damages for such a breach is what the plaintiff has in fact lost, be ause he has not a binding contract with the alleged principal (ƒ).

By telegraphic authority. In Lilly v. Smales (g), where an agent signing "by telegraphic authority of charterer, D. as age t" effected a charter which, through a mistake in transmis ion of the telegram instructing him, he had no authority to effect, Denman, J., admitted evidence as to the meaning attached by business men to such words, and held on that evidence that the warranty implied by such a signature was only that the agent had a telegram which, if correct, authorised such a charter as that which he signed.

In Suart v. Haigh (x), where S., a sub-agent, effected a charter purporting to be made between A. and D. as agent for charterer C., on telegraphic instructions from D., an agent of C., the charterer, and signed, "S., by telegraphic authority of D. as agent," the House of Lords held that S. warranted that he had authority from C., as well as from D., to sign the charter.

I. Cases where an agent has been held liable as principal (h).

Case 1.-Charter between A. and "D. on behalf of C.," afterwards referred to as "the parties" signed by A. and D. Held, D. was a party to the contract, and could sue and be sued under it (i).

Case 2.-Charter between C. and " B. for owners of the S." signed "for owners, B." Held, ambiguous, but when construed with letters (not objected to), to render B. personally liable (k).

Case 3.-Charter between A. and "D., merchants "-" to load from factor of said merchants . thirty running days to be allowed said merchants"-signed "by authority of and as agents for C., of Memel, pro D." Held, D. was personally liable (7).

Case 4.-Charter between A. and "D., agent for C.," signed "D." Held, D. was personally liable (m).

Case 5.-Charter between A. and "D., as agent for charterers . . . ship to load from agents of said freighters (= D.) ... captain to sign bills of lading at any freight required by charterers (= D.). . . This charter being entered into on behalf of others, it is agreed that all liability of charterers (= D.) shall cease on completion of the loading." Signed “D.” Held, D. was personally liable (n).

(f) Exp. Panmure (1883); Firbank v. Humphreys (1886), 18 Q. B. D. 54.;

24 Ch. D. 367.

(g) (1892), 1 Q. B. 456.

(x) (1893) 9 T. L. R. 488.

(h) See also Oglesby v. Yglesias (1858), E. B. & E. 930; Schmaltz v. Arery (1851), 16 Q B. 655; Paice v. Walker (1870), L. R. 5 Ex. 173, which has been doubted by James, L.J., in Gadd v. Houghton (1876), 1 Ex. D. 357; Weidner v. Hoggett (1876), 1 C. P. D. 533.

(i) Cooke v. Wilson (1856), 1 C. B., N. S. 153.

(k) Adams v. Hall (1877), 37 L. T. 70.

(1) Lennard v. Robinson (1855), 5 E. & B. 125. (n) Parker v. Winlow (1857), 7 E. & B. 942. 63 L. T. 765.

(n) Hough v. Manzanos (1879), 4 Ex. D. 104.

Cf. Hick v. Tweedy (1890),

II. Cases where agent has been held not personally liable.

Case 6.-B. entered into a charter "between A. and C.," and signed it 66 B. pro A." A. had given B. no authority to make this contract, and did not adopt it. Held, that B., who had executed the charter in the name of another, and added his own name only as agent for that other, could not be treated as a party to the charter and sued upon it; (quare unless it could be shewn he was the real principal (0)).

Case 7.-Charter between A. and " D., as agents to C., merchant and charterer." Signed “for C., D. as agent; for A., B. as agent." Held, that D. was not personally liable, upon a contract which both in its body and ite signature was expressed to be made by him “as agent” (p).

Case 8.-Charter between "B., acting for owners of the ship," and C.: "B. undertakes to pay demurrage on barges." Held, by Bramwell, L.J., that B. was not personally liable (g).

66

Case 9-Charter between A. and "D., as agents for merchants." Signed D., as agents for merchants." Held, that, apart from custom, D. would not be personally liable (r).

