Repetto v Millar's Karri and Jarrah Forests Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 02 April 1901 |
| Date | 02 April 1901 |
| Court | King's Bench Division |
King's Bench Division
Bigham, J.
Repetto v. Millar's Karri and Jarrah Forests Limited
Gullichsen v. Stewart BrothersDID=ASPMELR 50 L. T. Rep. 47 5 Asp. Mar. Law Cas. 130, 200 13 Q. B. Div. 317
Shipping Bill of lading Charter-party
MARITIME LAW CASES. 215 K.B. DIV.] REPETTO V. MILLAR'S KARRI AND JARRAH FORESTS LIMITED. [K.B. DIV. HIGH COURT OF JUSTICE. KING'S BENCH DIVISION. March 22 and April 2, 1901. (Before Bigham, J.) REPETTO V. MILLAR'S KARRI AND JARRAH FORESTS LIMITED. (a) Shipping - Bill of lading - Charter-party - Incor poration of charter-party with bill of lading - Signature of bill of lading by master - Bight of master to sue for freight. By a charter-party, containing the usual exceptions, an agreed rate af freight was to be paid on unloading and right delivery of cargo to be provided by the charterers. The captain was to sign bills of lading at port of wading, and the charterers' liability was to cease on vessel being loaded. The charterers loaded the cargo, and the master signed bills of lading which described the cargo as shipped by the charterers in the ship " whereof L. Repetto is master," and provided that the cargo should be delivered to the shippers or their assigns at the port of discharge, they paying freight as per charter-party. In an action by the master against the charterers to recover the balance of freight due: Held, that the master signed the bills of lading, not as principal, but merely as agent for the shipowner, and therefore he was not entitled to sue for the freight. Commercial cause tried before Bigham, J. The facts appear in the judgment. Scrutton, K.C. and Lech for the plaintiff. - The plaintiff is entitled as master of the ship who signed the bill of lading to sue for the balance of the freight due from the defendants. It is admitted by the defendants tha this balance is due, but they say they are entitled to set-off against the plaintiff's claim an amount alleged to be due to them on a prior transaction. This amount is not a mutual debt beween the plaintiff and the defendants, and cannot be set off against the plaintiff: Isberg v. Bowden, 8 Ex. 852. Although there is a cesser clause in the charter-party, by which the charterers' liability under the charter was to cease on the ship being loaded, yet as the bill of lading incorporates the terms of the charter-party, and as the plaintiff is suing on the bill of lading, which is the later document, the cesser clause does not prevent the plaintiff from recovering: Gullichsen v. Stewart Brothers, 50 L. T. Rep. 47 ; 5 Asp. Mar. Law Cas. 130, 200; 13 Q. B. Div. 317. The plaintiff is the party to the contract in the bill of lading; he signed the bill of lading and may either sue or be sued on it, and the two parties mentioned in the bill of lading are the plaintiff and the defendants. It is a contract made by an agent in his own name, and by the ordinary law of principal and agent he can sue or be sued on it (Priestley v. Fernie, 13 L. T. Rep. 208; 3 H. & 0, 977); and, if he sued on it, his principal, the shipowner, cannot sue, as there is only one contract. The general rule applicable in such cases is well stated in the notes to the case of Thomson v. Davenport (9 B. & C. 78 in 2 Smith L. C, 10th edit., at p. 400: " That an agent who has made a contract in his own name for an undisclosed principal, may sue on it in his own name, is established by several cases, particularly Sims v. Bond (5 B. & Ad. 389)." The only difference here is that the defendants knew that there was a principal. Blackburn, J. in Calder v. Dobell (25 L. T. Rep. 129, at p. 133; L. Rep. 6 0. P. 486, at p. 500) says: " I apprehend that where a man is acting as agent, the principal is not the less bound because the contract is so drawn as to make the agent also liable." In such cases either the shipowner...
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