Ramesam, J.
1. This is a revision petition by the petitioner who is described as Madura Co. Ltd. Alleppey, against the decree of the Subordinate Judge of Cochin, in a suit by the respondent-plaintiff P.C. Xavier, timber merchant, for damages for injury caused to certain packages containing shooks handed over to the defendant company at the Muttancherry Station which was the out-agency of the S.I. Ry. Co. The petitioner-company is a company incorporated with its registered office at Calcutta. The objects of the company are : (1) to build, purchase, hire or otherwise acquire and hold steam and other ships, boats, launches and other vessels, (2) to carry on the business of shipping owners, managers of shipping property, freight contractors, carriers by land and sea, etc. (3) to deal in coal; (4) to purchase lands, wharfs, warehouses, etc., (5) to carry on the business of general merchants; (6) to carry on all or any of the above businesses as principals or agents; (7) to make agreements and arrangements with other companies or amalgamate with other companies and other objects. The company has got several branch offices, for instance, one at Cochin for carrying goods. But it has got a branch office at Alleppy which is the head office for all the branch offices which are in the nature of out-agencies for the S.I. Ry. Co. One such out-agency branch office is at Muttancherry and it is known as the S.I. Railway Out-agency Office. The contracts are entered into by the consignors of goods in that office for the purpose of sending goods from the boating station across the Cochin backwater to be handed over to the railway station at Ernakulam and thence to be carried to the final place of destination. The petitioner company would take a railway consignment receipt in the Form H provided by the Railways Act and would give to the consignors a counter receipt for the goods delivered. The goods are actually handed over to the petitioner company at the boating station in British Cochin though Muttancherry is in the Native State. The boats then start from that place and carry the goods to the railway station at Ernakulam which is within the jurisdiction of the Sub-Court. These boats are referred to as vallams in the evidence on record. The Subordinate Judge finds that the goods were loaded from the Kalvetti Canal, which is in British territory. Three objections were taken : (1) that the Subordinate Judge's Court at Cochin has no jurisdiction to try the suit; (2) they are not liable as the sinking of the boat was due to an accident and not to any misconduct of the boatman; and (3) the amount of damages.
2. The Subordinate Judge found that as the goods are delivered in British territory to the petitioner company the cause of action arises within the British territory and it has got jurisdiction to decide the case. On the second point the Subordinate Judge states that the evidence shows that three boats started hut one of the boats capsized and that there was a strong gala and shifting of the sail ending in the capsizing of the boat. The Subordinate Judge says that misconduct should include mismanagement or wrong management, and negligence and incompetence in the steering of the boat comes under wrong mismanagement. Therefore he thought that a case of misconduct is. made out. As to the amount of damages, his opinion is that the plaintiff has made out a prima facie case which was not rebutted by the defendant. He therefore gave a decree.
3. In revision those three points were repeated by the learned advocate for the petitioner. On the first point I think the Subordinate Judge is right. Though the actual contract is entered into in the Muttancherry office which is within the Native State, the very first item of performance of the contract which is contemplated by both the parties, namely the entrusting of the goods by the consignor to the consignee, takes place in the Kalvetti Canal where the plaintiff has got his place of business. It is there that the goods were weighed and loaded into the defendant's boats. This is enough to give jurisdiction to a British Court. It is unnecessary to rely on the fact that the place where the boat's delivery of the goods takes place, namely, Ernakulam is within the British territory. I therefore agree with the finding of the Subordinate Judge on the first point.