Note.-An ingenious point has been taken with varying success, where an agent has been held personally liable on charters which also contain a cesser clause, i.e., "this charter being entered into on behalf of others, it is agreed that all liability of agents shall cease on shipping of the cargo," or words to that effect. In Oglesby v. Yglesias (8) it was held by Erle and Crompton, JJ., that the agent, though personally liable on the charter, was freed by such a clause from all liability after shipping of cargo. On the other hand, in Schmaltz v. Avery (t), Patteson, J., delivering the judgment of the Court, said: "There is nothing in the argument that the plaintiff's responsibility is expressly made to cease as soon as the cargo is shipped,' for that limitation plainly applies only to his character as agent, and being real principal, his responsibility would unquestionably continue after the cargo was shipped.'

Of these contradictory decisions that in Oglesby v. Yglesias (8) seems the more consistent with principle. If the plaintiffs relied on the defendant's character as principal, then with their eyes open they have agreed to the insertion of a clause directly

(0) Jenkins v. Hutchinson (1849), 13 Q. B. 744. Vide ante, note to article 11, p. 26. The remedy against B. was on a breach of warranty: Collen v. Wright (1857), 8 E. & B. 647. Vide ante, p. 28.

(p) Deslandes v. Gregory (1860), 2 E. & E. 602, but in Hough v. Manzanos (1879), 4 Ex. D. 104, Pollock, B., held that the words "as agents for charterers" in the body of the agreement are ambiguous. See, however, Hutchinson v. Tatham, vide sub.

(q) Wagstaff v. Anderson (1880), L. R. 5 C. P. D. 171. Judgment proceeded partly on the ground that "shipbrokers do not usually act for themselves." (r) Hutchinson v. Tatham (1873), L. R. 8 C. P. 482; Pike v. Ongley (1887), 18 Q. B. D. 708.

(8) (1858), E. B. & E. 930.

(t) (1851), 16 Q. B. 655, 663.

limiting his liabilities, and the erroneous recital that he acts for another will not affect the question. And this is not inconsistent with the case of Gullichsen v. Stewart (u); for there, though persons exempted from liability after loading by a cesser clause were yet held liable for freight, it was on the subsequent contract in the bill of lading; on the charter alone they would, it is submitted, have been exempt. Barwick v. Burnyeat (v) even exempts them on charter and bill of lading together, but is, it is submitted, wron;

Article 14.--Agent for Undisclosed Principal (w).

Where an agent contracts for an undisclosed principal, evidence of a custom that the agent is personally liable, if he does not disclose his principal either at the time of the contract or within a reasonable time, is admissible to render the agent liable as principal, but not to exclude the principal's liability.

Case.-D. entered into a charter with A., "as agents for merchants," and signed it," as agents for merchants." Held, that evidence of a custom that if D. did not disclose to A. within a reasonable time the name of such merchants, D. was personally liable on the charter, was admissible (x).

Article 15.-Agent for Crown.

Agents chartering on behalf of the Crown are not personally liable (y).

(u) (1884), 13 Q. B. D. 317.

(v) (1877), 36 L. T. 250.

Vide sub Article 18, note.

() On the liabilities of undisclosed principals and their agents: see Thomson v. Davenport, 2 Smith L. C. 9th Ed. p. 395, and notes thereto; Higgins v. Senior (1841), 8 M. & W. 834.

(x) Hutchinson v. Tatham (1873), L. R. 8 C. P. 482; Pike v. Ongley (1887), 18 Q. B. D. 708. On this custom see also Dale v. Humfrey (1858), E. B. & É. 1004; Fleet v. Murton (1871), L. R. 7 Q. B. 126; Southwell v. Bowditch (1876), 1 C. P. D. 100, 374.

(y) McBeath v. Haldimand (1786), 1 T. R. 172; Unwin v. Wolseley (1787), 1 T. R. 674; Gidley v. Lord Palmerston (1822), 3 B. & B. 275. In exceptional cases the agent may by the form of the charter expressly make himself liable, as in Cunningham v. Collier (1785), 4 Douglas, 233, where Lord Mansfield held such an agent liable.

