In Bannister v. Breslauer (1), the claim was for not loading with all dispatch or within a reasonable time. The clause was, "The charterer's liability to cease when the cargo is shipped, provided the same is worth the freight on arrival at the port of discharge; the captain having an absolute lien on it for freight, dead-freight, and demurrage," &c. The defendants were not said to be agents. The Court held that the clause absolved the defendants. But it cannot be denied that the case has been since doubted, on the ground that apparently no lien was given for the damages sued for. In Pedersen v. Lotinga (2), the claim was for delay in loading. The clause was, that "the charter being concluded by the charterer on behalf of another party, it is agreed that all liability of the former shall cease as soon as he has shipped the cargo, the owners and master agreeing to rest solely on their lien on the cargo for freight and demurrage." The Court held that the defendants were not absolved in respect of the liability for delay in loading, and that the clause absolved only from future liabilities. In Gray v. Carr (3), in error, the second part of the clause was in question. The action was against the consignee as upon a lien for dead-freight and demurrage and detention at the port of loading. It was held that a lien was given for demurrage, but that no lien was given for the damages occasioned by detention at the port of loading beyond the demurrage days. The clause, therefore, as to the absolution of the charterer, must be construed subject to such decision as to the limits of the lien against the consignee. In Christoffersen v. Hansen (4), the clause was for delay in loading, It was assumed that no lien was given for such delay. It was held that consequently the true construction was that the charterer, though in fact an agent, was only absolved from liability which might accrue after the loading, and was not absolved from liability for delay in loading In Francesco v. Massey (5), the claim was against the charterers, as principals in fact, for five days demurrage and damages for fourteen days further detention at the port of loading. The liability for the detention was admitted; but it was argued that, because there was a lien for the demurrage against (1) Law Rep. 2 C. P. 497. (3) Law Rep. 6 Q. B. 523. (5) Law Rep. 8 Ex. 101. 1876 FRENCH v. GERBER. 1876 FRENCH t. GERBER the consignee, the true construction was that the charterer was absolved in respect of it, although it was antecelent to the loading. And the Court held for the defendants. In Lister v. Van Hansbergen (1) the claim was for delay in loading. It was held that the clause did not absolve the charterers. In Kish v. Cory (2), in error, the claim was for demurrage at the port of loaling. It was held that the clause absolved the charterer, though principal in fact. The Court approved of the decision in Francesco v. Massey (3), and held that the absolution applied to past liabilities, where a lien was given in respect of them. The inclination of many of the judges, in face of the increasing number of such charterparties made in ordinary course of business, seemed to be to extend the lien rather than to diminish the absolution. In all the cases, then, it will be seen, the dispute has been as to the extent of the absolution in respect of liabilities accruing before the loading; in every case it has been assumed or expressly declared that it is complete as to liabilities which might otherwise accrue after the loading. The words of the clause must necessarily absolve from all future liability, or mean nothing. The rule, therefore, seems to be, that, where the words of the absolving part of the clause plainly shew that all liability is to cease on loading, it is so to cease both as to antecedent and future liabilities, and without regard to any lien; but, where the words of the absolving part are open to either interpretation, then, without regard to lien, liability as to future transactions is not tɔ accrue, but liability as to antecedent breaches is to cease only so far as an equivalent lien is given. It follows that, in the present case, the defendants are absolved oy the clause in respect of all the damages sued for, whether a lien be or be not given as to part of them. Judgment on the whole record must therefore be given for the defendants. Judgment for the defendants. Solicitors for plaintiffs: Vizard, Crowder, & Co., for Yates, Son, & Co., Liverpool. Solicitors for defendants: Hollams, Son, & Coward. (1) 1 Q. B. D. 263. (2) Law Rep. 10 Q. B. 553. (3) Law Rep. 8 Ex. 101. KEAY AND ANOTHER V. FENWICK AND OTHERS. exit Shipping-Authority of managing Owner-Liability of Co-owners-Commission on Sale of a Ship-Construction of Power of Attorneys 1001 id D., the managing owner of a ship, through the plaintiffs, his agents at Constantinople, sold her to the Turkish Government, and received a bill upon, the Oriental Bank in London for the,amount of the purchase-money, which bill, was duly paid. D. had no express authority at the time from the defendants (who were the owners of 23/64ths of the ship) to sell her, but the latter knew that a sale was contemplated; and, after the sale, they executed a power of attorney, reciting that they had agreed to sell the vessel to the Turkish, Government, and had actually received the purchase-money, and impowering the plaintiff's to transfer their respective shares and to hand over the vessel to the purchasers. The defendants afterwards received from D. (or settled in laccount with him the value of their respective shares : Held, that the jury were warranted in finding that the defendants had anthorized the sale of the ship by D., or had by their subsequent ratification so adopted his act as to render them jointly liable to the plaintiffs for the commission due to the latter on the sale. Held also, that the position of the defendants was not so altered, by the fact of the plaintiffs having drawn upon D. a bill at three months' date for the amount of the commission, as to release the former from liability upon the honor of the bill. ideo ertonge ( THIS was an action brought by the plaintiffs, who are shippingagents and merchants carrying on business at Constantinople, to recover against the defendants, who were joint owners with one Dale (who acted as managing owner) of a screw steam-ship called the Westminster, to recover the sum of 5117. 