SARJOO PROSAD C. J.: This appeal is by the defendants and arises out of a suit for recovery of damages for loss of goods during transit. The plaintiff is a limited Company owning a tea garden known as the Nilmoni Tea Estate (hereinafter called the tea estate). The defendants are, (1) The River Steam Navigation Co. Ltd, and (2) Indian General Navigation and Railway Co. Ltd. Both the companies are incor­porated in England and they carry on the business of transport in India through their agents, they being joint owners of the Steamer Service between Dibrugarh and Calcutta. (2) The material facts are that on 10-9-46, at Dillibari Ghat on the Desang River," the plaintiff handed over to one Ram Naresh Mala (D. W. 1), a boatman, 120 chests of tea of various qualities for being ferried to Desangmukh Ghat on the main river Brahmaputra, from where they were to be shipped to Calcutta on the defendants' steamer. The boatman had been sent by the defendants with a country boat in tow of a launch belonging to the defendants, with instructions to carry the tea chests not only of the plaintiff but those of other tea estates as well. The tea chests belonging to the plaintiff and the other tea gardens were loaded on the boat which left for Desangmukh Ghat at about 8 or 10 A. M. on the morning of 11-9-1946. While the boat was proceeding on its •nward journey to Desangmukh, something hap­pened to it, as a result of which it sank almost Immediately, and the entire or almost the entire cargo was lost. This was at about 4 P. M. on the llth. The plaintiff and the other tea estates concerned were informed of the accident. They tried to help in the salvage operations but very little of the cargo could be recovered, at any rate nothing of the plaintiff's property could be saved. (3) The plaintiff's case is that the Dillibari Ghat on the Desang River is an out-station under Desangmukh, a station on the aforesaid Steamer Service belonging to the defendants. The defen­dants, as common carriers, received goods at Dillibari Ghat for carriage therefrom by boats to Desangmukh Ghat and then by steamer to differ­ent stations on payment of freight. (3) The plaintiff's case is that the Dillibari Ghat on the Desang River is an out-station under Desangmukh, a station on the aforesaid Steamer Service belonging to the defendants. The defen­dants, as common carriers, received goods at Dillibari Ghat for carriage therefrom by boats to Desangmukh Ghat and then by steamer to differ­ent stations on payment of freight. The plaintiff alleges that the accident was due entirely to the negligence of and want of due care and attention on the part of the defendants or their agents and employees, namely, the boatman and his crew; and the defendants are bound in law to make good the loss sustained by the plaintiff on that account. The value of the loss was assessed by the plaintiff at about Rs. 16,000/- and the plain­tiff asked for damages accordingly. (3a) The defendants (hereinafter called the Steamer Companies) have filed a joint written statement. They have contested the claim on various grounds. They denied having any station at Dillibari Ghat or that they received goods for carriage at that ghat. The steamer companies, according to them, have no staff to receive goods on their behalf and for carriage by them at any place other than the booking stations on the steamer companies' services. They, however, admit. that for facilities of shippers such as tea gardens* who send goods from a distant place to the steamer companies' station for shipment, the defendants supplied them with forwarding note forms to be filled in by the shippers, including the steamer station from which the goods are to be booked and despatched to their destination stations. They alleged that the practice is that such shippers make over the goods to the recognised boat contractor at the nearest river-ghat (i) for carriage of the same to the booking station at the defendants, and (ii) for delivery of the same to the defendants' station staff (usually sub-agents) along with the duly filled in or signed forwarding note for the purpose of booking and carriage by the steamer companies. They stated that the boat contractor has his own chalan forms and carried the goods from Dillibari Ghat to Desangmukh Steamer Station "at owner's risk" and realises hire or freight for the same, which is not included in the steamer freight charged by the defendants for carriage ort their own services. They stated that the boat contractor has his own chalan forms and carried the goods from Dillibari Ghat to Desangmukh Steamer Station "at owner's risk" and realises hire or freight for the same, which is not included in the steamer freight charged by the defendants for carriage ort their own services. They aver that the plain­tiff, as usual, delivered the tea chests along with the forwarding note to the boat con­tractor of his 'manjhi' (boatman) for carriage to Desangmukh and for the purpose of booking the consignment there, but the boat in which the chests were being carried struck some submerged snag and sank immediately. The defendants denied that the goods were ever delivered to them or that the boat belonged to them or that they had any control over the boatman and his crew; and they submit that the suit could not proceed in the absence of the boat contractor who was a necessary party. They contend in the alternative that even if it is assum­ed that delivery to the boatman was delivery to the defendants, the loss of the consignment was due to an 'Act' of God and not due to any negligence, They also plead, in bar to the plaintiff's claim, the terms of the forwarding note and those of a tea agreement between the parties. In apprising the plaintiff of the accident or in assisting in the salvage operations, the defendants say, they did nothing more than what should have reasonably been done to help their constituents, namely, the tea gardens. (4) The defendants in their written statement also challenged the plaintiff's claim for damages as excessive. But the evidence on the point of value of the loss sustained by the plaintiff has not been controverted. The Court, therefore, accepted the claim in full and indeed that finding has not been questioned on appeal before us. If, therefore, the-plaintiff succeeds in establishing the liability of the defendants, in respect of the loss, the amount of damage claimed will have to be awarded. (5) The trial Court, in a well considered Judg­ment, found in favour of the plaintiff on all material issues and against the pleas of the defen­dants, and decreed the suit. The two main issues which raised the question of defendants' liability were the third and the fourth issues. (5) The trial Court, in a well considered Judg­ment, found in favour of the plaintiff on all material issues and against the pleas of the defen­dants, and decreed the suit. The two main issues which raised the question of defendants' liability were the third and the fourth issues. On those issues, the Court held that Dillibari Ghat was at the relevant period under the management and control of the defendants and that the boatmen who used to carry the cargo from the said ghat to Desangmukh for transport by steamer were the defendants' agents; as such, the defendants, as common carriers, could not be exonerated from the loss suffered by the plaintiff. The Court also found that the loss was not due to any Act of God but due to the negligence of the boatmen in overloading the boat and in manipulating the same. Mr. Chatterjee for the appellants has strongly contested all these findings. (6) There is no doubt that the 120 chests of tea belonging to the plaintiff had been handed over to the boatman Bam Naresh Malla (D. W. 1) for be­ing ferried to Desangmukh Ghat. The main ques­tion, therefore, involved in this appeal is whether the delivery to the boatman was delivery to the de­fendants; in other words, whether the boatman was an agent of the defendants or an independent common carrier working under the boating contractor over which the defendants had no control. If it is held that the delivery to the boatman was delivery to the defendants, then there can be no doubt that the defendants as common carriers, would be liable for the loss of the goods unless they came within some of the exemptions provided by the law. The decision on the point in question depends upon the answer to certain other auxiliary ques­tions, namely, - (i) whether the Dillibari Ghat was a Ghat maintained by the defendants for the purpose of taking delivery of goods from the various tea estates, (ii) whether the supply of boats was in pursuance of a system adopted by the defendants in pursuit of their avocation of common carriers of goods, for which the boat hire was collected by the defendants; and (iii) whether the defendants could claim any exemption on the basis of the forwarding note. The evidence on all these points is almost mixed up and they will have to be dealt with together. The evidence on all these points is almost mixed up and they will have to be dealt with together. (7) The Dillibari Ghat is not on the main river Brahmaputra. It is on the Desang river and goods are ferried across from Dillibari Ghat on the Desang river to Desangmukh from so where the steamers of the defendant companies ply to various stations and carry cargo to their respective destina­tions. The evidence of Dhirendra Kumar Chakravarty, the plaintiff's manager, is that Dillibari Ghat on the Desang river is a part of Desangmukh Ghat and under the management of Desangmukh Ghat of the defendants. It implies in other words that it is a sort of a service station under the main station, Desangmukh Ghat. He further says that the Desang river, is a feeder river of the Brahma­putra and that Desangmukh Ghat itself is on the junction of the two rivers, the Desang and the Brahmaputra. He admits that the steamer com­panies do not maintain any staff at Dillibari Ghat and there is no arrangement at that ghat for the purpose of weighing the goods or marking the same. Nevertheless boats come to that ghat and load the goods there and they give all the papers to the boatmen to be made over to the steamer companies at Desangmukh. The evidence of the plaintiff's manager is sub­stantially supported by the evidence of Muhammad Abdulla, the Ghat Superviser at Desangmukh whose duty is to get cargo carried down and sent upward from and to gardens in the interior on the Desang river. He is an employee of the Steamer Companies and works under the instructions of their sub-agent. In his examination-in-chief, the witness alleged that the steamer companies had no station or out station known as Dillibari Ghat on the Desang river. There is one such station known as Rajabari on the Desang river where the steamer companies have their sub-agent, staff and a receiving flat. This Rajabarighat is under Desangmukh Ghat which is at a distance of about 15 or 16 miles by river from Desangmukh, whereas Dillibari Ghat, which the witness calls the garden-ghat, is about 60 or 70 miles by river from Desang­mukh. He further says that both the Ghats, Raja­bari and Dillibari, are on the Desang river. In cross-examination, however, the witness makes some very important admissions. He further says that both the Ghats, Raja­bari and Dillibari, are on the Desang river. In cross-examination, however, the witness makes some very important admissions. He states thus: "Rajabari Ghat is a feeder station of the steamer companies. A flat is always maintained at the ghat for the receiving and delivering goods. In winter, cargoes being sent in the boats of Nur Muhammad, but in summer feeder carries goods, (sic). Similarly we get things carried down and sent upward to Dillibari . on country crafts managed through a contractor. Dillibari and other Ghats are maintained for about 5 months from June to October. The Joint Agent at Dibrugarh of the Steamer Company sends in­formation to the gardens on the Dikhan and Desang rivers when the temporary Ghats such as Dillibari on the Desang and other Ghats are opened for loading and unloading. It is the practice with the Steamer Companies (defen­dants) that all the gardens are previously inti­mated that whenever the gardens are to send goods they (the gardens) must send requisition to the Steamer Companies (defendants) to ar­range boats. The downward cargo consists only of tea chests. On the body of the tea chests, the weight, name of the garden, nett weight and descriptions of the teas are stencilled on the boxes. The Steamer Companies (defendants) issue instructions to the tea gardens that if they want .to despatch these goods by Desangmukh Ghat, they should stencil the mark "DGMK" meaning Desangmukh on the boxes. It is the rule to weigh 10 per cent of the boxes as a token of weighment. The Steamer Companies (defen­dants) maintain and upkeep the river course of the Desang River by making clearance and re­moving snags and other sub-merged stumps and logs. Late Nur Muhammad used to get Rs. 507-per month as an allowance. The allowance used to be remitted from the office of the Joint-agent of the defendants." Now, this evidence of Muhammad Abdulla is very significant. It clearly indicates that Dillibari