SARJOO PROSAD, C. J. : These appeals raise an interesting question of law about the extent of liability of a earner by air. In a very recent decision of this Court in River Steam Navigation Co., Ltd. v. 'Syam Sunder Tea Co.. Ltd., AIR 1955 Assam 65: ILR (1954) 6 Assam 433 to which I shall presently refer, I had occasion to consider this question elaborately; but, I. confess that at that stage I had not the privilege of examining with as much care and minuteness the observations of Sir Sankaran A/air, in his dissenting judgment in Sheik Mahomed Ravuther v, British India Steam Navigation. Co., Ltd.. ILJR 32 Mad 95. The decision of this eminent Judge has made me consider the question afresh with added interest, even though ultimately I have persuaded my­self to adhere to the conclusion which I reached in my earlier judgment. Before I proceed to deal with, the question of law, it would be just as well to refer to the relevant facts, which have given rise to Second Appeal No. 76 of 1954 in order to illustrate the point canvassed. (2) S. A. No. 76 of 1954 : The Defendant No. 2, Bhojanlal Sriniwas, said to be an agent of the Plain­tiff, despatched 24 cases of electric goods to be carri­ed by air by die Defendant No. 1 from Calcutta to1 Gauhati. The goods were consigned on 6-9-1951, and when the delivery of the goods was taken on the 11th of September, it was found that one case was missing. As the claim of the Plaintiff was not settled, he instituted this suit for recovery of the price of the goods lost with costs and commercial rate of interest. The Defendant No. 1, which is admittedly a public limited company carrying on business of transporting passengers and goods by air from Calcutta to Gauhati, entered appearance and contested this suit. The fact that the goods were delivered to the Defendant No. 1 for carriage from Calcutta to Gau­hati by air is not denied. The Defendant No. 1, which is admittedly a public limited company carrying on business of transporting passengers and goods by air from Calcutta to Gauhati, entered appearance and contested this suit. The fact that the goods were delivered to the Defendant No. 1 for carriage from Calcutta to Gau­hati by air is not denied. But the substantial plea taken by this Defendant is that it was protected under the terms of the consignment note or bill of lading on the strength of which the goods were deli­vered to the Defendant company for carriage by air; The Defendant also pleaded limitation and challenged the locus standi of the Plaintiff to institute the suit, the Plaintiff not being either the consignor or the con­signee of the goods in question. The plea that the Defendant No. 1 was entitled to the benefit of the clause exempting it from liability in the consignment note has prevailed with the two Courts below and hence this appeal by the Plaintiff. (3) The main question which, therefore, falls to be decided in this case is whether the Defendant Air­ways is entitled to claim exemption from liability under the terms of the consignment note. The learn­ed counsel for the Appellant contends that the liabi­lity of the carrier is governed by the provisions of sees. 151 and 152 of the Indian Contract Act, 1872 (Act IX of 1872), and the Defendant stands in the position of a bailee of the goods delivered. As such, the Defendant is liable for loss or damage done to the propriety consigned for carriage. If the liability of the Defendant is held to be; governed by the Indian Contract Act, then there can be no doubt that the Defendant was bound to show .that as a bailee, it had taken as much care of the goods bailed to it as a man of ordinary prudence would under similar circumstances and it could not claim exemption because of any stipulation in the consignment note limiting its liability against the pro­visions of the Contract Act. But the argument of the Defendant is that the liability of the carrier does not arise under the Indian Contract Act, but under the common law of England as administered by the Courts in India, and as such it was open to the carrier to define and limit its liability by a contract between itself and the consignor of the goods. (4) At the outset, it may be stated that the lia­bility of the Defendant Company is not governed by the provisions of the Indian Carriage by Air Act, 1934 (Act XX of 1934). This Act was brought into being in order to give effect to a convention for unifi­cation of certain rules relating to international car­riage by air. Chapter III of the Rules in this Act provides for the liability of the carrier and under Rule 18 of the Rules, the carrier is liable for damage sustained in the event of the destruction or loss or damage to any registered luggage or any .goods, if the occurrence, which caused the damage so sustained took place during the carriage by air; which means, in other words, the period during which the Zuggaga or the goods were in charge of the carrier, whether in an aerodrome or on board an aircraft. The carrier, however, could plead exemption from liability if under Rule 20 it was able to show that the carrier or its agents had taken all necessary measures to avoid the damage or that in the circums­tances, it was impossible for it or them to take such' measures. It is further provided under that Rule that the carrier would not be liable if it proves that the damage was occasioned by negligent pilotage or neg­ligence in the handling of the aircraft or in the navi­gation thereof, provided