believed at the time of signing the charter, that the defendants would not be liable personally on it, notwithstanding that it professed in the body of it to be made by the defendants as merchants and freighters; that the defendants had power to bind their principals, and that the latter were bound by the charter; and that the plaintiffs were inequitably taking advantage of the mistake in drawing up the charter, contrary to the real intention of the parties. This plea was held by the Court of Exchequer to show a good equitable defence, and the judgment was afterwards affirmed in the Exchequer Chamber (e). The question which more frequently arises is whether, where an agent, acting for his principal, has entered into a charterparty, he has entered into it in such a form as to render himself personally liable. This depends upon the intention of the parties as disclosed by the language of the contract itself, and the mode in which it is signed. Where a person signs a contract in his own name, without qualification, he is primâ facie a contracting party, and to prevent this liability from attaching it must appear clearly from the other portions of the agreement that he did not intend to act as a principal (ƒ). If a contract not merely describes one of the parties as agent, but clearly indicates that he is acting only as such for a named principal, he is relieved from liability, although his signature is unqualified (g), and this is so whether the principal be resident in England or abroad (). The signature, however, "as agent," is the strongest evidence to show that the person signing incurs no personal liability (i); but even this has been held to be (e) Wake v. Harrop, 6 H. & N. 768; S. C. in Cain. Scacc., 1 H. & C. 202. Some of the judges were of opinion that the plea disclosed a good defence even at law. (f) Parker v. Winlow, 7 E. & B. 942; Haugh v. Manzanos, 4 Ex. Div. 104. (g) Gadd v. Houghton, 1 Ex. Div. 357, and the comments therein upon Paice v. Walker, L. R., 5 Ex. 173. (h) Green v. Kopke, 18 C. B. 549; Mahony v. Kekule, 14 C. B. 390; Deslandes v. Gregory, 2 E. & E. 602, 610. The fact that the principal is a foreigner is not to be thrown entirely out of consideration, for although there may be no difference in point of law between the case of an agent contracting on behalf of an English or a fo reign principal, there is an obvious distinction in the presumption to be drawn as a fact. See the judgment in Leonard v. Robinson, 5 E. & B. 125; Armstrong v. Stokes, L. R., 7 Q. B. 598; Elbinger v. Kaye, L. R., 8 Q. B. 313; Hutton v. Bullock, L. R., 8 Q. B. 331; 9 id. 572; 2 Smith's L. C. 418 (8th ed.). But with reference to the above cases it is to be observed that possibly the presumption of fact may not be so strong in the case of an agent executing a charter-party on behalf of a foreign principal, as in the case of an agent acting on behalf of a foreign merchant in the purchase of goods. (i) Deslandes v. Gregory, 2 E. & E. 602, 610. insufficient to release the agent from responsibility where it was inconsistent with the body of the contract (). It is not uncommon in cases where an agent enters into a Cesser clause. charter-party in such a manner as to render himself personally responsible, for a clause to be introduced into the charter-party, declaring that the liability of the agent shall cease as soon as the cargo has been loaded. Where a charter-party, mentioning demurrage, was made between the shipowners and an agent for the freighters (no principal being named), and at the end of the charter it was stated that "the charter being concluded by A. B. (the agent) for another party, the liability of the former in every respect, and as to all matters and things, as well before as after the shipping of the said cargo, shall cease as soon as they have shipped the cargo;" it was held, that no action could be brought against the agent for demurrage at the port of discharge (7). So, in a similar case, where the cargo had been loaded before the commencement of the action, the agent was held to be protected by a similar clause from a claim for damages caused by delay in loading (m). The construction of clauses of this character has given rise to some difficulty, but the rule to be deduced from the decisions is, that the words "all liability shall cease" do not operate to release the agent from vested rights of action, but only as from all liability arising after the loading of the cargo, unless, indeed, the charter-party clearly expresses an intention that the agent should be released ab initio. If there are words in the charterparty conferring a lien on the cargo in respect of demurrage at the port of loading, the circumstance will be regarded as giving (k) Lennard v. Robinson, 5 E. & B. 125. In this case 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 was held that they were, notwithstanding, personally liable on the contract. It may be doubted whether this has not been overruled by Gadd v. Houghton, 1 Ex. Div. 357; and although the principle given in the text may be safely accepted, all the decisions cannot now be reconciled. The modern tendency has been to relieve the agent from liability under circumstances where he would have formerly been held liable. (1) Oglesby v. Yglesias, E., B. & E. 930. 91. (m) Milvain v. Perez, 30 L. J., Q. B. In what case an agent is personally liable. 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 (8). 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 In (n) Christofferson v. Hansen, L. R., 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. 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 (z). 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. (y) Leslie v. Wilson, 3 B. & B. 171. (a) Splidt v. Bowles, 10 East, 279; Ꮓ BILL OF 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 (b). 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. (e) 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 |