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Where person professing to be agent has no authority.

Where con

additional force to a cesser of liability clause, and indicating an intention on the part of the shipowners to rest upon their right of lien, and to discharge the agent altogether (n).

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 adding 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; but an action for falsely assuming to act as agent may be brought against him (o). 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 (p), or that he had no principal (2), in either of which cases he will be liable. So also he may be, and often will be, liable on the implied promise that he is what he represents himself to be, namely, an agent having authority to contract as agent (r).

Where the contract is under seal different principles are aptract by deed. plicable. An agent cannot bind his principal by deed unless he is authorized by deed to do so (s). 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 (t). It was

(n) Christofferson v. Hansen, L. R., 7 Q. B. 509. A similar rule of construction has been adopted in cases where a similar clause has been adopted as to the cesser of the charterer's liability. See Francesco v. Massey, L. R., 8 Ex. 101; French v. Gerber, 1 C. P. D. 737; 2 C. P. D. 247; Sanguinetti v. Pacific Steam Company, 2 Q. B. D. 238. See post, Part II., DEMURRAGE. In a case where the charter-party contained the words "This charter being concluded by the charterers on behalf of another party, it is agreed that all liability of the former shall cease as soon as cargo is shipped, loading excepted," it was held that the last words extended to delay in loading and that the charterers remained liable for such delay, though they had shipped a com

plete cargo; Lister v. Van Haansbergen, 1 Q. B. D. 269.

(0) Jenkins v. Hutchinson, 13 Q. B. 744; see also on this point the earlier cases of Jones v. Downman, 4 Q. B. 235, note (a); Downman v. Williams, 7 Q. B. 103; Story on Agency, ss. 264, 397; Richardson v. Williamson, L. R., 6 Q. B. 276.

(p) Carr v. Jackson, 7 Exch. 382.
(q) Kilner v. Baxter, L. R., 2 C. P.

255.

(r) Collen v. Wright, 7 E. & B. 301; 8 ib. 647; Randell v. Trimen, 18 C. B. 786.

(s) Horsley v. Rush, cited 7 T. R. 209.

(t) Combe's case, 9 Rep. 79; Wilks v. Back, 2 East, 144.

also a rule at Common Law that if a deed be inter partes, that is to say, if it show on 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 could sue on it, even although it appeared to have been made for his advantage and contained an express covenant with him (u). This rule does not, however, interfere with the liability of a person who has executed a deed containing a covenant by him, although he be not named therein as a party (x).

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 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 charterparty, and is not known to the freighters (y).

We have already seen that the master has a special property in the vessel and in what cases he may sue in his own name (≈).

contract.

It must be recollected that neither in the case of deeds, nor in Transfer of 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 (a). A statutory exception to this rule has been introduced in the case of bills of lading by the 18 & 19 Vict. c. 111, and will be presently considered.

Reserving the questions relating directly to the payment of freight to a later part of this Chapter, we proceed to consider secondly, the contract for the carriage of goods shipped under a bill of lading, and the ordinary rights and liabilities resulting from it.

(u) 2 Inst. 673; 2 Roll. Ab. Faits, F. 1; Berkeley v. Hardy, 5 B. & C. 355; and see the judgment in Bushell v. Beavan, 1 Bing. N. C. 120, and the judgment in Torrington v. Lowe, L. R., 4 C. P., at page 32. This rule is now subject to the limitation, unimportant so far as relates to the matters mentioned in the text, introduced by the 8 & 9 Vict. c. 106, s. 5. Where a class of persons is named in a deed one of that class may sue upon a covenant entered into for his benefit. Reeves v.

M.P.

Watts, L. R., 1 Q. B. 412.

(x) Salter v. Kidgly, Carth. 76; S. C.
Holt's R. 210; Beckham v. Drake, 9
M. & W. 79.

(y) Leslie v. Wilson, 3 B. & B. 171.
(z) See ante, pp. 111-112, and cases
there cited.