in other respects the carrier and its agents had taken necessary measures to avoid; the damage or loss. But these Rules, as I said, apply to international carriage by air. The operation of the Rules could be extended by the Central Government to such carriage by air, not being international carriage by air, as defined in the first schedule as might be specified in a notification published by the Central Government under sec. 4 of the Act. But the learned counsel for the Appel­lant has conceded that there is no such notification published by the Central Government. The Plaintiff, therefore, could not take any advantage of the Rules contained in tin's Act for the purpose of enforcing the liability of the Defendant Company. One would very much wish for the sake of uni­formity in all such cases of transport by air that these Rules were extended to apply to other cases also as contemplated by sec. The Plaintiff, therefore, could not take any advantage of the Rules contained in tin's Act for the purpose of enforcing the liability of the Defendant Company. One would very much wish for the sake of uni­formity in all such cases of transport by air that these Rules were extended to apply to other cases also as contemplated by sec. 4 and that the Central Government would take appropriate action in the matter. Similarly, the Carriers Act of 1865 (Act III of 1865) has also no application to the case as the Act applies only to a common carrier engaged in the business of transporting property for hire by land or inland navigation. The case, therefore, has to be de­cided mainly on the footing whether the liability of the carrier in the circumstances is governed by the Contract Act or by the English common law. (5) The decisions, barring a few notable exceptions, appear to1 be unanimous that the liability of the carrier in such cases is governed by the English com­mon law since adopted in India and not by the Con­tract Act, Under the English common law, the car­rier's liability Is not that of a bailee only, but that of an insurer of goods, so that the carrier is bound to account for loss or damage caused to the goods deli­vered to it for carriage, provided the loss or damage was not due to an act of God or the King's enemies 6r to some inherent vice in the thing itself. Where those circumstances do not exist, the car­rier cannot take the plea that it should be exempted from liability, because it had taken every reasonable care to avoid the loss or damage. At the same time the common law allows the carrier almost an equal freedom to limit its liability by any contract with the consignor. In such a case, its liability would depend upon the terms of the contract or the conditions under which the carrier accepted delivery of the goods for carriage. The terms could be very far-reaching. Indeed, it could claim exemption even if the loss was occasioned on account of the negligence or misconduct of its servants or even if the loss or damage was caused by any other circumstance what­soever, in consideration of a higher or lower amount of freight charged. The terms could be very far-reaching. Indeed, it could claim exemption even if the loss was occasioned on account of the negligence or misconduct of its servants or even if the loss or damage was caused by any other circumstance what­soever, in consideration of a higher or lower amount of freight charged. Howsoever amazing a contract of this kind may appear to be, yet that seems to be the state of the law as recognised by the common law of England and ad-Opted by the Courts in India. The Carriers Act, [1865 (Act III of 1865), also recognised the same prin­ciple and under Ss. 6 and 7, it specifically provided to what extent it was possible for the common carrier to limit its liability by a special contract. The Indian Railways Act, 1890 (Act IX of 1890) was cognisant of the application of the law of carriers in India and therefore, under sec. 72 of the Act, it specifically pro­vided that the liability of the Railways would be that of a bailee governed by sees. 151 and 152 of the Act, except where the consignment was governed by the terms of a risk note. (6) The leading case on the point appears to be the decision of the Privy Council in the Irrawaddy Motilla Co. v. Bugwandas, ILR 18 Cal 620. The case arose out of a suit for recovery of damages on account of bales of cotton destroyed by fire whilst on board a steamship belonging to the Defendant Company. These bales were put on board to be carried from a place in Upper Burma down the river to Rangoon. While the steamer was lying at the place or departure, a fire broke out from some unexplained cause. The question arose whether the Defendant Company as carriers of goods for hire were answerable for the goods independently of any negligence on their part or were responsible only for the amount of care which was required of them under sees. 151 and 152 of the Contract Act like all bailees. The facts as found in that case appear to be that the fire broke out suddenly and was not due to any negligence on the part of the Defendant's servants and all usual precautions were taken and that everything that could be done was done to stop the fire, which agreed rapidly. The facts as found in that case appear to be that the fire broke out suddenly and was not due to any negligence on the part of the Defendant's servants and all usual precautions were taken and that everything that could be done was done to stop