and other ghats Which are temporary ghats are opened by the defendants for loading and unloading the cargo, and they are maintained for about five months, from June to October by the steamer com­panies who also clear the river course of Desaiig and remove snags and other sub-merged stumps and logs. It clearly indicates that Dillibari and other ghats Which are temporary ghats are opened by the defendants for loading and unloading the cargo, and they are maintained for about five months, from June to October by the steamer com­panies who also clear the river course of Desaiig and remove snags and other sub-merged stumps and logs. The evidence also shows that according to the practice of the steamer companies, the gardens concerned must send requisition to the Steamer Companies to arrange boats, and then, according to instructions, the tea chests are deli­vered to the boatman for being carried to Desang-mukh. Dillitaari Ghat was, therefore, used by the defendants companies for the purpose of loading and unloading. It was a sort of a temporary Ghat opened and maintained by the defendants. A make-shift arrangement of this character would not naturally have the elaborate staff and para­phernalia of booking and weighment. Indeed these temporary ghats were used by the country boats whose crew could supply the requisite staff for taking delivery. Therefore not much assistance can be received from the fact that the names of these sub-stations do not find place in the time­table or the fare-table of the defendants which, of course mentions the other stations. Abdulla has also stated that even the so-called boating contractor Nur Muhammad was in the pay of the defendants. It is important to remember that in this case, according to the practice, spoken of by Abdulla, the Manager of the tea estate wrote to the Ghat Supervisor at Desangmukh on 29-8-46 asking for a boat to carry the tea chests which had been already marked and stencilled (Ex. 2). The Ghat Supervisor replied to this letter on 2-9-46. The contents of this letter (Ex. 3) are impor­tant. They are as follows: "R. S. N. Go. Ltd. and I. G. N. and Rly Co. Ltd. (Incorporated in England) Office memo No. B/855 Desangmukh Agency, 2-9-46 Re: Boat. With reference to your letter, dated 29th August, 1946, I beg to advise that a boat in charge of Ram-naresh Manjhi left here today in tow of a launch with instruction to bring down your tea also Sarajani, Korangani and Longbai. Please return the boat at an early date." Now, it is obvious from this letter that the defen­dants' Ghat Supervise^ arranged to send the boat in question in charge of Ramnaresh Malla. Please return the boat at an early date." Now, it is obvious from this letter that the defen­dants' Ghat Supervise^ arranged to send the boat in question in charge of Ramnaresh Malla. It was towed up by a launch belonging to the defen­dants, and the boatman had instructions to carry the tea not only of the plaintiff's tea estate but of three other tea estates - Sorajani, Korangani and Longbai. The Manager of the plaintiff's tea estate was further directed to return the boat at an early date, and not to detain it. On the strength of this communication the delivery was made to the boatman. That is what the plaintiff's manager says: "I received the letter Ex. 3, dated 2-9-1946 from the Ghat Supervisor of Desangmukh of the defendants Company intimating me that boats have been sent on tow of launch belonging to the Defendant Company. I sent the tea chests after receipt of Ext. 3, on 10-9-1946 under Exts. C(l) to C (4). At Dfflibari Ghat on the Desang River one Ramnaresh Malla loaded the tea chests on the boat. Ramnoresh Malla was a man of the Defendant Company. Ext. 6(1) to 6(4) are the copies of garden Invoices on which the signature of Ramnoresh Malla was obtained as a token of receipt of the goods delivered to him, Exhibit 6(1) (1), 6(2) (1), 6(3) (1) & 6(4) (1). I handed over to Ramnoresh Malla Exf. C(l) to C(4) which are the copies of Ext. 6(1) to 6(4) and the forwarding Note Ext. B and covering letter Ext. A." Ramnoresh corroborates the Manager. I shall dis­cuss the forwarding Note Ex. B at a later stage. The covering letter Ex. A dated 10-9-48 is address­ed to the Ghat Supervisor Desangmukh Ghat and runs thus: "Dear Sir, -- Re-Garden Invoice No. L.C. 7, 8 and 9D/4. - 120 chests. Enclosed please find P. Note and relative invoice papers, etc., cover­ing 120 chests tea for the above invoices, for your doing the needful. Please acknowledge receipts. Enclo. - 5. Yours faithfully, Sd/- ILLEGIBLE. Manager, Per Ramnaresh Malla, Nilmoni Tea Estate." Boatman." On the above materials it is repeatedly urged by the learned counsel for the plaintiff that the deli­very on the strength of the letter Ex. 3, v/as suffi­cient to constitute the' liability of the defendants, as common carriers. Please acknowledge receipts. Enclo. - 5. Yours faithfully, Sd/- ILLEGIBLE. Manager, Per Ramnaresh Malla, Nilmoni Tea Estate." Boatman." On the above materials it is repeatedly urged by the learned counsel for the plaintiff that the deli­very on the strength of the letter Ex. 3, v/as suffi­cient to constitute the' liability of the defendants, as common carriers. The subsequent conduct of the defendants also shows that the responsibility for the loss was on them,. After the goods were lost, the Joint Agent of the Steamer Companies informed the Manager of the Tea Estate by a letter, dated 19-9-1946, .(Ext. 4), that the country boat manned by Ramnoresh Malla, boatman, and carrying chests of tea from the plaintiff's estate, had struck at a submerged tree in the Desang River above Borbamghat and sank almost imme­diately. The accident occurred at about 4-30 P. M. on 11-9-1946. It further stated that salvage opera­tions had not been possible and that he would advise the plaintiff further as soon as he heard from the boating contractor, and that the boat­man, Ramnoresh Malla, had sworn an affidavit in the Court of a Magistrate at Sibsagar, a copy of which would be forwarded to the plaintiff. The letter then gives particulars of the tea chests of Nilmoni Tea Estate loaded on the boat which capsized. Prior to this, the manager of the plaintiff had already written a letter to the Ghat Supervisor on 12-9-1946, from which it appears that the plain­tiff had got information of the accident and the loss of the tea chests. The evidence also shows that at the request of the Manjhi or boatman, the plaintiff was helping him with labourers in saving the boat and its cargo and that the plain­tiff's manager also wrote some letters to the defen­dants' sub-agent asking him to take steps in mak­ing the salvage operations effective - (Vide Exts. D and E). The affidavit sworn by Ramnoresh is on the record. In this affidavit (Ext. I and I (1) ) Ram­noresh describes himself as an employee of the boating contractor under the defendant Companies, his duty being to carry tea chests by boat from various gardens to Desangmukh Steamer Ghat. D and E). The affidavit sworn by Ramnoresh is on the record. In this affidavit (Ext. I and I (1) ) Ram­noresh describes himself as an employee of the boating contractor under the defendant Companies, his duty being to carry tea chests by boat from various gardens to Desangmukh Steamer Ghat. He then proceeds to narrate that on 11-9-46, he had been carrying by boat 372 chests of tea from different gardens loaded at Dillibari Ghat and was proceeding towards Desangmukh Ghat when an accident happened, and that all attempts to save the boat and the tea chests failed. The affidavit also gives particulars of the various in­voices of the tea estates, including the invoice relating to the 120 tea chests of the plaintiff. This affidavit was later forwarded by the defendants' Joint Agent to the Manager of the plaintiff under letter dated 27-9-46 (Ex. 8). (8) The defendants are business people running big organisations and transport systems, and it is difficult to believe that if, in fact, they had no legal responsibility in the matter, they would un­necessarily undertake all this elaborate precaution. Their conduct was not merely officious just to oblige the tea estate, but it was due to the fact that they realised that the loss of the cargo had happened after their agent, the boatman, had taken delivery of the same and that the system of taking delivery at Dillibarighat was also a part of the system of transport which they were operat­ing as common carriers. (9) The above view is further confirmed by the procedure according to which the boat-hire used to be realised by the defendants for the transport of goods from the garden ghats, temporarily open­ed by them, to their steamer station, at Desang­mukh. The boat-hire was, of course, not realised as a part of the steamer freight paid for the trans­port of goods on the regular steamer system of the defendants which operated on the big river Brahmaputra itself. In the case of the feeder rivers, streams or channels, where the transport of goods was effected through country boats, ano­ther auxiliary system appears to have been main­tained by the defendants. The evidence of the plaintiff's Manager is that he never had any talk with the boatman for payment of the boat-hire. In the case of the feeder rivers, streams or channels, where the transport of goods was effected through country boats, ano­ther auxiliary system appears to have been main­tained by the defendants. The evidence of the plaintiff's Manager is that he never had any talk with the boatman for payment of the boat-hire. The defendant com­panies used to bill the tea estates, generally at the end of each month, as the evidence shows and the tea estates used to pay the bills to the defendants, in respect of the boat-hire. The bills were prepared by Macniell and Company who are the agents of the defendants. The plaintiff's Manager has proved some of the bills (Ext. 9 series) for the months of July and August 1946 and 1947. He has proved the money-order acknow­ledgment receipts showing payment of such bills (Ext. 10 series). Against the name of the payee in those receipts, is the Sub-agent Desangmukh Ghat, but the acknowledgments bear the signa­ture of the Ghat Supervisor, Md. Abdulla. The Manager has also proved the stamped receipt, Ext. 11, on account of payment of boat-hire singed by the Ghat Supervisor Md. Abdulla, Pro. Macneill & Co., and not by the boating contractor. At the top of the receipt are the words "Desangmukh Agency". This receipt is dated 3-9-46, and is in respect of bill No. 14 dated 9-8-46. Abdulla's evidence on the point is again very material. He deposes that he draws the bills for boat-hire and sends them to the Steamer Com­pany's office at Dibrugarh for counter-signature of the Agent, and the Agent of Macneill Company sends them back to him for collection. He then collects the bills from the tea gardens. The boat­ing contractor, he admits, does not submit any bill for the works done by him. His evidence, there­fore, in examination-in-chief that the tea garden pays the boat-hire direct to the boatman, is not correct. His evidence also is that he maintains all the account books and all other papers and books separately of Macniell Company and 'A. R. T.' Company, and those papers and .documents are kept in the office of the Steamer Companies, meaning the defendants. He admits that Macniell Company or 'A. R. T.' Company do not have any separate establishment at Desangmukh, and that he does all the works on behalf of Macniell and A. R. T. Company at Desangmukh under orders of Mr. He admits that Macniell Company or 'A. R. T.' Company do not have any separate establishment at Desangmukh, and that he does all the works on behalf of Macniell and A. R. T. Company at Desangmukh under orders of Mr. Pledges, the Joint-Agent at Dibrugarh. This Mr. Hedges has also been examined on behalf of the defendants. He admits that at the material time he was the Joint Agent at Dibru­garh, and that as such he managed the affairs of the two Companies (the defendants). Hedges has also stated that the Steamer Companies in certain cases pay a proportion of the boating hire in order to attract traffic, and that this was the system of the Desang River for many years. The amount paid to the boating Contractor by the Steamer Companies is in addition to the boating hire realised and collected from the garden. This was done to ensure profit to the boating con­tractor. This evidence of Hedges coupled with the admission of Abdulla that the so-called boating contractor Nur Muhammad used to get an allow­ance of Rs. 50/- per month from the defendants, which was remitted to him by their Joint-Agent shows that the boat hire was realised by the defendants from the plaintiff and that the defen­dants employed and paid on their own terms the boating contractor or the boatmen whom they sent to take delivery of the goods at the garden ghats. The Letter dated 9-10-1943 (Ex. 1) sent by the Joint-Agent of the defendants to the plaintiff's Manager shows that the boat-hire had been en­hanced and that the Joint-Agent had submitted the bills accordingly. In view of all this evidence, both oral and documentary, it is impossible to accept the averment in the written statement that the boating contractor