Markt & Company Ltd v Knight Steamship Company ; Sale & Frazar v Knight Steamship Company

JurisdictionEngland & Wales
CourtCourt of Appeal
Judgment Date07 July 1910
Date07 July 1910
[IN THE COURT OF APPEAL.] MARKT & CO., LIMITED v. KNIGHT STEAMSHIP COMPANY, LIMITED. SALE & FRAZAR v. KNIGHT STEAMSHIP COMPANY, LIMITED. 1910 June 27, 28; July 7. VAUGHAN WILLIAMS, FLETCHER MOULTON, and BUCKLEY L.JJ.

Practice - Representative Action - Action by Shippers of Goods on a General Ship on behalf of themselves and other Shippers of Goods in the same Ship - “Persons having the same interest in one cause or matter” - Order XVI., r. 9.

The plaintiffs shipped goods on a general ship of the defendants for a voyage from New York to Japan. Before arriving at its destination the ship was sunk by a Russian cruiser on the ground that she was carrying contraband of war, and both ship and cargo were lost. In the writs in the present actions the plaintiffs were respectively described as suing “on behalf of themselves and others owners of cargo lately laden on board the steamship Knight Commander,” and the writs were indorsed with a claim for “damages for breach of contract and duty in and about the carriage of goods by sea.” A letter written by the plaintiffs' solicitors to the defendants' solicitors on the day of the issue of the writs stated that plaintiffs were suing on behalf of themselves and forty-four other persons, firms, or companies (whose names were given) who had shipped goods on board the ship:—

Held, that, upon the writs as they stood, the plaintiffs and those whom they purported to represent were not “persons having the same interest in one cause or matter” within the meaning of Order XVI., r. 9, and that the plaintiffs were not entitled to bring representative actions.

Held, further, by Vaughan Williams L.J. and Fletcher Moulton L.J. (Buckley L.J., dissenting), that shippers of goods in a general ship could not have “the same interest in one cause or matter” within the meaning of that rule, and that the writs were incapable of being so amended as to enable the plaintiffs to maintain representative actions.

Held by Buckley L.J., that the writs should be amended by describing the plaintiffs as suing on behalf of themselves and all others the owners of cargo lately laden on board the steamship Knight Commander, not being shippers of goods which are contraband of war, and the indorsements amended by asking for a declaration that the defendants were liable to the plaintiffs and to those on whose behalf they sued for breach of contract and/or duty in and about the carriage of goods by sea.

Per Fletcher Moulton L.J.: No representative action can lie where the sole relief sought is damages.

APPEALS by the defendants from the refusal of Bucknill J. at chambers to set aside the writs in the respective actions.

The writ in the first action was issued on May 5, 1910, and upon its face the plaintiffs were described as “Markt & Co., Limited, on behalf of themselves and others owners of cargo lately laden on board the s.s. Knight Commander.” The writ was indorsed with a claim for “damages for breach of contract and duty in and about the carriage of goods by sea.” The writ in the action of Sale & Frazar, Limited, was in the same terms.

The facts shewed that the defendants were the owners of the steamship Knight Commander, which in the year 1904, during the Russo-Japanese war, sailed on a voyage from New York to Japan as a general ship. The plaintiffs Markt & Co., Limited, were merchants carrying on business in the United States, and the plaintiffs Sale & Frazar, Limited, carried on business as merchants in Japan; and both of them, together with about forty-three other firms, persons, or companies, had shipped goods for Japan on board the Knight Commander under separate bills of lading. The ship was stopped and searched on the high seas when nearing Japan by a Russian cruiser; the crew were taken on board the cruiser, and the Knight Commander was fired into and sunk by the guns of the cruiser on the ground that she was carrying contraband of war; both ship and cargo were wholly lost. Claims were made against the Russian Government on behalf of the shipowners and cargo owners, but, no final decision having been given, these actions were brought in order to prevent the operation of the Statute of Limitations.

On the day on which the writs were issued the plaintiffs' solicitors (who were the same in both actions) wrote to the defendants' solicitors informing them that the plaintiffs Sale & Frazar, Limited, claimed on behalf of themselves and forty-four other persons, firms, or companies, and they gave a list of the names, which included the plaintiffs Markt & Co., Limited; and they went on to say that Markt & Co., Limited, claimed on behalf of themselves and all the other persons, firms, and companies mentioned in the list, and also on behalf of Sale & Frazar, Limited.