the fire, which agreed rapidly. The Recorder found that the Calcutta High Court decision in Moothora Kant Shaw V. India General Steam Navigation Co., ILR 10 Cal 166 was an express authority on the point that the defendant company was liable as a common carrier and its liability was not affected by the provisions of the Contract Act. This the Recorder did notwithstanding the decision to the contrary effect by the Bombay High Court in Kuverji Tulsidas v. G.I.P. Ry. Co., ILR 3 Bom 109, because he felt bound by the decision of the Calcutta High Court and accordingly decreed the claim. On appeal, the Privy Council was thus faced with the conflict of judicial opinion in India and had to decide which of the two views taken by the Calcutta and the Bombay High Courts in the cases noted above was correct. The High Court of Bombay had held that the effect of the Indian Contract Act, 1872, was to reli­eve the common carriers from liability of insurers answerable for the goods entrusted to them "at all events" except in the case of loss or damage by the act of God or the Queen's enemies and to make them responsible only for the amount of care, which the Act requires of all bailees alike, in the absence of any special contract. The Calcutta High Court had considered the matter in a Full Bench and had held to the contrary and was of the view that the liabi­lity of common carriers was not affected by the Contract Act. The Calcutta High Court had considered the matter in a Full Bench and had held to the contrary and was of the view that the liabi­lity of common carriers was not affected by the Contract Act. It Was urged before the Privy Council by the learned counsel for the appellants that the liability -of a carrier for hire was defined and limited by legislation in India and was not governed by the English law on the subject; the Carriers Act, 1865, merely assumed that a common carrier fell under the stringent rule of the English common law without strictly enacting that it was so, but inasmuch as the delivery of the goods by the customer to a com­mon carrier constituted a bailment, the responsibility for non-delivery should be determined by the chapter on bailment under the Indian Contract Act, which dealt exhaustively with the whole subject of a bailee's responsibility. Therefore, according to the learned counsel, the liability of a carrier was not excepted from the operation of the Contract Act, it being an incident distinctly inconsistent with sections 151 and 152 of the Act. The learned counsel urged that the carrier's liability wan not a usage or custom of trade, but part of the common law as being a custom of the realm of England introduced into India; and although the Carriers Act may not have been repealed, yet the greater responsibility of the common carrier being inconsistent with the bailment sections in the law of Contract should be deemed to have ceased. On these grounds, it was urged that the view of the Bombay High Court was correct and should be preferred to the view, which prevailed in the Calcutta High Court. Their Lordships of the Privy Council after having examined the relevant provisions of the Car­riers Act, 1865, the Contract Act, 1872 and the Railways Act, 1879, formulated the law 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. 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, 3 B. and B. 62) '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'." They definitely held that the Contract Act was not intended to deal with the law of common carriers and notwithstanding the generality of some expressions in the chapter on bailments, they thought that common carriers were not within the Act. They felt, therefore, compelled to decide in favour of the view of the High Court of Calcutta and against that of the High Court of Bombay. This decision would appear to have settled any divergence of judicial opinion that prevailed in India on that question. (7) The point, however, again arose with all its controversial phase in another Full Bench decision of the Madras High Court in ILR 32 Mad 95. The learned counsel for the appellant has naturally placed great reliance before us upon the judgment of Sir Sankaran Nair, in the case in question. The Defen­dants in that case, the British India Steam Naviga­tion Co., Ltd. carried certain bags of rice and other goods consigned in favour of the plaintiff from Rangoon to Tuticorin, under a bill of lading con­taining inter alia certain terms, whereunder "In all cases and under all circumstances the liability Of the company shall cease absolutely when the goods are free of the ship's tackle and thereupon the goods shall be at the risk, for all pu7£CS;,s and in every respect of the shipper or consignee". The ship arrived at Tuticorin and the defendants landed the cargo. But the goods appeared to have been damaged by the negligence of the defendants' servants. In a suit brought by the plaintiff to recover damages, it was held by the majority of the learned Judges constituting the Full Bench that the defen­dant company could not invoke in aid the general negligence clause in the body of the document and that they were not exempted from liability for negli­gence. In a suit brought by the plaintiff to recover damages, it was held by the majority of the learned Judges constituting the Full Bench that the defen­dant company could not invoke in aid the general negligence clause in the body of the document and that they were not exempted