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he who directs another to make a contract at a particular place must be taken as intending that the contract may be made according to the usage of that place."
And in Mollett v Robinson,' Lord Chelmsford, L. J. states the rule to be that "If a person employs a broker to transact for him upon a market with the usages of which the principal is unacquainted, he gives authority to the broker to make contracts upon the footing of such usages, provided they are such as regulate the mode for performing the contracts, and do not change their intrinsic character."
Subject to the above qualification, and to the custom not being unreasonable or otherwise objectionable in point of law, the rule above cited and laid down in Sutton v. Tatham and Bayliffe v. Butterworth, has been constantly adopted and followed.*
Where a custom is purely local, it cannot be taken to control or explain the words of a written instrument, unless it was known to the parties.5 Charter-parties now almost invariably commence
"It is this day mutually agreed between..... Owner of the...
2 10 A. & E. 27.
31 Ex. 425.
1 L. R. 7 H. L. 836.
• Holman v. Peruvian Nitrate Co., 5 Sc. Sess. Cas. (4th Ser.) 657.
Parties to the
and is executed either by the parties themselves or by some authorised agent on their behalf, such as the secretaries of companies, the ship's husband, master or other person; but in order to judge who are the parties to the contract it is necessary to sce who are the persons who are to perform the various acts under it.1
Apart from anything arising out of their master's exceptional position, the rights and responsibilities of both shipowner and charterer on the contracts of their respective agents for the employment of a ship, are governed by the ordinary law of principal and agent.
Agency is a relation between two persons such that the act of the one, called the agent, is by law imputed as the act of the other, who is called the principal. It is grounded on the concurrent intention (actual or presumed) between the two persons that the one shall do the act and the other have the benefit and be held responsible, and to this intention the law gives effect.2
This intention may be expressed (speaking generally) in any way; or it may be implied or presumed from a course of dealing or conduct.
In mercantile agencies there is an important distinction which has been marked by the terms general agent, and special agent. These terms have been used with various shades of meaning, but the real significant distinction is that noted by Lord Ellenborough in Whitehead v. Tuckett,3
1 Deslandes v. Gregory, 30 L. J. Q. B. 36. Campbell on Agency, 393.
3 15 East. 400, 408.
between a particular and a general authority, "the latter of which," he says, "does not import an unqualified authority, but that which is derived from a multitude of instances; whereas the former is confined to an individual instance."
From the point of view of the person who deals with one assuming to act as agent for a principal, there are two well marked modes in which the authority may be known.'
One mode is to look at the proposed dealing in connection with other instances, whether in a course of dealing between the same parties or in the usual course of dealing by merchants in the like circumstances, and to infer from all the instances the nature and extent, or the scope, of the authority.
The other mode is to inquire, without reference to instances, what is the actual authority conferred.2 The general rule is that:-"If a man holds out by his conduct another person as his agent, by permitting that person to act in that character in all sorts of ways, and to appear to the world as a general agent, he is to be taken to be the general agent of the party for whom he acts, and who is bound by that general agency, though he may have, in the particular instance, gone beyond his authority."
A shipbroker, employed by a shipowner, has no such general authority as will enable him to charter the ship for a voyage in a manner contrary to instructions expressly given to him by the owner,
1 Campbell on Agency, 398.
2 Sickens v. Irving, 29 L. J. C. P. 28.
3 Per Pollock, C. B. in Smith v. McGuire, 27 L. J. Ex. 469.
although such instructions have not been communicated to the parties dealing with him.'
In mercantile transactions the well-known and important rule is, that the power of a special agent to bind his principal is limited by the authority given to that agent. Thus where the plaintiff's ship was chartered by the defendants to proceed to Mayo (Cape de Verde) and there load from charterer's agents, in regular turn as customary, a cargo of salt, which the captain was to deliver at the port of discharge on being paid freight. On the arrival of the ship at Mayo, there being several others waiting to be loaded, the charterer's agents to avoid delay, directed the captain to go to Boa Vista, another of the Cape de Verde Islands, 100 miles from Mayo, and get a cargo of salt there, which the captain accordingly did on receiving an indemnity from the agents. Boa Vista salt being very inferior to Mayo salt, the defendants repudiated the transaction. The plaintiffs having sued the defendants for freight under the charter-party.Held, that (whatever might be the extent of authority which the law would imply for the agents to deviate from the charter-party in small matters, so long as the contract was substantially fulfilled,) there was no implied authority for the agents to vary the contract to the extent of substituting a voyage, port of loading and cargo, different from those stipulated by the charter-party.
It is now common for agents to enter into contracts for distant principals in accordance with instructions by telegram, and it has been held that agents who signed a charter-party in the following form, "by telegraphic authority of S. R.; S. E. & Co., as agents," did not warrant more than that they had a telegram, which, if correct, gave authority. S. E. & Co., therefore, were held not responsible for a mistake in the telegram made by the officials during transmission.1
Charter-parties are also frequently signed per Agent signing procuration, and when this is the case, parties taking the document do so with special notice, that the person so signing acts under a special authority, and such parties take the document on the faith of that representation.
Thus where a charter-party, on its face, purported to be accepted by M. G. by procuration of T. G. the defendant. To shew the authority of M. G. evidence was adduced that the defendant, although resident in London, carried on the business of a cornfactor at Limerick, where the charter-party was executed, and that M. G. was his brother, and had the general management of the defendant's business and warehouse there, and was in the habit of sending great quantities of corn to London, by vessels hired, and the charter-parties signed, by him, by procuration of the defendant:-Held, that the jury were at liberty to find that M. G. had a
1 Lilly r. Smales, L. R. (1892,) 1 Q. B. 456.