Charles Edward Pollock Frederic Philip Maude.

Compendium of the law of merchant shipping online

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master had, as their agent, entered into a charter-party under
leal («). And it was held that an action on promises could not
be maintained by the freighters on the bills of lading where
the shipowners had also contracted with them by charter-party
under seal(0.

Where the performance of the terms of a contract which is
not by bond, is secured by a penalty, the general rule is that
damages beyond the penalty may be recovered (u).

(o) The Adelaide, 2 Rob. Ill, note see also, as to the effect on the contract

(•); Medeiros v. Hill, 8 Bing. 281. of the interference of the agents of th*

Ip) See the judgment of Sir W. Scott English government at a foreign port,
in The THtela,(i Rob. 180. In America it Evom v. Huttoriy 4 M. & Gr. 954.
has been held, that by a blockade of the (r) Since the Common Law Pro-
port of discharge, or an interdiction of cedure Act, 1852 (15 & 16 Vict. c. 76),
commerce with it after the commence- no form of action need be mentioned in
ment of the voyage, the contract of the writ, and all distinctions, save sub-
charter-party is dissolved. See Scott v. stantial ones, between the different
Libbfft 2 Johns (American) Rep. 336; forms of action have ceased to exist,
and see also, as to the law of blockade, («) Schack v. Anthony, 1 M. & S. 573.
ne FrancU Lin, 10 Moore, 37 ; The {t) Hunter v. Pnntep, 10 East, 378.
Johanna Marim, ib. 70. (u) Winter v. Trimmer, 1 W. Bl. 395;

iq) Gosling v. Higgins, 1 Camp. 451 ; Harrison v. Wright, 13 East, 343 ; May-

Spence v. Chodwick, 10 Q. B. 517 ; and lam v. Norris, 1 C. B. 244.



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222



CONTRACT OF AFFREIGHTMENT



Parties to sue
and be sued.



Tn cases of
agency.



Charter-parties are very frequently executed by agents. Where
they are not under seal the ordinary rules as to contracts by
agents apply.

Where no diflSculty is created by any special description of
the parties in the contract, and it is made in the name of a fer-
son who is really an agent, evidence is admissible, even although
he is not described as an agent, to show the existence of the
agency, so as to give the benefit of the contract to thcunnamed
principal, or to charge him with the liability on it; but the
agent cannot get rid of his liability on a contract which he has
executed in this form, by showing that he was merely an agent
in the transaction (x). And where in a charter-party an agent
described himself as " owner of the ship," it was held that the
real principal could not sue upon it(y). But where the real
principal described himself in the charter-party as an agent, and
there was a stipulation that he was not to be personally liable,
it was held that he might sue as principal, and that this sti-
pulation only applied to him in his description or character
of agent (2r). In a recent case (a), where a person was described
in a charter-party as an i^ent, but signed it without any quali-
fication, it was held that he was personally liable.



Where con-
tract not un-
der seal.



If a person, who has in fact no interest as principal, professes
to act as agent for another, but without authority, and executes
a contract in the name of that other person, putting the name of
the latter to the instrument and addii^ his own name as agent
for the alleged principal, he cannot be treated as a party to the
contract or be sued upon it unless he can be shown to be the
real principal ; the only remedy against him appears to be an
action on the case for falsely assuming to act as agent (6). But
in this case, as also in the case of a person describing himself in
a written instrument as the agent of an unnamed principal, it is
competent for the party with whom he contracts to show that
although described as agent he is in fact the principal, and liable
as such (c). Where a person signs a contract in his own name,
he is prima facie a contracting party, and to prevent this lia-
bility from attaching it must appear clearly from the other



(x) Higgint V. Senior, 8 M. & W. 834.
{y) Humble ▼. Hunter, 12 Q. B. 310.
(«) Schmalz ▼. Avery, 16 Q. B. 655,
la) Parker v. Winlow, 7 £. & B. 942.
(b) Jenkint v. Hutchinson, 13 Q. B.