from liability for negli­gence. The words "in all cases and under all circum­stances" though as wide and general as possible, would not cover the case of negligence which should have been expressly provided for, and it should have been shown by the defendants that the goods were ready for delivery before they were damaged. Wallis, J. however, did not agree with the actual decision in the case. He was of the view that the last cited clause had to be read with the general conditions in the body of the bill and so read, it clearly exempted the defendants from liability. It is important to notice 'that although the learned Chief Justice and Sir Sankaran Nair, agreed in the actual decision, they differed on principle, On which point Wallis, J. con­curred with the learned Chief Justice. The learned Chief Justice and Wallis, J. took the view that in England it was competent to a ship-owner to pro­ject himself by express contract from liability for the negligence of himself or his servants which, according to them was also the law applicable in India. It is unfortunate that the Privy Council decision referred to earlier does not appear to have been ex­pressly considered either in the judgment of the learned Chief Justice or that of Wallis, J. The decision, however, has received a passing reference in the judgment of Sir Sankaran Nair, who doubted the correctness of the. proposition formulated by the other learned Judges. He observed that the rule of English law, which allows ship-owners to exempt (themselves by express contract from liability for negligence, could not be applied to India, inasmuch as it was inconsistent with the provisions of the Indian Contract Act and the manifest intention of the Legislature in enacting such provisions. Sec. 148 of the Indian Contract Act included bailments for carriage and a ship-owner in that sense was a bailee in respect of the goods entrusted to him. Therefore, according to the learned. Judge, sec­tion 151 of the Indian Contract Act laid down the absolute minimum of care required of bailees. Sec. 148 of the Indian Contract Act included bailments for carriage and a ship-owner in that sense was a bailee in respect of the goods entrusted to him. Therefore, according to the learned. Judge, sec­tion 151 of the Indian Contract Act laid down the absolute minimum of care required of bailees. Hav­ing regard to the provision of Sec. 152, which allows a bailee to undertake a higher responsibility, as well as to the fact that there was absence of any provision in the Contract Act allowing a bailee to limit such liability, the amount of care required by Sec. 151 was irreducible by any contract between the parties. A contract limiting such liability would be op­posed to public policy and void under Sec. 23 of the Contract Act, as being against the interests of the mercantile community and not necessarily in the interests of the ship-owners. His Lordship appears to suggest with apparent facility that even on the authority of the decision of the Judicial Committee in ILR 18 Gal 620 (ibid), Sec. 148 of the Indian Contract Act included bailment for carriage and as such, sec. 151 of the Act applied to carrier's liability as bailees. He observed that in English law, the amount of care seemed to depend upon the benefit accruing to the bailee, whereas under the Indian Contract Act, the obligation arose from the simple fact of accept­ing delivery or receiving property for a certain pur­pose and the care to be taken in all cases. The learn­ed Judge opined that the Contract Act appears to have swept away all the distinctions between the degrees of care required by bailees; the relations between the parties might well be regulated by the terms of a specific contract when the degree of care required is dependent upon the benefit derived from .the bailment, but when the amount of care is regula­ted by a law on the subject irrespective of the benefit to the bailee, it could be very well assumed that the Legislature did not think it right to allow the bailee Jo reduce his liability. A contract of this nature could not be recognised by the Indian Courts. A contract of this nature could not be recognised by the Indian Courts. These weighty observations of Sir Sankaran Nair compel serious attention and attract by their freshness and originality; but it seems too late now to turn away from the beaten track of judicial precedents, which have since acquired all the sanctity of a stare decisis. I am, however, unable to understand, and I say so with the utmost respect, how the learned Judge could overlook the very point which the Judicial Committee of the Privy Council had decided and held that the carrier's liability was governed by the English common law and not by the terms of the Contract Act, especially when that decision was given by the Privy Council with full con­sciousness of the conflict of judicial opinion in India. That the said decision of the Judicial Committee has been subsequently followed in other cases' is out of question. (8) In British and Foreign Marine Insurance Co., Ltd. v. India General Navigation and Ry. Co., Ltd., ILR 38 Gal 28, the same principle was reitera­ted. In that case, the goods were shipped on a flat belonging to the carriers under a bill of lading endorsed to the manufacturing company and by a clause in the bill; the carriers were exempt from loss of the goods unless such loss was occasioned from the negligence or criminal acts of their