had his own challan forms and carried the goods from Dillibari Ghat to Desangmukh Steamer Station "at owners' risk" and realised hire or freight for the same. It is also impossible to accept the development made in the deposition of Hedges that Macniell and Company acted as agent of the boating contractor in preparing the bills and in collecting the boat hire from the tea gardens with which the defen­dants had no concern whatsoever. (10) The evidence very clearly discloses that it is the, defendants who employed the boating contractor or the boatmen working under them and maintained the boats. (10) The evidence very clearly discloses that it is the, defendants who employed the boating contractor or the boatmen working under them and maintained the boats. These boats were supplied to the tea gardens, on requisition from them, by the defendants, who also maintained the temporary ghats for the purpose of taking delivery of the tea chests at those ghats, Dilli-bari Ghat being one such Ghat; and that they also realised the boat-hire for the carriage of the cargo in country boats from the garden ghats to their Desangmukh Station. The contention of Mr. Chatterjee, therefore, that in supplying these boats, the defendants were merely acting as agents of the plaintiff, cannot be sustained. If the evi­dence had shown that the boatman or the boat­ing contractor was an independent carrier, then, of course, the defendants could take advantage of Ss. 194 and 195, Contract Act. But on the facts, as found above, S. 195 has no application to the case at all, and cannot be invoked by the defen­dants to absolve them of their liability. The find­ing of the learned Subordinate Judge on that point is perfectly justified, and he has rightly held that the goods in suit were delivered to the defendants' agent at Dillibari Ghat for the pur­pose of carriage from that out-station to Desang­mukh Ghat Station and from thence by steamer to their destination in Calcutta. The delivery to the boatman was in effect delivery to the defen­dants. (11) Mr. Chatterjee has laid great stress upon the terms of the forwarding note, Ext. B, and upon the statement of the plaintiffs' Manager that the steamer companies would not receive any cargo without its being accompanied by a for­warding note of the description given in Ext. B. He has also relied upon the evidence of Md. Abdulla when he stated that "the boat Manjhi who delivers the goods or whoever brings the goods, signs the forwarding Note on the space where the certificate is to be given." He contends that on this point, there was no cross-examination by the plaintiff and this part of the statement remained unchallenged. Even if this statement is accepted as correct, I am un­able to see how it helps the case of the defen­dants. Even if this statement is accepted as correct, I am un­able to see how it helps the case of the defen­dants. In the first place, the forwarding note does not apply to the auxiliary system under which the goods were carried from the sub-stations or garden ghats by country boats to Desangmukh Ghat. It applies to the main transport system by steamer. In order to facilitate the transport of cargo by their steamers, there was nothing to prevent the defendants from adopting different auxiliary transport systems for the carriage of goods from the tea estates themselves to their regular steamer ghats. For example, instead of the plaintiff tea estate transporting the chests of tea to Dillibarighat by carts, the defendants could have further extended their carrier system so as to secure delivery of the goods from the differ­ent gardens or their factories and carry the same to the garden ghats by vehicular traffic, and from there by country boats to Desangmukh and again from Desangmukh, by steamer, to their respective destinations. In that case, three different systems of trans­port governed by different contracts as to carriage and payment of hire or freight may have been operated by the defendants - all in course of their avocation as common carriers. In that case, factors governing one system, may have been, or perhaps in the nature of things should have been, quite different and apart from the factors govern­ing the other system, and not identical or con­fused with one another. The position here is the same. The question whether the defendants did or did not operate these different systems as common carriers, would be entirely a question of fact depending upon the evidence in each case. Indeed such instances are not uncommon. We know from experience in the case of Railway Companies that they take delivery of goods from factories through railway sidings specially meant for such factories and from there they despatch the goods to their regular stations. I quite realise that once the Common Carrier has taken delivery of the goods, whether at the factory or at the garden ghat, or at the steamer ghat, no question of fresh delivery arises because the delivery of the self-same goods to the carriers can only be made once. Once the goods have been delivered to him, there can be no question of any fresh delivery from stage to stage. Once the goods have been delivered to him, there can be no question of any fresh delivery from stage to stage. It, therefore, must be assumed that if delivery was made at the Garden ghat to the defendants or their agent, then there could be no fresh delivery at the steamer station, and the liability of the defen­dants as common carriers would be there if the goods happened to be lost after such delivery. The word 'delivery' has got no special significance. It refers merely to the physical act of making over the custody of the goods by the plain­tiff or somebody on his behalf to the defendants or their agent. There must be, however, mutual consent between the parties in order that the custody of the goods may conveniently pass from one to the other, and this consent may be even implied from the circumstances of each case. It may happen at times that although a common carrier may accept delivery of the goods and yet may have failed to book them or to give receipt for the same before they are lost in his custody. In such a case, the mere fact that the goods were' not booked or that a regular receipt had not been granted, will not make any difference to the liability of the common Carrier, provided the goods are proved to have been lost while in his custody: See - 'Jalim Singh v. Secy. of State for India', 31 Cal 951 (A). In construing the terms of the forwarding note, therefore, it will have to be assumed as the evi­dence also shows that the delivery of the goods was complete when they were handed over to the boatman at Dillibarighat. The goods, of course, could not be immediately booked at that Ghat, nor any receipt issued to the plaintiff there and then. The receipt could be sent in regular course at a later stage by the defendants after they had reached the Desangmukh Ghat and some other formalities were over. But if during the course of transit the goods were meanwhile lost, while in the custody of the defendants' agent, I am unable to see how, under the terms of the for­warding note, the defendants can escape liability. The forwarding note is on a printed form. The form is addressed to the defendants' agent at Desangmukh Station. But if during the course of transit the goods were meanwhile lost, while in the custody of the defendants' agent, I am unable to see how, under the terms of the for­warding note, the defendants can escape liability. The forwarding note is on a printed form. The form is addressed to the defendants' agent at Desangmukh Station. It says that the under­ mentioned goods may be received for carriage by the Despatch Service and forwarded as consigned below etc. The carriage is to be paid for by the consignee, and the name of the sender is the Manager, Nilmoni Tea Estate. Then there are several columns under various heads which have to be filled in, namely, (i) to whom consigned and addressed, (ii) the station to which consigned, <lii) the number of articles, (iv) the description, (v) the marks, (vi) sender's weight. In addition there are other columns for, weight at the send­ing station, the weight charged, the rate per annual, the freight paid or to pay, and remarks, if any. The columns which were to be filled by the consignor have been filled in by the Manager and signed by him except the columns which had to be filled in after checking the weighment, which, of course, had to be done by the clerks or the agents of the defendants, at Desangmukh Station. One may recall here the evidence of Abdulla that as a rule the practice was to weigh 10 per cent, of the boxes as a token test of weighment. The question is whether the omission to fill in those columns by the defendant's agents would make any difference to their liability. For the defendants, much reliance has been placed upon a note or condition at the bottom of the form which runs thus : "The person tendering goods for shipment shall be considered as doing so on behalf of the declared consignor and as empowered by the said consignor to sign or endorse this Forward­ing Note as circumstances or conditions at the time of actual shipment demand". Mr. Chatterjee contends that the person tender­ing goods for shipment was to be deemed, accord­ing to the above condition, to be doing so on behalf of the consignor, and was empowered to endorse the forwarding note as such. Mr. Chatterjee contends that the person tender­ing goods for shipment was to be deemed, accord­ing to the above condition, to be doing so on behalf of the consignor, and was empowered to endorse the forwarding note as such. That being so, the boatman who carries the goods for ship­ment to Desangmukh should be deemed to be the agent of the plaintiff, and not that of the defendants. This argument, in my opinion, is far-fetched and is not borne out by the document itself. It is no doubt open to a common carrier under S. 6 of the Common Carriers Act (Act in of 1835) to limit his liability by special contract signed by the owner of the property so delivered or by some duly authorised person in that behalf but the contract being in derogation of the common law, has to be strictly construed. The note in question is printed in red ink and so are the words "Persons despatching matches & other dangerous goods 'undeclared' are liable to six months' im­prisonment under the Inland Steam Vessel Act." Heading the note or condition as a whole, it only means that for certain purposes of making en­dorsement on the forwarding note, the person who tenders the goods for shipment at Desangmukh would be deemed to be empowered to sign for the 'declared' consignor. The signature or endorse­ment has reference simply to "circumstances or conditions" at the time of the actual shipment or to dangerous goods "undeclared;" it does not affect the general conditions of liability. The note hi question does not go beyond those special conditions, none of which has been proved to exist in the present case. Indeed the occasion for any such endorsement was out of question, because the stage of shipment had not reached. The note, therefore, cannot be read as creating a sort of a general 'agency for the plaintiff in favour of the person who carried the goods for shipment to Desangmukh. Such an interpreta­tion of the said term in the Forwarding Note would be not only opposed to all that weight of evidence in the Case which I have already dis­cussed, but even to the entire tenor of the docu­ment. It is to be noticed that all those columns in the Forwarding Note which had to be filled in by the sender, had been already filled in and signed by the Manager. It is to be noticed that all those columns in the Forwarding Note which had to be filled in by the sender, had been already filled in and signed by the Manager. All the other columns had to be filled in by the defendants' staff. It was open to them to check the particulars given by the plaintiff and note the difference, if any, in the relevant columns of the Forwarding Note. This could be done in the presence of the man who took the goods for shipment, and the said person could endorse those entries purporting to do so on behalf of the plaintiff. The certificate for those purposes or the declaration about accepted articles as notified in the schedule to the Carriers' Act has not been signed by the sender or his agents. Even assuming that they were to be signed by the boatman, the entries or the endorsements would be binding on the plaintiff only to that extent. The plaintiff may not have been entitled to question those entries made as a result of checking by the defendants' staff and the certifi­cate given. Otherwise the consignor or sender had nothing more to do with the Forwarding Note, which had been already filled in by him and handed over to the boatman. As the forward­ing letter Ex. A shows all needful steps had to be taken by the Ghat Supervisor of the defendants, who was also in possession of the invoices sent through the boatman in respect of the goods delivered. The letter Ex. A was sent in regular course of business and the recitals are important. It is therefore reasonable to hold that it was only for a limited