744; see also on this point the earlier
cases of Jonet ▼. Doumman^ 4 Q. B. 235,
note (a) ; Doumman ▼. Jfilliams, 7 Q. B.
103 ; and Story on Agency, s. 264.
(c) Carr v. Jackton, 7 Ex. 382.



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AND ITS INCIDENTS. 223

portions of the agreement that he did not intend to act as a
principal (rf) ; but where a contract describes a person as making
it as agent on behalf of a named principal^ the party so making
the contract is not personally liable on the contract, whether the
principal be resident in England or abroad (e). But he may be
and often will be liable on the implied promise, that he is what
be represents himself to be, namely, an agent having authority
to contract as agent (/). In all these cases the question de-
pends upon the intention of the parties as discoverable from the
contract itself (g). Where a charter-party was entered into by
merchants in London, who were mentioned in the body of the
charter as if they were contracting parties, and they signed the
charter "by authority of and as agents for" a merchant at
Memel, it held that they were, notwithstanding, personally
liable on the contract (A).

Where the contract is under seal different principles are ap- Where con-
plicable. An agent cannot bind his principal by deed unless he ^^^^ ^^
is authorized by deed to do so(i). And it is an established
rule that an act done under an authority under seal must be
done in the name of the principal, and not in the name of the
agent. No particular form of words is, however, necessary, so
long as the act is done in the name of the principal (J). It is
also an inflexible rule that if a deed be inter partes, that is to
say, if it show oh the face of it expressly who are the parties to
it (as ''between A. of the one part, and B. of the other part")
no person, not a party to it can sue on it, even although it
appear to have been made for his advantage and contain an
express covenant with him (A). This rule does not, however,

(d) Cooke ▼. Wiltoih 1 C. B., N. S. bility of an agent on a bill of exchange
158. appears to be more unfavourable to the

(e) Green ▼. Kopke^ 18 C. B. 549; agent than in ordinary cases, for it would
Makony v. Kekule, 14 C. B. 390. The seem that he must expressly state that
&ct, in these cases, that the principal is he acts only as agent, in order to pro-
a foreigner is not, however, to be thrown tect himself. See Mare v. Charles^ 5 £.
entirely out of consideration. See the & B. 978, and the judgment of the Ex-
judgments in Lennard y. Robinson, 5 £. chequer Chamber in Lindut v. Melrose,
& B. 125. 3 H. 8r N. 182.

(/) Colkn V. Wright, 7 £. & B. 301, (A) Lennard v. Robinson, ubi supra,

8 t^ 647 ; Randell v. Trimen, 18 C. B. (i) Horsley v. Rush, cited 7 T. R.

786. 209.

{g) See the cases cited in note («). {J) Combe*s Case, 9 Rep. 76; Wilks

See also, as to when agents are personally v. Back, 2 East, 144.

liable on contracts, Lewis y. Nicholson, {k) 2 Inst 673 ; 2 Roll. Ab. Faits,

18Q.B.503,and7anfitfry.C%rw<ia}i,4E. F. 1; Berkeley y. Hardy, 5 B.kCSSo;

& B. 591 ; Parker y. Winlow, 7 £. & B. and see the judgment in Bushell y.

942. The rule with respect to the lia- Beavan, 1 B. N. C. 120. This rule is



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224 CONTRACT OF AFFREIGHTMENT

interfere with the liability of a person who has executed a deed
containing a covenant by him, although he be not named there-
in as a party (/) ; nor does it apply to agreements not under
seal (m).

No action lies against the shipowners on a charter-party under
seal executed by the master only ; but the liability of the owners
in respect of their general duties is not affected by the master
having entered into a contract of this nature ; they continue
liable in assumpsity or in case, for the breach of any duties which
are not inconsistent with the stipulations of the charter-party.
And this rule applies even although the master who executed
the deed happens to be a part owner also, if this fact does
not appear on the charter-party, and is not known to the
freighters (w).

