Myers and Others v Willis
| Jurisdiction | England & Wales |
| Judgment Date | 13 June 1856 |
| Date | 13 June 1856 |
| Court | Court of Common Pleas |
English Reports Citation: 139 E.R. 1621
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 25 L. J. C. P. 255; 2 Jur. N. S. 788; 4 W. R. 637. See The Harriet, 1868, 18 L. T. 805.
[886] myers and others v. willis. June 13, 1856. [S. C. 25 L. J. C. P. 255; 2 Jur. N.'S. 788 ; 4 W. E. 637. See The Harriet, 1868, 18 L. T. 805.] The register is no evidence of ownership, so as to fix the party whose name appears thereon for contracts entered into on behalf of the ship by the master.-A. advanced money to the owner of a vessel at sea, receiving from him by way of security a bill of sale of the ship, accompanied by a letter as follows:-" You have this day (August 1st, 1851) given me your acceptance for 10001. against the inward freight of my barque the '"Celt," which vessel I am expecting will load home from the Pacific; and it is understood she is to be consigned to you inwards on arrival, and you are to reimburse yourself from her inward freight accordingly. Meanwhile, as collateral security, I have executed a bill of sale of the vessel to you, which you can get duly registered; and, on the return of the vessel to this country, and the due repayment to you of the above-mentioned sum of 10001., the vessel is to be again returned to me." A. registered the bill of sale on the 2nd of August, 1851 :- Held, by the Exchequer Chamber,-affirming the judgment of the court of Common Pleas,-that the register was per se no evidence of ownership, but that the court might look at all the circumstances, to see whether it was the intention of the parties, at the time of giving the bill of sale, that A. should become the absolute owner of the ship, so as to be liable for contracts entered into by the captain lor the benefit of the ship, or whether he was to take her merely as security for his advance. This was a writ of error from a judgment of the court of Common Pleas upon a special case : see Myers v. Willis, ante, vol. xvii., p. 77. 1622 MYERS V. WILLIS 18C.B.887. The particulars of the plaintiffs' demand, as set out on the record, were as follows:- 1852. Feb. 7. To cash advanced at Valparaiso, per charterpartv . £150 0 0 Ditto ditto " 462 10 0 To interest from 7th February, 1852, to date of payment . . . . . . To premium of insurance on 6751. at 105s. per cent. . . £35 8,9 Policy . . . . 1 15 0 - 37 3 9 March 2. To cash paid Messrs. Joseph Hegan & Co.'s claim for advances on cargo guano per " Ferris " . 867 13 5 To interest from 2nd March to date of payment . 1853. May 26. To cash paid the difference in freight between the charters of "Celt" and ".Ferris," say 10s. per ton on 338 tons, 16 cwt., 3 qrs., 8 Ibs. . . 169 8 5 To interest from 26th May to date of payment Sept. 16. To cash paid the difference in freight between the charters per "Celt" and "Apharne," say 45s. per ton on 50 tons, 5 cwt., 1 qr., 19 Ibs.. . 113 2 3 To interest thereon until payment . . * [887] The court of Common Pleas having given judgment for the plaintiffs for the whole of their claim, including damages in respect of the portion of the cargo which was left at Valparaiso, asi stated in the case, ante, vol. xvii., p. 85, the case now came on for argument before Alderson, B., Coleridge, J., Wightman, J., Erie, J., Crompton, J., and Martin, B. Channell, Serjt. (with whom was Tomlinson), for the plaintiffs in error (defendants below). The judgment of the court below, it is submitted, cannot be supported. At the time that judgment was pronounced, the case of Mitcheson v. Oliver, 5 Ellis & B. 419, had not been reported. It is not proposed on the present occasion to contest the principle laid down by the court of Common Pleas in Brodie v. Howard, ante, vol. xvii., p. 109, and Hackwood v. Lyall, ante, vol. xvii., p. 124, that the mere fact of a man's being registered as a part-owner of a ship, under an absolute bill of sale, which is shewn aliunde to have been given only as a security for advances, does not give his co-Owner, or the master (appointed by his co-owner), authority to pledge his credit for repairs. The argument intended to be presented to the court here is perfectly consistent with those decisions. It is conceded that ownership is not the true test, and that the real question is, whether there was any contract between the parties; and that in the present case depends upon whether or not the master of the " Celt" was the agent of the defendant. But, though ownership is not the test, it is still an element in the inquiry : and here, it is submitted, there is evidence that the defendant was the legal owner of the ship. The question is, was the master the agent of the defendant at the time the order was given. In the course of the argument in the court below, the counsel for the defendant observed, "If this were the ordinary case of a purchase of a ship, the purchaser would beyond all [888] doubt take the ship with all her liabilities, and subject to the contracts entered into