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Agent for undisclosed principal.
defendant to charter a ship to plaintiff, the defendant had made a memorandum of charterparty in B.'s name, purporting to be signed by defendant as agent for B. It was proved that the defendant had no authority to contract for B., and knew that he had none; and that B. refused to adopt the contract:-It was held that defendant was not liable on the contract as principal.
That an agent, who has made a contract in his own name for an undisclosed principal, may sue on it in his own name is established by several cases, particularly that of Sims v. Bond,' where the Court said:" It is a well established rule of law, that where a contract, not under seal, is made with an agent, in his own name for an undisclosed principal, either the agent or the principal may sue upon it; the defendant, in the latter case, being entitled to be placed in the same situation, at the time of the disclosure of the real principal, as if the agent had been the contracting party."
And if a person describes himself in a written contract as an agent for a principal not named, he is liable upon the contract, if proved to be the real principal.2
In an action on the charter-party, alleging it to be made "between the defendant therein described as the owner of the good ship or vessel called, &c. of the one part, and the plaintiff, merchant and freighter of the other part," the charter-party
15 B. & Ad. 393. Higgins v. Senior, 8 M. & W. 834; Humble v. Hunter
12 Q. B. 310. Story on Agency, s. 270n.
* Carr v. Jackson, 21 L. J. Ex. 137; Ex parte Hartopp, 12 Ves. 352.
produced at the trial, was expressed to be made between the defendant of the one part and the plaintiff, "as agent of the freighter," of the other part; and amongst other things stipulated that, "being concluded on behalf of another party, it is agreed that all responsibility on the part of the plaintiff cease as soon as the cargo is shipped.” No principal was named in the charter-party, and it appeared from other evidence, that the plaintiff was in point of fact himself the real freighter, and not merely an agent in the matter.
Held, that the plaintiff was entitled to sue as principal, for a breach of the charter-party, notwithstanding he had contracted as agent, and that the above stipulation, applying only to his character of agent, had not the effect of limiting his responsibility as principal.1
Where the agent contracts as principal, the doctrine that a principal may come in and take the benefit of a contract made by his agent does not apply. Thus, in an action on a charter-party executed by a third person who, in the contract, describes himself as "owner of the ship," it was held that evidence was not admissible to shew that such person contracted merely as the plaintiff's agent.2
But where a charter-party contained a clause, "that this charter-party being concluded by C. T. J. (the defendant), on behalf of another
1 Schmalz v. Avery, 20 L. J. Q. B. 228.
Who may determine how
party resident abroad, it is agreed that all liability of C. T. J. ceases as soon as he has shipped the cargo," evidence that the defendant had bought and paid for the goods in his own name, and that at the port of destination they had been claimed by and delivered to a person who produced the bill of lading, which the captain had delivered to the defendant, was held insufficient to render the defendant liable in an action for the freight.'
The ship may belong to one owner or to several; the ship shall and if to several, they may hold her in partnership, or may have independent shares in her. When she belongs to partners, each of them is the agent of the others, and contracts made by one for her employment will be binding on all. But where there are several independent part owners, they hold the ship as tenants in common, not as partners, though her earnings are treated on.the footing of a partnership.2
Position of part owners.
One part owner, then, cannot generally, as such, bind the other owners by engaging to let the use of the ship to a particular person, or to employ her in a particular way. He is not, from the mere fact of co-ownership, their agent to do the ship's business. To make his contracts binding on them, he must have had actual authority to contract on their behalf; unless by their conduct they have led the other contracting party to believe that he had that authority. When a contract for the employment of
1 Carr. v. Jackson, 21 L. J. Ex. 137.
Green . Briggs, 17 L. J. Ch. 323; Maclachlan on Sh. 95.
3 Brodie v. Howard, 17 C. B. 109; Frazer v. Cuthbertson, L.R. 6Q.B.D. 93.
the ship has been made by one part owner with the authority of his co-owners, they each become personally bound by it; and each is liable in full for a breach of it; having a right of contribution from the others.
In Alexander v. Dowie, 1 it was held that a part owner, in possession of the ship, could settle a claim for damages for detention so as to bind the others.
When the part owners disagree as to the mode of employing the ship, those who own the majority of the shares have the right to control her. But they may be required to secure the minority against a possible loss of their interests in her. If the ship is in the possession of the minority, the majority may obtain possession by proceedings in the Court of Admiralty; giving security to the minority if they object to the proposed voyage. On the other hand, if the majority have possession, the dissentient owners may, by an action of restraint, arrest the vessel until security has been given them for the value of their shares, should she not return in safety.3
The security required is an undertaking, with sufficient sureties, to pay the value of the plaintiff's shares in case the ship does not return.1
125 L. J. Ex. 281.
The Valiant, 1 W. Rob. 64; The Elizabeth & Jane, 1 W. Rob. 278; The Kent, Lush. 495.
* The England, L. R. 12 P.D. 32; The Apollo, 1 Hagg. 306; The Margaret, 2 Hagg. 275; In re Blanshard, 2 B. & C. 244.
Owners may be restrained from using ship inconsistently
When part owners have restrained the ship in this manner, and obtained security for their shares, they cease to be interested in the voyage. She sails at the expense and risk of the majority, and for their profit. Contracts, therefore, entered into by them in regard to the voyage do not bind the dissenting minority.1
A part owner will not be allowed to interfere with the performance of a voyage under a charterparty, upon the vessel putting into a port of refuge, if she sailed on the voyage with his knowledge and assent.2
When a ship has been validly chartered, the owners must not deal with her in a inconsistent with the charter.
Should they threaten to do so, the charterer may obtain an injunction restraining them from any such acts. But the Courts will not enforce specific performance of the charter-party by decree; the charterer's remedy for a breach of it is by action for damages, either against the owners who made the contract, or in rem against the ship. Where there is only an agreement for a charter-party, and the charter-party has not actually been completed, no such injunction will be granted.5
In an action of restraint it appeared that the plaintiffs, a minority of the co-owners, had given
1 Boson v. Sandford, Carth. 58; Davis v. Johnson, 4 Sim. 539.
2 The Lady Clermont, 23 L. T. 283; The Maxima, 39 L. T. 112; The Talca, L. R. 5 P. D. 169. Carver on Sh., s. 40.
3 Sevin v. Deslandes, 30 L. J. Ch. 457.
DeMattos v. Gibson, 28 L. J. Ch. 498.
* Haji Abdul Allarakhi v. Haji Abdul Bacha, I. L. R. 6 Bom. 5.