4. The next point is whether the defendant company is liable. The learned advocate for the petitioner argues that; he is not liable for misconduct and that the Subordinate Judge erred in construing that incompetence in steering the boat comes under the heading of misconduct. I am inclined to agree with this argument of the learned advocate for the petitioner. But then it may be necessary to examine on what basis the liability of the defendant company rests. Apparently in the lower Court both sides assumed that the liability of the defendant-company rests upon the form taken from the consignor namely, Form H which limits the liability to misconduct of the railway servants. But Form H embodies the contract with regard to the journey as if made between the consignor and the Railway Company and unless this portion of the journey can be regarded as made on a railway, prima facie that contract and the limitations imported by that form apply only to the journey from Ernakulam to the place of destination. Of course if the journey on the backwater can be regarded as journey on the railway, then Form H may help the petitioner company in respect of that portion also. For that purpose we have to see whether the backwater is a railway. In the Railways Act, Section 4, defines a railway; under Clause (d), Section 4 railway includes all ferries, ships, boats etc., which belong to or hired or worked by the authority administering the (railway. Here the boats do not belong [to the S.I. Ry. Co. Nor are they worked by that authority. Nor were they hired by the S.I. Ry. Co. What we have got here is a general contract between the S.I. Ry. Co., and the petitioner company under which the petitioner company has to take the goods delivered at the out-agencies of the S.I. Ry. Co., carry the goods by their boats and hand them over to the railway stations of the S.I. Ry. Co., and in return for this service they get a certain percentage of the charges which are prima facie charged on the railway scale under the Form H and which are sent along with the passenger fares by demand drafts every day to the Railway Company. This agreement between the defendant company and the Railway Company was not produced in the lower Court and when I called for it in revision it has been produced before me and I am not able to say that as an effect of this agreement the particular boats carrying the goods were hired by the Railway Company. All that we have is a general contract by which all the work of carrying boats on the backwater is done by the petitioner. Therefore I cannot hold that the backwater is a railway within the meaning of Section 4 (d), Railways Act. The learned advocate for the petitioner referred me to a case in India General Navigatian & Ry. Co. v. Harcharn Das [1912] 111 P.R. 1912.
5. In that case the question was not raised in the lower Court that the defendant was not a Railway Company. If the water-way became a railway within the meaning of the Railways Act, the company working the boats would be a Railway Company but the point was not raised and the learned Judges of the Punjab Chief Court said that they would not allow the point to be raised in appeal. In another case from Calcutta which was tried by Rankin, J., as he then was, reported in Dekhari Tea Co. Ltd. v. Assam Bengal Ry. Co. Ltd. [1920] 47 Cal. 6 and which went up on appeal to the High Court; before Sanderson, C. J., and Richards, J., and which was finally disposed of by the Privy Council in India General Navigation & Ry. Co. v. Dekhari Tea Co. A.I.R. 1924 P.C. 40, the India General Navigation & Ry. Co., did shipping work from Gauhati to Chandpur. The A. I. Ry. Co. had its own railway line between these stations prior to 1913. But in 1913 the railway line broke down with the result that the Railway Company entered into a contract with the India General Steam Navigation Ry. Co.,' for carrying their goods brought in by the Railway Company from Gauhati to Chandpur. For this purpose a special flotilla of ships was arranged by the shipping company and this Botilla would go direct from Gauhati to Chandpur without stopping in intermediate ports like their other ships carrying goods not handed over by the Railway Company. It was held by the Calcutta High Court and also by the Privy Council that the shipping company did not cease to be carriers on account of this arrangement, that they were still common carriers under the Carriers Act and quoad the business of carrying the goods handed over by the company, it cannot be said that they became a Railway Company and ceased to be carriers. I think this decision applies to the present case. It is true that there is no evidence available in this case to show that there are other boats carrying other goods to the said place by the backwater of the petitioner.
6. It is admitted that they have got another office. This must be, I suppose, for carrying goods by the backwater. At any rate this little difference does not enable me to say that the petitioner company which is certainly a common carrier under the Memorandum of Association ceased to be a common carrier quoad the business of taking the goods from the South Indian Railway out-agency at Muttancherry, If they are common carriers the Form II cannot be held to have regulated their liabilities for this portion of the journey and that must be regulated under the Carriers Act. Under the Carriers Act, negligence is [resumed by the loss of goods, and no question of misconduct arises and unless the defendant rebuts the presumption with which every case starts, by showing that they are not guilty of such negligence as would make them liable, the decree should stand. The only question now is whether I should call for fresh finding or accept the finding of the Subordinate Judge as a finding at least on negligence. It is true that I cannot accept the finding of the Subordinate Judge as a finding of misconduct. But seeing that he finds that it is due to incompetence in management I do not see why I should not accept this as a finding on negligence. Accepting this as a finding of negligence I think the petition should be dismissed with costs and no purpose can be served by calling for fresh evidence in this case.