by the captain for the purposes of the voyage upon which she might happen to be engaged." To which the Lord Chief Justice replies, " When a man buys a ship which is out on a trading voyage as a seeking ship, he intends to become absolute owner, and that the home freight shall be earned for his benefit; and, of course, in that case, he adopts the agency of the master. He adopts the agency, because he intends to adopt those acts which are done for his benefit. But, what pretence is there in this case for saying that the defendant intended to adopt the agency of the captain?" The negative implied there is clearly unfounded. What are the facts 1 The ship had sailed before the bill of sale was executed. The defendant knew that the former owner, Brandeis, was expecting her to load home from one or more ports on the west coast of America, and therefore knew that the captain had some discretionary power. Where a man takes a bill of sale of a 18 C. B. 889. MYEES V. WILLIS 1623 ship which is out on a seeking voyage, intending to take the benefit of the homeward freight, he adopts the agency of the captain in all he fairly does for the benefit of the ship. [Martin, B. Is not Mitcheson v. Oliver, 5 Ellis & B. 419, conclusive of this case1?] Not if the present argument is well founded. Mere ownership is not, it is conceded, the test of liability. In giving judgment in the court below, the learned judges thought themselves at liberty to infer, that, though the bill of sale appears to be absolute on the face of it, it was in fact intended as a collateral security only for the repayment of the 10001. advanced, and interest. The court assume that it was only a mortgage transaction. Jervis, C. J., says : " It is admitted, that, where the party is mortgagee of the ship only, taking merely the security of the ship, without intending to incur any of the liabilities incident to ownership, the bare circumstance of his being entitled to the vessel, and by subsequently [889] entering upon the possession entitling himself to the earnings of the ship, will not make the master his agent so as to bind him in respect of contracts entered into by him as master after the date of the mortgage : not because he is not entitled to the profits, as is said to be the reason in some of the older cases; but because, applying the modern doctrine of principal and agent, it never was the intention of the mortgagee, when he took the security of the vessel, to adopt the master as his agent, so as to be liable for contracts. made by him." Assuming that the transaction was one of mortgage, it is submitted that makes no Difference. The defendant, by the exercise of his own option in registering the bill of sale, became the absolute owner of the ship, and so adopted the agency of the master as to all acts necessarily and properly done by him in furtherance of the purposes of the voyage. [Crompton, J. Is it consistent with this contract that the defendant should interfere with the captain 1 I think it would have excited some surprise if he had sent out instructions to the captain as to what he should do with the ship. Martin, B. You are seeking to impose upon the defendant a contract which he never dreamt of. If a man takes a mortgage of an estate, could that make him responsible to the builder for a house which the mortga'gor had contracted to have built for him on it ?] Looking at the whole transaction, it amounts to this:-The defendant, having the ship conveyed to him by an absolute Mil of sale, the consideration for which is expressed to be 10001., procures it to be registered, and has the vessel consigned to him. [Crompton, J. Consigned to him, as'fegent, to account; not as owner.] Then, can this be treated as a mortgage at all? Is it one which a court of equity could recognise? If it be not a mortgage taken in the form required by the ship's registry acts, no interest passes of which a court of equity could take [890] notice. Equity will look to the title as disclosed on the register, and to that alone. In Follett v. Delany, 2 De G. & S. 235, a bill of sale stated that the vendors of a ship executed a bill of sale to the purchaser, which was to be handed to him upon his paying the consideration in a manner stipulated, but that he took it away with some other papers, as it was supposed, by mistake, and afterwards returned it, saying he could not comply with the terms. The bill further alleged that the plaintiffs, the vendors, had discovered that the defendant, the purchaser, had taken advantage of his accidental possession of the document to make himself the registered owner of the ship, and was about to sail in her: and it was held, that the alleged fraud would not enable the court to interfere; and a demurrer to the bill was allowed. The Vice-Chancellor (Sir L. Shadwell), in giving judgment, said : "How this case would have stood if the deed had been delivered as an escrow, or if its execution had been procured by fraud, or for a consideration not legal, it is unnecessary...
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