It must be recollected that neither in the case of deeds, nor in
that of contracts not under seal, could there, by the common law,
be a transfer of the contract so as to give a right of action in the
name of the transferee (o). A statutory exception to this rule
which has been introduced in the case of bills of lading by the
18 & 19 Vict. c. Ill, will be presently considered.

Right of mas- We have already seen that the master has a special property
ter to sue. j^^ ^j^^ vessel and may sue in his own name for freight on a con-
tract to which he is a party (p).

Reserving the questions relating directly to the payment of
freight to a later part of this Chapter, we proceed to consider,
Conveyance secondly, the contract for the carriage of goods in a general skip,
a'oeneb\l'' a«rf the ordinary rights and liabilities resulting from it,
SHIP. Where a ship is not chartered wholly to one person, but the

owners offer her generally to carry the goods of any merchants
who may choose to employ her, or where, if chartered to one
merchant, he offers her to several sub-freighters for the convey-
ance of their goods, she is called a general ship. In these cases
the contract entered into by and with the owners, or the master
on their behalf, is evidenced by the bill of lading (y).

now subject to the limitation, unim- W. 79.

portant so far as relates to the matters (n) Leslie v. Wllsonf 3 6. & 6. 171.

mentioned in the text, introduced by (o) Spiidt v. Bowlex^ ip East, 279;

tlie 8 & 9 Vict c. 106, s. 5. Mooret v. Hopper, 2 N. R. 411.

(/) Salter v. Kidgly, Garth. 76; S. C. (p) Ante, p. 77 ; Shields v. Davit, 6

Holt's R. 210. Taunt. 65.

(m) See Beckham v. Drake, 9 M. & {q) Cases may arise in which, owing



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AND ITS INCIDENTS. 225

This is a document which is signed and delivered by the Bill of
master to the shippers on the goods being shipped. Several ^^^'''^•

^'^ . ^ . ,1 . General nature

parts, that is to say, copies oi it, are commonly made out ; one of contract.
or more of these is sent by the shipper of the goods to the
person for whom they are intended, one is retained by the
shipper himself, and another is kept by the master for his own
guidance.
The following is the usual form of a bill of lading (r) : —

Shipped in good order and well conditioned hy [A. B.
merchant'] in and upon the good ship called [The Good
Intent] whereof [C 2>.] is master for this present voyage
and now riding at anchor in the [Part of Southampton]
and bound to [Cadiz in Spain twenty cases of hardware and
ffty bales of cotton goods] being marked and numbered as
in the margin and are to be delivered in the like good order
and well conditioned at the aforesaid port [of Cadiz] the
act of Ood, the Queen's enemies, fire and all and every other
dangers and accidents of the seas, rivers and navigation of
whatever hind or nature soever excepted unto [E, F. mer-
chant] or to his assigns he or they paying freight for the

said goods per case and per bale freight with

primage and average accustomed. In witness whereof the
master or purser of the said ship hath affirmed to [Jive]
bills of lading all of this tenor and date one of which bills
being accomplished the other to stand void.
Dated at Southampton the day of .

Every bill of lading for any goods, merchandize or effects to Stamps,
be exported or carried coastwise is liable to a sixpenny stamp {s);