Article 16.-Classes of Agents.

Agents who may have authority on behalf of the shipowner to effect charters, sign bills of lading, or do ship's business generally, are:

The managing owner is an agent appointed by the other owners to do what is necessary to enable the ship to prosecute her voyage and earn freight (z).

He binds by his action those of his co-owners, who have appointed him or expressly assented to his appointment, or hold him out as having authority, and no others (a).

The fact that any person is registered as "managing owner" is not conclusive that he has authority to bind his co-owners, but may be displaced by evidence of absence of authority (b).

In the absence of express instructions, he has the power to procure a charter, and make the contracts necessary to carry it out (c). He has no power, in the absence of such instructions to vary or cancel a charter, still less to agree on behalf

(z) Barker v. Highley (1863), 15 C. B., N. S. 27, 34; Thomas v. Lewis (1878), L. R. 4 Ex. D. 18, 23. He used to be called "ship's husband." The ship's husband now is usually only a servant of the shipowner who undertakes the special duty of looking after the ship's equipment and outfit. In the case of the limited companies, (single ship companies), by which many steamships and sailing vessels are now owned, the articles of association provide for the appointment and powers of the "managing owner," and shareholders in them will be bound by the articles. By 39 & 40 Vict. c. 80, s. 36 (1876), the name and address of the managing owner of every British ship, or of the ship's husband, or person to whom the management of the ship is entrusted by the owner, must be registered at the custom-house of the ship's port of registry. (See Appendix III.)

(a) Frazer v. Cuthbertson (1880), L. R. 6 Q. B. D. 93; Barker v. Highley, vide 'pra. But his co-owners may bring an action of restraint. See The England 1886), 12 P. D. 32; and Article 170, post.

(b) Frazer v. Cuthbertson, vide supra.

(c) As to a managing owner's rights to commission on effecting charters, see Williamson v. Hine (1891), 1 Ch. 390. He is bound to render accounts of the oyage within a reasonable time. The Mount Vernon (1891), 64 L. T. 148.

of his owners to pay money for each cancellation (d). He cannot against other part-owners assign the whole freight to secure moneys advanced by him (e).

He may bind his part-owners by expenditure for ordinary repairs, but if his part-owners are easily accessible he cannot bind them by expenditure for extensive structural alterations, or for work to fit the ship for new employment on which the partners had not resolved, without their express authority (ƒ).

(b.) Broker.

A broker's authority to effect, vary, or rescind charters depends upon his special instructions at that particular time, and may be at any moment rescinded. A broker is often held out as having authority to engage goods for the vessels of a particular shipowner, and to receive the freight for such goods, in which case his engagements will bind the shipowner, and payment of freight to him will discharge the person paying; but such authority may be rescinded at any time, unless the special manner or time of rescinding it has been provided for by the agreement between the shipowner and broker.

A clause in a charter providing that the acting broker shall receive commission does not make him a party to the charter so as to be able to sue on it, but any party to the contract may sue for such commission as trustee for the broker (g).

Note. The management of a vessel includes:

I.-1. Decisions as to the employment of the ship.

2. Equipment and repairs of ship, and payment of ac

counts.

3. Engagement and discharge of crew.

4. Navigation, loading, and discharge of vessel.

(d) Thomas v. Lewis (1878), 4 Ex. D. 18.

(e) Guion v. Trask (1860), 1 De G. F. & J. 373.

(f) Steele v. Dixon (1876), 3 Sc. Sess C.. 4th Series, at p. 1009.

(g) Nuova Rafaellina v. Japp (1871), L. R. 3 A. & E. 483; Robertson v. Wait

(1853), 8 Ex. 299. Brokerage is not a necessary " within 3 & 4 Vict. c. 65, s. 6, to sustain an action in rem. The Marianne (1891), P. 180.

D