Section 104 of The Railways Act, 1989 deals with the liability of the railway administration for goods that are typically carried in covered wagons but are instead carried in open wagons with the consent of the consignor. This section reduces the railway’s liability for damage or deterioration that might occur due to the goods being transported in open wagons rather than covered wagons.
Text of Section 104:
“Where any goods, which, under ordinary circumstances, would be carried in covered wagon and would be liable to damage, if carried otherwise, are with the consent of the consignor, recorded in the forwarding note, carried in open wagon, the responsibility of railway administration for destruction, damage or deterioration which may arise only by reason of the goods being so carried, shall be one-half of the amount of liability for such destruction, damage or deterioration determined under this Chapter.”
Detailed Explanation:
- Normal Transport Conditions for Goods:
- Covered wagons are generally used to transport goods that are susceptible to damage from the elements (like rain, dust, or extreme weather conditions). These types of goods include perishable items, fragile materials, or any items that require protection during transit.
- Open wagons, on the other hand, do not offer the same protection as covered wagons, making them more vulnerable to damage from weather or external conditions.
- Carrying Goods in Open Wagons:
- If goods that normally require covered wagons for protection are instead carried in open wagons, it is typically a decision made by the consignor (the person sending the goods).
- The consignor’s consent is necessary for this decision, as the consignor must understand and accept the potential risks involved in carrying goods in a less-protected environment.
- Recording in the Forwarding Note:
- To ensure that the decision is properly documented, the consignor must record the decision to carry the goods in an open wagon in the forwarding note. This serves as an official record of the consignor’s consent to the change in transport conditions.
- Liability of Railway Administration:
- When the goods are carried in open wagons with the consent of the consignor, the railway administration’s liability for any destruction, damage, or deterioration that occurs due to the goods being in the open wagon is reduced by half.
- In other words, if damage or deterioration happens because the goods were carried in an open wagon (instead of a covered one), the railway is only liable for half of the amount it would normally be responsible for under the provisions of the Act.
- For example, if a consignment would normally be eligible for ₹10,000 in compensation due to damage in a covered wagon, the liability will be reduced to ₹5,000 if the consignment is carried in an open wagon with the consignor’s consent.
- Reason for Reduced Liability:
- The rationale behind this reduced liability is that the consignor has voluntarily accepted the risk of the goods being transported in a less-protected manner. Since open wagons expose the goods to more potential damage (e.g., weather-related damage), the consignor is assumed to be aware of this risk and accepts a lower level of compensation if damage occurs.
Legal and Practical Implications:
- For Consignors:
- Consignors should be aware that carrying goods in an open wagon can increase the risk of damage or deterioration due to external elements (e.g., rain, dust, or wind). While the railway is still liable for such damage, the liability is reduced to half if the consignor has consented to the use of an open wagon.
- The consignor must ensure that the forwarding note clearly documents their consent for the goods to be transported in an open wagon. Without this record, the railway may not be able to limit its liability to half.
- For Railway Administrations:
- Railways can reduce their liability in cases where goods are intentionally transported in open wagons, provided that the consignor’s consent is obtained and recorded.
- This section also encourages railways to document such agreements properly in the forwarding note to avoid any disputes about liability.
- For Legal Professionals:
- Lawyers and advocates working in transport or logistics law should ensure that clients (consignors) understand the implications of choosing to transport goods in open wagons, particularly with respect to the reduced liability that arises from this decision.
- They should also ensure that the forwarding note is properly completed to reflect the consignor’s informed consent, as failure to do so may affect liability.
Conclusion:
Section 104 of the Railways Act, 1989 specifies that if goods typically requiring covered wagons are transported in open wagons, the railway administration’s liability for any damage, destruction, or deterioration caused by this method of transport will be reduced by half, provided the consignor consents and records the decision in the forwarding note. This section helps balance the risk between the railway and the consignor, acknowledging that the consignor has voluntarily accepted the greater risk of damage by choosing to use open wagons.