servants. The goods were lost by the negligence of the carriers and the insurance company, having paid the manu­facturing company the amount of the policy for which the goods were insured, instituted a suit against the carriers for recovery of the amount. It was held that the rights and liabilities of the com­mon carrier in India were outside the Indian Con­tract Act, and were governed by the principles of the English common law as modified by the Indian Carriers Act. According to their Lordships- "A common carrier, therefore, in India is sub­ject to two distinct classes of liability, the one for loss for which he is liable as an insurer, the other for loss for which he is liable under his obligation to carry safely. Speaking generally the first of these are insurable risks from which the element of default is absent, the second are risks of conveyance in which that element is present. Speaking generally the first of these are insurable risks from which the element of default is absent, the second are risks of conveyance in which that element is present. The Carriers' Act of 1865 has in some degree modified this position." Sir Lawrence Jenkins, who delivered the judgment of the Court appears to have arrived at this con­clusion independently of the earlier Calcutta decision in the Full Bench case of ILR 10 Cal 166 or that of the decision of the Privy Council in the Irrawaddy Flotilla Co. case, ILR 18 Cal 620. Even in the arguments of the eminent counsel for the parties as reported, it is somewhat strange to notice that these decisions altogether appear to have escaped notice. It must be also noted that the decision of the case depended upon the construction of the Carriers Act as to the limits of exemption from liability: that is, where the loss had arisen from the. negligence of the carriers, they could not claim exemption under any contract. With reference to this aspect of the matter, the learned Judges observed: "In India, where there is a statutory prohibi­tion against exempting a carrier from loss arising from negligence or criminal acts, there is perhaps an even stronger reason for adopting this canon of construction at any rate within the limits implied by the prohibition " The rule of construction which limits the operation of a clause of exemption is based on no technicality, but on sound policy and is consistent with the views of modern jurists. (9) In Bombay Steam Navigation Co., Ltd. v. Vasudev Baburao, AIR 1928 Bom. 5, the Bombay High Court appears to have revised its earlier view and brought itself in line with the principles for­mulated in the Privy Council judgment. It was held there that it was competent to a shipowner to protect himself, by express contract, from liability for the negligence of himself or his servants in spite of section 151 of the Contract Act. It was further observed that where goods were shipped under a bill of lading the consignee was bound by the terms and the ship-owners need not show that the consignee expressly authorised his shipping agent to accept the terms in the bill of lading. The learned Judges preferred to follow the dictum of Wallis, J. in ILR 32 Mad. It was further observed that where goods were shipped under a bill of lading the consignee was bound by the terms and the ship-owners need not show that the consignee expressly authorised his shipping agent to accept the terms in the bill of lading. The learned Judges preferred to follow the dictum of Wallis, J. in ILR 32 Mad. 95 and they did not consider that there was any adequate reason to adopt the contrary view of Sir Sankaran Nair. It does not appear, however, that the attention of the learned Judges was drawn to the effect of Sec. 7 of the Carriers Act of 1865 on the contract in ques­tion before them. (10) I will now turn to examine a comparatively recent decision of the Privy Council in an appeal from Canada, Alfred William Luddit v. Ginger Coote Airways Ltd., 51 Cal W.N. 498: (AIR 1947 PC 151). In that case, the appellants were passengers travell­ing on an aeroplane operated by the respondent com­pany. During the flight, the aeroplane caught fire owing to the negligence of the respondent's servants as a result of which the appellants were injured. They, therefore, filed suits claiming damages for the injury which they had sustained. The sole question was whether an express condition contained in the ticket issued to each of the appellants, which exemp­ted the respondent from liability, was valid so as to exonerate the company from any obligation to compensate the appellants for their injuries or whe­ther it was illegal and void. Their Lordships held as follows: "The liability of a common carrier of passengers was settled by the decision of the Exchequer Cham­ber in 1860 in Readhead v. Midland Railway, (1869) 4 QB 379. It was there held that the liability of a. general or public or common carrier of passengers is more limited than that of a common carrier of goods. By the custom of the realm a common carrier of goods was at common law 'bound to answer for the goods at all events .......The law charges this person thus entrusted to carry goods against all events but acts of God, and of the enemies of the King' (10c. cit. at page 382). The carrier of passen­gers is not subjected to a duty so stringent. His obligation at common law, as was held in the leading case just cited, is to carry 'with due care'. cit. at page 382). The carrier of passen­gers is not subjected to a duty so