purpose, if at all, that the person may be acting as the agent of the plaintiff, within the terms of that note. The note in question does not carry us anywhere. It does not mean that although the evidence showed that the boatman, as the defendants' agent had taken delivery of the goods, yet the defendants could escape liability by virtue of this term in the forwarding note, Ext. B. In fact, as I have shown, nothing remained to be done in respect of the forwarding note except to check the weighment and to put in the freight charged for the cargo. B. In fact, as I have shown, nothing remained to be done in respect of the forwarding note except to check the weighment and to put in the freight charged for the cargo. Abdualla's statement simply is that the forwarding note had to be signed by the boat man who delivers the goods or whoever brings the goods signs the forwarding Note in that space. He does not say that the boatman acts as 'Consignor's agent. There is no other explanation given by any of the other wit­nesses as to the meaning of the above term in the forwarding note. I am, therefore, unable to put any other interpretation on this provision in the forwarding note except the one which I have given, as otherwise it would militate against the entire weight of the evidence discussed by me above. Mr. Chatterjee also cannot derive any assistance from Clause 11 of the forwarding note which, of course, would apply where goods were accepted by the Steamer Companies for carriage 'beyond their own transport system'. Here I have already shown that the goods were carried on the defen­dants' own transport system though they were operating in two different modes. Therefore the decisions in - 'India General Navigation and Rly. Co., Ltd. v. Krishna Kanta Das', AIR 1949 Assam 25 (B) and - 'Chandubhai Patel v. River Steam Navigation Co., Ltd', AIR 1953 Cal 547 (C), have no application to the case. Hence, in any view of the matter, the terms of the forward­ing note afford no protection to the defendants and relieve them of the obligation which other­wise, as common carriers, is forced upon them by virtue of the fact that they obtained delivery of the goods and the goods were lost in course of transport while in their custody. (12) The common law of England regulating the responsibility of common carriers was in force at the time of the passing of the Carriers' Act (Act 3 of 1865) and is still in force in this country, being almost unaffected by the provisions of the Indian Contract Act. Section 6, Carriers Act, to which I have referred earlier, enables the common carrier to limit his liability by a special contract; otherwise the liability which the common law im­poses is there. Section 6, Carriers Act, to which I have referred earlier, enables the common carrier to limit his liability by a special contract; otherwise the liability which the common law im­poses is there. Even the special contract con­templated by S. 6 would be of no avail where the loss or damage has been caused by negligence or any criminal act on the part of the carrier or his agents or servants. Where the loss or damage arises from any criminal act of the carrier or any of his agents or servants, the common carrier shall be liable to the owner for the loss or damage, and S. 9 of the Act relieves the plain­tiff from the burden of showing that the loss or damage or non-delivery was owing to any such negligence or criminal act. These sections, therefore, recognise the common law doctrine, save in so far as the liability is limit­ed by some special contract, as provided by S. 6. Therefore, even if it were found .that the defen­dants took as much care of the goods as a man of ordinary prudence would, under similar circum­stances, the defendants would be liable if the loss was not occasioned by any act of God or the King's enemies, which, in case of republican (States, would mean the enemies of the State. There is a third exception recognised where there is some intrinsic vice or defect in the goods them­selves or where they are of a perishable nature. The liability of the 'carrier' is not that of a mere bailee, as defined by Sections 151 and 152 of the Indian Contract Act. The extent of his liability is very often described as the liability of an in­surer against all risks; but it is not a question of any contract to insure and no contract, of any insurance has to be made out. If, therefore, the boat, ship or steamer sank on account of its having struck upon some snag and the cargo was lost, that may be a mere 'peril of navigation", but not an Act of God, and the steamer companies would still be liable even if, under the| circumstances, they were found to have acted) with reasonable care and prudence. The decisions in - 'Moothora Kant Shaw v. Indian General Steam Navigation Co.', 10 Cal 166 (PB) (D), is a decision in point. The decisions in - 'Moothora Kant Shaw v. Indian General Steam Navigation Co.', 10 Cal 166 (PB) (D), is a decision in point. The goods were lost in course of their carriage on one of the defendants' steamers which struck against some snag and sank. It was found that the defendants took as much care of the goods as a man of ordinary prudence would, under similar circumstances, take of his own. goods. It was held that the defendants, as com­mon carriers, were liable nevertheless to make good the loss. The decision of the Privy Council in - Trrawaddy Flotilla Co. v'. Bugwandas', 18 Cal 620 (PC) (E), is to the same effect. There it was the case of fire which broke out suddenly and was not due to any negligence on the part of the defendants' servants, and all usual precau­tions were taken and everything that could be done was to stop the fire. Yet the defendants were held liable for the loss of the cotton goods as common carriers. Lord Macnaghten then ex­plained the principle of the matter thus : "The obligation imposed by law on common, carriers has nothing to do with contract in its origin. It is a duty cast upon common carriers by reason of their exercising a public employ­ment for reward. 'A breach of this duty', says Dallas C. J., (- 'Bretherton v. Wood', (1821) 3 Br & B 54 at p. 62 (P)), 'is a breach of the law, and for this breach an action lies founded on the common law, which action wants not the aid of a contract to support it." (13) I need not multiply authorities on this point. In Halsbury's 'Laws of England', Vol. 4, p, 12, the law as to Common Carriers' liability for loss or damage has been thus stated : "16. A common carrier is responsible for the safety of the goods in trusted to him in all events., except when loss or injury arises solely from act of God or the King's enemies. He is, therefore, liable even where he is overwhelmed and robbed by an irresistible number of per­sons. A common carrier is responsible for the safety of the goods in trusted to him in all events., except when loss or injury arises solely from act of God or the King's enemies. He is, therefore, liable even where he is overwhelmed and robbed by an irresistible number of per­sons. He is an insurer of the safety of the goods against everything extraneous which may cause loss or injury except the act of God or the King's enemies, and, if there has been an unjustifiable deviation or negligence or other breach of contract on his part, he will be liable for loss or injury due to the King's enemies-or, it would seem, due to act of God. This responsibility as an insurer is imposed upon a common carrier by the custom of the realm, and is independent of the contract between him and the owner of the goods. Failure on the-part of the carrier to deliver the goods safely is a breach of a duty placed upon him by the common law; and, therefore, an action of tort lies against him for such breach, the owner not being bound to prove any contract. A common carrier is liable for loss or injury, without any negligence on his part, caused wholly by the negligence of other persons over whom he has no control; as where the carrier's barge runs against an anchor wrongfully left in the water by a stranger, or where the goods which he is carrying are destroyed by acci­dental fire or by rats, or where they are stolen from him, even though taken by force. 17. With regard to the excepted perils, the carrier must use all reasonable care, skill and diligence to avoid the consequences, and it damage occurs which is attributable to a breach of this duty, he is liable. The carrier is not responsible for the conse­quences of an act of God; but where goods are injured by such an extraordinary occurrence, the carrier is nonetheless liable for the damage, if any negligence of his has contributed to that damage. Nor is he excused where the injury would not have happened but for the interven­tion of some other persons. To avoid the consequences of an act of God, the carrier must take all reasonable means to protect the goods; but he is not bound to make extraordinary efforts. Nor is he excused where the injury would not have happened but for the interven­tion of some other persons. To avoid the consequences of an act of God, the carrier must take all reasonable means to protect the goods; but he is not bound to make extraordinary efforts. The act of God is no excuse unless it was the immediate cause of the damage; and so where a great storm shift­ed a bank at the entrance to a Harbour, and some time afterwards a vessel was injured by lying on this bank, the carrier was held liable for consequent injury to the goods which were being carried." Some of the recent English cases may be referred to with profit in this context. In - 'Jenkyns v. Southampton, Etc. Steam Packet Co.', (1919) 2 KB 135 (G), the plaintiff, an Army Officer was travelling in uniform from Southampton to Ryde upon a steamer belonging to the defendant com­pany. He had some luggage with him, one of the articles being a valise labelled with his name and destination and containing (inter alia) a revolver, binocular glasses and a flash lamp. On arriving at Southampton a man in some sort of porter's uniform offered to take his luggage on board, and the plaintiff engaged him to do so. The porter was not, in fact, in the company's service. He took the valise to the usual place on the lower deck, in the bows, where the company's servants would themselves have taken it and deposited it with the other luggages which were in the company's charge. The valise was seen there after the steamer had started for Ryde and had proceeded a mile or so on its journey down. When the steamer arrived at Ryde, the valise had disappeared. The company were admittedly common carriers and there were no special condi­tions exempting them from liability. The plain­tiff was held entitled to recover damages on the ground that the plaintiff being accepted, with his luggage, in the steamer. for the purpose of the journey, the company undertook to carry the personal luggage in their capacity of common carriers. The other decision in - 'London and North Western Rly. Co. v. Richard Hudson and Sons, Ltd.', (1920) AC 324 (H), is still more interesting and illustrative of the carrier's liability. for the purpose of the journey, the company undertook to carry the personal luggage in their capacity of common carriers. The other decision in - 'London and North Western Rly. Co. v. Richard Hudson and Sons, Ltd.', (1920) AC 324 (H), is still more interesting and illustrative of the carrier's liability. In that case, the plaintiffs who were purchasers of calico goods lying at K's works in Birmingham, request­ed K to forward the goods to them at Manchester. In 1903 K, who had private sidings connecting with the London and North Western Railway had entered into an agreement with the railway company, whereby K performed for himself the services of loading and sheeting goods consigned in separate trucks from his sidings to the rail­way company for carriage (the railway company supplying the trucks and the sheets) and was allowed by the railway company a rebate off the charge for carriage in respect of these services. This arrangement was under the provisions of some Act governing that railway. By a consignment note of August 21, 1917, K. consigned the calico goods as therein specified, ready loaded and sheeted, in a track to the rail­way company for carriage and delivery to the plaintiffs at Manchester, the plaintiffs having to pay the freight, and the railway company signed an acknowledgment on the consignment note that the goods were received in good condition. On delivery, the railway company realised the freight from the plaintiff which included the charges for loading and sheeting. The goods were damaged by water during the transit owing to defects in the sheet by which they were covered, and the plaintiff sued "the railway company for damages. The majority of the Judges held that the railway company were liable to the plaintiffs for the damage caused by the defective sheeting either as common carriers, or even under the con­tract contained in the consignment note, notwith­standing the private agreement between the com­pany and K. Lord Dunedin in his judgment cate­gorically formulated the law thus : "That a common carrier is an insurer of goods entrusted to him for carriage, and can only