188. 3d., the balance of a claim of 7317. 6s. for commission on the sale of that vessel to the Ottoman Government through their intervention in April, 1874. JOJ OGOTY d. 0058 The cause was tried before Lindley, J., at the sittings in Middlesex after Trinity Term, 1875. The facts were as follows The defendants and Dale were joint owners of the Westminster, and Dale and certain other persons were joint owners of another steam-ship called the Buckingham. These two vessels being at Constantinople, Dale, in January, 1874, acting as managing, owner VOL. I. 3 G 3 June 26. 1876 KEAY v. FENWICK. of both, through the intervention of the plaintiffs as his agents at that place, entered into negotiations with an agent of the Turkish Government for the sale of them, and ultimately, on the 19th of that month sent to the plaintiffs a telegram authorizing the plaintiffs to sell the Westminster for 19,000l., which they accordingly did on the 30th of that month, remitting to Dale at North Shields a bill upon the Ottoman Bank, London, payable at thirty days' sight. The plaintiffs about the same time also sold the Buckingham. The agreed commission they were to receive for the two was 1550, 7187. 5s. 10d. of which was to be appropriated to the Westminster, and the rest to the Buckingham. For this sum (7187. 5s. 10d.) and some other charges (amounting altogether to 7311. 6s.) the plaintiffs on the 4th of April, 1874,-which was after they had ascertained who the owners were,-drew upon P. Dale & Co. of North Shields a bill at three months, which was accepted by Dale in the name of his firm: but, before its maturity, Dale filed a petition under s. 125 of the Bankruptcy Act, 1869 (32 & 33 Vict. c. 71), for a liquidation by arrangement, in the Newcastle County Court; and at the first meeting of his creditors held on the 22nd of July, the statutory number of his creditors agreed to accept a composition of 6s. 8d. in the pound on the amount of their respective debts, payable as follows, viz. 3s. in the pound one month after the filing of the resolution, 3s. in the pound three months later, and 8d. in the pound at the expiration of twelve months from the last-mentioned date. The plaintiffs were parties to this arrangement in respect of the acceptance for 7317. 6s., and received the composition. Dale paid a portion only of the 19,0007. purchase-money over to his co-owners; one of the defendants, Stanley, receiving 1100% in cash and Dale's acceptance for 14007. at six months' date, being 2500l., his proportion of the purchase-money, less a sum claimed by Dale as charges on the ship; this acceptance, however, was dishonored at maturity. The other defendants received their respective shares of the purchase-money from Dale, or settled for the same in account with him. At the time of effecting the sale of the Westminster, the plaintiffs did not know that the defendants were part-owners, and the sale was effected without the express authority of the defendants: but, their assent to the transfer being necessary, they afterwards, on the 19th of February, 1874, executed a power of attorney in the following terms: To all to whom these presents shall come, we George Dryden Dale, of North Shields, ship-owner, John William Fenwick, of the same place, solicitor, Frank Stanley, of Newcastle-upon-Tyne, gentleman, and Pearson Armstrong, of the same place, solicitor, send greeting: Whereas we the said several persons are the registered owners of the screw steam-ship Westminster, of Shields, as appears by a certified copy of the register of the said vessel hereunto annexed, under the hand of Henry Lindsay, collector of customs at the port of Shields, which said vessel is now at Constantinople:And whereas we have agreed to sell the said steam-vessel to the Turkish Government, and have actually received the purchase-money, we are desirous of appointing the hereinafter-mentioned attorneys to sign, seal, and execute the necessary bill of sale or transfer of our shares of and in the said vessel to the Turkish Government aforesaid: Now, know ye that we the said G. D. Dale, J. W. Fenwick, Frank Stanley, and P. Armstrong do and each and every of us doth hereby constitute and appoint Messrs. Keay & Donald, steam shipping agents at Constantinople, and each partner in that firm jointly and separately, our and each of our true and lawful attorneys and agents, attorney and agent, for us and every of us to sign, seal, and execute any bill of sale or document necessary for the purpose of assigning or transferring our shares in the said screw steam-ship Westminster to the Turkish Government or to whom they may appoint: and, in case the said steamer has not yet been delivered over to the purchasers, we hereby authorize and impower our said attorneys or agents to hand the same over together with her boats and appurtenances, and generally in the premises to do, perform, execute, and accomplish all such acts, deeds, matters, and things whatsoever as our said attorneys or any of them shall judge, see, or think fit or necessary to be done in the premises, as fully and effectually as we the said constituents might or could do were we personally present: And we the said constituents and each and every of us do ratify, confirm, and hold for good, effectual, and valid in law all and whatsoever our and each of our said attorneys or any of them shall lawfully do or cause to be done in and about the premises by virtue of these presents. In witness, &c. On the part of the defendants it was contended that Dale had no authority to sell the ship, that they never ratified the sale, that the plaintiffs had looked to Dale alone for payment and had so dealt with him as to have discharged the defendants even if they had ever been liable to the plaintiffs, and that the position of the defendants had been altered, to their prejudice, by settling their acounts with Dale before notice of the claim of the plaintiffs. On the part of the defendant Armstrong it was further contended that he was only a mortgagee of certain shares and not a partowner of the ship, and therefore could in no event be liable. 1876 KEAY v. FENWICK. |