(a) Splidt v. Bowles, 10 East, 279;
Moores v. Hopper, 2 N. R. 411. By
sect. 25, sub-sect. 6 of the Judicature
Act, 1873, choses in action may now
be assigned.

BILL OF
LADING.

Mate's receipt.

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 one merchant to whom she is chartered offers her to several sub-freighters for the conveyance 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 a bill of lading (6). As there is great convenience in having a bill of lading, even in cases where the ship is chartered wholly to one person, by whom the whole cargo has been shipped, it seldom happens in any case that the goods are shipped without a bill of lading.

The bill of lading is a document acknowledging the shipment of the goods (b). It is generally signed by the master (c). In practice when goods are shipped an acknowledgment known as the "mate's receipt," is, in the first instance, given by the mate. This is afterwards exchanged by the captain or the broker of the ship for the bill of lading. Although this is the usual and more safe practice, the master, if he is satisfied that the goods are on board, and has no notice of any interest in them except that of the shipper, may sign bills of lading in the shipper's favour, without the production of the mate's receipt, and in such a case the holder for value of these bills of lading has a better title than the indorsee of the mate's receipt (d).

Several parts, that is to say, duplicates of the bill of lading, are commonly made out; one 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 form contains the principal terms which are usually met with in ordinary bills of lading (e) :

-

Shipped in good order and condition by [A. B. merchant] in and upon the good ship called [The Coventina] whereof [C. D.]

(b) Caldwell v. Ball, 1 T. R. 216.

(c) In some trades it is a custom, in the case of steamships, for the brokers, and not the master, to sign the bills of lading. See Haynv. Culliford, 3 C. P. D. at p. 414. S. C. on appeal, 4 C. P. D. 182. See also Jessel v. Bath, L. R., Ex. 267.

(d) Hathesing v. Laing, L. R., 17 Eq. In this case a usage to the contrary was set up, but not established.

(e) The forms of bills of lading in actual use are very various. Nearly

all the large shipping companies have their own forms, which contain a great number of special provisions. The decisions upon the meaning of many of these will be noticed hereafter. See post, p. 350. But it may be convenient to mention here that it is not uncommon to insert in bills of lading provisions entitling the ship to tow and assist vessels in all situations. Without such provisions, a deviation for the purpose of salvage, other than life salvage, entails a liability upon the shipowner. Scara

is master for this present voyage and now moored in the [River
Tyne] and bound to [Cadiz in Spain, twenty cases of machinery
and fifty casks of soda] being marked and numbered as in
the margin and are to be delivered in the like good order and
condition at the aforesaid port [of Cadiz] the act of God, the
Queen's enemies, fire and all and every other dangers and accidents
of the seas, rivers and navigation of whatever kind or nature soever
excepted unto [E. F. merchant] or to his assigns he or they
paying freight for the said goods £
primage and average accustomed.
master of the said ship hath affirmed to [three] bills of lading
all of this tenor and date one of which bills being accomplished
the others to stand void.

Dated at [Newcastle-upon-Tyne] the

per ton delivered with In witness whereof the

day of

It is usual for the master when signing bills of lading to add in the margin such words as weight, contents, value or quality unknown. We shall hereafter consider the effect of these or similar words (ƒ).

Every bill of lading for any goods, merchandize or effects to Stamps. be exported or carried coastwise is liable to a sixpenny stamp (g). A bill of lading may not be stamped after its execution, and any person who makes or executes any bill of lading not properly stamped, is liable to forfeit 507. (1).

The master in signing bills of lading generally acts as the Character in agent of the owners; but, in some cases, he acts on these occasions as the agent of the charterers.