excuse himself on the ground of act of God, or of inherent vice (in which expression I in­clude bad packing) of the goods themselves is axiomatic. Now Lord Mansfield in - 'Forward v. Pittard', (1785) 1 TR 27 at p. 33 (I), speaks of this obligation on the carrier's part as an obligation independent of the contract. By that I understand that it is not an adjected term to the contract as made, but is an obligation which attaches from the fact of the goods being carried by a common carrier, in favour of the owner of the goods, whoever he may be. For indeed in many common cases it would seem, to be inaccurate to speak of a contract of carriage as being made between the carrier and the consignee." The above quotation shows that "inherent vice of the goods" entrusted is also a legitimate excuse. These cases bear out the principles of liability which I have already indicated above. (14) On behalf of the defendants, much reliance was placed upon a decision of the Privy Council in - 'India General Navigation and Rly. Co., Ltd. v. Bekhari Tea Co., Ltd.', AIR 1924 PC 40 (J), but I am unable to find how this decision helps the learned counsel. In fact the decision is against him. The action there was originally directed against the Assam-Bengal Company as well as the India General Navigation and Rail­way Company. The suit was dismissed by con­sent against the railway company, but proceeded against the latter, the shipping company alone. The claim related to damages for the loss of certain tea, part of a consignment of plaintiff's goods which was delivered by the respondents to the railway company for the purposes of trans­port from Assam to Chittagong for shipment to England. In the ordinary course, consignments would have been taken and carried entirely over the railway's own lines without recourse to any other system of transport. A section of the line, however, south of Lumding, had broken down at the relevant period, and arrangements had, there­fore, to be made for taking the goods by ships or fiats from Gauhati on the Brahmaputra river tlown to Chandpur on the Meghna river. At the latter point, the goods could again be put on rail and so reach Chittagong. The river service during the relevant period was performed by the shipping company who were the appellants, before the Privy Council. At the latter point, the goods could again be put on rail and so reach Chittagong. The river service during the relevant period was performed by the shipping company who were the appellants, before the Privy Council. The only bargain on the subject of the goods in that case, was con­tained in a letter from the traffic manager of the railway company to the agents of the shipping company and was to the effect that "All tea from Upper Assam stations for Chitta­gong will be diverted via Chandpur and Gauhati. The division of the freight between the Steamer Company and this Railway following the prece­dent of 1913". What happened to the goods was that they were conveyed from Bordutai Road (Assam) by rail to Gauhati. They were put on board the Steamship Company's flat "Cauvery" for carriage by river to Chandpur. While the vessel was still lying at Gauhati, a fire broke out and some of the tea was destroyed. The main question before the Privy Council was whether the Steamship Company were liable to the owners of the goods for damages as common carriers. The defendant shipping company did not deny that they were common carriers, but they claimed exemption on the ground that by reason of the special nature of the con­tract of carriage, the denomination of common carriers could not apply to them, nor any such liability attach. It was not disputed that the shipping company were de facto "engaged in the business of transporting for hire property from place to place by ...... inland navigation". (See the definition of 'common carrier' in the Indian Carriers Act). But the argument was that they did not transport "for all persons indiscriminately". Their Lordships held that this simply meant that persons so engaged in and catering for busi­ness satisfy the demands or applications of customers as they come and are not at liberty to refuse business. This arises from the public employment in which they are engaged. Apart from danger arising, say, from the nature of the goods received, the carrier is, by his office, bound to transport the goods as clearly as if there had been a special contract which purported so to bind him, and he is answerable to the owner for safe and sound delivery. Apart from danger arising, say, from the nature of the goods received, the carrier is, by his office, bound to transport the goods as clearly as if there had been a special contract which purported so to bind him, and he is answerable to the owner for safe and sound delivery. Therefore, they did not enter­tain the contention that the river carriage was a temporary and exclusive monopoly for one single customer on special terms. Their Lordships also did not entertain the plea that the mere fact that it was a through route, of the shipping company, decategorised them from being common carriers under the statute and, as such, relieved them from their legal obligations. Their Lordships observed that "in order to effect such a result, the particular contract would require to come up to this, that quoad that transaction another and different type of business had been entered on." Their Lordships quoted, with approval, a passage in the Judgment of Rankin, J. where the learned Judge observed that "the only question is whether, because it was do­ing this particular set of journeys for the Rail­way Company by a special flotilla which was de­voted for the time to this purpose only & which was making a through run to Chandpur, it was departing from its usual business and engaging in a different type of business, viz. the business of a sub-contractor for the Railway in such spe­cial sense as to take it quoad these journeys out of the avocation of a common carrier. On the whole, I think it was not." There was no doubt on the facts of that case that the defendant was a common carrier and not a mere sub-contractor for the Railway. One other decision to which the learned counsel referred is the decision in - 'K. C. Dhar v. Ahmedi Bux,' AIR 1933 Cal 735 (K). The learned counsel suggests that the case in question was a converse case and would help the contention of the defen­dants that the liability was on the boating con­tractor who was himself a common carrier, acting independently, and not under the defendants. It all depends upon the facts of each case. The learned counsel suggests that the case in question was a converse case and would help the contention of the defen­dants that the liability was on the boating con­tractor who was himself a common carrier, acting independently, and not under the defendants. It all depends upon the facts of each case. Chief Justice Rankin himself warned there to "be care­ful not to assume that the facts of one case will produce the same result as the facts of another." I have already observed that the boating con­tractor in the present case was not acting inde­pendently, but merely as an agent of the defen­dants, and that the whole system was under the control and operation of the defendants. In the case in question, Chief Justice Rankin reiterated the same principles of a common carrier's liability, which I have already dealt with earlier. It was definitely found there that the defendant had held himself out as being willing to carry goods for all and sundry. In fact, the learned Chief Justice put the law broadly enough when he observed: "It is no answer to a man, who suffers loss by a breach of common law duty, to say that some one else has taken care to avoid coming under a similar obligation." I respectfully agree with that observation. As I have said, the case has no application to the pre­sent facts. (15) The trial Court also found that the boat sank on account of its being overloaded and due to the negligence of the boatman and his crew. In the plaint, of course, the plaintiff alleged that there was negligence and want of due diligence and care on the part of the defendants companies' | agents and servants; but there was no case made out of overloading the boat. The Manager, in his evidence tried to show that some tins of molasses also had been loaded on the boat, along with the tea chests as a result of which the bamboo bars on the boat went down the water and there was the danger of the boat capsizing, for which he warned the boatman. I am not prepared to accept this development in the story. If it had been actu­ally a case of overloading, the matter could have been easily mentioned in the plaint. I am not prepared to accept this development in the story. If it had been actu­ally a case of overloading, the matter could have been easily mentioned in the plaint. The plaintiff has further tried to give evidence of a man called Golok Chandra Barua to show that the boat was overloaded and that there was some negligence on the part of the boatman in mani­pulating the boat. This man says that he has his cultivation on the bank of the Desang river near the place where the boat sank. Ramnaresh Malla has denied all this. He states that the boat did not sink on account of his negligence and that he took all possible care while plying the boat. The boat appears to have been a fairly big one and Ramnaresh himself, as it appears from one of the receipts, had carried tea chests on a previous occasion. The story of tins of molasses being loaded on the boat is, as I have said, a sub­sequent development, and having regard to the size of the boat, as admitted by the plaintiffs' Manager himself, it could not be said that the tea chests of the four different companies loaded on the boat amounted to overloading. Accord­ing to the boatman, the boat had the load capa­city of 650 maunds. For all these reasons, I do not feel inclined to place much faith in the evi­dence of the chance witness produced on behalf of the plaintiff. The witness admits that in the summons the address given of his village was Kathiakunda, Sapekhati, which was on the north of Desang river, while the village in which he actually resides, namely, Bagadat, was on the south bank. I am conscious of the fact that ordinarily I should not depart from the finding of the trial Court on a point which depends largely upon a consideration of the oral evidence; but for the reasons which I have given I think I would be justified in not accepting that part of the finding. This, how­ever, will not affect the ultimate result of the appeal. In view of the principles of liability which I have already discussed above, the defen­dants' liability to pay for the loss of goods is not altered even though no negligence has been established. This, how­ever, will not affect the ultimate result of the appeal. In view of the principles of liability which I have already discussed above, the defen­dants' liability to pay for the loss of goods is not altered even though no negligence has been established. (16) The only other point which remains is, whether, under the tea chest agreement, the defendants were entitled to any exemption. This point was not seriously pressed before us though some reference was made to it in the course of the arguments. The relevant provisions of the tea chest agreement were fully examined by the learned Subordinate Judge and he has rightly come to the conclusion that they afford no protec­tion to the defendants against the claim of the plaintiff. Here some argument was addressed to us on paragraph 14 of the agreement, to which no reference was made in the Court below. This paragraph refers to an undertaking not to make any claim against the defendants in respect of any loss or damage to the cargo which could be covered by an insurance policy containing a clause in the terms mentioned in that paragraph. The simple answer to the contention is that it is nobody's case here that the tea chests lost were covered by any such policy. (17) For the above reasons, I hold that the plaintiffs are entitled to succeed and the judg­ment and decree of the Court below should be affirmed. The appeal fails and is dismissed with costs. RAM LAEHAYA J.: (18) The plaintiffs' case shortly stated is that the cargo of tea was delivered to the Steamer Companies through Ram Naresh their boatman at Dillibari for carriage to Calcutta. The defence is that the defendants have no transport busi­ness beyond Desangmukh on the river Desang. They as common carriers carry goods over their own service only. But for facilities of shippers such as tea gardens who send goods from distant places to the Steamer Companies station for ship­ment the defendants supply them with forward­ing note forms to be duly filled in by them. Such shippers make over their goods to the recognized boating contractor at the nearest ghat for carriage of the same to the booking station of the Com­panies for delivering to them along with the duly filled in and signed forwarding notes for delivery of the same to the Steamer Company station staff for carriage to destination. Such shippers make over their goods to the recognized boating contractor at the nearest ghat for carriage