to the nature of the charter-party, the In some bills of lading, however, a fur-
master in signing the bills of lading tber limitation of the shipowner's lia-
msv act only as affent for the charterers, bility is added by inserting among the
ind not as agent lor the shipowner. In exceptions, " restraintt of princes or
iQch a case the shipowner would have rulers.** In the case of steam vessels,
DO right to sue for the bill of lading it is now also usual to add to the excep-
freight Marquand v. Banner, 6 E. & tions the words "accidents from ma-
B. 232, was considered by the Court ehinery, boilers, steam.** The bills of
of Queen's Bench to be such a case. It lading used by the Peninsular and Ori-
may, however, be doubted, whether this ental Steam Navigation Company ex-
decision would have been upheld, if the cept also " detentions consequent up<m
Juettion had been taken to a Court of the conveyance of her Majesty*s mails"
Srror. See also the observations on and contain a provision that the com-
this case in Gilkison v. Middleton, 2 C. pany will not be answerable for leakage
B., N. S. ]53-«-155. or breakage. See, as to such a provi-
(r) The form given in the text is that sion, Phillips v. Clark, 2 C. B., N. S.
which is now oifdinarily used on the 166.
ihipment of goods in sailing vessels. («) 5 & 6 Vict, c 79, Schedule. As



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226



CONTRACT OF AFFREIGHTMENT



and any person who makes or signs any bill of lading engrossed,
printed, or written, or partly engrossed or written and partly
printed upon vellum, parchment, or paper not properly stamped,
is liable to forfeit 60/. {t).



Constniction
of contract.



The rules of construction, which have been already mentioned,
with reference to charter-parties are also applicable to bills of
ladii^ (u) ; but there are some pecuUarities about this contract
which must be mentioned in detail.



Effect of in-
donement.



Under the 18
& 19 Vict,
dll.



The bill of lading is by the mercantile law a negotiable in-
strument, and by its indorsement the property in the goods to
which it relates may be tiansferred, whether the indorselnent is
to a particular person, or in blank and accompanied by a deli-
very to the party to whom it is intended to pass the property (x).
The actual holder of a bill of lading may also, although this is
at variance with the general principles of law, transfer by in-
dorsement a greater right than he himself has; and an insolvent
vendee may defeat by a bona fide indorsement tlie right of the
unpaid vendor to stop the goods in transitu (y).

The important questions which arise as to the effect of the
indorsement of bills of lading upon the rights of the vendor and
vendee of goods will be considered in a later part of this Chap-
ter (jzr). It is only necessary to add here, in describing the
general character of the contract, that although formerly a bill
of lading was not negotiable in the sense in which a bill of ex-
change is negotiable, since the indorsee could not maintain an
action upon it in his own name (a), a material alteration has
been made in this respect by a recent statute (the 18 & 19
Vict. c. Ill) (ft), which provides, that every consignee of goods
named in a bill of lading, and every indorsee of a bill of lading
to whom the property in the goods mentioned in it passes upon



to Ireland, see the 5 & 6 Vict c. 82, 8.
34, which has been continued from time
to time. See the 14 & 15 Vict c. 18.

(0 5 & 6 Vict c 79, n. 21.

(tt) jinte, p. 207.

(«) SeeEvan* v. Marietta 1 Lord Raym.
271 ; Lickbarrow v. Maion, 2 T. R. 63 ;
1 H. Bl 857 : 6 East, 21, note : Wright
▼. Campbellt 4 Burr. 2046; Hibbert ▼.
Carter^ 1 T. R. 745 ; see also the notes
to Lickbarrow ▼. MoMon^ 1 Smith, L» C.
651.



{y) Lickbarrow y. MatoH, ubi sttpra:
and see the judgrment of Tindal, C. J.,
in Jenkjfns ▼. Utbome, 7 M. & Gr. 699.

(«) Poit, pp. 274, 275.

(a) Sanders v. Vanztller, 4 Q. B. 260;
Thompson v. Dominy, 14 M. & W. 403;
Howard v. Shepherd, 9 C. B. 297. See
also Tindall v. Tayhr, 24 L. J., d B.
16.

(6) See sect 1. The right of stop-
page in transitu is not affected by this
provision. See sect 2.



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AND ITS INCIDENTS. 227

or by reason of the consignment or indorsement, shall have
transferred to and vested in him all rights of suit, and be subject
to the same liabilities in respect of the goods as if the contract
contained in the bill of lading had been made with himself.
This statute has put an end to the great inconvenience which
existed under the old system from the fact that the beneficial
interest in the goods and the rights of action in respect of the
carriage were in these cases vested in different persons.