stringent. His obligation at common law, as was held in the leading case just cited, is to carry 'with due care'. One reason for the distinction no doubt is that the carrier of goods is a bailee of the goods which he carries, whereas a carrier of passengers is not a bailee of his passengers. Both classes of carriers, however, are subject to the obligations which arise from their ex­ercising a public profession which requires them to carry for all and sundry subject to the obvious limi­ting conditions." It was further held that the common carrier of goods was nevertheless at common law free to limit his stringent obligations by special contract; though no doubt he remained a common carrier bound to carry for all according to his profession, he could all the same insist on making his own terms and refuse to carry except on those terms, provided that there were no statutory conditions limiting his right. They, therefore, held that no statutory restrictions had been infringed by the terms in question and there was no reason under the statute to set aside or refuse to give effect to a specific contract, which was autho­rised by the law. The effect of this decision is that the general duty of a carrier of goods or passengers to exercise care could be superseded by a specific contract, which might either enlage, diminish or exclude it subject to such statutory restrictions as might be imposed. Mr. Ahmed on behalf of the appellants has laid great stress upon the distinction between the carrier of goods and that of passengers as suggested in the passage quoted above, where it was also observed incidentally that the carrier of goods was a bailee of the goods which he carried, whereas a carrier of passengers was not a bailee of the passengers. This observation, in my opinion, does not go to support the contention that the liability of a carrier of goods fell under the chapter of bailments, pro­vided by the Indian Contract Act. Later in the judgment, their Lordships quoted with approval the dictum of Maule, J. as quoted by Atkin, L.J. in Great Northern Ry. Co. v. L.E.P. Transport and Depository Ltd.. Later in the judgment, their Lordships quoted with approval the dictum of Maule, J. as quoted by Atkin, L.J. in Great Northern Ry. Co. v. L.E.P. Transport and Depository Ltd.. (1922) 2 KB 742 at p, 771: "I deny the truth of the position that a man who is not an insurer Is therefore, not a common carrier. A common carrier who gives no notice limiting his responsibility is an insurer, but, if he gives notice that he will contract only to a limited extent and with respect to articles of a given value, he ceases to be an insurer beyond that, though ;in all other respects he remains a common carrier;" and observed further that though in the passage in question, Maule, J. was "speaking of carriers ot goods, but the same principle is true, mutatis muta­ndis, of a carrier of passengers who in law is neither an insurer nor precluded from making a special con­tract with his passengers." Their Lordships accord­ingly upheld the express condition contained in the ticket issued to the appellants exempting the res­pondent from liability and giving the Company almost an absolute immunity. It is important to notice in this context the condition in question which, inter alia, ran as follows: ".......I hereby agree with the Ginger Coote Airways Ltd. that such flight is, and shall be, at my own risk against all casualties to myself or my property and that I take all risk of every kind, no matter how caused, and I hereby release and dis­charge the Ginger Coote Airways Ltd. and indemni­fy it of and from all actions, claims and demands of every nature and kind whatsoever.....or on account of any loss, damage or injury to me, my person or property while so flying .... or in any manner in connection with or in consequence of such flight, and whether any such loss, damage or injury be caus­ed by negligence, default or misconduct of the Ginger Coote Airways Ltd. itself, servants, agents or mem­bers, or otherwise howsoever.'' (11) The decision in Nadar Transports v. State of Madras, AIR 1953 Mad 1 appears to be the latest pronouncement of that Court on the point. In that case, the goods were sent by ship on high seas as deck cargo on contract embodied in a bill of lading, which contained a clause that the carriers and their agents or servants or any of them would not be liable whatever, in case of carriage of live animals or deck cargo, for any loss or expense connected therewith, however caused, and whether due to negligence, unseaworthiness or otherwise. It was held on a review of a very large number of decisions on the point, both English and Indian, that the liability of the carrier was not governed by Sec. 151 or 152 of the Contract Act or by the Car­riage of Goods by Sea Act, 1925, but by the terms of the contract between the parties as contained in the bill of lading; and the carriers were therefore, exempted from liability, even if the loss was due to negligence on their part or on the part of their servants. With reference to the judgment of Sir Sankaran Nair, in Sheik Mahomed Ravuther's case, ILR 32 Mad 95 the learned Judges observed that though there may be something to be said in favour of the view taken by that learned Judge, they felt bound by the consensus of authority in that Court as well as in the other High Courts of India, which took the view that the English common law was applicable. They, therefore, took