of the same to the booking station of the Com­panies for delivering to them along with the duly filled in and signed forwarding notes for delivery of the same to the Steamer Company station staff for carriage to destination. The boating con­tractor it was pleaded had his challan book and carried goods on hire from Dillibari Ghat to Desangmukh at owner's risk. The defendants deny that they do any transport business between Dillibari and Desangmukh as common carriers. They further aver that it was Nur Muhammad who received cargoes from the tea gardens at their own risk. The allegation con­tained in the plaint that defendants as common carrier received goods as Dillibari Ghat for carriage there from by boats to Desangmukh Ghat and then by steamers to different stations on payment of freight is denied. (19) The crucial issue in the case is whether defendants received the cargo of 120 chests of tea from the plaintiffs at Dillibari Ghat as common carriers through their agent or representative Ram Naresh for carriage from that place to Calcutta, by means of a country boat as far as Desangmukh and by steamer from that place to Calcutta. (20) Some admitted facts of the case may be stated first. These are as follows: The Manager of the plaintiff's Tea Estate wrote to the Ghat Supervisor, Desangmukh Ghat asking for a country craft for carrying tea chests marked ready via Desangmukh by letter Ext. 2, dated 29-8-46. The contents of this letter are as follows: "Re: Boat. With reference to my letter dated 22-8-1946 I am not informed whether boat will be avail­able. Can you please arrange to send a boat now to take the Tea Chests marked ready via Desangmukh; otherwise I am to retencil the Railway marking from DGMK to NHK. Please see to it and inform me accordingly." Md. Abdulla, the Ghat Supervisor of the Steamer Company answered by Exhibit 3, dated 2-9-46 saying that a boat in charge of Ramnaresh Manjhi had left that day in tow of a launch with instructions to bring down his tea chests and also from three other tea gardens. He requested that the boat be returned at an early date. Abdulla, the Ghat Supervisor of the Steamer Company answered by Exhibit 3, dated 2-9-46 saying that a boat in charge of Ramnaresh Manjhi had left that day in tow of a launch with instructions to bring down his tea chests and also from three other tea gardens. He requested that the boat be returned at an early date. (21) The tea chests belonging to the plaintiffs were delivered to Ramnaresh on 10th September under Exhibit C(l) to C(4). These exhibits were copies of the garden invoices. Ramnaresh's signa­tures were obtained on the garden invoices in token of his receipt of the 120 chests. A forward­ing note Exhibit B and a covering letter Exhibit A were also handed over to Ramnaresh. (22) The letter Exhibit A is also addressed to the Ghat Supervisor. He was informed that the forwarding note and the relevant invoices etc., covering 120 chests were being enclosed for his doing the needful. (23) The tea chests from all the four gardens had been carted to the Dillibari Ghat. They were loaded. Ramnaresh signed the garden invoices and also received the forwarding notes in regard to the other cargoes. He left on the morning of llth September. At about 4 p.m. the boat met with an accident. It swung round and sank. Ramnaresh could save himself from drowning. It was dusk. He stayed on the bank for the night. Next morning, he reported the occurrence to the Managers of the tea estates concerned. Prom Karagani and Nilmoni gardens some men were sent along with him. That day he remained on the spot. Next day, he went to Desangmukh and reported the occurrence to Nur Muhammad who told him to report it to the Ghat Babu. The Ghat Babu (Md. Abdulla) directed him to go to Sib-sagar to swear an affidavit. He gave him a letter to a pleader at Sibsagar. There, the affidavit, Ext. 1(1) was sworn. In the affidavit, Ramnaresh affirmed that he was employed as a boatman by the boating contractor under the R. S. N. Company and I. G. N. and Railway Co., Ltd. and used to carry tea chests by boat from various gardens to Desangmukh Steamer Ghat. The rest of the statement refers to loss of 372 chests of tea by the sinking of the boat after it struck against a submerged snag. The rest of the statement refers to loss of 372 chests of tea by the sinking of the boat after it struck against a submerged snag. (24) The Manager of the plaintiff Company wrote to the Ghat Supervisor of the defendants on 12th September (Vide Ext. D) as follows : "I sent 120 chests on 11-9-1946, to. the boat own­ed by Ramnaresh as advised along with the chests of Karangani 168, Sorojini 84. Now I get the information from the Manjhi Ram­naresh that the boat is badly broken causing damage of several chests, the boat is lying near about Barbam. On request of the Manjhi we are helping him with labourers. This for your information and necessary action." (25) Ram Naresh's boat was so struck up that it was not possible to get it released without the help of big boats (Vide Ext. E dated 18th Septem­ber) from Nilmoni (tea garden) to the Joint Agent of the Steamer Company. (26) The Manager of the plaintiff Company handed over to Ramnaresh a forwarding note (Ext. B) addressed to the Agent, Desangmukh Station with a covering letter (Ext. A) addressed to the Ghat Supervisor of the Steamer Companies. (27) The covering letter was as follows : "Enclosed please find F. Note and relative in­voice papers etc., covering 120 chests tea for the above invoices, for your doing the needful." (28) The forwarding note (Ext. B) is addressed to the Agent, Desangmukh. He was requested by it to receive the undermentioned service (120 chests) and forward as directed. The note relates to transport from Desangmukh to destination. It has columns for showing weight and the rate of freight. It has also a column for remarks as to the condition of goods consigned. The consignor has to declare and sign. (29) There is a printed condition on the forward­ing note to the following effect : "The persons tendering goods for shipment shall be considered as doing so on behalf of the declared consignor, and as empowered by the said consignor to sign or endorse this P/Note as circumstances or conditions at the time of actual shipment demand." (30) The defendants are admittedly common, carriers from Desangmukh downwards, as far as Calcutta. They have a fleet of vessels. They maintained stations at different places between their termini. All these stations have staff for receiving goods and issuing receipts. They have a fleet of vessels. They maintained stations at different places between their termini. All these stations have staff for receiving goods and issuing receipts. There are arrangements for warehousing goods at their advertised stations. The dispute is with regard to the responsibility of the defendants for the transport system from Desangmukh upwards to Dillibari. The defendants disown the system alto­gether. They deny that they are carriers or they received the cargo at Dillibari. (31) The principal exponent of the system of transport beyond Desangmukh is Md. Abdulla, D. W. 3, Ghat Supervisor of the Steamer Com­pany. He tried to show that the transport beyond Desangmukh upwards was a business of Macniel and Co. He deposed that he supervised the boat­ing business or McNiel and Company. They had their separate papers and documents. They were kept in the office of Steamer Companies. McNiel. and Company had no separate establishment or office. The work of the McNeil and Company was done under the order of Mr. Hedges, Joint Agent of the Steamer Companies who also repre­sented McNeil and Company. He received pay­ment of boat hire from the Tea Gardens, credit­ed it to McNeil and Company's account and then paid it to the boating contractor. This boat hire did not appear in the Steamer Companies' ac­counts. He supervised the loading and unloading for McNeil and Company, though he had no written authority from McNeil and Company for representing them in their alleged transport busi­ness. He received all the directions from the Joint Agent of the Steamer Companies. Mr. Hedges, D. W. 4, is the Joint Agent of the Steamer Companies. He deposed that he repre­sented McNeil and Company. According to him, the companies on receipt of information from Tea Gardens that consignments of tea were ready for despatch used to arrange boats. The Ghat Supervisor would do it through the boating con­tractor. Payment or collection of boat hire did not appear in companies' Account books except money which was paid to Nur Muhammad as his I monthly allowance for his services as contractor. He also stated that boat hire was paid to McNeil and Company. He admitted that the Steamer Companies used to pay a portion of the boat hire In order to attract traffic 'from the Tea Gardens'. This applied particularly to garden 'in the vicinity of railway stations'. He further stated that bills Ext. He also stated that boat hire was paid to McNeil and Company. He admitted that the Steamer Companies used to pay a portion of the boat hire In order to attract traffic 'from the Tea Gardens'. This applied particularly to garden 'in the vicinity of railway stations'. He further stated that bills Ext. 9(1) to 9(4) were made by McNeil and Company on behalf of the boating contractor Nur Muhammad. (32) McNeil and Company represents B. S. N. Company, Limited. The Joint Agencies at Dibru-garh and at Gauhati were both under the charge of McNeil and Company who are the Managing Agents. It was urged in the court below and before us also on behalf of the defendants that McNeil and Company had a transport system for carriage beyond Desangmukh which they main­tained on their own account. This plea does not and any place in an otherwise skilfully drafted written statement. The plea therefore could not be regarded as serious. It may not have been allowed to be proved by reason of the fact that this was not specifically raised in the written statement. The bulk of evidence on record seriously conflicts with it. The Steamer Companies informed the tea gardens when the tea- season started that cargoes could be loaded. They also sent forms of forwarding notes. Boats used to lie requisitioned from the gardens and were sup­plied by the Steamer Companies. They also collected the boat hire and paid to the contractor. In this case also the requisition for the boat was addressed to the Supervisor of the Steamer Companies. He replied as representing the Steamer Companies. According to Md. Abdulla, he pre­pared the bills. He used to send them on to Dibrugarh for signatures. He would collect the boat hire and then pay it to the boating contractor. Advantage is sought to be taken of the circum­stances that the bills were prepared in the name of McNeil and Company. Even if this evidence is taken at its face value, it is not conclusive as Mcneil and Company are the Managing Agents of the Steamer Companies in charge of the Dibru-garh and Gauhati Agencies. If bills are made or boat hire is collected by or in the name of McNeil and Company it would not necessarily follow that they are doing it on their own account. The plea does not bear examination at all. Mr. If bills are made or boat hire is collected by or in the name of McNeil and Company it would not necessarily follow that they are doing it on their own account. The plea does not bear examination at all. Mr. Hedges has revealed that the Steamer Com­panies pay the contractor a monthly allowance to insure him against loss. The Steamer Com­panies also bear a portion of the boat hire to attract traffic from tea gardens. If McNeil and Company are maintaining the transport system beyond Desangmukh as their separate side-business, the Steamer Companies would not pay the con­tractor nor would they bear a part of the boat hire. It is also clear that no profit is being made from the Tea Gardens for transport between Dillibari and Desangmukh. There would be no sense in McNeil and Company running it as their separate side-business. It would mean recurring loss. It only fits in with the scheme of things as something managed and controlled by the Steamer Companies. It brought them traffic which they valued. It came in large bulk from the tea gardens situated beyond Desangmukh. The plea has got no merit. (33) It is equally clear that Nur Muhammad is not an independent contractor carrying on trans­port business between Desangmukh and Dillibari or other garden Ghats. He is paid Rs. 507- per month by the Steamer Companies for supplying boats when required. The Steamer Companies ask for them when they receive some requisitions from tea gardens. The tea gardens got intimation when boats would be available. They are furnish­ed with forms of forwarding notes which they have to sent with the consignments. Nur Muham-med is not directly approached by the tea gardens. No boat hire is fixed between Nur Muhammad and the Gardens. He has got no fixed schedule of boat hire and this boat hire actually varies. It is fixed by agreement between the Steamer Com­panies and Nur Muhammad. He does not bill for the hire. He is paid by the Steamer Companies. He would not be in a position to supply trans­port to tea gardens on