We have seen that the contract to carry the goods safely Ordinary ex-
which is contained in the ordinary bill of lading is subject to ^Stract*"
seyeral express exceptions. It is necessary to explain the mean-
ing of these limitations of the shipowner's responsibility. This
will appear from the following cases, some of which relate how-
ever to similar exceptions in contracts of charter-party.

It is a general rule in construing these exceptions, that the
intention of the parties as expressed on the contract is to be
looked to, for no exception (of a private nature, at least) which
is not contained in the contract itself can be engrafted on it by
implication as an excuse for its non-performance (c).

The first words of the ordinary exception are, " the act of Act of God
God and the QueerCs enemies!^ This is only the expression of a Queen's ene-
limitation of liability which existed already at common law in mies.
the case of all common carriers (of). The meaning of the first
part of this exception is shown by the construction which has
been put upon the common law limitation of the carrier's re-
sponsibility. Acts that could not happen by the intervention of
man, such as storms, tempests and the like, are acts of God
within its meaning (e). For instance, a loss caused by a sudden
gnst of wind is covered by these words (/); but not a loss by
fire, which, although caused by no negligence on the part of the
carrier, yet was not occasioned by lightning (^). And in a recent

(e) See the judgment of Lord Ellen- (/) Amiet ▼. Stevem, 1 Str. 128.

boroQgh in Atkinson v. Ritchie, 10 East, Oakley ▼. Porttmouth and Ryde Steam

533, and i^vnor ▼. Chodwick, 10 Q. B. Packet Company, 11 Ex. 618.

517. (g) Forward v. Pittard, 1 T. R. 27.

(^) ^g* ▼• Bernard, 2 Ld. Raym. This case shows the nature of the losses

909 ; DaU y. Hall, 1 Wils. 281 ; The which are within the exception. In

PrtprietoTi of the Trent Navigation ▼. cases of fire, there is, in addition to the

HW, 3 Esp. 127 ; Laveroni v. Drury, 8 express exception in the hill of lading,

£xch. 166. a particular statutory protection. See

(e) See the judgment of Lord Mans- ante, p. 48.
field io Vorwird y. Pittard, 1 T.' R. S3.

q2



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228 CONTRACT OP AFFREIGHTMENT



/



case^ where goods had been placed in a boat which was towed
by a steamer, and the steamer stopped in the ordinary course
pursued on the voyage, and the tide thereupon forced the boat
/ against the steamer, so as to cause a leak, through which the
I goods were damaged, it was considered by the Court of Ex-
' chequer that the injury did not arise from the " act of God'* (A).
The words " the Queen's enemies'' relate, not to robbers — for the
consequences of whose attacks carriers are liable, unless their
liability has been varied by statute or express contract — but to
the subjects of states at war with the British Crown (t).

Dangers of the Where the ship is so damaged as to be unable to proceed, but
Kationu^ "*^'' the goods are not injured, the case is not within the exception
as to the dangers and accidents of the seas and navig^ition (A).
Where a ship arrived in the port of London, and was taken into
the Commercial Dock to discharge her cargo, and whilst she
was being unloaded and after the discharge of all the crew, ex-
cept the mate, she fell over, owing to the breaking of some
tackle by which she had been fastened to a loaded lighter lying
outside of her, and the water got in and damaged the goods
still on board, this was held to be a loss within the exception in
the bill of lading of " all and every the dangers and accidents of
the seas and navigation ;" and it was held in the same case (the
injury, it will be observed, having happened by reason of one of
the excepted perils), that the jury were properly directed that,
under the circumstances, the shipowners were only bound to
take the same care of the goods as a person would of his own
goods, that is to say, ordinary and reasonable care(/). This
exception in a charter-party does not extend to a merely tempo-

(h) Oakley ▼. The PorUmouth and (k) Cannon v. Meaburn, 1 Bing. 248,

Ryde Steam Packet Company, 11 £xch. 465.

