INTRODUCTION
In today’s commercial life, the need to carry goods from one place to another cannot be overemphasized. For the smooth carriage of goods, the laws relating to the contract of carriage play an essential role. Goods can be carried by land, sea, or air. There are different laws for these three types of carriage. The rules governing the carriage of goods by land are:
- The Carriers Act, 1865
- The Railways Act, 1989
However, these two Acts are not exhaustive. It means that when these laws do not cover any matter, the courts resort to the English Common law for interpretation. This article focuses on the carriage of goods by land under the Carriers Act, 1865.
DEFINITION OF CARRIER
Carrier means a person or an organization employed to carry goods or people[1]. Any person may carry goods or persons with or without remuneration by an implied or an expressed contract. According to Swift[2], a carrier is employed to carry or hire goods for others. For example, it can be a porter. Government services can also be called a carrier if it falls within this definition. For example, Bangladesh Railway, Bangladesh Road Transport Authority (BRTC) are carriers.
There are three types of carriers for the carriage of goods[3]. These are:
- Common Carrier
- Private Carrier
- Gratuitous Carrier
COMMON CARRIER
As per Section 2 of The Carriers Act, 1865 Common Carrier is a person, other than the Government, engaged in transporting or hiring property from place to place by land or inland navigation for all persons indiscriminately.
DUTIES OF A COMMON CARRIER
There are some duties of a common carrier. These are:
- A common carrier is obliged to transport the products of anyone who hires him. However, he may refuse to transport goods for the reasons listed below.:
- If there is not enough space in the carriage [Riley Vs. Orne[4]]
- If the goods are dangerous and subject him to extraordinary risks [Edwards Vs. Sherrat[5]]
- If the goods are unusual for him to transport [6]
- If the goods must be transported by a different route than his usual one[7]
- If the goods are not properly packed [Sutcliff Vs. Great Western Railway Co[8]]
- If the consignor refuses to reveal the nature of the goods[9]
It was held in the case of G.W. Rly Co. Vs. Sutton[10] that a common carrier may be held accountable for damages if he refuses to transport goods for grounds other than those listed above.
- Unless unusual circumstances dictate otherwise, a common carrier must transport the goods by the usual route.. [May Vs. London & South Western Rly. Co[11]]
- A common carrier must deliver the goods within the agreed time or a reasonable period if no time frame has been set. [Bontex Knitting Works Ltd. Vs. St. John’s garage[12]]
- A common carrier is under an obligation to carry the goods with reasonable care[13]
RIGHTS OF A COMMON CARRIER
The rights of a common carrier are:
- A common carrier has the right to receive a settled or a reasonable remuneration if no renumeration was settled[14]
- A common carrier has the right to refuse to carry goods on the above mention grounds[15].
- A common carrier has the right to lien on the goods for his remuneration. [Rushforth Vs. Hadfield[16]]
- A common carrier has the right to recover reasonable expenses incurred by him as a result of the consignee’s refusal to take delivery
- A common carrier has the right to sue the consignor for damages if the items are unsafe or if he is injured while transporting them. [17]
- A common carrier has the right to restrict his liability according to the provisions of the Carriage Act[18]
PRIVATE CARRIER
A private Carrier is one who does not do regular business as a carrier but occasionally carries goods for consideration[19]. A Private Carrier is not bound to carry the goods of everyone.
DUTIES AND RIGHTS OF PRIVATE CARRIER
The Common Carrier Act, 1865, does not apply to a private carrier. The Contract Act, 1872 applies to a private carrier[20]. Thus, the position of a private carrier is that of a bailee. He has the same rights, duties, and liabilities as a bailee under the Contract Act.
GRATUITOUS OR VOLUNTARY CARRIER
A gratuitous carrier is someone who freely or without consideration transports another person’s goods[21]. For example, when a person gives a lift to another, he may do so without consideration. Thus, he is a gratuitous carrier.
DUTIES AND RIGHTS OF GRATUITOUS CARRIER
The duties and rights of a gratuitous carrier are as same as that of a private carrier. To reiterate, a gratuitous carrier is in the same position as a bailee. However, an agreement with a gratuitous carrier is void for want of consideration. Thus, no action can be taken against him for refusing to carry the goods even though he has undertaken to do so[22].
CONTRACT OF CARRIAGE
A contract of carriage is a contract of bailment for reward or locatio operis faciends. This means that this is a contract of hire of labor and services[23].
IS THE POST-OFFICE A COMMON CARRIER?
As per Section 2 of the Carriers Act, 1865, one of the main characteristics of a common carrier is that it is not a government-provided service. For this reason, Post-Office is not a common carrier. It is an agent of the sender to deliver postal articles. Moreover, the Post Office is regulated by the Post Office Act, 1898. For the same reason, Bangladesh Road Transport Corporation (BRTC) is also not a common carrier.
CONCLUSION
Although Bangladesh Railway has many features of the common carrier, yet it is not a common carrier. The arguments in support of this claim are that Bangladesh Railway is regulated by a separate Act, that is Bangladesh Railway Act, 1890. In contrast, a common carrier is regulated by the common carriage Act, 1865. Furthermore, Bangladesh Railway is a government-owned institution. Thus, it is not a common carrier.
Author(s) Name: Gargi Das Chomok (University of Rajshahi, Bangladesh)
[1] Asaduzzaman, Business Law of Bangladesh. National Law Book House, 4th Edition, P.362
[2] Ibid
[3] Law Of Carriage Of Goods, Indian Institute of Materials Management
Law of Carriage of Goods – Indian Institute of Materials Management (IIMM)
[4] (1824) 5 Bing. 217.
[5] (1801) 1 East. 604.
[6] Note 2
[7] Note 1
[8] (1910) 1 K.B. 474
[9] Note 1
[10] (1869) 4 H.L. 226
[11] (1869) L.R. 5C. P.1
[12] (1944) 60 T.L.R. 253
[13] Note 1
[14] Note 2
[15] See duties of a common carrier
[16] (1805) 6 East 519.
[17] Note 1
[18] Ibid
[19] Note 1
[20] Note 1
[21] Note 1
[22] Sen Mitra, Commercial Law. P.381.
[23] W. Moore, Locatio Operis Faciendi, American Legal Encyclopedia