requisition at rates at which the tea gardens were getting the transport at the relevant time. Part of the fare was ad­mittedly being contributed by the Steamer Com­panies. He does not bill for the hire. He is paid by the Steamer Companies. He would not be in a position to supply trans­port to tea gardens on requisition at rates at which the tea gardens were getting the transport at the relevant time. Part of the fare was ad­mittedly being contributed by the Steamer Com­panies. Even the Steamer Companies realised that it will be difficult to persuade any one to believe that Nur Muhammad was in charge of an indepen­dent transport system of his own. The case they developed at the evidence stage was that McNeil and Company were running this as their side-business. I have not been able to accept that plea. I find it equally difficult to agree to subs­cribe to the position that Nur Muhammad was; an independent contractor in charge of a transport system of his own. The contribution by the Steamer Companies towards boat hire, the monthly payment to Nur Mahammad and the towing of the boats upwards are inconsistent with this posi­tion. (34) It follows also that the Steamer Companies were not acting as casual agents when on requisi­tion from the gardens they towed, the country boats upto Dillibari. It was part of their standing arrangement for transporting tea from Dillibari. As casual agents they would not tow up these boats nor Nur Mohammad's benefit in addition to paying him a monthly allowance besides some contribution towards boat hire. The need and the opportunity for their acting as casual agents disappears if it is held that Nur Mohammad was not an independent contractor. He was part of the machinery that the Steamer Companies had devised for helping their constituents (the tea gardens) to transport tea, to their recognized sta­tion Desangmukh. (35) By a simple process of elimination there­fore, the conclusion that is reached is that the Steamer Companies have under their control a machinery for the limited purpose of, bringing down consignments of tea from garden ghats like Dillibari during the tea season. The arrange­ment also is utilised for carrying goods from Desangmukh to tea gardens if the tea gardens so desire. These features of the system are very well known to both sides. There is no dispute about them. (36) It follows that the cargo of 12 chests was handed over to Ram Naresh who was sent by and represented the Steamer Companies. These features of the system are very well known to both sides. There is no dispute about them. (36) It follows that the cargo of 12 chests was handed over to Ram Naresh who was sent by and represented the Steamer Companies. It was not handed over to Ram Naresh or Nur Muhammad, in their capacity as common carriers. Ram Naresh got the cargo and gave a receipt as one who was to transport the cargo under the directions of the Steamer Companies. Delivery to him was thus delivery to the Companies. (37) The next question is whether delivery to the Steamer Companies was for carriage to Cal­cutta as alleged by the plaintiffs. Abdulla has deposed that as a Ghat supervisor his duty was to get cargo carried down and sent upwards from and to gardens in the interior on the Desang river. He stated that they get things carried down and sent upwards to Dillibari on country crafts manag­ed through a contractor. Dillibari and other ghats were maintained for about 5 months from June to October. The Joint Agent (at Dibrugarh) of the Steamer Companies sent information to the gardens on the Dikhan and Desang rivers when the temporary ghats such as Dillibari on the Desang and other Ghats were opened for loading and unloading. It was the practice with the Steamer Companies (defendants) that all the gardens were previously intimated that whenever the gardens had to send goods, they (gardens) must send requisitions to the Steamer Companies to arrange boats. The downward cargo consisted 'only of tea chests'. The Steamer Companies also issued instructions to tea gardens that if they wanted to despatch the goods by Desangmukh Ghat, they should stencil the mark DGMK on the boxes. Accord­ing to the practice, 10 per cent, of the chests used to be weighed for checking weight at Desang­mukh. No cargo could be received at any station of the Steamer Company without a forwarding note accompanying the goods. The goods are received after weighment and marking. The entries made in the forwarding note are to be certified by the sender or his representative. This func­tion according to the practice is performed by the boatman who brings the cargo from the gardens to Desangmukh. Mr. Hedges has not given the details of the system but his testimony lends general support to the statement made by Abdulla. The entries made in the forwarding note are to be certified by the sender or his representative. This func­tion according to the practice is performed by the boatman who brings the cargo from the gardens to Desangmukh. Mr. Hedges has not given the details of the system but his testimony lends general support to the statement made by Abdulla. The only witness from the plaintiff's side who could speak on the system is Mr. D. K. Chakra-varty. He'received Exhibit D(3) from Md. Abdulla and sent the cargo under Exhibit No. C(l)(2)(3)(4). Ramnaresh Narain according to him was the re­presentative of the defendant Companies. He handed over copies of the invoices and a forward­ing note duly filled in with the covering letter Exhibit A to him. He explained that they used to send forwarding notes to Desangmukh Ghat as there was 'a scheduled rate from Desangmukh downwards'. The rates from Dillibari to Desang­mukh used to vary from time to time. He ad­mitted that the Steamer Companies would not receive any cargo without a forwarding note and that the parties were bound by its terms. It is quite clear that the plaintiffs were fully aware that the cargo had to be sent with a forwarding note. On arrival at the Desangmukh Ghat, its weight was to be ascertained or checked. Then there was to be some marking. After the entries are made in the forwarding note, the consignor or his agent has to sign in token of his acceptance. A receipt would then issue. There is admittedly no staff for doing all this at Dillibari. There is no station either, though consignments are load­ed and unloaded there. It may be recalled that Abdulla deposed that ths Dillibari and other ghats are maintained for a period of five months but the principal witness from the plaintiff's side admits that this mainten­ance of stations means nothing but loading and unloading. Even during these five months, which is presumably the tea season, no staff is stationed at Dillibari. There is no arrangement for weigh­ing. The tea chests are received by a boatman and carried to Desangmukh. Ib is clear there­fore that the opening of the station during this period merely means that loading of tea chests is done during this period, this being the period for the despatch of the tea. There is no arrangement for weigh­ing. The tea chests are received by a boatman and carried to Desangmukh. Ib is clear there­fore that the opening of the station during this period merely means that loading of tea chests is done during this period, this being the period for the despatch of the tea. The loading and despatch of tea chests from Dillibari is accord­ing to a system on the details of which there appears to be no difference between the parties. (38) The most important feature of the transport system between Desangmukh & Ghats like Dillibari is that it provides for th? booking of the cargoes on the regular transport system of the steamer com­panies from Desangmukh on their arrival there with the aid of forwarding note. The cargo has to be booked at Desangmukh for downward journey. This cannot be done without a forward­ing note which can be completed by the consignor or his agent. P. W. 1 stated without any reser­vation that Steamer Companies would not receive any cargo without a forwarding note. This forward­ing note is for carriage from Desangmukh down­wards. It does not cover the journey from Desang­mukh upwards. The consignments therefore have to be received at Desangmukh in order that they may be carried from Desangmukh to Calcutta. They have to be weighed and marked. A repre­sentative of the consignor has to certify entries made above about the weight and freight. All this does not happen at Dillibari. The re­ceipt that is issued at Desangmukh is for carriage from Desangmukh downwards. The freight is also charged from that point onwards. At the ti.: i of booking for carriage, to stations down strear1 some one has to represent the consignor. The forwarding note cannot be completed other­wise. In practice, the boatman who brings the consignment from Dillibari ghat represents the consignor for getting the booking done on a sepa­rate transport system; for it is conceded by the plaintiffs that without the completion of this forwarding note at Desangmukh, the Companies would not accept the consignment. If the con­signment could be regarded as having been hand­ed over at Dillibari to the Steamer Companies for carriage to Calcutta, the Steamer Companies could not have any option to refuse to take the consignment at Desangmukh and no question of checking the weight would arise at that stage nor would the presence of the consignor or his representative be required. Once it is held that the consignment is handed over to a common carrier at Dillibari for carriage to Calcutta, there can be no intermediate stage for checking of rate and for booking of goods. But this obviously is not the case. It is the case of both the sides that the cargoes of tea are carried from Dillibari to Desangmukh and then there is booking of the goods from Desang­mukh to Calcutta through the representative of the consignor. If delivery at Dillibari is delivery to the Steamer Companies for carriage to Cal­cutta, there can be no option with them to refuse to carry cargoes beyond Desangmukh under any circumstances. Yet it is admitted that the Steamer Companies have reserved to themselves the right to refuse to carry cargoes from Desang­mukh downwards without a forwarding note; they could also refuse to carry if there was no re­presentative of the consignors to complete the forwarding note by certifying to the correctness of the entries about the weight and freight to be made by the Companies' representative at Desangmukh. By sheer necessity, the boatman who brings the cargo to Desangmukh is allowed by both parties to represent the consignor for the purpose. This step marks very clearly the separation of the two transport systems. It is not impossible in law for the boatman who brings the goods to Desangmukh to represent the con­signor for getting the consignment booked for carriage from Desangmukh to Calcutta. But it is obvious from the option which the Steamer Companies have of not carrying the cargoes with­out the execution of the forwarding note at Desangmukh that there is a break in the Journey at Desangmukh where the goods are transferred from one transport system to another, the boat­man himself representing the consignor for hand­ing over the consignment to the other system. It is also important to note that the cargoes are not weighed at Dillibari. If loss takes place before they reached Desangmukh, the weight of the consignment will have to be determined if a claim for compensation is made. On the other hand, at Desangmukh, the weight is checked by weighment of 10 per cent of the chests. It is entered in the forwarding note and the parties thus become bound by it. This circumstance also indicates that the conditions under which the two systems operate are different. On the other hand, at Desangmukh, the weight is checked by weighment of 10 per cent of the chests. It is entered in the forwarding note and the parties thus become bound by it. This circumstance also indicates that the conditions under which the two systems operate are different. In fact the difference between the conditions under which transport business is done between Dillibari and Desangmukh on one side and Desangmukh and Calcutta on the other, is very obvious. It neces­sitates the change over of the cargoes from one system to another at Desangmukh through the agency of the boatman who brings the cargo to Desangmukh. There seems to be no escape from this conclusion. Delivery of cargoes at Dillibari thus is not deli­very for carriage to Calcutta. It is merely delivery for carriage to Desangmukh. The claim of the plaintiffs that Dillibari is controlled from Desang­mukh and that delivery of the cargo at Desang­mukh is delivery for carriage to Calcutta is dis­proved by the admitted facts of the case. At Desangmukh the boatman as consignor's agent transfers the cargo to the regular transport system and a receipt of the cargo is formally acknowledged. (39) So far the case presents no serious diffi­culty. The difficult question that next arises for determination is whether the defendants are operating as common carriers between Dillibari and Desangmukh. They are admittedly common carriers between the adevertized termini which are Dibrugarh and Calcutta as stated in paragraph 