it as settled that the Contract Act had no application to such cases and upheld the condition in the bill of lading -exempting the Defendant. (12) The decision of this Court in AIR 1955 Assam 65 adopts the same view of the law; and despite the originality of approach disclosed in the judgment of Sir Sankaran Nair, I find myself unable at this stage to adopt the principle formulated by that learned Judge. I feel bound to hold that the liability of the common carrier in this case is gov­erned by the English common law and not by the provisions of the Contract Act and that it was open to the common carrier to limit its liability by a specific contract on the point as contained in the bill of lading. I feel bound to hold that the liability of the common carrier in this case is gov­erned by the English common law and not by the provisions of the Contract Act and that it was open to the common carrier to limit its liability by a specific contract on the point as contained in the bill of lading. The contract contained a clause inter alia that the carrier "shall be exempt from any liability under the law whether to the sender or to the consignee or to their legal representative in case of damage or loss or pilferage or detention from any cause what­soever (including negligence or default of pilots, agents, flying ground or other staff or employees of the carrier or breach of statutory or other regulations) whether in course of the journey or prior, or sub­sequent thereto and whether while the freight be on board the aircraft or otherwise." The clause gives the. carrier Company complete immunity from liability. It cannot be impugned on the ground that it is hit by Sec. 23 of the Indian Con­tract Act, because the Contract Act has no applica­tion to the case, nor can it be said to be opposed to public policy. AS shown earlier, exemption clauses of this nature have been upheld by the Courts and there being no other statutory bar as provided un­der the Indian Carriers Act or under the Indian Carriage by Air Act, which have no application to this case, under the common law a contract of this nature was permissible. There was some suggestion that the original bill of lading had not been produced, but this ap­pears to be a pure misconception as Exhibit "A" appears to be the original document under which the goods were consigned and the Plaintiff is bound by the terms of the document. On the terms con­tained in that document, it must be held, as it has been rightly held by the Courts below, that the Defendant Company is not liable for the loss. (13) The only other point, which has been urged before us, is the question or locus standi of the Plaintiff to file the suit as it is said he was neither the consignor nor the consignee of the goods deliver­ed to the Defendant No. 1. (13) The only other point, which has been urged before us, is the question or locus standi of the Plaintiff to file the suit as it is said he was neither the consignor nor the consignee of the goods deliver­ed to the Defendant No. 1. Reliance has been placed on the decision in Firm Mahadeo Ram Bhimeswar v. Union, of India, AIR 1952 Orissa 126 in support of the contention that the mere fact of delivery by the Railway to a certain party does not raise any presumption that the person to whom the goods were delivered was recognised as the owner. The above view finds support also from the decisions of the Privy Council in Official Assignee, Madras v. Mercantile Bank of India Ltd AIR 1934 P.C. 246 and Mercantile Bank of India Ltd. v. Central Bank of India Ltd., AIR 1938 P.C. 52. It is of course not clear from the plaint in what capacity the Plaintiff sued to recover the price of the goods lost. All that is said is that the Defendant No. 2 consigned the electric goods to the Defendant Com­pany for delivery to the Plaintiff, The trial Court, however, found that the Plaintiff was the virtual consignee and the Defendant No. 2 was the Plain­tiff's commission agent. This finding was not dis­placed on appeal. In view of that finding, the point loses much of its force and has merely an academic value. (14) The result is that the Plaintiffs claim cannot be sustained and his suit has been rightly dismissed by the Courts below. The appeal, therefore, fails and must be dismissed though in the circumstances without costs. (15) Second Appeal No. 112 of 1955: The second appeal also has to be decided in the light of the principles discussed above. The parties in this case are the same though the claim relates to a different consignment in which one packet of goods worth Rs. 1,400/- delivered to the Defendant Com­pany was lost. Here also the Defendant Company pleaded exemption from liability on the conditions of the consignment note. The plea has prevailed with the Courts below, who have concurrently dismis­sed the suit. 1,400/- delivered to the Defendant Com­pany was lost. Here also the Defendant Company pleaded exemption from liability on the conditions of the consignment note. The plea has prevailed with the Courts below, who have concurrently dismis­sed the suit. The exemption clause in this case is almost in similar terms, affording well nigh complete immunity to the Defendant Company and as the condition must be held to be valid and binding under the law, in this case also the decree of the Courts below have to be affirmed. This appeal also fails and must be dismissed though without costs. (16) H. DEKA J. : I agree. Appeals dismissed.