The Trustees of The Port of Bombay v. The Premier Automobiles Ltd.
AIR 1971 Bom 317
The respondents (R) had imported some machinery, which upon its landing on the Bombay port was taken charge of by the Board (Appellants, A). While being transported by the Board’s employees to one of the sheds in the docks by trolley the case fell and machinery was badly damaged. After finding the damage in the machinery, R claimed a large sum as damages. Invoking the provisions of S.87, of the Bombay Port Trust Act the Board (A) denied all liability for the damage caused to the machinery alleging that the machinery was already in a broken condition and due to the damaged condition of the case that it slipped and fell from the trolley accidentally.
- Whether the liability of the Board was that of a bailee?
- Whether the employee who were with the trolley at the time of the accident, were appointed under the Act?
- Board: The persons accompanying its trolly were employees under the Act and S.87 applicable.
- Respondent: They were employees as well as agents of the Board.
- There was an element of negligence on the part of Board’s employee (Board admitted it). Since a master is always liable for the torts committed by his servants in the course of the employment the Board was responsible for the damage caused to the machinery by its employees in the course of their employment.
- (w.r.t 1st & 2nd issue) YES
- (w.r.t S.87) The Provision related to a totally different subject with which section 61B was not concerned and, therefore, S.87 not attracted.
SUPREME COURT (Shinghal, J.) (Board’s Appeal allowed)
- The responsibility of the Board was clearly that of a bailee subject to the reservations provided by the section. Since the claim was not based upon a mere breach of statutory duty under section 61B but was based on the Board’s liability as bailee, it was an action in tort. However, the liability of the master for the acts of his servants would not possibly arise in a case where the statute intervenes.
- (w.r.t S.87) As per S.87 the Board is made responsible for the misfeasance, malfeasance or nonfeasance of only those of its employees who have not been “appointed under this Act” which means that the protection does not extend to any tortious act if it has been committed by an employee who has not been appointed under the Act. Both the sections (87&61B) are interconnected and have to be read together as a whole.
- (w.r.t HC’s 3rd observation) This runs counter to the clear provisions of the two sections if read together and is wholly unsustainable. It is section 61B which makes the responsibility of the Board for the goods of which it has taken possession subject to the other provisions of the Act.
- (w.r.t 2nd issue & HC’s stand on it) If those employees “were appointed under the said Act” it means that the Board was entitled to be absolved of its liability for the acts of those employees by virtue of paragraph 2 of section 87.
The essence of bailment is possession. A bailment may arise, as in this case, even when the owner of the goods has not consented to the possession by the bailee at all. A bailment is not therefore technically and essentially subject to the limitations of an agreement and the notion of privity need not be introduced in an area where it is unnecessary. It is sufficient if that possession is within the knowledge of the person concerned. So a bailment may very well exist without the creation of a contract.
 provided that the Board will not be responsible for any misfeasance, malfeasance and nonfeasance of any employee appointed under this Act
 provides that the responsibility of the Board for loss, destruction or deterioration of goods of which it has taken charge shall, subject to the other provisions of the Act, be that of a bailee under sections 151, 152 and 161 of the Contract Act, 1872 omitting the words “in the absence of any special contract”, in section 151 of the Contract Act.