1 of the plaint. The contention of the plaintiffs-is that Dillibari Ghat on Desang river is an out station under Desangmukh and the defendants-operate as common carriers even beyond Desang­mukh. On facts I have come to the conclusion that the transport of tea from ghats like Dilli­bari ghat is under the control and management of the defendants (Steamer Companies). They transport it for hire from Dillibari. They are therefore carriers. The admitted features of the transport system beyond Desangmukh (upwards) are that intimation is sent by the Steamer Com­panies to the tea gardens that loading and un­loading could be done during the period of five months which happens to be the tea season. The gardens have to make a requisition. The country crafts are towed up and cargoes are brought down from the tea gardens. For this service be­tween Dillibari and Desangmukh, the Steamer Companies do not make a profit. The gardens have to make a requisition. The country crafts are towed up and cargoes are brought down from the tea gardens. For this service be­tween Dillibari and Desangmukh, the Steamer Companies do not make a profit. They contri­bute something to the carriage of the cargoes from Dillibari to Desangmukh in order to secure the traffic from Desangmukh downwards. There is no dispute about these facts: There is no suggestion whether suppressed or remote that the arrangement for bringing tea from tea gardens on the Desang river is avail­able to all others who may desire to avail of it, without discrimination. No one else is informed that the arrangement for loading and unloading exists or has commenced. The forwarding notes are not sent to any one else. There is no sugges­tion from any quarter about transport or carriage of goods from others except the tea gardens, be­tween Desangmukh and Dillibari. The system appears to have been meant, and is limited for use by tea gardens only, as thereby, the Steamer Companies get their traffic from Desangmukh to Calcutta. The tea gardens get comparatively cheaper transport. The Steamer Companies contribute to the hire. It is not alleged by any one on behalf of plaintiff that between Dillibari and Desang­mukh carriage on an indiscriminate basis is being done. There is a ghat at Rajbari. There may be other ghats but no one else except some tea gardens seems to enjoy the privilege of asking for country crafts at even Dillibari for carriage of goods between Dillibari and Desangmukh. The country boats have to be towed up. The steamer Companies would not be interested in any busi­ness if the cargo is not to be carried from Desangmukh downwards. There is nothing in the evidence which would suggest that the Steamer Companies are actually transporting for hire goods and cargoes of everyone indiscriminately; nor is there any evidence that they are holding themselves out as common carriers between Dilli­bari and Desangmukh. Between Dibrugarh and Calcutta, not only tea chests but goods of every descriptions are carried both ways for all and sundry. This is not the situation from Desangmukh upwards on the Desang river. The country crafts are supplied to some constituents under certain conditions agreed upon for mutual benefit. Between Dibrugarh and Calcutta, not only tea chests but goods of every descriptions are carried both ways for all and sundry. This is not the situation from Desangmukh upwards on the Desang river. The country crafts are supplied to some constituents under certain conditions agreed upon for mutual benefit. Therefore, not­withstanding the fact that the defendants are transporting tea chests under a system of trans­port, the conditions of which are very well-known and agreed as between the parties, they may not be regarded as common carriers. In order to be common carriers, they have to be engaged in the business of transporting for hire property from place to place by land or inland navigation for all persons indiscriminately. The whole system is limited for use by recognised parties in mutual interest. The statement of Md. Abdulla that the downward cargo consists only of tea chests re­mains uncontradicted. The tea gardens have the benefit of a low competitive rate for carriage. They agree to the conditions of the system in their own interest. In these circumstances it may well be argued that defendants do not answer the description of common carriers when operating in this region. (40) The decision in 'AIR 1924 PC 40 (J)', is distinguishable on facts but it interprets the words 'for all persons indiscriminately' which appear in the definition of the expression "com­mon carrier" given in the Carriers Act. In the words of Lord Shaw, "what is required in the. case of a person who answers the definition under the Indian Carriers Act, namely, of transporting for hire goods from place to place for all persons indiscriminately, is that the nature of contract entered into must either have the limitation of the liability under that Act made expressly and in writing or the 'facts must be such that for the contract in 'question, the contractor was departing from his usual business and engaging in a different type of business from that of common carrier'." The Steamer Companies can be said to have departed from their usual business of common carriers when they engaged in transport of tea cargoes from Dillibari Ghat under an agreed arrangement with the tea gardens concerned. This is permissible to them and if in that region they did not offer their transport to all and sundry they put themselves out of the ambit of the expression 'common carriers'. This is permissible to them and if in that region they did not offer their transport to all and sundry they put themselves out of the ambit of the expression 'common carriers'. As said by Costello J. in 'AIR 1933 Cal 735 at p. 739 (K)', the test is whether the carrier con­cerned has held himself out as being willing to carry goods for all and sundry. This is how he put it : "If a person holds himself out to carry goods or if one makes a business of carrying goods from a jetty to a ship in a harbour, he is in my opinion a common carrier. The only point of doubt in the present case is whether or not the defendant held himself out as being willing to carry goods for all and sundry." It is not the plaintiffs' case that defendants have held out that their system was available for use by all and sundry beyond Desangmukh upwards on the Desang river. It was available only to some tea gardens. If there is any holding out, it appears to be to the contrary, for the com­panies have notified to their constituents that they carry goods only on their regular transport system and in their own vessels. The trend of evidence is that the Steamer Companies made it clear by their notices and also by their conduct in limiting the supply of transport not only with­out profit but at some loss to certain tea gardens, that the supply was not by them functioning as common carriers. Judged by the test laid down in the cases referred to above, they may not be regarded as common carriers when transporting cargoes from Dillibari under the agreed arrange­ment between the parties the implications of which are quite clear. (41) In the above view of the matter, no party can be said to have succeeded in proving its case in its entirety. The carriage of the cargo from Dillibari was by the Steamer Companies. But it was not received at Dillibari for carriage to Cal­cutta; nor was it carried by a common carrier, as alleged by the plaintiffs. The defendants have not been able to make out that they have no responsibility whatsoever for the transport of the cargo in question from Dillibari to Desangmukh. But it was not received at Dillibari for carriage to Cal­cutta; nor was it carried by a common carrier, as alleged by the plaintiffs. The defendants have not been able to make out that they have no responsibility whatsoever for the transport of the cargo in question from Dillibari to Desangmukh. It has, therefore, to be seen whether, even as carriers, they can be held to be responsible for loss caused to the plaintiffs. (42) If Steamer Companies are not common carriers for transport between Dillibari and Desangmukh, the law of common carriers could not apply to them. By receiving goods through their representative at Dillibari on receiving. the requisition for country boats, they would become bailees of the goods delivered to their represen­tatives. Their responsibility, therefore, would be that of a bailee. The insurer's liability under the law of common carriers could not be fastened on them. Their activity or business could be described as bailment for hire. They would be bound to take as much care of the good? as a prudent man would take of his own goods under similar circumstances. They cannot be said to have failed in this way. The result of this view is that the liability for loss of the cargo cannot be fixed on the defendants. I have felt attracted by the line of the argument which leads to this result. But this is only one side of the picture. There is another side to it also, and this has found elaborate and forceful expression in the judgment of my Lord the Chief Justice. I need not, therefore, discuss it in detail. I shall state merely its broad outline. According to this view, defendants are common carriers. They carry goods for all and sundry from Calcutta to Desangmukh. They could not carry goods for hire beyond Desangmukh on the Desang river in the steamers which they own. The volume of traffic may not be so large as to justify their having permanent stations up in the interior on the Desang river. But it is undoubtedly .' available in quantities which the Steamer Com­panies considered it worth their while to have. To secure it, they arrange to provide country boats at the cost of some labour and expense. They do so for hire. But it is undoubtedly .' available in quantities which the Steamer Com­panies considered it worth their while to have. To secure it, they arrange to provide country boats at the cost of some labour and expense. They do so for hire. The transport of tea from Dillibari to Desangmukh and of other goods from Desangmukh to Dillibari thus may be regarded as an extension of their advertised system of transport, even though in point of fact this may be serving some tea gardens only. Therefore, even if the two systems of transport are different in certain respects and even if there is a break of journey at Desangmukh, the capacity in which the business of transport is done by the Steamer Companies may not undergo any change. It may be the case of a common carrier carrying beyond his fixed terminus without a special agreement in writing limiting his liability, as required by S. 6, Carrier's Act. This view also takes account of the fact that both Mr. Abdulla and Mr. Hedges did not state explicitly or in so many words that the transport that is made available for tea gardens between Desangmukh and Dillibari is not available to any one else. According to this line of argument; the possibility of the Companies having other traffic, if available, has not been excluded by evi­dence. The forwarding note merely marks the transfer of the cargo from one system to another. The responsibility of the defendants, when trans­porting tea from Dillibari to Desangmukh, thus remains that of common carriers. This view of the matter has found favour with my Lord the Chief Justice. He has arrived at the conclusion that notwithstanding the fact that the boatman is to represent the consignor at Desangmukh when transferring the cargo to the regular system, the Steamer Companies transport­ed for hire the cargo from Dillibari to Desang­mukh as common carriers. They got the custody of the cargo at Dillibari with arrangements for necessary formalities on the way which would enable them to carry the cargo to Calcutta, its destination. This undoubtedly is the other way of looking at the matter. The question, though primarily one of fact, is by no means easy; it is ticklish. It falls on the border line between two views. It has its legal aspects also and is not covered by any apt authority. This undoubtedly is the other way of looking at the matter. The question, though primarily one of fact, is by no means easy; it is ticklish. It falls on the border line between two views. It has its legal aspects also and is not covered by any apt authority. My Lord the Chief Justice has lent the weight of his authority to this latter view. I have profound regard for his opinions. In these circumstances, I have decid­ed to agree to the conclusion arrived at by him. (43) I may add that. Clause 14 of the tea agree­ment would not come into operation whichever of the two views were to prevail. It could come into play only if Dillibari is treated as part of the advertised system of transport, as alleged by the plaintiffs. The agreement is limited in its application to the Ghats or stations on the main river. If this clause had applied, the plaintiffs could have been non-suited on the ground that they did not get the cargo insured and could not show that it was not insurable in the way pro­vided in the clause. (44) The result is that I agree to the order proposed by my Lord the Chief Justice. Appeal dismissed.