Kolbin & Sons v Kinnear & Company S.S. "Altai." Kolbin & Sons v United Shippling Company S.S. "Eduard Woermann."
| Jurisdiction | England & Wales |
| Judge | Lord Atkin,Lord Warrington of Clyffe,Lord Thankerton,Lord Macmillan,. |
| Judgment Date | 06 July 1931 |
| Judgment citation (vLex) | [1931] UKHL J0706-3 |
| Date | 06 July 1931 |
| Court | House of Lords |
| Docket Number | No. 13. |
[1931] UKHL J0706-2
House of Lords
Viscount Dunedin.
Lord Warrington of Clyffe.
Lord Atkin.
Lord Thankerton.
Lord Macmillan.
After hearing Counsel, as well on Tuesday the 5th, as on Thursday the 7th, Friday the 8th, Monday the 11th and Tuesday the 12th, days of May last, upon the Petition and Appeal of William Kinnear and Company, Dundee, and Mrs. Margaret Anderson Rae or Kinnear, Widow of William Kinnear (otherwise William Reid Kinnear), and James Kinnear and William Kinnear, 18, Commercial Street, Dundee, all residing at 433, Strathmartine Road, Dundee, the surviving and assumed Trustees acting under the Trust Disposition and Settlement and Codicil of the said William Kinnear (otherwise William Reid Kinnear), who was sole partner of the said firm of William Kinnear and Company at the time of his death, dated respectively 26th June, 1903, and 13th October, 1909, and registered in the Books of Council and Session, 26th January, 1923, praying, That the matter of the Interlocutor set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Session in Scotland, of the Second Division, of the 20th of March, 1930, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Interlocutor might be reversed, varied, or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of A. S. Kolbin and Sons, Alexey Stepanovitch Kolbin, Alexander Alexeevitch Kolbin, Vassili Alexeevitch Kolbin, Henry Casimir Lambert and John Hearfield, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal, in the Court of Parliament of His Majesty the King assembled, That the said Interlocutor, of the 20th day of March, 1930, complained of in the said Appeal, be and the same is hereby Varied, by omitting the words "in respect of the shipment mentioned on record are entitled to decree against the Defenders for the sum of £23,651 19s. 11d., with interest at Bank Deposit Receipt rates from 18th September 1918", and substituting therefor the words so far as it consists of a claim for the principal sum of £23,651 19s. 11d., but reserving to the pursuers their claims as against the said Trust Estate for interest in respect of such principal sum, are entitled to decree against the Defenders for the sum of £23,651 19s. 11d.:" and that subject to such Variation, the said Interlocutor be, and the same is hereby Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That there be no Costs of the Appeal to
My Lords,
I have had the advantage of reading the opinion which is about to be delivered by my noble and learned friend Lord Atkin, and I concur in it, and I am asked to say that my noble and learned friend Lord Dunedin also concurs.
My Lords,
The present appeal arises in an action in which the respondents, the surviving partners in a Russian firm of flax merchants, claim against the appellants, the representatives of a firm of shipbrokers at Dundee, damages for wrongfully delivering a quantity of flax and tow, the property of the respondents, to one Henry William Renny, a flax merchant of Dundee. The Lord Ordinary, Lord Fleming, decided in favour of the appellants, the defenders. On appeal the Second Division of the Court of Session by a majority reversed the decision of the Lord Ordinary, and granted a decree in favour of the pursuers. The defenders have appealed.
