1. This case raises a point of some interest that has been much discussed in the English Courts and has very recently been the subject of a decision by Mr. Justice Macleod as he then was sitting in the, High Court of Bombay Boggiano & Co., v. Arab Steamers 33 Ind. Cas. 536 : 40 B. 529 : 18 Bom. L.R. 126. It is not disputed by the appellant that if Mr. Justice Macleod's judgment is correct he is out of Court. The defendant was the owner of two steamers which were chartered by the plaintiff for the carriage of rice from Akyab to the Coromandel coast. The importation of rice was only permitted, and Mr. Justice Waller, the Trial Judge, has very rightly found that this was a fact perfectly within the knowledge of the parties, if and when a certificate could be obtained from the Food Controller. The learned Judge has also rightly found and this part of his judgment is not challenged that neither party to the contract committed himself to a guarantee that such a certificate would be forthcoming. As to that no question arises and the learned Judge, therefore, thinks that the execution of the contract became, impossible owing to an act which is neither under, the Control of the parties nor one which they had put themselves in the position of having warranted to be in existence, namely the certificate. In these circumstances, the shipper says that he is entitled to be paid back certain moneys which he had, paid to the ship-owner and these moneys are described in the contract as being paid, for freight at the rate provided for in the, charter party,
1. Rs. 450, only advance on acceptance of charter party and to be deducted from the freight of the second ship.
2. Half of the freight to be paid as the vessel reaches Akyab and takes the cargo.
3. The balance freight to be paid as the vessel reaches the port of destination.
2. It is sought to be said by the appellant in this case that this contract between the parties is not to be regarded as being governed by the general law of India laid down in the Contract Act but by the English Common Law. The appellant's Vakil has very properly accepted the position that in circumstances such as the present the money that passed from one hand to the other is recoverable by Indian Law but irrecoverable by the English Common Law. If that were all that has to he said about it, it is quite plain that we should have to be guided by the Statute Law that obtains in this country and should not be justified, in going past the Indian Statute to the English Common Law; but a very ingenious argument is put forward, the same argument that was really put forward in the Bombay case. It is said that a ship in this position is a common carrier and that in accordance with the decision of the Privy Council in Irrawaddy Flotilla Co. v. Bugwandas 18 C. 620 : 18 I.A. 121 : 15 Ind. Jur. 403 & 542 : Sar. P.C.J. 40 : 9 Ind. Dec (N.S.) 413, the contract between the parties is not to be supposed to be governed by the Indian Contract Act but by the English Common Law regarding the liabilities, and rights of common carriers. It is said that the moment you show that a person is a common carrier you have proved the existence of a certain type of contract of a special kind which according to the Privy Council decision is not governed by the provisions of the Indian Contract Act. There appear to me to be two objections and the first is this that it is more than doubtful whether a ship under charter as distinct from a general ship taking the goods of several shippers under separate bill of lading on the same voyage is property described as a common carrier at all. It is not necessary to decide that point fortunately in this case but it is one that has been frequently discussed in commercial circles and amongst commercial lawyers for the past 70 years and there are a very considerable number of expressions of opinion by eminent commercial lawyers on the Bench that a chartered ship is not a common carrier. If that be right, the appellant's case is ended at once. It appears to me that we can put the case on an even more solid footing than that in the following way. Let us assume that in a contract of carriage by sea, all those features which are peculiar to the contract of affreightment are governed by the English Common Law and, therefore, would not be touched even in this country by the provisions of the Indian Contract Act. But there are other incidents in the relation of ship-owner and shipper in a contract of affreightment which are in no way peculiarly confined to a contract of affreightment and which are independent of the special provisions of maritime law. That is so, I think, is clear from many of the cases which were cited before us, so that the question narrows itself down to this, is money paid in the present circumstances by way of an advance freight a special feature of a contract of affreightment deriving all its validity and force from the law maritime or does it derive its validity and force-from the general English Common Law. The answer is to be found in the decision of the Divisional Court in Blakeley v. Muller & Co. (1903) 2 K.B. 760n : 67 J.P. 51 : L.T. 90 : 19 T.L.R.186 which is reported as a foot-note to the Civil Service Co-operative Society Ltd. v. General Steam Navigation Co. (1903) 2 K.B. 756 : 72 L.J.K.B. 933 : 52 W.R. 181 : 89 L.T. 429 : 20 T.L.R. 10 : 9 Asp. M.C.
477. There Channel, J, dealing with one of the coronation cases as they are commonly called expressly, says that it is an incident of the English Common Law and says that it is the same principle of the Common Law which prevents the refunding of advance freight on a charter party where the voyage is not completed and the freight, therefore, not earned. That way of putting it was assented to in the judgment of the Earl of Halsbury, L.C. Lord Alverstone, C.J. and Cozens Hardy, L.J., where, after citing the passage which I have read, the Earl of Halsbury, L.C., says he concurs with every word of that. If that be the right principle that was laid down by Channel, J., it follows that the liability in England to recover advance freight on the frustration of the venture is derived from the general principles of the Common Law and not from any supposed peculiar incident attaching to maritime contracts of affreightment. That being so, even if a chartered ship is a common carrier, the answer would be that matters relating to the recoverability of freight paid in advance although they happen to occur in a charter-party which is a maritime document of affreightment are nevertheless to be regarded as being regulated by the ordinary Common Law or Statute Law, whether English or Indian. Then you get back to this position; that being the Common Law of the land or the Statute Law of the land and the general principle is different in India from what it is in England. Therefore, just as we should apply the Common Law in England, so we should apply the express Statute that is obtaining in India. It, therefore seems to me that we should take the view that whether a chartered-ship is a common carrier or not, nevertheless the general principle of the Indian Contract Act applies and advance frieght when paid can he recovered back by the shipper on the frustration of the venture. That appears to be in accordance with the view expressed by Phillips and Odgers, JJ., in Sivanadian Chettiar v. Batchu Surayya 87 Ind. Cas. 127 : 48 M.L.J. 413 : 21 L.W. 445 : (1925) M.W.N. 303 : (1925) A.I.R. (M.) 727 : 48 M. 459. Our decision is also in accordance with that in (Boggiano & Co. v. Arab Steamers 33 Ind. Cas. 536 : 40 B. 529 : 18 Bom. L.R. 126 with which we respectfully agree. The appeal will be dismissed with costs.