618. • (/) Laurie v. Douglas, 15 M. & W.

(j) It is curious that there is no 746. Unfortunately the particulars of
express decision upon these words. It the judgment in this case are not re-
would seem that they do not include ported. See ante, p. 46. Where a
pirates. See Molloy, B. 1, c. 4, s. 8. charter contains an exception of sea
The question is, however, practically perils, and the ship sails in a seaworthy
unimportant, as most bills of lading and state, and is damaged in the course of
charter-parties contain an express ex- the voyage by perils of the sea, the
ception of loss by pirates or robbers by owner is not bound to repair ; but if he
sea ; and it has been held, that such a does not choose to repair he ought not
loss is covered by the exception of to go to sea with the vessel in an un-
perils qf the seas. See 2 Roll. Ab. 248, seaworthy state, and so cause a loss of
pi. 10. As to the construction of the the cargo. He ought either to repair or
word pirates in a policy of insurance, stop. See per Parke, B., in Worms v.
•eeposty Chap. VII., Insurance. Story, 11 Exch. 430.



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AND ITS INCIDENTS. 229

my impediment to the completion of the voyage, such as an
inability to enter port for want of sufficient water ; and conse-
quently the shipowner is liable for the non-completion of the
voyage under these circumstances^ even although it would not ^
have been safe for the ship to remain outside the port, until the
period of the year at which the water would be sufficient (m);
nor does such an exception excuse the charterer for not loading
the vessel, although, owing to sea perils, the ship did not arrive
at the port of loading until the season for loading in that par-
ticular trade was over, the proximate cause of the impossibility
of loading being, in this case, not the dangers of the navigation,
but the feet that the season was over when the ship arrived (n).

Where the exception in the bill of lading was, " the act of
God, &c., and all and eveiy other dangers and accidents of the
seas, rivers and navigation, of whatever nature and kind soever,
save risk of boats so far as ships are liable thereto, excepted,"
and the goods were sent towards the shore in one of the ship's
boats, and lost owing to the boat being driven on shore by the
violence of the wind and sea, the shipowner was held not to be
liable ; for the Court considered that the words narrowing the
exception meant that the owner's liability was to be retained
only in respect of risks for which he would have been liable if
they had occun'ed when the goods were on board the ship (o).
Where the same exception was contained in a charter-party by
which the shipowner contracted to carry goods safely to London,
and they were, upon suspicion of their being contraband, taken
out of the ship at Cadiz, against the will and without the de-
fault of the shipowner, by custom house officers acting according
to the law of Spain, and were afterwards confiscated, the ship-
owner was held to be liable (p).

Numerous cases which have arisen upon the construction
of policies of insurance have also put a meaning upon the
expression ^^ perils of the sea,^' It is not necessary to refer
to them at length in the present place, as they will be found
collected in a later Chapter (y). It will be sufficient here
to state that the following losses have been held to be
covered by this expression: — a loss by pirates (r); by ac-

(«) SckUixxi y. Derry, 4 E. & B. properly seized by custom house offi-

872. cers ; and Evant v. Hulton, 4 M. & Gr.

(•) Hunt V Otbome, 18 C. B. 144. 964.

(o) JoknsUm v. Benton, 4 Moore, 90. (q) Post, Chap. VII., Insurance.

(p) Spenee ▼. Chodwick, 10 Q. B. (r) Pickerings. Barklay,2 Roll. Ab.

517; see also GotUng v. Higgins, 1 248.
Camp. 461, where the goods were im-



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230 CONTRACT OP AFFREIGHTMENT

cidental collision (s) ; by the swell of the tide in a dry har-



Online LibraryCharles Edward Pollock Frederic Philip MaudeCompendium of the law of merchant shipping → online text (page 30 of 101)