Where, as is not now uncommon, a ship is chartered at a lump sum, and it is intended that she shall be put up by the charterers as a general ship (the master and crew being still employed and paid by the owners) and the charter-party provides that the master shall sign bills of lading at such rates of

manga v. Stamp, 4 C. P. D. 316; 5 C. P. D. 295. In the case of steam vessels, it is now usual to add to the exceptions the words "accidents from machinery, boilers, steam." The bills of lading used by the Peninsular and Oriental Steam Navigation Company except also "detentions consequent upon the conveyance of her Majesty's mails,' and contain a provision that the company will not be answerable for leakage

or breakage. See, as to such a provi-
sion, Phillips v. Clark, 2 C. B., N. S.
156. The form of a French bill of
lading (Connaisement), and the law
relating to it, will be found in the
Code de Commerce, Arts. 281 to 285.
(f) See post, p. 341.

(g) The Stamp Act, 1870 (33 & 31
Vict. c. 97), Sched.
(h) Ib. s. 56.

which master acts in signing bills of lading.

Reference in bill of lading to charterparty.

freight as the charterers may direct, without prejudice to the charter, it is often a question of difficulty to determine whether the master acts, in signing the bills of lading, as the agent of the charterers or of the owner. The character in which he acts is a question of fact depending upon the particular circumstances of each case (i).

But when a person, without any knowledge of a charter-party, ships goods under a bill of lading, signed by the master, it seems to be clear, at least in cases where the charter-party does not operate as a demise of the ship to the charterer, that the act of the master in signing the bill of lading must be taken as between the owner and the shipper as an act to be done by him as the agent of the owner (k). When a ship is advertised as a general ship, a person who ships goods in her is not bound to inquire whether there is any charter-party, and if the master refuses to sign bills of lading, except subject to a charter containing objectionable provisions, the shipper, if he had no notice of the charter, is entitled to have his goods returned (1).

In many cases, however, where a ship is put up as a general ship by the charterer, goods are shipped by the shipper with

See

(i) In Marquand v. Banner, 6 Ell. &
Bl. 232, it was held that the master in
signing bills of lading acted as agent
for the charterers. It may, however,
be doubted whether this decision would
have been upheld if the question had
been taken to a Court of Error.
also the observations on this case in
Gilkinson v. Middleton, 2 C. B., N. S.
153-155; and Kirchner v. Venus, 12
Moo. P. C. C. 361. In Wagstaff v. An-
derson, 5 C. P. D. 171, it seems to have
been held that the master in signing
bills of lading acted as agent for the
shipowner. See Colvin v. Newberry, 8
B. & C. 166; 1 Cr. & J. 192; 7 Bing.
190; 1 Cl. & F. 283; The Omoa Coal
and Iron Company v. Huntley, 2 C. P.
D. 464. The charterers are not bound,
in the absence of custom or express
contract, to hand over to the ship-
owners copies of the bills of lading of
the goods put on board. Dutton v.
Powles, 2 B. & S. 174; S. C. in Cam.
Scac. ib. 191.

(k) Sandeman v. Scurr, L. R., 2 Q. B.
86. The judgment of the Court, de-
livered by Cockburn, C. J., contains
the following passage:-"We proceed
on the well-known principle that where
a party allows another to appear be-
fore the world as his agent in any given

capacity, he must be liable to any party who contracts with such apparent agent in a matter within the scope of such agency. The master of a vessel has by law authority to sign bills of lading on behalf of his owners. A person shipping goods on board a vessel unaware that the vessel has been chartered to another, is warranted in assuming that the master is acting by virtue of his ordinary authority, and, therefore, acting for his owners in signing bills of lading. It may be that as between the owner, the master and the charterer, the authority of the master is to sign bills of lading on behalf of the charterer only and not of the owner. But in our judgment this altered state of the master's authority will not affect the liability of the owner whose servant the master still remains, clothed with a character to which the authority to bind his owner by signing bills of lading attaches by virtue of his office." See The St. Cloud, Br. & L. 15; The Patria, 3 L. R., A. & E. 436; The Figlia Maggiore, L. R., 2 A. & E. 111; Hayn v. Culliford, 3 C. P. D. 410; 4 ib. 182.

(1) Peek v. Larsen, L. R., 12 Eq. 378. See also Hayn v. Culliford, 3 C. P. D. 410; 4 ib. 182.

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