After service of the writs, the defendants took out a summons in each action asking that the writ should be set aside, or, alternatively, that so much of the writ as referred to parties other than the plaintiffs named in the writ should be struck out, the ground of the application being that the case was not within Order XVI., r. 9, and that the plaintiffs could not sue in a representative character. The Master refused to set aside the writs or to make the suggested alterations in them, and his decision was affirmed by the judge. The defendants in each action appealed.

Leslie Scott, K.C. (G. D. Keogh with him), for the defendants. It is not competent for a plaintiff to sue as the representative of a class under Order XVI., r. 9, where the parties whom he claims to represent obviously have not the same interest in the cause or matter. In the present case the goods of the different shippers were shipped under separate bills of lading; the circumstances of the shipment would be different in the case of each shipper, and in respect of the claims of some of them there might be defences which would not be available in the case of the claims of the others. For instance, a shipper who himself had shipped contraband, or who knew that contraband was being carried on board but elected to run the risk, would be in a very different position from a shipper whose own goods were not contraband and who did not know that the ship was carrying contraband goods. Such an action as the present would therefore raise a heterogeneous collection of issues in respect of the various shippers respectively. By the terms of Order XVI., r. 9, there must be a common interest in the plaintiff and all those whom he represents; that is not the case here. The limit within which it is competent to a plaintiff to sue in a representative character was reached in Duke of Bedford v. Ellis.F1 To allow such an action as the present to be brought would be going far beyond that case. Even if the different shippers had been joined as plaintiffs by name, there would have been a joinder of plaintiffs not sanctioned by Order XVI., r. 1. [He also cited Smurthwaite v. Hannay.F2]

Bailhache, K.C., and Leck, for the plaintiffs. This is in fact an underwriters' action, and the plaintiffs have authority to sue from all the shippers represented. All the shippers represented by the plaintiffs have a common interest, and the main facts are common to the cases of all of them. The Knight Commander was sunk on the ground that she was carrying contraband of war, and, so far as all the shippers of non-contraband goods are concerned, the cause of action is that it was a breach of contract on the part of the shipowners to be carrying contraband of war, which might render the non-contraband portion of the cargo liable to seizure. The action is prima facie well constituted. If at a later stage it should appear from the pleadings that there is any difference in the case of some of the shippers, an application may be made to confine the action to the case of the others. Proceedings are pending in the Russian Courts to have the seizure of these goods declared invalid, and, in the event of their being successful, it will probably be unnecessary to proceed with the present actions. Meanwhile the Statute of Limitations has nearly run, and in order to prevent its possible operation as a bar to the claims of the shippers against the shipowners it was necessary to commence legal proceedings. It is true that a separate writ might have issued on behalf of each shipper, but that would have been stigmatized as oppressive and unnecessarily expensive. There was a difficulty in joining all the plaintiffs in one writ, for some of them were foreign firms, and, if the firm names had been inserted in the writ, it might not have been possible to comply with an order under Order XLVIIIA, r. 1, to give the names of the various co-partners. It was therefore decided to bring representative actions in the names of these plaintiffs and to give a list of the shippers represented by them, and it is submitted that upon the facts of the case this was a proper course to take, and that Order XVI., r. 9, is applicable. The intention was to sue on behalf of all those who shipped non-contraband goods; if any shippers of contraband goods have been included by mistake, their names can be struck out at a subsequent stage. It is, of course, true that each particular shipper has a separate interest in respect of his own goods, but in every other respect the interests of all the shippers are the same. The case is governed by Duke of Bedford v. EllisF3; it is immaterial that in that case the common right or interest was given by statute. [They also cited Drincqbier v. Wood.F4]

Keogh, in reply, cited Beeching v. Lloyd.F5

Cur. adv. vult.

July 7. VAUGHAN WILLIAMS L.J. read the following judgment:— The plaintiffs in this case claim to sue in a representative character on behalf of themselves and others, owners of cargo lately laden on board the steamship Knight Commander. The defendants are the Knight Steamship Company, Limited. The indorsement on the writ is “The plaintiffs' claim is for damages for breach of contract and duty in and about the...

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