The transactions in question took place in 1917 and 1918. The action was not begun until 1927, and the trial took place in 1929. In the meantime most of the parties principally engaged had died, and many documents had in ordinary course of business disappeared. Nevertheless sufficient evidence remains and was adduced at the trial to enable the material facts to be ascertained and the rights of the parties to be determined with substantial accuracy. In 1917 the pursuers, Messrs. Kolbin, were carrying on business in Russia as flax and tow merchants. Both commodities were in great request during the war. This country had at an early stage proceeded to regulate the supply of flax and tow under the Defence of the Realm Regulations. By an order of March 21, 1916, no person might deal in Russian flax or tow except under licence from the War Department, and by order of March 3, 1917, the Army Council gave notice that they took possession of all Russian flax and tow in stock in the United Kingdom and intended to take possession of all Russian flax and tow which might thereafter arrive in the United Kingdom. The Army Council had established a Flax Office at Dundee, the headquarters of this trade in the United Kingdom. The manager of this office under Sir James Beattie was a Mr. Mackenzie, since deceased, who seems to have conducted the arrangements on behalf of the War Office with the goods in question. The War Office had also by arrangement with the then existing Russian Government established a representative, Captain Proctor, at Archangel, the Russian port of export. His duties were, so far as flax destined for the United Kingdom was concerned, either to buy flax outright for the British Government or to see that it was consigned to approved quarters. The latter goods were free goods, that is to say, were not at the time put at the disposal of the War Office. They remained the property of the shipper or the consignee as the case might be; but the shipment was subject to the approval of Captain Proctor. To accomplish his duties in these respects he was provided by the Russian Government with an export licence which had the effect of enabling him to control the export of flax from Russia to the United Kingdom. During the relative time there was also established at Archangel a branch of the United Shipping Co. Ld., an English company. They acted at Archangel as ship brokers or agents for various lines of steamships, including the Ellerman Wilson Line, the owners of the s.s. Altai, in which the goods in question were ultimately shipped. They also acted as forwarding agents for Russian merchants. In the latter capacity they had acted for some time for Messrs. Kolbin & Co. That firm had for some time past been shipping flax and tow to the United Kingdom and in particular to Dundee. Their correspondent in that city was Mr. Henry William Renny, himself a flax merchant, who had on several previous occasions bought flax from Messrs. Kolbin. He does not appear at any time to have acted as their broker in selling flax for them, though no doubt he had paid charges for them: the transactions were sufficiently numerous to entail a running account between him and them.
Having thus introduced the dramatis personae it is necessary to state the facts that give rise to this dispute. By December, 1917, Messrs. Kolbin had transmitted to the United Shipping Co. as their agents for shipment to England the flax and tow in question. The Shipping Co. arranged through Captain Proctor for shipment by the s.s. Altai, then in Archangel, chartered by the Ellerman Wilson Line the owners to the British Government. The original Bill of Lading is not forthcoming but a contemporaneous copy shows that the goods were shipped by Captain A. Proctor through United Shipping Co. Ld. "unto order of War Office for account of A. S. Kolbin & Sons or to his or their assigns." There is a further provision that the Master "hath affirmed to two Bills of Lading—one of which being accomplished the others to stand void." The legal effect of this description of the shipper and the consignee has given rise to some discussion: but after consideration of Captain Procter's evidence I think that the result is reasonably plain. Captain Proctor was not intended by anyone to be the shipper. His name was used to indicate that the goods in question were shipped under his licence. The true shippers were the United Shipping Co. acting as agents for A. S. Kolbin & Sons who were the actual principals. As far as the consignees were concerned Captain Proctor made it clear that the goods were "quite free unsold and unallocated" adding "but the War Office by the wording of this copy of the Bill of Lading would have the title to make for the shipper whatever terms they thought fit in realising these goods," a qualification which is no doubt correct on the footing that the War Office took up the Bill of Lading and acquired the goods under it. Captain Proctor further went on to say that he pointed out to the owner of these goods that he could only realise them at a price to be fixed at the discretion of the War Office, which seems to be the practical result of the orders made under the Defence of the Realm Regulations. Being asked whether that was the reason why the Bill of Lading was taken "unto order of the War Office for account of A. S. Kolbin & Sons" he said it might have been for that reason only or it might also be that he considered the War Office the best trustees for his goods: and explained the latter answer by saying an agent representing the shipper might have the disposal as the salesman of the goods through the War Office if the shipper so desired, because if Kolbin, for instance, reckoned that the War Office was the best trustee for his goods, and for the sums that would be at his credit after they were realised, then he might have addressed them to the War Office only for that reason. It appears to me to be the result of the evidence as a whole that the goods remained free goods the property of Kolbins, that they chose the designation of the consignee, and that there was no bargain with Proctor as...
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