the Bill of Lading which specifically says
that it was Negotiable Fiata Multimodal Transport Bill of Lading

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Q4. Who is the agent here and whose? Whether agent be made liable without
impleading the Principal? if yes state some provisions in your support.

M/S Falcon Air Services (India) Pvt. Ltd is the agent of M/s. M.G.International Transports
GmbH.

The agent cannot personally enforce nor be bound by contracts on behalf of principal.
Ordinarily an agent contracting in the name of his principal cannot be sued on such
contracts.

In PREM NATH MOTORS LTD., V. ANURAG MITTAL, 2009 (1) CTC 190, the Hon'ble Apex
Court has held thus:Section 23 of the Contract Act categorically makes it clear that an
agent is not liable for the acts of a disclosed principal subject to a contract of the
contrary. No such contract to the contract has been pleaded. An identical issue was
considered by this Court in the case of MARINE CONTRAINED SERVICES SOUTH PVT.
LTD., V. GO GO GARMENTS, AIR 1999 SC 80 where a similar order passed under the
Consumer Protection Act was set aside by this Court. It was held that by virtue of
Section 230 the agent could not be sued when the principal had been disclosed."

It is well settled that as per Section 230 of the Indian Contract Act, when there is a
disclosed principal, suit could not be maintainable, seeking damages against the agent,
leaving the principal, as per the decision rendered by the Hon'ble Apex Court in
Premnath Motors Ltd., v. Anurag Mittal, referred to above.

Q5. State 2/3 principles the court follows while looking at Question of 'Limitation' or
suit barred by limitation

AS PER SEC 24. Limitation on action,The multimodal transport operator shall not be liable
under any of the provisions of this Act unless action against him is brought within nine
months of --

a) The date of delivery of the goods, or

b) the date when the goods should have been delivered, or

c) The date on and from which the party entitled to receive delivery of the goods has the
right to treat the goods as lost under sub-section (2) of Section 13.

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HERE IN THIS CASE , THE COURT FOLLOWED THE FIRST TWO PRINCIPLES OUT OF
THREE ie a and b of sec 24 while looking at the question of limitation.

Q6. What is the role of Insurance Company here? and why was the Insurer interested
in filing the case and how is it entitled to file the case? Does the law allow this? If yes
under which provision?

Role of the insurance company is to indemnify the first appellant of the

damages suffered due to the defendant and then,Insurance Company is
entitled to the right of subrogation by virtue of execution of Letter of
Subrogation and Special Power of Attorney by the first appellant in favour of
the second appellant, that was marked as Ex.A10. The second appellant
having indemnified the loss of the first appellant, is entitled to recover the suit
claim from the respondent/defendant by virtue of Section 79 of Marine
Insurance Act. So, the law allows this.

It is also argued by the learned counsel for the appellants that the loss was
occurred on account of the failure on the part of the respondent in
discharging their duties under the Bills of Lading Act and Carriage of Goods
by Sea Act.

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